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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. 

Plaintiff’s Personal Injury Lawsuit Dismissed Due to Her Failure to Identify the Condition That Caused Her Accident

Plaintiff Artherine Price was at the Quaker Bridge Mall on May 10, 2018, when she twisted her ankle in the parking lot of the Mall.  She claims that she fell in the crosswalk while walking from her parked car to enter the store and sued the Mall defendants for her injuries.  The issue in Price v. Quaker Bridge Mall, LLC., 2024 N.J. Super. Unpub. LEXIS 591 (App. Div. April 10, 2024) was whether the plaintiff’s claim should be dismissed due to her failure to identify the exact cause of her injury.

Plaintiff testified that her ankle twisted, and she almost fell as she was in the crosswalk.  She could not identify the exact location of where the incident occurred within the crosswalk.  She also testified that she never saw anything in the crosswalk, before or after the incident that caused her to twist her ankle.  Even after the incident, when she returned to the crosswalk with the security guard, she was unable to point to the specific spot where the incident occurred.  The best she could state was that the incident occurred in an area where the pavement was cracked.  Hence, she believed that the cracked or broken pavement caused her to twist her ankle.

The Mall defendants filed for a summary judgment dismissal based upon the plaintiff’s deposition testimony.  The trial court judge found that there was no dispute that plaintiff was injured in the Mall’s parking lot.  However, the issue was that plaintiff could not establish causation.  Even when she went to the location a few days later and took photographs, she was unable to identify any particular cause.  Because the mere happening of an accident was insufficient to establish negligence, the trial court judge granted defendants’ summary judgment motion.

The plaintiff appealed that decision to the Appellate Division.

Upon appeal, Plaintiff acknowledged that her deposition testimony had inconsistencies regarding causation and that a jury could conclude at trial that such inconsistencies adversely affected her credibility.  Plaintiff argued that they did not provide a basis for the trial court judge to disregard her testimony and grant defendant’s summary judgment.

The Appellate Division noted that proximate causation is a basic element of tort law.  The court stated that “[to] establish causation a plaintiff must prove the defendant’s act or omission was both the factual and proximate cause of his or her injury.”  It would be the factual cause if, but for the event, the injury probably would not have happened.

Here, the Appellate Division was convinced that defendants were entitled to a judgment as a matter of law.  The Court noted “that [t]he judge’s factual findings were supported by substantial evidence in the record and reveal there is no dispute of fact regarding causation.”  The Court further pointed out that plaintiff was unable to establish that “but for” defendants’ actions or omission she would not have twisted her ankle because she cannot establish what condition caused her to twist her ankle. 

Accordingly, the Appellate Division found that she failed to make a showing sufficient to establish causation, which is an essential element of her case.  Therefore, the Court agreed that defendants were entitled to summary judgment and affirmed the trial court decision, dismissing her lawsuit. 

Plaintiff’s Injury Claim Against Municipality Caused by Stepping Into Pothole Fails Due to Lack of Notice of Condition

Plaintiff Reginald Jones was injured when he was attempting to cross in the middle of Isabella Avenue in Irvington.  While stepping off the curb, his foot became stuck in a hole in the street adjacent to the curb.  It caused him to fall and suffer injuries.  The issue in Jones v. Township of Irvington, 2024 N.J. Super. Unpub. LEXIS 176 (App. Div. Feb. 6, 2024) was whether he could pursue a claim against the Township for its failure to remediate the pothole. 

Personal injury claims against public entities are governed by the Tort Claims Act.  To be able to sue a public entity for tort liability for injuries caused by that entity’s property, under N.J.S.A. 59:4-2, the plaintiff must establish the property was in a dangerous condition at the time of the injury and that the condition was either created by an employee of the public entity or the public entity had actual or constructive notice of the condition. However, even if the plaintiff is able to present those proofs, the public entity would not be liable for the dangerous condition of its property “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

There were two issues in this case.  First, the issue was whether the plaintiff had sufficiently established that there was a dangerous condition of the Township’s property at the time of his accident.  Second, the issue was whether the Township had notice that the property was in a hazardous condition.

