GUY RICHARDS v. QUALITY AUTOMOTIVE OF BLOOMINGDALE, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0068-11T2

GUY RICHARDS and PATRICIA

RICHARDS,

Plaintiffs-Respondents,

v.

QUALITY AUTOMOTIVE OF

BLOOMINGDALE, INC.,

Defendant-Appellant,

and

J&C PROPERTIES, L.L.C.,

Defendant.

_______________________________________

Argued May 8, 2012 Decided June 25, 2012

 

Before Judges Yannotti, Espinosa and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4211-08.

 

Michael J. Marone argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Marone, of counsel; Mr. Marone and Joseph G. Fuoco, on the brief).

 

Leonard P. Rosa argued the cause for respondents (Hartmann, Doherty, Rosa, Berman & Bulbulia, L.L.C., attorneys; Mr. Rosa, of counsel; Mr. Rosa and Neil A. Tortora, on the brief).

PER CURIAM

Defendant Quality Automotive of Bloomingdale, Inc. (Quality) appeals from a judgment entered for plaintiffs Guy Richards (Richards) and his wife Patricia Richards (Patricia) following a jury trial. We affirm in part, reverse in part and remand for a new trial to determine whether the damages awarded to plaintiffs should be apportioned between Quality and defendant J&C Properties, L.L.C. (J&C).

I.

Plaintiffs filed a complaint in the Law Division against Quality and JCV Auto Sales (JCV). In their complaint, plaintiffs alleged that on February 17, 2008, Richards was an invitee on property owned and/or maintained by Quality and JCV. Plaintiffs claimed that Quality and JCV were negligent and careless in failing to remove ice and snow from the premises, and allowed a dangerous condition to exist. Plaintiffs alleged that, as a direct and proximate result of Quality's and JCV's negligent acts or omissions, Richards was seriously and permanently injured. Patricia asserted a per quod claim, alleging that she suffered the loss of her husband's services and consortium.

Quality filed an answer and asserted cross-claims against JCV for contribution and indemnification. In its answer, Quality also asserted a demand for allocation of responsibility for any damages awarded among any co-defendants. Thereafter, plaintiffs filed an amended complaint naming J&C as a defendant. J&C subsequently filed a motion for summary judgment that was denied. Plaintiffs later dismissed their claims against JCV and settled their claims against J&C. Plaintiffs' claims against Quality were tried before a jury.

At the trial, the evidence established that J&C is the owner of a commercial building on the corner of Hamburg Turnpike and Warren Street in Bloomingdale, New Jersey, and leased space in the building to Quality and JCV. Quality operated an automobile repair shop in the leased premises.

Plaintiffs reside a short distance away from the building. On the evening of February 17, 2008, plaintiffs were walking from their home to a local convenience store. There was snow on the ground. Plaintiffs walked through the snow in front of their home without any difficulty. Plaintiffs walked past Quality's shop. The sidewalk in that location was covered with snow.

Although the sidewalk across the street was clear, Richards thought he could walk safely on the sidewalk. Richards took a couple of steps before he realized that there was ice beneath the snow. Richards told Patricia to turn around. He started to walk back but as he did so, his "legs came out from under [him]." He fell at an angle and landed hard on his back and shoulder. Richards testified that, for several seconds, he was either unconscious or did not know "what was going on."

Richards returned home immediately and went to bed. He said that the following morning, he felt like he had been "hit by a truck." He had severe pain in his back, shoulder and the back of his head. Richards went to the emergency room of a hospital. X-rays were taken, which showed that Richards had a fracture in his foot and a back injury. Tests taken later revealed compression fractures in the vertebrae and a fracture in his shoulder.

According to plaintiffs' expert, Dr. Evangelos Magariotis (Dr. Margariotis), Richards' compression fractures are irreparable. Dr. Magariotis testified that Richards was completely disabled and unable to work. At the time of trial, Richards had limited range of motion in his arm. He continued to experience muscle spasms in his knee and shoulder, as well as pain in the neck, back, shoulder, and leg.

At the trial, plaintiffs' counsel read into the record a letter from Chris Struble (Struble) and John Crumb (Crumb), in which they stated they were "the property owners" of Quality at the Hamburg Turnpike address in Bloomingdale. Struble and Crumb said that JCV was a tenant at the property. They stated that, as the property owners, they were "responsible for all snow and ice removal as well as maintenance for the . . . property."

