DOROTHY FELDMAN v. ERIC'S NURSERY AND GARDEN CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOROTHY FELDMAN, Executrix of the

Estate of Robert Feldman, Deceased,

and DOROTHY FELDMAN, Individually,

Plaintiffs-Appellants/

Cross-Respondents,

v.

ERIC'S NURSERY AND GARDEN CENTER,

Defendant-Respondent/

Cross-Appellant,

and

TEMPLE BETH SHALOM,

Defendant/Cross-Respondent.

______________________________________________

November 25, 2014

Argued September 30, 2014 Decided

Before Judges Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4967-10.

Scott G. Leonard argued the cause for appellants/cross-respondents (Leonard & Leonard, attorneys; Mr. Leonard, of counsel; Michael F. Wiseberg, on the brief).

Peter S. Cuddihy argued the cause for respondent/cross-appellant (Margolis Edelstein, attorneys; Mr. Cuddihy and Colleen M. Ready, on the brief).

Kathleen T. Eustace argued the cause for cross-respondent (Cascio & Callegher, attorneys; Ms. Eustace, on the brief).

PER CURIAM

Plaintiff, Dorothy Feldman, as executrix of the Estate of Robert Feldman, deceased, and on her own behalf appeals from the order granting summary judgment to defendant, Eric's Nursery and Garden Center (Eric's), as well as the order denying the motion for reconsideration. Eric's cross-appeals from the order granting summary judgment to Temple Beth Shalom (TBS) based on charitable immunity. The trial court found there were no genuine factual disputes and, as a matter of law, Eric's owed no duty to plaintiff. The trial court also found, as a matter of law, TBS was afforded immunity in accord with the New Jersey Charitable Immunity Act (CIA). N.J.S.A. 2A:53A-7(a). We affirm.

On February 20, 2010, Robert Feldman was attending his grandson's Bar Mitzvah at TBS. As he was walking through the parking lot, he slipped, fell on his back and struck his head. On February 25, 2010, Mr. Feldman died from injuries sustained by the fall.

Prior to the incident, TBS had entered into a written contract with Eric's for snow removal services and chemical treatments to TBS's roadways, sidewalks and parking lots for the period encompassing the winter of 2009-10. The contract included the following clause

After the initial removal services are complete, Eric's Nursery will not monitor the conditions of the site (melt-off/re-freeze, etc.), unless requested by the owner, and allowed to take necessary action when dangerous conditions exist.

There was a snowfall of 27.3 inches on February 5 and 6 and a snowfall of seventeen inches on February 9 or 10. On February 16 there was a snowfall of approximately one inch. It did not snow again before plaintiff's fall. The February 16 snowfall was described in the February 18 invoice from Eric's to TBS

Storm History 2/16/10: Snowfall began approximately 8AM with temperatures in the upper 20's. Snow fell until approximately 1pm, with accumulation of approximately 1". Overnight temperatures in the early morning hours of 2/17 were in the low 20's. Wet and melt-off areas re-froze.

Following the snowfall, Eric's applied rock salt to the parking lots and roads on February 17, 2010, at 7:15 A.M. TBS did not contact Eric's to return and treat the parking lot within the three days prior to the incident.

The manner in which snow removal was to be performed was specified in the deposition of TBS director, Eric Jacobs.

Q. Would [Eric's] just come on their own after the storm and treat the parking lot without you calling them?

A. Yes.

Q. Was that a pattern that had existed for the few years you had been using [Eric's]?

A. Yes.

. . . .

Q. Was that your understanding when you hired [Eric's], that's what they would do?

A. Yes.

Jacobs testified Eric's would come back after a snow event and salt areas that required treatment. According to Jacobs, the manner and scope of treatment in those events was at Eric's discretion. Jacobs testified that if there was any melting and re-freeze, TBS "could contact Eric's and request that Eric's come back out." Referencing the no monitoring clause, Jacobs stated that he was "not sure that part of the contract was fully followed by Eric's or [TBS]."

Jacobs further testified that the TBS maintenance staff would address any melt/re-freeze issue themselves if it were in the front of the building or main entrance depending on the severity and location of the re-freeze. The parking lot, according to Jacobs, was expected to be maintained by Eric's after being called by the TBS maintenance staff

I think it had more to do with how [Eric's] felt the removal process was going and when the snow was actually falling, because it's important for us on a Saturday to have the lot cleared before services start, and it's important for us during the week to have the lot cleared before the staff and the preschool families come.

Invoices from the weeks prior to Mr. Feldman's fall evidence that Eric's returned to TBS's parking lot on its initiative to treat the area with rock salt or calcium chloride.

Jacobs testified in the days preceding the incident he did not observe any condition in the parking lot that would require Eric's to treat. Jacobs testified there was not an expectation that Eric's would return on a daily basis to TBS to monitor the parking lot for melting and re-freezing after Eric's had performed services. Jacobs further testified he could not recall any occasion in which ice had reformed in the parking lot due to a melt and re-freeze, where Eric's came to the property on its own accord to perform services. After work was performed by Eric's on February 17, no one from TBS contacted Eric's for additional services and Eric's performed no additional services.

In his deposition, Eric Solomon, Eric's owner, testified that Eric's returned to TBS's parking lot without being called to monitor due to snow accumulation which would generate "issues" at the site

Q. Would someone have gone and actually looked at the site or you just know we are to go back tomorrow or the next day

A. We just know that

Q. - or how was that determined?

A. . . . We would just know that the conditions on every other property that we are doing, it's a learned thing. More than likely if I need it on Site A, B, C and D, I am going to need it on Site F as well.

Q. The Temple didn't have to call you and say, "On February 8 come out and salt?"

A. That's correct, they wouldn't.

Q. Was that the basis of your agreement with them that you would come out when you felt it was necessary?

A. No. If we knew it was necessary, the answer is yes. If there was a situation where several days after a storm they had a condition that they felt was unsafe, they have our cell numbers, our office numbers and any way possible to reach us, and we would treat them. . . . We cannot monitor every single site 24 hours a day. It's impossible.

After the accident, TBS facilities manager, Steven Magowan, contacted Eric's and informed them someone had fallen in the parking lot. Eric's treated the lot upon Magowan's request.

Plaintiff retained John A. Allin as their liability expert. According to Allin, Eric's was negligent by failing to monitor the condition of the parking lot which caused the dangerous condition on the date of the accident.

On July 6, 2012, TBS filed a motion for summary judgment arguing it was entitled to immunity based upon charitable immunity. In response thereto, Eric's filed opposition, as well as a cross-motion seeking summary judgment on its own behalf on the claims of the plaintiff. On the record established by the motions and after applying relevant case law, the court found that Eric's was not legally liable to plaintiff. The court further found that TBS was not legally liable to Eric's on its cross-claim.

As to the cross-motion, the court stated

There have been snippets of testimony that were cited to the court and I've read through the deposition transcripts but clearly the understanding of the parties was that when there was a snow event, Eric's was responsible to go out and take the action to clear the snow away. That they did. There's no dispute about that. The question becomes whether there's some continuing obligation that Eric's would have. Looking at the contract, I can find no such responsibility.

. . . .

If there were a problem, the Temple could call. Eric's would be responsive. Eric's there has been no showing that Eric's when they came out on the 16th did not properly treat. The Temple testimony indicated that they were satisfied after the event was cleared on the 16th. Based upon the fact that I cannot find a duty that would obligate under the rubric on the Hoffman's case in the determination of a duty is a responsibility of the court, the fact that I can find no duty that would imposed upon Eric's under the facts of this situation, I have no alternative but to grant Eric's motion for summary judgment also.

On September 25, 2012, plaintiff filed a motion for reconsideration. Plaintiff argued that the court strictly interpreted the proposal between Eric's and TBS and gave the moving party the benefit of inferences over the non-moving party. Plaintiff also argued the court added requirements to the contract even though its language was ambiguous. The court denied plaintiff's motion, holding there was no contractual duty for Eric's to continually return to the TBS parking lot to monitor for re-freeze.

The court stated

[I]t's certainly of some moment that the storm for which [Eric's] provided services was several days before this incident. And on the day of the incident it was clear that Eric's had not been called back to provide any services. And I think there is a confusion on the part of the plaintiff regarding Eric's responsibility to respond when an initial storm occurred versus doing some kind of an insurance service to constantly monitor or go back.

The contract, clearly, doesn't indicate that. The testimony of the parties certainly did not indicate that. And the court, accordingly, will deny the motion for reconsideration.

On appeal, plaintiff argues that the summary judgment motions were not timely and did not comply with Rule 4:46-2 which requires a statement of material facts. Plaintiff argues there was ambiguity regarding when Eric's was to monitor the parking lot and who would decide the monitoring schedule, and the question of duty should have been left for a jury. Plaintiff supplemented these arguments in their reply, arguing Eric's assumed removal responsibility, and thus owed a duty to plaintiff. Plaintiff argued since Eric's was responsible for the initial removal of snow, it was in the best position to assess any melt/re-freeze conditions thereafter.

Eric's argues that Rule 4:46-1 provides the court with the authority to relax the thirty-day requirement, plaintiff was not prejudiced by the late filing by Eric's, and the court properly held there was no duty by Eric's to monitor. On the cross-appeal, Eric's argues the court erred in dismissing Eric's cross-claim for indemnification against TBS. Notwithstanding the CIA, TBS had a non-delegable duty to protect invitees against known and reasonably discoverable dangers.

TBS argues the court did not err based upon its application of the CIA in dismissing Eric's cross-claim for indemnification.

We first review plaintiff's argument whether the court properly considered Eric's cross-motion for summary judgment predicated upon a failure to comply with Rule 4:46-1 and Rule 4:46-2. Pursuant to Rule 4:46-1, "[a]ll motions for summary judgment shall be returnable no later than 30 days before the scheduled trial date . . . ." Rule 4:46-2 requires a statement of material facts be served with the motion. Plaintiff asserts the court erred by its consideration of Eric's cross-motion which was non-compliant as not timely filed and without the statement of material facts.1

The court exercised its discretion in relaxing the time constraints of Rule 4:46-1 and by not denying the cross-motion without prejudice for failure to file the required statement of material facts. Rule 1:1-2 is a catch-all relaxation provision that provides that "any Rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." Moreover, "decisions should be made where possible on the merits." Tyler v. N.J. Auto. Full Ins. Underwriting Ass'n., 228 N.J. Super. 463 (App. Div. 1988). Also, plaintiff did not allege prejudice relating to these infirmities. While we do not condone the filing of motion papers out of time or in non-compliance with the Rules, in light of all the circumstances, the judge did not abuse his discretion.

We next consider whether there is a material factual dispute to warrant denial of the summary judgment motions. We review the court's grant of defendant's motion for summary judgment de novo, applying the same legal standard as the court under Rule 4:46-2(c). Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue as to a material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995). Plaintiff's version of defendant's conduct, if supported by competent evidence, is accepted as true and plaintiff is given the benefit of all reasonable inferences from the facts. Baliko v. Stecker, 275 N.J. Super. 182, 186 (App. Div. 1994). If there exists a genuine issue of material fact, summary judgment must be denied. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Indeed, even without submitting supporting affidavits, "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 by McPherson v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523).

With these principles in mind, considering the evidence presented in the light most favorable to the plaintiff, the record supports a finding that Eric's would perform follow-up services after snow removal without a request by TBS. Therefore, it may be fairly argued that on those occasions, Eric's voluntary action could be actionable.2 See Nelson v. Great Atlantic and Pacific Tea Co., 48 N.J. Super. 300, 307 (App. Div. 1958).

Model Jury Charge (Civil) 5.10C, "Undertaking Voluntarily Assumed" provides

One who in the absence of a legal obligation to do so voluntarily undertakes to render a service for protection of the safety of another may become liable to him/her for failure to perform, or failure to exercise reasonable care in the performance of that service. His/her responsibility, however, is only commensurate with the extent of his/her voluntary undertaking, and his/her liability does not arise unless it appears from the evidence that his/her negligence had a proximate causal relationship to the occurrence of the mishap, which brought about the injuries.

Further, lack of privity of contract would not be an absolute bar to plaintiff's claim. In Aronsohn v. Mandara, 98 N.J. 92 (1984), the Court reviewed the principles that determined 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 (citations omitted).]

Under this analysis, the relevant inquiry is whether Eric's performed services, contractual or voluntary, that were the proximate cause of the unfortunate accident. Critical to our determination is the absence of proof that Eric's services performed on February 17, 2010, were in any manner insufficient or carelessly performed. In this case it is undisputed the requested services of Eric's were completed on February 17, 2010. Thereafter, Eric's was not requested, nor required by contract, to monitor the site. During the three days without snowfall that preceded the accident, Eric's did not voluntarily monitor the site.

Plaintiff's expert report (which the court rejected as a "net opinion") found fault with Eric's for not monitoring the conditions of the site after work performed on February 17. We find the opinion, regardless of other deficiencies, is not rooted in the established record. It is undisputed that TBS neither expected nor anticipated Eric's would perform monitoring services after the February 17 date.3 The court found there was no "fault" attributable to Eric's as there was no contractual duty to perform monitoring services. We agree. In applying the Brill standard to the facts of this case, we conclude there is no basis to reverse the order granting summary judgment.

Notwithstanding that our decision to affirm the order granting summary judgment renders the cross-appeal moot, we nonetheless briefly address Eric's argument that the court erred in dismissing its cross-claim for indemnification against TBS.

The CIA states

No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall . . . be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.

When the New Jersey Supreme Court abrogated N.J.S.A. 2A:53-7, the doctrine of charitable immunity in the late 1950's, the Legislature responded by enacting N.J.S.A. 2A:53A-7 to -11 to restore charitable immunity as it existed at common law. Tonelli v. Bd. of Educ., 185 N.J. 438, 443-44 (2005). While the purpose of charitable immunity at common law was to "avoid diverting charitable trust funds to non-charitable purposes in order to live up to the reasonable expectations of the benefactor[,]" Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J. Super. 317, 321 (App. Div. 1990), today our courts recognize that the purpose of the CIA is "broader than simply preserving charitable trust funds and include[s] the encouragement of altruistic activity." Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 341 (2003). The CIA's grant of immunity is to be applied liberally. N.J.S.A. 2A:53A-10.

There is a three-prong test to determine whether a defendant entity qualifies for immunity

[A]n entity qualifies for charitable immunity when it "(1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works."

O'Connell v. State, 171 N.J. 484, 489 (2002) (quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)).

TBS, the entity claiming the benefit of the CIA, is a synagogue. Mr. Feldman was a member of the congregation and was attending a Bar Mitzvah on the date of the accident. On these facts, when applied to controlling decisions of law, the court found that Eric's premise for liability ("non-delegable duty") would "eviscerate" the CIA. We agree.

Affirmed.

1 During oral argument, we noted the cross-motion was non-germane and, therefore, did not relate back to the original motion filed by TBS. R. 1:6-3(b).

2 Eric's argues that it performed follow-up services without request by TBS but they related only to a "specific snow event."

3 Nothing in the record suggests that Eric's agreed to orally modify the "no monitoring" provision of the contract or that there was mutual assent or additional consideration to support modification. In the absence thereof, the original terms of the contract cannot be deemed modified. County of Morris v. Fauver, 153 N.J. 80, 99-100 (1998).