Opinion
DOCKET NO. A-3552-11T4
03-22-2013
MOHAMED SEYAM, Plaintiff-Appellant, v. MOHAMED and SHKILA YUNUM, Defendants-Respondents
Hoyt & Hoyt, P.C., attorneys for appellant (Robert F. Hoyt, on the brief). Marks, O'Neill, O'Brien & Courtney, P.C., attorneys for respondent (Melissa J. Brown, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2885-10.
Hoyt & Hoyt, P.C., attorneys for appellant (Robert F. Hoyt, on the brief).
Marks, O'Neill, O'Brien & Courtney, P.C., attorneys for respondent (Melissa J. Brown, on the brief). PER CURIAM
Plaintiff appeals from an order for summary judgment dismissing his claim for personal injuries. We affirm.
Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the evidence presented in defendants' summary judgment motion revealed the following facts.
Plaintiff, a police officer, was chasing a car burglary suspect on foot through suburban yards in Parsippany after 9:00 p.m. on September 18, 2008. The backyard of defendants Mohamed and Shkila Yunum was surrounded by a six-foot vinyl fence. The suspect and plaintiff both attempted to climb the fence at the same time. They broke down a part of the fence and continued the chase into defendants' backyard.
Unbeknownst to plaintiff, defendants had an in-ground pool that they had drained of its water a few days earlier to make repairs. In the dark, the suspect and plaintiff did not see the empty pool, and both fell in. Plaintiff broke his ankle. He radioed for help, and other officers arrived within a few minutes to assist. Defendants first became aware of the police activity as a result of the commotion in their backyard after the other officers came to the scene. Plaintiff was transported to a hospital, received emergency treatment, and was discharged the same night. He required several orthopedic surgical procedures over the ensuing months to repair his fractured ankle.
Plaintiff filed suit against defendants alleging their property contained a hazardous condition and they failed to warn him so that he might avoid injury. After discovery, the trial court granted summary judgment to defendants, finding that they had no duty to warn plaintiff of the hazard of their empty pool because they had no reasonable expectation that a police officer would break down their fence to enter their property, and because the fence was adequate warning and protection against injury to members of the public. We agree with the trial court's analysis.
In Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38 (2012), the Court held that a police officer conducting a routine community caretaking check of the defendant's unoccupied business property "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, plaintiff argues that he was conducting police work on defendants' property and thus was owed the duty that the landowner owed to any licensee. He argues that defendants failed to warn him of the empty, dangerous, in-ground pool in their backyard, of which they were certainly aware.
We have previously held: "If the property owner knows the officer is present, or where the officer's presence at that location is reasonably foreseeable, and an opportunity exists to warn him, a warning must be given concerning known dangers. The warning must be reasonable under the circumstances." Cella v. Interstate Props., 232 N.J. Super. 232, 241 (App. Div. 1989). Had plaintiff in this case notified defendants that he needed to conduct a search of their backyard for the suspect, it would have been reasonable to expect defendants either to warn the officer of the empty pool or to furnish lighting so that the hazard would be visible. The trial court concluded correctly that defendants did not have a reasonable expectation that the police would vault their six-foot fence and enter their backyard without notifying them.
Even if landowners should be aware that such police activity might occur, plaintiff does not state what form of warning would suffice. A warning sign would hardly be effective in the circumstances that resulted in plaintiff's accident and injury. A police officer chasing a suspect and breaking down a fence to apprehend him would not be in a position to observe and read a warning sign. Also, since plaintiff did not enter through a gate or other entrance, where and how many warning signs would the landowner have to erect to cover the entirety of the fence perimeter that a police officer might vault?
Warnings of dangerous conditions of property can take other forms besides signs, such as ropes, cones, sawhorses, or other barriers. Rowe, supra, 209 N.J. at 47 n.2; Cella, supra, 232 N.J. Super. at 241. A six-foot fence surrounding the entire hazard should have been a more effective barrier than any of these other physical obstructions. By maintaining a fence to enclose their pool, defendants in fact provided the kind of barrier and warning that fulfilled their duty to licensees. Plaintiff ignored the barrier and entered the property without notifying defendants and without being on adequate lookout himself for potential hazards in the dark. A police officer entering private property to conduct emergency police work without the knowledge of the landowner, and in particular not for the benefit of the landowner, should not expect that the property is safe for all activity. Cella, supra, 232 N.J. Super. at 241.
In addition, defendants did not have a duty to keep their enclosed backyard lit throughout the night every night to protect against a potential accident such as the one that occurred. The law did not impose upon defendants the duty to anticipate the unusual police activity and to provide lighting or other such protection against an unforeseen eventuality.
Summary judgment is appropriate where the "evidence 'is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Here, the evidence is so one-sided that defendants could not rationally be found to have been negligent for not providing warning signs or all-night lighting to protect against the accident that befell plaintiff. They provided the kind of barrier and warning that could practically be provided. They had no legal duty to give some other form of warning to plaintiff to avoid the accident that resulted from the police activity.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION