GLORIA TUCKER v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6132-08T26132-08T2

GLORIA TUCKER,

Plaintiff-Appellant,

v.

CITY OF NEWARK, INNOCENT

AMAEFULE, MICHAEL MWANGI,

SERAH MWANGI, WEST HUDSON

LUMBER & MILLWORK CO., INC.,

JONATHAN GIORDANO, MARNIN

RAND, GIORDANO CO., INC.,

EQUATORIAL CONSTRUCTION,

Defendants-Respondents.

 

 

Argued March 24, 2010 - Decided

Before Judges Stern, J. N. Harris, and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8458-06.

Peter J. Murano argued the cause for appellant (Grieco, Oates & DeFilippo, LLC, attorneys; Mr. Murano, on the brief).

Gary S. Lipshutz, Assistant Corporation Counsel, argued the cause for respondent City of Newark (Julien X. Neals, Newark Corporation Counsel, attorney; Mr. Lipshutz, on the brief).

Jose B. Moreira argued the cause for respondents Michael Mwangi and Serah Mwangi (Jose B. Moreira, PC, attorneys; Mark C. DeBlis, on the brief).

Kevin P. Harrington argued the cause for respondent Giordano Co. (Harrington and Lombardi, LLP, attorneys; Mr. Harrington, on the brief).

PER CURIAM

We consider septuagenarian-plaintiff Gloria Tucker's appeal of the dismissal of her claims for compensatory damages against the City of Newark, a neighboring landowner, and a dumpster leasing company resulting from her fall on South 11th Street in Newark, the street where she had lived for more than half a century. We affirm in part and reverse in part.

I.

"Because summary judgment was granted in favor of defendants and on their motion, we present the facts, as we must, in the light most favorable to plaintiff, who was the non-moving party." Senna v. Florimont, 196 N.J. 469, 474 n. 1 (2008). On October 23, 2004, around 7:00 p.m., plaintiff was walking home along South 11th Street only a few steps away from her home when she encountered a ribbon of yellow caution tape stretched across the public sidewalk, blocking the right of way. The yellow caution tape was "tied to the house [owned by a pair of defendants on South 11th Street], a railing, or something" at one end, and affixed to a dumpster owned by another defendant located in the street. The dumpster itself was not blocking the public sidewalk, but rather was entirely in the road. Seeing the yellow caution tape from afar, and deciding that she could not easily go under it, plaintiff stepped off the public sidewalk and entered the street. As she performed this maneuver, which required her to walk between two parked cars, she fell in what was later described as a depression and could not readily get up. In her deposition, plaintiff testified that she did not observe the condition of the street where she fell, and only learned about it from her daughter who "went down and looked where I fell." Nevertheless, plaintiff was able to identify the area of the incident from several photographs of the sidewalk and street that were produced at her deposition.

Paramedics were dispatched to the scene, who lifted plaintiff onto a stretcher and transported her by ambulance to a hospital in nearby East Orange. After a doctor's examination, it was determined that plaintiff had suffered a trimalleolar fracture dislocation of the left ankle. Plaintiff underwent open reduction surgery that resulted in the insertion of a plate and a cannulated screw in her ankle. She remained hospitalized for approximately four days, after which she was discharged and sent to a nursing home for a one-month stint of necessary physical therapy. After plaintiff was allowed to return home, she continued with similar physical therapy for several months.

The yellow caution tape that had impeded plaintiff's use of the public sidewalk was located in front of a building along South 11th Street. At the time, the property was used as a three-family dwelling, owned by defendants Michael Mwangi and Serah Mugambi (collectively, Mwangi). Mwangi did not reside at the premises, choosing instead to rent all of the units to third parties.

In October 2004, Mwangi contracted with defendant Equatorial Construction to repair the roof at the property. An "Application for Street and/or Sidewalk Opening, Occupancy, and Sidewalk Construction" was filed with the Department of Engineering of the City of Newark on October 4, 2004. This application indicated that it was connected to "roofing," where the nature of the work related to "roofing debris (wood); slates, shingles." The proposed work site consisted of an area twelve feet long and six feet wide; the duration of the work was listed as fourteen days, beginning on October 6, 2004 and ending on October 20, 2004. A construction permit was ultimately issued by the City of Newark for this particular location on October 15, 2004. The construction permit made no mention of the use, obstruction, or closure of the public sidewalk in front of the house.

