PRELIMINARY STATEMENT

This action is brought for personal injuries sustained by the plaintiff on the premises of the XXXXX XXX Bakery located in Keansburg.

Plaintiff alleges that she slipped on a pebble, stone or piece of broken sidewalk. The owner of the premises testified at his deposition that repairing the sidewalk was on his to-do list, but that he did not do it, and has not to date, because it would cost him $4,000 to $5,000 (his own “guesstimate”).

Plaintiff sustained permanent injuries to her shoulder and knee that cause her sharp pain on a daily basis requiring her to take painkillers two to three times per day, in addition to Tylenol. She has also sustained psychological damages in the form of depression and anxiety and is taking the anti-depressant, Zoloft, and anxiety medication, Xanax. There are no pre-existing injuries. Plaintiff’s doctor has prepared an expert report providing that her injuries are permanent in nature.

Plaintiff has retained a Civil Engineer with over 40 years experience who prepared an expert report providing that the premises is currently and has been maintained in a dangerous condition and contrary to industry standards.

 Back to the Top

STATEMENT OF UNDISPUTED FACTS

A. In General.

1. The plaintiff is Susan XXXXXX, age 67. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 12:15-16]

2. The accident in question transpired on November 7, 2004. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 10:7-9 and 24:7-13]

B. Arrival at the Bakery.

3. On November 7, 2004, plaintiff stopped at the Defendant XXXXX XXX Bakery (hereinafter "the Bakery") in Keansburg to inquire about sugar-free cookies and for directions to a Chinese auction. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 10:7-9, 24:7-13, 24:14 to 25:7, 26:14-22 and 37:6-20]

4. At the time of the accident, Salvatore XXXXXX was the owner and operator of the Bakery and the property it is located on. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 7:25 to 8:10, 27:25 to 28:9]

5. Mr. XXXXXX owns the store under XXXXXXXXXXXXXXX, Inc. d/b/a XXXXX XXX. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 27:25 to 28:6]

6. The weather at the time was cool and brisk with no rain or snow. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 27:17-24; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 18:1-20]

 Back to the Top

7. Plaintiff arrived at the Bakery at approximately 5:00 p.m. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 27:25 to 28:3; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 19:13-23]

8. Mr. XXXXXX left the Bakery at 3:00 p.m. and returned around 6:00 p.m. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 10:12 to 11:16]

9. Plaintiff was wearing "slip-on" brown shoes at the time, no heels. Otherwise, she was wearing a cape, pants and shirt. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 28:15 to 29:9]

10. Plaintiff's daughter, Theresa XXXXXX (hereinafter “Mrs. XXXXXX”), was driving the automobile when they arrived at the Bakery. She parked to the left of a vestibule entrance to the Bakery. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 30:7 to 31:13]

11. Plaintiff entered the Bakery alone. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 32:4-7; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 21:20-25 and 25:4-8]

12. Plaintiff had no problem walking into the Bakery. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 32:16-20; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 25:16-25]

 Back to the Top

13. Plaintiff noticed some small, approximately one inch, stones, pebbles or pieces of broken sidewalk on the walkway on her way into the Bakery. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 33:19 to 34:23, 40:14 to 41:12 and 42:3-6]

14. The stones, pebbles or pieces of broken sidewalk were loose and moveable. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 42:9-17]

15. The stones, pebbles or pieces of broken sidewalk were gray in color. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 43:3-19]

16. Plaintiff did not kick or "move" any of the pebbles, stones or pieces of broken sidewalk on her way into the Bakery. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 33:24 to 34:6 and 40:23 to 41:4]

18. Mr. XXXXXX testified that the concrete structure of the Bakery is eroding away and "falling apart" from an air conditioner leak. The concrete of the structure is not smooth, neither is the sidewalk and its step. He also attributes the erosion to "old age". [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 22:23 to 25:13, 31:21-24]

19. Mr. XXXXXX testified that he did not make repairs to the eroding sidewalk and concrete structure because it would have cost him $4,000 to $5,000 to repair. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 25:10 to 26:23]

20. Mr. XXXXXX testified that:

Q. I asked you if you had any plans to do the sidewalk?

A. I got plans to fix it, yes.

Q. Before November 7, 2004, before she fell?

A. No. But I always had it in my mind, I had to fix it.

Q. And why didn't you fix it?

A. Why didn't I fix it?

Q. Yes.

A. Because of money.

Q. And idea how much it cost?

A. About $4,000, $5,000 maybe.

[See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 26:11-23]

