                                NOT FOR PUBLICATION WITHOUT THE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-5428-16T3


CORA KERTON,

         Plaintiff-Appellant,

v.

SOCIETY HILL AT DROYERS POINT
CONDOMINIUM ASSOCIATION, and
LANDSCAPE MAINTENANCE
SERVICES,

     Defendants-Respondents.
_______________________________

                   Argued September 13, 2018 - Decided October 1, 2018

                   Before Judges Fuentes, Accurso and Moynihan.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Docket No. L-4425-15.

                   Luretha M. Stribling argued the cause for appellant.

                   Michael J. Jubanyik argued the cause for respondents
                   (Reilly, Janiczek, McDevitt, Henrich & Cholden, PC;
                   attorneys; Michael J. Jubanyik and Michelle B.
                   Cappuccio, on the brief).
PER CURIAM

      Plaintiff Cora Kerton appeals from a summary judgment dismissing her

premises liability complaint against defendants Society Hill at Droyers Point

Condominium Association and Landscape Maintenance Services. We affirm.

      Viewed in the light most favorable to plaintiff, the essential facts are as

follows. Plaintiff, a Jersey City police officer, was dispatched to a reported

medical emergency at a home in the Droyers Point development on an early

March afternoon in 2015. It was snowing, as it had been all day. An

ambulance and another police car also responded. After helping to get the

victim into the ambulance, plaintiff walked back to her patrol car ahead of the

other officers. She slipped on the snow covered road and landed hard on her

back, hitting her head on the street and suffering serious injuries.

      Plaintiff filed suit, alleging her injuries resulted from defendants'

negligence in removing the snow and ice from the streets of the Droyers Point

development. Landscape Maintenance Services served as the condominium

association's snow removal contractor at the time of the accident. The contract

between defendants required snow removal to "commence when accumulations

reach[] a depth of one (1) inch or more" and obligated Landscape Maintenance

Services to make "every effort . . . to complete snow removal operations within


                                                                              A-5428-16T3
                                         2
twenty-four (24) hours." An attached schedule, which the parties agree

controls, with the exception of the plowing trigger, which they acknowledge is

irrelevant because whether one inch or two inches the trigger was met hours

before the accident, provides in pertinent part:

            A. Plowing:

                1. Plowing of all paved black top roads shall
            begin automatically in accordance with this contract
            for snowfalls of two (2) inches or more. Initial pass-
            through will be made to reasonably clear roadways to
            help enable cars to leave/arrive the community except
            in extreme conditions.

                2. After snowfall ceases, parking stalls, parking
            lots, mailboxes, fire hydrants, catch basins and
            dumpster areas will be cleared. . . .

                ....

            B. Sidewalks:

                1. Sidewalks will be cleared after snowfall ceases
            and be completed no later than 8 hours thereafter
            except in extreme conditions of heavy accumulations
            or ice for two (2) inches or more.

                2. Full width of sidewalks to be cleared of snow
            except in extreme conditions of heavy accumulations
            or ice.

                3. Access from parking stalls to sidewalks must
            be provided. If snow is pushed up against sides, path
            will be cut through.


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                                        3
      The parties agree plaintiff fell shortly after 3 p.m., when about six inches

of snow had already fallen, and that close to another inch would fall before the

snow finally ended sometime in the evening. They disagree over whether the

street on which plaintiff fell, one of twenty-five streets in the development,

had been plowed at the time of the accident. Employees of Landscape

Maintenance Services testified at deposition the contractor had a plow crew on

site conducting the "initial pass-through" throughout the day. It presented

invoices and time records on the motion it claimed corroborated the

contractor's efforts. Plaintiff and her fellow officers testified the snow was

over their boots and they did not see any plows while they were there.

      Plaintiff's snow removal expert submitted a report stating "[i]t

appear[ed] to [him] that there was at least one attempt to plow the roadways to

allow for emergency services access," but the contractor "did not have enough

equipment to keep up with this moderate winter storm event." He opined that

Landscape Maintenance Services "violated the standards and practices of snow

and ice maintenance" by failing "to have sufficient equipment at the site to be

able to achieve timely snow and ice removal for the entire development."

      After hearing argument on two different dates necessitated by

defendants' failure to initially address plaintiff's expert report, the court


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                                          4
granted summary judgment dismissing the complaint. The court found the

testimony of the officers that there was snow and ice in the road and they did

not see plows while they were in the development was not sufficient to put in

issue defendants' proofs that a crew was on site and plowing the roads on the

day of the accident. Noting plaintiff did not dispute that it was still snowing

when she fell, the court found Landscape Maintenance Services "did what the

contract said they were supposed to do. They kept the streets open for

emergency vehicles." The court found the association had no duty to do more.

      The court further determined plaintiff's expert report to be a net opinion,

finding no standard by which to measure his assertion that the contractor

lacked enough equipment to keep up with the storm and no basis for his claim

that Landscape Maintenance Services "was remiss for failing to make sure that

all snow and potentially icy areas were addressed . . . while it was still

snowing." The court denied plaintiff's motion for reconsideration.

      On appeal, plaintiff contends the court erred in ruling the report of her

expert constituted a net opinion, misinterpreted the contract and applied the

wrong standard. We disagree.

      We review summary judgment using the same standard that governs the

trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).


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                                         5
Thus we consider "whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell

Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 536 (1995)). In considering application of the

law to the facts adduced on the motion, our review is de novo without

deference to any interpretive conclusions we believe mistaken. Nicholas v.

Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995). Applying those principles here, we

agree with the trial court that summary judgment was appropriate.

