MARIA RAIMO v. 3332-34 WEST AVENUE CONDOMINIUM ASSOCIATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3666-08T33666-08T3

MARIA RAIMO AND NEIL RAIMO, H/W,

Plaintiffs-Appellants,

v.

3332-34 WEST AVENUE CONDOMINIUM ASSOCIATION,

Defendant-Respondent,

and

CAROL O'LOUGHLIN, DAVID CLYMER and DEANA CLYMER, WILLIAM UMSTETTER and SUSAN UMSTETTER, TIMOTHY J. SCHMID and MERRY L. SCHMID,

Defendants,

and

3332-34 WEST AVENUE CONDOMINIUM ASSOCIATION and CAROL O'LOUGHLIN,

Third-Party Plaintiffs,

v.

HALLIDAY AND LEONARD, a Partnership,

Third-Party Defendant.

________________________________

 

Argued: January 6, 2010 - Decided:

Before Judges Payne and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-04-07.

David M. Rapoport argued the cause for appellant.

Mark R. Sander argued the cause for respon dent (Sander & Carson, attorneys; Mr. Sander, of counsel; Mr. Sander and Matthew C. Waldt, on the brief).

PER CURIAM

Plaintiffs Maria and Neil Raimo appeal from a summary judg ment in favor of defendant 3332-34 West Avenue Condominium Association dismissing their personal injury claims against it. We affirm.

On August 7, 2005, plaintiffs were guests at a condominium unit located at 3336-38 West Avenue, which is imme diately next door to defendant's property. At the end of their evening visit around 9:00 p.m., Mr. Raimo left to get their car. Mrs. Raimo exited the front door of 3336-38 West Avenue, think ing her husband was out front. She walked down the steps, and when she did not see him, made a right turn and walked around to the back of the building to look for him in the rear parking area. She did not find him there so she decided to return to the front of 3336-38 West Avenue by walking across the grass at the back of 3336-38 West Avenue and turning right to step onto the sidewalk between the buildings at 3336-38 and 3332-34 West Avenue. As she did so, her left "sneaker jammed under the con crete" and she fell against defendant's building, hitting her hand, elbow, and shoulder, and then fell to the ground. Plaintiff sustained serious and permanent injuries as a result.

Photographs of the rear of the two properties depict a strip of concrete sidewalk passing in front of two trash cans at the back corner of defendant's property and making a ninety-degree left turn to run along the side of defendant's property all the way to the front of the property where it meets the front sidewalk. This concrete sidewalk is edged by grass on both sides.

Plaintiffs' expert, Gerald P. McBrien, observed that the ground between the sidewalk and defendant's building was flush with the surface of the sidewalk, but the ground on the opposite side where Mrs. Raimo fell was two to four inches below the sidewalk's surface. McBrien also noted there were no gutters or downspouts on defendant's property to carry rainwater away from the side of the building and there was no lighting on the side to shed light on the sidewalk. He surmised that the final grade of the property had washed away. He opined that these three conditions made the sidewalk unsafe.

Defendant's expert, John J. Hare, issued two reports. His initial report, based on the land and the master plans for the property in question, indicated that the property line runs along the edge of the sidewalk. He acknowledged the grade dif ferential, but opined that the building code permits a dif fer ence in grade elevation between two properties and a retain ing wall up to eighteen inches without a fence. A difference of three and one-half inches does not require a fence. He further opined that it was the responsibility of the town to provide adequate illumination, not defendant. Additionally, "[t]here is no code or standard that requires a warning sign to indicate a sidewalk or a change of grade at a property line." He observed that Mrs. Raimo was not lawfully using defendant's property. He opined that (1) defendant's property was not a commercial rental unit; (2) the properly installed sidewalk was not dangerous; (3) no code or standard required any delineation of the edge of the sidewalk or any warnings; (4) no code or standard required defendant to provide proper lighting levels; and (5) no code or standard prohibited a change in elevation in grade between two properties. In his rebuttal report, Hare asserted that O'Brien was not qualified as an expert to express the opinions he advanced. He then rebutted most, if not all, of O'Brien's statements and opinions.

The parties disputed whether the property line abutted the sidewalk, leaving the declivity on the property of 3336-38 West Avenue, or whether it was some distance from the edge of the sidewalk, leaving the declivity on defendant's property. Mrs. Raimo expressed the belief that the sidewalk between the build ings was a shared sidewalk and asserted that she disputed the ownership of the property on which the defect existed.

