WENDY CHERRY-HERNANDEZ VS. JOAO C. RIBEIRO (L-4646-16, HUDSON COUNTY AND STATEWIDE) ( 2018 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-2034-17T4
    WENDY CHERRY-HERNANDEZ,
    Plaintiff-Appellant,
    and
    RAFAEL HERNANDEZ,
    Plaintiff,
    v.
    JOAO C. RIBEIRO and NIVIA
    D. CHAVES,
    Defendants,
    and
    MARIA A. RIBEIRO,
    Defendant-Respondent.
    ______________________________
    Argued November 15, 2018 – Decided December 4, 2018
    Before Judges Accurso and Vernoia.
    On appeal from Superior Court of New Jersey, Law
    Division, Hudson County, Docket No. L-4646-16.
    David L. Wikstrom argued the cause for appellant
    (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins,
    attorneys; Gregg A. Wisotsky and Timothy J. Foley, on
    the briefs).
    John M. Aufiero argued the cause for respondent
    (Gregory P. Helfrich & Associates, attorneys; John M.
    Aufiero, on the brief).
    PER CURIAM
    Plaintiff Wendy Cherry-Hernandez appeals from an order granting
    defendant Maria Ribeiro summary judgment dismissing the complaint in this
    slip-and-fall personal injury matter. Because we are convinced there are genuine
    issues of material fact precluding a determination that defendant is immune from
    liability as a matter of law under the principles in Luchejko v. City of Hoboken,
    
    207 N.J. 191
    , 210 (2011), we reverse and remand for further proceedings.
    Plaintiff's complaint alleged she suffered personal injuries and other
    damages when she "sustained a fall on the driveway and/or sidewalk" of
    defendant's property in Kearny. She alleged defendant's negligent creation,
    maintenance and failure to correct hazardous conditions on "the driveway and/or
    sidewalk" caused her to fall and resulted in her injuries. Following a period of
    discovery, defendant moved for summary judgment, contending she was entitled
    to immunity from plaintiff's claim because plaintiff fell on a part of the driveway
    that constituted a sidewalk abutting defendant's residential property.
    A-2034-17T4
    2
    We discern the following undisputed facts from the record before the
    motion court and view the facts and all reasonable inferences therefrom in the
    light most favorable to plaintiff, the non-moving party. Bauer v. Nesbitt, 
    198 N.J. 601
    , 605 n.1 (2009); R. 4:46-2(c). Defendant owns a residence in Kearny.
    During the evening of October 30, 2015, plaintiff fell and injured her right foot
    and ankle while walking on broken tar on the driveway of defendant's residence.
    The asphalt driveway ran perpendicular to the road in front of the residence and
    interrupted a concrete sidewalk that runs parallel to the road. An individual
    walking on the concrete sidewalk in front of defendant's residence is required to
    cross defendant's asphalt driveway in order to continue walking on the sidewalk.
    Plaintiff fell on defendant's driveway and sustained her injuries.
    Prior to plaintiff's fall, defendant last resurfaced the driveway in 2005. No
    repairs had been made to the driveway since that time. Plaintiff alleged that
    uneven and cracked tar on the driveway caused her fall.
    The court reserved decision after hearing oral argument on defendant's
    summary judgment motion. In a December 1, 2017 order, the court found
    "[r]esidential property owners are exempt from liability 'unless they create [or]
    exacerbate a dangerous sidewalk condition.' Luchejko v. City of Hoboken, 
    207 N.J. 191
    , 210 (2011)."     The court noted the exemption applies unless the
    A-2034-17T4
    3
    property owner affirmatively acts to build or repair a sidewalk in a manner that
    makes it dangerous. The court further determined it was not "negligen[t] per
    se" for defendant to "have asphalt instead of concrete on the sidewalk" and there
    was no evidence suggesting defendant negligently maintained or constructed the
    driveway.   The court concluded "[d]efendant is exempt from liability as a
    residential property owner" and entered an order dismissing the complaint. This
    appeal followed.
    We review a grant of summary judgment under the same standard as the
    motion court. Globe Motor Co. v. Igdalev, 
    225 N.J. 469
    , 479 (2016). We must
    analyze "the competent evidential materials submitted by the parties to identify
    whether there are genuine issues of material fact and, if not, whether the moving
    party is entitled to summary judgment as a matter of law." Ellis v. Hilton United
    Methodist Church, 
    455 N.J. Super. 33
    , 37 (App. Div. 2018) (citation omitted).