      In order to establish defendants' negligence, plaintiff needed to show (1)

they owed plaintiff a duty of care; (2) they breached that duty; (3) actual and

proximate causation; and (4) damages. Fernandes v. DAR Dev. Corp., 222

N.J. 390, 403-04 (2015). The motion record makes clear that the road on

which plaintiff fell was a common element of the condominium complex, thus

making the association responsible for its maintenance. See Qian v. Toll Bros.

Inc., 223 N.J. 124, 141 (2015). Because this is a premises liability case and

the parties agree as to plaintiff's status as an invitee, see Rowe v. Mazel Thirty,

LLC, 209 N.J. 35, 45-46 (2012), the association owed plaintiff a duty to


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                                        6
exercise reasonable care to guard against "a dangerous condition on property

within the ambit of the common elements." McDaid v. Aztec W. Condo.

Ass'n, 234 N.J. 130, 141-42 (2018); Hopkins v. Fox & Lazo Realtors, 132 N.J.

426, 434 (1993). "A condominium association's duty to keep the common

elements reasonably safe is non-delegable." McDaid, 234 N.J. at 142 (citing

N.J.A.C. 5:10-4.1(a)).

      Yet plaintiff has not cited any case to us, and our own research has not

revealed one, imposing a duty on a condominium association to remove snow

from a roadway in the midst of a snow storm in order to make it safe for

pedestrians. Roadways, of course, are ordinarily intended for vehicular traffic,

not pedestrians. See Polzo v. Cty. of Essex, 209 N.J. 51, 70-71 (2012). Our

Supreme Court has made clear the law imposes a duty on the association to

keep its private sidewalks, which are intended for pedestrians, reasonably safe.

Qian, 223 N.J. at 142. That obligation may, as with the duty on a commercial

property owner, "require removal of snow or ice or reduction of the risk,

depending upon the circumstances." Id. at 136 (quoting Mirza v. Filmore

Corp., 92 N.J. 390, 395-96 (1983)). But we know of no case imposing such a

duty, even on a commercial landowner, while snow continues to fall.




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                                       7
      Landscape Maintenance Services' duty to plaintiff springs from its

contract with the association. See Aronsohn v. Mandara, 98 N.J. 92, 105

(1984) ("Under well-established principles a contractor has a duty to persons,

other than the one with whom the contractor has made the contract, to carry

out his undertaken work in a careful and prudent manner, and he may be

responsible to third persons for their personal injuries and property damages

proximately caused by his failure to exercise that care."). Its duty to plaintiff

is defined "by the nature and scope of its contractual undertaking." McDaid,

234 N.J. at 142 (citation omitted).

      Having reviewed the contract, we agree with the motion judge that it

requires Landscape Maintenance Services to begin plowing all the "paved

black top roads" when the accumulation trigger is reached, but also

unambiguously limits its obligation, while snow continued to fall, to an

"[i]nitial pass-through . . . made to reasonably clear roadways to help enable

cars to leave/arrive the community except in extreme conditions." 1 The snow

removal contractor's obligation under the contract to clear the sidewalks to



1
  Although the judge characterized Landscape Maintenance Services'
obligation under the contract to keep "the streets open for emergency
vehicles," instead of for cars generally, the inconsequential error did not affect
his otherwise sound analysis.
                                                                          A-5428-16T3
                                        8
make them safe for pedestrians did not begin until the snow had stopped,

consistent with the association handbook in the record advising unit owners

that "[s]now removal from sidewalks does not normally commence until the

snowfall has ended."

      Having correctly defined the duty at the time of plaintiff's accident as

one limited to keeping the roadways reasonably clear to permit cars to enter

and leave the development, the court was also correct that the undisputed facts

made apparent the duty was discharged. The record makes clear that an

ambulance and two police cars were able to both enter and leave the

development with little if any difficulty while the snow continued. More

direct proof would be difficult to come by.

      We reject any notion that defendants had an implied duty to make the

roadways safe for pedestrians who would be getting into and out of the cars

coming and going out of the development. The association handbook and the

snow removal contract both make plain that sidewalks, mailboxes and parking

stalls would not begin to be cleared until the snow ended. The court was

correct to reject an implied obligation on the part of defendants to make the

roadway safe for pedestrians, which was directly contrary to its express

obligation to clear the sidewalks only after the snow ended. Pollack v. Quick


                                                                         A-5428-16T3
                                        9
Quality Rests., Inc., 452 N.J. Super. 174, 187-88 (App. Div. 2017) (noting

"[w]here the terms of a contract are clear, we enforce the contract as written

and ascertain the intention of the parties based upon the language.").

      Finally, we agree with the trial court's conclusion that plaintiff's expert

report was not sufficient to stave off summary judgment to defendants.

Although a court faced with an evidentiary issue in the context of a summary

judgment motion ordinarily decides the evidence question first, see Estate of

Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010), here it

was necessary to define the duty owed to plaintiff in order to determine

whether the opinions offered by the expert were relevant to the issues in

dispute, even assuming they were admissible.

      Because the contract only required the contractor, while it remained

snowing, to keep the roadways reasonably clear to permit cars to enter and

leave the development and the proofs make readily apparent it did so,

plaintiff's expert's opinion that the snow removal contractor "was remiss for

failing to make sure that all snow and potentially icy areas were addressed . . .

while it was still snowing" and lacked the equipment to keep up with the storm

was without factual basis in the record. See Townsend v. Pierre, 221 N.J. 36,

55 (2015).


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                                       10
      Plaintiff's remaining arguments, to the extent we have not addressed

them, lack sufficient merit to warrant discussion in a written opinion. See R.

2:11-3(e)(1)(E).

      Affirmed.




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