SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3572- 22 JAMIE STERLACCI, Plaintiff-Appellant,

v. WAWA FOOD MARKET, Defendants-Respondents.

_ _________________________

Agued May 29, 2024

– Decided August 27, 2024 Before Judges Sumners and Rose. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1862- 21. James Bayard Smith argued the cause for appellant (John J. Pisano, and Smith and Williams Law Firm, LLC, attorneys; John J. Pisano, on the brief). Richard S. Ranieri argued the cause for respondent (Weber Gallagher Simpson Stapleton Fires & Newby LLP, attorneys; Richard S. Ranieri and James E. Haj el, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3572

- 22

In this negligence action arising from plaintiff's slip and fall on black ice at defendant's parking lot, plaintiff appeals the s ummary judgment dismissal of her complaint. The court ruled that as a matter of law, plaintiff failed to establish defendant had actual or constructive notice of the hazardous condition. We reverse the order and remand for a trial on all iss ues. We review the motion court's order de novo, Prudent ial Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998), apply ing the same standard as the court, Statewide Ins. Fund v. Star Ins. Co ., 253 N.J. 119, 124-25 (2023). Summary judgment should be granted when "the pleadi ngs, depositions, answers to interrogatories and admissions on file, t ogether with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46 -2(c). The evidence is viewed in the light most fa vorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 5 40 (1995); see also
R. 4:46 -2(c)

. In New Jersey, a business owes a duty of reasonable care to invitees "to provide a safe environment for doing that which is within the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 17 5 N.J. 559, 563 (2003) (citing Hopkins v. Fox & Lazo Realtors , 132 N.J. 426, 433 (1993)). The duty of due3 A- 3572

- 22

care to invitees "requires a business owner to disc over and eliminate dangerous conditions, to maintain the premises in safe condit ion, and to avoid creating conditions that would render the premises unsafe." Ibid. "Ordinarily an injured plaintiff . . . must prove, as an element of the cause of ac tion, that the defendant had actual or constructive knowledge of the dangero us condition that caused the accident." Ibid. ; see also Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015). The absence of actual or constructive noti ce of a dangerous condition "is fatal to [a] plaintiff's claims of premises lia bility." Arroyo v. Durling Realty,
LLC , 433 N.J. Super. 238, 243 (App. Div. 2013). "A de fendant has constructive notice when the condition existed 'for such a lengt h of time as reasonably to have resulted in knowledge and correction had the d efendant been reasonably diligent.'" Troupe v. Burlington Coat Factory Ware house Corp., 443 N.J. Super. 596, 602 (App. Div. 2016) (quoting Parmenter v. Jar vis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957)). Here, plainti ff went to defendant's gas station and convenience sto re in Rahway between midnight and 12:30 a.m. on February 17, 2021

. It was not snowing or raining at the time, but there had been a snowstorm on February 15 , continu ing into February 16. Main roads were plowed clear by that evening/early morning, but some snow and ice remained on side roads

.4 A- 3572

- 22

Plaintiff described the weather conditions as freez ing cold when she drove into defendant's parking lot

. After exiting her vehicle, plaintiff walked to the store's entrance and slipped on black ice on the pa rking lot surface causing her to fall to the ground. She maintains she did not s ee the ice until after she fell

. Looking around the lot, she saw additional black and shiny ice on the surface of the parking lot and no evidence of salt or sand whe re she parked to prevent

some one from slipping and falling. Plowed snow was pushed up along the edge of the parking lot in front of the parking spaces. One of defendant's employees standing by the gas pum ps responded to plaintiff's fall and saw the ice where she fell. T he employee admitted that the area of plaintiff's fall should have been salted or cordoned off. Plaintiff filed a negligence action against defenda nt, claiming she sustained permanent back injuries from the accident . After discovery, defendant successfully moved for summary judgment. In its bench decision, the motion court found plai ntiff's liability claims were "speculative " because she "did not demonstrate [defendant] had any actual or constructive notice of the black ice plaintiff s lipped on ." The court, noting plaintiff had no difficulty driving on the roads or to the parking lot, reasoned her claim that defendant had constructive notice of the hazardous condition lacks5 A- 3572

- 22

support because she failed to establish through an expert how the ice had form ed by the time she fell. The court maintained plaintiff need to explain how the ambient air and ground temperatures following the sn owstorm caused black ice. Looking at the facts in the light most favorable to plaintiff , we conclude there exists a genuine issue of material fact as to whether de fendant had constructive knowledge of the hazardous condition t hat caused her accident. The area including defendant's business experienced a snowstorm over the course of two days prior to plainti ff 's accident

. Defendant's parking lot was cleared of snow and ice to allow customers to safely ingress/egress its store. The plowed snow was pushed up in front of the parki ng spaces. A reasonable jury could find defendant ha d constructive notice of the black ice that caused plaintiff's injury

. A reasonable jury could infer, without an expert's opinion that the snow plowed to the edge of the parking spaces m elted during the day and the resulting water leaked o nto the parking lot and form ed into black ice when the freezing cold temperature that night based on plai ntiff's photographs show ing melted snow. A reasonable jury could then find defendant was negligent in failing to take precautions by applyin g a substance to prevent the hazardous condition where plaintiff fell. Accordin gly, based on our de novo review of the record, summary judgment should not h ave been granted.6 A- 3572

- 22

Reversed.