Negligence

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.

Plaintiff Mario Quesada brought his sick cat Amor to the defendant veterinarian Red Bank Veterinary Hospital where he was diagnosed with saddle thrombus which necessitated euthanization of the cat. Plaintiff was overcome with emotion and was permitted to say goodbye to Amor. During the euthanization process, the cat bit one of the nurses and the vet advised plaintiff that a brain tissue sample would be required to determine whether Amor had rabies. When Amor was returned to plaintiff, he had been decapitated and his head disposed of. In Quesada v. Compassion First Pet Hosp. & Red Bank Veterinary Hosp., 2021 N.J. Super. Unpub. LEXIS 552 (App. Div. Apr. 1, 2021), the issue was whether the plaintiff could sue the vet for negligent infliction of emotional distress for decapitating his cat.

Plaintiff had explained to the vet that Amor was an indoor cat and was never outdoors and had been vaccinated. The vet refused to speak to Amor’s regular vet or obtain his vaccination records, insisting that, pursuant to state law, a brain tissue sample was required to check for rabies.

The vet told the plaintiff that Amor’s body would be released the following day to the Hamilton Pet Meadow for cremation per plaintiff’s request. Plaintiff informed the vet that he intended to display his cat’s body for viewing prior to cremation. At no time did the vet advise the plaintiff what was entailed in obtaining a brain tissue sample.

The cat’s body could not be released until a negative rabies test result was obtained. When the negative rabies test was finally returned, the cat’s body was released to the plaintiff who requested the opportunity to view his cat’s body. Upon the viewing, the plaintiff learned that Amor had been decapitated and his head was disposed of as medical waste.

Plaintiff became extremely agitated, going “into a state of shock, crying and screaming,” in front of the pet cemetery’s staff. He called the local police and asked to be connected to grief counselling services. Plaintiff called the vet and asked why he was not informed that the cat would be decapitated and an employee did tell him that there were ways to take a brain sample without decapitating the whole body but that the vet always simply sends the whole head. However, plaintiff had not been offered this option.

As a result of the decapitation, plaintiff alleged that he developed severe mental health problems which required ongoing professional counselling and medications. He had insomnia, inability to work, outbursts of anger, flashbacks, hypervigilance, panic attacks, nightmares, depression, anxiety, suicidal ideation, and impulses toward self-harm.

Plaintiff filed suit, alleging one count of negligent infliction of emotional distress, six counts of negligence, and one count of bailment. The defendant vet filed a motion for summary judgment on the basis of a failure to state a claim, which the trial court judge granted. This appeal ensued.

First, the Appellate Division noted that the motion judge had applied the wrong legal standard in analyzing plaintiff’s claim. The court should have analyzed the claim as a “direct” negligent infliction of emotional distress claim, as opposed to a “bystander” negligent infliction of emotional distress claim as established by Portee v. Jaffee.

A direct claim for negligent infliction of emotional distress can exist “where the plaintiff claims proximately-caused damages as a result of a breach of duty owed by the defendant.” The plaintiff must establish that: “(a) defendant owed a duty of reasonable care to plaintiff; (b) defendant breached that duty: (c) plaintiff suffered severe emotional distress: and (d) defendant’s breach of duty was the proximate cause of the injury.”

The Court found that the defendant vet “owed plaintiff a duty to return his cat’s body in an acceptable condition for the viewing at the Hamilton Pet Meadow.” Further, the Appellate Division found that it was foreseeable that plaintiff “would have a serious mental reaction to seeing his cat’s decapitated body upon arrival at the viewing.” The Court held that the vet breached their duty by decapitating his cat without fully informing him of possible alternative testing procedures or requesting that the decapitated head be returned intact after testing.

The Appellate Division ruled that the plaintiff should have the opportunity through discovery to establish that he suffered “severe mental distress.”  Thus, the Court held that the plaintiff had stated a direct claim for negligent infliction of emotional distress that was “sufficient to withstand a motion to dismiss for failure to state a claim.”

