KIM LABOR VS. CHRISRYAN, LLC (L-2694-17, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-2792-19

KIM LABOR and KURT D.
LABOR, SR.,

Plaintiffs-Appellants,

v.

CHRISRYAN, LLC, STATE
FARM FIRE AND CASUALTY
COMPANY, and STEVE
MEEHAN,

Defendants,

and

HARRY MOREY,1

Defendant-Respondent.
____________________________

Argued March 24, 2021 – Decided July 30, 2021

Before Judges Sumners and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2694-17.

1
Defendant Harry Morey was improperly pled as Harry More.
 Michael B. Shaw argued the cause for appellants (Law
Offices of John T. Bazzurro, LLC, attorneys; Michael
B. Shaw, on the briefs).

Michael Della Rovere argued the cause for respondent
(O'Toole, Couch & Della Rovere LLC, attorneys;
Michael Della Rovere, on the brief).

PER CURIAM

Plaintiff Kim Labor appeals the trial court's October 11, 2019 order

granting summary judgment in favor of defendant Harry Morey, the snow

removal contractor for the parking lot where plaintiff slipped and fell.2 3 Having

reviewed the record and the governing legal principles, we conclude that the

trial court erred in finding that plaintiff's lack of contractual privity with the

contractor barred her direct claim against him. In addition, we find that there

are otherwise genuine issues of material fact in dispute concerning the scope of

defendant's duties under his oral contract with the owner of the parking lot, the

weather conditions, and the conditions of the lot on the day of plaintiff's fall that

precluded summary judgment. Accordingly, we reverse and remand for trial.

2
Kim Labor's husband, Kurt Labor, Sr., asserted a per quod claim. For the sake
of clarity, we use "plaintiff" to refer only to Kim Labor.
3
We use "defendant" to refer only to Morey.
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 In September 2017, plaintiff filed her negligence complaint against co-

defendants Chrisryan, LLC, the premises owner; Steve Meehan, the sole

member of Chrisryan, LLC; and State Farm Fire and Casualty Company, a

commercial tenant of the subject property. In December 2018, after learning

that defendant performed snow removal services at the premises, plaintiff

amended her complaint, naming Morey as a direct defendant.

In August 2019, defendant moved for, and was ultimately granted

summary judgment, which is the basis of this appeal. In February 2020, plaintiff

and the co-defendants reached a settlement agreement and filed a stipulation of

dismissal, dismissing Chrisryan, LLC, State Farm Fire and Casualty Company,

and Steve Meehan from the case.

The motion record, construed in the light most favorable to plaintiff as the

non-moving party, Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012),

includes the following facts. Meehan is the sole member of Chrisryan, LLC,

which owns an office building located in Toms River. He operates an

independent insurance agency from the building, selling State Farm Fire and

Casualty policies. For the thirteen years preceding plaintiff's fall, Meehan

rented approximately fourteen spaces on the east side of the building's parking

lot to its adjacent neighbor, plaintiff's employer Ocean Eye Institute.

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 Defendant was a snow removal contractor that serviced the parking lots

of a local church and Meehan's property. In December 2011, he went to

Meehan's insurance agency to purchase a policy for his truck and snowplow.

Meehan overheard the conversation and asked if defendant was available to

service his building's parking lot. The parties came to an agreement but did not

execute a written contract.

In that regard, Meehan's and defendant's testimony differed on what would

trigger defendant's duty to report to the property. Defendant testified that he

was instructed to obtain approval from Meehan before plowing the parking lot,

unless the weather conditions presented an obvious need for snow removal.

Although there was no specific accumulation of snow that triggered his services,

defendant testified that he would contact Meehan and ask if he wanted the lot to

be cleared if at least one inch of snow had accumulated. If Meehan was away,

defendant had been instructed to check with his office manager, Nicole, before

plowing. Defendant also testified that Meehan requested that he use salt

sparingly in order to preserve the asphalt in the lot. He only salted on the days

following a large snowfall in order to prevent refreezing. Defendant never

performed, and Meehan never requested, ice removal services only.

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 Meehan, on the other hand, testified that the agreement did not require

defendant to obtain permission before plowing. Defendant would clear the lot

if and when it was needed. He confirmed that there was no predetermined

amount of accumulation that triggered defendant's services, rather, he relied on

defendant to use his judgment to ensure the lot was maintained in a safe

condition.

On the morning of January 18, 2016, plaintiff, an employee of Ocean Eye

Institute, arrived at work at approximately 8:15 a.m. Ocean Eye Institute has a

parking lot in front of its building, and rents additional spaces for its employees

in Meehan's lot, which is located behind its building. When plaintiff arrived,

she noticed the front lot had been plowed, salted, and cleared of snow and ice,

while the rear parking lot, where she was required to park, had not.

Plaintiff left work to go on her lunch break at approximately 11:45 a.m.

While walking to her car, she noticed that the rear lot still had not been plowed

or salted. Before reaching her vehicle, plaintiff slipped on black ice and fell to

the ground. She sustained injuries to her lower back which eventually required

a sacroiliac fusion. Plaintiff testified that it snowed from about 12:30 p.m. to

7:30 p.m. on January 17, 2016, and that it was cold and flurrying on the morning

of her fall.

