Negligence

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.

In the published Appellate Division decision, Pickett v. Moore’s Lounge, 2020 N.J. Super. LEXIS 208 (App. Div. August 25, 2020), the Court was asked to decide whether insurance coverage existed as to the defendant tavern to cover the lawsuit against it for the fatal shooting of one its patrons. The tavern’s insurance company, Northfield Insurance Company (“Northfield”), contended that the assault or battery exclusion in its policy was broad enough to bar all claims that were brought by the estate of the deceased patron against the tavern.

Roger Pickett (“Pickett”) and James Corley (“Corley”) got into an argument at the tavern, Moore’s Lounge, on New Year’s Day. As Pickett walked away, Corley shot and killed him. Pickett’s estate claimed that the tavern had searched Pickett and other customers for weapons before they entered but Corley, as a retired police officer and a regular customer, was allowed to enter with a concealed weapon. Further, the estate alleged that the tavern’s staff continued to serve Corley even after he showed signs of intoxication after consuming excessive amounts of alcohol.

The estate sued the tavern EMRO (Moore’s Lounge was its common name), claiming that EMRO negligently managed its employees “whose incompetence and unfitness caused Pickett’s death.” The complaint included a claim for negligent hiring; training, supervision and oversight; and retention. The estate also alleged generally that EMRO was negligent for failing to ensure that Pickett, as its business invitee, was free from “reasonably foreseeable criminal activity.”

EMRO sought a defense and indemnification for this lawsuit from Northfield, which invoked the assault or battery exclusion to deny EMRO’s request for coverage. The assault or battery exclusion was defined as:

“Bodily injury” or “property damage” arising out of any act of “assault” or “battery” committed by any person, including any act or omission in connection with the prevention or suppression of such “assault” or “battery.”

EMRO filed a third party complaint against Northfield for coverage. It ended up settling with the plaintiff and reserved its rights to pursue its claim against Northfield. EMRO filed a motion for summary judgment against Northfield, requesting indemnification as to the settlement plus attorney’s fees incurred in the defense of the lawsuit. Northfield cross-moved for summary judgment, claiming that the assault or battery exclusion barred coverage for the estate’s claim against EMRO.

The trial court judge agreed with Northfield’s position, finding that this exclusion barred coverage under Northfield’s policy. In this published decision, the Appellate Division affirmed the trial court’s decision.

The Court noted that while exclusionary clauses in an insurance policy must be narrowly construed, they will be enforced if they are “specific, plain, clear, prominent, and not contrary to public policy.” Here, the Appellate Division found that the assault or battery exclusion not only barred bodily injury claims “arising out of” assault or battery but also “include[es] any act or omission in connection with the prevention or suppression” of such assault or battery. Thus, the Court found that this exclusion plainly encompassed the estate’s allegation “that EMRO negligently failed to exercise reasonable care to assure the tavern was a safe place.”

And, this exclusion also embraced the estate’s claim of negligence against the tavern as for the negligent personnel management as to the hiring, training, and retention of employees, claiming that EMRO’s staff did nothing to prevent Corley from shooting Pickett. The estate had alleged that the staff “allowed Corley to enter with a gun, allowed him to retain the gun throughout the evening as he became more intoxicated, and did not intervene when he began arguing with Pickett.”

Thus, the Appellate Division found that this exclusion was broad enough to exclude all claims under the Northfield policy that had been alleged against EMRO. The Court agreed that this exclusion precluded EMRO’s claim against Northfield for indemnification of its defense costs and the settlement it paid to the estate.

Plaintiff Richard Connors visited the defendant’s Sam’s Club Store on a clear, sunny and dry day.  Outside the store entrance was a metal advertisement sign, which was positioned next to a flower display and about three feet to the right of the entrance door marked “Welcome.”  In Connors v. Wal-Mart Stores Inc., 2020 U.S. Dist. LEXIS 96937 (D.N.J. June 3, 2020), the issue was whether the defendant’s store could be held responsible for the plaintiff’s injuries that were alleged to have occurred when he tripped over the advertisement sign’s leg.

