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Landowners Liability Act Bars Claim for Fall in County Park

Plaintiff Andris Arias fell in a hole and was injured while rollerblading on a paved pedestrian pathway in Van Saun County Park in Paramus.  The Park, owned by the County of Bergen, consisted of 130 acres of land.  The issue in Arias v. County of Bergen, 2024 N.J. Super. LEXIS 74 (App. Div. June 14, 2024) was whether the County had immunity under the Landowners Liability Act for this accident.

Under the Landowners Liability Act, certain owners, lessees and occupants of property owe no duty to persons injured while using property for recreational activities and are immune from suit.  N.J.S.A. 2A:42A-3.  This immunity is available to public entities.  The immunity is not available to persons or entities if there is a “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.” 

The plaintiff argued that the County was not entitled to immunity under this Act because the Park was located in a residential, suburban neighborhood and, therefore, did not qualify as “premises” protected by the Act.  The County, however, argued that the focus of the Act was the dominant character of the land and the Park, as a property containing recreational lands, was exactly the type of premises that the Act was created to protect. 

Here, the trial court granted defendant’s motion to dismiss, which order was appealed to the Appellate Division.  The Appellate Division upheld the dismissal of the complaint.  It found that under the “dominant character of the land analysis, it was undisputed that the Park offered the general public access to picnic areas, playgrounds, pavilions, athletic fields, wooded areas, bicycling and wooded paths, and the dog park – without charging a fee.”

The Court noted that the Park’s “dominant character as an open space for sport and recreational activities renders the Park the type of property entitled to protection” under the Landowners Liability Act.  Thus, it agreed with the trial court judge that the Park was a “premises” as defined by the Act and that the County was entitled to Landowners Liability Act immunity from this accident.  The Appellate Division also agreed that the motion was not premature and affirmed the trial court decision, dismissing the lawsuit. 

Appellate Division Rules That Department of Transportation and State of New Jersey Were Not Liable for Injury Caused by Pothole

By: Uyen Nguyen, Law Clerk
Edited By: Betsy G. Ramos, Esq.

Plaintiff Josef and Stefani Langel filed a complaint against Defendants New Jersey Department of Transportation (DOT), State of New Jersey, county, municipal, and private entities, alleging that Defendants’ failure to provide proper warning and repair a pothole in the roadway caused his injuries when he was thrown off his bike. The issue in Langel v. State DOT, 2024 N.J. Super. Unpub. LEXIS 1490 (App. Div. July 10, 2024) was whether Defendants DOT and the State of New Jersey were liable for the injuries Plaintiff Josef Langel sustained from the pothole.

On March 16, 2019, Josef Langel rode a bicycle on Sylvan Avenue, a section of Route 9 West, in Englewood Cliffs, NJ. He hit a pothole in the roadway, causing him to be thrown off his bike and sustain injuries. Plaintiff and his friends were on a bike trip from New York City to Piermont, NY. Plaintiff claimed that he rode the same route six months before the accident. However, Plaintiff never noticed the pothole before the accident, nor made any complaint about the road conditions to any state entities.

Ronald Gallucci, a DOT crew supervisor who oversaw the maintenance of Route 9 West, testified that he had neither received any complaints, nor seen the pothole that injured the Plaintiff. He stated that his maintenance crew inspected the roadway every other day for potholes. According to Gallucci, if the DOT had received a complaint about the potholes, he or his crew would have inspected the area.

William Falato, a DOT equipment operator, also testified that he was familiar with the area where the accident occurred and had never seen the pothole before. According to this witness, if the pothole had been there for a substantial period, he or his crew would have noticed it due to its large size. He also recounted instances where his crews inspected an area and saw no potholes, but within days later, DOT received a complaint that a pothole had formed.

Englewood Cliffs Patrol Officer Marc Krapels, who responded to Plaintiff’s accident, also testified that he had not seen the pothole before. Krapels stated that from his experience patrolling the area, a pothole could form at any time, since the town is located on a cliff. DOT also provided complaints it received on February 27, 2019 regarding potholes in areas surrounding where Plaintiff hit the pothole. However, the records indicated DOT did not receive any complaint about the pothole that Plaintiff hit.

Meanwhile, Plaintiff obtained a report from expert engineer Richard Balgowan, who indicated that the pothole had been present for at least a year before Plaintiff’s accident. However, Balgowan admitted that he did not inspect the location until April 23, 2021, which was more than two years since Plaintiff’s accident, and the pothole had been repaired by then.

On August 1, 2022, Defendants filed a motion for summary judgment claiming they were entitled to discretionary immunity under the NJ Tort Claims Act (TCA), N.J.S.A. 59:2-3. Defendants maintained that their conduct in maintaining the roadway was not palpably unreasonable, and Plaintiff’s expert report was a net opinion. On the other hand, Plaintiff cross-moved for summary judgment, arguing that defendants were not entitled to discretionary immunity. Plaintiffs claimed Defendants had actual and constructive knowledge of the dangerous conditions, and their actions or omissions were palpably unreasonable. Plaintiff also argued that their expert report was not a net opinion.

