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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.

Municipality Found to Have No Liability for Injury Caused by Trip on Uneven Boards on Boardwalk

Plaintiff Jessica Feeney tripped and fell while walking on the boardwalk in the City of Atlantic City.  She sued the City claiming that she tripped on uneven boards and that the City was negligent in causing the dangerous condition and that it failed to timely repair the condition.  The issue in Feeney v. City of Atlantic City, 2025 N.J. Super. Unpub. LEXIS 421 (App. Div. Mar. 19, 2025) was whether the City could be liable for either causing or failing to repair the boardwalk before the plaintiffs’ accident.

This accident occurred on August 30, 2019, when plaintiff was walking on the boardwalk in the City near the Showboat Hotel.  Plaintiff testified that there was a raised board and her right foot rolled on the uneven board and her leg buckled.   She tripped, fell and injured herself.  She denied noticing the uneven board before she fell.  After the accident, her husband went back and took photos which showed that there was one board that was lower than the adjacent board with a displacement of approximately 1 inch. 

She and her husband sued the City, claiming that the City was negligent in causing the condition on the boardwalk and in failing to timely repair the uneven board.  She retained a liability expert, Arthur Chew, who reviewed the photographs and opined that there was a hazardous condition.  He also opined that the City’s police vehicles and public works vehicles that ride on the boardwalk placed high stresses in the boardwalk and they may cause the boards to become uneven. 

The expert relied upon testimony from City employees who explained that the boards could become uneven for numerous reasons which included weather, shifting of the boardwalk foundation, sand being pushed up against the underside of the boardwalk and vehicles going across the boardwalk.  Displacements of more than a ¼ of an inch between boards were something that needed to be looked at.  The City also admitted that any vehicle on the boardwalk does damage.

The City filed for summary judgment, arguing that it was shielded from liability under the Tort Claims Act.  It asserted that it had no actual or constructive notice of the uneven boards where plaintiff fell.  It also argued that its conduct in inspecting the boardwalk, which was approximately 4½ miles long, was not palpably unreasonable.  Finally, it contended that the uneven boards or raised boards did not constitute a dangerous condition as defined by the Act.

The trial court granted the summary judgment and dismissed the case.  It found that the uneven condition of the boards did constitute a dangerous condition.  However, there was no evidence that the City caused the dangerous condition.  It found plaintiffs’ liability expert’s opinion to be speculative because there were no facts to support that the City had caused the boards to become uneven. Knowing that vehicles might cause the boardwalk to become uneven in certain places did not establish that the boards where plaintiff tripped became uneven because a vehicle drove on those boards.  Further, there were no facts to establish when the boards became uneven and, thus, a jury could not conclude that the City failed to repair the dangerous condition in a reasonable period of time. 

Finally, the trial court also concluded that the City had not acted palpably unreasonably.  The trial court pointed out that the City had an inspector who regularly inspected the boardwalk and plaintiff had presented no evidence that the City should have discovered the uneven boards before plaintiffs’ accident. 

This summary judgment dismissal was appealed to the Appellate Division.  Plaintiff argued that a trial court should not have granted summary judgment because there were material disputed facts concerning whether the City created the dangerous condition that caused her fall.  Further they argued that their expert’s opinions were not net opinions and were supported by the factual evidence.  However, the Appellate Division rejected these arguments and affirmed the trial court decision.

The Court noted that the City, as a public entity, was only liable for negligence as permitted under the Tort Claims Act.  To establish liability, the Appellate Division noted that the plaintiff must prove as follows:

1.         A dangerous condition existed on the property at the time of the injury.

2.         The dangerous condition proximally caused the injury.

3.         The dangerous condition caused a foreseeable risk of the kind of injury that occurred.

4.         The public entity had actual or constructive notice of the condition a sufficient time prior to the injury to correct the dangerous condition.

5.         The action or inaction taken by the public entity to protect against the dangerous condition was palpably unreasonable.

Here, the Appellate Division noted that there was no evidence that the City had actual knowledge of the uneven boards.  Instead, the plaintiffs’ argument was that the City knew that vehicles drove on the boardwalk, that vehicles might cause the boards to become uneven, and that the City’s vehicles going across the boardwalk likely created the uneven boards.  However, the Court found that there was no evidence from which a jury could find that the City had actual or constructive notice of this condition.  It pointed out that “[k]nowing that a boardwalk stretching more than 4 miles can be damaged on various times and various causes, including vehicles driving on or across the boardwalk, does not constitute actual or constructive knowledge of this specific dangerous condition that caused [plaintiff] to fall.”

As for plaintiffs’ theory that the City should have inspected and found the uneven boards, the Court pointed out that the problem with this theory is that plaintiffs have no evidence as to how long the boards were uneven.  Plaintiffs’ liability expert was never able to identify when the boards became uneven.  Rather, he merely speculated that the City should have discovered the uneven boards if they conduct a regular inspection.  The Court found that without knowing when the boards became uneven, a jury would have no basis to find that the City had “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

As for the last prong as to whether the City acted palpably unreasonable, the plaintiffs’ best argument was that the City should have discovered the uneven inspections where plaintiff fell by conducting more regular inspections.  However, the City did inspect for dangerous conditions on the boardwalk and there was no evidence from which a jury could find that the City’s failure to conduct more inspections was palpably unreasonable.

