BRIAN SMITH v. GREENSTONE DEVELOPMENT, LLC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0151-08T10151-08T1

BRIAN SMITH and

KAREN SMITH, his spouse,

Plaintiffs-Appellants,

v.

GREENSTONE DEVELOPMENT, LLC,

Defendant-Respondent,

and

THE CITY OF HOBOKEN,

Defendant,

and

MOLFETTA CORPORATION, and/or

MOLFETTA, LLC,

Defendant/Third-Party Plaintiff-

Respondent,

v.

CIRILLO ELECTRIC, CAPITAL PLUMBING,

LIBERTY FIRE SPRINKLER, TAAS CONSTRUCTION,

and AIR TEMP CONTROL,

Third-Party Defendants.

________________________________________

 

Submitted September 15, 2009 - Decided

Before Judges Skillman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1988-07.

John J. Piserchia, attorney for appellants.

Maloof, Lebowitz, Connahan & Oleske, attorneys for respondents (Jack A. Maloof, on the brief).

PER CURIAM

Plaintiffs Brian Smith and Karen Smith, his wife, appeal from the August 19, 2008 order of the Law Division that granted summary judgment to defendants Greenstone Development, LLC (Greenstone), and Molfetta Corporation (Molfetta). We affirm.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. Greenstone is the owner of property located at 98 Garden Street, at the intersection of Garden Street and First Street, Hoboken (the property). Molfetta is a general contracting company. In December 2004, Greenstone entered into a contract with Molfetta to construct a multi-unit structure on the property. On March 3, 2005, after a stop-work order was issued against the project, Molfetta notified all subcontractors to cease all construction activities at the property.

On May 1, 2005, plaintiff, while walking on the public sidewalk adjacent to that portion of the property abutting First Street, stepped on a screw lying on the sidewalk. The screw penetrated plaintiff's sandal, imbedding itself into plaintiff's right foot. Plaintiff hailed a taxicab, instructing its driver to take him to a hospital emergency room. The taxicab driver proceeded to St. Mary's Hospital, where emergency room personnel x-rayed plaintiff's foot, removed the screw, and provided plaintiff with medication. On release from the hospital, the emergency room physician gave plaintiff the screw that he removed from plaintiff's foot. Plaintiff described the screw as a black Phillips-head screw, approximately two-inches in length.

At the time of the accident, plaintiff did not observe any ongoing construction occurring at the property. Plaintiff returned to the accident site approximately one week after the incident and observed various types of screws and nails scattered upon the sidewalk. However, none of the screws observed were identical to the type of screw that caused his injury. In the weeks following the accident, plaintiff observed construction occurring on the site and noticed a Molfetta construction truck parked nearby.

On April 19, 2007, plaintiff filed a personal injury complaint against Greenstone, Molfetta and defendant City of Hoboken. Molfetta filed a third-party complaint for indemnification or contribution against Cirillo Electric, Capital Plumbing, Liberty Fire Sprinkler, Taas Construction, and Air Temp Control.

Following the close of discovery, the three defendants filed motions for summary judgment. Plaintiff did not contest the City's motion. After oral argument on August 15, 2008, the trial court reserved decision as to Greenstone's and Molfetta's motions. On August 19, 2008, Judge O'Shaughnessy entered an order, supported by an oral decision, granting the two remaining defendants' motions. In so doing, the court reasoned:

[T]he [c]ourt finds that there is no evidence that defendants Molfetta or Greenstone had actual or constructive knowledge of [an] alleged dangerous condition. In point of fact, the plaintiff has testified that it was not until after the incident that he even saw a Molfetta construction truck. There was no act of construction taking place on the date of the incident. Indeed a stop work order had been issued in March of 2005. The plaintiff suffered his injuries in May of [2005], almost two months later.

. . . There's no evidence that the screw in question is of the same type that was commonly used by Molfetta or Greenstone especially on this site. There's no evidence as to the length of time the screw was on the ground . . . .

It is clear that the plaintiff did not know that Molfetta was, in fact, working at the site of the incident until he noticed a truck on the property several days after the incident. This in no way can . . . import notice on the defendants at the time of the accident. It is indeed after the fact, as are almost[all] of plaintiff's assertions. Plaintiff has failed to support his [bare] assertions with actual evidence.

The fact that the area in question was covered by scaffolding cannot be used to support the assertion that the screw that pierced the plaintiff's foot was, in fact, the same or similar to the screws used by Molfetta or Greenstone.

The mere presence of scaffolding, or construction for that matter, does not suggest that the defendants were negligent in the upkeep of the property in question. Nor does it imply that the defendants knew or should have known that the screw in question was on the sidewalk. It also does not evidence a time frame that the screw could've been present on the sidewalk which is required to fulfill the notice requirement. Thus[,] no genuine issue of material fact remains.

The [c]ourt notes that the plaintiff's opposition asserts that logical inferences can be made from the facts. However, without evidence to substantiate the plaintiff's [bare] allegations, the mere happening of the incident is not enough to establish negligence. There's no evidence that the defendants had actual or constructive notice -- knowledge.

On appeal, plaintiff argues that the trial court erred in granting defendants Greenstone's and Molfetta's motions for summary judgment because "the facts presented create a genuine issue of material fact regarding whether defendants discharged their duty of care to [him]." We disagree.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2009). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We have considered plaintiff's argument in light of the record and applicable law, and affirm substantially for the reasons expressed by Judge O'Shaughnessy in his oral decision of August 19, 2008. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

To establish a cause of action in negligence, a plaintiff must prove: "(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). Generally, negligence will not be presumed; rather, it must be proven. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 338 (App. Div. 2000). Indeed, there is a presumption against negligence, and "the burden of proving [it] is on the plaintiff." Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).

"Commercial landowners are responsible for maintaining the public sidewalks abutting their property in a reasonably safe condition." Mirza v. Filmore Corp., 92 N.J. 390, 394 (1983). Such a property owner, or a general contractor working on site, "is under a duty to clean up, within a reasonable time, material that he dropped, negligently or otherwise, upon the walk that might impede safe passage and cause a pedestrian to fall and injure [him or herself]." Ibid. "A similar obligation would exist [on the property owner] if the foreign substance had been deposited on the sidewalk by some third person." Ibid. However, "[t]he abutting commercial owner's responsibility arises only if, after actual or constructive notice, he has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard." Id. at 395.

Here, plaintiff failed to present evidence from which the trier of fact could reasonably infer that Greenstone or Molfetta, individually or jointly through their agents, either created the dangerous condition, or had actual or constructive notice of the condition prior to the accident. The record is devoid of any evidence that the screw plaintiff stepped on was one of the types of screws used by Molfetta, or its subcontractors, in the construction of Greenstone's building. We conclude that, without linking the screw in question by direct or circumstantial evidence to the construction, plaintiff failed to present sufficient evidence to withstand defendants' motions for summary judgment.

 
Affirmed.

Karen Smith sued per quod. For purposes of this opinion, unless otherwise expressed, the term "plaintiff" shall only refer to Brian Smith.

Molfetta Corporation was incorrectly designated in the pleadings as Molfetta Corporation and/or Molfetta, LLC.

All third-party defendants have been dismissed from the action.

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A-0151-08T1

September 28, 2009