MARIO BASILE v. LEISURE VILLAGE WEST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARIO BASILE,

Plaintiff-Appellant,

v.

LEISURE VILLAGE WEST, and

LEISURE VILLAGE WEST

ASSOCIATION, INC.,

Defendants-Respondents.

________________________________________________________________

September 29, 2016

Argued September 20, 2016 Decided

Before Judges Messano and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-776-13.

Robert Y. Cook argued the cause for appellant (Levinson Axelrod, P.A., attorneys; Mr. Cook, on the brief).

Anthony P. Pasquarelli argued the cause for respondents (Sweet Pasquarelli, P.C., attorneys; Mr. Pasquarelli and Matthew G. Minor, on the brief).

PER CURIAM

Plaintiff Mario Basile, the owner of a condominium, filed suit against Leisure Village West and Leisure Village West Association, Inc. (collectively, LVW) seeking compensation for the injury he suffered after he tripped over a tree stump in the common area of the community. He appeals from an order that granted summary judgment to LVW, dismissing all claims grounded in ordinary and gross negligence. We affirm.

We review the facts in the record "in a light most favorable to the non-moving party," to determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)); R. 4:46-2(c).

At approximately 7:50 p.m. on October 24, 2011, plaintiff was walking his dog on the grass behind his condominium, a common area that was poorly lit. Plaintiff tripped over the stump of a pine tree and fell, suffering serious injury to his hand, elbow and lower back.

Plaintiff was aware of the stump's presence. The tree had been cut down approximately four and one-half months earlier at his request. Thereafter, he and his wife complained to LVW and asked that the stump be removed because its continuing presence posed a hazard.

It is undisputed that LVW was responsible for the removal of the stump and had the capacity to do so. LVW had a stump grinder in its possession that would have ground the stump down to below the surface. Plaintiff was told his service order request was placed on a waiting list. Joe W. Schultz, the Community Manager for LVW, testified there was no automatic response time for stump removal requests, that the response time "varied depending upon the labor, material and availability."

Plaintiff presented the expert opinion of James A. Kennedy, P.E., who stated LVW "failed to properly maintain the subject general common area in accordance with local ordinances, accepted engineering practices, and state codes." Kennedy opined that LVW's failure "to exercise reasonable care for the safety of pedestrians and apply the relevant local and state codes, caused a significant hazard to be created and persist, thereby causing injury to" plaintiff.

Kennedy stated LVW failed to comply with the following

N.J.A.C. 5:10-6.4(a), a regulation governing Maintenance of Hotels and Multiple Dwellings, which requires that the exterior of the premises be kept free of hazards to the safety of persons utilizing the premises, and that the owner or operator "promptly remove[]" such hazards, which include stumps. N.J.A.C. 5:10-6.4(a)(1).

Property Maintenance Code of the Township of Manchester, Chapter 313: Property Maintenance, Article III: Remediation of Property, sections 313-11 and 313-12, which imposes a duty upon landowners to keep lands free of stumps. Township of Manchester, N.J., Ordinance 97-010 (June 26, 1997).

American National Standards for Construction and Demolition Operations 3.2.4 (Am. Nat'l Standards Inst. 2005) (ANSI standard), which requires areas designated for public pedestrian traffic to be "clearly delineated" and "maintained so that hazards that may cause slipping, tripping or falling are minimized."

Preston R. Quick, P.E., prepared a report on behalf of LVW. Quick opined that the presence of the stump in the grassy area did not create a hazardous condition and violated no known applicable code, standard or ordinance. He noted that LVW was not subject to the requirements of N.J.A.C. 5:10 because it was granted an exemption from the definition of multiple dwellings prior to 2011. Quick stated the Manchester ordinance cited by Kennedy did not take effect until one week before plaintiff's accident and opined it would be unreasonable to conclude LVW was required to remove all stumps on the property within one week of the ordinance's effective date. Finally, Quick stated the ANSI standard cited by Kennedy was not applicable because it pertained to pedestrian hazards at construction sites.

