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Plaintiff Unable to Establish That Stone Filler in Front of Township Recycling Box Car Constituted a Dangerous Condition

Plaintiff Lois Henry suffered an injury from a fall on gravel after arrival at the Cranford Conservation Center, a recycling facility owned and maintained by the Township of Cranford.  The facility had box cars designated for different types of recycling.  In front of the containers was a filler of mixed stones.  The issue in Henry v. Township of Cranford, 2024 N.J. Super. Unpub. LEXIS 2811 (App. Div. Nov. 15, 2024) was whether the rocks and gravel in front of the box car constituted a dangerous condition of public property.

The Center provided box cars for residents to dispose of their recycling and yard waste.  When visitors arrived at the site, they would have to walk through a small entrance building and then a paved driveway which would lead them to various box cars designated for different types of recycling.  In front of these containers was a filler of mixed stones, various shapes and sizes to prevent puddling and icy conditions from forming in front of the recycling containers.

Plaintiff tripped and fell while returning to her car after she dropped off her recycling in one of the box cars.  She claimed that she put her foot down on the rocks and gravel, stepped on a rock and her foot twisted and she went down on her right knee.  She suffered a fracture of her fifth metatarsal on her right foot.

Plaintiff sued the Township of Cranford and the Cranford Conservation Center under the Tort Claims Act (“TCA”), claiming that the gravel and filler at the site constituted a dangerous condition of public property.  The Township’s Director of the Department of Public Works testified in his deposition that the filler was placed in front of the box car to avoid puddling and icy conditions.  There were employees there to keep things in order but there were no scheduled inspections.  However, he was unaware of any previous incidents at the location or any complaints about the stone filler. While he had been aware of no other accidents, he was aware of some people losing their balance on the stones.

At the trial court level, the defendants filed for a summary judgment.  The trial court judge granted the motion and dismissed the complaint with prejudice.

Plaintiff appealed that dismissal order, arguing that “there are genuine issues of material fact concerning various elements of dangerous condition liability under the TCA.”

The Appellate Division noted that under the Tort Claims Act, a public entity may be liable for a personal injury caused by the dangerous condition of its public property under N.J.S.A. 59:4-2.  To recover for an injury under this section of the Tort Claims Act, the plaintiff must prove several elements, including the existence of the dangerous condition at the time of the accident and that the public entity had actual or constructive notice of the dangerous condition with “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  But, under this statutory section, no liability would be imposed upon the public entity for a dangerous condition “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

The Appellate Division agreed with the trial court decision.  It found that although plaintiff’s injury was “unfortunate,” there were no “genuine issues of material fact that reasonably could support defendants’ liability under the required elements of the TCA.”  The Court noted that there were no previous reported accidents at the location or other sufficient proof of actual or constructive notice of the “dangerous condition.”

Further, in reviewing the photographs provided, the Appellate Division did not find that these photos established an actionable dangerous condition.  Finally, the Court found that there was no bona fide jury question on whether “the Township’s choice of surface outside of the container was so irrational and extreme to be found ‘palpably unreasonable’ as required under the TCA.”  Hence, the trial court decision, dismissing the complaint, was affirmed. 

Landlord Found Not To Be Responsible For Fatal Injury of Tenant’s Employee

The decedent Sean King was employed by High Grade Beverage (“HGB”) when he received a fatal electric shock while attempting to replace an emergency light fixture. OSHA determined that he was working with live wires when he was electrocuted, as the circuit breaker feeding the emergency light fixture had not been turned off. The issue in The Estate of Sean King v. High Grade Beverage, Inc., 2024 N.J. Super. Unpub. LEXIS 2321 (App. Div. Oct. 4, 2024) was whether the landlord, HGB Realty 2, LLC could be held liable for the decedent’s accident.

The property was originally leased in 2011 to HGB.  It consisted of a one-story, masonry, cold storage industrial complex comprising of about 72,600 square feet of warehouse, office and garage space.  HGB acknowledged that it had inspected the property and was fully familiar with its condition at that time.  According to the lease, the basic rent payable by the tenant was intended to be a “triple net” and all other charges and expenses imposed upon the leased premises would be paid by the tenant.  In addition, according to the lease, the tenant was responsible to keep the leased premises, including but not limited to the electrical, in good condition and repair.

