JESSICA CARMONA v. WOODLANDS COMMUNITY ASSOCIATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JESSICA CARMONA,

Plaintiff-Appellant,

v.

WOODLANDS COMMUNITY ASSOCIATION and

SULPIZIO MASONRY GENERAL CONTRACTORS,

INC.,

Defendants-Respondents.

_____________________________________

Argued April 14, 2015 Decided July 10, 2015

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-10497-11.

Thomas F. Karpousis argued the cause for appellant (O'Brien, Belland & Bushinsky, attorneys; Mr. Karpousis, on the brief).

Mitchell S. Berman argued the cause for respondent Woodlands Community Association.

PER CURIAM

Plaintiff Jessica Carmona appeals from a Law Division order granting summary judgment to defendant Woodlands Community Association (Woodlands) and dismissing her personal injury complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

We view the facts from the record below in the light favorable to Carmona, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Carmona is a resident and owner of a condominium unit at The Woodlands. The management and upkeep of the 776 dwelling units in the complex are the responsibility of Woodlands.

During a major snow storm occurring between December 19 - 22, 2009, Woodlands hired an outside contractor, Sulpizio General Mason Construction, Inc. (Sulpizio), to remove snow and ice from the complex. After working all day on December 19, 20, and 21, Sulpizio was directed by Woodlands to stop working at 9:00 a.m. on December 22, when the storm had stopped.

When relieved from the job, Sulpizio informed Woodlands that more work was needed because of high winds causing snow drifts, and the possibility of snow and ice melting and re-freezing. Sulpizio further advised Woodlands on an invoice that "[a]dditional calcium is needed for daily refreezing. This service is available upon request and is needed due to existing hazardous condition." The hazardous condition was in reference to the possibility of someone falling if no additional deicing was done. According to Sulpizio's owner, the landing area, steps, and walkway to Carmona's unit were cleared approximately ten times by its workers during and following the storm by its workers.

After Sulpizio's services were concluded, Woodlands had two of its own employees spread salt and/or calcium chloride throughout the complex's landing areas, steps, and walkways from 8:00 a.m. to 4:00 p.m. on December 22 and 23. There was no deicing or salting of the premises during the night. On the morning of December 24, 2009, Carmona walked two steps out of her condominium's front door, slipped and fell on a sheet of ice, resulting in a compound fracture of her left leg and ankle.

Carmona subsequently sued Woodlands and Sulpizio alleging they were negligent in failing to remove snow and ice from outside of her condominium unit and public areas surrounding her unit. Upon completion of discovery, Woodlands filed a summary judgment motion. Sulpizio filed a cross-motion for summary judgment. Following oral argument, the motion judge issued separate Orders and Memorandums of Decision, pursuant to Rule 1:6-2(f), granting summary judgment to Woodlands, but denying summary judgment to Sulpizio. Carmona later settled her claims against Sulpizio.

In granting Woodlands summary judgment, the judge relied upon the immunity for ordinary negligence extended to condominium associations in suits brought by their unit owners for personal injuries. In accordance with N.J.S.A. 2A:62A-13, Woodlands' condominium association by-laws provide

The Association shall not be liable in any civil action brought by or on behalf of an Owner to respond in damages as a result of bodily injury to the Owner occurring on the premises of the Association except as the result of its willful, wanton, or grossly negligent act of commission or omission.

The judge found that there is no genuine dispute that Carmona's complaint only alleged ordinary negligence, and thus she was barred from suing Woodlands for ordinary negligence pursuant to N.J.S.A. 2A:62A-13 and the association's by-laws.

The judge further acknowledged that in opposition to Woodlands' motion, Carmona alleged for the first time gross negligence and wanton and willful conduct against Woodlands, without moving to amend her complaint. The judge, however, addressed the allegations, but rejected Carmona's argument. The judge ruled,

When considering [Woodlands'] conduct, the court is guided by the standard of Model Civil Jury Charge 5.12 ["Gross Negligence" (2004)] which requires a showing of "failure to exercise slight care or diligence." Here, there was no failure to address what appears to have been a major snow event and there was more than "slight care or diligence." [Woodlands] conducted itself as any reasonable condominium association would and made reasonable efforts to handle the conditions created by the snowstorm. There are no facts to support "gross negligence."

