Submitted by New Jersey Slip and Fall Lawyer, Jeffrey Hark.
Here is another case where a business invitee comes to a property and is injured. The question in this case was whether or not the condo association had a duty to clear a sidewalk for pedestrians and invitees in the middle of a snowstorm. The key to this case was that it was still snowing. The condo association contract with their contracted landscaper require they calm and address any snow removal within a certain amount of time from when it stops snowing. Obviously the facts of this case make that argument difficult because the police officer testified that she was injured while it was still snowing.
The other issue in this case which is important to pay attention to is the plaintiffs expert opinion. The plaintiffs expert issued opinions that were considered a “net opinion”. Another words, and I have written on this many times, the expert just made stuff up and it was not based on any generally excepted standard of care or well-founded excepted conclusion/opinion based on facts literature and standards of care adopted in the industry. The judge summarily barred the expert’s opinion on summary judgment finding them not grounded in the facts and as a result he would not consider them.
Here is the courts argument and decision: “In order to establish defendants’ negligence, plaintiff needed to show:
- they owed plaintiff a duty of care;
- they breached that duty;
- actual and proximate causation; and
- damages.
Fernandes v. DAR Dev. Corp., 222 N.J. 390, 403-04 (2015). The motion record makes clear that the road on which plaintiff fell was a common element of the condominium complex, thus making the association responsible for its maintenance. See Qian v. Toll Bros. Inc., 223 N.J. 124, 141 (2015). Because this is a premises liability case and the parties agree as to plaintiff’s status as an invitee, see Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 45-46 (2012), the association owed plaintiff a duty to exercise reasonable care to guard against “a dangerous condition on property within the ambit of the common elements.” McDaid v. Aztec W. Condo. Ass’n, 234 N.J. 130, 141-42 (2018); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993). “A condominium association’s duty to keep the common elements reasonably safe is non-delegable.” McDaid, 234 N.J. at 142 (citing N.J.A.C. 5:10-4.1(a)).
Yet plaintiff has not cited any case to us, and our own research has not revealed one, imposing a duty on a condominium association to remove snow from a roadway in the midst of a snow storm in order to make it safe for pedestrians. Roadways, of course, are ordinarily intended for vehicular traffic, not pedestrians. See Polzo v. Cty. of Essex, 209 N.J. 51, 70-71 (2012). Our Supreme Court has made clear the law imposes a duty on the association to keep its private sidewalks, which are intended for pedestrians, reasonably safe. Qian, 223 N.J. at 142. That obligation may, as with the duty on a commercial property owner, “require removal of snow or ice or reduction of the risk, depending upon the circumstances.” Id. at 136 (quoting Mirza v. Filmore Corp., 92 N.J. 390, 395-96 (1983)). But we know of no case imposing such a duty, even on a commercial landowner, while snow continues to fall.
Landscape Maintenance Services’ duty to plaintiff springs from its contract with the association. See Aronsohn v. Mandara, 98 N.J. 92, 105 (1984) (“Under well-established principles a contractor has a duty to persons, other than the one with whom the contractor has made the contract, to carry out his undertaken work in a careful and prudent manner, and he may be responsible to third persons for their personal injuries and property damages proximately caused by his failure to exercise that care.”). Its duty to plaintiff is defined “by the nature and scope of its contractual undertaking.” McDaid, 234 N.J. at 142 (citation omitted).
We reject any notion that defendants had an implied duty to make the roadways safe for pedestrians who would be getting into and out of the cars coming and going out of the development. The association handbook and the snow removal contract both make plain that sidewalks, mailboxes and parking stalls would not begin to be cleared until the snow ended. The court was correct to reject an implied obligation on the part of defendants to make the roadway safe for pedestrians, which was directly contrary to its express obligation to clear the sidewalks only after the snow ended. Pollack v. Quick Quality Rests., Inc., 452 N.J. Super. 174, 187-88 (App. Div. 2017) (noting “[w]here the terms of a contract are clear, we enforce the contract as written and ascertain the intention of the parties based upon the language.”).
Finally, we agree with the trial court’s conclusion that plaintiff’s expert report was not sufficient to stave off summary judgment to defendants. Although a court faced with an evidentiary issue in the context of a summary judgment motion ordinarily decides the evidence question first, see Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010), here it was necessary to define the duty owed to plaintiff in order to determine whether the opinions offered by the expert were relevant to the issues in dispute, even assuming they were admissible.”