SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued October 20, 2003 -- Decided February 9, 2004
Long, J., writing for a majority of the Court.
This appeal considers the liability of a commercial landowner in a case in which a traffic sign, situated on the landowner's sidewalk, became dislodged and caused injury to an invitee.
On April 18, 1996, plaintiff was employed by the Newark Board of
Education, which was a tenant in a building owned by defendant Hartz Mountain
Corp. As plaintiff exited the building, a gust of wind dislodged a municipal
parking sign that was installed on Hartz's sidewalk. The sign became airborne and
struck plaintiff on the side of his head, causing injury. Plaintiff filed suit
against Hartz and the City for damages arising from the injuries.
Hartz and the City moved for summary judgment. Hartz argued that it had
no legal duty with respect to the sign and the City argued that
it was not on notice of a dangerous condition. Plaintiff's expert concluded that
the street was a virtual wind tunnel heavily trafficked by large trucks that
in the past had knocked down nearby signs causing repairs to be made
by the City. Because this sign was embedded in concrete, the expert opined
that it could not be dislodged by wind unless it had been previously
damaged. The engineer also noted testimony by witnesses who claimed that the sign
had been in a damaged condition for an extended period of time and
testimony by the property manager for Hartz, who advised that he personally inspected
the sidewalks around the building several times a week. The expert opined that
a minimally competent inspection would have revealed the defect in the sign that
injured plaintiff and that building and signage codes placed responsibility for inspection and
maintenance of the sidewalk and sign on both Hartz and the City. The
deposition testimony of the Manager of the Division of Traffic and Signals of
Newark acknowledged that under the State Uniform Traffic Manual, the City is required
to maintain an inspection schedule for traffic signs and has the sole responsibility
for maintaining and repairing those signs because the City owns them. Due to
limited funds, however, he indicated that the City has a procedure to inspect
only stop signs. Other signs are not regularly inspected and the City relies
on reports from property owners.
The trial court granted the City's motion for summary judgment, concluding that
a jury could not find that the City had constructive notice of the
damaged sign. The court denied Hartz's motion for summary judgment, however, concluding that
Hartz owed plaintiff, an invitee, a duty to maintain its land in a
reasonably safe condition and either to notify the City to have the sign
repaired or to give warning to people who might actually be harmed.
The case against Hartz went to trial. Several witnesses testified that they had
observed damage to the sign prior to the accident. Plaintiff's expert testified that
the sign previously had been struck by a vehicle, causing damage to the
base of the sign where it was embedded in the concrete and looseness
between the pole and the concrete. He concluded that a minimally competent inspection
would have revealed the defect. Portions of Hartz's property manager's deposition were read
into the record, including that Hartz installed the sidewalk and was responsible for
its maintenance, and that he regularly inspected the sidewalks and signs. However, he
denied inspecting this sign.
At the close of plaintiff's case, Hartz moved for a directed verdict,
arguing that it had a duty with regard to the sidewalk, but not
with regard to a sign that was owned, maintained, installed and repaired by
the City. Hartz further asserted that it did not have notice that the
sign was defective. The trial court granted Hartz's motion for directed verdict, concluding
that the law does not impose on a landowner any duty to inspect
or notify another person about problems with a structure that the landowner does
not own or maintain and that is not within the landowner's control.
The Appellate Division affirmed, finding that Hartz had no legal duty with respect
to a traffic sign owned and installed by the City. The court reversed
the grant of summary judgment entered in favor of the City based on
what it viewed as a genuine issue of material fact regarding constructive notice.
HELD : A landowner owes a duty to its invitees to maintain its land
in a safe condition, to inspect, and to warn of hidden defects whether
within its power to correct or not.
1. In respect of plaintiff's claims against Hartz, the trial court erred in
ruling that Hartz had no legal duty with respect to a sign it
did not own. That issue was resolved in plaintiff's favor on Hartz's motion
for summary judgment. Because that ruling was the law of the case, a
court of equal jurisdiction had no right to "reverse" in the absence of
substantially different evidence at a subsequent trial, new controlling authority, or specific findings
regarding why the judgment was clearly erroneous. None of these conditions was satisfied.
(Pp. 15 – 16).
2. A motion for directed verdict must be denied if reasonable minds could
differ after accepting as true all the evidence that supports the party opposing
the motion and according that party all reasonable inferences. Here, Hartz is a
commercial landowner and plaintiff was an invitee injured on Hartz's property, which is
located on a street that is a virtual wind tunnel. The injury occurred
on a windy day when a parking sign installed and maintained by the
City flew out of a sidewalk installed and maintained by Hartz. That sign
was installed to advance the interests of Hartz and its tenants. Under relevant
ordinances, the sidewalk was the responsibility of Hartz. Prior to the accident, the
sidewalk beneath the sign was cracked. In the months prior to the accident,
witnesses noticed that the sign was damaged. Hartz's property manager acknowledged that he
personally inspected the area around the scene of the accident several times per
week. Plaintiff's expert testified that a minimally competent inspection would have revealed the
condition at the base of the sign, and he contended that even if
Hartz did not have the right to repair the sign, it had a
duty to inspect and notify the City of defects in it. (Pp. 16
– 18).
