Negligence

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.

Plaintiff, Jean–Pierre Therrien, while on duty as a police officer, observed a disabled motor vehicle with its hazard lights activated, blocking a busy intersection.  Plaintiff spoke with the defendant driver Lynda Blow and learned that her vehicle had run out of gas.  While in the process of helping push her vehicle to the side of the roadway, plaintiff was injured.  The issue in Therrien v. Blow, 2020 N.J. Super. Unpub. LEXIS 457 (App. Div. March 4, 2020), was whether the disabled motorist could be liable for the police officer’s injury.

The plaintiff officer had instructed the plaintiff to remain in her car and place it in neutral so he could push it closer to the side of the roadway.  She followed his instructions and steered the car toward the side of the road as plaintiff pushed from behind.  The car struck the curb.  Sensing that the vehicle was no longer moving, plaintiff continued to push with more strength and, as a result, ruptured his Achilles tendon.

The plaintiff officer sued the defendant, claiming that she breached the duty to safely operate her vehicle by not providing sufficient fuel and allowing it to become disabled.  Further, he claimed that she operated the car in a negligent fashion by steering it into the curb.

After the defendant answered the complaint, she moved for a summary judgment.  The trial court judge granted the defendant’s motion to dismiss the case.  He found that even if he found that “for purposes of this motion running out of gas and steering into a curb constitutes negligence, I do not believe there is proximate cause between the injury and negligence.” 

The plaintiff appealed this ruling, claiming that the judge misapplied the standards governing summary judgment motions and impermissibly substituted his own judgment in place of the trier of fact when he found that neither her failure to fuel her car, nor steering it into the curb was a proximate cause of plaintiff’s injuries.  The Appellate Division rejected that argument and affirmed the trial court judge’s decision.

The Appellate Division noted that for the plaintiff to prove a cause of action for negligence, the plaintiff must prove as follows: “(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.”  The Appellate Division found no authority for the proposition that permitting one’s car to run out of gas was per se negligence.  The Court acknowledged that a driver of a motor vehicle that becomes disabled “has a duty to exercise reasonable care such that the vehicle does not pose a danger to others using the highway.” 

The Court provided, as an example, a defendant who failed to activate her flashing lights so as to warn oncoming drivers and, as a result a collision occurs.  Such action could be considered to be a breach of duty owed and the breach was the proximate cause of any accident and injuries that resulted.  The Appellate Division noted that this was not the scenario in this case.

The plaintiff also cited to the motor vehicle statute N.J.S.A. 39:4-136 as justification for his action that provides that “any vehicle . . . which is disabled to the extent that the operator cannot move it . . . shall be deemed a nuisance and a menace to the safe and proper regulation of traffic and any peace officer may provide for the removal of such vehicle.”  The Appellate Division noted that the plaintiff decided not to call for assistance to remove defendant’s car because the police department was responding to another emergency.  The Court also noted that the plaintiff failed to take a more cautious tact, such as parking behind the defendant’s vehicle with emergency lights activated to provide warning for the benefit of oncoming drivers.  Rather, plaintiff instructed the defendant to put her car in neutral so that he could push the vehicle.

Thus, the question becomes whether the defendant striking the curb could support plaintiff’s cause of action for negligence.  The Appellate Division agreed with the motion judge that “even if defendant negligently steered her car as plaintiff pushed, her negligence was not a proximate cause of his injury.”

The Appellate Division found that plaintiff’s injuries were not caused by the impact of defendant’s car, presumably traveling at an extremely slow rate of speed when it hit the curb.  To the contrary, plaintiff contends that when the car hit the curb, he pushed with greater force, and that strain caused the rupture of his Achilles tendon.

Further, the Appellate Division found that the motion record does not attribute plaintiff’s injury to his extraordinary exertion of force.  There was no medical opinion distinguishing plaintiff’s initial decision to push the car from his claim that only a resistance caused by defendant’s car against the curb was the proximate cause of his injury.  The record is clear that plaintiff took no steps to determine what was causing the claimed increased resistance to his efforts.  When the plaintiff realized the car was no longer moving, he simply pushed harder.  Hence, the Appellate Division found that “plaintiff’s own conduct is sufficiently unrelated or unanticipated by defendant’s negligence to warrant termination of her responsibility.”

Accordingly, the trial court’s decision was affirmed and the defendant’s summary judgment was upheld.

Plaintiff Carla Israel was walking on the sidewalk bordering the rear of the defendant’s home located in East Brunswick, New Jersey.  She fell as a result of an uneven slab of sidewalk and suffered an injury.  The issue in Israel v. Gross, 2019 N.J. Super. Unpub. LEXIS 2538 (App. Div. December 12, 2019) was whether the defendant residential property owner could be held responsible for the plaintiff’s injury in which the raised sidewalk was due to tree roots planted by a prior owner.

The plaintiff claims that the “defective condition” was located on a grass strip between the sidewalk and the fence located at the rear of the defendant’s property.  Due to the fall, plaintiff fractured her jaw and suffered shoulder, cervical, and thoracic injuries.

The defendant owner had filed a motion to dismiss via summary judgment, claiming that: “(1) he was not liable for plaintiff’s injuries and damages because the area where plaintiff fell was not on his property or under his control and is owned by the municipality; and (2) because the defect in the sidewalk was not the result of any affirmative conduct on his part, such as negligent repairs or maintenance, he owed no duty to plaintiff.” 

