Negligence

In a published decision, the Appellate Division considered appeals from two cases involving motor vehicle accidents that occurred about one year apart at about the same location under similar circumstances.  In both cases, a driver traveling westbound on Route 322 in Folsom, New Jersey made an illegal left turn in the direction of one of two driveway entrances to a Wawa and struck a motorcycle traveling eastbound on the highway.  The issue in Buddy v. Knapp, 2021 N.J. Super. LEXIS 111 (App. Div. Aug. 17, 2021) was whether Wawa, as the operator of the convenience store in which the motor vehicles were attempting to turn, and the State of New Jersey, which owned the highway and the land on which the driveway entrances were situated could be found negligent for these two motor vehicle accidents.

In the first accident, the motorcycle driver was killed and his wife, a passenger, was seriously injured.  In the second accident, the motorcycle driver was seriously injured.  In both cases, the injured parties and the Estate of the decedent sued the Wawa, as the owner of the store, and the State of New Jersey, as the owner of the highway and land on which the store’s driveway entrances were situated.

Wawa owned and operated the convenience store on Route 322, also known as the Black Horse Pike, in Folsom at the intersection of Cains Mill Road.  That intersection was controlled by a traffic light.  At the location of the store, Route 322 is a four lane State highway, with two eastbound and two westbound lanes which are separated by two sets of solid double yellow lines.

The store was located on the eastbound side of the highway and was east of the intersection.  The store had two driveway entrances into its lot on the eastbound side of the highway.  It was illegal for the westbound vehicles to make a left turn and cross the double yellow lines and the eastbound lanes to access Wawa’s driveways.

On the other side of the highway, a vehicle traveling westbound would encounter the entrance to a jug handle.  That jug handle would allow vehicles to access the Cains Mill Road intersection with Route 322 and, when the light permitted, to cross Route 322, turn eastbound on the highway, where a few car lengths from the intersection, the driver could access the Wawa driveway entrances.  At the time of the collision, there was a sign on the westbound side of Route 322, east of the Wawa and near the entrance to the jug handle stating, “ALL TURNS FROM RIGHT LANE.”  This sign was intended to prevent left turns across the highway at and before the intersection with Cains Mill Road.

The Wawa driveway entrances were constructed years ago and were in the State’s right of way.  They were considered to have been constructed in accordance with DOT regulations.  Wawa was not authorized to modify the driveway entrances or place any signage regulating traffic unless it had permission from the State.

In both of these cases, a motor vehicle driver attempted to make an illegal left turn from the westbound lanes of the highway into one of the Wawa driveway entrances.  In both occasions, as they were crossing the eastbound lanes, they crashed into a motorcycle, traveling eastbound, causing the collision and the resulting fatality and/or injuries of the motorcycle occupants.

The plaintiffs sued both Wawa and the State as defendants. The claim against Wawa was that it was negligent in creating unsafe driveway entrances to its parking lot and in failing to maintain the premises in the safe condition for its invitees.  Further, the plaintiffs claimed that Wawa knew or should have known that its driveway entrances attracted illegal left turns from Route 322 and it should have redesigned its parking lot entrances to discourage left turns, notify the State of the dangerous conditions and/or warned its customers of the dangers of making an illegal left turn from the westbound lanes of the highway.

As for the State, the plaintiffs allege that it was negligent in creating an unsafe condition by failing to properly maintain the roadway in a safe condition and “to exercise proper control, supervision, maintenance, repair, and general safe keeping of the roadway, despite the fact that it knew or should have known that a dangerous condition existed in the roadway and in its right-of-way.”

At the trial court level, the court granted summary judgment to both defendants.  It rejected plaintiffs’ argument that Wawa violated a duty of care to plaintiffs.  It found that the acts of the drivers of the motor vehicles, which were the causes of the accidents, and the collisions, happened in the eastbound lanes of Route 322 and not on Wawa’s property.  It noted the longstanding precedent “that a commercial landowner has no duty to regulate or control the conditions of property it does not own.”  Thus, the court found that Wawa did not owe a duty to plaintiffs related to the accidents.

Further, the court noted that, in limited circumstances, a commercial landowner’s duty to protect its invitees could extend beyond its premises for activities for which it directly benefits.  It was reasonable to conclude that Wawa could have received an economic benefit for drivers accessing its parking lot by making an illegal left turn from the highway, but the court concluded “that westbound drivers were provided a safe path to enter the parking lot through the jug handle, relieving Wawa of any duty to take steps to prevent illegal left turns into its driveway entrances.”  Further, the court found that even if the driveway entrances were dangerous conditions of State property, Wawa had no legal duty to report these conditions to governmental entities who would have the authority to remedy them.

As for the State, the trial court concluded that the State was “absolutely immune from liability pursuant to N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations, and N.J.S.A. 59:2-5 for permitting decisions concerning the driveway entrances, and N.J.S.A. 59:2-6 for its failure to inspect the driveway entrances.”  The court found that the placement of the driveways did not constitute a dangerous condition because if drivers exercise due care, the subject accidents would not be reasonably foreseeable.  The court noted that Route 322 was divided by a double solid yellow line prohibiting left hand turns into the subject driveways.  Further, the court found that illegally crossing the highway to make the left hand turn was not exercising due care.

This appeal ensued.  First, the Appellate Division addressed the claim against Wawa.  The court agreed that Wawa did not owe a duty to plaintiffs because their injuries did not occur on Wawa’s premises.  The drivers of the motor vehicles that collided with plaintiff’s motorcycles were in the eastbound lanes of Route 322.  Although they were headed in the direction of an entrance to the Wawa parking lot, they initiated their illegal left turns on State property and caused injuries to plaintiffs before reaching Wawa’s property.