Carol O'Loughlin, the condominium unit owner on the first floor of 3332-34 West Avenue, testified that the sidewalk was on her property and was a common area for each of the two units in her building. She understood that the outer edge of the side walk was on the centerline between the two buildings. She did not believe that even an inch of property beyond the edge of the sidewalk was on defendant's property.

Deanna Louise Clymer, who owns the second-floor unit in defendant's building, also testified that the common areas included the sidewalk between the two buildings. She tes tified that when she learned of Mrs. Raimo's trip and fall, she walked down the sidewalk and observed the grading on the prop erty at 3336-38 West Avenue had sunk or settled near the back corner of the sidewalk and at other places along the edge as well. Defendant's landscaper never brought these depressions to her attention. She, too, understood the property line to be at the edge of the sidewalk with the grass beyond the sidewalk belong ing to 3336-38 West Avenue. Defendant does not maintain that grass, maintaining only the small strip between the sidewalk and defendant's building. Clymer testified she learned the sidewalk was on the property line from the builder, third-party defendant Halliday and Leonard.

Defendant moved for summary judgment on January 8, 2009, asserting that it was under no legal duty to correct any of the conditions plaintiffs claimed contributed to Mrs. Raimo's acci dent. Defendant asserted that the sidewalk is located along the property line between the two buildings; that the height differ ential was located on the property of 3336-38 West Avenue; and that plaintiff's expert attributed that differential to improper grading of the yard at 3336-38 West Avenue.

Plaintiffs opposed the motion on January 23, 2009. They denied that the property line was along the edge of the sidewalk because "there has been no formal survey proving the actual line of delineation between the two (2) properties." They contended that the height differential either was created when the side walk was installed or over a period of time thereafter as a result of improper grading, improper runoff and drainage of rainwater, swelling of the concrete due to improper ground water drainage, inadequate lighting of the area, and other causes. They asserted that Mrs. Raimo was caused to trip and fall over the sidewalk and that the height differential was obscured by the grass in the yard of 3336-38 West Avenue.

In addition to the expert reports and deposition testimony we have described above, plaintiffs and defendant submitted the pleadings; multiple photographs of the property; certain current and proposed revisions to the Americans with Disabilities Act Accessibility Guidelines; Architectural Graphic Stan dards; the proposed plot layout prepared by George Wray Thomas, Registered Architect, for defendant's property showing the edge of the side walk on the property line; the tax map of the town on which the defendant's property is depicted; a final as-built survey of 3332-34 West Avenue dated June 28, 2003, depicting the edge of the concrete sidewalk as coextensive with the property line; and a certificate of insurance for the property issued to defendant.

Judge Daryl Todd heard oral argument on February 6, 2009, and issued a written decision that day. He reviewed the legal standards governing summary judgment, negligence, and duty. He inferen tially found the property line began at the edge of the sidewalk based on the expert reports and concluded Mrs. Raimo was caused to fall by the declivity in the neighboring property. He found defendant had no duty to maintain the land of a neighboring property and was entitled to summary judgment because the duty would be that of 3336-38 West Avenue Condominium Association, which had not been named as a party.

Plaintiffs moved for reconsideration on February 17, 2009. They submitted additional portions of Mrs. Raimo's deposition, some additional photographs, and the deposition of Keith Leo nard, all of which had been available to plaintiffs at the time they filed their opposition to the summary judgment motion. The additional portions of Mrs. Raimo's deposition did not shed any additional light on the issue of liability.

Leonard was an owner of third-party defendant Halliday Leo nard, Inc., the builder and developer of 3332-34 West Avenue. He testified that the property was built in accordance with the proposed plot layout. The sidewalk was constructed by a subcon tractor, B & E Masonry. He testified the sidewalk is either on the property line or within one or two inches from it. The sidewalk conformed to the dimensions designed by the archi tect. The landscape contractor did the final grading on both sides of the sidewalk after it was constructed and installed the irriga tion. The soil would have been placed an inch or two below the surface of the sidewalk so that when the sod, which is one to two inches thick, was installed it would be level with the top of the cement. Because houses are constructed on pilings and the ground does settle at the shore, the dirt may have settled. He inspected the grading after it was completed. He would not have left it in the condition depicted in the photographs; that condition exists on the neighboring property. He would not have received a certificate of occupancy if the grade was not correct.

