JERAMIAS GONZALEZ v. EASTERN FREIGHTWAYS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0288-09T3

JERAMIAS GONZALEZ and SAYRA GONZALEZ-LOPEZ, H/W,

Plaintiffs-Appellants,

v.

EASTERN FREIGHTWAYS and BLANCHARD STREET, LLC,

Defendants,

and

HMD LAWN SERVICE & PLOWING,

Defendant-Respondent.

________________________________

September 23, 2010

 

Argued: May 5, 2010 Decided:

 

Before Judges Cuff and C.L. Miniman.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8999-07.

 

Randall J. Peach argued the cause for appellants (Roy D. Curnow, attorney; Mr. Curnow, of counsel and on the brief).

 

Karen Quinn Sopko argued the cause for respondent (Baumann, Lynes & Viscomi, attorneys; Ms. Sopko, on the brief).

PER CURIAM

Plaintiffs Jeramias Gonzalez and Sayra Gonzalez-Lopez1 appeal from an August 28, 2009, summary judgment in favor of defendant HMD Lawn Service and Plowing (HMD) dismissing plaintiffs' complaint and all cross-claims against this defendant with prejudice. We now reverse and remand for further proceedings consistent with this opinion.

I.

Plaintiff was injured on February 5, 2007. At the time of the alleged injury, plaintiff was an employee of defendant Eastern Freightways (Eastern).2 Plaintiff's duties included driving Eastern's tractor-trailers as well as training new employees. Eastern leased the property for its New Brunswick location from defendant Blanchard Street, LLC (Blanchard).3 Eastern contracted with HMD for yard maintenance and snow and ice removal.

Plaintiff alleges that he experienced a slip-and-fall accident in Eastern's parking lot in the late morning of February 5, 2007. On a typical morning, plaintiff would arrive at work via car, turn his tractor on, and hook up his tractor to a trailer. On that particular morning, plaintiff knew which trailer he was to use because he had called the night before.

When plaintiff arrived, he used a code to access the front gate. He parked his car with the other cars, retrieved his personal items from his trunk, and walked over to his tractor. To get to his tractor, plaintiff walked a distance of about five car lengths. Plaintiff had some trouble walking because the ground was slippery, but there was no snow on the ground.

After making it to his tractor, plaintiff drove the tractor towards the trailer. Plaintiff had trouble driving as a result of the slippery ground, but he continued to do so. Plaintiff backed his tractor up to the trailer.

Soon after plaintiff descended from the tractor and began walking towards the trailer, he slipped and fell. Plaintiff fell backward and hit the ground with his left arm and back. After lying on the ground in pain for five minutes, plaintiff stood up without assistance.

Plaintiff later testified that he saw ice and that the ice had caused him to fall. Plaintiff saw this ice before his fall. The patch of ice covered a large area and looked "like a mirror." Plaintiff did not remember seeing salt, sand, or gravel on the ice.

Plaintiff gave extensive testimony as to the injuries he sustained in the fall, as well as to his surgical and therapeutic treatment. Because the issues of this appeal focus solely on the duties owed by HMD, we need not discuss the facts relevant to damages.

According to James Bellino, General Manager for Eastern, Eastern's parking lot is part asphalt, part gravel. In 2007, no one in the maintenance department performed snow or ice removal. Instead, Eastern had a written agreement with HMD for the removal of snow and ice.

Bellino was not aware of any written agreements other than the one provided in discovery. That agreement provides in pertinent part:

WE WOULD LIKE TO PRESENT OUR CONTRACT FOR SNOW PLOWING FOR THE 2006-2007 SEASON. THE FOLLOWING ARE OUR PRICES FOR THE ENTIRE PARKING LOT.

 

. . .

 

SALTING AVAILABLE BY YOUR REQUEST AT AN ADDITIONAL CHARGE OF: $250.00 PER TON.

 

Bellino testified that no one at Eastern was responsible for inspecting for snow or ice, or even for inspecting HMD's work.

Brian Duncan is the son of Hugh Duncan, who started HMD as an LLC some five to ten years ago. Brian testified that when he performed snow removal work for Eastern, he would show up with all of the equipment necessary to perform the work nothing was parked at Eastern's lot. Brian acknowledged that the agreement in evidence operated to bind Eastern and HMD for the 2006-2007 snow season. At the time, HMD had four commercial accounts, and the Eastern contract was HMD's largest snow-removal job.

Brian further testified that, although no one at Eastern ever called HMD to salt the parking lot, salt was applied "99%" of the time. HMD never used sand or calcium chloride to melt the ice; only salt was used. While Bellino claimed to have seen HMD making use of a brownish sand mixture, Brian had never even seen sand on the property. Brian had previously characterized the choice between the products as a "matter of preference."

Brian testified that HMD would have been able to spread the salt around the area where the trailers were parked. Brian stated that because HMD's salting machines emit a "thirty to forty foot swathe, we're going well past the landing gear of the trailers."

Brian could not recall ever receiving complaints about the quality of the snow removal; then again, there was no contact at Eastern who would inspect the work once it was completed. However, after performing a snow removal and salting job, Brian would return to the area later on in order to check on the job. If the area looked "wet," he knew that the salt had properly melted the ice and snow. He never saw ice after returning to a job site.

As to when and how a snow removal job was initiated, Brian testified that he would perform a visual inspection whenever it was snowing, checking to see whether the area had accumulated the one-inch minimum. HMD had subscribed to a weather information service via the internet, but Brian did not make personal use of it.

It is not entirely clear when HMD last performed snow and ice removal services prior to plaintiff's accident. The record contains two invoices for plowing and salting. The first invoice is dated January 29, 2007, and makes no mention of the date of service. The second invoice is dated February 19, 2007, but separately indicates that the work invoiced was performed on February 13 or 14, 2007, or both.

Brian was presented with the second invoice, where the work dates differ from the invoice date. Brian could "assume" that the work dates, and not the invoice dates, were the days on which the snow removal was performed. The following colloquy transpired between Brian and plaintiffs' counsel:

Q. It would appear from the date that you have on [the second invoice] of 2/19, that it was submitted probably four days or five days after the date of your last service. Was it normally your procedure to crank out an invoice within a reasonably short period of time after your services were rendered?

 

A. It varies, sir, to be honest with you, how busy people are, it would vary.

 

Q. The faster you get them out though, the faster you get paid?

 

A. This is true but we also have a lot of stuff going on.

 

When presented with the first invoice, with no specified work date, Brian did not doubt that the work was done sometime in January. However, Brian was not entirely certain of the exact date. Brian was certain, however, that there were no other invoices dated between the first and second invoices; these two invoices are the closest in date to the day of plaintiff's accident.

Plaintiff obtained an expert report by Michael G. Natoli, P.E., a consulting engineer. Natoli first made a visit to the parking lot in order to observe the site of the accident. Key among his observations were the "large depressions" and "pocket regions" which would allow accumulation of water. Natoli photographed these depressions. Natoli also photographed plaintiff locating the exact spot of the alleged accident. The picture clearly shows a large amount of water puddled in one of the lot's depressions.

Natoli's report then notes the temperatures on the date of plaintiff's accident. The report and its attached Climatological Data show that on January 19, 2007, one inch of snow fell and on January 29, 2007, 1.8 inches of snow fell, resulting in an accumulation of two inches on the ground. A further 0.3 inches fell on January 31, 2007. No snow was left by February 5, 2007, on which date the maximum and minimum temperatures were twenty-six and seven degrees, respectively. There was never a day between January 19 and February 5, 2007, where the low daily temperature rose above twenty-six degrees Fahrenheit, although maximum temperatures often rose above freezing on many days. Natoli's report continues:

The aforementioned [ice] condition is attributed to a snowmelt; whereby the precipitate undergoes a transformation from solid to liquid phase state, this condition generates surface water runoff, which flows onto the walkway surface. As such, based on reasonable engineering probability, the water runoff accumulating with depression areas and acted upon by freezing temperatures, transformed the ponded water into ice (crystallization), to create an extremely hazardous walking surface condition.

 

Natoli then discussed OSHA standards applicable to this workplace and reviewed various industry publications pertinent to the prevention of ice and maintenance of slippery surfaces. Natoli's report quotes from one professional standard, National Safety Council, Removal of Ice and Snow in Industry 13 (1950), opining that use of calcium chloride is preferable to salt because of calcium chloride's relative quickness, effectiveness at lower temperatures, and resistance against re-crystallization.

Natoli opined that "the snow removal contractor by failing to properly snow plow the premises to mitigate the likelihood of icy walking surfaces, clearly violated the above code and safety standards by providing unsafe conditions for the public." Natoli also opined that a straight-edge, bottom-contact plow merely "overtops" a depression in a parking lot, leaving snow in the depression. Once melted, this leftover snow can refreeze into an icy patch.

Natoli also opined that HMD failed to adequately treat the snow and ice in the depressions because it failed to use sand in addition to salt. "Sand . . . mixes well within a liquid solution generated by the snow melt. Therefore during a refreeze instance sand particles become rigidly embedded within the ice layer such that the net result is a 'sandpaper' type walking surface, which enhances traction." (Footnotes omitted.) On the other hand, merely using salt allows a refreeze without the "secondary action" of the sand. "As such, to dispense a spread mixture containing only a deicing (salt) compound demonstrates a willful disregard for the public's safety and in this instance contributed to the plaintiff's injury."

