Liability

Plaintiff Scott Valentine suffered injuries when he fell on ice or snow on the public sidewalk abutting the three family home owned by defendants Maximo and Ana Almanzar. The issue in Valentine v. Almanzar, 2017 N.J. Super. Unpub. LEXIS 1440 ( App. Div. June 12, 2017) was whether the defendant homeowners had a legal duty to remove snow and ice from this public walkway.  Because the defendants rented two of the three units, whether a duty was owed depended upon whether the home qualified as a residential property or a commercial venture.

Defendants purchased this three family home in 1994 and had a mortgage on the property. They resided in one of the units and rented the other two apartments to nonrelatives under written leases. Defendants received rent totaling $3010 per month, which was used to pay the property’s carrying charges consisting of the mortgage, taxes, and insurance. After paying these charges, the sum of $97 per month was left to pay for maintenance and repair expenses, including any repairs and the purchase of salt for the sidewalk.

Defendant Maximo was disabled and received disability benefits, while Defendant Ana was employed with a net income of $210/week. Because the $97/month did not cover all of the expenses for the property, they used their personal funds to pay any additional expenses.

The defendants filed a motion for summary judgment, arguing that as residential landowners, they had no duty to clear snow and ice on the public walkway abutting their property. (While commercial landowners do have a duty to maintain the public sidewalks abutting their property, the law is clear that this duty is not imposed upon residential property owners.)

The trial judge applied the factors in the Appellate Division decision of Grijalba v. Floro, dealing with sidewalk liability for 3 family homes. The trial judge found that based upon the following factors from Grijalba, that the predominant use of the property was residential, not commercial: “there were no commercial entities at the property; there were additional repair expenses not covered by the rental income; and this was not a profit-generating apartment building.” Hence, the court ruled that the defendants were entitled to a summary judgment.

The plaintiff appealed, arguing that the trial court judge misapplied Grijalba in balancing the predominant use of the property as an income-generating venture. The plaintiff claimed that the judge disregarded the property’s capacity to generate income and earn significant profit after the mortgage was paid.

After reviewing the defendants’ circumstances, the Appellate Division was satisfied that the defendants’ predominant use of this property was residential, not commercial. Using part of the property for income production is a factor to be considered but it does not change the essential nature of the property as the owner’s residence. The defendants used the property as their long-time residence. They rented the two apartments to generate income to cover the carrying charges. The small profit that was generated did not even cover all of the repair and maintenance expenses.

Thus, the Appellate Division found that the defendants were not using the property as a method to make money. Rather, they were renting the two units to be able to retain their home under “tight financial circumstances.” Because the property remained classified as a residential property, the defendants had no duty to clear snow and ice from the abutting sidewalk. Thus, they were not liable for the plaintiff’s fall and resulting injuries.

The plaintiff Terri Hackett brought her rat terrier, Chancellor, to the property of the defendants William and Joan Musey to play with Molly, their sixty pound Labrador. While the dogs were running around the backyard, Molly suddenly knocked plaintiff down from behind, causing her injury. In Hackett v. Musey, 2017 N.J. Super. Unpub. LEXIS 721 (App. Div. March 24, 2017), the plaintiff argued that the defendants were negligent for allowing their sixty pound dog to run around freely on their property in the presence of guests.

If there was an injury due to a dog bite, the New Jersey statute, N.J.S.A. 4:19-16, imposes absolute liability on a dog owner for damages caused by the bite. Absent a dog bite, a common law claim for absolute liability is available to a plaintiff injured by the actions of a dog if a plaintiff can prove “scienter”- knowledge – of the dog’s “vicious or mischievous propensities.” Scienter is not limited to malicious behavior. It would include any prior knowledge of the dog owner that “the disposition of the animal is such that it is likely to commit a similar injury to that complained of, be it in anger or play.” Without scienter, an injured plaintiff is limited to bringing a negligence action.

In this case, the trial court judge granted summary judgment in favor of the defendants and the plaintiff appealed. The judge found that the plaintiff had presented no proof of scienter or negligent conduct by the defendants. Without scienter, the trial judge could not find any way to conclude that the defendants knew of, and nonetheless allowed, their dog to act in a way that would cause harm to another.

