NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3053-23
GLENN WEIDLICH,
Plaintiff-Appellant,
v.
313-319 FIRST STREET CONDO ASSOCIATION, INC. and CLINTON HILL CONDO ASSOCIATION,
Defendants,
and
357 8th STREET CONDOMINIUM ASSOCIATION, JOSEPH A. DEL FORNO, INC., DEL FORNO REAL ESTATE, LLC, and UNLIMITED BUILDING MANAGEMENT CORP.,
Defendants-Respondents. ________________________________
Argued April 29, 2025 – Decided July 22, 2025
Before Judges Firko, Bishop-Thompson and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0795-23.
Michael J. Redenburg argued the cause for appellant.
Stephen Purcell argued the cause for respondents Joseph A. Del Forno, Inc., and Del Forno Real Estate, LLC (Gage Fiore, LLC, attorneys; Anthony R. Fiore, Jr., on the brief).
Mitchell Ramirez argued the cause for respondent 357 8th Street Condominium Association (Moreira Sayles Ramirez, LLC, attorneys; Monique Moreira and Mitchell Ramirez, on the brief).
Mark R. Scirocco argued the cause for respondent Unlimited Building Management Corp. (Scirocco Law, PC, attorneys; Mark R. Scirocco, on the brief).
PER CURIAM
In this slip and fall case, plaintiff Glenn Weidlich appeals from the trial
court's three orders entered on May 10, 2024 granting summary judgment and
dismissing his complaint against defendants Joseph A. Del Forno, Inc. and Del
Forno Real Estate LLC, (Del Forno), 357 8th Street Condominium Association
(8th Street), and Unlimited Building Management Corp. (Unlimited). Having
reviewed the record de novo, giving plaintiff the benefit of every favorable
inference, we are satisfied defendants are entitled to a judgment as a matter of
law because there were no genuine issues of material fact as to the elements
necessary to establish plaintiff's negligence and premises liability claims.
A-3053-23 2 I.
We summarize the undisputed facts in the motion record. We view those
facts in the light most favorable to plaintiff, the non-moving party. Crisitello v.
St. Theresa Sch., 255 N.J. 200, 218 (2023), as revised (Aug. 14, 2023).
Plaintiff owns and lives in the condominium unit located at 357 8th Street,
Jersey City. The building was constructed in 1890. Del Forno had been
managing the building for several years. Plaintiff claimed that Del Forno and
8th Street were "responsible for maintaining, repairing and [] servicing the area
of [p]laintiff's fall." In November 2021, Del Forno hired Unlimited to paint the
façade of the building and the exterior steps.
On the morning of January 5, 2022, as he stepped outside his front door,
plaintiff slipped on ice on the landing and fell down the stairs. As a result of
the fall, plaintiff sustained a torn patella tendon and underwent surgery.
As a result of the injuries he sustained, plaintiff sued defendants, alleging
negligence and premises liability. Plaintiff later amended the complaint to add
8th Street as a defendant. Defendants First Street Condo Association, Inc., and
Clinton Hill Condo Association were voluntarily dismissed from the action.
Plaintiff alleged that the remaining defendants "were liable for the dangerously
A-3053-23 3 unsafe condition of the exterior front stairs of the building" "which caused
[plaintiff] to slip and fall on the steps," resulting in his serious injuries.
At the close of discovery, defendants filed motions for summary
judgment, alleging there was no genuine dispute of material fact that plaintiff
slipped and fell on ice on the landing. With their motions for summary
judgment, defendants produced the expert report of Dr. Mark Marpet, Ph.D.,
PE., who opined that plaintiff slipped "solely because of the ongoing freezing
rain" and icy condition on the landing that morning. Plaintiff opposed the
motion, contending plaintiff's expert, Dr. Carl Berkowitz, opined that the
deterioration of the exterior concrete stairs allowed water infiltration below the
surface of the concrete steps to freeze upon the treads, and Unlimited's use of
high gloss patio paint made the stairs more slippery. Plaintiff argues that
summary judgment could not be based on differing expert opinions.
