CYNTHIA JOHNSON VS. BRANDYWINE OPERATING PARTNERSHIP, LP (L-4362-14, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4791-15T4
CYNTHIA JOHNSON and
GERALD JOHNSON, husband
and wife,
Plaintiffs-Appellants,
v.
BRANDYWINE OPERATING
PARTNERSHIP, LP, and
BRANDYWINE REALTY TRUST,
Defendants-Respondents.
________________________________
Submitted October 5, 2017 – Decided November 16, 2017
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
4362-14.
Hoffman DiMuzio, attorneys for appellants
(Michael W. Glaze, on the brief).
Reger Rizzo Darnall, LLP, attorneys for
respondents (John M. Cinti, on the brief).
PER CURIAM
Plaintiffs Cynthia Johnson and her husband, Gerald Johnson,
appeal from the Law Division's entry of summary judgment in
favor of defendants Brandywine Operating Partnership, LP and
Brandywine Realty Trust (Brandywine), dismissing plaintiffs'
complaint with prejudice. Defendants owned and operated the
building and property where Cynthia1 was employed. Plaintiffs'
complaint sought damages for injuries Cynthia sustained when she
fell on black ice in the parking lot of defendants' property.
The motion judge granted defendants' motion after he found that
prior complaints of icing in the parking lot were insufficient
to constitute constructive notice of icing conditions in the
area where plaintiff fell, especially in light of the size of
the parking lot.
On appeal, plaintiffs argue that the judge erred in
granting summary judgment because there was sufficient evidence
in the record to establish issues of material fact as to
defendants' notice of the icing condition on the property and
their failure to correct the problem before Cynthia fell.
Plaintiffs also assert that summary judgment was unwarranted
1
We refer to plaintiffs by their first names to avoid any
confusion caused by their common surnames.
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because defendants committed spoliation2 of evidence when they
failed to produce a complete copy of the incident report that
contained information pertinent to their case.
Based upon our de novo review of the motion record, we
agree that plaintiffs established material issues of fact that
should have defeated summary judgment. We reverse and remand
for a trial.
The facts set forth in the record, viewed in the light most
favorable to plaintiff, see Angland v. Mountain Creek Resort,
Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life
Ins. Co., 142 N.J. 520, 523 (1995)), are summarized as follows.
On December 14, 2014, while walking into work, Cynthia was
injured when she slipped and fell on black ice in defendants'
parking lot, near metal drainage gates in an area that was
graded to direct water to flow into the drains. Prior to her
fall, precipitation fell and temperatures rose above and fell
below freezing over a three-day period.
After Cynthia reported her fall on the date of the incident
to her employer and defendants, Jeff Hoffner, defendants'
building engineer, examined the location where Cynthia fell.
2
A spoliation claim arises when a party in a civil action has
hidden, destroyed, or lost relevant evidence that impaired
another party's ability to prosecute or defend the action. See
Rosenblit v. Zimmerman, 166 N.J. 391, 400-01 (2001).
3 A-4791-15T4
Following the inspection, Kathy Barker, defendants' employee,
filled out an incident report based on Hoffner's observations.
According to Barker, Hoffner observed safety cones in the area
of the fall, but stated that he did not place them. Barker
confirmed that the incident report was missing additional
information, but she does not remember what is missing.3
Although Hoffner did not have any specific recollection of
Cynthia's fall or his inspection, he was aware of prior tenant
complaints about icing in portions of the parking lot.
According to Hoffner, however, there were no areas on the
property where there were small rivulets from runoff, ponding or
puddling, or any tendency to ice up near the drains. When he
became aware of an icy condition, he would call the property
manager or the snow and ice removal contractor. He would not
remove the snow or ice himself. Even when it rained and
temperatures fell below freezing, he would not expect the snow
and ice removal contractor to come to the property.
Plaintiffs filed their complaint and when discovery was
complete, defendants filed their motion for summary judgment,
3
Defendants contend that they informed plaintiffs of the
missing portion of the report before plaintiffs filed their
brief. Defendants assert that the complete sentence missing at
the bottom of the report read, "Per our building engineer, Jeff
Hoffner, he did not put cones up, nor . . . did he remember
seeing any black ice in parking lot."
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arguing that the court should grant their motion because
plaintiffs could not "identify the source of the black ice[,]"
and defendants had no notice of the condition. Plaintiffs
asserted that prior tenant complaints about icing in the parking
lot placed defendants on notice, and created a question of fact
for a jury.
Relying on Hoffner's deposition testimony, the motion judge
acknowledged that "[t]he area of the parking lot in question"
was known to have icing issues. However, he found that
plaintiffs did not meet their burden of proof to demonstrate
that the prior complaints related to the specific area where
Cynthia fell. The judge also found that plaintiffs' contention
was pure speculation, and thus, insufficient to demonstrate that
defendants had constructive notice of the hazardous condition.
The judge never addressed plaintiffs' spoliation claim that was
discussed at oral argument. He entered an order granting
defendants' motion for summary judgment and dismissed
plaintiffs' complaint with prejudice. This appeal followed.
