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Power Company’s Regulation-Mandated Duty to Maintain Trees Near Its Power Lines Does Not Extend to a Motorist

In May, 2019, while driving his car in West Milford, a tree fell on Plaintiff Mark Solaro’s car, injuring him. The tree in question stood next to a power line owned and operated by Defendants Jersey Central Power & Light (JCP&L) and FirstEnergy Corp. (FirstEnergy) in a nature preserve in a public park. Solaro sued JCP&L and FirstEnergy, claiming they were negligent in failing to inspect, maintain, and manage the trees surrounding their power line. The issue in the unpublished case Solaro v. FirstEnergy Corp., 2026 N.J. Super. Unpub. LEXIS 1649 (App. Div. July 20, 2026) was whether JCP&L and FirstEnergy owed Solaro a duty of care to manage trees near power lines for the safety of passing vehicles.

The power company defendants, relying on prior New Jersey case law, each filed a motion for summary judgment arguing that while they did have a duty to maintain trees to prevent interruptions in service, that duty did not extend to maintaining trees for passing vehicles unrelated to any interruptions to the transmission of electricity through those lines. Solaro opposed these motions.  Despite agreeing that even though the power line itself did not cause his injury, the line only sat next to the tree that fell on his car, he argued that recent vegetation-management regulations that applied to electricity companies like JCP&L and FirstEnergy took precedence over the case law. Those regulations, he argued, required power companies like JCP&L and FirstEnergy to maintain trees near power lines to prevent non-electrical hazards, including those that pose a risk of falling on passing vehicles. The trial court was unpersuaded by Solaro and granted both motions for summary judgment. Solaro appealed.

On appeal, Solaro repeated his argument. He claimed that because the State passed the regulations after the binding case law, they created a new, broader public safety duty on power companies that requires them to maintain trees near power lines regardless of the potential harm, thereby limiting the scope of the case law. The Appellate Division took the same view as the trial court and determined Solaro’s reading of the regulations and the law was in error. The Court held that the prior law that refused to place a duty on utility companies to protect drivers from non-electrical tree hazards remained the guiding principle, and the regulations did not broaden that duty – the regulations were focused on electrical reliability and safety (such as preventing trees from interacting with “energized conductors,” not roadside safety. Further, relying on the plain language of the statutory regulations, including their definitions of words such as “vegetation management,” “hazard tree,” and “mitigate,” the Court held the State intended to protect the electrical grid, not third parties such as drivers on the state’s roads. Ultimately, the Court held that it would be an overwhelming burden on a private entity such as JCP&L or First Energy to inspect and maintain trees over hundreds of miles of roadway for the broad purpose of the safety of passing motorists when that responsibility, more or less, already lies on private or public landowners and the Department of Transportation.

From this decision, beyond the clear pronouncement that a power company’s duty to maintain trees is tied to its role in delivering electricity, not general premises liability, the key takeaway is that general premises liability law controls and landowners, not utilities, are responsible for tree maintenance outside of some electrical malfunction. Further, and more deeply tied to the process of the Court’s reasoning in reading the statutory language deeply, the application of statutory regulations to tort law requires a need to show that the text and structure of the regulation, not the general use of safety-coded language, actually intends to apply to the class of plaintiff and harm at issue; as was the case here where drivers on the state’s roads and non-electrical tree-fall injuries fell outside of the purpose for the regulations.

Homeowner Not Responsible for Exploding Pool Filter Solely Maintained by Outside Contractors

In June 2021, Plaintiff Homero Mendoza, a pool technician employed by Aqua Pools, Inc., arrived at the Mahwah residence of Defendant Eleanor Davis to open her pool for the season. The prior autumn, Davis had hired a separate contractor, Our Pool Co. of NJ (Our Pool), to winterize the system. Between the winter closing and Mendoza’s arrival, Davis did not touch or operate the pool, its filter, or its pump. When Mendoza attempted to service the filtration system, the filter casing exploded, causing severe facial and head injuries. Mendoza filed a negligence action against Davis and Our Pool, alleging a failure to maintain the premises or warn of a dangerous condition. The issue in Mendoza v. Our Pool Co. of NJ, Inc., 2026 N.J. Super. Unpub. LEXIS 1715 (App. Div. July 27, 2026), was whether Davis breached her duty to maintain a safe premises for Mendoza or warn him of the danger posed by the pool equipment.

To support his claims, Mendoza relied primarily on an OSHA investigation report. The report determined that chlorine tablets left in the filtration system from Our Pool’s work in the fall, combined with elevated pre-season temperatures and a lack of water, caused gas to build up inside the system. OSHA suggested the resulting pressure could have been relieved via a manual valve and noted that the system “may” have emitted a detectable chlorine odor prior to the explosion. Mendoza did not retain an expert witness to testify on the mechanics of the filtration system or the likelihood of escaping gas.

