Negligence

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.

Plaintiff Edna Albert slipped and fell on a sidewalk outside a Pathmark grocery store and suffered personal injuries.  The Pathmark had leased the premises from Klingensmith Associates, LLC (“Klingensmith”).  The issue in Albert v. Pathmark Stores, Inc., 2019 N.J. Super Unpub. LEXIS 1586 (App. Div. July 10, 2019), was whether the commercial landowner, Klingensmith, who leased the property to Pathmark pursuant to a triple-net lease could be liable for injuries suffered from a fall on a sidewalk outside of the Pathmark grocery store.

The lease governing the property required the Lessee (“Pathmark”) to maintain the premises in good order and repair.  In particular, the Lessee, at its own expense was required to keep the sidewalks in good repair.

Plaintiff claimed that she fell over a gap in the sidewalk created by the deterioration of an expansion joint between two concrete slabs.  Plaintiff retained an expert who opined that the expansion joint gap was too wide and the gap violated industry norms, thus creating an uneven walkway.

Klingensmith filed a motion for summary judgment, arguing that Pathmark had a duty to maintain the sidewalk under the triple-net lease and, hence, it should not be responsible for an injury caused by the condition of the sidewalk.   The plaintiff argued in response that the duty to maintain the premises is a non-delegable duty and, even if it is not, the Lease Agreement did not apply because the defect in the sidewalk existed before the lease was executed.  The trial court judge disagreed with the plaintiff and entered an order for summary judgment in the defendant’s favor.

Upon appeal, the plaintiff argued that the trial court erred in its decision and, again argued that Klingensmith could not delegate the obligation to maintain a safe premises.  However, the Appellate Division disagreed with that argument and affirmed the trial court decision.

The Appellate Division noted the traditional rule that a landlord is not responsible for the maintenance of a leased premises but, rather, the tenant assumes that duty as a condition of possession.  The Court noted that there were two exceptions to the general rule: “(1) A landlord is responsible to use reasonable care with regard to portions of the leased premises which are not demised and remain in the landlord’s control and (2) a landlord’s covenant to repair gives rise to the duty to the tenant.”

Neither exception applied in this case. The Appellate Division found that Pathmark, not Klingensmith, was in the best position to remedy the defective sidewalk and the pertinent lease provision controlled the allocation of liability.  The Court found that Pathmark was properly held responsible for maintaining the common area outside their store.  Further, the lease provision specifically required Pathmark to maintain the concrete and sidewalk on the leased premises.

As for whether the owner could be responsible because the defect preexisted, Court found that the pertinent lease section, by implication, held Klingensmith responsible for all defects arising prior to the inception of the lease.  Regardless, the plaintiff failed to present any proofs that the defect was present since construction of this sidewalk, let alone that Klingensmith should have known of the defect before the inception of the lease.  Further, the Court noted that the lease specifically stated that Pathmark acknowledged that it took the premises in good order and repair.            

Hence, the Appellate Division affirmed the trial court decision and upheld the dismissal of the lawsuit as to the owner of the property, Klingensmith.

Plaintiff, Samir Abdalla, alleged that he slipped and fell on an icy walkway in his apartment complex and suffered a fractured radius in his left arm. He sued his landlord Threegees t/a Monaco Arms, Inc., claiming that the defendant was negligent in failing to clear ice on the sidewalk in the apartment complex. The issue in Abdalla v. Threegees t/a Monaco Arms, Inc., 2019 N.J. Super. Unpub. LEXIS 1071 (App. Div. May 10, 2019), was whether the freezing rain which had turned to rain during this winter storm constituted a continuation of the storm such that the defendant still had a reasonable period of time to remove the ice from the sidewalk.

According to the defendant’s weather expert report, freezing rain began to fall around 7 a.m. The temperatures were in the mid-20s, well below freezing, when the freezing rain began to develop. It was undisputed that the ice rain stopped falling prior to the plaintiff’s fall according to the defendant’s expert report and the temperatures began to rise above freezing starting around 11 a.m., two hours prior to plaintiff’s fall. In plaintiff’s deposition testimony, he testified that it was cold and raining lightly at the time he fell. Plaintiff argued that considering the transition from freezing rain to plain rain occurred around 11 a.m., that the defendant was negligent by failing to treat the icy sidewalk three hours after the freezing rain stopped.