The plaintiff had parked his car and approached the Sam’s Club Store.  After arriving at the entrance door, he paused for a second for the door to open.  When it failed to open, he realized it was closed and inoperative.  He looked towards his right, at which time he saw the exit door and the flower display.  He proceeded towards the entrance way on the right side of the building and the automatic door marked “Exit.”  As he walked past the main entrance door, he tripped and fell over the advertisement’s sign’s leg.  The advertisement sign measured about 3 feet tall by 2 feet wide with black legs at its base differing in color from the concrete floor underneath.

The facts showed that the sign did not block any portion of the entrance way.  The sign was neither broken nor damaged.  Also, the manager of the store was unaware of any other person other than the plaintiff ever falling over this sign.

Plaintiff admitted that he did not see the sign and the sign was not defective.  His complaint was over what he believed to be the sign’s misplacement.

Plaintiff admitted visiting this particular store on several prior occasions and using the same entrance he had tried to use on the date of the accident.  While he was aware that Sam’s Club uses advertisement signs like the one he tripped over, he testified that he had not looked at them. 

Under New Jersey law, a business proprietor owes a duty of reasonable care to those who enter the premises to provide a reasonably safe place to do that which is within the scope of the invitation.  The duty encompasses an obligation to maintain the businesses in a reasonably safe matter for its invitees.

However, the Court noted that this duty of reasonable care is not limitless.  Not every property condition in which persons can hurt themselves is unreasonably dangerous or hazardous.  The Court noted that “if ordinary persons who are likely to encounter a condition may be expected to take reasonable care without further warnings, and if the condition is plainly visible with no unusual features and in a place where they would naturally look for it, then the condition is not unreasonably dangerous.”

The District Court noted here that the advertisement sign that the plaintiff tripped and fell over was neither broken, defective, nor damaged.  It did not block any portions of the store entrance ways and the store manager was unaware of anyone else falling in the prior 8 years over this particular sign.  Based upon the facts, the Court determined that no reasonable jury could find that the store had actual or constructive notice of the sign as a dangerous condition.

The District Court noted that it was the store’s policy not to place signs or any other obstructions in front of the bollards which are in front of the store, to ensure a clear pedestrian pathway.  Rather, advertisement signs were placed behind the bollard in front of the middle bay door because this was not a customer entrance.  The sign at issue was not placed in front of the Welcome or Exit doors.  Instead, it was placed off of the pedestrian walkway, next to the flower display, where no ordinary pedestrian reasonably would have walked.

The Court further noted that the placement of the sign in front of the defendant’s door was part of its regular and normal business practice. The Court stated that “there is no doubt that the very purpose and function of these storefront signs, and their strategic placement, is such that they may be viewed by customers as they enter the store.”  Further, the District Court pointed out that the sign was plainly visible, similar to ones during plaintiff’s previous visits to the store and was placed in a similar location.  The Court found that the sign and its placement were conditions of the store that the plaintiff, like any other ordinary person visiting the store would be likely to encounter.  Therefore, the plaintiff should have taken reasonable care to avoid coming into direct contact with it.  

Thus, the Court concluded that no reasonable jury could find that a dangerous condition existed, or was created from the defendant’s store’s placement of its advertisement.  The District Court granted the defendant store’s motion for summary judgment, which dismissed the complaint in this matter.

Plaintiff, Janet Freed, took her dog, a female golden doodle, into the Off-Leash Dog Area of Thompson Park, a Monmouth County Park. The dog owned by the defendants Linda and Frank Bastry, a male golden retriever, ran into plaintiff while chasing her dog and caused her injury.  In Freed v. Bastry, 2020 N.J. Super. Unpub. LEXIS 1279 (App. Div. June 29, 2020), plaintiff sued the defendants for violating the dog park rules in bringing an unneutered male to the dog park and letting him run free.

