                                NOT FOR PUBLICATION WITHOUT THE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-2846-17T4

CURTIS MCCANTS and
CLARINE MCCANTS,

          Plaintiffs-Appellants,

v.

MACK KENNEDY,
ANNETTE KENNEDY,
and CLEVON MCCANTS,

     Defendants-Respondents.
______________________________

                    Argued January 29, 2019 – Decided February 28, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-3385-16.

                    Michael N. Beukas argued the cause for appellants
                    (Davis, Saperstein & Salomon, PC, attorneys; Michael
                    N. Beukas, of counsel and on the briefs; Kelly A.
                    Conlon, on the briefs).

                    George B. Keahey argued the cause for respondent
                    Annette Kennedy (Venema, Proko, Keahey & Dalvet,
                    attorneys; Jeanne M. Proko, on the brief).
PER CURIAM

        Plaintiffs Curtis McCants (McCants) and Clarine McCants appeal the

grant of summary judgment to defendants, Mack Kennedy, 1 Annette Kennedy

(Kennedy), and Clevon McCants (Clevon), of their slip and fall personal injury

matter involving defective steps and ice. 2 Because we find that material disputed

issues of fact existed, we now reverse and remand for further proceedings.

                                         I.

        Kennedy and her husband owned the subject three family home in Newark

at the time of McCants' slip and fall accident on January 18, 2015. McCants and

his wife have resided in the second floor apartment since 2003, without a written

lease, and their son, Clevon, resides on the third floor. 3 On the day of the

accident, McCants left his apartment and attempted to descend the front steps ,

which are made of bricks. Freezing rain was coming down at the time. He

contends that while holding the handrail, his left foot slipped; he tried to place

his right foot on one of the brick steps to catch his fall, but the brick got loose


1
  Regrettably, Mr. Mack Kennedy passed away during the pendency of these
proceedings.
2
  The civil presiding judge entered a subsequent order on February 26, 2018,
dismissing the case with prejudice for failure to appear at trial.
3
    Clevon is not involved in this appeal.
                                                                           A-2846-17T4
                                         2
and broke, causing him to lose his balance and fall. At his deposition, McCants

testified that he purposefully stepped on that particular brick because there was

"no issue" with it. The front steps were the only means of ingress and egress

from McCants' apartment. As a result of his fall, McCants suffered a displaced

and comminuted three-part proximal humerus fracture of the right arm and

shoulder, requiring surgery.

      Clevon testified at his deposition that prior to his father's accident, he

verbally complained to Kennedy that the steps "were chipped, cracked and some

of the bricks [were] loose[,]" and "when you step[ped] on it, you could easily

twist your ankle." He further testified "when the stairs were messed up, there

was nowhere safe [to walk] . . . because until you got down there, you had to

hold on to the rail . . . at all times." In the summer of 2014, Clevon showed

Kennedy the steps that needed repair and pointed out defective areas. Kennedy

testified at her deposition that she visited the property weekly, and on a daily

basis during the summer preceding the accident, to perform yardwork, clean up

debris, and to mow the lawn.

      In order to address the defective front steps, she hired Eugene Sutton, a

contractor, to repair them on two occasions prior to McCants' fall. According

to Kennedy, Sutton repaired cracks, chipped steps, and replaced some of the


                                                                         A-2846-17T4
                                       3
bricks.4 Most of the work was performed on the first three bottom levels of the

stairs according to Sutton, who was deposed, and "not as much" on the upper

four levels where McCants fell. Photographs of the steps were served during

discovery.   Clevon was shown the photographs at his deposition and he

commented that they were misleading because bricks that appeared stable and

secure would "just come out when you step[ped] on it." Sutton testified that he

removed and replaced "all loose bricks," and gaps in between bricks were

"repaired and pointed up." Kennedy also contends that she is absolved from

liability as to the steps because she hired Sutton to repair them, and that she had

no duty to clear snow and ice while freezing rain was falling at the time of

McCants' fall.

      Plaintiffs allege that as the landowner, Kennedy had an affirmative duty

to remove snow and ice from the steps, and to repair the defective steps since

she was clearly on notice of same. The parties retained experts to opine as to

the condition of the steps, the precipitation at the time of the accident, and

proximate cause.     Plaintiffs' expert, Kenneth J. Stoyack, an architect and

planner, opined that McCants slipped and fell because of "icy conditions present



4
 During oral argument, counsel acknowledged that Kennedy's home is over one
hundred years old.
                                                                           A-2846-17T4
                                        4
on the stair treads and surfaces[,] and broken . . . structurally unsound brick

masonry treads." He further concluded that "[t]he variations in the riser height

and tread depth are attributed to the loose and deteriorating brick masonry. Riser

heights and tread depths were not uniform because of deteriorating masonry."

