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Personal Injury Complaint Dismissed Against County Due to Failure to Comply with Notice Provisions of Tort Claims Act

On August 26, 2020, Plaintiff Rachel Kasuch was injured while riding her bicycle in Middlesex County Greenway, owned and operated by Defendant County of Middlesex. As she rode on a path, her foot caught on a stabilizer leg of a front end loader being operated by a County employee. This contact caused her to fall over her handlebars and suffer injuries. The issue in Kasuch v. County of Middlesex, 2026 N.J. Super. Unpub. LEXIS 790 (App. Div. Apr. 20, 2026), was whether the lawsuit should be dismissed due to Plaintiff’s failure to provide proper notice of her claim to the County, as required by the Tort Claims Act (“TCA”).

To be able to sue a New Jersey public entity for an injury, the injured party must first provide written notice of the claim to that public entity within 90 days of the incident. This notice is a prerequisite to filing a lawsuit against that entity. N.J.S.A. 59:8-3 recites the basic information which must be included in that notice of claim. If the individual fails to meet the strict requirements of this law, the claimant could argue that there was “substantial compliance” with the notice requirement. That was the argument made by plaintiff in this case.

At the time of the accident, a County employee was clearing brush from a creek along a paved County path. The employee was using a yellow loader with a backhoe and front bucket parallel to the creek. One of the loader’s tires was on the stone along the path and the other tire was on the paved path, partially obstructing it. The employee extended the loader’s two stabilizer legs, which were low to the ground.

According to Plaintiff, she saw the yellow loader but did not see the stabilizer leg on the path. She assumed she could ride past it. As she rode past the loader, the pedal of her bicycle caught on the extended stabilizer leg. That caused her to fall over her handlebars and fall to the ground.

A County employee filled out an operations report which described the accident, her name, address, and driver’s license number. It mentioned that plaintiff suffered a cut chin and dizziness. There was also a police report prepared which included Plaintiff’s name, address, date of birth, and home telephone number.

After the accident, the defendant’s third party administrator’s adjustor reached out to Plaintiff to obtain personal information, asking for her social security number, gender, and date of birth for purposes of fulfilling Medicare reporting requirements. Plaintiff refused to provide this information. Thereafter, the adjustor received a letter of representation from Plaintiff’s attorney advising of his representation and providing a copy of the police report, which the adjustor already had. But, the letter failed to describe Plaintiff’s injuries, demand a specific amount of damages, or set forth a theory of defendant’s liability for plaintiff’s injuries.

After the expiration of the 90 day notice of claim period, not receiving a notice of claim, the adjustor closed his file. In response to a February 17, 2021 telephone inquiry made to the adjustor by the attorney whether he had received a notice of claim from the plaintiff, the adjustor sent out a denial letter.

On November 2, 2021, plaintiff filed a lawsuit against the County, asking for damages due to her accident. She alleged in her complaint that she had filed a notice of tort claim but did not identify the entity upon which the notice of claim was served. However, in discovery, plaintiff produced a copy of the notice of claim, showing that it had been filed with the State Department of Treasury. The notice identified the accident as occurring in Middlesex County Greenway and the responsible agency as Middlesex County. Yet, plaintiff produced no evidence that she filed the notice with the County.

Thereafter, the County filed for summary judgment on the basis that plaintiff failed to file a notice of claim with the County. Plaintiff opposed the motion, arguing that the police report and her attorney’s letter to the adjustor constituted “substantial compliance” with the notice requirement of the Tort Claims Act. The motion was initially denied without prejudice and the judge permitted the parties to conduct discovery.

After discovery, the County then re-filed its summary judgment motion on the notice of claim issue. Now plaintiff argued that the County must have received a copy of the notice from the State because the County conducted an investigation. In the alternative, she argued that she substantially complied with the notice requirement. The trial court accepted the latter argument and denied the motion.

However, thereafter, the County filed a summary judgment on the merits of the case, arguing that the temporary parking of the loader along the paved path did not constitute a dangerous condition and that plaintiff did not act with due care to avoid the loader as she attempted to pass it. That argument the trial court accepted and granted summary judgment, dismissing the lawsuit.

That decision prompted the plaintiff to appeal the dismissal of her lawsuit to the Appellate Division. The County cross-appealed, arguing that its prior motion to dismiss for failure to comply with the notice requirement of the TCA should have been granted.

As it turns out, the Appellate Division agreed with the County that its motion on the notice requirement should have been granted, reversing the trial court’s denial of that motion. Hence, it did not reach the plaintiff’s appeal on whether summary judgment should not have been granted on the merits, finding it be moot

The Appellate Division noted that the Tort Claims notice provision serves several purposes. It permits the public entity time to review and settle meritorious claims prior to a lawsuit being filed, it provides prompt notification of the claim to adequately investigate the facts and prepare a defense, it affords the public entity a chance to correct the conditions, and informs the public entity in advance as to the indebtedness or liability that it might expect.

The notice of claim was due 90 days from the accrual of the incident, which here made it due by November 24, 2020. While plaintiff addressed her notice of claim to the State Department of Treasury, there was no evidence that she filed it with the County. Filing with the State Department of Treasury would not constitute filing this notice with the County. It must be filed directly with the specific entity against whom the claim is being made.

Next, the Court considered whether the written notification by plaintiff’s attorney constituted “substantial compliance” so as to fulfill the notice requirement. The Appellate Division found it lacking.

The notice must include basic information, including the person’s name and address. That requirement was fulfilled with the attorney’s letter and the police report.

It must identify the date, place and circumstance of the incident giving rise to the claim and must include the name of the public entity or employee causing the injury or damage, if known. The Court found that requirement also fulfilled.

But the Appellate Division found that the letter and police report did not provide “a general description of the injury, damage or loss incurred,” nor did it indicate “the amount claimed, including the estimated amount of any prospective injury, damage or loss, insofar as it may be known.”

The Court found that plaintiff claimed substantial injuries beyond a lacerated chin. Plaintiff failed to notify the County of the extent of her injuries. As a result, the County was unable to assess its indebtedness or potential liability. In addition, neither the operations report, the police report, nor the attorney’s letter identified plaintiff’s theory of the County’s liability for her claimed damages.

