Negligence

Plaintiff Arcelie Williams was injured while shopping at the defendant J.C. Penney store.  While on the second level of the store, she attempted to use the escalator to go down to the first level but her foot caught on a metal platform that was immediately in front of and connected to the escalator.  She fell and tore the meniscus in her left leg.  The issue in Williams v. J.C. Penney Company, Inc., 2020 N.J. Super. Unpub. LEXIS 1765 (App. Div. Sept. 23, 2020), was whether defendant J.C. Penney was on notice of the alleged dangerous condition of the gap between the escalator platform and the floor and whether it could be held responsible for the plaintiff’s fall.

According to the facts, the plaintiff had used this escalator on prior occasions without incident.  On the day of her fall, her left foot got caught on the metal platform that was in front of and connected to the escalator.  Prior to her fall, she did not look down and did not notice anything unusual with the escalator.  However, the escalator platform was raised from the ground, with a gap of about 1½ inches between the platform and the floor. 

The plaintiff sued J.C. Penney, as well as the escalator manufacturer (Schindler).  She claimed that the defendants were negligent in failing to “inspect and repair the escalator, or to warn plaintiffs of the existence of the dangerous condition.”  Both defendants moved for summary judgment, arguing that plaintiffs had failed to show that they had actual or constructive notice of the alleged dangerous condition.  Plaintiffs countered that argument by contending that the defendants had constructive notice that the platform was dangerous because the escalator was in an area of the store with significant foot traffic by both customers and employees.

The motion judge concluded that plaintiffs failed to provide sufficient evidence that defendants had actual or constructive notice of the dangerous condition.  Thus, the judge entered an order granting summary judgment, dismissing the case in favor of both defendants. 

The plaintiffs appealed the ruling to the Appellate Division.  While the Appellate Division upheld the order for summary judgment in favor of the escalator manufacturer, it reversed as to J.C. Penney.  It found that the plaintiff had failed to proffer any evidence that the manufacturer had breached any duty in installing the escalator in a generally acceptable manner.  The plaintiff would have been required to introduce expert testimony to pursue that claim. Because the plaintiff failed to provide an expert opining that the installation was improper, the Appellate Division upheld the dismissal as to the defendant manufacturer Schindler.

However, it reached a different result as to J.C. Penney.  The Court found that there was a reasonable inference that J.C. Penney was on constructive notice of the alleged dangerous condition due to the fact that the escalator and the raised platform were in an area that would be frequented by both customers and employees.  As the owner of the premises, J.C. Penney was in the best position to discover and fix dangerous conditions, including the raised platform.

Accordingly, the Appellate Division found that a jury could determine that J.C. Penney “should have been on notice of an elevated metal platform in front of the escalator” and the jury could determine that J.C. Penney’s “failure to take precautionary measures to cure the dangerous condition constituted negligence.”  As an example, the Appellate Division noted that the store could have erected warning signs in lieu of making repairs or placed yellow tape on the floor near the platform of the escalator. 

Therefore, the Appellate Division reversed the trial court’s grant of summary judgment in favor of J.C. Penney and remanded the matter for trial for the jury to determine whether the defendant store was negligent “in failing to take precautions to address the dangerous condition created by the raised metal platform.”

Plaintiff Joseph Bucchi was involved in a pedestrian motor vehicle accident after an alleged altercation with defendant Janet DeLuca. After found lying in the street by another individual, he “wobbled into the street,” and was struck by defendant Joan Strothers’ vehicle. The issue in Bucchi v. DeLuca, 2020 N.J. Super. Unpub. LEXIS 2066 (App. Div. Oct. 29, 2020), was which party had the burden to apportion plaintiff’s injuries between these two successive accidents.

At the trial court level, the trial court judge initially ruled that the defendants had the burden to apportion plaintiff’s injuries between the accidents. Defendant Strothers filed a motion for reconsideration and the judge reversed himself. The trial court judge found that the plaintiff had the burden of proof as to the issue of damages and plaintiff had failed to present sufficient evidence allocating any injuries to the second accident. Hence, the judge entered an order dismissing defendant Strothers.

Thereafter, the case was tried and a jury found that both plaintiff and defendant DeLuca were negligent (as to the first accident) and allocated sixty percent of the responsibility for the first accident to plaintiff. Thus, the judge entered an order in favor of defendant DeLuca.

The plaintiff filed an appeal, arguing that “when an individual is injured in successive accidents, which occur close in time, the burden shifts to the alleged tortfeasors to apportion responsibility for the injuries between the accidents.” Plaintiff contended that the trial judge made a mistake by imposing the burden of apportionment upon him and by granting summary judgment to Strothers because his experts did not allocate some portion of the injuries to the second accident.

The Appellate Division held that the trial court judge correctly determined that the burden of apportionment of damages should not be shifted to defendants because plaintiff was not entirely without fault in either accident. Also, the judge correctly found that the defendants “were not more knowledgeable or in a better position than plaintiff to apportion the damages between the two accidents.”

