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Plaintiff’s Lawsuit Against Municipality Dismissed Due to Failure to Prove Constructive Notice of Alleged Dangerous Condition

Plaintiff Margaret Kelly, as Guardian ad litem for Rebecca Kelly, filed a lawsuit on behalf of Rebecca due to an accident at her parent’s condominium complex.  Rebecca was a guest of her parents at Back of Bay Condominium Association in Wildwood, when she fell in a trash collection and utility common area exterior to the condominium unit owned by her parents.  She fell and suffered serious injuries when she stepped on one of six water meter pits in the area, causing the lid to dislodge and her foot to fall into the pit.  The issue in Kelly v. Back of Bay Condominium Association, Inc., 2026 N.J. Super. Unpub. LEXIS 291 (App. Div. Feb. 19, 2026) was whether the City of Wildwood defendants could be held liable for her fall due to the condition of the loose pit cover.

Rebecca was a disabled individual with a condition known as “brittle bone disease.”  The accident happened when she was carrying a recycling container, attempting to place it in the area of the water meter pits, when she fell.  She stepped on one of the water meter pits and, due to the loose lid, it dislodged and her foot fell into the pit.  She suffered serious injuries to her left foot and ankle, requiring surgery.  She also suffered an injury to her shoulder.  She needed surgery on both her left foot and her shoulder due to her fall.

Within a few weeks of her accident, the Senior Meter Reader and Water Inspector for the City of Wildwood inspected the condominium’s utility area to observe where Rebecca fell.  He found that the lid had a frozen nut and it would not allow the lid to be locked down by whoever was there last.  As a result, he took it away, put it on his truck and put a new lid on it.

Plaintiff filed a lawsuit against multiple defendants, including the condominium association, the City of Wildwood, the City of Wildwood Municipal Utility Authority, City of Wildwood Water Utility, and City of Wildwood Sewer Utility.  Plaintiff settled out with some defendants or reached voluntary dismissals as to others, but not the Wildwood defendants. 

In discovery, it was disclosed that the City had transmitters located on top of the lid and that the water meter pit and equipment in question was last replaced some years before the accident.  The testimony from the Water Director for the City was that the water meter pit lids had software or machines that pick up the readings from the meter and transfers the information remotely to staff as they ride up and down the street.  Thus, remote meter reading eliminated the need for quarterly on-site inspections of each meter and was both faster and more effective.  The meters were read electronically on a quarterly basis.

After the conclusion of discovery, the Wildwood defendants filed for summary judgment, seeking dismissal of all claims.  In response to the motion, plaintiff conceded that there was no evidence of actual notice of the alleged dangerous condition posed by the loose lid.  However, plaintiff argued that there should be constructive notice of the alleged dangerous condition.  The trial court disagreed and granted summary judgment.  This appeal ensued.

The Appellate Division noted that, under the Tort Claims Act, a public entity may only be liable for a personal injury caused by the dangerous condition of its public property.  Among other elements that a plaintiff must prove, the plaintiff must prove that the public entity had actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to take measures to protect against the dangerous condition.

Because plaintiff conceded that the Wildwood defendants lacked actual notice of the dangerous condition, the Appellate Division only analyzed whether plaintiff had established constructive notice under the Tort Claims Act.  The Court concluded that plaintiff failed to establish that the Wildwood defendants had constructive notice.  Plaintiff argued that under the City’s ordinances, the internal policies on lid safety and the replacement of the frozen nut after the accident supported “a reasonable inference that unsafe conditions were regularly observable and existed for a sufficient period of time to establish constructive notice.”

The Appellate Division pointed out that although the Wildwood defendants conceded that there was a loose pit lid and that such condition presented a danger, it is well settled that “the mere existence of an alleged dangerous condition is not constructive notice of it.”  There were no proofs showing that Rebecca, her family members, or any of the condominium’s residents had reported or complained about a loose or unsecured meter pit lid prior to the fall.  As the trial court noted, there was no information as to how long the lid was loose, whether it was for an hour, a week, a month or a year. 

Plaintiff also argued that constructive notice may be imputed to the Wildwood defendants based upon their duty to “inspect, detect and correct missing and loose lids.”  The Appellate Division agreed with the trial court judge that this argument was a misinterpretation of the applicable law and would essentially impose strict liability on the part of the Wildwood defendants for any injuries that arose from any sort of dangerous condition that existed on their property.