Following discovery, Davis moved for summary judgment, arguing that Mendoza could not establish his negligence claim with the available facts, particularly without producing an expert report. Davis highlighted her complete lack of physical involvement with the equipment beyond retaining professionals to maintain it. Mendoza opposed, asserting that a jury could infer Davis was on notice of the danger due to the potential odor and her failure to open the pressure release valve. The trial court granted summary judgment for Davis, turning to the “well-settled legal proposition” that negligence is never presumed, but must be supported by proof of circumstances a jury could infer a defendant lacked due care. The trial court specifically rejected Mendoza’s claims that a reasonable homeowner would have detected the chlorine odor because Mendoza produced no competent evidence that she could have smelled any fumes. Further, the trial court found Mendoza required an expert to explain the functioning of the filtration system, a fatal error to his claims. Mendoza appealed.

On appeal, Mendoza argued that the trial court did not grant him the favorable inferences to which he was entitled and, as a business invitee, Davis owed him the highest duty of care. He turned to the OSHA report, and the inference that the gas buildup “may” have caused an odor to emanate and which Davis would have noticed precludes the need for an expert and is a question of fact for the jury.

The Appellate Division disagreed. Its opinion, echoing the trial court, advised that a party cannot defeat a properly supported motion for summary judgment on bare conclusions lacking any factual support – the plaintiff must prove their facts with support from the record, they’re never presumed; it remained undisputed that Davis never touched the pool equipment nor did she control or instruct the pool companies as to their work, she only asked them to maintain her pool. Further, the Court found the OSHA report, which contained the bulk of Mendoza’s evidence, was largely hearsay and failed to establish what Mendoza claims as to the chlorine gas emanating from the system or that Davis was capable of smelling it. Finally, while juries may weigh in on precautions expected of an average person, technical issues outside common lay experience require expert opinion. Pinpointing the cause of internal pressure buildup, the mechanics of gas escape, and whether a homeowner should recognize such a chemical hazard are specialized matters beyond a jury’s common knowledge.

This case emphasizes that litigants cannot rely on “common sense” or general premises liability duties when claims involve complex mechanical, electrical, or chemical systems and they must retain experts to explain such factors. Further, OSHA and other agency investigative records are useful discovery tools, but they do not serve as admissible expert reports and will not defeat summary judgment. Finally, hiring independent contractors to manage specialized residential systems insulates homeowners from liability for hidden hazards created or left unaddressed by those contractors.

No Liability to Property Owner for Subcontractor’s Fall Through Roof on Which He Worked

A fire caused structural damage to a building owned by J.H. Shaw Realty (Shaw) and occupied by steel manufacturer Blue Blade Steel Corp. (Blue Blade) in October, 2020. Blue Blade hired a roofing contractor to repair the roof. After an insurance investigation identified asbestos in the damaged roof, Blue Blade hired United Safety for the asbestos remediation. As the project neared completion in April, 2021, Plaintiff Kemal Beciragic, an employee of United Safety, fell through the roof and landed on the concrete floor below, sustaining severe injuries. Plaintiff sued Shaw and Blue Blade for his injuries; because it was his employer and solely liable for his injuries under the Workers’ Compensation Act, United Safety was only a party for discovery. The issue in Beciragic v. Blue Blade Steel Corp., 2026 N.J. Super. Unpub. LEXIS 1834 (App. Div. Aug. 6, 2026) was whether the defendants had a duty to Plaintiff to ensure his safety during his work on the roof.

Prior to their work, United Safety’s supervisor inspected the roof on Shaw’s building and found it in poor condition. Due to the danger, the supervisor instructed his workers, including Plaintiff, to use safety harnesses. However, Plaintiff was not wearing his harness at the time of his fall because it interfered with his freedom of movement. Further, because Blue Blade continued operations while United Safety performed their work, the two coordinated with each other on work scheduling, Blue Blade did not control United Safety’s work methods,  give them instructions on remediation, or manage their employees’ safety or equipment.

Shaw and Blue Blade each filed summary judgment motions arguing that they had no duty for Plaintiff’s injuries because they did not manage or instruct United Safety on its work and that Plaintiff was aware of the damage to the building and he chose not to use fall-protection gear provided by United Safety. Plaintiff opposed, arguing Blue Blade was responsible for oversight and coordination of the project and violated various OSHA regulations in not assuring any subcontractor complied with those requirements.

The trial court granted summary judgment, finding that the defendants owed no duty to Plaintiff because they disclosed the defect and foreseeable danger to United Safety, Plaintiff’s employer, who oversaw the means and methods of Plaintiff’s work. The trial court explained that because Plaintiff was injured doing the very work he was contracted to perform, the defendants had the right to assume United Safety’s  employees had sufficient skill to recognize the danger involved and adjust their methods accordingly. Further, the court found OSHA’s regulations were only a factor in the analysis of whether the defendants had a duty and did not dispositively establish a duty. Plaintiff appealed.