 Back to the Top

21. Mr. XXXXXX admits that there are stones in the sidewalk at the Bakery. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 17:10-17]

22. Mr. XXXXXX admits that he sees stones or pieces of concrete in the parking lot, but denies that he sees them on the sidewalk. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 28:14-24, 30:1-8, 30:19 to 31:2]

23. Mr. XXXXXX attributes the stones or pieces of concrete in the parking lot to "[s]now, salt, erosion". [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 28:14 to 29:4]

24. The eroded condition of parts of the sidewalk have become worse since Mr. XXXXXX purchased the premises five years ago. He testified:

Q. The condition of the sidewalk that's shown on P-4 with the erosion, has that condition gotten worse over time, from when you brought it?

A. No.

 Back to the Top

Q. So the way it looks in that --

A. The way it looks [sic] five years ago.

Q. It looks the same way?

A. The same way.

Q. What about over here, P-5, which on the right-hand side (indicating)?

A. This one might got [sic] a little bit worse.

Q. Over time?

A. Yes. With the water falling.

[See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 32:22 to 33:15]

26. Plaintiff has retained William XXXXXX, P.E., L.S., to inspect the subject premises. A copy of his cirriculum vitae is attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit F thereof. He is qualified as an expert in that field.

27. Mr. XXXXXX received a Bachelor of Science from the University of Miami in 1951. He also received a Bachelor of Science and Civil Engineering from the same University in 1956. [See Cirriculum Vitae attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit F, Pg. 1 thereof.]

28. Mr. XXXXXX has 21 years experience holding municipal positions in Ocean, Neptune and West Long Branch as an inspector, engineer, sub-code official and construction official. [See Cirriculum Vitae attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit F, Pg. 3 thereof.]

29. Mr. XXXXXX has been licensed by the State of New Jersey as a professional engineer since 1962 and a New Jersey Land Surveyor since 1968. He is still licensed to date. [See Cirriculum Vitae attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit F, Pg. 4 thereof.]

30. Mr. XXXXXX is experienced in forensics related to personal injury, property damage, products liability, machine guarding and traffic accident reconstruction. [See Cirriculum Vitae attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit F, Pg. 8 thereof.]

 Back to the Top

31. In total, Mr. XXXXXX has over 40 years of experience as a Civil Engineer and Construction Official. [See Expert Report attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit G, Pg. 1 thereof.]

32. Mr. XXXXXX inspected the subject premises on April 13, 2005. The inspection concludes that:

The surface of this fifty-four (54) inch wide walkway has extensive scaling. Due to same, the surface mortar had peeled away, exposing course aggregates. It must be noted, that said condition has existed for quite sometime, as evidenced by the worn, exposed stones. Due to these large aggregates being exposed, the surface is not uniform and flush. Thus, persons proceeding over same could be easily caused to trip.

* * * *

... In addition to same, the maintenance of said sidewalk, was contrary to the following general safety practices and rules prevailing in the industry.

[See Expert Report attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit G, Pg. 1 thereof.]

33. Plaintiff exited the store, carrying only her purse, took about two steps and slipped on a stone, pebble or piece of broken sidewalk and fell to the ground. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 37:21 to 39:25 and 41:13-19; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 35:1-22]

 Back to the Top

34. While she was on the ground, plaintiff saw the pebble, stone or piece of broken sidewalk that she slipped on. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 41:20 to 42:2]

35. The pebble, stone or piece of broken sidewalk that she slipped on moved when she stepped on it. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 43:20-25]

36. Plaintiff did not see the pebble, stone or piece of broken sidewalk that she slipped on while she walking into the Bakery. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 42:18-21]

37. A "girl" ran to get Mrs. XXXXXX from the car. Mrs. XXXXXX could not see from where she was parked. A motorcyclist, a "girl", Mrs. XXXXXX and a worker from the Bakery helped plaintiff off the ground. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 48:7-12, 48:25 to 49:4 and 49:20 to 51:12; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 29:5 to 30:1]

38. Mrs. XXXXXX testified that she did not see the accident. [See Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 17:18-22, 32:4-14 and 46:2-6]

39. Mrs. XXXXXX only observed plaintiff exiting the store. Mrs. XXXXXX looked away at that time. When she looked back again she did not see plaintiff. [See Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 27:11 to 29:4 and 33:22 to 34:22]

 Back to the Top

40. Plaintiff advised the worker from the Bakery that she was in "terrible pain". The worked walked back into the Bakery. No one called an ambulance, police, fire department or any other public agency for assistance. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 51:13 to 52:25; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 35:23 to 36:7]

