JANE ECCLESTON v. MEYER GOLD

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-0055-17T2

JANE ECCLESTON,

          Plaintiff-Appellant,

v.

MEYER GOLD and NATHAN
HABER, as partners trading as
GOLD ENTERPRISES, a
partnership of the State of New
Jersey; GOLD ENTERPRISES,
a general partnership, organized
and existing under the laws of
New Jersey; SOUTHBROOK
GARDENS; SALEM
MANAGEMENT COMPANY;
GOLD HABER a/k/a HABER
GOLD and DEVELOPERS
FUNDING COMPANY,

     Defendants-Respondents.
________________________________

                   Argued November 7, 2018 – Decided December 17, 2018

                   Before Judges Fisher and Suter.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Ocean County, Docket No. L-1974-14.
            John T. Rihacek argued the cause for appellant (Pavliv
            & Rihacek, LLC, attorneys; John T. Rihacek, on the
            brief).

            Thomas J. Coffey argued the cause for respondents
            (Donnelly Minter & Kelly, LLC, attorneys; Patrick B.
            Minter, of counsel; Thomas J. Coffey, on the brief).

PER CURIAM

      Plaintiff Jane Eccleston appeals an order granting summary judgment that

dismissed her complaint against defendants Meyer Gold, Nathan Haber, Gold

Enterprises, Southbrook Gardens, Salem Management Company, Gold Haber

a/k/a Haber Gold, and Developers Funding Company for personal injury

damages arising from a slip and fall accident. She also appeals the denial of

reconsideration. Because defendants had no duty to plaintiff, we agree that

summary judgment was appropriately granted.

      We summarize and consider the factual record in a light most favorable to

plaintiff. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540

(1995).   Defendants own and manage Southbrook Gardens Apartments in

Eatontown. Plaintiff was a tenant on February 8, 2014. At about noon that day,

plaintiff walked out to her car parked along Southbrook Drive. It had snowed a

few days earlier. Plaintiff crossed over the grass strip between the sidewalk and

the street where her car was parked, using a path through the snow made by a


                                                                          A-0055-17T2
                                        2
neighbor. This was the shortest distance between plaintiff's apartment and her

car. She came back home at eight p.m., parking in the same spot. She used the

same path to return to her apartment, noticing this time that it was slippery.

About forty-five minutes later, she walked out to her car to obtain her owner's

manual and used the same path, which still was slippery. Plaintiff claimed she

slipped and fell on the path when returning to her apartment, suffering injuries.

She reported the accident two days later to the apartment's leasing agent.

      Plaintiff filed a complaint in June 2014 seeking compensation for personal

injuries sustained in the fall. She alleged defendants failed to inspect, repair or

maintain the property for the presence of ice and snow. The complaint also

alleged defendants violated "[N.J.A.C.] 5:10-1.1 et seq."

      During discovery, plaintiff's engineering expert said the accident site was

in a hazardous condition when plaintiff slipped.        He alleged the property

maintenance code for Eatontown and regulations for maintenance of hotels and

multiple dwellings required snow and ice to be cleared from sidewalks,

walkways and stairways to allow tenants safe access to parking areas, but he

acknowledged the path used by plaintiff was not one of these.

       Defendants filed a motion for summary judgment. Plaintiff opposed,

alleging she had to use the path "as the intersecting corners of the complex's


                                                                           A-0055-17T2
                                        3
roads were low areas that had iced over." She claimed a nearby intersection was

icy although she did not walk over to check it. Plaintiff alleged the ice formation

at the intersection was due to "poor water runoff control where the apartment

complex's roads meet."

      The trial court granted summary judgment to defendants. In its written

opinion, the court found defendants were "not negligent in either their actions

or omissions relating to the maintenance of the cleared path through the snow

and on the grass." The court rejected plaintiff's argument about the lack of

handicapped parking under  N.J.S.A. 55:13A-7.3 as "irrelevant" because plaintiff

did not make this claim in her complaint or answers to discovery. The court

found the path was not "created or maintained" by defendants. It was "an

obvious and known dangerous condition apparent to plaintiff." The court held

that defendants owed no duty of care to plaintiff because "she knew the path was

created by her neighbor and the footing was slippery even on the date of the

accident." Her argument that using the path was safer was not supported. Based

on the lack of duty, defendants' argument that plaintiff's expert report constituted

a net opinion was moot.

      Plaintiff's motion for reconsideration was denied because she "[could not]

overcome the case law which clearly state[d] the [d]efendants (landowners) did


                                                                            A-0055-17T2
                                         4
not owe [p]laintiff (as business invitee) a duty of care if [p]laintiff already knew

of the known dangerous condition." Plaintiff never disputed that she knew a

neighbor shoveled the path nor that it was slippery when she used it before her

fall.

        On appeal, plaintiff argues there was no safe access to her car and the path

provided the "only reasonable and logical alternative route . . . to avoid the

hazardous iced over sidewalk corners that could not be safely traversed." She

claimed defendants' maintenance personnel were on notice of the iced over

sidewalk corners because in the past they would shovel out paths in the snow

banks to avoid the iced over areas; they could have salted the areas, used

cardboard to prevent "freeze over and . . . traction" or sand for "foot traction."

        Plaintiff claims defendants violated  N.J.S.A. 55:13A-7.3 of the Hotel and

Multiple Dwelling Law by not providing handicapped parking for her close to

her apartment or a safe place to park. She claims she should not have to use the

sidewalk to the "corner of the apartment block" to then walk out in the open

street to access her car.

        We review a court's grant of summary judgment de novo, applying the

same standard as the trial court. Conley v. Guerrero,  228 N.J. 339, 346 (2017).

Summary judgment must be granted if "the pleadings, depositions, answers to


                                                                            A-0055-17T2
                                          5
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." Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,  224 N.J. 189,

199 (2016) (quoting R. 4:46-2(c)).