With respect to the argument that a premises owner may owe a duty of care for an injury off premises, if the source of the injury was a dangerous condition on the premises, the Court also rejected that argument.  The Appellate Division found that Wawa did not have a duty of care to prevent the illegal acts of the two motor vehicle drivers on State property.  It neither owned nor had control over the eastbound lanes of Route 322, where the other drivers attempted to execute their illegal turns and collided with the plaintiffs’ motorcycles.  Further, the Appellate Division noted that the driveway entrances, which plaintiffs allege to be a dangerous condition, were not on Wawa’s premises.  Rather, they were situated in the State’s right-of-way and were subject to its sole control.

The Appellate Division also rejected the argument that Wawa had a duty to change its parking lot design or report to the State the need to alter or close the driveway entrances.  That would “amount to an expansion of a duty to all commercial landowners along a State highway to prevent motor vehicle violations by potential customers and ameliorate the effects of those violations.”

Further, the Appellate Division rejected the argument that Wawa breached its duty to warm its customers of the dangers of making an illegal left turn from the westbound lanes of the highway.  The Court noted that it was not clear how such a warning would be delivered to drivers who had not yet reached the store.  Further, the Appellate Division declined “to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed by driving over two sets of solid yellow lines to cross the two lanes of opposing traffic on a highway with a 55 mile-per-hour speed limit.”

Next, the Appellate Division turned towards the plaintiffs’ claim against the State of New Jersey. It considered the statutory immunities in the Tort Claims Act that were addressed by the trial court.  First, there was N.J.S.A. 59:2-4 in which “a public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.”  The plaintiffs had alleged that it was the State’s alleged inaction in enforcing its regulations related to access violations from public roadways by failing to close the Wawa driveway entrances or otherwise preventing motorists from making illegal left turns to access the parking lot which caused the accident.  The plaintiffs’ claim related to the State’s alleged omissions, rather than an affirmative act.  Thus, the Appellate Division agreed with the trial court’s conclusion that enforcement immunity under N.J.S.A. 59:2-4 applied.  Thus, the State cannot be held liable for damages for its alleged failure to apply existing or past regulatory requirements to Wawa’s driveway entrances.

The Appellate Division also agreed that the State was not subject to liability for this alleged dangerous condition because a dangerous condition is defined as “a condition of property that causes a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it would be used.”  Here, the trial court had concluded that the absence of due care by the two motor vehicle drivers when using the driveway entrances was determinative of whether the dangerous condition exception applies.  As the Supreme Court pointed out in the prior decision of Garrison v. Township of Middletown, if a public entity’s property is dangerous only when used without due care, the property is not in a “dangerous condition.”  Whether a member of the public acted with due care on public property would depend upon whether the property was used in a reasonably foreseeable manner.

The Appellate Division supported the trial court’s conclusion that the driveway entrances did not post a substantial risk of injury when used with due care in a matter in which it was reasonably foreseeable that it would be used.  The driveway entrances were not intended to be used for illegal left turns by westbound drivers on Route 322.  The Court pointed out that “[b]reaking the law by crossing two sets of yellow lines to cross two lanes of opposing highway traffic to access the driveway entrances is not the exercise of due care.”  The Appellate Division noted this risk of danger created by such a highly dangerous maneuver was “objectively unreasonable and inconsistent with the intended use of the driveway entrances, which are designed to permit eastbound motorists to enter the Wawa parking lot.”

Hence, the Appellate Division affirmed these summary judgment orders granted by the trial court to the State and to Wawa.  The Appellate Division recognized the “tragic nature” of these accidents caused by “law-breaking drivers,” but it noted that it could “discern no legal basis to impose liability on the defendants.”

Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

Plaintiff Denean Davis was gambling at defendant’s casino in Atlantic City.  After gambling for about an hour, plaintiff left the building to take a phone call.  When she exited the building, the mat in front of the door was flush against the ground.  Forty-two seconds later when she reentered the building, the rug was “buckled,” causing her to fall on the rug and suffer serious injuries.  The issue in Davis v. DGMB Casino, LLC, d/b/a Resorts Casino Hotel, 2021 N.J. Super. Unpub. LEXIS 1003 (App. Div. May 25, 2021) was whether the defendant casino had a sufficient amount of notice of the alleged dangerous condition of its property to be liable for the plaintiff’s injury.

During the time period that the plaintiff had exited the building, no other patrons had exited or entered through that door in those forty-two seconds.  When plaintiff fell, she suffered serious injuries to her back and right leg.  She sued the defendant casino alleging negligence caused her injuries.

At the trial court level, the defendant filed a motion for summary judgment which was granted by the trial court judge.  The judge “determined that defendant had no opportunity to discover and correct the condition of the mat in the forty-two second period between the time plaintiff exited and reentered through the same door.”

This dismissal was appealed to the Appellate Division.  The Court noted that to establish defendant’s liability, plaintiff needed to show “(1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.”  As a business invitee, the defendant owed plaintiff “a duty of reasonable care to guard against any dangerous condition on [its] property that the owner either knows about or should have discovered.”  The Appellate Division pointed out that the plaintiff must prove though that the defendant had actual or constructive notice of the dangerous condition that caused the accident.  Without proof of notice, that would be fatal to the plaintiff’s claim of liability.  Under the facts in this case, it was clear that the defendant casino did not have actual notice of the buckled rug upon which plaintiff fell.

To establish constructive notice, the plaintiff must be able to show that “the condition existed for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  It is well-settled law that the mere existence of an alleged dangerous condition is not constructive notice of it.

The Appellate Division noted that the rug became bucked in the forty-two seconds between the time plaintiff exited and then reentered the same door.  The Court agreed with the motion judge that the forty-two seconds during which the rug buckled was insufficient to support a finding of constructive notice.  Hence, the Appellate Division affirmed the trial court’s decision to dismiss the complaint.