41. Mr. XXXXXX testified that when he returned to the Bakery the day of the accident, he was advised by an employee, Robin XXXXXX, who no longer works there, that there was an accident. Mrs. XXXXXX is who he believes was the before mentioned employee that came out of the store. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 10:4 to 11:16]

42. Mr. XXXXXX testified that he did not have any personal observations of the accident, but Robin told him that she went to the parking lot and helped plaintiff off the ground. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 12:2 to 13:3]

43. Mr. XXXXXX did not check the parking lot for pebbles, stones or pieces of broken sidewalk after learning of the accident. "And I took [Robin's] word to say [sic] there was nothing over here."[See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 13:5 to 15:3]

44. Mr. XXXXXX has no knowledge of the amount of time that lapsed between the accident and his return to the Bakery on the day of the incident. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 15:4-15]

45. Plaintiff's daughter helped her into the car and they left. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 53:12-20; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 30:20-23, 32:15-19, 40:17-20 and 41:5-7]

 Back to the Top

46. Plaintiff was complaining about pain in her leg after she got back in the car. [Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 39:16 to 40:1 and 46:2-6]

47. Plaintiff and her daughter went to the Chinese auction for an hour and then left. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 54:5-19, 54:25 to 55:6 and 38:8-21; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 41:19-22]

48. About an hour after the accident plaintiff started getting sore which turned into "throbbing" pain. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 61:6 to 62:9]

49. Plaintiff and Mrs. XXXXXX did not stay at the Chinese auction until the end. [Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 41:25 to 42:4]

50. When plaintiff left the Chinese auction she was complaining that it was causing her pain to walk. [Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 43:1-6]

51. Plaintiff's husband, Joey, helped her out of the car and into the house when she returned home. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 55:21 to 56:6]

 Back to the Top

52. Plaintiff did not go to the hospital until she returned home and her knee "was getting bigger and bigger". She had also hurt her shoulder. She was brought to Bayshore Hospital's emergency room in Holmdel by her grandson that evening, the night of the accident. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 55:7-9, 56:7 to 58:2, 60:16 to 63:15, 64:17-21; Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 44:6-16]

53. Plaintiff underwent an MRI at the hospital, was provided a brace on her knee, a prescription for Tylenol with codeine and a wheelchair. Her grandson wheeled her out to the car. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 59:11 to 60:11, 65:1-3]

54. Plaintiff sustained no broken bones. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 63:16-21]

55. Plaintiff returned home from the hospital at approximately 11:30 p.m., took the prescribed medication and went to bed. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 65:7-14]

56. Physican's notes from Bayshore Community Hospital from the night of the accident provide that plaintiff suffered knee and shoulder injury and leg swelling. [See Physician's Notes attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit E thereof]

 Back to the Top

57. Plaintiff treated with her family doctor, Lin XXXXXX, M.D., the following day. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 65:15-23]

58. Dr. XXXXXX referred plaintiff to Dr. XXXXXX. She first treated with Dr. XXXXXX approximately one week after the accident. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 65:20 to 66:2]

59. Dr. XXXXXX gave plaintiff shots in her shoulder of what she believed to be Cortisone. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 66:3-15]

60. Dr. XXXXXX sent plaintiff for additional x-rays and MRI's. He determined from the films that her knee required surgery, which plaintiff had not received as of the date of her deposition. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 66:16 to 69:1]

61. Since her deposition, plaintiff has begun preparing to have the knee surgery by Dr. XXXXXX. She must have a cardiogram, chest x-ray and blood work beforehand. [See Plaintiff's Amended Answer to Form A Interrogatory No. 4 attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit D thereof]

62. Plaintiff treated with Dr. XXXXXX about 10 times for the injuries related to the accident by the time of her deposition. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 71:2-11]

 Back to the Top

63. Dr. XXXXXX has submitted an expert report providing that plaintiff's injuries are permanent in nature. [See Expert Report attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit H, Pg. 2 thereof.]

