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Baldeon v. Levin Management Corp.


April 9, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3603-05.

Per curiam.


Argued: February 6, 2008

Before Judges Cuff, Lisa and Lihotz.

On December 6, 2003, plaintiff Gladys Baldeon went to a laundromat in a shopping center owned by defendant Levin Management Corporation (Levin). It had snowed heavily during the night and defendant Molfetta Construction (Molfetta) was clearing the snow in the parking lot when plaintiff arrived. Plaintiff fell in the parking lot and severely fractured an ankle.

Following a three-day jury trial, Levin was found thirty percent (30%) liable,*fn1 Molfetta was found sixty percent (60%) liable, and plaintiff was found ten percent (10%) liable for the slip and fall. Plaintiff was awarded $700,000 for pain and suffering and $129,000 for medical bills. The total award of $829,000 was molded to reflect the verdict; the trial judge entered a final judgment of $746,100. Molfetta appeals. We reverse and remand for a new trial.

Levin owns the Union City Shopping Center (Shopping Center) located at 2010 Kennedy Boulevard, Union City. The Shopping Center contains a real estate office, a Hollywood Video, a Subway, and a twenty-four hour laundromat with cash checking services. On November 3, 2003, Levin entered into a contract with Molfetta for snow removal at the Shopping Center. The contract required Molfetta to commence removal when two inches of snow had accumulated. Pursuant to the contract, Molfetta was to report to the property without request or notice from Levin in order to keep the Shopping Center "free and clear of snow, ice, sleet and slush" and in a safe condition. The contract also listed the sequence in which the Shopping Center was to be plowed, described the procedures to be utilized in removing ice, sleet, and slush from the property, and addressed the personnel to be assigned to the task.

It began to snow on December 5, 2003, and by the next morning approximately six inches had accumulated. It is uncontested that on December 6, 2003, Molfetta arrived to plow the parking lot at approximately 6:30 a.m. Plaintiff entered the Shopping Center parking lot at about 8:45 a.m. to do laundry at the laundromat. Plaintiff pulled into a parking space that had already been plowed by Molfetta. She testified that the lines of the space were visible. There was contradictory testimony as to whether a Molfetta employee directed plaintiff to that specific parking area or if she chose that space. Plaintiff claimed that the parking space had been plowed, but was not salted and Molfetta's owner, Michael Nirchio, testified that his employee told him that the area was not salted. Yet, Humberto Gonzalez Rivera, the Molfetta employee driving the plow truck that morning, claimed that the salter attached to the truck salted all areas that he plowed.

Plaintiff exited her vehicle and she slipped and fell as she moved toward the back of her vehicle. Plaintiff testified that she was retrieving her purse from the back seat when she fell due to ice in the parking lot. Molfetta's employee and the police officer, who had reported to the scene of the accident, testified that plaintiff fell while cleaning snow from her car. Molfetta alleged that it was the excess snow from plaintiff's car that caused her to slip.

As a result of the fall, plaintiff suffered a grade two comminuted open fracture of the tibia with chronic osteomyelitis. The open nature of the fracture permitted bacteria to enter into the bones causing a chronic infection at the fracture site. Plaintiff had several surgeries, including the application of an external fixator and a skin graft. Plaintiff suffers from a continuing infection with puss oozing from the site. Her expert testified that there was a high probability that the injury could lead to other medical conditions, such as squamous cell carcinoma.

On appeal, Molfetta contends that it was entitled to summary judgment or a judgment notwithstanding the verdict because its actions did not increase an existing harm or its duty was excused due to the operation of the "storm in progress" rule. In the alternative, Molfetta argues that it is entitled to a new trial because the trial judge erroneously admitted the contract with Levin into evidence and the medical bills covered by personal injury protection (PIP) benefits.

Molfetta argues that it cannot be held liable for plaintiff's injury because at the time of the accident it was still snowing, and because Molfetta had not yet completed the snow removal at the Shopping Center. Section 324A of the Restatement (Second) of Torts governs when a party to a contract may be accountable to a third party for the negligent performance of a contractual undertaking. This section provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking. [Restatement (Second) of Torts § 324A (1965).]

