SHIRLEY SHANK VS. BAY PLAZA ASSOC., LLC (L-2831-17, OCEAN COUNTY AND STATEWIDE)

CourtNew Jersey Superior Court Appellate Division
DecidedMay 13, 2021
DocketA-2000-19
StatusUnpublished

This text of SHIRLEY SHANK VS. BAY PLAZA ASSOC., LLC (L-2831-17, OCEAN COUNTY AND STATEWIDE) (SHIRLEY SHANK VS. BAY PLAZA ASSOC., LLC (L-2831-17, OCEAN COUNTY AND STATEWIDE)) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SHIRLEY SHANK VS. BAY PLAZA ASSOC., LLC (L-2831-17, OCEAN COUNTY AND STATEWIDE), (N.J. Ct. App. 2021).

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2000-19

SHIRLEY SHANK,

Plaintiff-Appellant/ Cross-Respondent,

v.

BAY PLAZA ASSOC., LLC, and PASBJERG DEVELOPMENT CO.,

Defendants-Respondents/ Cross Appellants,

and

STRAIGHT EDGE STRIPING, LLC,

Defendant/Third-Party Plaintiff-Respondent,

SHERWIN WILLIAMS COMPANY,

Third-Party Defendant.

Submitted March 22, 2021 – Decided May 13, 2021 Before Judges Sabatino and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2831-17.

Brandon J. Broderick, LLC, attorneys for appellant/cross-respondent (Gregory D. Shaffer, on the briefs).

Dengler & Lipski, attorneys for respondents/cross- appellants (Christopher P. Morgan, of counsel and on the briefs).

Law Offices of James H. Rohlfing, attorneys for respondent (Susanne D. Montgomery, on the brief).

PER CURIAM

In this slip-and-fall personal injury case, plaintiff Shirley Shank appeals

from the summary judgment order and the subsequent denial of reconsideration

dismissing her complaint against defendants Bay Plaza Associates, LLC (Bay

Plaza), Pasbjerg Development Co. (Pasbjerg), and Straight Edge Striping, LLC

(Straight Edge).1 Bay Plaza and Pasbjerg cross-appeal from the trial court's

order dismissing their contractual indemnity claim against Straight Edge. After

a review of the respective contentions in light of the record and applicable

principles of law, we affirm.

1 The court also granted summary judgment to third-party defendant Sherwin Williams. A-2000-19 2 We discern the following facts from the record. Bay Plaza is the owner

of a retail shopping center located in Toms River. One of the tenants is a

ShopRite supermarket. Pasbjerg is the manager of the shopping center property.

In March 2016, Pasbjerg contracted with Straight Edge to restripe parking

stalls, directional arrows, and traffic stripes in the ShopRite parking lot. The

contract included an indemnity provision.

On March 23, 2016, Straight Edge striped the parking lot using Sherwin

Williams Hotline Fast Dry Latex Traffic Marking Paint. The paint was applied

directly on top of the existing parking lot markings. Straight Edge was never

informed by anyone of any problems with the work. Straight Edge restriped the

parking lot again in 2018.

At the time of these events, plaintiff was employed by the ShopRite in the

Bay Plaza shopping center. She had worked in the store for several years. On

July 10, 2016, plaintiff completed her shift at approximately 11:00 p.m. Her co-

worker, Doug Rabel, offered to drive plaintiff to the employee parking lot

because it was raining. Plaintiff stated it had been lightly raining for about five

minutes before she left the store. As she walked out, it was drizzling. Rabel's

truck was parked in the parking lot in front of the store.

A-2000-19 3 Plaintiff stated that she stepped and then fell on a white directional arrow

painted on the vehicle travel lane directly in front of the store as she was walking

to Rabel's vehicle. However, she also said that although she was looking at the

ground as she walked, she did not recall seeing the directional arrow prior to

falling.

During his deposition, Rabel stated he was walking in front of plaintiff as

they headed to his truck. He did not see her fall. When he turned around, she

was lying on the ground near an arrow in the travel lane of the parking lot.

Plaintiff commenced suit, alleging all the defendants negligently allowed

a dangerous condition to exist on the property and failed to warn of the

dangerous condition thereby causing her to sustain injuries. Straight Edge

subsequently filed a third-party complaint against Sherwin Williams.

To support her allegations of negligence, plaintiff retained an engineer,

Jack Krafchik, who issued a report after inspecting the shopping center parking

lot on June 1, 2019.

Although Krafchik measured the slip resistance of the directional arrows,

he did not include the measured results in his report "due to the passage of time

between the date of the incident and [his] inspection, and the subsequent

application . . . of an additional coat of white paint on top of the coat applied in

A-2000-19 4 2016 . . . ." Krafchik stated the surface conditions at the time of his inspection

were not representative of those in existence at the time of plaintiff's fall.

Krafchik's report concluded that:

[T]his incident could have been avoided if a slip resistant additive had been incorporated into the Sherwin-Williams product when it was applied . . . in 2016. These additives were available at the time, and for many years before 2016. If used, the additives would have provided the necessary slip resistance to the white paint, and the incident would have been avoided. Similarly, the use of inherently slip resistant paint . . . or the application of texturing or cross-cut grooving would have achieved the necessary result.

During his deposition, Krafchik was not certain on which directional

arrow plaintiff had fallen – there were two in the pertinent portion of the travel

lane – and he did not know on which part of the arrow she had fallen. In

discussing the wet slip resistant testing he conducted, Krafchik stated he did not

include it in his report because "the surface which [he] tested was not the same

surface as on the date of the accident" because there was one additional coat of

paint. However, the testing performed on the arrows in 2019 showed the surface

was within the accepted slip resistant tolerance range. Krafchik also did not

know what the thickness of the paint was at the time of plaintiff's fall and he did

not measure it during his inspection in June 2019.

A-2000-19 5 In his report and during his deposition, Krafchik relied on a Performance

Tip information provided by Sherwin Williams with the "traffic marking paint."

The pertinent portion of the sheet stated: "Painted surfaces can become slippery

when wet. Traffic paints are not intended for use as floor paints, and should not

be used to paint large areas subject to pedestrian traffic. For instance, painting

an entire stall is not recommended."

When confronted with literature regarding a slip resistant additive,

Krafchik agreed that line striping, parking lot lines, and directional arrows were

not included in the list of recommended uses for the additive.

A representative of Sherwin Williams was also deposed. He testified that

the paint used by Straight Edge was typically used in parking lots to paint

directional arrows and crosswalks and users were not instructed to also use an

additive.

Bay Plaza, Pasbjerg, and Sherwin Williams moved for summary

judgment. In granting the motions, the motion judge found Krafchik's expert

report was net opinion. In an oral decision on September 27, 2019, the judge

stated:

[T]he [c]ourt is compelled to conclude that it's a net opinion. It's his opinion that it's too slippery.

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SHIRLEY SHANK VS. BAY PLAZA ASSOC., LLC (L-2831-17, OCEAN COUNTY AND STATEWIDE), Counsel Stack Legal Research, https://law.counselstack.com/opinion/shirley-shank-vs-bay-plaza-assoc-llc-l-2831-17-ocean-county-and-njsuperctappdiv-2021.