JEANNIE GREENSTEIN VS. FORSGATE INDUSTRIAL COMPLEX (L-3328-17, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 22, 2021
• Docket: A-0947-19
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0947-19

JEANNIE GREENSTEIN and JON GREENSTEIN, her spouse,

Plaintiffs-Appellants,

v.

FORSGATE INDUSTRIAL COMPLEX a/k/a FORSGATE INDUSTRIAL COMPLEX, LP, FORSGATE VENTURES XI, LLC, SAMSUNG SDS AMERICA, INC., and JENI LLC a/k/a JENI LLC NJ LTD,

Defendants,

and

AMAZON.COM.DEDC, LLC, and BERGEN OUTDOORS, INC. t/a BERGEN LANDSCAPING,

Defendants-Respondents.

Argued May 24, 2021 – Decided July 22, 2021

Before Judges Currier, Gooden Brown and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3328-17.

Christopher T. Karounos argued the cause for appellant (Davis, Saperstein & Salomon, PC, attorneys; Christopher T. Karounos, of counsel and on the briefs).

Gregory F. Miller (Perkins Coie, LLP) of the Washington bar, admitted pro hac vice, argued the cause for respondent Amazon.com.dedc, LLC (Sills Cummis & Gross, PC, and Gregory F. Miller, attorneys; Beth S. Rose, of counsel and on the brief; Vincent Lodato, on the brief).

Brian J. Bolan argued the cause for respondent Bergen Outdoors, Inc. t/a Bergen Landscaping (Muscio, Kaplan & Helfrich, LLC, attorneys; Brian J. Bolan, on the brief).

PER CURIAM

Plaintiff Jeannie Greenstein 1 was injured when she slipped and fell on ice

in an area of a driveway that led from the public street to a parking lot.

Defendant Amazon.com.dedc, LLC (Amazon) leased the property and was

responsible under the lease for snow and ice removal from the driveway and

parking lot. Amazon contracted with Bergen Outdoors, Inc. t/a Bergen

Landscaping (Bergen Outdoors) for snow and ice removal.

1 We refer to Jeannie as the plaintiff. Her spouse, Jon Greenstein, has a per quod claim. A-0947-19 2 The trial court granted summary judgment to both defendants on May 2,

2019. Plaintiff appeals from both orders. Because plaintiff presented issues of

fact regarding Amazon's duty to remove snow and ice in the area of her fall, we

reverse the order granting summary judgment to Amazon and remand for a

factfinder's consideration. Because the trial court did not make findings or give

any reasons in granting summary judgment to Bergen Outdoors, we reverse that

order as well.

Amazon leased a commercial property located at 2 Empire Boulevard in

Moonachie.2 Defendant Jeni LLC a/k/a Jeni, LLC NJ LTD (Jeni) owned the

premises located on the corner of Moonachie Road and Empire Boulevard.

Defendant Samsung was a tenant in the Jeni building. Plaintiff worked at a

company named 4over, whose offices were located at 4 Empire Boulevard. 3

Parking is prohibited on Empire Boulevard. Therefore, Amazon

employees who drive to work park in the large parking lot behind the building.

2 Amazon leased the property from defendant Forsgate Industrial Complex a/k/a Forsgate Industrial Complex, LP. After Forsgate's motion for summary judgment was unopposed, the trial court dismissed the complaint against that entity. 3 In looking at the buildings from Empire Boulevard, Jeni owned the building to the left of Amazon's premises and the 4over offices were located to the right of Amazon. A-0947-19 3 Two driveways provide access to the parking lot—one designated for entry and

exit and one designated as exit only. The exit-only driveway is located between

the Jeni building and Amazon's premises. The driveway is marked with "DO

NOT ENTER" signs on either side.

The driveway exiting Amazon's parking lot is constructed of black

macadam. It ends at the sidewalk which runs parallel to Empire Boulevard.

Three equal-sized rectangular concrete slabs comprise the space between the

end of the driveway and the street. There are no markings on the slabs to

indicate a sidewalk boundary or to differentiate them from the remainder of the

concrete driveway that runs to the street. Plaintiff fell on the exit-only driveway

as she stepped onto it from the street.

Under its lease agreement with Forsgate, Amazon was responsible for ice

and snow removal at 2 Empire Boulevard. Amazon retained Bergen Outdoors

to provide snow remediation services at the property. Pursuant to the contract,

Bergen Outdoors would remove snow and ice from the property's parking lot,

driveways, and walkways.