But, the Appellate Division was “convinced plaintiff presented sufficient evidence to show that he suffered a unitary harm caused by concurrent wrongs of the two defendants. A unitary harm is an indivisible injury where ‘the only method of apportioning damages is through the acts or inactions of the defendants who caused the unitary harm or injury.’”

Based upon the expert reports submitted, the Court found that there was sufficient evidence that the plaintiff’s head injury could have been caused by the second accident with Strothers. Further, plaintiff presented sufficient proofs to support the conclusion that he suffered a unitary harm in the successive accidents and that this head injuries were not capable of apportionment. Defendant Strothers failed to show that, as a matter of law, that none of these injuries could be attributable to the second accident.

Hence, the Court remanded the case back to the trial court for trial as to plaintiff’s claims against Strothers for his head injuries. At trial, the jury must determine if Strothers was negligent and if such negligence was a proximate cause of his head injuries. Then the jury would determine if plaintiff was negligent and, if so, allocate negligence between the two. If the jury finds that Strothers was not negligent or the plaintiff’s negligence exceeds 51%, then a judgment would be entered for Strothers.            

However, if the jury finds that Strothers was negligent and plaintiff’s negligence does not exceed 51%, the judge must determine whether the jury is capable of apportioning plaintiff’s head injuries between the two accidents. If not, the judge must apportion plaintiff’s damages equally between the two accidents.

Plaintiff Eartha Butler claims that, on March 18, 2018, she suffered injuries after tripping and falling on a sidewalk adjacent to the defendant Badr’s Jersey City private school (“Badr”).  Badr was unaware of plaintiff’s claim until seven months after the accident.  At that time, it served a notice of tort claim upon Jersey City.  The issue in Butler v. Badr School, 2021 N.J. Super. Unpub. LEXIS 216 (App. Div. Feb. 9, 2021) was whether Badr could pursue a third-party complaint for indemnification and contribution against the City of Jersey City.

The plaintiff Butler did not assert a claim against the City. Plaintiff filed a complaint against Badr and other defendants on May 10, 2019, more than one year after the fall. Badr filed an answer and a third-party complaint asserting indemnification and contribution claims against the City.  Thereafter, the City moved to dismiss the third-party complaint.  It argued that Badr failed to timely serve a notice of tort claim in accordance with the Tort Claims Act requirements.  Badr cross-moved for an order deeming its October 31, 2018 notice of tort claim timely or, in the alternative, for leave to file a late notice of tort claim.

At the trial court level, the court granted the City’s motion to dismiss the third-party complaint. The court found that the March 8, 2018 date was the accrual date for the claim subject to the Tort Claim Act’s requirements.  It relied upon the Supreme Court’s decision in Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017).  It concluded that Badr’s notice of tort claim was untimely because it was not served within ninety days of the accrual of plaintiff’s claim.  The court also denied Badr’s cross-motion, in the alternative, for leave to serve a late notice of tort claim because the cross-motion was filed more than one year after the March 18, 2018 accrual date of plaintiff’s claim under the Tort Claims Act.  Thus, the trial court entered an order granting the City’s motion to dismiss Badr’s third-party complaint and also denied Badr’s cross-motion.  Badr appealed both of these orders to the Appellate Division.

The Appellate Division noted that the Tort Claims Act defines a circumstance as to when a plaintiff may bring tort claims against any public entity.  The Act requires that a plaintiff asserting tort claims against a public entity must first serve the entity with a notice of claim within ninety days of the accrual of the claim.  Under the Jones case, the New Jersey Supreme Court made it clear that this notice of tort claim requirement applies to not only the plaintiff’s tort claims, but a defendant’s crossclaims and any third-party tort claims against a public entity.

Badr’s October 31, 2018 notice of tort claim was received by the City on November 5, 2018, which was more than seven months after plaintiff fell and was injured on a city sidewalk.  Badr claimed that its notice of tort claim was timely because it did not know, and had no reason to know about plaintiff’s fall and injuries or that it had a potential claim for indemnification and contribution against the City, until it received plaintiff’s counsel’s October 18, 2018 letter from plaintiff’s counsel, presumably advising of the accident.

Badr relied upon the discovery rule, claiming that the court erred by failing to deem its notice of tort claim timely and by dismissing its third-party complaint against the City.  Badr argued that it filed a notice within days of discovering, and first having any reason to discover, its possible claims for contribution and indemnification against the City.

The Appellate Division found that the trial court correctly rejected Badr’s argument because it was inconsistent with, and contradicted by, the Court’s holding in the Jones case.  In Jones, neither the defendant nor the plaintiffs filed a notice of tort claim with the public entity within ninety days of the accident.  Plaintiff had filed a complaint more than a year following the accident, but did not assert a claim against the public entity.  The Supreme Court found that the notice of claim requirement applied to both a plaintiff’s claim and a defendant’s crossclaim or third-party claim against a public entity.  Also, under Jones, the Court “explained that a defendant who fails to serve a timely notice of crossclaim for contribution or indemnification …. is not without a remedy at trial.”  A defendant may seek an allocation of fault against a public entity under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law and obtain “a fair apportionment of damages as among joint defendants in accordance with the factfinder’s allocation of fault.”