The motion judge recognize the well-settled rule of law that a commercial property owner does have a duty to keep its premises safe, including public sidewalks. However, the judge found that the defendant did not have the responsibility to go out while it was still raining to deice the condition that developed the hour earlier or two hours earlier. The owner had to be given some form of reasonable time period after the cessation of the storm itself.

The Appellate Division agreed with the motion judge that the maintenance of a public sidewalk by a commercial property owner may require removal of snow or ice or reduction of the risk, depending upon the circumstances. However, the commercial property owner would have a reasonable period of time thereafter to make the public sidewalk in a reasonably safe condition.

The Appellate Division relied on an almost 100-year-old case, Bodine v. Goerke Company, that the reasonable period of time did not commence until the precipitation ceased. The Court found that the fact that the freezing rain had turned to rain during the storm did not preclude the grant of summary judgment. It was undisputed that it was still raining when plaintiff fell. Thus, continuation of the storm did not provide the defendant with a reasonable period of time to remove ice from the sidewalk. That reasonable period of time commenced at the conclusion of the precipitation.            

This case will be very helpful for business owners and commercial land owners because it specifically deals with a freezing rain event, as opposed to just a snow event. Again, in a flurry of decisions which have been coming down from the Appellate Division, they all seem to side with the landowner that there is a reasonable period of time after the conclusion of the storm event to clear a sidewalk or walkway from that precipitation.

Plaintiff, Janet Dixon, while leaving work, slipped and fell on a sidewalk due to snow and ice.  It was undisputed that she fell during a snow storm.  In Dixon v. HC Equities Associates, 2019 N.J. Super. Unpub. LEXIS 1005 (App. Div. May 2, 2019), the issue was whether the defendant property owner was liable due to the failure to clear the ice and snow from the walkway.

Plaintiff, who was a Senior Probation Officer, left work at 7:00 p.m.  As she was walking around the building to her vehicle, she slipped and fell.  She testified that it had started snowing earlier that day while she was at work and was still snowing when she left.  As she was walking, she assumed that she slipped on ice under the snow. She fractured her left hip and underwent a left hip replacement as a result of her fall.

Plaintiff sued the defendant property owner for negligence.  The defendant moved for a dismissal via summary judgment, arguing that there was no breach of duty because the plaintiff fell on snow while it was snowing and there was no duty to remove the snow until a reasonable time after the snow stopped falling.  The trial judge agreed with that argument and granted summary judgment.

The plaintiff appealed, arguing that there were material factual disputes that should have precluded summary judgment in favor of the defendant.  The Appellate Division, however, found that based upon the undisputed facts that it was snowing when the plaintiff arrived for work and when she left, “the defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove the snow and ice.”  The Court found that there was no duty for a commercial landowner to maintain sidewalks free of ice and snow until a reasonable time after a storm has ended.

The plaintiff argued that prior case law should be distinguishable because the plaintiff was required to stay at work until 7:00 p.m.  The trial judge did not accept that argument, finding that the plaintiff could have left at any time.  The Appellate Division noted that there was no distinction between voluntarily being on a premises versus working when it comes to the issue of snow removal.

Further, the plaintiff argued that it would be reasonable to require the defendant superintendent to shovel, salt or sand the sidewalk, knowing that the probation officers were required to work late some evenings.  The plaintiff argued that the superintendent should have at least shoveled a little path to get to the parking lot.  The Appellate Division noted that there was no evidence provided as to whether or not the superintendent or anyone else had salted or sanded the sidewalk prior to the plaintiff’s fall because it was irrelevant due to the storm being in progress and no duty was owed by defendant.  The Appellate Division rejected the plaintiff’s attempt to impose a duty on a commercial landowner who employs a live in superintendent to clear sidewalks of ice and snow during an ongoing snow storm.            