The Appellate Division agreed and affirmed the order, dismissing the case as to the defendants. The Court found that there was no evidence presented that the defendants had any knowledge, actual or constructive, that Molly possessed mischievous, excitable or vicious propensities. The judge concluded that the plaintiff’s injury occurred when Molly inadvertently bumped into plaintiff while chasing plaintiff’s dog. Further, the plaintiff knew the dogs were running around the backyard unleashed and failed to either insist that defendant’s dog be placed on a leash or remove her own dog from the yard.

This case points out the different standards applied by the New Jersey courts when there is an injury caused by a dog. If the injury is not caused by an actual dog bite, there is no statutory strict liability. There could still be a claim for common law “absolute” liability if the owner had prior knowledge of the dog’s “dangerous” propensities. Otherwise, a simple negligence standard applies to the claim.

Plaintiffs Libia and Peter Price were guests of defendants Howard Colodne and Louise Colodne celebrating Easter. As Libia was leaving defendants’ home, the heel of her shoe caught on the metal weather-strip of the door threshold and she fell. In Price v. Colodne, 2017 N.J. Super. Unpub. LEXIS 741 (App. Div. Mar. 27, 2017), the Appellate Division was asked to rule on whether the defendants breached any duty of care owed to Libia as a social guest.

Plaintiffs had been friends with the defendants for about 8 years (which perhaps ended upon filing of this suit!) Over this time period, Libia had visited the defendants’ home between 15 – 20 times, always using the front door. The threshold was about 1 to 1 /2 inches above the floor and was about 10 ¼ inches above the entry foyer floor, which led into a sunken vestibule.

Plaintiffs’ expert noted that the threshold edge was exposed to pedestrian contact and served as a point of entrapment, which could catch someone’s foot. He opined that, when combined with the vertical drop, it created a hazardous condition.

At the time of the accident, Libia noted that the foyer area was a “bit dark.” The foyer was lit by a chandelier that was not lit as she was exiting the house. According to the plaintiff’s expert, the lack of illumination prevented Libia from viewing the hazardous condition of the threshold.

Defendants owned this home for 37 years and, during this time, the condition of the threshold remained unchanged. No one ever tripped over it while they owned the home. The defendants used the doorway more frequently than Libia and never experienced any problem.

The trial court judge found that the plaintiff was a social guest. As such, he cited the standard of care which required the homeowners to inspect their property and correct or disclose any dangerous conditions of which the homeowner was aware and whether the guest could be aware of through a reasonable use of his or her faculties.

The judge found that Libia should have been aware of the threshold due to the number of her visits to the defendants’ home. As for the lighting, he found that she could have remedied the situation of her own accord. Accordingly, he granted the defendants’ motion for summary judgment in favor of the defendants.

On appeal, the Appellate Division initially addressed whether there was a dangerous condition of which the defendants should have known and warned Libia. The Appellate Division noted that the duty to warn does not extend to dangerous conditions of which the property owner was unaware. Here, during the defendants’ 37 years of home ownership, no one tripped in the doorway and there was no obvious dangerous condition that a layperson would recognize. Hence, the Court concluded that the defendants neither had knowledge nor should have had knowledge of the threshold’s condition so as to impose a duty to rectify the condition or warn Libia about it.

As for the dim lighting, the Appellate Division found that this condition was readily observable by Libia and could have been easily remedied, i.e., she could have turned the light on or asked the defendants to do so. Thus, the Court found that the defendants cannot be held liable due to her failure to use due care. The Appellate Division affirmed the trial court’s decision, finding that based upon traditional notions of premises liability, as well as fairness considerations, both militated against imposing a duty upon the defendants.

Plaintiffs Ikeem Higgins, Richard Hoyte, and Cordero Russell were attending “Caribbean Night” at the Holiday Inn in Edison on July 11, 2010. At about 3 AM, they were standing outside the hotel, when an unidentified masked gunman approached them and shot them in the legs. In Higgins v. Holiday Inn & Conf. Ctr., 2017 N.J. Super. Unpub. LEXIS 857 (App. Div. April 4, 2017), the plaintiffs sued the Holiday Inn for their injuries, claiming that the Inn was negligent in failing to provide security for the event.