He explained that:

              [t]he brick masonry treads required repointing and
              replacement, brick mortar joints required new
              mortar[s], and areas of open brick mortar joints
              required repointing or removal of the brick and
              replacement with new mortar joints. All of these
              conditions represent maintenance and repair required
              on the subject exterior stairway.     [It] appeared
              structurally unsound and dangerous.

In relying upon the Multiple Dwelling Code,5 he concluded that the steps were

"not maintained in a safe condition," thereby creating a hazard, unrelated to the

precipitation event in progress at the time of McCants' fall.

        Kennedy's expert, Mark S. Suchecki, a professional engineer, came to the

opposite conclusion and stated that the subject brick had an "internal flaw," not

visually apparent upon inspection.          Suchecki criticized Stoyack for not

providing an "explanation or opinion as to the mechanism of the brick fracture .

. . ." Suchecki opined that because the brick that broke was "not due to lack of



5
    N.J.A.C. 5:10-6.1, -6.3, -6.4.
                                                                          A-2846-17T4
                                        5
inspection or maintenance of the steps by . . . Kennedy[,]" no duty of care was

breached. No analysis of the Multiple Dwelling Code or any statutes was

proffered by Suchecki.

      Following discovery, Kennedy filed for summary judgment, arguing

plaintiffs failed to produce evidence in support of their claims. After oral

argument, the motion judge granted the motion and set forth his reasons on th e

record finding:

            There's no duty on the landlord - - or the landowner, in
            a storm to go out and every two seconds sweep off the
            stairs to keep . . . the snow or ice from accumulating.

                  ....

            The issue here is, - - by - - the plaintiff's own testimony,
            the plaintiff comes, steps down on a - - brick that he
            thought was solid and believed to be solid, and the end
            of the brick falls - - cracks off, and then - - as a result
            of that - - there's a fall, and the plaintiff is injured.

            I don’t see there's a duty here. I don't see that the notice
            issue is here. The stairs are not in the best condition,
            but that's not the point. The point here, is that
            apparently from the reasonable inferences against the
            movant . . . . I don't see how there's a breach of a duty
            here.

            That being the case, I'll grant the application for
            summary judgment.




                                                                           A-2846-17T4
                                         6
      On appeal, plaintiffs argue that the motion judge erred in granting

summary judgment because there exists genuine issues of material fact as to

whether Kennedy owed a non-delegable duty of care to McCants to properly

maintain the residence by clearing snow and ice accumulations and repairing the

brick steps, and as to whether she failed to comply with the New Jersey Hotel

and Multiple Dwelling Law. Plaintiffs further argue that the motion judge

improperly expressed his personal opinions relative to masonry principles in

granting summary judgment, and he failed to consider the expert opinions as

raising triable issues of fact. We agree.

                                       II.

      In reviewing the grant or denial of summary judgment, we apply the same

standard which governs the trial court under Rule 4:46-2(c).          Perrelli v.

Pastorelle, 206 N.J. 193, 199 (2011); Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App.

Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J.

436, 445-46 (2007)).      Summary judgment is granted where the record

demonstrates "no genuine issue as to any material fact challenged and . . . the

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c); see Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 329-30 (2010); see


                                                                         A-2846-17T4
                                        7
also Brill, 142 N.J. at 540. We review issues of law de novo and accord no

deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster,

213 N.J. 463, 478 (2013).

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

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

(4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo

v. Cty. of Essex, 196 N.J. 569, 585 (2008)). "It is generally plaintiff's burden to

prove not only that defendant was negligent, but also that defendant's negligence

was a proximate cause of the injuries and damages suffered." O'Brien (Newark)

Cogeneration, Inc. v. Automatic Sprinkler Corp. of Am., 361 N.J. Super. 264,

274 (App. Div. 2003) (citing Paxton v. Misiuk, 34 N.J. 453, 463 (1961)).

      "The test of negligence is 'whether the reasonably prudent person at the

time and place should recognize and foresee an unusual risk or likelihood of

harm or danger to others.'" Scully v. Fitzgerald, 179 N.J. 114, 125-26 (2004)

(quoting Trentacost v. Brussel, 82 N.J. 214, 222 (1980)). Summary judgment

may be appropriate if there is no legal basis for finding the existence of a duty

or where defendants were not the proximate cause of plaintiff's injuries.