Applying the Jones holding, the Appellate Division found that Badr’s notice of tort claim was not timely filed because it did not file a notice within ninety days of the accrual of plaintiff’s cause of action.  Badr also failed to move for leave to file a late notice of tort claim within one year of the accrual of plaintiff’s claim and, as a result, the trial court had no authority to grant Badr’s motion to file a late notice.  In the Jones case, the Supreme Court held that where a defendant fails to serve a timely notice of tort claim on a public entity and is not granted to leave to file a late notice, the Tort Claims Act bars that defendant’s crossclaim or third-party claim.

In summary, the Appellate Division affirmed the court’s orders dismissing Badr’s third-party complaint against the City and denying Badr’s motion for leave to file a late notice of claim and to deem the October 31, 2018 notice of tort claim timely.  However, the Appellate Division did note that Badr “shall be entitled to request that the jury allocate fault based on the alleged negligence of the City” as permitted by the Court in the Jones case.

The interesting part of this case is that even though the defendant knew of the claim within the one year time period and failed to timely seek leave to file a late notice of tort claim, the Appellate Division found that, nevertheless, although the third-party complaint was barred, the defendant was still entitled to request that the jury allocate fault based upon the alleged negligence of the public entity.

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 Jeanne Ludwig was shopping at the Michaels store when she tripped and fell over the base of a railing while backing up inside a shopping cart corral inside the store.  Plaintiff was looking for lights to display on her windowsill and tripped when her foot hit the base of the railing for the cart corral.  The issue in Ludwig v. Michaels Arts & Crafts Store, 2020 U.S. Dist. LEXIS 220618 (D.N.J. November 23, 2020) was whether the plaintiff was able to establish proof of causation, i.e. that the cart corral railing protruding into the walkway caused her fall.

While plaintiff was looking for the lights to display on her windowsill, she was directed by a cashier to look “over to the left on the other side of the store.”  The plaintiff went past the rest of the cashiers, which she thought was an aisle, but was blocked by carts.  She took at least three steps back before she was stopped by the carts.  She testified that she did not see them as she entered what appeared to be an aisle.  In fact, however, it was a corral for storage of the shopping carts.  As she backed up, her left foot hit the base of the railing and she went down.  She could not recall on which portion of the base she tripped over.  While Ludwig was aware of the railing, she was not aware that there was a base to the railing.  As a result of her accident, she suffered a fractured hip and a displaced left femoral neck fracture.

The plaintiff retained the services of an expert, Wayne F. Nolte, PhD, PE.  He opined that the accident site was in a hazardous condition due to the presence of a base plate for the cart corral system that projected into a foreseeable and accessible path of travel for customers.  Essentially, he opined that the base plates were a trip hazard.

The defendant store contended that the plaintiff failed to establish proof of causation.  The defendant argued that even if the cart corral was improper because the base plates extended into the walkway, the plaintiff was unable to substantiate that the improper aspect of the cart corral railing base plate is what caused her to fall.  Plaintiff conceded that she did not know or recall which portion of the base plate caused her to fall.

The Court pointed out that the plaintiff bears the burden of establishing causation by some competent proof.  She “was required to submit evidence establishing that it was more likely than not defendant’s improperly extending the base plates into the walking area caused her fall.”  The mere possibility that she contacted the portion of the base plate that extended into the walkway, as opposed to the portion of the base plate that did not extend into the walkway, would not be sufficient to meet her burden of proof. 

The plaintiff did concede that there were two possibilities that caused her fall.  First, that her foot caught on the interior section of the base plate which “dangerously extended” into the walkway or, second, her foot could have caught the portion of the base plate directly under the railing which was not extending into the walkway area, which would relieve the defendant of liability.

The District Court pointed out that when “the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the Court to direct a verdict for the defendant.”   While the Court recognized that the plaintiff’s accident was “real” and her injuries were “surely real” for which any “decent person” would sympathize, she was required to submit proof that the extended base plate caused her fall. 

Therefore, the Court found that she failed to produce evidence of that, as she herself did not know and there was no relevant third-party testimony or video evidence to substantiate what she tripped over.  Because she failed to establish that there was a genuine issue of material fact for trial, “i.e. that she possesses evidence from which a jury could legitimately find by a preponderance of the evidence that defendant’s negligently-kept cart corral caused her injuries,” the District Court granted the defendant’s Motion for Summary Judgment and dismissed the Complaint.