The Law Division granted the summary judgment in favor of Defendants DOT and the State of New Jersey, denied Plaintiff’s summary judgment, and dismissed the complaint with prejudice. Ultimately, Plaintiff moved for reconsideration. Plaintiff’s motion for summary judgment and reconsideration was denied because they had failed to establish that Defendants had actual or constructive notice of the pothole. On appeal, the Appellate Division reviewed whether the trial judge had abused his discretion in denying Plaintiff’s motions for reconsideration.

Under the TCA, a public entity is liable for injuries caused by a dangerous condition if it has actual or constructive notice of its existence. To establish actual notice, Plaintiff must show that the public entity has actual knowledge of the existence of a condition and knew or should have known of its dangerous character. Defendants can still be liable, even though they didn’t have actual notice if Plaintiff can establish that they have constructive notice of the dangerous condition. To establish constructive notice, Plaintiffs must show that the dangerous condition had existed for a period of time and was of such an obvious nature that Defendants should have discovered it if they exercised due care.

To show actual knowledge, Plaintiff offered a photograph of the pothole that had been paved over at some point. However, Plaintiff failed to prove that the repair was performed before the accident. Thus, Plaintiff could not prove that Defendants had actual notice or knew about the pothole before his accident. Regarding constructive notice, Defendants’ witnesses all testified that a pothole could have formed within a few days or even overnight. Plaintiff could not show that the pothole had existed for a period of time despite its obvious nature, and DOT failed to exercise due care to discover it. Thus, Plaintiff was also unable to establish Defendants had constructive notice of the pothole.

Furthermore, the Appellate Division held that the expert’s opinion Plaintiff provided was a mere conclusion. Applying the standard established by the NJ Supreme Court in Pomerantz Paper Corp. v. New Community Corp. regarding the admissibility of expert opinions, the Court concluded that the expert’s opinions in this case were a mere conclusion because Plaintiffs’ expert witness could not “give the why and wherefore” to support his opinion. Furthermore, the fact this expert did not inspect the pothole in person two years after the accident did not weigh in favor of Plaintiffs.

Under discretionary immunity, a public entity is not liable for the exercise of discretion unless a court concludes that its procedures or policies are palpably unreasonable. Although the Law Division did not rely on this doctrine as a basis to grant Defendant’s motion, the Appellate Division applied the doctrine in this case and held that the DOT Assistant Commissioner’s decisions in inspecting roadway and repairing potholes were entitled to discretionary immunity. Thus, Defendants are not liable for Plaintiff’s injuries because their conduct in maintaining the roadway and making repairs was not palpably unreasonable.

Hence, the Appellate Division affirmed the summary judgment granted to the Defendants, dismissing the Complaint.

Quarry Landowners Found to Be Immune From Liability for Injuries Motor Biker Suffered While on Their Land

By: Victoria M. Adeleke, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Plaintiff Bryan Callahan sued defendants Tri-Borough Sand and Stone, Eureka Stone Quarry, Inc., and James D. Morrissey, Inc. for severe injuries suffered by Bryan when he struck a steel cable riding his dirt bike on the quarry grounds owned by defendants. The defendants successfully filed a motion for summary judgment, obtaining a dismissal of the lawsuit. The issue in Callahan v. Tri-Borough Sand and Stone, 2024 N.J. Super. LEXIS 42 (App. Div. May 20, 2024) was whether the defendants committed willful misconduct by not lowering the steel cable or were immune from liability under N.J.S.A. 39:3C-18. 

This statute provides immunity to property owners for accidents involving certain types of vehicles, including dirt bikes, unless the owner provides express consent for the vehicle to be operated on the property. But, there is an exception to this immunity for the willful or malicious creation of a hazardous condition by the property owner.

The day of the incident, a Sunday afternoon, while the quarry was closed, the plaintiff and his friend rode their dirt bikes on the defendants’ property for several hours before the plaintiff struck a steel cable elevated three feet from the ground. The plaintiff stated he was riding at about 45 mph when he struck the cable. The cable was part of the machinery used to dredge the quarry. The plaintiff claimed he had ridden his dirt bike on the defendants’ property many times before and always checked for hazards. Plaintiff admitted he never received express consent from defendants to ride on their property. However, plaintiff contended that other people, including his mother, had operated ATVs on the defendants’ property since the 1990s and were never told riding was prohibited.

The defendants filed a summary judgment motion, asserting they were immune from liability under N.J.S.A. 39:3C-18 because Bryan did not have permission to be on their land and their erecting of the cable was not willful or malicious. The plaintiff opposed the motion and sought leave to file an amended complaint to assert that the cable created a hazardous condition that constituted willful and wanton conduct and eroded their immunity. The trial court granted the defendants’ summary judgment motion, finding that the defendants did not erect the cable to deter or harm dirt bike riders but for a separate and distinct business purpose.

On appeal, due to the lack of case law under N.J.S.A. 39:3C-18, the Appellate Division applied a similar statute, the Landowner’s Liability Act (LLA), N.J.S.A. 2A:42A-1 to -10. The LLA is a similar act intended to shield liability for private owners of rural and semi-rural lands used by the public for sports and recreational activities. Under this statutory provision, like N.J.S.A. 39:3C-18, landowners “owe [] no duty to keep the premises safe for entry or use by others for sport and recreational activities.” N.J.S.A. 2A:42A-3(a). Additionally, landowners did not need to “give warning of any hazardous condition of the land or in connection with the use of any structure or by reason of any activity on such premises to persons entering for such purposes.” N.J.S.A. 2A:42A-3(a). But, the LLA does not limit liability “for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.” N.J.S.A. 2A:42A-4. 