      The landlord of a multi-family premises has a duty to maintain all parts of

the premises in good repair and in a safe condition.          Dwyer v. Skyline

Apartments, Inc.,  123 N.J. Super. 48, 51 (App. Div. 1973). The duty is to

"exercise reasonable care." Id. at 52. A landlord owes a duty "to exercise

reasonable care to guard against foreseeable dangers arising from use of those

portions of the rental property over which the landlord retains control." Scully

v. Fitzgerald,  179 N.J. 114, 121-22 (2004). In Stewart v. 104 Wallace St., Inc.,

 87 N.J. 146, 160 n.7 (1981), the Court indicated that an apartment building is

"commercial" for purposes of the duty to maintain abutting sidewalks.

      A landowner's duty to a business invitee is to "'conduct a reasonable

inspection to discover latent dangerous conditions' as well as 'to guard against

any dangerous conditions . . . that the owner either knows about or should have

discovered.'"   Parks v. Rogers,  176 N.J. 491, 497-98 n.3 (2003) (quoting

Hopkins v. Fox & Lazo Realtors,  132 N.J. 426, 434 (1993)). "[F]oreseeability


                                                                          A-0055-17T2
                                        6
is one constant that plays a significant role in fixing a landowner's duty[.]" Vega

by Muniz v. Piedilato,  154 N.J. 496, 501 (1998).

      Generally, there is no duty by a landowner to warn of a known dangerous

condition of property of which "the guest is aware . . . or by reasonable use of

the facilities would observe it." Tighe v. Peterson,  175 N.J. 240, 241 (2002)

(social guest, aware of the depth, dove into the shallow end of the pool); Vega,

 154 N.J. at 509 (trespasser jumping over an open air shaft); Mathews v. Univ.

Loft Co.,  387 N.J. Super. 349, 356 (App. Div. 2006) (in products liability action,

danger of falling from a loft bed was a risk that was "open and obvious"). The

obligation to make a condition safe or give reasonable warning "ordinarily does

not exist where the invitee knows of the condition and realizes the risk."

Pearlstein v Leeds,  52 N.J. Super. 450, 459 (App. Div. 1958). In Sussman v.

Mermer,  373 N.J. Super. 501, 505 (App. Div. 2004), we noted that "if 'the guest

is aware of the dangerous condition or by a reasonable use of his faculties would

observe it, the host is not liable' because of the guest's failure to use due care."

Ibid. (quoting Berger v. Shapiro,  30 N.J. 89, 99 (1959)). However, there are

exceptions to this rule, "as in the case of icy steps or an otherwise dangerous

surface which of necessity has to be traversed as the only reasonable means of




                                                                            A-0055-17T2
                                         7
essential passage." Pearlstein,  52 N.J. Super. at 459; see W. Prosser, Handbook

of the Law of Torts § 61 at 394-95 (4th ed. 1971).

      Plaintiff was well aware that the path was slippery. She admitted it was

slippery at eight p.m. when she returned to her apartment and then forty-five

minutes later when she went back out to her car. Defendants did not create the

path. They did not require her to use this path to her car or to park in this

location. Plaintiff did not explore any other options once she knew this path

was slippery. She apparently did not move her car to another area that could

have been safer, even if the nearest intersection was icy. Plaintiff acknowledged

that the sidewalks were clear of snow.

      The cases cited by plaintiff are distinguishable.         In Williams v.

Morristown Memorial Hosp.,  59 N.J. Super. 384, 391-92 (App. Div. 1960), a

plaintiff tripped and fell over a low wire fence he did not see that was there to

prevent people from crossing a grass strip. Here, plaintiff was well aware of the

slippery condition before her fall.

      In Bedell v. St. Joseph's Carpenter,  367 N.J. Super. 515 (App. Div. 2004)

we held that a commercial landowner could have liability for "injuries sustained

by a pedestrian on the grass strip between the sidewalk and curb in front of its

building" because visitors had to cross the grassy strip, it was dark and there


                                                                         A-0055-17T2
                                         8
was no street lighting. However, in Chimiente v. Adam Corp.,  221 N.J. Super.
 580 (App. Div. 1987), a shopping center was not liable to a plaintiff injured on

a dirt path used by pedestrians when the store provided other ways to access its

parking lot safely. Because it was not reasonably foreseeable that plaintiff

would repeatedly use the slippery path without considering other alternatives for

her safety, and because defendants did not require her to use this path or park in

this location, we agree with the trial judge that defendants did not have a duty

to plaintiff and that summary judgment was appropriate.

      Plaintiff alleges the trial court did not consider  N.J.S.A. 55:13A-7.3

before it dismissed her case. That statute provides that an owner of a multiple

dwelling, which provides parking to the occupants, "shall provide parking

spaces for occupants who have physical disabilities located at the closest

possible proximity to the principal accesses of the multiple dwelling." She

alleged defendants did not provide her a parking space near to her apartment

even though she had a disabled parking permit from the Motor Vehicle

Commission and walked using a cane. Plaintiff did not reference  N.J.S.A.

55:13A-7.3 in her complaint although she did reference N.J.A.C. 5:10-1.1

generally, which are the regulations for the maintenance of hotels and multiple

dwellings. She also raised the parking spot issue in opposition to defendants'


                                                                          A-0055-17T2
                                        9
motion for summary judgment. 1 However, plaintiff never made clear where the

parking spot should have been that would have allowed her access to her

residence, or that she had to park where she did because of the absence of a

handicapped parking spot.

      Affirmed.




 1 N.J.A.C. 5:10-24.4(a) mirrors the statutory requirement set forth in  N.J.S.A.
55:13A-7.3.
                                                                       A-0055-17T2
                                     10