WILLIE C. ROWE v. MAZEL THIRTY, LLC.

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6328-08T1

WILLIE C. ROWE and

KAREN ROWE, His Spouse,

Plaintiffs-Appellants,

v.

MAZEL THIRTY, LLC and 40-50

LENOX REALTY ASSOCIATES, LLC,

Defendants-Respondents.

____________________________________________________

October 29, 2010

 

Argued August 31, 2010 - Decided

 

Before Judges Payne and Messano.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9353-07.

 

Pablo N. Blanco argued the cause for appellants (The Blanco Law Firm, LLC, attorneys; Mr. Blanco, on the brief).

 

Richard J. Hull argued the cause for respondents (Morgan Melhuish Abrutyn, attorneys; Mr. Hull, of counsel and on the brief).

PER CURIAM

Plaintiffs Willie C. Rowe and Karen Rowe1 appeal from an order granting defendants Mazel Thirty, LLC, and 40-50 Lenox Realty Associates, LLC, summary judgment. In a single point heading plaintiff claims the motion judge erred by concluding "that defendants owed no duty to . . . plaintiff," because that a determination "necessarily required that [the judge] make factual determinations [that] should have been left for the jury." We have considered this argument in light of the motion record and applicable legal standards. We affirm.

When reviewing a grant of "summary judgment, we [employ] the same standard[s] . . . [used] by the motion judge." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.) (citation omitted), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential 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. The judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.

 

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quotations omitted).]

 

Only "[i]f there exists a single, unavoidable resolution of the alleged disputed issue of fact" is "that issue . . . insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. (citation omitted).

We then consider whether the motion judge's application of the law was correct. Atl. Mut. Ins., supra, 387 N.J. Super. at 231. In this regard, we owe no deference to the judge's conclusions. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The relevant deposition testimony in the motion record revealed that on December 23, 2005, plaintiff, an East Orange police officer, injured himself when the masonry and brick steps that led into the basement of defendants' Lenox Avenue building crumbled and gave way. As part of the city's "safe block" initiative, plaintiff's job was to "control peoples' entrance on the street, check the . . . vacant apartment buildings and the houses on the streets, . . . and write up any violations." He was the only police officer assigned to Lenox Avenue that day.

Plaintiff had been to the premises once before for similar reasons, though he could not recall exactly when. On the prior occasion, he "wrote [the property] up for some broken windows." The building was vacant at that time and construction was ongoing.

On the day in question, plaintiff did not see any construction workers at the building. It was approximately 4:30 or 5:00 p.m., and plaintiff was able to observe the stairs, which appeared to be in the same condition as when he had visited the premises on the prior occasion. Plaintiff "looked to see if anyone was [on the stairs], then [he] went to check and ma[k]e sure the [outside] door was secure to the basement." He held onto the rail because "the steps were kind of narrow," and, as he proceeded down toward the door, "the cement cracked." Plaintiff's foot became stuck as his body was propelled forward. He never struck the ground, but his leg became "numb" and he experienced pain. He limped back up the stairs to his police vehicle.

Photos of the stairwell revealed its condition to be dilapidated. Although the steps were constructed of brick, apparently a cement wash was placed atop the treads. Plaintiff slipped when a piece of the cement overlay became dislodged and gave way.

Abraham Bender, defendants' representative, testified that the building was vacant and being rehabilitated pursuant to work permits issued by the city some nine months earlier. The building was secure, the windows boarded up with plywood, signs were posted prohibiting access, and guard dogs were present in the building from the late afternoon until the early morning hours. It is unclear whether the dogs were present when plaintiff's accident occurred.

Bender was aware of the police initiative on Lenox Avenue, and, about one month earlier in November 2005, an officer had checked the basement apartment door. The building superintendent had "sent him away" after advising him that the rehab work was ongoing, the buildings were locked at night, and guard dogs were present. Bender insisted no specific violation was issued for the door being unsecured, but he "heard something from the building department" regarding the door. Bender acknowledged receiving a "notice to cure" from the building department regarding an unsecured door, but he "explained . . . it was during working hours and we were cleaning up or whatever. The door would have been open, but [it] w[as] never unsecured."