Defendant Giordano Co., Inc. (Giordano) is in the business of, among other things, leasing dumpsters for temporary use at places such as construction sites. Giordano was named as a defendant because the words "Giordano" appeared on the dumpster that was located in front of Mwangi's property when plaintiff fell. The record is sparse concerning details as to who actually leased the dumpster and how it came to be placed in the street. Additionally, the record does not reflect who actually strung the yellow caution tape to block off the public sidewalk, and Michael Mwangi's deposition testimony clearly indicated that he was not present during any point that the roofing work was being performed.

Plaintiff sued a multitude of allegedly negligent defendants who she claimed contributed to her harm. She pursues this appeal, however, only against the City of Newark, Mwangi, and Giordano as a result of Judge Claude M. Coleman's series of orders granting summary judgment in favor of those defendants. Although plaintiff repeats and reemphasizes the positions she advanced in the Law Division, for the first time on appeal, she argues that Judge Coleman had the duty to sua sponte disqualify himself as the motion judge because of his former long-term employment by the City of Newark. We reject plaintiff's recusal arguments, as well as many of her other positions. However, we are persuaded that summary judgment against defendant Mwangi was improvident, and as to that defendant only, we reverse. In all other respects, the determinations of the Law Division are affirmed.

II.

A.

Plaintiff asserts that information she gleaned from publicly available sources only after the summary judgment proceedings reveal that Judge Coleman "had served the City of Newark in multiple capacities from the 1960s until taking the bench in 2002, including as a Newark police officer, legal advisor to the Newark Legal Department, Chief and Director of the Newark Fire Department, and Chief and Director of the Newark Police Department." Moreover, "[a]fter serving as a judge of the Newark Municipal Court, Judge Coleman was nominated and confirmed to his current Superior Court appointment." Based upon this limited information, plaintiff argues that there are "serious questions regarding the judge's impartiality towards defendant City of Newark, and also raises an issue concerning the financial interest the judge may have with respect to any pensions received from the City of Newark." According to plaintiff, "Judge Coleman should have recognized this appearance of impropriety considering his long prior association with the City of Newark and in consideration of the allegations against the City of Newark in this action." We note that plaintiff does not advance any concrete argument about any pension or the judge's supposed partiality, bias, favoritism, or self-dealing based upon any specific actions or omissions in this case. Rather, plaintiff's entire posture rests upon the elusive and illusory appearance of impropriety, without more.

It is plain to us that the entire factual foundation of plaintiff's claim regarding Judge Coleman's background was available to her during the proceedings in the Law Division. Plaintiff cannot plausibly argue that this information constitutes newly discovered evidence. Why plaintiff's counsel did not research the background of the judge who was involved in the management of plaintiff's case is unexplained. Nevertheless, plaintiff contends that her "counsel was not required to become aware of Judge Coleman's background prior to the hearings on the motions. Rather, Rule 1:12-1(f) places the duty for disqualification squarely on the shoulders of the judge on his own motion whenever the need becomes apparent to him." Even though we recognize that a judge has independent obligations to ensure public confidence in his or her decisions, we do not subscribe to plaintiff's point of view regarding the court's sua sponte recusal obligations.

In this case, plaintiff asks too much of a judge who at the time of the motions had served on the Superior Court for more than seven years, far removed in time from his prior City of Newark employment. The plaintiff's blame shifting is unavailing because not only does the evidence fail to support plaintiff's speculative claims of judicial partiality, but plaintiff also failed to give Judge Coleman a fair opportunity to consider the recusal arguments made to us for the first time on appeal. Although we grudgingly accept plaintiff's assertion that her attorney was unaware of Judge Coleman's professional and employment history, in light of the easily accessible public data utilized by plaintiff on appeal, we cannot discount the possibility that the information was known much earlier, but only deployed once plaintiff encountered the adverse rulings by the motion judge. If that were the case, plaintiff plainly would be estopped from making this post-scripted argument. See Sugarman v. Township of Teaneck, 272 N.J. Super. 162, 171 (App. Div.), certif. denied, 137 N.J. 310 (1994).

We emphasize our concern that plaintiff only now seeks to present arguments pertaining to disqualification, which she failed to present to the trial court, despite an opportunity to do so, thereby depriving the motion judge of an opportunity to respond. Generally, "we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available." Monek v. Boro. of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Exceptions include cases where "the issue is of special significance to the litigant, to the public, or to the achievement of substantial justice, and the record is sufficiently complete to permit its adjudication." Boro. of Keyport v. Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000). Another exception is when the questions "'raised on appeal go to the jurisdiction of the trial court.'" Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.) (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)), certif. denied, 162 N.J. 131 (1999). While we determine that none of these exceptions to the general principle are applicable in this matter, we nevertheless choose briefly to address plaintiff's contentions.

