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

• Court: New Jersey Superior Court Appellate Division
• Decided: August 10, 2018
• Docket: A-0076-17T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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