JOAN STICKEL v. ANDREW HURD and MELISSA HURD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1903-11T3

JOAN STICKEL and JAMES

STICKEL,

Plaintiffs-Appellants,

v.

ANDREW HURD and MELISSA

HURD,

Defendants-Respondents.

___________________________________

November 29, 2012

Argued May 21, 2012 - Decided

Before Judges A. A. Rodr guez and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-694-09.

Travis J. Savoia argued the cause for appellants (Pfeiffer, Bruno, Minotti, & DeEsch, attorneys; James L. Pfeiffer, of counsel; Mr. Savoia, on the brief).

Thomas F. Zborowski argued the cause for respondents (Law Offices of William E. Staehle, attorneys; Mr. Zborowksi, on the brief).

PER CURIAM

Plaintiffs Joan and James Stickel appeal from a November 7, 2011 order granting summary judgment to defendants. Plaintiffs argue that defendants breached a duty of care owed to them by negligently maintaining defendants' driveway. We affirm.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "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 v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed most favorably to plaintiffs, the summary judgment record established the following facts.

On December 22, 2007, Joan walked her dog along the sidewalks of her cul-de-sac towards defendants' house, which was four houses away from plaintiffs' house. To avoid walking on defendants' snow-covered sidewalk, Joan walked on defendants' snow-covered lawn running parallel to the sidewalk. Joan observed that defendants' driveway had been plowed of snow, and thus decided to walk across the driveway, where she slipped on black ice and sustained an injury. Defendants did not learn of the incident until one year later.

In August 2011, defendants moved for summary judgment. Judge Amy O'Connor conducted oral argument and issued a four-page written opinion in November 2011. The judge applied the common law principles of premises liability, declared Joan was a trespasser, and held that defendants did not owe her a duty to warn of natural conditions. The judge stated:

As for whether [Joan] . . . was a social guest, there is not any evidence that the defendants ever indicated to [Joan] that she could use their property or was invited to come onto their property. . . . [A]lthough [Joan] and defendants were neighbors, before this incident they did not interact with each other, except when passing each [other] when walking their dogs and the dogs would "play with each other. . . ."

[T]he court is constrained to find that [Joan] was a trespasser at the time of her fall. The defendants had not consented, either explicitly or implicitly, to [her] using their property. [She] did not have the privilege to use defendants' land.

As a trespasser, defendants had a duty to warn only of artificial conditions. [Joan] . . . was not injured as [a] result of an artificial condition but a natural one. As stated in Luchejko v. City of Hoboken, 207 N.J. 191, 201 (2011), if a sidewalk had been cleared and the melting snow subsequently froze into a layer of ice, the refreeze would not be an element of danger or hazard other than one caused by natural forces.

According to [Joan, and considering] all the facts and inferences which favor her position, which the court must do . . ., there is not any material issue of fact about her status as a trespasser, and that defendants did not owe a duty to warn of the ice which had formed on their driveway.

[D]efendants did not owe a duty to [Joan] to refrain from plowing their driveway.

[W]hile this is not a "sidewalk liability" case, the . . . Court's observation in Luchejko, supra, 207 N.J. at 201 that there is a societal interest in encouraging people to clear walkways of snow and ice is equally applicable here. Homeowners should not be discouraged from making their premises safer out of a fear that, if their driveway is or appears safe, they would owe the same duty of care to any pedestrian who might stray onto their property to use their driveway as is owed an invitee.

Accordingly, the court finds that, even giving . . . [Joan] all of the legitimate inferences to which she is entitled, the facts are such that the defendants did not owe [her] a duty of care.

[(Internal quotation marks omitted).]

On appeal, plaintiffs argue primarily that by removing the snow from their driveway but not their sidewalk, defendants implicitly invited Joan to enter their property to walk across the driveway. Joan contends that this conduct changed her legal status from trespasser to licensee and therefore defendants owed her a duty of care to warn of known dangerous conditions. We disagree.

"Under the common law of premises liability, a landowner owes increasing care depending on whether the visitor is a trespasser, licensee or social guest, or business invitee."1 Sussman v. Mermer, 373 N.J. Super. 501, 504 (App. Div. 2004). "The licensee is permitted to come upon the property . . . ." Rowe, supra, 209 N.J. at 43 (emphasis added). On the other hand, "[t]he trespasser is neither invited nor suffered." Ibid. (internal quotation marks omitted). An "'owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge and of which the guest is unaware.'" Id. at 44 (quoting Hopkins, supra, 132 N.J. at 434). However, "'[t]he duty owed to a trespasser is relatively slight. A landowner, under most circumstances, has a duty to warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily harm to a trespasser.'" Ibid. (emphasis added) (quoting Hopkins, supra, 132 N.J. at 434).

It is well-settled that residential property owners do not owe a duty of care to remove snow from abutting sidewalks. Luchejko v. City of Hoboken, 207 N.J. 191, 201 (2011). Furthermore, "if a sidewalk ha[s] been cleared and the melting snow subsequently fr[eezes] into a layer of ice, the 'refreeze' would not be an element of danger or hazard other than one caused by natural forces." Ibid. (internal quotation marks omitted).

Here, Joan was not a licensee or social guest of defendants because defendants did not permit her to use their property. Rowe, supra, 209 N.J. at 43. Joan conceded that her only connection to defendants was their dogs, that defendants "rarely" walked their dog, and that the dogs played with each other "[o]nce in a great while." Moreover, plaintiffs do not point to evidence in the record indicating that defendants ever permitted Joan onto their property, either explicitly or implicitly. As such, Joan was a trespasser. Ibid. Defendants needed to warn Joan only of artificial conditions, id. at 44, which do not include the "refreeze" from melted snow, Luchejko, supra, 207 N.J. at 201. Therefore, defendants did not owe Joan a duty of care.

A

1 Because we find that plaintiff is a trespasser, we need not perform a full duty analysis pursuant to Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). See Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012) (stating that "[w]here the status of the plaintiff, vis- -vis a landowner, does not fall into one of the pre-determined [premises liability] categories," the court must conduct a Hopkins analysis). Nonetheless, even if we were to apply the Hopkins factors, we find no greater duty of care required than the duty owed to a trespasser.