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This blog, written by Litigation Department Shareholder and Hiring Shareholder Charles F. Holmgren, Esq., focuses on liability litigation cases decided in New Jersey courts.

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Appellate Division Reverses Ruling As to Applicability of Forum Selection Clause to Bar New Jersey Lawsuit

Defendant Total Quality Logistics, LLC (TQL) filed an appeal with the Appellate Division of a judgment for plaintiff Narrow Path Transport, LLC (Narrow Path) entered in the Special Civil Part, Small Claims Division, after the trial court had denied defendant’s motion to dismiss the complaint based upon a contractual forum selection clause.  This matter concerned claims under the contract between the parties, which contained a clause requiring the parties to litigate any dispute in state court in Ohio.  The issue in Narrow Path Transportation, LLC v. Total Quality Logistics, LLC, 2026 N.J. Super. Unpub. LEXIS 217 (App. Div. Feb. 9, 2026) was whether the trial court had properly considered the defendant’s motion to dismiss the complaint based upon this forum selection clause.

The parties had entered into a “Broker-Carrier” agreement by which Narrow Path would transport vehicle trailers for TQL’s customers on request.  That agreement contained a provision requiring Narrow Path to indemnify TQL against certain claims related to its performance under the agreement.  The agreement also contained a clause which required it to be governed by the laws of the state of Ohio, as well as the parties’ consent to the jurisdiction of the state court located in Clermont County, Ohio (the forum selection clause).  Pursuant to the contract, the parties waived any objection to the jurisdiction of that court and all claims arising under or related to the agreement would need to be brought in that court, which would have exclusive jurisdiction over any such dispute.

Despite this forum selection clause, Narrow Path filed a New Jersey small claims complaint against TQL seeking reimbursement of an amount TQL had deducted from Narrow Path’s earnings on other TQL jobs to pay for a customer’s damages.  Narrow Path claimed entitlement based upon the contract’s indemnification and offset provisions.  This complaint was filed in the Superior Court of New Jersey, Law Division, Burlington County (Special Civil Part, Small Claims Division). 

A few days before the trial, TQL filed a motion to dismiss the complaint based upon the contract’s forum selection clause (which required litigation to proceed in an Ohio state court).  Narrow Path’s representatives were present in the courtroom for the New Jersey trial and were later joined by TQL’s representative remotely.  The record did not reflect that any of the individuals were sworn in before providing trial testimony.

At the trial, Narrow Path did not argue the forum selection clause was inapplicable in opposition to TQL’s motion.  After the judge heard from Narrow Path as to its request for the entry of judgment, the judge denied TQL’s dismissal motion and stated that TQL had subjected itself to the jurisdiction of New Jersey courts based upon the parties’ course of conduct, which included seventy prior transports.  The judge then entered a monetary judgment in favor of Narrow Path based upon unsworn trial proofs.

TQL filed this appeal of the trial court’s decision.  It argued that the judge made a mistake by denying its dismissal motion, seeking to enforce the contract’s forum selection clause, and by entry of judgment absent subject matter jurisdiction. 

After reviewing the record and the applicable law, the Appellate Division stated that it was “constrained to vacate the  judgment” and remanded the matter for the court to comply with Rule 1:7-4 as to its denial of TQL’s dismissal motion, because the court’s determination not to enforce the forum selection clause was made without explanation. 

The Court noted that under well-established law, contracting parties may agree to resolve any dispute arising from their agreement in a particular forum. Under New Jersey law, forum selection clauses are prima facie valid and enforceable.

The Appellate Division noted that forum selection clauses would be enforced “unless the party objecting thereto demonstrates: (1) the clause is a result of fraud or overweening bargaining power, or (2) the enforcement in a foreign forum would violate strong public policy of the local forum, or (3) enforcement would be seriously inconvenient for the trial.”

The Court further noted that a party may waive their rights to enforce a forum selection clause.  However, a waiver would constitute “the voluntary and intentional relinquishment of a known right.”  The Appellate Division held that a court’s analysis regarding the waiver of a forum selection clause would be similar to the analysis conducted regarding the waiver of an arbitration clause.

Thus, the Court vacated the judgment and remanded the matter back to the trial judge to issue a statement of reasons, “stating clearly its factual findings and correlating them with relevant legal conclusions.”  Further, the Appellate Division held that if the trial court concluded that the contract’s forum selection clause was unenforceable or TQL waived enforcement of that clause and determined that the litigation should proceed in New Jersey, then the matter should be scheduled for a new trial and any trial witnesses must be sworn prior to providing testimony.

No Liability for Landlord, Parent Company, and Landscaper for Fall on Black Ice

On his way into work at an Acme Supermarket in early November, 2019, Plaintiff Andrew Kasbarian slipped and fell on black ice in the parking lot caused by sprinklers that had triggered earlier that chilly morning, suffering a severe shoulder injury requiring surgery. Not able to sue Acme, he sued Albertsons (Acme’s parent company), Parene (the premises’ owner and landlord), and Green Meadows (the landscape contractor) for their negligence in maintaining and failing to warn about the dangerous condition posed by the black ice. The issue in Kasbarian v. Parene Realty Co., LLC, 2026 N.J. Super. Unpub. LEXIS 180 (App. Div. Feb. 3, 2026) was whether any of the defendants were responsible for the black ice formed by the sprinklers that caused Kasbarian’s fall.

