DEFENDANTS' SUMMARY JUDGMENT DISMISSAL - PREMISES LIABILITY - HAZARDOUS PREMISES - FALL DOWN - PLAINTIFF PIANO MOVER CONTENDS GRILL PAD ON DECK IMPROPERLY CONSTRUCTED AND CAUSED HIM TO FALL WHILE MOVING PIANO - ACETABULAR FRACTURE REPAIRED WITH INTERNAL FIXATION - 3 METACARPAL CUBOID FRACTURES - PUBIC CANUS FRACTURE - CERVICAL RADICULOPATHY - DEFENDANTS CLAIM THEY BREACHED NO DUTY TO PLAINTIFF - DEFENDANTS MOVE FOR SUMMARY JUDGMENT DISMISSAL.

• Date: 01 June 2022

mond plate was unreasonably slippery, the defendants asserted that

they could not be expected to repair or replace the plate because it

belonged to the co-defendant utility company.

Furthermore, the defendants maintained, there was no evidence that

the defendants knew the plate was slippery or presented a hazard.

Thus, they argued, the court could not impose a duty on the defen-

dants to warn pedestrians such as the plaintiff. Under the circum-

stances presented, the defendant property owners argued that the

court should find the defendants owed no duty to the plaintiff and to

hold otherwise would be fundamentally unfair and would require the

defendants to alter or maintain property they did not own. Moreover,

the asserted, such a requirement would be at odds with municipal or

state codes governing utilities and underground facilities. Thus, they

maintained, under the analysis set forth in Hopkins, the court should

hold that the defendants did not owe a duty to the plaintiff and grant

summary judgment in favor of the defendants.

Theplaintiffopposedthemotionarguingthatthedefendantproperty

owners had a legal duty to the plaintiff and that duty was violated.

The plaintiff maintained that it is undisputed in New Jersey law that a

commercial entity has a duty to insure that the safety of its property

extends to public sidewalks that border its premises to inspect the

abutting sidewalks and to protect its invitees from any dangers that

the inspection would reveal including obstructions, improper con-

struction, the consequences of wear and tear, and the accumulation of

snow and ice, citing Monaco v. Hartz Mountain Corp. 178 N.J. 401

(2004). The plaintiff argued that it was evident from the facts pre-

sented in this case that the defendant commercial property owners

took no actions to ever physically and personally inspect the metal

plate that existed in the main traversing area of their commercial

sidewalk.

In fact, the plaintiff pointed out, the facts and evidence presented also

indicated that the owner of the plate itself, the co-defendant utility

company, additionally took no steps to inspect the diamond plate

cover on the “pull box.” Furthermore, the plaintiff’s expert, after re-

viewing all of the testimony, and personally inspecting the area, at-

tributed the plaintiff’s fall to the worn diamond plate surface, its

location in the center of the sidewalk used by pedestrians, as well as

the wet surface on the day in question. The plaintiff’s engineering ex-

pert additionally cited to the “standard practice for safe walking sur-

faces” sections of the ASTM F 1637, sub-secion 6.2 which states:

“walking surface hardware within foreseeable pedestrian paths shall

be maintained slip resistant.” The standard specifies walking surface

hardware as including junction box covers, cleanout covers, hatches,

sidewalk elevator covers, sewer grates, utility covers, and similar ele-

ments that pedestrians can reasonably be expected to walk on. As

such, the plaintiff’s engineering expert opined that the metal dia-

mond plate in question must be maintained in a slip resistant

condition to provide for public safety.

The plaintiff concluded that the duty to maintain the public sidewalk

includes the obligation to address the consequences of ordinary wear

and tear and that it was evident that neither the defendant property

owners nor the co-defendant utility company owners of the “pull box”

undertook any measure whatsoever to inspect the diamond plate

cover at any time after its installation despite both having full knowl-

edge of its existence and location in the center of the pedestrian walk-

way. The plaintiff maintained that, under the circumstances, the

defendant property owners owed a duty of care to persons such as the

plaintiff and that the defendants breach of that duty was the

proximate cause of the plaintiff’s fall and injuries.

The defendants countered that the plaintiff opposed the motion, as-

serting that there was no dispute that the accident occurred on a dia-

mond metal plate installed and owned by the co-defendant utility

company and that there was no dispute that the defendant property

ownersdidnotown,installormaintainthemetalplate.Theplaintiff’s

opposition reiterated his expert’s opinion that the diamond plate was

inadequately maintained and should have been more slip-resistant.

That argument did not implicate the defendants because they did not

construct or install the diamond metal plate and were not responsible

for repairing or maintaining it.

The plaintiff contended that the defendant property owners knew or

should have known that the diamond metal plate was slippery and

should have warned pedestrians such as the plaintiff. The plaintiff’s

argument speculated that, if the defendants had inspected the dia-

mond metal plate, they would have determined the plate sustained

wear and tear over the years and that it was slippery when wet. The

defendants were not engineers and should not be expected to make

such a determination.

The court denied the defendants’ motion for summary judgment and

the case proceeded.

DEFENDANTS’ SUMMARY JUDGMENT DISMISSAL – PREMISES LIABILITY –

HAZARDOUS PREMISES – FALL DOWN – PLAINTIFF PIANO MOVER CONTENDS GRILL

PAD ON DECK IMPROPERLY CONSTRUCTED AND CAUSED HIM TO FALL WHILE

MOVING PIANO – ACETABULAR FRACTURE REPAIRED WITH INTERNAL FIXATION – 3

METACARPAL CUBOID FRACTURES – PUBIC CANUS FRACTURE – CERVICAL

RADICULOPATHY – DEFENDANTS CLAIM THEY BREACHED NO DUTY TO PLAINTIFF –

DEFENDANTS MOVE FOR SUMMARY JUDGMENT DISMISSAL.

Monmouth County, NJ

In this premises liability case, the plaintiff piano

mover asserted that the defendant homeowners

negligently maintained the deck on their home

such that, when he was moving a piano for the

defendants, he fell off the deck and sustained

significant, permanent injury. The defendants

denied liability for the plaintiff’s injuries. The

defendants argued that the plaintiff, and his co-

workers, were professional movers and, as such,

should have known whether or not it was safe to

move the piano where and in the manner they

did.

On September 22, 2016, the plaintiff was a business

invitee on the defendants’ premises at 28 Willow

Brook Road in Freehold. The plaintiff was employed

as a piano mover with a piano moving company. On

the day in question, the plaintiff was moving the pi-

ano into the defendants’ house via the back door

which was fronted by a deck. As the plaintiff stepped

6FEATURED CASES

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