Defendant Louis Gargiulo Co., Inc. (“Gargiulo”) was hired as a general contractor to perform work at the Hudson County Schools of Technology. Defendant hired Adamo Brothers Construction (“Adamo”) to perform a portion of the work. Plaintiff, an Adamo employee, suffered an injury while operating a jackhammer on the job site. The issue in Sutuj v. Louis Gargiulo Co., Inc., 2021 N.J. Super. Unpub. LEXIS 16 (App. Div. Jan. 6, 2021) was whether Gargiulo could be held responsible for that injury.

Plaintiff was operating a jackhammer at the job site, but was not wearing protective goggles. As he was breaking up concrete, a piece of metal mesh from the concrete flew into his eye, causing him to suffer serious injury. Plaintiff testified that he forgot his goggles and had left them at home. He had worn safety goggles to the site previously but did not look for another pair, nor tell his boss that he forgot them.

He filed suit against the general contractor Gargiulo claiming that it was:

[N]egligent 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. Additionally, plaintiff claimed defendant violated the regulations and standards of the Occupational Safety and Health Administration Act (OSHA) and the New Jersey Construction Safety Act. 

Defendant Gargiulo moved for summary judgment, arguing that it did not owe plaintiff a duty of care. The trial court judge granted the motion, concluding as a matter of law, that the defendant did not owe plaintiff a duty of care. The judge found that “Adamo, as the subcontractor, was responsible for the safety of its employees, provided its employees safety equipment, and directed their work.”

This appeal ensued. The Appellate Division pointed out that a general contractor “is not liable for injuries to employees of the [sub]contractor resulting from either the condition to the premises or the manner in which the work is performed.” It is presumed that the independent contractor and its employees are “sufficiently skilled” to recognize dangers associated with their task and adjust their methods accordingly to ensure their safety.

There are exceptions to this general principle when “the general contractor retains control of the manner and means of doing the work contracted for” and when “he knowingly engages an incompetent subcontractor or where the work contracted for constitutes a nuisance per se, namely, is inherently dangerous.”

The Appellate Division found that none of these exceptions applied. The general contractor never told the subcontractor’s employees how to do the job. There was no evidence that the general contractor hired an “incompetent subcontractor.” Last, there was no evidence that, if the work was inherently dangerous if it was performed with the safety equipment provided by the subcontractor.

Hence, the Appellate Division affirmed the trial court’s decision, granting summary judgment to the defendant general contractor Gargiulo.

Plaintiff Elizabeth Harrington was having dinner at the defendant Fire & Oak restaurant in an elevated booth.  She had consumed two glasses of wine.  When she stepped down to exit the booth, she fell and fractured her hip.  The issue in Harrington v. South City Prime Montvale, LLC, 2020 N.J. Super. Unpub. LEXIS 2417 (App. Div. December 17, 2020) was whether the trial court judge impermissibly permitted the defense to introduce into evidence the plaintiff’s alcohol consumption.

Plaintiff was having dinner with her friend at the defendant Fire & Oak restaurant.  They sat in the bar and lounge area of the restaurant which had elevated banquet style booths constructed on top of a 12½ inch platform.  A customer would have to step onto the platform to enter the booth and step down to exit the booth. 

Plaintiff and her friend dined for about 3½ hours.  During that time period, the plaintiff drank two glasses of wine.  When they finished the meal, the plaintiff stepped down to exit the booth and fell.  She suffered a fracture of her right hip, which eventually required two surgeries to repair.

The manager on duty offered the plaintiff assistance following the fall.  He prepared an incident report which described the event and made no mention of any signs of intoxication. 

Thereafter, the plaintiff filed a lawsuit against the defendant restaurant on the basis that the restaurant allowed a dangerous condition to exist on the premises, which caused her injuries.  There was a dispute during the trial concerning the admissibility of plaintiff’s alcohol consumption on the night of the fall.  The defense had argued that the evidence was relevant to the events that occurred that night.  The plaintiff argued, on the other hand, that the evidence was irrelevant, highly prejudicial, and barred by case law.  Ultimately, the trial court ruled that evidence of the plaintiff’s alcohol consumption was admissible for the sake of a complete narrative as to what transpired on that evening.

The manager, however, testified that he observed plaintiff immediately after the fall and did not notice any signs of intoxication.  He prepared a memo describing the incident and included all of the information that he felt was important.  The memo did not indicate that plaintiff had bloodshot eyes, slurred her speech, or exhibited any other signs of intoxication.

The case was tried to a jury who returned a no cause verdict in favor of defendant.  By a vote of 5-1, the jury found that the defendant restaurant’s premises were reasonably safe on the night of the fall.  Plaintiff then moved for a new trial, based on a number of allegedly incorrect evidentiary rulings, including the admission of evidence as to the plaintiff’s alcohol consumption.  The no cause verdict ended up on appeal to the Appellate Division. The plaintiff argued on appeal that it was an error in permitting evidence of, among other things, her alcohol consumption on that night.