In opposition to the reconsideration motion, defendant resubmitted Hare's rebuttal report. The motion was decided on the papers, and the judge issued a written decision on March 6, 2009. The judge discussed the legal standards governing recon sideration, summary judgment, negligence, and the duty owed to a trespasser. He found that the defects were located on the neighboring property and were not the responsibility of defen dant. He found that all of the arguments presented by plain tiffs had been presented in opposition to the motion for summary judg ment. He found the sidewalk was not an artificial condi tion that involved a risk of death or serious bodily harm within the meaning of Restatement (Second) of Torts: Liability of Posses sors of Land to Trespassers 337 (1965). He concluded that plaintiffs had failed to meet the stan dard for reconsideration, and denied their motion. This appeal from both orders followed.

Plaintiffs contend that the judge erred in resolving a dis pute of material fact by finding that the depression in the ground was located on the neighboring property because "there has been no evidence presented that would definitively settle the question of where the exact property line at issue falls." They raise a similar argument with respect to the judge's find ing that Mrs. Raimo's fall was caused by improper maintenance of the ground on the abutting property. Plaintiffs claim that finding was inconsistent with the principle that all inferences must be drawn in favor of plaintiffs. They also claim the judge ignored their expert's opinion that the lighting, drain age, and grading of the area were improper. Finally, they assert defendant had a duty to correct the condition or warn of it even if the condi tion was on the adjoining property, a duty which the judge failed to consider.

In reviewing a ruling on a summary judgment motion, we apply the same standard as that governing the trial court. Pru dential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Summary judgment is designed to provide a prompt, business like and inexpensive method of resolving cases. Judson v. Peo ples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). Sum mary judgment is appropriate if there is no genuine issue as to any material fact in the record. R. 4:46-2(c).

The judgment or order sought shall be ren dered forthwith if the pleadings, deposi tions, answers to interrogatories and admis sions 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.

[Ibid.]

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), outlined the standard for deciding a summary judgment motion:

[A] determination whether there exists a "genuine issue" of material fact that pre cludes summary judgment requires the motion judge to consider whether the competent evi dential 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.

Therefore, the motion must be considered on the basis that the non-moving parties' assertions of fact are true, and the judge must "grant all the favorable inferences to the non-movant." Id. at 536. The determination is whether the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Ander son v. Liberty Lobby, Inc. 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

"If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Id. at 540. Moreover, "an oppos ing party who offers no substantial or mate rial facts in opposi tion to the motion cannot complain if the court takes as true the uncontradicted facts in the movant's papers." Baran v. Clouse Trucking, Inc., 225 N.J. Super. 230, 234 (App. Div.), certif. denied, 113 N.J. 353 (1988) (citation omitted). Asser tions that are con clusive and self-serving are insuffi cient to defeat a summary judgment motion. Puder v. Buechel, 183 N.J. 428, 440-41 (2005).

Plaintiffs argue that there is a disputed material fact as to whether defendant owns, controls, and maintains the property where the defect existed and Mrs. Raimo fell. The as-built sur vey shows that the property line on the south end of the prop erty runs directly along the edge of the concrete walkway as does the survey attached to the Master Deed titling the property to defendant. Hare also indicated that "the edge of this sidewalk is on the property line." Plaintiffs rely solely on the uncertainty of O'Loughlin and Leonard respecting whether the property line was an inch or two beyond the edge of the sidewalk to raise a dispute and have not provided a survey to dispute the location of the property line. Plaintiffs have offered no com petent evidence that the edge of the sidewalk was not on the property line, and that summary judgment was therefore improper.

Furthermore, the existence of a material fact dispute respecting the exact location of the property line between 3332-34 and 3336-38 West Avenue is legally irrelevant if defendant owed no duty of care to plaintiffs. For the purpose of this discussion, we shall assume the defect is wholly or partially on defendant's property. A party alleging negligence must estab lish three ele ments: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) the breach of that duty was the proximate cause of plaintiff's damages. Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005); LaBracio Family P'ship, v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 161 (App. Div. 2001).

Determining the scope of tort liability has traditionally been the responsibility of the courts. The actual imposition of a duty of care and the formula tion of standards defining such a duty derive from considera tions of public policy and fairness. This Court has carefully refrained from treating questions of duty in a conclusory fash ion, recognizing that whether a duty exists is ultimately a question of fairness.

[Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993), (citations and internal quotations omitted).]

The determina tion of the first element, whether a duty exists, is the sole province of the court and not a question of fact for the jury.

Whether a duty exists is a matter of law, to be decided by the court, not the factfinder. To determine the existence of a duty, a court considers fairness and public policy. Foreseeability of injury to others from a defendant's conduct is important, but not dispositive. Whether a duty is owed turns on whether the imposition of the duty satis fies an abiding sense of basic fairness under all of the circumstances in light of considera tions of public policy. Such an inquiry involves identifying, weighing, and balanc ing several factors the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exer cise care, and the public interest in the proposed solution.

[Siddons, supra, 382 N.J. Super. at 8 (citations omitted).]

"The scope of the landowner's duty is defined by [a third] person's status as a business visitor, social guest, or tres passer." Parks v. Rogers, 176 N.J. 491, 497 (2003) (citing Sny der v. I. Jay Realty Co., 30 N.J. 303, 311-12 (1959)). Clearly, Mrs. Raimo's status vis- -vis defendant was that of a tres passer. Handleman v. Cox, 74 N.J. Super. 316, 325-26 (App. Div. 1962), aff'd, 39 N.J. 95 (1963); see also Hallacker v. Nat'l Bank & Trust Co., 806 F.2d 488, 490 (3d Cir. 1986) ("'A tres passer is a person who enters or remains upon land in the pos session of another without a privilege to do so created by the possessor's consent or otherwise.'" (quoting Restatement (Sec ond) of Torts: Liability of Possessors of Land to Trespassers 329 (1965))).

"Traditional concepts of landowners' tort liability impose on possessors of land 'no duty of care other than to refrain from willful and wanton injury toward trespassers.'" Vega by Muniz v. Piedilato, 154 N.J. 496, 501 (1998) (quoting Diglio v. Jersey Cent. Power & Light Co., 39 N.J. Super. 140, 144 (App. Div. 1956); accord Hallacker, supra, 806 F.2d at 490 (citing Renz v. Penn Cent. Corp., 87 N.J. 437 (1981)); see also Hopkins, supra, 132 N.J. at 433 ("The owner owes a minimal degree of care to a trespasser, who has no privilege to be on the land." (citations omitted)).

"Over time, 'the protective fortifications of [these] early common-law principles' were weakened." Vega by Muniz, supra, 154 N.J. at 501 (quoting Diglio, supra, 39 N.J. Super. at 144). This change has been described as a "'battle' at the 'heavy gates which for centuries have protected the traditional immuni ties of the possessors of land.'" Ibid. (quoting Diglio, supra, 39 N.J. Super. at 145). Several exceptions have thus developed whereby tort liability may be imposed on a landowner. First,

[a] possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a lim ited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.

[Restatement (Second) of Torts: Liability of Possessors of Land to Trespassers 334 (1965); see also Wylupeck v. City of Camden, 25 N.J. 450, 463 (1957); Imre v. Riegel Paper Corp., 24 N.J. 438, 444-45 (1957); Boyd by Boyd v. Conrail, 291 N.J. Super. 608, 615-16 (App. Div. 1996).]

This exception clearly does not apply here. There is no evi dence that defendant knew or should have known that trespassers constantly intruded upon the sidewalk in question. The second exception is also dependent on proof of such knowledge, id. at 335, and is similarly inapplicable.

The third exception is that

[a] possessor of land who knows or has rea son to know of the presence of another who is trespassing on the land is subject to liability for physical harm thereafter caused to the trespasser by the possessor's failure to carry on his activities upon the land with reasonable care for the trespasser's safety.

[Id. at 336.]

There is no proof here that defendant knew that Mrs. Raimo was trespassing upon its land or that it had any reason to know of her presence, making the third exception inapplicable.

The fourth and fifth exceptions also require proof of knowl edge, or reason to have knowledge, of the presence of the trespasser. Id. at 337-38; Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 509 (1996); Healing v. Sec. Steel Equip. Corp., 51 N.J. Super. 123, 132-33 (App. Div. 1958). Where such proof is adduced, "[t]he duty owed to a trespasser [remains] 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 harm to a trespasser." Hopkins, supra, 132 N.J. at 434 (citing Renz, supra, 87 N.J. at 461; Restatement (Second) of Torts: Liability of Possessors of Land to Trespassers 337 (1965)). The last exception to the absence of a duty owed to trespassers applies only to trespassing children, id. at 339, and is not applicable here.

