                                NOT FOR PUBLICATION WITHOUT THE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-4926-18T4
JEANNE LESSNER and
DEBBIE FRANK, w/w,

          Plaintiffs-Appellants,

v.

JASON PIRKLE and
DEBRA PIRKLE,

     Defendants-Respondents.
_____________________________

                   Argued telephonically April 29, 2020 –
                   Decided July 1, 2020

                   Before Judges Fuentes and Haas.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-7238-17.

                   Edward P. Capozzi argued the cause for appellants
                   (Brach Eichler, LLC, attorneys; Edward P. Capozzi and
                   Jeremy Hylton, on the briefs).

                   Joseph F. Skinner argued the cause for respondents
                   (Kirmser, Lamastra, Cunningham & Skinner, attorneys;
                   Joseph F. Skinner, of counsel and on the brief; Laura P.
                   Baker, on the brief).
PER CURIAM

      Plaintiff fractured her wrist when she tripped and fell on the sidewalk

abutting defendants' residence. Plaintiffs filed a civil action against defendants

to recover compensatory damages. After the parties engaged in discovery, the

Law Division granted defendants' motion for summary judgment and dismissed

plaintiffs' complaint with prejudice. In this appeal, plaintiffs argue the Law

Division erred by not viewing the facts in the light most favorable to plaintiffs

and by concluding defendants did not have a legal duty to maintain an artificially

created condition on their premises. Alternatively, plaintiffs argue the court

committed reversible error by not considering whether defendants "voluntarily

assumed" a duty of care to plaintiffs. We reject these arguments and affirm.

      The Law Division correctly applied our State's long-settled common law

immunity to conclude defendants did not have a legal duty to maintain the

sidewalk abutting their residence. In reaching this decision, the motion judge

applied the standard codified in Rule 4:46-2(c), as explained by the Court in

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

these standards of review de novo to determine whether the motion judge

correctly decided this case as a matter of law. Lee v. Brown, 232 N.J. 114, 126

(2018).


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                                        2
      These are the salient facts. On July 16, 2017, plaintiffs Jeanne Lessner

and Debbie Frank were walking in their neighborhood when they came upon the

sidewalk abutting a one family house located on Elston Road in the Township

of Montclair. A portion of the sidewalk slabs abutting this residence were

uneven, creating approximately a one-inch gap between the sidewalk slabs. A

growth of grass and weeds protruded through this one-inch height disparity. On

February 2, 2018, Lessner described how the accident occurred in response to

the following interrogatory: "Describe in detail your version of the accident or

occurrence setting forth the date, location, time and weather:"

            [O]n a clear day, on or about July 16, 2017, . . .
            [p]laintiff, Jeanne Lessner, was a non-trespassing
            entrant lawfully on the sidewalk abutting [d]efendants,
            Jason and Debra Pirkle's property[.] . . . At that time,
            [p]laintiff tripped and fell over a dangerous condition
            on the property believed to be an uneven sidewalk. As
            a result of the incident, [p]laintiff sustained serious and
            permanent injuries.

      In a deposition taken on September 18, 2018, Lessner testified that the

accident occurred on a Sunday morning at "[a]bout 9:30 [a.m.]". She described

the weather conditions as "beautiful". She and her spouse Debbie Frank were

"exercise walk[ing]" at a "normal pace stroll," which is something they did on a

regular basis. The accident occurred about three blocks from their house. When



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asked what caused her to fall, she responded: "I tripped." When asked to clarify

this response, Lessner stated:

            Q. Just so I am clear, based upon what you just testified
            to, the sidewalk played no part in your falling on that
            day, is that your testimony?

            A. Yes.

            Q. So what you just told Mr. Capozzi, it was the grass
            in between the two sidewalk slabs that caused you the
            problem?

            A. Yes.

            Q. It wasn't the sidewalk?

            A. Yes.

            Q. It was not the sidewalk or it was the sidewalk?

            A. It was not the sidewalk.

            Q. Alright. Thank you.

      On October 10, 2017, plaintiffs filed a civil action against defendants

based on common law negligence and failure to maintain the sidewalk abutting

their home in a good state of repair. Lessner sought compensatory damages for

her pain and suffering and the medical expenses she incurred to treat her

fractured wrist. Frank asserted a derivative per quod claim as Lessner's spouse

and sought compensation for loss of consortium.