In addition, Amazon directed its employees to perform perimeter walks of

the property "three or four times a day" during the winter months. According to

Amazon's director of operations, employees were specifically instructed to

A-0947-19 4 examine the property's entrances, exits, and walkways—including sidewalks.

Amazon would notify Bergen Outdoors if an inspection revealed hazardous

conditions. And Amazon often directed its employees to use "salt and shovels"

to ameliorate icy conditions near the property's entrances and exits before

Bergen Outdoors arrived as an "extra safety step . . . ."

During the weekend of January 23 and 24, 2016, approximately two feet

of snow fell in Moonachie. Bergen Outdoors' invoices reflect it "plow[ed] lots,

shovel[ed] walks, salt[ed] . . . lanes and driveways, [and applied] ice melt to

walks" on January 23 and 24. On January 25, Bergen Outdoors performed

"additional opening of walks at street, as requested . . . ."

On the morning of January 25, 2016, plaintiff followed her typical

commuting routine, and took a bus to Moonachie. She got off the bus on

Moonachie Road, near its intersection with Empire Boulevard. Plaintiff crossed

Moonachie Road and walked through the parking lot behind Jeni's property. A

driveway from that parking lot exits onto Empire Boulevard.

According to plaintiff, she usually walked through the parking lot behind

Jeni's building and turned onto the sidewalk parallel to Empire Boulevard. She

would continue on that sidewalk, crossing over Amazon's exit-only driveway

until she arrived at her offices next to Amazon's building. However, on that day,

A-0947-19 5 the sidewalk in front of Jeni's property up to the Amazon driveway was covered

with approximately two feet of snow. Therefore, plaintiff decided to walk in the

gutter of Empire Boulevard until she got to the walkway leading to 4over's

premises.

The following day, January 26, plaintiff again took the bus to work and

followed the same route as the day before. Because Jeni had still not cleared the

snow from the sidewalk in front of its property, plaintiff again attempted to walk

in the gutter of Empire Boulevard. However, a parked car obstructed her way.

Therefore, plaintiff turned from the street to walk up the exit-only

driveway on Amazon's property to access the cleared Amazon sidewalk and

continue to her building. She stated that although she "saw some ice and snow"

in the driveway, it appeared "passable to [her]." As plaintiff stepped with her

left foot from the gutter onto the driveway, she "lost [her] balance and . . . fell."

Following the close of discovery, Amazon and Bergen Outdoors moved

for summary judgment. Amazon asserted it was entitled to judgment because

"the driveway apron was part of the public way" and therefore it did not owe

plaintiff a duty to clear the ice and snow. Bergen Outdoors argued that because

Amazon did not request any snow remediation services on the day of plaintiff's

A-0947-19 6 fall, "no obligation under the contract was triggered requiring [it] to make

inspections or provide ice watch services . . . ."

On May 2, 2019, the trial court issued an oral opinion and accompanying

orders granting summary judgment to Amazon and Bergen Outdoors.4

The court found there was no "basis to impose liability" on Amazon

because, as a commercial tenant, Amazon did not have a duty to maintain the

"apron" where plaintiff had fallen. Although the motion judge recognized "there

[was] no case that talks about that specific area", she declined to "expand a

commercial property owner['s] sidewalk liability to something that is past the

boundary of the sidewalk . . . ." The judge stated she was "not persuaded that

there should be an obligation on the part of the tenant who has snow removal

responsibility for the commercial building to maintain the sloped vehicle access

in a condition that is pedestrian safe."

The court did not differentiate in its rulings between Amazon and Bergen

Outdoors. The court did not give any reasons specific to Bergen Outdoors other

than to state that "Bergen's responsibility can't be any greater than that of

Amazon . . . ."

4 The court also granted summary judgment to defendant Samsung. Thereafter, plaintiff agreed to dismiss Jeni from the case with prejudice. A-0947-19 7 Our review of the grant of summary judgment is de novo, applying the

same legal standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516,

529 (2019) (citation omitted). Therefore, we consider "whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party in consideration of the applicable evidentiary standard, 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, 523 (1995).

"If there is no genuine issue of material fact, we must then 'decide whether

the trial court correctly interpreted the law.'" DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citations

omitted). We review issues of law de novo and accord no deference to the trial

judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478

(2013).

Plaintiff contends the trial court erred in finding Amazon had no duty to

maintain the driveway apron in a safe condition. In her briefs and during oral

argument before this court, she relied on our recent opinion in Pareja v.

Princeton Int'l Properties, 463 N.J. Super. 231 (App. Div.), cert. granted 244

N.J. 168 (2020). On June 10, 2021, our Supreme Court issued its decision.

