Soc'y Hill at Univ. Heights Condo. Ass'n v. Sloan

• Decision Date: 17 May 2023
• Docket Number: A-2328-21
• Parties: SOCIETY HILL AT UNIVERSITY HEIGHTS CONDOMINIUM ASSOCIATION, III, INC., Plaintiff-Respondent, v. LUCY SLOAN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

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SOCIETY HILL AT UNIVERSITY HEIGHTS CONDOMINIUM ASSOCIATION, III, INC., Plaintiff-Respondent,
v.
LUCY SLOAN, Defendant-Appellant.

No. A-2328-21

Superior Court of New Jersey, Appellate Division

May 17, 2023

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.

Submitted April 18, 2023

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1435-19.

Schwartz Barkin & Mitchell, attorneys for appellant (Allen J. Barkin, on the brief).

Litvak & Trifiolis, PC, attorneys for respondent (Thomas W. Griffin, on the brief).

Before Judges Rose and Perez Friscia.

PER CURIAM

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Defendant Lucy Sloan appeals from a February 23, 2022 Law Division judgment entered following a bench trial, which dismissed with prejudice Sloan's counterclaims against plaintiff Society Hill at University Heights Condominium Association III, Inc. (Society Hill). Sloan seeks reversal and remand for a new trial. More particularly, Sloan claims the trial court erred in dismissing her counterclaims for violation of the Condominium Act, N.J.S.A. 46:8B-1 to -38, breach of fiduciary duty, and negligence; and for failing to apply the doctrine of res ipsa loquitur. After our review of the record, the parties' arguments, and the applicable legal principles, we affirm the dismissal of Sloan's negligence claim, concluding the doctrine of res ipsa loquitur does not apply, and reverse and remand the dismissal of the claims under the Condominium Act and breach of fiduciary duty.

We limit our recitation of the procedural history and facts to the pertinent issues on appeal. The following testimony was adduced at trial.

Sloan is an owner of a condominium unit at Society Hill at University Heights, on Vaughan Drive in Newark, which she purchased in 2011. Society Hill is the condominium association responsible for maintaining the property pursuant to its bylaws. Sloan pays homeowners' association fees for maintenance of the surrounding property and related common elements. Sloan

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ceased paying homeowners' association fees to Society Hill because of continued flooding issues and placed the fees into an escrow account each month.

Society Hill filed a complaint to collect the outstanding fees, and Sloan filed an answer and counterclaims. Society Hill's claims were dismissed with prejudice on December 20, 2019, leaving only the counterclaims for trial. The counterclaims pleaded were: (1) breach of contract, (2) negligence, (3) breach of the implied covenant of good faith and fair dealing, (4) breach of fiduciary duty and (5) breach of statutory duty to maintain common areas under the Condominium Act, N.J.S.A. 46:8B-14(a) to -18. Sloan sought compensatory damages and injunctive relief. Regarding equitable relief, Sloan sought an award "deem[ed] just and proper." Regarding the Condominium Act, Sloan alleged Society Hill "breached their statutory duty for failing to maintain the common area of the sidewalk and drainage directly outside [d]efendant's property." As to breach of fiduciary duty, Sloan alleged Society Hill "breached [its] duty to sue the developer . . . general contractor for construction defects . . . [and] to maintain the common elements outside of the [p]roperty."

At issue here is Society Hill's obligation to maintain and repair the common elements near Sloan's unit. Section 5.11(A) of Society Hill's bylaws

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addresses the general duties owed in maintaining the common elements. The common elements provision is as follows:

A. General Duties. The operation, maintenance, renewal, replacement, insurance, care, and upkeep, of the Buildings in the Condominium, the Common Elements (except as specifically provided for otherwise), the community and recreational facilities and all other property, real or personal, of the Association. The responsibility for the operation, maintenance, renewal, replacement, insurance, care, and upkeep, of the Buildings in the Condominium, the Common Elements (except as specifically provided for otherwise) and any other property for which the Association is responsible shall become the responsibility of the Association immediately upon conveyance of title to the first unit in any building to an individual purchaser by the Sponsor.

Sloan's unit is comprised of two stories. The only entrance is located below the level of the sidewalk. It is necessary to descend several steps to enter the unit. Vaughan Drive is a horseshoe-shaped, curved walkway encircled by other condominium units. Near Sloan's unit, on Society Hill grounds, is a catch basin covered by a manhole. The basin is located at the corner of Vaughan Drive and West Market Street and is connected to the City of Newark drainage system. During heavy rainstorms, flooding recurred on the sidewalk and property surrounding Sloan's condominium unit. Sloan testified the conditions of the common elements caused water to leak into the unit because clogged storm

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drains backed up and overflowed. Located near Sloan's unit is a retaining wall that starts on West Market Street and continues on a downhill slope to the sidewalk on Vaughan Drive. Due to the wall's location, the water runoff overflows from the manhole during heavy rainfall and is directed to Sloan's unit. The wall stops before Sloan's unit, worsening the downhill channeling of water toward her unit. Sloan testified, "[m]y first floor is below street level, so, the water com[es] from the common area on the street[,] com[es] down the stairs and it go[es] inside the door, through under the . . . door."

At trial, Sloan demonstrated seven separate flooding incidents occurred between the time she purchased the condominium in 2011 through August of 2018. Sloan attempted to introduce evidence of two additional floods from 2020 and 2021, but the trial court appropriately precluded the additional flooding evidence because it was not provided in discovery. Sloan maintained she was unable to obtain flood insurance due to the number of previous floods.

Sloan testified she requested Society Hill address the common areas to alleviate the flooding issues on numerous occasions. In seeking resolution, Sloan spoke to "[a]lmost every manager," noting management changed "many times," including "the [p]resident." Everyone assured Sloan "that they [were] going to fix it."

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In August of 2018, Society Hill retained Boyd Persad, a contractor, to address the flooding situation. Persad performed an inspection of Society Hill's common elements because "the occupants in that Vaughan Drive area [claimed they] experienced some type of flooding." After an examination of the problem, Persad concluded "the problem still goes all the way . . . closer to the street. That's where the problem occurs. It backs up all the way from the street into . . . where [Sloan's] unit is." Persad installed sandbags, which were ineffective at preventing the flooding. At some point, cement blocks were placed in the area to prevent the flooding, which were also unsuccessful.

Addressing the issues he discovered with the drainage, Persad stated:

[W]e have a problem there from the city - on the city's main drains. My opinion they might be undersized, so, when a big storm happens the - there's nowhere for the water to run off from this property onto the street. So, at the corner of - that would be West Market Street and Vaughan Drive there's a huge catch basin. That thing pops up - the cover for it pops up because of the - the sheer amount - the force of the water going downhill on the main street, which is West Market Street, forces that drain up, and that's where I know which has always been a problem from day one.

Persad testified as a lay witness and was not qualified as an expert at trial.

Later in Persad's testimony, however, the following exchange occurred:

[SOCIETY HILL'S COUNSEL]: [W]hen you were asked to come out to the property and inspect the

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property, did you ever find any problem with the water flow in drains that were located on the Society Hill property?

[PERSAD]: No . . . doing our periodic maintenance we would . . . send the cameras, and actually have the guys go down, and . . . we never had a problem. They functioned . . . very well.

After a two-day bench trial, the court reserved decision. On February 23, 2022, the trial court issued a written opinion, identifying the claims before it as follows: "The counterclaim by the condo owner Lucy Sloan, plaintiff on the counterclaim . . . alleging a breach of...