JANET DIXON VS. HC EQUITIES ASSOCIATES, LP (L-7755-16, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5756-17T1
JANET DIXON,
Plaintiff-Appellant,
v.
HC EQUITIES ASSOCIATES, LP,
Defendant-Respondent.
_____________________________
Submitted April 4, 2019 – Decided May 2, 2019
Before Judges Whipple and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-7755-16.
Rothenberg, Rubenstein, Berliner & Shinrod, attorneys
for appellant (Alan Berliner, on the brief).
The Law Office of John P. Hendrzak, attorneys for
respondent (Christopher S. Byrnes, on the brief).
PER CURIAM
Plaintiff Janet Dixon slipped and fell on a sidewalk while it was snowing.
She appeals from a July 20, 2018 order granting summary judgment to defendant
HC Equities Associates LP, the owner of the premises. We affirm because the
undisputed facts established that defendant did not breach a duty of care to
plaintiff.
I.
We derive the facts from the summary judgment record, viewing them in
the light most favorable to plaintiff. After leaving work on March 3, 2015,
plaintiff fell during a snowstorm in Elizabeth. According to certified records
from the National Centers for Environmental Information, U.S. Department of
Commerce, National Oceanic and Atmospheric Administration (NOAA) for
Newark Airport, a snowstorm consisting of mixed snow, ice pellets, and freezing
rain developed between 5:15 p.m. and 10:09 p.m. that day. A winter weather
advisory was issued at 4:01 a.m. on March 3, 2015, stating:
Winter weather advisory remains in effect from 3[:00]
[p.m.] this afternoon to 2[:00] [a.m.] EST Wednesday.
*Locations . . . New York City . . . as well as Union
[County] . . . .
*Hazard Types . . . snow . . . sleet and freezing rain.
*Accumulations . . . snow accumulation of [one] to
[three] inches . . . along with less than a tenth of an inch
of ice.
*Temperatures . . . in the lower [thirties].
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*Timing . . . snow develops late this afternoon . . . then
mixes with sleet and freezing rain this evening before
changing to freezing rain by midnight . . . then to plain
rain late at night.
*Impacts . . . snow covered surfaces . . . coated with ice
. . . will make traveling difficult at times.
Plaintiff was employed as a senior probation officer and left work at 7:00
p.m., exiting the Albender building through the front entrance and walking
around the building to the parking lot where her state issued car was parked.
According to plaintiff, she slipped and fell on ice outside of the building. At her
deposition, she testified that it started snowing earlier that day while she was at
work, but not before she arrived, and when she left. There was at least one inch
of snow on the sidewalk and "[she] was making tracks . . . [she] was just
walking." Plaintiff was wearing boots and was "walking very slow" because she
saw snow on the sidewalk. She testified she "was walking and the next thing
[she] knew [she] was in the air and coming down." Plaintiff "assume[d]" that
her feet slipped, but had no specific recollection of whether one foot or both feet
slipped. In her interrogatory answers, plaintiff certified that she did not notice
ice under the snow before or after her fall, and contradicted herself in a
supplemental interrogatory answer stating there was "[i]ce under snow." She
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fell on her left side, "hitting [her] butt." As a result of her fall, plaintiff fractured
her left hip and underwent a left hip replacement. 1
Plaintiff sued defendant alleging negligence. The parties engaged in
discovery and defendant moved for summary judgment arguing there was a lack
of evidence from which a jury could determine that it breached a duty of care to
plaintiff because she fell on snow while it was snowing and there was no duty
to remove the snow until a reasonable time after the snow stopped falling.
After hearing oral argument, the trial court granted summary judgment
reasoning that no rational jury could find defendant was negligent because
plaintiff fell during an ongoing snowstorm. Accordingly, the trial court entered
an order granting summary judgment to defendant and dismissing plaintiff's
complaint. Plaintiff now appeals.
II.
On appeal, plaintiff argues that the trial court failed to consider material
factual disputes that should have precluded summary judgment in favor of
defendant. We review a trial court's decision to grant summary judgment de
novo, using the same standard the trial court applies. A motion for summa ry
1
This information is contained in plaintiff's interrogatory answers. Her medical
records were not provided.
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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." R. 4:46-
2(c).
First, the reviewing court must decide whether there was a genuine issue
of fact. Rule 4:46-2(c) states that there is only a genuine issue of fact "if,
considering the burden of persuasion at trial, the evidence submitted by the
parties on the motion, together with all legitimate inferences therefrom favoring
the non-moving party, would require submission of the issue to the trier of fact."
Pursuant to this standard, the judge must decide whether "there exists a single,
unavoidable resolution of the alleged disputed issue of fact, that issue should be
considered insufficient to constitute a 'genuine' issue of material fact for
purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540
(1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
Thus, the evidence must be "so one-sided that one party must prevail as a matter
of law[.]" Ibid. (quoting Anderson, 477 U.S. at 252).
