Opinion
DOCKET NO. A-5912-13T4
07-27-2015
VYACHESLAV PCHELINTSEV, Plaintiff-Appellant, v. JOSEPH T. FRANCE and GAYLE P. GAVIN, Defendants/Third-Party Plaintiffs-Respondents, v. NUSS CONSTRUCTION, Third-Party Defendant.
Alexander Granovsky, attorney for appellant. Law Offices of William E. Staehle, attorneys for respondents (Robert H. Ayik, on the brief)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Lihotz. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2990-12. Alexander Granovsky, attorney for appellant. Law Offices of William E. Staehle, attorneys for respondents (Robert H. Ayik, on the brief) PER CURIAM
Plaintiff Vyacheslav Pchelintsev appeals from an order granting defendants Joseph T. France and Gayle P. Gavin summary judgment and dismissing his complaint alleging defendants were liable for negligently failing to maintain their real property in safe condition. The trial judge granted summary judgment to defendants, concluding plaintiff failed to identify an object or a condition created by defendants' actions that caused his injuries. On appeal, plaintiff suggests the trial judge erred because he presented disputed issues of material fact such that summary judgment was premature. He also argues additional discovery was necessary.
Third-party defendant Nuss Construction was dismissed from the lawsuit. --------
Following our review, in light of the record and applicable law, we are not persuaded. We affirm.
We recite the facts found in the summary judgment record. We view all facts a light most favorable to plaintiff. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014).
Defendants contracted with Nuss Construction (Nuss) to provide home remodeling services, which included the installation of exterior siding. Plaintiff worked for RK Zbarazh, Inc., a sub-contractor hired by Nuss to install the siding.
On November 19, 2010, while working on the exterior of defendants' home, plaintiff descended a ladder he placed against the house. When his foot touched the ground, he slipped forward, fell and injured his ankle and foot.
Plaintiff's complaint alleged defendants' property contained an undisclosed hidden dangerous condition. He described the ground area where he fell as uneven and covered with leaves, stones, roots and construction debris. He believed he "tripped over a stone or a root of [a] tree," then later suggested the object could have been a brick, a piece of wood or a stump. However, plaintiff could not specifically identify the foreign dangerous object on the ground that caused his fall, claiming it was hidden by leaves. Plaintiff remained at the site, but did not inspect the area to determine what caused his fall. His complaint also included an assertion defendants negligently graded the property and failed to perform lawn care, which created a hazardous condition.
In response to discovery, defendants acknowledged items including stumps and a garden hose container were on the property. However, photographs show the hose and stumps were not located in the area where plaintiff fell. Further, all bricks were in the front of the home and not in the side yard.
Plaintiff issued a subpoena, seeking the liability insurer's claim file, prompting defendants' motion for summary judgment.
Defendants' motion asserted plaintiff's inability to identify the allegedly dangerous condition causing his injuries was fatal to his claim. Further, plaintiff provided no expert evidence to prove his theory regarding the property's grading or opine defendants' duty required grading before the siding installation was undertaken. In opposing the motion, plaintiff argued defendants had a duty to inspect for and warn business invitees of latent defective conditions on their property. Also, he asserted the question of whether defendants breached their duty should properly be presented to the jury. Finally, he contended outstanding discovery made consideration of summary judgment premature.
The motion judge reviewed the matter and heard oral argument. The judge found plaintiff's allegation that he slipped on a tree stump was unsupported as no stumps were located on the site of his fall. Also, the judge rejected as speculation plaintiff's assertion defendants' property contained a number of undisclosed hidden dangerous conditions and, therefore, one of them was the cause of his fall. Further, the record contained no evidence showing defendants performed work in the area where plaintiff fell. Accordingly, the judge concluded plaintiff could not prove causation and plaintiff could not show defendants breached their duty of care since there was no proof defendants created a dangerous condition. The judge granted summary judgment to defendants and dismissed plaintiff's complaint. He found no need to extend discovery. This appeal ensued.