Further, the Court pointed out that the plaintiff failed to provide any explanation as to why she completed the State’s claim form, but failed to file with the County, the correct entity. The Appellate Division found that “[f]iling the incorrect form with the incorrect entity does not constitute a series of steps taken to comply with the notice provisions of the TCA.”  Nor did she provide any reasonable explanation why her attorney’s letter did not describe her injuries, quantify her damages, or set forth a theory of defendant’s liability for those damages.

The Court held that this failure to file a notice of claim prejudiced the County because “it was deprived of the opportunity to investigate and attempt to remediate a purported dangerous condition and assess and attempt to settle plaintiff’s damages claim prior to the filing of the complaint.”

Therefore, the Appellate Division concluded that the trial court’s finding that plaintiff had substantially complied with the notice provisions of the TCA was not supported by the evidence in the record. The Court reversed the trial court’s denial of the motion filed by the County based upon the plaintiff’s failure to comply with the notice requirement and remanded the matter back to the trial court to dismiss the lawsuit on that basis.

Court Refuses to Apply Mode of Operation Doctrine to Plaintiff’s Fall as a Result of Hanger on Floor of Retail Store

Plaintiff Rosalie Soiro claimed that, while walking down an aisle, she slipped and fell on a clothes hanger on the floor of a Family Dollar Store in Orange Township.  She further claimed that she hit her head on a shelf, landed on the floor, and suffered permanent injuries as a result of the fall.  The issue in Soiro v. Family Dollar, 2025 N.J. Super. Unpub. LEXIS 2504 (App. Div. Dec. 3, 2025) was whether the plaintiff had been able to establish actual or constructive notice as to the hanger on the floor and, in the alternative, whether the mode of operation doctrine applied.

Plaintiff alleged that she suffered injuries to her neck, back, left shoulder and left knee due to her fall.  She testified in her deposition that she was unaware of any hangers on the floor before she fell and did not see what caused her to fall.  However, it was her testimony that two young boys in the store told her the hangers caused her to fall.  She only saw the hangers on the floor after she fell.

During discovery, plaintiff did not depose any Family Dollar store employees or a corporate designee.  She also failed to produce any medical records or expert reports establishing a causal connection between her fall and her claimed injuries.

After discovery concluded, the defendant store filed for a summary judgment.  The defendant argued that plaintiff was unable to establish that it had actual or constructive notice of this alleged dangerous condition, the mode of operation doctrine did not apply, and plaintiff lacked medical proof of any injury causally related to the incident.  In opposition, plaintiff argued that she was not required to establish that defendant had notice of the hangers on the floor because the mode of operation doctrine applied.

After hearing argument, the trial court granted defendant’s motion and dismissed the lawsuit.  The trial court found that the defendant had failed to present evidence that defendant had either actual or constructive notice of the hanger and that this was not a mode of operation case.

This decision was appealed.  The Appellate Division noted that for plaintiff to pursue a negligence claim against the store, she must demonstrate that the defendant had actual or constructive knowledge of the dangerous condition that caused her accident.  The Court noted that the record was “devoid of any competent evidence to show or suggest actual or constructive notice to hold a defendant liable.”  Plaintiff failed to present the incident report or deposition testimony from a store employee to demonstrate defendant had notice of the hanger on the floor. 

Further, the Court noted that even if it were to accept plaintiff’s testimony as true, that a hanger was on the floor before her fall, there was no evidence defendant had the constructive knowledge the hanger was on the floor “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  Hence, the Appellate Division found that the absence of actual or constructive notice of the dangerous condition was fatal to her claim of premises liability. 

It also disagreed with the plaintiff that the mode of operation doctrine applied, which would have relieved her of demonstrating defendant’s actual or constructive notice of the alleged dangerous condition. The Appellate Division pointed out that the mode of operation rule was not a general rule of premises liability, “but a special application of foreseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a customer’s self-service model.” 

Thus, the Court noted that for a plaintiff to invoke the mode of operation doctrine, the plaintiff must demonstrate the dangerous condition arose as a result of the business’s self-service mode of operation.

Here, the Appellate Division found that her argument suffered from a fatal flaw.  She had not established that the defendant operated a self-service business, although both parties described the business as a retail establishment. The Court found that without factual evidence regarding the nature of the merchandise for sale and the actual method of defendant’s business operations, plaintiff had not satisfied the requisite elements to invoke the mode of operation doctrine.

Even after giving all reasonable inferences to plaintiff, she had not established a dangerous condition existed on defendant’s property and that defendant was on notice of the condition.  The Appellate Division found that “[t]o hold otherwise would impermissibly permit a jury to engage in conjecture about notice because it would have to speculate whether a hanger was on the floor, how the hanger came to be on the floor, and the duration of its existence on the floor.”  Accordingly, the Appellate Division found that the defendant was entitled to summary judgment as a matter of law and affirmed the trial court’s decision.

Plaintiff’s Lawsuit Dismissed Due to Failure to Prove Causal Relationship Between Inhalation of Fumes and Her Fall

Plaintiff Yireika De La Rosa went to defendant LA Gypsy restaurant with a friend.  She drank half a beer and went to the restaurant’s restroom.  As she approached the restroom, she noticed maintenance staff spraying a blue liquid, which smelled like ammonia, onto the floor.  Plaintiff passed through the area, felt she could not breathe and began to run towards the front of the restaurant, ultimately falling to the ground and suffering injuries.  The issue in De La Rosa v. LA Gypsy, 2025 N.J. Super. Unpub. LEXIS 2521 (App. Div. Dec. 5, 2025) was whether the plaintiff had met her burden to show defendant breached any duty of care to her and whether she presented any facts tending to prove a causal relationship between her inhalation of fumes from the blue liquid and her fall outside the restaurant.

According to plaintiff, when she smelled the liquid, “she thought she was going to die.”  After exiting the restaurant, she passed out and fell to the ground.  After she woke up, she felt pain in numerous parts of her body.  There were no warnings in front of the bathroom as the staff person was cleaning the floor.  Plaintiff could not recall whether there was a descriptive label or other mark identifying the substance of the spray bottle which contained the blue liquid that the employee was using to clean the floor.

