NOT FOR PUBLICATION WITHOUT THE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-0148-17T3
PAULA HILL,
Plaintiff-Appellant,
v.
ST. BARNABAS MEDICAL CENTER
and BARNABAS HEALTH MAINTENANCE
COMPANIES,
Defendants-Respondents.
___________________________________________
Argued June 28, 2018 – Decided July 16, 2018
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-4583-
14.
Juan C. Cervantes argued the cause for
appellant (Forman & Cardonsky, attorneys; Juan
C. Cervantes, on the briefs).
Diana C. Manning argued the cause for
respondents (Bressler, Amery & Ross, PC,
attorneys; MaryJane Dobbs and Risa D. Rich,
on the brief).
PER CURIAM
Plaintiff Paula Hill appeals from an order entered by the Law
Division dated August 18, 2017, which granted summary judgment in
favor of defendants St. Barnabas Medical Center (SBMC) and Barnabas
Health Maintenance Companies (BHMC). We affirm.
I.
On December 18, 2014, plaintiff filed her complaint against
SBMC and BHMC. She alleged defendants were negligent in their
maintenance and operation of the SBMC premises. Plaintiff claimed
that as a result of defendants' negligence, she suffered serious
personal injuries. She sought damages for her pain and suffering;
the medical expenses she incurred and will incur in the future;
and lost income. After discovery, defendants filed a motion for
summary judgment.
The record before the trial court on the motion reveals the
following. On January 21, 2014, at around 9:00 a.m., plaintiff
arrived at SBMC for pre-admission tests for a surgical procedure.
Plaintiff's husband drove her to the hospital. Plaintiff testified
that it was snowing when she and her husband left home at around
7:30 a.m., and it continued to snow during the trip. Plaintiff was
wearing what she described as "regular flat shoes." According to
plaintiff, when she exited the car in the hospital's parking lot,
the snow had just begun to cover the ground. Plaintiff did not
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have any trouble walking from the car to the hospital's main
entrance doors.
Plaintiff was in the hospital for several hours. Her expert
submitted a report of weather conditions in the Livingston, New
Jersey, area on January 21, 2014. The report states that snow
began to fall in the area at 9:00 a.m., and continued throughout
the morning. According to the report, by 2:00 p.m., between 2.0
and 3.0 inches of snow were on the ground.
Plaintiff left the hospital after her appointment, exiting
the hospital from the same entrance and across the same pathway
she used when she entered. Plaintiff got into the car while her
husband removed the snow that had accumulated on the car. As she
was waiting in the car, plaintiff received a call from the
hospital. She was told to return to provide a urine sample.
Plaintiff exited the car and walked across the same path she
had crossed before. She testified that at the time, it was snowing
heavily. The path was slippery and at least half an inch of snow,
ice, or both, had accumulated on the ground in the area where she
had to walk.
Plaintiff entered the hospital, provided the urine sample,
and exited to return to the car. She slipped and fell onto her
knees on the crosswalk outside the main entrance to the hospital.
Two bystanders came to help plaintiff get up on her feet.
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Plaintiff testified that when she left the hospital before her
fall, she observed ice and snow. She said it was "[v]ery slippery."
When she fell, plaintiff could not see the pavement. As plaintiff
was struggling to get up, she fell backwards. Her head, shoulders,
back, and buttocks hit the ground.
Plaintiff thought she fell around 10:00 a.m., but she was not
sure about the time. The hospital's records indicate that the
accident occurred around 1:30 p.m. Plaintiff was transported to
SBMC's emergency department. SBMC's records indicate that
plaintiff arrived in the emergency department at 1:46 p.m. As a
result of the fall, plaintiff suffered injuries to both knees, as
well as her shoulders, lumbar spine, and cervical spine.
Defendants note that on January 20, 2014, the National Weather
Service (NWS) issued a "[w]inter [s]torm [w]atch" for an area that
included Livingston, which was to go into effect at noon on
Tuesday, January 21, 2014. According to the NWS, "[w]inter [s]torm
[w]atch" means "there is a potential for significant snow, sleet,
or ice accumulations that may impact travel."
Later, the NWS changed the "[w]inter [s]torm [w]atch" to a
"[w]inter [s]torm [w]arning" for heavy snow. This means
"[s]ignificant amounts of snow are forecast that will make travel
dangerous." The NWS also moved up the time for the start of the
storm, announcing that the snow would begin to fall late in the
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morning on January 21, 2014, and continue through that evening.
The NWS advised that the heaviest snowfall would occur during the
afternoon and evening.
Defendants served an expert report by Jody F. DeMarco, P.E.,
of Forensic Consultants of North America, LLC. DeMarco detailed
the snow and ice control management procedures that SBMC
implemented on January 21, 2014. DeMarco opined that the SBMC's
procedures included methods to make walkways reasonably safe when
snow and ice could affect the safety of pedestrians. DeMarco
explained that during the subject snow event, SBMC made a
reasonable effort to reduce pedestrian risks associated with snow
and ice.
DeMarco stated that before the storm began on January 20,
2014, and throughout the day and night of January 21, 2014, the
SBMC had thirty different staff members or laborers to clear snow
and ice from the parking lots, crosswalks, and other pedestrian
walkways. SBMC also had hired Recchia Contracting, Inc. to provide
snow and ice removal services for 2014. Between 12:00 p.m. on
January 21, and 4:00 a.m. on January 22, 2014, Recchia provided
five loaders and four trucks with plows for 21.5 hours of snow
removal services at SBMC.
Keith Dufford, the grounds foreman for SBMC, testified that
it is his general practice to have at least one laborer at the
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crosswalk between the main entrance and SBMC's parking lot during
a snow event. According to Dufford, the laborer's duties include
standing outside the main entrance for the duration of the snow
event; actively clearing the snow, ice or both; and applying salt
to the sidewalk and the surrounding areas near the main entrance.
Dufford usually assigns James Pacala, Ken Matta, or both of these
individuals to perform these tasks.
Pacala testified that most of the time during a snow event,
he is either stationed at the front entrance of the hospital or
outside the entrance to the emergency department. Pacala had no
recollection of where he was assigned on January 21, 2014. Matta
testified that he has been stationed at the hospital's front
entrance every time it snows. He also did not have any recollection
of anyone falling during a snow event when he was assigned to the
front entrance.
II.
On August 18, 2014, the judge heard argument on defendants'
motion for summary judgment and placed a decision on the record.
The judge found there was no genuine issue of any material fact
as to the time plaintiff fell or the circumstances of her fall.
The judge stated that defendants were not relieved of liability
merely because the snow event was continuing when the accident
occurred.
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The judge stated that the evidence showed defendants had
notice of the impending snowstorm and engaged in ongoing efforts
to clear the snow in accordance with its snow removal procedures.
Although plaintiff claimed she did not see anyone clearing the
snow from the area where she fell, defendants established that the
snow removal process was ongoing during the storm.
The judge determined that it would not be fair to impose a
duty upon defendants to exercise reasonable care under the
circumstances presented in this case. The judge stated that
defendants could not be expected to prevent the accumulation of
snow shortly after the snow began to fall, while the snow continued
to fall in increasing amounts.
The judge also pointed out that plaintiff had chosen to walk
across the pathway to the parking lot where her husband was waiting
in his car, with regular flat shoes rather than boots or some
other footwear that would provide some traction. She walked across
the path three times and fell as she was walking on the path a
fourth time. The judge noted that at that time, defendants were
actively removing the snow from SBMC's parking lot and walkways.
The judge concluded that plaintiff had not presented
sufficient evidence to impose liability upon defendants, and
therefore defendants were entitled to judgment as a matter of law.
The judge entered an order dated August 18, 2017, granting
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defendant's motion and dismissing plaintiff's complaint with
prejudice. This appeal followed.
III.
On appeal, plaintiff argues that the court erred by granting
summary judgment in favor of defendants. Plaintiff contends she
was a business invitee at SBMC and defendants had a duty to protect
against any dangerous conditions on the property of which they
knew or should have known. Plaintiff contends that on the day she
fell, defendants had notice of the ongoing snow event and the
accumulation of ice and snow in the area where the accident
occurred.
Plaintiff contends there is a genuine issue of material fact
as to whether defendants properly maintained the path where she
fell. She argues that defendants had a common practice to station
a worker at the hospital's main entrance, but there is an issue
of fact as to whether anyone was actually stationed at that
location on the day of the accident. Plaintiff contends it cannot
be concluded that defendants reasonably maintained the premises
on that date.
Plaintiff further argues there are other fact issues that are
relevant to whether defendants had a duty to exercise reasonable
care and whether defendants breached that duty. According to
plaintiff, these issues include the extent and timing of the
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snowfall, the efforts actually taken to maintain the premises, the
practicalities of clearing the snow while the storm was ongoing,
plaintiff's care for her own safety, and other pertinent factors.
Plaintiff contends these are all matters for consideration by the
jury.
We review a trial court's decision to grant summary judgment
de novo based upon our review of the motion record, applying the
same standard the trial court applies in determining whether
summary judgment should be granted. Townsend v. Pierre, 221 N.J.
36, 59 (2015). A court should grant summary judgment if the record
establishes 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).
An issue of fact is genuine 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." Ibid. Furthermore, "[i]f there exists a single,
unavoidable resolution of the alleged disputed issue of fact, that
issue should be considered insufficient to constitute a 'genuine'
issue of material fact for purposes of Rule 4:46-2." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
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IV.
In this case, plaintiff has asserted a negligence claim
against defendants. In order to prevail on such a claim, the
plaintiff must establish that: (1) defendants owed her a duty of
care; (2) defendants breached that duty; (3) the breach was a
proximate cause of her injury; and (4) plaintiff sustained actual
damages. Townsend, 221 N.J. at 51 (citing Polzo v. Cty. of Essex,
196 N.J. 569, 584 (2008)).
Defendants do not dispute that they owed plaintiff a duty to
exercise reasonable care because she was a business invitee of
SBMC at the time of the accident. They argue, however, that
plaintiff's negligence claim failed as a matter of law because she
did not show they breached that duty. We agree.
