On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4955-06.
The opinion of the court was delivered by: RODRÍGUEZ, A. A., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Yannotti and Chambers.
The principal, novel issue presented in this appeal is whether for sidewalk liability purposes, a condominium association has a duty to maintain an abutting public sidewalk as if it were a commercial landowner. We hold that a condominium association does not bear such duty or responsibility. We also reject other theories of liability against the association and Hoboken.
Plaintiff Richard Luchejko appeals from an order granting summary judgment to defendants City of Hoboken, Skyline Condominium Association (Skyline) and CM3 Management Company (CM3). He also appeals from an order denying his motion for reconsideration. We affirm.
These facts are uncontradicted. At 6:45 a.m. on February 14, 2006, Luchejko slipped and fell on ice on a public sidewalk abutting a building at 551 Observer Highway in Hoboken, which is a 104 unit condominium complex. Skyline is the entity responsible for maintaining the common elements of the building, including the adjacent sidewalks. Skyline contracted with CM3 to manage the property. In turn, CM3 hired D&D Snow Plowing Company (D&D) to provide snow plowing services, including the service of all sidewalks surrounding the building. According to Luchejko, at the time that he fell, a sheet of black ice covered most of the sidewalk. A pile of snow reached up over the curb and partially onto the sidewalk.
Luchejko sued Hoboken, Skyline and CM3. Subsequently, he filed an amended complaint adding D&D as a defendant. All parties filed timely answers. After a period of discovery, Skyline, CM3 and Hoboken moved for summary judgment. Luchejko opposed the motions. All summary judgment motions were heard at the same time.
The record considered by the judge included the depositions of several witnesses. Their testimony was largely uncontradicted. John Schmidt, Skyline's Board President, testified that the sole purpose of Skyline is to operate the premises as a residential building. All of the condominium units are individually owned in fee simple and the premises are operated solely for use by the residents. There is no retail space located on the premises and no profit is generated from any of Skyline's activities. Accordingly, Skyline is organized as a non-profit corporation pursuant to N.J.S.A. 15A:1-1. None of the members or officers receive compensation for their services. Skyline hired defendant CM3 as the property manager of the building to perform financial services, hire personnel and solicit bids from outside contractors.
James Buckley, owner of CM3, testified that he first found out about the accident from the doorman of the complex, Abdiel Pino. Pino arrived on the scene after the accident occurred. Pino informed him over the telephone that he had put down salt following Luchejko's accident. CM3 hired D&D to provide snow plowing services, including the service of all public sidewalks surrounding the building. D&D would automatically perform snow plowing services when there was more than two inches of snow fall or there was an ice storm. Buckley never discussed the accident with anyone from D&D.
Jose Perez, owner of D&D, testified that on February 11, 2006, three days before Luchejko's fall, it began snowing around 7:00 p.m. Approximately twenty-seven inches of snow fell during the storm. D&D first serviced the property from 1:00 a.m. to 2:00 a.m. on February 12, 2006. D&D returned to service the property that same day from 5:00 a.m. to 6:00 a.m., 10:00 a.m. to 11:00a.m., 1:00 p.m. to 2:00 p.m. and finally from 4:00 p.m. to 5:00 p.m. Following the last clean up by D&D, it did not snow again prior to Luchejko's fall on the morning of February 14, 2006. According to Perez, it was his regular practice to visit a serviced site the following day. In this case, he did that on his follow-up visit on February 13, 2006. The sidewalks and curb were clear at that time.
James Ronga, a program monitor for Hoboken, had various responsibilities within the Environmental Services Department, such as supervisor of the sanitation inspectors, which included responsibility over sidewalks. Ronga testified that as far back as 2002, there had been no complaints filed in regard to the clearing of the sidewalks surrounding Skyline after a snowfall. No violations had been issued to Skyline or its agents for failure to comply with the snow removal code. Ronga described Hoboken's policy for snow removal as being "roughly six hours after the last snow stops." A limited number of inspectors are required to inspect the main streets of the town immediately.
In addition, Ronga's unit also responds to telephone complaints.
Hoboken City ordinance §168-8(A) provides:
The owner or occupant or person having charge of any dwelling house, store or other building or lot of ground in the city shall, within the first (6) hours after every fall of snow or hail, or after the formation of any ice upon the sidewalks, unless the ice is covered with sand or ashes, cause the snow and ice to be removed from the sidewalk abutting such dwelling house, store, building or lot of land and piled not more than eighteen (18) inches from the curb line into the public street or road.
[Hoboken City ordinance §168-8(A)].
Hoboken Police Officer John Orrico testified that when he first arrived at the scene, Luchejko was lying on the ground complaining of pain. The portion of the sidewalk where Luchejko fell was icy. Orrico noted in his police report that Luchejko sustained injury to his left ankle and leg. Orrico did not issue a summons because it would have been a Hoboken inspector's decision.
Judge Barbara A. Curran granted summary judgment to Hoboken, Skyline and CM3. D&D's motion for summary judgment was denied. Luchejko moved for reconsideration. The judge denied Luchejko's motion for reconsideration. Eventually, Luchejko and D&D settled the remaining claim.
Luchejko appeals contending that the judge erred by: (1) concluding that Skyline is not a commercial entity for the purpose of sidewalk liability; (2) applying immunity provisions to Hoboken's failure to adhere to its own policies and procedures regarding sidewalk inspections after a snow fall; (3) concluding that the inaction of Hoboken was not palpably unreasonable; and (4) failing "to consider the fact that Skyline and CM3 assumed the duty to maintain the sidewalk in question and were obligated to do so in accordance with the Hoboken code." We are not persuaded by any of these arguments.
When the grant of summary judgment is under review, we must apply the same standard as the trial court to the same motion record. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). Rule 4:46-2(c) provides that a court should grant summary judgment when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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." Therefore, we must first decide whether there is a genuine issue of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences there from favoring the non-moving party, would require ...