In the LLA case of Krevics v. Ayars, the Law Division declined to extend immunity to the defendants because they acted willfully when they allowed the placement of a cable across a motorbike trail on their property they knew the public used. Conversely, the Appellate Division extended immunity to the defendants in Lauber v. Narbut because the hazard was directly related to their use of the property. Additionally, the record in Lauber v. Narbut lacked evidence that the defendants erected the hazard willfully or maliciously.  

Applying this law, in Callahan, the Appellate Division agreed with the trial court’s decision. The Appellate Division found that the record contained no evidence that the defendants acted maliciously or willfully in failing to lower the cable when the plaintiff did not have permission to enter. The plaintiff’s testimony that the public had been riding on the quarry since the 1990s was circumstantial. The evidence fell short of showing that defendants knew motor bikers were riding on the quarry and acted willfully or maliciously in erecting the cable.

Further, the court found that the cable served a separate and legitimate purpose. The defendants’ expert testified that the cable was essential to the dredging operation at the property. This expert stated that although there were no warning signs about the cable, only employees were allowed in the area and were made aware of the danger of the cable at training.

Thus, the Appellate Division affirmed the trial court decision, dismissing the suit and rendering the plaintiff’s motion to leave to file an amended complaint moot.

Police Officer Found to Be Immune From Liability for an Accident Caused by High Speed Chase

Plaintiffs Omer Jackson and Sharonda Jackson sued defendants County of Hudson, Hudson County Sheriff’s Office, and Officer Renato Maure-Cascaret for injuries suffered by Omer when his car was hit by a car that was being pursued in a high speed chase by Officer Maure-Cascaret.  The defendants successfully filed for a motion for summary judgment, obtaining a dismissal of the lawsuit.  The issue in Jackson v. County of Hudson, 2024 N.J. Super. Unpub. LEXIS 561 (App. Div. Apr. 4, 2024) was whether the officer committed willful misconduct in his police pursuit or whether he was immune from liability under the Tort Claims Act.

The incident occurred at about 5:00 a.m. when Officer Maure-Cascaret of the Hudson County Sheriff’s Department was conducting radar enforcement in Jersey City.  He observed a vehicle driven by defendant Oriental Hamlet pass through three consecutive red lights and his radar captured his speed at traveling between 68 and 70 miles per hour on a road with a posted speed limit of 25 miles per hour.  The officer began following Hamlet and attempted to “close the gap” without turning on his patrol car’s lights or sirens.  He radioed the on-duty communications officers to inform them that he was following a vehicle traveling at a high speed.  The Hamlet vehicle ultimately slowed down and the officer was able to initiate a traffic stop.  After both vehicles were stopped for several seconds, the officer called in Hamlet’s license plate but then Hamlet suddenly sped away.

Officer Maure-Cascaret again contacted the on-duty communications officers to report that the vehicle had sped away and he was going to pursue it.  Hamlet then sped through a red light and collided with Omer’s vehicle which had the green light.

This entire incident from the time the officer initially observed Hamlet speeding to the attempt to pull him over, to the accident terminating the pursuit, lasted only about 50 seconds.  The time period after the initial stop was about 30 seconds and lasted approximately 9 or 10 blocks.  The officer was about one block behind Hamlet when the collision occurred.

The trial court found that the Tort Claims Act provision, N.J.S.A. 59:5-2(b)(2), conferred immunity on the police officer for injuries resulting from a pursuit.  Under this statutory provision, “neither a public entity nor a public employee is liable for any injury caused by an escaping person or escaped person.” And, further, under N.J.S.A. 59:5-2(c), neither the public employee, nor the public entity is liable for “any injury resulting from or caused by a law enforcement officer’s pursuit of a person.”

Plaintiff contended, however, that there was an issue whether the officer’s decision to initiate the pursuit and his subsequent failure to terminate the pursuit violated the Attorney General’s Vehicular Pursuit Policy and, therefore, constituted willful misconduct (which would void out these immunities).

In the prior New Jersey Supreme Court Case of Fielder v. Stonack, the Court defined willful misconduct in the context of police pursuits.  There are two elements which must be satisfied: “(1) disobeying either a specific lawful command of a superior or a specific lawful standing order and (2) knowing of the command or standing order, knowing that it is being violated and, intending to violate it.”  

The Appellate Division agreed with the trial court decision herein that “there were no credible facts in the record to establish Officer Maure-Cascaret engaged in willful misconduct during his pursuit of Hamlet.”  Under the Attorney General Guidelines, a police officer may only pursue a suspect if they have committed a first-or second-degree offense or if the officer reasonably believes the suspect poses an immediate threat to either the public or the officer. 

In his deposition, the officer had explained that his decision to pursue Hamlet was based, in part, on Hamlet pulling away from the initiated traffic stop.  This was a second degree offense of eluding, warranting police pursuit based upon the Attorney General Guidelines. In conjunction with the characterizations of Hamlet’s action as a second degree offense, the officer’s decision was authorized and, therefore, his actions did not constitute willful misconduct.

