Negligence

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.

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.