The Appellate Division discussed prior case law concerning the admission of evidence in accident cases.  Based upon prior case law, evidence of drinking alcohol to establish negligence must be supported with proof that the drinking affected the party’s conduct. 

Here, the Appellate Division noted that the defendant offered no supplemental evidence suggesting plaintiff’s intoxication.  There was no testimony concerning the volume of the wine glasses, plaintiff’s weight, or any testimony to establish when, during her 3½ hour long dinner, the wine was consumed.  Further, the Court noted that there was no evidence of plaintiff’s blood alcohol level, nor expert testimony to establish how her alcohol consumption may have impaired her.  Further, there was no lay testimony evidencing any kind of behavior to suggest that she may have been impaired.  To the contrary, the restaurant’s own employee testified that the plaintiff showed no signs of impairment and he did not include alcohol consumption as a contributing factor of the accident in his incident report.

The Court pointed out that prior case law has held that evidence of alcohol consumption prior to an accident is inherently very prejudicial.  Without supplemental evidence of intoxication, the case law has held that evidence of alcohol consumption is inadmissible.             

Based upon the existing case law and the facts of this case, the Appellate Division found that the admission of the alcohol consumption evidence warranted a reversal of the jury award.  Hence, the no cause verdict was reversed and remanded for a new trial.

Plaintiff Andres Prieto (as part of a team of contractors) was hired by the Defendant EH Associates, LLC d/b/a Fairbridge Inn & Suites to place sheetrock over skylights in the hotel’s ballroom and paint the ballroom’s walls. In the course of performing these services, he fell off his ladder and suffered injuries. The issue in Prieto v. EH Associates, LLC d/b/a Fairbridge Inn & Suites, 2020 N.J. Super. Unpub. LEXIS 2315 (App. Div. Dec. 3, 2020) was whether the Defendant hotel breached any duty to Plaintiff who Defendant claimed was an independent contractor.

According to the facts, Plaintiff worked full time as a spray painter for a company. At the time he suffered his injuries at the Defendant hotel, he, another individual (Romero) and two others were performing side jobs generally involving painting for various customers. Romero described this group as a “team” which supplied its own equipment for the side jobs.

The Defendant owned an East Hanover hotel. At the time, Plaintiff suffered his injuries, the hotel did have an on-site manager and his responsibilities included hiring independent contractors to perform work at the hotel. The manager hired Romero to place sheetrock over skylights in the hotel’s ballroom and paint the ballrooms walls. Before accepting the job, Romero spoke with Plaintiff to determine whether the team could perform the job because Plaintiff was more familiar with this type of work that was required. Plaintiff, Romero and three others worked in the ballroom for 3-4 days without incident. They used ladders each day to perform the work and no hotel employees supervised their work.

On the morning of the accident, the group arrived at the hotel. One member of the team opened a side door to permit Plaintiff to enter the ballroom with their materials. There were no hotel employees in the ballroom that morning. Once in the ballroom, the team placed plastic on the ballroom’s floor. Plaintiff set up a ladder and climbed up the ladder to spackle it. The ladder was owned by Romero and had been used previously on the team’s other jobs and during the team’s prior day’s work in the ballroom. About 20 minutes later after he began spackling, Plaintiff fell off the ladder. Plaintiff was not sure what caused him to fall because his eyes were focused on the ceiling not the floor. There was no evidence establishing that a physical condition of the hotel caused Plaintiff to fall.

The case was presented to the trial court judge for dismissal based upon a summary judgment motion. The Defendant hotel argued that it did not owe a duty to Plaintiff because Plaintiff was an independent contractor who brought his own equipment and suffered injuries after failing to properly secure the ladder that his team brought to perform work at the hotel. Further, the Defendant argued that there was no evidence that it supervised or controlled Plaintiff’s work or established that there was any issue concerning Plaintiff or the team’s competency as independent contractors.

On the other hand, Plaintiff argued that Defendant violated a duty to Plaintiff because it supervised Plaintiff, permitted work to proceed in an unsafe work environment, the work was dangerous and the Defendant had a responsibility to ensure that any of the workers were competent to perform the work before hiring them. The trial court rendered an opinion that, based upon the facts, the Defendant had hired Plaintiff and his team as independent contractors, the hotel never controlled the means and methods of Plaintiff’s work and they did not supervise Plaintiff’s work. There was no reason for Defendant to believe that Plaintiff was not competent to do this work. The court determined that Defendant was entitled to Summary Judgment as a matter of law because “a landowner is under no duty to protect a contractor’s employee from the very hazard created by doing the contract work.” Thus, the trial court entered an order granting Summary Judgment to the Defendant hotel.

This matter was appealed to the Appellate Division. The Court pointed out the well- settled law that “the difference between an employee and an independent contractor is…that ‘one who hires an independent contractor has “no right of control of the manner in which the work is done, (and the work) is to be regarded as the contractor’s own enterprise….’” To determine whether the individual is an independent contractor, the Court would look at whether the person had an independent business and contracts to do a piece of work according to his/her own methods without being subject to the control of the employer as to the means by which the result is to be accomplished.