    Summary judgment should be denied unless the moving party's right to
    judgment is so clear that there is "no room for controversy." Akhtar v. JDN
    Props. at Florham Park, LLC, 
    439 N.J. Super. 391
    , 399 (App. Div. 2015)
    (quoting Saldana v. DiMedio, 
    275 N.J. Super. 488
    , 495 (App. Div. 1994)).
    If no genuine issue of material fact exists, we "decide whether the trial
    court correctly interpreted the law."       DepoLink Court Reporting & Litig.
    A-2034-17T4
    4
    Support Servs. v. Rochman, 
    430 N.J. Super. 325
    , 333 (App. Div. 2013) (quoting
    Massachi v. AHL Servs., Inc., 
    396 N.J. Super. 486
    , 494 (App. Div. 2007)). This
    court's review is de novo, affording no deference to the motion judge's legal
    conclusions. Nicholas v. Mynster, 
    213 N.J. 463
    , 478 (2013).
    The motion court's grant of summary judgment is founded on "the basic
    principle that residential property owners are not liable for" injuries caused by
    abutting sidewalks. Luchejko, 
    207 N.J. at 204
    . In Luchejko, the Supreme Court
    noted that "[r]esidential homeowners can safely rely on the fact that they will
    not be liable unless they create or exacerbate a dangerous sidewalk condition."
    
    Id. at 210
    . The Court explained that its imposition of a duty on commercial
    property owners to maintain abutting sidewalks in Stewart v. 104 Wallace
    Street, Inc., 
    87 N.J. 146
     (1981), was a departure from the common law rule "that,
    absent active misconduct, property owners would not be liable for dangerous
    sidewalk conditions." Luchejko, 
    207 N.J. at 201-02
    . The common law rule
    survives as to residential property owners. 
    Id. at 204
    .
    Although the motion court accurately summarized the well-established
    principles of sidewalk liability and immunity discussed in Luchejko, it did not
    make the findings of fact required by Rule 1:7-4(a). Critically missing from the
    court's statement of reasons is a factual finding that is essential to its
    A-2034-17T4
    5
    determination that defendant is immune from liability under Luchejko; there is
    no finding that the place where plaintiff fell is a sidewalk. It is appropriate to
    reverse a grant of summary judgment where the court fails to make the findings
    of fact mandated by Rule 1:7-4(a), Estate of Doerfler v. Fed. Ins. Co., 
    454 N.J. Super. 298
    , 301 (App. Div. 2018), and we do so here. An appellate court's
    function "is to review the decision of the trial court, not decide the motion [for
    summary judgment] tabula rasa." Id. at 302.
    Further, to the extent we can infer the court determined defendant had
    immunity based on a factual finding that plaintiff fell on a sidewalk abutting
    defendant's residential property, the court erred because the record presented
    genuine issues as to the material facts upon which the court's legal conclusion
    was dependent. See Globe Motor Co., 225 N.J. at 485-86 (holding summary
    judgment is inappropriate where there are genuine issues of material fact). The
    principles discussed in Luchejko apply to sidewalks. 
    207 N.J. at 201-02
    . Here,
    plaintiff presented evidence showing she fell on defendant's asphalt driveway
    which, giving plaintiff all reasonable inferences, merely abutted a sidewalk.
    Thus, there is a genuine fact issue as to whether plaintiff actually fell on a
    sidewalk at all.
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    Moreover, a residential property owner's immunity for injuries caused by
    sidewalks abutting his or her property is not absolute.                "Residential
    homeowners" are liable where "they create or exacerbate a dangerous sidewalk
    condition." 
    Id. at 210
    ; cf. Nash v. Lerner, 
    157 N.J. 535
     (1999) (adopting the
    appellate panel's dissenting opinion finding a residential homeowner immune
    from liability for injuries caused on a sidewalk that traversed the homeowner's
    driveway because the homeowner's affirmative act did not cause the hazardous
    condition).   Plaintiff presented evidence showing defendant resurfaced the
    driveway and thereafter failed to maintain it, and that its deterioration created
    the hazardous condition which caused her fall and injuries. Thus, even if it is
    determined as a matter of fact that the location of plaintiff's fall constituted a
    sidewalk, there is a further factual issue as to whether defendant created or
    exacerbated a hazardous condition. See Luchejko, 
    207 N.J. at 210
    . These fact
    issues precluded the court's determination that defendant is entitled to residential
    sidewalk immunity as a matter of law.
    Reversed and remanded for further proceedings in accordance with this
    decision. We do not retain jurisdiction.
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