Scott v. Mercer Cnty. Improvement Auth.
| Decision Date | 10 April 2019 |
| Docket Number | DOCKET NO. A-3392-17T2 |
| Parties | TERRENCE SCOTT and SUZANNE SCOTT, husband and wife, Plaintiffs-Appellants, v. THE MERCER COUNTY IMPROVEMENT AUTHORITY, THE MERCER COUNTY BOARD OF CHOSEN FREEHOLDERS, and THE MERCER COUNTY DEPARTMENT OF TRANSPORTATION AND INFRASTRUCTURE, Defendants, and GLOBAL SPECTRUM, LLC, and COMCAST SPECTACOR, d/b/a SUN NATIONAL BANK CENTER, Defendants-Respondents. |
| 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Haas and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1157-16.
Williams Cedar, LLC, attorneys for appellants (Alan Sklarsky and David Cedar, on the brief).
Hueston McNulty, PC, attorneys for respondents (Samuel J. McNulty, on the brief).
Plaintiffs Terrence Scott and Patricia Scott1 appeal from the entry of a summary judgment order dismissing their complaint against defendant Global Spectrum. The action arose from plaintiff's slip and fall accident during a snowstorm, while he was leaving a concert at the Sun Bank National Arena (the Arena), promoted by defendant. Because we conclude there was a genuine factual dispute as to whether reasonable steps were taken to remove snow and ice, we reverse and remand for trial.
We summarize the following facts from the record, viewing "the facts in the light most favorable to [plaintiff,] the non-moving party." Globe Motor Co. 23 v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)).
On Valentine's Day in 2015, plaintiff and his daughter attended a concert at the Arena in Trenton. Upon their arrival around 7:00 p.m., it was not snowing. At approximately 9:30 p.m., a snowstorm hit the Trenton area, lasting through midnight. When they left the Arena at the end of the show around 11:00 p.m., there were blizzard-like snow conditions. The sidewalk was snow-covered, without any indication that anyone had plowed or shoveled the snow.
While walking to his car, about ten to twenty feet from the Arena's entrance/exit, plaintiff claims that he slipped on a "thin ice" covered by "heavy slippery powder . . . type of snow." Both of his feet came out from underneath him, causing him to fall backwards onto his lower back and right shoulder. He was able to get up with help from his daughter, and drove home. He eventually had surgery to repair a rotator cuff tear on his right shoulder, and maintains the shoulder is permanently injured.
After plaintiffs filed suit, discovery revealed that the Mercer County Improvement Authority (MCIA) oversaw the management of the facility through an arrangement with its owner, the County of Mercer (the County). Under an agreement with MCIA, defendant was obligated to "completely operate and manage the Arena with respect to all [of its] activities . . . ." Defendant was responsible for cleaning and maintaining the Arena, including"the entrances, ground, and sidewalks (but not parking areas) surrounding the [f]acility and adjacent thereto." The agreement specifically called for defendant to be responsible for "snow and trash removal costs."
Nonetheless, based on an informal agreement with defendant, the County, through its Department of Transportation, voluntarily removed snow and ice at the Arena at no cost to defendant. Consequently, in anticipation of the storm, at approximately 8:00 p.m., the County dispatched a crew of five employees to perform snow and ice removal operations at the Arena. Another County employee had initiated snow removal operations at about 3:00 p.m. Deposition testimony did not reveal whether any County employee pretreated the sidewalks or the area of plaintiff's accident, before or during the storm. Plaintiff's fall occurred in an area outside of the Arena that defendant was required to maintain.
Following the dismissal of claims against the County and MCIA under the Tort Claims Act2 immunities, defendant moved for summary judgment arguing that it was not liable because it acted reasonably and did not breach a duty of care to plaintiffs. At the conclusion of oral argument, the motion judge placed his decision on the record and entered his order granting defendant's motion.
In their appeal of summary judgment to defendant, plaintiffs initially argue the motion judge "essentially relieved [defendant] of its duty of care to plaintiff because Mercer County, as owner and landlord, undertook snow removal responsibility." They contend the judge erred in finding "that the agreement between the [MCIA] and [defendant] did not impose a snow removal duty[]" upon defendant. We disagree.
In a negligence action, a plaintiff bears the burden of proving four elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages. D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011) (citation omitted). The mere occurrence of an incident causing an injury is not alone sufficient to impose liability. Long v. Landy, 35 N.J. 44, 54 (1961). A plaintiff must establish facts proving negligence, not inferences "based upon a foundation of pure conjecture, speculation, surmise or guess." Ibid. A defendant owes a duty of reasonable care to a business invitee against any dangerous conditions on its property that were known or should have been discovered. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993).
The judge here recognized that under its management and operation agreement with MCIA, defendant owed a duty to plaintiff, a business invitee, to maintain the area of the Arena where he slipped and fell in a safe condition. SeeO'Connell v. N.J. Sports & Exposition Auth., 337 N.J. Super. 122, 128-29 (App. Div. 2001) (citations omitted) ("[A] lease agreement between the lessor and lessee, or landlord and tenant, may fix the respective duties and allocate respective costs for repair and maintenance as between the lessor and lessee; however, no provision of a lease can absolve a lessee or tenant as against a third party from the tenant's duty to maintain the premises in a reasonably safe condition."). The judge found that defendant "had an obligation to the safety of its concert-going public and that they undertook salting of [the] immediate entrance to the property and would be responsible for the conditions and security within the arena itself, but the snow removal activities were undertaken by Mercer County."
Hence, in deciding summary judgment, the judge acknowledged that the issue to determine was whether a "reasonable jury [could] find that there was negligence here vis-à-vis snow removal activities." The judge determined that, viewing the County as a private contractor hired by defendant to perform snow removal, a reasonable jury could not find there was negligence in the snow removal at the Arena, which resulted in plaintiff's accident. He reasoned:
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