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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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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.”

Court Finds County Not Liable for Fall on Public Sidewalk Adjacent to County Road

Plaintiff Frances Hice tripped and fell and suffered injuries as a result of an uneven public sidewalk slab on Watchung Avenue in Bloomfield.  The sidewalk abutted a private residence owned by defendants Jose Cruz and Angelica Delacruz.  The sidewalk was adjacent to a road (Watchung Avenue) owned by the County of Essex.  The issue in Hice v. State of New Jersey, 2025 N.J. Super. Unpub. LEXIS 2039 (App. Div. Oct. 28, 2025) was whether the County could be held responsible for a fall which occurred due to an uneven sidewalk adjacent to its roadway.

The uneven sidewalk was caused by tree roots from a tree located on the Cruz-Delacruz property.  Plaintiff initially sued the Township, the State, the County, and the homeowners.  By the time the appeal occurred, the only remaining defendant was Essex County.

The County owned the Watchung Avenue roadway in Bloomfield but, pursuant to N.J.S.A. 27:16-8, it owned the roadway between the curblines, excluding sidewalks.  The sidewalk itself where plaintiff fell was not owned by the County, the homeowners, nor the Township of Bloomfield.  Rather, the sidewalk was considered a right of way and residential property owners would be responsible for maintaining it.

About two years before plaintiff fell, the County began a resurfacing project and was mandated, as part of the project, to install curb ramps compliant with the Americans with Disabilities Act (ADA) at the corners of all roadways.  This project included installation of a ramp near the sidewalk slab where plaintiff tripped.  The scope of the project, however, was limited to replacing the existing pavement markings, sidewalk and curb necessary for the installation of the handicap ramps.

It was undisputed that plaintiff did not fall on the handicap ramp or on the slab next to the handicap ramp.  Rather, plaintiff fell three slabs away from the end of the sidewalk where one of the new ramps was installed.  Plaintiff did concede that this distance was approximately 12 feet from the newly installed ramp.

Plaintiff obtained an expert report from an engineer, Dr. Wayne Nolte.  Dr. Nolte acknowledged that the property adjacent to the sidewalk was owned by the homeowners and that the sidewalk’s maintenance was the responsibility of the abutting property owner.  In his report, however, he stated that the sidewalk between the handicap ramps was required by the ADA standard to have elevation differentials no more than ¼ of an inch.  He concluded that the installation of the handicap ramps exceeded this height differential and, therefore, did not comply with the ADA standard.  But, he did not dispute that the location of the elevation differential, where plaintiff fell, was not on the handicap ramp, nor on the slab next to the ramp.

The defendant homeowners and the County filed for summary judgment at the trial court level.  A summary judgment dismissal was granted by the trial court judge, dismissing out both the homeowners and the County.

While plaintiff appealed both orders for summary judgment, he settled out with the homeowners before the appeal was heard.  Thus, upon appeal, the Appellate Division only dealt with the challenge to the order granting summary judgment to the County. 

The Appellate Division pointed out that a public entity may be held liable for an injury caused by a condition on its public property.  But, liability as to a public entity would only pertain to the property owned or controlled by the public entity. 

Plaintiff argued that the County constructed the ramp in violation of ADA due to the height differential.  Plaintiff argued that the uneven sidewalk caused the plaintiff to trip and fall and be injured.  Further, plaintiff contended that the County created the dangerous condition and, therefore, it had actual or constructive notice of it.

The Appellate Division pointed out the flaws in these assertions.  First, it was undisputed that the plaintiff fell on the sidewalk approximately three sidewalk slabs from the County’s worksite and not next to the handicap ramp.  There was no evidence that the County owned or was responsible for the entire sidewalk.  In fact, the Township Code clearly provided that the abutting property owner was responsible for the installation, repair, or replacement of sidewalks. 

Further, the County did not take control of that portion of the sidewalk when it began construction of the ADA compliant ramp.  The record did not show that the uneven sidewalk where plaintiff fell was caused by the County’s work.  Because there was no evidence showing that the County took control over the entire sidewalk, it had no legal duty to repair the part of the sidewalk where plaintiff fell.