A-0947-19 8 Pareja v. Princeton Int'l Properties, __ N.J. __ (2021). We permitted the parties

to submit supplemental filings regarding the Court's decision.

Although Pareja arose out of a slip and fall on ice on a driveway apron

owned by a commercial landowner, the issue in the case was not whether the

commercial entity owed a duty to the plaintiff to clear that particular part of its

property. Rather, the issue addressed by the Court was one of first impression

in this State: whether a commercial landowner has a duty to clear snow and ice

from "public walkways" on its property during a storm. In rejecting the

imposition of the proposed duty, the Court declined to adopt the ongoing storm

rule with two exceptions.

The substantive holding in Pareja is not applicable here. But because its

underlying facts bear such similarity to these circumstances, we find the opinion

implicitly instructive.

"'The fundamental elements of a negligence claim are a duty of care owed

by the defendant to the plaintiff, a breach of that duty by the defendant, injury

to the plaintiff proximately caused by the breach, and damages.'" Shields v.

Ramslee Motors, 240 N.J. 479, 487 (2020) (quoting Robinson v. Vivirito, 217

N.J. 199, 208 (2014)). Whether to impose a common law duty depends on an

analysis of such factors as "'the relationship of the parties,' the foreseeability

A-0947-19 9 and nature of the risk of harm, 'the opportunity and ability to exercise care' to

avoid the harm, 'the public interest,' and ultimately 'notions of fairness' and

'common sense.'" Id. at 496 (Albin, J., concurring in part and dissenting in part)

(quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). The

determination of such a duty is generally considered "a matter of law properly

decided by the court." Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).

Here, the parties dispute whether Amazon owed plaintiff a duty to clear

snow and ice from the particular location of her fall. Counsel and the court

referred to the area as the driveway "apron." Although the judge acknowledged

Amazon's duty to maintain its sidewalk in a reasonably safe condition, she

declined to extend that duty to the "apron" or the area where plaintiff fell.

To consider the parties' arguments, we look to the history of a commercial

landowner's (or commercial tenant who has accepted a contractual

responsibility) duty to remove snow and ice from a sidewalk abutting its

property.

Until our Supreme Court's decision in Stewart v. 104 Wallace St., Inc., 87

N.J. 146 (1981), our Court had declined to impose liability on landowners for

dangerous sidewalk conditions. However, in Stewart, the Court carved out an

exception and imposed a duty on commercial landowners to "maintain[] in

A-0947-19 10 reasonably good condition the sidewalks abutting their property ." Id. at 157.

The Court's holding was intended "to provide a remedy to innocent plaintiffs

injured by improper maintenance of sidewalks and to give abutting commercial

landowners 'an incentive to keep their sidewalks in proper repair.'" Gaskill v.

Active Env't. Techs., Inc., 360 N.J. Super. 530, 534 (App. Div. 2003) (quoting

Stewart, 87 N.J. at 157).

In Gaskill, we referenced the definition of a sidewalk as "[t]hat part of a

public street or highway designed for the use of pedestrians, being exclusively

reserved for them . . . ." Id. at 534 (quoting Black's Law Dictionary 1238 (5th

ed. l979)) (alterations in original). But we eschewed application of a rigid

definition and instead favored "look[ing] at the purpose of the . . . feature

causing the fall," recognizing that the determination "depend[s] on the context

and facts in the given case." Ibid. (citation omitted). As we stated in Pareja,

"reasonableness is the polestar." 463 N.J. Super. at 236.

We have declined to extend the duty in circumstances "simply because the

public chooses to use the land[] . . . to access the commercial property."

Chimiente v. Adam Corp., 221 N.J. Super. 580, 583 (App. Div. 1987) (internal

quotation marks and citation omitted).

A-0947-19 11 For instance, we have found that a landowner's duty extends to a curb "that

[is] structurally an integral part" of the sidewalk, but not to a curb "separated

from the sidewalk by a grass strip" because such a curb is considered "a feature

of the road, not the sidewalk." Levin v. Devoe, 221 N.J. Super. 61, 65 (App.

Div. 1987) (holding curb was not part of the sidewalk because its "primary

functions" were to "channel surface water from the road into storm drains and

to serve as a barrier for cars to park against", and that although pedestrians

occasionally used the curb to cross the street, "like a road it is a significantly

less immediate means of pedestrian ingress and egress to the abutting property

than is a sidewalk"). See also Chimiente, 221 N.J. Super. at 583 (holding

parking lot owners had no duty to maintain dirt pathway on adjacent State -

owned property because it was not part of the sidewalk; the path was "created

by the trespassing public for their own convenience," and "was neither designed

nor intended for pedestrian use"); Gaskill, 360 N.J. Super. at 536 (reversing

summary judgment for landowner plaintiff where defendant was injured after

falling on raised tree grate on sidewalk because the evidence presented a

"debatable question as to whether the [grate] . . . is structurally an integral part

of the sidewalk and is used as a pedestrian walkway or means of pedestrian

ingress and egress to the abutting property").

