Negligence

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.

Plaintiff Giuseppe Scaturro was driving a motor vehicle with plaintiff Nelys Hernandez as a passenger when her vehicle was rear ended by the vehicle owned by defendant Ruth Otles. Otles was not in her vehicle at the time of the accident, which was being driven by Sen Turan.  The issue in Hernandez v. Otles, 2019 N.J. Super. Unpub. LEXIS 2489 (App. Div. December 9, 2019) was whether summary judgment was properly granted to dismiss the plaintiff’s personal injury complaint based upon the undisputed fact that Turan was not defendant’s agent when the accident occurred.

This matter involved two consolidated actions in which the driver Scaturro and the passenger Hernandez both filed suit against Otles, alleging she was negligent in driving her vehicle in causing the accident.  Neither plaintiff sued Turan, nor did the defendant bring him into the actions as a third party defendant.  During discovery, when the defendant provided Answers to Interrogatories, she certified that Turan was the driver of her vehicle and she was not in the vehicle when the accident occurred.   She stated that her husband, without her knowledge, permitted Turan to use her vehicle to go shopping.  She supported this statement by attaching a copy of the police accident report which did identify Turan as the driver of her vehicle that rear ended plaintiff’s vehicle.

The defendant Otles moved for summary judgment, which was supported by her statement in her Answers to Interrogatories that Turan was not driving her vehicle as her agent at the time of the accident. Hence, she argued that there was no agency and she should not be liable for the accident.

The trial court judge relied upon the Appellate Division case of Harvey v. Craw, in which the court held that the use of a vehicle upon a public roadway by one who is not the owner raises a presumption of agency, which can be rebutted by the defendant owner.  The trial court judge in this case determined that the defendant Otles had rebutted the presumption that Turan was driving her vehicle as her agent through her motion statement of material facts, which cited to Interrogatory Answers and an Affidavit of No Agency, in support of those facts.  The trial court found that the plaintiff’s opposition failed to deny any of the defendant’s statement of material facts or offer any rebutting evidence to the statement that Turan was not acting as her agent, servant, or employee.  Hence, the trial court judge dismissed the plaintiff’s complaint because there were no facts demonstrating Turan was driving defendant’s vehicle as her agent.

Upon appeal, the plaintiffs argued that the presumption of agency, as established in Harvey, was not overcome by defendant and that Turan’s permission from defendant’s husband created agency between Turan and defendant.  They maintained that the defendant was vicariously liable for Turan’s negligence because defendant’s husband gave Turan permission to use her vehicle.  Further, plaintiffs argued that agency should be an issue of fact to be decided by the jury.  Plaintiffs asserted that summary judgment should not have been entered in favor of the defendants.            

The Appellate Division agreed with the trial court’s interpretation of Harvey.  The Court noted that, under Harvey, the presumption of agency can be rebutted by uncontradicted facts.  Here, the defendant did assert in her Answers to Interrogatories and in an Affidavit of No Agency that Turan was not her agent.  The Appellate Division noted that the plaintiffs failed to provide any facts repudiating the assertion in any certified form that there was any agency between the defendant and Turan.  Hence, plaintiffs had not established any genuine issue of material fact regarding agency to defeat summary judgment.  Thus, the Appellate Division upheld the trial court’s decision, dismissing the case.

The plaintiff Beverly Jackson slipped and fell on a quarter size dollop of shampoo from a bottle that had just fallen from the shelf in the pharmacy department of the defendant supermarket.  Based upon video evidence, this shampoo had fallen on the ground three minutes before her fall.  In Jackson v. ShopRite of Ewing, 2019 N.J. Super. Unpub. LEXIS 2661 (App. Div. December 31, 2019), the issue is whether the three minutes that elapsed between the spill and the plaintiff’s fall created constructive notice of the condition as to the supermarket.

