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Court Finds Township Not Liable for Injury Caused by Plaintiff’s Fall Off Bicycle Due to Hitting Pothole

Plaintiff Alyssa Molcho was riding her bicycle on Heath Avenue in Ocean Township when she swerved to avoid a car and claimed that her rear tire went into a pothole.  That caused her to fall off her bike and onto the curb, resulting in injuries. The issue in Molcho v. Township of Ocean, 2023 N.J. Super. Unpub. LEXIS 1401 (App. Div. August 11, 2023) was whether the Township could be liable for the condition of its roadway in allegedly causing the plaintiff’s accident.

Prior to the date of the accident, plaintiff had sent an e-mail to the Township’s Director of Public Works, complaining generally about the condition of Heath Avenue.  She sent him a few photographs of potholes in the road but not of the area where her accident occurred.  According to her e-mail, she had contacted public works several times since she moved to the area regarding repaving of the street.

The Director of Public Works responded to plaintiff’s complaint.  He noted that he was aware of the area to which she was referring.  He advised that this area was slated for milling and paving under the Township’s road improvement program.

Ocean Township had a road improvement program for which it would select roads for repaving to be funded out of its budget for capital improvements.  The Township’s engineer would prepare an annual list, based upon inspections performed by the Department of Public Works, grading the Township’s roads on a scale from 0 to 100, with 100 being a perfect road and 0 being the worst road.  This list would then be presented to the Township Manager with a recommendation of the roads to repave, along with the cost estimates for doing so.  In turn, the Township Manager would include the estimates in the Township’s proposed annual budget.  Once the budget was approved, the Township would put the work out for bid.  After the contracts were awarded, the contractor would schedule the work.  This entire process took about two years from inspection to repaving.  This particular road was not repaved until two months after plaintiff’s accident.

At the trial court level, the Township filed a motion for a summary judgment.  That motion was granted by the trial court judge.  The judge found that plaintiff had failed to provide any evidence about this specific pothole that she claims caused her to fall off her bike.  Plaintiff had failed to identify the specific pothole, produced no photos of it, no measurements and any person who saw the pothole in question either before or after plaintiff’s accident. 

The trial court judge held that the plaintiff had failed to establish the existence of a dangerous condition.  For purposes of the motion, however, the judge found that even if the court assumed that plaintiff had presented evidence that the road was in a dangerous condition, she was unable to establish either actual or constructive notice on the part of the Township of the alleged pothole that caused her fall based upon her failure to have ever identified the specific pothole that caused her accident.

The trial court judge rejected plaintiff’s argument that her complaints to the Township about the general condition of her street was sufficient to put the Township on notice. Because she was never able to describe the specific pothole or present evidence describing it, the trial court judge found that “she could not establish the pothole was of such an obvious nature and had existed for a sufficient time to have allowed the Township exercising due care, to have discovered and corrected the dangerous condition.” Without actual or constructive notice of the pothole, the judge found that plaintiff could not establish that the Township’s failure to have patched the pothole and repaved the road sooner was “palpably unreasonable.”

This decision was appealed to the Appellate Division.   The plaintiff argued that the Township had actual or constructive notice of the pothole that caused her fall because it had notice of the general deteriorated condition of the roadway in which plaintiff fell, which was necessitating it being repaved.  Plaintiff argued that the Township “can hardly argue simultaneously that it had no notice of a dangerous condition but nevertheless responded reasonably to it.”

Pursuant to the Tort Claims Act (N.J.S.A. 59:4-2), for a public entity to be liable for an injury caused by a condition of its property, a plaintiff must establish “that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.”  Further, the plaintiff must prove that either an employee of the public entity created that condition or 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.”  Further, this statute states that nothing in this provision shall “impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonably.”

The Appellate Division considered the provisions of N.J.S.A. 59:4-2 and upheld the trial court’s decision.  The Court agreed with the trial court judge “that it is difficult to see how a plaintiff could prove a public entity’s property was in a dangerous condition without identifying specifically the property – here, the pothole that caused plaintiff to fall off a bicycle.”  While in prior case law, complaints of neighborhood residents about a dangerous condition may serve to establish actual or constructive notice to a municipality of that condition, one neighbor’s complaint about a dangerous condition in a particular location does not serve as notice of the same or similar dangerous condition at a different location on the street.

Hence, applying this case law, the Court noted that the plaintiff complained about the condition of another area of the street prior to the accident.  Plaintiff’s complaint putting the Township on notice of an alleged dangerous condition of other parts of her street “did not serve as notice of a dangerous condition of the place where she fell.”

The plaintiff attempted to argue that the Township should have notice of the dangerous condition of its street when it is so full of potholes that any of them may cause an injury.  While the Court accepted for argument’s sake “that a residential street would be in a dangerous condition if it had so many potholes that a bicycle rider trying to avoid one would be dashed into another, plaintiff did not establish that Heath Avenue was riddled with potholes or that a crowd of them littered the street at the time of her fall.”

The Court noted that there was not a description or any pictures of the area where plaintiff claims she fell. Hence, the Court found that she failed to establish the existence of an issue of material fact regarding whether there was a dangerous condition of Heath Avenue and the place where she fell. 

Further, the Appellate Division found that even if it was assumed that she had established a dangerous condition and that the public entity was on notice, she “failed utterly to establish that Ocean Township’s act of selecting parts of Heath Avenue for repaving through its road improvement program or its failure to have repaved those parts sooner was palpably unreasonable.”  Under the palpably unreasonable standard, plaintiff would need to supply proof that the Township’s action was “manifest and obvious that no prudent person would approve of its course of action or inaction.”  The Appellate Division found that the plaintiff had failed to meet this standard as well. 

Hence, the trial court decision was affirmed, upholding the summary judgment order granted to the Township.