The Court pointed out that such an interpretation of the Tort Claims Act would be antithetical to its statutory purpose “to provide general immunity for all governmental bodies except in circumstances where the Legislature has specifically provided for a liability.”  Thus, the Appellate Division agreed that the existence of a general duty, policy, or training for public utility employees was insufficient to satisfy the notice requirement of the Tort Claims Act under the circumstances presented. 

The Appellate Division also addressed whether the City’s conduct was “palpably unreasonable” in failing to detect and correct the loose water pit lid condition.  The Court found that because plaintiff did not establish that the Wildwood defendants had constructive notice of the loose water pit lid, its failure to repair it prior to plaintiff’s fall could not be viewed as palpably unreasonable conduct. 

Hence, for all of the above reasons, the Appellate Division upheld the trial court’s decision to dismiss the lawsuit as to all of the Wildwood defendants.

No Liability for Landlord, Parent Company, and Landscaper for Fall on Black Ice

On his way into work at an Acme Supermarket in early November, 2019, Plaintiff Andrew Kasbarian slipped and fell on black ice in the parking lot caused by sprinklers that had triggered earlier that chilly morning, suffering a severe shoulder injury requiring surgery. Not able to sue Acme, he sued Albertsons (Acme’s parent company), Parene (the premises’ owner and landlord), and Green Meadows (the landscape contractor) for their negligence in maintaining and failing to warn about the dangerous condition posed by the black ice. The issue in Kasbarian v. Parene Realty Co., LLC, 2026 N.J. Super. Unpub. LEXIS 180 (App. Div. Feb. 3, 2026) was whether any of the defendants were responsible for the black ice formed by the sprinklers that caused Kasbarian’s fall.

Parene was the long-time owner of the premises who had a lease agreement requiring Acme to perform all repairs and maintenance. Green Meadows provided landscaping and irrigation services under a contract with Albertsons that did not require it to winterize and shut down the sprinkler system until Albertsons requested. In fact, that request came three hours after Kasbarian’s fall.

The three defendants challenged Kasbarian’s complaint with summary judgment motions, arguing that, even if the parties agreed to all the facts, Kasbarian could not show they were liable for his injuries. The trial court granted the motions based on the various contracts between the parties and the lack of notice to each defendant, and dismissed the complaint against them, causing Kasbarian to appeal.

On appeal, as to Green Meadows, Kasbarian argued they were a property manager and responsible for maintaining a safe parking lot. Focusing on the contract with Albertsons that only required them to perform sprinkler winterization when Albertsons asked, the Court found Green Meadows had no duty to Kasbarian. They reasoned that Green Meadows lacked the type of relationship with Kasabian that suggested a duty; that, the risk of black ice on the parking lot, an area for which Green Meadows had no control, was one for which Green Meadows could not be held responsible; Green Meadows lacked any opportunity to salt the parking lot and remove the black ice because they were not required to show up until Albertsons asked; and that, if they were to find Green Meadows responsible, that would put the burden on all contractors to winterize all sprinkler systems, no matter their contractual obligation – and that was not reasonable. The Court also found that Green Meadows, who did not come to the Acme parking lot until a few hours after Kasbarian fell, had no actual notice of the black ice or, because the black ice was temporary, they lacked constructive notice.

As for Albertsons, Kasbarian argued that they were vicariously liable because either Green Meadows was their agent or, because they were Acme’s parent company, because of Acme’s negligence. The Court disagreed with these arguments as well, stating that because Green Meadows was not liable, Albertsons could not be vicariously liable. Also, because New Jersey law will not hold a parent company liable for the negligence of a wholly owned subsidiary, they could not be liable for any negligence that Acme may have had.

Finally, the Court found Parene had no liability due to the lease agreement Parene had with Acme. Looking at the interplay of contract and tort law, the Court reaffirmed the rule that, when a lease unambiguously places liability on a tenant, the landlord will not be liable for personal injuries sustained by an employee on that property. Here, through the lease, Parene put the responsibility for all maintenance on its tenant, Acme, and as a result, it had no duty of care for Kasbarian. Further, because Parene was not a party to the Green Meadows/Albertsons contract, they had no responsibility to make sure Green Meadows would winterize the sprinklers in a timely manner.

