DIONA BROOKS v. CAROL ANN GAGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1435-09T3

DIONA BROOKS,

Plaintiff-Appellant,

v.

CAROL ANN GAGE and

DANA GAGE,

Defendants-Respondents.

____________________________________________

December 9, 2010

Argued November 10, 2010 Decided

Before Judges Rodr guez and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-857-08.

John M. Vlasac, Jr., argued the cause for appellant (Vlasac & Shmaruk, attorneys; Mr. Vlasac, of counsel; Jeffrey Zajac, on the brief).

Chris W. Kemprowski argued the cause for respondents (Law Offices of Michael C. Urciuoli, attorneys; Mr. Kemprowski, of counsel and on the brief).

PER CURIAM

Diona Brooks, a mail carrier, appeals from the summary judgment in favor of Carol Ann Gage and Dana Gage (the Gages), dismissing her claim for damages as the result of a slip and fall on the Gages' property, while attempting to deliver mail. We affirm.

These are the facts, viewed in the light most favorable to Brooks the non-moving party. See Rule 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536, 540 (1995). On December 17, 2007, a cold, clear day, Brooks was delivering mail on Douglas Avenue in Somerset. There is no sidewalk in front of the Gages house, which is located on Douglas Avenue. Instead, there is a dirt path in the area where a sidewalk would normally be. On that day, the dirt path was covered with ice. According to Brooks, as she was leaving the Gages property, she decided to cross the ice covered path rather than walk on the ice-covered street. She slipped and fell, fracturing her left leg.

Two police officers heard Brooks screaming for help. Franklin Police Officer L. Bird saw that the dirt path where they found Brooks was covered with ice. In a deposition, Brooks testified that she commonly uses the dirt path to walk from house to house, unless homeowners instruct her otherwise. This is consistent with post office protocol. There is no record that the Gages ever told postal carriers that they could not cross the lawn in front of their house to deliver mail to the next house.

The Gages house, a rental property, had been vacant since March 2007. Wilton Krawec, a local business owner, was in charge of maintaining the Gages' property. He did small repairs, cut grass, collected rents and arranged to have larger repairs completed by contractors. In addition, he was responsible for the removal of snow and ice from the property. Krawec performed these services in exchange for some payment and use of the garage on the Gages' property to store material for his business. Krawec has utilized the garage and maintained the property for approximately ten years. He testified that he visited the property to check on the house once a month.

Brooks sued the Gages. They answered and moved for summary judgment. Brooks opposed the motion. The Honorable Yolanda Ciccone A.J.S.C. granted the motion. Brooks moved for reconsideration. The Honorable Edward M. Coleman P.J.S.C. denied the motion.

Brooks appeals, contending that: the because the Gages breached their duty to her as an invitee on their premises by failing to provide a safe sidewalk, Judges Ciccone and Coleman erred in holding that the Gages were entitled to summary judgment. Her argument is that, as an invitee, the Gages owed her a duty to clear snow and ice from the unpaved path at the front of their property. We disagree.

The issue presented is essentially legal in nature. The question of whether a duty exists is a matter of law properly decided by the court, not the jury, and is largely a question of fairness or policy. Cheng Lin Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991) (citing Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 529 (1988)). "The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Kelly v. Gwinnell, 96 N.J. 538, 544 (1984).

At the outset, we note that Brooks fell on the Gages' property and not on an abutting public sidewalk. "The traditional common-law approach to landowner tort liability toward a party injured because of a dangerous condition on private property is 'predicated on the status of the person on the property at the time of the injury,' i.e. whether the injured party is a 'trespasser', 'licensee' or 'business invitee'. Jimenez v. Maisch, 329 N.J. Super. 398, 401 (App. Div. 2000) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993)). The highest duty is owed to invitees. "In general, a landowner has 'a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers.'" Jimenez, supra, 329 N.J. Super. at 402 (quoting Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996)). However, we are mindful that [t]he historical classifications of the degrees of care owing to visitors upon land are undergoing gradual change in the law in favor of a broadening application of a general tort obligation to exercise reasonable care against foreseeable harm to others. Butler v. Acme Markets, Inc., 89 N.J. 270, 277 (1982) (citing Renz v. Penn Central Corp., 87 N.J. 437, 462 (1981)). The inquiry should be . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition . . . of a general duty to exercise reasonable care in preventing foreseeable harm . . . is fair and just. Hopkins, supra, 132 N.J. at 438. "Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Id. at 439 (citing Goldberg v. Housing Auth., 38 N.J. 578, 583 (1993)). Factors that courts weigh and balance in determining whether a duty of reasonable care is owed to a plaintiff include: "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." Ibid. In addition, [t]he analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct. Ibid.

For the purposes of this discussion, we assume that Brooks is an invitee. In Jimenez, we held that "[a]lthough no published decision in New Jersey has determined whether a mail carrier injured on residential premises to which he is delivering mail enjoys the status of a business invitee, the jurisdictions that have considered this issue are almost in universal accord that letter carriers are invitees." 329 N.J. Super. at 402 (citing A.L. Schwartz Annotation, Liability of Owner or Occupant of Premises for Injuries Sustained by Mail Carrier, 21 A.L.R.3d 1099, 1103 (1968); 62 Am.Jur 2d Premises Liability, 418, (1972)).

Here, Brooks argues that the burden upon [the Gages] to provide a safe sidewalk area was not great or unduly burdensome. She relies on Jimenez. However, in that case, despite holding that the plaintiff postal carrier was a business invitee, we affirmed the summary judgment in favor of the landowner based on the very special conditions of that case. Jimenez, supra, 329 N.J. Super. at 403-04. The slip and fall in Jimenez occurred "following the severe snowstorm known as the blizzard of 96" on the first day the local postal service resumed delivering mail after a several day hiatus. Id. at 399-400. The snowstorm in Jimenez had been very severe and resulted in a state of emergency [that was] still in effect when plaintiff fell [and] the risk was obvious to plaintiff"; and therefore, it would be a considerable "burden upon homeowners if they were required to clear driveways and walkways following such a storm." Id. at 403. Under those circumstances, we concluded that the property owner did not owe a mail carrier the duty to clear snow and ice from his driveway. Id. at 403-04.

Brooks distinguishes her case from the facts of Jimenez by noting that, in her case, the burden of removing snow was less because the volume of snow on the property was significantly less. She also notes that there was no stoppage of mail service in the present case, and that the Gages had ample opportunity to make the sidewalk area safe for pedestrians, [although] that clearly was not the case in Jimenez.

Our standard of review is well settled: a trial court shall grant summary judgment "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. 4:46-29(c).

The determination of whether a genuine issue of material fact exists "that precludes summary judgment requires the motion judge to consider 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, supra, 142 N.J. at 540. However, "when 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)). "When reviewing the trial court's grant of summary judgment, [we use] the same standards as that court did and [decide] first whether there was a genuine issue of material fact, and if not, [we decide] whether the trial court's ruling on the law was correct." Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)).

Judged against these standards, we reject Brooks arguments, concluding that the Gages did not owe her a duty to clear snow and ice from the unpaved path. First, Brooks cites no authority indicating that property owners have a duty to clear snow from unpaved paths. Second, the Gages opportunity to clear the path was subject to significant practical difficulties. There is no way to effectively "shovel" a grassy area. The unpaved path here cut across the Gages front lawn. If ice becomes attached to the grass or dirt, the Gages would probably have to either remove portions of their lawn or apply melting agents. It is unclear whether reasonable efforts could render the path safe under these circumstances. Third, the risk was obvious to any reasonably prudent mail carrier delivering mail, especially during daylight hours. In Hopkins we noted that courts will be required to draw on notions of fairness, common sense, and morality in order to fix the limits of liability as a matter of public policy. 132 N.J. at 443 (citing Kelly, supra, 96 N.J. at 538). Common sense and fairness lead to the conclusion that no duty existed here.

Brooks also contends that, because the Gages' premises is a commercial property, "the Law Division erred in failing to hold that a jury question existed as to whether the [Gages] met their duty to maintain the sidewalk area in a reasonably good condition through the removal of snow and ice accumulation." Brooks argues that because the Gages house is a commercial property, they owed her a duty to clear snow and ice from the unpaved path. The parties agree that the path on the Gages property was not a sidewalk. However, Brooks contends that the record shows that the dirt path traversed by the Brooks at the time of her fall was the functional equivalent of a sidewalk. We disagree.

As already stated, Brooks fell on the Gages' property, not a public sidewalk abutting their property. Therefore, their status as commercial versus residential owners is irrelevant. The extension of liability to commercial owners of property with respect to sidewalk liability does not apply to this case. [E]xtension of liability [pursuant to] Stewart v. 104 Wallace Street, Inc., [ 87 N.J. 146 (1981),] is clearly limited to abutting sidewalks, and does not impose a duty upon commercial landowners to maintain contiguous lands owned by others simply because the public chooses to use the lands as a means of access to the commercial property. Chimiente v. Adam Corp., 221 N.J. Super. 580, 583 (App. Div. 1987).

In short, there is no authority to extend a commercial property owner s duty to maintain abutting public sidewalks to dirt paths on their property. Thus, we conclude that given the relationship between the parties, the attendant risk, the opportunity to exercise care, and the public policy considerations, the Gages did not have a duty to clear snow and ice from the unpaved path on their front lawn for the benefit of Brooks.