Owner of Two-Family Home Found Not to Be Liable for Plaintiff’s Injury From Fall on Public Sidewalk in Front of Home

Plaintiff Shneequa Easterling had been walking on a public sidewalk abutting defendant’s home when she slipped and fell on ice, injuring her neck and back, as well as her right ankle.  She filed a lawsuit against the defendant homeowner, George Johnson, who owned the two-family home abutting the public sidewalk.  The issue in Easterling v. Johnson, 2023 N.J. Super. Unpub. LEXIS 905 (App. Div. June 9, 2023) was whether the defendant homeowner could be liable to the plaintiff for the injuries incurred while walking on the public sidewalk abutting his two-family home. 

Plaintiff contended that the defendant was operating a multi-family rental property and was negligent in failing to warn pedestrians about the ice that existed on the sidewalk next to his property.  She claimed that he failed to keep the premises in a safe condition.

At the trial court level, the defendant moved for a summary judgment, arguing that as a residential homeowner, he had no duty to clear snow and ice from the sidewalk abutting his property.  The trial court judge agreed with the defendant and found that his property was residential in nature and, thus, he had no duty to remove snow or ice on the public sidewalk.

This order was appealed to the Appellate Division.  On appeal, the plaintiff argued that the order granting summary judgment should be reversed because defendant could be held liable for the icy condition of the sidewalk abutting his property, even if it was residential.  She contended that he could be liable if, in clearing the ice and snow from the sidewalk next to his property, he increased the hazard by introducing some element of danger.

The Appellate Division noted prior case law that “absent negligent construction or repair,” the residential property owner “does not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner’s property.”  On the other hand, commercial property owners do have such a duty to maintain the sidewalk.

The Court found that there was no evidence in the record that the defendant had made any repairs or otherwise created a dangerous condition on the sidewalk next to his home prior to plaintiff’s fall.  There was also no proof that the defendant’s property was primarily commercial in nature.  The record was devoid of evidence that the defendant had utilized his property for any purpose in the past 40 years as other than his own residence.  There was no evidence that he had rented or generated a profit from any portion of the property.  Thus, the record fairly established that the nature and purpose of defendant’s owner occupied property was primarily residential and not commercial.

Thus, the Appellate Division agreed with the trial court’s order granting summary judgment and affirmed the decision. 

Municipal Parking Authority Found to Be Immune From Tort Liability for Claim Resulting From Its Snow Removal Activities

Plaintiff Nancy Valdez was at a multi-story parking garage in Union City, owned by the Union City Parking Authority (UCPA), on December 11, 2017.  She was at the garage to renew her residential parking pass.  Due to a prior snowstorm, snow piled on an upper deck melted and re-froze on the downhill parking ramp.  As she walked on the parking ramp, she slipped and fell.  The issue in Valdez v. Union City Parking Authority, 2023 N.J. Super. Unpub. LEXIS 954 (App. Div. June 13, 2023) was whether the UCPA was immune from liability for injuries resulting from snow removal by a public entity.

The snowstorm, two days earlier, had left about four inches of snow on the ground.  UCPA employees removed the snow and, on the top floor, where the UCPA Administrative Offices were located, they piled it on the sloped deck uphill from the incident site. 

In the days following the storm, due to temperature fluctuations, melt/refreeze conditions occurred.  Because the top floor of the garage had no roof, the snow piled by the UCPA employees melted and the resulting water subsequently froze. 

On the day of the accident, Nancy was there to renew her residential parking pass.  She parked her car on the street and took an elevator to the top floor offices. 

She left the offices of the UCPA and walked along the top floor downhill parking ramp, attempting to exit the garage.  As she walked down the ramp, she slipped and fell on ice and suffered physical injuries.

Thereafter, she sued the Union City Parking Authority to recover for her injuries.  She claimed that the UCPA’s negligence resulted in a dangerous condition at the parking garage. 

After discovery concluded, UCPA filed for a summary judgment, arguing that plaintiff’s claims were barred by the common law immunity from liability for injuries resulting from snow removal by a public entity.  The trial court granted the UCPA’s motion, dismissing the complaint.

Plaintiff appealed to the Appellate Division and argued that the exception to the common law snow removal immunity established for public housing authorities in Bligen v. Jersey City Housing Authority should be applied to the facts in this case.  However, the Appellate Division rejected that argument.

The Court noted that the common law snow removal activities immunity survived the passage of the Tort Claims Act.  The rationale behind this immunity was that: “if liability were to be imposed on a public entity for injuries caused by its snow removal, it would be required to broom sweep the areas from which it removed snow.”  Further, the Court noted that the high cost of such an undertaking could make the expense of any extensive program of snow removal prohibitive.  Because “the public is greatly benefitted even by snow removal which does not attain the acme of perfection of “broom swept streets,” a public entity would not be held liable for injuries arising from its snow removal activities.”

The Bligen decision, dealt with a slip and fall at the Jersey City Housing Authority, when the plaintiff slipped on ice and fell as she stepped off curb into the parking lot of the complex.  In the Bligen case, the New Jersey Supreme Court declined to extend common law snow removal immunity to the Housing Authority.

However, the Appellate Division noted that the Bligen case was a narrow exception to the snow removal immunity. The rationale of the Supreme Court, in not applying the immunity in the Bligen case, was that municipal landlords should be responsible for the reasonably foreseeable consequences of their actions.

Here, the Bligen case did not apply because the Parking Authority was not found to be the equivalent of a public housing authority.  Absent a contrary holding by the Supreme Court, the Appellate Division declined to extend the holding in Bligen to claims raised against any entity other than a public housing authority.

Hence, the Appellate Division affirmed the trial court decision, dismissing the lawsuit against the Union City Parking Authority.

