Jamie Sterlacci v. Wawa Food Markey

• Court: New Jersey Superior Court Appellate Division
• Decided: August 27, 2024
• Docket: A-3572-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3572-22

JAMIE STERLACCI,

Plaintiff-Appellant,

v.

WAWA FOOD MARKET,

Defendants-Respondents. __________________________

Agued May 29, 2024 – Decided August 27, 2024

Before Judges Sumners and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1862-21.

James Bayard Smith argued the cause for appellant (John J. Pisano, and Smith and Williams Law Firm, LLC, attorneys; John J. Pisano, on the brief).

Richard S. Ranieri argued the cause for respondent (Weber Gallagher Simpson Stapleton Fires & Newby LLP, attorneys; Richard S. Ranieri and James E. Hajel, on the brief).

PER CURIAM In this negligence action arising from plaintiff's slip and fall on black ice

at defendant's parking lot, plaintiff appeals the summary judgment dismissal of

her complaint. The court ruled that as a matter of law, plaintiff failed to establish

defendant had actual or constructive notice of the hazardous condition. We

reverse the order and remand for a trial on all issues.

We review the motion court's order de novo, Prudential Prop. & Cas. Ins.

Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998), applying the same

standard as the court, Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 124-25

(2023). Summary judgment should be granted when "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). The evidence is viewed in the light most favorable to the non-moving

party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also

R. 4:46-2(c).

In New Jersey, a business owes a duty of reasonable care to invitees "to

provide a safe environment for doing that which is within the scope of the

invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (citing

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)). The duty of due

A-3572-22 2 care to invitees "requires a business owner to discover and eliminate dangerous

conditions, to maintain the premises in safe condition, and to avoid creating

conditions that would render the premises unsafe." Ibid. "Ordinarily an injured

plaintiff . . . must prove, as an element of the cause of action, that the defendant

had actual or constructive knowledge of the dangerous condition that caused the

accident." Ibid.; see also Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257

(2015). The absence of actual or constructive notice of a dangerous condition

"is fatal to [a] plaintiff's claims of premises liability." Arroyo v. Durling Realty,

LLC, 433 N.J. Super. 238, 243 (App. Div. 2013). "A defendant has constructive

notice when the condition existed 'for such a length of time as reasonably to

have resulted in knowledge and correction had the defendant been reasonably

diligent.'" Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super.

596, 602 (App. Div. 2016) (quoting Parmenter v. Jarvis Drug Stores, Inc., 48

N.J. Super. 507, 510 (App. Div. 1957)).

Here, plaintiff went to defendant's gas station and convenience store in

Rahway between midnight and 12:30 a.m. on February 17, 2021. It was not

snowing or raining at the time, but there had been a snowstorm on February 15,

continuing into February 16. Main roads were plowed clear by that

evening/early morning, but some snow and ice remained on side roads.

A-3572-22 3 Plaintiff described the weather conditions as freezing cold when she drove

into defendant's parking lot. After exiting her vehicle, plaintiff walked to the

store's entrance and slipped on black ice on the parking lot surface causing her

to fall to the ground. She maintains she did not see the ice until after she fell.

Looking around the lot, she saw additional black and shiny ice on the surface of

the parking lot and no evidence of salt or sand where she parked to prevent

someone from slipping and falling. Plowed snow was pushed up along the edge

of the parking lot in front of the parking spaces.

One of defendant's employees standing by the gas pumps responded to

plaintiff's fall and saw the ice where she fell. The employee admitted that the

area of plaintiff's fall should have been salted or cordoned off.

Plaintiff filed a negligence action against defendant, claiming she

sustained permanent back injuries from the accident. After discovery, defendant

successfully moved for summary judgment.

In its bench decision, the motion court found plaintiff's liability claims

were "speculative" because she "did not demonstrate [defendant] had any actual

or constructive notice of the black ice plaintiff slipped on." The court, noting

plaintiff had no difficulty driving on the roads or to the parking lot, reasoned her

claim that defendant had constructive notice of the hazardous condition lacks

A-3572-22 4 support because she failed to establish through an expert how the ice had formed

by the time she fell. The court maintained plaintiff need to explain how the

ambient air and ground temperatures following the snowstorm caused black ice.

Looking at the facts in the light most favorable to plaintiff, we conclude

there exists a genuine issue of material fact as to whether defendant had

constructive knowledge of the hazardous condition that caused her accident.

The area including defendant's business experienced a snowstorm over the

course of two days prior to plaintiff's accident. Defendant's parking lot was

cleared of snow and ice to allow customers to safely ingress/egress its store.

The plowed snow was pushed up in front of the parking spaces. A reasonable

jury could find defendant had constructive notice of the black ice that caused

plaintiff's injury. A reasonable jury could infer, without an expert's opinion that

the snow plowed to the edge of the parking spaces melted during the day and

the resulting water leaked onto the parking lot and formed into black ice when

the freezing cold temperature that night based on plaintiff's photographs

showing melted snow. A reasonable jury could then find defendant was

negligent in failing to take precautions by applying a substance to prevent the

hazardous condition where plaintiff fell. Accordingly, based on our de novo

review of the record, summary judgment should not have been granted.

A-3572-22 5 Reversed.

A-3572-22 6