FRICTIANA PEREZ VS. ANALIS FERNANDEZ(L-2057-12, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3004-14T1

FRICTIANA PEREZ, and her
husband, PASCUAL PEREZ,

Plaintiffs-Appellants,

v.

ANALIS FERNANDEZ, ESPERANZA
FERNANDEZ, and JUANA FERNANDEZ,

Defendants-Respondents.
_______________________________

Submitted September 13, 2016 – Decided June 21, 2017

Before Judges Kennedy and Gilson.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
No. L-2057-12.

Spevack Law Offices, P.A., attorneys for
appellants (Howard H. Sims, on the brief).

Zirulnik, Sherlock & DeMille, attorneys for
respondent Analis Fernandez (Elizabeth R.
Brennan, of counsel; Ellen G. Bertman, on the
brief).

Leary Bride Tinker & Moran, P.C., attorneys
for respondents Esperanza Fernandez and Juana
Fernandez (Wendy A. Reek, on the brief).

PER CURIAM
 Plaintiff Frictiana Perez (Frictiana) broke her wrist when

she tripped and fell on a sidewalk adjacent to a three-family home

owned by defendant Analis Fernandez and partially occupied and

managed by Analis' parents, defendants Esperanza and Juana

Fernandez.1 Plaintiffs, Frictiana and her husband, appeal from

orders granting summary judgment to defendants and denying their

motion for reconsideration. We affirm because without an expert,

plaintiffs could not prove liability since they could not establish

how long the alleged defect in the sidewalk existed and who was

responsible for the defect.

I.

On September 7, 2010, Frictiana tripped on a sidewalk that

ran adjacent to property owned by defendant Analis Fernandez. The

property contained a three-family home, and Analis' parents,

defendants Esperanza and Juana Fernandez, occupied one of the

homes and managed the other two homes. Moreover, the parents had

previously owned the three-family home and had sold it to Analis.

Analis does not reside at the property.

Plaintiffs filed a complaint in March 2012, claiming that

defendants negligently built or maintained the sidewalk.

Defendants initially failed to respond to the complaint and

1
Defendant-Respondent Juana Fernandez was incorrectly designated
as "Joana Fernandez."

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plaintiffs obtained a default. Thereafter, the default was vacated

and the parties engaged in discovery.

At her deposition, Frictiana testified that she was walking

on the sidewalk next to defendants' property when she tripped and

fell. She explained that she did not see what caused her to trip

until she fell and then, while lying on the ground, she saw that

the sidewalk was "raised." Frictiana was alone when she fell and,

thus, there were no other eyewitnesses.

After Frictiana fell, her husband, Pascual Perez (Pascual),

found her while she was still lying on the sidewalk. Pascual

testified that he did not know what caused Frictiana to fall.

Pascual also testified that there was construction activity taking

place on the street next to the sidewalk where his wife fell.

During discovery, plaintiffs produced photographs of the sidewalk.

Those photographs showed that there was a raised slab in the area

of the sidewalk where Frictiana fell.

All three defendants testified that they were not aware of

any problem with the sidewalk before Frictiana fell. Defendant

Esperanza Fernandez further explained that, years prior to

Frictiana's fall, in 2001, he requested the City of Perth Amboy

to cut down a tree because it was damaging the roof of his home

and the roots were damaging the sidewalk. He also testified that

once the tree was cut down, he was not aware of any problem with

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the sidewalk. He went on to testify that after Frictiana fell,

he hired someone to fix a portion of the sidewalk and that person

pointed out that the slab Frictiana tripped on should also be

repaired.

Plaintiffs retained a liability-engineering expert. The

expert prepared two reports. One report opined that the sidewalk

was in an unsafe condition because of construction in the street

adjacent to the sidewalk, and thus, the construction contractor

was responsible for the displacement in the sidewalk. The other

report opined that the sidewalk was displaced and that the

homeowners were responsible for failure to maintain the sidewalk.

During discovery, plaintiffs served the first expert report,

identifying the construction contractor as the responsible party.

Plaintiffs maintain that the first expert report was served by

mistake. After the close of discovery, plaintiffs served the

second expert report, identifying defendants as the responsible

parties. Defendants moved to suppress the report and that motion

was granted. Thereafter, plaintiffs announced that they would

proceed to trial without an expert.

Defendants subsequently moved for summary judgment.

Defendants contended that plaintiffs could not establish

negligence without an expert because plaintiffs could not show how

and when the sidewalk had been damaged. Thus, defendants argued

4 A-3004-14T1
that plaintiffs could not prove that they caused or knew of the

defect in the sidewalk before Frictiana tripped and fell.

The motion judge heard oral argument and granted summary

judgment to all three defendants. The judge reasoned that an

expert was needed to testify that a dangerous condition existed

with the sidewalk and that defendants should have known of that

condition. The motion judge also reasoned that plaintiffs had

produced one expert report that opined that the construction

contractor caused the sidewalk to settle. Although the judge was

aware that plaintiffs were no longer relying on that expert or the

expert report, he reasoned that defendants could call the expert

to testify. Moreover, the judge reasoned that even if the expert

was not called, there was other evidence showing that there was

construction activity. Ultimately, the motion judge reasoned that

there was nothing in the record to establish how long the alleged

damage to the sidewalk existed, and thus, plaintiffs could not

show that defendants should have known of the alleged dangerous

condition. On December 19, 2014, the judge entered orders granting

summary judgment to defendants.

