MARION COSTA, Plaintiff–Appellant, v. SHADOW LAKE VILLAGE CONDOMINIUM ASSOCIATION, INC., THE WENTWORTH GROUP, THE WENTWORTH PROPERTY MANAGEMENT COMPANY, INC.,WORTHMORE CONSTRUCTION & MAINTENANCE COMPANY, INC.,DOWN TO EARTH LANDSCAPING, INC., Defendants–Respondents.
DOCKET NO. A–3892–10T4
-- September 25, 2013
Shebell & Shebell, LLC, attorneys for Appellant (Thomas F. Shebell, III and Richard A. Amdur, Jr., of counsel; Danielle S. Chandonnet, on the brief).Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondents Shadow Lake Village Condominium Association, Inc. And The Wentworth Group (Walter F. Kawalec, III, of counsel and on the brief).
In this slip-and-fall personal injury action, plaintiff Marion Costa appeals from summary judgment orders in favor of defendants Shadow Lake Village Condominium Association, Inc. (Shadow Lake) and its management company, The Wentworth Group (Wentworth).For the reasons that follow, we affirm.
At the time of the accident, plaintiff was a condominium unit owner residing at Shadow Lake, an adult living community located in Red Bank, New Jersey. Worthmore Construction & Maintenance Company, Inc. (Worthmore Maintenance) provided property maintenance services to Shadow Lake. Additionally, Shadow Lake's By–Laws provided: “A Maintenance Committee shall advise the Board of Trustees on all matters pertaining to the maintenance, repair or improvement of both buildings and grounds in the common areas and properties and shall perform such other functions as the Board may determine.”
The accident occurred at approximately 3:20 p.m. on December 3, 2007, while plaintiff was walking up a grassy slope. In an email to Shadow Lake on December 12, 2007, plaintiff stated:
I lost my footing on the lawn in front [of] my condo moving a ․ flowerpot full of dead geraniums my neighbor hid in the woods ․ and slipped into the mud under the grass on all 4's and was dragged backwards feet first, arch hard into ground, until my left ankle, pushed to extremes, snapped and dislocated. I don't know how I ever got myself up alone that afternoon ․ [b]ut I knew no one would find me and I'd get pneumonia in that cold grass/mud․
My clothes were covered in mud as were my sneakers at the hospital where I was
․ admitted and had plates/screws surgically to repair the severe fractures/dislocation.
In an email dated June 17, 2008, plaintiff confirmed the area where she fell was “soggy” from a heavy rainfall:
[My neighbor's] action was the core reason I fell and injured myself so badly—she went and hid all my planters․ If I hadn't seen the ․ planters I couldn't find that afternoon, I'd HAVE NEVER BEEN ON THE SOGGY LAWN which floods so badly every time we get a heavy rain, and it poured the night before and the week before.
Prior to plaintiff's accident on December 3, 2007, she wrote three letters to Shadow Lake concerning drainage problems. The first letter, dated February 5, 2005, stated the shared entryway to her unit was “like an ice skating rink,” “the sidewalks don't drain,” and “the water quickly freezes after dark.” A second letter dated December 10, 2005, stated that “[e]very heavy rainfall, our end of the lower walk in rear is like a river, and we walk ankle deep in water all seasons of the year, oftentimes with bags/packages etc. Every winter the snow drains and melts on this long sidewalk (which is in the shade all day) and becomes an ice skating rink.” Plaintiff's third letter dated November 28, 2006, stated “the water drainage gets so heavy it looks like a river and goes across the rear lawn into the woods.”
In response to plaintiff's letters, Shadow Lake hired Down to Earth Landscaping, Inc., (Down to Earth) to modify the drainage system and integrate it into the existing system. Down to Earth also installed a new paver sidewalk from the entrance platform at plaintiff's unit to the dumpster located on the north side of the unit, and it connected three leader pipes to an existing drain line at plaintiff's unit.