Further, the Appellate Division noted that this pursuit was of such a short duration that the accident occurred before the officer could even have a reasonable chance to terminate the pursuit.  As for the use of excessive speed, it is judged upon whether it is reasonable for the officer to move at excessive speed.  The trial judge had concluded that finding the officer acted improperly pursuing Hamlet at the speeds he traveled would be “an unfair and illogical reading of the guidelines.”

To deny the defendants’ summary judgment motion “would have required a factual dispute over whether Officer Maure-Cascaret demonstrated willful misconduct in both his decision to pursue Hamlet and his failure to terminate the pursuit prior to the collision.” 

The Appellate Division found that the undisputed facts showed that the pursuit occurred on a virtually empty street before 5:00 a.m., it lasted 30 seconds, for only 9 blocks, with no order from a commanding officer to terminate the pursuit, and there was no expert report opining that the officer’s speed was unreasonable.  Hence, based upon these factual circumstances, there were no facts that could demonstrate willful misconduct and, therefore, no genuine dispute as to any material fact existed.  Thus, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Court Permits Plaintiff To File Late Notice Of Tort Claim

This case involved a tragic accident in which four members of a family were involved in a one-vehicle accident at a toll plaza on the Atlantic City Expressway.  Due to this accident, three of the family members were killed and the fourth member, a 12 year old girl, was severely injured.  To be able to sue the South Jersey Transportation Authority for this accident, the plaintiffs in this case, the Estates of the decedents and guardian of the survivor, sought leave from the court to file a late tort claims notice against the Authority (“SJTA”).  The issue in Estate of Khiev v. South Jersey Transportation Authority, 2024 N.J. Super. Unpub. LEXIS 226 (App. Div. Feb. 14, 2024) was whether the trial court correctly ruled that a late tort claim notice could be served. 

This accident happened on December 26, 2021 when the decedents’ vehicle crashed at the Egg Harbor Toll Plaza on the Atlantic City Expressway.  The South Jersey Transportation Authority owns and operates the Expressway.  On January 4, 2022, plaintiffs contacted and retained counsel to investigate the crash and also requested the police report and a video of the crash.  A preliminary police report was received on January 19, 2022 but it did not contain a full investigation or video of the accident.  In February 2022, plaintiffs retained two experts to investigate the crash.  Their preliminary investigations did not reveal any obvious roadway defects.

On March 17, 2022, the State Trooper with whom plaintiffs’ counsel had been in contact, advised plaintiffs that he had prepared a supplemental report and, further, plaintiffs could now request the complete report, as well as the video of the crash.  Their request was made that same day.  The final report, however, was not delivered to plaintiffs’ counsel until May 5, 2022 and the video of the accident was not delivered until May 11, 2022.  After plaintiffs’ experts reviewed and discussed the video, they formed the opinion that there was a design defect in the toll plaza that had substantially contributed to plaintiffs’ deaths and injury.  In their opinion, there was a sloped concrete barrier of the toll plaza, and that when plaintiffs’ vehicle travelled up the slope of the barrier, it caused the vehicle to combust and sustain catastrophic damage, which led to the deaths and injury of plaintiffs.

On May 31, 2022, plaintiffs filed a motion seeking leave to file a late notice of tort claim as to the SJTA.  The motion was unopposed and the court granted an order on June 24, 2022, permitting the late notice to be filed. Thereafter, the plaintiffs did file their tort claims notice on June 30, 2022.

However, it was ascertained that defendant Authority had not been properly served with the notice of motion.  Thus, defendant filed a motion to vacate the June 24, 2022 order and now filed opposition to plaintiffs’ motion for leave to file a late tort claims notice.

Although the trial court did vacate the June 24, 2022 order, it granted plaintiffs’ leave to file a late tort claims notice.  The court granted the application on two bases.  First, the trial court found that the date of accrual of plaintiffs’ claims was not until May 11, 2022 when plaintiffs had sufficient information that a public entity could be responsible for the crash, rather than December 26, 2021, the date of the crash.  Accordingly, the filing of the tort claims notice on June 30, 2022 was considered timely to meet the ninety (90) day notice requirement under the Tort Claims Act.

Second, the trial court found, in the alternative, that there were extraordinary circumstances justifying late notice.  The judge found that plaintiffs had exercised due diligence in investigating the accident but determined that defendant was potentially liable only when they received a video.  Also, the trial court found that the defendant SJTA would not suffer any substantial prejudice if the late claim was permitted.  It had been aware of the accident and witnesses related to the accident were still available.  The toll plaza worker who had been injured in the accident was still available as a witness and the damaged vehicle had been preserved and defendant had access to the video of the accident.

This decision was appealed to the Appellate Division.

Upon appeal, the SJTA made three arguments:  First, it contended that the trial court misapplied the law in finding that the accrual date was the date plaintiffs received the video, rather than the date of the accident. Second, it argued that the trial court abused its discretion “in finding that, even if the claim accrued on the date of the crash, extraordinary circumstances justified allowing plaintiffs to file a late notice.”  Last, defendant argued that the trial court abused its discretion in finding that there would be no substantial prejudice in in permitting plaintiffs the right to file a late notice.  The Appellate Division reviewed these arguments and rejected all of them.

