Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard

duty of care

View OTHER BLOGS

Court Dismisses Lawsuit Filed by Driver Turning Left From Middle Lane

Plaintiff Mildred Green filed a lawsuit against defendants Ricardo Arboleda Guapacha and Alba Vidal due to an automobile accident.  Green and Arboleda Guapacha were both stopped at a red light before the accident occurred.  Green was in the middle lane and Arboleda Guapacha was in the left lane. The issue in Green v. Arboleda Guapacha, 2024 N.J. Super. Unpub. LEXIS 2899 (App. Div. Nov. 21, 2024), was whether Arboleda Guapacha owed any duty of care to Green who made a left-hand turn from the middle lane of the roadway.

The facts were undisputed that Arboleda Guapacha’s vehicle was in the left lane of traffic and Green’s vehicle was in the middle lane of the roadway before Green began to turn left.  The only lane of traffic that was authorized to turn left at that intersection was the lane that Arboleda Guapacha was traveling in.  Green was in the middle lane which was marked as a “straight lane” only.

The accident occurred when the left-hand turn signal controlling Arboleda Guapacha’s lane of travel turned green.  He began to make the left-hand turn.  Green, disregarding the middle lane’s red light, along with the lane markings, also began to turn left.  Plaintiff Green claimed that she and other drivers have made left-hand turns onto Route 280 from the middle lane due to traffic in this intersection, despite the traffic markings that only allowed her to proceed straight.

Plaintiff Green told the police that she was in the middle lane, making the left-hand turn onto Route 280, when Arboleda Guapacha’s vehicle sped up and hit her vehicle.  She suffered damage to her driver’s side rear fender and claims that she was injured as a result.  After discovery concluded, defendants filed for a summary judgment, which the trial court granted.  The trial court judge found that there was no evidence that Arboleda Guapacha failed to operate his vehicle in accordance with prevailing law.

This appeal ensued.  The Appellate Division noted that the threshold question was whether Arboleda Guapacha owed a duty of care to Green.  The Court noted that for it to impose a duty of care, “there must be a foreseeable risk of harm.” 

Here, the parties did not dispute that Green’s lane was controlled by a red light and that due to the designation of the roadway, only a straight path of travel was permitted from that lane.  Instead of obeying the traffic command, plaintiff turned left from the middle lane.  She elected to disregard the red light and the middle lane markings and drive her vehicle into the lane of travel that she should not have occupied.

The Appellate Division found that while both drivers had a duty to make proper observations, Green’s presence in the roadway next to Arboleda Guapacha’s lane of travel at the time of impact was not “reasonably foreseeable.”  Hence, the Appellate Division concluded that Arboleda Guapacha owed no duty to Green.

The Appellate Division also noted that the trial court judge properly rejected Green’s argument that she and other drivers had made a left-hand turn onto Route 280 from the middle lane on prior occasions despite the traffic control device and in contravention of the roadway markings, requiring a vehicle in the middle lane of travel to proceed straight.  The Court noted that only vehicles in the left most lane were permitted to turn left at that intersection.  It found that even if other drivers had “previously disregarded traffic laws at this intersection, such conduct by others does not exempt Green from the consequences of proceeding in contravention of designated traffic markings.” 

It also rejected the argument that Arboleda Guapacha could be liable for making an improper wide left turn or speeding up as he made the turn.  It noted that there was no evidence that Green’s vehicle would have been struck had she not been making a prohibited left-hand turn from the middle lane.

Hence, the Appellate Division agreed with the trial court’s ruling and upheld the summary judgment dismissal as to the defendants.

Court Rules That Commercial Landowner Has No Duty to Pre-treat Commercial Sidewalks Despite Actual or Constructive Knowledge of an Impending Storm

Defendant Hillside Estates, Inc. owned and managed Winding Woods Apartments in Sayreville, New Jersey.  Plaintiff, Hsi Rung Niu-Wang, was a tenant in the complex.  After plaintiff left her apartment to go to work, she walked towards her car and fell on black ice in the parking lot. The issue in Niu-Wang v. Hillside Estates, 2024 N.J. Super. Unpub. LEXIS 1436 (App. Div. July 3, 2024) was whether defendant apartment complex owner could be liable for plaintiff’s injuries because they failed to pre-treat the apartment complex’s walkways and parking lots in light of the knowledge of an impending storm.    

This apartment complex consisted of over 130 buildings with separate parking lots for most of the buildings. Plaintiff was a resident in one of the buildings. The day before her accident, the National Weather Service issued a winter weather advisory for Middlesex County, warning the residents about a freezing rain “with the potential to cause ice accumulation on sidewalks, roads, and bridges in affected areas.”

In the early morning hours of the day of her accident, freezing rain coated parts of the complex’s exposed walkways and parking lots with a thin layer of ice. Defendant apartment complex conceded that they did nothing to prepare the walkways and parking lots for the storm beforehand.  Furthermore, they did not take any steps to address the icy conditions of their walkways and parking lots after the freezing rain began.

