JAMES P. BRADY v. JOVANNA CHAHUA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0352-05T20352-05T2

JAMES P. BRADY,

Plaintiff-Appellant,

v.

JOVANNA CHAHUA and WALTER CHAHUA,

Defendants,

and

RALPH HOPPING,

Defendant-Respondent.

________________________________________

WALTER CHAHUA and JOVANNA CHAHUA,

Third Party Plaintiffs,

v.

NUI CORPORATION and ELIZABETHTOWN

GAS COMPANY,

Third Party Defendants.

_________________________________________

 

Argued: November 29, 2006 - Decided April 17, 2007

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L-7173-03.

Michael R. Hobbie argued the cause for appellant (Hobbie, Corrigan, Bertucio & Tashjy, attorneys; Mr. Hobbie, of counsel and on the brief).

Deborah B. Rosenthal argued the cause for respondent (Gebhardt & Kiefer, attorneys; Joseph F. Trinity, of counsel and on the brief; William J. Rudnik, on the brief).

PER CURIAM

Plaintiff James Brady appeals from the September 7, 2005 order granting summary judgment in favor of defendant Ralph Hopping. We affirm.

These are the salient facts. On February 27, 2003, at approximately 2:30 a.m., Jovanna Chahua was driving a vehicle owned by Walter Chahua westbound on New Brunswick Avenue in Perth Amboy. As she attempted to turn onto East Avenue, her car lost power. She was unable to complete the turn. Her vehicle jumped the curve and struck a high-pressure gas meter set located on Hopping's property. The impact caused the gas meter to break and emit a hissing sound and the smell of natural gas. Emergency personnel evacuated the structures in the surrounding area.

James Brady, an employee of Elizabethtown Gas Company (Elizabethtown), responded to the gas leak at approximately 4:00 a.m. Brady shut off the gas valve. As he turned to walk away, the gas meter blew up, causing serious injuries to Brady. In addition, the building owned by Hopping was completely destroyed by the explosion and subsequent fire.

It is undisputed that Hopping purchased the property where the gas meter was located in 1985. At the time, the first floor of the building was used as a produce market. In 1993, Hopping contacted Elizabethtown to ask for an estimate of the amount of gas needed to convert the store to a laundromat. Elizabethtown informed him that there was not enough gas on either New Brunswick Avenue or East Avenue to meet his demand. However, Charles Walsh from Elizabethtown explained that there was a high-pressure gas main to which he could connect the building. Hopping agreed to such installation.

New Brunswick and East Avenue form a T intersection. Because of concerns about destruction to the newly-paved East Avenue and the location of an underground oil tank, the high-pressure gas line was installed about four feet away from East Avenue and six to seven feet away from New Brunswick Avenue. Hopping expressed some concern to Elizabethtown about its placement so close to the intersection. Elizabethtown agreed to install columns in front of the high-pressure meter set. After the laundromat opened in 1994, the columns were still not installed. Elizabethtown subsequently installed four-inch poles, consisting of steel tubing filled with concrete, around the meter.

Following the accident, Brady sued Hopping and the Chahuas, who in turn sued Elizabethtown and others. Hopping moved for summary judgment. Brady opposed the motion and moved to bar the testimony of Hopping's expert, John Toto, P.E., P.P. The judge granted Hopping's motion and dismissed Brady's complaint. In making this ruling, the judge found that Hopping had fulfilled his duty of care to invitees by: 1) voicing his concern when he learned the gas meter would be so close to the street; 2) complaining to Elizabethtown when the cement-filled steel columns were not put in place to protect the gas meter; and 3) having no further reason to complain to Elizabethtown because there were no known problems with the poles.

On appeal, Brady contends that the judge erred in disregarding the Supreme Court's holding in Monaco v. Hartz Mt. Corp., 178 N.J. 401 (2004), and improperly granted summary judgment. We disagree.

It is well-settled that when stating a claim for negligence, a plaintiff must prove all of the necessary elements in order to avoid a dismissal on a motion for summary judgment. Long v. Landy, 35 N.J. 44 (1961); Saks v. Ng, 383 N.J. Super. 76, 89 (App. Div.), certif. denied, 186 N.J. 605 (2006). The elements of negligence are: "a duty of care owed by defendant to plaintiff"; "a breach of that duty"; and an "injury to plaintiff proximately caused by [respondent's] breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). The existence of a duty is a matter of law that should be decided by the judge, not by the jury. Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991). Foreseeability of the risk of injury is one of the main factors in making the determination of a duty. Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 402 (2006). However, it is not the only factor. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573 (1996). The court must also look to: fairness; public policy; the relationship of the parties; which party created the conditions of the risk of harm; the opportunity and capacity of defendant to avoid the risk of harm; and the actual awareness and knowledge of the risk of harm. Id. at 574-76.

In Monaco, plaintiff, an employee of the building's tenant, was injured when he was struck by a municipal parking sign, which was dislodged by a gust of wind. Plaintiff sued the landowners. Monaco, supra, 178 N.J. at 404-05. In rejecting the landowner's contention that it had no duty, the Supreme Court held that even though the property owner had no ownership or control over the sign:

a landowner owes a duty to its invitees to maintain its land in a safe condition, to inspect, and to warn of hidden defects whether within its power to correct or not, and that it was for the jury to determine whether a breach of that duty occurred.