While the parties conducted discovery, there were no depositions taken and there were no experts retained.  The only evidence of the pothole were 11 photographs of the roadway produced by the plaintiff.  The photographs showed a hole which was surrounded by vegetation growth, cracked, and filled with garbage and vegetation.  According to the plaintiff, the hole measured about 19 inches long, 19 inches wide, and 16 inches deep.

Once discovery concluded, the Township filed for a summary judgment.  It argued that the plaintiff had failed to state a claim that the plaintiff’s injuries were caused by a dangerous condition of its property.  Plaintiff opposed that motion, arguing that the Township had constructive notice of the ‘“large sinkhole.’”

The trial court judge granted the motion for summary judgment.  The judge ruled that plaintiff had failed to present any competent evidence other than speculation and legal conclusion to prove that the hole was in a dangerous condition.  The trial court judge noted that the only evidence in support of the condition of the property were the photographs attached to plaintiff’s answers to interrogatories which were not glossy color photos, nor were they provided with any certification stating who took the photos and when they were taken. Further, the plaintiff failed to prove that the Township had notice of the condition.

Plaintiff filed a motion for reconsideration, which was denied, again on the same basis due to the plaintiff’s failure to prove the Township had prior notice of the condition or had adequate proofs as to its actual condition.  The plaintiff appealed this decision to the Appellate Division.

The Appellate Division found that the trial court correctly ruled that plaintiff had failed to establish liability under the Tort Claims Act due to lack of evidence that the Township either caused the hole in the street or had actual or constructive notice of the hole. In support of the notice argument, plaintiff cited to a Township Public Works website that street sweepers were on Isabella Avenue twice a week.  However, the Court found this information insufficient to show that the Township had constructive notice of the hole. 

The Court also found that plaintiff had failed to offer any expert testimony or proofs showing that there were any reports about the hole which could have established that the Township had actual notice thereof.  Last, the Appellate Division found that the plaintiff had failed to submit any proofs that the Township acted in a “palpably unreasonable manner.”  The Appellate Division agreed with the trial court that the plaintiff’s claim was based on nothing more than ‘“mere speculation.’”

The appeals court also agreed with the trial court that the photographs themselves were insufficient competent evidence due to the lack of foundation as to these photographs.  The plaintiff had failed to offer any competent testimony “concerning the measurements of the hole, who took the photographs, when they were taken, and if they were altered.” 

Hence, the Appellate Division agreed that plaintiff failed to meet his burden under the Tort Claims Act to “establish that the Township had or could have had actual or constructive notice of the hole in the middle of Isabella Avenue.”  Therefore, the Court affirmed the trial court decision, dismissing the lawsuit. 

Plaintiff Unable to Recover for Negligent Infliction of Emotional Distress Suffered in Finding Body of Murdered Friend in Their Hotel Room

This case involved an emotional distress claim filed by plaintiff Richard Sperazza in waking up to find the body of his murdered friend and co-worker in the hotel room they were sharing during a work assignment.  Plaintiff and his deceased friend and co-worker were sharing a hotel room during an out of town work assignment.  The issue in Strayer v. Wingate at Wyndham, 2024 N.J. Super. Unpub. LEXIS 90 (App. Div. Jan. 19, 2024) was whether the plaintiff had a claim for a negligent infliction of emotional distress against the defendant Wingate at Wyndham for the emotional harm he suffered on waking up to find the body of his murdered friend and co-worker in their hotel room.

Plaintiff Sperazza had been employed by Osmose Utilities Services, Inc. as a technician who worked with his friend and roommate, Ivan Scott Strayer.  Plaintiff, Strayer, and other utility workers were assigned to work crews which travelled to various locations around the country and lived together in hotels while on assignment.  Plaintiff and Strayer had been hotel roommates on other work assignments and also socialized frequently outside of work.  Plaintiff was the best man at Strayer’s wedding and plaintiff considered Strayer family and attended his family functions.

Plaintiff and other members of the Osmose work crew had been staying at the Wingate Hotel in Vineland.  The crew consisted of five crew members including plaintiff, Strayer and two brothers, Charles Pulcine and his brother Larry Pulcine, and the crew leader, Mark Knowles.  Larry Pulcine had recently joined the crew.  Knowles made the hotel reservations and advised the front desk clerk who was staying in which room.  The crew members were assigned to three rooms in which plaintiff and Strayer were assigned to Room 404, the Pulcine brothers were assigned to Room 405 and Knowles was assigned to Room 406.

On the evening of the murder, plaintiff ate at a restaurant located in front of the hotel.  Strayer eventually met him at the restaurant but returned to the hotel room.  When plaintiff returned later to their hotel room around 10:00, he observed the television was on and Strayer appeared to be sleeping.  Thereafter, he received a text message from Chuck Pulcine, inviting him to hang out and drink some beers in his room.  At about 10:05 p.m., plaintiff went to Pulcine’s room, although he briefly returned to his room to grab a few beers while Strayer stayed in their hotel room.  He then returned to the Pulcines’ room where he stayed until about 11:30 p.m.

While plaintiff was in the Pulcines’ room, Larry had left for about 30 minutes, stating he was going to do laundry and when he returned, Larry was “shooting his mouth off.” Therefore, plaintiff returned to his hotel room and went to sleep.

When plaintiff woke up around 5:00 to 5:15 a.m. and Strayer was still in bed, plaintiff went over to look at him.  He noticed that “his eyes were open” but “nothing really going on.”  He grabbed his foot which was ice cold, checked his pulse twice and panicked and ran out of the room.  He felt shock at finding his friend’s body and feared for his own safety.  He later learned that Strayer had been shot with a handgun.  However, plaintiff did not witness the murder and did not encounter the murderer in his hotel room and, further, was not physically harmed himself.

It was later learned that Larry had obtained a key card from the front desk to the plaintiff’s room and shot Strayer sometime between 10:30 and 11:30 p.m. while plaintiff was across the hall in the Pulcines’ hotel room. 

Strayer’s wife brought a wrongful death and survivorship action against the defendant hotel, among other defendants.  Plaintiff brought a separate action for negligent infliction of emotional distress for discovering the body of his murdered friend.

Plaintiff obtained a hotel management operations expert who opined that the Wingate Hotel “was aware of its safety obligations and deviated from the industry standard of care that created a foreseeable risk of harm to the hotel’s guests.”  Further, the expert opined that “Larry’s criminal acts were the type of criminal activity that adequate safety and security measures are intended to prevent and were, therefore foreseeable.”  According to the expert, the failure to identify or properly register the Osmose crew was inconsistent with proper keycard control “and resulted in a foreseeable risk of harm to guests.”  The expert opined “that the implementation and enforcement of a proper keycard controlled protocol system could have prevented Larry’s unauthorized entry into plaintiff’s and Strayer’s room.”

At the trial court level, the defendants moved for a summary judgment, which was granted.  The trial court judge found that plaintiff had failed to demonstrate that defendant hotel’s actions proximately caused plaintiff’s emotional injuries.  He found that the injuries were not based upon the handing of a keycard and that neither defendants nor their employees caused any of the emotional distress being suffered by plaintiff.  While acknowledging that defendant’s employee should not have given the keycard to Larry Pulcine, he noted that the crew members were all friends and he had seen them together and it was not as if he was giving a keycard to a stranger.

This appeal ensued.  Plaintiff argued that the trial court made a mistake in granting defendant’s summary judgment because he has a direct claim for negligent infliction of emotional distress based upon defendants’ breach of duty it owed directly to him.  Plaintiff relied on the case of Falzone v. Busch, 45 N.J. 559 (1965) in support of his claim for emotional distress.  The Appellate Division rejected this argument.

