SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5022-16T1

RICARDO SUAREZ,

Plaintiff-Appellant,

v.

HATCO CHEMICAL CORP.,

Defendant.

_______________________________

CHEMTURA CORPORATION,1

Defendant/Third-Party 

Plaintiff-Respondent,

v.

SECURITAS SECURITY SERVICES,

Third-Party Defendant.

_______________________________

Submitted May 29, 2018 - Decided

Before Judges Accurso and Vernoia.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Docket No. 

L-7580-15.

 

1 Improperly plead as Hatco Chemical Corp.

NOT FOR PUBLICATION WITHOUT THE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.

July 23, 2018
2 A-5022-16T1

Larry S. Geller, attorney for appellant.

Becker LLC, attorneys for respondent (Joseph 

F. Falgiani, on the brief).

PER CURIAM

Plaintiff Ricardo Suarez appeals from a summary judgment 

dismissing his premises liability complaint against defendant 

Chemtura Corporation. We affirm.

Viewed in the light most favorable to plaintiff,2 the facts 

are as follows. Plaintiff, twenty-years-old at the time of the 

accident, was employed as a security guard by Securitas Security

Services,3 assigned to defendant's chemical plant in Fords, New 

Jersey. He worked the midnight to 8:00 a.m. shift. When he 

arrived for work on February 3, 2015, defendant's maintenance 

 

2 Plaintiff did not comply with the requirement of R. 4:46-2(b) 

to file a responding statement of material facts either 

admitting or disputing each of the facts in the movant's 

statement. Instead, he filed his own statement of material 

facts, not referencing defendant's statement. Plaintiff's 

obligation to respond in accordance with the Rule was not 

optional. See Polzo v. Cty. of Essex, 196 N.J. 569, 586 (2008). 

He is thereby deemed to have admitted those facts in defendant's 

statement having sufficient support in the record. See R. 4:46-

2(b). As the essential facts are either drawn from the 

transcript of plaintiff's deposition or the contract between 

defendant and plaintiff's employer, Securitas Security Services, 

both of which are included in the appendix, his non-compliance

has not impeded our review. See Kenney v. Meadowview Nursing & 

Convalescent Ctr., 308 N.J. Super. 565, 569 (App. Div. 1998).

 

3 Securitas did not file a brief and is not a party to this 

appeal.
3 A-5022-16T1

crew was just finishing plowing and salting the plant's interior 

roads and walkways. It had not snowed that day but there was 

snow on the ground. Plaintiff had seen the crew plowing and 

salting at the end of his shift the day before. As he was 

leaving, his supervisor told him if the conditions were bad when 

he came in that evening, he did not have to go out. 

The plant is situated on seventy-seven acres and consists 

of multiple buildings and structures. Plaintiff was responsible 

for walking the property, checking to see that doors and gates 

were locked and reporting any unsafe conditions, including ice 

on the ground.

4 Plaintiff testified conditions were fine when he 

began his tour, "dark and cold. That's it." His first tour the 

morning of the accident was uneventful. He did not notice any 

icy conditions. He did not see any ice on his second tour 

either. As he was nearing the end of that tour, however, he 

slipped on ice near the west lift station, hurting both wrists,

his left shoulder and his neck. 

After his accident, plaintiff returned to the guard house 

and wrote in the log, "[s]lipped and fell, west lift station, 

icy conditions." He testified at deposition that he did not

 

4 The contract between defendant and Securitas provides that 

security officers shall "[o]bserv[e] and report suspicious 

activities, unsafe conditions, and security breaches." 
4 A-5022-16T1

recall inspecting the area where he fell but knew he was walking 

on the snow toward a paved area. When asked how he knew there 

was ice under the snow if he did not inspect the area, plaintiff 

replied, "I slipped. . . . [Y]ou can't slip on snow." In his 

own statement of material facts, plaintiff asserted the 

maintenance crew "[o]bviously . . . did not see the black ice"

on which he fell either "or they would have spread salt on it." 

Defendant submitted its snow removal protocol for the Fords 

plant in support of its motion. The policy details 

responsibilities for plowing and salting interior roadways and 

shoveling and salting sidewalks "to insure the plant stays open 

and all Hatco employees, suppliers and customer trucks, can 

enter and leave site safely."

Following discovery, defendant moved for summary judgment, 

contending it owed no duty to plaintiff under the independent 

contractor exception of Wolczak v. National Electric Products

Corp., 66 N.J. Super. 64, 75 (App. Div. 1961) (noting "the 

unimpaired line of holdings to the effect that the duty to 

provide a reasonably safe working place for employees of an 

independent contractor does not relate to known hazards which 

are part of or incidental to the very work the contractor was 

hired to perform"). Alternatively, defendant argued plaintiff 

failed to carry his burden to show it had actual or constructive 
5 A-5022-16T1

notice of the icy condition where he fell or, assuming such 

notice, that it failed to act in a reasonably prudent manner to

remove or reduce the hazard. Plaintiff opposed the motion, 

arguing defendant owed him a non-delegable duty of reasonable

care, and that material disputes of fact precluded the entry of 

summary judgment. 

The trial court entered summary judgment for defendant, 

dismissing plaintiff's complaint. Relying on Wolczak, the judge 

found defendant had no duty to plaintiff to guard against "a 

known hazard incidental to the very work that the gentleman was 

hired . . . to warn about." The judge further found defendant 

had no constructive notice, opining that "no reasonable[,] 

rational Essex County jury could find that in fact that 

defendant breached a duty here."

Plaintiff appeals, arguing the trial court erred in 

concluding defendant did not owe him a duty and that material 

disputed facts precluded summary judgment.

We review summary judgment using the same standard that 

governs the trial court. Murray v. Plainfield Rescue Squad, 210 

N.J. 581, 584 (2012). 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 
6 A-5022-16T1

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 summary judgment was 

appropriate, although not for precisely the same reasons as the 

trial court. See State v. Maples, 346 N.J. Super. 408, 417 

(App. Div. 2002) (an appeal is taken from the court's order 

rather than reasons for the order).

We acknowledge the long line of cases, represented by 

Wolczak, expressing "[t]he general principle . . . that the 

landowner is under no duty to protect an employee of an 

independent contractor from the very hazard created by the doing 

of the contract work," provided the landowner has not retained

"control over the means and methods of the execution of the 

project." Muhammad v. N.J. Transit, 176 N.J. 185, 198 (2003)

(quoting Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955)).

5 

But in our view, the facts of this case are much closer to those 

 

5 No one suggests defendant retained any control over how 

plaintiff performed his duties. 
7 A-5022-16T1

in Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 305 

(App. Div. 2000), where we addressed directly "the duty owed to 

a security guard with respect to ice and snow accumulating on 

walkways traveled on his usual rounds," than those on which 

defendant relies.

The plaintiff in Moore was a security guard employed by 

Wachenhut, which had a contract with Schering Plough to provide 

around-the-clock security services at Schering's sprawling Essex 

County facility. Id. at 303. Moore was injured when he slipped 

on snow walking between two buildings on a day the complex was 

closed between Christmas and the New Year. Ibid. Writing for 

the panel, Judge King noted the cases finding exceptions to the 

duty of reasonable care owed by a landowner to the employees of 

an independent contractor "invariably involve the 'very work the 

contractor was hired to perform,' such as operational hazards 

inherent in repairing a defective roof." Id. at 306 (quoting 

Rigatti v. Reddy, 318 N.J. Super. 537, 541-42 (App. Div. 1999)).

Noting that none of the parties alleged Moore had anything 

to do with snow removal on the walkways, although "[h]is 

superiors may have had a duty to notify Schering's maintenance 

foreman when the snow started," Judge King held Schering had a 

duty of reasonable care to Moore for the safety of the security 

guard with respect to snow and ice accumulation while on his 
8 A-5022-16T1

rounds. Id. at 307. Whether Schering had discharged its duty 

under all the circumstances was a question for the jury. Ibid.

This case is not on all fours with Moore, because plaintiff 

testified at deposition it was his responsibility to report

unsafe conditions at the plant, including the presence of 

accumulated ice and snow. Although we are not nearly so 

sanguine as the trial judge about the absence of a duty to 

plaintiff under the circumstances of this case, we do not need 

to consider the issue further. Even assuming a duty existed, we 

agree with the trial judge no reasonable jury could find for 

plaintiff on this record.

In order to establish defendant's liability, plaintiff 

needed to show: "(1) a duty of care, (2) a breach of that duty, 

(3) actual and proximate causation, and (4) damages." Davis v. 

Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting 

Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J.

576, 594 (2013)). Because this is a premises liability case and 

plaintiff a business invitee, see Rowe v. Mazel Thirty, LLC, 209 

N.J. 35, 43 (2012), defendant owed plaintiff "a duty of 

reasonable care to guard against any dangerous conditions on 

[its] property that the owner either knows about or should have 

discovered. That standard of care encompasses the duty to 

conduct a reasonable inspection to discover latent dangerous 
9 A-5022-16T1

conditions." Id. at 44 (quoting Hopkins v. Fox & Lazo Realtors, 

132 N.J. 426, 434 (1993)). "[A]n invitee seeking to hold a 

business proprietor liable in negligence 'must prove, as an 

element of the cause of action, that the defendant had actual or 

constructive knowledge of the dangerous condition that caused 

the accident.'" Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 

245, 257 (2015) (quoting Nisivoccia v. Glass Gardens, Inc., 175

N.J. 559, 563 (2003)).

The absence of actual or constructive notice of the 

dangerous condition is generally fatal to a plaintiff's claim of 

premises liability, Arroyo v. Durling Realty, LLC, 433 N.J. 

Super. 238, 243 (App. Div. 2013), and it is here. The 

undisputed facts in the motion record make clear defendant was 

without actual or constructive notice of the icy condition near 

the plant's west lift station. There was obviously no actual 

notice because plaintiff, who had already walked the area just 

two hours before the accident, testified he did not see ice at 

any time before or after he fell. Plaintiff himself asserted on 

the motion that defendant's maintenance crew had not seen the 

black ice either, "or they would have spread salt on it." 

As to constructive knowledge, plaintiff testified 

defendant's maintenance crew had just finished plowing and 

salting when he arrived for work and that conditions were fine 
10 A-5022-16T1

when he began his tour. Indeed, plaintiff testified at his 

deposition that he did not use the spotlight he was carrying to 

determine whether conditions were icy in the area where he fell 

"[b]ecause everything seemed okay." If plaintiff, who had twice 

walked the area in the hours before the accident, saw nothing to 

put him on notice of the icy conditions near the west lift, we 

cannot see how defendant could be charged with such notice. 

Further, plaintiff offered no proof defendant failed to 

exercise reasonable care in its maintenance of the roads and 

sidewalks he traversed in the course of his duties at the plant, 

even assuming it had notice of the icy conditions. Defendant 

had a snow removal protocol in place at the time of the 

accident, which it was apparently following as plaintiff 

testified the crews had just finished plowing and salting the 

entire plant just as he arrived, even though it had not snowed 

all day. 

Having reviewed the motion record, we are satisfied 

plaintiff failed to establish a prima facie case of premises 

liability, entitling defendant to summary judgment dismissing 

the complaint.

Affirmed.