Here, plaintiff asserted a claim of negligence against defendant. In order
to prove her negligence claim, plaintiff must prove: (1) defendant owed her a
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duty of care; (2) defendant breached that duty; (3) the breach was a proximate
cause of her injury; and (4) plaintiff sustained actual damages. Townsend v.
Pierre, 221 N.J. 36, 51 (2015). Defendant does not dispute that it owed plaintiff
a duty to exercise reasonable care because she was a business invitee at the time
of the accident, but her claim fails as a matter of law because she cannot show
it breached that duty. We agree.
"An owner or possessor of property owes a higher degree of care to the
business invitee because that person has been invited on the premises for
purposes of the owner that often are commercial or business related." Hopkins
v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). That duty requires owners
"to make reasonable inspections of the property and to remedy any reasonably
discoverable defects." Id. at 441.
The area to which this duty applies "extends to the premises' parking
lot[.]" MacGrath v. Levin Props., 256 N.J. Super. 247, 250 (App. Div. 1992).
Accordingly, a business owner is "under a duty to exercise reasonable care to
keep [its parking area] free of ice and snow." Bates v. Valley Fair Enters., Inc.,
86 N.J. Super. 1, 6 (App. Div. 1964). It has long been recognized, however, that
commercial landowners have a reasonable time in which to act to clear snow
and ice from walkways. See Bodine v. Goerke Co., 102 N.J.L. 642, 644 (E. &
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A. 1926) (holding that a property owner could not be liable for failing to remove
slush or ice from the entrance to a store while the storm was still ongoing).
In this case, it is undisputed that the snowstorm was ongoing when
plaintiff slipped and fell while walking to her car. Indeed, plaintiff
acknowledged that it was snowing after she arrived for work and when she left
the building. Given these undisputed facts, defendant was not obligated to
remove snow and ice until the precipitation stopped and it had a reasonable time
to remove the snow and ice.
In determining whether a duty exists, the court must consider "whether
the imposition of such a duty satisfies an abiding sense of basic fairness under
all of the circumstances in light of considerations of public policy." Hopkins,
132 N.J. at 439. This inquiry "involves identifying, weighing, and balancing
several factors—the relationship of the parties, the nature of the attendant risk,
the opportunity and ability to exercise care, and the public interest in the
proposed solution." ADS Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496,
522-23 (2014) (quoting Brunson v. Affinity Fed. Credit Union, 199 N.J. 381,
403 (2009)). The presence or absence of an enforceable duty is generally a
question of law for the court. Clohesy v. Food Circus Supermarkets, Inc., 149
N.J. 496, 502 (1997).
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At common law, residential and commercial property owners did not have
a duty to maintain public sidewalks, abutting their premises, free from snow and
ice. Skupienski v. Maly, 27 N.J. 240, 247 (1958). An exception was later
"carved out" for commercial landowners in Stewart v. 104 Wallace St., Inc., 87
N.J. 146, 149-50 (1981). There, plaintiff fell on a severely dilapidated sidewalk
abutting defendant's property and sustained injuries. Id. at 150. Stewart held
that "[c]ommercial property owners are henceforth liable for injuries on the
sidewalks abutting their property that are caused by their negligent failure to
maintain the sidewalks in reasonably good condition." Ibid. This duty has been
extended to include snow and ice removal if a plaintiff could prove actual or
constructive notice by the owner. Mirza v. Filmore Corp., 92 N.J. 390, 395
(1983).
In Mirza, plaintiff was employed by a company that was located in a
building owned by defendant. Id. at 393. The entrance to the building was
covered with a foot of snow, which concealed ice underneath it. Ibid. It had
snowed three or four days before the day of the accident, as well as throughout
the night leading into the morning plaintiff fell. Ibid. At the time, there was no
duty for an abutting landowner to remove the natural accumulation of snow and
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ice from a public sidewalk. Ibid. The trial judge granted summary judgment in
favor of defendant, and we affirmed. Id. at 393-94.
In considering Stewart, our Court reiterated that "an abutting owner may
be liable to a pedestrian who is injured as a result of a dangerous condition
irrespective of the fact that nature or some third person caused the condition."
Id. at 394-95. It follows, therefore that:
the duty to remove snow and ice is more important and
less onerous than the general duty of maintenance
imposed by Stewart. Snow and ice pose a much more
common hazard than dilapidated sidewalks. The many
innocent plaintiffs that suffer injury because of
unreasonable accumulations should not be left without
recourse.
[Id. at 395.]
