                        NOT FOR PUBLICATION WITHOUT THE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-1987-16T3
LUISA GIL and CARLOS MALPUD,
her husband,

        Plaintiffs-Appellants,

v.

LOUIS ALVERADO, MAGIC ROOFING
CO., and MIKE PORUBSKY,

     Defendants-Respondents.
____________________________________

              Argued May 1, 2018 – Decided June 6, 2018

              Before Judges Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Docket No.
              L-0447-15.

              Lara R. Lovett argued the cause for appellants
              (Pellettieri, Rabstein & Altman, attorneys;
              Thomas R. Smith, on the briefs).

              Kevin J. Conyngham argued the cause for
              respondents Magic Roofing Co. and Louis
              Alverado (Zimmerer, Murray, Conyngham &
              Kunzier, attorneys; Kevin J. Conyngham, on the
              brief).

              Nicholas C.      Apicelli argued the cause for
              respondent       Michael   Porubsky  (Apicelli,
              Costanzo &      Russom, attorneys; Nicholas C.
              Apicelli, on    the brief).
PER CURIAM

     Plaintiff Luisa Gil slipped on a garden hose in the driveway

of the apartment building where she was a tenant.     She fell and

broke her foot.    She and her husband (collectively, plaintiffs)

appeal from two orders: an October 14, 2016 order granting summary

judgment to co-tenant Magic Roofing Co. (Magic Roofing) and its

owner Louis Alverado; and a December 2, 2016 order granting summary

judgment to the landlord Michael Porubsky and denying plaintiffs'

motion for reconsideration of the October 14, 2016 order.          We

affirm the order granting summary judgment to Porubsky because no

facts showed that he had actual or constructive knowledge of the

dangerous conditions that contributed to Gil's fall.    We reverse

the order granting summary judgment to Magic Roofing and Alverado

because there are disputed material facts concerning whether the

hose constituted a dangerous condition.    Moreover, we hold that

under the facts of this case, Gil's knowledge of the presence of

the hose and her decision to walk over the hose, raised jury

questions concerning her comparative negligence and assumption of

the risk.

                                I.

     Defendant Porubsky owns a three-unit apartment building in

Trenton.     The building is part of a property that also has a

driveway with parking spaces, and a detached two-car garage.     Gil

                                2                           A-1987-16T3
and her husband, Carlos Malpud, rented a first floor apartment in

Porubsky's building.    Defendant Alverado owned and operated a

roofing business, known as Magic Roofing.      Magic Roofing rented

the driveway of Porubsky's building and the detached two-car

garage, which it used to park its roofing vans and store materials.

     Employees of Magic Roofing would regularly use a garden hose

to wash the roofing vans in the driveway of the apartment building.

Gil testified that she was aware of that practice.    Indeed, Gil's

husband worked for Magic Roofing and, on a weekly basis, he would

use a hose to wash the roofing vans.   The hose was typically stored

in a basement window well.

     On March 18, 2013, at approximately 9:00 p.m., Gil went out

of her apartment to retrieve an invitation from a friend who was

waiting in a parked car at the front of the driveway.      Gil used

the rear door and walked along the driveway towards the front of

the property.   She testified that it was raining lightly and that

she had to use a narrow two-foot path between the parked roofing

vans and the apartment building.     While walking, Gil saw a garden

hose laying in the pathway.   When she attempted to walk on or over

the hose, she slipped, fell, and broke her foot.

     At her deposition, Gil testified that she saw an employee of

Magic Roofing using the hose to wash a van on the afternoon of

March 18, 2013.    She also testified that she saw the hose and

                                 3                           A-1987-16T3
decided to walk over it before she tripped.           She explained that

she stepped on the hose, but could not recall exactly how she

slipped and fell.       In that regard, she testified that the hose may

have been slippery because it was raining and the pavement on the

driveway may have been uneven.