64. Plaintiff's shoulder still hurts her, to date. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 69:8-17 and 72:23 to 73:7]

65. Plaintiff's knee, to date, still hurts her. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 72:23 to 73:7]

66. Plaintiff's knee, to date, causes her "terrible pain" and "sharp" pain on a daily basis. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 73:8-22, 74:23 to 75:1 and 75:23 to 76:1]

67. As of the date of her deposition, two years after the accident, plaintiff's knee was still swolen. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 75:4-11]

68. Plaintiff showed her swolen knee to defendant's counsel, Robert MacDonald, Esq., during her deposition. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 75:12-22]

69. Plaintiff's knee, to date, often "locks", she cannot climb stairs and she cannot walk much. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 73:8-15]

 Back to the Top

70. Plaintiff takes a painkiller, Ultracet, two to three times a day. She also takes Tylenol for pain. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 73:23 to 74:14]

71. Plaintiff is depressed on a daily basis and no longer loves to cook, take care of her home, go to movies, go shopping with her daughter, sit outside with her family and go out with her girlfriends. She now does basically "nothing". [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 76:10 to 77:10, 80:24 to 82:1, 84:10-23 and 85:6-23]

72. Mrs. XXXXXX testified that since the accident, she and plaintiff hardly shop, go out to eat and spend time together and with Mrs. XXXXXX's children. They used to do that at least once a week. [See Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 16:12-20]

73. Mrs. XXXXXX testified that she used to see plaintiff more often, but plaintiff hardly leaves the house anymore after the accident. [See Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 10:24 to 11:8]

74. Plaintiff frequently complains to Mrs. XXXXXX that her leg is in pain and that she is having a difficult time walking. [See Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 46:18 to 47:14]

75. Plaintiff no longer reads because she cannot pay attention. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 85:18-23]

76. Plaintiff's relationship with her husband is strained due to her depression and changed habits which causes her even more depression. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 76:22 to 77:4]

 Back to the Top

77. Plaintiff no longer attends social events at the VFW, stating that "I don't want to be bothered with anybody". [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 78:1 to 79:3]

78. Plaintiff has been prescribed Zoloft as an anti-depressant and Xanax for anxiety. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 9:14-17, 79:4-6]

79. Plaintiff did not walk with a cane or a limp before the accident and did not use a back brace, knee brace, arm brace or "anything". [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 56:7-]

I. No Pre-Existing Injuries.

80. Plaintiff has had three accidents in the past:

(a) Twenty or thirty years ago a cardboard box of fruits and vegetables fell on her in a grocery store. She did not need to go to the hospital, had only minor injuries (no broken bones, torn muscles, etc.) and she healed properly. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 16:23 to 19:9]

(b) The second accident involved a can of tomatoes falling off the shelf at a Shop-Rite. She had a swolen toe that healed properly. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 19:10 to 20:10 and 21:14-21]

(c) As stated above, plaintiff was 67 years old at the time of her deposition. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 12:15-16] The third accident was a motor vehicles accident when she was about 17 years old. She broke her left leg. She felt discomfort for "a while". [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 21:22 to 23:17]

 Back to the Top

81. Prior to the accident, plaintiff never treated with a psychiatrist. She was in group counselling about 15 years ago for depression. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 80:10-18]

82. Plaintiff’s only bout of depression since she was in group counselling was when her mother died six years ago and when her daughter was born she had postpartum depression. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 79:17 to 80:9]

83. Mrs. XXXXXX, was born in 1959. [See Theresa XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit B thereof, 9:16-19]

84. There are no pre-existing injuries in this matter, and plaintiff has not suffered any injuries since the accident in question. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 16:23 to 21:21 and 23:14-17]

SUMMARY JUDGMENT STANDARD

Our court rules permit a party to move for Summary Judgment at any point following thirty-five (35) days of a responsive pleading and when there is proof that no genuine issue of material fact exists. R. 4:46-1.

In Brill v. Guardian Life Insurance Company of America, 142 N.J. 520 (1995), the Supreme Court set forth new principals guiding summary judgment, changing the law that was previously set forth in Judson v. People Bank and Trust Company of Westfield, 17 N.J. 67 (1954) which stated:

 Back to the Top

The standard of decision governing grants or denials of the summary judgment emphasis that a party opposing a motion is not to be denied a trial unless the moving party sustain the burden or showing clearly the absence of a genuine issue of material facts. At the same time, the standards are to be applied with discriminating care so as not to defeat a motion for summary judgment if the movant is justly entitled to one.

The Brill court held that the standard of summary judgment evaluation should be similar to those required for a motion for directive diverted, namely: Whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that the party must prevail as a matter of law.

The Brill court held “under this new standard, determination whether there exists a genuine issue of material fact that precludes summary judgment requires the motion judge to consider whether the component evidential materials presented, when viewed in the light most favorable to the moving party, are sufficient to permit a disputed issue in favor of a non-moving party… The import of our holding is that when the evidence is so one-sided that the party must prevail as a matter of law. The trial court should not hesitate to grant summary judgment. Id. at 540 (citations omitted, emphasis supplied).