N.J. Supreme Court Holds Employer’s Vicarious Liability Under Borrowed-Employee Doctrine Is Question of Fact Reserved for Jury

By: Ruhani Aulakh, Law Clerk

Editor: Betsy G. Ramos, Esq.

Plaintiff Philip Pantano, an employee of Container Services of New Jersey (“CSNJ”), was moving a piece of heavy equipment at work.  Lawrence Giamella was also working that day and used a forklift to help move the equipment.  Giamella dropped the equipment on the plaintiff’s foot, causing permanent damage that led to amputation of the plaintiff’s foot.  The plaintiff brought a personal injury action against CSNJ and Marine Transport, Inc. (MT), both of which are owned by the same person.  The dispute in Pantano v. New York Shipping Ass’n, 2023 N.J. LEXIS 597 (June 5, 2023) was whether the question of an employer’s vicarious liability under the borrowed-employee doctrine is a question of law to be decided by the court or a question of fact reserved for the jury.

At the trial court level, the court dismissed the claims against all defendants except for CSNJ, MT, and the companies’ landlords.  The remaining defendants all sought summary judgment, with the court granting both the landlord and CSNJ’s motions.  In its motion for summary judgment, MT argued that it was not Giamella’s employer and thus not vicariously liable for his negligence.  MT argued that although Giamella was on its payroll, Giamella was a “borrowed employee” working for CSNJ at the time of the accident.

At the jury trial, MT moved for judgment at trial pursuant to R. 4:40-1 on the same “borrowed employee” theory it had raised in its motion for summary judgment.  The trial judge reserved judgment on the motion until after the jury verdict and instructed the jury to presume that MT was vicariously liable, as counsel assented to have the court resolve the borrowed-employee argument.  The jury awarded plaintiff damages for pain and suffering, lost wages, and loss of consortium.  Outside of the jury’s presence, the trial judge determined that Giamella was a borrowed employee working for CSNJ and vacated the jury verdict.

Plaintiff appealed the trial court’s decision.  The Appellate Division reversed the trial court and reinstated the jury verdict.  The Appellate Division emphasized that the trial judge erred in reaching a conclusion on the merits of the borrowed-employee question.  Because MT moved for judgment at trial, the judge should have performed a directed verdict analysis in accordance with R. 4:40-1’s requirements.  The Appellate Division applied the directed verdict standard and determined there was substantial evidence to satisfy the plaintiff’s burden under R. 4:40-1.

MT filed a petition for certification to the New Jersey Supreme Court, largely arguing that the borrowed employee question is a purely legal one that should not be decided by a jury.  MT also argued that the Court should not consider how a jury may weigh the factors for borrowed employee determination which the Court set forth in Galvao v. G.R. Robert Const. Co., 179 N.J. 462 (2004).  Rather, the court should decide the issue on a plenary basis.

The Court granted certification solely on the issue of whether an employer’s vicarious liability under the borrowed-employee doctrine was one to be reserved for the jury.  In making its determination, the Court went through several cases that addressed the borrowed-employee doctrine.  Cases dating back to almost a century ago had ruled that a jury rather than a judge was who properly decided the borrowed-employee question.  Since then, the New Jersey courts have consistently held that the borrowed-employee question is presumptively a jury question.  The Court reasoned that although Galvao did not explicitly address the jury’s role in borrowed-employee disputes, nothing in the case changed the traditional allocation of the jury’s role in such disputes.

The Court did note, however, that not all disputes over borrowed-employee status must be sent to the jury.  Specifically, where the evidence is so one-sided that there are no genuine disputed facts, the court may decide the issue without a jury. 

After completing an analysis of the case history, the Court returned to the dispute at hand. The Court agreed with the Appellate Division that the evidence was not sufficiently one-sided that the issue may be decided without a jury.  While the Court would typically remand the issue so it may be presented to the jury to resolve, the Court took the parties’ agreement into consideration.  The parties emphasized that they did not desire a remand; rather, they would accept a reinstatement of the jury’s verdict.

As such, the Court affirmed the Appellate Division’s decision. The Court reinstated the jury’s verdict and held MT vicariously liable for the damages award. 

Homeowner Found Not Liable for Breach of Contract in Allegedly Concealing the Presence of Mold in Her Home

Plaintiffs, Robert Rogers and Joyce Rogers, entered into a real estate contract to purchase a home “as is” in an age-restricted community from defendants Nora and Christopher Conti.  Ms. Conti had moved out of the property at least a year earlier due to health issues.  The transaction was handled by her son as attorney-in-fact.  The issue in Rogers v. Conti, 2023 N.J. Super. Unpub. LEXIS 679 (App. Div. May 5, 2023) was whether the defendant buyers were entitled to rescind the sale after discovering mold behind the walls just three days after closing.

One year before the property was listed for sale, a leak had arisen in the hallway bathroom.  The seller’s son discovered the leak within 24 hours and made a total repair of the water intrusion, including replacing sheetrock and treating the area with an anti-microbial agent.

When the property was listed for sale a year later, the seller’s son did not disclose the prior leak on the seller’s disclosure form.  The plaintiffs had a professional inspection conducted which did not disclose any issues with the property.  However, three days after the closing, the buyers did discover mold behind some of the walls and asked to rescind the sale.  The sellers did everything to rescind the sale, including stopping the deed from being recorded, returning all proceeds from escrow, and offering to make buyers whole, even offering to cover the broker’s commission.  However, plaintiffs then insisted on consummating the transaction.

Plaintiffs refused to allow defendants to inspect the alleged mold condition and completely renovated the alleged condition, which eliminated any evidence of the alleged mold.  Plaintiffs thereafter filed this lawsuit, alleging breach of contract, civil conspiracy, intentional common law and consumer fraud, and breach of the implied covenant of good faith and fair dealing. 