     In her answers to interrogatories, Gil certified:

            On or about March 18, 2013, at approximately
            9:00 p.m., I tripped and fell over a hose,
            that was lying on the driveway, which was
            unlevel, and in disrepair at the residence
            that I leased from the Defendant, Michael
            [Porubsky], located . . . in the City of
            Trenton County of Mercer and State of New
            Jersey. I believe the hose was left out, and
            used by co-defendant, Louis Alverado and Magic
            Roofing, who kept their materials on the
            premises.     Also, there was insufficient
            lighting at the time and it made it difficult
            to see in the area.

     Gil    and   her   husband   sued   Porubsky,   Magic      Roofing,   and

Alverado,   contending     that   each   was   negligent   in    causing   the

conditions that led to her fall and injury.

     Following the completion of discovery, Magic Roofing and

Alverado moved for summary judgment.            They contended that they

owed no duty to inspect the driveway and that the garden hose did

not constitute a dangerous condition.          The trial court heard oral

argument, agreed with Magic Roofing and Alverado, and granted them

summary judgment in an order dated October 14, 2016.                  On the

record, the court explained that Magic Roofing and Alverado owed

                                     4                                A-1987-16T3
a duty to their co-tenant to make the part of the premises they

rented safe.      The court also held, however, that the hose did not

constitute a dangerous condition because Gil saw the hose and

decided to proceed over it.

     Thereafter, Porubsky moved for summary judgment.                 Plaintiffs

opposed that motion and cross-moved for reconsideration of the

order granting summary judgment to Magic Roofing and Alverado.

The court heard oral argument on December 2, 2016. Porubsky argued

that plaintiffs had failed to present any evidence that the

driveway    was     uneven   or   that   any    condition   on      the    driveway

contributed to the accident.         He also argued that he did not have

a duty to inspect the property on a daily basis and had no knowledge

of the conditions that contributed to Gil's slip and fall.

     The    trial    court   ruled   that      Porubsky   had   a   duty    to   use

reasonable care to guard against foreseeable dangers.                     The court

then held that there was no evidence that Porubsky had any actual

or constructive knowledge of the conditions that contributed to

Gil's slip and fall and, therefore, granted his motion for summary

judgment.

     Addressing the motion for reconsideration, the court applied

the standards under Rule 4:49-2 and denied the motion because

plaintiff failed to present anything that would lead the court to



                                         5                                  A-1987-16T3
conclude   that   its   original    order   was   palpably    incorrect,

unreasonable, or overlooked controlling precedent.

                                   II.

     On appeal, plaintiffs make three arguments.             First, they

contend that no defendant was entitled to summary judgment, because

Gil's knowledge of the dangerous condition before her injury did

not preclude a finding of negligence.        Second, they argue that

Porubsky violated a duty owed to Gil by not addressing certain

conditions on the premises that contributed to her slip and fall.

Finally, they argue that Gil's knowledge of the hose and her

decision to walk over it raised questions that should have been

presented to a jury concerning her comparative negligence or

assumption of the risk.

     In reviewing summary judgment orders, we use a de novo

standard of review and apply the same standard employed by the

trial court.    Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

405 (2014).    Accordingly, we determine whether the moving parties

have demonstrated there are no genuine disputes as to any material

facts and, if so, whether the facts, viewed in the light most

favorable to the non-moving party, entitled the moving parties to

judgment as a matter of law.       R. 4:46-2(c); Davis, 219 N.J. at

405-06; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995).

                                    6                            A-1987-16T3
     We will first review the summary judgment granted to Porubsky,

the landlord.    Thereafter, we will review the order granting

summary judgment to the co-tenants, Magic Roofing and Alverado.

     A.   The December 2, 2016 Order Granting Summary Judgment to
          Porubsky

     To establish negligence, a plaintiff must prove:    "(1) a duty

of care, (2) a breach of that duty, (3) actual and proximate

causation, and (4) damages."    Davis, 219 N.J. at 406 (quoting

Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576,

594 (2013)).    Plaintiffs bear "the burden of establishing those

elements 'by some competent proof.'"    Townsend v. Pierre, 221 N.J.

36, 51 (2015) (quoting Davis, 219 N.J. at 406).

