Negligence

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.

Plaintiff Cirillo Gonzalez was a passenger in the motor vehicle being operated by defendant Hector Lopez, which was involved in a collision with defendant Everlynia Hudson.  The Hudson vehicle entered the roadway in front of the Lopez vehicle without stopping at a stop sign.  The issue in Gonzalez v. Lopez, 2019 N.J. Super. Unpub. LEXIS 1844 (App. Div. August 30, 2019) was whether Lopez could be found responsible for failing to attempt evasive maneuvers to avoid the accident. 

Lopez had been traveling in the middle of the three lanes on US 130 South in Pennsauken when the accident occurred.  He was obeying the posted speed limit when he approached the intersection with Richey Avenue, which meets the highway from an acute angle to the right.  The intersection was unregulated on Route 130 but there was a stop sign on Richey Avenue.  Both Gonzalez and Lopez saw the defendant Hudson approach and enter the highway without stopping or slowing.  Lopez was about 10 or 15 feet from the intersection when Hudson’s vehicle entered the highway.  Just 5 or 10 feet from the Hudson vehicle, Lopez slammed on his brakes but he had no time to swerve before hitting the rear of her car.  As a result of the collision, the plaintiff Gonzalez, who was a front seat passenger in the Lopez vehicle, was injured.

Gonzalez sued Lopez claiming that he negligently operated his vehicle, by failing to slow down upon seeing Hudson approach and by failing to attempt evasive maneuvers.  Lopez contended that Hudson was solely responsible for the collision and that he had insufficient time to avoid the collision. 

The defendant Lopez filed a motion for summary judgment, claiming that Gonzalez had failed to present sufficient evidence as to the question of his alleged negligence.  The trial court judge agreed with the defense position and concluded that there were insufficient facts from which a jury could infer that Lopez was negligent.  The trial court judge noted that Lopez was observing the speed limit and that Hudson entered the intersection suddenly.  He found that there was no basis to conclude that Lopez could have safely avoided the collision.

Plaintiff Gonzalez contended on appeal that issues of the proper speed and control of a vehicle are typically question of facts for the jury.  However, the Appellate Division noted that “Gonzalez must show more than the fact of an accident to establish evidence.”  The Court noted that mere speculation was not enough.  Although Lopez did collide with the rear of the Hudson vehicle, this case did not present the typical rear end collision in which one motorist was following another too closely.             

The Court noted that even assuming that Lopez noticed the Hudson vehicle approaching the intersection too fast to stop, the plaintiff failed to present any evidence that Lopez had time to do anything about it.  There was no dispute that Lopez was only a mere 15 feet from the intersection when he spotted Hudson.  Thus, the Appellate Division ruled that no reasonable jury could conclude that Lopez, who was lawfully traveling at 40 miles per hour, or 59 feet per second, could have safely avoided Hudson had he tried to do so.  Thus, the Appellate Division affirmed the trial court’s decision, dismissing the lawsuit as to defendant Lopez.

Plaintiff Holly Hughes was a Certified Nursing Assistant who was hired by the defendant decedent’s daughter to provide nursing care to decedent (Leonard Owen) in his home.  On her first day of work, as she was leaving work, she tripped and fell at the end of the walkway, apparently due to a substantial drop off.  The issue in Hughes v. Estate of Owen, 2019 N.J. Super. Unpub. LEXIS 816 (App. Div. April 9, 2019) was whether the plaintiff needed an expert to establish that the walkway was in a dangerous condition due to the unmarked and unlit walkway drop off.

The accident happened on the plaintiff’s first day on the job.  She had started work in the daylight but left work when it was dark.  After she left the house, she proceeded down a walkway leading to the public sidewalk.  Near the end of the walkway, there was a 3½ inch drop off.  Her fall occurred just as she reached the drop off where the walkway meets the sidewalk.  She tripped and fell onto the sidewalk, causing a fractured right elbow and injured knee.

While there was some issue as to whether the plaintiff established that the drop off caused her injury, there were no objects or substances on the walkway or sidewalk and the fall was not weather related. 

Plaintiff claims that she did not see the drop off because it was dark and there was no warning or indication of the drop off.  Although the plaintiff produced an expert report, the trial court found that the plaintiff’s liability expert report was an inadmissible net opinion because it relied on the BOCA code adopted long after the decedent’s home was constructed.  Also the other standards relied upon by the expert were not retroactive in effect and did not apply to the decedent’s home as well.

After barring the plaintiff’s expert report, the trial court granted the defendant’s summary judgment, finding that the plaintiff had not presented any evidence to suggest that the drop off was obscured to her by the fall, other than it being dark.  Hence, the trial court dismissed the plaintiff’s complaint and this appeal ensued. 

The Appellate Division noted that the plaintiff was invited to provide services to defendant and, therefore, qualified as a business invitee.  As such, the defendant owed plaintiff “a duty of reasonable care to guard against dangerous conditions on his property that he either knew or should have discovered.”   Reasonable care would require a homeowner to warn a non-trespasser of any defects or dangerous conditions of which the homeowner is aware or should be aware. 

The Court noted that expert testimony may be required to allow a jury to causally connect a particular injury of a plaintiff to a breach by a defendant when the question involves complexities beyond the ken of an average juror.  However, in this case, the Appellate Division found that evaluating the potential danger of an undisclosed and unlit walkway drop off at night did not involve complexities which would be beyond the ken of an average juror.  Therefore, the Appellate Division found that expert testimony would not be required for the plaintiff to proceed with her case.