In addition, plaintiffs' attorney read the following excepts from Struble's deposition testimony into the record:

[Q:] "Did you, . . . Quality Automotive, did you have any outside third parties in February of 2008 who did any snow and ice removal on your property?"

 

[A:] "No."

 

[Q:] "Who did it?"

 

[A:] "Myself or my partner."

 

[Q:] "John Crumb?"

 

[A:] "Yes."

. . . .

 

[Q:] "When I asked you about snow and ice removal, you mentioned plowing the driveway and removing snow from the sidewalk on Hamburg Turnpike. But you didn't mention anything about removing snow from the sidewalk on Warren Street."

 

[A:] "No."

 

[Q:] "Why is that?"

 

[A:] "I've never been required to."

 

[Q:] "Required to by whom?"

 

[A:] "By the town."

 

[Q:] "Is it your belief that you have no obligation to remove snow from the public sidewalk on Warren Street?"

 

. . . .

 

[A:] "No, I said I'm not required to remove the snow. In other words, I'm required by the town, by the police department, who will come and issue a summons if the snow is not removed in forty-eight hours from your sidewalk. They have never once issued me a summons for Warren Street."

 

[Q:] ". . . Is it your belief that the Town of Bloomingdale and the police department required you to remove snow and ice within forty-eight hours from the sidewalk in front of your business on Hamburg Turnpike?"

 

[A:] "Yes."

 

[Q:] "And is it your belief that there is no such requirement to remove snow and ice from the sidewalk alongside your building on Warren Street?"

 

[A:] "Based on the fact I've never been issued a ticket or a citation for it, yes."

 

[Q:] "Is it your practice and that of your partner, John Crumb, not to remove snow or ice from the sidewalk alongside your business on Warren Street?"

 

[A:] "Yes."

 

[Q:] "So when it snows and snow accumulates or ice accumulates, the only snow removal you do is plow the driveway and remove snow from the sidewalk in front of your business on Hamburg Turnpike?"

 

[A:] "Yes."

 

[Q:] "And you leave the sidewalk untouched on Warren Street?"

 

[A:] "Yes."

. . . .

 

[Q:] What you're telling me is that the best information you received is that snow fell about five days before the accident?"

 

[A:] "Yes."

 

[Q:] "And no one from Quality Automotive or anybody else for that matter removed the snow that was on the sidewalk alongside your building on Warren Street, from the time it snowed five days before until the accident of [February 17, 2008]?"

 

[A:] "No."

 

[Q:] "No, you agree with me?"

 

[A:] "No, I agree, no one removed the snow."

 

Struble also testified at trial. He said that the subject property was owned by J&C, a corporation that he and Crumb "started when we purchased the property about ten years ago." Quality was a tenant. Struble stated that he and Crumb performed all of the snow removal for the property, but they only did so on weekdays when Quality was open for business.

Struble also said that Quality was responsible for removing snow and ice from the sidewalk pursuant to an unwritten agreement between J&C and Quality. When asked what J&C did to maintain the sidewalk on the weekends when Quality's shop was closed, Struble stated "we just, we didn't take care of it." He said that he and Crumb never cleared snow and ice from the sidewalk abutting their property along Warren Street stating "[w]e've never cleared the Warren Street side up until this point. It just, we just never did. It was never accessed, we never cleared it, we just, you know, it's a very short piece of sidewalk and we just never cleared it."

After Quality presented its case, plaintiffs moved for a directed verdict on liability. The trial court directed a verdict as to Quality's negligence, but allowed the jury to consider whether its negligence was a proximate cause of the injuries sustained by plaintiffs. The court also refused to permit the jury to consider apportioning responsibility to J&C, the settling defendant.

The court noted that the testimony presented indicated that Quality believed it had the sole obligation to remove snow and ice from the sidewalk. The court also noted that J&C and Quality were owned by the same persons. The court directed that J&C would not appear on the verdict sheet as a settling defendant because there was no evidence upon which a jury could find it responsible.