The Off-Leash dog area had guidelines for use that were posted near its entrance.  One guideline prohibited dogs with a history of dangerous or aggressive behavior and puppies under four months old from using the area.  The guidelines also stated that dogs over six months old must be spayed or neutered.  On the day of the incident, the defendants took their dog to the dog park, who was 7½ months old, and had not been spayed or neutered. 

The plaintiff and defendants were standing in the dog area about four feet apart, talking about golden retrievers, as the two dogs began playing and chasing each other.  Plaintiff admitted in her deposition that she saw no reason to be concerned about either dog and never called her dog away from defendants’ dog.  At one point, defendants’ dog was chasing plaintiff’s dog, which ran between plaintiff and defendants and ran into plaintiff at full speed, knocking her to the ground.  As a result, she suffered a tibial plateau fracture of her right knee and underwent a series of surgeries. 

Plaintiff obtained an expert report, purportedly an expert on canine behavior.  He noted that the defendants’ dog was more than 6 months old, not neutered and had no obedience training as of the date of the incident.  He opined that if the defendants had properly neutered their dog prior to letting him run free, the dog would have been less aggressive and, therefore, less likely to run into the plaintiff’s leg. 

At the trial court level, the defendants filed for a summary judgment, “contending that the park guidelines did not create a duty owed by dog owners using the area to others in the Off-Leash dog area.”  They contended that bringing their unneutered dog to the area breached no duty.  However, the plaintiff contended that the park guidelines “had the force of statutory law and were adopted by the County to curb aggressive canine behavior.”  The plaintiff argued that her liability expert opinion established that the aggressive behavior of the defendants’ dog caused the accident.

The trial court judge ruled that the posted guidelines did not create a duty owed by defendants to plaintiff and others using the area.  The judge did state that it would be fair to impose a duty on defendants to regulate their dog’s behavior in the Off-Leash area.  However, no one described defendants’ dog’s behavior as aggressive but, rather, he was simply running around a dog park. Hence, he granted summary judgment to the defendants.

 Upon appeal, the Appellate Division noted that the plaintiff’s complaint did not allege a cause of action under N.J.S.A. 4:19-16 which “imposes strict liability upon the owner of a dog for all damages caused if a dog bites another person.”  This statute does not cover the situation in which an individual suffered injuries from being knocked down by a dog but not being bitten.  In that case, there remains a common law cause of action in which scienter must be proved to establish liability when a dog injures a person but does not bite the person.  To pursue this cause of action, the owner may be liable if he or she knew or should have known of the dog’s “dangerous or mischievous propensities.” 

Here, the Appellate Division noted that the plaintiff has not asserted or demonstrated that the defendants had the required scienter regarding an aggressive or dangerous propensity of their dog.  Without scienter, the owner shall not be liable unless a plaintiff can prove the defendant’s negligence in failing to prevent the injury.

Plaintiff recognized that defendants owed no duty to her and other dog owners using the Off-Leash dog area to restrain their dog from doing precisely what was permitted, run around freely and play with other dogs.  The Court noted that plaintiff in her deposition, saw nothing about the behavior of defendants’ dog that suggested any need to intervene by defendants.  The Appellate Division stated that the plaintiff was attempting to have the Court oppose a duty on defendants to have neutered their dog before bringing him to the park based solely on the posted guidelines.

Although the plaintiffs never produced a resolution from the County adopting the guidelines as rules and regulations pursuant to a statute, the Court considered the argument that the guidelines were validly adopted regulations, which, if violated, could be enforced in the appropriate Municipal Court as an ordinance violation.  However, in this case, the plaintiff failed to produce any evidence regarding the reason for adopting the guidelines or if it was intended to benefit both the canine and human occupants of the Off-Leash dog area.  The Court noted that the guidelines may have been intended to curb aggressive behavior in older dogs, “thereby reducing the likelihood of sexual aggression towards other dogs, or the biting of dogs or humans.” 