At about 7:45 a.m. on the morning of her accident, as the freezing rain continued to fall, plaintiff left her apartment to go to work.  She walked towards her car with one foot on the grass and another on the walkway.  When she eventually stepped onto the parking lot, she slipped on a patch of black ice, falling and breaking her left ankle. There was no dispute that the black ice that caused plaintiff’s fall was formed that morning when the drizzle froze as it hit the ground.  There was also no dispute that plaintiff’s injury occurred during the freezing rainstorm.

The defendant apartment complex filed for a summary judgment dismissal, which was granted.  The trial court judge found that there was “no independent duty that should be imposed upon commercial landlords to anticipate weather events and plan against them.”  The trial court judge ruled that the issue was dealt with in the Pareja v. Princeton International Properties case where the NJ Supreme Court specifically rejected a duty to pre-treat when it adopted the ongoing storm rule.

Nevertheless, plaintiff appealed the trial court decision and contended that defendant owed her a duty of reasonable care to maintain the parking lot in a reasonably safe condition.  She argued that the trial court judge misapplied Pareja because “the ongoing storm rule does not preclude the imposition of liability based upon defendant’s lack of action prior to a storm.”  Plaintiff contends that the ongoing storm rule in Pareja did not address whether defendant had a duty to have salted or sanded the parking lot before the storm began.

The Appellate Division rejected this argument. It noted that the NJ Supreme Court, in adopting the ongoing storm rule, concluded that a commercial tenant had a duty to address snow and ice accumulations in the parking lots and pathways only after a reasonable time following a storm. Moreover, the Appellate Division noted that the Pareja court specifically rejected “the notion that all a landlord needed to do to avoid liability was spread salt.”

In the case within, the facts were not disputed, such as that there was no ice or precipitation present before the storm. On the contrary, it was conceded that the ice formed during the storm. 

The Appellate Division found that it was bound by the NJ Supreme Court’s Pareja precedent that “commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on the property free from snow or ice during an ongoing storm.”  More specifically, the Appellate Division noted that in adopting the ongoing storm rule, “the Supreme Court specifically declined to exclude liability where landowners had actual or constructive knowledge of an impending storm.”  Hence, the Court affirmed the trial court decision, dismissing the lawsuit.

New Jersey Supreme Court Imposes Duty Upon Owner of Vacant Commercial Lot to Maintain the Public Sidewalk Abutting the Property

Plaintiff Alejandra Padilla allegedly tripped, fell, and suffered injuries on the sidewalk that abutted the vacant commercial lot in Camden owned by the defendants Young Il An and Myo Soon An.  This property had been purchased more than 25 years previously but no building was ever constructed.  The issue in Padilla v. Il An, 2024 N.J. LEXIS 575 (June 13, 2024) before the Supreme Court was whether the owner of a vacant commercial lot had a common law duty to maintain the abutting public sidewalk in reasonably good condition.

On September 11, 2019, plaintiff allegedly was injured while walking on the public sidewalk abutting the vacant commercial lot located on Westfield Avenue in Camden, New Jersey that was owned by the defendants.  According to her deposition, plaintiff suffered several injuries from the fall, including a broken foot and injured arm, and underwent surgery for her injuries.  She claims to suffer continuing symptoms, including migraines, pain, and memory loss.

The lot abutting this public sidewalk had been owned by the defendants 27 years before plaintiff’s fall.  According to defendant Young Il An, they bought the lot intending to construct a building there but due to economic conditions, they gave up that plan.  They also did not purchase liability insurance to cover the lot because, according to the defendant, insurance companies did not really want to insure it.  After the fall, the defendants did have the sidewalk abutting the subject lot repaired. 

Plaintiff sued defendants based upon their alleged negligence in failing to reasonably maintain the sidewalk abutting the subject lot.  At the trial court level, the defendants were successful in obtaining a summary judgment dismissal.  The trial court held that the defendants did not owe a duty of care to plaintiff, relying on the Appellate Division’s decision in Abraham v. Gupta.  In the Abraham case, the Appellate Division held that “the liability imposed on commercial property owners to reasonably maintain abutting sidewalks does not apply to sidewalks abutting vacant lots.”  The trial court’s rationale was that the defendants did not have a duty to maintain the sidewalk because it abutted a vacant lot that was not generating any income.

This summary judgment dismissal in the Padilla case was appealed to the Appellate Division, which affirmed the trial court’s judgment.  The Appellate Division ruled that Abraham remained good law as applied to the subject lot and declined to impose any duty upon the defendant vacant lot property owner to maintain the abutting sidewalk in a safe condition.

Plaintiff filed a petition for certification on the issue of whether owners of vacant commercial lots owe a duty of care to pedestrians to reasonably maintain the sidewalks abutting those lots.  The New Jersey Supreme Court granted the plaintiff’s petition, bringing this issue before the Supreme Court.

Plaintiff urged the Supreme Court to reverse the Appellate Division’s decision, contending that the Abraham case should be reversed.  Plaintiff contended that the Stewart v. 104 Wallace Street, Inc. case which imposed a duty of care upon commercial properties, as opposed to residential properties, to maintain the abutting public sidewalk, did not distinguish among types of commercial properties or consider whether those properties had active businesses on them.  Plaintiff further argued that imposing a duty of care would be fair because the subject lot was capable of generating income. 

