ARLENE HOLMES v. INCAA-CARROLL STREET HOUSES CORP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ARLENE HOLMES,

Plaintiff-Appellant,

v.

INCAA-CARROLL STREET HOUSES

CORP, VMC MANAGEMENT,

Defendants-Respondents.

June 2, 2015

Submitted October 29, 2014 Decided

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-543-12.

Peter N. Davis & Associates, attorneys for appellant (Nicholas Barone, on the brief).

Gregory P. Helfrich & Associates, attorneys for respondents (John F. O'Donnell, on the brief).

PER CURIAM

Plaintiff Arlene Holmes was a tenant at an apartment complex owned and operated by defendants INCAA-Carroll Street Houses Corp and VMC Management, when she fell on an accumulation of snow outside of her apartment. She now appeals from the November 15, 2013 grant of summary judgment to defendants dismissing her complaint for personal injuries resulting from the fall. Summary judgment was granted on the basis that defendants' duty of care did not require snow clearance at the time the accident occurred. We affirm, concluding that defendants had no duty to act in the midst of an ongoing snow storm.

I

We describe the circumstances, viewing the facts in the light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Between 10:00 and 11:00 a.m. on February 26, 2010, plaintiff walked approximately three feet from her door when she slipped and fell, sustaining injuries. She was attempting to make her way to her car, located in the building's parking lot, in order to drive to a local drugstore to refill a prescription.

When deposed, plaintiff said that when she walked outside, the snow accumulation reached the tops of her boots. Although it had snowed the prior day, it was not snowing when she awakened that morning at approximately 7:00 a.m. Plaintiff initially described the area where she fell as a walkway, however, when presented with a map of the complex, she indicated she fell on a lawn or grassy area.

Plaintiff's son attempted to obtain ambulance service to take plaintiff to a hospital to attend to her injuries, but the ambulance refused because of the condition of the roadways. Plaintiff acknowledged at deposition that the streets were not cleared until the day following her fall, February 27, when she drove herself to the doctor's office to be examined.

In support of their motion for summary judgment, defendants submitted an expert's meteorological report, including data gathered from various airports in the immediate area. The report described the weather on the date in question as "periods of snow [that] tapered off to flurries by afternoon." A winter storm watch was in effect that day, and the report summarized that "[t]he steady to[] heavy at times snow lightened up in intensity after 6:00 a.m., but continued to fall and accumulate into the mid-day hours. Around the time of the slipand-fall incident, 11:00 a.m., light snow was falling with a temperature of 30-31 degrees." According to the report, the winter storm began on February 25 between 3:30 and 4:30 a.m. and persisted through and after mid-day on February 26. A winter storm warning remained in effect until the morning of February 27.

The Law Division judge premised his decision on the report, accepting defendant's argument that pursuant to Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993), to impose a duty on the landlord to clear the walkway in the midst of a snow storm would violate "an abiding sense of basic fairness under all of the circumstances in light of the considerations of public policy."1

The judge noted that the question of whether a landlord owes a duty of care to maintain private walkways in a reasonably safe condition is fact-sensitive, controlled by whether the imposition of such a duty would be reasonable and fair. He ruled that "it would be unreasonable to find that defendant's duty of care [included] clear[ing] the pathway of snow accumulating during an ongoing snowstorm."

The judge granted summary judgment to defendants because, other than her deposition testimony, plaintiff proffered no competent evidence to refute the expert's report regarding weather conditions the morning of the fall. Acknowledging that pursuant to Brill, the non-moving party on a summary judgment application is entitled to the benefit of all favorable inferences, the judge nonetheless concluded that the proofs in this case would lead a jury to reach only one conclusion. The expert's report was dispositive on the issue, because it included actual snowfall readings that accumulated that morning in the area. It would therefore be unreasonable to find that defendants had a duty to clear snow from the walkways because those steps could not have been undertaken during an ongoing severe storm. Therefore, the judge decided defendants owed plaintiff no duty of care.

II

In reviewing the grant or denial of summary judgment, we apply the same standard which governs the trial court under Rule 4:46-2(c). Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011); Brill, supra, 142 N.J. at 539-40; Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). Summary judgment is granted where the record demonstrates "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry v. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010); Brill, supra, 142 N.J. at 540. Rulings on questions of law are not entitled to particular deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Defendants rely on appeal, as they did before the Law Division judge, on Jimenez v. Maisch, 329 N.J. Super. 398 (App. Div. 2000). In that case, a mail carrier slipped and fell on a walkway leading to the defendant's home as he was delivering mail. Id. at 400. "Upwards of thirty inches of snow had fallen in the area during a thirty-seven hour span . . . ." Ibid. We concluded in that case that in addition to the very severe snow storm that resulted in a state of emergency being in effect, the risk of walking in those conditions was "obvious to plaintiff." Id. at 403.

In this case, approximately fifteen inches of snow had fallen since the prior morning. Just as in Jimenez, this plaintiff knew about the snow before stepping outdoors, and once at the door, could clearly see the hazardous conditions in which she had to walk. The snow storm was severe enough that, according to her own description of the day's events, she was unable to obtain medical attention until the following day because even the roadways had not been cleaned.

Accordingly, we agree with the judge that, in light of the expert's report, although the fact of whether it had been snowing that morning was disputed, the dispute was not material. Since there was no genuine issue of material fact in dispute, the moving party was entitled to judgment as a matter of law.

Affirmed.

1 We do not agree with the second reason for the judge's decision, that plaintiff fell on a snow-covered grassy area as opposed to the walkway. However, we decide appeals from judgments, not statements of reasons. See Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974); Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968).