After discovery was completed, the defendant homeowners moved for a summary judgment, barring plaintiffs’ expert report as a net opinion and barring plaintiffs’ expert from testifying.  The trial court did grant a summary judgment to the defendants.  The trial court judge found that defendants did not make any misrepresentation and also found that plaintiffs’ expert report was a net opinion. 

Plaintiffs argued upon appeal that there were material facts at issue, precluding summary judgment and claimed that the trial court made a mistake by assuming the role of the jury in determining defendants did not make a material misrepresentation of fact relevant to the real estate transaction.  Further, the plaintiffs claimed that if defendants had given proper disclosure of the water leak at the time of the contract, plaintiffs would have proceeded in a different manner by either cancelling the contract or conducting a more extensive inspection of non-visible portions of the property.  Plaintiffs claim that the defendants had an independent duty to disclose the prior year’s leak.  Further, they argued that the judge should have allowed their evidence of a mold-like condition to be presented to the finder of fact as lay testimony under the common knowledge doctrine.

The Appellate Division found that the two critical documents were the sales contract and the disclosure statement.  In the disclosure statement, defendants expressed that they were unaware of any leaks, backups or other problems relating to any of the plumbing systems and fixtures.  The buyers (plaintiffs) expressly affirmed their decision to buy the property “as is” in the sales contract and not based on any representations made by the seller.  The Court noted that when the term “as is” is used in connection with the sale of realty, it acknowledges that the purchaser is “acquiring real property in its present state or condition.”  However, this principle assumes that the seller has satisfied its duty to disclose all latent defects that are not readily observable. 

The Appellate Division pointed out that the disclosure statement asks questions about the present condition of a property, not any prior occurrences on the property.  The previous leak had been fully remediated and was not inquired about and did not require disclosure.  Hence, defendants answered the statement accurately.  The Court found that plaintiffs cannot establish any duty on the part of defendants to disclose an unknown, latent condition, particularly in light of their own professional inspection and that the property was being sold in an “as is” condition.

Upon appeal, plaintiffs did not argue that the trial court made a mistake in determining that the plaintiffs’ expert rendered a net opinion, instead argued that lay testimony should be sufficient on the cause of mold.  The Appellate Division agreed with the trial court decision that plaintiffs cannot prove causation without admissible expert testimony.

Here, plaintiffs could not establish defendants had a duty to disclose an unknown mold condition, much less breach of that duty.  Further, the Appellate Division found that in the absence of an expert report, plaintiffs would not be able to prove that the alleged mold condition was caused by the water leak remediated a year prior to the closing.  Thus, the Appellate Division agreed with the trial court decision in granting summary judgment to defendants and affirmed the trial court decision. 

Court Finds That Strict Liability Dog Bite Statute Applies While Plaintiff Visiting Dog Sitter at Defendants’ Home

Defendant homeowners’ dog, Ringo, a miniature bull terrier, bit plaintiff Joseph Bernstein while at their home.  At the time, he was visiting their dog sitter, who was caring for their dog while they were on vacation for two weeks.  The issue in Bernstein v. Nossel, 2023 N.J. Super. Unpub. LEXIS 681 (App. Div. May 5, 2023), was whether the strict liability dog bite statute, N.J.S.A. 4:19-16 applied when defendants had no knowledge that their dog sitter’s friend, the plaintiff, would be coming over to visit her.  Defendants contended that Plaintiff qualified as a “trespasser.”

In this case, plaintiff moved for a summary judgment on liability based upon the dog bite statute.  The trial judge denied both the motion and the plaintiff’s subsequent motion for reconsideration, finding that there was a fact issue whether plaintiff was lawfully on the premises.  That decision was appealed to the Appellate Division. 

Defendant Kerri Nossel had asked Sarah Shore to house-sit for them and care for their dog for two weeks in October 2019 while they and their children vacationed out of the country.  She knew Shore was not married.  She told Shore that a mutual friend named Judy could visit Shore in their home while she was house sitting but she did not tell Shore that she was forbidden from having any other visitors.

Toward the end of her house-sitting assignment, Shore invited plaintiff, her friend, over to the house.  Shore had texted plaintiff, telling him that she was dog sitting and that she was kind of stuck there and would love to have visitors.  Plaintiff understood that she was lonely and wanted to have some company.

When plaintiff arrived at the house, the front door was left open. He played with Defendants’ dog for about 45 minutes, after which, he advised Shore that he was exhausted and needed about 10 minutes to put his head down alone.  Shore told him to go upstairs and lie down in the bed and she would wake him up in 10-15 minutes.

Thereafter, Shore took Ringo out for a walk.  When she went upstairs to wake him up, the plaintiff was still in the bed.  The dog ran into the room, jumped on the bed, clamped his mouth onto plaintiff’s foot, shaking it back and forth.  Ringo bit through and broke plaintiff’s phalanx bone and a second toe.  He was subsequently taken by ambulance to a hospital where he had surgery and stayed for several days. 

Plaintiff filed this complaint, alleging that he had been invited to the defendants’ house by their dog sitter and was lawfully at the home when defendants’ dog repeatedly bit him, causing him severe and permanent injuries.  He claimed that defendants were strictly liable under the dog bite statute, N.J.S.A. 4:19-16.  In order to recover under this statute, a plaintiff must prove the following:

  • The defendant owned the dog;
  • The dog bit the plaintiff; and
  • The bite occurred while the plaintiff was in a public place or lawfully in a private place, including the property of the owner of the dog.

Thereafter, plaintiff filed for summary judgment as to the issue of liability.  He argued that he satisfied the statute’s three elements because defendants owned Ringo, Ringo had bit him, and he had been a lawfully-present guest in defendants’ house.