Plaintiff Martha Valdez ordered pizza and mozzarella sticks from the defendant Brooklyn’s Coal Burning Brick Oven Pizzeria.  After purchasing the food, she returned to her car with her husband and he gave her the bag containing the mozzarella sticks and marinara sauce and she put the bag on her lap.  After driving to the home of a relative to drop off water bottles for a party, plaintiff “felt the burn” and looked down to see marinara sauce on her jeans.  Feeling the sauce burning her thigh, she threw the whole bag with the mozzarella sticks and the sauce out the window.  The issue in Valdez v. Brooklyn’s Coal Burning Brick Oven Pizzeria, LLC, 2021 N.J. Super. Unpub. LEXIS 1646 (App. Div. August 3, 2021) was whether her burn claim against the defendants was barred based upon a spoliation of evidence claim in discarding the marinara sauce container.  

After the plaintiff threw the bag with the mozzarella sticks and sauce out the window, she told her husband to go home.  They went home without recovering the bag.   When the plaintiff arrived home, she removed her jeans, took a photo of her burn and went to the hospital.  Before going to the hospital, she called the Pizzeria and reported that she had been burned by the hot marinara sauce.  According to her medical expert, the plaintiff suffered a deep second degree burn with a small element of a third degree burn with a resulting hyperpigmented permanent scar. 

About six months later, an investigator for plaintiffs (Martha and her husband Jose Valdez) made a purchase of mozzarella sticks and marinara from the defendant’s pizzeria.  Testing of the sample cup of marinara sauce revealed a temperature of 178.8 degrees Fahrenheit.  According to the plaintiff’s expert, a hot liquid at 160 degrees Fahrenheit contacting human adult skin would cause a second or third degree burn.

Thereafter, plaintiffs Martha and Jose Valdez filed a lawsuit against the defendants Brooklyn’s Coal Burning Oven Pizzeria, LLC, John Grimaldi, and Julie Grimaldi Realty Group, LLC, alleging that plaintiff had suffered severe personal injuries because of the defendants’ “careless, reckless, and/or negligent, manufacturing, marketing, assembling, inspection, packaging, and/or sale of the marinara sauce.”

The defendants filed a motion to dismiss based upon spoliation of evidence.  The defendants asserted that plaintiff “spoliated and destroyed not only the most critical, but the only piece of evidence . . . essential to proceeding with her claim.”  The trial court determined that the discarding of the marinara sauce container prejudiced defendants in their ability to defend the action.  The defendants could not determine if the containers was mishandled by plaintiff or assess comparative fault of plaintiff.  She did not produce the jeans that she was wearing on the day of the spill, or the photograph of same.

Without either the container of sauce or the jeans, there was no way of determining if the sauce was mispackaged or plaintiff’s own negligence contributed to the injury.  The trial court found that discovery sanctions would not contribute to the plaintiff being able to prove her claim, would not provide any avenue for the defendants to defend themselves and granted summary judgment to the defendants.

This appeal ensued.  The plaintiffs argued that the trial court mistakenly viewed the claim that the sauce was too hot as a negligent packaging claim.  The plaintiffs further argued that because the trial court misinterpreted her claim, summary judgment was not a proper remedy for the alleged spoliation of evidence.

The Appellate Division noted that a spoliation claim “arises when a party in a civil action has hidden, destroyed, or lost relevant evidence and thereby impaired another party’s ability to prosecute or defend the action.”  Further, the Court noted that “[w]hen litigation is likely, a prospective party aware of that probability has an obligation to preserve evidence foreseeably important to its adversary.”

The Appellate Division also noted that trial courts have broad authority to sanction “abusive discovery tactics.”  A reviewing court would not disturb the sanctions if they are just and reasonable under the circumstances.  The Appellate Division stated that remedies for spoliation of evidence “include use of discovery sanctions, an adverse inference, or a separate cause of action for fraudulent concealment.”  Further, the Appellate Division noted that dismissal of a claim would normally be ordered only when there was no lesser sanction that would suffice to erase the prejudice suffered by the non-delinquent party.

The Appellate Division agreed with the trial court that the plaintiff did have a legal duty to preserve the marinara sauce container and other packaging.  The Court also agreed that it was foreseeable that a customer would bring suit after suffering a burn from a prepared food, especially if the burn required treatment at a hospital.  Further, the obligation to preserve evidence arises when litigation is probable, not when a defendant decides to bring suit. 

The Court found that the failure to retrieve the container likely impacted both plaintiffs’ ability to prove their claim and defendants’ ability to prove that they were not negligent with regard to their packaging of the sauce.  However, the Appellate Division disagreed with the determination that the appropriate sanction was dismissal of the plaintiffs’ claim.  The Court found that less severe sanctions, including the suppression of evidence relating to the marinara sauce container could effectively address the spoliation in this case.   The loss of the marinara sauce container could be remedied by precluding plaintiffs from presenting any evidence or claim that the container caused plaintiff’s injury. 

But, the defendants were not irreparably prejudiced from their ability to defend themselves against the claim that the marinara sauce was too hot when sold. The Court noted that the plaintiffs had submitted evidence that the temperature of a sample of the marinara sauce which was obtained six months after the burn was 178.8 degrees Fahrenheit and further that a medical expert opined that a liquid at 160 degrees Fahrenheit causes second degree burns when contacting adult skin.

Thus, the Appellate Division reversed the dismissal of the plaintiffs’ complaint and remanded the case back to the trial court.  On remand, the trial court was directed to consider the dismissal of the negligent packaging claim as a sanction for the spoliation of the marinara sauce cup and bag.