In a nine-count complaint filed on July 21, 2008, plaintiff alleged, among other things, that Shadow Lake “negligently, carelessly, and recklessly fail [ed] to maintain, manage, operate, inspect, clean and control the premises” and, as a result, she fell and sustained “serious, permanent and disabling injuries.” Plaintiff further alleged Wentworth was negligent in its managerial duties by “allowing a dangerous and hazardous condition to exist” on the “walkways and/or adjacent common areas.” 3
In their answer dated August 28, 2008, defendants denied any wrongdoing and alleged that plaintiff's ordinary negligence claims were barred by Article 1, Section 7 of Shadow Lake's By–Laws, which reads as follows:
Members shall recognize that [Shadow Lake] shall not be liable in any civil action brought by or on behalf of a unit owner or spouse to respond in damages as a result of bodily injury or death to the unit owner and/or resident occurring on the premises of [Shadow Lake]. Nothing in this section shall be deemed to grant immunity to [Shadow Lake] causing bodily injury or death by its willful, wanton or grossly negligent act of commission or omission. This section shall apply to actions for injuries or death sustained on or after adoption of this section.4
Defendants also asserted they were entitled to “immunity from all claims of ordinary negligence arising out of injuries occurring on the community's premises” pursuant to N.J.S.A. 2A:62A–13, which provides:
a. Where the bylaws of a qualified common interest community specifically so provide, the association shall not be liable in any civil action brought by or on behalf of a unit owner to respond in damages as a result of bodily injury to the unit owner occurring on the premises of the qualified common interest community.
b. Nothing in this act shall be deemed to grant immunity to any association causing bodily injury to the unit owner on the premises of the qualified common interest community by its willful, wanton or grossly negligent act of commission or omission.
On January 23, 2008, the trial court granted summary judgment to defendants regarding plaintiff's negligence claims.5 In an amended complaint, plaintiff alleged Shadow Lake “willfully, wantonly and with gross negligence failed [to] maintain, manage, operate, inspect, clean and control the premises.” Plaintiff further alleged Wentworth negligently allowed “a dangerous and hazardous condition to exist.” In a second amended complaint, plaintiff included Worthmore Maintenance as a defendant.6 Plaintiff also claimed Worthmore Maintenance failed to take necessary and appropriate actions to prevent or eliminate “a dangerous and hazardous condition.”
Plaintiff submitted an expert report dated April 30, 2009. Plaintiff's expert concluded the ground surface where the accident took place was in a “hazardous condition” due to the “recurrence of storm water accumulation and soil erosion,” and the conditions “were contrary to the Township of Middletown Property Maintenance Code.”
Plaintiff was deposed on July 21, 2009. She testified the weather was cold, clear, and windy on the day of the accident, and she fell while carrying an outdoor planter that weighed about ten or twelve pounds back to her residence. Plaintiff said she fell while “bringing it up the hilly lawn”:
My feet gave out from under me by the lamppost because the grass was not rooted into the mud that was under it, and I fell on all fours, and I started sliding backwards, and it felt like there was 500 pounds on my left ankle pulling my toes to my heel ․ and the arch snapped, and I heard it.
Plaintiff testified she had walked on the lawn “a million times,” and she never complained to Shadow Lake or Wentworth about the specific area where she fell. Plaintiff also testified that the day before her accident, it snowed, then rained, and “poured cats and dogs the minute the sun went down․ It poured after dark, at least eight hours constant pouring.”
On September 30, 2009, Jennifer Allen, the community manager of Shadow Lake, was deposed. Allen testified Wentworth kept a file on each unit owner with all correspondences, and in response to plaintiff's letters, Shadow Lake installed “a paver path to the garbage bin” and “drainage along the sidewalk.” She further explained that Wentworth would not inspect the work done because it was “more administrative as far as that goes in the office with just backing up the Board, and being there for the residents to speak to and complain to.” When asked what action she would take in response to a complaint, Allen testified:
If it's a complaint letter and it's something that needs to be followed up, I would issue a violation after confirming the violation. If it's something that has quite possibly a work order in it, I would pull and put that into Wentworth Connect as a work order. If it's something that needs to be brought to the Board's attention ․ I bring that to the Board.
