                        NOT FOR PUBLICATION WITHOUT THE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.



                                            2                                     A-4791-15T4
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."


                                           4                                    A-4791-15T4
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

                                            5                                     A-4791-15T4
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

                                            7                                     A-4791-15T4
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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