MARION COLES v. MITI AH-PING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1388-09T21388-09T2

MARION COLES,

Plaintiff-Appellant,

v.

MITI AH-PING,

Defendant-Respondent.

__________________________________________

 

Submitted June 23, 2010 - Decided

Before Judges Chambers and Kestin.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1846-08.

Levy, Baldante, Finney, Rubenstein, Cohen & Chizmar, attorneys for appellant (Jack S. Cohen and Theresa S. Corson, on the brief).

Respondent Miti Ah-Ping has not filed a brief.

PER CURIUM

Plaintiff, Marion Coles, appeals from an order dismissing her personal injury claim and entering judgment for defendant, Miti Ah-Ping. Defendant has not participated in the appeal. We reverse and remand.

The complaint, filed on November 5, 2008, alleged that plaintiff experienced a fall and resulting injury because of a "dangerous condition" on property owned by defendant. Plaintiff was an employee of a shop in a strip of stores on the property. There were no restrooms in the store where plaintiff worked; a restroom facility serving the entire building was accessible only from the outside through the paved parking area for the building. At about 5:30 p.m. on December 7, 2006, in the dark, plaintiff walked to the restroom, used the facility, and began to walk back to the store through the paved parking area. The parking area was unlit; a lighting fixture for the area had not been working for some time. Plaintiff fell because of "a crater/hole in the pavement that was not visible in the dark." The complaint alleged further that "[d]efendant[] had actual and/or constructive knowledge of the defect in the pavement."

The cause of action pleaded in the complaint was negligence, with twenty-five particulars. The complaint alleged that, as a result of the fall, plaintiff "sustain[ed] serious injuries and damages, including, but not limited to aggravation of lumbar stenosis, multilevel cervical disc herniation, aggravation of cervical degenerative disc disease, facet syndrome, sacroiliac dysfunction, [radiculitis], and right foot injury."

Defendant filed no answer to the complaint and, on April 24, 2009, the court ordered the entry of default pursuant to Rule 4:43-1. A handwritten addition to the form of order stated:

Defendant's late answer is rejected. Defendant should file motion to vacate entry of default & for permission to file late answer within a prescribed time. Defendant cannot request discovery until answer is filed & accepted for filing.

A typewritten addendum to the order set out the procedural considerations that led to the entry of the order with its handwritten addition, which encompassed the rejection of defendant's "objection to notice of motion" and his request to "dismiss complaint for failure to answer interrogatories."

An order entered on September 11, 2009, provided that a "proof hearing shall be set . . . as to both liability and damages." A typewritten addendum to that order recited the legal basis for requiring proof of both liability and damages in this default matter. A handwritten entry on that addendum stated:

Defendant sent in objection to motion for relief & requested permission to file answer & counterclaim. The latter was not filed by cross-motion, merely by objection, and did not include any basis for the relief showing excusable neglect/meritorious defense. Since no cross-motion filed & since no basis for the relief set forth[,] the request has to be denied.

On October 9, 2009, an order was entered denying an unopposed motion by defendant to vacate the entry of default and allow the filing of an answer out of time. The typewritten addendum to that order and a handwritten addition explained the court's reasons for the denial, that the standards for granting such relief had not been met. See R. 4:50-1.

The proof hearing was held on October 16, 2009, before a judge other than the one who had entered the orders we have described. The court permitted defendant to participate in the proof hearing on an entirely correct limited basis: "you can ask questions of the plaintiff or make comments on the proofs but other than that, you really don't participate in this." See Pressler, Current N.J. Court Rules, comment 2.2.3 on R. 4:43-2 (2010).

The court received plaintiff's testimony regarding the incident that gave rise to the complaint and her injuries, as well as documentary evidence supporting the claim. Defendant, appearing pro se, was permitted to cross-examine plaintiff, to offer some testimony under oath, and to make a closing statement. At the close of the hearing, the judge rendered an oral disposition, which began with a detailed description of the parking area:

I'm satisfied that it appears that in the parking area of the property owned by [defendant], it looks like on the white line that designates a parking space there is an area of depression that looks like it might be about . . . three inches wide and maybe up to an inch and a half or so deep. And that this is located, and I'm estimating, maybe two to three feet from the air conditioner.

The judge continued by describing the persons involved and outlining their conduct:

The plaintiff . . . was working for one of [defendant's] tenants. The tenant has a lease that says she's supposed to provide insurance and it specifies that the landlord's insurance will not cover employees for any injuries or damages.

The plaintiff was working at the store on December 7th, '06. At about 5:30 she left the store to use the restroom. She had not used this restroom on many occasions. She noticed that the area was dark. She was wearing high-heeled shoes. She went to the bathroom by going around the rear end of the cars that would be parked in, if there were cars, but toward the rear; and then coming back she went between the front of the cars and the wall, and that's when she encountered this small hole in the parking space. She felt her foot go down and then she fell.

