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JOHNSON v. GARDEN STATE BRICKFACE

October 14, 1993

Edith Johnson and Frank Johnson, H/W, Plaintiffs,
v.
Garden State Brickface and Stucco Company, Defendant, v. June DiNapoli, Third Party Defendant.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 Joyner, J.

 October 14, 1993

 Presently before the Court is the motion of defendant, Garden State Brickface and Stucco Company, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This matter stems from the complaint of plaintiffs, Edith and Frank Johnson, alleging that defendant was negligent and that this negligence caused the injuries of Edith Johnson when she slipped and fell at the home of her daughter, third party defendant in this case, June DiNapoli.

 The pertinent facts in this case are as follows. Defendant had been hired by Ms. DiNapoli in November, 1990, to put a bay window in her house and to also brickface or stoneface her house. In July, 1991, Ms. DiNapoli's basement began to flood with water and/or sewage, causing her basement rug to become wet. As a result of the flooding, Ms. DiNapoli placed a plastic mat in the doorway between the screened in patio and the basement. While Edith Johnson (who resided at her daughter's home) was going into the patio from the basement, she slipped and fell on the plastic mat, causing injuries to her left leg, nerves and nervous system, as well as depression as a result of her injuries. Plaintiffs assert that defendant caused this accident by its negligent workmanship. They allege that an exterior drainpipe became clogged with cement as a result of defendant's work, and that this in turn caused the flooding in the basement. Mr. Johnson has also sued for loss of consortium.

 In its motion, defendant asserts three reasons why summary judgment should be granted. First, defendant states that plaintiffs cannot prove that defendant caused the flooding which occurred at Ms. DiNapoli's home. Second, even if plaintiffs can prove that defendant caused the flooding, they cannot prove proximate causation in this case. Finally, defendant asserts that summary judgment should be granted because the acts of Ms. DiNapoli were a superseding and/or intervening cause of the accident. However, for the reasons set forth more fully below, we reject all of defendant's arguments, and hold that summary judgment is not proper in this case.

 Standard

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).

 Discussion

 We will first address defendant's contention that plaintiffs cannot prove that defendant caused the flooding in this case. Defendant argues that plaintiff has not shown that defendant was responsible for the flooding, and further, that the work performed by defendant was completed several months before the flooding. However, upon close examination of the record, it appears there is some evidence from which a jury could find that defendant caused the flooding in this case.

 In Ms. DiNapoli's deposition, she testified that the flooding occurred because there were pieces of cement and stone in her drainpipe, which caused the drainpipe to clog. Prior to the flooding, nobody else other than defendant had done cement work at her house. Furthermore, when defendant was performing the work at Ms. DiNapoli's house, it had to break a cement wall in order to create the bay window. Ms. DiNapoli also testified that the some of the crewmembers of defendant were dropping cement when they performed the job, and that at some point she called to complain about the cement, which was in the area near the drain. Ms. DiNapoli also testified that she thought defendant sent out some people in response to her call. Finally, she testified that when the flooding occurred, she called Roto-Rooter to clean up the water, and they told her that she had "cement in her line." Deposition of June DiNapoli, page 91.

 Defendant argues that plaintiffs' claim that Roto-Rooter discovered the drain was clogged by cement cannot be considered because it is not supported by evidence and because this is the first time plaintiffs have made such a claim. Plaintiffs' complaint states that defendant "negligently caused cement to fall into and clog Plaintiff's sewer line, resulting in a flood of water which damaged Plaintiff's basement, and directly resulted in Plaintiff's fall." Plaintiffs' complaint, para. 7. Thus, simply because plaintiffs do not state who actually made this discovery does not mean it was not pleaded in the complaint. Furthermore, because plaintiffs have provided deposition testimony to support this claim, it is proper to consider it in deciding this motion. Fed.R.Civ.P. 56(c).

 Based on the foregoing evidence, it is clear there is sufficient evidence from which a reasonable jury could conclude that defendant caused the flooding in this case by dropping cement into the drain and thereby causing it to clog. As such, plaintiffs have met their burden by showing that there is a genuine issue of material fact, and summary judgment is not warranted with respect to this issue. *fn1"

 Defendant next contends that plaintiffs cannot show that defendant was the proximate cause of Mrs. Johnson's accident. Defendant argues that the flooding did not cause Mrs. Johnson's injuries, rather, it was her act of slipping ...


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