Parene was the long-time owner of the premises who had a lease agreement requiring Acme to perform all repairs and maintenance. Green Meadows provided landscaping and irrigation services under a contract with Albertsons that did not require it to winterize and shut down the sprinkler system until Albertsons requested. In fact, that request came three hours after Kasbarian’s fall.

The three defendants challenged Kasbarian’s complaint with summary judgment motions, arguing that, even if the parties agreed to all the facts, Kasbarian could not show they were liable for his injuries. The trial court granted the motions based on the various contracts between the parties and the lack of notice to each defendant, and dismissed the complaint against them, causing Kasbarian to appeal.

On appeal, as to Green Meadows, Kasbarian argued they were a property manager and responsible for maintaining a safe parking lot. Focusing on the contract with Albertsons that only required them to perform sprinkler winterization when Albertsons asked, the Court found Green Meadows had no duty to Kasbarian. They reasoned that Green Meadows lacked the type of relationship with Kasabian that suggested a duty; that, the risk of black ice on the parking lot, an area for which Green Meadows had no control, was one for which Green Meadows could not be held responsible; Green Meadows lacked any opportunity to salt the parking lot and remove the black ice because they were not required to show up until Albertsons asked; and that, if they were to find Green Meadows responsible, that would put the burden on all contractors to winterize all sprinkler systems, no matter their contractual obligation – and that was not reasonable. The Court also found that Green Meadows, who did not come to the Acme parking lot until a few hours after Kasbarian fell, had no actual notice of the black ice or, because the black ice was temporary, they lacked constructive notice.

As for Albertsons, Kasbarian argued that they were vicariously liable because either Green Meadows was their agent or, because they were Acme’s parent company, because of Acme’s negligence. The Court disagreed with these arguments as well, stating that because Green Meadows was not liable, Albertsons could not be vicariously liable. Also, because New Jersey law will not hold a parent company liable for the negligence of a wholly owned subsidiary, they could not be liable for any negligence that Acme may have had.

Finally, the Court found Parene had no liability due to the lease agreement Parene had with Acme. Looking at the interplay of contract and tort law, the Court reaffirmed the rule that, when a lease unambiguously places liability on a tenant, the landlord will not be liable for personal injuries sustained by an employee on that property. Here, through the lease, Parene put the responsibility for all maintenance on its tenant, Acme, and as a result, it had no duty of care for Kasbarian. Further, because Parene was not a party to the Green Meadows/Albertsons contract, they had no responsibility to make sure Green Meadows would winterize the sprinklers in a timely manner.

With the above reasoning focusing on the interplay of the parties’ responsibilities through their various contracts, the Appellate Division affirmed the trial court’s determination that none of the defendants was liable for Kasbarian’s injuries on black ice in the Acme parking lot.

New Jersey Supreme Court Rules That Landowners Liability Act Bars Claim for Fall in County Park

Plaintiff Andris Arias was injured due to a rollerblading accident at a park owned by the County of Bergen.  Plaintiff Arias filed a lawsuit against the County for personal injuries. This case went all the way up to the New Jersey Supreme Court.  The issue in the Supreme Court case of Arias v. County of Bergen, 2026 N.J. LEXIS 68 (Jan. 22, 2026) was whether the County had immunity under the Landowners Liability Act for this accident. 

Fortunately, for the County, at all levels of the court system, the judges agreed that the County was immune from liability.  Further, when the case reached the Supreme Court, the Court clarified the test to be used, making it easier for more premises to quality for this immunity. 

Plaintiff Arias was rollerblading at Van Saun County Park owned and operated by the County of Bergen when the plaintiff fell into a pothole on a paved pedestrian path.  This park consisted of 130 acres, containing playgrounds, tennis courts, pathways, fishing ponds, and wooded areas.  It was available to the public free of charge.  Plaintiff sued the County, claiming negligence for failure to maintain the path or warn visitors of the pothole.

Before rendering its decision, the Supreme Court went through the history of the Landowners Liability Act.  The first version was enacted back in 1962 and was passed to protect landowners from liability for hunting and fishing on their property.  Then, it was replaced in 1968 and immunity was expanded to an “owner, lessee or occupant of premises” for “sport and recreational activities.”  Then it was further amended in 1991 to make it clear that it should be liberally construed to serve as an inducement for landowners to permit persons to come onto their property for sport and recreational activities without fear of being sued.  At that time, the immunity was also expanded to improved or commercial premises. 

Prior to this amendment, the Supreme Court utilized a four part test to determine if there should be immunity.  Pursuant to that test, the factors to be considered in determining the applicability of the landowners’ liability were as follows: “the use for which the land is owned, the nature of the community in which it was located, its relative isolation from densely populated neighborhoods, as well as its general accessibility to the public at large.”