The defendant Louis Gargiulo Company, Inc. (“Gargiulo”) was hired as a general contractor to perform certain work at the Hudson County Schools of Technology (“HCST”).  Defendant Gargiulo hired Adamo Brothers Construction (“Adamo”) as its subcontractor to perform a portion of the removal and replacement of concrete at HCST.  Plaintiff Luis Alfredo Sutuj, an Adamo employee, was injured while operating a jackhammer at the site without wearing protective goggles.  The issue in Sutuj v. Gargiulo Company, Inc., 2021 N.J. Super. Unpub. LEXIS 16 (App. Div. January 6, 2021) was whether the defendant general contractor could be held liable to the plaintiff, an employee of its subcontractor, for his injury suffered at the job site.

Plaintiff was injured when he was breaking up the concrete pavement and a piece of metal mesh from the concrete flew into his eye, causing him to suffer serious injury.  He was not wearing protective goggles at the time of the accident because he forgot them and left them at home.  He had worn them previously before the accident, but on the day of the accident, he did not tell anyone he forgot this protective equipment, nor did he look for another pair of goggles.

Plaintiff admitted that he was not familiar with the defendant’s company name and testified that no one other than John Adamo or his coworker gave him instructions on the job site.  Defendant’s foreman testified that he never told Adamo how to take care of his men or the means and methods of how to do the job.  Further, defendant’s foreman testified that Adamo had performed well in the past and he assumed the subcontractor would perform well on the HCST project.

The plaintiff filed a lawsuit against the defendant, HCST and Hudson County (neither HCST nor Hudson County were involved in the appeal, both being dismissed out either voluntarily or by motion).  Plaintiff claimed that the defendant general contractor was responsible for his injury and it was negligent for ignoring its duty to provide a safe workplace for him, to supervise, direct, and control the work site to prevent dangerous or hazardous work conditions, and to oversee the safety of the site.  Also, the plaintiff claimed that the defendant general contractor violated OSHA regulations and the New Jersey Construction Safety Act.

At the trial court level, the defendant moved for a summary judgment, claiming that it did not owe plaintiff a duty of care.  The trial court judge agreed and “found Adamo, as the subcontractor, who was responsible for the safety of its employees, provided its employees safety equipment, and directed their work.”  Thus, the trial court judge held that the defendant, as the general contractor, had no duty to conduct daily inspections at the job site to ensure that Adamo’s employees wore safety goggles.   Further, he found that the defendant did not create a dangerous condition at the job site.

Upon appeal, the plaintiff raised three main points.  First, he contended that “since OSHA–required eye protection would have prevented this accident, there is a material issue of fact as to whether the defendant general contractor breached its duty to provide plaintiff with a reasonably safe place to work.”  Second, he argued that given the defendant’s contractual obligations, it was not unfair to impose a duty on the general contractor.  And last, he contended that summary judgment should have been denied, due to existing material issues of fact.

The Appellate Division found that the trial court correctly determined that defendant did not owe plaintiff a duty of care.  The Court pointed out that ordinarily, a general contractor “is not liable for injuries to employees of the subcontractor resulting from either the condition to the premises or the manner in which the work is performed.”  The underlying premise is that a general contractor “may assume that the independent contractor and its employees are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly to ensure their own safety.” 

The Appellate Division did note that there are exceptions to this general principle.  A general contractor may be liable for a subcontractor’s negligence if the general contractor retains control of the manner and means of doing the work.  Also, a general contractor may be liable where he knowingly engages an incompetent subcontractor or the work contracted for constitutes a nuisance per se, namely is inherently dangerous.

The Appellate Division agreed with the trial court judge that the exceptions did not apply and “that any foreseeable risk of injury to plaintiff on the date of his accident did not give rise to a duty of care on the part of defendant.”  There was no evidence that the defendant controlled how the laborers performed their job.  Also, the record reflected that plaintiff previously wore safety goggles on the job and there was no evidence that the general contractor was aware plaintiff was not wearing his safety goggles when the accident occurred.

There was also no evidence that the subcontractor was an incompetent subcontractor.  To the contrary, the testimony was that Adamo had performed well in the past and it was assumed they would perform well on this project.  Last, there was no evidence that this type of work performed by plaintiff was inherently dangerous. The general contractor defendant was entitled to assume that both the subcontractor and its employees “were sufficiently skilled and equipped to recognize any dangers related to their tasks and that they would take measures to ensure their safety.”

As for the OSHA violation due to the failure to wear protective goggles, the trial judge correctly noted that the violation of OSHA regulations without more would not constitute the basis for an independent or direct tort remedy.  Thus, the Appellate Division was satisfied that “where defendant did not retain control of the manner and means of the work for which it hired Adamo, defendant did not knowingly engage an incompetent subcontractor, and the concrete work performed by plaintiff was not inherently dangerous,” that the trial court judge correctly granted summary judgment to defendant.  Thus, the trial court’s decision dismissing this matter was affirmed.

Plaintiff Widelande Raymond suffered a serious bodily injury when she slipped and fell on a slippery substance on her apartment building’s stairs. She sued the building owner, Layna Realty, LLC, and the property manager, Pentaurus Properties, LLC. The issue in Raymond v. Layna Realty, LLC, 2021 N.J. Super. Unpub. LEXIS 1673 (App. Div. Aug. 10, 2021) was whether the plaintiff had presented sufficient proofs to establish that the defendants had constructive notice of the alleged dangerous condition and/or whether the mode of operation rule applied, which would have obviated the plaintiff’s need to prove notice.

Plaintiff lived on the third floor of a three-story apartment building of about 26 units, owned by Layna Realty and maintained by Pentaurus Properties. Pentaurus Properties employed a resident superintendent who worked 5 days per week and after hours as necessary. For about 1-1 ½ hours each morning, the superintendent was required to mop the stairs, the landings and tiled areas, vacuum the carpet, and remove any minor debris from the stairwells and outside the apartment building.