The original lease was apparently renewed in 2016, at which point the name of the landlord was changed to HGB Realty 2, LLC.  The 2016 lease had the same provision for the tenant to keep the leased premises in good condition and repair.  According to the Chief Financial Officer of HGB Realty 2, there were no circumstances in which the tenant was required to obtain approval from the landlord to perform maintenance on the property.

Perry Morris was HGB’s maintenance chief until July 2017.  He was not a licensed electrician but did take a course in household wiring.  While employed by HGB, Morris would perform maintenance such as changing ballasts and repairing and replacing light fixtures.  Prior to his retirement, he trained decedent for about two weeks.  He testified that when the building was first built, there were three electrical contractors who did not know what they were doing, resulting in circuit breaker panel labels that were not done right the first time.  He and another employee attempted to correct the labels to the best of their ability and for the most part were successful.

Plaintiff submitted an expert report of an engineer, Les Winter, P.E., who opined that the decedent’s electrocution was caused by his lack of training as an electrician and the panel board directory being non-compliant and unreliable.  He opined that it was not legibly marked and that decedent could not through “trial and error testing” turn off and on random circuit breakers to determine whether the fixture was de-energized.

At the conclusion of discovery, the landlord, HGB Realty 2, filed for a summary judgment.  The trial court granted the summary judgment, dismissing the complaint.  The trial court found that HGB’s employees knew about the electrical panel at issue, that the emergency light breaker was labeled and that Morris, who trained the decedent, did show him which switch controlled which circuit breaker.

Further, the court found that HGB Realty 2 leased exclusive control of the property to HGB and the tenant HGB knew of the condition or had reason to know of the condition prior to the decedent’s accident.  It had the opportunity and indeed attempted to remedy the condition prior to the accident at issue.  Thus, the trial court ruled that the landlord, HGB Realty 2, could not be held liable for the alleged defective condition.  This appeal ensued.

The Appellate Division agreed with the trial court’s decision.  It found that the tenant executed a triple net lease in which the commercial tenant was responsible for maintaining the premises and for paying all utilities, taxes and other charges associated with the property.  Additionally, the Appellate Division noted that HGB had exclusive use of the property and that the obligation to maintain and repair the property was delegated under the lease to HGB.  Further, HGB Realty 2 did not maintain an office at the property, did not actively participate, or oversee HGB’s maintenance consistent with the terms of the lease.  Thus, the Appellate Division agreed that, under New Jersey law, the landlord did not have responsibility for the personal injury suffered by its commercial tenant’s employee. 

State Found Immune From Liability for Auto Accident Based Upon Tort Claims Act Immunities

Plaintiff Ralph Jameson was injured in an automobile accident while he was driving around a traffic circle (Cranbury Circle) in Cranbury Township.  His vehicle collided with a truck driven by defendant Richard Kyle.  The issue in Jameson v. DRD Int’l, Inc., 2024 N.J. Super. Unpub. LEXIS 1481 (App. Div. July 8, 2024) was whether the plaintiff could pursue a claim against the State of New Jersey, which controlled the Cranbury Circle, or whether the State had immunity from this claim under the Tort Claims Act.

This accident occurred when Jameson was driving northbound on U.S. Route 130 in Cranbury Township.  Defendant Kyle was driving a truck on South Main Street, which intersects with the northbound lanes of U.S. Route 130 at the Cranbury Circle.  Although there is a stop sign at the intersection of South Main Street where it enters the Cranbury Circle, Kyle did not stop at the stop sign.  He believed he had enough time to pass through the intersection and circle before any northbound vehicles on U.S. Route 130 came to the intersection.  However, he misjudged and Jameson’s car struck Kyle’s truck which resulted in severe injuries to Jameson.

Plaintiff sued Kyle and his employer, DRD International, Inc.  That claim settled.  However, he also sued the State of New Jersey and Middlesex County. The County was later dismissed out of the case. This appeal concerned plaintiff’s claim against the State.