Next, we turn to the law applicable to plaintiff's claims against LVW. N.J.S.A. 2A:62A-13 states

a. Where the bylaws of a qualified common interest community specifically so provide, the association shall not be liable in any civil action brought by or on behalf of a unit owner to respond in damages as a result of bodily injury to the unit owner occurring on the premises of the qualified common interest community.

b. Nothing in this act shall be deemed to grant immunity to any association causing bodily injury to the unit owner on the premises of the qualified common interest community by its willful, wanton or grossly negligent act of commission or omission.

[(Emphasis added).]

Approximately ten years before plaintiff's injury, LVW owners approved an amendment to Article 1 of the Association's bylaws to provide

Article 1, SECTION 12. Tort Immunity. A civil action may be brought by or on behalf of a Unit Owner to respond in damages as a result of bodily injury to the Unit Owner occurring on the premises within the Leisure Village West Community. The Association shall, however, be immune from liability for bodily injury in such actions, unless a court of competent authority finds evidence of willful, wanton or grossly negligent acts or omissions by the Association.

[(Emphasis added).]

In granting summary judgment, the trial judge observed that, as a result of the amendment to the bylaws, plaintiff could not recover against LVW for ordinary negligence and could only recover for injury caused by gross negligence. He concluded that LVW's failure to remove the stump did not meet the applicable standard for gross negligence.

In his appeal, plaintiff argues that a genuine issue of fact exists that would permit a jury to find that LVW's failures amounted to gross negligence.1 We disagree.

Gross negligence "is commonly associated with egregious conduct and is used to describe 'the upper reaches of negligent conduct.'" Kain v. Gloucester City, 436 N.J. Super. 466, 482 (App. Div.) (internal citation omitted) (quoting Parks v. Pep Boys, 282 N.J. Super. 1, 17 n.6 (App. Div. 1995)), certif. denied, 220 N.J. 207 (2014). Although not requiring willful misconduct or recklessness, gross negligence is "something more than 'inattention' or 'mistaken judgment.'" Steinberg v. Sahara Sam's Oasis, LLC, ___ N.J. ___, ___ (2016) (slip op. at 37) (citation omitted).

In Steinberg, the Supreme Court explicitly adopted the definition of "gross negligence" contained in the New Jersey Civil Model Jury Charge: "Gross negligence . . . is more than ordinary negligence, but less than willful or intentional misconduct," Model Jury Charge (Civil) 5.12. Id. at ___ (slip op. at 37-38). The Court also noted that the model charge "conveys that gross negligence is an indifference to another by failing to exercise even scant care or by thoughtless disregard of the consequences that may follow from an act or omission. Id. at ___ (slip op. at 37).

Viewing the facts most favorably to plaintiff, the tree was cut down at his request approximately four and one-half months prior to his accident. During that time, the stump protruded six to eight inches above the grade in a grassy area which, although not a pedestrian walkway, was one of the designated areas for owners to walk their pets. We accept as true plaintiff's testimony that he asked LVW to remove the stump and that he was told his request was put on a waiting list of tasks to be performed.

As we have noted, defendants' expert disputes the assertion made by plaintiff's expert that LVW's inaction constituted a failure to comply with an applicable regulation, ordinance and ANSI standard. Even if plaintiff's expert were correct, that non-compliance would not alone support a finding of gross negligence. See Steinberg, supra, ___ N.J. at ___ (slip op. at 30-31). To withstand summary judgment, plaintiff's proofs had to permit a jury to conclude that LVW "failed to exercise slight care or diligence or demonstrated an extreme departure from the standard of reasonable care." Id. at ___ (slip op. at 43).

LVW did not entirely ignore plaintiff's request that the stump be removed; it placed the task on a list and delayed performing the task. While this delay might constitute a failure to exercise reasonable care, it does not equate with a failure to exercise even "slight care" or represent an "extreme departure from the standard of reasonable care." Ibid. Therefore, we agree with the trial judge that summary judgment was appropriate.

Affirmed.

1 He also contends a genuine issue of fact exists as to whether the amendment to the bylaws was valid because LVW failed to produce the sheet reflecting the vote authorizing the amendment until arbitration and only produced a vote sheet that was uncertified and unsigned at that time. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).