For a plaintiff to recover for emotional distress for witnessing harm suffered by others, the individual must be able to allege that they were “fearful of immediate injury.”  The Appellate Division found that, under these facts, the plaintiff had failed to demonstrate a reasonable fear of immediate personal injury.  While he may have felt fear when he discovered his roommate’s dead body, there was no evidence in the record that he had a “reasonable fear of immediate personal injury.”  To the contrary, plaintiff did not even realize at the time that Strayer had been murdered and he thought that Strayer had died from natural causes.  He did not encounter the murderer in his hotel room and was not present when Strayer was murdered.  Because of his failure to present any evidence that he suffered a reasonable fear of personal injury, the Appellate Division found that the plaintiff was unable to establish a claim for negligent infliction of emotional distress.  Hence, it upheld the trial court decision, granting summary judgment and dismissing the case.

How Is Comparative Negligence Law Applied Under New Jersey Law?

Under New Jersey law, N.J.S.A. 2A:15-5.1 (the Comparative Negligence Act), for a lawsuit based upon negligence claims, juries are allowed to apportion fault for an accident to multiple parties and assign liability in terms of a percentage of fault to each party. What happens if a plaintiff is assessed a percentage of fault for the accident? As long as a plaintiff is not determined to be more than 50% at fault, the plaintiff can recover damages for their injuries but at a reduced amount based upon their percentage of fault.

If the jury determines that both the defendant (or defendants) as well as the plaintiff, are liable for the accident, it must assess each party’s responsibility, which has to add up to 100%. (N.J.S.A. 2A:15-2). If a plaintiff is determined to be no more than 50% at fault, any monetary award made by a jury in favor of the plaintiff would be reduced by that percentage assessed against the plaintiff.  As an example, if the jury found that both the plaintiff and the defendant were each 50% liable and awarded the plaintiff $100,000 in damages, the verdict would be molded so that the plaintiff’s net recovery would be $50,000. Using this same example, however, if the plaintiff is assessed to be 51% negligent, the plaintiff would recover $0 in damages.

So what happens if there is more than one defendant and each defendant is assessed a portion of fault? From whom can the plaintiff collect? Under N.J.S.A. 2A:15-3, a plaintiff can only recover the percent damage award assessed against that defendant – unless the defendant is found to be at least 60% at fault. Using my example above, if there are two defendants (and assuming no comparative negligence is assessed against the plaintiff) and each defendant is found to be 50% responsible for the accident, then the plaintiff can only recover 50% of the award from each defendant ($50,000 each). However, if liability is assessed 60% against one of defendant and 40% against the other defendant, then the plaintiff can proceed to collect the entire $100,000 award against the defendant who was found to be 60% negligent.

There is an exception to this rule for public entities (i.e., municipalities, counties, public boards, and the State). Negligence claims against public entities are governed by the New Jersey Tort Claims Act (N.J.S.A. 59:1, et seq.) According to N.J.S.A. 59:9-3.1, public entities shall be liable for no more than their share of damages equal to the percentage of the negligence attributable to that entity. Hence, regardless of the percentage of liability assessed against a public entity for negligence in causing or contributing to an accident, a plaintiff is limited to collecting only that percentage of fault assessed against that entity.

Now what happens when a plaintiff does collect the whole award from one defendant because one of the defendants is found to be at least 60%? That’s when contribution rights can kick in. With the filing of their answer, defendants can assert a cross-claim for contribution and/or indemnification pursuant to Rule 4:7-5. Actually, defendants have 90 days after service upon the complaint upon them or upon the party against whom the cross-claim is asserted, whichever is later, to file a cross-claim against that defendant. After that time period, the defendant would have to file a motion and ask the court for permission to file the cross-claim. If a defendant does end up paying more than its “share,” it can try to pursue the co-defendant for that defendant’s percentage of fault assessed against the co-defendant.

