NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2013
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3444-08.
Shebell & Shebell, LLC, attorneys for Appellant (Thomas F. Shebell, III and Richard A. Amdur, Jr., of counsel; Danielle S. Chandonnet, on the brief).
Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondents Shadow Lake Village Condominium Association, Inc. And The Wentworth Group (Walter F. Kawalec, III, of counsel and on the brief).
Before Judges Graves and Ashrafi.
In this slip-and-fall personal injury action, plaintiff Marion Costa appeals from summary judgment orders in favor of defendants Shadow Lake Village Condominium Association, Inc. (Shadow Lake) and its management company, The Wentworth Group (Wentworth). For the reasons that follow, we affirm.
At the time of the accident, plaintiff was a condominium unit owner residing at Shadow Lake, an adult living community located in Red Bank, New Jersey. Worthmore Construction & Maintenance Company, Inc. (Worthmore Maintenance) provided property maintenance services to Shadow Lake. Additionally, Shadow Lake's By-Laws provided: "A Maintenance Committee shall advise the Board of Trustees on all matters pertaining to the maintenance, repair or improvement of both buildings and grounds in the common areas and properties and shall perform such other functions as the Board may determine."
The accident occurred at approximately 3:20 p.m. on December 3, 2007, while plaintiff was walking up a grassy slope. In an email to Shadow Lake on December 12, 2007, plaintiff stated:
I lost my footing on the lawn in front [of] my condo moving a . . . flowerpot full of dead geraniums my neighbor hid in the woods . . . and slipped into the mud under the grass on all 4's and was dragged backwards feet first, arch hard into ground, until my left ankle, pushed to extremes, snapped and dislocated. I don't know how I ever got myself up alone that afternoon . . . [b]ut I knew no one would find me and I'd get pneumonia in that cold grass/mud. . . .
My clothes were covered in mud as were my sneakers at the hospital where I was . . . admitted and had plates/screws surgically to repair the severe fractures/dislocation.
In an email dated June 17, 2008, plaintiff confirmed the area where she fell was "soggy" from a heavy rainfall:
[My neighbor's] action was the core reason I fell and injured myself so badly—she went and hid all my planters . . . . If I hadn't seen the . . . planters I couldn't find that afternoon, I'd HAVE NEVER BEEN ON THE SOGGY LAWN which floods so badly every time we get a heavy rain, and it poured the night before and the week before.
Prior to plaintiff's accident on December 3, 2007, she wrote three letters to Shadow Lake concerning drainage problems. The first letter, dated February 5, 2005, stated the shared entryway to her unit was "like an ice skating rink, " "the sidewalks don't drain, " and "the water quickly freezes after dark." A second letter dated December 10, 2005, stated that "[e]very heavy rainfall, our end of the lower walk in rear is like a river, and we walk ankle deep in water all seasons of the year, oftentimes with bags/packages etc. Every winter the snow drains and melts on this long sidewalk (which is in the shade all day) and becomes an ice skating rink." Plaintiff's third letter dated November 28, 2006, stated "the water drainage gets so heavy it looks like a river and goes across the rear lawn into the woods."
In response to plaintiff's letters, Shadow Lake hired Down to Earth Landscaping, Inc., (Down to Earth) to modify the drainage system and integrate it into the existing system. Down to Earth also installed a new paver sidewalk from the entrance platform at plaintiff's unit to the dumpster located on the north side of the unit, and it connected three leader pipes to an existing drain line at plaintiff's unit.
In a nine-count complaint filed on July 21, 2008, plaintiff alleged, among other things, that Shadow Lake "negligently, carelessly, and recklessly fail[ed] to maintain, manage, operate, inspect, clean and control the premises" and, as a result, she fell and sustained "serious, permanent and disabling injuries." Plaintiff further alleged Wentworth was negligent in its managerial duties by "allowing a dangerous and hazardous condition to exist" on the "walkways and/or adjacent common areas."
In their answer dated August 28, 2008, defendants denied any wrongdoing and alleged that plaintiff's ordinary negligence claims were barred by Article 1, Section 7 of Shadow Lake's By Laws, which reads as follows:
Members shall recognize that [Shadow Lake] shall not be liable in any civil action brought by or on behalf of a unit owner or spouse to respond in damages as a result of bodily injury or death to the unit owner and/or resident occurring on the premises of [Shadow Lake]. Nothing in this section shall be deemed to grant immunity to [Shadow Lake] causing bodily injury or death by its willful, wanton or grossly negligent act of commission or ...