Discovery revealed no prior shootings at the Holiday Inn. A search of police records did show some criminal activity in the 2 years prior to this incident of varying types such as a fight, an assault in a hotel room with no injuries, a non-violent theft in the parking lot, an unarmed robbery of a handbag, a rape, and a prostitution call relating to a police sting operation.

At the end of discovery, the defendant filed a motion for summary judgment. The trial court granted the motion because it found no facts which could have put the hotel on notice that Caribbean Night could produce criminal activity. There had been 19 prior Caribbean Nights with no incidents.

The plaintiffs appealed, arguing that “the prior criminal activity at the Inn, the late hour, and the festive environment of the Caribbean Night event should have caused defendant to anticipate loitering, under-age drinking, drugs and fights.” Hence, plaintiffs argued that considering these circumstances, it imposed upon the defendant a heightened duty to take precautions against criminal acts of third parties, including the shooting that they suffered. Plaintiffs claim that the defendant should have consulted security personnel or the Edison Police Department prior to the incident.

The Appellate Division pointed out that whether a defendant owes a legal duty to exercise care to avoid a risk of harm involves considerations of fairness and public policy. An owner can be liable for an injury caused by a third party depending on the totality of the circumstances. The Court must consider fairness considerations for imposing a duty, the foreseeability of third party conduct, and whether the premises owner exercised reasonable care under the circumstances.

Here, this incident appeared to be a random act of violence. During the 19 prior Caribbean Nights, there were no criminal incidents. And, for the 10 years previous, there were no shootings at the Holiday Inn. While there was some criminal activity the two prior years, the Court did not find it so alarming or escalating that it would have been “reasonably predictive” that attendees at the event could be harmed by a shooting.

The bottom line for the Appellate Division was that there was not sufficient, credible evidence to support that the defendant should have foreseen what occurred. Accordingly, the Court found in the absence of reasonable foreseeability and comporting with the concepts of fairness and sound public policy, it held that the defendant neither owed, nor breached any duty to plaintiffs. Thus, it affirmed the grant of summary judgment in favor of the defendant.

Plaintiff, Kenneth Pisieczko, an independent contractor, was hired by the defendant Children’s Hospital of Philadelphia (“CHOP”) to repair lights in CHOP’s day-program parking lot, which lights were affixed to the top of wooden poles. To reach the top of one of the poles to fix the light, the plaintiff secured a ladder to the pole. Due to rot in the pole, it broke, causing plaintiff to fall off the ladder and injure his heel. In Pisieczko v. Children’s Hosp. of Phila., 2017 N.J. Super. Unpub. LEXIS 39 (App. Div. Jan. 6, 2017), he sued CHOP for his injuries. The issue on appeal was whether the independent contractor exception applied so as to bar his claim.

New Jersey law is well settled that a landowner has a duty to provide a reasonably safe working place for an independent contractor he or she hires. That duty includes the obligation to make a reasonable inspection to discover defective and hazardous conditions. However, there is an exception to this obligation in that it does not apply to known hazards that are part of or incidental to the work that the contractor is hired to perform.

A landowner’s duty to provide a reasonably safe place for the contractor to work does not entail eliminating operational hazards which are obvious and visible to the contractor upon an ordinary inspection. Further, it is assumed that the contractor’s workers “are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly.”

At the trial court level, CHOP moved for a dismissal of the suit via summary judgment. The judge granted summary judgment, finding that the decision to place the ladder against the pole was incident to the work being performed and plaintiff had conducted an inspection of the pole prior to its placement.

The Appellate Division agreed with the trial court that CHOP was entitled to a dismissal. The plaintiff had determined the risk of reaching the lights at the top of the pole, which risk was incidental to fixing the light. The hazard was ascending the pole, which was an obvious risk, because plaintiff had inspected the pole for structural integrity before he ascended it. Further, the court found that the plaintiff chose the method to ascend the pole to fix the light without any input or supervision from CHOP.

