NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4926-18T4 JEANNE LESSNER and DEBBIE FRANK, w/w,
Plaintiffs-Appellants,
v.
JASON PIRKLE and DEBRA PIRKLE,
Defendants-Respondents. _____________________________
Argued telephonically April 29, 2020 – Decided July 1, 2020
Before Judges Fuentes and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7238-17.
Edward P. Capozzi argued the cause for appellants (Brach Eichler, LLC, attorneys; Edward P. Capozzi and Jeremy Hylton, on the briefs).
Joseph F. Skinner argued the cause for respondents (Kirmser, Lamastra, Cunningham & Skinner, attorneys; Joseph F. Skinner, of counsel and on the brief; Laura P. Baker, on the brief). PER CURIAM
Plaintiff fractured her wrist when she tripped and fell on the sidewalk
abutting defendants' residence. Plaintiffs filed a civil action against defendants
to recover compensatory damages. After the parties engaged in discovery, the
Law Division granted defendants' motion for summary judgment and dismissed
plaintiffs' complaint with prejudice. In this appeal, plaintiffs argue the Law
Division erred by not viewing the facts in the light most favorable to plaintiffs
and by concluding defendants did not have a legal duty to maintain an artificially
created condition on their premises. Alternatively, plaintiffs argue the court
committed reversible error by not considering whether defendants "voluntarily
assumed" a duty of care to plaintiffs. We reject these arguments and affirm.
The Law Division correctly applied our State's long-settled common law
immunity to conclude defendants did not have a legal duty to maintain the
sidewalk abutting their residence. In reaching this decision, the motion judge
applied the standard codified in Rule 4:46-2(c), as explained by the Court in
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply
these standards of review de novo to determine whether the motion judge
correctly decided this case as a matter of law. Lee v. Brown, 232 N.J. 114, 126
(2018).
A-4926-18T4 2 These are the salient facts. On July 16, 2017, plaintiffs Jeanne Lessner
and Debbie Frank were walking in their neighborhood when they came upon the
sidewalk abutting a one family house located on Elston Road in the Township
of Montclair. A portion of the sidewalk slabs abutting this residence were
uneven, creating approximately a one-inch gap between the sidewalk slabs. A
growth of grass and weeds protruded through this one-inch height disparity. On
February 2, 2018, Lessner described how the accident occurred in response to
the following interrogatory: "Describe in detail your version of the accident or
occurrence setting forth the date, location, time and weather:"
[O]n a clear day, on or about July 16, 2017, . . . [p]laintiff, Jeanne Lessner, was a non-trespassing entrant lawfully on the sidewalk abutting [d]efendants, Jason and Debra Pirkle's property[.] . . . At that time, [p]laintiff tripped and fell over a dangerous condition on the property believed to be an uneven sidewalk. As a result of the incident, [p]laintiff sustained serious and permanent injuries.
In a deposition taken on September 18, 2018, Lessner testified that the
accident occurred on a Sunday morning at "[a]bout 9:30 [a.m.]". She described
the weather conditions as "beautiful". She and her spouse Debbie Frank were
"exercise walk[ing]" at a "normal pace stroll," which is something they did on a
regular basis. The accident occurred about three blocks from their house. When
A-4926-18T4 3 asked what caused her to fall, she responded: "I tripped." When asked to clarify
this response, Lessner stated:
Q. Just so I am clear, based upon what you just testified to, the sidewalk played no part in your falling on that day, is that your testimony?
A. Yes.
Q. So what you just told Mr. Capozzi, it was the grass in between the two sidewalk slabs that caused you the problem?
Q. It wasn't the sidewalk?
Q. It was not the sidewalk or it was the sidewalk?
A. It was not the sidewalk.
Q. Alright. Thank you.
On October 10, 2017, plaintiffs filed a civil action against defendants
based on common law negligence and failure to maintain the sidewalk abutting
their home in a good state of repair. Lessner sought compensatory damages for
her pain and suffering and the medical expenses she incurred to treat her
fractured wrist. Frank asserted a derivative per quod claim as Lessner's spouse
and sought compensation for loss of consortium.
A-4926-18T4 4 Defendants filed a responsive pleading and the parties engaged in
discovery. On March 14, 2019, defendants moved for summary judgment,
arguing they were not civilly liable to plaintiffs based on this State's long-settled
principles of common law immunity for sidewalk liability to residential
properties. The judge provided the following description of the legal and
factual basis of plaintiffs' case:
Plaintiff’s opposition centers around the contention that the condition, which caused [p]laintiff’s accident, was an artificial one, and in so doing, relies on architect and expert witness Kenneth Stoyack’s opinion, finding that [d]efendants failed to adequately maintain the landscaping, thereby allowing roots of the hedges on the property to create an artificial condition by raising the concrete slab approximately one inch.