With the above reasoning focusing on the interplay of the parties’ responsibilities through their various contracts, the Appellate Division affirmed the trial court’s determination that none of the defendants was liable for Kasbarian’s injuries on black ice in the Acme parking lot.

New Jersey Supreme Court Rules That Landowners Liability Act Bars Claim for Fall in County Park

Plaintiff Andris Arias was injured due to a rollerblading accident at a park owned by the County of Bergen.  Plaintiff Arias filed a lawsuit against the County for personal injuries. This case went all the way up to the New Jersey Supreme Court.  The issue in the Supreme Court case of Arias v. County of Bergen, 2026 N.J. LEXIS 68 (Jan. 22, 2026) was whether the County had immunity under the Landowners Liability Act for this accident. 

Fortunately, for the County, at all levels of the court system, the judges agreed that the County was immune from liability.  Further, when the case reached the Supreme Court, the Court clarified the test to be used, making it easier for more premises to quality for this immunity. 

Plaintiff Arias was rollerblading at Van Saun County Park owned and operated by the County of Bergen when the plaintiff fell into a pothole on a paved pedestrian path.  This park consisted of 130 acres, containing playgrounds, tennis courts, pathways, fishing ponds, and wooded areas.  It was available to the public free of charge.  Plaintiff sued the County, claiming negligence for failure to maintain the path or warn visitors of the pothole.

Before rendering its decision, the Supreme Court went through the history of the Landowners Liability Act.  The first version was enacted back in 1962 and was passed to protect landowners from liability for hunting and fishing on their property.  Then, it was replaced in 1968 and immunity was expanded to an “owner, lessee or occupant of premises” for “sport and recreational activities.”  Then it was further amended in 1991 to make it clear that it should be liberally construed to serve as an inducement for landowners to permit persons to come onto their property for sport and recreational activities without fear of being sued.  At that time, the immunity was also expanded to improved or commercial premises. 

Prior to this amendment, the Supreme Court utilized a four part test to determine if there should be immunity.  Pursuant to that test, the factors to be considered in determining the applicability of the landowners’ liability were as follows: “the use for which the land is owned, the nature of the community in which it was located, its relative isolation from densely populated neighborhoods, as well as its general accessibility to the public at large.”

However, in Arias, the Court decided that the analysis of whether this Act should apply would depend on the “dominant character” of the premises itself and whether it is open land conducive to engaging in sport and recreational activities.  Thus, the four part test was abandoned in favor of this simpler “dominant character” of the premises test.

The Supreme Court expressed its concern that, to hold otherwise, it might discourage counties and municipalities from opening existing or new properties to the public for free.  Further, the Court noted that if this park was not covered by the Act, it might cause public entities to close their parks to avoid liability and cause increased costs to taxpayers. 

There are two caveats for the Act to provide immunity.  First, the premises must be open to the public free of charge.  Second, while the Act immunizes negligent conduct, it does not immunize “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure of activity.”  However, based upon this Supreme Court decision, more premises will qualify for immunity under the Landowners Liability Act.

Tort Claims Act Protects Borough from Liability for a Pedestrian’s Trip and Fall in a Pothole

Plaintiff Galina Benimovich tripped and fell in a pothole located in the street in front of her daughter’s residence in Montvale’s residential Hickory Hill neighborhood, causing her to fracture her wrist and sue the Borough in Benimovich v. Borough of Montvale, 2026 N.J. Super. Unpub. LEXIS 23 (App. Div. Jan. 7, 2026). That area of Hickory Hill lacked sidewalks, causing all pedestrians to use the street. Montvale’s records showed that multiple complaints and repairs had been made of similar potholes in Hickory Hill, but those records showed no similar complaints or reports of any roadway defects in 2021, about the time of the plaintiff’s fall, in the location of the plaintiff’s fall. Montvale expressly prioritized larger, more serious potholes they considered an “emergency,” typically three to four inches deep that “can take out a tire or a bicycle or be considered a tripping hazard.” The pothole was an inch-and-a-half deep, about three feet long, and about a foot wide. The plaintiff’s engineer determined a pothole of one-quarter of an inch deep presented a tripping hazard, and that this pothole far exceeded that standard, particularly where pedestrians were anticipated to pass due to the lack of sidewalks.

