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Jimenez v. Maisch

April 03, 2000

ANGEL JIMENEZ, PLAINTIFF-APPELLANT,
V.
CHARLES MAISCH, DEFENDANT-RESPONDENT



Before Judges Pressler, Ciancia and Arnold.

The opinion of the court was delivered by: Arnold, J.S.C. (temporarily assigned)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2000

On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Plaintiff Angel Jimenez, a postal employee, was injured when he slipped and fell on the walkway or driveway of defendant Charles Maisch's house while delivering mail following the severe snowstorm known as the blizzard of '96. Defendant's motion for summary judgment was granted by the motion judge on the ground that defendant had no duty to make the premises reasonably safe for plaintiff as an invitee. We affirm, concluding that defendant's duty of care did not extend to these circumstances under the test set forth in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993). Briefly, the facts viewed in a light most favorable to the plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. On January 12, 1996 at approximately 2:30 p.m., plaintiff, a mail carrier for the United States Postal Service, was delivering mail on Edgehill Road in Gibbsboro, New Jersey. Plaintiff allegedly slipped and fell either on the driveway or the walkway leading to defendant's house at 34 Edgehill Road after he had delivered mail to defendant's house and was walking to the next house on the mail route. The walkway or driveway was entirely covered with nearly one foot of snow and a layer of ice which had accumulated beneath the snow. Plaintiff, who was wearing snow boots, alleges that his right foot slid forward, his left foot slid backwards, his knee hit the pavement and he fell to the ground. As a result of the fall, plaintiff suffered a tear of the anterior cruciate ligament and medial meniscus in his left knee and a bone contusion lateral femoral condyle. requiring surgical repair. He filed this complaint seeking compensatory damages.

Upwards of thirty inches of snow had fallen in the area during a thirty-seven hour span on January 7th and 8th, 1996. A state of emergency was in effect from January 8, 1996 to January 13, 1996. The day the accident occurred, January 12, 1996, was the first day the local postal service resumed delivering mail after a several day hiatus. Consequently, as plaintiff testified, he was carrying a heavier mailbag than usual. Half the houses in defendant's neighborhood had walkways and driveways that were completely shoveled, one-quarter were partially shoveled and one-quarter, including defendant's, were not shoveled at all.

Plaintiff's personal injury complaint asserted negligence on the part of defendant for failing to shovel his driveway. Defendant moved for summary judgment contending that plaintiff failed to make a prima facie case of negligence against defendant. Plaintiff opposed the motion contending that plaintiff was an "invitee" on the premises and that defendant owed a reasonable duty of care to plaintiff and that the question of whether defendant breached a duty of care was an issue of material fact for the jury to consider. Although the motion judge assumed plaintiff was an invitee, he granted the motion stating:

I am not aware of any case that requires a landowner to clean up a driveway--a residential landowner to clean off a driveway. I do not note as a matter of law this is not a latent defect. If it is a defect, the obviousness of the defect is so clear that the fact that the landowner didn't clean his driveway, perfectly, from 33 or 31 inches of snow would not violate any duty owed to this plaintiff.

Plaintiff raises the following points on appeal:

POINT I

THE TRIAL COURT ERRED IN GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT BECAUSE APPELLANT, ANGEL JIMENEZ WAS AN INVITEE AT THE TIME HE WAS SERIOUSLY INURED

A. THE COMMON-LAW TRIPARTITE CLASSIFICATION

B. THE COMMON-LAW CLASSIFICATION OF THE APPELLANT, ANGEL JIMENEZ

C. THE DUTY OWED TO APPELLANT, ANGEL JIMENEZ, AS A ...


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