Pursuant to N.J.S.A. 59:8-8, the failure to serve a notice of claim upon a public entity within the ninety (90) day period following accrual of the claim results in a bar against the claim.  However, the Tort Claims Act permits a claimant to move for leave to file a late notice of tort claim within one year after the claim accrues.  Under N.J.S.A. 59:8-9, a trial court may grant the motion “if there are sufficient reasons constituting extraordinary circumstances for the claimant’s failure to timely file” a notice within that ninety day period and, further, if the public entity is not substantially prejudiced thereby.

The “accrual” of a claim has been determined to be the date on which the underlying tortious act occurred.  However, under the “discovery rule,” the law also allows for a delay of the date of accrual when the victim is unaware of an injury or does not know that a third-party is liable for the injury.  Based upon the “discovery rule,” the accrual date is tolled from the date of the tortious act or injury when the injured party either does not know the injury or does not know that a third-party is responsible for the injury.  Under this rule, the claim will accrue when the claimant knows there has been an injury and there are facts suggesting that a third-party may be responsible. 

Here, the Appellate Division found that the claim did not accrue until May 11, 2022 when their counsel received video footage of the crash.  Until that date, there were no facts suggesting that the South Jersey Transportation Authority may have been responsible for the plaintiffs’ deaths and injuries.  The Appellate Division agreed with the trial court that just knowing that the defendant owned the roadway and toll plaza was not sufficient for the claim to accrue.  Rather, the claim accrued when plaintiffs’ experts reviewed and analyzed the video and learned that defendant might be responsible for the plaintiffs’ deaths and injuries. 

The Appellate Division also considered the alternative argument that the plaintiffs’ late notice of claim was justified by extraordinary circumstances.  In determining whether extraordinary circumstances exist, the inquiry focuses on whether there has been reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor. 

Here, again, the Appellate Division agreed with the trial court that the plaintiffs had shown extraordinary circumstances to justify a late notice of tort claim.  The Court found that the plaintiffs acted with due diligence to retain experts and to obtain the accident report and the video.  However, it was the state police who took some time to approve the final accident report and released the video.  Therefore, the accident report was not received until May 5, 2022 and the video on May 11, 2022.  It was not until the video was reviewed and analyzed by the plaintiffs’ experts, who, for the first time, had a basis to opine that the Authority could be responsible for this accident.  Thus, the Appellate Division agreed that the plaintiffs acted with due diligence and were prevented from serving a timely tort claims notice by extraordinary circumstances.

Finally, the Court considered whether there was substantial prejudice to the Authority by the filing of the late notice of tort claim.  The Appellate Division found that the Authority had not demonstrated any prejudice, much less substantial prejudice. It was well aware of the accident, the car had been preserved, and the witnesses to the accident were still available.  Hence, the Appellate Division found no abuse of discretion in the trial court’s finding that there was no substantial prejudice to defendant.  Accordingly, the trial court decision to permit the filing of a late notice of claim was affirmed and plaintiffs were allowed to go forward with their lawsuit. 

Employer Found Not Liable for an Auto Accident Caused by an Employee Who Stole Van From Employer

Plaintiff Richard Finaldi (“Finaldi”) was in an automobile accident with defendant Matthew Knight (“Knight”), one of defendant Cornucopia Logistics, LLC’s (“Cornucopia”) dispatchers.  Knight had stolen a Cornucopia delivery van, fell asleep while operating the van, went through a red light and collided with plaintiff Finaldi.  Plaintiff Finaldi suffered serious injuries as a result of the accident.  An issue in Finaldi v. Knight, 2024 N.J. Super. Unpub. LEXIS 7 (App. Div. Jan. 3, 2024) was whether the defendant Cornucopia could be held responsible for its employee’s actions in causing this accident. 

Cornucopia had an agreement with Amazon to deliver groceries ordered through Amazon Fresh.  Pursuant to its agreement, Cornucopia had exclusive responsibility for its employees and employment conditions.  It used leased delivery vans to make the deliveries, which it stored at the Amazon Fulfillment Center in Avenel, where Cornucopia also had an office.

Back at the time of the accident, Cornucopia had several employees at this facility including managers, four dispatchers and about thirty drivers, each for the morning and the night shifts.  Each shift had one dispatcher.  The dispatcher would log in and assign the drivers their routes.  When a driver clocked in, the dispatcher would give them a handbag containing a key to a van, an EZ pass, vehicle registration and insurance and a scanner which permitted the drivers to scan each package in and out.  The scanner also acted as a GPS and had a camera.  It allowed supervisors to see where each driver had dropped off their last package.

When the vans were not in use, Cornucopia kept the keys in a cabinet behind the dispatch table.  It was supposed to be locked after the dispatcher checked in the drivers and gave them their handbags.  Each dispatcher had a key to the cabinet, as well as two of the managers.  The standard operating procedure was for the dispatcher to log in each key and take inventory of those keys.  The dispatcher would count the keys after the drivers returned.  If one of the dispatchers discovered a key was missing, they would see if the vehicle was in the parking lot and, if not, notify one of the managers.

Knight, initially worked for Cornucopia as a driver but, after his license was suspended, he became a dispatcher.  This position did not require driving so he could continue to work at Cornucopia.

