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SLIP AND FALL ATTORNEY SUES CONDOMINIUM ASSOCIATION FOR CONDOMINIUM OWNER’S FALL ON ICE.
A slip and fall attorney hired by Jessica Carmona appealed a Judge’s order. The order dismissed Jessica’s lawsuit against a condominium association, Woodlands Community Association (Woodlands).
Carmona is an owner of a condominium at Woodlands. A snowstorm occurred between December 19 – 22, 2009. Woodlands hired an outside contractor, Sulpizio, to remove snow and ice.
After working all day on December 19, 20, and 21, Sulpizio was directed by Woodlands to stop work on December 22. By then, the storm had ceased. When relieved, Sulpizio informed Woodlands that more work was needed. There were still high winds causing snow drifts. There was also the possibility of snow melting and refreezing.
The landing area, steps, and walkway to Carmona’s unit were cleared approximately ten times during and following the storm. After Sulpizio’s services were concluded, Woodlands had two of its own employees spread salt. But there was no de-icing or salting of the premises at night.
On the morning of December 24, 2009, Carmona walked out of her condominium’s front door, slipped and fell on ice. She suffered a compound fracture of her left leg and ankle.
Carmona’s slip and fall attorney sued Woodlands and Sulpizio. The slip and fall attorney claimed Woodlands and Sulpizio were negligent in failing to properly remove snow and ice.
Woodlands and Sulpizio filed motions to dismiss the case without a trial. The judge granted Woodlands’ request. But the judge denied Sulpizio’s motion. Carmona’s slip and fall attorney later settled her claims against Sulpizio.
The judge granted Woodlands’ motion. The judge relied upon the immunity for ordinary negligence extended by New Jersey law to condominium associations in suits brought by their unit owners. Carmona only claimed in her lawsuit papers that Woodlands was guilty of ordinary negligence. Thus, she was barred from suing Woodlands.
The judge acknowledged that, in opposition to Woodlands’ motion, Carmona’s slip and fall attorney claimed for the first time that Woodlands had acted with not just ordinary negligence, but also with gross (extreme) negligence. The judge, however, rejected the slip and fall attorney’s argument. The judge ruled that there were “no facts to support “gross negligence.”
The appeal followed. On appeal, Carmona’s slip and fall attorney did not dispute that Woodlands was immune from claims of ordinary negligence. Rather, the slip and fall attorney argued that the judge erred in ruling that no reasonable jury could find that Woodlands’ conduct was grossly negligent.
Carmona’s slip and fall attorney noted that Woodlands was advised by Sulpizio of the probability melting and re-freezing. Yet Woodlands still terminated Sulpizio’s services. Then Woodlands’ salted only during the day and not overnight. The slip and fall attorney asserted that such conduct constituted gross negligence.
But the appeals judges were not persuaded. Gross negligence is defined as “conduct that comes somewhere between ‘simple’ negligence and the intentional infliction of harm….'” Gross negligence requires “indifference to consequences.”
The judges wrote that a rational jury could not find that Woodlands’ conduct constituted gross negligence. The judges noted that, during the snowstorm, Woodlands hired an outside contractor to provide continual snow removal. After the storm, Woodlands did not disregard the contractor’s hazard warnings. Rather, Woodlands had its employees salt the entire complex during the daytime for two full days prior to Carmona’s fall. The judges wrote that Woodlands may have been simply negligent for not providing overnight ice removal. But Woodlands was immune from simple negligence claims from its condominium owners.
The judges did write that, had Woodlands done nothing at all, the result might well have been different.
I disagree with this decision. Not salting at night seems extremely careless to me. A jury, not a panel of judges, should have decided the question of gross negligence. That said, this case illustrates the need for injury victims to retain experienced counsel. The slip and fall attorney should have claimed gross negligence from the outset, not just after a dismissal motion was filed.
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