Bender also recalled inspectors checking on the property and issuing violations from time to time. On those occasions, he "would call the inspector . . . and invite him back to see [if] th[e] thing was abated or if he [had] a reason to explain to him, then [he] w[ould] explain to him and that w[ould] be it."

Defendants moved for summary judgment. They argued that they had no "reasonable expectation" that plaintiff, in his role as a police officer, would "be on [the] property." Citing our holding in Cella v. Interstate Props., 232 N.J. Super. 232 (App. Div. 1989), defendants argued that plaintiff was a "licensee," and the duty owed to him was simply to "refrain from [injurious] conduct or . . . warn [of] latent conditions which . . . [p]laintiff wouldn't have been aware of." Defendants further argued that plaintiff, having been to the property before, was aware of the stairs' "decrepit condition." The condition, therefore, was not "latent."

Plaintiff argued that Cella, supra, was decided before the so-called "Fireman's Rule" was abrogated. He contended, therefore, that the more general statement of a property owner's duty of care, adopted by the Supreme Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), should apply. As a result, plaintiff contended genuine factual disputes existed regarding defendants' knowledge of plaintiff's, or other officers', likely presence on the premises, defendants' attempts to make the property safe, and whether plaintiff's foreknowledge and conduct amounted to comparative negligence that did not, as a matter of law, bar recovery.

The judge concluded that our holding in Cella applied and further determined that defendants "could not have reasonably foreseen the [p]olice [o]fficers performing their duties . . . at the time." He further concluded that defendants "had no opportunity or time to inspect or to warn [plaintiff] of any dangers . . . ." Moreover, the judge concluded the defect was "obvious" and that plaintiff "kn[ew] of the staircase[,] . . . that the property was vacant and under renovation, [and] went down the stairway anyway." He granted the motion, handwriting on the order much of what he said in his oral decision. This appeal followed.

Before us, plaintiff has essentially reiterated the arguments raised below. He claims that material factual disputes exist as to whether defendants could have anticipated his presence on the stairwell from time to time due to the performance of his official responsibilities, and whether defendants' conduct was reasonable under all the attendant circumstances. As a result, plaintiff contends summary judgment was inappropriate.

In Cella, supra, 232 N.J. Super. at 234-36, a police sergeant, investigating a suspicious vehicle in a shopping center's parking lot at 4:30 a.m., slipped and fell on an accumulation of ice allegedly caused by a defective drain pipe and a declivity in the pavement. Reviewing the trial court's grant of summary judgment to defendant, we framed the question presented as follows: "What duty does a property owner owe to a police officer when the officer is investigating a situation not caused by the owner, and the accident occurs at a time when or location where no member of the public is expected to be present?" Id. at 236.

We began by noting that the case did not concern "a direct application of the fireman's rule," ibid., "which absolves only the tortfeasor who negligently created the conditions that brought the officer to the site." Id. at 240; and see Berko v. Freda, 93 N.J. 81 (1983) (discussing the rule and applying it to police officers).2

We went on to hold:

Where the fireman's rule does not apply, a police or fire officer responding to a call or investigating a suspicious circumstance may be thought of as an invitee, licensee, or even a trespasser. When the officer is conducting his business where other members of the public are invited to be present for the business purposes of the owner, the officer is given the protections accorded to an invitee. Where the officer is in an area where or when the public is not expected, the duty owed the officer is akin to that owed to a licensee. The officer technically is neither an invitee nor a licensee . . .; "his status [is] sui generis. . . ." In fact, in many instances the officer, if not permitted by the nature of his or her duties to be at the particular location, would be a trespasser. The officer's official status however, affords a special protection which raises the status to that of a licensee, but with some special limitations.

 

If the property owner knows the officer is present, or where the officer's presence at that location is reasonably foreseeable, and an opportunity exists to warn him, a warning must be given concerning known dangers. The warning must be reasonable under the circumstances. It may be verbal, or by the posting of a sign or the placing of a saw-horse or a rubber cone. But where the officer's presence would not reasonably be expected, especially in emergency situations where there was no opportunity to warn, no warning is required. Police or fire officers responding in an emergency situation must be deemed to expect that the way has not been prepared for them in the same manner as for business invitees or even licensees whose presence is known or expected. On the other hand, where time and conditions exist where it would be reasonable that the owner would warn of a particular defect in the premises, then a failure to warn can be the basis for liability. Compliance with this duty requires a case-by-case analysis.