Plaintiff argued that when the County undertook the responsibility of installing the handicap ramp, it had an obligation to ensure that there was nothing greater than ¼ of an inch height differential along the entire sidewalk.  The Appellate Division pointed out that the plaintiff provided no legal support for extending this legal duty to a portion of the sidewalk under the control of the abutting property owner and not the County. 

Hence, the Court declined “to expand a public entity’s duty to inspect and potentially repair sidewalks abutting County roadways not under their control or ownership to ameliorate any potential hazard.”  Because the Appellate Division found no genuine of issue of fact as to whether the County owned or controlled the sidewalk where plaintiff fell, the Court found that the trial court judge had properly granted summary judgment to the County and it affirmed the trial court’s dismissal.

State Law Claims Dismissed In Error When Federal Court Declined Supplemental Jurisdiction Over Claims

This matter involved the consequences of a federal court’s dismissal of a case and whether the plaintiff’s subsequently filed state court action was barred by principles of res judicata or other legal doctrines.  Plaintiff Randi Zupko filed a complaint in federal district court against defendants County of Ocean, Scott Waters, and Robert Greitz.  After the federal court matter was dismissed, plaintiff Zupko filed a lawsuit in state court, asserting only state law claims.  The issue in Zupko v. County of Ocean, 2025 N.J. Super. Unpub. LEXIS 1884 (App. Div. Oct. 7, 2025) was whether that lawsuit was barred by the federal court’s dismissal of the federal court action when the district court judge explicitly declined to exercise supplemental jurisdiction over the state law claims.

Plaintiff Zupko was a former County of Ocean employee and initially filed his lawsuit against defendants in District Court, making claims under both federal and state law.  The defendants successfully moved for summary judgment, obtaining a dismissal of the federal lawsuit in its entirety.  It was initially dismissed without prejudice by the District Court judge.  In the court’s written memorandum opinion, the judge expressly dismissed plaintiff’s state law claims and her federal claims falling under 42 U.S.C. §1983 without prejudice and permitted plaintiff to file an amended complaint.  However, in that opinion, the District Court judge explicitly declined to exercise supplemental jurisdiction over the state law claims.

Thereafter, plaintiff did file an amended federal complaint and defendants renewed their arguments for a dismissal.  The District Court judge once again dismissed the claims without prejudice but granted plaintiff another opportunity to amend the federal complaint.  Plaintiff did not do so and, hence, the District Court judge entered a final order, dismissing the federal claims with prejudice and dismissing the state law claims without prejudice.

In the second memorandum opinion, the judge specifically wrote that the court “does not address defendants’ remaining arguments in support of their motion regarding plaintiff’s state law claims.”

Thereafter, the plaintiff filed a complaint in state court and this time only asserted state law claims.  Defendants again moved to dismiss and argued this time that the state complaint was barred under principles of res judicata.  The trial court judge agreed with defendants and dismissed the state complaint.  This appeal ensued.

The Appellate Division reversed the trial court decision, finding that the court made a mistake in dismissing the state court complaint.  The Court noted that under New Jersey law, “plaintiffs who assert related federal and state claims in federal court are free to reassert in state court the claims that the federal court declined to adjudicate.”  The Appellate Division noted that was exactly the situation in this case in which there was no decision ever made by the federal court on the merits of plaintiff’s state claims.

The Court further noted that the decision to decline supplemental jurisdiction was well within the District Court judge’s discretionary power.  Under the case law, state claims may be dismissed without prejudice and left for resolution to state tribunals. 

The Court noted that the principles of res judicata did not bar plaintiff’s state law claims.  This doctrine barred re-litigation of claims or issues that have already been adjudicated.  But it requires that the adjudication be on the merits.  A cause of action between parties that has been finally determined on the merits cannot be relitigated by those parties. 

The Appellate Division pointed out that the federal court never issued a final judgment adjudicating “the merits” of plaintiff’s state law claims.  To the contrary, it carved them out and preserved them for a future state court action.  Hence, an essential ingredient of res judicata, a final judgment on the merits, was missing.

Thus, the Appellate Division reversed the trial court’s dismissal order and reinstated plaintiff’s state law claims.  By doing so it did not reach, nor did it comment upon the substance of those claims, but did permit the state law claims to proceed.

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