Montvale filed for summary judgment pursuant to the Tort Claims Act, N.J.S.A. 59:4-1-1, et seq. (TCA), claiming the plaintiff could not establish the pothole in question was a dangerous condition, actual or constructive notice of the pothole in which she fell, or that Montvale’s failure to respond to the danger posed by the pothole was “palpably unreasonable.” The trial court agreed, specifically finding that the plaintiff failed to establish Montvale’s notice of “this particular pothole.” As a result, the plaintiff appealed.

On appeal, the plaintiff emphasized prior New Jersey TCA case law that established a three-fourths inch depression in a roadway was sufficient to constitute a dangerous condition. Further, the potholes in Hickory Hill were a known, recurring problem, as Montvale’s own records established, giving the Borough constructive notice of the dangerous condition. Finally, the plaintiff stated that Montvale’s failure to fix this pothole was palpably unreasonable due to knowing potholes would occur regularly in Hickory Hill and failing to properly keep records to record and address those dangers. The Appellate Division disagreed on all counts.

In finding the pothole was not a dangerous condition, the Court focused its attention on the Hickory Hill street as a roadway which, though used by pedestrians, was still principally constructed for vehicular traffic, and any defect on it could not be “viewed in a vacuum.” They reasoned that municipalities should not be compelled to retrofit or redesign roadways to accommodate pedestrians simply due to the absence of sidewalks and the resulting foreseeability of pedestrian traffic. Besides, since roadways are reasonably expected to have potholes, just because there are potholes in a roadway does not create an inherently dangerous condition.

Further, the Court underscored the fact that the plaintiff presented no evidence that Montvale knew of this pothole as a result of their lengthy history of complaints and repairs in the area. The Court pointed to the TCA, which requires the plaintiff to prove Montvale had actual or construction notice of the particular pothole in which the plaintiff fell, as shown by testimony or past records of complaints of that condition, not general knowledge of the problem in the area or past repairs.  

Finally, in finding that Montvale’s failure to act did not meet the palpably unreasonable standard, the Court found the record lacked evidence that Montvale’s “actions were so lacking in justification and patently unacceptable under any circumstances.” Despite the plaintiff’s position that the roadway was in regular disrepair, and the Borough knew, the Court found the plaintiff did not show the egregious neglect required under the palpably unreasonable standard, but that Montvale met the standard by prioritizing the use of their limited public resources on potholes they considered more hazardous and in more urgent need of attention than potholes such as this one.

Appellate Division Finds Potential Liability for Driving Too Slowly

In Plonski v. Amador-Hodgson, 2026 N.J. Super. Unpub. LEXIS 48 (App. Div. Jan. 12, 2026), Allan Amador-Hodgson, a bus driver for New Jersey Transit (NJT), was driving a NJT bus up the New Jersey Turnpike, just below the speed limit of 65 m.p.h. Ahead of him he saw a box truck, operated by Adam Plonski (with the two plaintiffs, his relatives, as passengers), traveling between 30 to 33 m.p.h. Unable to change lanes to the left lane due to a tractor trailer (itself traveling above 70 m.p.h.), Amador-Hodgson attempted to slow down and change lanes as the tractor trailer passed, but failed to do so in time, causing the right-front portion of the bus to strike the left-rear portion of the box truck, injuring the plaintiffs.

After the plaintiffs filed suit against Amador-Hodgson and NJT (Defendants) for their negligence in causing the accident, the Defendants filed a third-party complaint against Plonski and his employer, alleging Plonski himself was negligent for driving the box truck too slowly and contributed to cause of the accident. Before the case went to the jury, Plonski (along with his employer and the plaintiffs) filed motions for summary judgment based on the dash-cam video from the bus and Amador-Hodgson’s testimony (in which he lied, saying the box truck cut him off) claiming Amador-Hodgson alone was 100% liable for the accident. The trial court agreed, finding that no additional discovery could affect the issue of liability. Amador-Hodgson filed a motion for reconsideration which included expert testimony describing a “looming crash,” a crash that arises when a vehicle traveling with the flow of traffic rear-ends a vehicle ahead traveling far below the flow of traffic due to the difficulty inherent in the trailing driver’s ability to judge that vehicle’s speed. Though denying the motion for reconsideration, the trial court acknowledged New Jersey Administrative Code (NJAC) itself established a minimum speed for the turnpike at 35 m.p.h. Nevertheless, the trial court still found the Defendant could not establish Plonski’s speed caused the accident because “no reasonable fact-finder could conclude Plonski driving too slowly makes him at all liable for this accident,” and his speed, at best, was trivial factor in the accident. The court concluded that the “evidential record is so one sided” that the Defendants must be deemed 100% liable as a matter of law.