Perhaps more than most other governmental actors, judges are expected to adhere to the highest ethical standards. DeNike v. Cupo, 196 N.J. 502, 516-17 (2008). As public officers holding positions of public trust, members of the judiciary stand in a special relationship to the people whom they have been appointed to serve. See Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474, cert. denied, 344 U.S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952)).

Canon 1 of the Code of Judicial Conduct emphasizes that "[a]n independent and honorable judiciary is indispensable to justice in our society." To that end, judges are required to maintain, enforce, and observe "high standards of conduct so that the integrity and independence of the judiciary may be preserved." Ibid. Judges are to "act at all times in a manner that promotes public confidence," Id. Canon 2(A), and "must avoid all impropriety and appearance of impropriety," Id. commentary on Canon 2.

Canon 3(C)(1) of the Code of Judicial Conduct provides that "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Similarly, Rule 1:12-1(f) directs judges not to participate in any matter "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so."

Through these principles, judges are obliged to hew to the figurative standard of being purer than Caesar's wife, that is, remaining above suspicion. Yet, our courts have also noted that "[a] judge ordinarily is not disqualifiable because of his own life experiences . . . [for] each of us is a product of the aggregate of our experiences, and our understanding is enhanced by the totality of our experiences." Johnson v. Salem Corp., 189 N.J. Super. 50, 60-61 (App. Div. 1983) aff'd as mod. on other grounds, 97 N.J. 78 (1984). Additionally, "[i]t is improper for a judge to withdraw from a case upon a mere suggestion that he is disqualified unless the alleged cause of recusal is known by him to exist or is shown to be true in fact." Pantich v. Pantich, 339 N.J. Super. 63, 66-67 (App. Div. 2001) (internal citations omitted). While "the mere appearance of bias may require disqualification[,]. . . before the court may be disqualified on the ground of an appearance of bias, the belief that the proceedings were unfair must be objectively reasonable." Id. at 67 (citing State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 139 L. Ed. 2d 88, 118 S. Ct. 140 (1997)).

Under the lens of objective reasonableness, we cannot agree that Judge Coleman's former service to the City of Newark, even stretching over the span of several decades, was capable of engendering in a reasonably knowledgeable attorney, litigant, or member of the public a scintilla of conviction in the judge's lack of probity. Throughout the Law Division proceedings of this case, Judge Coleman's conduct was not once called into question. His management of the litigation, including the motions, was unexceptionable. The wholly unsubstantiated and subjective views of plaintiff the recipient of the judge's adverse rulings are insufficient to convince us that something was amiss.

B.

Our review of a summary judgment determination is de novo, and we apply the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must review "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment shall be granted only "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). If there is no genuine issue of material fact, we must then decide whether the Law Division's ruling on the law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987).

Plaintiff argues on appeal that the City of Newark was not entitled to summary judgment because there were genuine issues of disputed fact regarding the City's maintenance of South 11th Street and its administration of construction permits. The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA), delineates the boundaries of sovereign immunity for public entities in New Jersey, and prescribes "the nature, extent and scope of state and local tort liability and the procedural requisites for prosecuting tort claims against governmental agencies." Wright v. State, 169 N.J. 422, 435 (2001) (internal quotations omitted). The public entity bears the burden to plead and prove its immunity pursuant to the TCA. Wymbs v. Twp. of Wayne, 163 N.J. 523, 539 (2000). Nevertheless, while the TCA provides several types of immunity to public entities, some are specific while others are broader. However, "the general rule [is] that public entities are immune from tort liability unless there is a specific statutory provision imposing liability." Kahrar v. Boro. of Wallington, 171 N.J. 3, 10 (2002) (internal citation omitted).

Before parsing statutory provisions that might provide a specific immunity in this case, we must first determine whether there is one that would impose liability, as required by Kahrar. N.J.S.A. 59:4-2 provides as follows:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

 
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property

if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

[(Emphasis added).]

As explained by statute, a "dangerous condition" is "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a). A "substantial risk" is defined by our courts as "one that is not minor, trivial or insignificant." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (internal citation and quotation omitted).