Following oral argument, the court granted each defendant's motion for
summary judgment and dismissed plaintiff's complaint with prejudice.1 The
1 The May 10, 2024 order regarding Del Forno granted summary judgment in favor of these defendants and dismissed the complaint and all cross-claims against it but did not state that the dismissal was with prejudice. The court's statement of reasons attached to the order states that the complaint is "dismissed with prejudice." The May 10, 2024 orders regarding Unlimited and 8th Street state that plaintiff's complaint is dismissed with prejudice. A-3053-23 4 court provided a comprehensive statement of reasons explaining its reasoning
as to each defendant. The court found plaintiff "slipped and fell during an
ongoing storm event in the form of freezing rain." Thus, the court found the
"[o]ngoing [s]torm [r]ule," which immunizes "'commercial landowners' from
negligence if they fail to remove an accumulation of snow and ice from public
walkways during an ongoing storm," applies citing Pareja v Princeton Int'l
Props., 246 N.J. 546 (2021). The court concluded the record did not support a
finding that either exception to the ongoing storm rule, which would impose a
duty on defendants, applied in this case.
Regarding Unlimited, the court concluded that the record did not support
plaintiff's argument that the paint used by Unlimited "somehow made an icy
stair more slippery." Viewing the facts in the light most favorable to plaintiff,
the court concluded that there were no genuine issues of material fact, and
therefore, defendants were entitled to summary judgment.
On appeal, plaintiff reprises his argument made in opposition to
defendants' summary judgment motions and contends the court erred in granting
summary judgment because the ongoing storm rule was inapplicable due to the
pre-existing dangerous condition of the stairs as a result of defendants' conduct.
Plaintiff further argues that this dangerous condition existed because of the
A-3053-23 5 deterioration of the stairs caused by lack of maintenance and the recent paint job
completed on the stairs. Plaintiff asserts that the report of his liability
engineering expert, Dr. Berkowitz, together with plaintiff's lay opinion, were
sufficient to raise genuine issues of material fact for the jury. Therefore,
summary judgment was inappropriately granted.
II.
We review a grant of a motion for summary judgment de novo , "applying
the same standard as the trial court." Samolyk v. Berthe, 251 N.J. 73,78 (2022);
Stewart v. N.J. Tpk. Auth./Garden State Parkway, 249 N.J. 642, 655 (2022).
Under this standard, summary judgment will be granted when "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 v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
"To decide whether a genuine issue of material fact exists, the trial court
must 'draw[] all legitimate inferences from the facts in favor of the non -moving
party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original)
(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "An issue of
material fact is 'genuine only if, considering the burden of persuasion at trial,
A-3053-23 6 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. Saint Clare's Health Sys., 230 N.J.
1, 24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). We owe no
deference to the motion court's legal analysis. RSI Bank v. Providence Mut.
Fire Ins. Co., 234 N.J. 459, 472 (2018) (citing Bhagat, 217 N.J. at 38).
To establish a negligence claim, a plaintiff must prove defendant: (1)
owed a duty of care; (2) breached that duty; (3) the breach proximately caused
the plaintiff's injury; and (4) damages. Townsend v. Pierre, 221 N.J. 36, 51
(2015) (citing Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). "Under New
Jersey's general premises liability law, a proprietor owes 'his [or her] invitees
due care under all the circumstances.'" Jeter v. Sam's Club, 250 N.J. 240, 251
(2022) (quoting Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015)).
Condominium associations owe a statutory duty to their residents to
maintain common areas pursuant to the Condominium Act, N.J.S.A. 46:8B-1 to
-38, including paths and exterior stairs. Lechler v. 303 Sunset Ave. Condo.
Ass'n, Inc., 452 N.J. Super. 574, 577-78 (App. Div. 2017); N.J.S.A. 46:8B-14(a).
Regulations for the maintenance of multiple dwellings—including
A-3053-23 7 condominiums, N.J.S.A. 55:13A-3(k)—make it the "duty of the owner or
operator to keep the premises free of . . . icy conditions [and] uncleared snow
. . . on paths [and] walks . . . ." N.J.A.C. 5:10-1.4(a), -6.4(a)(4).
New Jersey law has consistently distinguished between private residential
and commercial properties for purposes of common law premises liability. See
Qian v. Toll Bros. Inc., 223 N.J. 124, 136 (2015) (citing Luchejko v. City of
Hoboken, 207 N.J. 191, 195, 211 (2011)). As the Court in Qian held, "common-
law premises-liability jurisprudence imposes a duty on [an] [a]ssociation to keep
its private sidewalks reasonably safe." Id. at 142; but see Luchejko, 207 N.J. at
196, 211.