Finally, the Appellate Division noted that the guidelines were not intended “to reduce the risk to those in the Off-Leash area posed by a dog otherwise exhibiting no overt aggressiveness or rambunctious behavior, such as jumping up on other dogs or humans in the area.”  The Court stated that even if the guidelines did reflect a duty imposed on dog owners to using the area to spay or neuter the dog that was more than six months old, it found that “the guidelines were not intended to reduce the risk posed by normal canine behavior, i.e., one dog running after another dog and, in the process, colliding with a human.”  Hence, the guidelines were not intended to reduce the risk of the particular hazard that caused the plaintiff’s injury.            

Accordingly, the Appellate Division upheld the summary judgment granted to the defendants, dismissing the case.

The minor plaintiff, five year old, Vince Costello, was shopping at a Target Store with his aunt, Liza Costello.  After shopping, they were waiting outside the store for a ride home when Vince began playing on top of a red, spherical bollard in front of the store.  After playing for some time, he fell off and injured his arm.  In Costello v. Target Corp., 2020 U.S. Dist. LEXIS 65484 (D.N.J. April 14, 2020), the issue was whether Target could be found negligent for placing the bollard, an alleged dangerous condition and attractive nuisance, outside the store.

According to the video of the incident, the minor plaintiff is seen climbing on and off one of the bollards for about 20 minutes while his aunt is sitting on a bench watching him.  Target’s Director of Construction testified that the bollards are visual cues to separate the sidewalk from traffic and act as a barrier between pedestrians walking on the sidewalk and cars driving in the road or parking lot.  He also testified that there had been no prior accidents or lawsuits involving children or adults falling off, or being injured by, the bollards.

The plaintiff retained an expert, Dr. Robert Sugarman, who holds a doctorate in experimental psychology.  He also has a Bachelor’s of Arts degree in physics and a certificate in engineering and is a licensed engineer in California.  However, he is not a certified safety professional but considers himself a “human factor of specialists.”  He authored a report in which he concluded that “the large, red balls decorating the entrance to the Target Store were an attraction to children,” and, “as a large toy, with inherent slip and fall hazards that are not immediately obvious to children or adults, and serves no purpose that warranted the risk to the public.”

Target filed a motion for summary judgment, seeking a dismissal arguing that it did not breach any duty of care owed to the minor plaintiff.  Under New Jersey law, the common law does impose a duty of care on business owners to maintain safe premises for their customers. 

The Court found that there was “no evidence that the bollard was improperly installed, that it had a defect, that it was dangerously slippery, or that it was defectively designed.”  Further, the Court noted that there was no contention that the bollard violated any codes or standards.  While it was spherical, the Court commented that “everything has to have some shape, and there is no evidence that this shape was more dangerous than, say, a cube or some sort of stanchion.” 

Further, the District Court stated that there was no evidence that Target had either constructive or actual notice that the bollard posed an unacceptable danger. 

The plaintiffs relied on their experts’ contentions that children by their very nature would be attracted to objects that resemble toys, such as these bollards, which resemble red balls.  The Court noted that while one could sympathize with an injured child, “it cannot be said that this injury arose from an inherently dangerous condition that created an unreasonable risk of harm.”  Further, the Court noted that the danger was “surely obvious” to plaintiffs.

Accordingly, the District Court found that the plaintiffs’ claims fail for obviousness.  The Court noted that the danger of falling should be obvious, perhaps even to a child, but certainly to the adult caring for him.  The aunt admitted during her deposition that she watched and interacted with Vince as he played on the bollard.  Therefore, the Court found that “even if the conditions noted could be considered dangerous, no reasonable factfinder could conclude that plaintiff was unaware of those conditions.”

Hence, the District Court found that the plaintiff failed to establish that Target breached a duty to exercise reasonable care and grant summary judgment in Target’s favor.