However, in Arias, the Court decided that the analysis of whether this Act should apply would depend on the “dominant character” of the premises itself and whether it is open land conducive to engaging in sport and recreational activities.  Thus, the four part test was abandoned in favor of this simpler “dominant character” of the premises test.

The Supreme Court expressed its concern that, to hold otherwise, it might discourage counties and municipalities from opening existing or new properties to the public for free.  Further, the Court noted that if this park was not covered by the Act, it might cause public entities to close their parks to avoid liability and cause increased costs to taxpayers. 

There are two caveats for the Act to provide immunity.  First, the premises must be open to the public free of charge.  Second, while the Act immunizes negligent conduct, it does not immunize “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure of activity.”  However, based upon this Supreme Court decision, more premises will qualify for immunity under the Landowners Liability Act.

Tort Claims Act Protects Borough from Liability for a Pedestrian’s Trip and Fall in a Pothole

Plaintiff Galina Benimovich tripped and fell in a pothole located in the street in front of her daughter’s residence in Montvale’s residential Hickory Hill neighborhood, causing her to fracture her wrist and sue the Borough in Benimovich v. Borough of Montvale, 2026 N.J. Super. Unpub. LEXIS 23 (App. Div. Jan. 7, 2026). That area of Hickory Hill lacked sidewalks, causing all pedestrians to use the street. Montvale’s records showed that multiple complaints and repairs had been made of similar potholes in Hickory Hill, but those records showed no similar complaints or reports of any roadway defects in 2021, about the time of the plaintiff’s fall, in the location of the plaintiff’s fall. Montvale expressly prioritized larger, more serious potholes they considered an “emergency,” typically three to four inches deep that “can take out a tire or a bicycle or be considered a tripping hazard.” The pothole was an inch-and-a-half deep, about three feet long, and about a foot wide. The plaintiff’s engineer determined a pothole of one-quarter of an inch deep presented a tripping hazard, and that this pothole far exceeded that standard, particularly where pedestrians were anticipated to pass due to the lack of sidewalks.

Montvale filed for summary judgment pursuant to the Tort Claims Act, N.J.S.A. 59:4-1-1, et seq. (TCA), claiming the plaintiff could not establish the pothole in question was a dangerous condition, actual or constructive notice of the pothole in which she fell, or that Montvale’s failure to respond to the danger posed by the pothole was “palpably unreasonable.” The trial court agreed, specifically finding that the plaintiff failed to establish Montvale’s notice of “this particular pothole.” As a result, the plaintiff appealed.

On appeal, the plaintiff emphasized prior New Jersey TCA case law that established a three-fourths inch depression in a roadway was sufficient to constitute a dangerous condition. Further, the potholes in Hickory Hill were a known, recurring problem, as Montvale’s own records established, giving the Borough constructive notice of the dangerous condition. Finally, the plaintiff stated that Montvale’s failure to fix this pothole was palpably unreasonable due to knowing potholes would occur regularly in Hickory Hill and failing to properly keep records to record and address those dangers. The Appellate Division disagreed on all counts.

In finding the pothole was not a dangerous condition, the Court focused its attention on the Hickory Hill street as a roadway which, though used by pedestrians, was still principally constructed for vehicular traffic, and any defect on it could not be “viewed in a vacuum.” They reasoned that municipalities should not be compelled to retrofit or redesign roadways to accommodate pedestrians simply due to the absence of sidewalks and the resulting foreseeability of pedestrian traffic. Besides, since roadways are reasonably expected to have potholes, just because there are potholes in a roadway does not create an inherently dangerous condition.

Further, the Court underscored the fact that the plaintiff presented no evidence that Montvale knew of this pothole as a result of their lengthy history of complaints and repairs in the area. The Court pointed to the TCA, which requires the plaintiff to prove Montvale had actual or construction notice of the particular pothole in which the plaintiff fell, as shown by testimony or past records of complaints of that condition, not general knowledge of the problem in the area or past repairs.  

Finally, in finding that Montvale’s failure to act did not meet the palpably unreasonable standard, the Court found the record lacked evidence that Montvale’s “actions were so lacking in justification and patently unacceptable under any circumstances.” Despite the plaintiff’s position that the roadway was in regular disrepair, and the Borough knew, the Court found the plaintiff did not show the egregious neglect required under the palpably unreasonable standard, but that Montvale met the standard by prioritizing the use of their limited public resources on potholes they considered more hazardous and in more urgent need of attention than potholes such as this one.

Federal District Court Sets Reasonable Fee for Deposition of Plaintiff’s Medical Expert

Both federal and state courts in New Jersey require that the fee charged by an expert for a deposition be paid by the party requesting the deposition.  Hence, if a defendant wishes to take the deposition of plaintiff’s expert, the defendant would be required to pay that expert’s reasonable fee.  However, often an issue arises as to what would be a “reasonable” fee.  The issue in the federal case of Salmon v. Lewis, 2025 U.S. Dist. LEXIS 260053 (D.N.J. Dec. 16, 2025) was whether the defendants would be required to pay the flat fee of $12,000 for a full day deposition of plaintiff’s expert, Dr. Roman Shulkin, an anesthesiologist.  Additionally, there was an issue as to whether the fee of the plaintiff’s orthopedic surgeon, who demanded $1,250 per hour, equating to $10,000 for a full day deposition, was a reasonable fee. 