In its appeal, Plaintiff claimed that a genuine issue of material fact existed as to the duty each defendant owed to Plaintiff while working on their property and that all of the defendants were contractors who controlled some element of Plaintiff’s work.

The Appellate Division conducted its review by looking at the general law of negligence, then at the element of duty, establishing that Plaintiff was a business invitee to whom the defendants owed a duty to guard against dangerous conditions they know of or should have discovered. The Court then specifically focused on the duty a general contractor has for the injuries of its subcontractor’s employees, noting that a general contractor can assume a subcontractor and its employees are sufficiently skilled to recognize the dangers in their job and adjust their work accordingly. When the subcontractor is hired to work on a specific hazard itself, the owner or general contractor is not required to eliminate those hazards which are obvious and visible to the subcontractor and what the subcontractor was hired to  work on in the first place. Similarly, OSHA regulations intended to make a job site safe for contactors are only one factor in a negligence analysis, not the sole basis for a general contractor’s duty. The Appellate Division ultimately held that a landowner or general contractor is under no duty to protect the employee of a subcontractor from the very hazard created by the doing of the contract work when they do not retain control of the means and methods of the work itself.

Here, though the defendants all knew of the latent defects to the roof caused by the fire, they communicated those to United Safety; indeed, that was the specific reason United Safety had been hired. Plaintiff’s supervisor knew of the roof damage, had inspected it, and found it to be in bad shape. As a result, United Safety implemented safety measures, measures that Plaintiff intentionally chose to avoid. Further, to the extent Plaintiff argued each defendant was a general contractor, the same law applies – they are not liable for his injuries because they arose from the roof damage he knew existed and was hired to perform. As for Plaintiff’s claim that the defendants’ OSHA violations created an issue of material fact, the Court stated without more to support a claim for liability, an OSHA violation alone does not support a negligence claim. The Court affirmed the trial court’s grant of the defendants’ summary judgment motions, dismissing the complaint.

The key takeaways here include the reinforcement of a landowner’s duty to warn of a dangerous condition, and how that duty may be discharged to a subcontractor hired to perform repairs on that same open and obvious condition. Also, the critical fact here was the defendants’ lack of control over United Safety’s employees’ means and methods of work, which include the use (or lack of use) of safety equipment. Finally, while many plaintiffs may point at OSHA regulations as sacrosanct, this case makes it clear that those regulations do not create a per se legal duty, but are only factors to consider in a broader negligence analysis. 

Plaintiff’s Personal Injury Lawsuit Against Trampoline Park Dismissed Due to Lack of Expert Testimony As to Duty of Care Owed by Facility

Plaintiff Katie Freiermuth went with her children to defendant Get Air’s trampoline park. While walking to the restroom, she walked past two wet floor signs and an employee actively mopping the floor. She took several steps and slipped and fell on the wet floor. She subsequently sued Get Air for her injuries suffered from the fall. The issue in Freiermuth v. Get Air Mays Landing, LLC, 2026 N.J. Super. Unpub. LEXIS 1826 (App. Div. Aug. 5, 2026), was whether Plaintiff needed an expert to establish the industry standard of care for maintenance of the facility and whether there was any breach of a duty of care owed to her.

Plaintiff did not know the source of the water but the accident was captured on the defendant park’s video surveillance system. Plaintiff claimed to have suffered a lumbar and left knee injury due to her fall.

After discovery ended, defendant moved for a summary judgment. The trial court granted the motion and dismissed the lawsuit. The judge found that Get Air did owe plaintiff, as a business invitee, “a duty of reasonable care to guard against dangerous conditions on its property that it either knew about or should have discovered.” However, the judge found that plaintiff “failed to articulate any industry standard for which Get Air was responsible and breached,” that it did not create a dangerous condition or fail to exercise reasonable care to guard against such a condition, and that plaintiff signed a valid waiver and release of liability as to use of the facility.

This decision was appealed and upheld by the Appellate Division.

The appeals court agreed with the trial court that expert testimony was needed to establish the industry standards for the park’s cleaning and maintenance guidelines or standards during business hours. The Court found that the record lacked factual or expert testimony “to show that Get Air failed to exercise due care by not posting additional warning signs or safeguards for mopping during business hours.”

Expert testimony would be needed because “the average juror would be unable to determine whether Get Air’s actions in mopping and posting warning signs were unreasonable and did not comport with industry standards.” The Court agreed with the trial judge that “an expert would be necessary to assist the jury in determining whether Get Air’s actions fell below what was expected and required to maintain the park’s safe environment.”