The Appellate Division also rejected the expert’s opinion that the City’s vehicles created the damage to the boards.  The Court pointed out that there were no facts to support this opinion.

Thus, the Appellate Division agreed with the trial court’s decision and affirmed the summary judgment dismissal in favor of the City of Atlantic City.

Court Finds Commercial Tenant Not Responsible for Plaintiff’s Fall in Parking Lot

Plaintiff Vito Collucci fell on ice and snow while walking towards a restaurant in the parking lot of a multi-tenant strip mall.  He sued the owner of the shopping center, the restaurant, as well as other tenant stores located in the strip mall.  The issue in Collucci v. Cosima Cassese, 2025 N.J. Super. Unpub. LEXIS 186 (App. Div. Feb. 5, 2025) was whether the commercial tenants could be liable for his fall in the parking lot in front of the building.

The strip mall was owned by defendant Cassese Enterprises, Inc. (“Cassese”). The mall contained a restaurant (Amore Restaurant) and other tenants.  Plaintiff had been eating dinner at the Amore Restaurant with his family.  He parked in the parking lot in front of the building.  After dinner, he went to his car to retrieve a cake he brought for dessert.  He did not re-enter the restaurant through the front door but instead walked past the restaurant to the end of the building around the corner and toward the back where he intended to enter Amore’s kitchen through a back door.  Plaintiff Collucci slipped on ice while walking in the parking lot as he was near the back door of Amore bringing the cake to the kitchen. 

Defendant Amore, along with other named commercial tenants, had lease agreements with the owner Cassese.  According to the lease, the common areas were subject to the exclusive control and management of the owner lessor. The owner’s representative admitted that Cassese was responsible to ensure that no dangerous snow or ice conditions existed in the parking lot of the strip mall.  Cassese hired PL Landscaping to clear snow and ice at the shopping center.  Further, the owner’s representative admitted that she did not expect the defendant tenants to clear snow and ice from the sidewalk in front of their respective premises.

At the trial court level, the defendant tenants filed for a summary judgment, arguing that they did not owe plaintiff a contractual or common law duty regarding the strip mall, that the parking lot fell under the definition of a common area, and that the owner/landlord Cassese was responsible for the maintenance of the common areas.  This responsibility included snow or ice removal in the parking lot.

The trial court found that the lease agreement contained plain and unambiguous language requiring the tenants to maintain the areas in front of their stores and nothing more.  Based upon this lease, the landlord intended to exercise control over common areas, such as parking lots. 

Further, the court cited to the prior case of Kandrac v. Marrazzo’s Market in which the court had ruled that tenants in a multi-tenant shopping center, sharing a common area parking lot, were under no contractual duty to maintain the common areas, and were not responsible for a fall in the parking lot. 

Further, the trial court found that the plaintiff fell in an area of the parking lot that was not on the leased premises of any tenant nor on the sidewalk that abutted their store fronts.  Rather, Plaintiff was going to the rear of the restaurant, which was not a defined route to any of the tenants’ premises.  Accordingly, the trial court granted the tenant’s motions for summary judgment, dismissing the lawsuit. 

The plaintiff appealed this order to the Appellate Division, arguing that the tenants did have a contractual and common law duty to clear the snow and ice in the area of plaintiff’s fall.

The Appellate Division began its analysis by reviewing the lease agreement.  It noted that the area where plaintiff fell was not a sidewalk or a walkway but rather the parking lot blacktop on the side of the building, which did fall under the definition of a common area under the lease and which was under the exclusive control of the landlord.  Further, the Court pointed out that the landlord’s representative had agreed that it was the landlord’s obligation to remove snow and ice from the parking lot and the sidewalk and, in fact, hired a contractor to fulfill that obligation.  The Appellate Division found that the defendant tenants did not have a contractual duty to remove snow and ice from the area of plaintiff’s fall.

The Appellate Division ruled that the Kandrac case did apply, which case had similar facts – the tenants were in a multi-tenant shopping center, sharing a common area parking lot with a lease that did not impose any contractual duty on the tenants to maintain the common areas.  According to that case, the Court had found that the landlord was responsible for any negligence in maintaining the parking lot.

Thus, the Appellate Division found that Kandrac was the controlling law in these circumstances and reiterated that “as a general rule, when a commercial tenant in a multi-tenant shopping center has no control or contractual obligation to maintain a parking lot shared with other tenants, the common law does not impose a duty upon the tenant to do so.”  Hence, the Court agreed with the trial court decision and affirmed the summary judgment order, dismissing the complaint as to the tenant defendants.