3. The principles governing a commercial landowner's liability require that the landowner exercise
reasonable care for an invitee's safety. That includes making reasonable inspections and taking
such steps as are necessary to correct or give warning of hazardous conditions
or defects actually known to the landowner. The landowner is liable to an
invitee for failing to correct or warn of defects that, by the exercise
of reasonable care, should have been discovered. In a long line of cases,
New Jersey courts have extended a commercial landowner's duty, when warranted by the
facts, to cases in which the landowner had no control over the dangerous
condition and the condition was not located on its property. Traditional jurisprudence clearly
recognizes that neither ownership nor control is the sole determinant of commercial landlord
liability when obvious danger to an invitee is implicated. (Pp. 18 – 22).
4. In Hopkins v. Fox & Lazo,
132 N.J. 426 (1993), this Court
addressed whether a real estate broker owed a duty of care to potential
buyers touring a house. The Court observed that whether a person owes a
duty of reasonable care toward another turns on whether the imposition of such
a duty satisfies an abiding sense of basic fairness under all of the
circumstances in light of considerations of public policy. Such an inquiry involves identifying,
weighing and balancing several factors, including the relationship of the parties, the nature
of the attendant risk, the opportunity and ability to exercise care, and the
public interest in the proposed solution. (Pp. 22 – 23).
5. Here, a reversal is in order regardless whether this Court applies the
classic commercial landowner liability standard or the more fluid Hopkins rule. Based on
the traditional standard, Hartz had a duty to exercise reasonable care for plaintiff's
safety, including making reasonable inspections of its own property and the abutting sidewalk
and taking such steps as were necessary to correct or give warning of
a hazardous condition. That duty existed whether the condition was or was not
within Hartz's power to control. The same result flows from the application of
the Hopkins standard. Hartz had the ability to, and indeed did, regularly inspect
its premises and the sidewalk it had installed. Very little additionally was required
of it: repair the sidewalk, give notice to the City of the damage,
or take some other action to warn or otherwise protect invitees from danger.
Hartz owed a legal duty to plaintiff. It was for the jury to
determine whether that duty was satisfied. (Pp. 23 – 25).
6. In respect of the City's arguments, the City acknowledged responsibility for the
sign and plaintiff submitted enough evidence to require a trial on the question
of whether the City knew or should have known of the dangerous condition.
At trial, if a jury finds that both the City and Hartz breached
a duty to plaintiff, it will be required to grapple with concepts of
concurrent negligence along with issues of proximate cause. (Pp. 25 – 26).
JUSTICE VERNIERO, concurring, joins in the Court's disposition in respect of the City
and Hartz. He clarifies, however, that a party's duty of care turns on
whether the imposition of the duty satisfies an abiding sense of basic fairness
in light of considerations of public policy. Justice Verniero believes that such fairness
would require that in certain circumstances a commercial landowner should be free of
legal responsibility, such as when a defective condition is far removed from the
party's control.
The Appellate Division's reversal of the grant of summary judgment to the City
of Newark is AFFIRMED and its affirmance of the directed verdict in favor
of Hartz is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in JUSTICE
LONG's opinion. JUSTICE VERNIERO filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-58/
59 September Term 2002
LUIGI MONACO and FRANCESCA MONACO, his wife,
Plaintiffs-Appellants
and Cross-Respondents,
v.
HARTZ MOUNTAIN CORPORATION,
Defendant-Respondent,
and
ABC CORP., DEF CORP. and
GHI CORP., (fictitious designations intended to designate unknown entities responsible for proper installation,
maintenance and repair of a certain sign and/or signpost),
Defendants,
and
CITY OF NEWARK,
Defendant and Cross-Appellant.
Argued October 20, 2003 – Decided February 9, 2004
On certification to the Superior Court, Appellate Division.
Alan D. Bell argued the cause for appellants/cross-respondents.
Jack T. Spinella argued the cause for respondent (Weiner Lesniak, attorneys; Mr. Spinella
and Therese M. Brady, on the brief).
LaShawn Y. Williams, Assistant Corporation Counsel, argued the cause for cross appellant (JoAnne
Y. Watson, Corporation Counsel, attorney).
Justice LONG delivered the opinion of the Court.
The primary issue in this appeal centers on the liability of a commercial
landowner in a case in which a traffic sign, situated on its sidewalk,
became dislodged and caused injury to the landowner’s invitee. The trial court and
the Appellate Division held that the commercial landowner had no “legal” duty with
respect to the sign that was owned and installed by the City of
Newark over which the landowner had no control. We hold that those decisions,
based solely on ownership and control, too narrowly conceived the obligations of a
commercial landowner. Applying well-settled principles, we are satisfied that a landowner owes a
duty to its invitees to maintain its land in a safe condition, to
inspect, and to warn of hidden defects whether within its power to correct
or not, and that it was for the jury to determine whether a
breach of that duty occurred.