On appeal, the Appellate Division disagreed, reversed, and sent the matter back to the trial court for further proceedings. The appellate court found that the trial court improperly stepped into the shoes of the jury in determining that Plonski’s driving the box truck at 30 m.p.h. played no role in the causing the accident. Indeed, the appellate court specifically noted that the trial court referred to the NJAC which itself established Plonski could share in some liability for the accident. It determined that, particularly at the summary judgment stage, when a juror could conclude Plonski breached his duty to drive the box truck as a reasonable driver would under the circumstances, it was not the court’s role to weigh evidence and determine truth, but only to determine whether there were any genuine issues of material fact for trial. Since there was a genuine issue as to whether Plonski’s speed was a causal factor in the accident, it was up to the jury, not the court, to make that determination.

Conventional wisdom often suggests liability is all but a foregone conclusion in rear-end accidents. However, the Appellate Division’s affirmation here undermines that belief. Knowing that, under certain circumstances, the operator of a vehicle travelling unsafely below the speed limit or flow of traffic may be the legal cause of a rear-end accident and create liability for the operator, a similarly-situated defendant may have an avenue of inquiry and legal argument for shared liability.

Landowner’s Liability Act Does Not Extend to Local Beaches or the Ocean

In Timpanaro v. Jenkinson’s Pavilion, Inc., 2025 N.J. Super. LEXIS 71 (App. Div. Nov. 21, 2025), the estate of Anthony Timpanaro sued Jenkinson’s Pavilion, a boardwalk amusement complex with access to Point Pleasant Beach, for negligence arising from Anthony’s drowning death.

The case arose when, a few weeks after Labor Day, 2020, grandfather Anthony and his son’s family, visited Jenkinson’s for a day at the beach. Though the summer season had ended and there were no lifeguards on the beach, ordinances and permits required Jenkinson’s to keep the beach premises open. Jenkinson’s posted signs saying, “Beach Closed No Swimming” and “No swimming when lifeguards are off-duty.” While walking on the beach in his bare feet and his pants legs rolled up, Anthony and his grandson looked for seashells and chased seagulls on the wet sand of the water’s edge. Suddenly, a wave unexpectedly rolled in and knocked Anthony down; a second wave pulled him into the ocean. Despite the efforts of his son and local first responders, Anthony drowned.

Before the case could be heard by a jury, Jenkinson’s asked the court to dismiss the case by summary judgment, claiming in part that, because the beach and the ocean were large, outdoor areas open to the public, Jenkinson’s had immunity under the Landowner’s Liability Act, N.J.S.A. 2A:42A-5.1 (“LLA”). The trial court agreed and dismissed the suit. Anthony’s estate quickly appealed, claiming the LLA did not apply to Jenkinson’s.

The LLA states that the owner or occupant of premises, whether or not improved in a natural state or as a commercial enterprise, does not owe a duty to keep the premises safe for people who enter or use the premises for recreational activities, or to warn of any hazardous condition of the land or for any reason arising from people’s activities on the premises. The LLA’s intention was to permit landowners to allow people to use their property for recreational activity free from the tort liability that comes with the common law; with a few exceptions, including willful or wanton conduct or charging a fee for engaging in the recreational activity on the property.

However, prior courts have limited the LLA’s scope, noting that its intention was for largely unsupervised, rural or woodland activities (such as hunting and four-wheeling), and not improved lands that are freely used by the general public and located in populated urban or suburban neighborhoods.

It was on these grounds that the Appellate Division disagreed with the trial court, finding that the LLA did not apply to the beach. They found that it was not located in a rural area and remained openly accessible to and was used freely and frequently by the public. Moreover, it held the LLA did not apply to the ocean, the area that claimed Anthony’s life, as Jenkinson’s is “not [an] owner . . . of the ocean.”

