SUSAN P. HARRIS VS. JERRY LAWRENCE VS. A&N SNOW REMOVAL, LLC (L-1575-14, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 26, 2018
• Docket: A-4561-15T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4561-15T1

SUSAN P. HARRIS,

Plaintiff-Appellant,

v.

JERRY LAWRENCE and CAROL LAWRENCE,

Defendants,

and

OCEAN VISTA CONDOMINIUM ASSOCIATION and SURF SITE MANAGEMENT, LLC,

Defendants/Third-Party Plaintiffs-Respondents,

A&N SNOW REMOVAL, LLC,

Third-party Defendant. ___________________________________________

Submitted October 23, 2017 – Decided July 26, 2018

Before Judges O'Connor and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L- 1575-14.

Douglas B. Hanna, attorney for appellant. Marshall Dennehey Warner Coleman & Goggin, attorneys for respondents (Walter F. Kawalec, III, and Rachel Snyder von Rhine, on the brief).

PER CURIAM

In this sidewalk slip-and-fall personal injury matter,

plaintiff Susan P. Harris appeals from a summary judgment

dismissing her complaint against defendants Ocean Vista

Condominium Association (Association) and Surf Site Management,

LLC (Management).1 After reviewing the record, the parties'

arguments, and the applicable legal principals, we reverse and

remand for further proceedings.

I

We review the material facts in the light most favorable to

plaintiff, the non-moving party, see Hodges v. Sasil Corp., 189

N.J. 210, 215 (2007). Those facts are as follows. Plaintiff

rented a condominium from defendants Jerry and Carol Lawrence.

In December 2013, plaintiff was injured when she slipped and

fell on ice that had formed on a sidewalk located on the

Association's property, which abutted a public street in the

Borough of Belmar. Plaintiff sued defendants, alleging they had

1 An order was entered previously granting defendants Jerry Lawrence and Carol Lawrence summary judgment and dismissing their complaint; plaintiff does not challenge that order. Plaintiff has conceded defendant A&N Snow Removal, LLC was not liable for her injuries. When we use the term "defendants" in this opinion, we refer solely to Management and the Association. 2 A-4561-15T1 been negligent by failing to inspect and make the sidewalk safe

from ice and snow, and for ignoring a defect in the sidewalk

that impeded water from draining from its surface.

The sidewalk was rebuilt in 2002. It is not disputed that,

at the time of plaintiff's fall, a local ordinance gave Belmar a

fifty foot right-of-way over the street and the subject sidewalk

for public use. Although defendants claim the sidewalk was

rebuilt by Belmar without their consent or input, there are

questions of fact surrounding the circumstances that led to its

replacement. While not conclusive, the record indicates the

Association's decision to replace the sidewalk was not mandated

by Belmar but was voluntary.

A document issued by Belmar in 2002 referred to the

"voluntary sidewalk and curb assessment, which [the Association

has] been included in." (emphasis added). According to the

deposition testimony of Jerry Lawrence, who was on the

Association's executive board at the time of plaintiff's fall,

[i]t was a town contract that some – somebody had bid for the whole town, and we took advantage of that, and that's when they dug [the sidewalk] all up and replaced it . . . .

The town allowed us to hire him, the person who bid on the whole town, at the town rate. [The town] allowed us to hire him to use their rate for our sidewalks. . . .

3 A-4561-15T1 So, apparently, [the town] get[s] a discount for a large volume of work and then they allowed us to use that discount for our small volume.

Lawrence did not recall if Belmar approached the

Association about the bid or

[w]hether [Belmar] advertised in the paper that if – you know, any homeowners had poor sidewalks[,] they could take advantage of this outfit and contact, you know, maybe the building department of the town and get on the list and have that outfit come and look at yours and tell you how much it would be. I believe it was probably a newspaper type of thing where they offered that to the township people. . . . [The Association] agreed to do that.

At or near the close of discovery, defendants filed a

motion for summary judgment arguing that, as a residential

community, they had no duty to remove snow and ice from an

abutting public sidewalk. In support of their argument,

defendants relied upon Luchejko v. City of Hoboken, 207 N.J.

191, 195 (2011), in which our Supreme Court reiterated that

residential homeowners, including condominium associations, have

no duty under tort law to remove snow and ice from abutting

public sidewalks.

Plaintiff argued residential property owners are not immune

from liability for injuries caused by the negligent construction

of a sidewalk that results in a hazardous defect. Plaintiff

4 A-4561-15T1 pointed out she served an expert's report upon defendants that

was authored by an engineer, who noted the sidewalk was

constructed in such a way that it slopes downward in the area of

plaintiff's fall, causing water to pool or pond. The expert

opined water cannot escape from this part of the sidewalk, and

turns to ice when the temperature drops below freezing.

Plaintiff argued defendants should be held liable for the ice

that formed as a result of this defect, which she contends was

the cause of her fall.

