BETTY COE-LEE v. HYUN PARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4752-07T24752-07T2

BETTY COE-LEE and

CLARENCE LEE, her husband,

Plaintiffs-Appellants,

v.

HYUN PARK d/b/a SCHIMENTI'S

MARKET,

Defendant-Respondent.

________________________________________________________________

 
 

Argued February 24, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5634-05.

Peter L. MacIsaac argued the cause for appellants (Chasan Leyner & Lamparello, attorneys; Mr. MacIsaac, of counsel and on the brief).

Cristina A. Mirda argued the cause for respondent (Accardi & Mirda, attorneys; Ms. Mirda, on the brief).

PER CURIAM

Plaintiffs Betty Coe-Lee and Clarence Lee appeal from an order entered on June 2, 2008 denying reconsideration of an order entered on January 4, 2008 granting summary judgment in favor of defendant. We reverse and remand.

Plaintiff Betty Coe-Lee was injured on February 3, 2004 when she slipped and fell on what she claimed was black ice on a sidewalk in front of defendant's market in Jersey City. Both plaintiffs testified that the patch of ice looked like a wet spot, and alleged that, although defendant cleared snow from the walkway, he was negligent in failing to clear the ice or prevent it from forming.

On plaintiff's motion for reconsideration, the trial court noted the following:

It is clear from [the parties'] depositions that it had snowed several days earlier, [and] that after that snowfall, the sidewalk had been cleared, both the plaintiff and Mr. Park testified to that. Mr. Park further testified that he had salted [it] when it needed salt and that he had swept the sidewalk the day before the plaintiff's fall and that there was no ice on the sidewalk at that time.

Ms. Coe-Lee testif[ied] that there was ice there on the morning that she fell on her way to work and that is what caused her fall. The legal standard is the standard set forth by the Supreme Court in Mirza [v.] Filmore Corp. at 92 N.J. 390, a 1983 decision, particularly page 395.

The Supreme Court stated that, "the abutting commercial owner's responsibility arises only if, after actual or constructive notice, he has not acted in a reasonably prudent matter under the circumstances to remove or reduce the hazard."

The test is whether a reasonably prudent person who knows or should have known of the condition would have, within a reasonable period of time thereafter caused the public sidewalk to be in a reasonably safe condition.

It is clear from that language from Mirza that the obligation arises only after there is actual or constructive notice in this case of there being ice on the sidewalk both from the plaintiff's testimony and from Mr. Park's testimony.

There is no evidence of actual knowledge that there was ice there at the time and there is no evidence from which the jury could conclude that there was constructive notice in that Mr. Park . . . should have known that some point between the time when he swept the sidewalk the day before the accident and the time that Ms. Lee fell, that there was something on the sidewalk that required his attention.

There are no genuine issues of material fact to be resolved by the jury. The motion for summary judgment is granted.

In her appeal, plaintiff argues that the question of whether defendant acted reasonably to protect against a risk of fall on an icy sidewalk is a jury question that precludes summary judgment. We agree.

It is common knowledge that in snow-melt conditions, refreezing occurs when the temperature drops overnight. Defendant testified at his deposition that he was in the store when plaintiff fell and that earlier, when he opened the store, he had walked on the sidewalk but did not see any ice. A reasonable jury could infer from the disputed evidence that there was black ice on the sidewalk and that defendant had actual or constructive notice of the condition.

A factual dispute as to whether a commercial landowner had actual or constructive notice of an icy condition on the sidewalk is for the finder of fact, not a court on a motion for summary judgment. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 159 (1981). It is for a jury to determine whether the commercial property owner had actual or constructive notice of the dangerous condition. Mirza, supra, 92 N.J. at 395-96; Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 566 (2003). Accordingly, we reverse the order granting summary judgment and remand the matter for further proceedings.

Reversed and remanded.

 

Clarence Coe-Lee is a party to this action based on his per quod claim. References to plaintiff in the singular are to Betty Coe-Lee.

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A-4752-07T2

June 24, 2009