The jury returned a verdict finding that Quality's negligence was a proximate cause of plaintiffs' injuries. The jury found that Richards was not negligent. The jury awarded Richards $200,000 for his pain and suffering, $200,000 for his lost future earnings, and $50,000 for his lost past earnings. The jury also awarded Patricia $25,000 on her claim.

Quality thereafter filed a motion for a new trial, which plaintiffs opposed. The court entered an order on July 22, 2011, denying the motion. Final judgment for plaintiffs was entered in accordance with the jury's verdict. This appeal followed.

II.

Quality argues that, as owner of the property, J&C had a non-delegable duty to clear the snow and ice from the sidewalk abutting the property and was negligent because the evidence showed that it breached that duty. Quality contends that, although plaintiffs settled their claims against J&C, the jury should have been allowed to consider whether some percentage of responsibility for plaintiffs' damages should be allocated to J&C.

"[C]ommercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Stewart v. 104Wallace St., Inc., 87 N.J. 146, 157 (1981). A commercial landowner may be liable to a pedestrian who is injured due to the condition of the sidewalk, "if, after actual or constructive notice, [the owner] has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard." Mirza v. FilmoreCorp., 92 N.J. 390, 395 (1983). The commercial property owner's duty to maintain the sidewalk includes the obligation to remove snow or ice if the failure to do so would be negligent under the circumstances. Ibid.

The commercial property owner's responsibility to maintain the abutting sidewalk extends to commercial tenants in exclusive possession of the property. Antenucci v. Mr.Nick's Mens Sportswear, 212 N.J. Super. 124, 128-29 (App. Div. 1986). The liability of a commercial tenant for failure to maintain a sidewalk "is concurrent with that of the property owner." Jacksonv. K-Mart Corp., 182 N.J.Super. 645, 651 (Law Div. 1981).

In this case, Quality does not argue that it did not have a duty to remove the snow and ice from the sidewalk abutting its premises. We note that while Quality was not the sole tenant in the building, the situation presented in this case is different from cases involving tenants in multi-tenanted shopping complexes. See Barrowsv. Trustees of PrincetonUniv., 244 N.J. Super. 144, 148 (Law Div. 1990) (holding that, absent a contractual obligation, tenants in a multi-tenant shopping mall do not have a duty to maintain common area sidewalks and walkways); Holmes v. KimcoRealty Corp., 598 F.3d 115, 124 (3d Cir. 2010) ("New Jersey would not impose a duty on an individual tenant for snow removal from the common areas of a multi-tenant parking lot when the landlord has retained and exercised that responsibility.").

In any event, the case law establishes that, as the owner of commercial property, J&C had a duty to maintain the abutting sidewalk. While a commercial tenant also may have a duty to maintain the sidewalk, the duty of the tenant and the commercial landowner is concurrent. Therefore, Quality was entitled to have the jury consider whether J&C was negligent and, if so, to apportion responsibility for plaintiffs' damages between J&C and Quality pursuant to the Comparative Negligence Act (the Act), N.J.S.A. 2A:15-5.1 to -5.8.

The Act requires a finding as to the extent of "each party's negligence or fault", N.J.S.A. 2A:15-5.2(a)(2), and a co-defendant who settles before trial is deemed a party under the Act even though the effect of a settlement is to dismiss all claims against that party. Young v. Latta, 233 N.J. Super. 520, 524-25 (App. Div. 1989), aff d, 123 N.J. 584 (1991). Thus, "a non-settling defendant has the right to have a settling defendant's liability apportioned by the jury." Mort v.Besser Co., 287 N.J. Super. 423, 431 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997).

However, to have liability apportioned, the non-settling defendant must alert the plaintiff "as early in the case as possible" that it will seek apportionment of liability of the settling defendant at trial. Young, supra, 123 N.J. at 597; Verni ex rel. Bursteinv. Stevens, 387 N.J. Super. 160, 207, 209 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007). Furthermore, there must be sufficient evidence to support a finding that the settling defendant was at fault. Mort, supra, 287 N.J. Super. at 431-32.

Here, Quality alerted plaintiff in its answer that, in the event any co-defendant settled prior to verdict, it would seek an allocation by the fact finder of the percentage or responsibility of that defendant. In addition, sufficient evidence was presented at trial to support a finding that J&C negligently failed to remove the snow and ice from the sidewalk abutting its property and that its negligence was a proximate cause of plaintiff's injuries.