The judge noted that Stoyack's opinion in the report was based on an
inspection of the sidewalk he conducted nearly a year and a half after the
accident. The judge found, and the record supports, that:
There is no description of any effort undertaken to determine that the roots, in fact, caused the sidewalk to lift, as it allegedly did. Nor is there any indication of any examination of the premises, the grounds, or the property to verify that the sidewalk was lifted by virtue of the presence of a root related to the hedges.
Residential landowners enjoy "blanket immunity" from sidewalk liability.
Lodato v. Evesham, 388 N.J. Super. 501, 507 (App. Div. 2006). Absent
A-4926-18T4 5 competent evidence establishing they "create[d] or exacerbate[d] a dangerous
sidewalk condition[,]" residential landowners do not owe a duty to pedestrians
to maintain the sidewalks abutting their property. Luchejko v. City of Hoboken,
207 N.J. 191, 210 (2011). The motion judge correctly found defendants did not
undertake any project to alter or modify the sidewalk or the hedges that were
there when they purchased the property in 2000. Dupree v. City of Clifton, 351
N.J. Super. 237, 246 (App. Div. 2002).
The judge properly rejected any argument that would impose liability on
defendants merely "because the hedges were in their exclusive control to
maintain and that . . . [d]efendants did, in fact, maintain the hedges, that
somehow they are responsible for [p]laintiff tripping over weeds or grass in the
sidewalk slab." Finally, plaintiffs' counsel argued there was a material question
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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-4926-18T4 JEANNE LESSNER and DEBBIE FRANK, w/w,
Plaintiffs-Appellants,
v.
JASON PIRKLE and DEBRA PIRKLE,
Defendants-Respondents. _____________________________
Argued telephonically April 29, 2020 – Decided July 1, 2020
Before Judges Fuentes and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7238-17.
Edward P. Capozzi argued the cause for appellants (Brach Eichler, LLC, attorneys; Edward P. Capozzi and Jeremy Hylton, on the briefs).
Joseph F. Skinner argued the cause for respondents (Kirmser, Lamastra, Cunningham & Skinner, attorneys; Joseph F. Skinner, of counsel and on the brief; Laura P. Baker, on the brief). PER CURIAM
Plaintiff fractured her wrist when she tripped and fell on the sidewalk
abutting defendants' residence. Plaintiffs filed a civil action against defendants
to recover compensatory damages. After the parties engaged in discovery, the
Law Division granted defendants' motion for summary judgment and dismissed
plaintiffs' complaint with prejudice. In this appeal, plaintiffs argue the Law
Division erred by not viewing the facts in the light most favorable to plaintiffs
and by concluding defendants did not have a legal duty to maintain an artificially
created condition on their premises. Alternatively, plaintiffs argue the court
committed reversible error by not considering whether defendants "voluntarily
assumed" a duty of care to plaintiffs. We reject these arguments and affirm.
The Law Division correctly applied our State's long-settled common law
immunity to conclude defendants did not have a legal duty to maintain the
sidewalk abutting their residence. In reaching this decision, the motion judge
applied the standard codified in Rule 4:46-2(c), as explained by the Court in
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply
these standards of review de novo to determine whether the motion judge
correctly decided this case as a matter of law. Lee v. Brown, 232 N.J. 114, 126
(2018).
A-4926-18T4 2 These are the salient facts. On July 16, 2017, plaintiffs Jeanne Lessner
and Debbie Frank were walking in their neighborhood when they came upon the
sidewalk abutting a one family house located on Elston Road in the Township
of Montclair. A portion of the sidewalk slabs abutting this residence were
uneven, creating approximately a one-inch gap between the sidewalk slabs. A
growth of grass and weeds protruded through this one-inch height disparity. On
February 2, 2018, Lessner described how the accident occurred in response to
the following interrogatory: "Describe in detail your version of the accident or
occurrence setting forth the date, location, time and weather:"
[O]n a clear day, on or about July 16, 2017, . . . [p]laintiff, Jeanne Lessner, was a non-trespassing entrant lawfully on the sidewalk abutting [d]efendants, Jason and Debra Pirkle's property[.] . . . At that time, [p]laintiff tripped and fell over a dangerous condition on the property believed to be an uneven sidewalk. As a result of the incident, [p]laintiff sustained serious and permanent injuries.