The oral opinion then described the diagnoses of plaintiff's injuries and the treatments she received:

She didn't seek any treatment for several days and then she went to her family doctor . . . . [who] sent her for x-rays [in] January of '07. Those x-rays revealed degenerative changes in the lumbar and cervical spine and no abnormality in the wrists or ankles. There was a shoulder x-ray that revealed arthrosis. And despite these negative x-rays, a podiatrist . . . developed a treatment plan for [plaintiff] which included wrapping the ankle and physical therapy.

An MRI of the right ankle was done in August of '07. It revealed edema and degenerative joint disease.

She went for an MRI which revealed herniated discs, one at C3-4 and one at C5-6, also degenerative disc disease of the cervical spine and sacroiliac dysfunction and radiculitis. As a result, [plaintiff] participated in physical therapy for approximately eight months and 22 visits.

She was evaluated by . . . an orthopedic physician, and following his evaluation she did some more physical therapy. She tried various types of therapy, aquatic, manual and was discharged on a home therapy program that was to lessen her discomforts.

The court recited the medical expenses, specifying items for $3,745.53, $6,370, $3,254, $480, and $325, and then went on to address the legal issues somewhat ambiguously.

All right. So with respect to liability, I'm satisfied that the hole was there. I'm satisfied that the area was dark. I'm satisfied that there was no real way to direct people to and from the bathroom area. I'm also satisfied from the description of the property, the pictures, the lease agreement, that basically this is a building that's in fairly good condition, that the overall condition of the parking area appears to be relatively good. In other words, although this looks like an old building, an old area, it does seem to be fairly well maintained for what it is.

Nonetheless, it appears . . . the description of a crater is . . . really rather ridiculous. There's a . . . four-inch round depression that's depressed to about one and a half, perhaps two inches along one of the white lines in the parking area, so clearly it's not intended to be a walking area.

So that with respect to the matter, I am not satisfied that the plaintiff has made out a case for liability of the landlord -- or rather the owner of the property in this particular case. And I say that mostly because she concedes she's unfamiliar with the area, she's wearing high-heeled shoes, and she's walking in a dark area that she knows is a dark area. So that in this case I would decline to enter judgment in favor of the plaintiff.

The formal order dismissing the complaint and entering judgment for defendant was entered on November 16, 2009.

On appeal, plaintiff argues that the trial court "failed to apply the prima facie standard of proof of liability for [a] proof hearing"; that the trial court "should not have permitted/considered a defense of contributory negligence, which was waived by the defendant's failure to file an answer"; and that the trial court "should not have permitted defendant to offer affirmative proofs, evidence and testimony on liability."

We agree that the court should not have permitted defendant to testify under oath. This afforded him undue and unwarranted latitude given his default status. Nevertheless, apart from this single flaw, we discern no error in the trial court's conduct of the proof hearing, in the degree of participation it accorded to the respective parties, or in its regard for its duty to assess basic issues of liability as well as damages. See Douglas v. Harris, 35 N.J. 270, 276 (1961); Reilly v. Perehinys, 33 N.J. Super. 69, 72-74 (App. Div. 1954). We reverse, however, because the ambiguity in the court's ultimate disposition suggests that the court may have exceeded permissible bounds in the circumstances.

In this premises liability case, where defendant had defaulted, the trial court's capacity to non-suit plaintiff was limited by determinations that the physical condition of the property, as alleged by plaintiff, existed and betokened negligent maintenance; that plaintiff was actually injured as a result of encountering it; that the particular portion of the property was open to the general public and invited traversal by placing the restroom where it was; and that the event occurred after sunset and the area was unlit. Dismissal of plaintiff's claim because she was wearing high heels while traversing an unfamiliar area in the dark, was essentially a determination that the degree of her own negligence was so great as to defeat her claim of negligence on the part of defendant. Such a position, essentially one of contributory negligence, can be advanced only as an affirmative defense, see R. 4:5-4; Douglas, supra, 35 N.J. at 281-83, a privilege unavailable to defendant because of his default. Accordingly, if the trial court dismissed plaintiff's claim on these latter bases, it erred in doing so. See Heimbach v. Mueller, 229 N.J. Super. 17, 24-26 (App. Div. 1988) (limiting dismissal in a proof hearing to circumstances where an essential element of the cause of action is missing or because the right to recovery is barred by a rule of law, the applicability of which is evident either from the proofs or from the complaint). In the instant situation, as it came before the trial court -- absent an adequate basis for vacating the default and granting defendant leave to file a late answer in the cause of advancing the principle that, to the greatest extent possible, cases should be decided on their merits -- plaintiff was entitled to judgment based upon such liability and damages as she could prove without consideration of any comparative negligence on her part. Id. at 26-28.

Nor was it appropriate, in the extant circumstances, for the trial court to be motivated by any assertion on the part of defendant regarding the provision in his lease agreement whereby plaintiff's employer allegedly assumed liability for injuries to employees. This, too, was a position available to defendant only as a third-party claim or an affirmative defense, see R. 4:5-4; Pressler, Current N.J. Court Rules, comment to R. 4:5-4 (2010), especially where the injury occurred in the common area.

 
We reverse the order dismissing plaintiff's claim and remand for further proceedings. We do not retain jurisdiction.

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10

A-1388-09T2

September 1, 2010