 

[Id. at 240-41 (citations omitted).]

 

We reversed the grant of summary judgment to defendant, and remanded the case for further proceedings. Id. at 242.

Since Cella was decided, regarding premises liability and the duty owed by a landowner to those on the property, the Court has noted:

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but, . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition . . . of a general duty to exercise reasonable care in preventing foreseeable harm . . . is fair and just.

 

[Hopkins, supra, 132 N.J. at 438.]

 

We have since said:

Under our State's current approach to premises liability, the legal duties of a defendant are not necessarily determined by examining traditional common-law classifications of injured persons as trespassers, invitees, licensees, and the like. Rather, the question of whether a duty is owed to a person injured on the premises and the extent of that duty, turns upon a multiplicity of factors, including a consideration of the relationship of the parties, the nature of the attendant risk, defendant's opportunity and ability to exercise reasonable care and the public interest in the proposed solution.

 

[Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 400 (App. Div. 2006) (citing Hopkins, supra, 132 N.J. at 439), certif. denied, 190 N.J. 254 (2007).]

 

We decline the opportunity to address the issue in terms of plaintiff's legal status, i.e., whether he was an invitee, because defendants should have reasonably expected he would inspect the premises from time to time, or licensee, because his presence was unforeseen. Such distinctions, as applied to police officers and firefighters, were seen as problematic both before our decision in Cella, see e.g., Krauth v. Geller, 31 N.J. 270, 272-73 (1960) (noting the firefighter's status is sui generis, neither licensee nor invitee), and after, see Knoetig v. Hernandez Realty Co., Inc., 255 N.J. Super. 34, 43-44 (App. Div.) (eschewing distinctions based upon the status of the public servant and instead focusing on the nature of the premises, i.e., whether they are public or private), certif. denied, 130 N.J. 394 (1992).

As a court of intermediate jurisdiction, the issue of plaintiff's status on the property, and whether that status, in and of itself, affects the duty owed, is best addressed by the Supreme Court, particularly in light of the developments in the law since Cella was decided. See Tannen v. Tannen, ____ N.J. Super. ___, ___ (App. Div. 2010) (refusing to apply the principles of the Restatement (Third) of Trusts (2003) absent guidance from the Supreme Court); and see Riley v. Keenan, 406 N.J. Super. 281, 297 (App. Div.) (noting that an appellate court "should normally defer to the Supreme Court . . . with respect to the creation of a new cause of action") (citing Tynan v. Curzi, 332 N.J. Super. 267, 277 (App. Div. 2000)), certif. denied, 200 N.J. 207 (2009).

Rather, however we define the duty owed to plaintiff in this case, the inescapable conclusion from the record is that plaintiff was aware of the dangerous condition of the property before he decided to descend the stairs. In his deposition, he acknowledged that the stairwell was in disrepair when he visited the property earlier, and that it was in the same condition on the day in question. He further acknowledged that he took precautions in descending the stairs by shining a flashlight toward the door, and by holding onto the railing. Application of either traditional definition of his status -- invitee or licensee -- renders the same result. Plaintiff's foreknowledge of this obviously dangerous condition on the stairwell should relieve defendants of potential liability. See Restatement (Second) Torts 343A comment e (1965) (noting that regarding an invitee, "[r]easonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them"); and see Restatement (Second) Torts, supra, 342 comment f ("The possessor is entitled to expect that the licensee, realizing all this, will be on the alert to discover conditions which involve risk to him. . . . It is enough that from facts within his present or past knowledge he has reason to believe that a dangerous condition exists at that time.") (emphasis added).

Based upon the undisputed facts contained in this record, summary judgment was appropriate.

A

ffirmed.

1 Karen Rowe's per quod claim is derivative of her husband's claim. We shall hereafter use "plaintiff," in the singular, referring to Willie C. Rowe.

2 In Rosa v. Dunkin' Donuts of Passaic, 122 N.J. 66, 77 (1991), the Court seemingly criticized our conclusion in Cella that the fireman's rule was inapplicable. The rule has since been abrogated by the Legislature. See N.J.S.A. 2A:62A-21; Ruiz v. Mero, 189 N.J. 525, 537-38 (2007).