SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0067- 22 MARIA PERDOMO, Plaintiff-Appellant,

v. SNOWLIFT, LLC, Defendant-Respondent, and
PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.

__________________________

Argued January 16, 2024

– Decided April 10, 2024 Before Judges Gilson and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L -1749- 18. Maurice J. Donovan argued the cause for appellant (Law Office of Barbosa Donovan, attorneys; Marilyn K. Barbosa and Maurice J Donovan, of counsel and on the briefs).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he 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- 0067

- 22 Jennifer Huang (KMA Zuckert LLC) argued the cause for respondent (Jennifer Huang and Nicholas E. Pantelopoulos, attorneys ; Jennifer Huang and Nicholas E. Pantelopoulos, of counsel and on the brief).
PER CURIAM In this personal injury action, plaintiff Maria Per domo appeals from a July 29, 2022 order granting summary judgment in favor o f defendant Snowlift, LLC (Snowlift), the contractor hired by United Airlines (United) to perform snow removal and clearance services at Newark Liberty Int ernational Airport (EWR). We affirm.
I. We discern the following facts from the motion reco rd construed in the light most favorable to Perdomo as the non-moving p arty. See Templo Fuente De Vida Corp. v. Nat. Union Fire Ins. Co. of Pittsb urgh, 224 N.J. 189, 199 (2016). The Port Authority leases Terminal C at EWR to Unit ed. Under the lease agreement, United is responsible for snow removal and clearance at United ’s terminals. United retained Snowlift to provide snow removal an d clearance services from the aircraft gate position areas, the ramp, an d the apron areas

. The Agreement defines snow clearance as the "pushing an d piling of accumulated3 A- 0067

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snow" and snow removal as "either the hauling away of snow or loading of snow melters and the operation thereof." As to the scope of services, Snowlift agreed to perform snow clearance services "on a continuous twenty-four hours per day and seven days per week basis during the [s]now [s] eason, " and push and plow snow until all accumulations were put into piles at the designated locations as set forth in the addendum to the Agreement. Snowlift also agreed to perform snow removal service from the designated United are as using an ice melter upon United's request. Further, Snowlift would continue to perform the snow removal service until all snow accumulations placed in pile s has melted and drained excepting any piles United chooses to leave for nat ural melting. Both services required United's written authorization for the sat isfactory completion of services and Snowlift's release from the performance of its contractual services. Pursuant to section 5.7.3 of the Agreement , Snowlift was precluded from performing any services for which there would be an additional charge or was the responsibility of another supplier without prior written authorization from United. In that regard, Snowlift was only to "perf orm ice control on any pavement when requested in writing by United." The Agreement defined ice control as "the spreading of material such as sodiu m acetate/formate, potassium, acetate, sand[,] and salt."4 A- 0067

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Section 5.6 of the Agreement also stat ed that Snowlift "shall provide [s]now [r]emoval [s]ervices and [s]now [c]learance [s]ervices in a manner that provides a clean and safe environment for the employee s and guests that use the areas from which snow is removed." Section 5.7 pro vid ed Snowlift "shall check the condition and performance and make adjustments to the schedule and snow removal [and] clearance program to ensure that faci lities meet the performance standards" of United. Beginning March 13, 2017, at 4:00 a.m. and ending at 8:45 p.m. on March 17, Snowlift performed snow removal and snow cleara nce services, as approved by United, at Terminal C during a nor'easter that b rought blizzard conditions

over po rtions of New Jersey although EWR remained open. Joseph Ferrucci, a vice president at Snowlift, testified that Snowlift did not perform snow or ice abatement. Snowlift "push ed or piled" snow out from the left side of concourse C-3, gates 130 through 136 , toward the designated pi ling area near gate 130. At United's request, Snowlift also removed the snow ne ar gate 130 for melting by using a 150-ton melter. Also at United's request, beginn ing March 14 at 5:00 a.m. and ending the next day at 3:00 p.m., Snowlift used a pay loader to scrape the snow off the ground "because the temperature wa s cold" and to make sure any snow residue was removed. After Snowlift's services were completed, a5 A- 0067

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United representative signed the work authorization , indicating the inspection and approval of Snowlift's removal and clearance se rvices. According to Ferrucci, Snowlift did not provide any spreading ma terials to the Terminal C because "[t]ypically, United provided the applicati on of melting materials at their own gates at the terminal." Perdomo testified that she was employed as a United ramp supervisor. According to Perdomo, at approximately 1:00 a.m. on March 15, she was driving a vehicle on the airport ramp transporting United e mployees to Terminal C , concourse C-3 between Gates 134 and 136 to prepare the necessary ground equipment and ensure the baggage tug was operationa l for an inbound flight. Perdomo located the airport tug, stopped, and exite d the vehicle. While walking on the ramp at gate 134, she slipped and fell on "black ice," resulting in inju ries. During her deposition, Perdomo described the ramp a s "snowier" and "icier" than the areas shown in photographs taken of gates 105 or 107 at concourse C2 at 9:00 p.m., the night before her fall. Perdomo testified that at the time of the incident, there were no snow removal trucks or equipment in the area becaus e the snow had been removed by Snowlift. In March 2018, Perdomo filed her complaint against Snowlift, asserting that her trip and fall was caused by Snowlift's neg ligence in the "maintenance,6 A- 0067