The City of Newark claims that it was not aware of the condition of the roadway on South 11th Street at the time plaintiff fell and was injured, and in any event its conduct regarding the street was not palpably unreasonable as a matter of law. If, as is the case here, the steps taken by a public entity to "protect against" a "dangerous condition" are being questioned, plaintiff must set out to prove, pursuant to N.J.S.A. 59:4-2, that those steps were "palpably unreasonable," a term not specifically defined in the Act. In Kolitch, the Supreme Court adopted the following definition:

For today's purposes we accept what was stated in Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979), in which the court differentiated the term "palpably unreasonable" from ordinary negligence:

We have no doubt that the duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.

We conclude that the term implies behavior that is patently unacceptable under any given circumstance. As one trial court has suggested, for a public entity to have acted or failed to act in a manner that is palpably unreasonable, "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979); see also H. Margolis and R. Novack, Tort Claims Against Public Entities 55 (1984) (discussing Williams and Polyard). Moreover, the burden of proof with regard to the palpable unreasonableness of the State's action or inaction is on the plaintiff in a case of this type. Fox v. Twp. of Parsippany-Troy Hills, 199 N.J. Super. 82 (App. Div.), certif. den., [101] N.J. [287] (1985); H. Margolis & R. Novack, supra, at 54; Comment, The N.J. Tort Claims Act: A Step Forward?, 5 Seton Hall L. Rev. 284, 294 (1974).

[Kolitch, supra, 100 N.J. at 493.]

See also Muhammad v. New Jersey Transit, 176 N.J. 185, 195-96 (2003) (applying the same standard); Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 458-59 (2009) (remanding for a jury trial on the question of whether the public entity's conduct of locking the cemetery gates while plaintiff was still inside created a dangerous condition and was palpably unreasonable).

The question therefore becomes whether when giving plaintiff the benefit of all reasonable inferences from the facts presented in the record before us a jury must conclude that the City's actions in addressing the condition of South 11th Street were not "palpably unreasonable." That this question is one of fact, Vincitore v. New Jersey Sports & Exposition Authority, 169 N.J. 119, 130 (2001); Furey v. Cty. of Ocean, 273 N.J. Super. 300, 313 (App. Div.), certif. denied, 138 N.J. 272 (1994), does not mean that every lawsuit governed by the "palpably unreasonable" standard must go to trial. As with any other fact question, summary judgment should only be awarded when the court determines that the facts undeniably do not meet the high standard imposed by the Legislature. See, e.g., Black v. Boro. of Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993) (holding that although "the 'palpably unreasonable' determination presents a jury question in the sense that it is no longer specifically assigned to the judge[,] . . . like any other fact question before a jury, [it] is subject to the court's assessment whether it can reasonably be made under the evidence presented.").

Based upon our review of the record, we conclude that summary judgment in favor of the City of Newark based upon TCA principles was appropriate in this case. Aside from the attenuated proofs regarding the City's actual or constructive knowledge of the depression allegedly causing plaintiff's fall on South 11th Street, we view the high hurdle reinforced by the Court in Ogborne as counseling that a verdict in defendants' favor is inevitable on the question of whether the City's acts or omissions to repair South 11th Street were palpably unreasonable. The lack of foreseeability that plaintiff would encounter a blockaded sidewalk on South 11th Street at 7:00 p.m., select a seemingly random location to enter the roadway between parked vehicles in order to get to her residence, and then fall in the street where she had lived for more than fifty years makes the TCA analysis even stronger.

We similarly find plaintiff's claim that the City's employees were negligent for failing to ensure that the public sidewalk remain open for pedestrian traffic is unavailing. This argument is couched in terms of the City's failure to inspect the construction activity associated with the issued permit and failure to ensure compliance with the permit by the contractor and homeowner. Plaintiff expressly argues, "[t]he City of Newark has a duty to make certain that the permits it issues are properly followed and to enforce noncompliance whenever they are not." Moreover, plaintiff complains that the "City of Newark failed to make any inspection of the construction site [on] South 11th Street, and thus could not have known whether the contractor and homeowner were exceeding the limitations of the permit."

