MELVIN SCHINDELHEIM VS. YIFEI TIAN (L-3980-15, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5618-16T3
MELVIN SCHINDELHEIM,
Plaintiff-Appellant,
v.
YIFEI TIAN,
Defendant-Respondent.
________________________________
Argued May 31, 2018 – Decided June 14, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
3980-15.
John J. Del Casale argued the cause for
appellant (M. Mark Mendel, Ltd, attorney; John
J. Del Casale, on the brief).
George B. Keahey argued the cause for
respondent (Venema, Proko, Keahey & Dalvet,
attorneys; George B. Keahey, on the brief).
PER CURIAM
In this residential sidewalk slip-and-fall case, plaintiff
appeals from the August 7, 2017 Law Division order denying his
motion for reconsideration of the court's June 23, 2017 order
granting defendant's motion for summary judgment, and dismissing
plaintiff's complaint. We affirm.
There is no dispute as to the material facts. While walking
to his son's house, plaintiff tripped over a broken sidewalk that
was adjacent to defendant's residential home, fell on the ground,
and injured his shoulder. Defendant had purchased the property
about seventeen months earlier, and resided there with her two
children. Defendant had never made any repairs to the sidewalk
adjacent to her property during the time her family lived there,
and she did not create the alleged defect that caused plaintiff's
fall.
It is well established, and plaintiff does not dispute, that
"absent negligent construction or repair," a residential property
owner like defendant "does not owe a duty of care to a pedestrian
injured as a result of the condition of the sidewalk abutting the
landowner's property." Mohamed v. Iglesia Evangelica Oasis De
Salvacion, 424 N.J. Super. 489, 492 (App. Div. 2012) (citing
Stewart v. 104 Wallace Street, 87 N.J. 146, 153 (1981)).
Accordingly, defendant filed a motion for summary judgment. When
plaintiff did not respond, Judge Andrea G. Carter granted the
motion and dismissed plaintiff's complaint.
Thereafter, plaintiff's attorney asserted that he had never
received defendant's summary judgment motion and, therefore, he
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filed a motion for reconsideration on behalf of plaintiff. In an
accompanying certification, the attorney acknowledged that under
current decisional law, "defendant had no liability for the
injuries suffered by . . . plaintiff in this case." However, the
attorney stated that had he been able to respond to the defendant's
motion, he "would have encouraged [the trial judge] to consider
whether the time has come for the [c]ourts of the State of New
Jersey to reconsider the[se] holding[s]."
After conducting oral argument, Judge Carter reviewed
plaintiff's contention, denied his motion for reconsideration, and
kept her summary judgment ruling in place. In a thorough oral
opinion, the judge found that defendant was a residential property
owner, who owed no duty to plaintiff for the condition of the
sidewalk adjacent to her property. Defendant had never engaged
in any commercial activity and did nothing to cause the alleged
defect in the sidewalk. Therefore, the judge followed the existing
precedents and dismissed plaintiff's complaint. This appeal
followed.
On appeal, plaintiff argues that the judge erred in denying
his motion for reconsideration. He also asserts that New Jersey
should recognize for the first time that residential property
owners owe a duty of care to pedestrians who walk on sidewalks
abutting their homes. Both contentions lack merit.
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Although the judge denied plaintiff's motion for
reconsideration, she nevertheless permitted plaintiff to contest
defendant's motion for summary judgment, and rendered a thoughtful
and comprehensive oral decision explaining her decision not to
disturb her prior order dismissing plaintiff's complaint. Thus,
even if plaintiff did not receive defendant's original motion, he
was not prejudiced in any way because he was able to fully respond
to it. We are satisfied that the judge did not abuse her discretion
by proceeding in this fashion. Cummings v. Bahr, 295 N.J. Super.
374, 389 (App. Div. 1996) (stating that we review the denial of a
motion for reconsideration to determine whether the trial court
abused its discretionary authority).
As noted above, long-existing precedents clearly establish
that a residential property owner like defendant does not owe a
duty of care to a pedestrian who slips and falls on a sidewalk
adjacent to their property where the owner has not caused the
defect in the walkway. Because there was no dispute as to any of
the material facts, and defendant was entitled to judgment as a
matter of law, Judge Carter properly granted summary judgment to
defendant and dismissed plaintiff's complaint. Conley v.
Guerrero, 228 N.J. 339, 346 (2017).
As for plaintiff's request that we "overturn" the binding
rulings in Stewart and other Supreme Court cases, we note that it
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is not the intermediate appellate court's "function to alter [a]
rule" squarely decided by the Supreme Court. In re Educ. Ass'n
of Passaic, 117 N.J. Super. 255, 261 (App. Div. 1971). Because
we are bound by our Supreme Court's precedents, we decline
plaintiff's invitation to overturn them. See White v. Twp. of N.
Bergen, 77 N.J. 538, 549-50 (1978) (stating that trial and
intermediate appellate courts are "bound, under the principle of
stare decisis, by formidable precedent" of the Supreme Court).
Affirmed.
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