Plaintiffs moved for reconsideration. The court heard oral

argument on that motion and denied it in an order entered on

February 20, 2015. Plaintiffs now appeal from the orders granting

5 A-3004-14T1
summary judgment to defendants and the order denying the motion

for reconsideration.

II.

On appeal, plaintiffs make three arguments: (1) the trial

court improperly considered the expert report and violated

plaintiffs' due process because plaintiffs were no longer relying

on that expert; (2) the evidence, including photographic evidence,

was sufficient to create a genuine issue of material fact requiring

submission of the matter to a jury; and (3) the trial court erred

in denying the motion for reconsideration.

In reviewing a summary judgment order, we use a de novo

standard of review and apply the same standard employed by the

trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

405 (2014). Accordingly, we determine whether the moving party

has demonstrated there were no genuine disputes as to material

facts and, if so, whether the facts, viewed in the light most

favorable to the non-moving party, entitle the moving party to a

judgment as a matter of law. Id. at 405-06; Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46.

Plaintiffs claimed that defendants were negligent in building

or maintaining the sidewalk. "[A] negligence cause of action

requires the establishment of four elements: (1) a duty of care,

(2) a breach of that duty, (3) actual and proximate causation, and

6 A-3004-14T1
(4) damages." Davis, supra, 219 N.J. at 406 (alteration in

original) (quoting Jersey Cent. Power & Light Co. v. Melcar Util.

Co., 212 N.J. 576, 594 (2013)). Plaintiff bears "the burden of

establishing those elements 'by some competent proof.'" Townsend

v. Pierre, 221 N.J. 36, 51 (2015) (quoting Davis, supra, 219 N.J.

at 406). Simply showing the occurrence of an incident causing the

injury sued upon is not sufficient to support a finding of an

incident of negligence. Long v. Landy, 35 N.J. 44, 54 (1961).

"Negligence is a fact which must be shown and which will not be

presumed." Ibid. "In an ordinary negligence case, the plaintiff

bears the burden of showing the unreasonableness of the defendant's

conduct (in other words, the defendant's breach of a duty owed)."

Feldman v. Lederle Labs., 132 N.J. 339, 349-50 (1993).

Here, plaintiffs needed to show that defendants had breached

their duty owed to those walking on the sidewalk abutting their

property. In that regard, "commercial property owners would be

'liable for injuries on the sidewalks abutting their property that

are caused by their negligent failure to maintain the sidewalk in

reasonably good condition.'" Qian v. Toll Bros. Inc., 223 N.J.

124, 135 (2015) (quoting Stewart v. 104 Wallace Street, Inc., 87

N.J. 146, 150 (1981)). The duty of commercial property owners is

limited, however. "[T]hey are merely required to take reasonable

care to prevent foreseeable harm." Vega by Muniz v. Piedilato,

7 A-3004-14T1
154 N.J. 496, 522 (1998) (Handler, J., concurring). Accordingly,

an injured plaintiff must prove that defendants had actual or

constructive knowledge of the dangerous condition that caused the

injury. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291

(1984).2

Defendants all testified that they were not aware of the

raised slab on which Frictiana fell. Thus, plaintiffs needed some

evidence showing that defendants should have known of the problem

with the slab. To make such a showing, plaintiffs needed evidence

of how the slab was damaged and how long the slab was damaged. In

the absence of expert testimony, there was no competent evidence

to show defendants were negligent.

Plaintiffs first argue that the trial court improperly

considered an expert report upon which they were no longer relying.

Our review of the record establishes that the court did not

improperly consider the expert report. The expert report was

produced in discovery and was submitted to the court as part of

2
We assume for this analysis that defendant Analis owned a
commercial property and thus had a duty to maintain the sidewalk
abutting her property. See Wilson v. Jacobs, 334 N.J. Super.
640, 642-43 (App. Div. 2000) (holding that non-owner occupied
house entirely rented to tenants was 'commercial' notwithstanding
that tenant was family member); see also Luchejko v. City of
Hoboken, 207 N.J. 191, 206 n. 5 (2011) (noting that residential
property can be considered commercial, depending on how the
property is used).

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the papers for consideration on the motions for summary judgment.

The trial court did not rely on the expert report. To the contrary,

the trial court made the point that without an expert report,

plaintiffs could not establish that defendants should have known

of the alleged damage to the sidewalk with sufficient time to

repair the damage. In that regard, the court pointed out that

with or without considering the expert report, there was evidence

indicating that construction work was taking place on the street

next to the sidewalk. Consequently, defendants would be able to

argue that the construction may have caused the damage and there

was no proof as to when the damage was actually caused. Such a

consideration by the trial court did not violate any concept of

due process.

Next, plaintiffs argue that there was sufficient evidence in

the record, including photographic evidence, to create a genuine

issue of material fact. The photographs that plaintiffs rely on

show that a slab in the sidewalk was uneven. What that

photographic evidence could not show is when the slab became

uneven. In other words, without expert testimony, there was no

proof that defendants had sufficient time to become aware of the

slab and to repair it.

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 Having determined that summary judgment was properly granted,

plaintiffs cannot establish that the motion for reconsideration

was improperly denied.

Affirmed.

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