JAN LEWINTER v. POET'S SQUARE ASSOCIATES, L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3683-08T23683-08T2

JAN LEWINTER,

Plaintiff-Appellant,

v.

POET'S SQUARE ASSOCIATES, L.L.C.,

Defendant,

and

TIMOTHY J. BUCKLEY, Individually

and t/a TJ's LAWN MAINTENANCE &

LANDSCAPING, TJ's LAWN MAINTENANCE

& LANDSCAPING,

Defendants-Respondents.

___________________________________

 

Argued November 10, 2009 - Decided

Before Judges Fuentes, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2691-07.

Todd Brandon Eder argued the cause for appellant.

Louis J. DeMille, Jr., argued the cause for respondents (Romando, Tucker, Zirulnik & Sherlock, attorneys; Mr. DeMille, on the brief).

PER CURIAM

Plaintiff Jan LeWinter appeals from the September 12, 2008 Law Division order granting summary judgment to defendants Timothy J. Buckley and TJ's Lawn Maintenance and Landscaping (collectively referred to as Buckley). We affirm.

The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Defendant Poet's Square Associates, LLC (Poet's Square) owns property known as Poet's Square Shopping Center in Freehold Township. Poet's Square retained Buckley to provide snow plowing and other services for the 2006-07 snow plowing season. Pursuant to a contract between the parties, Buckley was to automatically perform the following services when snow accumulations reached two inches:

1. Snow plowing of all asphalt area entrances and exits[.] Snow plowing of all asphalt area entrances and exits over 6 inches[;]

2. Shoveling of walkways per time[;]

3. Sanding of asphalt[;]

4. Salting of asphalt areas[;]

5. Calcium Chloride applied to walkways[;]

6. Potassium with grit to walkways[.]

For accumulations under two inches, or if icy conditions occurred, Poet's Square had to notify Buckley to perform services. The contract also provided that:

[BUCKLEY] CANNOT HE HELD LIABLE IN ANY WAY 24 HOURS AFTER STORM.

ANY PROBLEMS, DRIFTS, ICY CONDITIONS, ETC., [BUCKLEY] MUST BE CALLED.

. . . .

Snow plowing and ice control may not reduce the parking lot and sidewalk areas to bare pavement. Since snow and ice accumulations are naturally occurring events. [Buckley] is not liable for slippery conditions twenty-four (24) hours after [Buckley] leaves the site for services performed.

An addendum to the contract contained the following provisions:

[Poet's Square] agrees to pay [Buckley] only for services provided. Snow shall not be piled up against any buildings. The bulk of the snow on the side walk areas shall be taken away from the building area and will not interfere with the tenants vision. Some snow will be piled up by planters, trees, etc., depending on the amount accumulated from storm.

In the event of snowfall, [Buckley] will begin plowing all paved areas when accumulations reach two (2) inches. When less than two (2) inches of snow falls or if freezing rain, sleet or ice requires that sidewalk and asphalt areas need ice control treatments only, and not plowing, then [Poet's Square] must request these services. The request can be made by anyone that [Poet's Square] feels can make that decision (i.e. all night managers, maintenance person, etc.) A list of qualified person(s) must be submitted to [Buckley] before any work is to be done. Once notified by designated person(s), [Buckley] will report to the sight to begin services, within a reasonable amount of time (usually one to two hours).

If ice control products are need[ed] to be applied after a twenty-four (24) hour period of when [Buckley] leaves the site after any service, [Poet's Square] must call [Buckley] for additional service. A list of emergency phones numbers for twenty-four (24) hour contact will be given to all qualified person(s) that can make the decision for ice control.

From March 16 to March 17, 2007, over two inches of snow fell in the Freehold area. Buckley plowed, sanded and salted the parking lots. Buckley also shoveled the sidewalks three times and applied calcium chloride four times. Buckley placed the snow shoveled from the sidewalk onto the grass on either side of the sidewalks. Buckley knew that the sidewalk in this area was uneven and sloped, causing water runoff from the melting snow on the grass to pool on the sidewalk; that the water would turn into ice under low temperatures; that thawing and re-freezing would occur; and that the area was "one of the heavier areas" of ice build-up.