Plaintiff Ellen Cavilla tripped over a partially exposed pipe and broke her wrist while fishing in Gaskill Park in April 2015.  She sued Atlantic County for negligence due to her injuries.  The issue in Cavilla v. County of Atlantic, 2020 N.J. Super. Unpub. LEXIS 877 (App. Div. May 11, 2020), was whether a negligence claim could be maintained against the County under the New Jersey Tort Claims Act due to lack of notice of the pipe.

The defendant County claimed that it had no actual or constructive knowledge of the alleged dangerous condition, as required under the Act.  Hence, it moved for summary judgment on the trial court level, which was granted.

To maintain a claim for personal injury under the Tort Claims Act, a plaintiff must demonstrate five elements.  For a public entity to be liable for an injury caused by a condition of its property, the plaintiff must establish: “1) that the property was in a dangerous condition at the time of the injury; 2) that the injury was proximately caused by the dangerous condition; 3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; 4) that the public entity created the dangerous condition or had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition; and 5) that the public entity’s actions were palpably unreasonable.”

In this case, the issue was whether there was proof that the public entity had actual or constructive notice of the dangerous condition.  To prove actual notice, the public entity must have actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  For a public entity to be deemed to have constructive knowledge of a dangerous condition, that occurs “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

Based upon the Appellate Division’s review of the record, the Court found that the plaintiff could not successfully establish a prima facie case of negligence because she had not presented evidence that the County had actual or constructive notice of the location or condition of the pipe.  The plaintiff argued that the photographs of the pipe created a fact question as to the constructive notice issue.  The Appellate Division disagreed with that argument.  The Court noted that these photographs, viewed in the light most favorable to plaintiff, may establish that a dangerous condition existed, but they did not establish that the County had actual or constructive notice of that condition.

The plaintiff argued because the County was “actively” and “regularly” mowing the area, it must have been aware that the pipe was present.  Neither the trial court, nor the Appellate Division found that argument to be persuasive.

The superintendent of Atlantic County Parks provided an Affidavit, indicating that he conducted a diligent search of the Park’s records and found no record of a visitor notifying the Park system of any dangerous condition regarding the pipe.  According to the record, the first time the Park system was notified of this condition was when the County received plaintiff’s present claim.

The Court noted in a footnote that the photographs of the pipe were taken 9-18 months after the accident.  They showed the pipe was at least partially obscured by soil and grass.  While the plaintiff initially maintained that these photographs accurately depicted the condition of the accident scene on the date of her fall, she subsequently provided a second Affidavit in which she claims that the pipe was discernable.  The Court noted that there was an “inherent tension” between her argument that the pipe was sufficiently concealed to constitute a dangerous condition and yet was of such an obvious nature as to put the County on actual or constructive notice of the condition.

The Appellate Division found that plaintiff failed to establish the notice element but also noted that the plaintiff failed to satisfy element number 5, in that she presented no evidence that the County had acted in a palpably unreasonable manner.  There was no proof presented that the County was notified of any condition regarding the pipe until the plaintiff filed the complaint. Hence, the plaintiff had failed to present any evidence from which to conclude that the County acted in a palpably unreasonable manner.

Accordingly, even when viewing the plaintiff’s evidence in the light most favorable to her, the Appellate Division found that she had not established a prima facie case of negligence under the Tort Claims Act.  Thus, the County was entitled to summary judgment.  Accordingly, the Appellate Division affirmed the summary judgment in favor of the County, dismissing the complaint.

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 25 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 Richard Underhill parked his car in a municipal parking lot known as the Kaplan Lot located in the Borough of Caldwell.  He walked across the street with his wife and friends to eat dinner at a nearby restaurant.  Upon returning to his parked car, he walked up an internal driveway that connected the street to the lot.  As he was walking on the driveway, he slipped on what he had described as “black ice” and suffered an injury.  In the published Appellate Division decision of Underhill v. Borough of Caldwell, 2020 N.J. Super. LEXIS 58 (App. Div. May 21, 2020), the Appellate Division found the lease between the defendant owners and the Borough controlling in delegating to the Borough the responsibility to clear the premises of ice and snow.

