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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1733-17T4






                    Argued telephonically January 8, 2019 –
                    Decided February 25, 2019

                    Before Judges Yannotti, Gilson, and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-0206-16.

                    Victoria A. Schall argued the cause for appellant (Law
                    Offices of Adam M. Kotlar, attorneys; Victoria A.
                    Schall, on the brief).

                    Vicki Shea Connolly argued the cause for respondents
                    (Bolan Jahnsen Dacey, attorneys; Vicki Shea Connolly,
                    on the brief).

       Plaintiff slipped and fell in a Wal-Mart parking lot while it was snowing.

She appeals from an October 30, 2017 order granting summary judgment to

defendants Wal-Mart Stores, Inc. (Wal-Mart) and Tree Fellas, LLC (Tree

Fellas), which had a contract to remove snow and ice from Wal-Mart's parking

lot.    Plaintiff also appeals from a December 8, 2017 order denying

reconsideration of the October 30, 2017 order.         We affirm because the

undisputed facts established that neither defendant breached a duty of care to



       We take the facts from the summary judgment record, viewing them in the

light most favorable to plaintiff. Plaintiff fell on February 3, 2014, during a

snowstorm. According to an expert report on the weather, a winter storm

developed early on that day and continued into the afternoon. Rain changed

over to snow after 5 a.m., the snow became heavy by 8 a.m., heavy snow

continued until approximately 2 p.m., with intermittent snow showers between

2 p.m. and 6 p.m. Total snow accumulations exceeded eight inches.

       The Wal-Mart store opened at 6 a.m. on February 3, 2014. The snow

removal crew from Tree Fellas arrived sometime between 6 a.m. and just after

7 a.m. The crew then worked to remove snow and ice until sometime after 9

a.m. At his deposition, the owner of Tree Fellas described the procedures that

he and his crew followed in removing the snow from Wal-Mart's parking lot on

February 3, 2014. He explained that he had between two and four snow plowing

trucks at the store and that one of the trucks had a salt spreader. The crew began

by plowing the entrance from the public road. The trucks then plowed the

roadways leading to the store and, thereafter, "zigzagged" around the parking

lot. One truck would also spread salt on the cleared areas. The owner of Tree

Fellas also explained that there were already cars in the lot when he and his crew

arrived. Accordingly, the crew would wait until a car left and, if there was

sufficient space, the truck would "back drag" the space to clear the snow.

      Plaintiff arrived at the Wal-Mart store at approximately 8 a.m., while it

was snowing.     She parked her car, went into the store, and shopped for

approximately forty-five minutes. Around 8:45 a.m., plaintiff left the store and

walked back to her car while it was still snowing. Plaintiff fell as she was

walking between her car and the car parked next to her car. According to

plaintiff, she slipped on built-up snow and ice between her car and the car parked

next to hers. As a result of her fall, she suffered fractures of the base of the

second, third, and fourth metatarsals of her right foot.

      In January 2016, plaintiff sued Wal-Mart and Tree Fellas alleging

negligence. The parties engaged in discovery and, in October 2017, defendants

moved for summary judgment. Defendants contended that there was a lack of

evidence from which a jury could determine that they had breached a duty of

care to plaintiff because she fell on snow while it was snowing and they did not

have a duty to remove all the snow until a reasonable time after the snow stopped


      After hearing oral argument, the trial court granted summary judgment

reasoning that no rational jury could find defendants were negligent because

plaintiff fell during an ongoing snowstorm when Tree Fellas was already at the

location engaged in snow removal efforts. Accordingly, on October 30, 2017,

the trial court entered an order granting summary judgment to defendants and

dismissing   plaintiff's   complaint.         Thereafter,   plaintiff   moved   for

reconsideration.   Finding that plaintiff failed to meet the grounds for

reconsideration, on December 17, 2017, the court entered an order denying the

motion. Plaintiff now appeals.


      On appeal, plaintiff argues that the trial court failed to consider binding

legal authority that should have allowed her claim to proceed to a jury. She also

argues that the court ignored material fact disputes that should have precluded

summary judgment in favor of defendants. Finally, plaintiff contends that the

trial court ignored the opinions of her proposed expert and should have allowed

her claims to proceed to a jury.

      We review a trial court's decision to grant summary judgment de novo,

using the same standard the trial court applies. Townsend v. Pierre,  221 N.J. 36,

59 (2015) (citing Davis v. Brickman Landscaping, Ltd.,  219 N.J. 395, 405-06

(2014)). A court should grant summary judgment if the record establishes there

is "no genuine issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

      An issue of fact is genuine if "considering the burden of persuasion at

trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact." Ibid. Furthermore, "[i]f there exists

a single, unavoidable resolution of the alleged disputed issue of fact, that issue

should be considered insufficient to constitute a 'genuine' issue of material fact

for purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co. of Am.,  142 N.J.
 520, 540 (1995) (citing Anderson v. Liberty Lobby, Inc.,  477 U.S. 242, 250


      Here, plaintiff asserted a negligence claim against defendants. To prevail

on such a claim, plaintiff must establish that: (1) defendants owed her a duty of

care; (2) defendants breached that duty; (3) the breach was a proximate cause of

her injury; and (4) plaintiff sustained actual damages. Townsend,  221 N.J. at 51

(quoting Polzo v. Cty. of Essex,  196 N.J. 569, 584 (2008)).