The essential facts of the case were captured on the ShopRite surveillance video.  The video showed a man and two teenagers, walking through the pharmacy section of the store.  Shortly after they passed a product display, a plastic bottle fell onto the floor, dislodging its cap.  One of the teenagers returned the bottle to the shelf and the man restored the cap.  Three minutes later, the plaintiff walked through the same area, slipped and fell.  The parties agreed that she had fallen on a quarter size dollop of Herbal Essence Shampoo from the bottle that had just fallen from the shelf.

The plaintiff was a regular shopper at the supermarket.  She testified at her deposition that she had shopped at the store every day for 30 years and had never seen anything on the floor or ever had trouble with her footing.  The store, however, had no written policy governing inspections or addressing spills.  The ShopRite’s full time Loss Prevention Specialist testified, however, at his deposition that each store conducts monthly safety meetings with management and different store employees to review any incident that had occurred in the prior month.  Employees are instructed to immediately clean up any spill or wetness on the floor or to remain at the spill until maintenance personnel arrived to clean it up.

At the conclusion of discovery, the ShopRite moved for summary judgment, arguing that the plaintiff failed to carry her burden to show that the store had actual or constructive notice of the shampoo on the floor.  The trial court judge granted the motion.  The judge found that there was no dispute over the store’s lack of actual notice and concluded that the three minutes that elapsed between the spill and the plaintiff’s fall was insufficient to create constructive notice.

Upon appeal, the plaintiff argued that whether three minutes was sufficient to provide constructive notice of the spill was a genuine issue of material fact that the jury should have decided, as was whether the store reasonably inspected the premises for dangerous conditions and whether it failed to have and implement safety policies and procedures.  However, the Appellate Division disagreed with this argument.

Based upon premises liability law, the ShopRite owed the plaintiff as a business invitee “a duty of reasonable care to guard against any dangerous conditions on its property that the owner either knows about or should have discovered.”  Further, that standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions.

The Appellate Division pointed out that the absence of actual or constructive notice of the dangerous condition “is generally fatal to a plaintiff’s claim of premises liability.”  Pursuant to the undisputed facts, the defendant was without actual notice of the spilled shampoo upon which the plaintiff slipped.  Further, there was no dispute that the shampoo was on the floor for only three minutes before the plaintiff encountered it, which the Court found was not enough time to give rise to constructive notice.

Under New Jersey case law, the Court noted that “a defendant has constructive notice when a condition existed for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  The Appellate Division pointed out that the plaintiff offered nothing to suggest that those three minutes during which the shampoo remained on the floor of the pharmacy section “provided the supermarket a reasonable opportunity to discover it and remove it, no matter how diligent its employees.”

Further, the Court failed to understand how the absence of a written policy for inspecting and correcting such spills should change the analysis.  The Appellate Division noted that the plaintiff offered nothing to contradict the testimony of the ShopRite’s Loss Prevention Specialist that the store conducted regular safety meetings and that its employees were instructed to clean up spills immediately and not leave them unattended.  Further, the Court noted that plaintiff’s own daily visits for over 30 years, during which time she had never seen anything left on the floor, “do not suggest the lack of a written policy has led to a failure to exercise reasonable care and maintenance of the store.”            

Based upon the facts of this case, the Appellate Division agreed with the trial court’s decision.  It found that the plaintiff had failed to establish a prima face case of premises liability, which entitled the defendant to a summary judgment dismissing the complaint.  Hence, the Appellate Division affirmed the trial court’s dismissal.

The Verbal Threshold is a threshold requirement set by the New Jersey Legislature for an individual to be compensated for bodily injuries suffered in an auto accident. The Verbal Threshold, or the Limitation on Lawsuit option, was created in an effort to reduce the cost of car insurance by limiting a person’s ability to sue for noneconomic damages, or pain and suffering. N.J.S.A 39:6A-8. A person has an option to select a lower premium in exchange for a limited right to sue a person in a car accident. However, a person still has the option of selecting an unlimited right to sue in exchange for a higher premium.