Further, the Appellate Division noted that there was a municipal code in Elizabeth, where the accident occurred, which required an owner to remove snow and ice within twelve hours of daylight after precipitation had ceased.  Pursuant to this ordinance, the defendant’s duty would not have arisen until the following morning.  While municipal codes are not binding on whether a legal duty existed, the Court did find that they could be instructive as to whether a defendant acted reasonably.  Because the undisputed material fact remained that it was snowing and defendant was afforded a reasonable period of time to remove the snow and ice, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Plaintiff Folusho Oyebola fell in the Walmart parking lot during a snowstorm and sued Wal-Mart Stores, Inc. and Tree Fellas, LLC, Walmart’s snow contractor, for her injuries. In Oyebola v. Wal-Mart Stores, Inc., 2019 N.J. Super. Unpub. LEXIS 432 (App. Div. Feb. 25, 2019), the issue was whether either defendant breached a duty of care owed to the plaintiff in light of the ongoing snowstorm.

On the day of the accident, at least 8 inches of snow fell. The winter storm developed early and continued into the afternoon. The Walmart store opened at 6 a.m. and the snow contractor, Tree Fellas, arrived between 6 and 7 a.m. The crew worked to remove snow and ice from the parking lot until sometime after 9 a.m.

Plaintiff arrived at the Walmart store at about 8 a.m. while it was snowing. She parked her car and went into the store, where she shopped for about 45 minutes. At around 8:45 a.m., she left the store and walked back to her car. It was still snowing at that time. She fell while she was walking between her car and the car parked next to her car. Plaintiff claimed that she slipped on built-up snow and ice between the cars. As result of her fall, she fractured her right foot.

The defendants contended that there was a lack of evidence from which a jury could determine that they had breached a duty of care because the plaintiff fell while it was still snowing. The defendants claimed that they did not have a duty to remove all of the snow until a reasonable time after the snow stopped falling and moved for summary judgment, requesting a dismissal. The trial court agreed with the argument and found that “no rational injury could find the defendants were negligent because plaintiff fell during an ongoing snowstorm when Tree Fellas was already at the location engaged in snow removal efforts.”

The plaintiff appealed the dismissal. She argued that the trial court ignored the opinions of her proposed experts and should have allowed her claims to go to the jury.

The defendants did not dispute that they owed the plaintiff a duty to exercise reasonable care because she was a business invitee of Walmart. However, they argued that the plaintiff’s negligence claim failed as a matter of law because she could not show that they breached that duty. The Appellate Division agreed.

The Appellate Division noted that business owners, such as Walmart, did owe their invitees a duty of reasonable care “to provide a safe environment for doing that which is within the scope of the invitation.” Further, the Court noted that this duty required a business owner “to discover and eliminate dangerous conditions, as well as maintain the premises in a safe condition.” That duty extended to the premise’s parking lot.

The Court further noted that it has long been recognized that “commercial landowners have a reasonable time in which to act to clear snow and ice from walkways.” The Appellate Division noted the undisputed facts that the snowstorm was ongoing when plaintiff slipped and fell. In fact, the plaintiff had acknowledged that it was snowing when she arrived and was still snowing when she left the store. It was also undisputed that the crew from Tree Fellas was on site and plaintiff fell while they were engaged in snow removal activities. Based upon all of these facts, the Appellate Division found that the “defendants were not obligated to remove snow and ice between parked cars until the cars either moved or the snow stopped falling and defendants had a reasonable time to remove the snow.”

The plaintiff also argued that the trial court ignored its liability expert report. Plaintiff’s liability expert opined that Walmart did not establish a procedure with Tree Fellas to clear the parking lot in a sequential manner “so as to provide customers with safe conditions for entering and leaving the store.” However, the Appellate Division rejected that idea because even if the opinions of the plaintiff’s liability expert were to be considered, it did not change that it was snowing at all times when plaintiff was present at the Walmart. Thus, even if those procedures had been followed, the snow continued to fall during this time. The defendants’ duty to remove the snow did not arise until some reasonable passage of time allowing them to take action. Therefore, because the undisputed material fact remained that it was snowing and defendants are afforded a reasonable period of time to remove the snow, the Appellate Division affirmed the trial court’s summary judgment decision in favor of the defendants.

