NOT FOR PUBLICATION WITHOUT THE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-4684-16T3
JAIDEV ANAND and RAGHBIRK
ANAND, h/w,
Plaintiffs-Appellants,
v.
THE CLUB III AT MATTIX FORGE
CONDOMINIUM ASSOCIATION, INC.,
Defendant-Respondent.
______________________________
Argued August 8, 2018 – Decided August 16, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-
1848-15.
John F. Hanahan argued the cause for
appellants (Rosenbaum & Associates, PC,
attorneys; John F. Hanahan, on the briefs).
Matthew L. Rachmiel argued the cause for
respondents (Methfessel & Werbel, attorneys;
Matthew L. Rachmiel and Jason D. Dominguez,
on the brief).
PER CURIAM
Plaintiffs Jaidev Anand and Raghbirk Anand1 appeal from a May
18, 2017 Law Division order granting the summary judgment dismissal
of their trip-and-fall premises liability action. Defendant, The
Club III at Mattix Forge Condominium Association (defendant or
Club), owns the condominium complex where plaintiffs reside and
the injury occurred. For the reasons that follow, we vacate and
remand.
I.
We discern the following facts from the record, viewing the
evidence in the light most favorable to plaintiffs, the non-moving
parties. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-
06 (2014). This case arises from an accident that occurred at
approximately 7:15 p.m. on November 6, 2014, when plaintiff tripped
over a concrete curb stop2 placed at the end of the walkway leading
from plaintiffs' condominium to defendant's parking lot.
Around 9:30 a.m. on the day of the accident, plaintiff left
his residence for work, and no curb stop was present at the end
of the walkway. Plaintiff and his handyman, Juan Diego Carresco,
1
In this opinion, we refer to Jaidev Anand individually as
plaintiff, and Jaidev Anand and Raghbirk Anand collectively as
plaintiffs. Raghbirk Anand sues per quod.
2
An employee of defendant described curb stops as, "bumpers [that]
are placed along the edge of . . . parking spaces to discourage
people from driving onto . . . front lawns . . . ."
2 A-4684-16T3
returned to the Club that evening around 7:00 p.m. Carresco parked
directly in front of the walkway to plaintiff's condominium. At
that point, it was dark and raining heavily, and neither plaintiff
nor Carresco recalled seeing any curb stop at the end of the
walkway. Plaintiff does not assert that the curb stop was not
there, but claims it was completely hidden under Carresco's car
as they exited the vehicle. About five to ten minutes later,
plaintiff asked Carresco to pick up his wife at a nearby store,
and Carresco obliged. Plaintiff remained at home.
After Carresco departed, plaintiff went outside to retrieve
his mail, and tripped over the now-present curb stop located where
the walkway met the parking lot. He recalled, "[T]here was not
enough light, because the light was covered with some kind of
branches." Carresco and plaintiff’s wife returned to find
plaintiff in the condominium injured and bleeding heavily from his
face. When plaintiff told them what happened, Carresco went
outside and confirmed that a piece of curb stop was at the end of
the walkway. Plaintiff recalled that the curb stop he tripped
over was "definitely an old one," and confirmed that it was not
part of either curb stop situated at the head of the assigned
parking spaces in front of his residence.
According to plaintiff, he later went to the hospital, where
doctors diagnosed him with "multiple fractures." He underwent
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facial surgery and remained in the hospital for several days. When
plaintiff and his wife returned home, the curb stop was no longer
present at the end of the walkway. However, plaintiffs noticed a
similar-looking curb stop located behind the electrical box of a
different unit. Plaintiff did not notify defendant of the accident
or the misplaced curb stop behind the electrical box before filing
suit.
The Club has two employees: Angela Ludwig, the property
manager, and Linda Stokes, who oversees maintenance. Ludwig hires
contractors to perform any additional work required at the complex.
Stokes patrols the property on Monday through Friday from 7:30
a.m. to 3:30 p.m. These patrols include collecting trash discarded
on the premises, and otherwise ensuring everything is in order.
All factual assertions about the condition of the curb stops
at the Club are undisputed. Plaintiff, who purchased the
condominium around thirty years ago, testified he had never seen
any other misplaced curb stops on the property, nor had he seen
any curb stops moved since they were installed around 1998; however
he does recall seeing a few curb stops tilted or lifted up. The
testimony of Stokes and Ludwig echo those observations and
indicates that occasionally trucks or snow plows will strike curb
stops, causing them to lift.
