BARBARA K. GILLETTE v. LIPINSKI SNOW SERVICES, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5536-06T25536-06T2

BARBARA K. GILLETTE,

Plaintiff-Appellant,

v.

LIPINSKI SNOW SERVICES, INC.,

Defendant-Respondent.

__________________________

 

Argued April 15, 2008 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3431-05.

Elizabeth D. Berenato argued the cause for appellant (Smith, Magram, Berenato & Michaud, attorneys; Ms. Berenato, on the brief).

Darryl S. Beckman argued the cause for respondent (Budd Larner, P.C., attorneys; Mr. Beckman, on the brief).

PER CURIAM

Plaintiff Barbara K. Gillette appeals from the order entered in the Law Division on May 25, 2007, granting summary judgment to defendant Lipinski Snow Services, Inc., and the order entered on July 20, 2007, denying plaintiff's motion for reconsideration. We affirm.

On December 12, 2003, plaintiff was walking towards her place of employment, Our Lady of Lourdes Medical Center (Medical Center), in Willingboro, New Jersey. As she stepped into the Medical Center's parking lot, plaintiff slipped and fell on a patch of ice. She sustained a torn meniscus in her right knee.

The Medical Center had entered into a written contract with defendant for snow removal services for the period from November 4, 2003 to April 15, 2005. "Exhibit A" to the contract contained the "general specifications" for snow removal, including the following:

Snow removal shall commence automatically once two (2") inches of snow has accumulated, without additional notification by [the Medical Center]. Unless otherwise specified . . . snow accumulations under two (2") inches will not be [s]erviced.

Section III of "Exhibit A" applied specifically to the Medical Center's parking lot:

1) At the completion of snow removal operation, [defendant] will apply salt mixture to aid in deicing and traction aid.

2) The amount of salt will be determined by [defendant] to conform to the conditions on each site.

3) Salt will be applied by spreader.

Section V, captioned "General Provisions[,]" contained the following pertinent language:

[The Medical Center] acknowledges that it is impossible and impracticable to achieve the total elimination of snow from all areas of such surfaces. In addition, [the Medical Center] acknowledges that [defendant] is not engaged, nor does it accept engagement, as a continuing monitor of potentially dangerous or unsafe conditions which may arise by reason of thawing and refreezing of previously plowed or treated areas. Upon reasonable notice from [the Medical Center] of any such condition, [defendant] will use its reasonable best efforts to service such condition.

Snow fell in Willingboro on December 5 and 6, 2003. Defendant provided services to the Medical Center on December 5, 6, and 8, 2003, consisting of plowing, shoveling, and applying salt and calcium chloride where required.

Plaintiff's accident occurred on Friday, December 12, 2003. At her deposition, plaintiff testified that on Monday through Thursday of that week, she had walked the same route and had encountered no problems. Plaintiff also testified that there was no snow piled in the area of her fall; there was no snow on the grassy area she walked through to enter the parking lot; and she observed no ice in the parking lot other than the spot where she fell.

In a written opinion dated May 25, 2007, Judge Karen L. Suter stated:

. . . Here, there are no grounds upon which to hold defendant to a duty of care to plaintiff. The last recorded snowfall was December 6, 2003. Defendant was called by [the Medical Center] and removed snow that had accumulated and treated for ice. This occurred on December 8, 2003. Plaintiff stated in her deposition that she had no difficulty walking in the parking lot and rest of the area from December 8 until the date of the accident, December 12. Plaintiff asks that the court hold defendant to a duty of care for an accident that happened four (4) days after defendant had completed its snow removal activities. This is not reasonable. Defendant is not the landowner, and is not required to continually monitor the area. While defendant did owe a duty to plaintiff to complete the task for which it was hired well, defendant discharged that duty as evidenced by the fact that plaintiff did not fall until four (4) days after defendant's service.

In the present matter, the factors articulated in Hopkins[ v. Fox & Lazo Realtors, 132 N.J. 425, 433 (1993)], show there should be no duty imposed as a matter of law. The parties were not known to each other. Instead, they were related through a common party, [the Medical Center]. Defendant did not know plaintiff, nor did defendant know plaintiff would be in the area. The nature of the risk was small. The plaintiff claims that snow was melting and refreezing, and that she happened to step onto an area where ice was present. This was a natural process. There is no indication that defendant introduced some new element of danger for plaintiff. Further, the area of the refreezing was not overly large. Next, plaintiff was in the best position to exercise due care. Defendant had not been out to treat for ice and snow for four (4) days before the plaintiff's alleged slip and fall; defendant had not been requested to return to the area to retreat. Plaintiff had been in the area for those four days, and was aware of the conditions. Clearly, she was in the best position to exercise due care and ensure she was careful where she stepped. Finally, no public interest is served by holding defendant liable here. Defendant had removed the snow and ice in the area, and had explicitly contracted to only return if called by [the Medical Center]. No public interest is served by holding defendant to a duty in this instance, where [plaintiff has] not alleged any action or inaction by defendant regarding its earlier snow removal that created the condition about which [plaintiff complains]. In total, defendant had no duty under the law to return to the area and ensure that, four days after its initial work, no new ice formed from melting snow. Instead, defendant was to complete the snow removal in a reasonable manner, and then return when directed by the landowner. Here, there was no such direction. As such defendant owed no continuing duty of care to plaintiff beyond the scope of the original work.

[Emphasis added.]

