Greenstein v. Forsgate Industrial Complex, A-0947-19

Decision Date22 July 2021
Docket NumberA-0947-19
PartiesJEANNIE GREENSTEIN and JON GREENSTEIN, her spouse, Plaintiffs-Appellants, v. FORSGATE INDUSTRIAL COMPLEX a/k/a FORSGATE INDUSTRIAL COMPLEX, LP, FORSGATE VENTURES XI, LLC, SAMSUNG SDS AMERICA, INC., and JENI LLC a/k/a JENI LLC N.J. LTD, Defendants, and AMAZON.COM.DEDC, LLC, and BERGEN OUTDOORS, INC. t/a BERGEN LANDSCAPING, Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 24, 2021

Christopher T. Karounos argued the cause for appellant (Davis, Saperstein &Salomon, PC, attorneys; Christopher T. Karounos, of counsel and on the briefs).

Gregory F. Miller (Perkins Coie, LLP) of the Washington bar admitted pro hac vice, argued the cause for respondent Amazon.com.dedc, LLC (Sills Cummis &Gross, PC, and Gregory F. Miller, attorneys; Beth S. Rose, of counsel and on the brief; Vincent Lodato, on the brief).

Brian J. Bolan argued the cause for respondent Bergen Outdoors, Inc. t/a Bergen Landscaping (Muscio, Kaplan &Helfrich, LLC, attorneys; Brian J. Bolan, on the brief).

Before Judges Currier, Gooden Brown and DeAlmeida.

PER CURIAM

Plaintiff Jeannie Greenstein[1] was injured when she slipped and fell on ice in an area of a driveway that led from the public street to a parking lot. Defendant Amazon.com.dedc, LLC (Amazon) leased the property and was responsible under the lease for snow and ice removal from the driveway and parking lot. Amazon contracted with Bergen Outdoors, Inc. t/a Bergen Landscaping (Bergen Outdoors) for snow and ice removal.

The trial court granted summary judgment to both defendants on May 2, 2019. Plaintiff appeals from both orders. Because plaintiff presented issues of fact regarding Amazon's duty to remove snow and ice in the area of her fall, we reverse the order granting summary judgment to Amazon and remand for a factfinder's consideration. Because the trial court did not make findings or give any reasons in granting summary judgment to Bergen Outdoors, we reverse that order as well.

Amazon leased a commercial property located at 2 Empire Boulevard in Moonachie.[2] Defendant Jeni LLC a/k/a Jeni, LLC N.J LTD (Jeni) owned the premises located on the corner of Moonachie Road and Empire Boulevard. Defendant Samsung was a tenant in the Jeni building. Plaintiff worked at a company named 4over, whose offices were located at 4 Empire Boulevard.[3]

Parking is prohibited on Empire Boulevard. Therefore, Amazon employees who drive to work park in the large parking lot behind the building. Two driveways provide access to the parking lot-one designated for entry and exit and one designated as exit only. The exit-only driveway is located between the Jeni building and Amazon's premises. The driveway is marked with "DO NOT ENTER" signs on either side.

The driveway exiting Amazon's parking lot is constructed of black macadam. It ends at the sidewalk which runs parallel to Empire Boulevard. Three equal-sized rectangular concrete slabs comprise the space between the end of the driveway and the street. There are no markings on the slabs to indicate a sidewalk boundary or to differentiate them from the remainder of the concrete driveway that runs to the street. Plaintiff fell on the exit-only driveway as she stepped onto it from the street.

Under its lease agreement with Forsgate, Amazon was responsible for ice and snow removal at 2 Empire Boulevard. Amazon retained Bergen Outdoors to provide snow remediation services at the property. Pursuant to the contract, Bergen Outdoors would remove snow and ice from the property's parking lot, driveways, and walkways.

In addition, Amazon directed its employees to perform perimeter walks of the property "three or four times a day" during the winter months. According to Amazon's director of operations, employees were specifically instructed to examine the property's entrances, exits, and walkways-including sidewalks. Amazon would notify Bergen Outdoors if an inspection revealed hazardous conditions. And Amazon often directed its employees to use "salt and shovels" to ameliorate icy conditions near the property's entrances and exits before Bergen Outdoors arrived as an "extra safety step ...."