The Kaplan parking lot and the connecting driveway were owned by the defendants Carol Dakin and Susan Fields who had leased the property to the Borough in September 1998 for a term of about 20 years.  Based upon the lease agreement, the Borough was contractually responsible for the maintenance of the lot, which included snow and ice removal.

The plaintiff and his wife sued both the Borough and the private owners, claiming that they were negligent in failing to maintain the parking lot and the internal driveway connected to it in a safe condition.  The Borough had leased the parking lot from the defendant owners.  Both the defendant property owners and the Borough filed for a summary judgment dismissal.  The trial court granted the Borough’s motion based upon the plaintiff’s failure to establish actual or constructive notice of a dangerous condition.  That decision was not appealed. 

The trial court also granted summary judgment to the property owners based upon the absence of notice.  The plaintiffs, however, appealed that ruling, arguing that the property owners had a non-delegable duty under tort law to keep the premises safe from accumulated ice and snow, or in the alternative, they argued that the language of the lease did not delegate that duty to the Borough with sufficient clarity.

The Appellate Division affirmed the trial court’s decision in finding that the property owners were not liable for the plaintiff’s injuries.  However, their ruling was based upon the Supreme Court’s recent opinion in Shields v. Ramslee Motors, 240 N.J. 479, (2020), in which the Court had found that the property owners were entitled to summary judgment as a matter of law based upon the lease with its tenant.

On the days leading up to the plaintiff’s fall, it had snowed intermittently.  The Borough had engaged in extensive snow removal in all of the Borough’s roadways and properties during those five days.  The Kaplan lot was included in the snow and ice removal activities. 

The issue in this case was whether there was a duty of care owed by the defendant property owners to remove ice and snow from the parking lot and internal driveway they leased to the Borough.  The Appellate Division based its ruling on the Shields case, in which the Supreme Court had framed the issue as “whether the owner of a commercial property owes its tenant’s invitee a duty to clear snow and ice from the property’s driveway while the property is in the sole possession and control of the tenant.”  The Supreme Court answered that question in the negative.

Relying on the Shields decision, the Appellate Division pointed to the language in the Lease Agreement which broadly stated that the lessee must “[k]eep the demised premises free of obstructions, snow and ice.”  The Court rejected the argument that the Shields case was distinguishable because this was a “public” driveway and parking lot.

It was undisputed that the Borough maintained control over this lot and driveway during the term of the lease.  The lease delegated to the Borough the obligation for snow and ice removal and, in fact, it had performed snow and ice removal for several days in a row leading up to the plaintiff’s fall.  Just like in Shields, the lot and driveway where plaintiff fell were within the exclusive control of the tenant Borough.  The Appellate Division found that the lease agreement “sufficiently and expressly delegated snow and ice removal duties to it, and the Borough thereafter consistently performed those duties.”

The Appellate Division rejected the plaintiff’s attempt to analogize the parking lot, because it was used by the tenant as a municipal facility, to a public sidewalk that abuts a public street.  The Appellate Division found that the Borough’s decision to use the premises for public parking did not “thrust upon the landlords a non-delegable duty of care to clear snow and ice within the interior perimeter of the premises.”  The Appellate Division found that this duty was assumed by the Borough when it entered into the lease.

Thus, the Appellate Division upheld the summary judgment to the property owners, although on a different reason than the trial court judge expressed.  Hence, the trial court’s decision was affirmed.

In a published decision involving a slip and fall accident on a public sidewalk due to black ice, the Appellate Division rejected the ongoing-storm rule as a defense (aka the Storm in Progress rule). Instead, in Pareja v. Princeton International Properties, 2020 N.J. Super. LEXIS 41 (App. Div. Apr. 9, 2020), the Court held that a commercial property owner has the duty of reasonable care to remove or reduce known foreseeable snow or ice hazards on public sidewalks abutting its property while precipitation is falling.

