Carla Martinez v. Mid-America

• Court: New Jersey Superior Court Appellate Division
• Decided: April 23, 2024
• Docket: A-2286-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2286-22

CARLA MARTINEZ,

Plaintiff-Appellant,

v.

MID-AMERICA, a/k/a MID- AMERICA, INC., and STEVENS & STEVENS, INC.,

Defendants-Respondents,

and

NINE POINT PROPERTY, LLC, D AND E PROPERTIES GROUP, LLC, INSPIRED PROPERTIES, LLC, 1ST IP, LLC, DRB HOLDINGS, LLC, and BEKK HOLDINGS, LLC,

Defendants. _______________________________

Argued April 9, 2024 – Decided April 23, 2024

Before Judges Puglisi, Haas and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0930-21.

Jeremy M. Weitz argued the cause for appellant (Spear, Greenfield, Richman, Weitz & Taggart, PC, attorneys; Jeremy M. Weitz, on the brief).

Lisa R. Bowles argued the cause for respondents (Law Offices of James H. Rohlfing, attorneys; Lisa R. Bowles, on the brief).

PER CURIAM

Plaintiff, Carla Martinez appeals from an order granting summary

judgment in favor of defendants, Mid-America a/k/a Mid-America, Inc. and

Stevens & Stevens, Inc. which dismissed her complaint with prejudice. For the

reasons expressed in Judge Steven J. Polansky’s cogent oral opinion, we affirm.

We add the following.

I.

The facts which follow are in a light most favorable to plaintiff as required

by Rule 4:46-2. The incident giving rise to this claim occurred while plaintiff

was on a walk with her daughter and dog on West Somerdale Road in Voorhees,

New Jersey. Plaintiff was not going to any specific destination but was "just

walking around." As she walked west, the paved portion of the sidewalk gave

way to a grassy area approximately thirty feet long located between the

A-2286-22 2 properties of 200 and 300 W. Somerdale Road. As she traversed the grassy area,

plaintiff fell and injured her ankle.

Plaintiff filed a complaint against the property owners of both 200 and

300 W. Somerdale Road. Defendant, Mid-America, Inc. ("Mid-America") was

the owner of 200 W. Somerdale Road. During the discovery period, plaintiff

attended a site inspection to show exactly where she fell. The summary

judgment record included a photo generated from the site inspection which

depicted the location of her fall. The photo was marked with an "X" by plaintiff

which showed the area of her fall to be in a grassy area located between a break

in a concrete sidewalk which ran adjacent to 200 and 300 W. Somerdale Road.

Mid-America and its property management company, defendant, Stevens

& Stevens, Inc. ("Stevens & Stevens") simultaneously moved for summary

judgment. Defendants certified that they did not own the area where plaintiff

fell and produced two surveys in support of this position. Defendants

maintained no duty existed which required them to install a sidewalk or to

maintain the area of plaintiff’s fall because they did not own the area.

Plaintiff filed a cross-motion for summary judgment seeking a declaration

of liability against defendants as a matter of law. Plaintiff's cross motion also

pointed to a local municipal ordinance which required land use applicants to

A-2286-22 3 install sidewalks. Plaintiff argued that defendant’s failure to install a sidewalk

was negligence per se or evidence of negligence which precluded summary

judgment. On the return date of the motion the court heard oral argument.

In its oral findings, the court found the area where plaintiff fell was

beyond the deeded property of defendants and is instead located in the public

area or right of way owned by the municipality. The court’s findings relied upon

our holding in Chimiente v. Adam Corp., 221 N.J. Super. 580 (App. Div. 1987),

wherein we rejected a similar argument finding a non-concrete pathway is not

equivalent to a sidewalk. In addition, the court found that plaintiff failed to

provide factual and legal proofs for its basis of liability which relied upon the

Voorhees ordinance she cited. On these grounds, the court granted defendants'

motions for summary judgment and denied plaintiff's cross-motion. This appeal

followed.

Primarily reprising the arguments she made before the trial court o n

appeal, plaintiff asserts:

POINT I:

THE AREA UPON WHICH APPELLANT WAS CAUSED TO FALL IS A PUBLIC SIDEWALK ADJACENT TO COMMERCIAL PROPERTY, AND/OR SHOULD BE CONSIDERED EQUIVALENT TO A PAVED SIDEWALK ADJACENT TO COMMERCIAL PROPERTY

A-2286-22 4 THEREBY ATTACHING A DUTY TO RESPONDENTS PURSUANT TO STEWART.

POINT II:

RESPONDENTS CREATED THE DANGEROUS CONDITION THROUGH MAINTENANCE AND ARE THEREFORE LIABLE TO THE APPELLANT PURSUANT TO STEWART AND SACO

POINT III:

THE VOORHEES TOWNSHIP ORDINANCE CREATES A PROTECTED CLASS OF PEDESTRIANS UPON PUBLIC RIGHT-OF-WAYS ADJACENT TO COMMERCIAL PROPERTY, FOR WHICH VIOLATION OF THE ORDINANCE IS NEGLIGENCE PER SE AND/OR EVIDENCE OF NEGLIGENCE.