Because plaintiff was injured due to a hazard created by doing the work he was hired to perform, the Appellate Division found that CHOP did not breach any duty owed to plaintiff. Hence, it upheld the trial court’s order, dismissing the case as to CHOP.

Plaintiff Katherine Neilson was walking on a sidewalk adjoining the residential property owned by the defendant Antoinette Dunn when she fell on a spiky seed pod, suffering injury. The seed pod came from sweetgum trees located on defendant’s property. In Neilson v. Dunn, 2016 N.J. Super. Unpub. LEXIS 2668 (App. Div. December 5, 2016), plaintiff Neilson claimed that defendant’s sweet gum trees created a dangerous condition and that defendant Dunn should be liable for her injuries.

Defendant’s sweetgum trees drop their fruit in the form of spikey seed pods onto her property and sidewalk. She hired a lawn maintenance contractor who, as part of his services, periodically removed the pods. The last cleanup was about 2 months before plaintiff’s fall. Plaintiff lived next door to the defendant and was aware of the seed pods on the sidewalk.

Defendant was able to obtain a dismissal via summary judgment on the trial court level. She successfully argued that she did not create or exacerbate a dangerous condition. The seed pod accumulation was a natural condition, over which she had no control, and that she acted as a reasonable landowner, hiring a lawn maintenance service to periodically clean up debris on her lawn and sidewalk.

On appeal, plaintiff argued that the defendant had a duty to ensure her property and the adjacent sidewalk were free of the seed pods that fell from her trees and her failure to do so created a hazardous condition. As a result, she contended that the defendant should be liable for her injuries suffered from falling on the seed pods.

The Appellate Division reiterated the general common law principles under New Jersey law concerning the limited liability for homeowners for failure to maintain an adjacent public sidewalk. If the hazardous condition is natural, as opposed to artificial, the property owner has no liability for the hazard. An exception to this rule would be if the property owner’s affirmative act caused the problem with the sidewalk.

Here, the Court noted that the sweetgum trees had existed on defendant’s property over fifty years ago before the defendant purchased the property. The trees’ natural cycle included the growth of fruit in the nature of spiky seed pods, which then fell naturally to the ground. The Court found that the defendant did not take any affirmative act to cause or exacerbate the natural condition. To the contrary, the defendant arranged for a lawn service to maintain her property, including the removal of the pods. As a result, the Appellate Division held that the defendant was not liable for any consequences of the natural occurrence of the seed pods being scattered on the ground and upheld the trial court’s grant of summary judgment in favor of the defendant homeowner.

Plaintiff Rosa Sands was injured when she fell down an approximate 2 foot embankment after leaving a dinner party on a beach in Mexico. The dinner party was part of a promotional event known as “Raise the Bar” offered by certain defendants, including Reebok International and Adidas American, Inc. (the “Reebok defendants.”) In Sands v. Grupo Posada S.A. de C.V., 2016 U.S. Dist. LEXIS 65769 (D.N.J. May 19, 2016), the Reebok defendants filed an initial motion to dismiss, arguing that, as a mere sponsor of the event, it did not owe a duty to plaintiff.

Plaintiff’s daughter brought the Plaintiff to this vacation/event. Plaintiff claimed that dangerous and hazardous conditions existed on the premises and that the Reebok defendants “organized, supervised, maintained, controlled, cared for, possessed, and managed the dinner party including the area of the premises where Plaintiff fell.” Further, she alleged that the Reebok defendants “highly recommended” the premises by offering an all-expenses paid trip. Hence, Plaintiff contended that the Reebok defendants had a duty to inspect the premises to insure they were reasonably safe and a duty to warn of any hazardous and/or dangerous conditions on the premises.

The Reebok defendants, however, argued that they did not owe the Plaintiff a duty of care that would support a negligence claim under a premises liability theory. They argued that “mere sponsorship of an event, absent possession or active control over the event or over the property, does not render a defendant legally responsible.”

