RICHARD DERKACS et al. v. PATHMARK STORES, INC., OSTER REALTY CORP. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1199-05T51199-05T5

RICHARD DERKACS and MADELYN

DERKACS,

Plaintiffs-Appellants,

v.

PATHMARK STORES, INC., OSTER REALTY

CORP. and BERNARD OSTER, INC.,

Defendants-Respondents.

_______________________________________

 

Argued June 7, 2006 - Decided July 12, 2006

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

L-9200-03.

Peter C. Ioannou argued the cause for

appellants.

David A. Semple argued the cause for

respondents (Kent & McBride, attorneys;

Mr. Semple, on the brief).

PER CURIAM

Plaintiffs Richard and Madeline Derkacs appeal from a final order granting summary judgment in favor of defendants Pathmark Stores, Inc., Oster Realty Corporation and Bernard Oster, Inc. Richard Derkacs (Derkacs) alleged that he sustained injuries as a consequence of Pathmark's negligence. Madeline Derkacs' claim is per quod.

Plaintiffs argue that a genuine dispute of fact about defendants' exercise of reasonable care and the trial judge's application of "the wrong legal standard" require reversal. Our review of the record in light of the issues raised convinces us that the arguments lack sufficient merit to warrant extended discussion in a written opinion, and we affirm. R. 2:11-3(e)(1)(E). Plaintiffs failed to raise a genuine issue of material fact that would permit a reasonable juror to conclude that defendants breached a duty of care owed to Derkacs.

On the day of the accident Derkacs was employed by Stella D'Oro Biscuit Co. His duties included delivery of baked goods to retail stores. For ten years prior to his accident, he delivered Stella D'Oro products to a Pathmark store in Fairlawn, New Jersey. He made those deliveries twice a week. On the day in question, he went to Pathmark, entered the store by way of the ramp he always used, took inventory, returned by way of the same ramp to his truck and loaded his hand truck with seven or eight boxes of baked goods. As he wheeled his hand truck up the ramp, "the boxes got caught between the railing and the building." He moved his body and legs in an effort to try to maneuver the hand truck free; he "felt a ping and a slippage in [his] knee." Derkacs also said that Pathmark kept "stuff" out on the ramp and he got stuck on the boxes. His wife took photographs of the ramp, which he describes as depicting a loose and rusted railing. More recent photographs taken by Pathmark depict a ramp that is nineteen inches wide at the top and a railing with fresh cement at the base of its posts.

The legal standards are clear. Derkacs was injured while delivering baked goods to Pathmark's store. Because he was on the premises for reasons related to Pathmark's business, he enjoyed the status of a business invitee. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). Business owners owe invitees who are acting within the scope of their invitation a duty of reasonable care. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). The duty owed Derkacs includes the obligation to "provide a safe environment for doing that which is within the scope of the invitation," "discover and eliminate dangerous conditions," "maintain the premises in safe condition," and "avoid creating conditions that would render the premises unsafe." Ibid. The duty "does not ordinarily require precautions or even warning against dangers which are apparent" unless "the danger is known by the possessor or should reasonably have been anticipated." Ridenour v. Bat Em Out, 309 N.J. Super. 634, 644 (App. Div. 1998); see Jimenez v. Maisch, 329 N.J. Super. 398, 402-03 (App. Div. 2000).

The motion judge found that the condition of the ramp was known, open and notorious to plaintiff.

 
We agree that plaintiffs did not present evidence of a condition that defendants had a duty to correct. The clutter depicted in the photograph plaintiffs presented consists of clearly visible cartons stacked against the exterior wall of the building and, for the most part, in an area in which the exterior wall is recessed and the boxes do not protrude onto the ramp. See Jimenez, supra, 329 N.J. Super. at 403 (citing Schwartz v. Selvage, 277 N.W.2d 681, 683 (Neb. 1979), a case in which the court denied recovery to a mail carrier after noting that the clutter on the porch, which was the dangerous condition the mail carrier alleged, was "obvious to him"). Moreover, to the extent that Derkacs argues that the ramp was too narrow to permit reasonably safe ingress and egress by persons making deliveries with hand trucks, there is no competent evidence to support the claim. "In general, expert testimony is required when 'a subject is so esoteric that jurors of common judgment and experience cannot form a valid conclusion.'" Hopkins, supra, 132 N.J. at 450 (citation omitted).

Affirmed.

(continued)

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A-1199-05T5

July 12, 2006