One night, between 8:00 to 9:00 pm, the plaintiff, wearing flip flops, left her apartment and walked down the stairs to go the store. As she walked from the second to first floor, she slipped and slid down a number of steps. After falling, she observed a sticky, oily like substance on the steps and second floor landing. She injured her back, knees, and left leg.

The defendants successfully moved for summary judgment, obtaining a dismissal of the complaint. The trial court judge found that the plaintiff had failed to meet her burden to prove that the defendants had actual notice of the sticky substance or that they had constructive notice of the substance “because it was there for a reasonable length of time – but failed to remove it.”

Upon appeal, the Appellate Division noted that “[t]here was no dispute that defendants had a duty to maintain the apartment building ‘in a reasonably safe condition’ to guard against foreseeable dangers arising from a tenant’s use of the premises.” But “[t]he mere existence of an alleged dangerous condition is not constructive notice of it.” The plaintiff must be able to prove that the condition existed for such a length of time “as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”

Here, the plaintiff argued that the defendants were aware that tenants walked down the stairs, carrying their trash to dispose of it; she slipped on a sticky-oily substance on the stairs; plaintiff always saw the floor dirty; and it was “common knowledge” that oily-like substances turn sticky after being exposed to air for some length of time.

The Appellate Division rejected these arguments as sufficient to prove that defendants had constructive notice of the slippery substance on the stairs. The plaintiff was unable to prove that the substance had been on the floor long enough for the defendants to be aware of it. Further, the plaintiff failed to produce an expert report to support her theory that the characteristics of the substance demonstrated that it had been on the stairs for some time.

The Court also rejected the plaintiff’s alternative argument, relying upon the mode of operation rule to relieve her of the obligation to prove notice. The Appellate Division pointed out that this rule only applied in self-service activities of a business and our courts have never expanded this rule beyond the “self-service setting, in which customers independently handle merchandise without the assistance of employees or may come into direct contact with product, displays, shelving, packaging, and other aspects of the facility that may present a risk.”

The Court found that plaintiff’s efforts to apply the mode of operation rule to infer negligence against defendants was without merit. The Appellate Division noted that the accident did not result from the type of self-service activity required for the application of this rule. Specifically, the Court found that even assuming that the substance was left on the stairs by someone carrying out their trash, “a tenant’s disposal of trash is not a self-service component of defendants’ business.”

Thus, the Appellate Division affirmed the trial court’s decision, upholding the dismissal of the complaint as to the defendants.

In a June 10, 2021 opinion written in Pareja v. Princeton International Properties, Inc., 2021 N.J. LEXIS 549 (2021), the New Jersey Supreme Court adopted the “Ongoing Storm” Rule, which should be very useful to the defense bar in pursuing Summary Judgment as to claims arising out of slip and fall events that take place during an ongoing winter storm.

            In short, the Court held that:

“Considering our case law and balancing the concerns of commercial landowners with the need to provide redress for injured plaintiffs, we state today that, under the ongoing storm rule, commercial landowners do not have a duty to remove the accumulation of ice until the conclusion of the storm, but that unusual circumstances may give rise to a duty before then.”  (slip op. at 17-18).

The Supreme Court then specifies two (2) such circumstances in which liability might still attach.

The first involves situations where the commercial landowner by its actions increases the risk to pedestrians and invitees on their property, by creating “unusual circumstances” where the Defendant’s conduct “exacerbates and increases the risk” of injury to the Plaintiff.

The second is where there was a pre-existing risk on the premises before the storm, such as where the landowner failed to remove or reduce snow from a previous storm.  (slip op. at 18).

            Justice Fernandez-Vina framed the issue in this matter as follows:

“This case calls on the Court to determine whether commercial landowners owe a duty to clear snow and ice from their property during a storm. For the first time, this Court considers the adoption of the ongoing storm rule, under which a landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after the cessation of precipitation.”  (slip op. at 2).

The factual background is straightforward. Plaintiff was walking to work in the early morning hours on a sidewalk on property owned and managed by Defendant Princeton International Properties, Inc. (hereafter “Princeton”).  It had been “precipitating” that morning in below freezing temperatures.

Defendant Princeton filed a Motion for Summary Judgment, arguing that the “Ongoing Storm” Rule applied and that it therefore owed no duty to maintain its sidewalks during the precipitation. The Trial Court granted the Motion for Summary Judgment. However, the Appellate Division reversed, rejecting the “Ongoing Storm” Rule, and holding that Princeton had a duty of reasonable care to maintain the sidewalk even when precipitation was falling.  Pareja v. Princeton International Properties, Inc., 463 N.J. Super. 231, 235 (App. Div. 2020).

The parties did not dispute that there had been a “wintry mix” of precipitation on the morning of Plaintiff’s fall.  However, there was a dispute as to the location of the ice upon which Plaintiff fell. 

Plaintiff asserted that the icy condition was isolated, while Defendant Princeton asserted that the icy condition was found “area-wide as a product of the ongoing freezing rain.”

While Defendant Princeton’s representatives could not specifically recall whether the sidewalks had been pretreated that day, given that the property contained two apartments and two business offices, that would generally have been the case.

Defendant Princeton retained Lowe’s Landscaping & Lawn Maintenance, LLC (hereafter “Lowe’s) for snow and ice removal services, including plowing, snow removal, salting and pre-treatment.  Lowe’s was brought in initially as a Third Party Defendant, but Plaintiff amended his Complaint to name Lowe’s as a Defendant.

Discovery disclosed that Defendant Princeton’s representatives again did not recall specifically informing Lowe’s about the prevailing conditions. A “Winter Weather Advisory” was in effect, having been issued more than 24 hours before the accident.