Newark Police Officers Immune from Tort Liability for Injuries that Occurred During a Vehicle Pursuit

By: Ruhani K. Aulakh, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Priscilla Godoy was standing in between two parked cars in a line of several cars on May 5, 2018.  As she was standing in between these cars, a Jeep Cherokee involved in a police chase crashed into a parked car several feet away from Godoy.  The crash caused all the parked cars to collide, crushing Godoy.  As a result of this collision, Godoy sustained fatal injuries.  The issues in Godoy v. Washington, 2023 N.J. Super. Unpub. LEXIS 1170 (App. Div. July 13, 2023) were whether the police officers pursuing the Cherokee were negligent and reckless in their pursuit and whether the police officers engaged in willful misconduct in the apprehension of the Cherokee.

On May 5, 2018, defendant police officers Paul Hamilton and Vanessa Lorenzo were on duty in Newark.  The officers spotted a Jeep Cherokee that was stolen during an armed carjacking earlier that night for which the Newark Police Department had issued a Be on the Lookout Order (“BOLO”).  Hamilton and Lorenzo attempted to stop the car; however, the Cherokee did not stop, so the defendants began a pursuit with Hamilton driving. 

During the pursuit, the police officer’s vehicle traveled at around forty-five miles per hour, while the Cherokee traveled at approximately fifty-five miles per hour.  The pursuit was monitored by a Communications Division Officer and a field supervisor; however, officers Hamilton and Lorenzo did not inform their supervisor of the speed of the Cherokee.

The pursuit lasted approximately ninety-five seconds.  After sixty seconds, the driver of the Cherokee veered off road into a park where the driver went over a speed bump and lost control of the vehicle.  This caused a chain reaction which involved three additional vehicles, pinning Godoy between two of these vehicles.  After Godoy was injured, the driver of the Cherokee fled the scene, but officers Hamilton and Lorenzo did not pursue him.

Godoy’s estate filed suit against the two defendant police officers, arguing that the defendants were negligent and reckless in their pursuit of the Cherokee.  Further, the plaintiff argued that the defendants acted with willful misconduct in not complying with policies while continuing the pursuit.

In deciding to pursue the Cherokee, the defendants were governed by procedures set forth both in the Newark Police Division General Order and the New Jersey Attorney General’s Policy.  Both policies authorize officers to pursue a vehicle when they reasonably believe that a violator has committed an offense and they believe that violator poses an immediate threat to the safety of the public.  Once the officers choose to pursue the vehicle, they must immediately notify the Communications Division of pertinent information, such as the reason for the pursuit, the direction of travel, identifying factors of the vehicle, and the speed of the pursued vehicle. 

The plaintiff conceded that the defendants were justified in their pursuit of the vehicle; however, the plaintiff argued that the officers were in violation of policy when they did not report the speed of the pursued vehicle.  The defendant police officers moved for summary judgment, claiming that under the Tort Claims Act, they were immune from liability.  The trial court granted summary judgment on all counts, holding that the defendants were immune from liability unless there was evidence of willful misconduct.  The lower court further reasoned that there was no evidence of willful misconduct because reporting the speed of the pursued vehicle was not a requirement; rather, it was up to the discretion of the police officers.

On appeal, the plaintiff argued that the trial court erred in granting summary judgment because the plaintiff presented sufficient evidence of the defendants’ willful misconduct.  The plaintiff further argued that the trial court erred in determining that the defendants were entitled to summary judgment based on good faith immunity.

In affirming the lower court’s decision, the Appellate Division first analyzed good faith immunity.  The court upheld that the officers were immunized, looking to state Supreme Court precedent from Tice v. Cramer, 133 N.J. 347, 367 (1993).  There, the Court held that N.J.S.A. 59:5-2 immunizes absolutely all negligence of a public employee when the negligence, combined with the conduct of the escaping person, leads to injury.  The Court set forth a narrow exception in that decision, holding that immunity does not exonerate a public officer from liability if their conduct was outside of the scope of employment or constituted willful misconduct.

To determine whether the narrow willful misconduct exception applied in this case, the Appellate Division again looked to state Supreme Court precedent in Fielder v. Stonack, 141 N.J. 101, 123-30 (1995), which defined willful misconduct in the context of a police pursuit.  There, the Court established a two part test for willful misconduct which required that the public employee disobey a specific lawful command or standing order and that the public employee intended to violate it.

Here, the Appellate Division applied the Fielder test and held that in order for the plaintiff to establish willful misconduct, the plaintiff must have demonstrated that the defendants disobeyed a standing order that required them to report the speed of the Cherokee to Communications and that the defendants knew of the standing order, knew that they were violating it, and intended to violate it.  The Court held that because there was no standing order requiring the defendant officers to report the speed of the Cherokee, there was no willful misconduct on their behalf.  Thus, the Appellate Division affirmed the lower court’s decision to grant the defendants’ motion for summary judgment.

Appellate Division Finds that “Dirty” Substance on Floor Does Not Constitute Constructive Notice for Slip and Fall in Pharmacy

By: Eric Richwine, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Plaintiff Michael Racine slipped and fell while walking inside defendant Rite Aid’s Irvington, New Jersey, store.  He suffered a fractured left tibia, resulting in him filing a complaint against the defendant, in which he alleged negligent maintenance of and failure to conduct reasonable inspections of the premises.  The trial judge had granted summary judgment to the defendant on the basis that the plaintiff failed to demonstrate that the defendant had actual or constructive notice of any “dangerous condition” on the premises.  The issue on appeal in Racine v. Rite Aid Pharmacy, 2023 N.J. Super. Unpub. LEXIS 959 (App. Div. June 14, 2023) was whether constructive notice can be inferred by the presence of dirt in a condition.

Plaintiff testified that he had not noticed anything on the floor as he entered the store looking to purchase hair gel, which was on a shelf close to the entrance.  He reported that he soon after fell, and after which, he noticed a “dark greasy spot” on the floor which he believed to be a mixture of dirt with either hair gel or grease.

On appeal, the plaintiff contended that the trial judge “drew all inferences against plaintiff rather than the reverse” and that he sufficiently established that defendant had “constructive notice of the condition that caused [plaintiff] to slip.”  The Appellate Division first considered whether the plaintiff was relieved of the burden to prove constructive notice via the mode of operation exception, i.e., by demonstrating that the dirty substance here was likely to occur as the result of the nature of Rite Aid’s business.  The Court quickly determined that this was not the case.

The Appellate Division then turned to whether or not a jury could find that defendant had constructive notice of a dangerous condition.  Plaintiff contended that, because “the substance appeared dirty,” the factfinder could logically infer that “the substance had been on the floor for a significant time.”  Plaintiff supported this argument by citing the Court’s decision in Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507 (App. Div. 1957), in which a plaintiff slipped and fell just inside an entrance of a store on an “all wet” and “all dirt” floor, which the Court declared was sufficient to put the defendant store on constructive notice.  

However, the Appellate Division distinguished the facts in Parmenter to those before the Court here; namely, the dirty, wet floor in the defendant store of Parmenter was the result of an all-morning rainstorm that was continuously tracking in dirt and rain into the store upon the opening and closing of its doors.

Here, there was no such storm.  The Court emphasized that, unlike in Parmenter, the plaintiff here could not identify the cause or duration of the “dangerous condition” of the dirty substance on the floor of the store.  Further, the Court rejected the contention that the presence of “dirt” permitted a speculative inference that the substance had been on the floor for an adequate period of time as to place the defendant on constructive notice.