The Appellate Division also found that Get Air’s mopping procedure did not create a dangerous condition. Cleaning the facility floor and putting up two wet floor signs to ensure the safety of its patrons was reasonable and did not create a dangerous condition. Regardless of the source of the water (it may have been from a spill), the park satisfied its duty to warn against such a potentially dangerous condition by posting the warning signs.

Further, the Court noted that the area being mopped was “open and obvious” to patrons. Plaintiff acknowledged that she walked past two wet floor signs on the way to the restroom and an employee actively mopping the floor. Hence, as the trial judge found, “plaintiff was on notice of any purported dangerous condition and walked into the area nonetheless.” Hence, there was no breach of a duty to warn. Because the Appellate Division found that the trial court judge correctly ruled that the plaintiff failed to establish a duty of care based on industry standards and a breach of that duty, it did not reach the issue of whether the liability waiver was applicable.

Driver Not Liable for Failing to See or Interpret Another Vehicle’s Swerve as Evidence of a Pedestrian in the Roadway

On a dark Sunday night in early September, 2021, Jeffrey Pooner (Defendant) was driving his Dodge pick-up at about the speed limit of 50 mph westbound on U.S. Route 30 in Hamilton. That night traffic was heavier than normal, lighting was poor, and visibility was “quite difficult” on that stretch of road. After passing the intersection of CR 542, he saw a vehicle directly in front of him and traveling in the same direction change lanes, which he found “unusual.” Immediately after seeing the car change lanes, he saw a “silhouette” appear in front of his truck. He jammed on the brakes but was unable to avoid striking Nancy Martinez (Plaintiff), who was walking across the road after work. An eyewitness traveling in the opposite direction at the same time saw a car ahead of him swerve “pretty aggressively,” causing the witness to change lanes. As he did so, he also saw a “silhouette” crossing from his lane into Defendant’s westbound lane of traffic. The witness remarked to his wife, “Oh my God, this person is gonna get hit!” immediately before Defendant’s vehicle struck Plaintiff. Defendant testified he never saw the “swerve.” The issue in Martinez v. Pooner, 2026 N.J. Super. Unpub. LEXIS 1285 (App. Div. June 15, 2026) was whether Defendant, who was operating his vehicle within the speed limit at night, breached his duty of reasonable care by failing to observe and interpret an oncoming vehicle’s aggressive swerve as a warning of a pedestrian hazard in the roadway.

During discovery, Plaintiff retained an expert engineer to provide a reconstruction of the accident. Using accepted formulae, the expert determined the swerve occurred about 9.1 seconds before, and Defendant was about 700 feet away from, the time and location of the accident. He also concluded Plaintiff’s location would have been within Defendant’s sight distance at that spot. The expert’s opinion stated that, “if” Defendant saw the swerve and acknowledged that it indicated a hazard existed ahead, and “if” he had reacted to the swerve by applying the brakes in a normal manner, based on his location and speed at the time he saw the swerve, he would have had enough time to stop prior to the point of impact and avoid the incident. However, the expert had no opinion that Defendant had an obligation to see the swerve or that, if he had seen the swerve, that would have resulted in him seeing the Plaintiff.

Defendant moved to bar the expert report and for summary judgment. Defendant’s primary argument in his motion for summary judgment was that the expert’s opinion failed to support the Plaintiff’s claim of liability. The expert had to, within a reasonable degree of engineering certainty, establish Defendant “should” have seen the swerve or the Plaintiff, not “if.” By stating his opinion as an “if” Defendant saw the swerve or the Plaintiff, the expert based his opinion on “unsupported speculation and unquantified possibilities.” Because Defendant’s undisputed testimony clearly established he did not see the swerve, this fact eliminated Plaintiff’s expert’s ability to argue “if” he saw the swerve. Plaintiff’s position was that Defendant “could” have seen the swerve, and that was sufficient evidence to establish negligence. The trial court disagreed; Defendant won summary judgment and the Plaintiff appealed.

The Appellate Division upheld the court’s ruling The Appellate Division focused on Defendant’s duty of care towards Plaintiff, a pedestrian walking across a state highway, in the dark, at a location without an intersection or crosswalk. Plaintiff based her entire claim on the sole premise that a swerve 700 feet ahead should have alerted a driver that there was a person crossing the busy street on foot. However, at no time could Plaintiff establish sufficient evidence that Defendant could have, would have, or should have seen the swerve. Indeed, the only testimony on that fact came from Defendant himself, who provided uncontroverted evidence he did not see the swerve. Further, the Plaintiff produced no evidence to show that a prudent driver would have made the connection between the swerve and that a person was walking across the road. The Appellate Division found that Plaintiff’s theory, including the expert’s report, lacked any basis in the evidence in the matter and was nothing but simple speculation, necessitating dismissal.

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. 

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