In 2021, our Supreme Court adopted the "ongoing storm rule," which
affects the duty commercial landowners have to remove snow and ice
accumulations in pathways during a storm. Pareja, 246 N.J. at 554-56. "The
premise of the [ongoing storm] rule is that it is categorically inexpedient and
impractical to remove or reduce hazards from snow and ice while the
precipitation is ongoing." Id. at 558. The Court explained that "absent unusual
circumstances, a commercial landowner's duty to remove snow and ice hazards
arises not during the storm, but rather within a reasonable time after the storm."
Ibid. In Pareja, the Court cited Qian to highlight that our caselaw imposes a
A-3053-23 8 duty on common interest communities and their management companies "to
clear snow and ice from the private sidewalks abutting [their] land" while
recognizing "[t]hat liability has not been extended to residential landowners."
Id. at 556. Here, neither party has argued that defendants had no duty to
maintain the stairs outside defendant's condominium and clear snow and ice
from them. Rather, the dispute centers on whether one of the exceptions to the
ongoing storm rule applies.
The Court in Pareja identified two exceptions to the ongoing storm rule
that may impose a duty on a commercial landowner. Id. at 559. First, a
commercial landowner may be liable "if [his or her] actions increase the risk to
pedestrians and invitees on [the] property, for example, by creating 'unusual
circumstances' where the defendant's conduct 'exacerbate[s] and increases[s] the
risk' of injury to the plaintiff." Ibid. (alterations in original) (quoting Terry v.
Cent. Auto Radiators, Inc., 732 A.2d 713, 717-18 (R.I. 1999)). Second, "a
commercial landowner may be liable where there was a pre-existing risk on the
premises before the storm." Ibid. Therefore, a landowner may be liable for an
injury during a later ongoing storm if it "failed to remove or reduce a pre-
existing risk on the property." Ibid.
A-3053-23 9 Plaintiff contends the factual circumstances here raise genuine issues of
material fact regarding the applicability of the ongoing storm rule. Specifically,
plaintiff argues that defendants' conduct created and increased the risk to
plaintiff by: (1) not addressing the "deterioration of the surface of the steps
which allowed water infiltration and imperceptible freezing [to occur] over . . .
the surface"; (2) using the wrong paint during a recent paint job which made
the steps, in plaintiff's opinion, "sleeker" and "rougher in the rain to navigate or
when they're wet"; and (3) affixing the handrails next to the steps too far from
the pedestrian pathway. Based on our review of the summary judgment record,
we are satisfied that the court correctly applied the governing law and
determined that neither exception to the ongoing storm rule applies as a matter
of law.
A. Expert Opinion.
Plaintiff argues that Dr. Berkowitz's opinion created a genuine issue of
material fact regarding "the unreasonably dangerous condition" on the landing
of the steps, thereby satisfying one of the Pareja exceptions to the ongoing storm
rule: (1) "a preexisting deterioration of the surface of the steps which allowed
water infiltration and imperceptible freezing over [and] onto the surface"; and
(2) the "handrails that were affixed to the steps [were] too far from the pedestrian
A-3053-23 10 pathway . . . ." According to Dr. Berkowitz, the steps were "poorly designed
and maintained . . . [and] defective"; therefore, these defects "together with the
stairway's low coefficient of friction caused by the ice condition, directly
resulted in [plaintiff's] slip and fall." Plaintiff maintains that because defendants
"did not properly inspect, assess, repair, or rectify this preexisting condition,"
the court erred in finding no genuine issue of fact as to whether the exception to
the ongoing storm rule applied in this case.
Based upon our de novo review, we are satisfied the court did not err in
applying the ongoing storm rule to the undisputed facts for these reasons: (1)
plaintiff admitted that he fell due to ice on the landing of the steps; (2) Dr.
Berkowitz's opinion regarding the steps is inapplicable because plaintiff fell on
the landing and not on the steps; and (3) Dr. Berkowitz's report lacks factual
support for the conclusion that the handrails were too far from the walking
pathway.
An expert opinion must "be grounded in 'facts or data derived from (1) the
expert's personal observations, or (2) evidence submitted at the trial, or (3) data
relied upon by the expert which is not necessarily admissible in evidence but
which is the type of data normally relied upon by experts.'" Townsend, 221 N.J.
at 53 (quoting Polzo, 196 N.J. at 583) (internal quotation marks omitted);
A-3053-23 11 N.J.R.E. 703. An expert must "give the why and wherefore that supports the
opinion, rather than a mere conclusion." Davis v. Brickman Landscaping, Ltd.,
219 N.J. 395, 410 (2014) (quoting Pomerantz Paper Corp. v. New Cmty. Corp.,
207 N.J. 344, 372 (2011)) (internal quotation marks omitted).
In his answers to interrogatories, plaintiff admitted he slipped because of
the "icy condition" on the landing of the exterior step of the building where he
lives. During his deposition, plaintiff testified that he slipped on the landing,
and not on the stairs:
Q: How many steps had you taken onto the landing before you slipped?
