On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4539-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Lihotz and Ashrafi.
Plaintiff Elda Sokoloff appeals from an adverse jury verdict on her claim of personal injuries resulting from a fall on ice on defendant's property. Because the court gave incorrect jury instructions despite plaintiff's objections, we reverse and remand for a new trial.
Plaintiff, sixty-six years old at the time, lived with her daughter, Regina DiEva, in a leased townhouse in a complex owned and managed by defendant The Kamson Corporation. Her lease placed responsibility on defendant-landlord to clear snow and ice from all outside areas, including the parking lot and all walkways.
On February 11, 2006, a blizzard left a large accumulation of snow. The next day, defendant's maintenance personnel plowed the center of the parking lot but did not shovel any walkways. Plaintiff and her daughter thought it was the tenants' responsibility to clear the walkways from their townhouses to the parking lot because defendant's maintenance crew typically did not clear them. DiEva shoveled the walkway to the parking lot and the area around plaintiff's car. She also spread salt. Plaintiff assisted to some extent with the shoveling.
On February 13, plaintiff walked out of her townhouse intending to go to the post office. As she was approaching her car in the parking lot, she slipped on black ice and broke her pelvis. Five days later, she developed a massive blood clot. At trial, she alleged her injuries have permanent sequelae and have prevented her from returning to her prior employment as a furniture salesperson.
On the day of the accident, DiEva noted and took photographs of the condition of the parking lot and surrounding area where plaintiff fell. Plaintiff alleged at trial that defendant's employees had placed a PVC pipe extender onto the end of a downspout, dispersing storm water from the roof of the adjacent townhouse. The extender pipe led directly to the parking lot, rather than emptying into a dirt area. Consequently, plaintiff alleged defendant had caused water from the neighbor's roof to flow into the parking lot and freeze near her car.
Plaintiff filed suit in August 2007 against defendant-landlord alleging that negligent maintenance of the property proximately caused her injuries. A jury trial was conducted in August 2009. Other than a medical expert, the only witness for the defense was defendant's property manager, who conceded that defendant was responsible for clearing the walkways and the areas between parked cars. The property manager also testified the landlord had no objection to tenants shoveling their own walkways and around their cars.
During its deliberations, the jury asked several questions pertinent to the issues on appeal. It then found defendant 25% negligent and plaintiff 75% negligent. Because plaintiff's negligence was more than 50%, plaintiff could not recover any damages. See N.J.S.A. 2A:15-5.1.
On appeal, plaintiff contends the trial court erred in its jury charge and in permitting the jury to consider comparative negligence when there was no evidence of her negligence.
We find no merit in the latter contention because comparative negligence was a disputed issue in the case. "One's right to protection from the negligence of others carries with it the duty of reasonable care for one's own safety. The inquiry is whether the traveler, by the exercise of ordinary or reasonable care, would have discovered the danger and avoided it." Milstrey v. City of Hackensack, 6 N.J. 400, 412 (1951) (negligence alleged in condition of public sidewalk).
In this case, plaintiff was aware of the recent snowfall. She admitted she did not look at the ground while walking to her car but was looking at the car and getting her key when she fell. The jury could conclude that she did not pay adequate attention to the condition of the parking lot and was not cautious for her own safety in ice and snow conditions. The trial ...