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Besner v. Unicco Service Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 27, 2009

MARILYN BESNER AND FRED APPEL, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
UNICCO SERVICE CO., DEFENDANT-RESPONDENT, AND UNICCO SERVICE CO., DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
RIDER UNIVERSITY, THIRD-PARTY DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-221-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 29, 2009

Before Judges Parrillo and Lihotz.

In this slip and fall negligence case, plaintiff Marilyn Besner, appeals*fn1 from the summary judgment dismissal of her personal injury complaint against defendant UNICCO Service Co. (UNICCO). For the following reasons, we reverse and remand.

The facts of record, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), are as follows. At the time of the incident on February 7, 2005, plaintiff was a student at the Westminster Conservatory Campus of Rider University in Princeton. Sometime after 10:00 a.m., after leaving her piano lesson in Princeton Hall, plaintiff slipped and fell on a patch of black ice while walking on a sidewalk about sixteen feet from the entrance to the building she had just departed. As a result of the fall, plaintiff broke her right ankle. She later said there was snow on either side of the path alongside Princeton Hall and "black ice" on the ground at the time, but had seen no rock salt or sand spread around in that area.

Rider University had contracted with UNICCO for, among other facility services, snow and ice removal. Paragraph 18 of the contract provided that UNICCO was responsible for the immediate grounds surrounding the perimeter of campus buildings up to eight feet, and for the immediate entrances to all residence halls. Another provision of the contract, however, provided that "UNICCO shall perform . . . such other services as UNICCO and Rider University mutually may agree upon." UNICCO was the sole provider of snow and ice removal services at Westminster Campus.

As was the custom, arrangements for snow and ice removal beyond the eight-foot perimeter were made informally. Steven Hitzel, Westminster's Director of Facilities, would contact a UNICCO representative and request that UNICCO employees on the premises provide the additional services. According to Hitzel, on the day of the accident, at approximately 8:00 a.m., he contacted a UNICCO representative advising there were areas of the campus that needed de-icing, including the area where plaintiff fell, and that UNICCO orally agreed to provide de-icing services for the entire campus where icy conditions were observed.

Plaintiff sued UNICCO for negligence. Defendant answered and filed a third-party complaint against Rider University for contribution and indemnification. Rider successfully asserted charitable immunity, N.J.S.A. 2A:53A-7, and obtained dismissal of defendant's third-party complaint. Defendant then moved for summary judgment against plaintiff, which the motion judge granted, reasoning:

First of all, it's not clear from these paragraphs that Mr. Hitzell had specifically directed UNICCO employees to the particular area where Ms. Besner fell. He does indicate that he made a phone call to them, or radioed to them, to have the additional work done but doesn't say that the area in question was an area that would have been involved. And this area would have usually been outside the requirement of the agreement. It was outside of eight feet from the building.

Additionally, Paragraph 3 of the later certification states that UNICCO had agreed to provide de-icing for the entire campus where they observed icing conditions. Mrs. Besner's testimony was that this was black ice and was not observable. It's not clear that, again, that Mr. Hitsell would have directed UNICCO to this particular area where the fall occurred.

Here, there is no identification of the individual with whom Mr. Hitsell spoke. No specific direction as to what exactly was instructed by Mr. Hitsell to the UNICCO employees with regard to any additional duties. Under the circumstances, the Court is not satisfied that the additional certification provides any greater information than what was provided previously. And under the circumstances, the Court finds that the plaintiff fails to demonstrate a prima facie case of negligence or duty on the part of UNICCO with regard to the happening of this particular event.

We disagree.

Viewed most favorably to plaintiff, the facts are genuinely and materially in dispute. In the first place, the parties' contract expressly contemplates the provision of grounds services in addition to those specifically delineated therein. Second, contrary to defendant's representations, Hitzel's two certifications evidence a verbal agreement to de-ice areas of the campus beyond the eight-foot building perimeter specified in the written contract. Thus, whether such an oral agreement was entered into by an authorized agent of UNICCO and, if so, whether defendant breached the duty arising therefrom by failing to exercise reasonable care in the provision of such agreed-upon services are all matters reserved for the jury's resolution. Specifically, as to the latter, fact questions remain whether the area of plaintiff's fall was within the reasonably contemplated scope of the oral agreement, whether the so-called "black ice" was reasonably observable, and whether the two-hour interval between notification and fall was a reasonable amount of time within which to have de-iced the area. The motion court, in granting summary judgment dismissing plaintiff's complaint, wrongly usurped the jury's exclusive function by deciding these disputed fact issues based on its assessment of the evidence of record.

Reversed and remanded.


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