Although the plaintiff could not precisely pinpoint the specific cause of her fall, the Appellate Division noted that there were sufficient facts from which a jury could reasonably infer that the drop off caused her injuries.  It would be reasonable to infer that the drop off, which was difficult to see at night, probably caused the accident.  Further, the Appellate Division noted that a reasonable jury could infer from plaintiff’s testimony that it was the 3½ inch drop off that triggered the fall.

Thus, the Appellate Division found that there were genuine issues of material fact as to whether the pavement drop off was both hazardous and therefore a breach of duty owed to the plaintiff and a proximate cause of the plaintiff’s trip and fall.  These issues were sufficient to warrant the matter to proceed to trial.             

Further, there were issues of material fact as to whether the defendant contributed to the hazardous condition that caused plaintiff’s accident by failing to turn on the available outdoor lighting and by failing to warn plaintiff of the drop off.  Because there were these genuine issues of material fact as to both breach of duty and causation, the Appellate Division found that the trial court erred in granting summary judgment.  Hence, the Court reversed and remanded the case back to the trial court for trial.

When minor Plaintiff G.A.H. was 15 years old, she began a sexual relationship with the defendant “Kenneth” when he was 44.  During the time period of this illegal relationship, Kenneth worked for defendant GEM Ambulance LLC (“GEM”) as an EMT.  The issue in the New Jersey Supreme Court case of G.A.H. v. K.G.G., 2019 N.J. LEXIS 856 (2019) was whether Kenneth’s co-worker, defendant “Arthur” was obligated to report that his co-worker Kenneth was engaged in this sexual relationship with the minor while in the employ of GEM.

This relationship did not happen during working hours while Kenneth was employed with GEM.  However, while he was working, he would sometimes park a GEM ambulance near plaintiff’s bus stop and, from there, he would walk to her bus stop.  However, no other GEM employee interacted with plaintiff on these occasions. 

According to the facts, Kenneth would often brag to his co-workers that he was in a relationship but he did not identify the person’s real name or age.  Kenneth and Arthur worked together on several shifts, during which time Kenneth would show Arthur pictures and videos of a naked female that Kenneth had on his phone.  Arthur would quickly look away from the phone, which was a flip phone with a small screen.

The sexual relationship lasted for about five months, at which time the minor plaintiff informed her mother about the relationship.  Plaintiff’s mother notified the police and Kenneth thereafter pled guilty to various criminal offenses.

Four years later, the minor plaintiff filed suit against Kenneth, Arthur, and GEM, among others.  Plaintiff claimed that Arthur should have reported Kenneth to his supervisors and that GEM was vicariously liable for Arthur’s failure to report Kenneth’s conduct and also that it was negligent in retaining, training, and supervising Arthur and Kenneth. 

The trial court granted Arthur and GEM summary judgment, holding that Arthur had no duty to report Kenneth and, further, that no facts created a reasonable basis for Arthur to believe that Kenneth was engaged in a sexual relationship with a minor.

The Appellate Division, however, reversed the grants of summary judgment.  In the Appellate Division’s view “the common law does not necessarily preclude the imposition of” a duty to report that a coworker is engaged in a sexual relationship with a minor.  It remanded the matter back to the trial court to further develop the record whether Arthur knew of Kenneth’s illicit sexual relationship with plaintiff.

The Supreme Court reversed the Appellate Division’s decision and reinstated the trial court’s grant of summary judgment.  The Supreme Court found that “no reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in a sexual relationship with a minor.”  Thus, the Supreme Court found that Arthur had no duty to report Kenneth.  As a result, there was no basis for liability to attach to GEM.

Because the record was determinative of Arthur and GEM’s liability, the Court stated that “we need not decide whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee.”  Thus, this issue was left open for another day.

The Court found that the facts did not support the plaintiff’s claim that Arthur knew Kenneth was engaged in a sexual relationship with a minor, nor that the facts establish a “special reason” for Arthur to know that Kenneth was engaged in such a relationship.  The Court pointed out that it is often difficult to know someone’s age based on appearance alone.  Nothing in the record suggested that Arthur viewed any of the pictures or videos of the plaintiff on Kenneth’s phone.  However, even if he did, the Court found that “in order for Arthur to know that plaintiff was below the age of consent, he would have had to perceive the difference between someone who is above or below age of consent based upon appearance alone and from a small cell phone image.  Viewing a small cell phone image of a naked female, does not give rise to ‘a special reason to know’ that Kenneth was engaged in a sexual relationship with a minor.”

Thus, the Supreme Court found that no further development of the record was needed because, under these facts: “Arthur does not owe a duty of care in this case.”  Further, the Court held that GEM was not liable as well.  Because Arthur did not commit a tort, GEM cannot be held vicariously liable for his alleged conduct.  Further, the record did not adequately support plaintiff’s claim for negligent retention, training or supervision.  The only tort in this case was Kenneth’s off-duty abuse of plaintiff.  Bragging about having a younger girlfriend at work and driving a GEM ambulance to plaintiff’s bus stop did not make GEM negligent in retaining, training or supervising Kenneth or Arthur.            

For these reasons, the Court reversed the Appellate Division’s judgment and reinstated the trial court’s grant of summary judgment.