The Supreme Court noted that in the four decades since the Stewart case, the New Jersey courts “have adhered to the rule imposing liability on commercial landowners.”  The issue in this case was whether that liability should be extended to commercial landowners of vacant lots.  The Court adopted a bright-line test, concluding that a duty should be imposed on owners of vacant commercial lots to maintain the abutting sidewalks in reasonably good condition.

The Court noted that there would be “something profoundly unfair about commercial property owners purchasing vacant lots and having no responsibility whatsoever from maintaining the area where the general public traverses.”   Hence, the Court ruled that all commercial landowners, including owners of vacant commercial lots “must maintain the public sidewalks abutting their property in reasonably good condition and can be held liable to pedestrians injured as a result of their negligent failure to do so.”

The Court explained that once “an individual or an entity purchases a lot in a commercially zoned area, meaning the only use to which that land can be put as commercial, the purchaser has begun a commercial endeavor and intends to make money.”  The Supreme Court rejected any type of profitability test to determine whether a duty should be imposed upon a commercial landowner, finding that profitability would be a difficult task to determine.  Thus, it found that a bright-line rule that commercial property owners owe a duty “is the most workable rule to protect the general public and ensure consistency in our courts.” 

Accordingly, the Supreme Court reversed the Appellate Division’s decision, which had affirmed the trial court’s order granting summary judgment to the defendant property owners and remanded the case back to the trial court for further proceedings.

Personal Injury Claim Resulting From Fall on Snow and Ice Barred by Ongoing Storm Rule

Plaintiff Joseph Devaney was working as a security guard for G4S at facilities owned by defendant Chemours Company.  On the day of the accident, there was a winter storm with light snow, sleet, and freezing rain.  During the course of plaintiff’s inspection of the premises, he slipped and fell, suffering injuries.  The issue in Devaney v. Chemours Co. FC, LLC, 2024 N.J. Super. Unpub. LEXIS 776 (App. Div. May 2, 2024) was whether the ongoing storm doctrine decided by the New Jersey Supreme Court after the date of his fall applied to bar his claim.

As a security guard, plaintiff’s responsibilities including inspecting  incoming and outgoing cars at Chemours entrance and exit.  He would walk through the doorway to conduct his inspection.  Four days before his fall, there was a winter storm that resulted in less than 4 inches of snow.  On the day of the accident, January 8, 2018, there was a winter storm that began around 2:00 p.m. and did not end until around 9:30 p.m.  When Chemours became aware of the icy conditions, they contacted their snow contractor and alerted their security guards.

Plaintiff’s shift began around 6:00 p.m.  At around 8:30 p.m., while walking his usual path, he slipped and fell on the asphalt into the doorway between the areas he was inspecting.  He suffered injuries as a result of his fall.

At the trial court level, the defendant landowner Chemours filed a motion for summary judgment, relying upon the case of Pareja v. Princeton International, which was granted.   In Pareja, the Supreme Court adopted the ongoing storm rule which held that commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.  Based upon the adoption of this rule, it “relieved commercial landowners of the duty to continuously clear snow and ice from their property throughout the duration of an inclement winter weather event.”

Based upon those circumstances of this accident, it was undisputed that plaintiff’s slip and fall occurred during the snowstorm.  Accordingly, the Court found that the ongoing snowstorm rule applied and it relieved the defendant of any duty of care it may have owed plaintiff.

Plaintiff argued that the ongoing storm rule should not have been applied retroactively to accidents that occurred prior to the adoption of the rule.  Plaintiff argued that contradicted “the negligence jurisprudence that provides individuals recourse if they are seriously injured due to a defective sidewalk.”  The trial court judge rejected that argument. 

The Appellate Division found that the trial court correctly rejected the argument because there was nothing in Pareja which required prospective application only.  In fact, in Pareja, the Court applied the “newly rendered ongoing storm doctrine” to a 2015 slip and fall that had occurred during an ongoing storm.

The plaintiff also argued that the rule should not be extended to include sidewalks of “highly secured, restricted – access industrial facilities such as Chemours.”  The Appellate Division also rejected that argument, finding that Pareja rejected the distinction between public and private ownership, to ensure uniformity.  It declined to draw arbitrary lines for the type of property that fall under Pareja.  Hence, it found that there was no reason to limit Pareja’s application to exclude facilities such as Chemours.

Based upon Pareja, remediation was only required within a reasonable period of time after the storm had ended.  Thus, liability did not attach to the defendant landowner until after the storm ended, which in this case was about 9:00 p.m., well after the plaintiff fell.

Therefore, the Appellate Division was satisfied that the trial court correctly considered the entire record and found that the ongoing storm rule barred plaintiff’s negligence claim against defendant as a matter of law.  Therefore, the trial court decision was affirmed, which dismissed the lawsuit.

Plaintiff’s Personal Injury Claim Dismissed Due to Lack of Expert Report As to Causation

The decedent Alice Trainor fell while attending the defendant’s adult day health care services.  The 89-year-old Alice fell while walking towards the bathroom at the defendant’s facility, suffered injuries, and ultimately passed away.  The issue in Estate of Alice Trainor v. Active Day of Brick, 2024 N.J. Super. Unpub. LEXIS 552 (App. Div. Apr. 3, 2024) was whether the plaintiff was required to provide expert testimony as to the causation of Alice’s injuries to be able to pursue a claim for personal injuries.