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abatement, removal[,] and remediation of snow and i ce on the tarmac of Terminal C." The next day, Perdomo amended her com plaint, adding the Port Authority of New York and New Jersey (Port Authorit y) as a defendant. In support of its motion for summary judgment, Snow lift provided the certification of Thomas Kerrigan, a United senior manager for ground equipment maintenance at EWR. Kerrigan certified that in March 2017, he was employed as United's ramp service supervisor for Te rminal C. In that regard, Kerrigan's responsibilities included "coordinating and overseeing United's snow and ice removal activities on the ramp or the secur e side of the terminal build ing." He stated United hired Snowlift to remove sn ow from the ramp area where plaintiff "allegedly fell." Kerrigan further certified that United did not give Snowlift written authorization to perform ice remediation or control. Fred Burns was Snowlift's lead supervisor during th e nor'easter. He testified that Snowlift performed snow removal and cl earance services for gates
134 to 136 between 4:30 a.m. on March 13 and 3:30 p.m. on Mar ch 14. Burns stated the services rendered by Snowlift did not in clude any pre-ice spreading or any application during this nor'easter. He furt her testified that Snowlift was "never involved" in any kind of ice spraying of any chemical at Terminal C during any storm.7 A- 0067

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In opposing Snowlift's motion, plaintiff relied on the incident report prepared by Port Authority police officer Leonard H offman. The report stated Hoffman was told that as Perdomo was walking on the ramp; she lost traction on the "slipper y ground," fell backwards, and hit her head on the gr ound. Hoffman interviewed employees gathered around the g ate; none saw Perdomo fall. He observed the condition of the "floor" as "[i]cy, [s]nowy, and very slippery due to the recent snowstorm." Hoffman ini tially testified that the ground was "wet, icy, [and] slushy" but there was n o snow where Perdomo fell. He later clarified his testimony, stating that "[it ] wasn't like mounds of snow . . . it was more turning to, like, slush, and which was real ly turning to ice . . . ." Perdomo also relied on the expert report prepared b y Matthew D. Lykins , who was retained to investigate and determine wheth er Snowlift caused or contributed to Perdomo's injury. The Lykins report , dated September 13, 2021, stated that Perdomo fell as she walked from a vehic le to an aircraft tug near gate
134 in the C-3 concourse when she fell on the "icy tar mac." Lykins reviewed the discovery produced by the parties and the photo graphs taken by him on his tour of the C-3 ramp near gates 130 to 136 on July 16, 2021. I n forming his opinion , Lykins relied on photograph s taken "around the time of plaintiff's fall representing a photographic description of the ramp conditions;" however, we8 A- 0067

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are unable to discern from the report whether the p hotographs were of the C- 3
ramp. 1 Based on Lykins review of the discovery and the fed eral aviation regulations, he concluded that the combination of t he "hazard and exposure" of the icy ramp created an unreasonably dangerous cond ition that caused or contributed to Perdomo's fall. Lykins further opin ed that Snowlift failed to meet the safety standards under section 5.7 of the Agree ment by failing to: (1) adequately inspect the ramp after performing snow c learance near gate 134; and (2) identify the hazard of the icy ramp while perfo rming snow clearance. Snowlift failed to meet its contractual obligation and notify United of the hazard of the icy surface conditions while performing snow clearance. Lastly, Snowlift failed to comply with 14 CFR Part 139.313(b)(1) 2 to "remove as completely as practica l" snow, ice, and slush from the ramp.

1 Presumably, these are the same photographs identifi ed by Perdomo as gates 105 or 107 at concourse C- 2 taken at 9:00 p.m. the night before her fall.

2 14 CFR Part 139.313(b)(1) governs ice and snow cont rol plans at airport. The provision states: "The snow and ice control plan r equired by this section must include, at a minimum, instructions[,] and procedur es for [p]rompt removal or control, as completely as practical, of snow, ice, and slush on each movement area." 14 CFR Part 139.5 defines certification holder as a n airport operating certificate for operation of a class I, II, III, or IV airport. See Certification of Airports 69 Fed. Reg. 642 5 (Feb. 10, 2004)