POINT IV:

RESPONDENT, STEVENS & STEVENS, INC. IS IN DIRECT PRIVITY WITH RESPONDENT, MID- AMERICA, INC. AND MANAGES THE SUBJECT PROPERTY.

Defendants contend that summary judgment was appropriate because (1)

they owed no duty to plaintiff, (2) there is no evidence that they maintained the

adjacent property; (3) the local ordinance does not create a legal duty; and (4)

no facts support any theory of vicarious liability against Stevens & Stevens.

A-2286-22 5 II.

Rule 4:46-2(c) provides that a motion for summary judgment must be

granted "if the pleadings, depositions, answers to 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." The court must "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 decide whether a genuine issue of material fact exists, the trial court

must 'draw[] all legitimate inferences from the facts in favor of the non -moving

party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original)

(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The court's

function is not 'to weigh the evidence and determine the truth of the matter but

to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm.,

Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540).

We review the trial court's grant or denial of a motion for summary

judgment de novo, applying the same standard used by the trial court. Samolyk

A-2286-22 6 v. Berthe, 251 N.J. 73 (2022); Stewart v. N.J. Tpk. Auth./Garden State Parkway,

249 N.J. 642, 655 (2022); Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582

(2021). 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, 142 N.J. at 540.

"[I]t is ordinarily a plaintiff's burden to prove negligence, and . . . it is

never presumed." Khan v. Singh, 200 N.J. 82, 91 (2009). "To sustain a cause

of action for negligence, a plaintiff must establish four elements: '(1) a duty of

care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.'"

Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Essex,

196 N.J. 569, 584 (2008)). The "plaintiff bears the burden of establishing those

elements 'by some competent proof.'" Davis v. Brickman Landscaping, Ltd.,

219 N.J. 395, 406 (2014) (citing Overby v. Union Laundry Co., 28 N.J. Super.

100, 104 (App. Div. 1953), affirmed o.b., 14 N.J. 526 (1954)). "A prerequisite

to recovery on a negligence theory is a duty owed by defendant to plaintiff."

Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 529 (1988).

Commercial landowners "are responsible for maintaining in reasonably

good condition the sidewalks abutting their property." Stewart v. 104 Wallace

A-2286-22 7 Street, Inc., 87 N.J. 146, 157 (1981). A grassy strip between a sidewalk and the

street is considered a feature of the sidewalk. Bedell v. Saint Joseph's Carpenter

Soc'y, 367 N.J. Super. 515, 525 (App. Div. 2004). However, in all other

respects, the Stewart rule is "limited to abutting 'sidewalks,' and does not impose

a duty upon commercial landowners to maintain contiguous lands owned by

others simply because the public chooses to use the lands as a means of access

to the commercial property." Chimiente v. Adam Corp., 221 N.J. Super. 580,

583 (App. Div. 1987). A commercial landowner "owes no duty to pedestrians

who are injured on an abutting highway or sidewalk which is part of the public

domain." MacGrath v. Levin Props., 256 N.J. Super. 247, 250-51 (App. Div.

1992).

III.

In its oral findings, the trial court appropriately found under the holding

in Chimiente, the land where plaintiff fell is simply adjacent contiguous land

where no sidewalk exists but the public "chooses to use the lands as a means of

access to the commercial property." 221 N.J. Super. at 583. There is no dispute

defendants do not own the strip of land where plaintiff fell, nor is there any

genuine issue of material fact as to whether the area constitutes a "sidewalk"

under Stewart. Simply put, defendants had no duty to maintain an area they did

A-2286-22 8 not own. Sufficient, credible evidence contained in the summary judgment

record supports the trial court's grant of summary judgment which we will not

disturb.

We now turn to plaintiff’s arguments related to her claim defendants

created the dangerous condition through a lack of maintenance of the grassy

area. We are not persuaded and reject this position for two reasons.

Initially, plaintiff did not raise this argument with the trial court.

Although an appellate court may consider allegations of errors or omissions not

brought to the trial judge's attention if it meets the plain error standard under

Rule 2:10-2, the court frequently declines to consider issues that were not raised

below. Generally, unless an issue goes to the jurisdiction of the trial court or

concerns matters of substantial public interest, the appellate court will ordinarily

not consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

A careful review of the record shows no errors in the trial court's approach

concerning jurisdictional standards, the summary judgment standard, common

law negligence standards, nor does the issue concern matters of substantial

public importance. Plaintiff could have presented the argument that defendants

created a dangerous condition through failure to adequately maintain the grassy

area below but failed to do so.

