JOSEPH FERNICOLA ROSEMARY FERNICOLA v. PHEASANT RUN AT BARNEGAT PHEASANT RUN HOMEOWNERS ASSOCIATION INC (2010)

Plaintiffs sued for personal injuries sustained in a sidewalk trip-and-fall accident on defendant's property, which is a residential condominium complex.   Initially, plaintiffs' complaint alleged negligence.   During discovery, plaintiffs learned that under the circumstances of this case, they would have to prove gross negligence to succeed.   Consequently, they moved to amend the complaint to allege gross negligence.   Defendant responded with a motion for summary judgment.   Although the trial court denied the motion to amend the complaint, it treated the case as if gross negligence had been alleged and granted defendant's motion for summary judgment.   The basis of the ruling was plaintiffs' failure to produce any facts that would support a finding of gross negligence.   Plaintiffs filed a timely notice of appeal on December 11, 2008.   Subsequently, plaintiffs moved to vacate the dismissal as to the fictitious defendants and add as a defendant Prime Management, Inc. (“Prime Management”).   The trial court entered an order denying the relief sought.   Plaintiffs then filed an amended notice of appeal to include the trial court's refusal to allow the addition of Prime Management as a defendant.

I

The Fernicolas owned and lived in a condominium unit at Pheasant Run at Barnegat, an adult community.   On January 10, 2006, Joseph Fernicola tripped and fell over a raised portion of the sidewalk in a common area.   He and his wife testified that the height differential between the two slabs of the sidewalk was two inches and that in general the sidewalks were not in good repair.   Plaintiff's engineering expert opined that the elevation differential “was not just the typical trip hazard of an elevation differential between two concrete slabs, but a grossly unsafe condition because of the separation of the two slabs that created a gap of entrapment that captured the foot and caused the individual to lose balance and to fall.”   He said that a differential of one-half inch “must be treated with ramped edges to transition the elevation differential.”   He also said that the “failure to even mark such a condition with spray paint showed a gross disregard for safety.”

A representative of Prime Management, the company that manages the property for the homeowners' association, testified that based on photographs taken of the scene, she believed that repairs were not warranted.   She also noted that the company had an employee inspect the common elements about three times a month.   The bylaws of the homeowners association provide, in pertinent part, as follows:

The Association, its Board, its Committees and its agents are not liable in any civil damages action which is brought either by or on behalf of a Unit Owner or her/his spouse for bodily injuries sustained by the Unit Owner or her/his spouse on the premises of the community․  This provision does not apply to any action in which bodily injury is caused by the Association's willful, wanton or grossly negligent act or omission.

II

Since the case was dismissed on summary judgment, we must consider the facts and reasonable inferences in a manner favoring the non-moving parties.   Jenkins v. Anderson, 191 N.J. 285, 305 (2007).   In these circumstances, that entails acceptance of plaintiffs' description of the accident and their expert's opinions respecting the hazard confronted.   It also requires that we assume that defendants knew or should have known of the sidewalk's condition long enough before the accident to have fixed it.

In granting summary judgment, the trial court considered the evidence carefully, including plaintiffs' expert's photographs of the scene of the accident.   The trial court found that “the sidewalk appears to be in remarkably good condition but for the fact that the panel is raised,” and concluded that there was no proof of gross negligence.

The defense case is based on N.J.S.A. 2A:62A-13, which provides as follows:

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 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 of omission.

Clearly, that statute permits organizations, such as defendant, to adopt bylaws excluding their liability to their residents for ordinary negligence, but not for conduct that is willful, wanton, or which can be characterized fairly as gross negligence.

Since the statute does not define gross negligence, we may infer that the Legislature intended the phrase to have its common law meaning.   In Monaghan v. Holy Trinity Church, 275 N.J.Super. 594, 603 (App.Div.1994), we noted that

[t]he Legislature has recognized that there can be different levels of negligence, with the highest level designated as gross negligence, and it has chosen to except gross negligence from statutory grants of immunity where it deems it appropriate.

In Oliver v. Kantor, 122 N.J.L. 528, 532 (Sup.Ct.1939), aff'd o.b., 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.”   And the court added that “the commonly accepted definition of the term is the want or absence of, or failure to exercise, slight care or diligence.”  Ibid. Since under the circumstances of that case, the plaintiff had to prove gross negligence, and since “it was reasonably inferable that there was an absence of ‘slight care or diligence’ in the operation of the vehicle,” the court held that the case was properly submitted to the jury.   Id. at 533.

Despite the somewhat colorful language used by plaintiff's expert engineer, there were no unusual circumstances in this case.   Of course, raised slabs in a sidewalk present a danger to pedestrians, and the failure to discover and remedy the situation could well be described as ordinary negligence.   But it cannot be fairly described, as is required, as constituting the “upper reaches of negligent conduct.”  Parks v. Pep Boys, 282 N.J.Super. 1, 17 n.6 (App.Div.1995).   Allowing this case to be submitted to a jury would completely undermine the Legislature's intent to provide immunity in these circumstances for ordinary negligence.

Plaintiffs objected to the summary judgment motion before the trial court on the ground that discovery was not complete.   And they argue now that had they been permitted to continue discovery, they might have been able to produce evidence of gross negligence.

Plaintiffs had engaged in very substantial discovery, deposing witnesses and receiving relevant documents.   During argument on the summary judgment motion, plaintiffs' counsel indicated only that she was “still waiting on checklists” showing “when people checked areas” and “photographs from defendant.”   Since plaintiffs had photographs of the accident scene, the additional material could only have shown that defendant had actual notice of the condition of the sidewalk long enough before the accident to have been able to remedy the condition using reasonable care.   Because the critical fact here was not notice but the condition of the sidewalk, we fail to see how further discovery could have changed the result.

Although summary judgment is generally inappropriate before discovery has been completed, the opposing party cannot complain unless a showing has been made that “ ‘further discovery will supply the missing elements of the cause of action.’ ”  Wellington v. Estate of Wellington, 359 N.J.Super. 484, 496 (App.Div.), certif. denied, 177 N.J. 493 (2003) (quoting Auster v. Kinoian, 153 N.J.Super. 52, 56 (App.Div.1977)).   Since that is not the case here, the trial court did not err in considering defendant's summary judgment motion when it did.

Plaintiffs argue that the trial court erred in denying their motion to amend the complaint to allege gross negligence.   But leave to amend may be denied when the claim is not sustainable as a matter of law.  Notte v. Merchs.   Mut. Ins. Co., 185 N.J. 490, 501 (2006).   Since the trial court treated the complaint as if it had alleged gross negligence, the request to amend to allege such negligence became moot.

The motion to amend to reinstate the complaint and add Prime Management as a defendant was filed after defendant obtained judgment and plaintiffs had filed their notice of appeal.   At that point, the trial court no longer had jurisdiction to act on a matter of that sort unless so directed by an appellate court.   R. 2:9-1;  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 376 (1995).   We were not asked to remand the case for that purpose and we did not do so.   Consequently, the issue of whether Prime Management should have been added as a defendant is not properly before us.   Furthermore, the fictitious name procedure is no longer available once judgment has been entered, see R. 4:26-4, and thus was not available to plaintiffs when they filed their motion to amend.

Affirmed.

PER CURIAM