LINDA GLONEK v. WENDY RESIDE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03824-12T4

LINDA GLONEK and RONALD GLONEK,

her husband,

Plaintiffs-Appellants/

Cross-Respondents,

v.

WENDY RESIDE,

Defendant-Respondent/

Cross-Appellant.

_____________________________________

September 10, 2014

Argued December 18, 2013 - Decided

Before Judges Grall, Waugh & Nugent.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No.

L-131-11.

Michael D. Mumola argued the cause for appellants/cross-respondents (Kalavruzos, Mumola, Hartman & Lento, attorneys; Mr. Mumola, of counsel; Anthony J. Monaco, on the brief).

David B. Wright argued the cause for respondent/cross-appellant (Amy F. Loperfido & Associates, attorneys; Mr. Wright, on the brief).

PER CURIAM

In this personal injury action, plaintiffs Linda Glonek and Ronald Glonek appeal from a Law Division order that granted defendant Wendy Reside's motion for an involuntary dismissal under Rule 4:37-2(b). Defendant cross-appeals from an order that denied her summary judgment motion. Rule 4:37-2(b) permits a defendant to move for a dismissal of the action after the plaintiff has "completed the presentation of the evidence on all matters other than the matter of damages[.]" Here, defendant made her motion for an involuntary dismissal and the court granted it before plaintiffs had completed their presentation of evidence on liability and proximate cause. Moreover, the summary judgment record established a triable issue as to defendant's negligence and causation. Accordingly, we affirm the order denying defendant's summary judgment motion, reverse the order granting defendant's motion for an involuntary dismissal, and remand the matter for trial.

This case arose on a winter evening, after it had snowed, when plaintiff Linda Glonek fell on a sidewalk abutting defendant Wendy Reside's home. Plaintiff filed a personal injury action seeking compensation for the injuries she sustained as a result of the fall.1 Defendant filed an answer and the parties exchanged discovery. Following the exchange of discovery, defendant filed a motion for summary judgment, which the court denied. The case proceeded to trial.

Plaintiff developed the following facts at trial through her testimony and that of her long-time friend. The two women were walking their dogs around the neighborhood on the evening of January 8, 2010. The sidewalks were "icy." Snow had fallen earlier in the day and covered older snow. Plaintiff's accident occurred at approximately 7:30 p.m. on the sidewalk in front of defendant's home. Branches from an evergreen tree in defendant's yard extended across most of the sidewalk. Although the two friends on previous occasions had walked into the street to avoid the evergreen branches, they were unable to walk into the street that night because a mound of snow and ice prevented them from doing so.

Someone had shoveled snow off defendant's sidewalk, creating a path that was approximately one foot wide between the tree and the mound of snow and ice that prevented plaintiff from walking into the street to avoid the tree. It is unclear whether the mound that obstructed their path into the street was created by whoever cleared the sidewalk. The walkway that had been cleared was substantially lower than the snow and ice piled up around it. The branches of the tree obstructed plaintiff's "ability to see what was on the side of them[.]"

Plaintiff "scooched" around the tree past the branches, and as she stepped down with her left ankle, it "buckled under" and she heard a crack. She sustained a severe fracture of her lower leg as well as a displaced foot.

Following the direct examination of plaintiff, who testified after her friend, defendant moved for an involuntary dismissal of the action. Although defendant acknowledged that "plaintiff has other witnesses," defendant asserted that no one else witnessed the accident. Arguing that "[t]here's been no causation here whatsoever," and that the only witnesses who might have seen the accident had already testified, defendant saw no reason to cross-examine plaintiff. The court granted the motion.

During argument on the motion, plaintiff's counsel advised the court, "Your Honor, we haven't rested yet and I submit to Your Honor that there will be more evidence with regard to all of these elements." Counsel also suggested that he might recall plaintiff because he had not rested. Nevertheless, based on the testimony the plaintiff had given, and seeing no "facts that have, based on what the testimony has been, that could sustain any type of liability under the law on the part of the defendant," the court granted the motion.

According to the order from which this appeal is taken, the court granted defendant's motion under Rule 4:37-2(b), which states:

After having completed the presentation of the evidence on all matters other than the matter of damages (if that is an issue), the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.

Rule 4:37-2(b) authorizes a defendant to move for a dismissal only after a plaintiff has "completed the presentation of the evidence on all matters other than the matter of damages." Ibid. There is nothing unclear about the rule, and nothing in the rule authorizes a defendant to move for an involuntary dismissal before a plaintiff has presented the entire liability case. Ibid.; see also Perth Amboy Iron Works v. Am. Home., 226 N.J. Super. 200, 215 (App. Div. 1988) (holding that the judge's action in imposing an involuntary dismissal under Rule 4:37-2(b) before plaintiff presented its entire liability case was procedurally inappropriate), aff'd, 118 N.J. 249 (1990). Because defendant here made her motion prematurely, and because the court prematurely granted it, we reverse.

Plaintiff testified that her view of the sidewalk beyond the tree was obstructed by the limbs and that there was a drop in elevation from the snow to the cleared sidewalk. Plaintiff had to navigate the "drop in elevation" by "scooching" around the tree. The combination of those circumstances arguably increased the risk that plaintiff would fall on a sidewalk that had a new layer of snow over pre-existing snow or ice. More significantly, plaintiff was prevented from producing evidence as to who had piled snow that prevented her from avoiding that risk by walking into the street. Plaintiff's testimony presented facts which, had they been further developed, would have permitted the jury to infer that activity on defendant's property presented a danger different from that posed merely by the natural conditions of the tree, snow, and ice.

Plaintiffs' attorney informed the court during argument on defendant's motion that he intended to call other witnesses in his liability case. Plaintiff should have been given the opportunity to fully develop her theory of liability. Whether plaintiff's accident was proximately caused or contributed to by the negligent shoveling and piling of snow on defendant's property likely would have presented an issue for the jury. See Winstock v. Galasso, 430 N.J. Super. 391, 418 (App. Div. 2013) (noting that proximate cause is ordinarily a jury question), certif. denied, 215 N.J. 487 (2013). But even if, after completing her proofs on liability and causation, plaintiff's evidence did not present a factual dispute for the jury to resolve, that decision should have been made on a properly developed record. Because plaintiff was prematurely precluded from presenting her proofs, we reverse.

Defendant's argument that the court improperly denied her summary judgment is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the order denying defendant's summary judgment motion.

Affirmed in part, reversed in part, and remanded for a new trial.

1 Ronald Glonek sued per quod. Because his claim is derivative, we refer to Linda Glonek as "plaintiff."