The Appellate Division noted that the Defendant presented evidence that Plaintiff and the others comprising his team worked various side jobs for which they provided their own equipment and controlled all aspects of their work. When the team was hired to place sheetrock and paint the hotel’s ballroom, the Defendant did not discuss with the team how to perform the work, nor did the Defendant supervisor control the work performed by Plaintiff and the other members of the team in the ballroom. Further, it was undisputed that the Plaintiff, along with the rest of the team, provided their own equipment, was hired only for this specific span of time it took for the team to complete the job and that the work performed was not the hotel’s regular business.

The Appellate Division found that the trial court correctly ruled as a matter of law that Plaintiff was an independent contractor who carried on an independent business with Romero and the others using their own methods and equipment to perform the work. Although, a landowner has a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers, the landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing the contract work. The rationale for this carve-out is that the “the landowner 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.” This exception would not apply when the landowner retained control over the manner and means of the independent contractor’s work, when the landowner hires an incompetent contractor or when the activity constitutes a nuisance per se.

The Appellate Division found that in this case, the Defendant “had no duty to protect Plaintiff from the very hazard created by doing the contract work because the team was comprised of independent contractors” and Defendant “did not retain control over the manner and means of the team’s work.” The facts were undisputed that there was no instruction given to Romero, the team, or Plaintiff on how to perform the work; the Defendant did not supervise the team or its work; and the team used its own equipment, including the ladder from which Plaintiff fell. Thus, Defendant did not control the means and methods of Plaintiff’s work or supply the equipment and there was no evidence that Defendant was aware of the risk of harm Plaintiff created for himself by climbing the ladder he supplied to perform his work.

Thus, the Appellate Division upheld the trial court’s ruling, granting Summary Judgment to the Defendant and dismissing the complaint.

Plaintiff Josselyn Berniz (“Berniz”) worked as a housekeeper for defendants Jeffrey and Aisha Atkins. After cleaning their home, while leaving, she fell on their snow covered driveway.  It was still snowing when she left the defendants’ home. The issue in Berniz v. Atkins, 2020 N.J. Super. Unpub. LEXIS 1900 (App. Div. Oct. 8, 2020) was whether the “ongoing storm rule” subjected her claim to a dismissal.

When Berniz arrived that morning at the defendants’ home at about 9:30 am, she parked her car close to the garage doors. There was just a little bit of snow and ice on the driveway from recent storms. The plaintiff testified that she saw no salt or de-icing agent on the driveway. She entered the home with no incident.

Around lunchtime, the defendant Aisha Atkins asked plaintiff to move her car out of the driveway to the public street because of a severe storm warning. The defendant wanted all of the vehicles off the driveway so that their contractor could plow it. The plaintiff moved her car as instructed. As she was walking back to the house, she noticed that snow had started to accumulate.

The plaintiff finished her work around 4:30-5:00 pm. As she left the residence, Aisha warned her to be careful due to the snow. By this time, plaintiff’s route to her car was covered with snow and it was dark outside. Although owning a shovel and salt, the defendants failed to use either before the plaintiff left their home, nor did they take any action to help her down their snow covered driveway. They also did not turn on their outside lights.

As Berniz walked down the driveway to her car, she slipped and fell on the driveway, injuring her right hand.

At the trial court level, the defendants successfully had the case dismissed by summary judgment. The defendants relied upon the Bodine v. Goerke, 102 N.J.L. 642 (1926) case, which they argued stood for the proposition that “a landowner has no duty to remove snow or ice until a reasonable time after precipitation ends.” The trial court judge found that the plaintiff’s own actions caused the accident because of her coming to work, despite knowledge of the impending storm, and did not find that there was a duty owed by the defendants to her.

The plaintiff appealed the trial court’s dismissal to the Appellate Division. The Court reversed, relying upon its recently published decision in Pareja v. Princeton International Property, 463 N.J. Super. 231 (App. Div. 2020). In Pareja, the Court essentially rejected the ongoing storm rule as a defense and found that “a commercial landowner must take reasonable steps even when precipitation is falling.”

The Court noted that, per its Pareja decision, they felt that it was “dubious” that the ongoing storm rule was part of New Jersey’s jurisprudence. In Pareja, the Appellate Division found that “the mere fact that snow was falling when plaintiff slipped and fell, did not blanket defendants with immunity.” Instead, the Court followed case law concerning the duty of a landowner to “reasonably remove or reduce a hazard” once the person “knows or should have known about the dangerous condition.” A defendant’s negligence will turn on all relevant circumstances, only one of which was the continuing snowfall.