Interestingly, despite disagreeing with the lower court on the LLA, the appellate court upheld Jenkinson’s dismissal on other grounds. The higher court agreed Jenkinson’s had met its duty to a business invitee by posting “no swimming” signs to warn Anthony, but he “was an invitee onto the beach, not the ocean.” It found that by taking off his shoes, rolling up his pants, and walking onto wet sand, he “clearly put himself within reach of the ocean and its waves.”

Appellate Division Upholds Trial Court’s Involuntary Dismissal of Plaintiff’s Personal Injury Claim Due to Her Failure to Prove Liability

The Pro Se plaintiff Tannia Winston tried her personal injury case on her own against 7-Eleven.  She claimed that she was injured due to a slip and trip at defendant’s convenience store.  The issue in Winston v. 7-Eleven, Inc., 2025 N.J. Super. Unpub. LEXIS 1705 (App. Div. Sept. 18, 2025) was whether the trial court properly granted the defendant’s motion for an involuntary dismissal at the end of plaintiff’s case at trial.

Plaintiff commenced her lawsuit with counsel.  However, her attorney was relieved as counsel before the trial.  Therefore, plaintiff represented herself at the trial of this matter.

Plaintiff’s injury occurred when she entered a 7-Eleven in Jersey City on a rainy day to purchase a cup of coffee.  She claimed that, as she entered the store, her foot was caught under a large “object on the floor.”  She testified that she fell forward, stiffened up, and locked her knee to avoid falling.  She also claimed that an employee “quickly grabbed the object and ran it [sic] out of the building.”  Plaintiff further testified that she limped out of the store, boarded a bus to the emergency room, where a cast was placed on her leg.  She did admit upon cross-examination that it was actually a knee immobilizer.

At the conclusion of her testimony, plaintiff rested her case and 7-Eleven moved for an involuntary dismissal.  The defendant argued that plaintiff had failed to satisfy her burden of proving liability.  In particular, defendant argued that plaintiff failed to demonstrate “there was a condition in the store that was unreasonably dangerous” or that the defendant’s store was on notice of “whatever condition” plaintiff claimed caused her to trip.  Further, defendant argued that plaintiff failed to demonstrate the accident was the proximate cause of her alleged damages.

Plaintiff argued that defendant knew the object was on the floor because an employee grabbed it and commented to her about its improper placement at the entrance.  Plaintiff did not present any witnesses to testify about the object’s placement or duration at the entry.  She claimed that the judge forbade her from explicitly testifying she tripped on “cardboard” because she was unable to present expert testimony concluding that the object was cardboard.

The trial court judge granted the defendant’s motion for a dismissal.  The trial court judge found that plaintiff had failed to establish that the defendant 7-Eleven “knew or should have known of this alleged dangerous condition and failed to use a reasonable degree of diligence and care with respect to whatever the object was.” 

The trial court commented that the plaintiff was unable to tell the jury what object caused her to slip and there was no testimony about how long it was there or who put it there. Even though someone from 7-Eleven may have removed it after her incident, the trial court judge found that it did not establish that 7-Eleven was responsible for the placement of that object, how long it had been there or that they knew it was there and “they were not exercising reasonable care in their failure to remove it.”

Upon appeal, the Appellate Division noted that to prove a negligence claim in the context of a business invitee’s fall at a defendant’s premises, the plaintiff “must prove by a preponderance of the evidence: (1) defendant’s actual or constructive notice of a dangerous condition; (2) lack of reasonable care by defendant; (3) proximate causation of plaintiff’s injury; and (4) damages.”

The Appellate Division further noted that owners of premises were generally not liable for injuries caused by defects for which they had no actual or constructive  notice and no reasonable opportunity to discover them.  The Court stated that the absence of notice would be fatal to a plaintiff’s claims of premises liability.  Further, the Appellate Division noted that the “mere occurrence of an incident causing an injury is not alone sufficient to impose liability.”

Here, the Court found that the record supported the judge’s decision that plaintiff had failed to produce any evidence demonstrating that the defendant had actual or constructive notice of the condition that allegedly caused her to trip.  The Appellate Division also rejected the plaintiff’s claims that the trial court had refused to grant a continuance to allow her to produce witnesses and found that she failed to produce any evidence that the trial court judge instructed her what words were allowed for her to state and what she could not state during the trial. 

