PATRICIA SHIVERY, et al. v. ADAM STIEFEL FUNERAL HOME

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5570-04T25570-04T2

PATRICIA and JAMES SHIVERY,

Plaintiffs-Appellants,

v.

ADAM STIEFEL FUNERAL HOME,

Defendant-Respondent.

_________________________________________________

 

Argued April 25, 2006 - Decided May 10, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Gloucester County,

L-1631-03.

Robert R. Nicodemo III argued the cause

for appellant (Robert R. Nicodemo III

attorney; Richard V. Cosentino on the brief).

Arthur E. Donnelly argued the cause for

respondent (Tucker & Munyon attorneys;

Mr. Donnelly on the brief).

PER CURIAM

Plaintiff Patricia Shivery sustained a broken hip in a trip and fall accident occurring on November 30, 2003 as she and her husband, plaintiff James Shivery, left the defendant Adam Stiefel Funeral Home and walked along the public sidewalk toward their car. Suit was timely instituted. After an extended discovery period had ended, an arbitration had occurred, resulting in a determination of no cause for action, a trial de novo had been requested, and a first trial date had been assigned, plaintiffs served the report of a liability expert, John J. Hare, who opined that an elevated portion of the sidewalk constituted a dangerous condition in violation of ANSI requirements. Defendant moved to bar the testimony of plaintiffs' expert at trial and for summary judgment. Both motions were granted. The judge agreed with defendant that the expert's report, which he deemed net in nature because of the inability to pinpoint the location of the accident, was untimely, and he granted summary judgment on the ground that no dangerous condition had been demonstrated. Plaintiffs have appealed from both orders. We affirm.

We reject plaintiffs' argument on appeal that the motion judge abused his discretion in barring the testimony of their expert. Because the period for discovery had passed, mandatory arbitration had occurred and a trial date had been assigned, plaintiffs were required to demonstrate that exceptional circumstances warranted the late service of their expert's report. R. 4:24-1(c). Plaintiffs failed to do so, and indeed provided no justification for the late service, merely relying in opposition to defendant's motion upon the fact that the initial trial date was subsequently adjourned. We find this showing to be insufficient. Huszar v. Greate Bay Hotel, 375 N.J. Super. 463, 472-73 (App. Div.), summarily remanded on other grounds, 185 N.J. 290 (2005); Zadigan v. Cole, 369 N.J. Super. 123, 132-33 (Law Div. 2004). The court's order is affirmed.

We likewise affirm the motion judge's order of summary judgment, but for somewhat different reasons from those expressed by him, finding that the plaintiffs have not established where the fall took place, and thus have failed to present evidence from which a jury could conclude that a dangerous condition existed that was a proximate cause of plaintiffs' injuries.

The record reflects that prior to the fall, the Shiverys had attended a viewing at the Stiefel Funeral Home. Upon leaving the funeral home, they stopped to chat with decedent's son, Ronald Justis, a former high school classmate of James Shivery. In a statement given on November 12, 2003 Justis, who observed the fall, stated that it occurred on "uneven pavement" located "right on the intersection at the corner" on the Broad Street side of the funeral home.

Patricia Shivery gave a deposition, in which she stated that she and her husband had stopped to talk to Justis at a spot located to the right of the path leading to the funeral home as one faced it, and very close to that path. When the conversation concluded, she turned around to continue walking along the sidewalk, and had been walking for a "few seconds" when the accident occurred. She could not recall how many steps she had taken, feet she had traversed or sections of the sidewalk she had crossed. She remembered, however, that she was holding the arm of her husband, who was walking closer to the street on her right. It was the toe of plaintiff's left shoe that caught in the pavement. Plaintiff also recalled that there was a postal box in the area of her fall, that it was located very close to where she fell, and that she didn't think that she had reached the postal box at the time the fall occurred. She had never pointed out the area where she fell to anyone, and had not personally revisited the site of the fall since it took place.

James Shivery also gave his deposition. He confirmed that he had taken his wife's right arm, and at the time of the accident had walked "maybe four or five steps" from where they had talked to Justis. However, he was unable to pinpoint the location of the accident. In that regard, the following colloquy occurred:

Q And is there anything like a landmark or sign post that you could point out or tell me about as being the area where your wife had her incident?

A I don't recall.

Q I mean, was there like a, you know, like a sewer clean out or mailbox or a street sign or telephone pole, is there anything like that, a landmark that you can say, you know, this happened - this incident happened right when you got to such and such a place?

A Not really, no.

Q And can you describe what the area looked like where your wife had her incident?

A It was the sidewalk and it happened so fast, it sort of, you know, she was on my arm and then went over, so it was, you know, it was just a sidewalk.

Although the husband testified that the sidewalk was raised in the area where his wife fell, he was "not certain" of the extent of the differential. He, too, had never returned to inspect the site.

Pictures included in the record, taken by an investigator for plaintiffs, by their expert, and by a claims representative for the insurer of the funeral home, depict various sidewalk areas in which uneven conditions existed at the time of the accident or within one year of its occurrence. However, the locations depicted in the photographs do not correlate with the deposition testimony of the Shiverys, and no testimony establishes that any of the areas shown represent the location at which Patricia Shivery's fall occurred.

New Jersey precedent establishes that in some circumstances a commercial landowner can be held liable for injuries occurring as the result of a dangerous condition of the sidewalk abutting the business premises. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157 (1981). There, the Court held that "commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injures as a result of their negligent failure to do so." Ibid. However, in order to establish liability on the part of the business owner, the injured party must establish not only that the sidewalk was not "in reasonably good condition" as the result of the owner's negligence, but also that a causal relationship exists between the dangerous condition and the resultant injury. As the Supreme Court has stated in a different factual context:

One of the underlying principles of tort law is that "an actor's conduct must not only be tortious in character but it must also be a legal cause of the invasion of another's interest." Restatement (Second) of Torts 9 cmt. a (1965) . . . . It follows from that principle that the issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence. "There must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found by the jury," and the resulting injury. Germann v. Matriss, 55 N.J. 193, 205 (1970).

[Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002).]

In the present case, insufficient evidence exists in the record to permit an identification of the location of Patricia Shivery's fall, an evaluation of the conditions existing in that location, or a determination whether those conditions can be causally related to her fall. As a consequence, we agree that the evidence adduced by plaintiffs is insufficient to meet their burden of proof in this negligence action. Turck v. Kaywal Realty Co., 3 N.J. Super. 165, 168 (App. Div. 1949) (stating burden of proof in premises liability actions based on negligence); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Affirmed.

 

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A-5570-04T2

May 10, 2006