IRENE KURC v. ALL STAR ONE

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3316-16T1

IRENE KURC,

Plaintiff-Appellant,

ALL STAR ONE, KAREN BRENNER,
HIMMELSTEIN ASSOCIATES, LLC,

Defendants-Respondents,

and

ALL STAR ONE PARENT BOOSTER
CLUB, INC.,

Defendant.
______________________________

Submitted February 6, 2018 – Decided April 19, 2018

Before Judges Leone and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-
0181-15.

Escandon, Fernicola, Anderson & Covelli,
attorney for appellant (Robert M. Anderson,
Of Counsel; Scott M. McPherson, on the
briefs).
Law Offices of Charles A. Little, Jr.,
attorney for respondents (Charles A. Little
Jr., on the brief).

PER CURIAM

Plaintiff Irene Kurc appeals the Law Division's February 3,

2017 order granting summary judgment in favor of defendants All

Star One, Karen Brenner, Himmelstein Associates, LLC, and All

Star One Parent Booster Club, Inc. She also appeals the March

17, 2017 order denying her motion for reconsideration. We

affirm.

We summarize the facts in the trial court's February 3

opinion, supplemented with plaintiff's factual assertions.

On January 23, 2013, plaintiff accompanied her

granddaughter to cheerleading practice at defendants' facility

in Egg Harbor Township. In her deposition, plaintiff testified

as follows. She entered the front of the building, and walked

to the rear seating/viewing area along a walkway designated for

non-athletes. After viewing her granddaughter's practice,

plaintiff walked toward the front to meet her waiting

granddaughter on the same walkway near the rear reception area.

She encountered a young child athlete sitting on a separate

moveable mat on the walkway, blocking her path. To pass the

seated child, plaintiff stepped off the walkway and onto the

A-3316-16T1
spring mat used for cheerleading. Plaintiff testified that

while up on the cheerleading mat, she saw some young girls

approaching, and she turned around to step off the mat, which

was raised about four inches. The mat moved out from underneath

plaintiff, causing her to fall and injure her wrist.

Defendants filed a motion for summary judgment on the

grounds that plaintiff failed to offer any proofs establishing

they were negligent. The trial court agreed "[p]laintiff failed

to put forth any proof showing the actions or inactions of

[d]efendants led to an unsafe condition or lack of reasonable

care such that it was a proximate cause to [p]laintiff's fall

and injury." The court granted summary judgment in favor of

defendants. Plaintiff filed a motion for reconsideration, which

the court denied.1 Plaintiff appeals.

II.

Summary judgment must be granted if "the pleadings,

depositions, answers to interrogatories and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving

party is entitled to a judgment or order as a matter of law."

1
It is undisputed the trial court denied reconsideration, though
it signed plaintiff's proposed order stating its summary
judgment order "is hereby vacated."

A-3316-16T
1 R. 4:46-2(c). The court must "consider whether the competent

evidential materials presented, when viewed in the light most

favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co.

of Am.,
142 N.J. 520, 540 (1995). "'"[T]he court must accept as

true all the evidence which supports the position of the party

defending against the motion and must accord [that party] the

benefit of all legitimate inferences which can be deduced

therefrom[.]"'" Id. at 535 (citations omitted). An appellate

court "review[s] the trial court's grant of summary judgment de

novo under the same standard as the trial court." Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co.,
224 N.J. 189, 199

(2016). We must hew to that standard of review.

III.

Courts "have long held that it is ordinarily a plaintiff's

burden to prove negligence, and that it is never presumed."

Khan v. Singh,
200 N.J. 82, 91 (2009). "[I]ndeed there is a

presumption against it[.]" Buckelew v. Grossbard,
87 N.J. 512,

525 (1981). "To sustain a cause of action for negligence, a

plaintiff must establish four elements: '(1) a duty of care, (2)

a breach of that duty, (3) proximate cause, and; (4) actual

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damages.'" Townsend v. Pierre,
221 N.J. 36, 51 (2015) (quoting

Polzo v. Cty. of Essex,
196 N.J. 569, 584 (2008)).

