ELIZABETH KRUPKA v. CHERRY HILL TOWERS, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4570-10T1

ELIZABETH KRUPKA,

Plaintiff-Appellant,

vs.

CHERRY HILL TOWERS, LLC

T/A VIKING ASSOCIATES,

Defendant-Respondent.

__________________________________

Submitted April 16, 2012 Decided May 22, 2012

Before Judges Parrillo and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1736-08.

Bennie & Bennie, P.C., attorneys for plaintiff (Joseph J. Bennie and Thomas J. Lamaina, on the briefs).

Kennedy, Campbell, Lipski & Dochney, attorneys for respondent (Frank A. LaSalvia, on the brief).

PER CURIAM

This is a premises liability action involving black ice. Plaintiff, Elizabeth Krupka, a tenant at a mid-rise apartment complex owned by defendant, Cherry Hill Towers t/a Viking Associates, slipped and fell on a sidewalk abutting defendant's property. She sued defendant and following a jury verdict in her favor, the court, on defendant's motion, entered a judgment notwithstanding the verdict (NOV), having earlier reserved decision on defendant's motion for a directed verdict at the close of plaintiff's case. Plaintiff now appeals and we affirm.

On April 16, 2007, before leaving for work, plaintiff observed from her sixth floor apartment window a little bit of snow accumulation on the grass, cars and windshields. The sidewalks, however, appeared clear. There was a wintry mix of precipitation, the result, she assumed, of a Nor'easter she had earlier heard reported on the radio. It had not snowed or rained the day before however.

Plaintiff left her apartment complex for work at 8:00 a.m. While walking to her car, she did not see any ice on the sidewalk despite looking "very clearly very carefully." Approximately fifteen to twenty feet down the sidewalk, plaintiff suddenly slipped and fell. As she was getting up, she felt a slippery surface that she identified as ice.

Despite sustaining knee injuries, plaintiff proceeded to work but not before approaching a maintenance man with whom she was familiar, but did not identify, to tell him someone should treat the sidewalks so that no one else gets hurt. Nevertheless, plaintiff did not report the incident to defendant until two months later when she met with defendant's property manager, Lorna Martin, and maintenance supervisor, Jerry Hummel.

Defendant admitted responsibility for maintaining the sidewalk abutting its property. A brochure issued to tenants by defendant describes twenty-four hour community attendants and emergency maintenance on the property. According to Hummel, a maintenance crew performs early morning inspections to ensure there is no ice or snow on the sidewalk or the parking lot as part of defendant's regular policy and procedure with respect to inclement weather. If ice or snow were detected, management would immediately respond. In addition, defendant contracted with an outside company, Eric s Lawncare, Inc., to plow the parking lots at the complex. According to its owner, Eric Solomon, there were no invoices for April 2007 related to snow removal, and no services were necessary for April 16, 2007 based on weather conditions.

At the close of plaintiff's case, defendant moved for a directed verdict and the court reserved decision. At the conclusion of the trial, the judge instructed the jury in pertinent part:

[F]or the defendant to be liable for the plaintiff s injuries the plaintiff must establish, one, that the property was in a defective condition. In this case she must prove to your satisfaction that, indeed and in fact, there was ice on the sidewalk.

Two, she must prove to you that the existence of the ice on the sidewalk was known to the landlord, was known to Cherry Hill Towers, or should have been known by them before the accident occurred.

And three, she must prove that Cherry Hill Towers, after knowing or should have known about the problem, failed to act reasonably under the circumstances. And four, that the slip and fall on the ice [was], in fact, the proximate cause of the plaintiff s injuries.

The jury then returned a verdict in favor of the plaintiff for $55,000, following which defendant moved for judgment NOV. Acknowledging its error in allowing the case to go to the jury, the court granted the motion, reasoning in part:

Plaintiff has the burden to establish that the existence of the defective condition was known, or should have been known by the landlord before the plaintiff s injury.

There was no testimony whatsoever touching on what the defendant knew or should have known before the plaintiff s injury. . . .

The second prong of the requirement in the burden of proof, in my view, has not been met at all. There s not a question of fact for a jury to determine. There were no facts presented upon which a jury could rely, even if accepted. I should have done it at the close of plaintiff's case. I'm forced to do it now. The motion to dismiss will be granted, as of the close of the plaintiff's case.

On appeal, plaintiff raises the following issues:

I. JUDGMENT NOTWITHSTANDING THE VERDICT IS IMPROPER BECAUSE, IN ACCORDANCE WITH HIGH DEFERENCE TO VERDICTS, THERE ARE LEGITIMATE INFERENCES BY WHICH THE JURY VERDICT SHOULD REMAIN INTACT.

II. JUDGMENT NOTWITHSTANDING THE VERDICT SHOULD NOT HAVE OCCURRED BECAUSE ISSUES OF CREDIBILITY ARE SOLELY FOR THE JURY TO DECIDE.

III. THE JURY VERDICT SHOULD REMAIN INTACT BECAUSE NOTICE CAN BE DETERMINED BY A JURY WITH THE TESTIMONY AND FACTS PRESENTED.

We find no merit to these contentions. R. 2:11-3(e)(1)(E).

The evidential standard governing a motion for judgment NOV under Rule 4:40-2(b), is the same as that for a motion for judgment at the close of plaintiff's case, Rule 4:37-2(b), and a motion for judgment at the close of all evidence, Rule 4:40-1:

[I]f accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . .

[Estateof Roach v. TRW,Inc., 164 N.J. 598, 612 (2000) (quoting Sonsof Thunder, Inc. v.Borden, Inc., 148 N.J. 396, 415 (1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969))) (citations and quotations omitted in original).]

The trial judge must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict . . . .'" Dolson, supra, 55 N.J. at 6 (quoting Kulbacki v.Sobchinsky, 38 N.J. 435, 445 (1962)). "The purpose of JNOV is 'to correct clear error or mistake by the jury,' and not for the judge to 'substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion[.]'" Barber v.ShopRite of Englewood &Assocs., 406 N.J. Super. 32, 52 (App. Div.) (quoting Dolson, supra, 55 N.J. at 6), certif. denied, 200 N.J. 210 (2009)).

On appeal, the standard of review is substantially the same. R. 2:10-1; Jastram v. Kruse, 197 N.J. 216, 230 (2008). The appellate court "must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Jastram, supra, 197 N.J. at 230 (quoting Feldmanv. Lederle Labs., 97 N.J. 429, 463 (1984)).

Applying these standards, and based on our review of the record, we are satisfied that the motion for judgment NOV was properly granted. We affirm substantially for the reasons expressed by the trial judge in his oral decision on April 20, 2011. We add the following comments.

While there is no duty for a residential landowner to keep adjacent sidewalks clear of snow and ice, Stewart v.104 Wallace St., Inc., 87 N.J. 146, 159 (1981), this exemption does not apply to apartment buildings. Ibid. Commercial landowners, as part of their general duty to maintain their property in reasonably safe condition for the use and enjoyment of their tenants, Dwyerv. Skyline Apartments,Inc., 123 N.J. Super. 48, 52-53 (App. Div.), aff d o.b., 63 N.J. 577 (1973), are responsible for maintaining the public sidewalks abutting their property in a reasonably safe condition. Mirzav. Filmore Corp., 92 N.J. 390, 393 (1983). That obligation includes the duty to keep abutting sidewalks clear of obstruction. Stewart, supra, 87 N.J. at 159-60. And for present purposes, "[n]o functional basis exists to differentiate an accumulation of snow or ice from other hazards." Mirza, supra, 92 N.J. at 395.

To find a breach of the duty delineated in Stewart, "[t]he test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in reasonably safe condition." Mirza, supra, 92 N.J. at 395-96 (footnote omitted). Additionally, "[t]he accident victim must also prove that the defective condition was a proximate cause of his injuries. Under some circumstances the pedestrian's conduct must be assessed to determine the existence of contributory negligence and its causal relationship to the mishap." Id. at 396 (citation omitted).

To prove a breach of this duty, then, plaintiff must demonstrate that defendant did not act in a reasonably prudent manner in remediating any snow or ice on its abutting sidewalks. A fall on ice connected with property which a defendant has a duty to maintain does not automatically bespeak a lack of reasonable care. Cf. Mazzilliv. Selger, 13 N.J. 296, 301 (1953). An essential ingredient, one that is missing from this record, is the identification of a defect of which the landlord had actual or constructive notice. Dwyer, supra, 123 N.J.Super. at 52-53.

Negligence in this context requires not only proof of the condition which caused the injury but that the condition was known or should have been known by the landlord prior to the occurrence, so that he had an opportunity to correct it.
 

Since his duty is not to insure the safety of tenants but only to exercise reasonable care, a landlord is liable only for injurious consequences to a tenant by reason of defects "of which he has knowledge or of defects which have existed for so long a time that . . . he had both an opportunity to discover and to remedy."

This basic element of actual or constructive notice in the area of landlord liability arising out of the duty to maintain and repair rented premises is ingrained in our law as a necessary prerequisite to a finding of negligence -- the failure to exercise reasonable care. An exception of course exists in cases where the landlord created the condition.

[Ibid. (internal citations omitted).]

Plaintiff here does not, and cannot, contend that there was actual notice of the "black ice" condition she alleges. The alleged "defect" was latent. There is no evidence in the record that defendant was notified of the ice on the sidewalk where plaintiff fell or that anyone else had fallen on any ice patch in the immediate vicinity. Therefore, in order to establish a jury issue on constructive notice, the record must support a rational finding that the ice had existed for such a period of time or was of such an obvious nature that it should have been discovered by defendant.

Constructive notice, of course, depends on the circumstances of each case. Here, there were no prior complaints of black ice to have alerted defendant to the latent condition. On the contrary, plaintiff herself observed only a small accumulation of snow on the grass, cars and windshields from her apartment window. The sidewalks were clear and en route to her car, she did not see any ice despite looking "very clearly [and] . . . carefully." Also, there is no proof in the record expert or otherwise that the ice had been present for such a period of time to have allowed for inspection and remediation, or was so obvious that defendant should have discovered it. In fact, there was no evidence of when the precipitation even began or the temperature on the morning of plaintiff's fall. Similarly lacking is proof that a special condition caused the icing to reoccur on a regular, predictable basis.

Absent sufficient evidence of defendant's actual or constructive notice of the allegedly defective condition, the trial judge properly granted defendant's motion for judgment NOV. The evidence of record, as well as the legitimate inferences therefrom, simply could not sustain a judgment in favor of plaintiff finding defendant liable.

A