After the incident, plaintiff went to the emergency room.  She ultimately had neck and back surgery due to her injuries.

Plaintiff named Dr. Elkholy as an expert witness.  According to his report, plaintiff suddenly became dizzy and collapsed, due to inhaling ammonia in a closed restaurant that was not anticipated.  He attached an article to his report, confirming the toxic side effects of the sudden presence of ammonia wherein same is unanticipatedly inhaled.  He opined that it was a foreseeable consequence that an individual will suddenly experience a medical calamity, dizziness, and collapse.  He further opined that plaintiff’s cervical and lumbar injuries were all related to this incident at the restaurant.

Plaintiff had sued the defendant restaurant for negligence.  After completing discovery, the defendant restaurant filed for a summary judgment dismissal, which was granted. 

The trial court found that the expert’s report was not probative on the question of causation.  The judge noted that there are a lot of other facts that could have helped support the fact that the blue liquid was ammonia.  The trial court judge found that the plaintiff’s expert did not identify what contents were in the spray bottle or what substances were discovered in plaintiff’s body afterwards which could have caused her to faint or collapse.  Even assuming that the substance was ammonia, the court held that the presence of ammonia in the hallway leading to the bathroom and the eventual collapse of plaintiff was insufficient to show that ammonia caused plaintiff’s collapse.

This summary judgment dismissal was appealed.  The Appellate Division noted that there was no dispute that the defendant restaurant owed a duty of care to plaintiff as a business invitee, nor that plaintiff fell outside the restaurant and suffered injuries.

The issue was whether defendant breached any duty of care to her, as well as whether plaintiff offered any material facts to prove a causal relationship between the fume inhalation from the blue liquid and a fall outside.

Under New Jersey law, the Appellate Division noted that a business owner was required to guard against any dangerous conditions on the property that the owner either knows about or should have discovered and to conduct a reasonable inspection to discover any latent dangerous conditions. 

The Court stated that plaintiff offered no competent evidence, other than her own testimony, to establish what the blue liquid substance she observed was, its composition, whether defendant’s cleaning staff sprayed the blue liquid in a proper manner and the size and ventilation of the hallway where she observed the liquid.  The plaintiff failed to proffer any testimony that it was unreasonable for the defendant’s staff to use the blue liquid or how its use created a dangerous condition.  The Appellate Division noted that the plaintiff failed to depose defendant or any of its employees to ask what kind of solution the cleaning staff used on the date of the accident.

Hence, even giving plaintiff all reasonable inferences, the Court determined that plaintiff had failed to meet her burden to show a genuine issue of material fact which would tend to prove that defendant breached its duty of care through its cleaning personnel improperly using an unidentified blue liquid.  Plaintiff’s own testimony about the presence of ammonia in the hallway was unsupported by facts and represented self-serving testimony which would be insufficient to defeat summary judgment.

Next, the Court considered whether the plaintiff had proved proximate causation.  The Court noted that to prove proximate cause, plaintiff bears “the burden to introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.”  Expert testimony on the topic of proximate cause would be necessary when it is outside a juror’s common knowledge.

Plaintiff argued that her expert, Dr. Elkholy, rendered an opinion that established a nexus between plaintiff’s collapse and the blue liquid that was sprayed.  The Appellate Division disagreed.  Dr. Elkholy failed to conduct any testing of the restaurant, did not review any records of the composition of the blue liquid, and reviewed  no toxicological reports of plaintiff after her exposure to the blue liquid.

Thus, the Court found that the plaintiff’s expert had no factual basis to reach any conclusions about what plaintiff was exposed to, for how long, or how and if it affected her in any way.  Without evidence of what the blue liquid consisted of and a toxicology report to show what plaintiff had inhaled, the Appellate Division found that Dr. Elkholy’s opinion was without foundation and was a net opinion.  Hence, without an expert to prove causation, plaintiff’s claim could not survive summary judgment.

Thus, the Court determined that plaintiff had failed to meet her burden to show defendant breached any duty of care to her, nor did plaintiff meet her burden to prove proximate cause.  The Appellate Division affirmed the trial court’s order, granting summary judgment and dismissing the lawsuit.

District Court Finds That Mode of Operation Rule Did Not Apply to a Fall From a Blueberry Sold in a Clamshell Container

Plaintiff Jessica Nunez was shopping at the Clifton Costco and claimed that she slipped and fell on at least one blueberry on the floor in the meat department.  She sued Costco for her personal injuries.  The issue in Nunez v. Costco Wholesale Corp., 2025 U.S. Dist. LEXIS 196212 (D.N.J. Oct. 3, 2025) was whether Costco could be held liable under the mode of operation doctrine due to the sale of its blueberries packed in a clamshell container with pinch points at each corner, but not taped shut.

As a result of her fall, plaintiff suffered a fracture of her left patella, which required emergency surgery.  She claims that her surgery left her with substantial medical bills, lost time from work and changes in her employment. 

It was undisputed that Costco sold the blueberries packaged in a clamshell container with pinch points at each corner and that it sold them exclusively in the produce department, which was about 200 feet from the meat department where plaintiff fell.  The containers were not always taped, depending on the vendor, and sometimes the plastic containers did pop open.

The evidence showed that Costco employees performed daily floor walks to inspect for hazardous conditions, covering all areas at the store.  Plaintiff admitted that she could not recall ever encountering any spilled produce on the floor of this Costco prior to the date of the incident.  Further, the testimony was that while Costco employees did permit customers to open sealed produce containers while shopping, it did not encourage customers to eat while shopping.

It was unclear how long the blueberry (or blueberries) had been on the floor before the incident occurred.  There was no surveillance footage or eyewitnesses as to the accident.

The case was originally filed in New Jersey state court but it was removed to federal court. Thus, the litigation ensued in the Federal District Court of New Jersey.