The decedent, Alice Trainor, with vascular dementia, was attending adult day health care services at defendant’s Active Day of Brick’s facility.  She began walking towards the bathroom at the facility when another participant in the program attempted to help her.  However, defendant’s activities manager, Kellie Piaskowski, intervened and proceeded to assist Alice towards the bathroom.  She was attempting to guide her there.  Alice was shuffling her feet somewhat and tripped over her feet.  Alice fell flat down to the floor and banged her face.  She was taken by ambulance and treated for her injuries.  A few weeks later, she was found unresponsive, and her condition deteriorated.  She ultimately passed away within two months after the incident.

Her Estate filed a lawsuit against the facility, arguing that the defendant facility had a duty to provide Alice with a safe environment but failed to do so.  The defendant moved for a summary judgment, arguing that the plaintiff’s claims failed because plaintiff did not have a medical expert to support plaintiff’s case.  The trial judge agreed with that argument, finding that plaintiffs had not provided an expert medical opinion asserting a causal relationship between the alleged negligence and the injuries Alice suffered. The judge granted the motion, dismissing the case and this appeal ensued.

Plaintiffs argued that there was a State mandated ratio of 9-1 (patient to staff ratio) and that Medicaid required a ratio of 5-1.  However, the defendant maintained a 30-1 ratio of patients to staff.  Plaintiffs argued that, because of the extreme imbalance between patients and caregivers, the finder of fact could rely on the theory of res ipsa loquitur to infer defendant’s lack of due care and, hence, negligence.  The trial judge had rejected this theory, stating that “under any stretch of the imagination,” this was not a res ipsa loquitor case.

Plaintiffs argued upon appeal that the medical causation was not in question and the jury does not need an expert to determine whether defendants’ 30-1 patient to staff ratio was a gross deviation from the standard of care.  The Appellate Division rejected that argument.

The Appellate Division noted that the doctrine of res ipsa loquitur, if applied, would allow a finder of fact “to infer with the defendant’s lack of due care only when three elements of the doctrine had been satisfied:

a)         The occurrence itself ordinarily speaks negligence;

b)         The instrumentality was within the defendant’s exclusive control; and

c)         There is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

The Court noted that to satisfy this res ipsa loquitur standard, “plaintiffs would need to demonstrate that an 89-year-old falling while being assisted by a caregiver ‘itself ordinarily bespeaks negligence’; the environment was in ‘defendant’s exclusive control’; and ‘there was no indication in the circumstances that the injury was the result of [Alice]’s own voluntary act or neglect.’”  The Appellate Division found that the plaintiff was not able to satisfy any of these elements. 

Further, the Court explained that res ipsa loquitur only fills in a gap in plaintiff’s negligence claim with the respect to a breach of duty of care and not as to the causal relationship between a breach and the injury suffered.  The causal relationship is what the trial judge found was missing.  The Appellate Division noted that the jury would have no means of judging whether defendant’s purported short staffing or the staff member who helped Alice was the proximate cause of Alice’s injuries.

The appeals court agreed with the trial court’s conclusion that “a lay jury is insufficiently knowledgeable of the specifics of elder care and assistance to competently determine whether any purported short-staffing or Piaskowski’s helping Alice to the bathroom was the cause of Alice’s injuries.”  Thus, the Appellate Division affirmed the trial judge’s decision that, lacking expert testimony to that effect, the defendant must prevail as a matter of law. 

Employer Found Not Liable for an Auto Accident Caused by an Employee Who Stole Van From Employer

Plaintiff Richard Finaldi (“Finaldi”) was in an automobile accident with defendant Matthew Knight (“Knight”), one of defendant Cornucopia Logistics, LLC’s (“Cornucopia”) dispatchers.  Knight had stolen a Cornucopia delivery van, fell asleep while operating the van, went through a red light and collided with plaintiff Finaldi.  Plaintiff Finaldi suffered serious injuries as a result of the accident.  An issue in Finaldi v. Knight, 2024 N.J. Super. Unpub. LEXIS 7 (App. Div. Jan. 3, 2024) was whether the defendant Cornucopia could be held responsible for its employee’s actions in causing this accident. 

Cornucopia had an agreement with Amazon to deliver groceries ordered through Amazon Fresh.  Pursuant to its agreement, Cornucopia had exclusive responsibility for its employees and employment conditions.  It used leased delivery vans to make the deliveries, which it stored at the Amazon Fulfillment Center in Avenel, where Cornucopia also had an office.

Back at the time of the accident, Cornucopia had several employees at this facility including managers, four dispatchers and about thirty drivers, each for the morning and the night shifts.  Each shift had one dispatcher.  The dispatcher would log in and assign the drivers their routes.  When a driver clocked in, the dispatcher would give them a handbag containing a key to a van, an EZ pass, vehicle registration and insurance and a scanner which permitted the drivers to scan each package in and out.  The scanner also acted as a GPS and had a camera.  It allowed supervisors to see where each driver had dropped off their last package.

