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 

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).

NOT FOR PUBLICATION WITHOUT THE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.

October 1, 2018
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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 
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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 passthrough 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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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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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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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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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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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.
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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 
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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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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.