LOUIS N. DELUCCA and KERRY DELUCCA v. GIVAUDAN ROURE CORP.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5671-08T15671-08T1

LOUIS N. DELUCCA and

KERRY DELUCCA,

Plaintiffs-Appellants,

v.

GIVAUDAN ROURE CORP. and GIVAUDAN

FRAGRANCES CORP.,

Defendants,

and

DUKE'S LANDSCAPE MANAGEMENT

MULCH AND PRO, INC.,

Defendant-Respondent.

_________________________________

Telephonically Argued July 6, 2010 -

Decided July 23, 2010

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

L-7385-07.

Stephanie Ann Mitterhoff argued the cause

for appellants (Bramnick, Rodriguez, Mitterhoff,

Grabas & Woodruff, attorneys; Ms. Mitterhoff,

on the brief).

Joseph K. Cobuzio argued the cause for

respondent (Tompkins, McGuire, Wachenfeld &

Barry, attorneys; Mr. Cobuzio of counsel and

on the brief; Shannon K. Salvatoriello,

on the brief).

PER CURIAM

Plaintiff Louis N. DeLucca was injured when he slipped and fell in the loading dock area of his employer's, Givuadan Roure Corp., place of business. Plaintiff filed a personal injury cause of action against defendant, Duke's Landscape Management Mulch and Pro, Inc. (Duke's Landscape), alleging that it negligently performed its duties to clear the loading dock area of snow and ice.

On Duke's Landscape's motion for summary judgment, the Law Division dismissed plaintiff's complaint finding, as a matter of law, that Duke's Landscape was not responsible for the conditions that led to plaintiff's fall. We affirm.

In addressing plaintiff's arguments on appeal, we will apply the same standard used by the Law Division. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That standard is codified in Rule 4:46-2(c), which provides that summary judgment shall 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." See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). In determining whether a genuine issue of material fact exists, we consider the evidence presented in the light most favorable to the party opposing the motion for summary judgment. Id. at 540.

With these principles in mind, we describe the following facts in the light most favorable to plaintiff. At all times relevant to this case, plaintiff was employed as a truck driver by Givaudan Roure Corp., a manufacturer of fragrance chemicals. At approximately 4:00 a.m. on December 20, 2005, plaintiff reported to work by pulling his delivery truck into the loading dock area. He loaded his truck with that day's shipment and drove away without further incident.

Plaintiff returned to the loading area at the end of his workday, approximately 2:30 p.m. He pulled the truck into the same spot he had used when he first reported to work. When he walked around the back of the truck, he slipped and fell to the ground, injuring himself. During his deposition, plaintiff indicated that it had rained the night before the accident, but he could not remember the weather conditions on the date of the accident, or the last time it had snowed.

As part of its contract with Givaudan Roure Corp., Duke's Landscape agreed to perform the following snow-removal services:

1. Snow plowing will be done in such a manner as not to plow in any parked vehicles, fire hydrants, stand pipes, mail boxes, dumpsters, or entrances.

2. Work shall begin upon accumulation of one (1) inch of snow/ice, or at the request of Management. Accumulation at night will be plowed from the main roads by 5:30 a.m. Continuing snow during the day will be plowed from the main roads by 4:00 p.m.

3. All sidewalks and steps shall be cleared continuously during the storm while the building is open.

4. Salting of roads and calcium on walks shall be done upon request of management. Road materials used shall be of a 50% sand/ 50% salt mixture. Only calcium chloride shall be used on walks and steps.

5. Contractor shall notify Management when it is impossible due to poor housekeeping, to clear an area safely, and the situation will be corrected.

The last time Duke's Landscape performed any snow removal services for the Givaudan Roure Corp. was four days before the accident, on the evening of December 15, 2005, and into the early morning hours of December 16, 2005. At that time, approximately one-half inch of snow fell. Duke's Landscape salted the road at 3:15 p.m. and 11:00 p.m. on the 15th and returned to the site at 6:00 a.m. the following day. At that point, it was raining and the temperature was rising, all roads and sidewalks were clear, and no snow removal was performed or needed.

The record also includes the deposition testimony from two representatives of the Givaudan Roure Corp., who confirmed that they did not request Duke's Landscape to return to the site after December 16, 2005. These witnesses also indicated that Givaudan Roure Corp.'s staff members perform salting and deicing when Duke's Landscape's services are not needed.

Plaintiff retained engineer Michael Natoli to opine as to the cause of the accident. According to Natoli, Duke's Landscape was negligent in failing to use sand on the parking lot utilized by plaintiff on the date of the accident as required under its contract with the Givaudan Roure Corp. Natoli opined that the use of sand would have provided better traction, thereby ameliorating the icy condition that caused plaintiff to fall. Based on plaintiff's account of the location of a snow pile on the date of the accident, Natoli also opined that Duke's Landscape negligently amassed snow in an area that, given its topographical features, caused melting snow to run down and accumulate at or near the location of the accident.

Against this record, and after reviewing the relevant case law on the subject, Judge Cifelli found that Duke's Landscape was not legally liable to plaintiff. Judge Cifelli gave the following explanation in support of his ruling:

[P]ursuant to the contract, the salting of roads or removal of snow from the site was only to be done at the specific request of the property owner. That the defendant had no responsibility for . . . eradication of ice accumulation, unless specifically requested to by the owner.

No services were performed by defendant from December 16th, 2005, through December 20th, 2005, the date of the accident. And, again, under the contract, defendant had no obligation to return to the site and provide services during this time, unless specifically requested to do so by the property owner.

The condition upon which the plaintiff fell did not exist upon the completion of the defendant's services rendered on December 16th, four days prior to the date of the accident.

We affirm substantially for the reasons expressed by Judge Cifelli in his oral opinion rendered from the bench on June 12, 2009. We add only the following brief comments.

The Givaudan Roure Corp., as the owner of the property, has a non-delegable duty to provide safe conditions for those individuals entering the site and utilizing its property. Jimenez v. Maisch, 329 N.J. Super. 398, 402 (App. Div. 2000). Equally well-settled is the principle that a contractor's obligations to a third-party flow exclusively from the four corners of the contract itself. Aronsohn v. Mandara, 98 N.J. 92, 105-07 (1984).

Under the facts presented, plaintiff cannot recover from Duke's Landscape because the conditions alleged to have caused his injuries are not attributable to Duke's Landscape's contractual responsibilities. After completing its work four days before the accident, Duke's Landscape did not have a continuing duty under the contract to monitor the conditions of the property. Indeed, it is undisputed that Givaudan Roure Corp. staff was responsible for salting and deicing the property at the time of plaintiff's accident.

 
Affirmed.

Improperly designated as "Duke's Landscape Management, Inc."

Plaintiff initially included his employer as a defendant in this action. The court dismissed plaintiff's complaint as to this defendant based on the immunity granted to employers under the workers' compensation law.

The extent of plaintiff's injuries is not relevant because this case turns exclusively on liability.

The contract also contains other provisions detailing a schedule of costs depending upon the amount of snow accumulation. Those provisions are not included here because they are not germane to our discussion.

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A-5671-08T1