When the vans were not in use, Cornucopia kept the keys in a cabinet behind the dispatch table.  It was supposed to be locked after the dispatcher checked in the drivers and gave them their handbags.  Each dispatcher had a key to the cabinet, as well as two of the managers.  The standard operating procedure was for the dispatcher to log in each key and take inventory of those keys.  The dispatcher would count the keys after the drivers returned.  If one of the dispatchers discovered a key was missing, they would see if the vehicle was in the parking lot and, if not, notify one of the managers.

Knight, initially worked for Cornucopia as a driver but, after his license was suspended, he became a dispatcher.  This position did not require driving so he could continue to work at Cornucopia.

The day before the accident, Knight had stolen the van to assist his mother in moving.  His plan had been to return the van to the facility in time for the next shift.  He entered the facility, found the cabinet with the keys to the van unlocked and took one of them.  Only after the accident did Knight inform the Cornucopia fleet coordinator that he had taken the van.  No one at Cornucopia knew the van was missing until after the accident.  According to the testimony, this was the first time that an employee had used a van for personal use. 

Plaintiff sued for Cornucopia for both negligent hiring and retention, as well as general negligence.

At the trial court level, Cornucopia moved for a summary judgment which was granted as to both claims.  The court found that Cornucopia owed no duty to plaintiffs because Cornucopia had no reason to know “that there was an enhanced risk of harm to a third-party by hiring Knight to work as a dispatcher.”  The court also found that there was no history of Cornucopia employees stealing vehicles and that it had adequate security measures in place.

Further, the trial court ruled that plaintiffs failed to establish that Cornucopia’s actions were the proximate cause of plaintiff’s injuries.  The court reasoned that Knight was not working at the time of the accident, he was not using the vehicle with Cornucopia’s permission, and Cornucopia took reasonable precautions to prevent against such actions.

A motion for reconsideration was also denied.  This appeal ensued.  Upon appeal, the Appellate Division noted that the threshold question was whether Cornucopia owed a duty to plaintiffs.  The Court held that for a Court to impose a duty, “there must be a foreseeable risk of harm.”  Plaintiffs argued in the appeal that Cornucopia’s employees did not follow its procedures to prevent and detect the theft of the van.

The Appellate Division rejected that argument.  It found that Cornucopia’s policy in keeping the keys in a locked cabinet, having the dispatcher on duty take inventory of them twice every shift, and that the Avenel facility not being in a high crime area did not result in an imposition of a duty upon Cornucopia. 

Further, the Appellate Division noted that Cornucopia had no reason to suspect an employee would take a van for their own personal use.  Its policies prohibited an employee from taking the delivery vans for their own use and an employee could be terminated for violating that policy. 

Hence, the appeals court declined to follow plaintiff’s argument that the unauthorized use of the van and the accident were sufficiently foreseeable to impose a duty upon Cornucopia.  Moreover, the Court noted that even if it was foreseeable that an employee would steal one of the vans, it could not have known that Knight, who had no prior accidents as a driver for the company, would doze off at the wheel and collide with the plaintiff.  

Additionally, the Appellate Division rejected plaintiff’s argument that Cornucopia was negligent in promoting Knight to a dispatcher position after his license was suspended.  A license suspension alone did not suggest an employee would be deceitful or prone to theft.  It would not have put Cornucopia on notice that he would use its vehicle in violation of company policy.  Accordingly, the Appellate Division upheld the trial court’s decision, dismissing the case as to Cornucopia.

Building Owner Found Not Liable for Injury to Tenant’s Contractor

Defendant Rock Pile Properties, LLC (“Rock Pile”) owned a building in Garwood, which it leased to Defendant Statewide Fence Contractors, LLC (“Statewide”), a residential, commercial, and industrial fence company.  According to the lease, Statewide was required to make all repairs and maintain the property, including the roof.  Plaintiff John Gudoski (“John”), had prior experience working for his father’s company, Statewide Restoration, Inc., restoring and repairing building cracks. He suffered an injury in the course of inspecting a masonry crack from the defendant’s roof.  The issue in Gudoski v. Rock Pile Properties, LLC., 2022 N.J. Super. Unpub. LEXIS 2031 (App. Div. Nov. 3, 2022) was whether defendant Rock Pile could be liable for the injuries suffered by plaintiff when he fell off the roof to inspect a crack.

The facts are somewhat in dispute as to whether John was present on the property as an independent contractor of the tenant Statewide or a friend doing a favor for another friend.  According to Statewide’s owner, John came to the property to look at the building and offer a friend some advice about a crack in the building.  When he arrived, there was an ongoing Labor Day picnic on the premises.  John observed the building perimeter, and he noticed some large cracks in the masonry in what appeared to be a corner separating from the sidewalk. He told Statewide’s owner that he needed to go on the roof to fully examine the crack.  According to several witnesses, Statewide’s owner told John not to go onto the roof.  However, John went up on the roof and, while inspecting it, stepped onto a skylight and fell through it onto the concrete ground.  As a result, he suffered several injuries, including to his shoulder, hand, and mouth.

Plaintiff sued the property owner Rock Pile, as well as Statewide for negligence damages.  Both defendants filed for summary judgment prior to trial.  The motion judge found that while there was a genuine issue of material facts as to the nature of the relationship between John and Statewide, he did grant the summary judgment motion as to Rock Pile.  He found that the owner did not owe a duty of care to John merely because it owned the building.  This order was appealed to the Appellate Division.