We review a summary judgment order using with the same standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Therefore, we apply the standard articulated in Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995), requiring a court, when making
a determination whether there exists a "genuine issue" of material fact that precludes summary judgment . . . to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.See also Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); Davis v. Devereux Found., 209 N.J. 269, 286 (2012). This standard permits the court to consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 533 (citation and internal quotation marks omitted).
Although we must view the evidence in the light most favorable to the non-moving party, "[c]ompetent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Cortez v . Gindhart, 4 35 N . J . Super . 589, 605 (App. Div. 2014) (citation and internal quotation marks omitted), certif . denied, 220 N . J . 269 (2015). "[B]are conclusions in the pleadings without factual support . . . will not defeat a meritorious application for summary judgment." Id . at 606 (quoting Brae Asset Fund , L . P . v . Newman, 327 N . J . Super . 129, 134 (App. Div. 1999)).
Plaintiff initially argues, as a business invitee, defendants owed him a duty to disclose all hazards on their property. He suggests a reasonable jury could find "the leaves and poor upkeep of the property" were dangerous conditions that caused plaintiff's injuries; the leaves, moss, stones and stumps concealed a defect in grading that caused his injuries; or the leaves, moss, stones and stumps concealed pieces of bricks that caused his injuries. He contends these genuine issues of material fact obviate summary judgment. Finally, plaintiff argues summary judgment should not have been granted because discovery was not completed, as the subpoena of the insurer's records remained pending.
The duty of care that a landowner owes 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) (citing Monaco v. Hartz Mountain Corp., 178 N.J. 401, 414-15 (2004)). An invitee is "'one who is on the premises to confer some benefit[] upon the invitor other than purely social.'" D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011) (alteration in original) (quoting Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div.), certif. denied, 174 N.J. 362 (2002).
A homeowner owes a duty to protect business invitees from foreseeable harm. Morris v. Krauszer's Food Stores, Inc., 300 N.J. Super. 529, 534-35 (App. Div.), certif. denied, 151 N.J. 77 (1997). This duty requires exercise of "'reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered.'" Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)).
"It is equally well-settled that the 'landowner is under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work.'" Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457, 463 (App. Div. 1999) (quoting Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996)), certif. denied, 158 N.J. 685 (1999). See also Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 140 (App. Div. 1994) (holding landowners are "not responsible for harm which occurred to an employee as a result of the very work which that employee was hired to perform"), aff'd, 14 3 N.J. 141 (1996).
An independent contractor is one "who, in carrying on an independent business, contracts to do a piece of work according to his own methods without being subject to the control of the employer as to the means by which the result is to be accomplished but only as to the result of the work." Bahrle v. Exxon Corp., 145 N.J. 144, 157 (1996). This exception is carved out of the landowner's general duty to protect his invitees because the landowner may assume that the independent contractor and her employees are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly to ensure their own safety. Dawson, supra, 289 N.J. Super. at 318; Cassano[ v. Aschoff, 226 N.J. Super. 110, 115 (App. Div.), certif. denied, 113 N.J. 371 (1988)].
[Accardi, supra, 317 N.J. Super. at 463.]
Although plaintiff alleges his injury occurred independently of his construction work and not because of it, examination of whether defendants breached their duty to warn plaintiff of a condition on their property cannot be undertaken until and unless plaintiff first identifies the dangerous condition causing his fall. The cause cannot be left to speculation or suggestion. Among possible claimed causes plaintiff included construction debris, a byproduct of the contractor's work, dried leaves and a "stone or root of a tree" all of which result from nature, not defendants' conduct. These causes do not trigger defendants' duty. Plaintiff's alternative suggestions that he slipped on a tree or bush stump or a possibly a loose brick were complete conjecture, disproven by the photographic evidence of the worksite produced by defendants.
To prevail in a negligence action, "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, supra, 221 N.J. 51 (citation and internal quotation marks omitted). Plaintiff's failure to prove causation defeats his claim. We conclude the judge properly entered summary judgment for defendants.
Plaintiff's suggestion summary judgment was premature because discovery remained outstanding lacks sufficient merit to warrant discussion in our opinion. His subpoena represents a fishing expedition, as he cannot explain what facts, crucial to his claim, were contained in the adjustor's file. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION