Berniz v. Atkins
| Decision Date | 08 October 2020 |
| Docket Number | DOCKET NO. A-1537-19T1 |
| Parties | JOSSELYN BERNIZ, Plaintiff-Appellant, and JONATHAN MARI, Plaintiff, v. JEFFREY ATKINS and AISHA ATKINS, Defendants-Respondents, and ENDEMOL USA HOLDINGS, INC., 51 MINDS ENTERTAINMENT, LLC, and JAIME'S LANDSCAPING, Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4282-15.
Robert Douglas Kuttner, attorney for appellant.
Santo V. Artusa, Jr., attorney for respondents.
Plaintiff Josselyn Berniz worked as a housekeeper for defendants Jeffrey and Aisha Atkins. On January 26, 2015, after cleaning defendants' home, plaintiff fell as she departed on their snow-covered driveway. Because snow was then still falling, the judge applied the so-called "ongoing-storm rule" in summarily dismissing plaintiff's complaint. Adhering to Pareja v. Princeton International Property, 463 N.J. Super. 231, 251 (App. Div. 2020), cert. granted, ___ N.J. ___ (2020), which held that a commercial landowner must take reasonable steps "even when precipitation is falling," we reverse.
In interpreting the factual record in the light most favorable to plaintiff - the opponent of defendants' summary judgment motion - we assume the truth of the following circumstances. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).1
Plaintiff arrived at defendants' Saddle River home at approximately 9:30 a.m. That day, the Governor issued an executive order in response to a National Weather Service warning that New Jersey would experience heavy snow accumulations, strong winds, and freezing temperatures. Snow, however, had not begun to fall by the time plaintiff arrived at defendants' home.
According to plaintiff, she parked her vehicle close to and "in front of the garage doors where [she] usually parked." There was "a little bit of snow and ice" on the driveway that had accumulated from recent precipitation; she did not recall seeing any salt or de-icing chemical on the driveway. After parking and without incident, plaintiff entered the home to commence her housekeeping duties.
According to defendant Aisha Atkins, at "around, like, lunchtime, between 11 and 1:00 p.m., maybe," she asked plaintiff to move her car because of the severe storm warning she had heard about on television. Plaintiff recalled that she worked for "three or four hours" before Aisha Atkins asked her to move the car out of the driveway and onto the public street. When asked why she directed plaintiff to move her car, Aisha testified at her deposition that shewanted all vehicles off the driveway so their contractor2 could "plow everything clear."
As instructed, plaintiff moved her car from the driveway to the street just beyond the residence's gate. As she walked back to the residence, plaintiff noticed snow had started accumulating - by then approximately one to one-and-a-half inches - and it "started to get dark."
Plaintiff finished the housework around 4:30 or 5:00 p.m. As she and a co-worker left the residence, Aisha warned her to "[b]e careful, it's snowing." By this time, the route to plaintiff's car was covered with snow. There was no dispute that defendants owned a shovel and a bag of salt for snow and ice removal, but they were not put to use, nor, for that matter, did defendants do anything else to help plaintiff down the snow-covered driveway to her car on the street.
While walking down the driveway, plaintiff slipped, prompting her to fall backwards and allegedly causing an injury to her right hand. At her deposition, plaintiff testified that snow was then falling "[n]ot too hard, not too light" and that it was also dark outside, the sun having set and defendants having failed toturn on the outside lights. After her fall, plaintiff called someone to pick her up and drive her to the hospital.
In granting defendants' summary judgment motion, the judge relied on Bodine v. Goerke Co., 102 N.J.L. 642, 644 (E. & A. 1926), which, it is argued, stands for the proposition that a landowner has no duty to remove snow or ice until a reasonable time after precipitation ends. The motion judge also somehow viewed plaintiff's own actions as the cause of the injury, stating:
the facts construed in favor of the plaintiff [reveal] she knew . . . the snow was coming. She elected to continue . . . to work and I . . . don't find there's a duty here. I find that . . . it strains . . . the case law . . . to find one.
We disagree chiefly because we find it dubious at best whether the so-called "ongoing-storm rule" is part of our jurisprudence, as Justice Albin pointed out in his dissent from the denial of certification in Dixon v. HC Equities Assocs., LP, 241 N.J. 132, 133-35 (2020), and as we explained in Pareja.
In adhering to our decision in Pareja, we conclude that the mere fact that snow was falling when plaintiff slipped and fell did not blanket defendants with immunity. Instead, as we observed in Pareja, the Supreme Court has already held more recently than Bodine, that, in applying the test expressed in Hopkinsv. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993),3 a landowner's "duty to reasonably remove or reduce [a] hazard is triggered once 'a reasonably prudent person . . . knows or should have known' about the dangerous condition." Pareja, 463 N.J. Super. at 241 (quoting Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983)).
In making this value judgment, we do not hesitate to conclude, as we held in Pareja, that the "ongoing-storm rule" has no place in our jurisprudence. Instead, as Mirza and Pareja make clear, defendants owed this business invitee a duty to act reasonably...
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