A: As soon as my foot hit the landing, that was it. The next thing I kn[e]w I was on the sidewalk. There was no additional steps. It was one step and then I kind of just was on the sidewalk.
Q: Which foot did you place onto the landing that slipped?
A: Left.
It is undisputed that there had been no precipitation, including snow and
ice, days before plaintiff slipped and fell. Instead, on the date of the incident,
"[p]recipitation in the form of freezing rain and snow occurred intermittently"
from "4:20 [a.m.] to 5:50 [a.m.]" Then, after 5:50 a.m., freezing rain and
freezing drizzle occurred frequently until around 7:30 a.m. "with rain [and]
A-3053-23 12 freezing rain" continuing thereafter. Plaintiff confirmed that the incident
happened when he left for work at 7:30 a.m. Moreover, Dr. Berkowitz's report
recognized the existence of "icy conditions" on the morning of plaintiff's fall in
his opinion when he concluded, "[t]hese design and maintenance defects
together with the stairway's low coefficient of friction caused by the icy
condition, directly resulted in [plaintiff's] slip and fall.
The undisputed facts establish that plaintiff slipped and fell as soon as he
stepped onto the landing outside his front door that morning due to the icy
conditions, and not on the steps. Plaintiff admitted that he never reached any of
the stairs that Dr. Berkowitz opined were "poorly designed and maintained." It
is undisputed that the fall occurred on the landing and not on the steps which
Dr. Berkowitz described were "not level and not uniform" and were in need of
repair.
Regarding the handrails, Dr. Berkowitz opined that "the locations of the
handrails were too far from the walking pathway to allow [plaintiff] the ability
to utilize them to stabilize himself or to help him regain his balance after slipping
on the icy surface" and that "[r]ailing[s] should be closer to the pedestrian
walking pathway." However, Dr. Berkowitz's report fails to provide support for
this conclusion. Moreover, Dr. Berkowitz's bare conclusion is not supported by
A-3053-23 13 any credible evidence in the record. Without such support, the opinion is an
unreliable and inadmissible net opinion.
B. Lay opinion.
Plaintiff next contends that the recent paint job with the "wrong paint"
made the steps, in plaintiff's lay opinion, "sleeker" and "rougher in the rain to
navigate . . . ." Plaintiff argues that his personal knowledge of the condition of
the steps after they were painted created a genuine issue of material fact as to
"whether Unlimited's paint job on the stairs caused an unreasonably dangerous
condition." We reject plaintiff's newly minted argument that the paint enhanced
the slipperiness of the landing for three reasons: (1) plaintiff's expert offered no
opinion to support this assertion; (2) this conclusion requires expert testimony;
and (3) the record does not support plaintiff's assertion that there is a c ausal
connection between Unlimited's work and plaintiff's fall.
Plaintiff acknowledges that Dr. Berkowitz offered no analysis or opinion
as to whether Unlimited's choice of paint made the steps more slippery. Plaintiff
also acknowledges that he provided no additional expert opinion regarding the
specialized field of painting exterior walkways and stairs.
Under limited circumstances, lay opinion may be appropriate.
N.J.R.E. 701 governs the admissibility of lay opinion and states, "[i]f a witness
A-3053-23 14 is not testifying as an expert, the witness' testimony in the form of opinions or
inferences may be admitted if it: (a) is rationally based on witness' perception;
and (b) will assist in understanding the witness' testimony or determining a fact
in issue. "The witness's perception must 'rest[] on the acquisition of knowledge
through use of one's sense of touch, taste, sight, smell or hearing.'" State v.
Hyman, 451 N.J. Super. 429, 442 (App. Div. 2017) (alteration in original)
(quoting State v. McLean, 205 N.J. 438, 457 (2011)); see also N.J.R.E. 602
(stating that, except as otherwise provided by Rule 703 (bases of opinion
testimony by experts), a witness may not testify to a matter unless "evidence is
introduced sufficient to support a finding that the witness has personal
knowledge of the matter"). "A nonexpert may give his [or her] opinion on
matters of common knowledge and observation." Murphy v. Trapani, 255 N.J.
