ELEANOR A. PICKENS et al. v. CIRCUIT NJ PROPERTY INVESTMENT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0812-06T30812-06T3

ELEANOR A. PICKENS and HARLEY

PICKENS, her husband,

Plaintiffs-Appellants,

v.

CIRCUIT NJ PROPERTY INVESTMENT;

CIRCUIT CITY STORE #3104; CIRCUIT

CITY STORES, INC.; THE SPORTS

AUTHORITY; DOERLER LANDSCAPES,

INC.,

Defendants-Respondents,

and

WILEY'S SWEEPING AND STRIPING,

Defendant,

and

DOERLER LANDSCAPES, INC.,

Third-party Plaintiff,

v.

THOMAS WILEY, JR., t/a WILEY'S

SWEEPING AND STRIPING,

Third-party Defendant.

_________________________________

 

Argued September 24, 2007 Decided October 29, 2007

Before Judges Graves and Alvarez.

On appeal from the Superior Court of

New Jersey, Mercer County, Law Division,

L-0140-05.

Edward Slaughter, Jr., argued the cause

for appellants (Pellettieri, Rabstein and Altman, attorneys; Mr. Slaughter, on the brief).

Michael E. Gehring (Post & Schell) of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondents, Circuit NJ Property Investment, Circuit City Store #3104, Circuit City Stores, Inc., and The Sports Authority (Post & Schell, attorneys; Jay A. Gebauer, Quinn M. McCusker, and Mr. Gehring, on the brief).

Irene N. Komandis argued the cause for

respondent Doerler Landscapes (Hill Wallack LLP, attorneys; Julie Colin, of counsel; Ms. Komandis, on the brief).

PER CURIAM

Plaintiffs, Eleanor A. Pickens and Harley Pickens appeal from an order of summary judgment granted to defendants Circuit NJ Property Investment; Circuit City Store #3104; Circuit City Stores, Inc.; The Sports Authority (collectively Circuit City); and Doerler Landscaping, Inc. (Doerler). We affirm for the reasons set forth below.

On a very windy afternoon, plaintiff Eleanor A. Pickens fell and suffered injuries while walking across a Circuit City parking lot. She slipped on a round, prickly seedpod blown in from nearby trees. Circuit City's parking lot was maintained by Doerler, pursuant to a written contract that called for the parking lot to be kept "free of weeds and organic debris." Doerler was also required to sweep the lot a minimum of three times per week. Doerler subcontracted its sweeping responsibilities to Wiley's Sweeping and Striping (Wiley's). Wiley's employed a mechanical sweeper to clear the parking lot three times a week; this device picked up seedpods. The Circuit City manager routinely checked the condition of the parking lot on the mornings he worked, although he did not specifically recall the date of plaintiff's fall. He assumed he did so on the date in question. It is undisputed that the seedpods blew in from trees not located on Circuit City's property.

A landowner owes a duty of reasonable care to business invitees, and the responsibility extends to those conditions "'that the owner either knows about or should have discovered.'" Maisonsave v. Newark Bears Prof'l Baseball Club, Inc., 185 N.J. 70, 85 (2005) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)). This duty includes the duty to perform "reasonable inspection[s] to discover latent dangerous conditions." Hopkins, supra, 132 N.J. at 434.

As Judge Innes said when he granted summary judgment:

[A]n injured invitee must demonstrate that the defendant proprietor had actual or constructive notice of a dangerous condition. Notice is required in situations where the dangerous condition is one that is not created by the defendant or his employees[.]

Factors to be considered in looking for notice include the general condition of the premises and a pattern of conduct or recurring conditions. . . .

. . . Certainly a dangerous condition such as spilled liquid or power lines could be seen and dealt with appropriately. The seedpods, however, were blown due to high wind conditions and no amount of sweeping could prevent the repetitive influx of the pods from foreign locations.

Essentially, plaintiff in arguing this point makes the case that a proprietor must continually check for seedpods and battle the winds in his endeavors to keep the parking lot free from seedpods.

The defendants did no[t] create the condition and made a good faith effort to curtail it. Imputing knowledge of a random and continuous condition on this particular defendant/proprietor would be unjust and unreasonable . . . .

[citations omitted]

We agree that plaintiffs failed to demonstrate that Circuit City had either actual or constructive notice of the allegedly dangerous condition on the day in question. No amount of sweeping would have prevented the influx of seedpods from other locations.

Independent contractors, such as Doerler and Wiley's, have "a duty to maintain the premises on which [they] perform[] work in a reasonably safe condition." Raimo v. Fischer, 372 N.J. Super. 448, 453 (App. Div. 2004). This duty includes the obligation to conduct reasonable inspections to ensure the site is safe. Id. In this case, no facts were alleged by plaintiffs which constitute negligence on the part of Doerler or Wiley's. The lot was swept three times a week as required. On the morning in question, no unusual accumulation of debris was noted. Even if the lot had been swept that morning, it would not have prevented the accumulation of seedpods blowing about in the wind later on the day when plaintiff was injured. No complaints were ever made about debris on the lot. Neither Doerler nor Wiley's had notice, actual or otherwise, of a condition dangerous to invitees.

As Judge Innes said:

Doerler had a duty to perform all work according to the maintenance agreements in a non-negligent or a careful or prudent matter. With respect to the negligence, [the Circuit City manager] testified that if on the morning of the accident he would have seen the gathering of seedpods that were depicted in the photo[,] [h]e would have certainly called his building maintenance manager.

Moreover, if the parking lot required additional sweeping between the designated time periods, he would have requested Doerler to come out for another sweeping.

The [c]ourt finds nothing in the record here that suggests that Doerler was negligent in the sweeping of the parking lots. As such[,] the lack of negligence is also imputed to defendant Wiley['s] since Wiley's actually performed the sweeping work in question.

 
There is no genuine issue as to any material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Defendants are entitled to summary judgment as a matter of law. R. 4:46-2(c). Therefore, we affirm.

(continued)

(continued)

6

A-0812-06T3

October 29, 2007