Nevertheless, plaintiffs argue that because Quality and J&C are owned by the same two individuals, and because they had agreed Quality would be responsible for removal of snow and ice from the sidewalk, only Quality should be liable. Plaintiffs additionally argue that J&C was not negligent because it took "reasonable care to see that the sidewalks were safe" by delegating the responsibility for snow and ice removal to Quality.

As we have explained, however, even when a commercial tenant may be liable for failing to adequately maintain a sidewalk, its liability is concurrent with the liability of the commercial property owner. Furthermore, although J&C delegated responsibility to Quality to clear the snow and ice from the sidewalk, the evidence showed that Quality did not carry out this task when it was not open for business.

We accordingly conclude that the trial court erred by refusing to allow the jury to apportion responsibility for plaintiffs' damages between Quality and J&C.

III.

Next, Quality argues that the trial court erred by failing to charge the jury that it would not be liable if the condition of which plaintiffs complain was obvious. We do not agree.

It is well established that "[n]egligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." Kelly v. Gwinnell, 96 N.J. 538, 543 (1984) (citing Rappaport v.Nichols, 31 N.J. 188, 201 (1959)). Thus, "[t]he standard of care is the conduct of the reasonable man of ordinary prudence under the circumstances." Ambrose v.Cyphers, 29 N.J. 138, 144 (1959).

"When negligent conduct creates . . . a risk [of harm], setting off foreseeable consequences that lead to [a] plaintiff's injury, the conduct is deemed the proximate cause of the injury." Kelly, supra, 96 N.J. at 543. Generally, a person will be liable if his or her negligent conduct was a substantial factor in bringing about the plaintiff's injuries. Ibid. (citing Rappaport, supra, 31 N.J. at 203).

Quality maintains that the trial court should have instructed the jury that it is not liable if the dangerous condition on the sidewalk was obvious to Richards. In support of this argument, Quality relies upon Jimenez v. Maisch, 329 N.J.Super. 398 (App. Div. 2000).

In Jimenez, a postal employee was hurt when he fell on the walkway or driveway of a private residence while delivering mail following a severe snow storm. Id. at 399. The trial court granted summary judgment to the defendant on the ground that he "had no duty to make the premises reasonably safe for [the] plaintiff as an invitee." Ibid. We affirmed, noting that "[u]pwards of thirty inches of snow had fallen" during the storm, a state of emergency had been declared, and the accident occurred after postal service resumed following a several-day hiatus. Id. at 400.

We also noted that one half of "the houses in defendant's neighborhood had walkways and driveways that were completely shoveled, one-quarter were partially shoveled and one-quarter, including defendant's, were not shoveled at all." Ibid. We stated that, under these circumstances, the defendant did not have a duty to clear the ice and snow from his driveway and/or walkway. Id. at 403-04.

In our view, Quality's reliance upon Jimenez is misplaced. That case concerned the duty owed by a residential property owner to a business invitee. Id. at 402-03. This case concerns the duty that a commercial lessee owes to a member of the public to maintain a sidewalk. Moreover, the facts presented in Jimenez are significantly different from those presented in this case. While snow had fallen some time before Richards's accident, the storm was not comparable to the storm involved in Jimenez.

Quality further argues that the jury's determination that Richards was not negligent was against the weight of the evidence. Quality contends that Richards elected to walk on a sidewalk he knew was covered with snow, instead of taking a more direct route on a path clear of snow. According to Quality, "[t]his is powerful evidence of comparative negligence[.]"

A trial court may not set aside a jury verdict unless it "clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Substantially the same standard applies when we review a trial court's decision on a motion for a new trial. R. 2:10-1; Romano v.Galaxy Toyota, 399 N.J. Super. 470, 477-78 (App. Div. 2008). However, we must also give due deference to the trial court's ruling because the trial court has the "feel of the case" and is better able to assess the credibility of the witnesses. Ibid. (citing Caldwellv. Haynes, 136 N.J. 422, 432 (1994)).