This accident occurred on a public sidewalk adjoining a commercial property consisting of two offices on the first floor, two apartments on the second and third floors, and a paved parking lot with a concrete driveway apron. The accident occurred at 7:50 am on a Monday, January 12, and, hence, it could be assumed that businesses were open, residents living in the building were coming and going, and pedestrians were using the sidewalk.

There was no snow or ice pre-treatment or removal on the date in question at the property. Due to the weather, black ice formed on the sloped apron, which caused plaintiff to slip on his way to work, suffering a serious injury.

It had snowed on the days prior to the accident. Prior to that morning, there was a weather advisory that there would be a mix of snow and sleet accumulations of about one inch, as well as trace amounts of ice, between 1:00 am and 10:00 am on January 12. Further, the advisory warned that untreated surfaces might become slippery due to the precipitation.

Indeed, per the plaintiff’s weather expert, there was some freezing rain and sleet during the night and a mix of sleet, rain, and freezing rain that morning at the time of the accident. Plaintiff testified that when he fell, there was drizzling sleet. It was reasonably inferred that the defendant property owner knew of the advisory’s warning that untreated surfaces might become slippery. Plaintiff’s liability expert opined that pre-treating the slippery conditions with anti-icing and deicing materials would have reduced the hazard.

The trial court granted the defendant property owner’s motion for summary judgment based upon the application of the ongoing-storm rule. The trial court found that the defendant property owner had no duty to remove or reduce the ice hazard until after the precipitation ended.

The Appellate Division, in a lengthy opining, soundly rejected the use of this rule. The Court noted that such a “bright-line rule, however, ignores situations when it is reasonable for a commercial landowner to remove or reduce foreseeable and known snow or ice hazards.”

The Court held that a commercial landowner “has a duty to take reasonable steps to render a public walkway abutting its property – covered by snow or ice- reasonably safe.” Further, the Court found that this duty “cannot be fulfilled by always waiting to act until a storm ends, regardless of the risk imposed to invitees and pedestrians.”  The liability of the commercial landowner “may arise only if, after actual or constructive notice, it fails to act in a reasonably prudent manner under the circumstances to remove or reduce the foreseeable hazard.”

The Appellate Division reviewed not only the published case law in New Jersey but, comprehensively reviewed the case law in other jurisdictions, which either rejected or supported the use of the ongoing-storm rule as a defense. The Court disagreed that there was any case law in New Jersey that supported its use. And, while not binding, the Court found that the law of other jurisdictions rejecting the application of this rule were persuasive.

The Appellate Division noted that the premise of this rule is that it would be “inexpedient and impractical to attempt reasonable efforts to remove or reduce known foreseeable snow or ice hazards while precipitation is falling.” The Court disagreed with this premise, noting that “[s]ometimes it is impractical; other times it is not.”  But, applying this doctrine, would usurp the jury’s consideration of reasonableness and would “suspend a property owner’s general duty to exercise reasonable care” as to snow and ice hazards while precipitation is falling.

The Court made it clear that it was not imposing strict liability upon commercial landowners for every slip and fall during the course of a storm or that such owners were responsible to clear every inch of their property during an all day storm. But, it should be a jury question as to whether the commercial landowner acted reasonably to remove snow and ice hazards.

The Court held that “a commercial landowner has a duty to take reasonable steps to render a public walkway abutting its property – covered by snow or ice- reasonably safe, even when precipitation is falling.” Further, the Court ruled “[t]that the commercial landowner’s liability may arise only, after actual or constructive notice, it fails to act in a reasonably prudent manner to remove or reduce the foreseeable hazard.” Finally, the Court held that “reasonableness” is generally a jury question.

Hence, the Appellate Division reversed the trial court’s decision granting summary judgment to the defendant property owner. The Court found that there were questions of fact as to the defendant’s knowledge of the anticipated icy conditions and whether the defendant acted reasonably under the circumstances by not acting in any way to prevent, remove, or reduce hazards associated with the precipitation. It would be a jury question as to whether the defendant acted reasonably under all the circumstances by failing to take any precautionary measures and waiting for the precipitation to end.