Plaintiff through his expert argued that Defendant Princeton “knew or should have known” of the conditions, and that there was a “hazardous condition” on the day of the accident due to untreated ice on the surface, which Defendant Princeton failed to remediate.

Plaintiff’s expert also addressed a local ordinance, requiring landowners to remove snow and ice from sidewalks within 24 hours of the conclusion of the precipitation.

Before the Supreme Court, Defendant Princeton argued that in prior precedent the Court had expressed the principles embodied by the “Ongoing Storm” Rule, and that the Appellate Division “fundamentally misconstrued” the Rule as arbitrary, when, in fact, the Rule “reflects the common sense recognition that compelling landowners to try to prevent the accumulation of snow when ice on commercial sidewalks during the pendency of a winter weather event would be practical and inefficient.”  (slip op. at 9).

Amicus curiae New Jersey Defense Association joined in Defendant Princeton’s arguments, asserting that adopting the Rule would relieve commercial landowners of the duty to undertake “Sisyphean” snow and ice removal efforts during a storm, potentially hazardous in and of themselves and also potentially futile. Further, NJDA asserts that the Rule adequately serves tort principles because, while a storm is ongoing, pedestrians are on notice of dangerous conditions.  (slip op. at 10).

Plaintiff countered that the Appellate Division’s rejection of the Rule properly focused on the reasonableness of the landowner’s actions.  Plaintiff’s arguments were joined by amicus curiae New Jersey Association for Justice.  (slip op. at 10-11).

The Supreme Court then began with a general overview of precedent as to sidewalk liability and the landowner’s duty to remove snow and ice.  Notably, in Mirza v. Filmore Corp., 92 N.J. 390, 400 (1983), the Court had held that “maintenance of the public sidewalk in a reasonably good condition may require removal of snow or ice or reduction of the risk, depending upon the circumstances.”  Id. at 395. More recently, in Qian v. Toll Brothers, Inc., 223 N.J. 124, 136 (2015), the Court held that a Homeowners’ Association and its management company had a duty to clear snow and ice from the private sidewalks abutting its land.

Very significantly, however, all of these cases “discuss the imposition of a duty on commercial landowners to remove snow and ice only after the secession of the hazardous precipitation; none opine on the imposition of a duty before that point, which is the crux of this appeal.”  (slip op. at 15).

Thus, the Supreme Court held that “Applying our precedent to a situation where a storm is ongoing, we hold that commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm. We find instead that the limiting principles established in our precedent warrant the adoption of the ongoing storm rule.”  (slip op. at 15).

Therefore, applying the Rule to the facts of this matter, the Supreme Court held that Defendant Princeton did not owe Plaintiff a duty to clear the snow and ice during the storm, and there were no unusual circumstances that would otherwise create such a duty.

The Supreme Court observed that “the premise of the rule is that it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing. We agree. Our precedent makes clear, and we reiterate today, 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.”  (slip op. at 17).

Indeed, the Supreme Court observed that the adoption of the “Ongoing Storm” Rule is consistent with the majority rule, in that 10 other states have adopted the same. These include neighboring New York, Pennsylvania and Delaware, as well as nearby Connecticut, each of which the Court notes have climates similar to that of New Jersey.

However, as indicated above, the Supreme Court did indicate that liability might still attach to a commercial landowner if the landowner’s actions create “unusual circumstances,” where the Defendant’s conduct “exacerbates and increases the risk” of injury, or where there was a pre-existing risk on the premises before the storm, such as due to failure to remove or reduce snow from a previous storm.  (slip op. at 18).

In dissent, Justice Albin emphasizes that the majority’s exception to the Rule that imposes liability if the landlord’s actions increase the risk to individuals on its property will, in fact, encourage landowners to do nothing, in that they would then be exposed to liability only if they act.

Overall, therefore, Pareja is likely to prove to be a significant opinion which is regularly cited by the defense bar in Motions for Summary Judgment in matters involving slip and fall events that occurred during an ongoing weather event.

However, defense counsel and insureds would do well to keep in mind the necessity for the commercial landowner not to increase any risk to pedestrians, and particularly to ensure that proper remediation of snow and ice is completed within a reasonable time after the conclusion of the storm.

Plaintiff Ann Samolyk almost drowned when she tried to rescue a dog owned by defendants Ilona and Robert Destefinis that had wandered into a canal between their respective homes in Forked River, New Jersey.  After trying to rescue the dog, Ann was found unconscious on a “floating dock” and suffered “debilitating brain damage.” In the case of Samolyk v. Berthe, 2021 N.J. Super. Unpub. LEXIS 1046 (App. Div. June 2, 2021), the issue was whether the plaintiff could utilize the “rescue doctrine” to be able to sue the defendants for negligence in failing to restrain their pet from jumping into the canal, and, hence, causing Ann’s injuries when she tried to rescue their pet.

One evening, Ann heard someone calling out that their dog was in the canal and needed help and jumped in.  Defendants were having dinner with their son and some friends when they realized that their dog, Beau, was missing from their fenced in yard.  The defendants searched for Beau and learned that he had fallen or jumped into the canal, walked into the backyard of a neighbor two doors away, and were able to pull the dog out of the water.  The defendants denied ever requesting the assistance of Ann in helping to rescue their dog.

Defendants called 911 when their son alerted them to the fact that “a woman” needed help.  According to the record, by the time the police arrived, Ann was unconscious on a “floating dock” and the fire department was performing CPR.  She regained consciousness and was transported by ambulance to a nearby hospital.  It is alleged that Ann suffered debilitating brain damage, which necessitated the appointment of her husband as her Guardian ad Litem.