In this case, Richards testified that he had walked without any difficulty on the snow-covered sidewalk near his home. He stated that he was not aware of the ice beneath the snow on the sidewalk where he fell. The jury was entitled to credit Richards's testimony and conclude that a reasonably prudent person would not have recognized and foreseen an unreasonable risk or likelihood of harm in walking through snow on the sidewalk adjacent to Quality's shop. We are therefore satisfied that the jury's verdict was not against the weight of the evidence.

IV.

Quality additionally argues that Richards presented insufficient evidence to support his claim for lost income. They argue that the claim was not supported by any documentary evidence and was based entirely on Richards' self-serving statements.

An injured plaintiff is entitled "to be compensated for diminished earning capacity." Caldwell, supra, 136 N.J. at 433 (citing Smith v. RedTop Taxicab Corp., 111 N.J.L. 439, 443 (E. & A. 1933)). Such damages are based on the wages the plaintiff lost and "include[] the value of the decrease in the plaintiff's future earning capacity." Ibid. (citing Collv. Sherry, 29 N.J. 166, 176 (1959)). The "measure of damages for lost income in personal-injury cases is net income after taxes." Id. at 434 (quoting Ruffv. Weintraub, 105 N.J. 233, 238 (1987)).

A plaintiff seeking damages for lost income must present evidence "showing there is a reasonable probability that his injuries will impair his future earning capacity[.]" Coll, supra, 29 N.J. at 176. The plaintiff also must present sufficient factual evidence from "which the quantum of diminishment can reasonably be determined[.]" Ibid.

Here, Dr. Magariotis testified that, as a result of his fall, Richards was permanently disabled for full-time work. Thus, there was evidence that the injuries have impaired Richards' earning capacity. In addition, Richards and Patricia testified that, before he sustained the injuries, Richards had been earning approximately $800 or $900 per week. In addition, plaintiffs' economic expert, Kristen Kucsma (Kucsma), testified that Richards told her that his income as a painter was sixteen dollars an hour. Kucsma based her calculation of Richards' past and future wage losses on that information.

Quality argues that the court erred by permitting the jury to consider Richards's claims for lost past and future wages. Quality notes that Richards filed a federal tax return for the 2006 tax year in which he reported adjusted gross income of $3130. Plaintiffs filed a joint federal tax return for the 2007 tax year in which they reported wages of $13,118. Moreover, Patricia filed a federal tax return for the 2008 tax year in which she reported wages of $14,246. It appears that Richards apparently did not file a tax return that year.

Quality additionally notes that, at trial, Richards and Patricia testified that Richards worked as a painter from the end of 2006 through 2007, but was "paid under the table." They conceded that they did not report that income on federal or state tax returns or to the Social Security Administration (SSA). Quality therefore maintains that there was insufficient factual support for Kucsma's opinion that plaintiff could earn about sixteen dollars a day, plus overtime.

We note, however, that Quality did not object to Richards' or Patricia's testimony on this issue, and it did not seek to bar Kucsma from testifying on the ground that there was insufficient factual support for her opinion. Although Quality argued in its motion for a new trial that the award of damages for past and future lost earnings was not supported by sufficient evidence, the trial court correctly determined that the award did not represent a miscarriage of justice under the law. R. 4:49-1(a).

Richards and Patricia testified as to his earnings as a painter, and Kucsma was entitled to rely upon that information in rendering her opinion as to his past and future lost income. While Richards' earnings were not reported for tax purposes or to the SSA, the jury was entitled to consider that fact in determining whether to credit their testimony and the testimony of their expert. In short, there was sufficient evidence to support the award of damages for lost income and the jury's verdict on that issue was not a miscarriage of justice under the law.

We note, however, that in their testimony, Richards and Patricia candidly admitted that he had earned income which was not reported for tax purposes. If the trial court has not already done so, it should consider whether it is obligated to inform the appropriate taxing authorities and the SSA of this apparent violation of law. See Sheridan v. Sheridan, 247 N.J.Super. 552, 566 (Ch. Div. 1990).

In summary, we affirm the jury's finding that Richards was not negligent and its award of damages to plaintiffs. We reverse the judgment to the extent it imposes all liability upon Quality, and remand the matter to the trial court for a new trial which shall be limited to the issue of the percentage of responsibility, if any, that should be allocated to J&C.

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.