Defendants opposed that motion, arguing that there was an issue whether plaintiff was a trespasser because based upon plaintiff’s Orthodox Jewish faith and his knowledge of defendants’ faith, he could not reasonably have believed he belonged in their home, yet alone with Shore or in the upstairs bedroom.  Both plaintiff and defendants and Shore were all observant Orthodox Jews and defendants asserted that under Orthodox Jewish law, it “strictly prohibits unrelated single men and single women, like plaintiff and Ms. Shore, from being alone together in a secluded location, like defendants’ home, unchaperoned.”   

While plaintiff admitted that all parties were Orthodox Jews, he contended that the law of “Yichud,” prohibits a Jewish adult from being alone in a closed, locked space with another adult of the opposite gender if they are unmarried and if no other person might unexpectedly enter this space.”  Defendants, on the other hand, understood Yichud “as prohibiting a man and a woman from being together alone in a secluded location if they are unmarried and unrelated.”  Shore’s view of the concept of Yichud was that it was a very grey area in Jewish law that allowed an unrelated and unmarried man and woman to be in the same vicinity in the same house or the same room “as long as someone is able to come in and see what is going on . . . and as long as there’s not an extended period of time that they are in the same room.”

The trial court judge found that plaintiff had established the first two prongs of the dog bite statute.  The judge also found that defendants had not specifically limited the people Shore could invite to the home while she was housesitting, and that Shore had extended an invitation to plaintiff.  However, the judge referenced Yichud and found that “plaintiff’s knowledge of Jewish law raises a triable issue regarding his reasonable interpretation of the invitation” extended to him. Hence, the court found that there was an issue of fact, precluding a summary judgment.

Plaintiff filed an application with the Appellate Division for leave to appeal, which was granted.  Plaintiff argued that he had met all the elements of the dog bite statute and the judge made a mistake in denying his motion.  Further, he argued that the motion judge was confused on the issue of whether plaintiff’s presence in defendants’ home was lawful with the question of whether it was moral under Jewish law, an irrelevant consideration under the dog bite statute.

The Appellate Division disagreed with the motion judge that plaintiff’s knowledge of Jewish law created a genuine issue of material fact as to the third prong of the dog bite statute, thus concluding that the trial court judge made a mistake in denying plaintiff’s summary judgment motion.  Hence, the Appellate Division reversed and remanded the matter back to the trial court. 

The Appellate Division found that the third prong of the dog bite statute, whether a plaintiff was lawfully in a private place was to be broadly construed to “include all those who have express or implied permission to be on the owner’s property.”   That would include those lawfully on the property, including both invitees and licensees (including social guests), but not trespassers and “anyone whose presence is expressly or impliedly permitted on the property should be entitled to the protection of the statute.”

Under the facts of this case, the defendants retained Shore as their house and dog sitter.  They knew she was an unmarried woman but did not tell her she could not have guests and did not limit the type of guests she could have or where the guests could be in their house.  Shore did invite plaintiff over to the house and directed him to nap in the upstairs bedroom and the defendants’ dog bit plaintiff while in defendants’ home.

The Appellate Division rejected the trial court’s decision that the custom of Yichud, essentially converted plaintiff into a trespasser.  The Court pointed out that the record demonstrated that the parties did not have a common understanding or practice.  The Court found that plaintiff “reasonably believed” that the invitation permitted him to be where he was when defendants’ dog bit him.  The Appellate Division noted that “[n]othing in the record demonstrates plaintiff knew or should have known defendants had a different understanding and interpretation of Yichud that he and Shore had.”

Hence, the Appellate Division reversed and remanded for proceedings consistent with their opinion.

Concert Provider Found Not Liable For Patron’s Injury Caused By Slipping On Muddy Ground At Concert

Plaintiff Danielle Donahue attended a Live Nation Concert at the PNC Banks Art Center (“PNC Center”), a public entertainment venue in Monmouth County. PNC Center is a partially covered, open-air amphitheater, which included lawn seating. In Donahue v. NJTPA and Live Nation Worldwide, Inc., 2022 N.J. Super. Unpub. LEXIS 559 (App. Div. Apr. 7, 2022), the issue was whether Live Nation could be held liable for Plaintiff’s injury resulting from her slip on the muddy lawn.

Plaintiff had purchased lawn seating tickets, knew rain was forecast for the evening, and that lawn seats were exposed to the elements. It began to rain about 5 minutes after she sat down. Plaintiff noticed that the ground was wet and muddy in spots.

About 15 minutes after the rain started, Plaintiff walked across the wet, sloped, muddy lawn toward the concession stand.  She slipped and fell, injuring herself as her left foot slid out from under her in the mud. She admitted in discovery that she knew that “muddy ground could be slippery and that she required no warning of that fact.”

Plaintiff sued Live Nation, claiming that it breached its duty of reasonable care to her by not remediating a dangerous condition at the PNC Center. Live Nation filed for a summary judgment, arguing that there was no evidence produced that Live Nation had actual or constructive notice of a dangerous condition at the PNC Center.

The trial court judge granted the motion, finding “that no reasonable jury could conclude that the muddy lawn was a dangerous condition.” It found that the muddy and slippery conditions were natural occurrences of a lawn that is exposed to a rainstorm. Further, the trial court found that there was no action Live Nation could have taken to cure a muddy lawn while it is raining.

Plaintiff appealed this decision to the Appellate Division. However, the Court agreed with the trial court judge that “the lawn seating near the PNC Center was not a dangerous condition” at the time of Plaintiff’s fall. The Appellate Division pointed out that “[t]here was nothing Live Nation could have done to ameliorate the condition of the lawn once it began to rain.” Further, the Court noted Plaintiff admitted that it was common sense that the lawn might be slippery during a rainstorm. Hence, Live Nation breached no duty to Plaintiff by not warning her of a danger about which she was already aware.

Further, the Appellate Division found no support in the record for Plaintiff’s contention that Live Nation breached a duty to her by allowing portions of the lawn to be worn down to dirt that turned to mud when it rained. The Court pointed out that Plaintiff chose to purchase tickets to an outdoor seating area during an evening rainstorm. She had been there before in the lawn seating.

Hence, the Appellate Division rejected the Plaintiff’s arguments on appeal and affirmed the dismissal of the lawsuit.

New Jersey Turnpike Authority Found Not Liable For Injury Caused Due To Plaintiff’s Motorcycle Hitting A Pothole

Plaintiff Daniel O’Brien sued the New Jersey Turnpike Authority (“NJTA”) for injuries he claimed to have suffered when he lost control of his motorcycle after hitting a pothole on the New Jersey Turnpike.  The issue in O’Brien v. New Jersey Turnpike Authority, 2022 N.J. Super. Unpub. LEXIS 120 (App. Div. Jan. 27, 2022) was whether the NJTA was responsible for this injury if the NJTA had no actual or constructive notice of the existence of the pothole. This case shows the difficulty in pursuing a pothole claim against a public entity.

Plaintiff was riding his motorcycle on the New Jersey Turnpike and while approaching a toll plaza close to Interchange 14, he claims to have hit a pothole near a storm drain, causing him to lose control of his motorcycle and slide about 35 feet.  The New Jersey State Police Crash Investigation Report (the police report) included a statement from plaintiff that he lost control of his motorcycle when he hit a hole in the roadway.  The report did identify a dip in the roadway near the drain and listed it as an apparent contributing circumstance of the accident. 

However, in the plaintiff’s deposition, when asked how the accident happened, he claimed not to remember the incident and testified that he found out afterwards that there was a hole in the road.  He produced some photographs of the roadway which appeared to show the roadway defect but was unable to provide any more specifics about the pothole.

According to the records of the NJTA, the roadways were examined on a weekly basis and crews would report anything that needed attention.  On the day of the accident, the NJTA employees did repair a pothole with a bag of cold patch.  Additionally, the NJTA Road Foreman, in reviewing photographs, testified that had he noticed the road defect shown in the photographs during an inspection, his department would have repaired it.

The NJTA repair logs showed that they received no complaints of potholes in the area in the two weeks prior to the accident.  Potholes had been filled in at that interchange about one month before the accident.

The NJTA filed a motion for summary judgment, arguing that it had no actual or constructive notice of the defect, that no evidence had been produced to show that the alleged pothole existed for such a period of time and was of such an obvious nature that the NJTA should have discovered the condition and its dangerous character.  Further, the NJTA argued that the plaintiff had presented no evidence of any kind that the NJTA’s actions or alleged failure to protect against the dangerous condition was palpably unreasonable. 

After hearing oral argument, the motion judge issued an order and written opinion granting the NJTA’s motion.  The plaintiff had failed to dispute the NJTA’s statement of facts but, nevertheless, the judge addressed the substance of plaintiff’s opposition.  The judge found that plaintiff had failed to establish the existence of a factual question that the alleged defect in the roadway constituted a dangerous condition and, thus, granted the motion to dismiss the lawsuit.

Upon appeal, the plaintiff made most of the same arguments to the Appellate Division.  The Appellate Division rejected those arguments and affirmed the dismissal of the lawsuit.

The Appellate Division noted that this claim was governed by the New Jersey Tort Claims Act.  Under the Act, to be able to succeed on a claim against a public entity, the Court noted that “a plaintiff must prove: (1) the public property was in a dangerous condition; (2) the dangerous condition created a substantial and foreseeable risk of, and actually cause, injury to plaintiff; (3) the public entity knew of the dangerous condition; and (4) the public entity’s action to protect against the dangerous condition was palpably unreasonable.”

The Appellate Division found that summary judgment was appropriate because plaintiff did not establish that the pothole was a dangerous condition.  Even assuming that there was a factual issue on that issue, the Court found no support for plaintiff’s contention that the NJTA had actual or constructive notice of the pothole or that its actions were palpably unreasonable. 

The Appellate Division found that the motion judge correctly determined that neither the police report, nor plaintiff, nor the NJTA Foreman provided any details about the size of the pothole or when it was created.  The plaintiff failed to authenticate the photographs and provide the necessary foundation to establish when, and under what circumstances the photographs were taken.  Even the statement in the police report only stated that there was a “dip in the roadway,” which did not establish that the “dip” created a dangerous condition.

Further, the plaintiff failed to show that the NJTA was on actual or constructive notice of the pothole as a dangerous condition. The Court found that there was no evidence that the NJTA was on actual notice of the alleged defect. 

Just because the NJTA repaired potholes at this interchange about one month before plaintiff’s accident and examined the road at least once a week, that did not establish constructive notice of a dangerous condition.  The Court pointed out that the record was “devoid of evidence of prior incidents related to the pothole that caused plaintiff’s accident, nor does the record establish, directly or inferentially, that the NJTA was aware of any issue with respect to the pothole based on complaints from third parties.”  Further, the Appellate Division pointed out that the plaintiff failed “to establish that the dangerous condition existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

The fact that the NJTA repaired potholes in the general area of plaintiff’s accident about one month prior did not suggest that they were on notice of a defect at the time of this accident.  The repair logs showed that the NJTA did not receive any complaints of potholes on this interchange for at least two weeks prior to the accident.

Further, the fact that the NJTA regularly examined the roadway in question did not establish constructive notice when the record “is devoid of any competent evidence of the size or age of the alleged defect.”

Finally, the Appellate Division found that there was no proof directly or circumstantially that “the NJTA acted in a palpably unreasonable manner regarding the discovery or repair of this particular pothole or dangerous condition, the procedure in which the NJTA investigated such incidents, or how it responded to plaintiff’s accident.”  Plaintiff failed to submit any proofs suggesting a history of accidents or complaints.

Accordingly, because the plaintiff failed to establish the existence of a dangerous condition, that the NJTA had either actual or notice of the alleged dangerous condition, or that its actions were palpably unreasonable, the Court found “that the plaintiff’s proofs failed to create a genuine and material question of fact that the alleged dangerous condition was the proximate cause of plaintiff’s accident.”  Thus, the Appellate Division upheld the motion judge’s decision to dismiss the complaint as to the New Jersey Turnpike Authority.

New Jersey Supreme Court Rules that Mode of Operation Doctrine Does Not Apply to Sale of Grapes in Closed Container

Plaintiff Aleice Jeter sued Sam’s Club due to injuries suffered in its Linden, New Jersey store after she slipped on one or more grapes. Sam’s Club sold its grapes in closed clamshell containers sealed with tape. The case was dismissed by the trial court judge, which decision was affirmed upon appeal to the Appellate Division, but the decision was further appealed to the Supreme Court, which accepted certification. Our office submitted an amicus curiae brief on behalf of Sam’s Club, arguing that the lower court decisions should be affirmed. In Jeter v. Sam’s Club, 2022 N.J. LEXIS 242 (March 17, 2022), in a 4-2 decision, the Supreme Court ruled that the mode of operation doctrine did not apply to the sale of grapes in a closed, taped clamshell container. This decision is a big win for food retailers in limiting liability for injuries suffered due to a fall from a product spilled or dropped from a closed, sealed container or package.

The accident happened in the main aisle of Sam’s Club wholesale store. Plaintiff had been walking away from the checkout area when she realized that she forgot an item. She was halfway back to the fruit and vegetable aisle when she slipped on a grape.

She sued Sam’s Club, arguing that the store was negligent in its sale of grapes. Sam’s Club asserted several defenses, including the lack of either actual or constructive notice of the allegedly hazardous condition, i.e., the loose grapes on the floor.

Just prior to trial, Sam’s Club filed a pre-trial motion, called an in limine motion, asking for a ruling to bar the plaintiff from a mode of operation jury charge. If the trial court judge decided that the mode of operation doctrine did apply, it would have altered the plaintiff’s burden of proof at trial and made it easier for plaintiff to prove her case at trial.

Under New Jersey’s premises liability law, a proprietor owes his invitees [customers] due care under all the circumstances. In a situation in which “an invitee is injured by a dangerous condition on the business owner’s premises, the owner is liable for such injuries if the owner had actual or constructive knowledge of the dangerous condition that caused the accident.” However, a plaintiff is relieved “of the burden of proving actual or constructive notice of a dangerous condition ‘in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.” When this “mode of operation rule” applies, it “gives rise to a rebuttable inference that the defendant is negligent, and obviates the need for the plaintiff to prove actual or constructive notice.”

Based upon prior case law, it has been well established that this doctrine would only be applied in self-service settings, where customers would be independently handling the merchandise without the assistance of employees. This rule would apply to all areas affected by the business’s self-service setting, not just the precise location of the self-service setting. Further, the rule would apply “whether the injury resulted from employee handling, customer negligence, or the ‘inherent qualities of the merchandise itself.’” If the mode of operation rule was determined to apply, it would create “a presumption of negligence, excusing the plaintiff from having to show notice and shifting the burden to the defendant to show it exercised due care.”

The Supreme Court found that the first two elements of the test had been met in that the sale of grapes was part of Sam’s Club’s self-service operation and that the fall had a geographical proximity to the self-service sale of grapes. However, it had an issue with the applicability of the third element, “a reasonable nexus between the self-service activity and the dangerous condition causing plaintiff’s injury.” The Court had to consider “whether the packaging of grapes in closed clamshell containers makes it reasonably foreseeable that grapes will drop on the floor.”

This rule has been applied in falls due to loose produce situations, such as string beans or grapes that were dropped on the floor due to customers handling the product. However, the Supreme Court distinguished those cases from the facts of this case by pointing out that Sam’s Club permitted only the self-service sale of pre-packaged sealed grape containers, not grapes, on display. The grapes were not sold in open-top, vented plastic bags. Sam’s Club did not intend its customers to handle the grapes but, rather, it only intended them to handle the closed grape containers.

The Supreme Court found it compelling that Sam’s Club “elected not to sell grapes in open-top, vented plastic bags – a method we decided creates a reasonably foreseeable risk that grapes will fall to the ground.” The Court pointed out that by selling the grapes packaged in sealed clamshell containers secured by tape, it was a method “that posed virtually no chance of spillage during ordinary, permissible customer handling.” Thus, the Supreme Court found “no nexus between plaintiff’s fall on grapes and Sam’s Club’s self-service sale of grape containers.”

The Court further noted that it found “unpersuasive plaintiff’s argument that Sam’s Club knew its customers occasionally opened the grape containers in store.” The Court noted that Sam’s Club’s sale of grapes in secure packaging posed no foreseeable risk that grapes would end up on the floor. Further, the store manager had testified that the store did not permit its customers to open the containers in the store and that doing so constituted tampering with the product.

Thus, the Supreme Court held that “the mode of operation rule does not apply to the sale of grapes in closed clamshell containers.” Because the plaintiff had not appealed the lower court ruling that there was no actual or constructive notice of the grapes on the floor, without the application of the mode of operation doctrine, the plaintiff was unable to prove negligence against Sam’s Club. Hence, the Court affirmed the lower court’s rulings and the case was dismissed.

This decision is a big victory for retailers, food and non-food retailers. Had the Supreme Court expanded the mode of operation rule to injuries that resulted from falls due to spillage or products dropped by customers from closed and sealed containers, it would have vastly expanded the application of this rule to almost every product sold in the store. It would have made these cases almost impossible to successfully defend, once the plaintiff’s notice requirement was eliminated.

