JUDITH LIPPINCOTT v. ALFRED BRIEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05255-12T4

JUDITH LIPPINCOTT and

KENNETH LIPPINCOTT,

Plaintiffs-Appellants,

v.

ALFRED BRIEL and RUTH

BRIEL,

Defendants-Respondents.

May 12, 2014

Argued April 2, 2014 Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2728-11.

Daniel B. Zonies argued the cause for appellants.

William Pfister, Jr., argued the cause for respondents.

PER CURIAM

Plaintiffs Judith and Kenneth Lippincott1 appeal from a June 21, 2013 Law Division order granting summary judgment in favor of defendants Alfred and Ruth Briel, and dismissing plaintiffs' complaint arising out of a slip-and fall accident on defendants' snow-covered driveway. For the reasons that follow, we reverse and remand.

I.

At approximately 8 a.m. on February 27, 2010, plaintiff was injured when she slipped and fell on a driveway that was covered with snow and ice leading from defendant's residence, where plaintiff worked as a home health aide. Plaintiff arrived at defendants' home the day before at 4 p.m.; plaintiff recalled it had snowed that day, and there was snow on both the ground and driveway, but she could not recall if it was still snowing when she arrived. No portion of the driveway was cleared when plaintiff arrived and no shoveling occurred before plaintiff left in the morning. Plaintiff was unsure if any additional snow fell overnight.

After plaintiff completed her shift at 8 a.m., she was walking across defendants' driveway, heading toward her car which was parked across the street, when she fell. The record indicates approximately two inches of snow covered the driveway, with patches of ice underneath.

Defendants moved for summary judgment relying primarily upon plaintiff's deposition transcript. Defendants conceded their driveway had not been shoveled after the last snowfall, which preceded plaintiff's fall. Following argument, the motion judge issued an oral opinion granting summary judgment in favor of defendants. The judge stated:

[W]e have . . . a situation where there was snow on the ground. We have Mrs. Lippincott coming out of the house . . . [at] eight o'clock in the morning . . . . [T]he plaintiffs would have me impose upon every homeowner in the [S]tate of New Jersey, young, old, sick, well, rich or poor, an obligation to remove . . . every flake of snow from a driveway so that people could walk up and down it. And considering the facts of this case, I simply am not aware of any legal obligation in the [S]tate of New Jersey for that.

I am very aware of the responsibility of homeowners to make . . . their property reasonably safe for people that are there[.] . . . We [are] talking about snow on a driveway. And if the duty of a homeowner is to either correct the situation or give warning of it, this is such an obvious condition, what warning had to be given? There's snow on the driveway?

. . . I find that the defendants in this case, the owners, did not have a duty to shovel their driveway prior to Mrs. Lippincott leaving the house that morning. The defendant's [sic] motion is granted.

This appeal followed and plaintiffs argue the court failed to view the motion record most favorably to plaintiffs, and otherwise failed to recognize genuine issues of material fact, resulting in an improper grant of summary judgment. We agree.

II.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the motion court. See Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to 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).

"To establish a prima facie case of negligence against defendants, plaintiff must establish all of the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause, and (4) damages suffered by the plaintiff." Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div.) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996)), certif. denied, 174 N.J. 362 (2002). Whether defendants owe a legal duty, as well as the scope of the duty owed, are questions of law for the court to decide. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996).

A visitor is considered an invitee when the primary purpose for his or her presence on the property is to confer a benefit upon the property owner, whether through the purchase of goods or the provision of services. See Filipowicz, supra, 350 N.J. Super at 558 (classifying a visitor at a yard sale as an invitee). Plaintiff's status as an invitee is clear; she was at defendants' home to provide home health aide services, and for no other reason. The motion judge indicated she considered plaintiff an invitee, but then failed to analyze the remaining facts and circumstances in concluding, as a matter of law, defendants breached no duty to plaintiff.

In New Jersey, a homeowner's duty to a business visitor or invitee "necessarily involves using reasonable care to maintain the premises in a continuous state of safety." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 445 (1993). A property owner owes a duty to an invitee to provide a "reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982). This requires a homeowner to exercise "reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions[,]" Hopkins, supra, 132 N.J. at 434, or, at the very least, warn an invitee of such defects. Filipowicz, supra, 350 N.J. Super at 560.

Defendant's reliance on Jimenez v. Maisch, 329 N.J. Super 398 (App. Div. 2000), is misplaced. In Jimenez, despite holding the plaintiff postal carrier was a business invitee, we affirmed the summary judgment in favor of the landowner based on the very special conditions of that case. Id. at 403-04. The slip and fall in Jimenez occurred "following the severe snowstorm known as the blizzard of '96" on "the first day the local postal service resumed delivering mail after a several day hiatus." Id. at 399-400. The snowstorm resulted "in a state of emergency [that was] still in effect when plaintiff fell [and] . . . the risk was obvious to plaintiff"; therefore, it would be a considerable "burden upon homeowners if they were required to clear driveways and walkways following such a storm . . . ." Id. at 403. Under those extraordinary circumstances, we concluded that the property owner did not owe a mail carrier the duty to clear snow and ice from his driveway. Id. at 403-04.

Plaintiff distinguishes her case from Jimenez by noting the burden of addressing two inches of snow was far less than the burden presented by a blizzard. She also notes there was no state of emergency in the present case, and defendants had ample opportunity, between when it last snowed and the time of her fall, to provide a safe walkway to and from her car.

Judged against these standards, we conclude the record demonstrates genuine issues of material fact exist. Whether defendants discharged their duty to use reasonable care for plaintiff's safe use of their driveway is a fact question for a jury to decide in light of all the relevant circumstances. A jury should consider whether it was unreasonable for defendants not to shovel, salt or sand their driveway, or otherwise make arrangements for such precautions, to provide safe passage from defendants' home to plaintiff's car. A jury should consider all other relevant circumstances, which may include:

[T]he extent and timing of the snowfall, the time of day or night, the nature of the efforts actually taken by the owner to maintain the premises, the practicality of cleaning up in stages or by priorities, the plaintiff's care for [her] own safety including [her foot wear], . . . and any other pertinent factors. These are all matters for jury considerations.

[Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 307 (App. Div. 2000).]

The record before us, at least raises a genuine issue of material fact as to whether defendants violated their duty to provide plaintiff with a reasonably safe premises. In our view, a reasonable factfinder could conclude defendants failed to satisfy their duty of care to plaintiff. We therefore conclude summary judgment was improperly granted.

Reversed and remanded for trial.

1 In this opinion, we refer to Judith and Kenneth Lippincott collectively as "plaintiffs", and Judith Lippincott individually as "plaintiff."