These arguments implicate express immunities pursuant to the TCA that shield public entities in their inspection procedures and activities. The statute, N.J.S.A. 59:2-5, grants immunity for injuries arising out of the issuance of a permit or other license, whether based upon a discretionary or ministerial exercise of governmental authority. Malloy v. State, 76 N.J. 515, 520 (1978); Simon v. Nat. Com. Bank of N.J., 282 N.J. Super. 447, 457 (App. Div.), certif. denied, 143 N.J. 322 (1995). Relevant to this case, the TCA also provides "absolute immunity for public entities and employees with respect to injuries attributable to 'inspections,'" even assuming one was required in these circumstances. Bombace v. City of Newark, 125 N.J. 361, 367, (1991); Pinkowski v. Twp. of Montclair, 299 N.J. Super. 557, 575-76 (App. Div. 1997); see also N.J.S.A. 59:2-6; 59:3-7. This immunity applies to the governmental entity's failure to inspect as well as its negligent or inadequate inspection.

C.

In response to Giordano's motion for summary judgment, plaintiff offered a cursory certification from her daughter for the first time in this litigation, contending that the word "Giordano" was written on the side of the dumpster. No other evidence was presented to link Giordano to the harm suffered by plaintiff other than the dumpster's proximity to her fall. There is no expert opinion expressing a view that Giordano breached a duty; Giordano is not accused of placing the yellow caution tape across the public sidewalk; and except for its presence near the scene of the fall, there is little else to connect an act or omission of either Giordano or its representatives to the events in this case. The most that can be said about Giordano, if anything, is that the yellow caution tape was affixed by someone to its putative dumpster.

"[A]n opposing party who offers no substantial or material facts in opposition to the [summary judgment] motion cannot complain if the court takes as true the uncontradicted facts in the movant's papers." Leang v. Jersey City Bd. of Educ., 399 N.J. Super. 329, 356-57 (App. Div.)(quoting Baran v. Clouse Trucking, Inc., 225 N.J. Super. 230, 234 (App. Div.) certif. denied, 113 N.J. 353 (1988)), certif. denied, 196 N.J. 87 (2008). Assertions that are merely conclusive and self-serving for the asserting party are insufficient to defeat a summary judgment motion. Puder v. Buechel, 183 N.J. 428, 440-41 (2005).

As our courts have consistently held, "[t]he mere showing of an accident causing the injury sued upon is not alone sufficient to authorize the finding of an incident of negligence." Long v. Landy, 35 N.J. 44, 54 (1961). Furthermore, there is a "presumption against negligence," and the burden is on plaintiff to prove the negligence of a defendant in any case. Buckalew v. Grossbard, 87 N.J. 512, 525 (1981). Plaintiff has not demonstrated any involvement of defendant Giordano, except for the physical proximity of its dumpster to the incident. Therefore, the grant of summary judgment to Giordano by the court was proper.

D.

Turning lastly to the landowner, we reach a different result. The most logical conclusion derived from the evidence presented as part of the motion for summary judgment was that someone other than Mwangi stretched the yellow caution tape across the public sidewalk in order to divert pedestrians from the potentially hazardous work site. This actor was presumably an agent or employee of Mwangi's roofer, Equatorial Construction. During the actual construction phase of carting the debris from the dwelling's roof into the dumpster, the use of the yellow caution tape was plausibly authorized and reasonably justified. However, plaintiff encountered the blocked sidewalk at 7:00 p.m., after the work had apparently ceased for the day. Whatever rationale existed to position the yellow caution tape in order to block the public passage during the workday no longer applied when the work was done for the day, absent a reasonable explanation.

Plaintiff seeks to impose direct not vicarious liability upon Mwangi for the allegedly (1) negligent creation of a dangerous condition in blocking the public sidewalk; (2) negligent breach of the duty to comply with the construction permit; (3) negligent monitoring of the construction site; (4) negligent hiring of a contractor who allowed the unauthorized obstruction of the public sidewalk and who also failed to adhere to the construction permit; and (5) negligent failure to provide an alternative means of safe passage across the public sidewalk or roadway to pedestrians. In order to reach any of these theories, however, there first must be a duty owed by Mwangi to plaintiff, an issue hotly disputed and flatly denied by Mwangi.