Plaintiff contended that the State was negligent in its design, maintenance, and/or control of Cranbury Circle and that it created a dangerous condition.  Plaintiff produced two expert reports to support his claim.  His engineering expert opined that the Cranbury Circle was a dangerous condition because it had a crash history “that exceeded crash history standards and that the Cranbury Circle’s crash history should have raised red flags.”  His accident reconstruction expert opined that there was a dangerous condition at the Cranbury Circle “because slow-moving vehicles, such as tractor trailers, entering the Cranbury Circle could pose a danger to vehicles traveling at highway speeds.”

At the trial court level, the State filed for a summary judgment.  It contended that plaintiff had not and could not establish that the Cranbury Circle was a dangerous condition.  It also argued that it was entitled to plan or design immunity and immunity for failure to provide traffic signals.  The trial court granted the State’s summary judgment motion and dismissed the claims against the State.  

That order was appealed to the Appellate Division. The issues upon appeal were whether plaintiff was able to show that the Cranbury Circle was a dangerous condition under the Tort Claims Act and whether the State had established that it was entitled to plan or design immunity under the Act.

The Appellate Division agreed with the trial court decision.  It found that the plaintiff did not establish the existence of a dangerous condition at the Cranbury Circle.   The plaintiff had not identified anything specific in the Cranbury Circle that created a danger.  Plaintiff’s engineering expert suggested that the Circle may be poorly designed because there were a high number of accidents at the Cranbury Circle but his expert failed to point to a specific design defect in the Cranbury Circle.  The expert had suggested several changes that could be made to the Cranbury Circle, including widening lanes or installing traffic signals, rather than stop signs, but emphasized that the high volume of traffic through the Cranbury Circle and the multiple points where accidents could occur were what made the Circle dangerous as a whole.

As for the reconstruction expert, he effectively acknowledged that Kyle failed to stop at the stop sign and “tried to excuse that failure by reasoning that a truck would have difficulty traveling across the Cranbury Circle in a timely manner if it had stopped at the stop sign.”  The Appellate Division found that this opinion did not form a factual basis from which a jury could find that there was a dangerous condition at the Circle if Kyle had stopped as required by the stop sign.  The jury would have been left to speculate that there would have been a sufficient gap in ongoing traffic to allow a truck to safely pass through the intersection.

The Court pointed out that plaintiff’s real argument was that the dangerous condition at the Cranbury Circle arose out of its design.  However, plaintiff failed to show that the design was defective.  Plaintiff also failed to show that the unidentified dangerous condition at the Cranbury Circle caused this accident.

Further, the Appellate Division found that the State did have plan or design immunity under the statute, N.J.S.A. 59:4-6(a).  Under the Tort Claims Act, a public entity would have plan or design immunity from liability for an accident if it is able to show that the injury was caused by the plan or design of its property, where this plan or design has been approved in advance of the construction or improvement by the Legislature, or the governing body of the public entity.  The Court pointed out that when this immunity attaches, the public entity is not subject to liability for an injury that arises from the design of the property.

Here, the Appellate Division found that the State did provide several as-built documents and diagrams of the Cranbury Circle’s design plan.  It noted that these drawings contemplated the “geometry” of the Cranbury Circle, which is apparently what plaintiff contended caused or contributed to the accident.  The documents included signatures of the individuals who submitted, recommended or approved the plans.  Some of the documents predated the construction of the Circle. 

The Appellate Division found that by producing these documents, the State had met its burden of demonstrating that it considered the Cranbury Circle’s shape in formulating its design.  It did not need to produce a plan or design applicable to the stop sign but only needed to offer evidence that it considered the flow of traffic around the Cranbury Circle generally.  Hence, the Appellate Division found that the State was entitled to plan or design immunity.

Because the Appellate Division found that the plaintiff had failed to demonstrate a dangerous condition at the Cranbury Circle and that the State established that it was entitled to plan or design immunity, even if there had been a dangerous condition of the Cranbury Circle, it affirmed the trial court’s decision, dismissing the lawsuit.