Plaintiff sought reconsideration of the summary judgment grant to defendant, asserting that: (1) the trial judge mistakenly relied upon Hopkins, supra; (2) the fact that plaintiff fell only on the fifth day of traversing the same route raised a jury question of comparative/contributory negligence; and (3) the question of whether defendant "failed to protect third parties from . . . thawing/refreezing" was a fact issue "for the jury to determine."

In a written opinion dated July 20, 2007, Judge Suter denied plaintiff's motion for reconsideration. The judge wrote:

In the present matter, plaintiff has offered no grounds for reconsideration. The court's analysis of the factors set forth in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) to determine whether a duty exists is not error. In ruling in Hopkins, supra, the New Jersey Supreme Court noted that the common law was flexible and dynamic, and that this was one of the great virtues of same. . . .

. . . .

Here, plaintiff asks the court to conclude, "in a conclusory fashion," that a duty of care existed. However, the court properly evaluated the required factors and considered the facts of this particular case in ruling that no duty of care exists here. . . . It is significant that plaintiff never said what defendant did or did not do that was negligent. All that is alleged is that snow melted and refroze. Apparently, under plaintiff's theory, any entity that clears ice and snow would become a guarantor of the condition of the property, finding a "duty" whenever ice melts and refreezes and also requiring a continuing duty to inspect the property until the weather moderates enough not to freeze. No case support is cited for these propositions. The court is not aware of any such duty under the common law, nor can this be derived from an analysis of the factors set forth in Hopkins. The court did not, as plaintiff suggests, change fundamental tort law.

Plaintiff cites to Aronsohn v. Mandara, 98 N.J. 92 (1984) and Bacak v. Hogya, 4 N.J. 417 (1950) for the proposition that tort law recognizes a duty in this instance. The court does not find these cases persuasive. Both cases stand for the proposition that an independent contractor can be held liable in tort for negligence caused to a third party, whether or not there is privity. In Aronsohn, a home owner filed suit against a contractor who had done work for the previous owners when the patio began to separate from the foundation of the house. 98 N.J. at 96-97. The court held, inter alia, that a contractor who negligently builds a structure may be held liable in tort, even if there is no privity. Id. at 105-106. However, in so ruling, the court dealt with construction cases, not with matters such as this, snow removal by a contractor four days before the subject accident. The court noted, in reaching its holding, that the decision as to whether a duty was to be implied was left to the "law". Id. This comports with the holding in Hopkins, supra, where the New Jersey Supreme Court expressed the principles which would guide a court in determining if the court should imply a duty.

Bacak v. Hogya, 4 N.J. 417 (1950)[,] also dealt with construction. A contractor had removed the stairs leading to the basement, and the plaintiff fell into the basement, sustaining injuries. Id. at 420. The court recognized that an injured party could sue a contractor in tort for negligently performing the contractor's work. Id. at 422-423. There again, the facts revolved around a contractor doing home improvement work, not with snow removal and a slip and fall four days after the work. Therefore, the court finds both Bacak and Aronsohn distinguishable from the case at bar, as both dealt with construction work, and clearly foreseeable injuries resulting.

. . . .

In the present matter, plaintiff has offered no grounds upon which to reconsider the May 25, 2007 Order. The court properly analyzed whether a duty should be imposed in this case, utilizing the required factors. The court did not hold that an independent contractor can never have a duty to third-parties, only that here is no duty in this case.

On appeal, plaintiff argues that defendant owed her a duty of reasonable care that was not proscribed by its contract with the Medical Center, and once again challenges the trial judge's reliance upon Hopkins, supra, in defining defendant's duty to plaintiff. Having thoroughly reviewed the record before us, we are convinced that the appeal is without merit. Therefore, we affirm substantially for the reasons stated by Judge Suter in her thorough and comprehensive written opinions dated May 25, 2007 and July 20, 2007. We add the following brief comments.

Our review of an order granting summary judgment is de novo. "[W]e apply the same standard that governs the analysis by the motion judge." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). We conduct a de novo review to determine "whether the competent evidential materials presented . . . 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).

We are convinced that Judge Suter properly found that there were no genuine issues of material fact and that defendant was entitled to judgment as a matter of law. The judge correctly found that defendant's duty to plaintiff was defined by the terms of its agreement with the Medical Center, and there was no evidence that defendant failed to perform its contractual duties in a negligent manner. Moreover, the judge correctly determined that, in the particular circumstances presented here, the public interest did not warrant imposition of a duty upon defendant to exercise reasonable care with respect to third parties such as plaintiff.

We reject plaintiff's contention that the court misplaced reliance upon Hopkins, supra, 132 N.J. at 439. We find the court's reliance upon Hopkins appropriate to support its conclusion that "[t]he actual imposition of a duty of care and the formulation of standards defining such a duty derive from considerations of public policy and fairness." Ibid. As the judge noted, plaintiff's theory of negligence would impose upon defendant "a continuing duty to inspect the property until the weather moderates enough not to freeze." As the judge further noted: "No case support is cited for th[is] proposition[.]"

We also concur with Judge Suter's rejection of plaintiff's reliance upon Aronsohn v. Mandara, 98 N.J. 92 (1984) and Bacak v. Hogya, 4 N.J. 417 (1950), for the reasons stated in the judge's July 20, 2007 decision. These cases lend no support to plaintiff's position.

 
Affirmed.

(continued)

(continued)

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A-5536-06T2

August 28, 2008