In considering all of the material evidence before it, to determine is there is any genuine issue of material fact that, is a sufficient factual disagreement to require submission to a jury; the court must within the bounds of reason, view most favorable those items presented to it by the party opposing the motion. Brill at 540.

On any motion for summary judgment, the Court must grant all favorable inferences to the non-movant. See Id. at 536. In the context of summary judgment, it is only the instance when “the evidence is so one-sided that one party must prevail as a matter of law that the trial court should not hesitate to grant summary judgment.” Id. at 540, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Where reasonable minds could differ, summary judgment must be denied. Id. at 540.

 Back to the Top

ARGUMENT

I. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THERE ARE NO DISPUTED FACTS REGARDING DEFENDANT’S ACUTAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION ON THE PREMISES PRIOR TO THE ACCIDENT

A business owner's liability to business invitees for failing to remediate dangerous conditions on the business' premises is well established. A business owner is liable if, inter alia, it had actual or constructive knowledge of the dangerous condition.

Business owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation. The duty of due care requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe. Ordinarily an injured plaintiff asserting a breach of that duty must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Equitable considerations have, however, motivated this Court to relieve the plaintiff of proof of that element in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents. In those circumstances, we have accorded the plaintiff an inference of negligence, imposing on the defendant the obligation to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.

Nisivoccia v. Glass Gardens, Inc.
175 N.J. 559, 564-65 (2003) (citations omitted).

There is no material dispute in this action that defendants had actual or constructive knowledge of the dangerous conditions on the premises. He admitted this during his deposition, stating that he did not perform the necessary repairs because did not want to pay $4,000 to $5,000 for the service. He testified that:

 Back to the Top

Q. I asked you if you had any plans to do the sidewalk?

A. I got plans to fix it, yes.

Q. Before November 7, 2004, before she fell?

A. No. But I always had it in my mind, I had to fix it.

Q. And why didn't you fix it?

A. Why didn't I fix it?

Q. Yes.

A. Because of money.

Q. And idea how much it cost?

A. About $4,000, $5,000 maybe.

[See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 26:11-23]

Mr. XXXXXX also admits that he sees stones or pieces of concrete in the parking lot, but denies that he sees them on the sidewalk, and contributes it to erosion. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 28:14 to 29:4, 30:1-8, 30:19 to 31:2]

Defendants’ moving papers provide that he scans the Bakery's parking lot every morning for things that need to be picked up, but that is not what he testified to during his deposition. Mr. XXXXXX testified that his employees sweep the parking lot "[e]very once in a while". [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 17:18-21, 18:4-9 and 28:14-18]

 Back to the Top

Assuming arguendo that Mr. XXXXXX is being truthful, his testimony does not establish an affirmative defense. Whether he looks for dangerous conditions in the parking lot and cleans it as he sees it has nothing to do with the stones, pebbles or pieces of broken sidewalk that plaintiff had slipped on. Defendant may not point to eliminating one dangerous condition as an affirmative defense to failing to eliminate another one. Defendant has not referred the court to an authority for that legal position.

II. DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW

Defendant is not entitled to summary judgment as a matter of law for the reasons set forth in Point I, supra. Defendant has admitted to having been aware of the dangerous condition and not fixing it because it would cost him $4,000 to $5,000. [See Salvatore XXXXXX's deposition transcript attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit C thereof, 26:11-23]

Plaintiff testifed that once she was on the ground, she saw the pebble, stone or piece of broken sidewalk that she slipped on. [See Plaintiff’s Deposition Transcript Attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit A thereof, 41:20 to 42:2] Defendant has not submitted any evidence to controvert this. Plaintiff has also submitted an expert report to the effect that the premises has been maintained in a dangerous condition. [See Expert Report attached to the Accompanying Certification of Christopher D. XXXXXX, Esq., Exhibit G thereof.] Defendant has not submitted an expert report to the contrary.

 Back to the Top

CONCLUSION

For the foregoing reasons, the court should deny defendant's motion for summary judgment and grant plaintiff's cross-motion for summary judgment.

Respectfully Submitted,

LAW OFFICES OF XXXXXX & XXXXXX, P.C.


______________________________________
Christopher D. XXXXXX, Esq.
Attorney for Plaintiff

 Back to the Top