FRANCIS (FRANK) W. McNABOE v. HORIZON DINER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5799-07T15799-07T1

FRANCIS (FRANK) W. McNABOE,

Plaintiff-Appellant,

v.

HORIZON DINER,

Defendant/Third-Party

Plaintiff-Respondent,

v.

RAMSEY RESTAURANT, LLC,

t/a HOULIHAN'S RESTAURANT,

Third-Party Defendant-

Respondent.

_____________________________________

 

Argued April 21, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-258-07.

James M. Pocchia argued the cause for appellant (Robert B. Linder, attorney; Mr. Linder and Johanna D. Roccanova, on the brief).

George M. Kachmar, III, argued the cause for respondent Horizon Diner.

Michael J. Palma argued the cause for respondent Ramsey Restaurant t/a Houlihan's Restaurant (Nowell Amoroso Klein Bierman, P.A., attorneys; Mr. Palma, of counsel and on the brief).

PER CURIAM

Plaintiff Francis W. McNaboe appeals from the May 23, 2008 order of the Law Division granting summary judgment dismissing his complaint against defendant Horizon Diner (Horizon); plaintiff also appeals from the July 18, 2008 order denying his motion for reconsideration. For the reasons that follow, we affirm.

On or about February 4, 2005, plaintiff was injured when he slipped and fell on ice in Horizon's parking lot. On that night, plaintiff had gone to Houlihan's Restaurant (Houlihan's); because Houlihan's parking lot was full, plaintiff parked his car in the lot of a Pathmark Supermarket and walked through Horizon's parking lot to get to Houlihan's. When returning to his car after spending time at Houlihan's, plaintiff again walked through Horizon's lot to access the Pathmark lot. It was at this point that plaintiff slipped and fell.

Plaintiff filed suit against Horizon and fictitious parties on January 10, 2007; he did not name Houlihan's in his complaint. At plaintiff's deposition one year later on February 12, 2008, he revealed for the first time that he had been at Houlihan's on the date in question. Horizon thereafter filed a third-party complaint against Houlihan's on April 21, 2008.

Prior to filing its third-party complaint, Horizon filed a motion for summary judgment, which was granted on May 23, 2008.

In support of that motion, Horizon submitted the deposition of its owner, Vasilios Saites, who had testified that he posted "a lot of signs" in the parking lot "that say you can only park here if you come into the diner . . . ." Saites further testified that he installed those signs

when Houlihan's started. . . . They used to get a lot of people and they used to park in our parking lot. . . . Because Houlihan's probably didn't have enough parking and the overflow that used to come park in our place, we had no room for our customers. So we installed the signs to keep them out.

Plaintiff testified in deposition that, on the night in question, he had "no intention to go into the Horizon Diner . . . ."

The trial judge found that Horizon had no duty to plaintiff, for the following reasons:

The traditional common law approach to landowner or occupier tort liability toward a person who has been injured because of a dangerous condition on private property is predicated on the status of the person on the property at the time of the injury. Historically, the duty of the owner or occupier to such person is gauged by the right of that person to be on the land. That status is determined by which of the three classifications applies to the entrant, namely that of a business invitee, licensee, or trespasser.

. . . .

In this case, the [c]ourt concludes undisputedly that the plaintiff was a trespasser.

As a trespasser, the landowner owes [a] minimal degree of care to the plaintiff, who had essentially no privilege to be on the property. The duty owed to a trespasser is relatively slight. A landowner, under most circumstances, has a duty to warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily injury to the trespasser.

Under the factors of this case, there is no evidence of any artificial condition that poses a risk of death or serious bodily harm to the plaintiff. The plaintiff fell on ice and/or snow and that does not qualify under those circumstances.

In fact, the factors in this case clearly indicate that the plaintiff admittedly, under oath in his deposition, stated that he had no intention on parking at the Horizon Diner parking lot, the defendant in this case's parking lot, because he . . . was aware of the "no parking" signs; and in fact, intimated that he was aware that the parking lot was watched for anyone parking without entering into the diner.

. . . .

