NOT FOR PUBLICATION WITHOUT THE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-5428-16T3
CORA KERTON,
Plaintiff-Appellant,
v.
SOCIETY HILL AT DROYERS POINT
CONDOMINIUM ASSOCIATION, and
LANDSCAPE MAINTENANCE
SERVICES,
Defendants-Respondents.
_______________________________
Argued September 13, 2018 - Decided October 1, 2018
Before Judges Fuentes, Accurso and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4425-15.
Luretha M. Stribling argued the cause for appellant.
Michael J. Jubanyik argued the cause for respondents
(Reilly, Janiczek, McDevitt, Henrich & Cholden, PC;
attorneys; Michael J. Jubanyik and Michelle B.
Cappuccio, on the brief).
PER CURIAM
Plaintiff Cora Kerton appeals from a summary judgment dismissing her
premises liability complaint against defendants Society Hill at Droyers Point
Condominium Association and Landscape Maintenance Services. We affirm.
Viewed in the light most favorable to plaintiff, the essential facts are as
follows. Plaintiff, a Jersey City police officer, was dispatched to a reported
medical emergency at a home in the Droyers Point development on an early
March afternoon in 2015. It was snowing, as it had been all day. An
ambulance and another police car also responded. After helping to get the
victim into the ambulance, plaintiff walked back to her patrol car ahead of the
other officers. She slipped on the snow covered road and landed hard on her
back, hitting her head on the street and suffering serious injuries.
Plaintiff filed suit, alleging her injuries resulted from defendants'
negligence in removing the snow and ice from the streets of the Droyers Point
development. Landscape Maintenance Services served as the condominium
association's snow removal contractor at the time of the accident. The contract
between defendants required snow removal to "commence when accumulations
reach[] a depth of one (1) inch or more" and obligated Landscape Maintenance
Services to make "every effort . . . to complete snow removal operations within
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twenty-four (24) hours." An attached schedule, which the parties agree
controls, with the exception of the plowing trigger, which they acknowledge is
irrelevant because whether one inch or two inches the trigger was met hours
before the accident, provides in pertinent part:
A. Plowing:
1. Plowing of all paved black top roads shall
begin automatically in accordance with this contract
for snowfalls of two (2) inches or more. Initial pass-
through will be made to reasonably clear roadways to
help enable cars to leave/arrive the community except
in extreme conditions.
2. After snowfall ceases, parking stalls, parking
lots, mailboxes, fire hydrants, catch basins and
dumpster areas will be cleared. . . .
....
B. Sidewalks:
1. Sidewalks will be cleared after snowfall ceases
and be completed no later than 8 hours thereafter
except in extreme conditions of heavy accumulations
or ice for two (2) inches or more.
2. Full width of sidewalks to be cleared of snow
except in extreme conditions of heavy accumulations
or ice.
3. Access from parking stalls to sidewalks must
be provided. If snow is pushed up against sides, path
will be cut through.
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The parties agree plaintiff fell shortly after 3 p.m., when about six inches
of snow had already fallen, and that close to another inch would fall before the
snow finally ended sometime in the evening. They disagree over whether the
street on which plaintiff fell, one of twenty-five streets in the development,
had been plowed at the time of the accident. Employees of Landscape
Maintenance Services testified at deposition the contractor had a plow crew on
site conducting the "initial pass-through" throughout the day. It presented
invoices and time records on the motion it claimed corroborated the
contractor's efforts. Plaintiff and her fellow officers testified the snow was
over their boots and they did not see any plows while they were there.
Plaintiff's snow removal expert submitted a report stating "[i]t
appear[ed] to [him] that there was at least one attempt to plow the roadways to
allow for emergency services access," but the contractor "did not have enough
equipment to keep up with this moderate winter storm event." He opined that
Landscape Maintenance Services "violated the standards and practices of snow
and ice maintenance" by failing "to have sufficient equipment at the site to be
able to achieve timely snow and ice removal for the entire development."
After hearing argument on two different dates necessitated by
defendants' failure to initially address plaintiff's expert report, the court
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granted summary judgment dismissing the complaint. The court found the
testimony of the officers that there was snow and ice in the road and they did
not see plows while they were in the development was not sufficient to put in
issue defendants' proofs that a crew was on site and plowing the roads on the
day of the accident. Noting plaintiff did not dispute that it was still snowing
when she fell, the court found Landscape Maintenance Services "did what the
contract said they were supposed to do. They kept the streets open for
emergency vehicles." The court found the association had no duty to do more.
The court further determined plaintiff's expert report to be a net opinion,
finding no standard by which to measure his assertion that the contractor
lacked enough equipment to keep up with the storm and no basis for his claim
that Landscape Maintenance Services "was remiss for failing to make sure that
all snow and potentially icy areas were addressed . . . while it was still
snowing." The court denied plaintiff's motion for reconsideration.
On appeal, plaintiff contends the court erred in ruling the report of her
expert constituted a net opinion, misinterpreted the contract and applied the
wrong standard. We disagree.
We review summary judgment using the same standard that governs the
trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).
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Thus we consider "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell
Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 536 (1995)). In considering application of the
law to the facts adduced on the motion, our review is de novo without
deference to any interpretive conclusions we believe mistaken. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). Applying those principles here, we
agree with the trial court that summary judgment was appropriate.