Upon appeal, the Court noted that whether a defendant owes a legal duty to another, and the scope of that duty, are generally questions of law for the court to decide.  To determine the scope of the duty, a court would make an inquiry involving “identifying, weighing, and balancing several factors – the relationship with the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.”

In applying this standard to determine if a duty existed between Rock Pile and plaintiff, the Appellate Division found that none of these factors were met.

The Court found that there was no evidence that John and the defendant owner had a relationship of any type.  The Appellate Division found it was not foreseeable that John would be on the roof and fall through a skylight.  There was no notice, actual, or otherwise to the defendant owner and this defendant neither maintained a presence on the site, nor was it responsible for repairs to the building.  Thus, under these facts, there was no reasonable opportunity for the defendant owner to exercise care.  Finally, the Appellate Division found that they were “unconvinced public policy supports the imposition of liability on defendant, given it was Statewide who brought John onto the property it controlled pursuant to the lease.” 

Thus, based upon the Appellate Division’s review of the facts and the law, it affirmed the trial court decision, dismissing plaintiff’s complaint as to the defendant owner Rock Pile Properties, LLC.

Casino Had No Duty to Protect Patron From Theft of Money Kept in Shopping Bag

Plaintiff, Sridhar Jayaraman, was a guest at Caesar’s Hotel and Casino in Atlantic City for a six-night stay.  While sitting at the bar with his girlfriend, he had with him a black plastic shopping bag, allegedly containing $120,000 in cash.  After he stepped away from the bar, an unknown male later identified as Frederick Exume (“Exume”), approached Plaintiff’s girlfriend, made conversation with her and stole the bag with the money.  The issue in the federal court case, Jayaraman v. Boardwalk Regency, LLC., 2023 U.S. Dist. LEXIS 173841 (D.N.J. Sept. 28, 2023), was whether the casino breached any duty owed to Plaintiff to protect him from the theft of his money.

The incident happened during the early hours of February 8, 2022, when Plaintiff and his girlfriend arrived at the Toga Bar at the Defendant Boardwalk for a night cap.  Plaintiff, while sitting at the bar with his girlfriend had a black plastic shopping bag which allegedly contained $120,000 in cash.  He put the bag on a chair at a high-top table across from his girlfriend and stepped away.  Plaintiff, however, did not advise his girlfriend to watch the bag as he stepped away.

After he stepped away from the table, Exume approached Plaintiff’s girlfriend to make conversation with her.  After conversing with her, he reached under the table, extracting the bag without her detection, and then exited the casino.  Upon returning from the restroom, Plaintiff noticed the bag was missing and contacted Boardwalk Security.

Boardwalk Security investigated the incident and identified Exume through video surveillance as the individual that stole the bag.  The casino was familiar with Exume because two days previously, Exume was ejected from the casino for public urination and permanently barred by Boardwalk from its premises.  However, Boardwalk first learned that Exume was back on its premises only after Plaintiff reported the incident to the casino security and the casino security officers watched the theft on video surveillance.

Two days prior to the incident, Plaintiff had been approached by the casino security and advised not to carry large sums of money on his person in a shopping bag.  Security then escorted Plaintiff to his hotel room so that he could store his money in the safe provided in his room.

The defendant casino filed a motion for summary judgment, arguing that it breached no duty owed to Plaintiff and the case should be dismissed. In reviewing the arguments submitted in support of the defendant casino’s motion for summary judgment, the District Court noted that the existence of scope of a duty of care are legal issues to be determined by the court.  The Court noted that Boardwalk owed Plaintiff a duty of care to maintain safe premises.  That general duty included a duty to protect patrons from foreseeable criminal acts of third parties occurring in their premises. 

Boardwalk argued that it did not owe Plaintiff a duty to protect him from Exume’s conduct because it did not know or have reason to know that Exume would steal Plaintiff’s property.  Plaintiff, on the other hand, argued that Boardwalk owed Plaintiff a duty to protect him from the foreseeable criminal acts of others, such as Exume’s.  He contended that it was foreseeable that a theft of property would occur on the floor of a busy Atlantic City casino.  Further, Plaintiff argued that it was reasonably foreseeable that a person permanently banned from a casino – no matter the reason – but later re-entered would commit the crime of theft.

However, the District Court noted that a foreseeability analysis would have to be conducted.  The Court noted that, under the law, a defendant business “should reasonably anticipate careless or criminal contact on the part of third persons . . . and may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” 

With this duty in mind, even if the Court assumed that Exume’s theft of the money was foreseeable third-party criminal conduct and, thus, a duty should be imposed, which the Court did not decide, “Plaintiff must still provide some evidence that Boardwalk breached its duty to either; “(1) provide sufficient security services to afford Plaintiff reasonable protection from Exume’s conduct; or (2) take reasonable precautions to protect against Exume’s criminal conduct.”  The District Court found that the record contained no evidence to show either theory of a breach.

The Court noted that Plaintiff’s only argument for how Boardwalk breached its duty of care was that it should have enforced its ban of Exume from the premises.  However, the District Court found no evidence suggesting that Boardwalk failed to provide security services, or it otherwise failed to take reasonable measures to protect Plaintiff from Exume’s conduct. 