During the weekend of January 23 and 24, 2016, approximately two feet of snow fell in Moonachie. Bergen Outdoors' invoices reflect it "plow[ed] lots, shovel[ed] walks, salt[ed] . . . lanes and driveways, [and applied] ice melt to walks" on January 23 and 24. On January 25, Bergen Outdoors performed "additional opening of walks at street, as requested ...."

On the morning of January 25, 2016, plaintiff followed her typical commuting routine, and took a bus to Moonachie. She got off the bus on Moonachie Road, near its intersection with Empire Boulevard. Plaintiff crossed Moonachie Road and walked through the parking lot behind Jeni's property. A driveway from that parking lot exits onto Empire Boulevard.

According to plaintiff, she usually walked through the parking lot behind Jeni's building and turned onto the sidewalk parallel to Empire Boulevard. She would continue on that sidewalk, crossing over Amazon's exit-only driveway until she arrived at her offices next to Amazon's building. However, on that day, the sidewalk in front of Jeni's property up to the Amazon driveway was covered with approximately two feet of snow. Therefore, plaintiff decided to walk in the gutter of Empire Boulevard until she got to the walkway leading to 4over's premises.

The following day, January 26, plaintiff again took the bus to work and followed the same route as the day before. Because Jeni had still not cleared the snow from the sidewalk in front of its property, plaintiff again attempted to walk in the gutter of Empire Boulevard. However, a parked car obstructed her way.

Therefore, plaintiff turned from the street to walk up the exit-only driveway on Amazon's property to access the cleared Amazon sidewalk and continue to her building. She stated that although she "saw some ice and snow" in the driveway, it appeared "passable to [her]." As plaintiff stepped with her left foot from the gutter onto the driveway, she "lost [her] balance and . . . fell."

Following the close of discovery, Amazon and Bergen Outdoors moved for summary judgment. Amazon asserted it was entitled to judgment because "the driveway apron was part of the public way" and therefore it did not owe plaintiff a duty to clear the ice and snow. Bergen Outdoors argued that because Amazon did not request any snow remediation services on the day of plaintiff's fall, "no obligation under the contract was triggered requiring [it] to make inspections or provide ice watch services ...."

On May 2, 2019, the trial court issued an oral opinion and accompanying orders granting summary judgment to Amazon and Bergen Outdoors.[4]

The court found there was no "basis to impose liability" on Amazon because, as a commercial tenant, Amazon did not have a duty to maintain the "apron" where plaintiff had fallen. Although the motion judge recognized "there [was] no case that talks about that specific area", she declined to "expand a commercial property owner['s] sidewalk liability to something that is past the boundary of the sidewalk ...." The judge stated she was "not persuaded that there should be an obligation on the part of the tenant who has snow removal responsibility for the commercial building to maintain the sloped vehicle access in a condition that is pedestrian safe."

The court did not differentiate in its rulings between Amazon and Bergen Outdoors. The court did not give any reasons specific to Bergen Outdoors other than to state that "Bergen's responsibility can't be any greater than that of Amazon ...."

Our review of the grant of summary judgment is de novo, applying the same legal standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516, 529 (2019) (citation omitted). Therefore, we consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, 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, 523 (1995).

"If there is no genuine issue of material fact, we must then 'decide whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting &Litig. Support Servs. v. Rochman, 430 N.J.Super. 325, 333 (App. Div. 2013) (citations omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Plaintiff contends the trial court erred in finding Amazon had no duty to maintain the driveway apron in a safe condition. In her briefs and during oral argument before this court, she relied on our recent opinion in Pareja v. Princeton Int'l Properties, 463 N.J.Super. 231 (App. Div.), cert. granted 244 N.J. 168 (2020). On June 10, 2021, our Supreme Court issued its decision. Pareja v. Princeton Int'l Properties, __ N.J. __ (2021). We permitted the parties to submit supplemental filings regarding the Court's decision.

Although Pareja arose out of a slip and fall on ice on a driveway apron owned by a commercial landowner, the issue in the case was not whether the commercial entity owed a duty to the plaintiff to clear that particular part of its property. Rather, the issue addressed by the Court was one of first impression in this State: whether a commercial landowner has a duty to clear snow and ice from "public walkways" on its property during a...

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