The Court clarified "[t]he abutting commercial owner's responsibility arises only
if, after actual or constructive notice, he has not acted in a reasonably prudent
manner under the circumstances to remove or reduce the hazard." Ibid. The
question is whether a reasonably prudent person would have caused the public
sidewalk to be reasonably safe within a reasonable period of time after the
person knew or should have known of the condition. Id. at 395-96. Our Court
concluded the duty to remove "snow or ice or reduction of the risk" depends on
the circumstances. Id. at 396.
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"Whether a person owes a duty of reasonable care toward another turns
on whether the imposition of such a duty satisfies an abiding sense of basic
fairness under all of the circumstances in light of considerations of public
policy." Hopkins, 132 N.J. at 439. Our courts have interpreted this to mean that
commercial landlords are not required to remove dangerous conditions while
snow is still accumulating, but within a reasonable time after snowfall has
stopped. See Qian v. Toll Bros., Inc., 223 N.J. 124, 136 (2015) (upholding the
imposition of "a duty on commercial property owners to take reasonable
measures to maintain a public sidewalk for the safety of pedestrians was
consonant with public policy and notions of fairness").
New Jersey has long upheld the principle that commercial property owners
are not liable for clearing snow during a snowstorm. In Bodine, the plaintiff
slipped on slush at the entrance of a store. 102 N.J.L. at 642-43. Plaintiff fell
while it was still snowing, leading the judge to conclude that these facts could
not "justify a jury in finding, that the defendant was guilty of negligence." Id.
at 644. While Bodine involved a plaintiff falling at a store entrance, the premise
that an owner cannot be found negligent for failing to clear snow and ice during
an ongoing storm has been extended to commercial sidewalks.
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We agree with the trial court here that defendant did not have a duty to
clear the sidewalk outside of its building at the time of plaintiff's accident.
Plaintiff left work at approximately 7:00 p.m. She admitted it was snowing
when she left, as confirmed by the NOAA records. We are not persuaded by the
fact she was driving a state issued car because it has nothing to do with
negligence or defendant's duty in this instance. Our jurisprudence does not
support a duty for a commercial landowner to maintain sidewalks free of ice and
snow until a reasonable time after a storm has ended.
Plaintiff argues that Quiles v. Hector, No. A-0023-16 (App. Div. Jan. 19,
2018) (slip op. at 9) is not applicable to this case because she was not permitted
to leave work early. In Quiles, plaintiff was bringing a pizza to a friend, who
lived in an apartment complex owned by defendant, while it was snowing. Id.
at 3. Plaintiff testified that she could not walk on the sidewalk because there
was "too much snow[,]" and, therefore, walked down a driveway instead.
Approximately one inch of snow was on the ground, and plaintiff fell, injuring
her right hand and lower back. Id. at 4. Although defendant admitted being
responsible for snow removal, we upheld summary dismissal, concluding there
is no duty for a commercial owner to remove snow until a reasonable time has
passed. Id. at 9. We further held that a commercial landowner has a duty to act
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within a reasonable period of time after he or she "knows or has reason to know
of a dangerous condition caused by the accumulation of snow and ice." Id. at
11.
In considering Bodine, Mirza, and Qian, we consistently held "defendant
ha[s] a duty to make the private walkways . . . reasonably safe for known or
expected visitors. However, that duty is to act reasonably under the
circumstances, and defendant cannot be liable for failing to remove the
accumulated snow or ice until a reasonable time after the storm ends." Id. at 9.
We rejected plaintiff's argument in Quiles that the amount of snow on the ground
created a genuine issue of material fact, and found that "the key factual issue
was whether the snowstorm was continuing when plaintiff slipped and fell." Id.
at 13.
Here, plaintiff contends Quiles is distinguishable because in that case,
plaintiff voluntarily entered the premises, and in this case, plaintiff was required
to stay at work until 7:00 p.m. In response to her argument, the trial judge stated
"it's not prison. She can go home anytime she wants . . . it's just that she may
not necessarily get paid for it, but that's a different issue. She's not locked in,
right?" She claims the trial court erred in relying on Quiles, and urges us to
distinguish it. Our precedent makes no distinction between voluntarily being on
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a premises versus working when it comes to the issue of snow removal. Because
Quiles is an unpublished opinion, it is not binding on any court and may only be
considered as persuasive authority. See Pressler & Verniero, Current N.J. Court
Rules, cmt. 2 on R. 1:36-3 (2019). Therefore, we are unpersuaded by plaintiff's
argument.
III.
Plaintiff also argues that defendant's superintendent, Carmello, 2 was
aware that probation officers were required to work late some evenings, and he
did not shovel, salt or sand the subject sidewalk. At oral argument, plaintiff's
counsel argued:
it's reasonable to expect that he would at least attempt
something . . . . [The employees] only have one way to
enter and exit the building. When they come out he can
greet them with a shovel and just shovel a little path, as
best as he can, to get to the parking lot.