.9 A- 0067

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After the close of discovery, the Port Authority mo ved for, and was granted summary judgment, which was not appealed. Snowlift also moved for, and was granted summary judgment, which is the basi s for this appeal.
On July 29, 2022, the trial court rendered an oral dec ision and entered an order dism issing Perdomo's complaint with prejudice. In granting su mmary judgment, the trial court concluded Perdomo did not establish that Snowlift failed to perform its contractual obligation as set forth in the Agreement with United. In rejecting Perdomo's argument that Snowl ift was obligated to reinspect areas where snow had been cleared or remo ved, the court explained that Snowlift's obligation to Perdomo "beg[an] and flow[ed] with the contract." The court found that it was undisputed that Snowlif t cleared the snow to the area designated by the Agreement and Snowlift's complete d work was "signed off" by United. The court found there were no disputed facts in the record that Snowlift failed to follow the terms of the Agreemen t. The court further found that de-icing of the area was in the "control" of U nited and the federal regulation relied upon by Perdomo's expert applied to United a s the certificate holder and

not to Snowlift. Therefore, based on the language in the Agreement, Snowlift was not required to take any further action or rein spection, and no duty extended

to Perdomo.10 A- 0067

- 22 II. On appeal, Perdomo presents the following argument s for our consideration:

POINT I
SUMMARY JUDGMENT WAS IMPROVIDENTLY GRANTED BECAUSE PERDOMO ADVANCED A VIABLE NEGLIGENCE CAUSE OF ACTION AGAINST SNOWLIFT.
POINT II
SNOWLIFT BREACHED ITS WELL-ESTABLISHED DUTY TO PERDOMO TO PERFORM ITS SNOW REMOVAL WORK IN A REASONABLY SAFE AND NON -NEGLIGENT MANNER.
POINT III
THERE ARE OTHER EXPRESS DUTIES UNDER THE CONTRACT WHICH SNOWLIFT BREACHED RESUL[T]ING IN [PERDOMO 'S] FALL. POINT IV
THE FACTUAL RECORD CONFIRMS SNOWLIFT HAD NOT LEFT THE AREA OF THE FALL AND WAS STILL WORKING AT THE TIME OF THE FALL.
POINT V
SNOWLIFT WAS RESPONSIBLE FOR ICE CONTROL PURSUANT TO THEIR CONTRACT WITH UNITED.11 A- 0067

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We review a grant or denial of summary judgment de novo, "appl ying the same standard used by the trial court." Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Based on that standard, we are required to "determine whether 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no ge nuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46 -2(c)). "Summary judgment should be granted . . . 'against a party who fails to make a showing suffici ent to establish the existence of an element essential to that party's case, and on which th at party will bear the burden of proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 32 2 (1986)). We do not defer to the trial court's legal analysis or statutory in terpretation. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (20 18); Perez v. Zagami, LLC , 218 N.J. 202, 209 (2014). "An issue of material fact is 'genuine only if, con sidering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring t he non-moving party, would12 A- 0067

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require submission of the issue to the trier of fac t.'" Grande v. St. Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v. Bhag at, 217 N.J. 22, 38 (2014)). In a negligence action, a plaintiff bears the burde n of proving defendant: (1) owed a duty of care; (2) breach ed that duty; (3) proximate ly caused the plaintiff's injuries; and (4) caused actual damages . Shields v. Ramslee Motors , 240 N.J. 479, 487 (2020) (quoting Robinson v. Vivir ito, 217 N.J. 199, 208 (2014)). "'The question of whether a duty exists i s a matter of law properly decided by the court, not the jury.'" Carter Linco ln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 (1994) (internal cit ation omitted). In the context of a snowstorm, our Supreme Court ad opted the ongoing storm rule in Pareja v. Princeton International Pro perties , holding "commercial landowners do not have a duty to remove the accumul ation of snow and ice until the conclusion of the storm, but unusual circumstan ces may give rise to a duty before then." 246 N.J. 546 , 558 (2021). Generally, the determination of a duty is considered "a matter of law properly decided by the court." Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991). Perdomo contends Snowlift failed to exercise proper and reasonable care in the snow removal services during the nor'easter. She further contends the trial court focused exclusive ly on Snowlift's legal duty but erred in finding that13 A- 0067

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the legal duty was limited by the Agreement between Snowlift and United, resulting in an "artificial and inordinately limite d interpretation" of the Agreement. We reject Perdomo's contentions. Based upon our de novo review, we discern no error of law. At the outset,

we note Pareja is not applicable to these facts. Perdomo has presented no evidence to establish the snow removal and clearance was done in a manner that caused or increased the risk of harm to her. Here, the parties do not dispute that Snowlift was called to EWR to perform snow removal and clearance services at United ’s Terminal C. T he record shows Snowlift performed the contracted services for snow removal and clearance at gates 134 to 136 to United's satisfaction. The Agreement expressly provided that the control of ice abatement or remediation was in the "control" of United. It is also undisputed that United did not delegate the exercise of its control of ice abatement or remediation by written request to Snowlift to perform ice abatement or remediation for the 2017 nor'easter. Therefore, we agree with the trial court 's holding that Snowlift did not owe a contractual duty to Perdomo. Therefore, summary judgment was properly granted in the absence of any genuine issue of material fact.14 A- 0067

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To the extent we have not expressly addressed any o f Perdomo's remaining arguments, we find they are without suffi cient merit to warrant discussion in this opinion. R. 2:11 -3(e)(1)(E). Affirmed.