The day before the accident, Knight had stolen the van to assist his mother in moving.  His plan had been to return the van to the facility in time for the next shift.  He entered the facility, found the cabinet with the keys to the van unlocked and took one of them.  Only after the accident did Knight inform the Cornucopia fleet coordinator that he had taken the van.  No one at Cornucopia knew the van was missing until after the accident.  According to the testimony, this was the first time that an employee had used a van for personal use. 

Plaintiff sued for Cornucopia for both negligent hiring and retention, as well as general negligence.

At the trial court level, Cornucopia moved for a summary judgment which was granted as to both claims.  The court found that Cornucopia owed no duty to plaintiffs because Cornucopia had no reason to know “that there was an enhanced risk of harm to a third-party by hiring Knight to work as a dispatcher.”  The court also found that there was no history of Cornucopia employees stealing vehicles and that it had adequate security measures in place.

Further, the trial court ruled that plaintiffs failed to establish that Cornucopia’s actions were the proximate cause of plaintiff’s injuries.  The court reasoned that Knight was not working at the time of the accident, he was not using the vehicle with Cornucopia’s permission, and Cornucopia took reasonable precautions to prevent against such actions.

A motion for reconsideration was also denied.  This appeal ensued.  Upon appeal, the Appellate Division noted that the threshold question was whether Cornucopia owed a duty to plaintiffs.  The Court held that for a Court to impose a duty, “there must be a foreseeable risk of harm.”  Plaintiffs argued in the appeal that Cornucopia’s employees did not follow its procedures to prevent and detect the theft of the van.

The Appellate Division rejected that argument.  It found that Cornucopia’s policy in keeping the keys in a locked cabinet, having the dispatcher on duty take inventory of them twice every shift, and that the Avenel facility not being in a high crime area did not result in an imposition of a duty upon Cornucopia. 

Further, the Appellate Division noted that Cornucopia had no reason to suspect an employee would take a van for their own personal use.  Its policies prohibited an employee from taking the delivery vans for their own use and an employee could be terminated for violating that policy. 

Hence, the appeals court declined to follow plaintiff’s argument that the unauthorized use of the van and the accident were sufficiently foreseeable to impose a duty upon Cornucopia.  Moreover, the Court noted that even if it was foreseeable that an employee would steal one of the vans, it could not have known that Knight, who had no prior accidents as a driver for the company, would doze off at the wheel and collide with the plaintiff.  

Additionally, the Appellate Division rejected plaintiff’s argument that Cornucopia was negligent in promoting Knight to a dispatcher position after his license was suspended.  A license suspension alone did not suggest an employee would be deceitful or prone to theft.  It would not have put Cornucopia on notice that he would use its vehicle in violation of company policy.  Accordingly, the Appellate Division upheld the trial court’s decision, dismissing the case as to Cornucopia.

No Liability Found for Jersey City for Injury Caused by Trip and Fall on Uneven Pavement

Plaintiff Linda Emmanoulidis was walking her dog in Enos Park in Jersey City when she tripped and fell on an uneven pavement and sustained injuries. The issue in Emmanoulidis v. City of Jersey City, 2023 N.J. Super. Unpub. LEXIS 477 (App. Div. Mar. 30, 2023) was whether the City could be liable for a pedestrian accident caused by a trip and fall on an uneven pavement under the Tort Claims Act.

Prior to her fall, Plaintiff had never walked in the area before and did not know how long the condition existed. After her fall, Plaintiff retained an engineering expert who opined that the elevation of the crack where Plaintiff stated she fell was 1/2 – 3/4 inches. In his report, the expert noted that some of the concrete sidewalk slabs showed signs of repairs but not in the specific area where plaintiff fell. The report did not indicate when the repairs were done and who performed the work.

Plaintiff sued the City of Jersey City claiming that the uneven pavement was a dangerous condition which caused her accident. The City moved for summary judgment dismissal, contending that the plaintiff had not established the existence of a dangerous condition of which the City had actual or constructive notice. In addition, the City contended plaintiff did not demonstrate that the City’s conduct was palpably unreasonable.  In response to the motion, plaintiff presented a certification from her brother-in-law, a retired Jersey City police officer. He certified that, in course of his job, he had searched evidence in the area where plaintiff fell and the condition of the pavement was exactly as it was on the day she fell for at least four years.

The trial court granted the City’s motion for summary judgment, holding that the plaintiff had not demonstrated the uneven sidewalk was a dangerous condition and that the City had actual or constructive notice of the “declivity in the walkway.” The Court reviewed the photographs on record and concluded that the condition was not so open and obvious to provide the City of constructive notice of a dangerous condition. 

Upon appeal, plaintiff argued that the court erred in finding: 1) the uneven pavement was not a dangerous condition; 2) the City was aware of the dangerous condition; and 3) the City’s failure to fix the dangerous condition was palpably unreasonable. The Appellate Division noted that under the Tort Claims Act, a dangerous condition exists when there is a defect in the physical condition of the property itself. The Court held that whether the defect in the pavement was a dangerous condition could be left to the jury for determination.