I
The case arose as follows: on April 18, 1996, plaintiff Luigi Monaco was
employed by the Newark Board of Education, a tenant in a building at
2 Cedar Street in Newark, New Jersey, owned by defendant Hartz Mountain Corp.
As Monaco exited the building, a gust of wind dislodged a nearby municipal
parking sign (“Permit Parking Only”) installed on Hartz’s sidewalk. The sign became airborne
and injured Monaco and Frager Berry, another Board employee who was exiting behind
him.
Monaco and Berry (collectively, plaintiffs) filed a civil complaint against Hartz and the
City for damages arising from their injuries. Both Defendants moved for summary judgment,
Hartz arguing that it had no legal duty with respect to the sign
and both Hartz and Newark contending that they had no notice of a
dangerous condition.
The report of engineering expert Theodore Moss, based on the deposition testimony of the parties and witnesses, an inspection of the accident scene, City records and relevant building and signage codes See footnote 1 was presented in support of plaintiffs’ motion. Moss concluded that 2 Cedar Street is a virtual “wind tunnel,” surrounded by loading docks and heavily trafficked by large trucks that had in the past knocked down nearby signs while maneuvering into and out of the docks. According to Moss, City records revealed that repairs to traffic signs on Cedar Street had been performed by the City, thus placing the City on notice that signs on Cedar Street were subject to damage and required regular inspection.
Moss’s report further stated:
Street signs like the one in question are, or course, embedded into the concrete sidewalk and cannot be dislodged by the wind or fall over under normal circumstances. Such movement/failure directly and absolutely indicates that the sign/sign post had been previously damaged. In this case, available information indicates that the sign/sign post had been damaged by a vehicle and dislodged. Thereafter, the sign remained in a damaged/loosened condition for an extended period of time. Mr. Berry worked as a truck driver for the Newark Board of Education and indicates in his deposition that he regularly visited this area. He testifies that the sign and post had been bent and leaning and that the sign/sign post was “wiggling” very noticeably in the wind. He indicates that he and other truck drivers had noted and commented on the sign condition and the ongoing looseness for more than a month before this accident occurred.
In addition, Moss observed that:
The property manager for Hartz, Mr. Philip LaPlaca, maintains his office in the
building and confirms that Hartz is responsible for maintenance of all common areas
of the building, including the exterior sidewalk and premises. In fact, the sidewalk
in question and adjoining driveway/truck bay curb cut were installed by Hartz as
part of a 1990 building renovation. Mr. LaPlaca further acknowledges that Hartz is
responsible for the safety of people who enter and leave the building. Initially
he tells us that, in keeping with these responsibilities, he personally inspects the
area at least two or three times a week and indicates that this
inspection includes sidewalks and signs. We are further told that the area is
inspected daily by porters/maintenance personnel working for a cleaning and maintenance contractor employed
by Hartz.
[(citations omitted).]
Moss opined that a minimally competent inspection would have revealed the defect in
the sign that injured plaintiffs. He concluded that wind could not have been
the sole cause of the accident; rather, he stated that there must have
been structural damage to the sign, eventually leading to a loose base, and
finally, to the accident itself. Moss read the pertinent building and signage codes
to devolve responsibility for inspection and maintenance of the sidewalk and sign on
both Hartz and the City.
Robert Moore, the Chief of Operations, Traffic and Signals Division of Transportation for
the City of Newark, submitted a certification fully acknowledging responsibility for overseeing the
repair, maintenance, and proper operation of traffic signs and signals in the City.
He conceded that another sign on Cedar Street had been damaged and repaired
in 1995, but stated that there was no record of damage to the
sign that injured plaintiffs. Thus, he concluded that the City was not on
notice of the damaged condition of the sign on the day in question.
The City also cited to relevant Newark ordinances, that state:
Any person owning, leasing or occupying any house or other building, or vacant
lot, fronting on any street in the city shall, at his or their
charge and expense, well and sufficiently pave and maintain in good repair, in
accordance with this title and the regulations of the director, the sidewalk, including
the authorized installations thereon and therein, and the curb of the street in
front of such house, building or lot.
. . .
Upon failure of any owner, lessee or occupant to construct or maintain the
sidewalk and curb as provided for in section 22:3-1 of this chapter, the
director or his authorized representative shall serve, according to law, a notice, upon
such owner, lessee or occupant describing the property affected and the improvement or
repairs required, and stating the intention of the city to cause such improvement
or repairs to be made within 30 days after service of notice in
the event that such owner, lessee or occupant shall fail to do so.
. . .
If, after service of any notice as provided for in section 22:3-2 of
this chapter, the owner, lessee or occupant of any lands affected thereby shall
neglect to make improvement directed by such notice, the director shall cause such
improvement to be made and shall certify the cost of the same to
the director of finance, who shall impose, collect and enforce such sidewalk assessment
as is provided for by law.
[Newark, NJ., Rev. Ordinance 22:3-1 to -3 (1951)]
The City construed that ordinance to devolve upon Hartz the primary responsibility for
inspection and maintenance of the sidewalk and sign, presumably with secondary responsibility remaining
with the City.
