Rowe v. Mazel Thirty, LLC

• Decision Date: 02 February 2012
• Citation: 209 N.J. 35,34 A.3d 1248
• Parties: Willie C. ROWE and Karen Rowe, his Spouse, Plaintiffs–Appellants, v. MAZEL THIRTY, LLC and 40–50 Lenox Realty Associates, LLC, Defendants–Respondents.
• Court: New Jersey Supreme Court

209 N.J. 35

34 A.3d 1248

Willie C. ROWE and Karen Rowe, his Spouse, Plaintiffs–Appellants,

v.MAZEL THIRTY, LLC and 40–50 Lenox Realty Associates, LLC, Defendants–Respondents.

Supreme Court of New Jersey.

Argued Nov. 30, 2011.Decided Feb. 2, 2012.

Pablo N. Blanco, South Orange, argued the cause for appellants (The Blanco Law Firm, attorneys).

Richard J. Hull, Livingston, argued the cause for respondents (Morgan Melhuish Abrutyn, attorneys).

Justice LONG delivered the opinion of the Court.

The issue presented in this appeal is whether summary judgment properly was granted to a landowner on whose private premises a police officer, engaged in a safe-streets initiative, fell and was injured. In such circumstances, the police officer stood in the shoes of a licensee to whom the landowner owed a duty to warn of any dangerous conditions of which the owner knew or had reason to know and of which the officer was reasonably unaware.

Here, the Appellate Division ruled that the officer's foreknowledge of the dangerous condition of the property eliminated any duty on the part of the landowner, as a matter of law. Because this record presented a genuine issue of material fact regarding the officer's awareness of the dangerous condition, the grant of summary judgment was a usurpation of the jury's function, requiring reversal.

I.

Because of the posture of this case—the grant of summary judgment—we view the evidence in a light most favorable to the non-moving party and afford that party all legitimate inferences. R. 4:46–2(c). So viewed, the facts are as follows: On December 23, 2005, Officer Willie Rowe (plaintiff) was patrolling Lenox Avenue between South Arlington and South Walnut Streets in East Orange, New Jersey as part of the local police department's “Safe Block” initiative. Plaintiff's duties were to “control peoples' entrance on the streets, check the ... vacant apartment buildings and the houses on the street, [and] arrest anyone for criminal violation[s], be it [for] drugs, thefts or warrants.” Sometime between 4:00 p.m. and 5:00 p.m. plaintiff approached a vacant apartment building that was undergoing construction and renovations, to verify that the basement door was secured. The owners of the building in question are Mazel Thirty, LLC and 40–50 Lenox Realty Associates, LLC (defendants). Plaintiff had visited defendants' building once before on a similar patrol.

A set of exterior stairs made of brick and covered in a cement wash led from the sidewalk down to the basement door, and as plaintiff descended, grasping the handrail and shining his flashlight, “the cement that was covering the steps broke.” Plaintiff's left foot got caught on the step and “bent backwards” while his right foot slid down several steps as he held onto the railing with his legs in a “split” position. Although he never fell to the ground completely, plaintiff felt numbness in his left leg and had difficulty limping back up the stairs. At his deposition, plaintiff stated that when he began his descent, the staircase had “the same appearance” as it had had during his previous visit. As a result of the incident on December 23, plaintiff experienced chronic pain in his legs and is no longer able to work as a police officer.

Abraham Brender, the building owners' representative, testified that he was aware of the Safe Block initiative but had never personally seen officers on foot patrol. Brender acknowledged that he had received a notice to cure from the building department regarding an unsecured basement door. He further stated that he was aware that a police officer had come to check the basement door in the past. On that occasion, according to Brender, the building superintendent had sent the officer away after explaining there was ongoing construction work and that the building was locked at night with guard dogs in place after working hours.

Procedurally, the case arose when plaintiff filed suit against defendants alleging that they “carelessly and negligently supervis[ed], maintain[ed] and controll[ed]” their premises and “fail[ed] to adequately warn plaintiff of the hazardous conditions present on the building and stairs.” Defendants moved for summary judgment. Although acknowledging the dangerous condition of the stairs, they argued that plaintiff's presence was unforeseen and that, in any event, plaintiff was aware of the condition of the steps because he had previously been “on that very staircase.” Plaintiff countered that both of those contentions were based on contested issues of fact that required submission to a jury.

