HELEN CONTE VS. THE FOXMOOR MASTER ASSOCIATION, INC. (L-2890-15, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4083-17T3
HELEN CONTE and KEVIN
CONTE, h/w,
Plaintiffs-Appellants,
v.
THE FOXMOOR MASTER
ASSOCIATION, INC., THE
FOXMOOR IV CONDOMINIUM
ASSOCIATION, INC., FOXMOOR
ASSOCIATES, LLC, and
LEVANDUSKI SNOW
REMOVAL SERVICES, LLC,
Defendants,
and
SIGNATURE PROPERTY GROUP and
WYNDHAM PLACE CONDOMINIUM
ASSOCIATION,
Defendants-Respondents.
_________________________________
Argued March 6, 2019 – Decided March 27, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2890-15.
Brandon C. Simmons argued the cause for appellants
(Szaferman, Lakind, Blumstein & Blader, PC,
attorneys; Michael R. Paglione, on the briefs).
Amanda J. Sawyer argued the cause for respondents
(Methfessel & Werbel, attorneys; Amanda J. Sawyer,
of counsel and on the brief).
PER CURIAM
Plaintiffs Helen Conte and Kevin Conte appeal from a January 3, 2018
order granting summary judgment to defendants Signature Property Group
(Signature) and Wyndham Place Condominium Association (Wyndham)
dismissing the complaint against defendants without prejudice.1 Plaintiffs also
appeal an April 9, 2018 order denying their motion for reconsideration and
dismissing the complaint against defendants with prejudice. We affirm in part,
reverse in part and remand for further proceedings.
1
The order also granted summary judgment to defendants Foxmoor Master
Association, Inc., The Foxmoor IV Condominium Association, Inc., and
Foxmoor Associates, LLC, and dismissed the complaint as to those defendants
with prejudice. Plaintiffs do not challenge on appeal the court's award of
summary judgment to these defendants or the dismissal of the complaint against
them with prejudice.
A-4083-17T3
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I.
In our review of the record before the trial court, we view the facts and all
reasonable inferences therefrom in the light most favorable to plaintiffs because
they are the parties against whom defendants' summary judgment motion was
filed. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Applying that standard, the record before the motion court established the
following facts.
Plaintiff Helen Conte slipped and fell on ice as she walked her dog on a
sidewalk that runs parallel to Washington Boulevard in Robbinsville. The
sidewalk is abutted by a fifteen-building, 240-unit residential condominium
complex that is owned by Wyndham, a non-profit residential condominium
association. Signature serves as Wyndham's property manager for the
condominium complex. A raised berm approximately two-feet wide runs
parallel to the interior edge of the sidewalk. Helen Conte sustained personal
injuries as a result of her fall.
In their complaint, 2 plaintiffs alleged Helen Conte's fall and injuries were
proximately caused by defendants' negligence. More particularly, they alleged
2
Plaintiffs filed an original and two amended complaints. We summarize the
allegations in the second amended complaint.
A-4083-17T3
3
Wyndham owned the sidewalk and defendants negligently failed to remove ice
from the sidewalk, allowed the hazardous ice condition to exist and failed to
warn of the hazardous condition. Plaintiffs also alleged Levanduski Snow
Removal, LLC, (Levanduski) was responsible for salting or sanding the
sidewalk and removing ice from the sidewalk, but negligently performed those
responsibilities and created the dangerous condition that caused Helen Conte's
fall.3
Following discovery, defendants moved for summary judgment, arguing
Hellen Conte fell on a public sidewalk they had no duty to maintain and they
were exempt from liability for her fall on a public sidewalk abutting Wyndham's
residential property. Plaintiffs opposed the motion, claiming the sidewalk was
located on property owned by Wyndham and therefore was part of the common
elements of the condominium complex. Plaintiffs further asserted Wyndham
had a duty to maintain the sidewalk because it retained Levanduski to remove
snow and ice from the sidewalk.
The court heard oral argument on the motion, and found Wyndha m was
"immune from liability pursuant to the residential property exemption" because
it was "evident from the proofs that the sidewalk at issue abuts the Wyndham
3
Plaintiffs' claims against Levanduski were settled.