Costco filed a motion for summary judgment, arguing that plaintiff was not able to establish a negligence claim under New Jersey law.  The two issues addressed by the Court were whether the mode of operation doctrine applied and, if not, whether Costco had actual or constructive notice of the alleged dangerous condition, i.e. the blueberry on the ground, that caused plaintiff’s injuries.

To establish a negligence claim, the plaintiff must show that there was a duty of care owed by the defendant and that the defendant breached that duty of care.  Costco, as a business owner, owed its invitee (its customer) a duty of reasonable care to provide a safe environment to its invitee.  However, the plaintiff must prove that the defendant/business owner had actual or constructive notice of the dangerous condition that caused the accident.

The District Court pointed out that in “very limited” circumstances, where the mode of operation rule applied, a plaintiff does not need to show actual or constructive notice to prove that a defendant/business owner breached its duty of care.  Once this rule is triggered, the burden switches to the business owner to establish that it “did all that a reasonably prudent man would do in the light of the risk of injury the operation entailed.”

The mode of operation rule only applies in self-service settings where “a business permits its customers to handle products and equipment, unsupervised by employees.”  There must be a nexus between the self-service components of the defendant’s business and the risk of injury in the area where the accident occurred.

Here, Costco conceded that it sold products in a self-service fashion and permitted customers to handle produce containers without employee supervision.  However, Costco argued that there was no nexus between the self-service component of its business and the risk of injury. 

Under New Jersey case law, “when a business owner instead uses a method that poses virtually no chance of spillage during ordinary, permissible customer handling,” the mode of operation rule does not apply.  The District Court cited to the New Jersey Supreme Court case of Jeter v. Sam’s Club, 250 N.J. 240 (2022), among other New Jersey state court decisions, in explaining and considering the application of the mode of operation rule to the facts of this case.

The Court noted that in Jeter, the New Jersey Supreme Court found “no reasonable factual nexus between the self-service activity and the dangerous condition causing plaintiff’s injury” when the business permitted only the self-service sale of pre-packaged sealed grape containers, rather than allowing customers to handle the produce in open top bags.  The Sam’s Club’s customers were intended only to handle the closed grape containers. The Jeter Court made clear that the presence or absence of tape on a closed container did not determine whether the mode of operation rule applied. 

The District Court also noted a prior District Court decision, also against Costco, Scalera v. Costco Wholesale Corp., in which the Court noted that “the taping of the containers was not the lynch pin of the Court’s analysis” in Jeter.  That case involved the sale of strawberries in a clam shell container which was not secured by tape.  As the Court in Scalera noted, “the analysis in Jeter hinged on whether the packing of the grapes in closed clamshell containers made it reasonably foreseeable that grapes would drop on the floor, and not on whether the containers were taped or might occasionally pop open.”

In considering the arguments made in Nunez, the District Court found that the mode of operation doctrine did not apply to the sale of the defendant’s blueberries in a clamshell container.  As in Jeter, the Court found that the defendant’s customers were not intended to handle the blueberries themselves or package the blueberries themselves.  Instead, they were intended only to handle the closed containers. 

Further, the Court found that plaintiff was unable to establish that Costco had actual or constructive notice of the blueberry on the floor.  It was undisputed that Costco had no actual knowledge.  The issue was whether the facts established that Costco could have had constructive knowledge of the blueberry being on the floor. 

To establish constructive notice of a hazardous condition, a plaintiff must be able to show that the condition was present “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  The length of time that the condition was present is key to determining whether constructive notice existed. 

A plaintiff is unable to prove constructive notice “when he or she cannot identify any facts in the record indicating how long the dangerous condition itself is present.”  The District Court noted that a court will look for evidence such as video footage, eyewitness testimony and whether the plaintiff his or herself noticed the hazard or had knowledge of when it was created.

Here, plaintiff had not pointed to any evidence from which a determination could be made as to how long the blueberry had been on the floor before the plaintiff’s fall.  Plaintiff did not know how long the blueberry had been on the floor prior to the incident.  Further, she was unable to identify any evidence regarding “characteristics of the berry that would indicate how long it had been there.”  Further, there was no surveillance footage, nor did any party claim that any eyewitnesses were present.  The Court found that “no one involved has any idea at all how long the hazardous condition existed before the incident occurred.”

Further, the Court pointed out that Costco did perform floor walks to check the floor for hazards hourly.   A Costco employee had performed an entire walk through of the store which had concluded only about 15 minutes before the incident occurred.

Thus, the District Court found that plaintiff had been unable to point to any evidence at all showing how long the hazard existed, but there was evidence that showed that Costco employees did closely monitor the area.  Hence, the Court found that plaintiff was unable to establish constructive notice.  Because of the absence of evidence of actual or constructive notice, that was fatal to plaintiff’s claim of premises liability.  Hence, the District Court granted summary judgment in favor of the defendant, dismissing the case.

Summary Judgment Dismissal Affirmed Based Upon Storm In Progress Doctrine

Plaintiff Glenn Weidlich slipped and fell outside the front door of his condominium unit due to ice on the landing and fell down the stairs.  He sued the defendants, 313-319 First Street Condo Association Inc. and Clinton Hill Condo Association, among other defendants, claiming that they were negligent due to the unsafe condition of the exterior front stairs of the building.  At the time of his fall, there had been freezing rain.  The issue in Weidlich v. 313-319 First Street Condo Association, Inc., 2025 N.J. Super. Unpub. LEXIS 1366 (App. Div. July 22, 2025) was whether the ongoing storm rule immunized the condo association defendants from negligence for their failure to remove the ice from the stairs or whether one of the two exceptions to the ongoing storm rule applied.

Plaintiff owned and lived in the condominium unit located at 357 8th Street, Jersey City.  On the morning of January 5, 2022, as he stepped outside his front door, he slipped on ice on the landing and fell down the stairs.  Due to his fall, he suffered a torn patella tendon and underwent surgery.

Plaintiff sued the defendants, alleging negligence and premises liability.  He claimed that due to the unsafe condition of the exterior front of the stairs, he was caused to slip and fall on the steps.

At the conclusion of discovery, defendants filed motions for summary judgment, arguing that plaintiff fell solely because of the ongoing freezing rain and icy condition on the landing that morning and that they were immune due to the ongoing storm doctrine. 

The trial court found that plaintiff did slip and fall during an ongoing storm event.  It noted that the ongoing storm rule immunized “commercial landowners from negligence if they fail to remove an accumulation of snow and ice from public walkways during an ongoing storm,” citing to the Supreme Court Pareja v. Princeton International Properties case.  Further, the trial court found that neither exception to the ongoing storm rule was applicable.

This appeal ensued.  Unfortunately, for the plaintiff, the Appellate Division did agree with the trial court decision.

Plaintiff contended that the exceptions to the ongoing storm rule would prevent its application in his case.  He argued that there was a pre-existing dangerous condition of the stairs and that, further, the condition of the stairs was caused by a lack of maintenance and the recent paint job completed on the steps and landing. 

The Appellate Division noted the Supreme Court’s ongoing storm rule which affected the duty commercial landowners had to remove snow and ice accumulations and pathways during a storm.   The rationale of this rule was that “it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing.”  Thus, in Pareja, the Supreme Court held that “absent unusual circumstances, a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.” 

However, the Pareja Court did identify two exceptions to the ongoing storm rule that may impose a duty on a commercial landowner.  Under the first exception, a commercial landowner may be liable if his or her actions increased the risk to pedestrians and invitees on the property by, for example, creating unusual circumstances in which the defendant’s conduct exacerbated and increased the risk of injury to the plaintiff.  Under the second exception, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm.  Under the second exception, a landowner may be liable for an injury during a later ongoing storm if it “failed to remove or reduce a pre-existing risk on the property.”

In this case, neither party argued that the defendants did not have a duty to maintain the stairs outside defendant’s condominium and clear ice and snow for them.  The dispute focused, instead, on whether one of the exceptions to the ongoing storm rule applied. 

The plaintiff argued that defendants’ conduct created and increased the risk by not addressing the deterioration of the surface of the steps which allowed water infiltration and imperceptible freezing to occur over the surface; second, that the wrong paint was used during a recent paint job which, in plaintiff’s opinion, made the steps sleeker and harder to negotiate when wet; and, third, affixing the handrails next to the steps too far from the pedestrian pathway.

The Appellate Division noted that the plaintiff admitted that he never reached any of the steps because he fell on the landing outside his front door that morning due to the icy conditions.  As for the condition of the steps, plaintiff admitted that there had been no precipitation on the days before he slipped and fell but that there was precipitation in the form of freezing rain and snow at the time of his fall.  But, regardless of the condition of the steps, the plaintiff fell on the landing before he reached the steps.  Therefore, the pre-existing condition of the steps did not satisfy any exception to the rule. 

As for the handrails, although plaintiff had an expert on that point, the expert report failed to provide any support for his conclusion that the handrails were too far away from the walking pathway to allow plaintiff to utilize them to stabilize himself or help him regain his balance after slipping on the ice.  The Court found that it was a bare conclusion, not supported by any credible evidence on the record.  Thus, the Court found it to be an inadmissible net opinion.

With respect to plaintiff’s lay opinion that the paint job made the landing more slippery, the Court also rejected that argument as satisfying one of the exceptions to the storm in progress rule. The defendants argued that an expert was needed to explain how the type of paint used made the steps more slippery.   Plaintiff’s expert offered no opinion as to this assertion and the Court found that this conclusion required expert testimony.  The Appellate Division found that, without an expert, the record failed to establish any nexus between the paint job and plaintiff’s fall.

For the above reasons, the Court agreed that the ongoing storm rule applied and none of the exceptions to the rule applied.  Thus, the Appellate Division affirmed the trial court’s summary judgment dismissal of the lawsuit.

Res Ipsa Loquitur Doctrine Found Not to Apply to Plaintiff’s Injury Caused by Falling Showerhead Screen

Plaintiff Abdullah Alhababi was a guest at defendant Caesar’s Hotel when he was injured due to a showerhead screen that suddenly detached and fell on his head.  It caused him to fall and lose consciousness.  The issue in Alhababi v. Caesar’s N.J., Inc., 2025 N.J. Super. Unpub. LEXIS 395 (App. Div. Mar. 14, 2025) was whether the doctrine of res ipsa loquitur should have been applied to afford the plaintiff a permissive inference that his injuries were caused by defendant’s negligence.

On the day before the accident, plaintiff had checked into a 2-bedroom suite at the defendant’s hotel, accompanied by three friends.  Each bedroom had its own adjoining bathroom and the living room also had its own bathroom.  Two of the friends stayed in one bedroom while the other friend stayed in the living room adjoining the two bedrooms.

On the next morning, plaintiff turned on the shower in the bathroom adjacent to the room he was staying in and let the water run as he shaved and brushed his teeth.  He noticed nothing amiss with the water coming out of the showerhead at that time.  He then entered the shower which had two showerheads.  One was on the wall and one was on the ceiling.  He claimed that he did not touch or adjust the one on the ceiling at any time and did not believe he could have done so due to its height.

After he entered the shower, he was washing his face and the screen of the ceiling showerhead came loose, fell and hit him on the right side of his head.  It caused him to lose his balance and fall backward.  He claims that his body hit the bench, causing him to lose consciousness.  He sued the defendant hotel for his injuries suffered as a result of this incident.  He claimed that he was diagnosed with various head and spine injuries.

Plaintiff relied upon the doctrine of res ipsa loquitur, which, if established, would have afforded him a permissive inference that his injuries were caused by defendant’s negligence.  At the close of evidence at the trial, plaintiff asked the trial judge to enter a judgment as to two of the three res ipsa loquitur elements.   The trial judge granted judgment on one of the elements, ruling that plaintiff had not contributed to the occurrence of the incident causing his injuries. 

However, he denied the motion with respect to the other element, declining to rule that defendant maintained exclusive control of the instrumentality that caused plaintiff’s injuries.  Instead, he allowed the jury to make that determination.  After deliberating, the jury returned a verdict for defendant.  Thereafter, plaintiff filed a motion for a judgment notwithstanding the verdict and asked for a new trial, which the trial court denied.

These motions were thereafter appealed to the Appellate Division.  Ultimately, the Appellate Division agreed with the trial court’s rulings and affirmed the trial court’s denial of plaintiff’s motion for a new trial.

The Court explained that the owner of commercial property must exercise reasonable care in ensuring the safety of its invitees.  However, the plaintiff has the burden of proving that the property owner’s negligence caused her injuries.  The Appellate Division explained that “when a plaintiff is unable to allege a defendant’s specific breach of duty, the doctrine of res ipsa loquitur allows the factfinder to draw an inference of negligence against the defendant if they were in exclusive control of the object or means that caused the accident.”

For this doctrine to apply, the factfinder would need to find as follows:

a)    the occurrence itself ordinarily bespeaks negligence;

b)    the instrumentality was within the defendant’s exclusive control; and

c)    there is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

Here, the Appellate Division found that plaintiff was not entitled to the legal conclusion that defendant had exercised exclusive control of the showerhead as a matter of law.  According to the hotel manager’s testimony, 64 guests made 71 reservations for the room in the 9 month period before the incident had occurred.  All of these guests who occupied the subject hotel room had access to the showerhead.

Although the plaintiff’s testimony was that none of his friends used the shower before the incident, that does not establish as a matter of law that the showerhead was “not generally accessible or manipulable by the other guests staying with plaintiff.”  Hence, the Appellate Division agreed with the trial court that “reasonable minds could differ” as to whether plaintiff, his in-room guests or any other previous hotel guest could have manipulated the showerhead in such a way to cause the screen to fall.

Thus, the Court found that the matter was properly submitted to a jury and the jury’s “reasonable minds” did differ from the plaintiff’s presentation, specifically rejecting plaintiff’s contentions that the showerhead was “within the defendant’s exclusive control.”  Accordingly, the doctrine of res ipsa loquitur did not apply to create an inference of negligence against the defendant hotel. 

Further, the Appellate Division agreed with the trial court’s decision that plaintiff did not present sufficient evidence to meet the significant burden to overturn the jury’s verdict.  The Court noted that even if the evidence did establish defendant’s exclusive control, the res ipsa inference is simply permissive and the jury is free to accept or reject it.  Thus, the Appellate Division concluded that the jury’s finding that defendant was not in exclusive control of the showerhead was supported by credible evidence in the record and its verdict was not a “miscarriage of justice.”  Hence, the Court affirmed the trial court’s denial of plaintiff’s motion for a new trial.

Court Dismisses Plaintiff’s Personal Injury Claim Caused by Fall in Pothole Located in Crosswalk

Plaintiff Nelly Reis a/k/a Nelly Gonclaves and her husband filed a lawsuit against the City of Newark for her personal injuries.  She alleged that she tripped and fell in a pothole, a couple of feet outside of a crosswalk, while she was crossing an intersection in the City of Newark.  The issue in Reis v. City of Newark, 2024 N.J. Super. Unpub. LEXIS 3053 (App. Div. Dec. 17, 2024) was whether plaintiff was able to establish that Newark had constructive notice of the pothole and, hence, could be liable for the injuries she suffered due to her fall.

On the date of the accident, Nelly parked her car and walked to her office located on Rome Street.  She parked on the corner of Rome Street and Niagara Street because she could not park on Niagara Street due to street cleaning.  While walking to work, she crossed the intersection of Rome and Niagara outside of the crosswalk.  She tripped and fell in a pothole that was a couple feet outside of the crosswalk and about 100 feet from her office.  As a result of her fall, she suffered injuries.

She testified in her deposition that while she was familiar with the neighborhood, she did not recall seeing the pothole on Rome Street before she fell.  Nelly filed a tort claim notice against the City of Newark and subsequently filed this lawsuit.  She claimed that the large pothole in the roadway created a dangerous condition.

After discovery concluded, Newark filed a motion for summary judgment.  It argued that it lacked actual notice of the pothole before the accident and only became aware of the pothole after it received Nelly’s tort claim notice.  After receiving notice, the City sent a crew to repair it. 

Plaintiff, in opposition to the motion, submitted her own deposition testimony and Affidavits from three coworkers who stated that they were familiar with this pothole and it had existed for a long period of time, many months, prior to her accident.  She also submitted Google Earth images of this intersection which showed the pothole existing before the accident.      

Nevertheless, the motion judge granted Newark’s motion for summary judgment. Plaintiff appealed the decision, arguing that Newark had constructive notice of the pothole and that her complaint should not have been dismissed.

This personal injury claim is governed by the Tort Claims Act, under which plaintiff must prove that the property was in a dangerous condition at the time of the accident, that it proximately caused the injury, the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that either a negligent or wrongful act or omission of the public employee created or knew about the dangerous condition or that it had actual or constructive notice of the dangerous condition.  (N.J.S.A. 59:4-2) Hence, the critical inquiry in this case was whether Newark had constructive notice of the dangerous condition of the pothole. 

The plaintiff argued that there were genuine material facts in dispute and that she should be entitled to present her case to a jury.  The Appellate Division noted that under the Tort Claims Act, a public entity is liable for potholes or depression in the roadway “only when the public entity is on actual or constructive notice of a dangerous condition; and the public entity’s failure to protect against the roadway defect is palpably unreasonable.”  A public entity is only deemed to have constructive notice of the dangerous condition when the plaintiff is able to establish “that the condition had 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.”

Plaintiff argued that she did provide evidence sufficient to prove the existence of the pothole before the accident.  However, the Appellate Division found that there was no evidence in the record that Newark had any notice of the pothole at the time of her fall.  Further, it found that the evidence she submitted fell “short of the competent evidence necessary to show Newark had constructive notice of the pothole.”

The Court noted that simply the admission of Google Earth photographs was not sufficient.  Plaintiff failed to offer any testimony as to whether the images were satellite or real images or when the images were captured and if any of the images were altered.

Thus, the Appellate Division agreed with the trial court decision.  It found no reason to reverse the judge’s conclusion because plaintiff had failed to meet her burden and establish that Newark had or should have had constructive notice of the pothole on Rome Street.  Thus, the summary judgment decision was affirmed.