Prosecutor’s Office Found Not Liable for Civil Claim in Prosecuting Former Police Officer for Criminal Acts

Plaintiff Thomas Aletta, a former police officer for the Hackensack Police Department sued the Bergen County Prosecutor’s Office, State of New Jersey, Prosecutor John Molinelli, Assistant Prosecutor Daniel Keitel, and Prosecutor Investigator Lieutenant Jay Haviland after he was acquitted of official misconduct, conspiracy and evidence tampering.  He alleged a politically motivated conspiracy to prosecute him contrary to state and federal law.  The issue in Aletta v. Bergen County Prosecutor’s Office, 2024 N.J. Super. Unpub. LEXIS 976 (App. Div. May 29, 2024), was whether the plaintiff had stated a constitutional claim and/or a claim under the New Jersey Tort Claims Act against the defendants.

This case was dismissed at the summary judgment level as to all defendants based upon immunity under the Tort Claims Act, as well as prosecutorial immunity under §1983 and the New Jersey Civil Rights Act (“NJCRA”).  Further, the defendants had argued that the Prosecutor defendants enjoyed qualified immunity due to the existence of probable cause for the charges against plaintiff. 

The Appellate Division found that as to the entity defendants, the claims were properly dismissed.  However, as to the individual defendants, the Appellate Division agreed that the defendants were entitled to immunity for their roles in plaintiff’s prosecution except for the allegations against the individual defendants that they pressured witnesses to lie or change their statements, destroyed exculpatory evidence, and presented false testimony to the court and/or grand jury.

Plaintiff’s prosecution arose from an assault against a juvenile in which the Prosecutor’s office claimed that the plaintiff improperly sought to secure another juvenile’s involvement in the case.  Plaintiff alleged that his prosecution arose from a political conspiracy due to his support of the Hackensack Police Chief.  Plaintiff, however, was acquitted from the criminal proceedings brought against him and, thereafter, filed this civil suit against the defendants. 

As for the entity defendants, the Appellate Division agreed that they were absolutely immune from plaintiff’s § 1983 and NJCRA. claims.  The court noted that prosecutors have absolute immunity from claims arising out of their governmental function.  That immunity is based on “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from their public duties, and the possibility that they would shade their decisions instead of exercising the independence of judgment required by their public trust.” 

Activities which are an integral part of the judicial process are protected.  The court noted that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings and for trial, which occur in the course of their role as an advocate for the State, are entitled to the protections of absolute immunity.  In fact, courts have granted immunity from claims alleging a prosecutor failed to disclose exculpatory evidence and use false testimony in connection with the prosecution “so long as they did so while functioning in their prosecutorial capacity.” 

However, prosecutors do not have immunity outside their role as an advocate.  A prosecutor is not entitled to absolute immunity “when performing administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.”  Further, the Court noted that a prosecutor “is not entitled to absolute immunity if they acted out of personal motive, with malicious intent, or in excess of their jurisdiction.”   However, a government official may be entitled to qualified immunity “for discretionary acts that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 

As to the entity defendants, the Appellate Division agreed with the trial court that plaintiff’s NJCRA and §1983 claims against the State failed because it is not amenable to suit under either statute.   The Court noted that the State is not subject to suit because it did not waive its sovereign immunity for either a 1983 or a NJCRA claim.

The Appellate Division also agreed that the prosecutor’s office was properly dismissed.  A public entity may be held liable under the NJCRA or § 1983 if it causes harm through the “implementation of an official municipal policy which caused a constitutional violation.”  The public entity cannot be held liable under the doctrine of respondeat superior.  Liability can only be imposed “when the policy or custom itself violates the Constitution or when the policy or custom, while not unconstitutional itself, is the moving force behind a constitutional tort of one of its employees.”  Where the policy or custom at issue is a failure to train or supervise, “the plaintiff must show that this failure amounts to deliberate indifference to the rights of persons with whom the municipality’s employees will come into contact.”

Here, plaintiff alleged generally that the prosecutor’s office had a custom of “condoning the actions of their agents, servants and/or employees by virtue of their training, supervision, policies, procedures, and/or directives.”  However, the Appellate Division noted that this “conclusory, undetailed statement” did not identify any specific and constitutional component or how this custom was the “moving force” behind any allegedly tortious conduct.  The plaintiff had alleged that all named prosecutor defendants “failed to follow proper and lawful guidelines, policies, procedures, and methods for conducting criminal investigations and prosecutions.”  However, the Court found that plaintiff had failed to identify any specific training he claimed would be necessary nor any pattern of similar constitutional violations to put the prosecutor’s office on notice that a new training program was necessary.  Hence, the Appellate Division agreed that the dismissal against the prosecutor’s office was proper. 