The Verbal Threshold is not a complete bar on suing for pain and suffering caused by a car accident. An individual may still be able to sue for pain and suffering, even if they are subject to the Verbal Threshold, if they suffer an injury that falls under one of the following exceptions:

1. Death
2. Dismemberment
3. Significant disfigurement or scarring
4. Displaced fractures
5. Loss of a fetus
6. Permanent injury

If a person has suffered any of these injuries, then they are permitted to sue the party who caused the accident for pain and suffering. Death, dismemberment, displaced fractures and loss of fetus are more clear-cut exceptions than significant scarring or a permanent injury.

The Supreme Court of New Jersey has defined a “significant” scar or disfigurement as one that “an objectively reasonable person could find that the scar or disfigurement substantially impairs or injures the beauty, symmetry, or appearance of a person, rending the bearer unsightly, misshapen or imperfect, deforming the person in some manner.” Soto v. Scaringelli, 189 N.J. 558, 574 (2007). Other factors that courts are to consider are the “appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.” Id.

In Soto, the court found a scar on a person’s shoulder was not “significant” enough to breach the threshold. The judge reviewed the scar in person and verbally described it for the record and noted that the surgeon had done a remarkable job. The judge described the scar as approximately 4 inches in length and that it was not noticeable absent a strong light. The judge dismissed the case without permitting a jury to decide whether the person should be awarded money.

A permanent injury is defined as one that has not healed and will not heal to function normally with further medical treatment. N.J.S.A. 39:6A-8(a). This injury must be proven with objective clinical evidence. A person’s subjective complaints alone will not overcome the threshold. A doctor must certify that a person has suffered a permanent injury that is based on objective clinical evidence in order for a person to even file a lawsuit. The doctor must state that their opinion is based on objective clinical evidence and not dependent solely on the person’s subjective complaints. This certification must be provided to a defendant during the early stages of litigation in order for the case to continue. A court will dismiss a case absent this certification.

The Supreme Court of New Jersey has found that an MRI showing a herniated disc as certified by a doctor is sufficient objective evidence to allow a case to proceed. Pungitore v. Brown, 379 N.J. Super. 165 (App. Div. 2005).  A jury will then decide whether the objective clinical evidence should be considered “permanent” in order to breach the threshold and whether the plaintiff should be awarded money for pain and suffering based on the “permanent” injury.             

The Verbal Threshold is a powerful tool that an insurance carrier has in New Jersey to defend auto accident cases. A person’s right to sue for pain and suffering under the Verbal Threshold is limited to one of the aforementioned exceptions. As such, a person’s right to sue for pain and suffering under the Verbal Threshold is limited, but it is not completed barred.

Plaintiffs Walter Friedauer and Robert Friedauer, as Executors of the Estate of Paul Friedauer, brought a wrongful death action against defendant Ashbritt Environmental Inc. (Ashbritt).  Ashbritt was the state’s prime contractor for the hurricane or other natural disaster debris recovery, remediation and disposal in Brick Township due to Hurricane Sandy.  Ashbritt had subcontracted some of the work to defendant Glenside Equipment Company (Glenside), decedent Paul Friedauer’s employer.  In Friedauer v. Scheuffer, 2019 N.J. Super. Unpub. LEXIS 2105 (App. Div. October 11, 2019), the issue on appeal was whether Ashbritt could be held responsible for the death of the decedent Friedauer who was killed in an accident in the course of his employment.

Mr. Friedauer had been directing traffic during the course of his employment with Glenside when he was struck and fatally injured by a motor vehicle.  The defendant Ashbritt had moved successfully for a dismissal via summary judgment.  The trial court judge had concluded that Ashbritt “owed no duty to Glenside’s employees while they perform the subcontracted work.”  Further, the trial judge “determined Ashbritt retained no control over the manner and means of how Glenside performed its work, did not knowingly engage an incompetent subcontractor, and did not subcontract inherently dangerous work.”  The trial court judge took into consideration the foreseeability of the injury, the relationship of the parties, the nature of the risk involved, and the ability to exercise care, and the public interest and concluded that, as a matter of law, Ashbritt owed no duty to Glenside’s employees.