Plaintiff Fr. Babu T. Paramel (“Paramel”) was in a motor vehicle accident with defendant Merca Martinez (“Merca”) on Rt. 7 in Jersey City. Prior to the accident, Paramel had been driving eastbound on Rt. 7 and Merca was travelling westbound. As plaintiff was driving over a bridge, Merca lost control of her car due to a slippery sludge like material that had spilled onto the roadway, entered plaintiff’s lane, and struck his vehicle. The issue in Paramel v. Martinez, 2017 N.J. Super. Unpub. LEXIS 1701 (App. Div. July 11, 2017) was whether Merca’s loss of control over her motor vehicle due to the slippery substance on the roadway established her negligence.

After the accident, the police responded to the accident scene and saw that slippery material had spilled onto both sides of the roadway but it was thicker on the westbound side upon which Merca was traveling before the accident. The police determined that the slippery sludge like substance caused a dangerous condition on the roadway, which was so bad, that they shut the roadway down. The investigation revealed that a truck owned by the third-party defendant DJM Transport, LLC and driven by third-party defendant Orelvy Gonzalez had discharged hazardous sewage onto the roadway.

Following the completion of discovery, the defendants (Merca Martinez, the driver, and José Martinez, the owner), filed a motion for summary judgment, requesting a dismissal. The motion judge granted the motion and held that there was no evidence that Merca was negligent because “the mere happening of an accident does not bespeak negligence.” The law is clear that there can be no recovery for damages merely upon proof of the happening of an accident. It is the plaintiff’s burden to prove negligence.

In prior case law (Mockler v. Russman, 102 N.J. Super. (App. Div. 1968)), the Appellate Division held that “the loss of control over a motor vehicle on a slippery roadway does not definitively establish negligence, nor does it justify an inference of negligence on the part of an operator of a motor vehicle.” In the Mockler case, the Appellate Division held that should this rule be otherwise, every automobile driver would need to stay off the public roads when the roads happened to be slippery. The Court further stated that the “sudden and unexpected skidding of an automobile is one of the natural hazards of driving on icy roads and that it may befall even the most cautious of drivers.” In Mockler, the Appellate Division also stated that if the driver was operating his car as would a reasonably prudent person under the circumstances, he would not be held negligent merely because his car skidded. However, skidding could be evidence of negligence if it appears that it was caused by the failure of the driver to take reasonable precautions to avoid it when he knew or should have known of the conditions and that such a result would be probable in the absence of precautions.

Hence, in Paramel, the Appellate Division followed Mockler and held that more than the loss of control over motor vehicle would be required to warrant an inference of negligence. The plaintiff would need to prove that “a defendant could have taken reasonable precautions to avoid the accident.” In this case, the Appellate Division pointed out that there was no evidence that Merca knew or should have known of the presence of the slippery substance on the roadway or could have taken evasive maneuvers had she known about the dangerous condition. Accordingly, the Court found that, without proof of negligence, the motion judge properly granted summary judgment to the defendants.

Plaintiff Maria Troiani-Schwartz and Defendant Elizabeth Dicker collided at an uncontrolled intersection in Hopewell, New Jersey. The traffic light at the intersection was not functioning due to Hurricane Sandy. In Troiani-Schwartz v. Dicker, 2018 N.J. Super. Unpub. LEXIS 1520 (App. Div. June 26, 2018), the plaintiff contended that summary judgment was inappropriate because there was a factual dispute as to whether the defendant failed to make reasonable observations before entering the intersection.

The accident occurred at the intersection of Route 31 and the exit ramp from I-95 toward Bull Run Road in Hopewell. The plaintiff admitted to seeing defendant’s vehicle on the ramp before the intersection about 500 feet away and assumed that defendant would stop. Defendant testified that she came to a complete stop and looked both ways before she entered the intersection. Plaintiff, however, sped up and crossed the intersection because she thought she had the right of way. She was unaware of her duty to come to a complete stop at an uncontrolled intersection.

Based on these facts, the trial court granted summary judgment to the defendant, dismissing the complaint. The court concluded that the plaintiff had failed to present facts to refute that the defendant had the right of way and made reasonable observations. The plaintiff appealed, contending that her accident reconstruction expert’s opinion as to causation presented an issue of material fact, which should have been decided by a jury.

