HENRY J. KOLOS, JR. VS. TIKAL, LLC (L-3012-15, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0076-17T2
HENRY J. KOLOS, JR.,
Plaintiff-Appellant,
v.
TIKAL, LLC,1
Defendant,
and
NG LANDSCAPING, LLC,
Defendant-Respondent.
_________________________________
Submitted August 7, 2018 – Decided August 10, 2018
Before Judges Sabatino and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-3012-15.
Begelman & Orlow, PC, attorneys for appellant
(Jordan R. Irwin, on the brief).
Law Offices of Terkowitz & Hermesmann,
attorneys for respondent (Patrick D. Heller,
on the brief).
PER CURIAM
1
Improperly pled below as TIKAL Company.
Plaintiff Henry J. Kolos, Jr. appeals from the trial court's
May 25, 2017 order granting summary judgment to defendant NG
Landscaping, LLC, in this slip and fall case. We affirm,
substantially for the reasons set forth in the oral decision by
Judge Anthony M. Pugliese.
Plaintiff claims that on February 6, 2014, he slipped and
fell on black ice while he was in his employer's parking lot.
Plaintiff was employed as a "route salesman" by Entenmann's, a
supplier of bakery products. Co-defendant Tikal performed snow
removal for Entenmann's on the site pursuant to an unwritten
agreement.
After originally suing only Tikal, plaintiff filed an amended
complaint naming NG Landscaping as a co-defendant. In May 2017,
the trial court granted NG Landscaping's motion for summary
judgment. Default judgment was entered against Tikal on July 21,
2017.
The motion judge was persuaded from the summary judgment
record that there was no proven obligation on the part of NG
Landscaping to perform snow or ice removal services at the property
on or around the date of plaintiff's fall. On appeal, plaintiff
claims there were genuine issues of material fact that precluded
summary judgment in favor of NG Landscaping. We disagree, even
2 A-0076-17T2
viewing the record in a light most favorable to plaintiff. R.
4:46-2; IE Test, LLC v. Carroll, 226 N.J. 166, 184 (2016); Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
As described in the deposition testimony, the responsibility
to provide snow removal at the Entenmann's property was triggered
whenever there was a snowfall of two inches or greater. There was
no agreement by either Tikal or NG Landscaping to perform "ice
watch" functions, or to monitor the property for "freeze, thaw,
and refreeze" conditions.
For purposes of the summary judgment motion only, NG
Landscaping did not dispute it could be vicariously liable for
snow removal at the property through its relationship with Tikal.
However, NG Landscaping had no obligation to attend to the property
after the February 4 snowfall and before plaintiff's fall occurred
on February 6. That is because there was no additional snowfall
over two inches during that interval and Entenmann's agreement did
not include an "ice watch" or the monitoring of thaw and refreeze
conditions.
Plaintiff proffered no competent evidence presenting any
genuinely disputed material fact about the terms of the snow
removal agreement. Plaintiff asserts his counsel should have been
allowed to cross-examine representatives of Tikal and NG
Landscaping at a trial and allow jurors to assess their
3 A-0076-17T2
credibility. The Entenmann's representative who allegedly made
the agreement with Tikal, whether with or without NG Landscaping's
knowledge, is now deceased.
Plaintiff put forth conjecture and speculation, rather than
evidence, to dispute the proof that the agreement with Entenmann's
was limited to snow removal for snow falls of two inches or
greater. Nor did plaintiff retain an expert to testify that the
snow removal work performed on February 4 was done negligently.
Plaintiff stresses that he would testify at a trial that
there was no salt or sand in the parking lot on the date of his
fall. That is beside the point, because it assumes NG Landscaping
had a duty to apply such treatments on or before the date of his
fall. Plaintiff has produced no evidence that Tikal or NG
Landscaping had such a duty.
Plaintiff had an ample opportunity to conduct discovery in
advance of NG Landscaping's motion for summary judgment. For
instance, plaintiff could have deposed other individuals at
Entenmann's who might have had knowledge of snow or ice removal
at the property, other than the deceased employee. He failed to
do so.
In sum, plaintiff's claims of a negligent breach of duty by
NG Landscaping are not based upon competent evidence but instead
upon speculation. Mere speculation, however, cannot support a
4 A-0076-17T2
cause of action or prevent the entry of summary judgment.
Merchants Express Money Order Co. v. Sun Nat'l Bank, 374 N.J.
Super. 556, 563 (App. Div. 2005) (noting that mere speculation
will not bar summary judgment); see also Hoffman v. Asseenontv.Com,
Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (similarly applying
this principle). The elements of negligence must be supported by
competent proof and cannot be presumed from the happening of an
accident. Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).
Plaintiff's remaining contentions on appeal lack sufficient
merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
5 A-0076-17T2