As such, the Appellate Division found that the plaintiff failed to meet his burden of demonstrating that defendant was put on constructive notice of the dirty substance on its store’s floor, nor was he able to successfully argue that a jury could infer such. Therefore, the Court affirmed the trial judge’s granting of defendant’s motion for summary judgment.

Mode of Operation Found to Apply to Accident Caused by Brown Substance on Floor of Bagel Store

Plaintiff, Samira Aly, was a customer at defendant A&H Bagels.  While walking to throw out her trash, she fell and suffered a serious injury.  Both deposition and video surveillance footage showed a brown substance on the floor near where she fell.  The issue in Aly v. A&H Bagels & Deli, Inc., 2023 N.J. Super. Unpub. LEXIS 695 (App. Div. May 8, 2023) was whether the trial judge made a mistake in refusing to charge the “mode of operation” standard in considering the summary judgment motion filed by the defendant A&H. 

Unfortunately, both the incident report and a log of inspections to the premises was lost in a subsequent fire.  However, Aly’s fall on the brown substance was documented through A&H Bagels’ surveillance footage but the footage was taken into police custody after the fire and never viewed by Aly.

At the trial court level, the defendant A&H filed a motion for a summary judgment dismissal, which was granted.  Plaintiff Aly appealed, arguing that the trial court failed to apply the appropriate “mode of operation” standard and, even absent the applicability of the mode of operation standard, the plaintiff argued that A&H Bagels should have had constructive notice of the brown substance on the floor near the trash receptacle.

While in a typical premises liability case, a plaintiff must prove that the defendant had notice of the alleged dangerous condition that caused the accident, when the mode of operation rule applies, it creates an inference of negligence and the burden shifts to the defendant to negate the inference by submitting evidence of due care.  When this doctrine applies, it relieves the plaintiff of proving that the defendant had actual or constructive notice of the dangerous condition.  Instead, it requires a defendant to show that it did “all that a reasonably prudent man would do in light of the risk of injury the mode of operation entailed.”

The Appellate Division disagreed with the trial court’s failure to apply the mode of operation standard and found that it should have been applied.  The Court noted that “[l]ike the businesses previously found to have created the hazard by their self-service nature, A&H Bagel’s format requires courts to contemplate its duty through a mode of operation standard as well.”  Further, the Appellate Division found that the trial court failed to adhere to the summary judgment standard of giving all reasonable inferences to the plaintiff when it granted A&H Bagel’s motion.

The Court noted that the customers at the bagel shop purchased sandwiches, coffee in cups, and juices in closed containers at the counter and then carry their food and beverages to their seats to eat before disposing of their trash in the receptacle.  The customers wait on themselves after being served at a counter.  The Appellate Division noted that “this is exactly the situation where the burden should shift to the defendant to show that they acted reasonably considering this specific business format.”  Further, the Court held that “[t]he dangerous condition caused by the brown substance near the trash receptacle was a foreseeable risk posed by the bagel shop’s mode of operation.”  Hence, the Appeals Court found that the mode of operation rule did apply to this scenario.

The Appellate Division further reversed the trial court’s ruling that, even if the mode of operation rule did apply to this setting, A&H Bagels had met its burden because “they did all that a reasonably prudent shop would do considering the risk of injury the mode of operation entailed.”  The Appellate Division found that the trial court improperly concluded that A&H Bagels took all reasonable actions.  The Court found that there were genuine issues of material fact that only a jury could decide.  It was disputed exactly how much of the brown substance was on the floor, whether the brown substance caused the fall and also how soon before the fall were their inspections and garbage changes.  It should have been up to the jury to decipher whether defendant acted reasonably no matter whose burden it becomes to prove that.

Therefore, the Appellate Division reversed the trial court’s summary judgment dismissal.  It found that the mode of operation standard should have been applied.  Further, assuming it is applied, the jury must decide whether the defendant acted reasonably based upon its “mode of operation” to protect its invitees from the alleged dangerous condition, i.e., the brown substance on the floor. 

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