A-2286-22 9 Even if we consider plaintiff’s argument, we determine the undisputed

facts support the conclusion defendants had no duty to maintain the grassy area,

nor were any sufficient proofs submitted by plaintiff, that despite having no

duty, defendants elected to maintain the area which created or failed to remedy

a dangerous condition. Plaintiff’s claim that the defendants maintained the lawn

area, even if true, failed to point to any dangerous condition caused by them

which created a genuine factual issue. For these reasons, plaintiff's argument

on this point also fails.

Point III of plaintiff's brief asserting that a Voorhees Township ordinance

created an obligation for defendants to construct a sidewalk and their failure to

follow the ordinance is negligence per se or evidence of negligence is not

supported by the undisputed facts and fails as a matter of law.

Municipal ordinances are not adopted to protect individual members of

the public, but "to impose upon those regulated 'the public burdens of the

municipal government.'" Luchejko v. City of Hoboken, 207 N.J. 191, 200-201

(2011) (quoting Fielders v. N. Jersey St. Ry. Co., 68 N.J.L. 343, 355 (E. & A.

1902)). It is a "well-settled principle that municipal ordinances do not create a

tort duty, as a matter of law." Brown v. Saint Venantius Sch., 111 N.J. 325, 335

(1988).

A-2286-22 10 In some cases, a statute or ordinance establishes a certain standard of

conduct when enacted to benefit a class who "obtains the benefit thereof in an

action for negligence if the breach of the enactment was the efficient cause of

the injury." Carrino v. Novotny, 78 N.J. 355, 359 (1979). However, "the

provisions of the ordinance must be 'germane to the type of hazard involved in

the defendant's asserted duty.'" Ibid. (quoting Rodgers v. Reid Oldsmobile, Inc.,

58 N.J. Super. 375, 385 (App. Div. 1959); and citing Restatement (Second) of

Torts § 286 and § 288 (Am. L. Inst. 1965)). For example, a parking ordinance

sets a standard of care for drivers whose violation causes harm. Id. at 359. See

also Hoagland v. Gomez, 290 N.J. Super. 550, 555 (App. Div. 1996) (finding

that an ordinance can set a standard of care when a party is in “the class of

persons intended to be protected by the ordinance[]"). In these limited scenarios,

violations of the ordinance may be utilized as evidence of negligence.

Voorhees Municipal Ordinance § 98.01 passed in 1994 provides, in its

entirety:

§ 98.01 INSTALLATION OF SIDEWALKS REQUIRED.

(A) Unless the Planning Board specifically provides otherwise, every approval of an application for development of a property located adjacent to any and all streets and roadways which are located in the Township, including state and county roads, shall

A-2286-22 11 require, as a condition of such approval, that the applicant install sidewalks, in accordance with the applicable requirements and standards imposed by the Township, on such property and along such streets and roadways.

(B) Unless the Planning Board specifically provides otherwise, every approval of an application for the amendment of or the extension of a previously approved subdivision or site plan shall require, as a condition of such approval, that the applicant install sidewalks, in accordance with the applicable requirements and standards imposed by the township, on the subject property and along both sides of each and every street and roadway located within such previously approved subdivision or site plan.

Voorhees, N.J., Code §98.01.

In her submission to the trial court, plaintiff claimed defendants were in

violation of this ordinance and the violation constituted negligence per se. On

appeal, she now adds the ordinance requires sidewalks as a condition for

property development and defendants' failure to abide by the ordinance is

evidence of negligence wherever no sidewalk exists in an area which borders a

commercial or developed property.

In interpreting an ordinance, "the court is compelled to give effect to the

legislative intent. Even where the drafters of an ordinance may not have

considered a certain set of circumstances, the construing court should render a

A-2286-22 12 decision consonant with the probable intent of the draftsmen had [they]

anticipated the situation at hand." Pullen v. S. Plainfield Plan. Bd., 291 N.J.

Super. 303, 310 (Law Div. 1995) (internal citations and quotations omitted).

We are not convinced such a stringent view as advocated by plaintiff is

proper. Initially, as the trial court pointed out, the ordinance is "not intended

for the purpose of protecting individual members of the public, but rather to

impose upon those regulated the public burdens of the municipal government."

The ordinance makes no mention of any specific intention to protect pedestrians,

it simply creates the condition that sidewalks be a part of new development

applications. Therefore, we find no error in the trial court’s conclusion that the

ordinance was immaterial to the case at hand.

Even if we were to consider the ordinance as a safety standard, absent in

the summary judgment record are any proofs after its adoption date that

defendants submitted “an application for development” or an application for an

“amendment of or the extension of a previously approved subdivision or site

plan” as mandated by the ordinance which would have required defendants to

install a sidewalk.

Lastly, plaintiff argues that by virtue of the contractual relationship

between Mid-America and Stevens & Stevens, summary judgment was not

A-2286-22 13 proper as to Stevens & Stevens "under theories of agency, vicarious liability

and/or respondeat superior."

Having found no error with Judge Polansky’s findings that Mid-America

was not liable to plaintiff under any legal theory asserted, her argument based

on vicarious liability against Stevens & Stevens also fails.

Affirmed.

A-2286-22 14