                                NOT FOR PUBLICATION WITHOUT THE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-1395-17T3

WILLIAM M. REINHARDT,

          Plaintiff-Appellant,

v.

MAUREEN GORNOWSKI and
ROBERT GORNOWSKI,

     Defendants-Respondents.
_______________________________

                    Submitted November 8, 2018 – Decided November 26, 2018

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-0345-16.

                    Joseph P. Grimes, attorney for appellant.

                    Law Offices of Styliades and Jackson, attorneys for
                    respondents (Madhumita Dey, on the brief).

PER CURIAM
      Plaintiff William M. Reinhardt appeals from an October 13, 2017 order

granting defendants Maureen and Robert Gornowski summary judgment and

dismissing plaintiff's complaint. We affirm.

      The following facts are taken from the record. The parties are neighbors

and reside in Cherry Hill. Plaintiff had been residing next door when defendants

purchased their residence in 1984. In January 2014, plaintiff sustained facial

abrasions when he tripped and fell on a raised slab of the public sidewalk in

front of defendants' residence while walking his dog. The sidewalk slab had

been forced upwards because of a tree root growing beneath it.

      Defendants admitted they had planted many trees on their property, but in

the backyard. Although defendants were aware of the raised sidewalk, they

denied planting trees near the sidewalk and there was no evidence in the record

to the contrary. Additionally, some evidence was adduced during discovery that

the parties disliked one another. Defendants repaired the sidewalk after the

incident because they were cited by Cherry Hill Township for violating an

ordinance, which required homeowners to maintain their sidewalk.

      The motion judge concluded there was no evidence defendants planted the

tree, which caused the sidewalk to buckle and become raised. The judge found

the evidence of the parties dislike for one another was insufficient to undermine


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the credibility of defendants' claims they had not planted the tree. The judge

stated "I'm having a little difficulty determining what a jury is expected to do

with these facts."

      The judge noted "the case law generally . . . says . . . residential propert[y]

. . . owners are not responsible but in very limited instances." The judge also

noted there was no expert testimony to date the tree to a point in time after

defendants' arrival so, as to permit a jury to conclude defendants had planted the

tree. Given the "flat out denial on the part of the defendants[,]" the judge

concluded plaintiff failed to carry his burden, and therefore entered summary

judgment.

                                         I.

      "[W]e review the trial court's grant of summary judgment . . . under the

same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC

v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)). The court considers all of

the evidence submitted "in the light most favorable to the non-moving party,"

and determines if the moving party is entitled to summary judgment as a matter

of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The

court may not weigh the evidence and determine the truth of the matter. Ibid.


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                                         3
If the evidence presented "show[s] that there is no real material issue, then

summary judgment should be granted." Walker v. Atl. Chrysler Plymouth, 216

N.J. Super. 255, 258 (App. Div. 1987) (citing Judson v. Peoples Bank & Tr. Co.

of Westfield, 17 N.J. 67, 75 (1954)). "[C]onclusory and self-serving assertions

by one of the parties are insufficient to overcome [summary judgment]." Puder

v. Buechel, 183 N.J. 428, 440-41 (2005).

      On appeal, plaintiff argues defendants' ill will towards him, coupled with

their improbable claim of having planted many trees — but not the offending

tree — and their subsequent removal of the offending tree, was enough evidence

of a genuine dispute of material fact to survive summary judgment. Plaintiff

also urges we establish an exception to the general body of residential sidewalk

immunity case law, and that we find liability where, as here, the condition of the

sidewalk violated an ordinance requiring sidewalks be maintained in a safe

manner. In his reply brief, plaintiff points to another unpublished decision

where another panel imposed liability, and urges uniformity in our approach.

      To sustain a cause of action for negligence, a plaintiff must prove four

elements: (1) a duty of care, (2) breach of that duty, (3) proximate cause, and

(4) actual damages. Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008). The

burden is on the plaintiff to establish these elements "by some competent proof."


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                                        4
Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Overby

v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953)).

      "[T]he question whether there is a 'duty' merely begs the more

fundamental question whether the plaintiff's interests are entitled to legal

protection against the defendant's conduct." J.S. v. R.T.H., 155 N.J. 330, 338

(1998) (alteration in original) (quoting Weinberg v. Dinger, 106 N.J. 469, 481

(1987)). "[I]mplicated in this analysis is an assessment of the defendant's

'responsibility for conditions creating the risk of harm' and an analysis of

whether the defendant had sufficient control, opportunity, and ability to have

avoided the risk of harm." Id. at 338-39 (quoting Kuzmicz v. Ivy Hill Apts.,

Inc., 147 N.J. 510, 515 (1997)). "Ultimately, the determination of the existence

of a duty is a question of fairness and public policy." Id. at 339 (citing Clohesy

v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997)).