Under the rescue doctrine, it would permit the “injured rescuer to maintain a cause of action against the one whose negligence placed the victim in imminent danger, because it is that negligence that has given rise to the intervention of the rescuer.”  The plaintiff conceded that without the application of the rescue doctrine, there was no causal connection between the defendants’ actions and Ann’s decision to enter the canal.  The plaintiff was not making an argument that the defendants owed a duty to Ann under the circumstances.

At the trial court level, the trial judge noted that the rescue doctrine, which was critical to the plaintiff’s cause of action, had never been extended in New Jersey to the rescue of another’s property, real or personal.  The trial judge concluded that the rescue doctrine does not apply because the dog was property, rather than a person. Hence, he dismissed the lawsuit by summary judgment, finding that the plaintiff had no cause of action against the defendants. This dismissal was appealed to the Appellate Division.

The Appellate Division noted that “our courts have applied the rescue doctrine in many cases where the plaintiff was injured in attempting to rescue another person.”  Plaintiff conceded that there was no reported case from any New Jersey court that has applied the rescue doctrine to support a cause of action by a rescuer of property of the defendant, which through his negligence, placed the property in peril. 

The Appellate Division considered whether the rescue doctrine should be limited to the rescue of another human being or whether it should be extended to the rescue of a property of another.  After noting case law in other states which have permitted the rescue doctrine in circumstances involving imperiled property, the Appellate Division stated that the Supreme Court of New Jersey has never applied the doctrine to cases involving imperiled property.  Thus, it felt constrained in adopting a “new cause of action.”  Therefore, the Court declined plaintiff’s invitation to extend the rescue doctrine under the facts of this case.  According, the Appellate Division upheld the trial court’s dismissal of the lawsuit.

Plaintiff Evangelos Vassilakis sued defendants Thomas Kelly and Bonita Duffy, the owners of the property where plaintiff was a tenant, and also sued the owners of the property next to plaintiff’s apartment due to injuries suffered in a fall.  Plaintiff claimed that he was injured when he fell on the defendants’ property.  The issue in Vassilakis v. T.J. Kyle Construction, LLC, 2021 N.J. Super. Unpub. LEXIS 763 (App. Div. April 30, 2021) was whether the trial court judge should have accepted the plaintiff’s affidavit as to how the accident occurred, which he submitted for the first time in opposition to the defendants’ motions for summary judgment and provided information contrary to his deposition testimony.

In the plaintiff’s Answers to Interrogatories, he claimed that the accident occurred about 10:00 in the evening when he was walking back to his home.  He was walking in a grassy alleyway in between his house and the one next door.  He stated that he “slipped and fell in the area of a depression in the ground and an old tire, with wood beams around it” that resulted in him sustaining serious injuries to his knees, neck and back.

Plaintiff was thereafter deposed and he was asked whether he encountered anything on his walk prior to his fall that caused his trip, slip or fall.  His testimony was that he tripped on something because there was debris in front of him.  He did not know if he slipped on something or he tripped on something.  He admitted that it was probably the wet grass that made him slide or fall, as opposed to a ditch in the area.

Further, because the plaintiff did not have “rain protection equipment” at the time, he was walking fast with his head down.

The trial court judge found that as residential landlords, defendants Kelly and Duffy “only had a duty to protect against foreseeable dangers arising from the use of the premises or upon notice of such dangers.”  The trial court judge noted that the defendants received no notice of a dangerous condition on the property which would have imposed upon them a duty to act.  The only “dangerous” condition that the plaintiff pointed out was the “wet grass.”  The judge found that the plaintiff’s decision to walk on wet grass did not impose liability on defendants.

In response to the defendants’ motion for summary judgment, the plaintiff submitted a certification in which he now he remembered that he felt a piece of debris touch his foot.  He indicated that “my foot continued to slide on a tar like substance into the hole.”  Further, while he had discussed the possibility of wet grass contributing to his fall in his deposition, now in his certification he stated, “I am not certain that wet grass was present but if it was, I think that it was not the sole cause of my slip and fall.  The debris, tar like substance, and the hole itself located in the area where I fell all contributed to its sequence.”

The trial court judge considered this certification, which was first submitted in opposition to the defendants’ motion for summary judgment and contrary to the plaintiff’s deposition testimony, to be a “sham affidavit.”  Under the case law, the trial court may disregard an offsetting affidavit that is submitted in opposition to a motion for summary judgment when that affidavit contradicts the witness’s prior deposition testimony.  Based upon this standard, the motion judge rejected the plaintiff’s certification and found that the certification was an “attempt to minimize adverse testimony by submitting a sham certification which tries to change the facts.”

Thus, the trial court judge granted defendants’ motion for summary judgment and dismissed the lawsuit.  This appeal ensued. 

The Appellate Division noted that it uses the same standard to determine the viability of a motion for summary judgment as the trial court.  It cited to the well-known summary judgment standard that judgment must be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.”            

The Court further pointed out that to be cognizable for a negligence cause of action, the plaintiff must establish four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.  The Appellate Division discerned “no legal basis to disturb the motion judge’s well-reasoned opinion finding plaintiff failed to establish a cognizable negligence cause of action against defendants.” Hence, the Appellate Division affirmed the summary judgment dismissal in favor of all the defendants.

Plaintiff Matthew Domenick tripped and fell while playing a softball game at Johnson Park in Piscataway.  As sponsor of the softball league, defendant Brian Melnick obtained a permit from the defendant County of Middlesex.  Melnick signed the County’s rules and regulations which contained a hold harmless agreement, requiring indemnification for claims arising from the conduct of activities for which the application was being made.  The issue in Domenick v. County of Middlesex, 2021 N.J. Super. Unpub. LEXIS 722 (App. Div. April 26, 2021) was whether the County was entitled to indemnification for this accident.

