MARGARET COLLINS v. WAWA, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3776-07T33776-07T3

MARGARET COLLINS,

Plaintiff-Appellant,

v.

WAWA, INC.,

Defendant-Respondent.

_____________________________________

 

Submitted December 8, 2008 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-17086-06.

Law Offices of Samuel Fishman, attorney for appellant (Samuel Fishman, on the brief).

Cooper, Levenson, April, Niedelman & Wagenheim, P.A., attorneys for respondent (Cynthia A. Smith, on the brief).

PER CURIAM

Plaintiff, Margaret Collins, tripped over a concrete bumper in a parking lot in Galloway Township on August 4, 2005. The parking lot was owned and maintained by defendant, Wawa, Inc. ("Wawa"). Plaintiff suffered an injury in the incident and filed a personal injury action in the Law Division against Wawa based upon principles of premises liability.

In particular, plaintiff contended that because the bumper and the curb beneath it were both painted yellow, a disorienting "3-D" effect was created. She alleges that because of this visual effect the bumper constituted a dangerous condition, which caused her to fall. However, she did not obtain a report from an engineer or some other expert to support her theory of liability.

Plaintiff filed her complaint on November 22, 2006. Wawa filed an answer on January 11, 2007. Discovery ended on January 7, 2008. Before the discovery period expired, plaintiff did not make a motion to extend it or to seek to serve an expert report out of time.

After the close of discovery, Wawa filed a summary judgment motion, returnable February 1, 2008. Plaintiff did not cross-move for an extension of discovery or to serve an expert report out of time.

Viewing the record in a light most favorable to plaintiff, the motion judge found that there were no genuine issues of material fact to establish Wawa's liability. The judge concluded that expert testimony was necessary to support plaintiff's claim of a distracting 3-D effect resulting from the bumper and curb being painted the same color. As the judge noted, absent such supporting expert testimony, there was nothing about "the location, or the color, or the size, or the fact of the bumper over which the plaintiff tripped which could be allowed to be considered a dangerous condition." The judge found plaintiff's assertion that other patrons had apparently fallen previously in the same parking lot was inadequate to compensate for plaintiff's lack of an expert. Consequently, the judge granted Wawa summary judgment.

Plaintiff then moved for reconsideration. As part of her motion, she belatedly requested an extension of discovery so she could retain a liability expert. The judge denied her motion. On appeal, plaintiff argues that summary judgment should not have been granted, that a report from a liability expert was unnecessary, that Wawa unfairly withheld documents in discovery and caused plaintiff to be at a disadvantage in the motion practice, that discovery should have been extended and that her rights to a jury trial have been violated. We are unpersuaded by these arguments.

As we have often recognized, an appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

Measured by this familiar legal standard, we discern no reversible error in the trial court's disposition. The alleged "3-D" coloration effect, which is at the heart of plaintiff's theory of liability, has an esoteric character that requires expert testimony. See Phillips v. Gelpke, 190 N.J. 580, 591 (2007); Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982). We also agree with the motion judge that, apart from the alleged color problem, there is nothing inherently dangerous in the placement of a concrete parking curb in this parking lot to create what the law would regard as a dangerous condition. We have examined the copies of the photographs of the accident location, which are contained in plaintiff's appendix, and they do not alter that conclusion. Additionally, there is no proof that the persons involved in the other accidents were similarly distracted by any alleged 3-D effects.

Plaintiff's attempt to extend the discovery period was too late and unsupported by a demonstration of exceptional circumstances under Rule 4:24-1(c). See Bender v. Adelson, 187 N.J. 411 (2006); see also Szalontai v. Yazbo's Sports Caf , 183 N.J. 386 (2005). We also find significant the fact that when Wawa moved for summary judgment, plaintiff was apparently satisfied with the state of the record, and she did not seek to adjourn the motion under Rule 4:46-5 to attempt to obtain additional discovery. The judge rightly denied her reconsideration motion, which was filed after she belatedly realized that her case would not proceed without a liability expert. See R. 4:49-2; D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

The balance of plaintiff's arguments, including her contention that the summary judgment process is inherently unconstitutional, lack sufficient merit to be discussed in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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A-3776-07T3

December 18, 2008