We review the disposition of a summary judgment motion de
novo, applying the same standard used by the motion judge under
Rule 4:46-2(c). See Cypress Point Condo. Ass'n v. Adria Towers,
LLC, 226 N.J. 403, 414-15 (2016) (citations omitted). We
consider, as the motion judge did, "whether the competent
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evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 406 (2014) (quoting Brill, supra, 142 N.J.
at 540); see also R. 4:46-2(c). If there is no genuine issue of
material fact, we must then "decide whether the trial court
correctly interpreted the law." Massachi v. AHL Servs., Inc.,
396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195
N.J. 419 (2008). In our de novo review, we give no deference to
the motion judge's legal conclusions. Davis, supra, 219 N.J. at
405 (citing Nicholas v. Mynster, 213 N.J. 463, 478 (2013)).
Plaintiffs' complaint alleged Cynthia's injuries were
caused by defendants' negligence. "To prevail on a claim of
negligence, a plaintiff must establish four elements: (1) that
the defendant owed a duty of care; (2) that the defendant
breached that duty; (3) actual and proximate causation; and (4)
damages." Fernandes v. DAR Dev. Corp., Inc., 222 N.J. 390, 403-
04 (2015) (citation omitted). Generally, negligence will not be
presumed; rather, it must be proven. Rocco v. N.J. Transit Rail
Operations, Inc., 330 N.J. Super. 320, 338 (App. Div. 2000).
Indeed, there is a presumption against negligence, and "the
burden of proving [it] is on the plaintiff." Jerista v. Murray,
6 A-4791-15T4
185 N.J. 175, 191 (2005) (citing Buckelew v. Grossbard, 87 N.J.
512, 525 (1981)).
Commercial property owners have a duty to maintain their
own property free of dangerous conditions. Qian v. Toll Bros.
Inc., 223 N.J. 124, 135-36 (2015). The duty can extend to the
removal of snow or ice. Id. at 136 (citing Mirza v. Filmore
Corp., 92 N.J. 390, 395 (1983)). "The test is whether a
reasonably prudent person, who knows or should have known of the
condition, would have within a reasonable period of time
thereafter caused the [property] to be in reasonably safe
condition." Id. at 395-96. Plaintiff must also prove that "the
defective condition was a proximate cause of [her] injuries."
Id. at 396.
"Whether a commercial property owner had actual or
constructive notice of an icy condition on the [property] is for
the finder of fact, not a court on a motion for summary
judgment." Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super.
496, 503 (App. Div. 2012). "It is for a jury to determine
whether the commercial property owner had actual or constructive
notice of the dangerous condition." Ibid. (citing Mirza, supra,
92 N.J. at 395-96). Constructive notice is found where "the
condition existed 'for such a length of time as reasonably to
have resulted in knowledge and correction had the defendant been
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reasonably diligent.'" Troupe v. Burlington Coat Factory
Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016)
(quoting Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super.
507, 510 (App. Div. 1957)).
Applying these requirements to plaintiffs' proofs on
summary judgment, we conclude from our review that there was
sufficient evidence in the record from which a reasonable jury
could find that defendants had notice of ice in the parking lot
for a sufficient amount of time, and failed to remediate the
problem before Cynthia's fall. That evidence includes, as
recognized by the motion judge, proof that the lot had a history
of icing issues, Hoffner's knowledge of prior icing conditions
from tenants' complaints, and the presence of safety cones in
the area where Hoffner inspected. Notably, Hoffner testified
that it was defendants' responsibility to contact the snow
removal contractor if they encountered icy conditions. There
also existed an issue of fact about whether the grading in the
lot caused water to flow to drains near to where plaintiff fell,
and if it had the potential to turn to ice under freezing
temperatures.
There was also evidence from which a jury could have
inferred the ice was present for a sufficient length of time
such that a reasonably diligent employee acting on defendants'
8 A-4791-15T4
behalf should have observed and remedied the condition.
Plaintiffs provided weather reports demonstrating that "over ½
inch of rain" fell and temperatures periodically dropped below
freezing on days prior to the incident in question. Defendants
disputed those reports and provided evidence that contradicted
plaintiffs' allegations of freezing rain. The issue of whether
there was any freezing rainfall was probative of whether
defendants had notice of the condition and the length of time
the condition existed, if at all, without remediation efforts.
The parties' dispute about the facts asserted by plaintiffs
in their opposition to summary judgment had to be resolved by a
jury. Under these circumstances, we are constrained to reverse
the entry of summary judgment in favor of defendants.
Because of our decision to reverse the entry of summary
judgment, we have no reason to address plaintiffs' claim of
spoliation. We observe only that defendants have apparently
provided the alleged missing information. Nevertheless, our
decision not to address the claim is without prejudice to
plaintiffs raising the issue again before the motion judge, if
they wish to pursue that claim.
Reversed and remanded for trial. We do not retain
jurisdiction.
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