JOSEPH OSTROWSKY VS. PAMELA JENGO (L-1405-17, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 25, 2020
• Docket: A-4069-18T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4069-18T1

JOSEPH OSTROWSKY,

Plaintiff-Appellant,

v.

PAMELA JENGO and BOROUGH OF HASBROUCK HEIGHTS,

Defendants-Respondents. ______________________________

Telephonically argued February 25, 2020 - Decided March 25, 2020

Before Judges Fasciale, Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1405-17.

E. Drew Britcher argued the cause for appellant (Britcher Leone, LLC, attorneys; E. Drew Britcher, of counsel; Tyrone Frederick Sergio, on the briefs).

Douglas M. Barnett argued the cause for respondent Pamela Jengo (Gregory P. Helfrich & Associates, attorneys; Douglas M. Barnett, on the brief). David J. Ruitenberg argued the cause for respondent Borough of Hasbrouck Heights (Murphy McKeon, P.C., attorneys; David J. Ruitenberg, on the brief).

PER CURIAM

In this trip and fall case, plaintiff appeals from an April 8, 2019 order

granting summary judgment to defendant Pamela Jengo—a single-family

residential homeowner—and defendant Borough of Hasbrouck Heights (the

Borough)—the town in which Jengo resided. We affirm as to Jengo, applying

settled law pertaining to residential property owners. We reverse as to the

Borough, concluding that there are genuine issues of material fact as to whether

it had notice of the dangerous condition.

We review the order de novo, applying the same legal standards that

govern summary judgment motions. Steinberg v. Sahara Sam's Oasis, LLC, 226

N.J. 344, 349-50 (2016). That is, we consider the factual record, and reasonable

inferences that can be drawn from those facts, "in the light most favorable to the

non-moving party," and then decide the legal question of whether the moving

party is entitled to judgment as a matter of law. IE Test, LLC v. Carroll, 226

N.J. 166, 184 (2016) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995); R. 4:46-2(c)).

I.

A-4069-18T1 2 We begin by addressing plaintiff's arguments as to Jengo. Plaintiff

contends that Jengo—the residential property owner—had a duty to "remedy

and repair" a defective public sidewalk in front of her residence because she

knew that a dangerous condition existed for approximately thirteen years and

did nothing about it. Plaintiff maintains that failing to impose such a duty will

allow residential property owners to ignore known-dangerous deterioration on

their sidewalks. We apply decades of precedent by the New Jersey Supreme

Court and conclude—like the judge—that Jengo owed no duty.

We look at the pertinent facts in the light most favorable to plaintiff.

Plaintiff tripped on an elevated and cracked public sidewalk slab (the dangerous

condition) located in front of Jengo's single-family residence. Jengo knew about

the dangerous condition but did not affirmatively create it. It is undisputed that

Jengo did not construct the sidewalk, make any repairs to the sidewalk, or

exercise any control over the sidewalk. The area of the accident did not have

any plantings, trees, nor shrubs. The dangerous condition pre-existed Jengo's

purchase of her home.

To prove a claim of negligence, a plaintiff must demonstrate: "(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. County

A-4069-18T1 3 of Essex, 196 N.J. 569, 584 (2008)). A plaintiff bears the burden of proving

negligence, see Reichert v. Vegholm, 366 N.J. Super. 209, 213-14 (App. Div.

2004), and must prove that a defendant's unreasonable acts or omissions

proximately caused his or her injuries, see Camp v. Jiffy Lube No. 114, 309 N.J.

Super. 305, 309-11 (App. Div. 1998). The presence or absence of an enforceable

duty is generally a question of law for the court. Clohesy v. Food Circus

Supermarkets, Inc., 149 N.J. 496, 502 (1997); see also Doe v. XYC Corp., 382

N.J. Super. 122, 140 (App. Div. 2005). As to this last point—the imposition of

a duty—the common law on premises liability for residential property owners

has been settled for decades.

Prior to 1981, our courts did not distinguish between commercial or

residential property owners. That is, commercial and residential property

owners in this State, at that time, could not be held liable for injuries occurring

on public sidewalks abutting their property, except "for the negligent

construction or repair of the sidewalk . . . or for direct use or obstruction of the

sidewalk by the owner in such a manner as to render it unsafe for passersby."

