CHRISTINE SHIPLEY v. TARGET CORP., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3496-05T33496-05T3

CHRISTINE SHIPLEY

Plaintiff-Appellant,

v.

TARGET CORP.,

Defendant-Respondent,

and

LIBERTY PROPERTY TRUST,

individually, jointly, severally

and/or in the alternative,

Defendant.

 

Argued March 12, 2007 - Decided April 4, 2007

Before Judges Lintner and King.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

L-3621-03.

Robert Aaron Greenberg argued the cause for appellant (Aronberg & Kouser, attorneys; Mr. Greenberg, of counsel and on the brief).

Jeffrey L. O'Hara argued the cause for respondent (Connell Foley, attorneys; Brian G. Steller, of counsel; Matthew S. Schultz, on the brief).

PER CURIAM

Plaintiff, Christine Shipley, appeals from an order granting summary judgment in favor of defendant, Target Corporation (Target), dismissing her complaint for personal injuries resulting from a slip and fall while descending a grassy embankment as she was returning to her office. We affirm.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the record reveals the following. Shipley works as an insurance adjuster for Prudential Insurance Company. At the time she was injured, her office was located in a complex known as Marlton Executive Park, owned by co-defendant, Liberty Property Trust (Liberty), and abutting the property occupied by Target's retail store.

On January 13, 2003, Shipley, wearing sneakers, walked from her office to the Target store during her lunch hour to do some shopping. It was a clear, dry, and cold day with temperatures in the forties; there was no snow or ice on the ground. The Target store had been open for approximately eighteen months, during which period Shipley had patronized the store between fifteen and twenty times on her lunch hours. On each prior occasion, Shipley walked to the Target store using sidewalks along Route 73, which she accessed through the driveway serving her office.

However, on January 13, rather than using the sidewalk, Shipley took a "shortcut," which is located between the driveway serving the Liberty property and the parking lot serving Target. After walking down a portion of the Liberty driveway, Shipley then cut across the grass to an embankment on the Target property, which separates Target's parking lot from Liberty's driveway. According to Shipley, the shortcut was suggested by one of her co-workers, who stated to her, "everybody uses it." Shipley made "sure that the path that [she chose] was safe for the route," and "made a determination that it was safe to walk up the embankment."

After shopping at the Target store for fifteen or twenty minutes and purchasing a winter coat for her granddaughter and "some other clothing," Shipley began walking back to her office, carrying two Target shopping bags. Shipley walked through the Target parking lot, stepped over the curb onto the grass, and returned to the embankment on Target's property. Shipley again determined that it was safe to proceed down the embankment, but after a "couple steps down the embankment" she "just . . . lost [her] footing and . . . fell," rolling to the bottom of the embankment and coming to a stop in the brush. At her deposition, Shipley was unable to identify what caused her to slip and fall, but noted that her "foot slipped" and she lost her balance.

In a certification filed slightly over two months after her deposition, Shipley indicated that she "reasonably believe[d] that [she] was caused to fall by the steepness, height and grade of the embankment, or some combination of all of those factors." After rolling to a stop at the bottom of the embankment, Shipley observed that her ankle was injured and called 911 using her cell phone. Shipley was transported to a local hospital in an ambulance where she was treated and eventually underwent surgery for her fractured left ankle.

On appeal, Shipley argues that "[t]here exist genuine issues of material fact concerning Target's negligent failure to inspect and correct the dangerous condition of [the] worn path on its commercial property prohibiting the safe ingress and egress of its customers." Shipley's theory of liability, as asserted in interrogatories, rested on her contention that the embankment along the pathway that patrons regularly used as a shortcut constituted a dangerous condition because of its "steepness and grade," and that the "hill was graded improperly." Shipley argues that the judge erred because there is a genuine issue of fact as to whether the embankment posed a dangerous condition.

Target counters, contending that the embankment was not a dangerous condition of its property, and that it provided a safe means of ingress and egress from its property, thereby relieving it of liability where an individual chooses not to use the safe route provided. Target also asserts that expert testimony was not presented, and was necessary to establish that the embankment was a dangerous condition.

Premises liability, the scope of which historically changes according to the status of the plaintiff as either a business invitee or social guest, is dependent upon the existence of a dangerous condition of property, which involves an unreasonable risk of harm causing injury. See Restatement (Second) of Torts 342 and 343; Snyder v. I. Jay Realty Co., 30 N.J. 303, 311 (1959); Berger v. Shapiro, 30 N.J. 89, 96-97 (1959). The analysis of a landowner's duty to persons injured on their premises "no longer relies exclusively on the status of the injured party." Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 515 (1997). "Instead, '[t]he issue is whether, in light of the actual relationship between the parties under all of the surrounding circumstances, the imposition of a duty on the landowner is fair and just.'" Ibid. (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 509 (1996)) (internal quotations omitted; alteration in original).

In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993), the Court explained the traditional duty of a landowner to a business invitee:

Only to the invitee or business guest does a landowner owe a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions.

Emily Hopkins fell while attending an open house and sued the real estate brokerage firm that was conducting the open house. In determining that the brokerage firm owed a duty to make a reasonable brokerage inspection of the house owned by its client to discover the existence of dangerous conditions, the Court departed from the traditional method of assessing the duty of a landowner, noting

[t]he inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but . . . [should be] whether in light of the actual relationship between the parties under all the surrounding circumstances the imposition . . . of a general duty to exercise reasonable care in preventing foreseeable harm . . . is fair and just.

