Pisano v. Aas Realty Holdings, Inc.
| Decision Date | 20 April 2018 |
| Docket Number | DOCKET NO. A-0325-16T1 |
| Parties | JOSEPH PISANO, Plaintiff-Appellant, v. AAS REALTY HOLDINGS, INC., Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0948-15.
Daniel J. Williams argued the cause for appellant (John J. Pisano, attorney; Mr. Pisano, on the brief).
Robert J. Gallop argued the cause for respondent (O'Toole Fernandez Weiner Van Lieu, LLC, attorneys; Mr. Gallop, of counsel and on the brief; Max S. Sverdlove, on the brief).
In this trip-and-fall case, plaintiff Joseph Pisano appeals an August 19, 2016 order granting summary judgment to defendant AAS Realty Holdings, Inc., and dismissing Pisano's personal injury complaint, and a September 16, 2016 order denying reconsideration. We affirm.
Plaintiff was deposed and testified as follows. On February 15, 2015, around noon, plaintiff was outside his home. He saw Gavin, a friend of plaintiff's son, park his vehicle in the parking lot of a doctor's office located across the street.
Plaintiff walked across the street to talk to Gavin. Plaintiff crossed the sidewalk and entered the parking lot. As he approached and was talking to Gavin, he stepped into a partly-uncovered drain. He described it as "a sewer grate that goes . . . across the driveway," covered by ten-inch-square grates, one of which was missing. He tripped and fell. It was a clear day, the grate was "open and obvious," his view was not blocked, but he did not look at the grate or notice the square that was missing. If plaintiff had looked at the area as he was walking, he would have seen that a square was missing and avoided stepping into it.
Plaintiff was not a patient at the doctor's office and was not attempting to go to the doctor's office. As it was a Sunday, the doctor's office was closed. When asked why Gavin parked his vehicle on defendant's lot, plaintiff stated, "I think the kids just pull in there and everybody from the other bar right there too, everybody uses that parking lot on the weekends." Plaintifffiled a complaint against defendant, the owner of the property containing the doctor's office and its parking lot. The complaint alleged defendant was negligent in failing to maintain the drainage cover, causing plaintiff's fall and his resulting severe and permanent injuries.
Following the conclusion of discovery, defendant filed a motion for summary judgment. The trial court found that plaintiff was a trespasser and therefore would only be owed a duty to warn of artificial conditions on the property that posed a risk of death or serious bodily injury. Further, the court found defendant owed plaintiff no duty because he had not presented any evidence that defendant knew or should have known about the alleged uncovered drain on its property, or that people were parking in the doctor's office parking lot on weekends while they patronized other area businesses. Plaintiff appeals.
Summary judgment must be granted if the court determines "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." R. 4:46-2(c). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit arational 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, 523 (1995). An appellate court "review[s] the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016).
"Premises liability is a subset of general negligence law." Peguero v. Tau Kappa Epsilon Local Chapter, 439 N.J. Super. 77, 88 (App. Div. 2015). Our courts "have long held that it is ordinarily a plaintiff's burden to prove negligence, and that 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)).
"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). "The duty owed by a premises owner . . . depends in general upon the application of well-established categories through which the status of the injured party is used to define both duty and foreseeability."Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 316 (2013). "When a person alleges that a landowner has acted negligently, the existence of a duty by a landowner to exercise reasonable care to third persons is generally governed by the status of the third person — guest, invitee, or trespasser — particularly when the legal relationship is clearly defined." Robinson v. Vivirito, 217 N.J. 199, 209 (2014).
Under the common law, a landowner owes the highest duty to a business invitee, a person that "has been invited on the premises for purposes of the owner that often are commercial or business related." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). "The landowner is liable to an invitee for failing to correct or warn of defects that, by the exercise of reasonable care, should have been discovered." Monaco v. Hartz Mountain Corp., 178 N.J. 401, 414-15 (2004). "That includes making reasonable inspections of its property and taking such steps as are necessary to correct or give warning of hazardous conditions or defects actually known to the landowner." Id. at 414 (citing Hopkins, 132 N.J. at 434).
A licensee is a person who was "'not invited but whose presence is suffered'" by the landowner. Desir, 214 N.J. at 316 (citation omitted). A social guest is considered a licensee rather than an invitee because, despite being literally invited onto thepremises, their "purposes for being on the land may be personal as well as for the owner's benefit." Hopkins, 132 N.J. at 433. "To the social guest or licensee, the landowner . . . does not have a duty actually to discover latent defects when dealing with licensees, [but] the owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012) (quoting Hopkins, 132 N.J. at 434); see Handleman v. Cox, 39 N.J. 95, 103 (1963).
A trespasser is a person "who has no privilege to be on the land" of another, whether by invitation or permission. Hopkins, 132 N.J. at 433. "The owner owes a minimal degree of care to a trespasser," even where there is "a dangerous condition" on the property. Ibid.1 Rowe, 209 N.J. at 44 (quoting Hopkins, 132 N.J. at 434).
This duty is very similar to the duty to constant trespassers imposed by Section 335 of the Restatement (Second) of Torts (Am. Law Inst. 1965):
A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition (i) is one which the possessor has created or maintains and (ii) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.
"The rule stated in this Section applies only where the artificial condition is one which the possessor has knowingly created or maintained and which he realizes or should realize as involving a risk of death or serious bodily harm." Id., § 335 at cmt. d.
Here, the trial court properly found plaintiff was a trespasser because he had no connection to the doctor's office, he did not intend to visit the closed office, and he had no invitation or consent to enter the property. See Robinson, 217N.J. at 214-15 ().
The trial court also properly concluded defendant had not breached the duty to a trespasser. The court noted there was no evidence defendant knew the grate square was missing. Thus, there was no evidence to show defendant "knowingly created or maintained" the absence of the grate square. Restatement (Second) of Torts, § 335 at cmt. c; cf. id. at § 335 illus. 1. Without such knowledge, defendant could not have "knowledge [the absence of the grate square] was likely to cause death or serious bodily harm," and could not warn trespassers of the condition and the risk involved. Id., § 335; see Rowe, 209 N.J. at 44.
Moreover, liability arises only if the condition "is of such a nature that [the possessor of land] has reason to believe that such trespassers will not discover it." Restatement (Second) of Torts, § 335. "The possessor is entitled to assume that trespassers...
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