Court Rules That County Not Vicariously Liable for the Alleged Negligent Acts of Its Independent Contractor

Plaintiff Wiggins Plastics, Inc. sued the County of Passaic and its contractor Assuncao Brothers, Inc. (“Assuncao”) for damages claimed to its property following the effects of Hurricane Ida.  Plaintiffs claimed that their properties were damaged due to the negligent acts related to a bridge replacement project, contracted by the County of Passaic to defendant Assuncao Brothers.  Plaintiffs alleged that the County was vicariously liable for its supervisory role over its contractor.  The issue in Wiggins Plastics, Inc. v. County of Passaic, 2025 N.J. Super. Unpub. LEXIS 224 (Law Div. Feb 6, 2025) was whether the County was immune from vicarious liability for the negligent acts of its independent contractor under the Tort Claims Act.

The County had engaged Assuncao as an independent contractor in the Kingsland Road Bridge replacement project.  Plaintiffs alleged that the effects of Hurricane Ida caused flooding and subsequent damages which, in part, were due to the negligent acts related to this bridge replacement project. 

The County filed for a summary judgment dismissal, arguing that it cannot be held vicariously liable for the alleged negligent acts of its independent contractor.  Under the Tort Claims Act, public entities can be held vicariously liable for the wrongful acts of their employees (N.J.S.A. 59:2-2(a)).  However, the Tort Claims Act expressly excludes independent contractors from the definition of “public employee” under Section N.J.S.A. 59:1-3.  Further, the trial court, in deciding the motion for summary judgment, noted that this distinction as to liability has been consistently upheld by the courts, finding that public entities are not liable for the actions of its independent contractors.

In this case, plaintiffs did concede that Assuncao was an independent contractor.  The court found that plaintiffs did not identify any applicable exception that would impose liability on the County, “nor have they presented specific facts that could establish vicarious liability and preclude summary judgment at this stage.”  Further, they have not demonstrated that the County had a non-delegable duty that would impose liability despite Assuncao’s status as an independent contractor.

For these reasons, the trial court found that the County was entitled to summary judgment for Plaintiffs’ claims against it which were based upon vicarious liability for Assuncao’s actions. 

Court Dismisses Plaintiff’s Personal Injury Claim Due to Failure to Plead Claim Under the Products Liability Act

Plaintiff Chris Williams filed a lawsuit against defendant QuickChek Corp. when his right hand was burned as a result of hot water melting a Styrofoam cup.  Although the plaintiff pled a premises liability cause of action, the complaint did not include a claim against QuickChek based upon the Products Liability Act (“PLA”).  The issue in Williams v. QuickChek Corp., 2024 N.J. Super. Unpub. LEXIS 3238 (App. Div. Dec. 30, 2024) was whether the complaint should be dismissed based upon the plaintiff’s failure to plead a claim under the Products Liability Act.

Plaintiff filed a lawsuit against QuickChek based upon an incident that occurred in December 2021 at the QuickChek in Wayne, New Jersey.  He claimed that his right hand was burned as a result of hot water melting a Styrofoam cup which caused him injury and disability.  Almost two years later, on January 9, 2023, he filed a lawsuit against QuickChek, asserting that defendant was responsible for the care and maintenance of the premises and that it negligently maintained, repaired and/or controlled the premises so as to permit a hazard, a nuisance and a trap for persons lawfully on the premises.  Plaintiff further claimed that as a result of the carelessness, recklessness and/or negligence of defendant, he suffered a burn when the Styrofoam cup melted.

After the lawsuit was filed, QuickChek moved to dismiss the complaint for failure to state a cause of action.  The defendant argued that this case was not a premises liability case.  Rather, it was a product liability action and plaintiff failed to plead a claim under the PLA and that, under New Jersey law, all common law claims were subsumed by the PLA.  The trial court judge agreed with the defendant’s argument and dismissed the lawsuit. 

The judge also held that, because the two year statute of limitations had run under the PLA, it would be futile to permit the plaintiff to amend the complaint.  This dismissal was appealed to the Appellate Division.

The Appellate Division noted that the PLA is the exclusive remedy for personal injury claims arising out of product use.  This statute “is intended to protect users from harm caused by defective products by ‘establishing clear rules’ in actions for damages for harm caused by products.”  The Court noted that the PLA “imposes liability upon the manufacturer or seller for a products’ manufacturing defects, warning defects, and design defects.”  Further, the Appellate Division pointed out that the Legislature “established a unified theory of recovery for harm caused by products.”  Thus, the PLA subsumes claims for a defective product under the Consumer Fraud Act, as well as any alternative remedy for injuries such as negligence and breach of implied warranty.

Thus, the Appellate Division agreed with the trial court judge in dismissing the complaint.  The focus of plaintiff’s claim was clearly on a defective Styrofoam cup that melted when hot water was poured into it.  The Appellate Division found that the plaintiff should have brought the claim pursuant to the PLA which was the “exclusive remedy” for personal injuries arising out of the use of a product.  Instead, plaintiff asserted a claim as a premises liability negligence claim which claim is subsumed under the PLA.  Further, the Appellate Division noted that claiming that a party negligently maintained its premises “is not the same thing – not even close – as alleging it sold a defective product.”  Thus, the trial court’s decision was affirmed, dismissing the complaint.

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