To determine the issue of notice, the Court considered that the plaintiff could not establish: 1) the duration for which the crack was present; 2) there was no evidence to show that the City had actual knowledge of the crack; 3) the City had no record of any complaints regarding the crack; and 4) the certification offered by plaintiff’s brother-in-law did not satisfy the notice to public entity standard. In addition, plaintiff could not show the crack was open and obvious. Thus, the Appellate Division held that plaintiff did not demonstrate that the City had actual or constructive notice of the defect. Therefore, the Court ruled that the plaintiff did not establish that the City was liable under the Tort Claims Act and affirmed the summary judgment dismissal.

Hotel Found Not to Be Liable for an Injury Caused by Trip Over Corner of Bed Frame

Plaintiff Cheryl King was a guest at the defendant Harrah’s Atlantic City Hotel.  While walking through her hotel room, she hit her leg on the corner of the bed frame which caused her to trip and hit her head on the wall.  The issue in King v. Harrah’s Atlantic City Operating Co., LLC, 2023 U.S. Dist. LEXIS 70806 (D.N.J. Apr. 24, 2023) was whether the defendant hotel breached any duty owed to plaintiff that caused her injury.

Plaintiff claimed that the bed frame was improperly exposed and, thus, created a dangerous tripping hazard.  However, she had slept in the room at least once and had not reported any issues with the bed or the bed frame until after she fell.  She claimed that the defendant hotel was liable for her injuries and negligence because it knew of the alleged defect in the bed frame prior to her stay but had never sought to correct it.

It was not disputed that the defendant hotel owed plaintiff a duty to maintain the premises in a reasonably safe condition. Rather, the issue was whether plaintiff could adequately demonstrate that defendant breached its duty.

The defendant filed a motion for summary judgment, seeking a dismissal.  It claimed that it was not liable for her alleged trip and fall incident.

To establish a breach of duty care, plaintiff must prove “that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”  The dangerous condition of the property must involve an unreasonable risk of harm.  The District Court noted that not every property condition on which persons can hurt themselves is unreasonably dangerous or hazardous.

Based upon the facts of this case, the plaintiff did not claim that the bed frame was broken or damaged, that it blocked her path as she walked around her hotel room, or that the bed frame ever moved from the original position it had presumably always occupied prior to her fall.  Her claim was that it was “defective” because one particular corner extended out beyond the mattress.

The District Court noted the following: “while it is clear that plaintiff tripped over a bed frame, the Court fails to comprehend based on the record before it how the bed frame was defective or otherwise posed an reasonable risk of harm.”  The Court found that the plaintiff had not submitted any evidence suggesting that the danger of this particular bed frame differed from the ordinary risks inherent in any other bed frame.  Further, she offered no expert testimony demonstrating that the bed frame created a dangerous condition or that it was contrary to industry standards.  The Court found that “plaintiff has failed to fully articulate any real defect at all, much less prove the existence of a dangerous one.”

Further, the Court noted that any danger that the bed frame could have posed was “undoubtedly neutralized by its clear and obvious visibility in the room.”    The simple fact that plaintiff tripped and fell does not make the bed frame unreasonably dangerous or hazardous as a matter of law.  Further, the Court found that it did not diminish the bed frame’s plain visibility, the appropriateness of its placement, or lessen the expectation that plaintiff should have taken reasonable care as she walked to avoid this particular injury. 

Based upon the facts, the District Court found that no reasonable jury could find that defendant had actual or constructive notice of the bed frame as a dangerous condition.  Any reasonable prudent person would have observed, in light of the dimensions of the bed, its presence in his or her lane of travel.  Because plaintiff could not prove that defendant breached its duty of care, the District Court found that her negligence claim must fail as a matter of law.  Hence, the defendant’s motion for summary judgment was granted.

Superior Court Upholds Tort Claims Act Protections for Failure to Warn of a Dangerous Condition

The New Jersey Tort Claims Act provides that “a public entity is not liable for an injury” caused by an act or omission “[e]xcept as otherwise provided by this act.” Under the Act, immunity is the rule and liability is the exception. Posey ex rel. v. Bordentown Sewerage Auth., 171 N.J. 172 (2002). One exception to this immunity under the Tort Claims Act is the provision in N.J.S.A. 59:4-4, which places a duty on a public entity for damages proximately caused by its failure to provide warning of a dangerous condition which “endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.”

A public entity is responsible for warning the public of a dangerous condition on its property. However, the Appellate Division has held that a public entity cannot be held liable under N.J.S.A. 59:4-4 for a condition of a property it does not own, control, or maintain absent actual notice of that specific condition. See DeBonis v. Orange Quarry Co., 233 N.J. Super. 156 (App. Div. 1989) (emphasis added). The important question in DeBonis was whether a public entity could be held liable simply because an accident occurred within its boundaries. The Appellate Division ultimately upheld the trial court’s ruling that failure of a public entity to warn of a dangerous condition that merely lies within its boundaries is not sufficient to impose liability under N.J.S.A. 59:4-4 absent actual notice.

In DeBonis, the plaintiff was injured in a motorcycle accident caused by the presence of many small stones in the roadway that allegedly came from the Orange Quarry Company. The plaintiff sued Orange Quarry Company and H.B. Mellot Estate, Inc. who were involved in crushing and transporting the stones. The plaintiff also sued Essex County as the owner of the roadway and West Orange Township, arguing the Township failed to warn of the stones in the roadway.