New Jersey law is clear that, under N.J.S.A. 39:4-90, a driver to the right has the right of way.  The Appellate Division noted that the plaintiff was legally obliged to yield to defendant, to her right, and come to a full stop because the traffic light was not operating. Under N.J.S.A. 39:4-81(b), when a traffic light is out due to a malfunction, the driver must observe the requirements for a stop intersection.

The Court found that the plaintiff presented no evidence from which a reasonable juror could conclude that the defendant violated N.J.S.A. 39:4-90. The evidence showed that defendant’s vehicle entered the intersection first and had the right of way for that reason alone. Further, the defendant had the right of way because plaintiff was the driver of the vehicle to the left and defendant was the driver of the vehicle to the right. Hence, under N.J.S.A. 39:4-90, the plaintiff was required to yield the right of way to the defendant.

The Appellate Division rejected plaintiff’s argument that her expert report created a genuine issue of material fact as to causation. Her expert submitted no proof that plaintiff’s vehicle entered the intersection first. Further, the Court noted that there was no evidence offered from which a jury could conclude that the defendant failed to make reasonable observations. The mere happening of an accident raises no presumption of negligence.

Due to the “substantial evidence of plaintiff’s negligence and the dearth of evidence of defendant’s negligence,” the Appellate Division upheld the trial court’s order granting summary judgment in favor of the defendant.

I had previously reported on the Appellate Division decision in Krzykalski v. Tindall, 448 N.J. Super. 1 (App. Div. 2016), in which the court upheld the trial court’s decision to allow the jury to allocate negligence between defendant David Tindall and the fictitiously named John Doe defendant in an automobile accident case. The New Jersey Supreme Court has now affirmed that decision in Krzykalski v. Tindall, 2018 N.J. LEXIS 484 (April 17, 2018).

The auto accident occurred on October 24, 2009 in Florence Township. Plaintiff’s vehicle and Tindall’s vehicle were both in the left lane when a vehicle driven by a fictitious John Doe cut in front of them and proceeded to make a left turn. Both plaintiff and Tindall braked. Plaintiff was able to stop without striking the vehicle in front of him but Tindall’s vehicle struck the rear of plaintiff’s vehicle.

The plaintiff suffered serious injuries in the accident and filed a UM claim against his auto insurance company. Plaintiff rejected his insurance company’s offer to settle the UM claim for the policy limits and sued defendant Tindall and John Doe for negligence.

At trial, plaintiff requested that the John Doe’s negligence be kept from the jury, which motion the judge denied. The jury found Tindall 3% negligent and John Doe 97% negligent for plaintiff’s injuries. On appeal, plaintiff argued that the phantom “John Doe” should not have been placed on the verdict sheet.

The Appellate Division disagreed, affirming the trial court’s decision. It concluded that an alleged tortfeasor does not need to be an identified party for his or her negligence and degree of responsibility to be considered by a jury. The Supreme Court granted certification, agreeing to hear plaintiff’s appeal of the Appellate Division decision.

The Supreme Court noted that the Comparative Negligence Act requires the allocation of fault “to defendants who may be responsible for the injury without regard to whether those defendants are, for other reasons, invulnerable to recovery by the plaintiff.” The question answered by the Court is how this principle is to be applied when a defendant is a known but unidentified John Doe defendant.

The Court found that the Legislature dealt with this scenario by requiring that auto insurance policies include a UM provision. Thus, phantom vehicles that are driven by known but unidentified motorists that play a part in an accident presumptively may be allocated fault in accordance with the Joint Tortfeasors Contribution Law, the Comparative Negligence Act, and the laws requiring UM coverage.

The ability to allocate fault to such defendants depends upon “fair and timely” notice of their intent to argue fault to the John Doe defendant. Here, plaintiff received such notice that defendant would assert that John Doe was the cause of the accident. Defendant’s third party negligence defense was set forth in the answer to the complaint. Further, Plaintiff’s UM carrier received notice of the litigation but chose not to intervene. Thus, the Court agreed with the trial court’s decision to submit the question of John Doe’s negligence to the jury for fault allocation.