Here, the Appellate Division disagreed with the trial court judge that the plaintiff assumed the risk by leaving home. The Court found that there were issues of fact that should have precluded the trial court judge from granting summary judgement to the defendants. There were questions of fact as to whether the defendants acted reasonably in requiring the plaintiff to move her car in the middle of the day, extending her path from the residence to her car in the midst of snowstorm and failing to shovel or salt the driveway before plaintiff left the home at the end of the day and stepped onto the unlit, snow covered driveway.

The Appellate Division ruled that the trial court judge should have denied summary judgment. The Court reversed the trial court’s decision and remanded the case back for trial.

Neither this unpublished decision, nor the published Pareja Appellate Division decision, will be the last word on this topic in New Jersey. The Pareja decision was appealed to the Supreme Court by way of Petition for Certification. On September 9, 2020, the Supreme Court granted the defendant’s Petition for Certification (Pareja v. Princeton International Property, 2020 N.J. LEXIS 973 (Sept. 14, 2020)). Once the Supreme Court rules on this appeal, we will find out whether or not New Jersey will recognize the ongoing storm rule as a viable defense for commercial landowners.

Defendant Mark Zwierzynski (“Zwierzynski”), age 19, permitted his underage adult friends to consume alcoholic beverages in his home. Two of his guests, plaintiff’s decedent Brandon Tyler Narleski (age 19) and plaintiff Nicholas Gomes (age 20) left his home severely intoxicated. Shortly thereafter, Gomes lost control of his vehicle and crashed, causing Narleski’s death. In Estate of Narleski v. Gomes, 2020 N.J. LEXIS 993 (2020), the New Jersey Supreme Court was asked to decide whether there is a duty on underage adults – over the age of 18 but under 21 – “to refrain from making their homes a safe haven for underage guests to consume alcoholic beverages and, if so, the standard of liability if an underage guest, who becomes intoxicated, afterwards drives a motor vehicle and injures or kills a third party.”

Narleski’s parents filed a wrongful death action against Gomes, Gomes’ parents and Amboy Food Liquor and News (“Amboy”) where Narleski purchased the alcohol. Thereafter, Amboy sued Zwierzynski in a third party complaint.

On the trial court level, Zwierzynski was granted a summary judgment, dismissing the third party complaint, arguing successfully that he did not have a duty to supervise his friends. That ruling was appealed to the Appellate Division which set forth a new rule of law, to be applied prospectively only, that an underage adult “shall owe a common law duty to injured parties to desist from facilitating the drinking of alcohol by underage adults in his place of residence, regardless of whether he owns, rents, or manages the premises.”

The Appellate Division decision was further appealed to the Supreme Court by petition for certification.

In rendering its decision, the Supreme Court noted that the deterrence of drunk driving has been “a preeminent policy goal of legislative enactments and our common law for many decades.” To address this continuing problem, New Jersey statutes and common law impose civil liability on taverns and social hosts “who serve or facilitate the service of alcohol to visibly intoxicated customers and guests who then get into their vehicles and maim or kill others.”

Further, under New Jersey law, a social host over the age of 21 has a duty not to serve alcohol to a visibly intoxicated guest, if it is reasonably foreseeable that the guest is about to drive. But, in Narleski, the Court was asked to address a different scenario. Does a young adult – over 18 but under 21 years old, have a duty not to facilitate the service of alcohol to a visibly intoxicated underage guest in his home if the guest is expected to operate a motor vehicle?

On the afternoon of the accident, Zwierzynski and 3 friends (including Narleski) drove to the liquor store where Narleski was able to purchase beer and vodka without the store clerk asking for identification. They then drove to Zwierzynski’s home and went upstairs to begin drinking, playing video games, and watching tv. Zwierzynski’s mother was not home at the time. (His parents were separated at the time.) Later, Narleski texted his friend Gomes to come over to Zwierzynski’s home, where they were drinking. Gomes came over and drank vodka in Zwierzynski’s presence. About 50 minutes later, Narleski and Gomes decided to leave and go visit another friend. According to Gomes, he had a “buzz” and Narleski was slurring his words.

Narleski got into the passenger seat of Gomes’ vehicle and Gomes drove away. Enroute to their friend’s house, Gomes sped past a vehicle, lost control of his car, crashed into the roadway’s concrete center divider and went airborne. Narleski was ejected from the vehicle, which flipped several times and landed on top of him. He was pronounced dead at the scene.

The police took a blood sample from Gomes and determined that his blood alcohol level was .16% at the time of the crash – twice the permissible legal limit for an adult of legal drinking age.

Both the trial court and the Appellate Division found that there was “no established precedent in New Jersey imposed on Zwierzynski a duty to prevent his underage friends – the ones he invited into his home – from drinking or drinking excessively while in his parents’ home.” Thus, the Appellate Division felt that, under the current law, Zwierzynski would be exonerated from civil liability for Narleski’s death. But, it felt that such law would be a natural extension of existing case law on a prospective basis.

