HELEN REPKO v. NG FOOD, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6375-04T16375-04T1

HELEN REPKO,

Plaintiff-Appellant,

v.

NG FOOD, INC., d/b/a FAME RESTAURANT, and

NASSAU ARMS, its agents, representatives,

subsidiaries and employees,

Defendants-Respondents.

_______________________________________________________________

 

Argued: September 27, 2006- Decided November 9, 2006

Before Judges Fuentes and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1349-04.

John J. Bublewicz argued the cause for appellant.

Timothy P. Mullin argued the cause for respondent NG Food, Inc. d/b/a Fame Restaurant (Zarwin, Baum, DeVito, Kaplan, Shaer & Toddy, attorneys; Mr. Mullin, on the brief).

Aimee R. Belgard argued the cause for respondent Nassau Arms (Sweeney & Sheehan, attorneys; Ms. Belgard, on the brief).

PER CURIAM

Plaintiff, Helen Repko, appeals from the grant of summary judgment dismissing her complaint. After careful consideration of the motion record and appropriate legal standards, we affirm substantially for the reasons set forth in Judge Koenig's oral decision of June 24, 2005. R. 2:11-3(e)(1)(A). We add only the following brief comments.

On November 23, 2002, plaintiff, described by counsel as a handicapped octogenarian, and her daughter parked their car in the handicapped parking spot outside The Fame Restaurant. The restaurant was owned and operated by defendant NG Food Inc. (NG Food). NG Food was a tenant of defendant Nassau Arms which owned the parking lot and surrounding premises. During the summer of 2002, Nassau Arms repaved the parking lot and created a handicap parking space near the entrance to the restaurant. Next to the handicap space, a second space was painted with white stripes signifying no parking was permitted; this second space allowed access to and from the restaurant and the handicapped space.

Typical concrete traffic stops were placed at the front of each parking space in the lot, including the handicapped space and the striped access space. Beyond the traffic stops, at the head of the parking and access spaces, a raised walkway led to the restaurant's entrance. Plaintiff exited her daughter's car on the passenger side, traversed the striped access area, and entered the restaurant with her daughter.

Shortly thereafter, as she left the restaurant and returned to the car along the same route, plaintiff stepped down off the raised walkway and onto the parking lot pavement. She suddenly fell forward injuring herself. At plaintiff's deposition, the following exchange took place regarding the cause of her fall:

Q. [T}here appears to be parking stoppers located at the end here. Were you near those parking stoppers when you fell?

A. I don't remember. I don't remember. I couldn't remember that.

Q. Okay. Do you know what caused you to fall?

A. All I remember is I was flying.

Q. Do you remember hitting your foot on anything?

A. I don't remember.

Q. Do you remember slipping on anything?

A. I don't remember.

Plaintiff's daughter's deposition included the following exchange:

Q. Did you see what, if anything, made (your mother) fall?

A. No. The only thing I saw as she fell, she fell about here (indicating). And, you know, her foot was, you know, towards the end of the concrete barrier here. Her foot was lying in that area (indicating).

Q. That was after her fall?

A. Yes.

. . . .

Q. Did you see her foot contact that little parking stopper located at the end of the stall with the white lines on it?

A. Not as I recall.

Q. Did you see her foot catch anything?

A. I didn't actually see the foot catch anything.

Both defendants moved for summary judgment. In his oral opinion, Judge Koenig applied the appropriate standards set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). He concluded, "Summary judgment is appropriate because I don't believe the plaintiff has shown any act or omission on the part of the defendants that caused her accident." We concur.

"[N]egligence . . . requires proof that a defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach." Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2006). "[D]efendant'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' . . . and the resulting injury.'" Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002)(quoting Germann v. Matriss, 55 N.J. 193, 205 (1970)). "An inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess." Long v. Landy, 35 N.J. 44, 54 (1961).

There was no competent evidence or inferences in the record that permitted a reasonable conclusion that plaintiff tripped on the concrete parking stop or that her fall was proximately caused by any negligent act or omission of the defendants.

Affirmed.

 

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A-6375-04T1

November 9, 2006