Yanhko v. Fane, 70 N.J. 528, 532 (1976) (citations omitted). The law changed

in 1981.

A-4069-18T1 4 In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149 (1981), the New

Jersey Supreme Court modified the law solely as to commercial landowners,

holding that such owners could be liable for injuries sustained on sidewalks

adjacent to their properties. The Court explicitly limited its holding in Stewart

to commercial owners, emphasizing that "[t]he duty to maintain abutting

sidewalks that we impose today is confined to owners of commercial property ."

Id. at 159. The practical impact of that change in the law recognized that a duty

existed for commercial property owners but not for residential property own ers.

Our premises liability sidewalk jurisprudence has maintained this

distinction. The Restatement (Second) of Torts § 363 (Am. Law Inst. 1965)

provides the basis for this State's governing legal principles in the area of

sidewalk liability. See Deberjeois v. Schneider, 254 N.J. Super. 694, 698-702

(Law Div. 1991), aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992). The judge

in Deberjeois explained,

[t]he rule of non-liability for natural conditions of land is premised on the fact that it is unfair to impose liability upon a property owner for hazardous conditions of his [or her] land which he [or she] did nothing to bring about just because he [or she] happens to live there.

[Id. at 702-03.]

A-4069-18T1 5 Over the years, the Court has deliberately refused to alter the legal distinction

between commercial and residential property owners.

For example, in Luchejko v. City of Hoboken, 207 N.J. 191, 206 (2011),

the Court observed that "[o]ur decisions consistently reflect that residential

property owners stand on different footing than commercial owners who have

the ability to spread the cost of the risk through the current activities of the

owner." The Court emphasized the importance of adhering to this distinction,

stating:

The commercial/residential dichotomy represents a fundamental choice not to impose sidewalk liability on homeowners that was established nearly three decades ago. Stare decisis thus casts a long shadow over these proceedings. We should not lightly break with a line of decisions that has promoted settled expectations on the part of residential property owners.

....

The rationale of Stewart . . . remains sound and there are no changed circumstances such that reevaluation is necessary. Although the sidewalk liability line of cases has contained spirited concurrences and dissents arguing for broader liability, those separate opinions registered simple disagreements with the majorities' point of view and did not foretell difficulties that have come to pass in administering the commercial/residential distinction.

[Id. at 208-09 (citations omitted).]

A-4069-18T1 6 As we noted in 2013: "(1) [T]he Court has acknowledged repeatedly that

residential property owners are generally not liable for sidewalk injuries; (2) the

Court has maintained the fundamental notion that commercial property owners

are better prepared to spread the risk of loss to innocent third parties than

residential homeowners[.]" Grijalba v. Floro, 431 N.J. Super. 57, 66 (App. Div.

2013); see also Lodato v. Evesham Township, 388 N.J. Super. 501, 507 (App.

Div. 2006) (holding residential landowners remain protected by common law

public sidewalk immunity); Smith v. Young, 300 N.J. Super. 82, 84-85 (App.

Div. 1997) (reiterating that commercial landowners are responsible for

maintaining sidewalks abutting their property). Residential owners, however,

are liable if they—unlike here—negligently build or repair the sidewalk in a

manner that causes the sidewalk's dangerous condition. Luchejko, 207 N.J. at

210. These legal principles have remained unchanged—by our Court and

Legislature.

Plaintiff urges us to apply the standards set forth in the Restatement

(Third) of Torts: Liability for Physical and Emotional Harm § 54 (Am. Law

Inst. 2012).1 Section 54 of the Third Restatement provides in pertinent part:

1 Plaintiff has not cited, and we are unaware of, any jurisdiction in the nation that has adopted section 54 of the Third Restatement.

A-4069-18T1 7 (b) For natural conditions on land that pose a risk of physical harm to persons or property not on the land, the possessor of the land

(1) has a duty of reasonable care if the land is commercial; otherwise

(2) has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.

See Michael K. Steenson, Minnesota Negligence Law and the Restatement

(Third) of Torts: Liability for Physical and Emotional Harms, 37 Wm. Mitchell

L. Rev. 1055, 1058-62 (2011) (discussing the Third Restatement and how it

differs from the Second Restatement).