In order to establish defendants' negligence, plaintiff needed to show (1)
they owed plaintiff a duty of care; (2) they breached that duty; (3) actual and
proximate causation; and (4) damages. Fernandes v. DAR Dev. Corp., 222
N.J. 390, 403-04 (2015). The motion record makes clear that the road on
which plaintiff fell was a common element of the condominium complex, thus
making the association responsible for its maintenance. See Qian v. Toll Bros.
Inc., 223 N.J. 124, 141 (2015). Because this is a premises liability case and
the parties agree as to plaintiff's status as an invitee, see Rowe v. Mazel Thirty,
LLC, 209 N.J. 35, 45-46 (2012), the association owed plaintiff a duty to
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exercise reasonable care to guard against "a dangerous condition on property
within the ambit of the common elements." McDaid v. Aztec W. Condo.
Ass'n, 234 N.J. 130, 141-42 (2018); Hopkins v. Fox & Lazo Realtors, 132 N.J.
426, 434 (1993). "A condominium association's duty to keep the common
elements reasonably safe is non-delegable." McDaid, 234 N.J. at 142 (citing
N.J.A.C. 5:10-4.1(a)).
Yet plaintiff has not cited any case to us, and our own research has not
revealed one, imposing a duty on a condominium association to remove snow
from a roadway in the midst of a snow storm in order to make it safe for
pedestrians. Roadways, of course, are ordinarily intended for vehicular traffic,
not pedestrians. See Polzo v. Cty. of Essex, 209 N.J. 51, 70-71 (2012). Our
Supreme Court has made clear the law imposes a duty on the association to
keep its private sidewalks, which are intended for pedestrians, reasonably safe.
Qian, 223 N.J. at 142. That obligation may, as with the duty on a commercial
property owner, "require removal of snow or ice or reduction of the risk,
depending upon the circumstances." Id. at 136 (quoting Mirza v. Filmore
Corp., 92 N.J. 390, 395-96 (1983)). But we know of no case imposing such a
duty, even on a commercial landowner, while snow continues to fall.
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Landscape Maintenance Services' duty to plaintiff springs from its
contract with the association. See Aronsohn v. Mandara, 98 N.J. 92, 105
(1984) ("Under well-established principles a contractor has a duty to persons,
other than the one with whom the contractor has made the contract, to carry
out his undertaken work in a careful and prudent manner, and he may be
responsible to third persons for their personal injuries and property damages
proximately caused by his failure to exercise that care."). Its duty to plaintiff
is defined "by the nature and scope of its contractual undertaking." McDaid,
234 N.J. at 142 (citation omitted).
Having reviewed the contract, we agree with the motion judge that it
requires Landscape Maintenance Services to begin plowing all the "paved
black top roads" when the accumulation trigger is reached, but also
unambiguously limits its obligation, while snow continued to fall, to an
"[i]nitial pass-through . . . made to reasonably clear roadways to help enable
cars to leave/arrive the community except in extreme conditions." 1 The snow
removal contractor's obligation under the contract to clear the sidewalks to
1
Although the judge characterized Landscape Maintenance Services'
obligation under the contract to keep "the streets open for emergency
vehicles," instead of for cars generally, the inconsequential error did not affect
his otherwise sound analysis.
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make them safe for pedestrians did not begin until the snow had stopped,
consistent with the association handbook in the record advising unit owners
that "[s]now removal from sidewalks does not normally commence until the
snowfall has ended."
Having correctly defined the duty at the time of plaintiff's accident as
one limited to keeping the roadways reasonably clear to permit cars to enter
and leave the development, the court was also correct that the undisputed facts
made apparent the duty was discharged. The record makes clear that an
ambulance and two police cars were able to both enter and leave the
development with little if any difficulty while the snow continued. More
direct proof would be difficult to come by.
We reject any notion that defendants had an implied duty to make the
roadways safe for pedestrians who would be getting into and out of the cars
coming and going out of the development. The association handbook and the
snow removal contract both make plain that sidewalks, mailboxes and parking
stalls would not begin to be cleared until the snow ended. The court was
correct to reject an implied obligation on the part of defendants to make the
roadway safe for pedestrians, which was directly contrary to its express
obligation to clear the sidewalks only after the snow ended. Pollack v. Quick
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Quality Rests., Inc., 452 N.J. Super. 174, 187-88 (App. Div. 2017) (noting
"[w]here the terms of a contract are clear, we enforce the contract as written
and ascertain the intention of the parties based upon the language.").
Finally, we agree with the trial court's conclusion that plaintiff's expert
report was not sufficient to stave off summary judgment to defendants.
Although a court faced with an evidentiary issue in the context of a summary
judgment motion ordinarily decides the evidence question first, see Estate of
Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010), here it
was necessary to define the duty owed to plaintiff in order to determine
whether the opinions offered by the expert were relevant to the issues in
dispute, even assuming they were admissible.
Because the contract only required the contractor, while it remained
snowing, to keep the roadways reasonably clear to permit cars to enter and
leave the development and the proofs make readily apparent it did so,
plaintiff's expert's opinion that the snow removal contractor "was remiss for
failing to make sure that all snow and potentially icy areas were addressed . . .
while it was still snowing" and lacked the equipment to keep up with the storm
was without factual basis in the record. See Townsend v. Pierre, 221 N.J. 36,
55 (2015).
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Plaintiff's remaining arguments, to the extent we have not addressed
them, lack sufficient merit to warrant discussion in a written opinion. See R.
2:11-3(e)(1)(E).
Affirmed.
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