SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T3 HELEN CONTE and KEVIN CONTE, h/w, Plaintiffs

- Appellants,

v. THE FOXMOOR MASTER ASSOCIATION, INC., THE FOXMOOR IV CONDOMINIUM A SSOCIATION, INC., FOXMOOR ASSOCIATES, LLC, and LEVANDUSKI SNOW REMOVAL SERVICES, LLC, Defendants, and
SIGNATURE PROPERTY GROUP and WYNDHAM PLACE CONDOMINIUM ASSOCIATION, Defendants

- Respondents.

______ ___________________________

Argued March 6, 2019

– Decided March 27, 2019 Before Judges Fuentes, Vernoia and Moynihan.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

- 3.2 A

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- 17T3 On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L

- 2890

- 15. Brandon C. Simmons argued the cause for appellants (Szaferman, Lakind, Blumstein & Blader, PC, attorneys; Michael R. Paglione, on the briefs). Amanda J. Sawyer argued the cause for respondents (Methfessel & Werbel, attorneys; Amanda J. Sawyer, of counsel and on the brief).
PER CURIAM Plaintiffs Helen Conte and Kevin Conte appea l from a January 3, 2018 order granting summary judgment to defendant s Signature Property Group (Signature) and Wyndham Place Condominium Association (Wyndham) dis missing the complaint against defen dant s without prejud ice. 1 Plaintiffs also appeal an April 9, 2018 order denying their motion for reconsideration and dismissing the complaint against defendants with prejudice. We affirm in part, reverse in part and remand for further proceedings.

1 The order a lso granted summary judgment to defendants Foxmoor Master Association , Inc., The Foxmoor IV Condominium Association, Inc., and Foxmoor Associates , LLC , and dismissed the complaint as to those defendants with prejudice . Plaintiffs do not challenge on appea l the court's award of summary judgment to these defendants or the dismissal of the complaint against them with prejudice

.3 A

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I n our review of the record b efore the trial court, we view the facts and all reasonable inferences therefrom in the light most favorable to plain tiffs because they are the parties against whom defendants' summary judgment motion was filed

. Brill v. Guardi an Life Ins. Co. of Am. , 142 N.J. 520, 540 (1995). Applying that standard, the record before the motion court established the following facts. Plaintiff Helen Conte slipped and fell on ice as she walked her dog on a sidewalk that runs parallel to Washingt on Boulevard in Robbinsville. The sidewalk is abutted by a fifteen

- building, 240

- unit residential condominium complex that is owned by Wyndham , a non - profit resi dential condominium association . Signature serves as Wyndham's property manager for the
condo minium complex. A raised berm approximately two

- feet wide runs parallel to the interior edge of the sidewalk

. Helen Conte sustained personal injuries as a result of her fall

. In their complaint, 2 plaintiffs allege d Helen Conte's fall and injuries were
pr oximately caused by defendants' negligence. More particularly, they alleged

2 P laintiffs filed an original and two amended complaints. We summar ize the allegations in the second amended complaint.4 A

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Wyndham owned the sidewalk and defendants negligently failed to remove ice from the sidewalk , allowed the hazardous ice condition to exist and failed to warn of the hazardous con dition. Plaintiffs also allege d Lev anduski Snow Removal, LLC, (Levanduski) was responsible for salting or sanding the sidewalk and removing ice from the sidewalk, but negligently performed those responsibilities and created the dangero us condition that c aused Helen Conte's fall. 3 Following discovery, defendants moved for summary judgment, arguing Hellen Conte fell on a public sidewalk they had no duty to maintain and they were exempt from liability for her fall on a public sidewalk abutting Wyndham's resi dential property. Plaintiff s opposed the motion , claiming the sidewalk was located on proper ty owned by Wyndham and therefore was part of the common
elements of the condominium complex . Plaintiffs further asserted Wyndham had a duty to maintain the side walk because it retained Levanduski to remove snow and ice from the sidewalk. The court heard oral argument on the motion, and found Wyndha m was "immune from liability pursuant to the residential property exemption" because it was "evident from the proof s that the sidewalk at issue abuts the Wyndham

3 Pla intiffs' claims against Levanduski were settled.5 A

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property " but "is not part of the actual property itself." In other words, the court found Wyndham , and by extension Signature, were exempt from liability for the alleged dangerous condition of the property because the sidewalk was not located on property Wyndham owned