Founded in 1923, the American Law Institute (ALI) embarks on law

reform projects, known as "Restatements," seeking to clarify areas of the

common law. David A. Logan, Article, When The Restatement Is Not A

Restatement: The Curious Case Of The "Flagrant Trespasser," 37 Wm. Mitchell

L. Rev. 1448, 1448-49 (2011). The Restatements' goal is not only to clarify the

law, but also to promote changes "which will tend better to adapt the laws to the

needs of life." Id. at 1452 (citation omitted).

The Restatements' reporters occasionally assert positions that lack legal

authority and scholarship. Id. at 1457-58 (explaining that the named reporter of

section 402A of the Second Restatement provided "scant doctrinal foundation,

A-4069-18T1 8 as [he] could point to virtually no case authority and relatively little

scholarship"). Pertaining to the Third Restatement, the reporters created a

general duty of care and an entirely new legal category called the "flagrant

trespasser." Id. at 1475. The reporters recognized that such changes are not

based on common law, but rather "a belief that existing law was flawed." Ibid.

Restatements are non-binding unless adopted by a court or legislature. Id. at

1482.

The New Jersey Supreme Court has not adopted section 54 of the Third

Restatement since the section's creation in 2012. Our courts have only adopted

specific sections of the Third Restatement. This state adopts portions of the

Restatements when it sees fit. See Ross v. Lowitz, 222 N.J. 494, 507-08 (2015)

(stating that the Court adopted section 824 of the Second Restatement). For

instance, the Court adopted section 3 of the Third Restatement's "indeterminate

product test" in Myrlak v. Port Authority of New York & New Jersey, 157 N.J.

84, 103-07 (1999). This court also adopted section 16 of the Third Restatement

of Products Liability in Green v. General Motors Corp., 310 N.J. Super. 507,

526-27 (App. Div. 1998).

There is a consensus that residential property may be liable for dangerous

conditions on abutting sidewalks only when their affirmative acts cause the

A-4069-18T1 9 dangerous conditions. C.P. Jhong, Liability of Abutting Owner or Occupant For

Condition of Sidewalk, 88 A.L.R.2d 331 (1963); see also The Honorable Mark

C. Dillon, Breaking The Ice: How Plaintiffs May Establish Premises Liability

In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not

Visible Or Apparent To Property Owners, 43 Hofstra L. Rev. 691, 709 (2015)

(stating that New York imposes liability on a residential property owner when

the landowner affirmatively acts). 2 In New Jersey, single-family residential

property owners' liability is based on common law; no statute imposes such a

duty.

In the absence of contrary guidance from our State's highest court or the

Legislature, we accordingly continue to apply the Second Restatement

standards. As to the Third Restatement, we recently said "[b]ecause we are an

intermediate appellate court, we are bound to follow the law as it has been

expressed by . . . our Supreme Court." Scannavino v. Walsh, 445 N.J. Super.

2 See also Donald F. Burke, Jr., Slipping Through the Cracks: The Shoddy State of New Jersey Sidewalk Liability Law Cries Out For Repair, 36 Seton Hall Leg. J., 225, 227-32 (2012) (discussing New Jersey's history of sidewalk liability and recent developments pertaining to commercial property owners). This article argues against imposing liability on any property owner, even commercial property owners, unless such owners affirmatively act and cause the dangerous condition. Id. at 267-68. The author does not mention section 54 of the Third Restatement. A-4069-18T1 10 162, 172-73 (App. Div. 2016) (second alteration in original) (quoting Lake

Valley Assocs., LLC v. Township of Pemberton, 411 N.J. Super. 501, 507 (App.

Div. 2010)); Lodato, 388 N.J. Super. at 507 (declining to adopt Section 54 of

the Third Restatement). Thus, we affirm as to Jengo.

II.

We now turn to the Borough. The judge granted summary judgment to

the Borough, finding it had no actual or constructive notice of the dangerous

condition. On the notice issue, plaintiff contends fact issues preclude the entry

of the order.

Generally, "a public entity is 'immune from tort liability unless there is a

specific statutory provision' that makes it answerable for a negligent act or

omission." Polzo v. County of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v.