Molfetta incorrectly confines its potential liability to subsection (a) of this section in its argument that there has been no proof that its actions increased the risk of harm. Molfetta would also be liable to plaintiff pursuant to subsection (c) of section 324A, which does not require that the actor creates any new risk or increases an existing one. Restatement (Second) of Torts § 324A comment d. By undertaking the contract for snow removal at the Shopping Center, Molfetta assumed, in part, a duty which Levin owed to plaintiff and it did so with the reasonable foreseeable consequence that the customers of the Shopping Center might be harmed, if it failed to exercise due care. Gold Mills, Inc. v. Orbit Processing Corp., 121 N.J. Super. 370, 377 (Law Div. 1972); see Restatement (Second) of Torts § 324A comment d, illustration 2 (noting that B would be subject to liability to a third party traveler if it was employed by A Telephone Company and it negligently inspected a pole during that employ and the pole fell and injured the traveler). Section 324A would impose liability in such a situation. Gold Mills, supra, 121 N.J. Super. at 377.

Molfetta's responsibility to exercise reasonable care in removing the snow from the Shopping Center is not excused by the storm in progress rule. Molfetta failed to cite any case in New Jersey that applied the storm in progress rule. Instead it cited, Amelchenko v. Borough of Freehold, 42 N.J. 541 (1964), which dealt with the duty of care owed by a municipality toward the users of a free parking facility. In doing so, the Court simply stated, "Instantaneous removal in climates such as ours is neither required nor feasible." Id. at 549. This is far from a resounding endorsement of the storm in progress rule. In fact, the storm in progress rule was specifically rejected in Karmazin v. Pennsylvania Railroad Co., 82 N.J. Super. 123, 130 (App. Div. 1964), in which this court found that a railroad was not absolutely free from any obligation to make a station platform safe from hazards of icy precipitation because a storm had been in progress. Additionally, there is evidence that at the time of plaintiff's fall the storm had ceased for the time being and it only began snowing again moments before or after plaintiff's accident. The progress of the storm, along with Molfetta's progress in completing the snow removal, were factors for the jury to consider in determining whether Molfetta exercised reasonable care. They are not factors that warrant summary judgment or a judgment notwithstanding the verdict for Molfetta.

On the other hand, Molfetta is entitled to a new trial due to the repeated references during the trial to the specific provisions of the snow removal contract. A new trial is only to be granted when there has been a miscarriage of justice under the law. R. 4:49-1(a). This standard is one that requires a determination that the jury's verdict was contrary to the weight of the evidence or was clearly the product of mistake, passion, prejudice or partiality. Lanzet v. Greenberg, 126 N.J. 168, 175 (1991); Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532-33 (App. Div.), certif. denied, 180 N.J. 355 (2004).

During opening arguments plaintiff's attorney referenced Molfetta's snow removal obligations in terms of the contract and pointed out that Molfetta did not have a supervisor on-site as required by the contract. During cross-examination, Molfetta's on-site employee, Rivera was asked, "Are you aware that the contract requires [your supervisor] to be there at all times while you're working there?" Rivera was also questioned as to whether he followed the plowing sequence that was described in the contract. Rivera was not aware of the contractual terms and testified that he usually tried to clean the alleys first because cars often pulled up there to drop videos off and then he just tried to find an empty spot to start piling the snow. Both Steven Wolff, Levin's property manager, and Nirchio were questioned on the specific contractual specifications including the plowing sequence, the broom-clean condition of the area, and the presence of a supervisor.

During the trial, the judge did not provide the jury with any instructions as to how the contract was to be used in determining Molfetta's liability. In the jury charge, the trial judge read a portion of section 324A of the Restatement (second) of Torts and stated that a contractual obligation would not give rise to a tort action unless the jury found that the facts satisfied the section 324A criteria. Additionally, the judge instructed, "If you find that the defendant Molfetta undertook to render snow removal services, and then by its actions or omissions created or exacerbated a dangerous or hazardous condition, then you must find that the defendant Molfetta was negligent."

