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Diona Brooks v. Carol Ann Gage and Dana Gage

December 9, 2010

DIONA BROOKS, PLAINTIFF-APPELLANT,
v.
CAROL ANN GAGE AND DANA GAGE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-857-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2010 -- Decided Before Judges Rodriguez and Grall.

Diona Brooks, a mail carrier, appeals from the summary judgment in favor of Carol Ann Gage and Dana Gage (the Gages), dismissing her claim for damages as the result of a slip and fall on the Gages' property, while attempting to deliver mail. We affirm.

These are the facts, viewed in the light most favorable to Brooks-the non-moving party. See Rule 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536, 540 (1995). On December 17, 2007, a cold, clear day, Brooks was delivering mail on Douglas Avenue in Somerset. There is no sidewalk in front of the Gages' house, which is located on Douglas Avenue. Instead, there is a dirt path in the area where a sidewalk would normally be. On that day, the dirt path was covered with ice. According to Books, as she was leaving the Gages' property, she decided to cross the ice covered path rather than walk on the ice-covered street. She slipped and fell, fracturing her left leg.

Two police officers heard Brooks screaming for help. Franklin Police Officer L. Bird saw that the dirt path where they found Brooks was covered with ice. In a deposition, Brooks testified that she commonly uses the dirt path to walk from house to house, unless homeowners instruct her otherwise. This is consistent with post office protocol. There is no record that the Gages ever told postal carriers that they could not cross the lawn in front of their house to deliver mail to the next house.

The Gages' house, a rental property, had been vacant since March 2007. Wilton Krawec, a local business owner, was in charge of maintaining the Gages' property. He did small repairs, cut grass, collected rents and arranged to have larger repairs completed by contractors. In addition, he was responsible for the removal of snow and ice from the property. Krawec performed these services in exchange for some payment and use of the garage on the Gages' property to store material for his business. Krawec has utilized the garage and maintained the property for approximately ten years. He testified that he visited the property to check on the house once a month.

Brooks sued the Gages. They answered and moved for summary judgment. Brooks opposed the motion. The Honorable Yolanda Ciccone A.J.S.C. granted the motion. Brooks moved for reconsideration. The Honorable Edward M. Coleman P.J.S.C. denied the motion.

Brooks appeals, contending that: the because the Gages breached their duty to her as an invitee on their premises by failing to provide a safe sidewalk, Judges Ciccone and Coleman erred in holding that the Gages were entitled to summary judgment. Her argument is that, as an invitee, the Gages owed her a duty to clear snow and ice from the unpaved path at the front of their property. We disagree.

The issue presented is essentially legal in nature. "The question of whether a duty exists is a matter of law properly decided by the court, not the jury, and is largely a question of fairness or policy." Cheng Lin Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991) (citing Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 529 (1988)). "The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Kelly v. Gwinnell, 96 N.J. 538, 544 (1984).

At the outset, we note that Brooks fell on the Gages' property and not on an abutting public sidewalk. "The traditional common-law approach to landowner tort liability toward a party injured because of a dangerous condition on private property is 'predicated on the status of the person on the property at the time of the injury,' i.e. whether the injured party is a 'trespasser', 'licensee' or 'business invitee'." Jimenez v. Maisch, 329 N.J. Super. 398, 401 (App. Div. 2000) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)). The highest duty is owed to invitees. "In general, a landowner has 'a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers.'" Jimenez, supra, 329 N.J. Super. at 402 (quoting Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996)). However, we are mindful that "[t]he historical classifications of the degrees of care owing to visitors upon land are undergoing gradual change in the law in favor of a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others." Butler v. Acme Markets, Inc., 89 N.J. 270, 277 (1982) (citing Renz v. Penn Central Corp., 87 N.J. 437, 462 (1981)). "The inquiry should be . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition . . . of a general duty to exercise reasonable care in preventing foreseeable harm . . . is fair and just." Hopkins, supra, 132 N.J. at 438. "Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Id. at 439 (citing Goldberg v. Housing Auth., 38 N.J. 578, 583 (1993)). Factors that courts weigh and balance in determining whether a duty of reasonable care is owed to a plaintiff include: "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." Ibid. In addition, "[t]he analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct." Ibid.

For the purposes of this discussion, we assume that Brooks is an invitee. In Jimenez, we held that "[a]lthough no published decision in New Jersey has determined whether a mail carrier injured on residential premises to which he is delivering mail enjoys the status of a business invitee, the jurisdictions that have considered this issue are almost in universal accord that letter carriers are invitees." 329 N.J. Super. at 402 (citing A.L. Schwartz Annotation, Liability of Owner or Occupant of Premises for Injuries Sustained by Mail Carrier, 21 A.L.R.3d 1099, 1103 (1968); 62 Am.Jur.2d Premises Liability, § 418, (1972)).

Here, Brooks argues that "the burden upon [the Gages] to provide a safe sidewalk area was not great or unduly burdensome." She relies on Jimenez. However, in that case, despite holding that the plaintiff postal carrier was a business invitee, we affirmed the summary judgment in favor of the landowner based on the very special conditions of that case. Jimenez, supra, 329 N.J. Super. at 403-04. The slip and fall in Jimenez occurred "following the severe snowstorm known as the blizzard of '96" on "the first day the local postal service resumed delivering mail after a several day hiatus." Id. at 399-400. The snowstorm in Jimenez had been very severe and resulted "in a state of emergency [that was] still in effect when plaintiff fell [and] the risk was obvious to plaintiff"; and therefore, it would be a considerable "burden upon homeowners if they were required to clear driveways and walkways following such a storm." Id. at 403. Under those circumstances, we concluded that the property owner did not owe a mail carrier the duty to clear snow and ice from his driveway. Id. at 403-04.

Brooks distinguishes her case from the facts of Jimenez by noting that, in her case, the burden of removing snow was less because the volume of snow on the property was significantly less. She also notes that there was no stoppage of mail service in the present case, and that the Gages had "ample opportunity to make the ...


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