HELEN CONTE VS. THE FOXMOOR MASTER ASSOCIATION, INC. (L-2890-15, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4083-17T3

HELEN CONTE and KEVIN
CONTE, h/w,

Plaintiffs-Appellants,

v.

THE FOXMOOR MASTER
ASSOCIATION, INC., THE
FOXMOOR IV CONDOMINIUM
ASSOCIATION, INC., FOXMOOR
ASSOCIATES, LLC, and
LEVANDUSKI SNOW
REMOVAL SERVICES, LLC,

Defendants,

and

SIGNATURE PROPERTY GROUP and
WYNDHAM PLACE CONDOMINIUM
ASSOCIATION,

Defendants-Respondents.
_________________________________

Argued March 6, 2019 – Decided March 27, 2019

Before Judges Fuentes, Vernoia and Moynihan.
 On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2890-15.

Brandon C. Simmons argued the cause for appellants
(Szaferman, Lakind, Blumstein & Blader, PC,
attorneys; Michael R. Paglione, on the briefs).

Amanda J. Sawyer argued the cause for respondents
(Methfessel & Werbel, attorneys; Amanda J. Sawyer,
of counsel and on the brief).

PER CURIAM

Plaintiffs Helen Conte and Kevin Conte appeal from a January 3, 2018

order granting summary judgment to defendants Signature Property Group

(Signature) and Wyndham Place Condominium Association (Wyndham)

dismissing the complaint against defendants without prejudice.1 Plaintiffs also

appeal an April 9, 2018 order denying their motion for reconsideration and

dismissing the complaint against defendants with prejudice. We affirm in part,

reverse in part and remand for further proceedings.

1
The order also granted summary judgment to defendants Foxmoor Master
Association, Inc., The Foxmoor IV Condominium Association, Inc., and
Foxmoor Associates, LLC, and dismissed the complaint as to those defendants
with prejudice. Plaintiffs do not challenge on appeal the court's award of
summary judgment to these defendants or the dismissal of the complaint against
them with prejudice.
A-4083-17T3
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 I.

In our review of the record before the trial court, we view the facts and all

reasonable inferences therefrom in the light most favorable to plaintiffs because

they are the parties against whom defendants' summary judgment motion was

filed. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Applying that standard, the record before the motion court established the

following facts.

Plaintiff Helen Conte slipped and fell on ice as she walked her dog on a

sidewalk that runs parallel to Washington Boulevard in Robbinsville. The

sidewalk is abutted by a fifteen-building, 240-unit residential condominium

complex that is owned by Wyndham, a non-profit residential condominium

association. Signature serves as Wyndham's property manager for the

condominium complex. A raised berm approximately two-feet wide runs

parallel to the interior edge of the sidewalk. Helen Conte sustained personal

injuries as a result of her fall.

In their complaint, 2 plaintiffs alleged Helen Conte's fall and injuries were

proximately caused by defendants' negligence. More particularly, they alleged

2
Plaintiffs filed an original and two amended complaints. We summarize the
allegations in the second amended complaint.
A-4083-17T3
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Wyndham owned the sidewalk and defendants negligently failed to remove ice

from the sidewalk, allowed the hazardous ice condition to exist and failed to

warn of the hazardous condition. Plaintiffs also alleged Levanduski Snow

Removal, LLC, (Levanduski) was responsible for salting or sanding the

sidewalk and removing ice from the sidewalk, but negligently performed those

responsibilities and created the dangerous condition that caused Helen Conte's

fall.3

Following discovery, defendants moved for summary judgment, arguing

Hellen Conte fell on a public sidewalk they had no duty to maintain and they

were exempt from liability for her fall on a public sidewalk abutting Wyndham's

residential property. Plaintiffs opposed the motion, claiming the sidewalk was

located on property owned by Wyndham and therefore was part of the common

elements of the condominium complex. Plaintiffs further asserted Wyndham

had a duty to maintain the sidewalk because it retained Levanduski to remove

snow and ice from the sidewalk.

The court heard oral argument on the motion, and found Wyndha m was

"immune from liability pursuant to the residential property exemption" because

it was "evident from the proofs that the sidewalk at issue abuts the Wyndham

3
Plaintiffs' claims against Levanduski were settled.
A-4083-17T3
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property" but "is not part of the actual property itself." In other words, the court

found Wyndham, and by extension Signature, were exempt from liability for the

alleged dangerous condition of the property because the sidewalk was not

located on property Wyndham owned.