Plaintiff had obtained an expert that the terms of the Ashbritt-Glenside subcontract required Asbritt to conform to Occupational Safety and Health Administration (OSHA Regulations).  The plaintiff’s expert opined that Ashbritt failed to comply with OSHA regulations and its failure to monitor Glenside to ensure its employees complied with OSHA regulations “render Ashbritt ultimately responsible for the safety of the work site and the fatal accident.”

The trial court judge noted that whether or not Ashbritt owed a duty to the decedent was a question for the court, not the plaintiff’s expert.  The Court noted that OSHA did not cite Ashbritt for any violations.  Moreover, the trial court judge correctly determined that non-compliance with OSHA standards, without more, does not create a cause of action.  The Appellate Division further noted that, rather, “OSHA Standards are to be considered by the court in making a threshold determination of whether a general contractor owes a duty of care to employees of the subcontractor.”            

The Appellate Division agreed with the trial court’s rationale and decision.  It noted that the issue in this case was not whether Ashbritt was entitled to immunity but, rather whether it owed a duty.  The Appellate Division found that there was no genuine issue of fact that required resolution by a jury and that Ashbritt was entitled to summary judgment as a matter of law.  Thus, the Appellate Division affirmed the trial court’s decision, dismissing the wrongful death action filed against defendant Ashbritt.

Plaintiff Ella Jacob slipped on a hallway floor while working for her medical practice employer.  The office had been leased to her employer by the defendant Marlboro Gastroenterology, PC.  (“Marlboro”)  The issue in Jacob v. Marlboro Gastroenterology, P.C., 2019 N.J. Super. Unpub. LEXIS 2164 (App. Div. Oct. 23, 2019) was whether Marlboro could be held responsible for her fall when plaintiff was unable to prove why the floor was slippery.

On the trial court level, Marlboro moved for a summary judgment, requesting a dismissal based upon the argument that plaintiff lacked evidence proving the floor was over waxed or identifying what made the floor slippery.  Defendant also argued that plaintiff needed an expert to establish that the condition of the floor was hazardous or deviated from reasonable standards of care.

The trial court judge agreed with that argument and found that the plaintiff needed an expert to establish a breach of reasonable standards of care and granted summary judgment in favor of the defendant property owner.  The plaintiff then appealed the dismissal to the Appellate Division.

Upon appeal, the Appellate Division pointed out that Marlboro was on notice that the floor was slippery.  According to the plaintiff, the hallway where she slipped and fell had been “noticeably slicker than usual for several days.”  One of the patients had complained to her that she slipped and nearly fell.  Plaintiff told the assistant to Marlboro’s office manager that the floor was dangerous and may have been over waxed.  The assistant assured plaintiff that she would inform her boss.  Further, one of the physicians also complained about the floor, prompting plaintiff to speak to the office manager herself.  The office manager promised to bring it to the cleaner’s attention.

However, the condition of the floor was unchanged when plaintiff herself slipped and struck her shoulder on a scale as she fell to the floor.  Thus, in her lawsuit, she alleged that Marlboro negligently created, allowed or maintained the dangerous condition of the floor.  In depositions, Marlboro employees testified that they recalled no complaints about the floor.  The cleaner did not keep any records of the persons assigned to clean around the time of the plaintiff’s complaints or the products that were used.

The Appellate Division reversed the trial court decision.  The plaintiff did not claim that Marlboro negligently created the slippery condition but, rather, that Marlboro negligently ignored it after the plaintiff brought it to their attention.  Plaintiff Jacob, as a business invitee, was owed a duty of care by the property owner, Marlboro.  The Court noted the well settled law that “a proprietor generally is not liable for injuries caused by defects of which he had no actual or implied knowledge or notice, and no reasonable opportunity to discover.”  However, notice may be established by prior accidents or prior complaints.

