December 7, 2007
WILLIAM MAMAY, PLAINTIFF-APPELLANT,
JOSEPH M. SANZARI CONSTRUCTION CO. AND J. FLETCHER CREAMER & SON, INC., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1175-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Lintner and Graves.
Plaintiff William Mamay appeals from two summary judgment orders entered on July 21, 2006, dismissing his personal injury action against defendant contractors, Joseph M. Sanzari Construction Co. and J. Fletcher Creamer & Son, Inc. The trial court found there were no genuine factual disputes and ruled, as a matter of law, there was no showing that defendants breached a duty owed to plaintiff. We agree and affirm.
After parking in an employee parking lot at approximately 5:45 to 6:00 p.m. on February 13, 2003, plaintiff was walking to work at the New Jersey Sports & Exposition Authority (Authority) when he slipped and fell on "black ice." In his interrogatory answers, plaintiff stated that he slipped and fell "due to an accumulation of black ice from melted snow that had not been salted or sanded and he [fell] sustaining personal injuries." At his deposition, plaintiff testified as follows:
Q: When they plowed the snow in that parking lot, do they just pile the snow around the perimeter of the lot or do they actually remove the snow, do you know?
A: They pile it around the lot.
Q: Okay. When you parked your car on the day of your accident, did you park it near the area where snow was piled or more toward the center of the lot, if you recall?
A: I would say, no. More toward the outskirts of the lot, right.
Closer to where the snow was piled, yes.
Q: Other than being plowed, can you give us any better description as to the surface of the parking lot in terms of whether or not there was any snow or ice on it when you arrived for work on the day of the accident?
A: Yes, there was ice.
Q: Okay. Can you tell me to what extent was there ice in the parking lot?
Was the entire surface of it covered with ice?
A: No. Where there's like runoff from the snow that was piled there.
Q: What caused you to fall?
A: The ice.
Q: Was the area where you saw this runoff from the piles of snow, did it appear as though there was any salt or sand that had been applied to the parking lot?
A: No, it was shiny.
Q: Do you know how long it had been frozen as opposed to being liquid as the snow melted?
A: No, I don't.
Q: The area where you fell, if I understand your testimony correctly, was it an area where it appeared to you as though snow had melted and then froze as the temperature dropped?
Q: It wasn't an area based on your observations, where the plows just didn't plow or didn't plow well enough to remove the snow.
In fact, the area where you fell had been plowed, but then snow melted and the liquid froze as it went across the area?
A: Yes. I would call it black ice, yes.
There was a major snowstorm several days prior to plaintiff's accident, and defendants, pursuant to the terms of their snow plowing services contracts with the Authority, completed their snow plowing services on February 10, 2003, three days prior to plaintiff's fall. Defendants' contracts with the Authority obligated them to furnish the equipment and labor necessary "for snow plowing" and "snow removal operations" at designated locations at the Authority. In addition, defendants were contractually obligated to "be fully operational upon ninety (90) minute notification by the Authority, for initial start up of snow removal."
The contracts for snow plowing services also specified that defendants were to apply sand and rock salt "at the discretion and direction" of the Authority. Thus, defendants were not obligated to monitor conditions at the Authority's property, or to perform snow plowing, salting or sanding services unless the Authority directed them to perform such services. It is undisputed that after defendants completed plowing snow on February 10, 2003, they were not told to salt or sand the parking lot where plaintiff fell, and defendants were never directed to salt or sand the parking lot prior to plaintiff's unfortunate accident.
When reviewing a summary judgment order, we apply the same standard that governed the trial court. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. We must first determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are 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). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Id. at 537.
Applying these principles to the facts of this case, we conclude that the defendants did exactly what they contracted to do. On February 10, 2003, they plowed the snow on the Authority's property, including the parking lot where plaintiff slipped and fell, but they did not apply salt or sand to the area because the property owner did not instruct them to do so. Moreover, plaintiff failed to show that defendants' snow plowing services were in any way insufficient or carelessly performed. Consequently, we find no justifiable reason for interfering with the orders entered by the trial court.
© 1992-2007 VersusLaw Inc.