On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2613-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges Parrillo and Messano.
Defendant J.T. Sprinklers t/a Sun Landscape Contractors (Sun Landscape) appeals from the order of the Law Division granting summary judgment in favor of defendants Cobblestone Village Equities, LLC, and Schultz Management Group (collectively, Cobblestone) on their cross-claim for indemnity. We affirm.
The facts are straightforward. On February 5, 2004, plaintiff Catherine Dorsey slipped and fell on ice in the parking lot of Cobblestone Village, a strip mall in Ocean Township, in front of a Bayville Pharmacy store. Cobblestone Village is owned by Cobblestone Village Equities, LLC and managed by Schultz Management Corporation. Three months prior to plaintiff's fall, Schultz hired an independent contractor, Sun Landscape, to remove ice and snow on the Cobblestone Village property. The parties entered into a service contract from November 15, 2003 to April 30, 2004, which obligated Sun Landscape, among other things, to perform the following duties:
Whenever any snow or freezing weather occurs, contractor will remove snow and/or apply sand, calcium chloride, or a combination thereof, to clear the surface parking lots and walkways to eliminate hazardous slipping conditions and make them safe and passable for cars and pedestrians when and where required. In no event will Contractor allow accumulation of snow to exceed a depth of two (2) inches. [emphasis in original.]
The contract included an indemnity clause providing that Sun Landscape would indemnify Cobblestone from and against any loss, cost, damage, or expense, by reason of any liability for damage because of bodily injuries . . . sustained by any person . . . arising out of, or on account of, or in consequence of the performance of this Contract, whether or not such injuries or persons . . . are due to . . . any negligence of [Cobblestone] . . ., excepting from the foregoing the sole and complete negligence of [Cobblestone].*fn1
Despite the ice that accumulated on the pavement of the Cobblestone Village parking lot on February 5, 2004, which Sun Landscape did not dispute, Sun Landscape admitted not having performed removal services on that day. Prior to plaintiff's fall, Sun Landscape last performed removal services on the property on January 28, 2004.
On July 27, 2005, plaintiff sued Cobblestone, Sun Landscape and Bayville, for negligence. Cobblestone asserted cross-claims for contribution and indemnification against Sun Landscape and Bayville.*fn2
Plaintiff's case went to trial from July 24 to July 27, 2007, at the end of which the jury returned a verdict finding plaintiff 23% at fault, Cobblestone 65% at fault, and Sun Landscape 12% at fault. Post-trial, the judge granted summary judgment in favor of Cobblestone on their cross-claim for indemnity against Sun Landscape.
On appeal of the summary judgment order, Sun Landscape frames the following issues for our review:
I. THE CONTRACTUAL INDEMNIFICATION CLAUSE IS NOT TRIGGERED IN THIS CASE AND SUN LANDSCAPE CAN NOT BE REQUIRED TO ...