This case involved personal injuries resulting from a motor vehicle accident.  Plaintiff was driving a truck within the scope of his employment when a collision occurred with the defendant Roger Lewis, also operating a truck within the scope of his employment.  Plaintiff alleged that Lewis was negligent, resulting in a collision with his vehicle, and sued Lewis and his employer.   As a result of the accident, plaintiff claimed to have suffered severe and permanent injuries.

In discovery, plaintiff identified both Dr. Roman Shulkin, an anesthesiologist, and Dr. Howard Baum, an orthopedic surgeon, as his experts.  The defendants reached out to plaintiff to schedule the deposition of both experts and asked as to their fees for appearing at the deposition.

Dr. Shulkin demanded a fee of $12,000 for a full day of testimony or $8,000 for a half day of testimony but did not provide an hourly fee.  The defendants filed a motion with the court to set a reasonable fee for Dr. Shulkin and asked the court to set the fee at $450 an hour, which the defendants argued was a reasonable fee for an anesthesiologist.

As for Dr. Baum, he demanded a fee of $1,250 per hour to appear for his deposition, which would equate to about $10,000 for a full day deposition.  The defendants filed another motion to set a reasonable expert fee for Dr. Baum, again asking the court to set the fee at $450 per hour, which defendants claimed was the prevailing rate for orthopedic surgeons to testify at a deposition. 

In response to the motions, the Court noted that the federal court rules required that the expert be paid a “reasonable” fee for time spent in responding to discovery.  Moreover, the party taking the expert’s deposition would bear the cost charged by the expert for the testimony.  However, the party seeking reimbursement of their expert’s fee would bear the burden of showing that the requested fees and costs are reasonable.

Thus, the Court had to determine the reasonableness of fees owed by the deposing party and must adjust fees that are deemed unreasonable.

In this matter, the defendants did not object to paying a fee for the depositions of plaintiff’s experts.  They merely disputed the amount of that fee.  Thus, the only issue before the Court was the reasonableness of both of the doctor’s respective fees.  The Court noted that it had virtually no information before it to determine what constituted a reasonable fee.

The defendants’ argument that the reasonable fee should be $450 per hour was made with no support for this conclusory statement, making it impossible for the Court to evaluate the factors courts would normally consider when setting expert fees.  The defendants failed to provide any comparative data concerning fees charged by similarly-situated doctors in other cases.  The only useful information that the defendants provided to the court in a footnote was where defendants cited to U.S. Bureau of Labor Statistics data for the mean annual income for an anesthesiologist. 

Similarly, the defendants provided no evidence or data to support their contention that the prevailing rate for an orthopedist’s deposition should be $450 per hour.  Again, the only information provided was the U.S. Bureau of Labor Statistics mean annual income for an orthopedic surgeon. 

However, the Court pointed out that the plaintiff carries the burden of demonstrating the reasonableness of his experts’ demanded fees.  Plaintiff did not oppose either motion or provide the Court with any information that might explain why both of these doctors’ fees were reasonable.  Plaintiff did not even provide the Court with the experts’ curriculum vitae.

Because the Court was provided no information about either doctors’ training, education, experience or the complexity of their anticipated deposition testimony, the anticipated length of their deposition, the fees being charged to plaintiff, or the fees defendants were paying for a similarly situated experts, the Court was left to use its own discretion to determine a reasonable expert fee.  The Court conducted research with courts around the country and concluded that the reasonable deposition fee for an orthopedic surgeon varied from $400 per hour to over $1,500 per hour.  The Court located only one case addressing the reasonable deposition fee for an anesthesiologist who set the fee at $600 per hour.

Due to the scant evidence before it, and the complete silence from plaintiff on this issue, the Court determined that $850 per hour was a reasonable hourly rate for the orthopedic surgeon, Dr. Baum.  It set that fee as a midpoint between the demanded fee of $1,250 and the $450 rate defendants proposed.  It also was roughly a midpoint for deposition fees set around the country for orthopedic surgeons, with a slightly higher rate to account for inflation and the generally higher rates charged in this geographic area.

As for Dr. Shulkin, the anesthesiologist, although no hourly rate was provided, but based upon his flat fee demands, the Court concluded that his actual rate was $2,000 for the first four hours and $1,500 for the remaining four hours.  In setting a reasonable hourly rate, the only case the Court discovered from its own research set the expert fee for an anesthesiologist at $600 per hour.  However, the Court noted that this case was 15 years old and emanated from the Northern District of Indiana.  Due to the passage of time and accounting for the historically higher rates charged in this area, the court also set a reasonable expert fee for Dr. Shulkin at $850 per hour.