[Id. at 438.]

Our courts have applied general negligence principles based upon the factors set forth in Hopkins in cases involving patron's claims against commercial enterprises. Raimo v. Fischer, 372 N.J. Super. 448, 455 (App. Div. 2004). Nevertheless, business owners have continued to be held to a duty of care requiring them to discover and eliminate dangerous conditions. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). In other words, premises liability, no matter whether the status of the claimant is that of "business invitee or social guest, is dependant upon injury being caused by a dangerous condition of property, which involves an unreasonable risk of harm." Longo v. Aprile, 374 N.J. Super. 469, 474 (App. Div. 2005). Generally, "'[a] dangerous condition of property may be found to exist when an unreasonable risk of harm is created by the combination of a defect in the property itself and the acts of third parties.'" Ibid. (quoting Roe v. N.J. Transit Rail Operations, 317 N.J. Super. 72, 79 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999)).

Here, there was no independent evidence that the embankment constituted a dangerous condition that involved an unreasonable risk of harm. Indeed, Shipley initially conceded in her deposition testimony that she made an assessment before walking up and then down the embankment that it was safe to do so. She could not identify anything that caused her to fall. The only evidence that the embankment constituted a dangerous condition was Shipley's belated self-contradictory and self-serving opinion that she "reasonably believe[d] that [she] was caused to fall by the steepness, height and grade of the embankment, or some combination of all of those factors." Moreover, there is no dispute that the property in question, including the embankment, was subject to and received site plan approval from the township. No expert engineering study respecting the grade of the embankment was presented by plaintiff. Cf. Chimiente v. Adam Corp., 221 N.J. Super. 580, 582 (App. Div. 1987).

Generally, expert testimony is required when the subject "matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982). Resolution of the alleged dangerous condition, the steepness of the embankment, is dependent on plaintiff's contention that it was improperly graded. Under the circumstances presented, a determination of whether the grade of the embankment created a hazard sufficient to establish an unreasonably dangerous condition is "beyond the ken of the average juror." State v. Kelly, 97 N.J. 178, 208 (1984). Expert testimony is needed to help to exclude other possible causes of the accident and avoid pure speculation, especially here, where plaintiff was initially unable to testify specifically why she fell. See ibid.; see also Kelly v. Berlin, 300 N.J. Super. 256, 267-68 (App. Div. 1997).

We need not address defendant's contention that plaintiff's purported reasons for submitting a subsequent contradictory affidavit were insufficient to exclude it from consideration as a sham affidavit. See Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002) (explaining application of the sham affidavit doctrine to disregard subsequent affidavits in the context of motions for summary judgment that contradict prior testimony). In our view, plaintiff's contradictory statements concerning her initial belief that the embankment was safe provides additional support evincing the need for expert review. If plaintiff, herself, presented contradictory evidence concerning the safety of the embankment, it is reasonable to expect that a jury would need some expert guidance to resolve the issue. Simply stated, without expert proof regarding the standards for grading embankments, plaintiff failed to establish a genuine issue of material fact concerning the existence of a dangerous condition amounting to an unreasonable risk of harm to a person attempting descent. Accordingly, we affirm the summary judgment dismissing
plaintiff's complaint.

Plaintiff's complaint against Liberty Property Trust was also dismissed on summary judgment. Plaintiff does not appeal from that order.

A survey depicting the area Shipley walked through and fell on indicates that the area is on Target's property and is directly north of the Target parking lot. According to the survey, the driveway serving the Liberty property is approximately 400 feet long, from the office building to Route 73. Instead of walking the entire length of the driveway and then turning right to walk on the sidewalk running along Route 73, plaintiff walked approximately 200 feet on the driveway and made a right turn to cut across the grass area on the Target property separating the Liberty driveway from the Target parking lot.

When asked at her deposition if her co-worker "warn[ed her] about any of the dangers associated with [that] route," Shipley responded, "What danger?"

According to the survey, there is approximately ten feet of grass leading up to the graded embankment (also depicted as grass on the survey), which is graded down toward Liberty's property. There is then an area of brush that is located on the boundary line between the properties, a portion of which is trampled down, forming what appears to be a path. The survey indicates that the elevation of the ground at the top of the embankment is approximately ninety feet above sea level, and that at the bottom of the embankment the elevation is approximately eighty-three feet above sea level. This decline in elevation extends over ten to twenty feet. The bottom of the embankment is described on the survey as consisting of grass, muddy soil, and shallow water. At her deposition, Shipley indicated that there was no water in the area when she cut through on January 13. The survey contains color pictures of the grassy embankment.

Shipley gave the following explanation for her subsequent certification:

I understand that an issue has arisen in this case as to the "cause" of my fall.

I was asked at my deposition if I knew what the "cause" was of the fall. The transcript clearly indicates that my answer to that question was "no."

I am an insurance adjuster by trade and training and experience. I believe when I was asked that question . . . he was asking me for a legal conclusion or my understanding of the legal reason why I fell. Although I understood that I was to advise counsel if I misunderstood any questions, I did not believe I misunderstood the question. Therefore, and to the extent that my answer seems to be out of context, I wish to clarify.

(continued)

(continued)

11

A-3496-05T3

 

April 4, 2007