The deposition testimony of Bahman Izadmehr, Manager of the Division of Traffic and
Signals of Newark, acknowledged that under the State Uniform Traffic Manual, the City
is required to maintain an inspection schedule for traffic signs. According to Izadmehr,
the City alone has the responsibility for maintaining and repairing traffic signs because
it “owns” the signs. He indicated, however, that due to limited funds, the
City only has an inspection procedure for stop signs. Other traffic signs are
not regularly inspected; instead, the City relies on reports from property owners of
any observed dangerous condition. City records revealed that other signs on Cedar Street
had been repaired and, according to Izadmehr, it is the City’s practice, when
a repair crew responds to a complaint regarding one sign, to inspect other
signs in the area.
According to the City, during the ten days prior to the accident, the
sign was able to withstand several thunderstorms and winds with peak gusts of
44, 37, 36, and 30 miles per hour, whereas the maximum peak gust
on April 18 was only 20 miles per hour. Thus, the City contended
that any defective condition must have occurred spontaneously and that it could not
be charged with constructive notice thereof.
The court granted the City’s motion, essentially concluding, on the facts presented, that
a jury could not find that the City had constructive notice of the
damaged sign. However, the court denied Hartz’s motion for summary judgment:
Here, a genuine material fact exists to deny the Hartz Mountain motion ---
Mr. Monaco is an invitee of Hartz Mountain, and under the current case
law Hartz owed him a duty to maintain [its] land in a reasonably
safe condition, and maintain the sign posted, and either repair or give notice
of any defective condition. I don’t think there’s any dispute but that Monaco
was an invitee.
In response to Hartz’s counsel’s interjection that it did not have the right
to repair the sign, the court went on:
I’m not saying they did. They have a right to either notify the
City of Newark to have it repaired, or give warning to people who
might be harmed by the defect that either they actually knew about orally,
or should have known about it by the inspection that they admit they
did. The facts here, and are incorporated by the way by reference [to]
the colloquy with counsel. Hartz knew about Moss and the Board of Education.
The adjacent sidewalk is obvious, and definitely a route which invitees would travel.
Warrington v. Bird,
204 N.J. Super. 611 (App. Div. 1985), provides that expectation
of [the] invitee and safe passage would be afforded over an area. Makes
the – in that area the responsibility, again, of the landlord to do the
repair, or warn of – warning is perfectly fine. It’s not an issue of
– I understand – the City of Newark[’s] sign, [Hartz] may not have had an
ability to repair, but could have warned about it.
The court continued:
And with respect to the issue of notice, it’s clear to me that
Hartz admitted to inspecting the sidewalk two or three times a week, and
that Mr. Moss indicated [a] most minimal inspection would have disclosed the defect.
Whether or not that opinion of Mr. Moss ends up surviving cross-examination, and
whether or not it’s believable by a jury, is a whole other issue.
But remember this is summary judgment. And with an existing inspection, with the
expert saying that the most minimally competent inspection would disclose the defect, I’m
satisfied that there’s a factual issue[,] if that’s the case, that would warrant
submission to the jury.
The case against Hartz went to trial. Monaco testified that on April 18, 1996, he was employed by the Newark Board of Education at 2 Cedar Street in Newark, New Jersey, and that “18-Wheeled” delivery trucks, which used the area’s loading docks to deliver various types of material, frequently traversed the street. He stated that on that same date, he exited the building around noontime to get some “fresh air,” noting that it was “extremely windy.” He left the building through two sets of doors – the first led to a small foyer and the second, outside. As he went through the first set of doors, Monaco saw two friends, Lou Maccarone and Jude Luongo. He held the second door open for Frager Berry, who was leaving the building behind him. Monaco testified that the next thing he remembered was seeing a “flash or a blur” as he was knocked back. He was hit by a parking sign and its attached pole, which struck him on the right side of the head, causing him to fall and hit his head on the exit doors. Monaco testified that the parking sign was located approximately eight feet from the front entrance of the building before becoming airborne.
Jude Luongo, an employee of the Newark Board of Education, testified that five to ten minutes before the accident occurred, he was standing next to the sign smoking a cigarette and talking with Maccarone. Luongo witnessed Monaco and others exit the building just as a gust of wind blew through the area, he saw the sign pole dislodge from its cement foundation, become airborne, and strike Monaco, knocking him unconscious as a result of the blow. Luongo recalled that he had seen cars and trucks hit the sign three or four times in the three years before the plaintiffs were injured and that for a couple of months prior to the accident, the sign was “crooked” and that it was “fixed” on a couple of occasions only to become crooked again. Notably, Luongo testified that he observed that the sidewalk directly beneath the sign was cracked prior to the accident.
Berry also testified at trial, stating that he went to 2 Cedar Street several times a week prior to the accident to make deliveries or to pick up materials. Berry said that approximately one to two months before the incident, he noticed that both the sign and its pole would squeak and move when the wind blew, but that he had not observed the sign on the day of the accident.