The Court noted that the casino security had warned Plaintiff to not carry large sums of money on his person in a shopping bag.  Further, that security escorted Plaintiff to his hotel room to store the money in a safe.  Thus, based upon this evidence, Boardwalk did maintain security services that were cognizant of the risk to a patron carrying large sums of money in an unsecured bag and took precautions against future thefts by advising Plaintiff to keep his winnings in a safe provided by Boardwalk.

Further, the Court found that Plaintiff did not provide evidence that Boardwalk failed to take reasonable precautions to enforce its ban of Exume. Boardwalk was not under a duty to stop any and all criminal conduct from occurring.  Rather, a business owner only had a duty to take precautions against criminal conduct that was foreseeable to the business owner.

Here, Plaintiff provided no evidence that Boardwalk or its security services failed to take reasonable steps to prevent Exume from entering the premises or that it failed to take reasonable steps to prevent the theft from occurring.  Plaintiff offered no suggestions for what more Boardwalk could have done to ensure Exume did not enter the premises after being banned.  Further, the Court noted that there was no evidence that Boardwalk knew Exume was on the premises but failed to remove him or that Exume did anything that reasonably should have apprised Boardwalk’s security of Exume’s presence. 

Thus, the District Court found that there was no genuine dispute of material fact as to a breach in this matter because of Plaintiff’s failure to provide evidence to suggest Boardwalk breached its alleged duty owed to Plaintiff.  Thus, the Court found that even if Boardwalk owed Plaintiff a duty, its motion for summary judgment must be granted because there was no evidence to establish Boardwalk breached that duty.  Therefore, the Plaintiff’s complaint was dismissed. 

Township Found to Have No Liability for Injury Caused by Trip Over Pothole in Shoulder of Road

Plaintiff Patrice Powers-Feigel was walking on the shoulder of Nosenzo Pond Road in West Milford when she slipped on gravel and her foot got caught on the edge of a pothole or uneven pavement.  She tripped and fell into the street, resulting in serious injuries.  The issue in Powers-Feigel v. Township of West Milford, 2023 N.J. Super. Unpub. LEXIS 495 (App. Div. Apr. 3, 2023), was whether the Township could be responsible for a pedestrian accident caused by a trip in a pothole located in the shoulder of a road.

Prior to her fall, plaintiff had walked in the same area about 25 times before without incident.  On that date, she had to walk around the base ring of a construction barrel on the shoulder before she fell.  The parking lot across the street from where she fell was under construction.  There was no walkway or sidewalk in the area where she was walking.

After her fall, plaintiff retained an engineering expert who opined that the crack in which she caught her foot measured 2½ inches wide by 1¼ deep.  He stated that the pavement surface was uneven and lacked a physical border to the pavement at the edge of the roadway, causing a tripping hazard.  He relied upon standards pertaining to walkways and sidewalks in concluding the shoulder was a dangerous condition.  He did not cite to any standards for roadway shoulder lanes in his report.

Plaintiff sued the Township of West Milford claiming that there was a dangerous condition that caused her accident.  During discovery, the supervisor of the Department of Public Works testified that the roadway was inspected weekly and cracks over ½ inch would require repair.  Plaintiff contended that this area of the shoulder could be construed as a bicycle path and further because three schools were located nearby, plaintiff asserted that recreational activity was not only the shoulder lane’s foreseeable use but it’s “intended and encouraged” use.

The defendant moved for a summary judgment dismissal, finding that the defendant was not liable to plaintiff under the New Jersey Tort Claims Act.  The court noted that the plaintiff “failed to establish the following necessary dangerous condition elements: (1) that the shoulder lane created a substantial risk of injury when it was used with due care in a reasonably foreseeable manner; and (2) that defendant had actual or constructive notice of the shoulder’s condition.”

With regard to plaintiff’s expert, the court rejected his opinion that the shoulder of a rural roadway must comply with the standards for walkways and sidewalks.  Further, the Court rejected the plaintiff’s contention that a public entity must maintain shoulder lanes used by pedestrians to the same degree that they would maintain a sidewalk.  The court found no evidence that demonstrated the shoulder on this road was considered a “pedestrian walkway” by defendant.  The court concluded that the shoulder lane was not dedicated or intended for pedestrian traffic and no dangerous condition existed on the roadway.  This appeal followed that decision.

Upon appeal, the plaintiffs advanced the same argument that the shoulder’s condition created a substantial risk of injury and was a dangerous condition.  Further, that the defendant Township had actual or constructive knowledge of the shoulder’s condition.

The Appellate Division noted the well settled principle of the Tort Claims Act is that “immunity from tort liability is the general rule and liability is the exception.”  Further, that “the mere happening of an accident on public property is insufficient to impose liability upon a public entity.”

More specifically, the Court noted that for the condition to be considered a “dangerous condition,” the “property that creates a substantial risk of injury when such property is used with due care in the manner in which it is reasonably foreseeable that it will be used.”  It must be considered that the condition of the property cannot be minor and it must be considered together with the anticipated use of the property.

Case law has defined the term “used with due care” to mean an “objectively reasonable” use. 

