On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4211-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Espinosa and Kennedy.
Defendant Quality Automotive of Bloomingdale, Inc. (Quality) appeals from a judgment entered for plaintiffs Guy Richards (Richards) and his wife Patricia Richards (Patricia) following a jury trial. We affirm in part, reverse in part and remand for a new trial to determine whether the damages awarded to plaintiffs should be apportioned between Quality and defendant J&C Properties, L.L.C. (J&C).
Plaintiffs filed a complaint in the Law Division against Quality and JCV Auto Sales (JCV). In their complaint, plaintiffs alleged that on February 17, 2008, Richards was an invitee on property owned and/or maintained by Quality and JCV. Plaintiffs claimed that Quality and JCV were negligent and careless in failing to remove ice and snow from the premises, and allowed a dangerous condition to exist. Plaintiffs alleged that, as a direct and proximate result of Quality's and JCV's negligent acts or omissions, Richards was seriously and permanently injured. Patricia asserted a per quod claim, alleging that she suffered the loss of her husband's services and consortium.
Quality filed an answer and asserted cross-claims against JCV for contribution and indemnification. In its answer, Quality also asserted a demand for allocation of responsibility for any damages awarded among any co-defendants. Thereafter, plaintiffs filed an amended complaint naming J&C as a defendant. J&C subsequently filed a motion for summary judgment that was denied. Plaintiffs later dismissed their claims against JCV and settled their claims against J&C. Plaintiffs' claims against Quality were tried before a jury.
At the trial, the evidence established that J&C is the owner of a commercial building on the corner of Hamburg Turnpike and Warren Street in Bloomingdale, New Jersey, and leased space in the building to Quality and JCV. Quality operated an automobile repair shop in the leased premises.
Plaintiffs reside a short distance away from the building. On the evening of February 17, 2008, plaintiffs were walking from their home to a local convenience store. There was snow on the ground. Plaintiffs walked through the snow in front of their home without any difficulty. Plaintiffs walked past Quality's shop. The sidewalk in that location was covered with snow.
Although the sidewalk across the street was clear, Richards thought he could walk safely on the sidewalk. Richards took a couple of steps before he realized that there was ice beneath the snow. Richards told Patricia to turn around. He started to walk back but as he did so, his "legs came out from under [him]." He fell at an angle and landed hard on his back and shoulder. Richards testified that, for several seconds, he was either unconscious or did not know "what was going on."
Richards returned home immediately and went to bed. He said that the following morning, he felt like he had been "hit by a truck." He had severe pain in his back, shoulder and the back of his head. Richards went to the emergency room of a hospital. X-rays were taken, which showed that Richards had a fracture in his foot and a back injury. Tests taken later revealed compression fractures in the vertebrae and a fracture in his shoulder.
According to plaintiffs' expert, Dr. Evangelos Magariotis (Dr. Margariotis), Richards' compression fractures are irreparable. Dr. Magariotis testified that Richards was completely disabled and unable to work. At the time of trial, Richards had limited range of motion in his arm. He continued to experience muscle spasms in his knee and shoulder, as well as pain in the neck, back, shoulder, and leg.
At the trial, plaintiffs' counsel read into the record a letter from Chris Struble (Struble) and John Crumb (Crumb), in which they stated they were "the property owners" of Quality at the Hamburg Turnpike address in Bloomingdale. Struble and Crumb said that JCV was a tenant at the property. They stated that, as the property owners, they were "responsible for all snow and ice removal as well as maintenance for the . . . property."
In addition, plaintiffs' attorney read the following excepts from Struble's deposition testimony into the record:
[Q:] "Did you, . . . Quality Automotive, did you have any outside third parties in February of 2008 who did any snow and ice removal on your property?" [A:] "No." [Q:] "Who did it?" [A:] "Myself or my partner." [Q:] "John Crumb?" [A:] "Yes." [Q:] "When I asked you about snow and ice removal, you mentioned plowing the driveway and removing snow from the sidewalk on Hamburg Turnpike. But you didn't mention anything about removing snow from the sidewalk on Warren Street." [A:] "No." [Q:] "Why is that?" [A:] "I've never been required to." [Q:] "Required to by whom?" [A:] "By the town." [Q:] "Is it your belief that you have no obligation to remove snow from the public sidewalk on Warren Street?"
[A:] "No, I said I'm not required to remove the snow. In other words, I'm required by the town, by the police department, who will come and issue a summons if the snow is not removed in forty-eight hours from your sidewalk. They have never once issued me a summons for Warren Street." [Q:] ". . . Is it your belief that the Town of Bloomingdale and the police department required you to remove snow and ice within forty-eight hours from the sidewalk in front of your business on Hamburg Turnpike?" [A:] "Yes." [Q:] "And is it your belief that there is no such requirement to remove snow and ice from the sidewalk alongside your building on Warren Street?" [A:] "Based on the fact I've never been issued a ticket or a citation for it, yes." [Q:] "Is it your practice and that of your partner, John Crumb, not to remove snow or ice from the sidewalk alongside your business on Warren Street?" [A:] "Yes." [Q:] "So when it snows and snow accumulates or ice accumulates, the only snow removal you do is plow the driveway and remove snow from the sidewalk in front of your business on Hamburg Turnpike?" [A:] "Yes." [Q:] "And you leave the sidewalk untouched on Warren Street?" [A:] "Yes."
[Q:] What you're telling me is that the best information you received is that snow fell about five days before the accident?" [A:] "Yes." [Q:] "And no one from Quality Automotive or anybody else for that matter removed the snow that was on the sidewalk alongside your building on Warren Street, from the time it snowed five days before until the accident of [February ...