No evidence was provided as to whether Carmello or anyone else salted or
sanded the sidewalk prior to plaintiff's fall, but that is irrelevant because the
storm was in progress and no duty was owed by defendant. Plaintiff also
testified that she has never seen Carmello salt or sand the sidewalks before a
snowstorm, and she never complained to her employer about hazardous sidewalk
2
No last name was provided for Carmello in the record.
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conditions. Plaintiff's attempt to impose a duty on a commercial landowner who
employs a live-in superintendent to clear sidewalks of ice and snow during an
ongoing snowstorm, such as defendant here, lacks merit, and is unsupported by
statute and case law.
In support of its position, defendant relies upon Hill v. Saint Barnabas
Medical Center, No. A-0148-17 (App. Div. July 16, 2018), 3 an unpublished case.
In Hill, plaintiff fell outside of defendant's premises while it was snowing
heavily and sustained injuries. Id. at 3. Records provided from the National
Weather Service indicated that the snowstorm began around 8:30 a.m. on the
day of plaintiff's accident, and continued until late afternoon. Id. at 14.
Summary judgment was granted in favor of defendant. Id. at 7. We again
considered the holdings in Stewart, Qian, and Bodine, all of which previously
held commercial landowners will not be deemed responsible for snow and ice
removal until a reasonable time has passed. Id. at 10-12. "As indicated in
Bodine, the property owner has a reasonable time to act after the storm ends in
3
As mentioned above, unpublished opinions are not binding on any court and
should not be relied upon for precedential authority. Pressler & Verniero,
Current N.J. Court Rules, cmt. 2 on R. 1:36-3 (2019). "Although the parties
may bring unpublished opinions to the attention of the court, the court itself may
not cite an unpublished opinion except to the limited extent required by the
application of preclusionary legal principals or case history." Ibid.
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which to clear accumulated snow and ice." Id. at 12. Summary judgment was
upheld because the court found there were no genuine issues of material fact as
to whether the storm was ongoing when plaintiff slipped. Ibid.
The facts here are undisputed. Plaintiff admittedly slipped and fell in the
middle of a five-hour snow storm. The trial court, therefore, did not err in
finding that defendant did not owe a duty to her to clear the snow and ice while
it was still falling, and appropriately granted summary judgment.
Further, the Restatement (Second) of Torts § 343A (Am. Law. Inst. 1965)
provides: "A possessor of land is not liable to his invitees for physical harm
caused to them by any activity or condition on the land whose danger is known
or obvious to them, unless the possessor should anticipate the harm despite such
knowledge or obviousness." Under the common law, a landowner owes the
highest duty to a business invitee, a person that "has been invited on the premises
for purposes of the owner that often are commercial or business related."
Hopkins, 132 N.J. at 433.
IV.
Finally, we address N.J.S.A. 40:65-12, which authorizes municipalities to
enact ordinances to compel an owner or tenant of land abutting sidewalks to
remove all snow and ice "within twelve hours of daylight after the same shall
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fall or be formed thereon[.]" These ordinances, while not creating a tort duty as
a matter of law, Smith v. Young, 300 N.J. Super. 82, 95 (App. Div. 1997), may
provide insight as to a reasonable period of time within which to act. Mizra, 92
N.J. at 396 n.3. The relevant Elizabeth Municipal Codes in effect at the time of
plaintiff's accident provided:
The owner, agent, tenant, occupant or person having
charge of any building or lands bordering upon any
street, square, highway or public place within the city
that is or may be graded, curbed and flagged shall cause
the sidewalk of the property to be cleared of snow, ice
or sleet, to a width of at least four feet, within twelve []
hours of daylight after the same shall be formed or fall
thereon.
[Elizabeth, N.J., Mun. Code 12.16.010 (2014).]
Whenever ice shall form on any sidewalk or any part
thereof, the owner, agent, tenant, occupant or person
having charge of any building or lands as aforesaid
shall, within the space of one hour thereafter, during the
daytime, cause such sidewalk to be made safe and
convenient for travel by removing ice therefrom or by
covering the same with sand or some other suitable
substance.
[Elizabeth, N.J., Mun. Code 12.16.020 (2014).]
The owner, agent, tenant, occupant or person having
charge of any building or lands within the city which
has located thereon any off-street parking areas shall
cause such off-street parking areas to be cleared of
snow, ice or sleet within twelve [] hours of daylight
after the same shall be formed or shall fall thereon.
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[Elizabeth, N.J. Mun. Code 12.16.050 (2014).]
While these codes are not binding on whether a legal duty existed, they
are instructive as to whether defendant acted reasonably. Elizabeth's ordinances
require an owner to remove snow and ice within twelve hours of daylight after
precipitation has ceased. Thus, defendant's duty here would not have arisen until
the following morning on March 4.
The undisputed material fact remains that it was snowing and defendant
was afforded a reasonable period of time to remove the snow and ice.
Affirmed.
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