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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...