Moss gave expert testimony on behalf of plaintiffs that tracked his report. He stated that the sign and its pole had been bent by impact; that there was damage to the base of the sign where it was embedded in the concrete; and that the pole was bent, causing looseness between it and the concrete. Moss asserted that the sign’s loosened connection at its base, coupled with the windy conditions of the area that day, caused the sign to dislodge from its concrete foundation, become airborne, and strike plaintiffs as they exited the building. He concluded that both the City and Hartz were responsible for the sidewalk and the sign, and that even a minimally competent inspection would have revealed the defect that led to the plaintiffs’ injuries. See footnote 2
Portions of the deposition of Philip LaPlaca, Hartz’s property manager at 2 Cedar Street, were read into the record at trial. LaPlaca acknowledged that Hartz installed the sidewalk and was responsible for its maintenance. He stated that he inspected the area surrounding 2 Cedar Street two or three times a week, “including sidewalks and signs in front of 2 Cedar Street extending all the way down the block of Cedar Street.” However, he denied inspecting the sign that is at issue in this case.
At the close of plaintiffs’ case, Hartz moved for a directed verdict pursuant to Rule 4:37-2(b), arguing that it had a duty only with regard to the sidewalk, but no duty with regard to a sign that was owned, maintained, installed, and repaired by the City. Hartz further asserted that, if the trial court found that it did have a duty, it did not have notice that the sign was defective. In response to Hartz’s contention that it had no duty to inspect or maintain the sign, plaintiffs argued that, as a commercial landowner, Hartz owed traditional duties of inspection and warning to its invitees and that, in any event, it voluntarily assumed that duty through LaPlaca.
The trial court granted Hartz’s motion for directed verdict, concluding that:
The real question is whether Hartz Mountain, as the landowner, has any legal duty with respect to a traffic sign which, in this case, the City of Newark installed on the sidewalk of its premises and which the city essentially has whatever obligation there is to maintain. I find nothing in any of the deposition transcript read of Mr. LaPlaca of Hartz Mountain that Hartz actually assumed the inspection responsibilities which, I think, very clearly rested with the City of Newark with respect to the sign in question, and there’s nothing to indicate that the City of Newark in any way delegated its inspection response – and maintenance responsibilities to Hartz Mountain. This Court knows of no case in New Jersey which imposes upon a landowner any duty with respect to inspecting or notifying somebody else about any problems with a structure which that landowner does not own or maintain. Certainly such a – a sign such as this is not something within the landowner’s control.
Monaco appealed from the grant of the City’s motion for summary judgment and from the grant of Hartz’s motion for a directed verdict. Hartz did not challenge the denial of its motion for summary judgment. See footnote 3
The Appellate Division affirmed the trial court’s grant of a directed verdict in favor of Hartz. In doing so, it ruled that Hartz had no legal duty with respect to a traffic sign owned and installed by the municipality. However, the court reversed the grant of summary judgment entered in favor of the City based on what it viewed as a genuine issue of material fact regarding constructive notice, outlining facts from which such notice could be inferred. The court stated:
In this case, the City did not have actual notice, but there was in our view a genuine issue of material fact as to whether it had constructive notice. The pertinent circumstances from which an inference of constructive notice could reasonably arise include evidence that concrete around the base of the sign’s support post was cracked, that the signpost had been bent over in the past by trucks or other vehicles, and that bending of the post had been noticeable. It appears undisputed that the damage to the base of the post had existed for more than a month.
We conclude, then, that whether the City had constructive notice pursuant to N.J.S.A. 59:4-3(b) is a question for the trier of fact in all the circumstances here presented and that the granting of summary judgment was error under the standards affirmed in Brill v. Guardian Life Ins. Co. of. Am., 142 N.J. 520, 540 (1995).
Monaco petitioned for certification from the affirmance of the grant of summary judgment in favor of Hartz. The City filed a cross-petition challenging the reversal of the trial court’s grant of a directed verdict in its favor. We granted both petitions. 175 N.J. 433 (2003).
Monaco argues that, in ruling that Hartz had no legal duty to its invitees, the Appellate Division violated our decision in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), which looked beyond control to the foreseeability of the risk, the relationship of the parties, the defendant’s ability to mitigate damages, and the public policy interest in the solution. In any event, Monaco contends that Hartz assumed such a duty through LaPlaca. Hartz counters that it had no legal duty to maintain, inspect, or repair the sign, and that even if it had such a duty, it had no notice of the dangerous condition.
In its petition, the City of Newark argues that the Appellate Division erroneously considered Luongo’s testimony regarding the broken concrete that was adduced long after the summary judgment motion was decided. Monaco counters that at worst, the error is harmless because neither party was aware that Luongo was a fact witness until three months after the City’s motion was heard and thus a motion for reconsideration could have been granted on that basis.
III
We turn first to plaintiffs’ claims against Hartz.
As a preliminary matter, we note that the trial court overstepped its bounds when it ruled that Hartz had “no legal duty” with respect to a sign it did not own. That issue was resolved in Monaco’s favor on Hartz’s motion for summary judgment. In fact, the motion judge ruled that, as a commercial landowner, Hartz had a duty toward its invitees, including Monaco, to maintain a safe premises, including areas of ingress and egress and to inspect and give warning of a dangerous condition. That was the law of the case, which a court of equal jurisdiction had no right to “reverse” in the absence of substantially different evidence at a subsequent trial, new controlling authority, or specific findings regarding why the judgment was clearly erroneous. Underwood v. Atlantic City Racing Ass’n, 295 N.J. Super. 335, 340 (App. Div.), certif. denied, 149 N.J. 140 (1996). None of those conditions was satisfied here.