Based upon the facts and the legal principles in this case, the Appellate Division found that the trial court properly granted summary judgment and affirmed that decision.  The Appellate Division reasoned that cracks in a highway may constitute a dangerous condition when the highway’s roadway or shoulder are used in a foreseeable manner.  However, the term “roadway” constitutes the portion of a highway ordinarily used for a vehicular travel and the “shoulder” is “that portion of the highway, exclusive of and bordering the roadway, designed for emergency use but not ordinarily to be used for vehicular travel.”

The Appellate Division concluded that based upon the facts of this case, “that no reasonable jury could find the pothole or long depression cracks or divots gave rise to a substantial risk of injury” to plaintiff.  Essentially, the Court found that the use of a shoulder was not intended for an exercising pedestrian.

Further, the plaintiff had failed to present any evidence that defendant had actual or constructive notice of the condition of the shoulder prior to her fall.  Plaintiff admitted to walking there 25 times before without noticing anything dangerous or hazardous about the shoulder surface.  The roadway was inspected weekly for defects.  There was no proof of similar accidents in the vicinity.  The Appellate Division was satisfied that the trial court correctly found that defendant did not have actual or constructive notice of any dangerous condition that caused plaintiff’s fall and the Township’s inspection scheme was not “palpably unreasonable.”

Thus, the Appellate Division agreed with the trial court’s decision to grant summary judgment and affirmed that decision, dismissing the lawsuit. 

Mall Owner Not Liable to Plaintiff Injured on Interior Department Store Staircase

Plaintiff Thomas Seltzer, an employee of Bloomingdale’s, was injured when he fell on a staircase used solely for Bloomingdale employees in the store.  He sued the mall owner Riverside Square for negligence, claiming that it had some degree of control over the staircase which allegedly had irregular steps.  The issue in Seltzer v. Riverside Square Limited Partnership, 2023 N.J. Super. Unpub. LEXIS 453 (App. Div. Mar. 27, 2023) was whether the defendant mall owner owed a duty to plaintiff if it did not own or maintain Bloomingdale’s or the interior staircase.

Bloomingdale’s, which was built as a stand-alone department store in 1959, was now part of a 2-level enclosed shopping mall constructed around it.  The mall was owned and operated by Riverside Square.  Under the terms of an agreement with Bloomingdale’s, Riverside Square had no authority to modify Bloomingdale’s or the staircase.

The defendant Riverside Square moved for a summary judgment dismissal, contending that it owed no duty to Seltzer because it did not own or maintain Bloomingdale’s or the staircase.  The trial court judge denied summary judgment.  The court found that “there are genuine issues of material fact relative to both the subject accident and the issue of control and the degree thereof, regarding the overall area where [Seltzer] had his trip and fall accident is a disputed fact.”  The court felt that it had to accept Seltzer’s version of facts, and as such grant him the benefit of all inferences that such facts support. 

Riverside Square filed an application before the Appellate Division on an interlocutory basis, seeking leave to appeal.  The Appellate Division agreed to accept the interlocutory appeal. [“Interlocutory” means the appeal is filed before the final conclusion of the case.]

The Appellate Division disagreed with the trial court’s decision.  The Court found that the trial court was incorrect in finding that there were genuine issues of material fact.  The Appellate Division pointed out that there was no question that there was a valid agreement concerning Riverside Square’s responsibility and obligations toward Bloomingdale’s property.

The Court further held that Riverside Square did not owe a duty to Seltzer.  It pointed out that the staircase where Seltzer was injured was part of Bloomingdale’s premises when the department store was built, long before the mall was built.  The Court noted that there was no support in the record for Seltzer’s contention that Riverside Square “retains some degree of control and responsibility over issues such as repairs and maintenance, even on property of its admitted tenant Bloomingdale’s.”  Additionally, the Appellate Division held that under the clear terms of the agreement with Bloomindale’s, Riverside Square had no obligation to maintain any aspect of Bloomingdale’s premises.  Further, there were no facts indicating Riverside Square exercised any control or maintenance over the staircase that would contradict its interpretation of the agreement.

Thus, Seltzer’s liability expert’s opinion concerning the construction and maintenance of the staircase was “of no import” because Riverside Square did not construct the staircase and had no duty to ensure it could be safely traversed.

Thus, the Appellate Division found that there were no genuine issues of material facts in dispute and that Riverside Square was entitled to summary judgment as a matter of law.  Therefore, it reversed the trial court’s order denying summary judgment and remanded the case back to the trial court for an entry of an order granting summary judgment dismissal of Seltzer’s action.

Capehart Blogs

Firm News
Capehart Scatchard Supports Oaks Integrated Care’s Rooted In Community Fundraiser
Firm News
Kenneth Chiarella Selected As A Fellow Of The National Filipino American Lawyers Association Leadership Academy
NJ School Law
Court Denies School District’s Motion to Compel IMEs

Court Denies School District’s Motion to Compel IMEs

Court Finds No Liability of Defendant Homeowner for Social Guest’s Fall Down Her Steps

Appellate Division Reinforces Strict Compliance With the “Notice Requirement” of the Tort Claims Act

Subscribe to Blog Updates

Categories

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage data security discovery dismissal Diversity & Inclusion Diversity & Inclusion Committee duty of care employees employers Employment Law evidence insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Pennsylvania Law personal injury Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter