November 24, 2009
EULA HOLZMAN, PLAINTIFF-APPELLANT,
RAVENSCROFT CONDOMINIUM ASSOCIATION, DEFENDANT-RESPONDENT, AND LANDSCAPE MAINTENANCE SERVICES, INC., DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-142-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Sabatino and J.N. Harris.
This is a premises liability action involving black ice: a frozen combination of snow, slush, and moisture that is hard to detect because it is transparent and takes on the color of the material upon which it lays, often wet asphalt. Plaintiff Eula Holzman appeals the October 10, 2008 order of the Law Division granting summary judgment, thereby dismissing her complaint against defendant Ravenscroft Condominium Association (Association). Plaintiff also appeals from the December 11, 2008 order denying her motion for reconsideration. For the reasons that follow, we affirm.
On January 22, 2004, while walking coatless from her home to retrieve her mail from a common mailbox, plaintiff slipped and fell somewhere along the route on what was claimed to be black ice. Plaintiff was immediately transported to a nearby hospital where it was discovered that she had fractured her hip and femur. Plaintiff's residence was part of the Association's condominium development, the common areas of which were maintained and controlled by the Association.
One week earlier, on January 15, 2004, between two and four inches of snow fell in the neighborhood. After the snowfall abated, Landscape Maintenance Services, Inc. (LMS), performed its contractually-obligated snow and ice removal services at the condominium property. Four days later, an additional half-inch of snow and slush fell, and LMS performed additional snow and ice removal services for the common areas.
Plaintiff's daughter, Linda Chilakos, lived within walking distance - "around the corner" - of her mother. As Chilakos was coincidentally about to leave her home to visit her mother, Chilakos received a telephone call informing her that her mother had fallen, 9-1-1 had been called, and an ambulance was on its way. Chilakos testified in a deposition, "I immediately jumped in the car, drove over and found her [plaintiff] laying on the ground." Apparently, a young man who was visiting his own mother across the street had found the fallen plaintiff, raced into her house - the door was left ajar when she left to get her mail - to call 9-1-1, then retrieved a blanket with which he covered plaintiff to ward off the chill while awaiting the emergency team, and then finally telephoned Chilakos.
Plaintiff did not tell Chilakos the actual location where she had fallen. Chilakos candidly admitted that she had not observed the fall. When Chilakos found plaintiff, she was lying with her head on a curb, "kind of like a pillow," with her feet in the parking lot. Chilakos opined,
[M]y understanding was that the way it probably happened that when she walked through the grass because there was snow all over, and usually we, like dug a little path from the snow to get to the parking lot, that she slipped off the curb, okay, because of the black ice and that's how she fell.
Chilakos insisted that given her mother's advanced age and the debilitating condition in which she was found, plaintiff could not have moved from where she fell, "on the ground outside directly in front of the house, right off the curb."
On the other hand, when plaintiff was deposed more than two years after the incident, she had difficulty recalling specific circumstances surrounding her tumble. She first testified that she remembered falling "right outside," meaning outside her front door. She could not recall whether there was any snow or ice on the ground, but in answer to the question as why she fell, she stated:
A: I slipped.
Q: What did you slip on?
A: I guess the ice.
Q: You slipped on ice?
Q: Were you actually at the mailbox at the time you fell?
A: I don't remember. I don't think so.
Q: You don't think so?
A: I don't know.
In plaintiff's answers to interrogatories she stated, "On January 22, 2004, around 11:00 a.m., I went to get the mail in front of  and slipped on ice. My neighbor heard me screaming and found me then called 9-1-1 and my daughter Linda."
On January 17, 2006, plaintiff filed a complaint in the Law Division, alleging that the Association had breached its duty of care by not making its premises safe on the day of the incident. Subsequently, on April 21, 2006, plaintiff amended her complaint to allege that LMS was jointly liable for her injuries. Plaintiff never sought remedies against the Association's management company, Mico Management Co., Inc.
Plaintiff's claims against LMS were dismissed with prejudice on statute of limitations grounds on September 7, 2007. Plaintiff did not appeal that dismissal. However, LMS was re-joined, this time as a third-party defendant, by the Association on November 30, 2007, with respect to claims for contractual contribution and breach of contract. Ultimately, all claims by the Association against LMS were dismissed with prejudice, and the Association has not appealed that determination.
After the close of discovery, the Association moved for summary judgment. Judge Andrew J. Smithson granted that relief after considering oral argument. Plaintiff subsequently filed a motion for reconsideration, which Judge Smithson denied. This appeal followed.
We use the same standard as the motion judge when reviewing a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion judge must determine whether the evidence, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Rule 4:46-2(c) requires a court to grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29. If there is no genuine issue of fact, we then must decide whether the lower court's ruling on the law was correct. Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).
Applying these standards and based upon our review of the record, we are satisfied that summary judgment was properly granted. We affirm for substantially the same reasons expressed by Judge Smithson in his oral discussion on October 10, 2008. In similar vein, we affirm the denial of plaintiff's motion for reconsideration. We add the following comments.*fn1
To defeat a motion for summary judgment in a negligence action, a plaintiff must make a prima facie showing of a duty owed, breach of that duty, causation, and damages. Siddons v. Cook, 382 N.J. Super. 1, 13 (App. Div. 2005). Moreover, "[a] plaintiff's self-serving assertion alone will not create a question of material fact sufficient to defeat a summary judgment motion." Pressler, Current N.J. Court Rules, comment 2.3.1 on R. 4:46-2 (citing Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002)).