A motion for directed verdict under Rule 4:37-2(b) is governed by the following standard:
[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom reasonable minds could differ, the motion must be denied. . . .
[Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)(quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)(citations and quotations omitted in original))).]
Thus, the facts in this case must be viewed from that vantage point. So viewed, they are as follows: Hartz Mountain is a commercial landowner that earns income by renting its premises to the Newark Board of Education. Monaco is an employee of the Board and thus an invitee of Hartz. Monaco was injured on Hartz’s own property, which is located on a street that is a virtual wind tunnel. That injury occurred on a windy day when a sign installed and maintained by the City flew out of a sidewalk installed and maintained by Hartz and struck Monaco. That sign, which limited parking to permit holders, was installed to advance the interests of Hartz and its tenants. Under the relevant Newark Municipal ordinance, the sidewalk was the responsibility of Hartz. See also, Stewart v. Wallace, 87 N.J. 146 (1981) (commercial landowners are responsible for maintaining abutting sidewalks). Prior to the accident, the sidewalk directly beneath the sign was cracked. In the months prior to the accident, witnesses noticed that the sign was “crooked,” “would squeak and move when the wind blew” and was “bent” and “wiggling.” LaPlaca, the property manager of Hartz, acknowledged that Hartz installed the sidewalk and is responsible for its maintenance. He further stated that he personally inspected the area around the scene of the accident two or three times per week “including sidewalks and signs in front of 2 Cedar Street extending all the way down the block of Cedar Street.”
Moss, the plaintiffs’ expert, testified that a minimally competent inspection of the area would have revealed the condition at the base of the sign. He also stated that the damage to the sign was foreseeable based on past history of damage resulting from the sign being struck by large trucks and due to the windy conditions on Cedar Street. According to Moss, Hartz may not have had the right to repair the sign, but it had a duty under accepted building and traffic standards, at least to inspect the sign and to notify the City of defects in it.
The legal principles governing a commercial landlord’s liability are relatively straightforward. Such a landowner must exercise reasonable care for an invitee’s safety. That includes making reasonable inspections of its property and taking such steps as are necessary to correct or give warning of hazardous conditions or defects actually known to the landowner. Hopkins, supra, 132 N.J. at 434. The landowner is liable to an invitee for failing to correct or warn of defects that, by the exercise of reasonable care, should have been discovered. Ibid.
Moreover, in a long line of cases, our courts have extended a commercial landowner’s duty, when warranted by the facts, to cases in which the landowner had no control over the dangerous condition and the condition was not located on its property. In Warrington v. Bird, 204 N.J. Super. 611 (App. Div.), certif. denied, 103 N.J. 473 (1986), plaintiff sued a restaurant for injuries he sustained while crossing the street from the defendant’s parking lot to its premises. The Appellate Division properly concluded that the critical point was not whether the proprietor had control over the public street, but the invitee’s expectations:
We agree that the critical element should not be the question of the proprietor’s control over the area to be traversed but rather the expectation of the invitee that safe passage will be afforded from the parking facility to the establishment to which they are invited. Commercial entrepreneurs know in providing the parking facility that their customers will travel a definite route to reach their premises. The benefiting proprietor should not be permitted to cause or ignore an unsafe condition in that route which it might reasonably remedy, whether the path leads along a sidewalk or across a roadway.
[Id. at 617 (emphasis added).]
Thus, the Appellate Division held that although the defendant could not change the county road, it could have placed better lighting, a sign, or flashing signal to warn its patrons, who could reasonably expect a safe method of ingress to the restaurant, of the danger. Ibid.; see also, Zepf v. Hilton Hotel & Casino, 346 N.J. Super. 6, 16 (App. Div. 2001) (finding casino had duty towards employee regarding criminal activity on “perimeter” of property); Mulraney v. Auletto’s Catering, Nat. Valet Parking, Inc., 293 N.J. Super. 315, (App. Div.) (imposing duty upon caterer when plaintiff was struck by car while crossing unlit county road from defendant’s property to parking lot across street), certif. denied, 147 N.J. 263 (1996); Jackson v. K-Mart Corp., 182 N.J. Super. 645 (Law. Div. 1981) (holding defendant had duty to patrons regarding ingress and egress from parking lot to store even though defendant had no control over public sidewalk).
Nothing in our decision in Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510 (1997), supports Hartz’s contrary contention. There, we held that a landlord had no duty toward a tenant who was assaulted on adjacent municipal property. Id. at 523. Our ruling was not based on mere ownership but on the fact that the landlord received no economic benefit from the lot and provided a safe alternative means of ingress and egress to the tenants. Id. at 520-22. In other words, we found no duty as a matter of fact – not as a matter of law.
Likewise, Sims v. City of Newark, 244 N.J. Super. 32 (Law. Div. 1990), relied on by Hartz, is equally unsupportive of its position. In Sims, a landowner was held to have no duty toward an injured plaintiff regarding a shade tree located outside the boundary of its property. Id. at 48. The fulcrum of the opinion was a municipal shade tree ordinance that explicitly forbade the landowner from pruning or cutting down a tree without written permission from the municipality. Id. at 47.
