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Newsletter -
Winter 2008
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In Shosha v. Crofton Common Associates, the New Jersey Appellate Division reversed the trial court’s decision granting Summary Judgment in favor of the Defendant, and finding that the Plaintiff had notice of the alleged hazardous condition. The Appellate Division held that when viewing the facts in a light most favorable to the Plaintiff, there remained an issue of material fact as to whether the Plaintiff had notice of the condition of the parking lot area in which she allegedly slipped and fell.
It is well known in cases involving the slip and fall of an invitee on a landowner’s premises that the occupier of the land owes a duty of reasonable care to make the premises safe, which includes a duty to make reasonable inspections to discover defective conditions. Handleman v. Cox, 39 N.J. 95, 111 (1963). Further, when there is a known dangerous condition on the premises that the occupier could reasonably anticipate that the invitee would not observe and avoid, the occupier must either give warning to the invitee or make the condition reasonably safe. See Snyder v. I. Jay Realty Co., 30 N.J. 303, 316 (1959). In determining whether a duty exists, courts have called for the weighing and balancing of several factors, including the relationship of the parties, the nature of attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. Hopkins v. Fox & Lazzo Realtors, 132 N.J. 426 (1993).
Although courts of New Jersey are clear in the duty owed where the occupier of land is on notice of the alleged dangerous or hazardous condition and the invitee is not, the issue of a landowner’s duty to an invitee who is aware of the alleged hazardous condition is somewhat unclear.
In this case, on May 10, 2003, Plaintiff drove to the Crofton Commons Condominium Complex to visit a friend. Upon arrival, Plaintiff parked her car in the parking lot, exited her vehicle and walked around the front of her vehicle toward the sidewalk. As she was walking toward her friend’s unit, she noticed little pebbles in the area where she was walking. When leaving the premises, approximately three hours later, Plaintiff walked directly toward the passenger side of her car, across an area that had been covered by a parked car upon her arrival. As she approached the passenger side of her vehicle, Plaintiff slipped and fell, ultimately sustaining injuries. During her deposition, the Plaintiff testified that at the time of the accident, she “was walking carefully” because she remembered the pebbles on the ground. In addition, the Plaintiff recalled kicking pebbles out of the way in order to ensure safe passage to her vehicle.
In deciding Defendant’s Summary Judgment Motion, the trial court couched the issue as whether “the duty imposed on the landowner is removed where there is no proof or notice or knowledge of a dangerous condition and if . . . the Plaintiff also had notice of the dangerous condition.” The trial court found that the Plaintiff did have notice and knowledge of the condition as evidenced by the fact that she kicked stones as she proceeded across the lot.
On appeal, the Appellate Division stated that it did not have to address the issue raised by the trial court because the facts did not clearly demonstrate that the Plaintiff had notice of the condition in the exact area where she fell. The fact that the Plaintiff was aware of the presence of stray pebbles in one spot did not necessarily provide her with notice that a similar condition existed in another location of the parking lot. In addition, the Appellate Division found that the Plaintiff’s deposition testimony suggested that the area was not adequately illuminated.
The importance of this decision cannot be understated in the area of premises liability law. The Appellate Division has made it clear that in order to demonstrate that the Plaintiff had notice of a dangerous or hazardous condition prior to the accident, this condition must have existed in the exact area of the accident. As a result, the fact that the Plaintiff had notice of dangerous or hazardous conditions in the surrounding areas, is not, by itself, enough to relieve a landowner from its duty owed.
Rey O. Villanueva, Esq.
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