DOROTHY SPRUCE VS. ROUTE 18 SHOPPING CENTER ASSOCIATES, (L-5162-13, MIDDLESEX COUNTY AND STATEWIDE)
A-0048-16T3
| N.J. Super. Ct. App. Div. | Nov 16, 2017Background
- Plaintiff (general manager at Burger King) tripped on a mulch-covered tree stump in the restaurant parking lot on April 2, 2012, injuring her right knee; she alleged the stump was concealed by mulch.
- Burger King had a maintenance contract with FM Facility Maintenance (FM); FM contracted Northwest Companies (Northwest) for landscaping; Northwest subcontracted exterior maintenance to Pino's Landscaping (Pino's).
- Contracts limited Pino's scope: mulching was expressly not approved and stump removal required prior authorization/work orders; Pino's performed a March 30, 2012 “spring cleanup” (first time at this site) and believed stump removal was not authorized.
- There was no evidence any defendant performed the mulching that concealed the stump or created the hazardous condition; a photo after Pino’s work showed no visible stumps.
- Plaintiff often inspected the landscaping herself and had not noticed the stump before the accident.
- Trial court granted summary judgment for FM, Northwest, and Pino’s, finding no duty or breach; plaintiff appeals, arguing duty, notice, inspection obligations, control/vicarious liability, and expert testimony admissibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants owed a legal duty to inspect/remove the stump | Defendants (FM/Northwest/Pino's) owed a duty to inspect and prevent hazards on premises they maintained | Contracts limited scope; no contractual or common-law duty to inspect for or remove this concealed stump | Court: No duty; summary judgment affirmed |
| Whether Pino's had actual/constructive knowledge of the stump | Pino's should have known of stumps during spring cleanup and remedied hazard | Pino's had limited, authorized scope (no mulching/stump removal), first visit, no evidence it created/observed this specific hidden stump | Court: No evidence Pino's knew of or created the specific hazard; no breach |
| Whether FM/Northwest are vicariously liable for Pino's acts or had control | Plaintiff: Northwest exercised sufficient control over Pino's to impose vicarious liability; FM had supervisory duties | Defendants: Contracts show limited, specified scope; no control to create inspection duty or liability for prior vendors' work | Court: No basis to impose vicarious liability or broader duty based on contract scope |
| Admissibility of plaintiff's expert opinion (code violation causation) | Expert opined FM violated municipal property maintenance code causing accident | Defendants: Expert’s opinion is speculative and lacks factual predicate (net opinion) | Court: Expert opinion excluded as net opinion; insufficient factual foundation |
Key Cases Cited
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995) (summary judgment standard; view evidence in favor of nonmovant)
- Bhagat v. Bhagat, 217 N.J. 22 (2014) (appellate review of summary judgment standard)
- D'Alessandro v. Hartzel, 422 N.J. Super. 575 (App. Div. 2011) (elements of negligence)
- Carvalho v. Toll Bros. & Developers, 143 N.J. 565 (1996) (duty is question of law; scope of duty inquiry)
- Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) (duty analysis, public policy considerations)
- Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) (factors for duty: foreseeability and policy)
- Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496 (1997) (foreseeability in premises liability)
- Acuna v. Turkish, 192 N.J. 399 (2007) (factors to evaluate imposition of duty)
- Buckelew v. Grossbard, 87 N.J. 512 (1981) (rejecting unsupported ‘net’ expert opinions)
- Jimenez v. GNOC, Corp., 286 N.J. Super. 533 (App. Div. 1996) (expert must explain reasons — the why and wherefore, not mere conclusion)