However, decisions subsequent to Sims overwhelmingly reveal it as an anomaly against the well-settled tradition of recognizing that a landlord may not sit idly by a hazardous condition affecting its property, regardless of control, when that condition places a third party in danger. For example, in commenting on Tierney v. Gilde, 235 N.J. Super. 61 (App. Div.), certif. denied, 117 N.J. 666 (1989), a decision also restricting commercial landowner liability in the shade tree commission context, the Appellate Division in Learn v. City of Perth Amboy, 245 N.J. Super. 577, 584 (App. Div. 1989), expressed concern over the scope of that holding, stating;
[E]ven if we were to follow Tierney, we would nevertheless take the view that if a shade tree commission’s consent were required in order for an abutting commercial landowner to repair a sidewalk made dangerous by a tree root, the landowner would still be obliged to seek that consent if he had notice of the defective condition so caused. Certainly, no immunity could attach if he had that knowledge and made no effort, consistent with municipal allocation of responsibility, to effect a repair.
[Learn, supra, 245 N.J. Super. at 584; see also, Strauss v. Borough of
Chatham,
316 N.J. Super. 26, 31-32 (App. Div. 1998) (abutting landowner is required
to seek consent of Shade Tree Commission to repair sidewalk if it is
on notice of defective condition).]
More recently, in Nielsen v. Lee,
355 N.J. Super. 373 (App.
Div. 2002), certif. denied,
176 N.J. 73 (2003), Judge Pressler observed:
[W]e think it plain that the language of Tierney was overbroad and that
the judicial trend has been, to the contrary, the continued recognition of the
Stewart liability rule, namely, the imposition of some degree of duty, and hence
potential liability, on the abutting commercial landowner within the context of the shade
tree statute and ordinance. This is so even if that duty is limited
to require the seeking [of] a permit to make the repair or, on
an even more limited basis, simply notifying the shade tree commission of the
dangerous condition and requesting it to provide the corrective action.
[Id. at 378; see also; N.J.S.A. 59:4-10(b)(statutorily creating liability and preempting Straus, supra).]
In short, our traditional jurisprudence clearly recognizes that neither ownership nor control is
the sole determinant of commercial landlord liability when obvious danger to an invitee
is implicated.
Recently, in Hopkins v. Fox & Lazo, supra, in addressing whether a real
estate broker owes a duty of care to potential buyers who are shown
a home on an open house tour, we turned a new lens on
the question of the applicability of the common law doctrine of premises liability.
Although the setting was different from the one before us, the principles resonate
here:
The inquiry should be not what common law classification or amalgam of classifications
most closely characterizes the relationship of the parties, but, as exemplified by our
decision in Butler[v. Acme Markets, Inc.,
89 N.J. 270 (1982)], whether in light
of the actual relationship between the parties under all of the surrounding circumstances
the imposition on the broker of a general duty to exercise reasonable care
in preventing foreseeable harm to its open-house customers is fair and just. That
approach is itself rooted in the philosophy of the common law. See Palsgraf
v. Long Island R.R. Co.,
248 N.Y. 339,
162 N.E. 99 (1928); Heaven
v. Pender, 11 Q.B.D,. 503, 509 (C.A. 1883) (Brett, M.R.).
[132 N.J. at 438.]
We went on to observe that “whether a person owes a duty of
reasonable care toward another turns on whether the imposition of such a duty
satisfies an abiding sense of basic fairness under all of the circumstances in
light of considerations of public policy.” Hopkins, supra, 132 N.J. at 439 (citing
Goldberg v. Hous. Auth. of City of Newark,
38 N.J. 578, 583 (1962)).
That inquiry involves “identifying, weighing and balancing several factors [including] the relationship of
the parties, the nature of the attendant risk, the opportunity and ability to
exercise care, and the public interest in the proposed solution.” Hopkins, supra, 132
N.J. at 439. That is the backdrop for our inquiry.
Whether we apply the classic commercial landowner liability standard as urged by Hartz or the more fluid Hopkins rule as urged by Monaco, is inconsequential. Either way, a reversal is in order. Based on the traditional standard of commercial landlord liability, Hartz had a duty to exercise reasonable care for Monaco’s safety, including making reasonable inspections of its own property and the abutting sidewalk and taking such steps as were necessary to correct or give warning of a hazardous condition thereon. Handleman v. Cox, 39 N.J. 95, 111 (1963). That duty existed whether the defective condition that placed Hartz’s invitees at risk was or was not within its power to control. The trial court’s expressed idea that Hartz was absolved of its duty to inspect and warn because the City owned and presumptively maintained the sign simply has no basis in our jurisprudence. Hartz had the same duty as any commercial landlord – to inspect its premises and sidewalks and to take steps to protect its invitees from the dangers the inspection revealed. It was for the jury to determine whether that duty was breached.