Natoli concluded that "plaintiff's injury would have been avoided . . . had the walkway areas been properly plowed to eradicate snow accumulations from depression regions and sand been utilized within the spread mixture."

II.

After discovery was completed, HMD sought a summary judgment dismissing plaintiffs' complaint. Oral argument took place on August 28, 2009. At that time, plaintiffs' counsel argued that there are three material factual issues. The first issue was whether or not the work invoiced on January 29, 2007, was actually performed on that date or at some earlier time in January. Plaintiffs' counsel informed the judge that January 29, 2007, saw a snowfall of roughly two inches. He further argued that if the work was done before the date of the invoice, then no work was done after the January 29 snowfall, thus allowing a more significant snowmelt and refreeze.

The second material factual issue, according to plaintiffs' counsel, was whether the work was performed properly, if performed at all. Plaintiffs' counsel highlighted the two problems identified by Natoli: (1) plowing over depressions in the parking lot, leaving the depressions covered with two inches of snow, and (2) failure to use sand in addition to salt when deicing the parking lot.

The third issue of material fact was the "breadth and scope" of the contract between HMD and Eastern. Plaintiffs' counsel argued that Eastern had essentially delegated to HMD its duty to make the premises safe. Plaintiffs' counsel cited testimony that Eastern did not inspect its property or carry out any maintenance in the lot. Based on this, plaintiffs' counsel planned to ask the jury "to find that what the parties . . . intended here was that Eastern has this affirmative duty and they're delegating [it] to HMD."

The judge granted HMD's motion for summary judgment, stating inter alia,

I . . . do not find any material issues of fact that would prevent the [c]ourt from deciding this [as] a matter of law. . . .

 

I . . . find that there was no duty on the part of the defendant . . . HMD to go out and do additional work. I don't find

. . . the question of when the work was done to be a material issue of fact. It cer-tainly appears that the work was done on January 29th . . . or shortly thereafter. That having been the date of the snowfall that would have triggered . . . the work. Looking at the invoice and comparing it to the other one from February, they put the dates in when the items indicating the days that they went out to some snow [sic]. I think . . . it's just as well inferred that the date of January 29th was the date that

. . . they invoiced [and] was the date . . . that they did the work. But it doesn't seem to be that anyone actually recalls the exact date. But I don't find that that's a material issue what work was done . . . again, it appears to have been triggered by the snowfall of January 29th. And there is no duty for HMD to go out and do additional snowplowing or salting unless requested by Eastern Freight, or according to the terms of the contract. And . . . neither of those . . . appear to be the case in this instance. (Emphasis added.)

 

As to plaintiffs' counsel's argument that the work was done negligently, the judge believed "that . . . falls on the maintenance obligation and the duties of Eastern Freightways, but not of HMD. . . . [HMD] had no duty to maintain that parking lot." Lastly, the judge concluded that there were no material facts suggesting that Eastern and HMD intended their agreement to constitute a delegation of duty. This appeal followed.

Summary judgment is appropriate when "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).

In determining the existence of a material issue of fact, the court should determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, 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). If "the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Even then, "a party may defeat a motion for summary judgment by demonstrating that the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raise sufficient credibility issues 'to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523). On appeal of a grant of summary judgment, we apply the same standard as the judge below. Alloway v. Bradlees, Inc., 157 N.J. 221, 232 (1999).

III.

We have found no reported decisions discussing the specific duty a snow removal contractor owes to its client's business invitee and others. However, in Aronsohn v. Mandara, 98 N.J. 92 (1984), the Supreme Court reviewed the overarching principles that determine a contractor's liability to a third party:

Under well-established principles a contractor has a duty to persons, other than the one with whom the contractor has made the contract, to carry out his undertaken work in a careful and prudent manner, and he may be responsible to third persons for their personal injuries . . . proximately caused by his failure to exercise that care. This duty exists irrespective of privity.

 

[Id. at 105-06 (emphasis added) (citations omitted).]

 

The Aronsohn Court went on to write:

It is the contractor's undertaking that gives rise to his duty. Dean Prosser has explained the theory in the following manner:

 

In other words, the absence of "privity" between the parties makes it difficult to found any duty to the plaintiff upon the contract itself. But by entering into a contract with A, the defendant may place himself in such a relation toward B that the law will impose upon him an obligation, sounding in tort and not in contract, to act in such a way that B will not be injured. The incidental fact of the existence of the contract with A does not negative the responsibility of the actor when he enters upon a course of affirmative conduct which may be expected to affect the interests of another person. [W. Prosser, Handbook of the Law of Torts 93 (4th ed. 1971) (footnotes omitted).]

 

This principle has been applied to make contractors liable in tort to all those who may be injured by a negligently built structure. Schipper v. Levitt & Sons, Inc., 44 N.J. 70 (1965).

 

[Id. at 106.]

