Monaco v. Hartz Mountain Corp.

• Decision Date: 09 February 2004
• Citation: 178 N.J. 401,840 A.2d 822
• Parties: 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.
• Court: New Jersey Supreme Court

840 A.2d 822

178 N.J. 401

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.

Supreme Court of New Jersey.

Argued October 20, 2003.

Decided February 9, 2004.

Alan D. Bell, Montclair, argued the cause for appellants/cross-respondents.

Jack T. Spinella, New York City, 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.

A. Pretrial Motions

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 codes¹ 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

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