Hence, the Appellate Division affirmed the trial court’s dismissal of the lawsuit.

Shooting Victim’s Failure to Show Newark PD’s Custom of Excessive Force Allows District Court to Dismiss Complaint

On New Year’s Eve in 2020, three undercover detectives of the Newark Police Department (NPD) were patrolling a high-crime area in their unmarked vehicle. Upon hearing what sounded like gunshots, they sped to the location they believed the gunshots came from. One detective exited the car with his gun drawn, accidentally bumped into a man crossing the street, and immediately shot him in the chest, all under three seconds. The man’s hands were empty and he was not carrying a weapon. He later died at a local hospital. In Fong v. City of Newark, 2025 U.S. Dist. LEXIS 172225 (D.N.J. Sept. 4, 2025), the decedent’s estate sued Newark, alleging it was liable for having an official policy or custom that caused his death, permitting him to file a lawsuit for the deprivation of his constitutional rights under 42 U.S.C. § 1983, a Monell claim, arising from the U.S. Supreme Court case Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1977).

Because municipalities cannot be held liable for the unconstitutional acts of its employees, such as police officers, a plaintiff claiming a violation of their constitutional rights must assert a Monell claim against the municipality directly. A successful Monell plaintiff must then establish he suffered a violation of his constitutional rights and that some municipal policy, custom, or practice was the cause, or “moving force,” behind the harm suffered.

In Fong, the plaintiff’s complaint argued that the NPD’s custom was to permit its officers to use excessive force, including the use of firearms, by identifying several documents to show the City had not done anything to correct a known prior pattern of unconstitutional policing. However, the court found that the documents plaintiff referenced actually undermined his theory. The plaintiff claimed the NPD never underwent an audit of its use of force; but, the Court noted, the City’s production of a “Force Audit Report” completed by an independent monitor in 2021 disproved that claim. In fact, the Report actually showed Newark made corrective policy changes and had shown improvement in training and discipline with its police officers in the relevant time frame.

Further, the court determined that even if the plaintiff had been able to identify an unconstitutional custom by the NPD, he could not show the causation requirement of a Monell claim, that some causal nexus existed between the custom and the injury. While Newark was certainly on notice of its prior custom of excessive use of force when it signed a court-enforced Consent Decree in 2016, the Force Audit Report noted the NPD’s use of force complied with those mandates thereafter and it had shown “substantial improvement” with regard to its officers’ discipline. As a result, on these two elements of the plaintiff’s Monell claim against Newark, the Court dismissed the plaintiff’s claims against the City.

An interesting element of this case was that this decision came as the result of a motion to dismiss on the pleadings for failure to state a claim; a very heavy burden for Newark to carry. Therefore, in its determination, the Court could not look outside of the plaintiff’s complaint and attached exhibits, it had to construe all facts in favor of the plaintiff, and the plaintiff would win if he could show a “plausible claim for relief.” That he lost here, particularly on an issue as weighty as a shooting death, underscores the proofs needed to satisfy the elements of a Monell claim.

Appellate Division Rules That Injured Plaintiff May Pursue Pothole Claim Against Municipality

On January 29, 2021, Plaintiff Michael Shaw tripped and fell while crossing Kearny Avenue due to a large pothole in the middle of the street. He suffered significant injuries including a broken right hip, chronic lumbar strain, and aggravation of other pre-existing conditions. The issue in Shaw v. Town of Kearny, 2025 N.J. Super. Unpub. LEXIS 937 (App. Div. June 4, 2025) was whether the Township was deemed to have notice of the alleged roadway defect and, hence, could be responsible for his accident.

Typically, in accidents involving potholes, the public entity responsible for the roadway will not be held liable due to lack of notice of the pothole. Usually, they will not have actual notice of the pothole because they can appear suddenly. Further, it is often hard to prove constructive notice for the same reason. However, the facts in the Shaw case were different. Plaintiff was able to present sufficient facts to establish that the pothole was present for years and was so obvious that Kearny, using due care, should have discovered it. Hence, sufficient facts exist to establish constructive notice.

Plaintiff suffered his injury on a dark night, after parking his car on Kearny Avenue to visit a nearby bakery to make a purchase. The bakery was on the opposite side of the street from where he parked. He went to the bakery and, on the way back, crossed in the middle of the street, not in the crosswalk. He was holding a box of custard cups, not looking down and encountered a large pothole and fell. The pothole was 4 feet in length, 12 inches wide and the deepest section was about 2-3 inches deep.