 

Aronsohn dealt with a contractor whose negligent construction caused monetary loss to subsequent purchasers of the property. Id. at 95-96. However, the Aronsohn Court cited Bacak v. Hogya, 4 N.J. 417 (1950), a case in which a contractor's negligent construction of stairs made the contractor liable to a home occupant who was not a party to his service contract. Aronsohn, supra, 98 N.J. at 105.

The Bacak Court observed that where a plaintiff's cause of action is based on the tortious conduct of an independent contractor, "[t]he liability of the defendant arises independently of contract and is founded upon the general duty of an independent contractor to exercise due care in regard to persons lawfully upon the premises." Bacek, supra, 4 N.J. at 422. "Thus it has been uniformly held that an independent contractor is liable to a third person injured as a result of the negligence of the independent contractor or his servants in the performance of his work for the contractee in an action based in tort, although such third person could not base his action upon the contract to which he was not a party." Ibid. (citations omitted).

In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 431 (1993), the Supreme Court considered the duty of care owed by a real estate broker to those attending the broker's open house. Rather than utilize "the traditional common law approach" which takes into account "the status of the person on the property at the time of the injury," id. at 433, the Court determined that the broker's duty should be governed by more general standards of reasonableness, id. at 444, 448. Reasonableness factors included: "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Id. at 439 (citation omitted). The Court concluded "that a real estate broker has a duty to ensure through reasonable inspection and warning the safety of prospective buyers and visitors who tour an open house." Id. at 448.

Accordingly, HMD clearly had a duty to plaintiff, Eastern's employee, that was not defined by its contract with Eastern. Rather, HMD had a duty to perform snow removal "in a careful and prudent manner." Aronsohn, supra, 98 N.J. at 105. With this duty firmly in mind, we examine the facts to determine whether summary judgment was proper, drawing all inferences in plaintiff's favor.

Plaintiff argues that the judge erroneously granted summary judgment by ignoring the existence of genuine material factual issues. Those factual issues relate to the date the work was actually performed and whether it was performed negligently.

First, as to the date the work was performed, plaintiff argued that the January 29, 2007, invoice did not establish the date of service, which can be inferred from the February 19, 2007, invoice for work performed on February 13 and 14, 2007. Indeed, Brian admitted he could not say when in January the work was actually done because his office had "a lot of stuff going on." The January 29, 2007, invoice could have been for work performed in connection with the one-inch snowfall on January 19, 2007, or the 1.8 inch snowfall on January 29, 2007. The judge clearly erred in finding that the January 29, 2007, invoice was for work done that day. If it was for work done on January 19, 2007, a distinct possibility, defendant may be held liable to plaintiff for negligently failing to plow the lot.

Second, in opposing HMD's motion for summary judgment, plaintiff submitted Natoli's expert report. Natoli's report took into account Brian's description of how HMD performs its snow removal service. Natoli's report concludes that HMD's work was negligent for failing to ensure that no snow remained in the parking lot depressions and for failing to use sand in addition to salt. The judge believed that Natoli's expert report "falls on the maintenance obligation and the duties of Eastern Freightways, but not of HMD . . . They had no duty to fill the potholes. They had no duty to maintain that parking lot."

The judge clearly misconceived the thrust of Natoli's report. Neither Natoli nor plaintiffs have contended that HMD was obligated to fill the holes and maintain the lot. Rather, Natoli opined that proper snow removal would include removing snow from the depressions in the lot rather than "overtopping" them with a snow plow. Natoli further asserts that if and when HMD threw down salt, HMD should have mixed sand with the salt; this would provide additional traction in the event that the salt became diluted and the melted snow refroze.

At the very least, plaintiff's testimony and Natoli's report combine to raise an issue as to whether HMD negligently performed the services required by the snow removal contract. Brian's testimony establishes that HMD performs its salting operations by driving a salting machine around the trailers and emitting a large "swathe" of salt. Plaintiff, however, testified that he had trouble walking and driving prior to his fall on a large area of ice without any salt. It is for the jury to decide whether HMD was negligent in the performance of its duties at any time in January or early February 2007.

Additionally, Natoli concludes that by merely "overtopping" the depressions in the parking lot, HMD's performance was negligent. Some of the depressions were almost two inches deep. By leaving two inches of snow in the large depressions, a jury might well conclude that HMD was negligent in executing the work. Thus, a jury issue exists as to whether HMD performed the services in a good and workmanlike manner or was negligent.

Reversed and remanded for further proceedings consistent with this opinion.

1 Because Sayra Gonzalez-Lopez seeks only per quod damages, we shall refer to Jeramias Gonzalez as the plaintiff.

2 Defendant Eastern Freightways was joined for discovery purposes only.

3 Plaintiffs settled their claims with defendant Blanchard Street, LLC, prior to filing this appeal.