RAYMOND J. FLINT v. JULIA ROCCO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5088-04T25088-04T2

RAYMOND J. FLINT,

Plaintiff-Appellant,

v.

JULIA ROCCO, MATTHEW DiGIAIMO and

KRISTINE A. DiGIAIMO, JOINTLY,

SEVERALLY AND IN THE ALTERNATIVE,

Defendants-Respondents.

________________________________________________________________

 

Argued May 16, 2006 - Decided June 5, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4594-03.

Elizabeth Loud-Hayward argued the cause for appellant (Allegra Nebelkopf, attorneys; Ms. Loud-Hayward, on the brief).

Martin R. McGowan argued the cause for respondent Julia Rocco (Methfessel & Werbel, attorneys; Mr. McGowan, in the brief).

Mary O'Keefe Massey argued the cause for respondents Matthew J. DiGiaimo and Kristine A. DiGiaimo (Hanlon Boglioli & Hanlon, attorneys; Ms. Massey, on the brief).

PER CURIAM

Plaintiff, Raymond J. Flint, appeals from a summary judgment dismissing his complaint for personal injuries he claims he suffered when he slipped and fell on a sidewalk. On appeal, plaintiff argues that the record evidence, viewed in the light most favorable to him, was sufficient to withstand summary judgment. We agree and reverse.

A significant snowstorm occurred in the Freehold area on February 16 and 17, 2003. At that time, defendant Julia Rocco lived in her home at 323 Park Avenue in Freehold, and her next door neighbors, defendants Matthew and Christine DiGiaimo, lived at 315 Park Avenue. Between their homes, the parties had abutting driveways, which ran perpendicular to the sidewalk and street. Plaintiff regularly walked his dogs in the early morning hours on a route that passed defendants' homes. When he took his walk on February 19, 2003, the sidewalks and driveways of both of defendants' homes had not been cleared, and plaintiff experienced no difficulty in walking along the sidewalk.

On February 21, 2003, at about 7:15 a.m., plaintiff was again walking his dogs. His course of travel took him by the Rocco property first, heading in the direction of the DiGiaimo property. A narrow path had been shoveled on the Rocco sidewalk. On the DiGiaimo property, the driveway and sidewalk had been cleared by a plow. However, at about the property line separating the two driveways and extending across the sidewalk there was a mound of snow. From all appearances, this mound was created by plowing on DiGiaimo's side. In any event, the mound was three feet high across the entire sidewalk, obstructing pedestrian passage. Plaintiff estimated that the mound was approximately on the boundary line between the two properties.

As plaintiff walked along the path on the Rocco sidewalk, he approached the mound and had no alternative but climb over it. He placed one foot on top of the mound. He then stepped over with his other foot, placing it on the sidewalk on the DiGiaimo side. He then placed his other foot on the sidewalk, and slipped on "black ice" that had not been visible to him from the other side of the mound. Plaintiff asserted that defendants were liable to him because one or both of the homeowners created a new element of danger or hazard other than any hazard resulting from natural forces, and that this new element, the three-foot mound obstructing the sidewalk, was a proximate cause of his fall and resulting injuries.

In his interrogatory answers, plaintiff described what happened when he reached the three-foot mound this way:

Plaintiff had no choice but to climb over the mound. He did this without incident. When he stepped off the mound onto the sidewalk, on what plaintiff believes was the West side of the mound, he slipped on a[n] icy surface which was not visible, as he was traversing the mound.

At his deposition, defendant testified as follows:

Q Okay.

So with your right foot you step up and come down sort of right on top in the middle of this pile of snow?

A With my right foot, yes.

Q Okay.

And then you bring your left foot over and actually down on the sidewalk on the far side of the pile of snow?

A Yes.

Q And it is at that point that you slipped or did you manage to get your right foot down on that side of the sidewalk also before you slipped?

A I think it's apparent that I got both -- both down at the same time due to the fact that both of them got injured.

Q So just -- so I'm sure you managed to get both of your feet on the far side of the pile of now before you slipped?

A Yes.

Q Now, do you know whether you took any more steps after you got both feet on the far side of the pile of snow?

A No more steps.

Q Okay.

So at some point both feet are there on the far side of the pile of snow but that before you took even one more step you slipped?

A Yes.

Defendants moved for summary judgment. The motion judge concluded that the cause of plaintiff's fall was the ice, which formed as the result of natural causes, namely the melting and refreezing of snow. Relying upon Foley v. Ulrich, 50 N.J. 426 (1967), the judge found that neither property owner owed a duty to plaintiff to eliminate the hazard caused by such a natural condition. We do not agree with the judge's analysis.

In Foley, the Supreme Court adopted the reasoning of the dissenting judge in the Appellate Division. Id. at 427. Thus, the rationale and holding of Foley is set forth in Judge Kolovsky's dissent. See Foley v. Ulrich, 94 N.J. Super. 410, 419 (App. Div. 1967) (Kolovsky, J., dissenting).