Finally, the Court noted that should either doctor insist on being paid their demanded fees to sit for a deposition, then plaintiff must pay the excess amount between the rate set by the Court and the rate demanded by the doctor. 

This case is instructive for setting the reasonable fee of an expert.  Note that in this case, the plaintiff did not submit any response to these motions and, hence, was stuck with the court’s ruling.  If the plaintiff’s experts do not accept the fee set by the court, then the plaintiff will be stuck paying the balance of the fee, which could be substantial.  On the other hand, the defendants could have provided better data to justify their requested fee of $450 per hour.  Without providing any data, the defendants are now stuck paying almost twice what they suggested was a reasonable fee for deposing plaintiff’s experts.

Appellate Division Finds Potential Liability for Driving Too Slowly

In Plonski v. Amador-Hodgson, 2026 N.J. Super. Unpub. LEXIS 48 (App. Div. Jan. 12, 2026), Allan Amador-Hodgson, a bus driver for New Jersey Transit (NJT), was driving a NJT bus up the New Jersey Turnpike, just below the speed limit of 65 m.p.h. Ahead of him he saw a box truck, operated by Adam Plonski (with the two plaintiffs, his relatives, as passengers), traveling between 30 to 33 m.p.h. Unable to change lanes to the left lane due to a tractor trailer (itself traveling above 70 m.p.h.), Amador-Hodgson attempted to slow down and change lanes as the tractor trailer passed, but failed to do so in time, causing the right-front portion of the bus to strike the left-rear portion of the box truck, injuring the plaintiffs.

After the plaintiffs filed suit against Amador-Hodgson and NJT (Defendants) for their negligence in causing the accident, the Defendants filed a third-party complaint against Plonski and his employer, alleging Plonski himself was negligent for driving the box truck too slowly and contributed to cause of the accident. Before the case went to the jury, Plonski (along with his employer and the plaintiffs) filed motions for summary judgment based on the dash-cam video from the bus and Amador-Hodgson’s testimony (in which he lied, saying the box truck cut him off) claiming Amador-Hodgson alone was 100% liable for the accident. The trial court agreed, finding that no additional discovery could affect the issue of liability. Amador-Hodgson filed a motion for reconsideration which included expert testimony describing a “looming crash,” a crash that arises when a vehicle traveling with the flow of traffic rear-ends a vehicle ahead traveling far below the flow of traffic due to the difficulty inherent in the trailing driver’s ability to judge that vehicle’s speed. Though denying the motion for reconsideration, the trial court acknowledged New Jersey Administrative Code (NJAC) itself established a minimum speed for the turnpike at 35 m.p.h. Nevertheless, the trial court still found the Defendant could not establish Plonski’s speed caused the accident because “no reasonable fact-finder could conclude Plonski driving too slowly makes him at all liable for this accident,” and his speed, at best, was trivial factor in the accident. The court concluded that the “evidential record is so one sided” that the Defendants must be deemed 100% liable as a matter of law.

On appeal, the Appellate Division disagreed, reversed, and sent the matter back to the trial court for further proceedings. The appellate court found that the trial court improperly stepped into the shoes of the jury in determining that Plonski’s driving the box truck at 30 m.p.h. played no role in the causing the accident. Indeed, the appellate court specifically noted that the trial court referred to the NJAC which itself established Plonski could share in some liability for the accident. It determined that, particularly at the summary judgment stage, when a juror could conclude Plonski breached his duty to drive the box truck as a reasonable driver would under the circumstances, it was not the court’s role to weigh evidence and determine truth, but only to determine whether there were any genuine issues of material fact for trial. Since there was a genuine issue as to whether Plonski’s speed was a causal factor in the accident, it was up to the jury, not the court, to make that determination.

Conventional wisdom often suggests liability is all but a foregone conclusion in rear-end accidents. However, the Appellate Division’s affirmation here undermines that belief. Knowing that, under certain circumstances, the operator of a vehicle travelling unsafely below the speed limit or flow of traffic may be the legal cause of a rear-end accident and create liability for the operator, a similarly-situated defendant may have an avenue of inquiry and legal argument for shared liability.

Court Dismisses Plaintiff’s Personal Injury Claim Resulting From Trip Over an Outstretched Leg of Kneeling Supermarket Employee

Plaintiff Cvetanka Neceva was selecting an item from a supermarket shelf when she turned and tripped over the partially outstretched leg of a kneeling employee stocking shelves.  She suffered injuries and sued the supermarket, claiming that the outstretched leg of the employee was a dangerous condition.  The issue in Neceva v. Stop and Shop, 2025 N.J. Super. Unpub. LEXIS 2794 (App. Div. Dec. 31, 2025) was whether the outstretched leg of a kneeling supermarket employee could constitute a dangerous or hazardous condition.

The plaintiff had been shopping at a Stop and Shop in Ridgewood and had been selecting an item from a refrigerated aisle.  She was aware of a store employee about one foot from her getting boxes and putting “stuff” in the refrigerator.  She knew that the employee was in a kneeling position, stocking shelves.  After retrieving her item, Plaintiff turned to the right and tripped over the employee’s leg, causing injury.  She does not claim that there was any other condition on the premises that caused her injury.