Borough of Wallington, 171 N.J. 3, 10 (2002)). A public entity may be liable if

"a negligent or wrongful act or omission of [its] employee . . . create[s] the

dangerous condition" or, if it "had actual or constructive notice of the dangerous

condition . . . a sufficient time prior to the injury to have taken measures to

protect against the dangerous condition." N.J.S.A. 59:4-2(a), (b). As the Court

has repeatedly stated,

to impose liability on a public entity pursuant to [N.J.S.A. 59:4-2], a plaintiff must establish the

A-4069-18T1 11 existence of a "dangerous condition," that the condition proximately caused the injury, that it "created a reasonably foreseeable risk of the kind of injury which was incurred," that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity's conduct was "palpably unreasonable."

[Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125 (2001) (quoting N.J.S.A. 59:4-2).]

The law is also settled as to what constitutes constructive notice of a

dangerous condition under the Torts Claims Act (TCA), N.J.S.A. 59:1-1 to 12-

3. N.J.S.A. 59:4-3(b) provides:

A public entity shall be deemed to have constructive notice of a dangerous condition . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

[(Emphasis added).]

It is true that "[t]he mere '[e]xistence of an alleged dangerous condition is

not constructive notice of it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super.

238, 243 (App. Div. 2013) (second alteration in original) (quoting Sims v. City

of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). But here, the factual

question is whether the dangerous condition—a two-inch differential in the

sidewalk slabs—was so obvious that the Borough "in the exercise of due care,

A-4069-18T1 12 should have discovered the condition and its dangerous character," especially

because the dangerous condition existed for a minimum of thirteen years.

It is settled that "[w]hether a public entity is on actual or constructi ve

notice of a dangerous condition is measured by the standards set forth in

N.J.S.A. 59:4-3(a)3 and (b), not by whether [for example] 'a routine inspection

program' by the [public entity] . . . would have discovered the condition." Polzo,

209 N.J. at 68. Plaintiff does not argue that the Borough failed to conduct a

routine inspection, and had it done so, the Borough would have discovered the

dangerous condition. Rather, plaintiff contends that Borough representatives

visited Jengo's house at the time she purchased her home, and that they "should

have" discovered the dangerous condition.

The judge concluded that the Borough did not have actual or constructive

notice of the sidewalk's dangerous condition. He based that finding on Borough

representatives' deposition testimonies. The Borough's Department

Administrator, Mr. Nicholas Melfi, Jr., did not know of the dangerous condition.

The Borough's Zoning Official, Mr. Gino Tessaro, testified that he does not

evaluate a property's exterior when he inspects a property for a certificate of

3 Under section (a), "[a] public entity shall be deemed to have actual notice of a dangerous condition . . . if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." A-4069-18T1 13 occupancy. The Borough's inspector in its building department, Mr. Ronald

Monteleone, testified that his predecessor did not inspect the property's exterior

when Jengo bought the property.

There is nothing in the record to show the Borough received any

complaints about the sidewalk's dangerous condition from Jengo, its employees,

or the community. Thus, it did not have actual notice. However, viewing all

facts in the light most favorable to plaintiff, there are genuine issues of fact

pertaining to constructive notice. Although the record does not reflect any direct

complaints, the dangerous condition existed for at least thirteen years. And it is

undisputed that the Borough's representative arrived at Jengo's home to issue a

certificate of occupancy when she purchased her home.

Plaintiff also contends that the Borough had constructive notice because

it undertook "Streetscape" projects at intersections near residential properties,

which reduces the grade of the sidewalk to the roadway. Plaintiff asserted that

Borough representatives should have discovered the dangerous condition during

these projects because its engineers were present near the dangerous condition

to prepare specifications for outside bidding. Giving the benefit of all

reasonable inferences, we conclude that genuine issues of material fact exist as

to whether the dangerous condition—a two-inch slab differential—was "of such

A-4069-18T1 14 an obvious nature that the [Borough], in the exercise of due care, should have

discovered the condition and its dangerous character," (emphasis added),

especially because Borough representatives were present on and around Jengo's

property.

Affirmed as to Jengo; reversed and remanded as to the Borough. We do

not retain jurisdiction.

A-4069-18T1 15