It is clear from the record that Molfetta departed from some contractual specifications on December 6, 2003. This is not a breach of contract case. Molfetta's liability turned on whether it negligently performed the services it was retained to provide taking into consideration the risk of harm to plaintiff or whether plaintiff relied on its non-negligent performance. Gold Mills, supra, 121 N.J. Super. at 374, 376-77. Thus, Molfetta's liability is not dependent upon its fulfillment of each and every contractual obligation to Levin. Id. at 373-74.

The Court has recently reiterated that under New Jersey law not every obligation assumed in a contract gives rise to a remedy in tort when contractual obligations are breached. Justice Stein wrote, "Under New Jersey law, a tort remedy does not arise from a contractual relationship unless the breaching party owes an independent duty imposed by law." Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 316 (2002). Here, we have noted that Molfetta may be liable to third parties in accordance with the principles set forth in section 324A of the Restatement (Second) of Torts. A party who assumes the contractual obligation to keep property in good repair will be liable to those injured due to the failure to discharge that contractual duty. Faber v. Creswick, 31 N.J. 234, 240-42 (1959); see, e.g., Gold Mills, supra, 121 N.J. Super. at 374-78 (allowing action for negligent performance of contractual obligation to provide security). Therefore, the contract was properly admitted to illustrate when Molfetta assumed Levin's obligation to remove both snow and ice from the premises, i.e., without Levin's request upon the accumulation of two inches of snow. However, not every term of the contract could be used to establish the standard of care for performance of the snow clearing task.

The presence of an on-site supervisor or whether the area was in broom-clean condition did not materially affect whether Molfetta was utilizing reasonable care in its snow removal duty. Molfetta's disregard for the contract's plowing sequence also did not materially affect the performance of its duty as conditions may not always allow for such adherence, and plaintiff presented no proof that the contractual plowing sequence would have resulted in safer conditions.

In addition, the contract was admitted in evidence without redactions. Notably, the contract provided that the contractor was obliged to carry $2,000,000 of comprehensive liability insurance.

The allowance of these contractual references resulted in a miscarriage of justice. The trial judge's failure to redact irrelevant and potentially prejudicial provisions to limit the use of the contract and to provide an appropriate limiting instruction is reversible error because it was based upon a mistake of law and caused Molfetta prejudice. See N.J.R.E. 105; Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 105 (2007). Without further instruction, the jury was free to utilize extraneous and immaterial contractual terms to establish the standard of care and to find Molfetta breached its standard of care due to its deviance from several immaterial contractual provisions.

Turning to the admission of plaintiff's medical bills, the trial court was correct in allowing their admission. Generally, evidence of amounts collectible or paid pursuant to PIP coverage is inadmissible. N.J.S.A. 39:6A-12; Tullis v. Teial, 182 N.J. Super. 553, 558 (App. Div. 1982). This includes all reasonable medical expenses incurred as a result of a personal injury sustained as "a result of an accident while occupying, entering into, alighting from or using an automobile." N.J.S.A. 39:6A-4.

Here, plaintiff fell after she exited her vehicle and as she was walking next to her car, not while she was exiting or entering her vehicle. She testified that after she exited the car, "I went around so that I could remove my things, especially my handbag when at that time I just -- I was on the ground." Plaintiff testified that she fell to the side of the car's trunk. She did not testify that she was in the process of opening the door or opening her trunk. Therefore, the judge was correct in finding that this case did not involve an accident collectible under PIP coverage. See Aversano v. Atl. Employers Ins. Co., 290 N.J. Super. 570, 572, 575 (App. Div. 1996) (finding PIP did not apply where the plaintiff was injured when he stepped in a pothole just as he was leaning towards his car to unlock the door), aff'd, 151 N.J. 490 (1997); Amaru v. Stratton, 209 N.J. Super. 1, 7-9 (App. Div. 1985) (noting the portion of the plaintiff's psychological treatment, which began due to an automobile accident, but which was continued as a result of a subsequent slip and fall, did not fall within PIP and was admissible).

The judgment in favor of plaintiff is reversed and the matter is remanded for a new trial.

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