Additionally, the Court found that plaintiff stated a viable claim for bailment. Plaintiff had left the cat’s body with the vet and, while it was in their possession, it was returned in a “damaged condition” without obtaining plaintiff’s consent to remove and dispose of his cat’s head, which was avoidable had the vet arranged for the cat to be tested for rabies in a way that the entire body could be returned.

Hence, the Appellate Division reversed the trial court decision and remanded it back to the trial court for further proceedings.

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 Suzanne Pagonis tripped and fell while walking across a grassy field at the Crestwood Lake Club, which was a recreational lake swimming complex owned by defendant Borough of Allendale and encompassed a municipal park, Crestwood Park.  Her daughter had participated earlier in the day in a softball tournament at the Club’s facilities.  Plaintiff fell while crossing a grassy field on the way back to her car to retrieve lunch for her children.  The issue in Pagonis v. Borough of Allendale, 2021 N.J. Super. Unpub. LEXIS 462 (App. Div. March 22, 2021) was whether the Borough was immune from liability for such accident under Tort Claim Act defenses.

Plaintiff and the other tournament families were advised that they could not use the beach and facilities reserved for members that were closest to the main entrance parking lot.  Rather, they had to use only the “west beach,” which was roughly across the lake from the member’s beach and the Club’s concession stand and access that beach through another entrance.  Plaintiff arrived with her children and ultimately ended up parking in a grassy area near the north end of the lake where other cars were parked.  With her family, she walked across a grassy field to the west beach.  Sometime later, she arrived at the concession stand to purchase some food.   Because of the long line, she decided to return to her car, retrieve lunch for her children and go back to the west beach.  As she crossed the grassy field and was about three-quarters of the way to the west beach, she tripped and fell.

Plaintiff claims that her right foot dropped into a deep hole, causing her fall and resulting injuries.  She alleged that the deep hole was a dangerous condition on public property and that the Borough negligently failed to maintain, supervise, control, and repair the open fields around the lake.  She also alleged that Allendale was responsible for controlling the parking lots and directing pedestrian traffic at the Club.  She claimed that the Borough failed to exercise reasonable care because it directed her to an area without safe access to the west beach and failed to supervise access to the west beach.

Allendale filed a summary judgment motion based upon immunities under the Tort Claims Act and the Landowner’s Liability Act.  The motion judge granted summary judgment to Allendale finding that the motion record failed to demonstrate that the hole that allegedly caused plaintiff’s fall or their lack of a pathway to the beach was a dangerous condition on public property.  The judge also rejected plaintiff’s claim that Allendale’s employees were negligent in supervising access to the west beach.  Further, the judge found that the Borough also had immunity under the Landowner’s Liability Act.

This appeal ensued and plaintiff argued that the summary judgment order should be reversed as to the Borough.

The Appellate Division noted that, under the Tort Claims Act, a public entity is immune from tort liability unless there is a specific statutory provision that makes it answerable for a negligent act or omission.  For a public entity to be found liable for a condition of property, “a plaintiff must establish the existence of a dangerous condition, that the condition proximately caused the injury, that it created a reasonably foreseeable risk of the kind of injury which was incurred, that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity’s conduct was palpably unreasonable.”  (N.J.S.A. 59:4-2).

Here, the police officer who responded to the plaintiff’s fall looked around and did not see any hole that the plaintiff might have stepped in and fallen.  One of the responding police officers took photographs, which did not show anything other than the general area of plaintiff’s fall.  Allendale’s Director of Operations testified in a deposition that the grassy areas was mowed by DPW workers two times per week in the summer.  He walked the grassy area once per week but was unaware of any complaints or prior accidents in the area.  Further, although plaintiff’s answers to interrogatories claim she fell in a “deep hole,” her fiancé described it as one caused by a vehicle’s tire.