This appeal followed.

II.

We review a trial court's decision to grant or deny summary judgment de novo, Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013), utilizing "'the same standard [of review] that governs the trial court.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). Because our review is de novo, we "accord no deference to the trial judge's conclusions on issues of law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). Thus, the evidence must be viewed "in the light most favorable to the non-moving party" and must be analyzed to determine "whether the moving party was entitled to judgment as a matter of law." Mem'l Props., supra, 210 N.J. at 524 (citing Brill, supra, 142 N.J. at 523); see also R. 4:46-2(c).

On appeal, Carmona does not dispute that Woodlands is immune from claims of ordinary negligence, but argues that the motion judge erred in ruling that viewing the evidence in a light most favorable to her, no reasonable fact finder could find that her injuries were the result of Woodlands' grossly negligent conduct. Specifically, Carmona contends that Woodlands was advised by Sulpizio of the probability of snow and ice melting then re-freezing to create a hazardous situation but terminated Sulpizio's services and relied upon in-house employees to remediate the situation only during the day and not overnight. Carmona asserts that such conduct was indifferent to the hazardous condition, thereby constituting gross negligence under Banks v. Korman Assoc., 218 N.J. Super. 370, 373 (App. Div. 1987) (citations omitted). Carmona also contends that Woodlands acted willfully and wantonly in not clearing the complex of ice after 4:00 p.m. and before 8:00 a.m., as such conduct "is done with the knowledge that injury is likely to, or probably will result[;]" meaning acting "with reckless disregard for the safety of others." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178-79 (1999). We are not persuaded.

Viewing the facts in the light most favorable to Carmona, our de novo review convinces us that Carmona does not establish a prima facie case of gross negligence. Gross negligence is defined as "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct.'" Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421, 425 (Law Div. 2003) (citing Clarke v. Twp. of Mount Laurel, 357 N.J. Super. 362 (App. Div. 2003)). Gross negligence requires "indifference to consequences," Banks, supra, 218 N.J. Super. at 373, and may be equated with willful or wanton conduct. See Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 457 n.6, (App. Div. 2009), aff'd 203 N.J. 286 (2010). Gross negligence has also been defined as "reckless disregard of the safety of others[.]" In re Kerlin, 151 N.J. Super.179, 185 (App. Div. 1977) (citing State v. Linarducci, 122 N.J.L. 137 (Sup. Ct. 1939)).

Here, a rational fact finder could not find Woodlands' conduct constituted gross negligence by being indifferent or recklessly disregarding the welfare of its condominium owners. During the three-day snowstorm, Woodlands hired an outside contractor to provide continual snow and ice removal. After the storm subsided, Woodlands did not disregard the contractor's hazard warnings of re-freezing melted snow and ice. To provide safe passageways after the storm stopped, Woodlands had two of its employees salt the entire complex during the daytime for two full days prior to Carmona's fall.

Arguably, Woodlands may have been simply negligent for not providing overnight ice removal. But as noted, Woodlands is immune from ordinary negligence claims from its condominium owners. While the record reveals that the costs of continuing Sulpizio's snow and ice removal services impacted Woodlands' decision to cease its services, Carmona does not establish that Woodlands' conduct was grossly negligent. Woodlands continued to abate the hazards of re-freezing snow and ice after it relieved Sulpizio. There is no showing that Woodlands failed to exercise slight care or diligence in its effort to keep the complex safe. See Model Jury Charge (Civil), 5.12, "Gross Negligence" (2004)("Gross negligence is the want or absence of, failure to exercise slight care or diligence").

Nor is there any suggestion that Woodlands acted in willful or wanton disregard for Carmona's safety. See G.S., supra, 157 N.J. at 178-79. Had Woodlands done nothing at all, we would be considering a different situation. Since that is not the case, granting summary judgment was appropriate.

Affirmed.