On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5048-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Plaintiffs Robin and Judith Sharpe commenced this litigation to recover damages for injuries sustained as a consequence of Judith's slip and fall on snow-covered ice on the front lawn of the residence of defendants Joseph and Paula Adamo. Defendant Colonial Landscaping, Inc. (Colonial) was retained by the Adamos to do work in their backyard, which plaintiffs alleged caused the icy condition. Plaintiffs appeal from the grant of summary judgment in favor of the Adamos and from the denial of their request for additional time to present an expert report relevant to their claims against Colonial. We affirm.
The facts relevant to the grant of summary judgment are not in dispute. Plaintiffs and the Adamos live on the same street and a few doors away from one another. In June or July 2004, Mrs. Adamo asked Mrs. Sharpe if she would walk her dog during the day and Mrs. Sharpe agreed to do her that favor. There was no compensation involved.
In the beginning, Mrs. Sharpe walked the dog in the Adamos' backyard. She altered that practice in the fall of that year, because the Adamos' backyard became wet and muddy.
The Adamos attributed the muddy condition in their backyard to work done by Colonial. In September 2004, Colonial started a significant project in the Adamos' backyard, which included building tiered patio areas, a waterfall and pond and an area suitable for playing horseshoes or bocci ball. During the project the Adamos noticed that the backyard became muddy and that there were areas in which water pooled on occasion and sometimes froze. In addition, the Adamos' next-door neighbor had complained to them about flooding in her backyard. According to Mr. Adamo, Colonial's work caused their french drains to malfunction.
In November 2004, before the project was completed, Colonial left the job. The work remained incomplete on the day of Mrs. Sharpe's accident. There was no work done on the lawn adjacent to the driveway, but Mrs. Sharpe had seen that the "piece of land to the left of the driveway was muddy" and "occasionally" seen water "running down the driveway."
Mrs. Sharpe fell on January 18, 2005. There were four to six inches of snow on the ground, but the driveway and sidewalk were cleared. As she had since the Adamos directed her to enter the house through the garage because of the muddy conditions in the backyard, Mrs. Sharpe walked up the driveway, entered the Adamos' home through the garage and took the dog outside the same way. The dog went toward the snow on the lawn to the left of the driveway, and Mrs. Sharpe who had the dog on a leash, followed. As she took her first step on the lawn, she felt hard ice under the snow. After taking about three steps, she fell and was injured.
Judge LaConte considered those undisputed facts in the light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In assessing the Adamos' entitlement to judgment as a matter of law, the judge applied the traditional common law approach - under which the duty owed to Mrs. Sharpe would depend upon her status as a business invitee or a social guest. He also applied the general standard of reasonable care - under which "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution" are considered to determine the duty owed. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433, 439 (1993).
In the absence of any precedent in this State addressing snow and ice on lawns, Judge LaConte looked to cases decided by courts of other states. In Gilligan v. Villanova Univ., 584 A.2d 1005, 1006 (Pa. Super. Ct. 1991), the court considered a landowner's liability for slippery conditions in a grassy area between a sidewalk and a stadium on a college campus. The court concluded that Pennsylvania's hills and ridges doctrine, which defines a landowner's duty to clear snow and ice accumulated on a sidewalk due to irregularities in the surface, had no application to the lawn. Id. at 1007. Reasoning that the fall occurred in a "grassy area not intended to be traversed by pedestrians," the court concluded that application of the rule would make a landowner "responsible for clearing snow and ice from the entire property in order to avoid liability." Id. at 1007. The court held that "imposition [of such a duty] would be impracticable and absurd." Ibid.*fn1
Judge LaConte concluded that regardless of Mrs. Sharpe's status as a social guest or a business invitee, the Adamos, who had cleared their sidewalk and driveway of ice and snow, did not owe Mrs. Sharpe a duty to clear their lawn to provide a path for her to walk their dog. He further concluded that imposition of that duty would not be consistent with "basic fairness under all of the circumstances [in this case and] in light of considerations of public policy." Hopkins, supra, 132 N.J. at 439.
We affirm the grant of summary judgment substantially for the reasons stated by Judge LaConte and add only a brief explanation for our decision. "Under the common law of premises liability, a landowner owes increasing care depending on whether the visitor is a trespasser, licensee or social guest, or business invitee." Sussman v. Mermer, 373 N.J. Super. 501, 504 (App. Div. 2004) (citing Parks v. Rogers, 176 N.J. 491, 497 (2003)). In recent decisions, the Supreme Court has looked primarily to these common law rules to resolve questions of premises liability. See, e.g., Parks, supra, 176 N.J. at 497-501. Under that approach, "[f]oreseeability is one constant that plays a significant role in fixing a landowner's duty." Vega v. Piedilato, 154 N.J. 496, 501 (1998).
With respect to a social guest, "[a] landowner is not required to provide greater safety on his premises... than he would for himself. For example, the landowner does not have a duty to scour the premises to discover latent defects." Parks, supra, 176 N.J. at 497-98. Under this standard, "[t]he landowner is not the measure of whether a known condition of the property is dangerous. The inquiry is an objective one, whether the landowner should realize the condition posed an unreasonable risk of harm." Id. at 499.
The most reasonable of landowners should not be expected to realize that ice on a snow-covered lawn adjacent to a cleared driveway poses an unreasonable risk of harm to a person walking a dog. In that circumstance, the selection of a path across a snow-covered lawn is not sufficiently foreseeable to impose that duty.
A landowner's duty to a business invitee is more onerous. "The duty owed to a business visitor encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions as well as to guard against any dangerous conditions... that the owner either knows about or should have discovered." Id. at 497 n.3 (internal quotations omitted) (emphasis added); see Hopkins, supra, 132 N.J. at 434. The scope of a reasonable inspection depends, among other things, upon what the business invitee ...