At the close of discovery, the defendant supermarket filed for a summary judgment.  It argued that the store’s stocking practices were consistent with normal business operations and that the employee’s leg did not create a dangerous or hazardous condition.  The plaintiff had produced a report from a human factors expert who opined that the employee’s leg created a trip hazard and that plaintiff would have had no reason to expect such a hazard in her path of travel.  The defendant also argued that his report constituted an inadmissible net opinion. 

The trial court granted summary judgment to the defendant store.  The trial court judge stated that there was nothing about this situation which could be construed to be outside the normal operation of the supermarket.  The court noted that shoppers could be kneeling down, trying to obtain an item on a lower shelf and moving back and forth.  The judge found that employees moving back and forth and moving things onto shelves and off the shelf would appear to be “nothing outside the normal practice of the supermarket.”  Hence, the trial court judge found that no juror could determine that this situation created a dangerous condition. 

This decision was appealed to the Appellate Division. 

The Appellate Division agreed with the trial court “that the employee’s extended leg did not create a dangerous condition subjecting Stop and Shop to liability because it did not create an unreasonable risk of harm and there was no defect in the property itself.”  The Court further noted that “plaintiff’s failure to heed the presence of the employee who was performing a routine supermarket activity – where there was no visual or lighting impairments – does not create a dangerous condition of the premises.”

Additionally, the Appellate Division held that even if there was a risk of harm, it would have been foreseeable and avoidable by a customer exercising reasonable care.  It found that all conditions were “open and obvious” to a reasonable invitee and, thus, no specific warning was required.  Hence, the Appellate Division agreed that the trial court’s decision was correct in concluding that “the injury suffered was not legally attributable to any breach of duty on the part of Stop and Shop or its employees.”

As for the human factors expert’s opinion, the Appellate Division also agreed with the trial court decision that his testimony was not reliable and that the trial court did not make a mistake in barring his opinion.  The Court noted that the expert referenced “no methodology or scientific materials that were subjected to peer review and publication.”  Further, his conclusions were not supported by “identified standards, scientific data, or industry regulations.”

Finally, the Court held that the trial court was also within its discretion to find that the subject matter – an employee kneeling or extending a leg while stocking shelves in a well-lit open supermarket – was not beyond the common knowledge of lay jurors.”  The Appellate Division stated that “[e]mployees kneeling to stock shelves is a routine, expected sight at supermarkets.” Therefore, the Court concluded that the trial court judge also did not make a mistake in determining that expert testimony was neither necessary nor admissible.

Thus, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Court Refuses to Apply Mode of Operation Doctrine to Plaintiff’s Fall as a Result of Hanger on Floor of Retail Store

Plaintiff Rosalie Soiro claimed that, while walking down an aisle, she slipped and fell on a clothes hanger on the floor of a Family Dollar Store in Orange Township.  She further claimed that she hit her head on a shelf, landed on the floor, and suffered permanent injuries as a result of the fall.  The issue in Soiro v. Family Dollar, 2025 N.J. Super. Unpub. LEXIS 2504 (App. Div. Dec. 3, 2025) was whether the plaintiff had been able to establish actual or constructive notice as to the hanger on the floor and, in the alternative, whether the mode of operation doctrine applied.

Plaintiff alleged that she suffered injuries to her neck, back, left shoulder and left knee due to her fall.  She testified in her deposition that she was unaware of any hangers on the floor before she fell and did not see what caused her to fall.  However, it was her testimony that two young boys in the store told her the hangers caused her to fall.  She only saw the hangers on the floor after she fell.

During discovery, plaintiff did not depose any Family Dollar store employees or a corporate designee.  She also failed to produce any medical records or expert reports establishing a causal connection between her fall and her claimed injuries.

After discovery concluded, the defendant store filed for a summary judgment.  The defendant argued that plaintiff was unable to establish that it had actual or constructive notice of this alleged dangerous condition, the mode of operation doctrine did not apply, and plaintiff lacked medical proof of any injury causally related to the incident.  In opposition, plaintiff argued that she was not required to establish that defendant had notice of the hangers on the floor because the mode of operation doctrine applied.

After hearing argument, the trial court granted defendant’s motion and dismissed the lawsuit.  The trial court found that the defendant had failed to present evidence that defendant had either actual or constructive notice of the hanger and that this was not a mode of operation case.

This decision was appealed.  The Appellate Division noted that for plaintiff to pursue a negligence claim against the store, she must demonstrate that the defendant had actual or constructive knowledge of the dangerous condition that caused her accident.  The Court noted that the record was “devoid of any competent evidence to show or suggest actual or constructive notice to hold a defendant liable.”  Plaintiff failed to present the incident report or deposition testimony from a store employee to demonstrate defendant had notice of the hanger on the floor. 