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 Later that day, Meehan received a phone call from an Ocean Eye Institute

manager informing him that two of their employees had slipped in his parking

lot, one of whom was seriously injured. 4 Within a minute of receiving the call,

Meehan went outside to inspect the lot but did not find black ice or any other

hazardous conditions. Meehan testified that it was sunny and the area between

the cars in the leased spots was dry. During his deposition, Meehan could not

remember the weather or parking lot conditions when he arrived on the morning

of January 18, 2016 but was confident there was no snow accumulation. If snow

was present when he arrived, he would have called defendant to remove it. His

expectation, however, was that if his lot required snow removal, it would have

been done before he arrived in the morning. Meehan testified that defendant did

not service the lot, or request permission to, on January 18, 2016.

Defendant stated that he did not salt the lot on January 18, 2016, because

"there was nothing to salt" and "the temperatures were higher that day." The

first-time defendant plowed or salted the subject lot in 2016 was on January 22,

following a large snowfall. During discovery defendant produced billing

records from November 5, 2015 through March 9, 2016. A February 3, 2016

4
The record does not include any details of the circumstances of the second
employee's fall.
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invoice shows that defendant performed snow and ice removal services in the

subject lot for the first time of the 2015-2016 winter on January 22, 2016.

On the return date of defendant's motion for summary judgment, the

parties appeared for oral argument. Plaintiff argued that summary judgment was

improper because genuine issues of material fact existed regarding defendant's

duties under the oral contract, as well as the weather conditions on the day of

her fall. Defendant took the position that he did not owe plaintiff a duty,

regardless of the terms of the contract. Even if the agreement required defendant

to plow and salt on the morning of plaintiff's fall, that duty was owed to Meehan,

therefore plaintiff had no viable theory of recovery. Meehan, whose State Farm

agency apparently provided some form of coverage to defendant, did not oppose

the motion, and thus waived his rights to contribution and indemnification.

Relying on the February 3, 2016 invoice, the motion judge found that

defendant had not serviced the subject lot on the day of plaintiff's fall, and

therefore could not be held liable for plaintiff's injuries. On October 11, 2019,

the judge entered an order granting defendant's motion.

A trial court's order granting summary judgment is entitled to no "special

deference" by an appellate court and is subject to de novo review. Cypress Point

Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016). We "review

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the competent evidential materials submitted by the parties to identify whether

there are genuine issues of material fact and, if not, whether the moving party is

entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J.

22, 38 (2014) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995)); R. 4:46-2(c). Guided by these principles, in this case we conclude the

trial court erred in granting summary judgment.

In order to establish a prima facie case of negligence, a plaintiff must

establish: "(1) [a] duty of care, (2) breach of that duty, (3) proximate cause, and

(4) damages." Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div. 2002)

(citing Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996)). The first

element, duty, is a question of law to be decided by the trial judge. Carvalho v.

Toll Bros. & Devs., 143 N.J. 565, 572 (1996) (citing Wang v. Allstate Ins. Co.,

125 N.J. 2, 15 (1991)). "[N]o bright line rule . . . determines when one owes a

legal duty to prevent a risk of harm to another." Wlasiuk v. McElwee, 334 N.J.

Super. 661, 666 (App. Div. 2000). Instead, the imposition of a duty requires a

court to consider many factors, including: (1) the relationship of the parties; (2)

the nature of the attendant risk; (3) the ability and opportunity to exercise care;

and (4) the public interest in the proposed solution. Hopkins v. Fox & Lazo

Realtors, 132 N.J. 426, 439 (1993) (citing Goldberg v. Hous. Auth. of Newark,

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38 N.J. 578, 583 (1962)). "Ultimately, [New Jersey] Supreme Court cases

repeatedly emphasize that the question of whether a duty exists is one of

'fairness' and 'public policy.'" Wlasiuk, 334 N.J. Super. at 666-67 (quoting

Hopkins, 132 N.J. at 439).

Initially, we note that the lack of contractual privity between plaintiff and

defendant is not fatal to her claim. Irrespective of privity:

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 [or she] may be responsible to third
persons for their personal injuries and property
damages proximately caused by his [or her] failure to
exercise that care.

[Aronsohn v. Mandara, 98 N.J. 92, 105-06 (1984).]

It is undisputed that Meehan and defendant had an oral agreement

regarding winter maintenance of the subject lot. From that agreement springs a

duty of due care, defined by the contractual undertaking, owed by defendant to

plaintiff, to carry out his contractual obligations in a careful and prudent manner.

Ibid.

Exactly what defendant's duties were and under what circumstances they

were triggered, however, are factual disputes material to the resolution of this

case which preclude summary judgment. Meehan testified the terms of the oral

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contract required defendant to use his professional judgment to render his

services if and when they were needed. Defendant, on the other hand, testified

that the agreement required him to notify Meehan or his office manager when

he believed the lot needed to be cleared and obtain authorization before plowing.

Precisely what snow and ice conditions triggered defendant's obligation

to inspect and/or report to the property, what the weather conditions were on the

day before the fall, and the condition of the lot on the day of plaintiff's fall, are

disputed. Plaintiff alleged that it snowed for seven continuous hours the evening

before she fell. She also certified that she noticed Ocean Eye Institute's front

lot, which is serviced by another contractor, had been cleared of snow and ice

by the time she arrived in the morning. Although plaintiff's version is rebutted

by Meehan's assertions that his lot was free of snow and ice when he inspected

it shortly after he was notified of the fall, we accept as true the non-moving

party's version for purposes of this motion. Because disputes exist regarding the

scope of defendant's duties, under what circumstances these duties were

triggered, and the condition of the subject lot on the morning of plaintiff's fall,

we conclude that summary judgment was improvidently granted.

Reversed and remanded for trial. We do not retain jurisdiction.

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