FATIMA MARROQUIN VS. SALVADOR A. ESPINOZA (L-0969-16, UNION 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NOT FOR PUBLICATION WITHOUT THE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-5444-16T3
FATIMA MARROQUIN,
Plaintiff-Appellant,
v.
SALVADOR A. ESPINOZA and
JOSE RAMON ESPINOZA,
Defendants-Respondents.
___________________________________
Argued July 16, 2018 – Decided August 2, 2018
Before Judges Whipple and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-0969-
16.
Alan Roth argued the cause for appellant
(Bendit Winstock, attorneys; Alan Roth and Kay
A. Gonzalez, on the brief).
Michael Della Rovere argued the cause for
respondents (O'Toole, Couch & Della Rovere,
LLC, attorneys; Michael Della Rovere, on the
brief).
PER CURIAM
Plaintiff Fatima Marroquin appeals from the July 7, 2017
order that granted summary judgment to defendants Salvador A.
Espinoza and Jose Ramon Espinoza and dismissed plaintiff's
personal injury complaint. We affirm the summary judgment order.
Plaintiff and other family members were staying at the house
co-owned by her cousins, the defendants, in Plainfield to celebrate
Thanksgiving. Defendants are co-owners. Plaintiff testified in
her deposition that on Saturday, November 28, 2014,1 it rained and
snowed, but she did not go out. She did not know if anyone had
cleared ice or snow from the driveway or the walkways around the
property.
On Sunday, November 29, 2014, plaintiff and her aunt went
shopping around 11 a.m. They left from the rear entrance where
there is access to the driveway. It was not raining but was cold.
Plaintiff had no difficulty walking to the car in the driveway.
They were gone about two hours. When they came back and because
plaintiff was going to return to New York, she parked in the front
of the property where there was a walkway from the street to the
front door. She parked there "[b]ecause it was easier for us, for
me to place the luggage back there and also for my mother because
she has a bad leg." She and her aunt walked around to the back
1
We use the same days and dates in this opinion that plaintiff
used in her deposition. However, we note that November 28, 2014
was a Friday and November 29, 2014, the day of the accident, was
a Saturday.
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of the house to enter because "[i]t's just that we were always
told to come in through the back." She had no difficulty walking
on the driveway. It was not raining or snowing.
Plaintiff stayed another two hours. She, her father, and her
uncle loaded the luggage in the car parked out front, using the
front walkway. She had no difficulty walking out to the car with
the luggage. They went back to the house to say good-by and for
her mother. The others were in front of plaintiff on the sidewalk.
Plaintiff testified she was about "halfway" when she said that "I
felt that I stepped on something, on ice, and that's when I lost
my balance and I went down" on what she said was black ice. She
fell, striking her chin on the steps, and putting out both hands,
breaking her right wrist. The displaced fracture subsequently was
surgically repaired by "internal fixation with [a] volar
interlocking plate." Plaintiff alleges she continues to have pain
and limited range of motion in her wrist that limits her activities
and because, she is right handed, now has difficulty writing.
Defendant Jose Espinoza was in the house when the accident
happened, heard plaintiff scream and went to her assistance. He
testified in his deposition that it was not raining on November
29, nor was it cold. After a snowstorm, he typically shovels and
cleans "very well and I put a lot of salt." He recalled clearing
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snow and putting down salt prior to Thanksgiving but it had not
rained on the days just preceding Thanksgiving.
Defendant Salvador Espinoza left for work about 7 a.m. on
Sunday, November 29, 2014, using the back entrance and driveway.
In his interrogatory answers, he said that the front entrance was
"clear and dry. It was a nice day and the weather was clear." He
testified that from his vehicle, he stopped on his driveway,
checked the front entrance "to see that everything was correct and
dry and well." He testified that he could "see exactly
everything."
He stated that it had snowed on Saturday, November 28, 2014
but "not a very strong snow." He cleaned off the snow and put
down salt. It was cold. On the morning of November 29, it also
was cold but "clean." Although Salvador had put down salt on
November 28th, he indicated there was rain and that "since it
rained, the salt, I imagine it went away."2 He did not spread
more salt on November 29 before he left for work. He learned
plaintiff had fallen when he returned home from work at 6 p.m.
