NOT FOR PUBLICATION WITHOUT THE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,
v.
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.
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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. . . .
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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
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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
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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
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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
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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
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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.
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SUSAN P. HARRIS VS. JERRY LAWRENCE VS. A&N SNOW REMOVAL, LLC (L-1575-14, OCEAN COUNTY AND STATEWIDE)
Combined Opinion