      Foreseeability as a determinant of duty must "be distinguished from

foreseeability as a determinant of whether a breach of duty is a proximate cause


                                                                            A-2846-17T4
                                        8
of an ultimate injury." Clohesy v. Food Circus Supermarkets, 149 N.J. 496,

502-03 (1997). In the context of the duty determination, foreseeability is

             the knowledge of the risk of injury to be apprehended.
             The risk reasonably to be perceived defines the duty to
             be obeyed; it is the risk reasonably within the range of
             apprehension, of injury to another person, that is taken
             into account in determining the existence of the duty to
             exercise care.

             [Id. at 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144
             (1977)).]

In other words, the probability of injury to another is the basis for the creation

of a duty to avoid such injury, and therefore the test of negligence is whether "a

reasonably prudent and careful person should have anticipated, under the same

or similar circumstances, that injury to the plaintiff or to those in a like situation

would probably result." Kuzmicz v. Ivy Hill Park, 147 N.J. 510, 533 (quoting

Hill, 75 N.J. at 144). Accordingly, "[f]oreseeability in the proximate cause

context relates to remoteness." Clohesy, 149 N.J. at 503.

      In the context of proximate cause, on the other hand, foreseeability

"relates to 'the question of whether the specific act or omission of the defendant

was such that the ultimate injury to the plaintiff' reasonably flowed from

defendant's breach of duty." Ibid. (quoting Hill, 75 N.J. at 143).




                                                                              A-2846-17T4
                                          9
      As to the former, it is well-settled that a landlord has a duty to exercise

reasonable care to keep the premises in a reasonably safe condition to guard

against foreseeable dangers arising from the use of the premises. Coleman v.

Steinberg, 54 N.J. 58, 63 (1960); Scully, 179 N.J. at 118. Foreseeability of an

unreasonable risk of harm to the reasonable person is the crucial factor in

determining whether a duty exists.      Trentacost, 82 N.J. at 223; Jensen v.

Schooley's Mountain Inn., Inc., 216 N.J. Super. 79, 81 (App. Div. 1987) (citing

Caputzal, 48 N.J. at 75).     In other words, a landlord's duty arises when

foreseeable harm exists that falls within the landlord's control. Scully, 179 N.J.

at 123 (citing Braitman v. Overlook Terrace Corp., 68 N.J. 368, 382-83 (1975)).

      Thus, our courts have recognized a duty to exercise reasonable care to

prevent foreseeable danger arising out of numerous circumstances. See e.g., id.

at 126-27 (recognizing a duty to guard against the risk of fire); Trentacost, 82

N.J. at 223 (recognizing a duty to ensure "adequate security against foreseeable

criminal conduct"); Coleman, 54 N.J. at 63-64 (recognizing a duty of reasonable

care with respect to the maintenance and operation of heating systems);

Skupienski v. Maly, 27 N.J. 240, 248 (1958) (recognizing a duty of reasonable

care in the maintenance of private sidewalks); Dwyer v. Skyline Apartments,




                                                                          A-2846-17T4
                                       10
Inc., 123 N.J. Super. 48, 52 (App. Div. 1973) (recognizing a duty of reasonable

care in the maintenance of plumbing and electrical equipment).

                                       III.

      We first address plaintiffs' argument that there are genuine issues of

material fact precluding summary judgment in favor of Kennedy. N.J.A.C. 5:10-

6.1 requires owners of multiple dwelling units to be "responsible at all times for

keeping all parts of the premises occupied . . . clean and free of infestation and

hazards to the health or safety of occupants and other persons in or near the

premises[,]" and N.J.A.C. 5:10-1.6(c) requires owners to uphold "at all times . .

. the safe maintenance of the building . . . ." N.J.A.C. 5:10-6.4(a) requires that

the

            exterior of the premises and all structures thereon shall
            be kept free from all nuisances, insanitary conditions,
            and any hazards to the safety or health of occupants . .
            . and any of the foregoing conditions shall be promptly
            removed and abated by the owner or operator. It shall
            be the duty of the owner or operator to keep the
            premises free of such conditions which include, but are
            not limited to the following:

                  ....