4 A-4684-16T3
According to Ludwig, on occasion she asks Stokes to make sure
rebar adequately secures the curb stops. If Stokes alerts her to
an unsecure or "loose" curb stop, Ludwig contacts a contractor to
secure it. According to Stokes, if she had seen a curb stop at
the end of plaintiff's walkway she would have placed warning cones
on either side of the hazard and alerted Ludwig, who would have
hired a contractor to address the problem. Both employees
testified they received no complaints about misplaced curb stops.
Plaintiffs provided a report from a professional engineer
regarding the conditions at the Club. His report discussed the
dangers of curb stops in general, a recommended standard that they
be painted a bright color, and codes requiring pathways to be free
from obstructions. He then opined the piece of curb stop that
caused plaintiff's injury only had one rebar location, making it
unstable, and defendant's inadequate inspection policy or
procedure was a contributing factor to plaintiff's accident.
Defendant then moved for summary judgment. Plaintiff opposed
the motion, arguing there were genuine issues of material fact as
to whether the Club had notice of the misplaced curb stop, and
whether defendant breached its duty to provide adequate lighting.
The motion judge granted summary judgment. He found
plaintiffs failed to establish when the misplacement of the curb
stop occurred, and therefore a reasonable juror could not
5 A-4684-16T3
reasonably find that the curb stop appeared before the end of
Stokes' shift at 3:30 p.m. The judge further found defendant had
constructive notice that growing tree branches could create a
lighting hazard, but concluded plaintiffs could not establish
proximate cause without testimony from a lighting expert.
II.
In reviewing a grant of summary judgment, we apply the same
standard under Rule 4:46-2(c) that governs the trial court. See
Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436,
445-46 (2007). We "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). To establish a prima facie case of
negligence, a plaintiff must set forth evidence that: (1) defendant
owed him or her a duty of care; (2) defendant breached that duty;
(3) defendant's breach of duty proximately caused plaintiff
damages; and (4) damages. D'Allessandro v. Hartzel, 422 N.J.
Super. 575, 579 (App. Div. 2011). Plaintiffs bear "the burden of
establishing those elements 'by some competent proof.'" Townsend
v. Pierre, 221 N.J. 36, 51 (2015) (quoting Davis, 219 N.J. at
406).
6 A-4684-16T3
A business proprietor "owes a duty of reasonable care to
those who enter the premises . . . to provide a reasonably safe
place to do that which is within the scope of the invitation."
Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982). "A proprietor
generally is not liable for injuries caused by defects of which
he [or she] had no actual or implied knowledge or notice, and no
reasonable opportunity to discover." Brown v. Racquet Club of
Bricktown, 95 N.J. 280, 291 (1984) (citation omitted). Further,
"[w]hether a reasonable opportunity to discover a defect existed
will depend on both the character and the duration of the defect."
Ibid.
III.
A.
On appeal, plaintiff first argues the trial court erred in
finding that no reasonable juror could find the Club had actual
or constructive knowledge of the misplaced curb stop. Plaintiff
maintains that whether the curb stop was moved before or after the
end of Stokes' patrol is a question properly left to the jury. We
disagree.
In the absence of direct proof, plaintiff must provide
circumstantial evidence that could lead to reasonable and
legitimate inferences, but mere speculation or loosely tied
together allegations will not suffice. See Lewin v. Ohrbach’s,
7 A-4684-16T3
Inc., 14 N.J. Super 193, 198 (App. Div. 1951). We have held that
where employee inspections are routine, they will suffice to
establish a timeline, absent contrary evidence. Arroyo v. Durling
Realty, LLC, 433 N.J. Super. 238, 243-44 (App. Div. 2013). In
Arroyo, a customer at a convenience store fell on a pre-paid phone
card located on the outside sidewalk. Id. at 241. The store
owner testified it was routine for employees ending their shift
to sweep outside, and a shift had just ended shortly before the
accident. Ibid. The motion judge granted summary judgment and
we affirmed, finding that actual or constructive notice could not
be established without competent evidence disproving the store
owner's testimony on procedure. Id. at 242-43. We also rejected
the opinion of the plaintiff's expert criticizing the store's
maintenance and inspection techniques because it was not "grounded
in identified objective standards." Id. at 244.
Here, the court properly found a reasonable juror could not
conclude from the facts at hand that defendant had actual or
constructive knowledge of the misplaced curb stop. Plaintiff has
not provided sufficient evidence to demonstrate that the misplaced
curb stop appeared before 3:30 p.m. Like the store owner in
Arroyo, defendant has established routine checks through Stokes'
daily patrols. Both Ludwig and Stokes testified that Stokes
patrols the property from 7:30 a.m. to 3:30 p.m., Monday through
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Friday. Plaintiff's accident occurred on a Thursday and therefore
one could reasonably assume Stokes patrolled the property during
those hours. Plaintiffs offer no competent proof in the record
to dispute defendant's assertion that Stokes had patrolled during
the day of the accident, only arguing that the main priority of
Stokes' patrols was picking up trash. Plaintiffs' argument lacks
persuasion. We therefore affirm the motion court's determination
that defendant did not have constructive notice of the misplaced
curb stop prior to plaintiff's accident.