A-0947-19 12 Following Stewart, the Court held that "maintenance" of a public sidewalk

includes snow and ice removal. Mirza v. Filmore Corp., 92 N.J. 390, 395-96

(1983). The Mirza Court stated that commercial landowners, after receiving

actual or constructive notice, must use ordinary care—and "may [be] require[d]

to remove snow or ice"—to maintain the sidewalk in a "reasonably safe

condition." Ibid.

The trial court agreed with Amazon's contention that because the area of

plaintiff's fall was not a sidewalk, Amazon had no duty to clear the snow and

ice from it. We disagree.

As stated, although the Court's focus in Pareja was the application of the

ongoing-storm rule, which is not at issue here, it nevertheless specifically

addressed the property owner's duty regarding the driveway apron. Pareja, __

N.J. __ (slip op. at 15). In discussing the facts, the Court found that "Pareja's

path required him to walk over the driveway apron, the section of sidewalk that

connects the driveway to the public road. That apron was owned by Princeton

International." Id. at 8 (emphasis added).5 Earlier in its decision, the Court

stated: "The sidewalk area on which [Pareja] fell was located on property owned

5 Pareja also involved a paved parking lot with a concrete driveway apron. Pareja, 463 N.J. Super. at 236-37.

A-0947-19 13 and managed by Princeton International Properties, Inc." Id. at 6 (emphasis

added). The Court used the terms "sidewalk" and "driveway apron"

interchangeably and although given the opportunity to differentiate between

them in Pareja, it did not do so.

It is evident the Court considered the driveway apron to be part of the

sidewalk. Semantics aside, it is undisputed that the Court found the defendant

had a duty to clear that part of the driveway/sidewalk once the ongoing storm

abated.

Despite its contentions in this litigation, Amazon's actions and its

representative's testimony reveal it also accepted responsibility to maintain the

location where plaintiff fell. Amazon employees regularly inspected the

perimeter of its property, including the entirety of the driveways to ensure

further shoveling or salting was not needed. Furthermore, Amazon contracted

with Bergen Outdoors to clear all the driveways, parking lots, sidewalks, and

walkways of ice and snow. The removal of ice and snow did not stop at the

delineation in the driveway between the macadam and the concrete slabs.

Because the driveway apron bisects Amazon's sidewalk, pedestrians must

walk across the apron to follow the sidewalk in either direction. So, although

the driveway apron is designed for vehicles to exit Amazon's driveway, it was

A-0947-19 14 also "intended for pedestrian use." Chimiente, 221 N.J. Super at 584. And,

because the apron connects the sidewalks on either side, it can be considered

"structurally an integral part" of the sidewalk. Levin, 221 N.J. Super. at 65.

As stated, the unmarked driveway apron has no visible indication of where

the sidewalk—and, in turn, Amazon's responsibility for pedestrians safety—

ended. Under these facts, treating the entire driveway apron as part of the

sidewalk, as the Court did in Pareja, is the most reasonable conclusion and

avoids any arbitrary line-drawing.

Furthermore, it was entirely foreseeable that pedestrians would step

outside of the invisible confines of the sidewalk and onto the driveway apron.

It was also foreseeable that individuals might use the sloped apron to walk from

the street onto the sidewalk, as plaintiff did. Such foreseeability supports the

finding of a duty. Hopkins, 132 N.J. at 450.

In light of the circumstances presented here and the Court's recent

decision in Pareja, we are satisfied Amazon owed plaintiff a duty to maintain

the area in which she fell in a reasonably safe condition, including the

remediation of snow and ice. We, therefore, reverse the grant of summary

judgment to Amazon and remand to the trial court. It is the fact-finder's province

A-0947-19 15 to determine the reasonableness of Amazon's actions and whether it breached its

duty.

The trial court did not make any factual findings or legal conclusions in

granting summary judgment to Bergen Outdoors. Because Bergen Outdoors

presented arguments specific to its own actions and legal obligations, we are

constrained to vacate the summary judgment order and remand to the trial court

for a consideration of Bergen Outdoors' arguments.

Reversed, vacated and remanded to the trial court for further proceedings

in accordance with this opinion. We do not retain jurisdiction.

A-0947-19 16