The same result flows from the application of the Hopkins standard. The relationship between Hartz and the Board of Education of which Monaco was an employee was forged solely to advance Hartz’s commercial interests. Monaco was an invitee of Hartz. The injury that was likely to result from the defective street sign, which was installed to advance the interests of Hartz’s tenants, was a potentially serious one. Hartz had the ability to, and indeed did, regularly inspect its premises and the sidewalk it had installed. Very little additionally was required of it: repair the sidewalk, give notice to the City of the damage to the sign, or take some other action to warn or otherwise protect invitees from danger. The fairness and justice of recognizing a duty in such circumstances are clear beyond cavil. Thus, whether analyzed under traditional principles or under Hopkins, the trial court’s notion that Hartz bore no legal duty to Monaco was wide of the mark.
What is important in all of this is that Monaco is not attempting to hold Hartz responsible for something over which it had no control, but only for negligently failing to take such measures as were within its power and duty to protect its invitees from reasonably foreseeable danger. Given the nature of the cause of action, both lower courts were mistaken in concluding that because Hartz did not own the sign, it had no duty with respect to it. On the contrary, Hartz owed a legal duty to Monaco and it was for the jury to determine whether that duty was satisfied.
Hartz argues alternatively that even if a duty is found, it was entitled to judgment on the issue of notice. We disagree. On the facts presented, including LaPlaca’s inspections and the obviousness of the problems involving the sign and the sidewalk to which other witnesses attested, the issue of notice is plainly one for the jury. We thus reverse the judgment of the Appellate Division that affirmed the directed verdict in favor of Hartz.
IV
We turn finally to the City’s contention that the
Appellate Division erred in reversing the grant of summary judgment in its favor. In support, the City argues that that court improperly relied on evidence that was not adduced until after the summary judgment motion was granted. To be sure, the Appellate Division gilded the lily to some extent with after-acquired evidence. Nevertheless, from our independent review of the record and applying the summary judgment standard, we are satisfied that its ultimate conclusion was correct. The City acknowledged responsibility for the sign, and Monaco submitted enough evidence to require a trial on the question of whether the City knew or should have known of the dangerous condition. That evidence includes the prior repair on Cedar Street; the City’s acknowledgement that when another repair is carried out, adjacent areas are inspected; and the defects in the sign that were obvious to witnesses. We therefore affirm the Appellate Division’s disposition of the summary judgment motion with respect to the City.
Obviously, if at a trial, a jury finds that both the City and Hartz breached a duty to Monaco, it will be required to grapple with concepts of concurrent negligence along with issues of proximate cause under appropriate jury instructions.
V.
The Appellate Division’s reversal of the grant of summary judgment to the City of Newark is affirmed and its affirmance of the directed verdict in favor of Hartz is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE LONG’s opinion. JUSTICE VERNIERO filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-58/
59 September Term 2002
LUIGI MONACO and FRANCESCA MONACO, his wife,
Plaintiffs-Appellants
and Cross-Respondents,
v.
HARTZ MOUNTAIN CORPORATION,
Defendant-Respondent,
and
ABC CORP., DEF CORP. and
GHI CORP., (fictitious designations intended to designate unknown entities responsible for proper installation,
maintenance and repair of a certain sign and/or signpost),
Defendants,
and
CITY OF NEWARK,
Defendant and Cross-Appellant.
JUSTICE VERNIERO, concurring.
I join the Court’s disposition in respect of both the municipality and commercial
landowner. I write briefly only to emphasize that I agree with the Court’s
legal conclusion concerning the landowner in view of the fact that the dislodged
sign was on the landowner’s property (i.e., the sidewalk that the landowner installed
and maintained). At the heart of our law is the notion that a
party’s “duty of reasonable care toward another turns on whether the imposition of
such a duty satisfies an abiding sense of basic fairness under all of
the circumstances in light of considerations of public policy.” Hopkins v. Fox &
Lazo Realtors,
132 N.J. 426, 439 (1993).
Fairness would require that in certain circumstances a commercial landowner should be free
of legal responsibility, such as when a defective condition is far removed from
that party’s control. That is not this case based on the facts and
circumstances set forth meticulously in the Court’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-58/59 SEPTEMBER TERM 2002
ON CERTIFICATION TO Appellate Division, Superior Court
LUIGI MONACO and FRANCESCA
MONACO, his wife,
Plaintiffs-Appellants
and Cross-Respondents,
v.
HARTZ MOUNTAIN CORPORATION,
Defendant-Respondent.
DECIDED February 9, 2004
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY Justice Verniero
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
Moss’ expert opinion included reference to the BOCA National Building Code, the
BOCA National Property Maintenance Code, the New Jersey Administrative Code, the New Jersey
State Housing Code, and the Manual On Uniform Traffic Control Devices For Streets
And Highways.
Footnote: 2
During the plaintiffs’ direct examination of Moss, the trial court barred testimony
regarding the Newark ordinance. The court ruled that the sign was a structure
that by law was installed by the governing body, and that the ordinance
therefore was relevant to the City of Newark only and not to Hartz.
A facial reading of the ordinance reveals the error of that ruling. The
ordinance made Hartz responsible for the maintenance of the concrete sidewalk, which was
the footing for the sign and “for installations thereon.”
Footnote: 3
Berry, who appeared pro se at trial, apparently chose not to appeal.