GRACEURRACA v. ANGEL MONTANEZ

NOT FOR PUBLICATION WITHOUT THE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-1330-16T1

GRACE URRACA,

        Plaintiff-Appellant,

v.

ANGEL MONTANEZ and
JACQUELINE MONTANEZ,

        Defendants-Respondents,

and

CHRISTOS PAPAPETROU,
HELEN PAPAPETROU, KATHERINE
ZUCKERMAN, CITY OF LITTLE
FALLS and COUNTY OF PASSAIC,

        Defendants.

__________________________________

              Argued December 7, 2017 – Decided January 31, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Docket No.
              L-1195-15.

              Vincent A. Coletti argued the cause for
              appellant (Law Office of Gerard A. Nisivoccia,
              LLC, attorneys; Gerard A. Nisivoccia, on the
              brief).
            Harry D. Norton, Jr. argued the cause for
            respondents   (Norton,   Murphy,   Sheehy   &
            Corrubia, PC, attorneys; Harry D. Norton, Jr.
            and Jessica J. Centauro-Petrassi, on the
            brief).

PER CURIAM

     In this slip and fall action, plaintiff, Grace Urraca, appeals

from the Law Division's order granting summary judgment in favor

of defendants, Angel Montanez and Jaqueline Montanez, the owners

of the property where plaintiff fell. Plaintiff filed suit against

defendants after she fell when her foot became caught in a crack

between defendants' driveway and the sidewalk in front of their

house.    The motion judge granted defendants' summary judgment,

dismissing the complaint, after she found that there              was no

evidence that defendants created the crack by causing damage to

either the sidewalk or their driveway. On appeal, plaintiff argues

that the judge "applied the improper legal standard of care" to

her claim and failed to "articulate the legal standard being

applied     to   plaintiff's   status"   in   relation   to   defendants'

premises.    We affirm.

     The facts relating to plaintiff's fall, viewed in the light

most favorable to plaintiff, see Angland v. Mountain Creek Resort,

Inc., 
213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins.

Co. of Am., 
142 N.J. 520, 523 (1995)), are not in dispute.               On

April 15, 2013, plaintiff was walking past defendants' home, as

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she had every day when she went to and from work for at least the

previous four months.    According to plaintiff, on the day she fell

it was sunny and clear.      As she was walking, she saw a large hole

in the sidewalk outside defendants' home and attempted to avoid

stepping into it by walking on defendants' driveway.              Plaintiff

fell and sustained injuries when her left foot was caught in the

crack between the sidewalk and the driveway.

     The motion judge considered the parties' oral argument before

entering an order on October 20, 2016, granting the motion for the

reasons set forth in the judge's nine-page written statement of

her findings of fact and conclusions of law.           Citing to Stewart

v. 104 Wallace St., Inc., 
87 N.J. 146 (1981) and Nash v. Lerner,


157 N.J. 535 (1999), the motion judge concluded that, absent any

evidence that defendants' actions "caused or exacerbated" the

defective   condition   in   either   the   driveway   or   the   adjoining

sidewalk that surrounded the crack where plaintiff fell, they

could not be held liable.

     The judge also addressed plaintiff's argument that, as a

licensee on defendants' premises, defendants had a duty to warn

her of the danger created by the defect.        The judge cited to the

Court's opinion in Parks v. Rogers, 
176 N.J. 491 (2003) and

observed that because the defect was not latent, defendants did

not have any duty to warn the plaintiff about the crack, even if

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she were a licensee as compared to a trespasser, especially since

plaintiff was familiar with the area where she fell.

     This appeal followed.

     We review a trial court's order granting summary judgment de

novo, applying the same standard as the trial court.      Conley v.

Guerrero, 
228 N.J. 339, 346 (2017). Thus, we examine the competent

evidential materials submitted by the parties to identify whether

there are genuine issues of material fact and, if not, whether the

moving party is entitled to summary judgment as a matter of law.

Ibid.     When no issue of fact exists, and only a question of law

remains, we afford no special deference to the legal determinations

of the trial court.      Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 
140 N.J. 366, 378 (1995).    "Summary judgment should be

denied unless" the moving party's right to judgment is so clear

that there is "no room for controversy."    Akhtar v. JDN Props. at

Florham Park, LLC, 
439 N.J. Super. 391, 399 (App. Div. 2015)

(quoting Saldana v. DiMedio, 
275 N.J. Super. 488, 495 (App. Div.

1994)).    Because there is no genuine issue of material fact before

us, we review de novo the motion judge's conclusion that the

defendants were not liable to plaintiff.

     We conclude from our de novo review the motion judge correctly

determined that defendants were entitled to judgment as a matter



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of law.    We affirm substantially for the reasons expressed by the

judge in her cogent written decision.

       We find plaintiff's arguments to the contrary to be without

merit.    The judge correctly determined that a residential property

owner is generally immune from liability for accidents resulting

from naturally-caused conditions of public sidewalks abutting the

property, Luchejko v. City of Hoboken, 
207 N.J. 191, 195, 211

(2011), even if they were caused by the owners' use of their

driveway.    Id. at 204-05 (citing Nash, 
157 N.J. at 535 (adopting

dissent in Nash v. Lerner, 
311 N.J. Super. 183, 193-94 (App. Div.

1998))).

       The judge also considered and rejected plaintiff's argument

that   plaintiff   was    a   licensee     on    defendants'       property,   and

therefore they had a duty to warn plaintiff of the crack in their

driveway.     As the judge determined, the duty of care that a

landowner owes to third persons who are upon his property "is

generally    governed    by   the   status      of   the   third   person—guest,

invitee, or trespasser[.]"          Robinson v. Vivirito, 
217 N.J. 199,

209 (2014) (citing Monaco v. Hartz Mountain Corp., 
178 N.J. 401,

414-15 (2004)).     An owner has a duty to warn a licensee of a

dangerous condition that poses an unreasonable injury only when

it is known to the owner and not known to the licensee.                See Parks,


176 N.J. at 499; Hopkins v. Fox & Lazo Realtors, 
132 N.J. 426, 434

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(1993); see also Tighe v. Peterson, 
175 N.J. 240, 241 (2002) ("A

host's duty to a social guest includes an obligation to warn of a

known dangerous condition on the premises except when the guest

is aware of the condition or by reasonable use of the facilities

would observe it.")      As the judge found, the alleged defect in the

driveway was patent and observable by plaintiff on a regular basis

as she walked to and from work each day.          Regardless of whether

plaintiff was a trespasser or a licensee, see Hopkins 
132 N.J. at
 434, defendants did not breach any duty owed to her.

       Even if plaintiff did not fit into any of the "pre-determined

categories" of status that a person might fall into when entering

onto    the   property   of   another,   "under   all   the   surrounding

circumstances," there was no basis to find defendants liable for

plaintiff's injuries.      Rowe v. Mazel Thirty, LLC, 
209 N.J. 35, 44-

45 (2012) (quoting Hopkins, 
132 N.J. at 438).

       Affirmed.




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