The plaintiff opposed his motion, arguing that there were material issues of fact as to whether defendant owned the sidewalk in question.  After hearing argument, the trial judge denied the defendant’s motion for summary judgment and concluded there was a material issue of fact for trial as to whether defendant had an obligation to correct the defect in the sidewalk.  The defendant appealed the summary judgment ruling to the Appellate Division.

Upon appeal, the Appellate Division noted that “a residential homeowner is not liable for a dangerous natural condition of a sidewalk that borders his or her property.”  However, the Court pointed out that a residential property owner may be liable when the owner’s action creates an artificial, dangerous condition on the abutting sidewalk.

In prior case law, the Court addressed a situation involving a homeowner planting a tree, whose roots uplifted the sidewalk and caused it to be uneven.  In that situation, the Court had found that the property owner’s liability was founded on the “positive act” of the property owner and the actual planting of the tree that caused the issue with the sidewalk, rather than the natural process of the growth of the tree roots. 

However, in this case, the defendant claimed that he did not plant the tree in question or take any other affirmative action to cause plaintiff’s injuries. The Appellate Division noted that the plaintiffs had not provided any evidence that established anything to the contrary.  Thus, had the tree been the cause of the plaintiff’s fall, it would constitute a “natural condition” and, hence, the defendant owed no duty to the plaintiffs. 

The plaintiff was also claiming that she tripped and fell on a sidewalk that was within defendant’s property lines.  The defendant, on the other hand, argued that the trial court judge made a mistake in denying his motion for summary judgment because the sidewalk where the plaintiff fell is behind and beyond his property line and is not owned by him, as evidenced by a survey.  Further, he argued that the plaintiffs presented no evidence that showed that he installed or maintained the defective sidewalk, thereby creating any duty. 

The Appellate Division agreed with the defendant’s argument.  The Court noted that the record failed to show that the sidewalk was owned by the defendant.  Moreover, the Court stated that “construing the facts in a light favorable to plaintiffs and assuming defendant owns the section of the sidewalk where plaintiff fell, defendant owed no duty to maintain the sidewalk for pedestrians.”

Thus, the Appellate Division found that summary judgment was improperly denied to the defendant.  The Court reversed the order of the motion judge denying summary judgment and remanded the case for an order granting summary judgment to defendant and dismissing plaintiff’s complaint.

In the published New Jersey Supreme Court decision of Shields v. Ramslee Motors, 2020 N.J. LEXIS 17 (2020), the Court was asked to decide whether the owner of a commercial property owed to its tenant’s invitee a duty to clear snow and ice from the property’s driveway while the property was in the sole possession and control of the tenant. The plaintiff, Baldwin Shields, a Federal Express driver, was delivering a letter at 608 Tonnelle Avenue, Jersey City, when he slipped on ice and fell on the driveway leading back to the sidewalk. At that time, this property was occupied by a commercial tenant, Ramslee Motors, a used car dealership. According to the lease between the landlord and Ramslee Motors, Ramslee Motors was responsible for maintaining the property as if it were the “de facto owner.”

The trial court found that the defendant landlord/property owner was not responsible for removing snow and ice from the property and dismissed out the landlord/property owner by summary judgment. However, the Appellate Division disagree with that decision. It found that the lease was silent as to who was responsible for snow and ice removal from the driveway and “determined that, in any case, the landlord owed the same non-delegable duty to maintain the driveway that it owed with respect to the sidewalks abutting the leased property.”

However, the Supreme Court disagreed with this determination, finding that “[t]he lease agreement between Ramslee Motors and the landlord directly addressed the issue of responsibility for maintenance of the property, which includes removal of snow and ice.” The Court found that the duty rested solely with Ramslee Motors, whether based on the lease or common law. The Supreme Court noted that “Ramslee Motors retained complete control over the premises where plaintiff fell and was exclusively responsible for plaintiff’s injuries.”

Although the lease permitted the landlord the right to enter the property to make repairs, that did not obligate the landlord to make such repairs. The Court pointed out that the right to enter was different than a covenant to repair. Hence, it found no ambiguity in the lease regarding the responsibility for snow and ice removal. That obligation fell upon the tenant based upon the lease.

It next considered whether the duty to clear ice and snow was one that could be delegated. The Supreme Court found that the non-delegable duty to maintain an abutting public sidewalk did not apply to a private driveway. The Court pointed out that this driveway was separated from the sidewalk by a gate and cannot be readily accessed by passers-by when not expressly opened by Ramslee Motors. Hence, the Supreme Court found that the non-delegable duty of a commercial property owner to remove snow and ice from a public sidewalk did not apply to this situation.

The Court also examined the question of control of the driveway. There was no doubt that Ramslee Motors, not the landlord, controlled the driveway. Not only did the lease make Ramslee Motors responsible for the driveway, but it fulfilled this responsibility by handling the snow and ice removal, including the night before this accident. Ramslee Motors used this driveway as part of its business. There was no evidence that the landlord enjoyed the sort of control over this driveway that would give rise to a duty of care.

The Supreme Court also analyzed this case under the nontraditional test expounded under Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) in considering whether a duty of care should be imposed upon the landlord/property owner to remove snow/ice from the driveway. After reviewing the four factors in Hopkins (“relationship of the parties, the nature of the attendant risk, the opportunity to exercise due care, and the public interest in the proposed solution”), it did not alter the Court’s conclusion that “fairness precludes the landlord’s liability for plaintiff’s injuries.” The Supreme Court found that “the entity with control over the property is the entity that should be held responsible.”             

Hence, the Court refused to hold the landlord responsible for a property over which it had relinquished control. Thus, the Supreme Court reversed the Appellate Division’s judgment and reinstated the trial court’s order granting summary judgment as to the defendant landlord/property owner.