On appeal from Superior Court of New Jersey, Law Division, Somerset County, L-330-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner, and Alvarez.
This is an appeal from a unanimous jury verdict finding neither defendant negligent. We affirm.
On January 29, 2004, at approximately 6:30 p.m., plaintiff Regina G. Cavaliere (Regina) left the shopping mall operated by defendant Bridgewater Commons Mall, II, LLC (Mall), and headed towards the parking lot. During the early morning hours of the prior day, approximately seven inches of snow had fallen. Regina was wearing an ankle-length coat and black leather dress boots with three-inch heels. She exited through a door, identified at trial as "door number one," and took a couple of steps onto the abutting sidewalk. Her attention was immediately drawn to the yellow lights of the Mall's security vehicle in the parking lot to her right. As she took one more step, her left foot lost traction on what she thought felt like ice, and she fell backwards onto the concrete sidewalk in front of door number one. She heard and felt the bones of her left ankle breaking inside her boot and, after her fall, remained on her back until she was taken to a nearby hospital.
While lying on the sidewalk in front of the entrance, Regina touched a large patch of slippery and wet ice beneath her. She felt that there was "an incline on the sidewalk" and ice on either side of her body. She had not seen ice or snow on the sidewalk when she walked out of the Mall. Regina underwent two surgeries on her injured ankle.
Officer Benjamin Garcia, a Mall security guard, was first to arrive at the scene. Although Garcia refused to appear at trial or at a deposition, he did give a recorded oral statement on June 8, 2004, about the incident. That statement, which was read to the jury, was similar to plaintiff's version of the event except that he did not find "that much" ice on the sidewalk. He described the surface as "wet" and salted. He admitted that there was a "small area" of ice, the size of a small post-it note, but recalled that the area had been entirely covered in salt.
Corporal Brian Redman, the security force's head supervisor on duty at the time of the accident, also responded to the scene. He testified that the concrete sidewalk where Regina fell was "wet," although there was no puddle or standing water. There was salt all over the sidewalk. In fact, he pushed his foot down on the spot where plaintiff fell to test for traction and, in his opinion, "there was plenty of traction. It was just wet." Photographs that he took of the area where Regina fell were shown to the jury.
Officer Juan Ruiz, Jr., also testified. He arrived on the scene after Garcia and Redman. After Regina was taken to the hospital, Ruiz "glanced" at the spot where she fell and saw no ice. He saw salt dispersed evenly over the entire sidewalk and a large wet area. By his estimate, the wet area was "a little more than a foot" in size, but he did not touch it.
Bob Umhoefer, the assistant security director, prepared a formal standardized incident report the morning after plaintiff's fall. Due to medical reasons, Umhoefer was not available for trial. According to the Umhoefer incident report, Ruiz and Redman inspected the site after Regina's fall, and the surface conditions were described as wet with "salt melt." Garcia prepared an initial handwritten incident report as the investigating officer. After Garcia's initial report was incorporated into the Umhoefer incident report, it was discarded.
Pursuant to the Mall's operating procedures, the security officers were to record any affirmative action taken as to snow or ice on pedestrian walkways. No such affirmative action was noted on the day of the accident. Redman's shift report indicated, however, that officers conducted hourly inspections at door number one, although it was not clear whether any inspections had actually been made by other officers. Redman claimed that he made several of the inspections himself.
Thomas Deverin, the Mall's operations manager, was responsible for the building as well as the Mall exterior, including ice and snow removal. Defendant Scanel Design and Development (Scanel) performed large-scale snow and ice removal during the winter of 2003-2004. The Mall contract called for Scanel to clear snow and ice during a snowstorm, using heavy equipment. Deverin would then inspect the parking lots and sidewalks after the storm ended and sign off on the removal operation. Once Deverin signed off, Scanel employees could leave the premises. They were not required to return to inspect or to ensure that the parking lots and sidewalks remained free of snow and ice.
An oral "standing order" required all Mall maintenance staff to conduct inspections of the entrances and put down salt in the event of icing. Five-gallon salt buckets were kept for that purpose near each entrance. Indeed, on the day before plaintiff's fall, a security officer spread salt at door number one and reported it in his written summary for the day. If weather conditions worsened, such as from a sudden refreeze, the Mall would call Scanel to return and reclear the area.
The contract between defendants also called for Scanel to remove snow and ice from the overhangs above entranceways into the Mall. That clause was designed to prevent snow from dripping from the overhangs onto the sidewalks and refreezing, creating a potentially dangerous condition. Deverin testified that he never had any problem with snow on the overhang, or with water dripping, at door number one. He testified that Scanel always cleared snow from the overhangs and sidewalks, and that he would not have signed off on the removal operation if he saw snow on either.
Mark Scanel (Mark) was the on-site supervisor for Scanel's snow removal operations at the Mall. He corroborated Deverin's testimony as to snow removal procedures. He referred to the overhang above door number one as a problem because if snow was not removed, it could slide off the overhang onto the sidewalk like an avalanche. Mark testified, however, that water from melting snow would not drip onto the sidewalk because of the placement of gutters on the overhang. He testified that he did not always automatically remove all snow from overhangs. He would make a subjective analysis of ...