     Generally, a landlord has a duty to maintain the premises in

good repair and in a safe condition for tenants.   Dwyer v. Skyline

Apartments, Inc., 123 N.J. Super. 48, 51 (App. Div.), aff’d o.b.,

63 N.J. 577 (1973).    To establish negligence by a landlord, the

plaintiff must prove that the condition caused the injury and that

the condition was known or should have been known to the landlord

prior to the occurrence.   Id. at 52.

     Here, plaintiffs claim that Porubsky breached his duty to

maintain the apartment premises in a safe condition by failing to

ensure proper lighting, failing to repair uneven pavement on the

driveway, and failing to ensure that his other tenants – Magic


                                7                            A-1987-16T3
Roofing and Alverado – properly stored their hose.                      At their

depositions, both plaintiffs admitted that before the accident,

they never told Porubsky about the hose.                   Gil's husband also

admitted that they never complained to Porubsky about the uneven

pavement on the driveway.       Finally, Gil acknowledged that she did

not complain to Porubsky about the lighting on the driveway, and

conceded that the driveway light was controlled by the second

floor tenants.

       In contrast, Porubsky explained at his deposition that the

driveway had two sources of light: a flood light that automatically

came on when it got dark outside and a separate light controlled

by the upstairs tenants. With regard to the driveway, he explained

that whenever he was aware of a need for repair, he either repaired

the driveway himself or had somebody else repair it.                Finally, he

testified that he had never observed the hose on the property and

had no knowledge of Magic Roofing washing their vans on the

driveway.

       Viewing    the    evidence   in       the   light   most   favorable     to

plaintiffs, there was no evidence from which a jury could find

that   Porubsky    had    actual    or   constructive       knowledge    of   the

conditions that led to Gil's slip and fall.                  Accordingly, the

trial court properly granted summary judgment to Porubsky, and we

affirm that portion of the December 2, 2016 order.

                                         8                               A-1987-16T3
      B.     The October 14, 2016 Order Granting Summary Judgment to
             Magic Roofing and Alverado

      Plaintiffs contend that the trial court erred in granting

summary judgment to defendants Magic Roofing and Alverado because

the combination of the mislaid hose and defendants' improperly

parked vans created a dangerous condition.

      Determining whether a duty exists is a question of law for

the court.     Longo v. Aprile, 374 N.J. Super. 469, 472 (App. Div.

2005).     "For many years, the common law focused on property rights

and   determined    the   scope    of   a   [possessor    of   land's]    duties

according to the status of the injured person as a business

invitee, a [licensee], or a trespasser."           Meier v. D'Ambrose, 419

N.J. Super. 439, 445 (App. Div. 2011).              More recent opinions,

however, apply a fact-sensitive approach to determine the extent

of a duty owed by a possessor of land to an injured person.                Ibid.

(citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 435-41

(1993)).

      In cases where the status of an injured party is not precisely

defined,     "the   attempt   to   pigeonhole    the     parties   within     the

traditional categories of the common law is both strained and

awkward." Hopkins, 132 N.J. at 438; see also Lechler v. 303 Sunset

Ave. Condo. Ass'n, 452 N.J. Super. 574, 583 (App. Div. 2017) ("Only

in the cases where a plaintiff does not fit into the common law


                                        9                                A-1987-16T3
categories must a court perform the full duty analysis described

in Hopkins.").         Instead, the inquiry should focus on whether, in

light of the actual relationship of the parties under all of the

surrounding circumstances, imposing a duty to exercise reasonable

care to prevent foreseeable harm is "fair and just."            Hopkins, 132

N.J. at 438.

       Here, Magic Roofing and Alverado rented parking spaces from

Porubsky    for    a    commercial   purpose.   On   that   same   property,

plaintiffs rented a residential apartment and had a shared right

to use the driveway.          Consequently, Gil cannot be considered a

business invitee in the true sense, because she was not conferring

an economic benefit on Magic Roofing and Alverado at the time of

her injury.       Similarly, Gil cannot be considered a licensee or

trespasser because she was a rent-paying tenant and had a right

to   use   the    driveway   at   her   apartment   building.   Given     those

circumstances, the extent of the duty owed by Magic Roofing and

Alverado should be determined using the factors articulated by our

Supreme Court to address premises liability when the common law

classifications do not squarely apply.          See Hopkins, 132 N.J. at

433.