      Defendants do not dispute that they owed plaintiff a duty to exercise

reasonable care because she was a business invitee of Wal-Mart at the time of

the accident. They argue, however, that plaintiff's negligence claim fails as a

matter of law because she cannot show that they breached that duty. We agree.

      Business owners, such as Wal-Mart, owe invitees "a duty of reasonable or

due care to provide a safe environment for doing that which is within the scope

of the invitation." Nisivoccia v. Glass Gardens, Inc.,  175 N.J. 559, 563 (2003)

(citing Hopkins v. Fox & Lazo Realtors,  132 N.J. 426, 433 (1993)). That duty

"requires a business owner to discover and eliminate dangerous conditions" as

well as "maintain the premises in safe condition." Ibid. (citing O'Shea v. K.

Mart Corp.,  304 N.J. Super. 489, 492-93 (App. Div. 1997)).

      The area to which this duty applies "extends to the premises' parking

lot[.]" MacGrath v. Levin Props.,  256 N.J. Super. 247, 250 (App. Div. 1992)

(citing Picco v. Fords Diner, Inc.,  113 N.J. Super. 465, 467 (App. Div. 1971)).

Accordingly, a business owner is "under a duty to exercise reasonable care to

keep [its parking area] free of ice and snow." Bates v. Valley Fair Enters., Inc.,

 86 N.J. Super. 1, 6 (App. Div. 1964). It has long been recognized, however, that

commercial landowners have a reasonable time in which to act to clear snow

and ice from walkways. See Bodine v. Goerke Co.,  102 N.J.L. 642 (E. & A.

1926) (holding that a property owner could not be liable for failing to remove

slush or ice from the entrance to a store while the storm was still ongoing).

      In this case, it is undisputed that the snowstorm was ongoing when

plaintiff slipped and fell while walking between her car and the car that was

parked next to her car. Indeed, plaintiff acknowledged that it was snowing when

she arrived, and it was still snowing when she left the store and walked back to

her car. It was also undisputed that a crew from Tree Fellas was on site at the

time that plaintiff fell and they were engaged in snow-removal activities. Given

those undisputed facts, defendants were not obligated to remove snow and ice

between parked cars until the cars either moved or the snow stopped falling and

defendants had a reasonable time to remove the snow.


      Plaintiff argues that defendants and the trial court erroneously relied on a

local municipal ordinance, which provided that business owners or tenants had

to remove all snow and ice from sidewalks, streets, and parking areas used by

the public or business invitees within twenty-four hours after the snow fell or

the ice formed. Plaintiff goes on to argue that municipal ordinances do not

create a tort duty and the trial court ignored case law stating that proposition in

granting summary judgment to defendants.

      The trial court did not, however, rely on the ordinance as creating a tort

duty or as creating the time for reasonable action. Instead, the court noted that

the ordinance existed and the ordinance was consistent with the principle that

commercial property owners have a reasonable period of time to remove snow

and ice.

      Plaintiff also argues that defendants had a duty to pre-treat certain areas

in the parking lot and to clear snow using a procedure where sections of the lot

would be roped off, snow would be removed, and the plowing activity would

then move to another section. In support of that position, plaintiff submitted a

liability expert report. The expert contended that Wal-Mart did not establish a

procedure with Tree Fellas to clear the parking lot in a sequential manner so as

to provide customers with safe conditions for entering and leaving the store.

Plaintiff argues that the positions presented by its liability expert created

genuine issues of material fact as to whether defendants acted reasonably in

clearing the snow.

      Even if the opinions of plaintiff's liability expert are considered, those

opinions do not create a genuine issue of material fact. The material fact is that

it was snowing at all times while plaintiff was present at Wal-Mart. Thus, even

if defendants had followed the procedures suggested by plaintiff's liability

expert, snow still would have fallen for at least forty-five minutes between

plaintiff's car and the car that was parked next to hers while she was in the store.

Defendants' duty to remove the snow between the cars did not arise until some

reasonable passage of time allowing them to take action.

      Finally, plaintiff contends that there were other material issues of disputed

fact that should have precluded summary judgment. She asserts that those issues

included (1) whether Tree Fellas arrived early enough to begin the snow-

removal operations; (2) whether Wal-Mart should have remained open; (3)

whether defendants should have pre-treated the parking lot, including parking

spaces; (4) whether defendants complied with their snow-removal contract; and

(5) whether defendants' snow-removal procedures were reasonable.

     Those issues, however, are also not genuine issues of material fact. The

undisputed material fact remains that it was snowing and defendants are

afforded a reasonable period of time to remove the snow.