                                                                        A-4926-18T4
                                          4
      Defendants filed a responsive pleading and the parties engaged in

discovery. On March 14, 2019, defendants moved for summary judgment,

arguing they were not civilly liable to plaintiffs based on this State's long-settled

principles of common law immunity for sidewalk liability to residential

properties.    The judge provided the following description of the legal and

factual basis of plaintiffs' case:

              Plaintiff’s opposition centers around the contention that
              the condition, which caused [p]laintiff’s accident, was
              an artificial one, and in so doing, relies on architect and
              expert witness Kenneth Stoyack’s opinion, finding that
              [d]efendants failed to adequately maintain the
              landscaping, thereby allowing roots of the hedges on
              the property to create an artificial condition by raising
              the concrete slab approximately one inch.

      The judge noted that Stoyack's opinion in the report was based on an

inspection of the sidewalk he conducted nearly a year and a half after the

accident. The judge found, and the record supports, that:

              There is no description of any effort undertaken to
              determine that the roots, in fact, caused the sidewalk to
              lift, as it allegedly did. Nor is there any indication of
              any examination of the premises, the grounds, or the
              property to verify that the sidewalk was lifted by virtue
              of the presence of a root related to the hedges.

      Residential landowners enjoy "blanket immunity" from sidewalk liability.

Lodato v. Evesham, 388 N.J. Super. 501, 507 (App. Div. 2006).                Absent


                                                                             A-4926-18T4
                                          5
competent evidence establishing they "create[d] or exacerbate[d] a dangerous

sidewalk condition[,]" residential landowners do not owe a duty to pedestrians

to maintain the sidewalks abutting their property. Luchejko v. City of Hoboken,

207 N.J. 191, 210 (2011). The motion judge correctly found defendants did not

undertake any project to alter or modify the sidewalk or the hedges that were

there when they purchased the property in 2000. Dupree v. City of Clifton, 351

N.J. Super. 237, 246 (App. Div. 2002).

      The judge properly rejected any argument that would impose liability on

defendants merely "because the hedges were in their exclusive control to

maintain and that . . . [d]efendants did, in fact, maintain the hedges, that

somehow they are responsible for [p]laintiff tripping over weeds or grass in the

sidewalk slab." Finally, plaintiffs' counsel argued there was a material question

of fact in dispute that precluded deciding this case on summary judg ment based

on Lessner's own inconsistent testimony about what caused her fall. As the

following verbatim analysis shows, the motion judge quickly noted the absurdity

of this proposition:

            The fact remains that the sidewalk, in its purportedly
            raised condition, was not the cause in fact or may not
            have been the cause in fact of [p]laintiff’s injuries. She
            offers two possible causes. The argument made by
            [p]laintiff in the opposition papers to this effect is
            contrary -- at least in part -- to her own testimony. She

                                                                         A-4926-18T4
                                         6
             has created an ambiguity. And in either instance,
             regardless of either cause, there is nothing in the record
             to suggest that the condition of the sidewalk -- be it
             raised by some supposed root that may or may not be
             present, or be it as a result of weeds or grass -- imposes
             any sort of duty or result in liability on the part of . . .
             [d]efendants.

             The record is unambiguous that during her deposition,
             [p]laintiff relayed that she was caused to trip by weeds
             and/or overgrown grass protruding out of the sidewalk,
             but not from the raised or uneven sidewalk itself.

                   ....

             That said, the [c]ourt does not find [d]efendant’s
             argument persuasive that since [p]laintiff’s expert did
             not inspect the premises for almost one and a half years
             after [p]laintiff’s accident, the measurement could not
             be used as proof of the alleged defect which existed at
             the time of the accident.

      The record is undisputed that plaintiffs' cause of action is predicated upon

Lessner falling on a sidewalk abutting a one family residence. As the owners of

this property, defendants are not civilly liable for plaintiffs' injuries.

      Affirmed.




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