Further, the Court noted that even if it were to accept plaintiff’s testimony as true, that a hanger was on the floor before her fall, there was no evidence defendant had the constructive knowledge the hanger was on the floor “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  Hence, the Appellate Division found that the absence of actual or constructive notice of the dangerous condition was fatal to her claim of premises liability. 

It also disagreed with the plaintiff that the mode of operation doctrine applied, which would have relieved her of demonstrating defendant’s actual or constructive notice of the alleged dangerous condition. The Appellate Division pointed out that the mode of operation rule was not a general rule of premises liability, “but a special application of foreseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a customer’s self-service model.” 

Thus, the Court noted that for a plaintiff to invoke the mode of operation doctrine, the plaintiff must demonstrate the dangerous condition arose as a result of the business’s self-service mode of operation.

Here, the Appellate Division found that her argument suffered from a fatal flaw.  She had not established that the defendant operated a self-service business, although both parties described the business as a retail establishment. The Court found that without factual evidence regarding the nature of the merchandise for sale and the actual method of defendant’s business operations, plaintiff had not satisfied the requisite elements to invoke the mode of operation doctrine.

Even after giving all reasonable inferences to plaintiff, she had not established a dangerous condition existed on defendant’s property and that defendant was on notice of the condition.  The Appellate Division found that “[t]o hold otherwise would impermissibly permit a jury to engage in conjecture about notice because it would have to speculate whether a hanger was on the floor, how the hanger came to be on the floor, and the duration of its existence on the floor.”  Accordingly, the Appellate Division found that the defendant was entitled to summary judgment as a matter of law and affirmed the trial court’s decision.

Plaintiff’s Lawsuit Dismissed Due to Failure to Prove Causal Relationship Between Inhalation of Fumes and Her Fall

Plaintiff Yireika De La Rosa went to defendant LA Gypsy restaurant with a friend.  She drank half a beer and went to the restaurant’s restroom.  As she approached the restroom, she noticed maintenance staff spraying a blue liquid, which smelled like ammonia, onto the floor.  Plaintiff passed through the area, felt she could not breathe and began to run towards the front of the restaurant, ultimately falling to the ground and suffering injuries.  The issue in De La Rosa v. LA Gypsy, 2025 N.J. Super. Unpub. LEXIS 2521 (App. Div. Dec. 5, 2025) was whether the plaintiff had met her burden to show defendant breached any duty of care to her and whether she presented any facts tending to prove a causal relationship between her inhalation of fumes from the blue liquid and her fall outside the restaurant.

According to plaintiff, when she smelled the liquid, “she thought she was going to die.”  After exiting the restaurant, she passed out and fell to the ground.  After she woke up, she felt pain in numerous parts of her body.  There were no warnings in front of the bathroom as the staff person was cleaning the floor.  Plaintiff could not recall whether there was a descriptive label or other mark identifying the substance of the spray bottle which contained the blue liquid that the employee was using to clean the floor.

After the incident, plaintiff went to the emergency room.  She ultimately had neck and back surgery due to her injuries.

Plaintiff named Dr. Elkholy as an expert witness.  According to his report, plaintiff suddenly became dizzy and collapsed, due to inhaling ammonia in a closed restaurant that was not anticipated.  He attached an article to his report, confirming the toxic side effects of the sudden presence of ammonia wherein same is unanticipatedly inhaled.  He opined that it was a foreseeable consequence that an individual will suddenly experience a medical calamity, dizziness, and collapse.  He further opined that plaintiff’s cervical and lumbar injuries were all related to this incident at the restaurant.

Plaintiff had sued the defendant restaurant for negligence.  After completing discovery, the defendant restaurant filed for a summary judgment dismissal, which was granted. 

The trial court found that the expert’s report was not probative on the question of causation.  The judge noted that there are a lot of other facts that could have helped support the fact that the blue liquid was ammonia.  The trial court judge found that the plaintiff’s expert did not identify what contents were in the spray bottle or what substances were discovered in plaintiff’s body afterwards which could have caused her to faint or collapse.  Even assuming that the substance was ammonia, the court held that the presence of ammonia in the hallway leading to the bathroom and the eventual collapse of plaintiff was insufficient to show that ammonia caused plaintiff’s collapse.

This summary judgment dismissal was appealed.  The Appellate Division noted that there was no dispute that the defendant restaurant owed a duty of care to plaintiff as a business invitee, nor that plaintiff fell outside the restaurant and suffered injuries.

The issue was whether defendant breached any duty of care to her, as well as whether plaintiff offered any material facts to prove a causal relationship between the fume inhalation from the blue liquid and a fall outside.

Under New Jersey law, the Appellate Division noted that a business owner was required to guard against any dangerous conditions on the property that the owner either knows about or should have discovered and to conduct a reasonable inspection to discover any latent dangerous conditions. 