In this case, the Appellate Division found that Marlboro was on notice, before the plaintiff’s accident, that the floor was dangerous.  The plaintiff was not obligated to present any proof of the origin of the slippery condition in order to hold the property owner, Marlboro, liable.   The Appellate Division found that “it was enough that Marlboro was on notice of the dangerous condition, however caused, because Marlboro, as the premises owner, was obliged to remediate it.”

The Appellate Division found that once notified, Marlboro did nothing (or at least that was the plaintiff’s version of the facts).  Hence, the plaintiff presented sufficient evidence that the floor was dangerous based upon the prior complaints of other individuals.

Further, the Appellate Division found that the plaintiff was not required to present expert testimony as to the coefficient of friction of the floor or establish that the floor did not satisfy some prevailing technical standard.  The Court pointed out that it was enough, under New Jersey case law, for a plaintiff to establish that a floor was unusually slippery and, “that the premises owner was placed on notice of that through the complaints or prior mishaps of others.”             

Hence, the Appellate Division concluded that Marlboro was not entitled to a summary judgment dismissal of plaintiff’s complaint.  Thus, the order dismissing the case as to Marlboro was reversed and the case remanded back to the trial court level to continue to trial against Marlboro.

Plaintiff, Sonny Cabrera, Jr., an employee of KB Electric Services Company, Inc. (“KB”), was changing lights on top of the University’s library when he fell off the roof because of a loose balustrade and suffered injuries.  The issue in Cabrera v. Fairleigh Dickinson University, 2019 N.J. Super. Unpub. LEXIS 2068 (App. Div. October 8, 2019), was whether the University breached any duty to the plaintiff, as an independent contractor, to warn him of the dangerous condition of the balustrades. 

The plaintiff would have normally accessed the roof by using a KB bucket truck.  From the bucket, he would do his repair work and would wear a safety fall protection harness that was attached to the bucket.  However, in this instance, the University interfered with that practice.  After directing plaintiff where to work, defendant parked its own truck where the plaintiff’s bucket truck needed to be.  Thus, plaintiff was unable to access the roof from the bucket, nor was he able to access the roof from inside the library.  He found an alternative way to reach the roof, and while there, he leaned on a balustrade to retrieve pliers that another worker had tossed to him.  Unfortunately, he fell when the balustrade gave way.

The facts in this case showed that the University had repaired the balustrades before the accident.  The University had prior knowledge that there was mismatched caulk in the area of the accident and that water infiltration deteriorated the mortar in the joints.  Hence, the Court found that the defendant did know about the latent dangerous condition of the balustrades and, even though the defendant prevented plaintiff from accessing the roof using the bucket, it remained silent about the “deteriorated joints, waterproof problems, mismatching caulk, and previous repairs to the top of the rails and facing joints.”  The Appellate Division emphasized that the dangerous condition – “the unstable balustrades” was not visible to the plaintiff and it was unrelated to the plaintiff’s electrical work.

Under the case law, an occupier of land owes a duty to an invitee to use reasonable care to make the premises safe, which includes providing a safe working place for an independent contractor that he or she hires.  The duty includes the obligation to make a reasonable inspection to discover defective and hazardous conditions.  Here, the Court found that the University did know of the existence of the dangerous condition before the accident.

The Court also noted, however, that there is a carve out exception for independent contractors.  Under the law, there is “an exception to the requirement that premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself.”  Further, “the duty to provide a reasonably safe working place for employees of an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform.”

Additionally, the Appellate Division noted that the duty owed to an independent contractor “does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation in which are part of or incidental to the very work the contractor was hired to perform.”  The basis for this exception is that the landowner assumes that the worker is possessed of sufficient skill to recognize the degree of danger involved and to adjust his methods of work accordingly. 

However, here, the Appellate Division found that the dangerous condition did not pertain to an operational hazard that was obvious and visible to the plaintiff upon ordinary observation.  Rather, it was hidden.  Only defendant knew about it.  Moreover, the dangerous condition was not part of or incidental to repairing lightbulbs.  Further, the plaintiff’s expert verified that the balustrades were made of cast stone material and the solid piers appeared to be substantial and appeared to be stable under normal anticipating loading conditions.  However, the Court pointed out that defendant knew that was not the case.            