. The court granted defendant s ' summ ary judgment motion but dismissed the complaint without prejudice to allow plaintiffs an opportunity to present evidence supporting their claim that defendan ts' negligence created the alleged hazardous condition on the sidewalk. The court suggested such evidence could be submitted in the form of a motion for reconsideration and instructed plaintiffs' counsel he had twenty days to provide additional informatio n supporting the claim. Consistent with the court's instruction, plaintiff s filed a motion for reconsideration supported by a supplemental expert report from a forensic engineer, John Nawn, P.E. 4 Nawn's report asserts that Wyndham is responsible under th e Robbinsville municipal code for clearing the sidew alk where Helen Conte fell , and that the berm created a dangerous ice condition on the sidewalk because it drained water from melting snow onto the sidewalk and, when the

4 There is no other report from Nawn included in the record on appeal.6 A

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temperature dropped below freezin g, the drained water froze on the sidewalk. Defendants filed a cross

- motion for summary judgment

. After hearing oral argument, the court denied plaintiffs' reconsideration motion and dismissed the complaint against defendants with prejudice. The
court found plaintiffs failed to present "any evidence showing that the pertinent depression in the land is an artificial conduit created by the residential property

owner , " and Nawn did not assert the berm was artificially created but instead noted only that " due to the difference in the elevation between the sidewalk and the adjacent berm

- like mound, water runs down the hill and onto the sidewalk."
The court determined that because plaintiffs failed to demonstrate defendants created the dangerous condition, they were exempt from liabi lity for Helen Conte's injuries because she fell on a public sidewalk adjacent to Wyndham's residential property. This appeal followed.
II. "[W]e review the trial court's grant of summary judgment de novo under
the same stan dard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co . of Pittsburgh , 224 N.J. 189, 199 (2016). "The trial court's conclusions of law and application of the law to the facts warrant no deference from a reviewing court." W.J.A . v. D.A. , 210 N.J. 229, 238 (2012).7 A

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Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact chall enged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46

- 2(c). We must "consider whether the competent 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." Brill , 142 N.J. at 540. While "genuine" issues of material fact preclude the granting of summary judgment, R. 4:46

- 2 (c) , those "of an insubstantial nature" do not. Brill , 142 N.J.
at 530 (citation omitted). "An issue of fact is ' genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favori ng the non

moving party, would require submission of the issue to the trier of fact. '" Grande v. St. Claire's Health Sys. , 230 N.J. 1, 24 (2017) (quoting Bh agat v. Bhagat , 217 N.J. 22, 38 (2014) ) ; see also R. 4:46

- 2(c). Plaintiffs ' complaint asserts n egli gence claims ag ainst defendants. "To prevail on a claim of negligence, a plaintif f must establish four elements: (1) that the defendant owed a duty of care; (2) that the defendant breached that duty;8 A

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(3) actual and proximate causation; and (4) damages." Fernandes v. DAR Dev. Corp. , 222 N.J. 390, 403

- 04 (2015). "[W]hether a defendant owes a legal duty to another and the scope of that duty are generally questions of law for the court to decide." Morris v. T.D. Bank , 454 N.J. Super. 203, 209 (App. Div. 20 18) (alteration in original) (quoting Robinson v. Vivirito , 217 N.J. 199, 208 (2014)). "[W]hether the duty was breached is a question of fact." Ibid. (alteration in original) (quoting Jerkins v. Anderson , 191 N.J. 285, 305 (2007)).
R esidential property owners, including condominium associations, have no duty to maintain public sidewalks abutting their land as long as they do not affirmatively create a haz ardous condition. See Luchejko v. City of Hoboken , 207 N.J. 191, 210

- 11 (2011). However, a condomin ium association is subject
to "common

- law premises

- liability jurisprudence" for its privately owned sidewalks, which "imposes a duty on the [a]ssociation to keep its private sidewalks reasonably safe." Qian v. Toll Bros. Inc. , 223 N.J. 124, 142 (2015).
He re, the motion court granted defendants summary judgment dismissing plaintiffs' negligence claims . The court found defendants had no duty to remove ice from the sidewalk or otherwise ma intain the sidewalk because Wyndham did not own the si dewalk

. The co urt e rred, however, because there is a genuine
issue of material fact as to whether the sidewalk is owned by Wyndham.9 A