The Appellate Division noted that, even assuming arguendo, the tire impression, undescribed as to its depth could be considered a dangerous condition, plaintiff was nonetheless required to prove the condition was caused by a public employee’s negligence or that Allendale had actual or constructive notice of the condition.  Although plaintiff contended that the hole was caused by a depression made by DPW vehicles or other vehicles operated by Allendale, the only support for this proposition was a photograph of the scene on the day of plaintiff’s fall.  This photograph portrayed a field of grass but did not demonstrate deep depressions in the earth caused by vehicles’ tires.

Additionally, the Court noted that there was no evidence demonstrating that Allendale was on actual notice of a dangerous declivity through prior observations or complaints.  Finally, the Court found that the plaintiff did not demonstrate that Allendale should have been charged with constructive notice of a dangerous condition.

Plaintiff’s alternative argument that Allendale negligently permitted its employees to direct attendees to an area that required them to walk on the grassy field after parking their cars also failed.  The Court held that “if there was no liability for the condition of the field, directing attendees to that area could not be an independent negligent act by a public employee.”

Thus, the Appellate Division upheld the order granting summary judgment to the Borough of Allendale. The Court found that it did not need to consider whether the immunity provided under the Landowner’s Liability Act applied because it found that the motion judge properly granted Allendale’s summary judgment under the provisions of the Tort Claim Act’s requirements of proof under N.J.S.A. 59:4-2 (liability for dangerous condition on public property).

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.

The plaintiff Thomas Seeley was injured at Bally’s Casino when he slipped and fell in the public men’s restroom.  He had not noticed the moisture on the floor before he fell.  The issue in Seeley v. Caesars Entertainment, 2021 N.J. Super. Unpub. LEXIS 446 (App. Div. March 18, 2021), was whether the testimony that the area of the restroom felt wet and slippery and appeared to be moisture left from a wet towel or a mop or a sponge was sufficient to create a jury question as to whether the defendant casino had breached its duty to the plaintiff.

The plaintiff, who was an attorney, was attending a deposition in Atlantic City at Bally’s Casino, owned by the defendant, and, during a break, used one of the public men’s restroom.  The plaintiff walked across the floor and slipped and fell on his back.  He suffered serious back injuries, undergoing multiple level lumbar fusion surgery.

The plaintiff did not notice the moisture on the floor before the fall.  However, his co-counsel who had entered the men’s room with him, observed a pattern of moisture covering a “fairly wide area” of plaintiff’s back.  He then observed the floor, which felt wet and slippery, and described the floor to be “the amount of moisture that would be left if you took a wet towel and rubbed it on the floor, or a mop, or a sponge or something.”  Further, he testified that it seemed to be consistent with someone who had cleaned the floor.  Both he and the co-counsel assumed the moisture on the floor was water because it was odorless. 

The defendant casino obtained a summary judgment dismissal at the trial court level.  That order was appealed to the Appellate Division. 

The Appellate Division noted a business owner’s responsibility to invitees to encompass “a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation.”  Also, the duty owed to a business invitee “includes an affirmative duty to inspect the premises and requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.”

The Court pointed out that, typically, business owners are not liable for injuries caused by conditions of which they had no actual or constructive notice and no reasonable opportunity to discover.  However, the Appellate Division noted that “notice is not required if the injured plaintiff can establish that the defendants created the dangerous condition.”            

Applying these principles to the facts of the case, the Appellate Division reversed the trial court judge.  It found that the co-counsel’s testimony did raise genuine issues of material fact because he testified that the restroom floor felt wet and slippery and it appeared that the moisture was something that could be left by a wet towel or a mop or a sponge.  Thus, a reasonable jury “could legitimately infer that one of defendants’ employee’s responsible for cleaning the restroom created the wet and slippery condition that caused plaintiff’s fall and resulting injury.”  Accordingly, the Appellate Division reversed and remanded the matter back to the trial court for further proceedings.

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.