Three hours later, after having been at the Houlihan's, he walked back through the Horizon Diner parking lot and there is where he slipped and fell. Plaintiff was fully cognizant that he should not have been parked at the Horizon Diner parking lot, and therefore should not have walked through the Horizon Diner parking lot and that propels him to the status of a trespasser.

There is no evidence before the [c]ourt that the plaintiff is a business invitee or a social guest of the Horizon Diner entity. The plaintiff enured [sic] absolutely no benefit to the diner. . . . [A]ll of the cases have the common denominator that the injured party therein enured [sic] potentially some financial benefit to the landowner. And this is the common denominator for the duty owed.

On July 18, 2008, the trial judge denied plaintiff's motion for reconsideration on the papers, finding that the "standard of [Rule] 4:49-2 has not been met so as to disturb or change this [c]ourt's decision of May 23, 2008."

On appeal, plaintiff claims that the trial judge's grant of summary judgment was in error; plaintiff asserts that, "[u]nder [a] [b]alancing [t]est," Horizon should be found to owe him a duty to keep its parking lot safe. We disagree.

In deciding a motion for summary judgment, the trial court must consider whether "the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Our standard of review mirrors that of the trial court: whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Manalpan Twp. Planning Board, 140 N.J. 366, 378 (1995). "Our review of the trial court's legal conclusions is de novo." Myron Corp. v. Atlantic Mut. Ins. Corp., 407 N.J. Super. 302, 309 (App. Div. 2009)

Plaintiff cites Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), as representing the "emerge[nce of] a new rule of premises liability in New Jersey." In that case, the Supreme Court held that a realtor sponsoring an "open house" had a duty to the plaintiff who was injured while inspecting the premises in response to the "open house" invitation. The Court held: "Based on the nature and circumstances surrounding an open house, we conclude that implicit in the broker's invitation to customers is some commensurate degree of responsibility for their safety while visiting the premises." Id. at 441.

Clearly, plaintiff does not come within the parameters of the duty articulated in Hopkins. The Court noted that the inquiry as to "[w]hether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Id. at 439. This does not constitute "a new rule of premises liability in New Jersey" that would extend to plaintiff under the facts of this case.

Plaintiff relies upon Ocasio v. Amtrak, 299 N.J. Super. 139 (App. Div. 1997), for the proposition that a landowner may be liable in tort to a trespasser under certain limited circumstances. There, the plaintiff had taken a shortcut by crossing the elevated tracks of an abandoned railroad station. Id. at 143. Although the station had been closed, the tracks, which were accessible from a public street, were still in use; the plaintiff was struck by a train while walking on those tracks. Ibid.

The record in that case established that Amtrak, the owner of the property, had been on notice that the elevated tracks posed a risk. Id. at 150. Therefore, we held that:

a trier of fact could find that Amtrak should reasonably have foreseen that some persons would use the stairways to the station as a shortcut to cross the tracks. Moreover, Amtrak had received twenty-four incident reports in the two year period preceding [plaintiff's] accident indicating that persons were trespassing in the area and that train operators had been forced to resort to emergency measures on some occasions to avoid hitting them. . . . Consequently, the stairways created a substantial "attendant risk" that a person crossing the tracks would be struck by a train and suffer serious injury or death.

[Ibid.]

By contrast here, Horizon had no such notice with respect to any "'attendant risk[s]'" presented by the conditions in its parking lot on the date in question. We are satisfied that no "trier of fact could find that [Horizon] should reasonably have foreseen that [plaintiff] would use" its parking lot as a "shortcut" between Houlihan's and Pathmark. Ibid. As Saites testified, he was aware that Houlihan's customers parked their cars in Horizon's lot and he posted "No Parking" signs to discourage that practice. There is no evidence, however, that Horizon had notice that Houlihan's customers used its lot as a pedestrian shortcut.

Plaintiff's remaining arguments are "without sufficient merit to warrant discussion" in this opinion. R. 2:11-3(e)(1)(E). The issue of "[w]hether a person owes a duty of reasonable care toward another . . . is . . . very fact-specific . . . ." Hopkins, supra, 132 N.J. at 439. None of plaintiff's cited cases supports finding such a duty under the facts of this case.

 
Affirmed.

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A-5799-07T1

August 12, 2009