Buckley completed the work on March 17, 2007, and left Poet's Square ten fifty pound bags of calcium chloride to apply to the sidewalk if any ice formed thereafter. No precipitation occurred on March 18 and 19, 2007. Poet's Square did not call Buckley to return to the property to perform any further services, and did not notify Buckley of any problems, drifts or icy conditions.

On March 19, 2007, more than twenty-four hours after Buckley completed the work, plaintiff slipped and fell on black ice on the sidewalk, fracturing her hip and wrist. Pictures of the sidewalk where plaintiff fell showed refreezing of melted snow.

Plaintiff's expert engineer, Wayne F. Nolte, Ph.D. (Nolte), found no fault with Buckley's original work. Rather, he opined that plaintiff's fall was caused by Buckley's failure to provide additional treatment to, or removal of, the ice on the sidewalk after March 17, 2007, in order to maintain it in a safe condition.

In granting summary judgment to defendants, the trial judge concluded that Buckley owed no duty to plaintiff. The judge explained, in relevant part, that

[Buckley's] obligation to remove snow and ice was triggered upon there being precipitation with an accumulation of at least two inches or a call from . . . Poet's Square. Once the accumulation was cleared, or if there was an accumulation of less than two [inches], . . . the duty was on Poet's Square to call [Buckley] to request they come to the property and remove snow and ice. In the absence of two inches of accumulation, or a request of Poet's Square, [Buckley] had no duty regarding snow and ice removal. [Buckley] removed any accumulation at Poet's Square on Saturday, March 17, 2007 and Mr. Poss, the employee of Poet's Square, stated that [Buckley] had done a good job, and he saw no reason to call [Buckley] to return.

. . . .

The duty of [Buckley] is defined by the contract between the parties. The contact did not require [Buckley] to take any further action on March 19th. Therefore, the Court is satisfied that under the contract, [Buckley] had no further duties to Poet's Square.

As to the issue of whether [Buckley] owed a duty in tort to plaintiff, I believe that the contract, . . . sets forth what [Buckley's] responsibilities are, and the timing, and the parameters which creates whatever duties [Buckley had], and I'm satisfied that pursuant to the contract, [Buckley] had completed [its] responsibilities, and, therefore, the duty at that point shifted back to Poet's Square.

On appeal, plaintiff contends that the trial judge erred in finding that defendants owed her no duty of care at the time of the accident. We disagree.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the Law Division did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. 520, 536). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then decide whether the lower court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.); certif. denied, 154 N.J. 608 (1998). Applying these standards, we conclude that the trial court properly granted summary judgment.

When a contractor agrees to render a service, the contract normally defines the scope of the contractor's specific obligations. Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 316 (2002). The duration of a contractor's duty under the contract extends only so far as permitted by the contract. Aronsohn v. Mandara, 98 N.J. 92, 105-06 (1984).

Nolte concluded that Buckley's failure to maintain the sidewalk in a safe condition after March 17, 2008 caused plaintiff's injury. However, Buckley had no contractual obligation to maintain the sidewalks after that date. The contract only required Buckley to re-salt the sidewalks if icy conditions occurred within twenty-four hours of completion of the work, or if Poet's Square called for additional services, neither of which occurred here.

Affirmed.

Plaintiff has settled with and dismissed her claims against Poet's Square with prejudice.

Nolte also concluded that defendants failed to comply with Chapter 278, 278.1 of the Township of Freehold Code regarding snow and ice removal. However, that code provision applies only to "[t]he owner, occupant or tenant of commercial premises," not to a snow removal contractor, such as Buckley.

(continued)

(continued)

8

A-3683-08T2

December 3, 2009