We first note, as did the motion judge in this case, that a property owner is only liable if, in clearing the sidewalk of snow, the property owner increases the natural hazard by introducing some new element of danger. Saco v. Hall, 1 N.J. 377, 381 (1949). In Foley, the property owner had shoveled the sidewalk, placing the shoveled snow on either side. Foley, supra, 94 N.J. Super. at 412. When melting and refreezing occurred, black ice formed on the sidewalk, on which the plaintiff slipped and fell. Ibid. Judge Kolovsky reasoned that "[t]he danger to the safe use of the sidewalk which existed when plaintiff fell was solely that caused by natural forces, the freezing of melting snow, a natural phenomenon which would have occurred if defendants had not shoveled the sidewalk, particularly since defendants' lawn sloped toward the sidewalk." Id. at 423-24 (Kolovsky, J., dissenting). In that case, it was the ice that was the sole cause of plaintiff's fall, and the ice resulted from nothing more than the forces of nature. Thus, there was no liability on the property owner.

Judge Kolovsky distinguished the facts in Foley from those in Gentile v. National Newark & Essex Banking Co., 53 N.J. Super. 35 (App. Div. 1958). There, a commercial property owner caused the creation of a snow mound about two feet high blocking the crosswalk in front of its building. Id. at 38. The conditions at the site required pedestrians to use the crosswalk. Ibid. Therefore, when the plaintiff reached the sidewalk area, she had no alternative but to cross the mound of snow. Ibid. She got up onto the mound and started down its slope, after which her right foot went through the snow up to the knee, coming into contact with what she believed was ice, causing her to fall. Ibid. The trial judge granted defendant's summary judgment motion on the ground that there was no evidence that the mound of snow introduced an element of danger or hazard beyond that caused by natural forces, reasoning that because the ice was already covered by the snow, which had fallen naturally, defendant's act of covering it to a greater depth with shoveled snow added no new element of danger or hazard. Id. at 39. We rejected this reasoning and reversed. Ibid. We reasoned as follows:

We further are convinced that the jury could infer that it is much more difficult and hazardous for a pedestrian to mount a mound of snow than if it were level, and so that there was more chance of falling when one was forced to descend into the snow on a sloping descent. If we assume plaintiff's rather uncertain testimony can be said to amount to evidence that there was ice underneath the snow and that such ice was the immediate cause of her fall, it was still open to inference that the sloping mound was itself also an efficient cause. That is sufficient to establish liability of the party responsible for the latter even where a natural condition is a concurring cause. Menth v. Breeze Corporation, Inc., 4 N.J. 428, 442 (1950); Van Cora v. Trowbridge Outdoor Advertising Corp., 18 N.J. Super. 1, 4 (App. Div. 1952). The jury could, therefore, have found that when defendant's agents created the sloping mound of snow across the opening at the crosswalk, they created a new element of danger or hazard to plaintiff other than what was already present due to natural forces, and that this new element was a proximate cause of the plaintiff's fall and subsequent injuries.

[Id. at 40-41.]

When evaluating a summary judgment motion, the evidence must be viewed in the light most favorable to the non-moving party, together with all favorable inferences. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36 (1995). Our review is de novo, and we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Considering the evidence in the light most favorable to plaintiff, we are of the view that the facts in this case are similar to those in Gentile and the result should be the same.

The motion judge mistakenly concluded that the ice was the sole cause of plaintiff's fall. He concluded, as defendants continue to argue before us, that because plaintiff had successfully traversed the mound and gotten both feet on the ground before he fell on the ice, no rational factfinder could find that the mound was also a proximate cause of plaintiff's fall. We are convinced that a jury could reasonably make that finding.

A three-foot mound of snow, completely obstructing a sidewalk, is no small object to navigate. Although plaintiff succeeded in climbing over the mound and did indeed get both feet on the ground before he fell, that does not rule out the presence of the mound as a proximate cause of his fall. This is not a situation, such as in Foley, where a pedestrian merely walked along on a sidewalk unobstructed by anything other than the ice that naturally formed. An individual stepping down to ice from a three-foot high mound would have a natural tendency to be unbalanced and unstable upon reaching the ground and placing all of his weight on the ice. Plaintiff did not take a step after getting his second foot down. He fell at that location, immediately adjacent to the mound.

Under the Brill standard, all reasonable inferences that could be drawn from the record evidence must be found in favor of the non-moving party. A jury could reasonably infer that upon placing his second foot on the ice-covered ground after coming off of a three-foot mound, plaintiff immediately slipped and fell. Contrary to the motion judge's implicit conclusion that plaintiff's act of traversing the mound was complete and then, in a separate event, he slipped on the ice, a jury could find that descending from the mound and slipping on the ice were part of a continuing and interdependent course of events. The jury could thus find that although the ice was a cause of the fall, plaintiff's difficulty in traversing the mound and attempting to regain his balance in coming down with all of his weight on the other side was also a proximate cause of the fall, particularly where the ability to see the ice was obstructed by the mound.

We therefore reverse the orders granting summary judgment to defendants and remand for trial.

Reversed.

 

Because the judge found no duty, he did not resolve whether material facts were in dispute between defendants as to which property owner was responsible for creating the mound. Plaintiff argued in the trial court and again before us that a reasonable inference could be drawn that either or both parties created the mound. Because this issue was not decided in the trial court, we leave it unresolved for further consideration on remand.

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A-5088-04T2

June 5, 2006