The claim against the County was that it was negligent in the preparation and maintenance of the softball field, causing the plaintiff’s injuries.  In turn, the County filed a Third-Party Complaint against the sports league, BAM Sports (Melnick’s company)(“BAM”), and its insurance company Philadelphia Indemnity Insurance.

Just before discovery closed, the County filed for a summary judgment against BAM, claiming that it was entitled to indemnification.  BAM cross-moved for summary judgment, claiming that the County was not entitled to indemnification because the indemnity clause failed to reference “the County’s own fault or negligence.”

Based upon the well settled law in New Jersey, to bring a negligent indemnitee within an indemnification agreement, the agreement must specifically reference the negligence or fault of the indemnitee.  The trial court found that the County’s indemnification provision clearly lacked any explicit reference to indemnification in the case of a suit for the County’s own negligence.  Accordingly, the trial court denied the County’s motion but granted BAM’s motion to dismiss the case.

The County appealed the motion judge’s ruling, claiming that the judge erroneously applied the governing law and “overlooked the party’s true intent” behind the indemnification clause.  The Appellate Division noted that “as a general rule an indemnity ‘contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms’ in the agreement.”  In reviewing the indemnification clause in the County’s indemnification provision, the Appellate Division found that it fell “far short” of the explicit language required under New Jersey case law to provide indemnification for the County for its own negligence.  Thus, because the indemnification provision lacked any reference whatsoever to the County’s own negligence, the Appellate Division agreed that BAM was not required to defend or indemnify the County.  Accordingly, the Appellate Division affirmed the trial court’s decision that the County of Middlesex was not entitled to indemnification from the third party defendant BAM for the plaintiff’s accident.

Betsy G. Ramos, Esq. is expanding her practice to include serving as mediator for NJ or PA civil cases. Ms. Ramos recently completed the required 40-hour Civil Mediation Training Program conducted by the New Jersey Association of Professional Mediators (NJAPM). Completion of this program meets the training requirements for Rule 1:40 Civil, General Equity, and Probate Mediation Roster of the Superior Court, as maintained by the New Jersey Administrative Office of the Courts.

Please contact Ms. Ramos at 856-914-2052 or bramos@capehart.com if you wish to retain her services as a mediator for any civil litigation, including personal injury, construction, employment, probate, or chancery matters.

Plaintiff, Sevim Temiz, while walking past her neighbor’s residential property in Paramus, tripped over a raised portion of the sidewalk and fell.  She filed a lawsuit alleging that the defendants Ghanshyam Patel and Bijal Patel negligently maintained their property.  The issue in Temiz v. Patel, 2021 N.J. Super. Unpub. LEXIS 604 (App. Div. April 12, 2021) was whether the defendants, as residential homeowners, could be responsible for the plaintiff’s injuries from the trip and fall over the public sidewalk in front of their home, where sidewalk was raised due to tree roots.

When the plaintiff fell, she injured her right shoulder, requiring surgery.  She alleged that the roots emanating from the tree that was once located on defendants’ property caused the sidewalk where she fell to become elevated and uneven. Defendants had only moved into their home one month before plaintiff’s fall.

The defendant homeowner identified a photograph of an area of his front yard, without grass, that was adjacent to the sidewalk.  The prior owner had told the defendants that grass did not grow there because “the town had removed a tree from that area.”

Defendants attempted to repair the sidewalk after plaintiff fell but those attempts were halted by the Borough of Paramus.  The Borough’s Shade Tree & Parks Commission Assistant Director testified that “street trees” were the responsibility of the Borough.  Further, because the sidewalk at issue was located within 10 feet from curb, the municipality was responsible for repairs.  Previously, the Borough had issued a permit to PSE&G to remove the tree at issue.  According to the Shade Tree’s Assistant Director, the permit was required because the tree was a street tree.  He also testified that, conversely, a permit was not required for removal of a homeowner’s private tree. 

The defendants moved for a summary judgment, requesting a dismissal.  The motion judge concluded that “defendants had no duty as residential homeowners to repair the sidewalk.”  Further, the judge found that the plaintiff had “failed to present evidence that defendants planted the tree that created the defective condition.”  The plaintiff appealed that decision to the Appellate Division, arguing that the tree was planted on defendants’ property by their predecessor in title and that the tree was an artificial condition that created the defective sidewalk for which the property owner would be liable.

The Appellate Division pointed out that “residential property owners, unlike commercial property owners, have no duty to maintain the sidewalks adjacent to their land as long as they do not affirmatively create a condition that makes the sidewalk dangerous.”  Based on prior case law, a property owner’s liability could be founded upon the affirmative act of actually planting the tree that caused the issue with the sidewalk.

Here, although the plaintiff was surmising that the tree was planted by defendants’ predecessor before defendants purchased the home, they were unable to provide any proof of an affirmative act by defendants suggesting that they or any other party in privity with defendants planted the tree to create an artificial condition.  As such, there was no evidence in the record that the defendants created the hazard on the sidewalk abutting a property.  Accordingly, the Appellate Division agreed with the motion judge’s order granting summary judgment and affirmed the decision to dismiss the case.

Betsy G. Ramos, Esq. is expanding her practice to include serving as mediator for NJ or PA civil cases. Ms. Ramos recently completed the required 40-hour Civil Mediation Training Program conducted by the New Jersey Association of Professional Mediators (NJAPM). Completion of this program meets the training requirements for Rule 1:40 Civil, General Equity, and Probate Mediation Roster of the Superior Court, as maintained by the New Jersey Administrative Office of the Courts.

Please contact Ms. Ramos at 856-914-2052 or bramos@capehart.com if you wish to retain her services as a mediator for any civil litigation, including personal injury, construction, employment, probate, or chancery matters.