The trial judge concluded that defendants could not have foreseen that police officers would be performing their duties at the time and place of the accident; that the defect was obvious; and that plaintiff knew the stairs were dangerous yet proceeded down them. On that basis, he granted summary judgment to defendants.

Plaintiff appealed and the Appellate Division affirmed, finding it unnecessary to determine what duty was owed because “the inescapable conclusion from the record is that plaintiff was aware of the dangerous condition of the property before he decided to descend the stairs[ ]” as a result of his prior visit which “should relieve defendants of potential liability.” We granted plaintiff's petition for certification. 205 N.J. 318, 15 A.3d 326 (2011).

II.

Plaintiff argues that the Appellate Division erred in holding as a matter of law that he knew of the dangerous condition; that issue, and any comparative fault on his part, are disputed and “should have been submitted to a jury.”

Defendants counter that the evidence, including plaintiff's testimony that he had seen the stairs before and that they appeared the same on the date of the accident, along with his use of the handrail and a flashlight, eliminated any question as to whether he was aware of the dangerous condition. According to defendants, the Appellate Division properly ruled that plaintiff's awareness was an “inescapable” conclusion that eliminated any duty on their part. In addition, relying on Cella v. Interstate Properties, 232 N.J.Super. 232, 556 A.2d 1262 (App.Div.1989), defendants argue that because plaintiff's presence on the day of the accident was not foreseen, their only duty was to warn of known latent defects and to refrain from “wanton harm.”

III.

In an appeal involving the grant or denial of a motion for summary judgment, we “employ the same standard [of review] that governs the trial court.” Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330, 9 A.3d 882 (2010) (quoting Busciglio v. DellaFave, 366 N.J.Super. 135, 139, 840 A.2d 897 (App.Div.2004)). Our charge is to determine if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529, 666 A.2d 146 (1995).

Not every issue of fact is material. Ibid. In order to determine materiality, it is necessary first to set forth the contours of the legal issue presented. See, e.g., Canesi v. Wilson, 295 N.J.Super. 354, 685 A.2d 49 (App.Div.1996) (finding summary judgment appropriate in absence of genuine dispute over existence of element of cause of action), aff'd in part, rev'd in part, 158 N.J. 490, 730 A.2d 805 (1999).

A.

We thus turn to the basic principles governing premises liability. Traditionally, special rules applied to public emergency responders injured on private property. The so-called “firefighters' rule” operated “to prevent a firefighter [or other emergency responder] from recovering in tort from a landowner or occupier who has been negligent in starting or failing to curtail a fire [or other emergency condition].” Ruiz v. Mero, 189 N.J. 525, 529, 917 A.2d 239 (2007) (citations and internal quotation marks omitted); see also Berko v. Freda, 93 N.J. 81, 86, 459 A.2d 663 (1983) (applying firefighters' rule to police officers). “[T]he prevalent explanation for the rule was one of public policy: that it was unjust and unfair to compensate firefighters and police for injuries sustained when facing dangers they had been hired to confront.” Ruiz, supra, 189 N.J. at 530, 917 A.2d 239 (citations omitted). Although the original formulation of the rule was limited to bar recovery only for the negligence that was the source of the emergency requiring response, eventually the rule was expanded to “any tangential negligent act ‘posing a hazard that is incidental to and inherent in the performance of the officer's duties.’ ” Id. at 532, 917 A.2d 239 (quoting Rosa v. Dunkin' Donuts, 122 N.J. 66, 76, 583 A.2d 1129 (1991)).

Dissatisfaction with the firefighters' rule, id. at 533–34, 917 A.2d 239, led, in 1993, to the enactment of N.J.S.A. 2A:62A–21 and N.J.S.A. 2A:62A–22, which provide:

In addition to any other right of action or recovery otherwise available under law, whenever any [emergency responder] suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is directly or indirectly the result of the neglect, willful omission, or willful or culpable conduct of any person or entity, other than that [emergency responder's] employer or co-employee, the [emergency responder] suffering that injury or disease, or, in the case of death, a representative of that [emergency responder's] estate, may seek recovery and damages from the person or entity whose neglect, willful omission, or willful or culpable conduct resulted in that injury or death.

....

The rights, remedies and limitations accorded by the provisions of this act are hereby declared to be in addition to and cumulative of the rights, remedies and limitations accorded under law and nothing herein shall be construed to deny, abrogate or impair any such statutory right, remedy or prohibition.

[ N.J.S.A. 2A:62A–21 to –22.]

In Ruiz we declared that that statute abrogated the firefighters' rule in all respects, thus permitting police,...