Both parties agreed that New Jersey applied and that the controlling case was Bango v. Carteret Lions Club, 12 N.J. Super. 52 (App. Div. 1951). Based upon Bango, a person who induces others to come upon his premises is under a duty to exercise reasonable care for their protection. But, for the defendant to be held liable, it must be shown that they had such a degree of control that they could have averted the danger or such superior knowledge that they should have foreseen and warned plaintiff of a danger that was not apparent to plaintiff. However, no liability exists where a defendant “did no more than sponsor and advertise an event – but have not exercised any authority or control over the conduct of the event.”

Here, the Court found that the plaintiff failed to assert that the Reebok defendants had a sufficient degree of control that it could have averted the alleged danger. The mere allegation that the Reebok defendants “organized, supervised, maintained, controlled, cared for, possessed and managed the dinner party including the area where Plaintiff fell” was insufficient to establish a premises liability cause of action against the Reebok defendants. Accordingly, the Court dismissed this cause of action.

A business owner owes an invitee a duty to discover and eliminate dangerous conditions and to maintain their premises in a safe condition. For an injured plaintiff to prove a breach of that duty, if the owner did not create the condition, the plaintiff must prove that the defendant had actual or constructive knowledge of the condition that caused the accident. Typically, in these types of cases, the owner does not have actual knowledge and liability turns on whether the owner had constructive knowledge. That was the issue in Yazujian v. PetSmart, 2016 U.S. Dist. LEXIS 108303 (D.N.J. Aug. 16, 2016).

In Yazujian, the plaintiff went to PetSmart at about 8:30 am to provide volunteer services for an adoption agency that operated within the store. It was snowing that morning when the plaintiff arrived at the store. The plaintiff could not recall if there was a mat at the entrance of the store. At about 10:30 am, the plaintiff left the adoption area to buy cat food. While in an aisle of the PetSmart store containing dry cat food, the plaintiff slipped and fell near a clear puddle of water about 5 to 6 inches in diameter. As a result, the plaintiff fractured her patella.

The plaintiff offered no direct evidence of when or how the puddle was created. She claimed that it may have come from people tracking in snow into the store prior to the accident. The defendant presented evidence that an employee was down that aisle 20 minutes prior to the accident and did not observe any water on the floor. PetSmart did not have a surveillance camera that showed this area of the store.

Petsmart filed a motion for summary judgment, arguing that the plaintiff failed to prove that it breached its duty of care owed to the plaintiff. It asserted that plaintiff had offered no evidence that it had actual or constructive notice of the alleged dangerous condition, i.e., the water on the floor.

Here, the plaintiff did not claim that PetSmart had actual notice of the water. Rather, plaintiff argued that it had constructive notice of the condition. While this issue was a close call, the District Court found that the plaintiff had presented sufficient evidence to establish that there were issues of fact as to whether constructive notice existed and that this issue must be decided by a jury.

What factors did the court consider in reaching this decision? First, the court noted that cases have varied as to the exact length of time that a dangerous condition must exist before an owner is deemed to have constructive notice of that condition. It also depends upon the characteristics of and surrounding the dangerous condition. The courts look at where the condition was located. Was it near a high traffic area? Were there employees in the area that should have seen the spill? What is the longest amount of time the condition could have existed?

In determining the issue of constructive notice, the court looked at what steps the PetSmart employees took to avoid puddles, knowing that there was inclement weather. The plaintiff argued that PetSmart knew that there was an increased likelihood that customers would drip water inside the store and that PetSmart failed in its duty to be “especially vigilant” under the circumstances. PetSmart failed to place any additional mats at the entrance and failed to place warning signs throughout the store. Further, the plaintiff contended that, although PetSmart employees were trained to “walk the store” to make sure there was no moisture on the floor, they did not monitor the floors on any set schedule, nor did they increase the frequency on the day of the accident, even though they were aware of the increased likelihood that customers would drip water on the floor.

PetSmart argued that the plaintiff only assumed that the water came from a customer tracking in snow. However, the court found that the plaintiff had presented enough proofs that the water could have come from snow being tracked in. The plaintiff relied on statements in the PetSmart incident report that the floors were wet due to snow weather conditions and an Associate statement that they “didn’t realize … how much snow was being tracked in and melting into puddles throughout the store until after Plaintiff’s fall.”