Plaintiff filed a personal injury complaint against
defendants on March 17, 2016, seeking compensation for the injuries
2
The record is not clear if the rain was on the 28th or 29th of
November 2014.
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she received in the accident. Defendants' answer was filed in
April 2016. In May 2017, defendants filed a motion for summary
judgment. Following oral argument, on July 7, 2017, the trial
court granted summary judgment to defendants and dismissed
plaintiff's complaint.
There was no dispute that plaintiff was a social guest of
defendants. The court found that plaintiff had not shown
defendants had knowledge of the icy condition. Although the
homeowner assumed that the rain may have washed away some of the
salt, those facts were not sufficient, "giving all favorable
inferences to the plaintiff," to find that there was "a material
issue of fact that the homeowner . . . had knowledge of the
condition." Without knowledge, the court granted defendants'
motion for summary judgment.
On appeal, plaintiff contends that the court's order
dismissing the case was in error because there were material issues
of fact that precluded summary judgment. She argues that
defendants knew or had reason to know about the icy condition of
the walkway, that they did not exercise reasonable care to make
the walkway safe or to warn of the ice. She did not have any
reason to know about the icy condition or the risk involved.
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We review a court's grant of summary judgment de novo,
applying the same standard as the trial court. Conley v. Guerrero,
228 N.J. 339, 346 (2017). Summary judgment must be granted if
"the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged
and that the moving party is entitled to a judgment or order as a
matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-
2(c)).
The determination of whether a duty exists is a question of
law. Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991). No one
disputes that plaintiff was a social invitee of defendants.
"[U]nder our tort law, liability may depend on whether a
plaintiff suffers an injury on the walk leading to the front door
of a house—which is owned or controlled by the property owner—as
opposed to a sidewalk abutting the property." Qian v. Toll Bros.
Inc., 223 N.J. 124, 138 (2015) (citing Cogliati v. Ecco High
Frequency Corp., 92 N.J. 402, 415 n.6. (1983)). "A residential
homeowner has a duty to render private walkways on the property
reasonably safe and—to the extent reasonable under the
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circumstances—to clear snow and ice that presents a danger to
known or expected visitors." Id. at 137.
As a social guest, defendants had a duty to warn of any
"dangerous conditions of which the owner had actual knowledge and
of which the guest is unaware." Rowe v. Mazel Thirty, LLC, 209
N.J. 35, 44 (2012) (quoting Hopkins v. Fox & Lazo Realtors, 132
N.J. 426, 434 (1993)). "A host's duty to a social guest includes
an obligation to warn of a known dangerous condition on the
premises except when the guest is aware of the condition or by
reasonable use of the facilities would observe it." Tighe v.
Peterson, 175 N.J. 240, 241 (2002).
Here, we agree with the trial judge that there was no genuine
issue of fact that defendant homeowners were aware of the icy
condition of the front walkway. Neither plaintiff nor defendants
said that they knew of the ice prior to the fall. Plaintiff did
not dispute defendants' claim that the walkway had been cleared
of snow and salted on November 28, the day before her fall. No
one disputed that the walkway was not used in the morning of the
29th. Defendant Salvador said that he looked at the walkaway that
morning and that it was clear. Plaintiff did not testify that it
rained on the 29th. Although, Salvador testified that it had
rained, plaintiff did not present evidence that defendants'
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reasonably should have known that the light rain would cause black
ice. There was no testimony that the area typically created ice
or that it had to be salted in the rain. Plaintiff had no expert
to discuss the meteorological conditions or the nature of the
walkway. Plaintiff did not see the ice on the walkway; she and
others traversed the walkway in one direction and she fell making
a return trip. Given this record, we agree with the trial judge
that plaintiff did not raise any genuine issue of material fact
that defendants' reasonably knew or should have known about the
alleged icy condition of the walkway before plaintiff's trip and
fall.
Affirmed.
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