Thus, "[a] prerequisite to recovery on a negligence theory

is a duty owed by defendant to plaintiff." Strachan v. John F.

Kennedy Mem'l Hosp.,
109 N.J. 523, 529 (1988). "When a person

alleges that a landowner has acted negligently, the existence of

a duty by a landowner to exercise reasonable care to third

persons is generally governed by the status of the third person

— guest, invitee, or trespasser — particularly when the legal

relationship is clearly defined." Robinson v. Vivirito,
217 N.J. 199, 209 (2014).

Here, it is undisputed plaintiff was a business invitee. A

business invitee is a "person . . . invited on the premises for

purposes of the owner that often are commercial or business

related." Hopkins v. Fox & Lazo Realtors,
132 N.J. 426, 433

(1993). A landowner owes to a business invitee "a duty of

reasonable care to guard against any dangerous conditions on his

or her property that the owner either knows about or should have

discovered." Id. at 434. This includes the duty to conduct "a

reasonable inspection to discover latent dangerous conditions."

Ibid. Therefore, defendants owed a duty of reasonable care to

A-3316-16T1
guard against dangerous conditions they "kn[ew] about or should

have discovered." Id. at 433.

Thus, "an invitee seeking to hold a business proprietor

liable in negligence 'must prove, as an element of the cause of

action, that the defendant had actual or constructive knowledge

of the dangerous condition that caused the accident.'" Prioleau

v. Ky. Fried Chicken, Inc.,
223 N.J. 245, 257 (2015) (citation

omitted). "[T]he mere existence of a dangerous condition does

not, in and of itself, establish actual or constructive notice."

Prioleau v. Ky. Fried Chicken, Inc.,
434 N.J. Super. 558, 571

(App. Div. 2014), aff'd as modified,
223 N.J. 245, 258 (2015).

Here, plaintiff proffered no evidence that defendants had

actual knowledge of the child blocking the walkway. There was

no evidence that defendants or any of their employees saw the

child was sitting on the walkway, heard complaints about the

child's presence there, or had any knowledge that the child was

blocking the walkway. See Drazin, New Jersey Premises Liability

§ 6:4 (2018).

A defendant has constructive knowledge "when the condition

existed" "'for such a length of time as reasonably to have

resulted in knowledge and correction had the defendant been

reasonably diligent.'" Troupe v. Burlington Coat Factory

Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016)

A-3316-16T1
(citation omitted). "The characteristics of the dangerous

condition giving rise to the slip and fall or eyewitness

testimony" regarding the length of time the conditions existed

"may support an inference of constructive notice about the

dangerous condition." Ibid.

In Troupe, the plaintiff slipped and fell on a berry

located on the floor of the defendant clothing store.
443 N.J.

Super. at 600. The court noted the plaintiff did not provide

any evidence showing how long the berry remained on the floor,

or that any employee should have known the berry was there. Id.

at 602. Therefore, the court ruled the defendant had no

constructive notice regarding the berry on the floor. Ibid.

As in Troupe, the record here is devoid of any evidence the

defendants had constructive notice. Plaintiff simply suggests

because she fell near the rear reception desk, the receptionist

had constructive knowledge of the child on the walkway and thus

a duty to move the child. However, plaintiff proffered no

evidence showing the receptionist knew or should have known

before plaintiff's fall that there was a child blocking the

walkway. Moreover, there was no evidence about how long the

child was there, and thus about the amount of time defendant had

to discover and remedy the situation. The absence of evidence

of "actual or constructive notice . . . is fatal to plaintiff's

A-3316-16T1
claims of premises liability." Arroyo v. Durling Realty, LLC,

433 N.J. Super. 238, 243 (App. Div. 2013); see Brown v. Racquet

Club of Bricktown,
95 N.J. 280, 291 (1984).