Allen stated she was not aware of any complaints regarding drainage problems “anywhere else other than the sidewalk area by the building were [plaintiff] resides.” Allen also said Shadow Lake does not maintain the lawn for walking, because “we have sidewalks for that” and “a paved walking path throughout the community.”
In a supplemental report dated January 12, 2010, plaintiff's expert stated:
While the drainage work at the entranceway and along the walkway leading to the parking lot may have addressed that water problem, the discharge from the roof to the left of the entrance area was not addressed in an underground system and left to discharge over the garden, over the walkway, and over the lawn where this accident occurred. The lawn shows evidence of erosion from the movement of water.
The CompuWeather Data shows zero point three five inches (0.35”) of rainfall on December 2, 2007, and zero point four seven inches (0.47”) of rainfall on the day of this accident, December 3, 2007․
The lawn area is open and accessible and common to residents of the community. There are no barricades present to prevent residents from accessing the lawn area and no signs to indicate that they should not access the lawn area or should not access the lawn area when the ground surface is wet. The area where this accident occurred is made slick or slippery due to the erosion caused by the movement of water over the surface. In addition, the soil absorbs water and contributes to the slippery condition.
On December 9, 2010, defendants filed a motion for summary judgment. In support of their motion, defendants included an expert report, which stated: (1) “the condition of the grassy slope where plaintiff slipped and fell was due to the natural characteristic of the soil to absorb water and the rainstorm that ended earlier that day,” (2) “the surface grading and drainage system performs properly and does not deviate from applicable maintenance standards,” and (3) “the condition of the grassy slope was discernible and plaintiff failed to exercise reasonable care and common sense when ascending.”
Following oral argument on January 21, 2011, the trial court granted summary judgment in favor of Shadow Lake, reasoning as follows:
[T]he fact is that these three letters, principally related to the problems with the walks, were responded to. [Shadow Lake] did, in fact, in light of the repeated complaints of the plaintiff in this matter, take remedial steps to resolve the drainage issues.
They retained Down to Earth Landscaping. Down to Earth Landscaping did intervene. Down to Earth Landscaping did conduct a renovation program or project to install a drainage system and integrate it into the existing system and that this project was completed in April 2007, well after the last letter received from the plaintiff.
From that date up to the date of the accident, some seven months or so later, there was never another letter sent by the plaintiff to the defendant putting them on notice that there continued to be a dangerous condition and that it needed to be rectified․
Moreover ․ to the extent the argument is that [Shadow Lake] ignored the problems, that is contradicted unquestionably by these facts. They didn't ignore it, they responded to it. One could argue that the repair work was deficient, but that would be negligence, that certainly couldn't be construed in any way, shape or form under these circumstances as gross negligence.
In this particular case, the area where the fall took place was well outside the area of normal movement or passage․ [T]his was not the area where the plaintiff had to move or walk in order to get back and forth on a regular routine basis.
․ [T]he argument is that this planter in question was removed by a neighbor and was in an area in the woods. So that, on this particular occasion, what gave rise to the fall was something that was not foreseeable. That a neighbor would have an altercation with the plaintiff and remove something to an area that was beyond the scope of normal movement.
So, when I take all of the evidence together and I evaluate it on its merits, I am unable to conclude, given all reasonable inferences to the plaintiff, that these facts can present anything better than a negligence case.
If the court were to find a genuine issue of material fact as to whether or not, under these facts, there can be a finding of gross negligence, then essentially every negligence case is inherently a potential gross negligence case and there would never be a summary judgment granted.
I find that the factual basis here is overwhelming ․ at best, [Shadow Lake] could be held responsible for negligence and for these reasons I must grant summary judgment.