Under Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157
(1981), a commercial landowner has a duty to maintain abutting
public sidewalks in a reasonably good condition. That duty was
extended in Mirza v. Filmore Corp., 92 N.J. 390, 394-95 (1983),
to include removal of snow and ice within a reasonable period of
time. The Mirza Court stated, "[t]he abutting commercial owner's
responsibility arises only if, after actual or constructive
notice, [the owner] has not acted in a reasonably prudent manner
under the circumstances to remove or reduce the hazard." Id. at
395.
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In Qian v. Toll Bros, Inc., the Court held that a condominium
association has a duty to keep the sidewalks within its property
reasonably safe. 223 N.J. 124, 142 (2015). The Court stated that
a landowner owes a duty to exercise reasonable care to protect
visitors from a dangerous condition of private property. Id. at
137 (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433-34
(1993)). Thus, "[a] residential homeowner has a duty to render
private walkways on the property reasonably safe and – to the
extent reasonable under the circumstances – to clear snow and ice
that presents a danger to known or expected visitors." Ibid.
(citing Lynch v. McDermott, 111 N.J.L. 216, 217-19 (Sup. Ct.
1933)).
We note that in Bodine v. Goerke Co., 102 N.J.L. 642 (E. &
A. 1926), the Court held that a property owner could not be liable
for failing to remove slush ice from the entrance to a store while
the storm was still ongoing. Therefore, Bodine indicates that the
reasonable time in which a commercial property owner must act to
clear snow and ice from public walkways does not begin until after
the storm ends. This holding is consistent with the statement in
Mirza that a commercial property owner has a reasonable time after
a snow event in which to remove snow or ice from public streets.
Mirza, 92 N.J. at 396 n.3.
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We therefore conclude that defendants had a duty to make the
public walkways within its property reasonably safe and that duty
includes an obligation to clear any snow and ice that presented a
danger to known or expected visitors. The commercial property
owner has a duty to act within a reasonable period of time after
the owner knows or has reason to know of a dangerous condition
caused by the accumulation of snow and ice. As indicated in Bodine,
the property owner has a reasonable time to act after the storm
ends in which to clear accumulated snow and ice.
In this case, there is no genuine issue of material fact as
to whether the snowstorm was ongoing when plaintiff slipped and
fell on the pathway leading from the parking lot to the hospital's
main entrance. Indeed, plaintiff testified it was snowing heavily
when she left the hospital to return to her car the second time.
Because defendants were not obligated to remove ice and snow until
after the storm ended, liability could not be imposed upon them
in this matter.
Even were we to conclude that defendants had a duty of care
to business invitees to remove the ice and snow from the pedestrian
walkways before the snowstorm ended, plaintiff failed to present
sufficient evidence to show that defendants breached that duty of
care. Defendants established that they have snow and ice removal
procedures, which they implemented on January 20, 2014, before the
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storm began. Defendants' snow removal activities continued on
January 21, 2014, and were ongoing when plaintiff exited the
hospital the second time and fell.
Plaintiff argues there is a genuine issue of material fact
as to whether defendants acted reasonably under the circumstances
because their snow removal procedures are not in writing. However,
defendants established with testimony that such procedures exist
and were implemented before and during the storm event.
As stated previously, Dufford, the grounds foreman for SBMC,
testified that during a snow event, he generally assigns at least
one laborer to the crosswalk between the parking lot and SBMC's
main entrance. He explained that the laborer is responsible for
clearing the area of accumulating snow and ice.
Hospital workers Pacala and Matta testified that they have
been responsible for snow removal duties around the hospital's
main entrance during their years of employment at SBMC. Those
duties include sweeping, shoveling, applying de-icing agents, and
assisting pedestrians.
Plaintiff asserts that she did not see anyone at that location
on the day of the accident. However, Pacala and Matta testified
as to the duties they generally perform during snowstorms, and
SBMC's timesheets show that both Pacala and Matta were working on
the day plaintiff fell. Although Pacala and Matta could not recall
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specifically whether they worked or where they were assigned on
that day, plaintiff did not present competent testimony that would
allow a reasonable fact-finder to conclude that defendants failed
to act reasonably in clearing the ice and snow from the area where
plaintiff fell.
Plaintiff further argues there is a genuine issue of material
fact as to the time when she fell. She testified that she fell at
around 10:00 a.m., but she was not sure of the time. SBMC's records
established that plaintiff fell around 1:30 p.m. The records of
weather conditions on January 21, 2014, indicate that the snowstorm
started in the Livingston area around 8:30 a.m., and the snow fell
steadily and heavily at times from mid-morning into the afternoon.
Thus, the evidence established that the snowstorm was ongoing
when plaintiff fell while walking to the parking lot. The evidence
also established that defendants were taking reasonable actions
to address the accumulation of snow and ice while the storm was
continuing.
We therefore conclude that the motion judge correctly
determined that under the circumstances, plaintiff's negligence
claim failed as a matter of law. Based on the evidence presented,
a reasonable fact-finder could not determine that defendants
breached the duty of care owed to plaintiff.
Affirmed.
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