At the trial court level, the trial judge found that the Township did not have actual or constructive notice of the pothole, granted summary judgment, and dismissed the lawsuit. This appeal ensued.

The Appellate Division, however, disagreed with the trial court. While there was no proof of actual notice, it held that there were facts sufficient to establish constructive notice. It found that the record did include imagery from 2012-2015 showing evidence of cracking and surface depressions. The formation of a pothole appeared on images as of July 2018 and, by October 2020, further images showed continued pavement deterioration, and evidence of large pothole formation.

During this time, Kearny was engaged in a variety of roadway inspection, planning, project finance and repair activities on Kearny Avenue. Other areas near this pothole were patched and repaired in 2018 and 2019. Plaintiff’s expert opined that the accident site continued to deteriorate. Giving all inferences to Plaintiff, the Appellate Division found that there was ample evidence for a jury “to conclude that the Kearny Avenue pothole was a dangerous condition sometime after 2015; the dangerous condition existed for a significant period of time prior to the accident; and the dangerous condition was obvious, so much so that Kearny, using due care, should have discovered it.”

The Court noted that the record showed a continually deteriorating pothole near the middle of the roadway in the Kearny central business district where the Township had multiple opportunities to discover it. Hence, the Appellate Division disagreed with the trial court’s assessment as to the lack of notice and reversed the court’s order for summary judgment.

Concert Venue Found Not Liable for Slip and Fall Injury From Liquid on Concourse

Plaintiff Gabriela Mirtha Tiscornia Sosa was injured when she slipped and fell on a wet floor at a concert at the Prudential Center.  This venue was owned by defendant DAE, which contracted with defendant ABM to provide janitorial services.  The issue in Sosa v. Devils Arena Entertainment, LLC, 2025 N.J. Super. Unpub. LEXIS 787 (App. Div. May 15, 2025) was whether the defendants could be liable for the injuries plaintiff suffered from her fall in the translucent puddle on the upper concourse.

Plaintiff and her daughter had upper-level seats but about 10 minutes into the show, a Prudential Center employee offered to move them to seats closer to the stage.  They agreed and went down the steps to the concourse level and entered the concourse.  Plaintiff slipped and fell as she looked for an elevator to take down from the upper level.  She claims she saw a translucent puddle while she was lying on the ground.  Plaintiff claimed that both DAE and ABM were negligent because they allowed a “dangerous condition” to exist, which caused her injury.

At the trial court level, the court granted summary judgment dismissing the case.  This appeal ensued. 

The claim against DAE was that it caused the injury by moving her seat and permitting the service of drinks and open containers.  Plaintiff argued that it was foreseeable that beverages would spill onto the floor and plaintiff did not have to show that DAE had notice.  Plaintiff claimed that the mode-of-operation doctrine applied because of the manner of the beverage service and an inference could be drawn that a drink caused the spill leading to her fall.  Plaintiff also claimed that ABM had constructive notice and was, therefore, liable because it was aware of DAE’s practice of allowing open drink containers.

The trial court judge found that the mode-of-operation doctrine did not apply because there was no information in the record establishing what the liquid that plaintiff fell on was, where the liquid came from, where it was created, or how long the liquid was present on the floor.  The Appellate Division agreed with the trial court’s decision that the mode-of-operation rule would not apply under these circumstances.

Further, the unrebutted evidence showed that DAE had contracted to keep the arena clean and that the ABM representatives’ testimony explained how ABM went about doing so.  Plaintiff failed to establish a nexus between DAE’s mode-of-operation, “mainly, serving drinks in open containers, having a janitorial services company patrol and monitor the area of floors,” and the liquid on the floor.

The Appellate Division further commented that there was no evidence to support the necessary elements of actual or constructive notice to hold either DAE or ABM liable.  Plaintiff did not know what she slipped on or what the liquid was on the floor.  There had been no reports of spills or debris.  Even if there was liquid on the floor, there was no evidence showing how long it was present or that it was caused by an open container beverage.  Hence, the Appellate Division affirmed the trial court’s decision, granting summary judgment and dismissing the complaint.

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