Plaintiff Permitted to Pursue Personal Injury Claim Against Apartment Owner and Tenant Due to Injury Caused by Deficient Stair Railing

Plaintiff Nicolette Pippis was injured when she slipped and fell while leaving a building owned by defendant PDC, after visiting defendant MKG, a tenant in the building.  She claimed that, as she walked down the stairs, she was holding onto the handrail.  The handrail ended short of a few steps which she claimed caused her to slip and fall.  The issue in Pippis v. PDC 16-20 Hudson Place Realty, LLC, 2024 N.J. Super. Unpub. LEXIS 2108 (App. Div. Sept. 6, 2024) was whether plaintiff had produced sufficient evidence on the issue of proximate causation to have her case presented to a jury.

Plaintiff, who was 9 months pregnant at the time, had been at the building for a prenatal massage at MKG, which was located on the second floor in the building.  As she walked down the steps to leave the building, she fell near the bottom of the steps, breaking her ankle.   She claimed that, as she walked down the stairs, she was holding onto the handrail.  When she got towards the bottom steps, the railing ended and there was no lighting, causing her to miss the step and fall.  She testified in her deposition that she attempted to grab for the handrail, but the railing cut short a few steps.  She denied that she tripped.

Plaintiff presented an opinion from an architectural expert that the handrail for the stairs did not extend over the entire bottom tread and stopped short of the edge of the final step by 2½ inches.  He explained that current building codes would require the handrail for these steps to extend at least 10¼ inches past the bottom step.  He opined that Plaintiff lost her balance and fell at the bottom of the stairway because the handrail was short and she could not grasp it.  He further concluded that the lack of handrail coverage over the entire bottom tread was a dangerous condition that contributed to her accident. 

Following the conclusion of discovery, the defendants filed for a summary judgment.  The trial court entered an order granting the defendants’ motion and dismissed the complaint.  The judge determined that plaintiff was unable to prove proximate causation because there was conflicting information about the cause of her fall. 

Different versions of how the accident happened were in plaintiff’s medical records. The hospital records indicated that plaintiff fell from the fourth step and hurt her ankle, the emergency personnel reported that plaintiff explained that while she was walking down the steps, she tripped and slid down the last four steps.  Last, the triage nurse from the Medical Center commented that she slipped down four stairs.

In the plaintiff’s complaint, she alleged that defendants’ failure to provide adequate lighting and adequate railings caused her to slip and fall down the last 3-4 steps and suffer personal injuries. 

The trial judge found that there was a contradiction between plaintiff’s testimony, the complaint, and her expert as to what caused the accident.  Accordingly, he found that plaintiff was unable to prove proximate causation and dismissed her complaint.

The plaintiff appealed this order for summary judgment, arguing that plaintiff had produced sufficient evidence to present the issue of proximate causation to a jury.  There was also an issue appealed concerning spoliation of evidence because the surveillance video of the accident was not preserved.  However, that issue did not factor into the Appellate Division’s issue on appeal as to whether the summary judgment should have been granted.

The Appellate Division noted that the question of proximate cause “asks whether the actual harm suffered was a reasonable consequence of the defendant’s actual act or omission.”  It would suffice if it is a substantial contributing factor to the harm suffered.  The Appellate Division further noted that proximate cause is “generally a question for the jury.” 

The Court disagreed with the trial court judge’s finding that proximate cause was lacking.  The Appellate Division found that “a reasonable jury could find that additional railing at the end of plaintiff’s fall path could have helped plaintiff prevent or mitigate her injuries.”   Further, the Appellate Division found that “[b]ecause the absence of any railing at the end of the staircase may have contributed to plaintiff’s injuries, the issue of proximate causation should have been left to a jury.”  Hence the Court reversed the trial court judge’s ruling and remanded the matter back for further proceedings. 

Plaintiff’s Negligence Claim Against Casino Security Guard Dismissed Due to Failure to Retain Expert

Plaintiff John Coxe sued Harrah’s, claiming that he suffered injuries as a result of being improperly detained by Harrah’s security team.  He and his girlfriend, Valerie Kloepping, were in the pool area at Harrah’s when his credentials could not be located.  Although they were later located, Plaintiff became belligerent. Eventually, security had to physically restrain and remove him from the pool area.  The issue in Coxe v. Caesars Ent. Corp., 2024 N.J. Super. Unpub. LEXIS 2061 (App. Div. Aug. 29, 2024) was whether the trial court properly dismissed the plaintiff’s negligence claim against Harrah’s due to his failure to retain an expert to establish the standard of care for Harrah’s security guards. 

Plaintiff was a regular patron of Harrah’s for many years.  On the day of their visit, Coxe and his girlfriend went to the resort pool at around 3:00 p.m.  He gave his credentials, which included his driver’s license, room key and Harrah’s reward card, to the bartender to start a tab.  After being at the bar for six hours and consuming many beers, he attempted to close his tab.  The bartender advised plaintiff that his credentials could not be located.  Plaintiff became irate, in part because about one month earlier an unknown person had accessed his hotel room and stole his money.  He was concerned that he had been robbed again, and demanded to speak with a resort supervisor or police.

A Harrah’s security guard responded to the pool area and found plaintiff yelling at the pool manager for 5-10 minutes.  Plaintiff was described as “belligerent, clearly intoxicated and aggressive.”  Security attempted to de-escalate the situation which failed.  Eventually, Coxe’s credentials were located, and they were returned.  However, Coxe did not calm down and Harrah’s security repeatedly asked him to leave the pool now that his credentials had been returned.   Coxe refused and instead continued to argue with the bar staff. 

Harrah’s security guards had to physically restrain him to remove him from the pool area.  They placed him face down on the ground and handcuffed him.  They dragged him to the exit, which friction caused his swimsuit to slip down.  His swimsuit was adjusted, and he was escorted to Harrah’s holding cells.  He was detained there until Atlantic City police responded, at which time he was released and taken to the hospital. 

Coxe then filed suit against Harrah’s under theories of negligence, assault, false arrest and malicious prosecution.   The defendant filed for a summary judgment, which was granted as to the malicious prosecution claim.  The remaining claims proceeded to trial.  At the close of the evidence, but before the jury began to deliberate, Harrah’s moved for a directed verdict as to plaintiff’s negligence claim.  The trial court granted the motion, dismissing the negligence claim.  On the remaining claims of assault and false imprisonment, the jury returned a verdict for defendant and found no cause of action. 

This appeal ensued.  Plaintiff claimed that the trial court should not have granted defendant’s directed verdict motion as to the negligence claim.  Coxe claimed that one of the security guards testified about putting him in an escort hold and Coxe argued that this testimony was inconsistent with de-escalation or reasonable behavior by security. 

However, the Appellate Division found that the trial court did properly grant defendant’s motion.  The Court noted that plaintiff failed to introduce evidence which established a standard of care for Harrah’s security guards.  Further, the Appellate Division noted that there was “no evidence presented at trial from which a jury could infer how a reasonable security guard would act under the circumstances.”

The Court found that there would be no basis for a jury to find that the act of approaching a disorderly patron to remove that person from the premise was negligent conduct.  Further, the Appellate Division pointed out that the plaintiff’s argument that this security guard was unnecessarily aggressive was undermined by his further testimony that his attempted de-escalation had been futile and that plaintiff was intoxicated, belligerent and aggressive and had repeatedly refused requests to leave.

Finally, the Appellate Division rejected the plaintiff’s argument that an expert was not necessary to establish the standard of care because the circumstances in this case are within the ken of the average juror.  The Court rejected that argument and noted that the trial court had previously advised the plaintiff that he may wish to retain an expert to establish the standard of care.  Further, the trial court had advised plaintiff that he was not precluded from questioning the defendant about their policies and their conformance therewith, but the trial court judge did advise the plaintiff that he thought he would need an expert to establish the existence of a duty. 

Thus, the trial court did give plaintiff an opportunity to prove negligence without an expert. However, the plaintiff was unable to establish a duty based upon the testimony at trial.  Therefore, the Appellate Division found that the trial court’s grant of a directed verdict was proper and affirmed the trial court decision, dismissing the negligence claim. 

Plaintiff’s Personal Injury Claim Dismissed Due to Lack of Expert Report As to Causation

The decedent Alice Trainor fell while attending the defendant’s adult day health care services.  The 89-year-old Alice fell while walking towards the bathroom at the defendant’s facility, suffered injuries, and ultimately passed away.  The issue in Estate of Alice Trainor v. Active Day of Brick, 2024 N.J. Super. Unpub. LEXIS 552 (App. Div. Apr. 3, 2024) was whether the plaintiff was required to provide expert testimony as to the causation of Alice’s injuries to be able to pursue a claim for personal injuries.

The decedent, Alice Trainor, with vascular dementia, was attending adult day health care services at defendant’s Active Day of Brick’s facility.  She began walking towards the bathroom at the facility when another participant in the program attempted to help her.  However, defendant’s activities manager, Kellie Piaskowski, intervened and proceeded to assist Alice towards the bathroom.  She was attempting to guide her there.  Alice was shuffling her feet somewhat and tripped over her feet.  Alice fell flat down to the floor and banged her face.  She was taken by ambulance and treated for her injuries.  A few weeks later, she was found unresponsive, and her condition deteriorated.  She ultimately passed away within two months after the incident.

Her Estate filed a lawsuit against the facility, arguing that the defendant facility had a duty to provide Alice with a safe environment but failed to do so.  The defendant moved for a summary judgment, arguing that the plaintiff’s claims failed because plaintiff did not have a medical expert to support plaintiff’s case.  The trial judge agreed with that argument, finding that plaintiffs had not provided an expert medical opinion asserting a causal relationship between the alleged negligence and the injuries Alice suffered. The judge granted the motion, dismissing the case and this appeal ensued.

Plaintiffs argued that there was a State mandated ratio of 9-1 (patient to staff ratio) and that Medicaid required a ratio of 5-1.  However, the defendant maintained a 30-1 ratio of patients to staff.  Plaintiffs argued that, because of the extreme imbalance between patients and caregivers, the finder of fact could rely on the theory of res ipsa loquitur to infer defendant’s lack of due care and, hence, negligence.  The trial judge had rejected this theory, stating that “under any stretch of the imagination,” this was not a res ipsa loquitor case.

Plaintiffs argued upon appeal that the medical causation was not in question and the jury does not need an expert to determine whether defendants’ 30-1 patient to staff ratio was a gross deviation from the standard of care.  The Appellate Division rejected that argument.

The Appellate Division noted that the doctrine of res ipsa loquitur, if applied, would allow a finder of fact “to infer with the defendant’s lack of due care only when three elements of the doctrine had been satisfied:

a)         The occurrence itself ordinarily speaks negligence;

b)         The instrumentality was within the defendant’s exclusive control; and

c)         There is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

The Court noted that to satisfy this res ipsa loquitur standard, “plaintiffs would need to demonstrate that an 89-year-old falling while being assisted by a caregiver ‘itself ordinarily bespeaks negligence’; the environment was in ‘defendant’s exclusive control’; and ‘there was no indication in the circumstances that the injury was the result of [Alice]’s own voluntary act or neglect.’”  The Appellate Division found that the plaintiff was not able to satisfy any of these elements. 

Further, the Court explained that res ipsa loquitur only fills in a gap in plaintiff’s negligence claim with the respect to a breach of duty of care and not as to the causal relationship between a breach and the injury suffered.  The causal relationship is what the trial judge found was missing.  The Appellate Division noted that the jury would have no means of judging whether defendant’s purported short staffing or the staff member who helped Alice was the proximate cause of Alice’s injuries.

The appeals court agreed with the trial court’s conclusion that “a lay jury is insufficiently knowledgeable of the specifics of elder care and assistance to competently determine whether any purported short-staffing or Piaskowski’s helping Alice to the bathroom was the cause of Alice’s injuries.”  Thus, the Appellate Division affirmed the trial judge’s decision that, lacking expert testimony to that effect, the defendant must prevail as a matter of law. 

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