Especially food retailers should be breathing a sigh of relief that our Supreme Court has made clear that this rule does not apply when the customer is handling a product’s sealed container, and not the product itself.  Even knowing that customers occasionally opened the containers (“tampered” with them), did not trigger the application of the mode of operation rule.

Packaging was key here to prevent the application of this burden shifting rule. Retailers should consider its packaging used and consider packaging its produce and other “loose” items in closed, sealed containers to prevent a court from applying the mode of operation rule. Without that doctrine being applied, a plaintiff will need to prove that the store had actual or constructive notice of the product being on the floor.

Neither County Nor City Found Responsible For Injury To Plaintiff Caused By Tree Limb Piercing Windshield Of His Car

Plaintiff Marc Russi suffered significant injuries when a tree limb fell and pierced the windshield of his car while he was traveling on Union Valley Road in West Milford.  The fallen tree limb came from a tree located in the Pequannock Watershed, a 35,000 – acre natural resource area owned by the City of Newark.  In Russi v. City of Newark, 2022 N.J. Super. LEXIS 20 (App. Div. Feb. 17, 2022), the issue was whether the City of Newark and/or the County of Passaic could be held responsible for this accident or whether they had immunity under the Landowner’s Liability Act or under the Tort Claims Act.

At the time of the accident, the plaintiff was traveling in his vehicle on Union Valley Road in West Milford.  This roadway bisects a portion of the City’s watershed property.  The County, however, owns Union Valley Road.  The County is responsible for the road and a 25 foot right of way extending from the center line of the road out to each side of the roadway.  However, the tree with the broken limb stood beyond the County’s right of way.

Plaintiff Russi sued both the City and the County for his injuries.  Both of these defendants filed a motion for summary judgment, seeking a dismissal.  The trial court judge denied the City’s motion, finding that there were disputed facts concerning the condition of the tree and the visibility of the tree from the road.  However, the judge granted the County’s motion for summary judgment because the tree was not located on the County’s property.  Even the plaintiff’s expert agreed the tree was beyond the County’s right of way and, therefore, the court found that the County had no duty regarding the fallen section of the tree.

Thereafter, the City renewed its motion for summary judgment.  In the second motion, the trial court judge found that the City was entitled to immunity under the Landowner’s Liability Act, N.J.S.A. 2A:42A-12-10, the unimproved public property immunity, N.J.S.A. 59:4-8, and common law immunity.

This decision was appealed to the Appellate Division.  The Court first considered the summary judgment granted to the County.  The Appellate Division noted that to trigger liability under the Tort Claims Act, specifically under N.J.S.A. 59:4-2, the plaintiff would have to establish that the County owned or controlled the property where the tree with the broken limb was located.  Under N.J.S.A. 59:4-2, a public entity is liable for an injury caused by a condition of its property.  Further, the Appellate Division noted that a public entity is not liable for dangerous conditions on the property of others.

In this case, plaintiff conceded that the tree limb that fell on its car came from a tree located beyond the County’s right of way.  Additionally, plaintiff failed to offer any evidence that the County controlled the property where the tree with the fallen limb was located.  Possessory control is satisfied where a public entity treats the property as its own by using it for public purposes.  Although the County occasionally removed fallen tree limbs in its right of way, the court noted that “the County never assumed responsibility for inspecting or maintaining the trees within the City’s watershed property.  Nor does incidental removal of tree limbs establish control.”  Thus, the Appellate Division concluded that the County was not liable for plaintiff’s injuries because it did not own or control the property where the tree with the broken limb was located.

Next, the Appellate Division considered the plaintiff’s argument that the judge made a mistake in granting summary judgment to the City.  Here, the Appellate Division agreed that the Landowner’s Liability Act would provide immunity to the City.  The Appellate Court noted that N.J.S.A. 2A:42A-8.1, provides immunity to an owner of a premises in which a conservation restriction is held by the state or a local unit and upon which premises, “public access is allowed, or of premises upon which public access is allowed pursuant to a public pathway or trail easement held by the state, [or] a local unit
. . . ”  

Further, under this Act, the imposition of liability under such circumstances is limited to “willful or malicious failure to guard, or to warn against a dangerous condition, use, structure or activity,” “injury caused by acts of negligence on the part of the owner . . . to any person or permission to engage in sport or recreational activity and the premises was granted for consideration . . .”, or “injury caused by acts of gross negligence on the part of the owner . . . to any person entering or using the land for a use or purpose unrelated to public access purposes.” 

Based upon this language in the Landowner Liability Act, the Appellate Division agreed with the City that it was immune from liability for this accident.  First, the Court noted that Union Valley Road was used for public access purposes.  Second, it noted that there was a conservation easement that included the block and lot number of the property where the tree with the broken limb was located.  Third, the Court noted that there was nothing in the Landowner Liability Act that precluded its application to existing roads located in areas designated for open space and public recreation.

Finally, the Appellate Division found that the plaintiff could not satisfy the exception of a willful act to overcome the Landowner Liability Act’s absolute immunity.  There was no proof that the City knew the tree on its property was dangerous.  The Court noted that there were no complaints made to the City regarding this tree, nor was plaintiff using the City’s watershed property for sport or recreational purposes.

The Appellate Division concluded that plaintiff’s car travelled on a road providing public access and serving as a public pathway.  Further the area where the tree stood was located within the City’s watershed property, subject to a valid conservation easement.  The plaintiff was using the road for reasons unrelated to sport or recreational activities and did not pay for his use of the road.  Accordingly, the Appellate Division found that the City was entitled to immunity under the Landowner’s Liability Act and that the judge properly granted the City’s motion for summary judgment.

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