                            NOT FOR PUBLICATION WITHOUT THE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-5193-16T3

JONATHAN LIBOCK,

       Plaintiff-Respondent,

v.

JOHN FOTE,

     Defendant-Appellant.
__________________________________

                Argued September 26, 2018 – Decided October 9, 2018

                Before Judges Nugent and Mawla.

                On appeal from Superior Court of New Jersey, Law
                Division, Burlington County, Docket No. SC-0968-17.

                George B. Keahey argued the cause for appellant.

                Jonathan Libock, respondent, argued the cause pro se.

PER CURIAM

       Defendant John Fote appeals from a July 26, 2017 default judgment for

$2,995 plus court costs, entered in favor of plaintiff Jonathan Libock. We

reverse.
      The following facts are taken from the record. On May 29, 2017, plaintiff

was working as an Uber driver in Long Beach Island. At four o'clock in the

morning, plaintiff had dropped off a fare on Ocean Boulevard when a severe

wind storm caused a patio umbrella to fly from defendant's property into

plaintiff's car. Plaintiff was the only witness to the incident. The parties did not

dispute either that defendant was not present on the day of the incident or that

defendant's property was occupied by summer renters at the time.

      Defendant did not appear for trial. However, his attorney appeared on his

behalf, and stipulated defendant was the owner of the property and the umbrella

which struck plaintiff's vehicle. Counsel also stipulated to plaintiff's damages.

      Beyond the stipulations, defendant's counsel offered summation at the

conclusion of the trial. No other witnesses testified. In summation, counsel

argued defendant could not be held strictly liable, plaintiff had failed to establish

any negligence on defendant's part, and the incident was an act of God.

      Following summations, the trial judge recessed for four minutes to

consider the matter.     She then returned, and for the first time announced

judgment would be entered "by way of default." She explained she was entering

default because defendant failed to appear and "therefore the plaintiff could not




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                                         2
have an opportunity to question the defendant at the time of trial with regard to

how this umbrella was secured."

      After defendant filed his notice of appeal, the trial judge filed a letter

amplifying her findings pursuant to Rule 2:5-1(b). The judge stated defendant's

failure to appear for trial "weighed heavily against [his] credibility." The judge

concluded even if defendant had appeared "any testimony would have confirmed

plaintiff's argument that defendant was negligent in ensuring that the subject

umbrella was properly secured at defendant's property, thereby causing

plaintiff's damages."

      The trial judge concluded she could enter default judgment against

defendant because he had failed to appear for trial as required by Rule 6:2-1,

and present a defense. The judge acknowledged counsel had appeared for

defendant, but concluded he had not asserted a defense. The judge found

counsel's argument plaintiff's claim was based on strict liability was

"disingenuous" because plaintiff was unable to question defendant.

      According to the judge, regardless of the entry of default, there was

enough evidence to find defendant liable.      The judge found that based on

plaintiff's testimony the umbrella was open, she could conclude defendant had

not "properly strapped (sic) or secured [the umbrella] to withstand the subject


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                                        3
storm." The judge found defendant's stipulation he owned the property and the

umbrella allowed her to conclude "defendant was negligent in failing to ensure

that the umbrella was properly secured at the property; thus, resulting in

plaintiff's damages."

      We defer to the trial court's factual findings if "supported by adequate,

substantial, and credible evidence in the record." D.A. v. R.C., 438 N.J. Super.

431, 451 (App. Div. 2014) (citation omitted). We owe no deference, however,

to rulings not based on witness testimony or credibility findings. Yueh v. Yueh,

329 N.J. Super. 447, 461 (App. Div. 2000). Our review of questions of law is,

of course, de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan

Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      On appeal, defendant argues the trial judge erred by entering default

judgment against him where his attorney had appeared for the trial on

defendant's behalf. Defendant argues the trial judge held him strictly liable for

causing the damage to plaintiff's car even though defendant's property was

rented at the time and defendant was not in possession. We agree.

      A trial judge may sanction a party for failing to appear for trial by entering

default judgment. Rule 1:2-4(a) states:

            [I]f without just excuse or because of failure to give
            reasonable attention to the matter, no appearance is made

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                                         4
               on behalf of a party . . . on the day of trial, . . . the court
               may order any one or more of the following: . . . (c) . . .
               the striking of the answer and the entry of judgment by
               default[.]

         Rule 6:2-1 governs the form of summons in small claims matter. The

annotation to the Rule states: "the summons form requires, in lieu of defendant's

filing an answer, an appearance in court at a specified time and place orally to

state a defense together with the advisory that failure to appear may result in

entry of a default judgment granting the plaintiff the requested relief." Pressler

& Verniero, Current N.J. Court Rules, cmt. on R. 6:2-1, (2018).

         Here, however, there was no basis for the trial judge to enter default, let

alone without notice, and after having considered the testimony and summation.

Defendant did not fail to appear because his counsel had appeared on his behalf.

         Moreover, the judge's view default judgment should enter because

plaintiff was deprived of the ability to cross-examine defendant is unsupported

by the facts. Indeed, there was no dispute defendant was not present, and

summer renters were occupying the property at the time of the incident.

Therefore, we fail to see how defendant's absence deprived plaintiff his day in

court.

         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)

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                                             5
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." Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citing 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

Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 574 (1996); citing Kuzmicz v.

Ivy Hill Park Apts., Inc., 147 N.J. 510, 515 (1997)).

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

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

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                                           6
      Furthermore,

             [W]hen the risk of harm is that posed by third persons, a
             plaintiff may be required to prove that defendant was in a
             position to "know or have reason to know, from past
             experience, that there [was] a likelihood of conduct on the
             part of [a] third person[]" that was "likely to endanger the
             safety" of another.

             [Id. at 338 (alterations in original) (quoting Clohesy v.
             Food Circus Supermarkets, Inc., 149 N.J. 496, 507
             (1997)).]

"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)).

      Determining the existence of "a duty 'involves identifying, weighing, and

balancing several factors − the relationship of the parties, the nature of the attendant

risk, the opportunity and ability to exercise care, and the public interest in the

proposed solution.'" Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999) (quoting

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). "The analysis is both

very fact-specific and principled; it must lead to solutions that properly and fairly

resolve the specific case and generate intelligible and sensible rules to govern future

conduct." Hopkins, 132 N.J. at 439.




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                                           7
      The record lacks sufficient findings by the trial judge as to whether

plaintiff had proven defendant's duty, breach of duty, or proximate causation.

Plaintiff's testimony and the stipulations did not constitute substantial credible

evidence to support the judge's findings defendant had negligently secured the

umbrella. Moreover, the judge's belief she could assess defendant's credibility

without his testimony is without any basis in law. Under the facts adduced by

plaintiff, there was no basis to conclude defendant was negligent.

      Reversed.




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