On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-694-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Fasciale.
Plaintiffs Joan and James Stickel appeal from a November 7, 2011 order granting summary judgment to defendants. Plaintiffs argue that defendants breached a duty of care owed to them by negligently maintaining defendants' driveway. We affirm. In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed most favorably to plaintiffs, the summary judgment record established the following facts.
On December 22, 2007, Joan walked her dog along the sidewalks of her cul-de-sac towards defendants' house, which was four houses away from plaintiffs' house. To avoid walking on defendants' snow-covered sidewalk, Joan walked on defendants' snow-covered lawn running parallel to the sidewalk. Joan observed that defendants' driveway had been plowed of snow, and thus decided to walk across the driveway, where she slipped on black ice and sustained an injury. Defendants did not learn of the incident until one year later.
In August 2011, defendants moved for summary judgment. Judge Amy O'Connor conducted oral argument and issued a four- page written opinion in November 2011. The judge applied the common law principles of premises liability, declared Joan was a trespasser, and held that defendants did not owe her a duty to warn of natural conditions. The judge stated:
As for whether [Joan] . . . was a social guest, there is not any evidence that the defendants ever indicated to [Joan] that she could use their property or was invited to come onto their property. . . .
[A]lthough [Joan] and defendants were neighbors, before this incident they did not interact with each other, except when passing each [other] when walking their dogs and the dogs would "play with each other. . . ."
[T]he court is constrained to find that [Joan] was a trespasser at the time of her fall. The defendants had not consented, either explicitly or implicitly, to [her] using their property. [She] did not have the privilege to use defendants' land.
As a trespasser, defendants had a duty to warn only of artificial conditions. [Joan] . . . was not injured as [a] result of an artificial condition but a natural one. As stated in Luchejko v. City of Hoboken, 207 N.J. 191, 201 (2011), if a sidewalk had been cleared and the melting snow subsequently froze into a layer of ice, the refreeze would not be an element of danger or hazard other than one caused by natural forces.
According to [Joan, and considering] all the facts and inferences which favor her position, which the court must do . . ., there is not any material issue of fact about her status as a trespasser, and that defendants did not owe a duty to warn of the ice which had formed on their driveway.
[D]efendants did not owe a duty to [Joan] to refrain from plowing their driveway.
[W]hile this is not a "sidewalk liability" case, the . . . Court's observation in Luchejko, supra, 207 N.J. at 201 that there is a societal interest in encouraging people to clear walkways of snow and ice is equally applicable here. Homeowners should not be discouraged from making their premises safer out of a fear that, if their driveway is or appears safe, they would owe the same duty of ...