It is well settled that when stating a claim for negligence, a plaintiff must demonstrate all of the necessary predicate elements in order to avoid a dismissal on a motion for summary judgment. Long, supra, 35 N.J. at 53-54; Saks v. Ng, 383 N.J. Super. 76, 89 (App. Div.), certif. denied, 186 N.J. 605 (2006). The elements of negligence are: "a duty of care owed by defendant to plaintiff"; "a breach of that duty"; and 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). The existence of a duty is a matter of law that must be determined by the judge, not by the jury. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993); Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991). Foreseeability of the risk of injury is one of the main factors in making the determination as to whether a duty is owed. Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 402 (2006). However, foreseeability is not the only factor. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 573 (1996). The court must also consider fairness; public policy; the relationship of the parties; which party created the conditions leading to the risk of harm; the opportunity and capacity of defendant to avoid the risk of harm; and the actual awareness and knowledge of the risk of harm. Id. at 574-76.

In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), our Supreme Court imposed a duty on commercial landowners to reasonably maintain abutting sidewalks and held them liable for a pedestrian's injuries resulting from their negligent failure to do so. We see no fundamental difference, for purposes of determining the existence of a duty in this case, between lack of maintenance of a sidewalk and effectively taking dominion and control over it, to the exclusion of the public. It is arguable that during the workday while work on the roof ensued, and the movement of debris was occurring Mwangi's duty to provide safe passage on the public sidewalk was diluted. However, the time of plaintiff's incident around 7:00 p.m. bespeaks the existence of a duty that exists for the benefit and protection of the public. Not only do we find it foreseeable that an individual encountering Mwangi's blocked sidewalk would walk around it by entering the street, we are unable to discount the potential for the street to pose tripping hazards. We affirmatively determine that at the date and time of the incident involved in this case, Mwangi shouldered a duty simply to not do anything to the public sidewalk that created a risk of harm or endangerment to pedestrians traversing South 11th Street.

The precise resolution of questions concerning foreseeability and proximate cause relating to plaintiff's incident are peculiarly within the province of a jury. See Garrison v. Twp. of Middletown, 154 N.J. 282, 308 (1998) (Stein, J., concurring). Nevertheless, the issue of defendant's liability cannot be presented to the jury simply because there is some evidence hinting at negligence; instead, the plaintiff must introduce evidence that affords a reasonable basis for the conclusion that it is more likely than not that the conduct of defendant was a cause in fact of the plaintiff's injury. Davidson v. Slater, 189 N.J. 166, 185 (2007). Said another way, summary judgment is appropriate where "no reasonable jury could find that the plaintiff's injuries [have been] proximately caused by the" defendant's conduct. Vega v. Piedilato, 154 N.J. 496, 509 (1998); see also Davidson, supra, 189 N.J. at 188 (trial court was capable of being the arbiter of "whether a genuine issue of proximate cause had been presented"); Fleuhr v. City of Cape May, 159 N.J. 532, 543 (1999) (noting that "[p]roximate cause . . . may be removed from the factfinder in the highly extraordinary case in which reasonable minds could not differ on whether that issue has been established" and "conclud[ing] that as a matter of law, any negligence [there] . . . did not proximately cause plaintiff's injuries" (internal citations omitted). Nevertheless, we believe that sufficient evidence was presented to invest a jury, not a judge on a summary judgment motion, with the ultimate authority to sift through the evidence and determine the delicate question of the connection, if any, between the blocked public sidewalk and plaintiff's fall and resulting injuries.

Accordingly, we reverse and remand for further proceedings relative to the dispute between Mwangi and plaintiff. Because of the flexible approach that we have used to determine the landowner's duty, we do not foreclose development in the Law Division of facts and expert opinions that might affect the scope of duty on the date in question. All of plaintiff's other claims were properly dismissed by the Law Division.

Affirmed in part; reversed and remanded in part.

 

Earlier in the day, plaintiff had traversed the same sidewalk and it had not been blocked by yellow caution tape at that time.

Defendant Equatorial Construction purportedly defaulted and has not otherwise appeared in this litigation.

The appellate record is devoid of evidence of the likely duration of the condition of South 11th street. Similarly, the record does not contain either an expert report or opinion that explains plaintiff's rationale for the street being dangerous, other than plaintiff fell down on the date in question.

"[W]hen the facts are reasonably debatable that a public employee's act or failure to act created a dangerous condition of property, and that condition of property creates an injury, the higher standard of palpably unreasonable conduct in N.J.S.A. 59:4-2 operates to trump the ordinary negligence standard." Ogborne, supra, 197 N.J. at 460.

We find the three-family residential use of the South 11th Street property to be inconsequential given the commercial venture that Mwangi was operating on the property at the time of plaintiff's encounter with the yellow caution tape.

(continued)

(continued)

26

A-6132-08T2

April 22, 2010