The court granted defendants' summary judgment motion but dismissed

the complaint without prejudice to allow plaintiffs an opportunity to present

evidence supporting their claim that defendants' negligence created the alleged

hazardous condition on the sidewalk. The court suggested such evidence could

be submitted in the form of a motion for reconsideration and instructed plaintiffs'

counsel he had twenty days to provide additional information supporting the

claim.

Consistent with the court's instruction, plaintiffs filed a motion for

reconsideration supported by a supplemental expert report from a forensic

engineer, John Nawn, P.E. 4 Nawn's report asserts that Wyndham is responsible

under the Robbinsville municipal code for clearing the sidewalk where Helen

Conte fell, and that the berm created a dangerous ice condition on the sidewalk

because it drained water from melting snow onto the sidewalk and, when the

4
There is no other report from Nawn included in the record on appeal.
A-4083-17T3
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temperature dropped below freezing, the drained water froze on the sidewalk.

Defendants filed a cross-motion for summary judgment.

After hearing oral argument, the court denied plaintiffs' reconsideration

motion and dismissed the complaint against defendants with prejudice. The

court found plaintiffs failed to present "any evidence showing that the pertinent

depression in the land is an artificial conduit created by the residential property

owner," and Nawn did not assert the berm was artificially created but instead

noted only that "due to the difference in the elevation between the sidewalk and

the adjacent berm-like mound, water runs down the hill and onto the sidewalk."

The court determined that because plaintiffs failed to demonstrate defendants

created the dangerous condition, they were exempt from liability for Helen

Conte's injuries because she fell on a public sidewalk adjacent to Wyndham's

residential property. This appeal followed.

II.

"[W]e review the trial court's grant of summary judgment de novo under

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). "The trial court's

conclusions of law and application of the law to the facts warrant no deference

from a reviewing court." W.J.A. v. D.A., 210 N.J. 229, 238 (2012).

A-4083-17T3
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 Summary judgment must be granted if "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). We must "consider whether 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, 142 N.J. at 540.

While "genuine" issues of material fact preclude the granting of summary

judgment, R. 4:46-2(c), those "of an insubstantial nature" do not. Brill, 142 N.J.

at 530 (citation omitted). "An issue of fact is 'genuine only if, considering the

burden of persuasion at trial, 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. St. Claire's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhagat, 217

N.J. 22, 38 (2014)); see also R. 4:46-2(c).

Plaintiffs' complaint asserts negligence claims against defendants. "To

prevail on a claim of negligence, a plaintiff must establish four elements: (1)

that the defendant owed a duty of care; (2) that the defendant breached that duty;

A-4083-17T3
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(3) actual and proximate causation; and (4) damages." Fernandes v. DAR Dev.

Corp., 222 N.J. 390, 403-04 (2015). "[W]hether a defendant owes a legal duty

to another and the scope of that duty are generally questions of law for the court

to decide." Morris v. T.D. Bank, 454 N.J. Super. 203, 209 (App. Div. 2018)

(alteration in original) (quoting Robinson v. Vivirito, 217 N.J. 199, 208 (2014)).

"[W]hether the duty was breached is a question of fact." Ibid. (alteration in

original) (quoting Jerkins v. Anderson, 191 N.J. 285, 305 (2007)).

Residential property owners, including condominium associations, have

no duty to maintain public sidewalks abutting their land as long as they do not

affirmatively create a hazardous condition. See Luchejko v. City of Hoboken,

207 N.J. 191, 210-11 (2011). However, a condominium association is subject

to "common-law premises-liability jurisprudence" for its privately owned

sidewalks, which "imposes a duty on the [a]ssociation to keep its private

sidewalks reasonably safe." Qian v. Toll Bros. Inc., 223 N.J. 124, 142 (2015).

Here, the motion court granted defendants summary judgment dismissing

plaintiffs' negligence claims. The court found defendants had no duty to remove

ice from the sidewalk or otherwise maintain the sidewalk because Wyndham did

not own the sidewalk. The court erred, however, because there is a genuine

issue of material fact as to whether the sidewalk is owned by Wyndham.