A-4083-17T3
4
property" but "is not part of the actual property itself." In other words, the court
found Wyndham, and by extension Signature, were exempt from liability for the
alleged dangerous condition of the property because the sidewalk was not
located on property Wyndham owned.
The court granted defendants' summary judgment motion but dismissed
the complaint without prejudice to allow plaintiffs an opportunity to present
evidence supporting their claim that defendants' negligence created the alleged
hazardous condition on the sidewalk. The court suggested such evidence could
be submitted in the form of a motion for reconsideration and instructed plaintiffs'
counsel he had twenty days to provide additional information supporting the
claim.
Consistent with the court's instruction, plaintiffs filed a motion for
reconsideration supported by a supplemental expert report from a forensic
engineer, John Nawn, P.E. 4 Nawn's report asserts that Wyndham is responsible
under the Robbinsville municipal code for clearing the sidewalk where Helen
Conte fell, and that the berm created a dangerous ice condition on the sidewalk
because it drained water from melting snow onto the sidewalk and, when the
4
There is no other report from Nawn included in the record on appeal.
A-4083-17T3
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temperature dropped below freezing, the drained water froze on the sidewalk.
Defendants filed a cross-motion for summary judgment.
After hearing oral argument, the court denied plaintiffs' reconsideration
motion and dismissed the complaint against defendants with prejudice. The
court found plaintiffs failed to present "any evidence showing that the pertinent
depression in the land is an artificial conduit created by the residential property
owner," and Nawn did not assert the berm was artificially created but instead
noted only that "due to the difference in the elevation between the sidewalk and
the adjacent berm-like mound, water runs down the hill and onto the sidewalk."
The court determined that because plaintiffs failed to demonstrate defendants
created the dangerous condition, they were exempt from liability for Helen
Conte's injuries because she fell on a public sidewalk adjacent to Wyndham's
residential property. This appeal followed.
II.
"[W]e review the trial court's grant of summary judgment de novo under
the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). "The trial court's
conclusions of law and application of the law to the facts warrant no deference
from a reviewing court." W.J.A. v. D.A., 210 N.J. 229, 238 (2012).
A-4083-17T3
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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." R.
4:46-2(c). We must "consider whether the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Brill, 142 N.J. at 540.
While "genuine" issues of material fact preclude the granting of summary
judgment, R. 4:46-2(c), those "of an insubstantial nature" do not. Brill, 142 N.J.
at 530 (citation omitted). "An issue of fact is 'genuine only 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.'" Grande
v. St. Claire's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217
N.J. 22, 38 (2014)); see also R. 4:46-2(c).
Plaintiffs' complaint asserts negligence claims against defendants. "To
prevail on a claim of negligence, a plaintiff must establish four elements: (1)
that the defendant owed a duty of care; (2) that the defendant breached that duty;
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(3) actual and proximate causation; and (4) damages." Fernandes v. DAR Dev.
Corp., 222 N.J. 390, 403-04 (2015). "[W]hether a defendant owes a legal duty
to another and the scope of that duty are generally questions of law for the court
to decide." Morris v. T.D. Bank, 454 N.J. Super. 203, 209 (App. Div. 2018)
(alteration in original) (quoting Robinson v. Vivirito, 217 N.J. 199, 208 (2014)).
"[W]hether the duty was breached is a question of fact." Ibid. (alteration in
original) (quoting Jerkins v. Anderson, 191 N.J. 285, 305 (2007)).
Residential property owners, including condominium associations, have
no duty to maintain public sidewalks abutting their land as long as they do not
affirmatively create a hazardous condition. See Luchejko v. City of Hoboken,
207 N.J. 191, 210-11 (2011). However, a condominium association is subject
to "common-law premises-liability jurisprudence" for its privately owned
sidewalks, which "imposes a duty on the [a]ssociation to keep its private
sidewalks reasonably safe." Qian v. Toll Bros. Inc., 223 N.J. 124, 142 (2015).
Here, the motion court granted defendants summary judgment dismissing
plaintiffs' negligence claims. The court found defendants had no duty to remove
ice from the sidewalk or otherwise maintain the sidewalk because Wyndham did
not own the sidewalk. The court erred, however, because there is a genuine
issue of material fact as to whether the sidewalk is owned by Wyndham.
