On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-230-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
On January 31, 2005, plaintiff Charles J. Cottelli was injured when he slipped and fell on snow and ice on the sidewalk outside his condominium. The sidewalk is part of the common elements of the condominium, which is owned and managed by defendant Leisure Village East Association.
On January 11, 2007, plaintiffs filed a complaint against defendant seeking to recover damages for the injuries he suffered as a result of the slip and fall. The complaint included a per quod claim by Charles Cottelli's wife, Myrna.
After defendant filed an answer, the parties began discovery. Plaintiffs propounded interrogatories, which defendant answered. Plaintiffs also filed a notice for the taking of a deposition of a representative of defendant. However, before this deposition was conducted, defendant moved for summary judgment.
In support of this motion, defendant relied upon a section of its bylaws, which provides:
Except where there is a willful or grossly negligent act of commission or omission by the Association, the Association shall not be liable in any civil action brought by or on behalf of a unit owner to respond in damages as a result of bodily injury, including death from such injury to the unit owner occurring on Association premises.
Such qualified immunity provisions in a condominium association's bylaws are authorized by N.J.S.A. 2A:62A-13. Plaintiffs opposed the motion partly on the ground that they had not yet had an opportunity to complete discovery.
The trial court granted defendant's motion and dismissed plaintiffs' complaint, concluding in an oral opinion rendered on June 22, 2007, that "[t]here's no way the proofs in discovery could come up with a finding that there was any gross negligence on the part of the association here." The court subsequently denied plaintiffs' motion for reconsideration. Plaintiffs appeal the dismissal of their complaint and denial of their motion for reconsideration.
"Generally, we seek to afford 'every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case.'" Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988) (quoting United Rental Equip. Co. v. Aetna Life & Cas. Ins. Co., 74 N.J. 92, 99 (1977)). Therefore, "normally summary judgment should not be granted when discovery is incomplete." United Sav. Bank v. State of N.J., 360 N.J. Super. 520, 525 (App. Div.), certif. denied, 177 N.J. 574 (2003).
The record before the court on defendant's motion for summary judgment, which defendant filed just two months after filing its answer, presented only a very skeletal picture of the relevant facts. That record did not indicate precisely where plaintiff's slip and fall occurred or the condition of the sidewalk at the time of the accident. Moreover, that record consisted solely of the documents and answers that defendant saw fit to provide in response to plaintiff's interrogatories, without the opportunity provided by a deposition for probing into an opposing party's knowledge of relevant facts, such as any information regarding snow and ice conditions in the condominium complex that defendant may have received during the day preceding plaintiff's accident. Therefore, plaintiffs should be allowed to conduct such a deposition before their case is subject to summary dismissal.
Defendant very well may be entitled to summary judgment dismissing plaintiffs' complaint under the "gross negligence" standard established by the condominium association bylaw authorized by N.J.S.A. 2A:62A-13. However, this determination should be made ...