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 More particularly, Wyndham's master deed, which defendants submitted

to the court in support of their summary judgment motion, includes a description

of Wyndham's property and incorporates a map showing the property runs

parallel with and directly adjacent to Washington Boulevard. As plaintiffs

correctly note, "[n]either party undertook a survey to determine whether the

location of [p]laintiff's accident was within the boundaries of the property," but

it is not disputed Helen Conte fell on a sidewalk located between Wyndham's

condominium buildings and Washington Boulevard, and that the sidewalk runs

parallel to Washington Boulevard.

Viewing the evidence in the light most favorable to plaintiffs, the map

annexed to master deed shows that all of the property between Wyndham's

condominium buildings and Washington Boulevard is owned by Wyndham.

Thus, although the sidewalk where Helen Conte fell is not depicted on the map,

because the evidence shows the sidewalk runs parallel to Washington Boulevard

to the side of the road where the Wyndham condominium is located, the map

permits the reasonable inference that the sidewalk is located on property owned

by Wyndham. The inference is further supported by the master deed, which

expressly provides that Wyndham's "common elements shall include . . . [a]ll of

the walkways . . . located on the . . . parcel of land" described in the deed, and

A-4083-17T3
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the evidence showing Wyndham assumed responsibility for the sidewalk's

maintenance by contracting with Levanduski to clear the sidewalk of snow.

Defendants dispute that Wyndham owned the property or had a duty to

maintain it free of the ice plaintiffs argue caused Helen Conte's injuries. That

dispute, however, is for the jury to resolve. We determine only that the evidence

before the motion court was sufficient to raise a genuine of issue of fact

concerning ownership of the sidewalk that precluded an award of summary

judgment. R. 4:46-2(c). The court's determination that defendants had no duty

to maintain the sidewalk free of ice is based on an incorrect finding that there is

no factual dispute concerning the sidewalk's ownership. We are therefore

constrained to reverse the court's order granting summary judgment to

defendants on plaintiffs' claim that defendants had a duty to maintain the

sidewalk because it was on property owned by Wyndham.

Plaintiffs also contend the court erred by denying their motion for

reconsideration and granting defendants' cross-motion for summary judgment

dismissing plaintiffs' claim that defendants negligently created a hazardous

condition on the sidewalk by constructing or maintaining an artificial berm. We

are not persuaded.

A-4083-17T3
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 In the first instance, it is inaccurate to characterize plaintiffs' request as a

motion for reconsideration under Rule 4:49-2. Plaintiffs did not seek

reconsideration of the court's initial decision granting defendants summary

judgment based on its finding the sidewalk is not on Wyndham's property.

Instead, plaintiffs filed the motion pursuant to the court's direction that they

could submit supplemental information, in the form of a putative reconsideration

motion, to support an alternative theory of liability against defendants—that the

alleged artificially created berm caused melting snow to pool on the sidewalk

thereby creating a hazardous condition when the temperatures fell below

freezing.

Plaintiffs' alternative theory is founded on the contention that an

artificially created berm which causes water to flow onto a sidewalk and creates

a hazardous condition permits a finding of liability against defendants. See, e.g.,

Gellenthin v. J. & D., Inc., 38 N.J. 341, 353 (1962) (finding a landowner liable

for injuries caused by frozen water on a sidewalk resulting from the landowner's

use of drainpipes to funnel water onto the sidewalk adjacent to the landowner's

property). The court, however, correctly rejected plaintiffs' alternative theory

and granted defendants' cross-motion for summary judgment dismissing the

claim because plaintiffs failed to present any competent evidence that the berm

A-4083-17T3
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is not part of the natural topography. 5 We therefore affirm the court's denial of

plaintiffs' reconsideration motion and its order granting defendants' cross-

motion for summary judgment dismissing plaintiffs' claim that defendants are

liable for plaintiffs' alleged injuries because they created a dangerous condition

through installation or maintenance of a berm that is not part of the natural

topography, or by allowing the berm to direct water toward or onto the sidewalk

where Helen Conte fell.

Affirmed in part and reversed in part. Remanded for further proceedings.

We do not retain jurisdiction.

5
At oral argument before us, plaintiffs' counsel acknowledged that the record
is devoid of any competent evidence the berm was artificially created.
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