However, the Appellate Division disagreed with the dismissal of the common law claims against the individual defendants. These claims were governed by the Tort Claims Act.  The Appellate Division grouped the plaintiff’s allegations based upon the purported underlying conduct as the following:

(1) Improper charging and prosecution of plaintiff based on personal and/or political motives, (2) coercion of witnesses to lie or change their statements, (3) use of those false statement, (4) purposeful destruction of exculpatory evidence.

As for the allegations concerning charging and prosecuting plaintiff, the Court found that the individual defendants had immunity under N.J.S.A. 59:3-8 in which there was immunity for “instituting or prosecuting any judicial . . . proceeding within the scope of defendant’s employment.”  As for pressuring witnesses to lie, the Court concluded that the record was insufficient for a determination whether defendants were entitled to Tort Claims Act immunity.  The Appellate Division ruled that the plaintiff must specify each instance forming the basis for these claims and defendants may then renew their motion as appropriate.

As for the knowing use of false testimony before the grand jury and/or trial, the Court found that this claim, as pled, constituted willful misconduct. Thus, the two prosecutors were not entitled to immunity for this alleged willful misconduct.  As for the allegation of destruction of exculpatory evidence, the Court found that the plaintiff did not provide any specific details as to how the prosecutors were involved.  However, as to the investigator, the court found that the plaintiff had presented sufficient facts suggesting that he was not entitled to immunity for purportedly ordering and/or participating in the destruction of evidence.  Thus, the Appelate Division found that the investigator Haviland was not entitled to prosecutorial immunity under the Tort Claims Act for allegedly destroying evidence.

As for the common law claims asserted against the entity defendants, the court noted that while a public entity may be held responsible for acts or omissions of its employees under a theory of respondeat superior under the Tort Claims Act, it is “not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.”  Further, under N.J.S.A. 59:2-10,  it is not liable “where the employee’s acts or omissions constitute a crime, actual fraud, actual misconduct.” 

Thus, the Appellate Division ruled that to the extent it has determined that any of the individuals are entitled to immunity, neither the prosecutor’s office nor the State can be held liable on a respondeat theory related to those claims.  Further, the Appellate Division ruled that to the extent any individual defendant engaged in willful misconduct or acted outside the scope of their employment such that they were not entitled to immunity, the entity defendants cannot be held liable for those actions.

The defendants also argued that the plaintiff’s complaint should be dismissed for failure to meet the verbal threshold under N.J.S.A. 59:9-2(d).  Under this provision, no damages may be awarded against a public entity for pain and suffering, except for cases of “permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.”  Emotional distress is considered to be pain and suffering.  However, where a public employee’s actions constitute willful misconduct, the plaintiff did not need to satisfy the verbal threshold.

The Appellate Division agreed that the record did not reflect medical treatments in excess of $3,600.  However, based upon the allegation of the investigator’s purported destruction of evidence and the prosecutor’s alleged use of false testimony constituting willful misconduct, they found that the verbal threshold provision would be inapplicable.

In summary, the court agreed that all claims against the prosecutor’s office and the State were properly dismissed.  Further, all claims based upon defendants’ allegedly improper motivation to prosecute the plaintiff, the constitutional claims based upon the defendants’ alleged known use of false testimony before the grand jury or at plaintiff’s trial, and all claims against the two prosecutors based upon their alleged destruction of evidence were all properly dismissed. 

However, the Court reversed and vacated the dismissal against the investigator Haviland based upon his alleged destruction of evidence, all claims against the individual defendants based upon their alleged coercion of witnesses and the common law claims against the two prosecutors based upon their alleged presentation of false testimony to the grand jury and/or at trial.  But, upon remand, the plaintiff was ordered “to provide specific details about the purported coercion, including the specific defendant(s) alleged to be involved, when the conduct occurred, and whether the witness later testified before the grand jury or at plaintiff’s trial.”

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.

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