NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff, Brian Tagliareni, appeals from an order granting summary judgment dismissing his complaint against Walgreens Eastern Co., Inc. (Walgreens) and three snow removal companies: Decarlo Landscape Design and Maintenance, LLC (DeCarlo); FTS Landscaping, LLC (FTS); and Pacific Cleaning Services, Inc. (Pacific). We reverse the order granting summary judgment to defendant, Walgreens, but affirm the orders granting summary judgment to the three snow removal defendants.

We review the facts on summary judgment in the light most favorable to plaintiff. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On February 13, 2011, at approximately 2:00 a.m., plaintiff slipped and fell on a patch of black ice on the sidewalk adjacent to Walgreens, located in Hoboken, New Jersey. Plaintiff's girlfriend, who arrived at the scene five minutes after the accident, described the area as consisting of "black ice," approximately two feet in diameter. Snow was piled-up along the edge of a cleared path, which was covered over by the patch of ice. As a result of plaintiff's fall, he suffered significant injuries, including a broken ankle.

Prior to the date of plaintiff's accident, between January 24, 2011 and February 13, 2011, approximately twenty-one inches of snow fell and accumulated in Hoboken and the surrounding New Jersey areas. The last period of significant snowfall was between February 1, 2011 and February 2, 2011, where just under one and a half inches fell. To manage this snowfall, Walgreens used three different removal companies: FTS, Pacific, and DeCarlo. "Basically," a Walgreens' manager testified, "we call, you know, if we need service for our stores depending on the weather, but these guys also come out periodically and check. I don't have actually any clear-cut contract with any specific contractor."

Walgreens had no signed, written contract with any of the snow removal companies. The only formal agreement they had was with DeCarlo, which was expressed in an unsigned document. The document read that DeCarlo would plow or shovel Walgreens' parking lot, shovel the sidewalks, and apply ice melt to the parking lot and sidewalks whenever one inch or more of snowfall accumulated. In lieu of a more formal agreement, Walgreens' policy was that the snow removal companies would come periodically if it was snowing or icing, depending on the condition. If more service was necessary, someone from Walgreens would call one of the removal companies directly.

It was also Walgreens' policy to have its employees inspect the sidewalks around the store multiple times per day. If snow, ice, or any slippery condition was noticed, an employee could call one of the snow removal companies. Walgreens' employees were also required to apply salt, and conduct de-icing activities themselves if necessary. A Walgreens' employee stated that "[i]f it was icy outside, if there was maybe below a specific temperature outside, if there's customer complaints that there was ice outside, we would go salt the floor outside and we would periodically check every couple of hours if it was below a certain temperature, we would check."

With these policies in mind, we turn to defendants' actions in the weeks leading up to plaintiff's fall. On January 26, 2011 and January 27, 2011, FTS plowed, salted, and shoveled Walgreens' premises. On February 1, 2011 and February 2, 2011, Pacific salted and plowed the parking lot and sidewalks. Neither FTS nor Pacific serviced the Walgreens' property after February 2, 2011. There is no evidence that either company was contacted by Walgreens after that date.

Meanwhile, DeCarlo also serviced Walgreens' property on February 1, 2011. DeCarlo plowed the parking lot, shoveled the sidewalks, and applied ice melt to the premises. At Walgreens' request, DeCarlo returned on February 3, 2011 and February 4, 2011 to apply salt. Again at Walgreens' request, DeCarlo returned on February 10, 2011, to transport snow off-site. February 10, 2011 was the last request for service by Walgreens prior to plaintiff's fall.

Three days later, on the night of plaintiff's accident, a Walgreens' assistant manager and an overnight cashier were the only employees at the store. The assistant manager testified that she would walk around the perimeter every two or three hours to check for noticeable conditions. When asked about specific inspections she may have made that night, she responded that she "wouldn't recall." She noted, however, that her first inspection could have taken place at 3:00 a.m., an hour after plaintiff slipped outside of the store.2

In support of plaintiff's allegations, he identified Michael G. Natoli, P.E., as a liability expert. Having conducted an investigation and review of the record, Natoli submitted an expert report. Referencing climatological data, Natoli's report discussed refreeze and black ice, two issues relevant to this case. His report discussed how decreasing snow accumulation between January 28, 2011 and February 13, 2011, in combination with the condition of Walgreens' sidewalk resulted in black ice. He concluded that the sidewalk area had a varying traverse slope, "which slopes from the highpoint (building) down to the curb line regions". Thus, snow piled against the building would melt across the sidewalk and create a hazardous condition when it refroze at colder temperatures.