      Indeed,

            The scope of a duty is determined under "the totality of
            the circumstances," and must be "reasonable" under
            those circumstances.      Factors to be taken into
            consideration include the risk of harm involved and the
            practicality of preventing it. When the defendant's
            actions are "relatively easily corrected" and the harm
            sought to be prevented is "serious," it is fair to impose
            a duty. In the final analysis, the "reasonableness of
            action" that constitutes such a duty is "an essentially


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                                        5
            objective determination to be made on the basis of the
            material facts" of each case.

            [Id. at 339-40 (citations omitted).]

"Even as to foreseeable risks, however, it has been cautioned that 'not all

foreseeable risks give rise to duties.'" Ivins v. Town Tavern, 335 N.J. Super.

188, 195 (App. Div. 2000) (quoting Williamson v. Waldman, 150 N.J. 232, 251

(1997)).

      The principles governing liability of a property owner for the injuries

arising from a dangerous condition of an abutting sidewalk are well-established.

In Yanhko v. Fane, 70 N.J. 528, 534-37 (1976), the Supreme Court reaffirmed

the long-standing principle "that, absent active misconduct, property owners

would not be liable for dangerous sidewalk conditions." Luchejko v. City of

Hoboken, 207 N.J. 191, 201-02 (2011) (recognizing the Court's affirmance of

the common law rule in Yanhko, 70 N.J. at 534-37). The Supreme Court has

taken special care to underscore that residential owners are unlike "commercial

landowners [who] are responsible for maintaining in reasonably good condition

the sidewalks abutting their property and are liable to pedestrians injured as a

result of their negligent failure to do so." Stewart v. 104 Wallace St., Inc., 87

N.J. 146, 157 (1981).



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                                        6
      Indeed, in Luchejko the Court reaffirmed the "commercial/residential

dichotomy" noting that it "represents a fundamental choice not to impose

sidewalk liability on homeowners[.]" 207 N.J. at 208. The Court stated the rule

had been in place for almost three decades, and the rationale "remains sound[.]"

Id. at 209. The Court stated "[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. Moreover, a plaintiff cannot establish a prima

facie case of liability of a residential homeowner merely by presenting proof

that the sidewalk was in a dangerous condition. Murray v. Michalak, 114 N.J.

Super. 417, 419 (App. Div. 1970) (citing Lambe v. Reardon, 69 N.J. Super. 57,

64-65 (App. Div. 1961)).

      Additionally, it also is well established a municipal ordinance requiring

property owners to repair or maintain abutting sidewalks does not create a tort

duty running from the property owner to a party injured as a result of a dangerous

condition on the sidewalk. Luchejko, 207 N.J. at 200-01; Yanhko, 70 N.J. at

536. The rationale for this rule "is that such ordinances are not adopted for the

intended purpose of protecting individual members of the public, but rather are

to impose upon those regulated 'the public burdens of the municipal

government.'" Luchejko, 207 N.J. at 200-01 (quoting Fielders v. N. Jersey St.


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                                        7
Ry. Co., 68 N.J.L. 343, 355 (E. & A. 1902)). Also, where a defendant has been

cited for violation of an ordinance and thereafter taken steps to comply with it,

N.J.R.E. 407 clearly prohibits reliance on subsequent remedial measures "to

prove that the event was caused by negligence or culpable conduct."

      Here, it is undisputed defendants are residential property owners. There

is no evidence defendants planted the offending tree or that its appearance post-

dated their ownership of the residence.       There is no evidence defendants

negligently installed, repaired, or maintained the sidewalk. Thus, there is no

direct evidence of defendants' liability. Furthermore, as the motion judge found,

the lack of a neighborly relationship would not lead the jury to infer defendants

were liable. Instead, the facts presented in this case would only cause a jury to

speculate as to liability. Lastly, as we noted, the municipal ordinance violation

and subsequent remedial measures taken by defendants do not create liability as

a matter of law. Thus, plaintiff did not establish a prima facie case of liability

to survive summary judgment. 1

      Affirmed.


1
   Contrary to the argument raised in plaintiff's reply brief, there is nothing
inconsistent between the outcome of this case and our published and
unpublished cases in this subject matter, because our de novo review of
summary judgment is always fact sensitive, while the legal principles we have
applied have remained uniform.
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