       In Hopkins, the Court addressed the duty owed by a real estate

broker to members of the public attending an open house.                     The

Court held that brokers have a duty to conduct a walk-through of

                                        10                              A-1987-16T3
the house and warn visitors of discoverable conditions on the

property that pose a hazard or danger.          The Court explained that

the common law classifications were not the predominant issue;

rather, the focus should be on the actual relationship between the

parties under all of the surrounding circumstances.              Id. at 438.

     Following    Hopkins,   courts     apply   a   four-factor     analysis.

Preliminarily, when determining the extent of a defendant's duty

of care, courts must consider the foreseeability of the risk of

injury, then identify, weigh, and balance: (1) the relationship

of the parties; (2) the nature of the attendant risk; (3) the

opportunity and ability to exercise care; and (4) the public

interest in the proposed solution.        Alloway v. Bradlees, Inc., 157

N.J. 221, 230 (1999) (citing Hopkins, 132 N.J. at 439).             Moreover,

the extent of a party's duty to exercise reasonable care should

be based on fairness, taking into account the totality of the

circumstances.     Campbell v. Hastings, 348 N.J. Super. 264, 269

(App. Div. 2002).

     Applying the Hopkins analysis to the facts of this case,

Magic   Roofing   and   Alverado   owed   Gil   a   duty   to    prevent   the

foreseeable risk of tripping over the improperly placed hose by

inspecting the property at the end of the work day to ensure the

safety of the residential tenants of the building.                Plaintiffs,

Magic Roofing, and Alverado shared the driveway.                Magic Roofing

                                   11                                 A-1987-16T3
and Alverado knew or should have known that objects left in the

driveway could cause another tenant to slip and sustain an injury.

Giving Gil the benefit of all favorable inferences, Magic Roofing

and Alverado should have known that leaving the hose in such a

position could cause one of the residential tenants to trip and

fall.     Moreover, Alverado had the opportunity and ability to

inspect the driveway to ensure that his employees left it in a

safe condition.      Indeed, at the time of Gil's injury, Alverado

lived across the street from the apartment where his vans were

parked, and easily could have inspected the driveway area for

dangerous conditions and tripping hazards.          Alverado also could

have directed his employees to properly store the hose and to

inspect the area whenever they finished washing the roofing vans.

Finally, imposing a duty on Magic Roofing and Alverado in these

circumstances would not create an undue burden on businesses that

rent space to store their commercial vehicles.

     Thus, Magic Roofing and Alverado owed a duty to Gil.              The

question whether the hose was a dangerous condition presents a

disputed issue of fact that should be resolved by a jury.              Gil

contends that she had to walk down a narrow pathway between Magic

Roofing's improperly parked vans and the apartment building.           She

further   contends    that   leaving   a   hose   across   that   pathway

constituted a dangerous condition.         Magic Roofing and Alverado

                                  12                              A-1987-16T3
dispute that contention by focusing on Gil's awareness of the hose

and   her   decision      to    proceed    anyway.        The   issues     of     Gil's

comparative negligence and assumption of the risk are factual

determinations that also should be made by a jury.                       See, e.g.,

Vega by Muniz v. Piedilato, 154 N.J. 496, 529 (1998) ("Issues

pertaining     to       negligence    defenses,       including          comparative

negligence, 'are jury questions and . . . a court should not take

the   place    of   a    jury   in   solving   them       except    in    plain      and

indisputable cases.'"); Altomare v. Cesaro, 70 N.J. Super. 54, 62

(App.   Div.    1961)     ("[T]he     existence      of    either    contributory

negligence or of its twin, assumption of the risk, is customarily

a preeminent question of fact for the jury.").

      Consequently, we reverse the October 14, 2016 order granting

summary judgment to defendants Magic Roofing and Alverado.                       Having

reversed that order, the portion of the December 2, 2016 order

denying reconsideration is vacated.             The matter is remanded for

further proceedings against defendants Magic Roofing and Alverado.

      Affirmed in part, reversed in part, and remanded.                    We do not

retain jurisdiction.




                                          13                                    A-1987-16T3