Super. 65, 74 (App. Div. 1992).
Plaintiff argues that his testimony regarding the condition of the steps is
appropriate lay opinion testimony based on his personal experience and
perceptions. Unlimited counters that an expert is needed to explain how the type
of paint used made the steps more slippery and therefore materially contributed
to plaintiff's fall. We hold that without an expert, the record fails to establish a
nexus between the paint job and plaintiff's fall.
A-3053-23 15 Plaintiff may be able to testify regarding his perception that the walkway
seemed more slippery since having been painted, especially when it is wet.
However, the record does not provide factual support for this perception.
Plaintiff testified that in the month since the stairs were painted, he had no
problem with the steps.
Moreover, plaintiff lacks personal knowledge and expertise to enable him
to testify that the paint was the cause of the stairs becoming more slippery. The
question of whether a specific type of paint would exacerbate the slippery
condition of the steps is not a question within the personal knowledge of
plaintiff. Rather, it is a question that requires scientific or technical knowledge
to assist the trier of fact in understanding the evidence or a fact in issue. N.J.R.E.
702. The undisputed testimony from Unlimited's painter was that Unlimited
"used the paint that was recommended by Benjamin Moore" for "what [they]
would be painting," and they selected a type of caulking and exterior acrylic
walking finish paint congruent with the type of work.
We conclude that any causal connection between the paint used thirty days
prior to the incident and plaintiff's fall was a subject beyond the average person's
common knowledge and understanding. Davis, 219 N.J. at 407. Plaintiff's lay
opinion alone was insufficient to establish a genuine issue of fact as to whether
A-3053-23 16 Unlimited's paint job caused or contributed to an unreasonably dangerous
condition.
III.
Finally, plaintiff argues the court improperly adjudicated a "battle of the
experts" and wrongly granted summary judgment. Plaintiff contends that
conflicting expert reports raised a genuine issue of material fact as to whether a
preexisting dangerous condition existed, thereby precluding the ongoing storm
doctrine. We reject plaintiff's assertions and hold that there were no competing
expert opinions as to the essential elements of plaintiff's claims.
We acknowledge that where a genuine issue of material fact exists,
summary judgment is inappropriate, and the matter should be resolved by the
jury. R. 4:46-2(c); see also Brill, 142 N.J. at 540. Certainly, competing expert
opinions may result in a genuine factual dispute. However, that is not the case
here.
The report of plaintiff's expert—Dr. Berkowitz—focused on the
deterioration of the stairs and briefly discussed the inadequacy of the handrails ,
though he provided no support for his conclusion that the handrails were too far
from the pathway. Defendants' expert, Dr. Mark Marpet, primarily disputed Dr.
Berkowitz's allegations regarding the deterioration of the stairs. Dr. Marpet
A-3053-23 17 opined that Dr. Berkowitz used improper standards to determine whether the
stairs were compliant with the building code because, generally, structures
should be measured against the building codes that were in place at the time the
structure was built. In this case, the building and stairs were constructed in
1890. Dr. Marpet additionally argued that Dr. Berkowitz mischaracterized the
landing as an "extra-long tread . . . ." Further, Dr. Marpet only briefly mentioned
the handrails and provided no analysis of their distance from the pathway.
For the reasons stated, Dr. Berkowitz's opinion failed to establish either
exception under the ongoing storm rule because his report focused on the
deterioration of the stairs, and not the landing, where plaintiff actually fell;
additionally, the report made only conclusory statements about the location of
the handrails. Given these deficiencies, there were no competing opinions on
the essential elements of plaintiff's claims, and thus, no material factual dispute
was created by the experts' reports.
In sum, we affirm the orders granting summary judgment because the
court applied the correct legal principles. Viewing the facts in the light most
favorable to plaintiff, the non-moving party, those undisputed facts
demonstrated that plaintiff slipped and fell during an ongoing storm event.
Applying the ongoing storm rule, the court properly determined that the record
A-3053-23 18 did not support a finding that either exception to the rule applied. Thus,
defendants had no duty to remove ice from the property until the storm ended.
Without evidence of a duty of care, the court properly granted summary
judgment to defendants on plaintiff's negligence and premises liability claims.
Affirmed.
A-3053-23 19