Plaintiff Cynthia Johnson was an employee of a tenant of the property owned by defendant Brandywine Operating Partnership, LP and Brandywine Realty Trust (“Brandywine”). She fell on black ice in the parking lot of Brandywine’s property and sued for her injuries. In Johnson v. Brandywine Operating Partnership, LP, 2017 N.J. Super. Unpub. LEXIS 2857 (App. Div. Nov. 16, 2017), the issue was whether the defendant had actual or constructive notice of the condition in sufficient time to cause the premises to be in a reasonably safe condition.
Plaintiff reported the fall on the day of the incident to her employer and the defendant’s building engineer, Jeff Hoffner. He examined the area where she fell and observed safety cones there. In his deposition, he did not specifically recall plaintiff’s fall, but he was aware of prior tenant complaints about icing in portions of the parking lot. When he became aware of an icy condition, he would call the property manager or the snow and ice removal contractor but would not remove the snow or ice himself.
The Appellate Division noted that “[c]ommercial property owners have a duty to maintain their own property free of dangerous conditions.” Further, the Court stated that “[w]hether a commercial property owner had actual or constructive notice of an icy condition on the [property] is for the finder of fact, not a court on a motion for summary judgment.” Constructive notice would exist if “the condition existed ‘for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”
Based upon these principles, the Appellate Division concluded that there was sufficient evidence in the record from which a jury could find that defendants “had notice of ice in the parking lot for a sufficient amount of time, and failed to remediate the problem” before plaintiff’s fall. The evidence included the history of icing issues, defendant’s knowledge of prior icing complaints from the tenants, and the presence of safety cones upon inspection after the fall. There was also an issue about whether the grading in the lot caused water to flow to drains near where the plaintiff fell, with the potential to turn to ice if under freezing temperatures.
The dispute in these facts precluded an entry of summary judgment. Hence, the Appellate Division reversed the trial court’s decision, which had granted a dismissal, and remanded the case for trial.