The trial court had granted the defendant summary judgment on the basis that KB had no duty to warn about the dangerous condition.  The Appellate Division reversed and remanded the case back to the trial court for further proceedings.

Plaintiff Dawn O’Neill claimed to have suffered a serious injury when she fell down the exterior steps of her sister’s home due to a negligently maintained handrail.  The trial court had granted summary judgment to the defendants (plaintiff’s sister and her brother-in-law), determining that they did not breach any duty owed to plaintiff and that the guardrail on the exterior stairs was not a proximate cause of plaintiff’s fall.  The issue in O’Neill v. Neusch, 2019 N.J. Super. Unpub. LEXIS 1837 (App. Div. August 29, 2019), was whether the trial court overlooked disputed issues of material facts, which should have precluded the grant of summary judgment to defendants.

The plaintiff’s fall occurred during a visit to the Cranford home of her sister Linda Neusch and her brother-in-law Robert Neusch.  The plaintiff had visited her sister on a regular basis, about once a week for about 10 years.  Plaintiff spent the afternoon and evening with her sister and brother-in-law, did laundry, and had dinner with them.  Plaintiff’s accident happened as she left the home.

In leaving the home, she had to walk down five steps between the door and the ground.  There were handrails on each side of the steps.   The plaintiff attributed her fall to an unstable handrail.  As she walked out of the door, she had her laundry in her right hand and, as she grabbed the handrail, it shifted and gave way.  The entire railing did not come loose but she described it as a “reasonable shift.”  The plaintiff’s brother, who witnessed the plaintiff’s fall, examined the handrail after her fall and described it as “extremely loose and wobbly.”  Further, he stated that it was unstable and he could see why it did not give the plaintiff any support.

While the plaintiff over the years noticed some issues with the handrails, she did not describe them as “severe” issues.  When she saw that they had been re-cemented and were a little bit loose, she stated that it would not be anything that she would question.  The plaintiff’s brother-in-law admitted to prior problems with the handrails.  He had testified that water would collect around the posts, which would make the supporting concrete tend to crack and he would have to patch it.  If the cracks occurred, the handrails would not be held as securely as they should be and they would create a wobble.  Both plaintiff’s sister and brother-in-law (the defendants) did admit to issues with the handrail before her accident but were not aware of any problem with the handrail at the time of her accident.

The Appellate Division noted that the plaintiff qualified as a social guest.  As such, the homeowner had no obligation to make his/her home safer for his/her guest then for himself/herself.  There was also no duty to inspect the premises to discover defects that might cause injury to his/her guests.  However, under New Jersey law, if “the host knows or has reason to know of some artificial or natural condition on the premises which could pose an unreasonable risk of harm to his/her guest and that his/her guest could not reasonably expected to discover it, the owner/occupier owes the social guest a duty to exercise reasonable care to make the condition safe or to give warning to his/her guest of its presence and the risk involved.”

The Appellate Division, in construing the facts as most favorable to the plaintiff, which is the standard for a summary judgment motion, found that a reasonable jury could infer that the defendants either knew, or had reason, to know of the dangerous condition caused by the loose railings.  They admitted that the winter weather conditions caused the cracking in the cement.  The Court noted that the defendants lived in the home and used the exterior stairs frequently, perhaps daily, and there was a reasonable inference “that they were aware the railings were not secured and would move when gripped.”  Moreover, it was undisputed that the defendants did not inform the plaintiff about the condition of the handrails.  Further, the plaintiff testified that she was not aware of the extremely loose and wobbly condition of the railing before her accident.             

The Appellate Division found that a jury could readily infer that based upon plaintiff’s description of the accident, her fall was proximately caused by the loose railing.  After considering all these facts, the Appellate Division held that there were genuine disputes of material facts concerning liability and proximate cause which must be decided by a jury.  Thus, the Appellate Division reversed the summary judgment and remanded the matter back for trial.