While it was a close call, the District Court found that there was sufficient evidence to create a genuine issue of material fact whether (1) the puddle was created by snow being tracked into the store and (2) PetSmart had constructive notice of the puddle. Accordingly, the court denied the defendant’s motion for summary judgment, finding that it was up to a jury to determine whether PetSmart breached its duty of care owed to plaintiff.

While this case is an unpublished District Court opinion, it points out the difficulties in prevailing on a motion for summary judgment in a premises liability case due to a substance on the floor when (1) the defendant is unable to establish how long the substance was present on the floor; (2) the defendant is unable to establish the source of the substance; (3) the defendant has not taken extra precautions on days when there is inclement weather; and (4) the defendant has no set monitoring of the conditions of its premises.

To help defend against these types of personal injury suits, when a business owner is made aware of a fall, it should review any available surveillance cameras in an attempt to determine how and when the condition was created and, of course, preserve the video. Additionally, the owner should establish a set schedule to monitor the conditions of its premises. Extra precautions should be taken on days when inclement weather exists, such as putting down additional mats and wet floor signs and increasing employee monitoring. These inspections should be documented and the defendant should be prepared to show the frequency of this monitoring, as well as any increased inspections necessitated by the weather.

Plaintiff, Grazio Spano, went shopping in the Acme store in the shopping center located on the Black Horse Pike, Mays Landing, N.J. Acme was the anchor store in this multi-tenant shopping center. After finishing her shopping, the plaintiff went back to her car and slipped on black ice in the parking lot. In Spano v. Supervalu, Inc., d/b/a Acme Markets, 2016 N.J. Super. Unpub. LEXIS 1711 (July 13, 2016), the issue was whether Acme could be liable to the plaintiff for the injuries she suffered in the fall.

The owner of the shopping center, Paramount Realty Services, Inc., had a contractual obligation to maintain the shopping center, pursuant to a common area maintenance agreement, which governed its landlord-tenant relationship with Acme. Paramount hired Eric’s Snow Removal to provide for snow and ice removal at the shopping center. Eric’s hired Fresh Cut Lawn Service to perform this snow and ice removal.

About 2 weeks before the accident, 21 inches of snow fell. Fresh Cut plowed the lot and piled the snow into large piles on the grass islands in the parking lot. It came back on two subsequent occasions and salted the lot. Plaintiff parked her vehicle near one of the grass islands where Fresh Cut piled the snow.

Acme filed a motion for summary judgment, which the trial court granted. After settling her claims with the other defendants, the plaintiff appealed this order granting summary judgment as to Acme.

The Appellate Division found that this case was squarely controlled by Kandrac v. Marrazzo’s Mkt. at Robbinsville, 429 N.J. Super. 79 (App. Div. 2012). In Kandrac, the court ruled that a commercial tenant in a multi-tenant shopping center did not owe a duty to the plaintiff who fell in the shopping center in which the owner retained the responsibility to maintain the common areas.

Here, the plaintiff tried to distinguish Kandrac by arguing that it did not apply because Acme allegedly assumed a duty of care of informing the landlord or the snow removal contractor of dangerous or icy conditions so these areas could be addressed. Plaintiff claimed that Acme breached its protocol by failing to notify the owner or the snow removal contractor of the icy condition of the lot before Plaintiff fell. Plaintiff also claimed that it was Acme’s policy to apply rock salt to the parking lot.

The Appellate Division rejected these arguments. It found that Acme did not have a contractual duty to maintain the parking lot. If Acme’s employees did inform the owner or the contractor of icy conditions in the lot, it did so to permit the owner or contractor to carry out their contractual responsibilities. Further, the court noted that the record did not support plaintiff’s assertion that Acme had a policy of applying rock salt on icy patches in the parking lot. Rock salt was applied to the lot in response to this incident. The court found that the one time application of rock salt to the icy area of the incident did not justify the imposition of a general duty to keep the lot reasonably free of ice and snow. Accordingly, the Appellate Division affirmed the trial court’s decision, dismissing the complaint as to Acme.