In a deposition taken on September 18, 2018, Lessner testified that the
accident occurred on a Sunday morning at "[a]bout 9:30 [a.m.]". She described
the weather conditions as "beautiful". She and her spouse Debbie Frank were
"exercise walk[ing]" at a "normal pace stroll," which is something they did on a
regular basis. The accident occurred about three blocks from their house. When
A-4926-18T4 3 asked what caused her to fall, she responded: "I tripped." When asked to clarify
this response, Lessner stated:
Q. Just so I am clear, based upon what you just testified to, the sidewalk played no part in your falling on that day, is that your testimony?
A. Yes.
Q. So what you just told Mr. Capozzi, it was the grass in between the two sidewalk slabs that caused you the problem?
Q. It wasn't the sidewalk?
Q. It was not the sidewalk or it was the sidewalk?
A. It was not the sidewalk.
Q. Alright. Thank you.
On October 10, 2017, plaintiffs filed a civil action against defendants
based on common law negligence and failure to maintain the sidewalk abutting
their home in a good state of repair. Lessner sought compensatory damages for
her pain and suffering and the medical expenses she incurred to treat her
fractured wrist. Frank asserted a derivative per quod claim as Lessner's spouse
and sought compensation for loss of consortium.
A-4926-18T4 4 Defendants filed a responsive pleading and the parties engaged in
discovery. On March 14, 2019, defendants moved for summary judgment,
arguing they were not civilly liable to plaintiffs based on this State's long-settled
principles of common law immunity for sidewalk liability to residential
properties. The judge provided the following description of the legal and
factual basis of plaintiffs' case:
Plaintiff’s opposition centers around the contention that the condition, which caused [p]laintiff’s accident, was an artificial one, and in so doing, relies on architect and expert witness Kenneth Stoyack’s opinion, finding that [d]efendants failed to adequately maintain the landscaping, thereby allowing roots of the hedges on the property to create an artificial condition by raising the concrete slab approximately one inch.
The judge noted that Stoyack's opinion in the report was based on an
inspection of the sidewalk he conducted nearly a year and a half after the
accident. The judge found, and the record supports, that:
There is no description of any effort undertaken to determine that the roots, in fact, caused the sidewalk to lift, as it allegedly did. Nor is there any indication of any examination of the premises, the grounds, or the property to verify that the sidewalk was lifted by virtue of the presence of a root related to the hedges.
Residential landowners enjoy "blanket immunity" from sidewalk liability.
Lodato v. Evesham, 388 N.J. Super. 501, 507 (App. Div. 2006). Absent
A-4926-18T4 5 competent evidence establishing they "create[d] or exacerbate[d] a dangerous
sidewalk condition[,]" residential landowners do not owe a duty to pedestrians
to maintain the sidewalks abutting their property. Luchejko v. City of Hoboken,
207 N.J. 191, 210 (2011). The motion judge correctly found defendants did not
undertake any project to alter or modify the sidewalk or the hedges that were
there when they purchased the property in 2000. Dupree v. City of Clifton, 351
N.J. Super. 237, 246 (App. Div. 2002).
The judge properly rejected any argument that would impose liability on
defendants merely "because the hedges were in their exclusive control to
maintain and that . . . [d]efendants did, in fact, maintain the hedges, that
somehow they are responsible for [p]laintiff tripping over weeds or grass in the
sidewalk slab." Finally, plaintiffs' counsel argued there was a material question
of fact in dispute that precluded deciding this case on summary judg ment based
on Lessner's own inconsistent testimony about what caused her fall. As the
following verbatim analysis shows, the motion judge quickly noted the absurdity
of this proposition:
The fact remains that the sidewalk, in its purportedly raised condition, was not the cause in fact or may not have been the cause in fact of [p]laintiff’s injuries. She offers two possible causes. The argument made by [p]laintiff in the opposition papers to this effect is contrary -- at least in part -- to her own testimony. She
A-4926-18T4 6 has created an ambiguity. And in either instance, regardless of either cause, there is nothing in the record to suggest that the condition of the sidewalk -- be it raised by some supposed root that may or may not be present, or be it as a result of weeds or grass -- imposes any sort of duty or result in liability on the part of . . . [d]efendants.
The record is unambiguous that during her deposition, [p]laintiff relayed that she was caused to trip by weeds and/or overgrown grass protruding out of the sidewalk, but not from the raised or uneven sidewalk itself.
....
That said, the [c]ourt does not find [d]efendant’s argument persuasive that since [p]laintiff’s expert did not inspect the premises for almost one and a half years after [p]laintiff’s accident, the measurement could not be used as proof of the alleged defect which existed at the time of the accident.
The record is undisputed that plaintiffs' cause of action is predicated upon
Lessner falling on a sidewalk abutting a one family residence. As the owners of
this property, defendants are not civilly liable for plaintiffs' injuries.
Affirmed.
A-4926-18T4 7