The trial court construed the Tort Claims Act to require proof the public entity had actual notice of the dangerous condition where the public entity was not the owner of the property to impose liability. Constructive notice was not sufficient. The Appellate Division affirmed the ruling, holding that West Orange Township did not have actual notice of the stones in the roadway and could not be held liable under the Act.

The Burlington County Superior Court recently granted a motion for summary judgment, submitted by Capehart & Scatchard on behalf of Evesham Township, in a wrongful death lawsuit filed by the estate of a woman who was tragically struck and killed by a vehicle while crossing Route 70 at its intersection with Troth Road in Evesham Township.

The accident occurred at night and Plaintiff (the estate) alleged that the overhead streetlights at the intersection were inoperable, making the intersection too dark for vehicular and pedestrian traffic and thereby creating a dangerous condition under the Act. Numerous entities were sued in addition to Evesham Township.

The State of New Jersey owned and maintained Route 70. The State also owned and maintained the overhead streetlights that were alleged to have been inoperable at the time of the accident. The accident occurred within the boundaries of Evesham Township, but Evesham Township did not own, control, or maintain either Route 70 or the overhead streetlights.

Plaintiff argued that Evesham Township police officers would travel through the intersection where the accident occurred numerous times a shift and would have had countless opportunities to see that the overhead lights were inoperable. However, the trial court held that there was no evidence of actual notice – only constructive notice. The record was devoid of any evidence that any officer, or anyone from Evesham Township, was aware that the overheard streetlights were inoperable before the accident. The only argument made was that the officers should have known the lights were out by the number of times they would have travelled through the intersection. The Court ruled that this “constructive notice” was insufficient. As such, Evesham Township could not be held liable for failing to warn of a dangerous condition under N.J.S.A. 59:4-4 and was dismissed from the lawsuit.

Post Office Found Not Liable for Fall Due to Drop Off From Cement Sidewalk

Plaintiff Richard Rauso slipped and fell while at the premises at the United States Post Office in South Bound Brook, New Jersey.  He sued the defendants Post Office and Ofaniyim Holdings, LLC, which owned the property upon which the Post Office is located and leased it to the United States, for injuries suffered in the fall.  The issue in Rauso v. United States of America, 2023 U.S. Dist. LEXIS 94360 (D.N.J. May 31, 2023) was whether the defendants were liable for the plaintiff’s fall, which occurred when he was walking down the Post Office’s cement sidewalk, his foot slipped and he fell onto the adjacent dirt path.

On the day of the accident, the plaintiff arrived at the Post Office and parked his vehicle in the parking lot on the side of the Post Office.  He then walked from the parking lot to the entrance of the Post Office via the cement walkway which connected the parking lot to the entrance.  There was a dirt path adjacent to the cement walkway that plaintiff did not utilize. 

When he exited the Post Office, he used the same cement walkway.  However, it was raining as he walked back towards his vehicle.  As he was walking, his foot slipped and he fell onto the adjacent dirt path.  He broke his ankle as a result of the fall.

The defendants United States and the property owner Ofaniyim both filed for a summary judgment dismissal, arguing that the plaintiff had not made out a prima face case of negligence.  They argued that the plaintiff failed to show that either defendant breached its duty to provide a reasonably safe walkway for the Post Office customers because plaintiff failed to offer evidence that a dangerous condition existed.  Further, the defendants argued that, even assuming the cement sidewalk or the adjacent dirt path constituted a dangerous condition, neither defendant was liable because the danger was open and obvious. 

The District Court applied New Jersey law in deciding this motion.  Under New Jersey law, to establish negligence, “a plaintiff must establish four elements to sustain a negligence action (1) duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.”  Here, plaintiff contended that the junction of the cement sidewalk and the adjoining dirt path was a dangerous condition due to the unmarked and unsupported several inch elevation change.  Plaintiff’s expert measured a 2” drop from the cement sidewalk surface to the dirt path touching the sidewalk edge.  One foot away from the sidewalk, plaintiff’s expert also measured a 5” drop between the sidewalk and dirt path. 

The District Court noted that New Jersey courts had found that a drop off at the edge of a road or path can, under some circumstances, create a dangerous condition.  However, the mere existence of a drop off or a height differential in the walkway is not sufficient in itself to find a substantial risk of injury sufficient to constitute a dangerous condition. 

The District Court noted that plaintiff’s own deposition testimony contradicted the existence of a dangerous condition.  It was his testimony that the sidewalk itself had no defects or obstructions; it was raining heavier than a drizzle when the accident occurred; he walked along the cement sidewalk to and from the Post Office and viewed the cement sidewalk as safer than walking up the dirt path, which was muddy and wet.  On the way back from the Post Office, he walked close to the right edge of the cement sidewalk such that he was in close proximity to the drop-off and the adjoining dirt path.  It was when he was walking back to the parking lot on the cement sidewalk, he fell and landed on the adjacent dirt path.

Thus, the Court noted the record was clear that the Post Office did provide an adequate cement sidewalk for plaintiff to access its building.  To the extent that the dirt path qualified as a dangerous condition, the District Court noted that the record was equally clear that the condition was open and obvious.  Plaintiff was aware of the condition and he failed to avoid it.  Therefore, the Court found that defendants had not breached their obligations to plaintiff.   Thus, the District Court granted the motion for summary judgment filed by the defendants, dismissing the case. 

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