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More particularly, Wyndham's master deed, which defendants submitted
to the court in support of their summary judgment motion, includes a description
of Wyndham's property and incorporates a map showing the property runs
parallel with and directly adjacent to Washington Boulevard. As plaintiffs
correctly note, "[n]either party undertook a survey to determine whether the
location of [p]laintiff's accident was within the boundaries of the property," but
it is not disputed Helen Conte fell on a sidewalk located between Wyndham's
condominium buildings and Washington Boulevard, and that the sidewalk runs
parallel to Washington Boulevard.
Viewing the evidence in the light most favorable to plaintiffs, the map
annexed to master deed shows that all of the property between Wyndham's
condominium buildings and Washington Boulevard is owned by Wyndham.
Thus, although the sidewalk where Helen Conte fell is not depicted on the map,
because the evidence shows the sidewalk runs parallel to Washington Boulevard
to the side of the road where the Wyndham condominium is located, the map
permits the reasonable inference that the sidewalk is located on property owned
by Wyndham. The inference is further supported by the master deed, which
expressly provides that Wyndham's "common elements shall include . . . [a]ll of
the walkways . . . located on the . . . parcel of land" described in the deed, and
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the evidence showing Wyndham assumed responsibility for the sidewalk's
maintenance by contracting with Levanduski to clear the sidewalk of snow.
Defendants dispute that Wyndham owned the property or had a duty to
maintain it free of the ice plaintiffs argue caused Helen Conte's injuries. That
dispute, however, is for the jury to resolve. We determine only that the evidence
before the motion court was sufficient to raise a genuine of issue of fact
concerning ownership of the sidewalk that precluded an award of summary
judgment. R. 4:46-2(c). The court's determination that defendants had no duty
to maintain the sidewalk free of ice is based on an incorrect finding that there is
no factual dispute concerning the sidewalk's ownership. We are therefore
constrained to reverse the court's order granting summary judgment to
defendants on plaintiffs' claim that defendants had a duty to maintain the
sidewalk because it was on property owned by Wyndham.
Plaintiffs also contend the court erred by denying their motion for
reconsideration and granting defendants' cross-motion for summary judgment
dismissing plaintiffs' claim that defendants negligently created a hazardous
condition on the sidewalk by constructing or maintaining an artificial berm. We
are not persuaded.
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In the first instance, it is inaccurate to characterize plaintiffs' request as a
motion for reconsideration under Rule 4:49-2. Plaintiffs did not seek
reconsideration of the court's initial decision granting defendants summary
judgment based on its finding the sidewalk is not on Wyndham's property.
Instead, plaintiffs filed the motion pursuant to the court's direction that they
could submit supplemental information, in the form of a putative reconsideration
motion, to support an alternative theory of liability against defendants—that the
alleged artificially created berm caused melting snow to pool on the sidewalk
thereby creating a hazardous condition when the temperatures fell below
freezing.
Plaintiffs' alternative theory is founded on the contention that an
artificially created berm which causes water to flow onto a sidewalk and creates
a hazardous condition permits a finding of liability against defendants. See, e.g.,
Gellenthin v. J. & D., Inc., 38 N.J. 341, 353 (1962) (finding a landowner liable
for injuries caused by frozen water on a sidewalk resulting from the landowner's
use of drainpipes to funnel water onto the sidewalk adjacent to the landowner's
property). The court, however, correctly rejected plaintiffs' alternative theory
and granted defendants' cross-motion for summary judgment dismissing the
claim because plaintiffs failed to present any competent evidence that the berm
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is not part of the natural topography. 5 We therefore affirm the court's denial of
plaintiffs' reconsideration motion and its order granting defendants' cross-
motion for summary judgment dismissing plaintiffs' claim that defendants are
liable for plaintiffs' alleged injuries because they created a dangerous condition
through installation or maintenance of a berm that is not part of the natural
topography, or by allowing the berm to direct water toward or onto the sidewalk
where Helen Conte fell.
Affirmed in part and reversed in part. Remanded for further proceedings.
We do not retain jurisdiction.
5
At oral argument before us, plaintiffs' counsel acknowledged that the record
is devoid of any competent evidence the berm was artificially created.
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