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More particul arly, Wyndham's master deed , which defendants submitted to the court in sup port of their summary judgment motion , includes a description

o f Wyndham's property and incorporates a map showing the property runs parallel with and directly adjacent to Wash ington Boulevard

. As plaintiffs correctly note, "[n]either party undertook a survey to determine whether the location of [p]lai ntiff's accident was within the boundaries of the property , " but it is not disputed Helen Conte fell on a sidewalk located between Wyndham's condominium buildings and Washington Boulevard , and that the sidewalk runs parallel to Washington Boulevard

. V i ew ing the evidence in the light most favorable to plaintiffs, the map annexed to master deed s hows that all of the property between Wyndham's condominium buildings and Washington Boulevard is owned by Wyndham. Thus, although the sidewalk where Helen Conte fell is not depicted on the map , because the evidence shows the sidewalk runs parallel to Washington Boulevard
to the side of the road where the Wyndham condominium is located, the map permits the reasonable inference that the sidewalk is located on prop er ty own ed by Wyndham. The inference is further supported by the master deed , which expressly provides that Wyn dham's "common elements shall include . . . [a]ll of the walkways . . . located on th e . . . parcel of land" d escribed in the deed , and10 A

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the eviden ce showing Wyndham assumed responsibil ity for the sidewalk's maintenance by contracting with Levanduski to clear the sidewalk of snow.
Defendants dispute that Wyndham owned the property or had a duty to maintain it free of the ice plaintiffs argue cause d Helen Conte's injuries. That dispute, how ever, is for the jury to resolve . We determine only that the evidence before the motion court was sufficient to raise a genuine of issue of fact concerning ownership of the sidewalk that precluded an award of s ummary judg ment. R. 4:46

- 2 (c)

. T he court's determination that defendants had no duty to maint ain the sidewalk free of ice is based on an incorrect finding that there is no factual dispute concerning the sidewalk's ownership. We are therefore constrained to reverse the court's order granting summary judgment to defendants on plaintiffs' claim that defendants had a duty to maintain the sidewalk because it was on property owned by Wyndham. Plaintiffs also contend the court erred by denying their motion fo r

recons ideration and granting defendant s ' cross - motion for summary judgment dismissing plaintiffs' claim that defendants negligently created a hazardous condition on the sidewalk by constructing or maintaining an artificial berm. We are not persuaded.11 A

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I n the first instance, it is inaccurate to characterize plaintiff s ' request as a motion for reconsideration under Rule 4:49

- 2

. Plaintiffs did not seek
reconsideration of th e court's initi al decision granting defendants summary judgment based on its finding the sidewalk is not on Wyndham's property. Instead , plaintiffs filed the motion pursuant to the court's direction that they could submit supplemental information, in the form of a putative reconsideration motion, to support an alternati ve theory of liab ility against defendants

— that the alleged artificially created berm caused melting snow to pool on the sidew alk thereby creating a hazardous condition when the temperatures fell below freezing.
P l aintiffs' alternative theory is f ounded on the contention that an artificially created berm which causes water to flow onto a sidewalk and create s a hazardous condition permits a finding of liability against defendants

. See, e.g. , Gellenthin v. J. & D., Inc. , 38 N.J. 341 , 353 (1962) (finding a landowner liabl e for injuries caused by frozen water on a sidewalk resulting from the landowner' s use of d rainpipes to funnel water onto the s idewalk adjacent to the landowner 's property). The court, however, correctly rejected plaintiffs' alternative theory and granted defendants' cross

- motion for summary judgment dismissing the
claim because plaintiffs failed to pres ent any competent evidence that the berm12 A

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is not part of the natural topography. 5 We therefore affirm the court's denial of plaintiffs' reconsideration mo tion and its order granting defendants' cross

motion for summary judgmen t dismissing plaintiffs' claim that defendants are liable for plaintiffs' alleged injuries because they created a dangerous condition through in stallation or maintenance of a berm that is not part of the natural topography , or by allowing the berm to direct water toward or on to the sidewalk where Helen Conte fell. Affirmed in part and reversed in part. Remanded for further proceedings. We do not retain jurisdiction.

5 A t oral argument before us , plaintiffs' counsel acknowledged that the record is devoid of any competent evidence the ber m was ar tificially created.