On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3603-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...