DAWN SUSAN PINTIMALLI v. STAPLES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAWN SUSAN PINTIMALLI

and DOMINIC PINTIMALLI,

HER HUSBAND,

Plaintiffs-Appellants,

v.

STAPLES, INC., DEVELOPERS

DIVERSIFIED REALTY a/k/a

DDR CORP., and JDN

DEVELOPMENT CO., INC.,

Defendants-Respondents.

Before Judges Sapp-Peterson and Hoffman.

On appeal from State of New Jersey, Law Division, Mercer County, Docket No. L-1505-12.

Gregory J. Sullivan argued the cause for appellants (Hartsough Kenny Chase & Sullivan, attorneys; Mr. Sullivan, of counsel and on the brief).

F. Herbert Owens, III, argued the cause for respondents (Sweeney & Sheehan, P.C., attorneys; Mr. Owens, on the brief).

PER CURIAM

Plaintiffs, Dawn Pintimalli and her husband, Dominic Pintimalli,1 appeal from an October 25, 2013 order dismissing their slip-and-fall personal injury claim against defendants. Based on plaintiff's deposition testimony and photographs of the scene of the accident, the Law Division judge held that plaintiffs failed to raise an issue of material fact that an alleged parking lot defect was a proximate cause of plaintiff's fall. On that basis, we affirm.

The summary judgment record established the following facts, viewed most favorably to plaintiffs. On September 6, 2010, plaintiff went to the Hamilton Marketplace shopping center to shop at the Staples office supply store. On this date, plaintiff drove her Acura MDX sports utility vehicle into a parking space next to a curb-lined grass island. Plaintiff pulled her car directly into the parking space, which meant the passenger-side of her vehicle was closest to the island. After completing her shopping at Staples, plaintiff returned to her car, with the intention of opening the front passenger-side door and placing two bags of school supplies she had purchased on the front right passenger seat. The right side of plaintiff's vehicle was "[a] foot or two" from the curb. When plaintiff reached the right front passenger door, she stepped up onto the curb to have more room to open the door. After stepping up onto the curb and opening the door, plaintiff stepped down, twisted her right ankle, and fell to the ground with her packages, sustaining injury.

Plaintiff said that after her fall, "I started crying because I knew I couldn't get up. I called my husband. He told me to stay there, and he came immediately." On the day of her fall, plaintiff did not recall observing a storm drain grate in the vicinity of where she fell.

Following the accident, plaintiff's husband photographed the parking space where plaintiff fell. The photographs were taken from the location where the MDX was parked and depicted a depression within the approximate two-foot area located between the curb that ran along the end of the parking space and a storm drain grate located between the right-side of plaintiff's MDX and the curb. According to plaintiff's testimony, however, she did not step down in the area of the depression depicted in the photographs, which would have been adjacent to her front right tire wheel well. Instead, plaintiff testified she stepped down in the area of her front passenger-side door, which would have been several feet before the depressed area depicted in the photographs. Indeed, plaintiffs failed to provide any photographs depicting a defect in the area where plaintiff said she stepped down.

In reviewing a grant of summary judgment, we apply the same standard that governs the motion court under Rule 4:46-2(c). Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We must "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

"A negligence cause of action requires proof that a defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach." Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005). Issues of proximate cause are generally considered jury questions. Garrison v. Twp. of Middletown, 154 N.J. 282, 308 (1998) (Stein, J., concurring); Scafidi v. Seiler, 119 N.J. 93, 101 (1990).

Nevertheless, the issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence; the plaintiff must introduce evidence that affords a reasonable basis for the conclusion it is more likely than not the defendant's conduct was a cause in fact of the plaintiff's injury. See Davidson v. Slater, 189 N.J. 166, 187-88 (2007). Thus, courts may resolve the issue on whether proximate cause was established where reasonable minds could not differ. Id. 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 proximate 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"); Vega by Muniz v. Piedilato, 154 N.J. 496, 509 (1998) (summary judgment is appropriate where "no reasonable jury could find that the plaintiff's injuries [have been] proximately caused" by the defendant's conduct).

On the issue of proximate cause, we agree the motion record is insufficient to create a genuine issue of material fact, because, as the motion judge explained, "there [is] no connection of the dots in terms of proximate cause linking this alleged defect in any way to her fall[.]" Plaintiff testified she was uncertain as to most of the details relating to her fall; however, she clearly indicated she opened the right front passenger door and was in the process of placing her bags on the seat when she fell. Thus, plaintiff placed herself, at the time of her fall, several feet from the depression depicted in her husband's photographs.

The court correctly dismissed plaintiffs' claims based on an absence of proximate cause. Plaintiffs failed to produce any evidence that would afford a basis for concluding there was a connection between the area of depression depicted in the photographs and plaintiff's fall. Nor was there any evidence of a defect in the location of plaintiff's actual fall.

A court should not hesitate to grant a motion for summary judgment if the evidence "is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 540 (citation and internal quotation marks omitted). Because the motion record on the issue of notice was so one-sided, summary judgment was appropriately entered in favor of defendants.

Affirmed.

1 In this opinion, we refer to Dawn Pintimalli and Dominic Pintimalli collectively as "plaintiffs", and Dawn Pintimalli individually as "plaintiff."