The trial court determined the duty to maintain an abutting

sidewalk pertains to owners of commercial property only and,

despite the defect identified by plaintiff's expert, found

defendants had no duty to make the sidewalk safe because the

property was residential in nature. Plaintiff's motion for

reconsideration was denied for essentially the same reason,

although the court added plaintiff failed to show defendants or

their predecessors in title had negligently constructed the

sidewalk. The court also determined Belmar replaced the

sidewalk and the Association "was simply charged an assessment

fee and has not performed any work on the sidewalk since its

installation." Finally, the court also rejected the claim

defendants are liable for the defect in the sidewalk on the

5 A-4561-15T1 ground that plaintiff failed to plead such claim in her

complaint.

II

On appeal, plaintiff asserts the trial court erred when it

rejected her argument that defendants were responsible for the

construction defect in the sidewalk, which she maintains was the

cause of her fall. She also contends she raised this particular

claim in her complaint.

We are mindful the law in New Jersey is that a residential

property owner is generally immune from liability for accidents

resulting from naturally caused conditions on public sidewalks

abutting his or her property. Luchejko, 207 N.J. at 195.

Historically, no property owner in New Jersey had a duty to

maintain the sidewalks on his lands that abutted public streets.

See e.g., Yanhko v. Fane, 70 N.J. 528, 537 (1976). Similarly,

property owners had no duty at common law to clear snow and ice

from public sidewalks. See e.g., Davis v. Pecorino, 69 N.J. 1,

4 (1975).

In 1981, our Supreme Court revised the common law and

imposed a duty upon commercial property owners or occupants to

maintain public sidewalks adjacent to the property. Stewart v.

104 Wallace St., Inc., 87 N.J. 146, 157 (1981). Two years

later, the Court held commercial property owners have a duty to 6 A-4561-15T1 remove or eliminate the hazards caused by any snow and ice that

accumulates on those public sidewalks that abut their land.

Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983). In 2011, the

Luchejko Court reiterated that residential homeowners, including

condominium associations, generally have no duty to remove snow

and ice from abutting public sidewalks. Luchejko, 207 N.J. at

201-11.

However, the Court noted residential owners are exempt from

liability where they "create or exacerbate a dangerous sidewalk

condition." Id. at 210; see also Moskowitz v. Herman, 16 N.J.

223, 225 (1954) (holding the owner of premises abutting a public

sidewalk is not responsible for defects caused by wear and tear

incident to public use or to the wrongful acts of others, but

are liable for the faulty construction of a sidewalk and its

continuance); Orlik v. De Almeida, 45 N.J. Super. 403, 406 (App.

Div. 1957) (holding "[a]n owner of premises who rebuilds or

repairs a sidewalk thereon and in so doing fails to exercise

reasonable care for the public passage will be chargeable with

liability for proximate injuries.").

We need not dwell at length upon the well-settled principle

that courts reviewing summary judgment motions must "consider

whether the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are 7 A-4561-15T1 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); see

also R. 4:46-2(c). Courts are not to resolve contested factual

issues on competing discovery materials; they are limited to

determining from the record whether the alleged factual disputes

are genuine. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App.

Div. 2005). If there are disputed material facts, the motion

for summary judgment should be denied. Brill, 142 N.J. at 540.

We accord no special deference to a trial judge's assessment of

the documentary record, and instead review the summary judgment

ruling de novo as a question of law. W.J.A. v. D.A., 210 N.J.

229, 237-38 (2012).

Here, we note the complaint did assert plaintiff's fall was

caused by a construction defect in the sidewalk. As for the

substantive issue, defendants' summary judgment motion is

founded on the claim they had no hand in or control over the

replacement of the sidewalk on the Association's property, but

the record shows there is a genuine issue as to that purported

fact. Defendants imply, without support, that Belmar replaced

the public sidewalks in the Borough, regardless of whether it

had any property owner's consent, and then assessed each owner

for the cost. Defendants argue they should not be held 8 A-4561-15T1 accountable for the alleged defect in the sidewalk when they

neither authorized nor had any control over who would replace

the sidewalk and how it would be reconstructed.

As previously noted, the record indicates that, in 2002,

Belmar permitted the property owners in the Borough to make use

of the services of a contractor it had retained. An owner that

used such contractor would gain the advantage of being charged

at a lower rate. The record shows there is a genuine issue of

fact as to whether the property owners in the Borough were not

compelled to replace the sidewalks on their property.

If what the record reveals is accurate, it was defendants

who decided to replace their sidewalk, and they controlled how

the job would be completed. In that event, if the construction

of the sidewalk in 2002 produced a defect that caused the build-

up of ice and it was the proximate cause of plaintiff's

injuries, defendants may be liable. Because resolution of the

issue is dependent on these material questions of fact, we are

compelled to reverse the order granting defendants summary

judgment.

Reversed and remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

9 A-4561-15T1