LAURENCE MORRISSEY v. INLAND CONTAINER CORP.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3510-05T53510-05T5

LAURENCE MORRISSEY,

Plaintiff-Appellant,

vs.

INLAND CONTAINER CORP.,

Defendant-Respondent.

________________________________

 

Submitted September 27, 2006 - Decided November 9, 2006

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

L-2325-04.

Drazin and Warshaw, attorneys for appellant (Steven L. Kessel, on the brief).

Dickie, McCamey & Chilcote, attorneys for respondent (Jeffrey H. Quinn, on the brief).

PER CURIAM

Plaintiff Laurence Morrissey appeals from the February 17, 2006 order granting summary judgment in favor of defendant, Inland Container Corp., dismissing plaintiff's complaint with prejudice. We affirm.

The basic facts are largely undisputed. Plaintiff is a paving contractor who performs snowplowing during the winter. Defendant conducts its business enterprise from its plant on property which defendant owns. The plant is surrounded by a graded but unpaved parking lot. As part of defendant's business operations, heavy trucks regularly traverse the area causing depressions and potholes throughout the lot. Defendant entered into a contract with plaintiff to perform snow removal operations on the lot. Plaintiff was aware of the condition of the lot and had approached defendant with proposals to repave it.

On January 5, 2004, plaintiff was on the premises to plow the snow and fell while preparing to start the operation. In his deposition, plaintiff described the circumstances surrounding the fall:

I was getting the truck started, the dump trucks. I was going around the truck and I didn't know there was a hole that had froze over with fresh powdered snow on top and then I went down like a ton of bricks in a half a second.

When asked upon what he fell, plaintiff stated:

Powdered snow on a little lake, little -- it's one -- there's patches all over, but all those holes that filled with water were booby traps and with the powdered snow on top, you know, if it was -- maybe if it was wet it wouldn't have been so bad. Being it was powdered, I went shoop. It was half a second or something and I was down.

. . . .

My feet slipped from under me.

Finally, when asked whether the hole in the ground had been filled with snow, plaintiff responded:

Filled with -- it froze over.

. . . .

It filled with ice with water then it froze and then the snow came on top of it and you couldn't see where there was a hole or not.

There was no indentation or anything where you could see. The hole must have filled with water and then everything was level.

In granting summary judgment, the motion judge concluded that defendant did not breach any duty to plaintiff because the hole did not cause the fall, the dangers inherent in the condition of the parking lot were well-known to plaintiff, and the injury plaintiff sustained was a "risk incidental to the work plaintiff was hired to perform."

Plaintiff raises the following points on appeal for our consideration:

POINT I

THE MOTION JUDGE INAPPROPRIATELY MADE A FACTUAL DETERMINATION ON A SUMMARY JUDGMENT AS TO THE CAUSE OF PLAINTIFF'S FALL.

POINT II

IT IS NOT NECESSARY UNDER [RULE] 4:46-2 FOR A PARTY OPPOSING A SUMMARY JUDGMENT MOTION TO ENUMERATE AN ADMISSION OF PARAGRAPHS IN A STATEMENT OF MATERIAL FACTS THAT ARE NOT IN DISPUTE.

The standard of review of a trial court's grant of summary judgment is the same as that employed by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The ultimate question in a summary judgment motion is whether upon a review of the pleadings, deposition testimony and other competent evidence presented, in a light most favorable to the non-moving party, a rational fact-finder could 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). If the evidence presents a sufficient disagreement to require submission to a jury, the motion must be denied. Id. at 533. On the other hand, if the evidence, when viewed favorably towards the non-moving party, is so one-sided that the moving party must prevail as a matter of law, then summary judgment is appropriate. Ibid.

Plaintiff argues that Inland is liable because his fall and subsequent injuries were due to a negligently created hole into which he fell. Defendant contends plaintiff's fall was caused by ice and snow, conditions which were inherent risks of the job he was hired to perform. Thus, the material issue here pertains to the circumstances surrounding the fall, whether plaintiff slipped when his foot went into a hole concealed by ice and snow or whether plaintiff fell over a pothole that had been filled, albeit with snow and water that subsequently froze. If the former, then a question arises as to whether the defendant breached its "non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers." Kane v. Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996). If the latter, then defendant is permitted to assume that plaintiff, as an independent contractor, is "sufficiently skilled to recognize the dangers associated with [his] task and [would therefore] adjust [his] methods accordingly to ensure [his] own safety." Rigatti v. Reddy, 318 N.J. Super. 537, 542 (App. Div. 1999) (quoting Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457, 463 (App. Div. 1999)).

In ruling for Inland, the motion judge found, contrary to the argument advanced by plaintiff's counsel, that the hole was not the cause of the fall. In his deposition, plaintiff testified that the hole was covered with ice and snow, that the hole was level, and that there were no indentations. From this testimony, we conclude, as did the motion judge, that no reasonable jury could find that the hole caused the injury plaintiff sustained. In addition, because plaintiff's fall was caused by the snow and ice, the very condition plaintiff was hired to remove, the motion judge correctly ruled that defendant was under "no duty to protect . . . [plaintiff] . . . from the very hazard created by doing the contract work." Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App. Div.), certif. denied, 146 N.J. 569 (1996) (quoting Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 67 (App. Div. 1986).

As a contractor paid to remove the ice and snow on which he slipped and fell, plaintiff was aware (or should have been aware) of the risks and dangers, particularly, that ice, no matter how formed on defendant's lot, could cause one to slip and fall. Cassano v. Aschoff, 226 N.J. Super. 110, 115 (App. Div.), certif. denied, 113 N.J. 371 (1988) (quoting Donch v. Delta Inspection Servs., Inc., 165 N.J. Super. 567, 574 (Law Div. 1979).

Affirmed.

 

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A-3510-05T5

November 9, 2006