The Court stated that plaintiff offered no competent evidence, other than her own testimony, to establish what the blue liquid substance she observed was, its composition, whether defendant’s cleaning staff sprayed the blue liquid in a proper manner and the size and ventilation of the hallway where she observed the liquid.  The plaintiff failed to proffer any testimony that it was unreasonable for the defendant’s staff to use the blue liquid or how its use created a dangerous condition.  The Appellate Division noted that the plaintiff failed to depose defendant or any of its employees to ask what kind of solution the cleaning staff used on the date of the accident.

Hence, even giving plaintiff all reasonable inferences, the Court determined that plaintiff had failed to meet her burden to show a genuine issue of material fact which would tend to prove that defendant breached its duty of care through its cleaning personnel improperly using an unidentified blue liquid.  Plaintiff’s own testimony about the presence of ammonia in the hallway was unsupported by facts and represented self-serving testimony which would be insufficient to defeat summary judgment.

Next, the Court considered whether the plaintiff had proved proximate causation.  The Court noted that to prove proximate cause, plaintiff bears “the burden to introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.”  Expert testimony on the topic of proximate cause would be necessary when it is outside a juror’s common knowledge.

Plaintiff argued that her expert, Dr. Elkholy, rendered an opinion that established a nexus between plaintiff’s collapse and the blue liquid that was sprayed.  The Appellate Division disagreed.  Dr. Elkholy failed to conduct any testing of the restaurant, did not review any records of the composition of the blue liquid, and reviewed  no toxicological reports of plaintiff after her exposure to the blue liquid.

Thus, the Court found that the plaintiff’s expert had no factual basis to reach any conclusions about what plaintiff was exposed to, for how long, or how and if it affected her in any way.  Without evidence of what the blue liquid consisted of and a toxicology report to show what plaintiff had inhaled, the Appellate Division found that Dr. Elkholy’s opinion was without foundation and was a net opinion.  Hence, without an expert to prove causation, plaintiff’s claim could not survive summary judgment.

Thus, the Court determined that plaintiff had failed to meet her burden to show defendant breached any duty of care to her, nor did plaintiff meet her burden to prove proximate cause.  The Appellate Division affirmed the trial court’s order, granting summary judgment and dismissing the lawsuit.

Landowner’s Liability Act Does Not Extend to Local Beaches or the Ocean

In Timpanaro v. Jenkinson’s Pavilion, Inc., 2025 N.J. Super. LEXIS 71 (App. Div. Nov. 21, 2025), the estate of Anthony Timpanaro sued Jenkinson’s Pavilion, a boardwalk amusement complex with access to Point Pleasant Beach, for negligence arising from Anthony’s drowning death.

The case arose when, a few weeks after Labor Day, 2020, grandfather Anthony and his son’s family, visited Jenkinson’s for a day at the beach. Though the summer season had ended and there were no lifeguards on the beach, ordinances and permits required Jenkinson’s to keep the beach premises open. Jenkinson’s posted signs saying, “Beach Closed No Swimming” and “No swimming when lifeguards are off-duty.” While walking on the beach in his bare feet and his pants legs rolled up, Anthony and his grandson looked for seashells and chased seagulls on the wet sand of the water’s edge. Suddenly, a wave unexpectedly rolled in and knocked Anthony down; a second wave pulled him into the ocean. Despite the efforts of his son and local first responders, Anthony drowned.

Before the case could be heard by a jury, Jenkinson’s asked the court to dismiss the case by summary judgment, claiming in part that, because the beach and the ocean were large, outdoor areas open to the public, Jenkinson’s had immunity under the Landowner’s Liability Act, N.J.S.A. 2A:42A-5.1 (“LLA”). The trial court agreed and dismissed the suit. Anthony’s estate quickly appealed, claiming the LLA did not apply to Jenkinson’s.

The LLA states that the owner or occupant of premises, whether or not improved in a natural state or as a commercial enterprise, does not owe a duty to keep the premises safe for people who enter or use the premises for recreational activities, or to warn of any hazardous condition of the land or for any reason arising from people’s activities on the premises. The LLA’s intention was to permit landowners to allow people to use their property for recreational activity free from the tort liability that comes with the common law; with a few exceptions, including willful or wanton conduct or charging a fee for engaging in the recreational activity on the property.

However, prior courts have limited the LLA’s scope, noting that its intention was for largely unsupervised, rural or woodland activities (such as hunting and four-wheeling), and not improved lands that are freely used by the general public and located in populated urban or suburban neighborhoods.

It was on these grounds that the Appellate Division disagreed with the trial court, finding that the LLA did not apply to the beach. They found that it was not located in a rural area and remained openly accessible to and was used freely and frequently by the public. Moreover, it held the LLA did not apply to the ocean, the area that claimed Anthony’s life, as Jenkinson’s is “not [an] owner . . . of the ocean.”

Interestingly, despite disagreeing with the lower court on the LLA, the appellate court upheld Jenkinson’s dismissal on other grounds. The higher court agreed Jenkinson’s had met its duty to a business invitee by posting “no swimming” signs to warn Anthony, but he “was an invitee onto the beach, not the ocean.” It found that by taking off his shoes, rolling up his pants, and walking onto wet sand, he “clearly put himself within reach of the ocean and its waves.”

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