            Holes, excavations, breaks, projections, obstructions,
            litter, icy conditions, uncleared snow and excretion of
            pets and other animals on paths, walks, driveways,
            parking lots and parking areas and other parts of the
            premises. Holes and excavations shall be filled and

                                                                          A-2846-17T4
                                       11
            repaired, walks and steps replaced and other conditions
            removed where necessary to eliminate hazards or
            insanitary conditions with reasonable dispatch upon
            their discovery . . . .

            [N.J.A.C. 5:10-6.4(a)(4) (emphasis added).]

      Construing the facts in the light most favorable to plaintiffs as the non-

moving parties, we disagree with the motion judge that there are no genuine

issues of material fact. We note the conflicts in the expert reports on several

key facts. Stoyack opined that Kennedy had a duty to maintain the exterior

steps, clear ice and snow, ensure that the bricks and mortar joints were

structurally sound and properly repaired or reconstructed. Her failure to fulfill

this responsibility "was a blatant violation" of New Jersey maintenance

regulations according to Stoyack. In contrast, Suchecki opined that "[t]here was

no significant time period which anyone could have cleaned the ice from the

steps prior to [McCants'] reported slip and fall[,]" that there was an undetectable,

latent defect with the brick, and that Stoyack did not substantiate his opinions.

      When there are competing expert opinions, summary judgment is

inappropriate because "a trial court should never decide on its merits a dispute

on which a rational jury could go either way." Pressler & Verniero, Current N.J.

Court Rules, cmt. 2.3.2 on R. 4:46-2 (2019); See Davin, LLC v. Daham, 327

N.J. Super. 54, 71 (App. Div. 2000) (holding that summary judgment on a legal

                                                                            A-2846-17T4
                                        12
malpractice claim should have been denied when there were conflicting expert

certifications). In light of the factual dispute arising from the conflicting expert

reports, summary judgment was inappropriate.

                                        IV.

      We next address plaintiffs' argument that the motion judge improperly

expressed his own personal opinions as to masonry. In his oral decision, the

judge stated:

            I'll give it to you, if in fact he stepped on it and the
            whole brick fell out [be]cause the mortar wasn't there
            or whatever, I'll give you that, that clearly there's a - -
            there's an issue with regard to prior notice existing. But
            if he steps down on a brick that - - previously was fine,
            and the end of the brick cracks off itself, as [t]he [c]ourt
            notes for the record, these stairs, apparently the treads,
            if you will, of the stairs, to a certain extent, the bricks
            do stick out slightly as - - I'm familiar with masonry,
            stairs are built that way, that the tops - - the treads, if
            you will are - - are fanned out along this particular set
            of stairs, and that they - - occasionally there's - - the
            edges of the brick - - the edge of the tread, when he
            would step on, sticks out slightly, [be]cause I think
            that's . . . not uncommon.




                                                                            A-2846-17T4
                                        13
      In Gilhooley v. Cty. of Union, 164 N.J. 533, 545 (2000), 6 our Supreme

Court reversed the trial judge's granting of summary judgment because he

imposed "his own personal standard" to determine the merits of the case. There,

the trial judge "failed to apply the appropriate summary judgment standard . . .

[and] never determined that no rational fact-finder could render a judgment in

favor of [plaintiff]."   Ibid.     Here, the motion judge imposed his personal

knowledge and experience of brick masonry instead of weighing the factual and

expert testimony and evidence, and he found that a jury could not render a

judgment in favor of plaintiffs.

      "The 'judge's function is not . . . to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.'"

Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986)). The question of whether a duty was breached, foreseeability, and

proximate cause, are "peculiarly within the competence of a jury." Hambright

v. Yglesias, 200 N.J. Super. 392, 396 (App. Div. 1985). Notwithstanding these




6
    This case involved permanent disfigurement to plaintiff. The judge
determined that the plaintiff's appearance from the scar was not materially
impaired and that she "did not suffer a permanent disfigurement that [was]
substantial." Gilhooley, 164 N.J. at 545.
                                                                          A-2846-17T4
                                         14
principles, the motion judge reached the merits of the action by interjecting his

personal opinions, warranting reversal.

      It is fundamental, black-letter law that where there are disputes of material

fact, summary judgment is inappropriate. See Rowe v. Mazel Thirty, LLC, 209

N.J. 35, 50 (2012). Since we conclude that plaintiffs raised material factual

disputes that made summary judgment inappropriate, we reverse and remand.

We also vacate the February 26, 2018 order and reinstate plaintiffs' complaint.

Plaintiffs' remaining arguments do not need to be addressed in light of our

decision.

      Reversed and remanded. We do not retain jurisdiction.




                                                                           A-2846-17T4
                                       15
