On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-976-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Collester.
Plaintiff appeals from a trial court order granting defendant's motion for a directed verdict at the close of plaintiff's case. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On the morning of February 12, 2003, plaintiff left his home to walk his dog. He took his usual route and passed in front of defendants' home. He slipped and fell on ice on defendants' sidewalk and suffered an injury to his left shoulder. This suit resulted, in which he sought damages for his injury.
Plaintiff testified that it was freezing the morning of the accident. It had snowed recently, and according to plaintiff, defendants' sidewalk had been cleared of accumulated snow. Plaintiff testified that snow was mounded on each side of the walkway and that ice had formed in that walkway. Because the ice was clear, he did not see it before he fell.
Based upon that testimony, defendants moved for a dismissal under Rule 4:37-2(b). We are satisfied the trial court correctly granted that motion.
The law remains that a residential property owner is not required to clear snow and ice from the public sidewalk in front of his property and is not liable if someone trips and falls on that uncleared ice and snow. If, however, the property owner clears away ice and snow and, in doing so, creates a new element of danger, he may be liable to someone who is injured as a result.
Foley v. Ulrich, 50 N.J. 426 (1967), illustrates the principle. Plaintiff in that case fell and fractured her arm on ice that formed on the sidewalk as a result of shoveled snow melting and pooling on the walkway. This court, at 94 N.J. Super. 410 (App. Div. 1967), affirmed a judgment in plaintiff's favor, finding that the homeowners' actions created a dangerous condition for which they could be held liable. Judge Kolovsky, however, dissented, concluding that the ice formed as a result of natural forces, and thus the landowners could not be held liable for the plaintiff's injuries. The Supreme Court reversed on the basis of Judge Kolovsky's dissent. 50 N.J. at 427. The Supreme Court has not retreated from that position, and Foley is binding on the trial court and on this court. The trial court correctly granted defendants' motion to dismiss.
Plaintiff asserts that the trial court erred in another regard. During the course of discovery, defendants inquired whether any pictures had been taken of the accident scene and, if so, who had taken them and when. Plaintiff responded to this request that either his son or daughter had taken pictures two days after his fall, and he supplied copies.
On the first day of trial, plaintiff's counsel informed defense counsel and the trial court that he had just learned that defendant's son had taken the pictures on the day of the accident and he produced a computer disc. Defense counsel objected to plaintiff using these pictures. After hearing argument, the trial court reserved decision and indicated it might hold a Rule 104 hearing to resolve when the pictures were taken. When the trial resumed the following day, the trial court said it had determined that the pictures would not be admitted and that there was no need to hold a Rule 104 hearing. Plaintiff argues that the trial court should not have made its ruling without having first conducted a Rule 104 hearing.
Based upon the record of this matter, there was no need for such a hearing. The trial court did not reject the pictures because they were taken a day or two after the accident. If that were the issue, such a hearing may well have been required. Rather, the trial court rejected the pictures because of the prejudice to defendants, who had relied upon the earlier information that the pictures ...