In sum, Natoli opined that:

On the above facts, all four defendants filed motions for summary judgment. On April 5, 2013, the trial court heard the motions of Walgreens, Pacific, and FTS. Prior to argument, the court identified the issue before it as "whether or not there is actual or constructive notice of the ice patch that the plaintiff slipped on." The court found there was not, and granted summary judgment to all three moving parties.

In granting summary judgment to Walgreens, the judge held that:

With regard to Pacific and FTS, the court granted summary judgment on alternative grounds. The court held that there were no signed contracts between Walgreens and either snow removal company, and that there was no evidence that Walgreens ever called either company to come perform services on the date of plaintiff's fall. Essentially, the judge found that there was no duty owed by the snow removal companies to plaintiff.3 This appeal followed.

An appellate court reviews a grant of summary judgment under the same standard that governed the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). There is a genuine issue of material fact precluding summary judgment when "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, supra, 142 N.J. at 540.

Commercial property owners, such as Walgreens are "responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981). The Supreme Court has held that "[n]o functional basis exists to differentiate an accumulation of snow or ice from other hazards." Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983).

The Court in Mirza stated that:

To find a breach of the above duty,

The factual question of whether a commercial property owner has actual or constructive notice of a condition on the sidewalk is usually one for the finder of fact, not a court on a motion for summary judgment. Gray v. Caldwell Wood Prods., Inc., 425 N.J.Super. 496, 503 (App. Div. 2012). "It is for a jury to determine whether the commercial property owner had actual or constructive notice of the dangerous condition." Ibid. (citing Mirza, supra, 92 N.J. at 395-96). In that regard, constructive notice is found where there existed "a condition for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent." Parmenter v. Jarvis Drug Stores, Inc., 48 N.J.Super. 507, 510 (App. Div. 1957).

There is sufficient evidence in this case from which a reasonable jury could find Walgreens had constructive notice of the icy conditions. As Natoli described, there was snow piled against the building next to the sidewalk, an obvious condition which gave rise to the icy sidewalk. Walgreens also had salt available, and a specific policy requiring routine inspections of the property. A jury could infer from these facts that Walgreens was aware of a recurring dangerous condition.

There was also evidence from which a jury could have inferred the ice patch was present for a sufficient length of time such that a reasonably diligent employee would have observed it. Plaintiff's girlfriend testified that the sheet of black ice was approximately two feet in diameter.

Additionally, Natoli's expert report revealed melting and refreezing conditions in the geographical region, and explained how refreeze could occur given the layout of Walgreens' property. Giving plaintiff all reasonable inferences, a jury could conclude that the sheet of ice was there for such a time that Walgreens should have become aware of the hazard. In that regard, there is a genuine issue of fact as to whether inspections were actually taking place as required by defendant's own policy. We therefore hold that summary judgment was inappropriately granted to Walgreens. The issue of constructive knowledge is a question for the jury.4

With regard to FTS, Pacific, and DeCarlo, we agree that summary judgment was correctly granted. None of the three removal companies had a contract with or obligation to Walgreens, particularly where there was no new snow fall on the date of plaintiff's accident. There is no evidence in the record that Walgreens expected or relied upon these defendants to make routine inspections for melting snow creating icy conditions. To the contrary, Walgreens accepted that responsibility with its own inspection and salting policy. None of the three snow removal defendants owed a duty to plaintiff, or had a contractual obligation to Walgreens.

We therefore affirm the grant of summary judgment to DeCarlo, FTS, and Pacific. We reverse, however, the order granting summary judgment to defendant Walgreens and remand for a trial. We do not retain jurisdiction.

Affirmed in part and reversed in part.