After receiving supplemental briefs, the court also granted summary judgment in favor of Wentworth on February 4, 2011. The court stated:
Wentworth Management, as all of the evidence presented here disclosed, was simply a non-discretionary administrative entity ․ designed to process certain information, not to make discretionary decisions on behalf of the organization.
So, what I have is a situation where it's clear from all concerned that, to the extent there was any complaint or any issue regarding the problem ․ [Wentworth] would simply refer that informationally to the appropriate entity responsible, whether it was the association itself or Worthmore.
As ․ clearly presented here, Wentworth was not an entity that had discretionary functionality in matters of this nature. Nor is there any indication that they were directed by the Board to do anything with regard to this particular issue at this particular time and that in some manner they failed to carry out that duty or responsibility, thus jeopardizing the plaintiff in some way.
Plaintiff argues on appeal the trial court erred because Shadow Lake was grossly negligent for failing to correct a “known significant drainage problem on its premises”; and Wentworth was negligent for failing “to uphold its duty to maintain the property.” We do not agree.
Summary judgment is appropriate where the pleadings and evidence “show 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). As stated by the Court:
[A] determination whether there exists a “genuine issue” of material fact that precludes summary judgment requires the motion judge 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. The “judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L. Ed.2d 202, 212 (1986)).]
When reviewing an order granting summary judgment, we utilize the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998). We first determine “ ‘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 536 (quoting Liberty Lobby, supra, 477 U.S. at 251–52, 106 S.Ct. at 2512, 91 L. Ed.2d at 214). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J.Super. 255, 258 (App.Div.1987). Summary judgment is appropriate in a negligence cause of action when the court is “satisfied a rational fact finder could not conclude defendant breached [its] duty of care.” Endre v. Arnold, 300 N.J.Super. 136, 143 (App.Div.1997).
N.J.S.A. 2A:62A–13 allows a condominium association to restrict, through its by-laws, its premises liability to unit owners for bodily injury. After the adoption of such a by-law, a unit owner can only recover tort damages for bodily injury from the association where “willful, wanton or grossly negligent act[s] of commission or omission” are proven. Ibid.
Because N.J.S.A. 2A:62A–13 does not define gross negligence, we infer the Legislature intended the phrase to have its common law meaning. See Monaghan v. Holy Trinity Church, 275 N.J.Super. 594, 603 (App.Div.1994) (“By granting immunity from gross negligence in some instances and excepting it from grants of immunity in others, the Legislature has made a public policy determination that must be respected by the courts called upon to interpret these statutory enactments.”).
In Oliver v. Kantor, 122 N.J.L. 528, 532 (Sup.Ct.1939), aff'd, 124 N.J.L. 131 (E. & A.1940), the Court observed that “[a]t most, the difference between ‘gross' and ‘ordinary’ negligence is one of degree rather than of quality.” The Court further stated “the commonly accepted definition of the term is the want or absence of, or failure to exercise, slight care or diligence.” Ibid. Further, this court has defined “gross negligence” to mean “ ‘an indifference to consequences.’ ” Banks v. Korman Assocs., 218 N.J.Super. 370, 373 (App.Div.1987) (quoting State v. Gooze, 14 N.J.Super. 277, 282 (App.Div.1951)).
In this case, the findings and conclusions of Judge Paul A. Kapalko are fully supported by the record. There is no evidence to support a finding of gross negligence on the part of Shadow Lake. Furthermore, plaintiff failed to establish a prima facie case that Wentworth negligently performed its administrative responsibilities.
3. FN3. Plaintiff also named Down to Earth as a defendant, but the parties settled and Down to Earth is not a party to this appeal.
4. FN4. There is no dispute that this provision of the By-laws was in effect at the time of plaintiff's accident.
5. FN5. We have not been provided with a copy of the order entered by the court.
6. FN6. The appellate record does not include any responsive pleading from Worthmore Maintenance.