[Id. at 404.]

Monaco cited two cases in which a duty to warn or protect was expanded to extend a landowner's duty beyond the confines of his property. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 444 (1993) (holding that real estate agents have a duty to conduct a reasonable inspection to find obvious physical characteristics harmful to the safety of potential customers at an open-house); Warrington v. Bird, 204 N.J. Super. 611, 617 (App. Div. 1985), certif. denied, 103 N.J. 473 (1986) (extending a landowner's duty to take reasonable steps to maintain the safety of patrons traversing a public roadway between the business and its parking lot).

The crux of the Monaco holding is that, "a landlord may not sit idly by a hazardous condition, affecting its property, regardless of control, when that condition places a third party in danger." Monaco, supra, 178 N.J. at 416. Even in cases where there is no control over the hazard, the owner has an affirmative duty to make a reasonable inspection of the property and to take all possible steps to protect invitees from the danger. Id. at 419.

Here, we must consider separately any duty owed by Hopping to Brady, as opposed a duty owed to third parties. In doing so, we note that Brady arrived on the scene after Chauhua's accident, with knowledge that the high-pressure gas meter had been damaged in the collision. Considering those facts against the following factors identified in Olivo/Carvalho: foreseeability, fairness, capacity of defendant to avoid the risk of harm, and the actual awareness of the risk of harm, we conclude from our review of the record that Brady has failed to establish that Hopping owed a duty to him. Thus, Brady's claim against Hoppings fails. We conclude that the standard imposed by Monaco does not apply to this case.

Upon Brady's arrival, Hopping had no duty to warn him because, obviously, the latter knew that the high-pressure gas meter had been damaged and might cause an injury. For the same reason, Hopping had no duty to inspect the gas meter in order to warn Brady of its condition. In fact, arguably, Brady had greater knowledge than Hopping of the dangerous condition, because he was called upon to stabilize it and reduce the danger it presented to himself and others.

In reaching this holding, we do not address the duty that Hopping may have owed to persons other than Brady. There are no other plaintiffs here.

Given our decision, that no duty was owed by Hopping to Brady, we need not reach those contentions: (1) that "the judge erred in finding that Hopping fulfilled his non-delegable duty as a commercial landowner because that determination is a jury question"; (2) Hopping "should not have relied on Elizabethtown's expertise and, instead, should have hired a private consultant to determine a safer place to put the high-pressure gas meter"; and (3) "the poles used to protect the gas meter were 'obviously' insufficient to protect the gas-meter from vehicular traffic." We merely note that it is true that, generally, the determination of whether a breach of duty occurred is a decision for the trier of fact. Monaco, supra, 178 N.J. at 418; Hopkins, supra, 132 N.J. at 449. In weighing the disputed facts, the judge must view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995); R. 4:46-2.

Brady also contends that the judge erred in failing to consider the report to his expert, Alan E. Meade, P.E. Meade first notes that pursuant to N.J.A.C. 5:10-2.2, Hopping's building was a multiple dwelling. As such, it fell under New Jersey regulations for maintenance of hotels and multiple dwellings. Therefore, Hopping was required to maintain his property under New Jersey's Uniform Fire Code and was responsible for maintaining the building in a safe condition. Duties under the Uniform Fire Safety Code may be met by fulfilling the Uniform Construction Code. N.J.A.C. 5:70-4.3. The Uniform Construction Code adopted the federal Building Officials and Code Administrators (BOCA) National Mechanical Code. N.J.S.A. 52:27D-123. This Code specifies that:

Piping installed outside above ground shall be securely supported and protected from physical damage. Pipe shall not be laid on the ground surface where subject to mechanical injury.

[Building Officials and Code Administrators International, The BOCA National Mechanical Code, 808.0 (1993).]

Meade found that Hopping had violated this code section, and thus the New Jersey regulations for the maintenance of hotels and dwellings. This report was submitted to the judge as part of Brady's opposition to Hopping's motion for summary judgment.

It is true that the judge did not refer to Meade's report in articulating his findings. However, we have no reason to believe that the judge did not consider them. At any rate, the report does not change our view: Hopping owed no duty to Brady.

Brady also contends that the judge erred in failing to consider the reports of Hopping's own two experts, Charles H. Batten, P.E. and Steven M. Schorr, P.E. These reports were prepared for Hopping as part of his separate action for property damages against Elizabethtown. Hopping argued that these reports were not submitted to the judge as part of the summary judgment motion and thus should not be considered in this appeal. R. 2:10-2; see Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2007). The record supports this factual assertion. Although the experts were mentioned during oral argument on the motion for summary judgment, as cited in Brady's appendix, the reports are not listed as exhibits in support of the motion.

 
Affirmed.

Improperly pled as Ralph Hopang.

(continued)

(continued)

10

A-0352-05T2

April 17, 2007