B.
Plaintiffs further contend the trial court erred by rejecting
their claim of insufficient lighting, based on its conclusion
"that an average juror could not evaluate the lighting situation
without the testimony of an expert." On this point, we agree with
plaintiffs.
"The test of need of expert testimony is whether the matter
to be dealt with is so esoteric that jurors of common judgment and
experience cannot form a valid judgment as to whether the conduct
of the party was reasonable." Butler, 89 N.J. at 283 (citation
omitted). Whether an expert witness is required does not depend
on whether there are relevant codes or regulations, but whether
the situation warrants it. Scully v. Fitzgerald, 179 N.J. 114,
127 (2004) ("A jury does not need a fire expert to explain to it
9 A-4684-16T3
the dangers that might follow when a lit cigarette is thrown into
a pile of papers or other flammable material.").
In Webb v. Betta, 7 N.J. Super. 60 (App. Div. 1950), we
reversed the dismissal of the plaintiff's complaint on the basis
that she had not established the landlord's failure to illuminate
a staircase constituted negligent conduct that caused her injury.
Id. at 62. Specifically, the plaintiff testified she was
descending the staircase in darkness while holding the banister,
and misstepped. Id. at 61. Although the defendant did not dispute
that his failure to light the stairway was a statutory violation
and evidence supporting negligence, the judge found the
plaintiff's testimony had not established "any proximate causal
relation between the absence of the light and the fall." Id. at
61-62.
We rejected that ruling, finding it "fairly inferable" from
the circumstances that the defendant's failure to provide light
constituted negligence that proximately caused plaintiff to fall.
Id. at 62. We concluded, "the jury was entitled to draw
legitimate, probable inferences that [the plaintiff] misstepped
because she could not see the next step on account of the
darkness." Ibid. (internal quotation marks and citation omitted).
We further dismissed suggestions that the plaintiff might have
become dizzy or that her hand might have slipped off the rail,
10 A-4684-16T3
finding the record failed to support such happenings, and declining
to assign the plaintiff a burden to negate possibilities the
testimony did not suggest. Ibid.
Here, defendant argues an expert is required to testify to
the standard of care established in the outdoor lighting ordinance
of the Township of Galloway, the municipality where plaintiff's
accident occurred. We disagree. The Township of Galloway's
outdoor lighting code provides, "[s]treetlights shall be provided
at all road intersections, street curves and culs-de-sac as deemed
necessary by the approving authority for the protection of health,
safety and welfare." Galloway Twp., N.J., Outdoor Lighting
Ordinance § 233-17.2(E)(1) (2003). However, plaintiffs did not
assert a violation of any lighting code or statute. Plaintiffs
simply allege the lighting was inadequate on the evening of
plaintiff's accident because tree branches obstructed the light
in the area where plaintiff tripped and fell.
The record clearly shows defendant was aware of the potential
danger of tree branches obstructing street lights in its parking
lot, as the following exchange at Ludwig's deposition confirms:
Q: Do you as the Property Manager make any
attempts at maintaining the trees around
the light posts?
A: Yes.
Q: And what do you do about that?
11 A-4684-16T3
A: I call The Tree Man and he comes out and
cuts all the branches that are covering
all the lights.
. . . .
A: And it's also a safety issue, that's why
we do it.
Q: What do you mean by that?
A: In other words, when the lights are all
covered, and it gets kind of dark, then,
you know, especially at night, you can't
see and that's why we always have the
trees trimmed.
In this case, we conclude plaintiffs' claim that obstructive
foliage caused inadequate lighting constitutes a clear and
comprehensible claim that is not beyond the scope of the average
juror. Given that the judge correctly determined "the growth of
branches would have developed over sufficient time to have put
[d]efendant on constructive notice" as to the obstruction of light
due to tree growth, we conclude there remains a genuine issue of
material fact as to whether defendant breached its duty to provide
adequate lighting. Therefore, summary judgment on this issue was
not appropriate. We find the record sufficient to create an issue
of fact for the jury to resolve as to this issue.
Vacated and remanded. We do not retain jurisdiction.
12 A-4684-16T3
JAIDEV ANAND VS. THE CLUB III AT MATTIX FORGE CONDOMINIUM ASSOCIATION, INC. (L-1848-15, ATLANTIC COUNTY AND STATEWIDE)
Combined Opinion