As a rule, there is no duty for a residential landowner to keep adjacent sidewalks clear of ice and snow. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 159 (1981). The Supreme Court specifically did not apply this residential exemption to apartment buildings and noted that hybrid uses would have to be analyzed on a case by case basis for their commercial or residential nature. Ibid.
A condominium development is a "new form of real property ownership" recognized by the Legislature in the Condominium Act. N.J.S.A. 46:8B-1 TO -38; see also Fox v. Kings Grant Maint. Ass'n, 167 N.J. 208, 218 (2001). Under the Condominium Act, a condominium association has a duty to its residents for "[t]he maintenance, repair, replacement, cleaning and sanitation of the common elements [of the development]." N.J.S.A. 46:8B-14. This court has interpreted that statute to create a duty of care in the condominium association to warn the residents of known defects to the premises. Siddons, supra, 382 N.J. Super. at 7-8. The duty is similar to that of a commercial landowner to keep abutting sidewalks clear of obstructions that is set forth in Stewart. See Stewart, supra, 87 N.J. at 159-60.
In regard to the removal of snow and ice, the New Jersey Supreme Court has stated that to find a breach of the duty delineated in Stewart, "[t]he test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in reasonably safe condition." Mirza v. Filmore Corp., 92 N.J. 390, 395-96 (1983). Additionally, "[t]he accident victim must also prove that the defective condition was a proximate cause of his injuries. Under some circumstances the pedestrian's conduct must be assessed to determine the existence of contributory negligence and its causal relationship to the mishap." Id. at 396.
In this case, there was a clear duty on the part of the Association to keep the common areas reasonably clear of ice and snow. Indubitably, plaintiff satisfied this first prong of her prima facie case.
To prove breach of this duty, however, plaintiff must then demonstrate that the Association did not act in a reasonably prudent manner in remediation of any ice and snow on the common areas. Id. at 395-96. Plaintiff has not done so. Plaintiff merely presented her answers to interrogatories that stated she slipped on ice in front of her home. Plaintiff's deposition revealed that her memory had failed her. Chilakos's circumstantial evidence was unilluminating. Plaintiff must provide evidence to show that defendant did not act in a reasonable manner. Ibid. A fall on ice connected with a common element, without more, does not automatically bespeak a lack of reasonableness on the part of those charged with the maintenance of that common element. An essential ingredient, one that is missing from this record, is to identify with precision the actual location of the fall. Even giving plaintiff the benefit of all reasonable inferences, we cannot discern beyond speculation where plaintiff's actual slip and fall occurred.
Plaintiff also proffered - as evidence of a breach of duty - photographs of the area taken shortly after the accident. The motion judge, during oral argument, indicated that the photographs were insufficient evidence of a breach of duty:
THE COURT: The sidewalks look cleared. Did she [plaintiff] have to walk where she was in order to get to this or did she venture into an area that clearly has piles of snow?
I mean, you can't remove all the snow. It's impossible. So, you move it aside. You have to make walkways. You have to make sure that there's reasonable access and so forth. Did she have it? I can't tell from this. This is -- nobody could tell from this. A jury couldn't, certainly.
In fact, the evidence presented in the record shows that the Association did act in a reasonable manner in clearing the walkways and common areas of the ice and snow. The evidence presented showed that after the snowfalls on January 15 and January 19, 2004, the Association (through its management company) appropriately engaged the services of a work crew to clear snow and ice from the walkways and common areas of the condominium development. There is no evidence to the contrary.
Plaintiff has not contended that any other precipitation fell after January 19, 2004. Additionally, plaintiff's daughter admitted in her deposition that the sidewalks outside of plaintiff's home had been shoveled and that she did not notice any ice on the sidewalk. Plaintiff presented no other witnesses as to the condition of the common elements.
THE COURT: [Plaintiff] has every right to get her mail, counsel. You're not following my question, I don't think, and I've been inarticulate and I apologize to you. Why was she in that location? You can see there are sidewalks that are shoveled. The daughter says it even in her deposition, sidewalks are shoveled. Why is her mother in this icy area -- snow, ice area? She wasn't going to a car. Why was she there?
Why didn't she use the sidewalk? This is all a question no one knows. I mean, this is just a question.
[PLAINTIFF'S COUNSEL]: Judge, given every inference, and from what I've seen of the property, this is the way she'd have to go to get to the mailbox. And she's got to step down from the curb -
THE COURT: I don't have that before me. You're saying from what you've seen of the property. You're not a witness in the case. That's not before me and that's what I was asking about before. There's nothing like that before me.
Without sufficient evidence as to the reasonable expectation of the Association that plaintiff would be in some unknown area where she fell, the motion judge was correct in finding that plaintiff did not meet her obligation to prove a prima facie case for breach of duty and proximate causation that would allow a reasonable jury to find in her favor. Mirza, supra, 92 N.J. at 395-96. Moreover, the judge correctly denied her reconsideration motion, which merely regurgitated arguments previously made, and erroneously urged the court to invoke the thirty-day mandate of Rule 4:46-1. See R. 4:49-2; D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).