We are mindful "that the common-law classifications of per sons on land should be applied flexibly in assessing the land owner's general tort obligation to avoid foreseeable harm to others." Brett, supra, 144 N.J. at 508 (citing Hopkins, supra, 132 N.J. at 438-39). "The issue is whether, 'in light of the actual relationship between the parties under all of the sur rounding circumstances,' the imposition of a duty on the land owner is 'fair and just.'" Id. at 509 (quoting Hopkins, supra, 132 N.J. at 438).

Here, Mrs. Raimo and defendant had no relationship with each other. Mrs. Raimo was neither a social guest of the condominium unit owners nor an invitee. She was a bare trespasser on defen dant's property without its knowledge. Defendant had no expec tation of economic benefit from her presence. Defendant had no reason to expect her presence because there was no evidence that others trespassed upon defendant's property in the past. The imposition of a duty of care on defendant under all of these circumstances would not be "'fair and just.'" Ibid. (quoting Hopkins, supra, 132 N.J. at 438).

Plaintiffs also claim that even if defendant did not own the property on which the defect existed, it nonethe less owed a duty to warn Mrs. Raimo that the sidewalk was higher than the neighboring grass, that is, that defendant had a duty to warn a trespasser of a dangerous condition on adjoining property. Plaintiffs rely heavily on our decision in Siddons, supra, 382 N.J. Super. 1. There we observed,

Duty is not a rigid concept; it adjusts to the changing social relations of society. To determine if a duty exists, we examine the totality of the circumstances. When the defendant's actions are relatively easily corrected and the harm sought to be pre vented is serious, it is fair to impose a duty.

[Id. at 8 (citations and quotations omitted).]

In Siddons, the plaintiff's unit was flooded by water from a broken dishwasher hose in the unit owned by a neighbor. Id. at 5. She sued the neighbor and the condominium association. Ibid. The claims against both defendants were dismissed. Ibid. We affirmed the dismissal of the claims against the neighbor, but reversed as to the association. Ibid. The association was aware that similar hoses had previously broken in other condominium units within the association. Id. at 10.

We noted,

A condominium association is composed of unit owners. N.J.S.A. 46:8B-9, -12, -12.1. It is responsible for the administra tion and management of the condo minium. N.J.S.A. 46:8B-8, -12. Its operations are informed by the Condominium Act, N.J.S.A. 46:8B-1 to -38 . . . , as well as the con tents of the master deed and the condominium by-laws. N.J.S.A. 46:8B-13, -14, -15. Among the pow ers afforded to a condominium association is the right to "have access to each unit from time to time . . . as may be necessary for the maintenance, repair or replacement of any common elements therein or accessible therefrom or for making emer gency repairs necessary to prevent damage to common ele ments or to any other unit or units." N.J.S.A. 46:8B-15(b). A unit owner neverthe less remains liable "for injuries or damages resulting from an accident in his own unit in the same manner and to the same extent as the owner of any other real estate." N.J.S.A. 46:8B-16(c).

[Id. at 6-7.]

We further explained,

The governing body of a condominium asso cia tion has a fiduciary obligation to the unit owners similar to that of a corpo rate board to its shareholders. A condomin ium associa tion's governing body has the duty to pre serve and protect the common ele ments and areas for the benefit of all its members. Condominium association board mem bers are required to act reasonably and in good faith in carrying out their duties.

[Id. at 7 (citations and quotations omitted).]

We recognized that the hose was not a common element and that the by-laws imposed "responsibility for their inspection and maintenance on the unit owners." Ibid. However, the issue was whether the association "had a duty to warn the unit owners of the potential defect in the dishwasher hoses after it was put on notice of the defect." Ibid. We concluded that the association "had a duty to act reasonably to warn the unit owners of the potential danger." Id. at 10. We based this on "the close relationship between a condominium association and its unit own ers"; the risk of flooding was known to it but not the unit own ers; no undue burden would be caused to it by giving a warning; and the interests of the unit owners in their own property and the common elements would be safeguarded by requiring a warning. Id. at 11.