Citing cases outside the realm of premises liability,

plaintiff argues it was foreseeable that a child athlete would

sit in the walkway and would cause spectators to walk on the

spring mat. However, plaintiff did not support her argument

with any evidence, such as a history of other children sitting

and blocking the walkways.

In any event, "the Supreme Court has cautioned that

'imposing a duty based on foreseeability alone could result in

virtually unbounded liability[.]'" Peguero v. Tau Kappa Epsilon

Local Chapter,
439 N.J. Super. 77, 94 (App. Div. 2015) (quoting

Estate of Desir ex rel. Estiverne v. Vertus,
214 N.J. 303, 319

(2013)). "The duty owed by a premises owner, referred to as

premises liability, depends in general upon the application of

well-established categories through which the status of the

injured party is used to define both duty and foreseeability."

Desir,
214 N.J. at 316. "[T]he duty analysis has already been

performed in respect of invitees, licensees (social guests), and

trespassers. In furtherance of the goal of a 'reasonable degree

of predictability[,]' those standards continue to guide" New

A-3316-16T1
Jersey courts. Rowe v. Mazel Thirty, LLC,
209 N.J. 35, 45

(2012) (alteration in original) (citation omitted).

Plaintiff falls squarely in the category of business

invitee. As she cannot establish the actual or constructive

knowledge required for a duty to a business invitee, she cannot

rely on general assertions of foreseeability to redefine that

well-defined duty. Therefore, the trial court properly found

she failed to show defendants had a duty which they breached.

Plaintiff also argues the trial court improperly granted

summary judgment on the issue of proximate cause because that is

a jury issue. See Perez v. Wyeth Labs. Inc.,
161 N.J. 1, 27

(1999) ("Ordinarily, issues of proximate cause are considered to

be jury questions." (citation omitted)). Plaintiff raised the

same argument in her motion for reconsideration.

However, in denying her motion for reconsideration, the

trial court ruled that, even ignoring proximate cause, plaintiff

failed to show a breach of duty:

Although proximate cause is a jury question,
[p]laintiff has still failed to put forth
any evidence whatsoever this incident stems
from a breach of [d]efendant's duty to
[p]laintiff, which is not a jury question.
The lack of evidence [of breach of duty] is
an issue even before reaching proximate
cause.

A-3316-16T1
"The issues of whether a defendant owes a legal duty to

another and the scope of that duty are generally questions of

law for the court to decide." Robinson,
217 N.J. at 208.

"[W]hether the duty was breached is a question of fact."

Jerkins v. Anderson,
191 N.J. 285, 305 (2007). Because the lack

of evidence of a duty breached was the reason the court denied

reconsideration, and thus summary judgment, we need not reach

the issue of proximate cause.

We also need not consider the validity of plaintiff's

argument before the trial court that the spring mat was

defective because it was "a known slip-and-fall safety hazard."

At both ends of the training area, defendants posted signs that

stated: "Only athletes and coaches beyond this point."

Plaintiff also cites defendant Karen Brenner's deposition

testimony that the signs were posted for "a hundred safety

issues," including "[t]ripping and falling." However, Brenner

made no specific mention of the spring mat, and did not state

the mat was defective, a tripping hazard, or a safety hazard.

In any event, in her reply brief, plaintiff concedes that her

"theory of negligence is not that the subject mat was defective

but rather [d]efendants negligently allowed the pedestrian

walkway to be blocked forcing Plaintiff and other

parents/spectators to step up onto the cheerleading mat."

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We also need not address plaintiff's argument that she did

not have to present expert testimony. See Hopkins,
132 N.J. at
449-51 (finding expert testimony was not "necessary in order for

plaintiff to establish the existence of a dangerous condition"

of an unseen step). In granting summary judgment, the trial

court noted but did not rely on defendants' complaint that

plaintiff had not provided any sort of expert testimony. We

similarly rely instead on the absence of any evidence showing

defendants had actual or constructive knowledge of the child

blocking the walkway.

Affirmed.

A-3316-16T1

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