After reviewing prior case law and public policy to deter injuries from drunk driving, the Supreme Court concluded as follows:

[A]n underage social host, who makes his residence available and facilitates underage drinking, has a duty not to knowingly provide or allow self-service of alcohol to a visibly intoxicated guest and, if a guest becomes visibly intoxicated, to take reasonable steps to prevent the guest from operating a motor vehicle.

For a plaintiff injured by an intoxicated underage social guest to be able to succeed in a lawsuit against an underage social host, the Court ruled that the plaintiff must prove the following:

(1) The social host knowingly permitted and facilitated the consumption of alcoholic beverages to underage guests in a residence under his control. This element does not require that the social host be a leaseholder or titleholder to the property. It is enough that the social host has the ability and apparent authority to give others access to the property;
(2) The social host knowingly provided alcohol to a visiblyintoxicated underage guest or knowingly permitted the visibly intoxicated underage guest to serve himself or be served by others. It is no defense that the underage guests bought and brought the alcoholic beverages that they or others consumed;
(3) The social host knew or reasonably should have known that the visibly intoxicated social guest would leave the premises and operate a motor vehicle and therefore would foreseeably endanger the lives and property of others;
(4) The social host did not take any reasonable steps to prevent the intoxicated guest from getting behind the wheel of the vehicle; and
(5) The social guest, as a result of intoxication facilitated by the social host, negligently operated a vehicle and proximately caused injury to a third party.

Based upon this ruling, the Supreme Court reversed the summary judgment ruling in favor of defendant Zwierzynski and remanded the matter back to the trial court for trial.

The plaintiff, Mia Alers-Alvira, was leaving the Red Lobster restaurant when she slipped and fell on the last of three steps that led to the entrance/exit pathway of the Red Lobster.  She claimed that she fell on the oily residue on these concrete steps.  In the case of Alers-Alvira v. Red Lobster Restaurant, Inc., 2020 N.J. Super. Unpub. LEXIS 1610 (App. Div. August 19, 2020), the issue was whether the defendant Red Lobster could be held liable for its knowledge that pedestrian foot traffic left an oily residue on its steps but failed to follow its own protocol on the day of the fall to inspect its steps.

The plaintiff, who was 24 years old at the time of the accident, had lunch at the Red Lobster restaurant in Secaucus, New Jersey.   A customer can enter the restaurant by either walking up three steps constructed out of gray concrete or using a ramp adjacent to the steps.  The plaintiff testified that she used the stairs when she entered the restaurant at about 1:00 p.m. and then again when she left at 1:50.  She described the weather as misting.  As she was going down the steps, when she put her foot on the last step, she slipped.  When the plaintiff turned around to raise her hand to get up, the step felt like it had a filmy, oily residue on it, like someone had poured oil on there.

The manager of the restaurant testified that, as part of his duties, he inspected the property on a daily basis to make sure that everything looked okay.  He admitted that his duties included keeping the premises of the restaurant safe and maintaining the outside steps and adjacent ramp that lead to the entrance.  Every Monday, they had a company power wash the exterior of the restaurant, including the steps.  The manager testified that the steps at times did have a “filmy, oily residue,” a grease that came from patron’s shoes because this was a “highly trafficked area.”  He never had any prior complaints about the condition of the steps, except when it was raining or showing.

The plaintiff retained the services of a consulting engineer as an expert, Michael Natoli.  Mr. Natoli inspected the steps and concluded that “the prior filmy, oily residue coating in the stairway areas and lack of proper nosing delineation, are causes of the plaintiff’s injury.”  He also opined that “the lack of proper maintenance afforded to the stairway areas yielded unsafe conditions for pedestrians.”

The defendant filed a motion for summary judgment and, the judge dismissed the case as to Red Lobster.  The judge found that while Red Lobster had control over the steps and was responsible to clean it, there were no facts presented to the court that the defendant had notice of any defect on the date of the plaintiff’s fall.  With respect to the grease, the judge found that there was no indication that the grease accumulated on the steps.

The Appellate Division reversed.  It found that the manager acknowledged that the pedestrian foot traffic left an oily residue on the steps leading to the restaurant’s entrance.  He testified that he visually inspected the steps on a daily basis and had an outside company power wash that area including the steps and that the restaurant required the employees to keep the area free from snow and ice during the winter.  However, the manager was not at work on the day of the accident and there was no evidence that another employee assumed his responsibilities, including reviewing the condition of the steps on the date of the accident.

Thus, the Appellate Division held that a jury could find that Red Lobster was aware that the steps to its restaurant could become hazardous from the oily residue left behind by the customer’s shoes.  Further, a jury could find that Red Lobster was negligent when it failed to designate an employee to inspect the steps in the manager’s absence and, last, that it could find that this omission was a proximate cause of plaintiff’s accident. 

Therefore, the Court concluded that there was enough in the record for plaintiff to survive summary judgment.  Thus, the Appellate Division reversed the trial court’s decision and remanded the case for trial.