Siddons provides no comfort to plaintiffs here. Defendant had no relationship to plaintiffs. The adjoining properties were owned by two different condominium associations. Defendant had no more duty to warn than did the neighbor in Siddons who was dismissed from the case. In contrast to Siddons, this case does not con tain any evidence that might suggest that this type of trip-and-fall accident had occurred previously or that defen dant was aware of any such hazard. In fact, plaintiffs' counsel stated repeatedly at oral argument that defendant had "never noticed [the dangerous condition] before." The association in Siddons was on actual notice of the risk of flooding because similar instances of dishwasher hoses breaking had occurred and at least three of these incidents were reported to the associa tion. Id. at 6. We found that the association was the only party with actual knowledge of the flood risk. Id. at 13. That knowledge was central to our decision. Id. at 10. Defendant in this case denied knowledge of the defect, and plaintiffs pre sented no evidence to suggest that such knowledge existed. Therefore, Judge Todd properly found as a matter of law that no duty existed on the part of defendant to warn of the defect on its neighbor's property. Id. at 11.

Plaintiffs further argue that because the condition could have been corrected relatively easily and since the harm that would be prevented was serious, it is fair to impose on defen dant a duty to warn under J.S. v. R.T.H., 155 N.J. 330 (1998). The J.S. case involved a suit against the wife of a child moles ter based on the theory that her failure to warn of her hus band's sexual pro clivities was tantamount to negligence, thus making her liable to the two young girls that were abused by her husband. Id. at 330. In that case, the Court explained:

In determining whether a duty is to be imposed, courts must engage in a rather com plex analysis that weighs and balances sev eral, related factors, including the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.

Foreseeability of the risk of harm is the foundational element in the determina tion of whether a duty exists. The ability to fore see injury to a potential plaintiff is cru cial in determining whether a duty should be imposed.

[Id. at 337-38 (citations and quotations omitted).]

The Court noted that it was fair to impose a duty to warn children and their parents coming into defendant's home that her spouse was a child molester where defendant had "knowledge or opportunity to know that a particular person or particular class of persons is being sexually abused or is likely to be abused by her husband." Id. at 341-42. It held "that when a spouse has actual knowledge or special reason to know of the likelihood of his or her spouse engaging in sexually abusive behavior against a particular person or persons, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm." Id. at 352.

The rule in J.S. has no application to the facts of the case. First, the danger of tripping when walking across some one's lawn is not analogous to the danger of child abuse by a known abuser. Second, defendant was not in a close and special relationship with the condominium association for 3336-38 West Avenue, unlike the wife of the child abuser who was in a unique position with her pedophiliac husband to observe or warn against his sexual proclivities. We find no basis for imposing on defendant a duty to warn Mrs. Raimo of a defect on the property of 3336-38 West Avenue.

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the remaining issues presented by plaintiffs are without sufficient merit to warrant extensive discussion in this opin ion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by Judge Todd in his written opinions dated February 6 and March 6, 2009. We review a motion for reconsideration for an abuse of discretion. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We find no such abuse here.

 
Affirmed.

Plaintiffs have not appealed earlier summary judgments in favor of all other defendants and third-party defendants.

Defendant's expert in his rebuttal report points out that these guidelines had no application to defendant's property, which was not designated as an accessible residential unit under the New Jersey standards for accessible buildings, and Mrs. Raimo was not a handicapped individual.

This is apparently the correct name of "Halliday and Leonard."

Plaintiffs' counsel addressed the property line issue during the summary judgment hearing by stating counsel "wanted to get a formal survey . . . about a week past the [discovery] deadline" but was denied the opportunity to do so by the court. The judge at that point reminded counsel that discovery was over at the time of plaintiffs' request and that the case was filed "back on December 29, 2006." The location of the property line was a known dispute while discovery was still open. Discovery in this case was extended four times. We see no error in denying this belated discovery request.

Those exceptions are for (1) "activities highly dangerous to constant trespassers," Restatement (Second) of Torts: Liability of Possessors of Land to Trespassers 334 (1965); (2) "artifi cial conditions highly dangerous to constant trespassers on a limited area," id. at 335; (3) "activities dangerous to known trespassers," id. at 336; (4) "artificial conditions highly dangerous to known trespassers," id. at 337; (5) "controllable forces dangerous to known trespassers," id. at 338; and (6) "artificial conditions highly dangerous to trespassing children," id. at 339.

(continued)

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A-3666-08T3

March 26, 2010