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

Liability

Plaintiff Margaret Kelly, as Guardian ad litem for Rebecca Kelly, filed a lawsuit on behalf of Rebecca due to an accident at her parent’s condominium complex.  Rebecca was a guest of her parents at Back of Bay Condominium Association in Wildwood, when she fell in a trash collection and utility common area exterior to the condominium unit owned by her parents.  She fell and suffered serious injuries when she stepped on one of six water meter pits in the area, causing the lid to dislodge and her foot to fall into the pit.  The issue in Kelly v. Back of Bay Condominium Association, Inc., 2026 N.J. Super. Unpub. LEXIS 291 (App. Div. Feb. 19, 2026) was whether the City of Wildwood defendants could be held liable for her fall due to the condition of the loose pit cover.

Rebecca was a disabled individual with a condition known as “brittle bone disease.”  The accident happened when she was carrying a recycling container, attempting to place it in the area of the water meter pits, when she fell.  She stepped on one of the water meter pits and, due to the loose lid, it dislodged and her foot fell into the pit.  She suffered serious injuries to her left foot and ankle, requiring surgery.  She also suffered an injury to her shoulder.  She needed surgery on both her left foot and her shoulder due to her fall.

Within a few weeks of her accident, the Senior Meter Reader and Water Inspector for the City of Wildwood inspected the condominium’s utility area to observe where Rebecca fell.  He found that the lid had a frozen nut and it would not allow the lid to be locked down by whoever was there last.  As a result, he took it away, put it on his truck and put a new lid on it.

Plaintiff filed a lawsuit against multiple defendants, including the condominium association, the City of Wildwood, the City of Wildwood Municipal Utility Authority, City of Wildwood Water Utility, and City of Wildwood Sewer Utility.  Plaintiff settled out with some defendants or reached voluntary dismissals as to others, but not the Wildwood defendants. 

In discovery, it was disclosed that the City had transmitters located on top of the lid and that the water meter pit and equipment in question was last replaced some years before the accident.  The testimony from the Water Director for the City was that the water meter pit lids had software or machines that pick up the readings from the meter and transfers the information remotely to staff as they ride up and down the street.  Thus, remote meter reading eliminated the need for quarterly on-site inspections of each meter and was both faster and more effective.  The meters were read electronically on a quarterly basis.

After the conclusion of discovery, the Wildwood defendants filed for summary judgment, seeking dismissal of all claims.  In response to the motion, plaintiff conceded that there was no evidence of actual notice of the alleged dangerous condition posed by the loose lid.  However, plaintiff argued that there should be constructive notice of the alleged dangerous condition.  The trial court disagreed and granted summary judgment.  This appeal ensued.

The Appellate Division noted that, under the Tort Claims Act, a public entity may only be liable for a personal injury caused by the dangerous condition of its public property.  Among other elements that a plaintiff must prove, the plaintiff must prove that the public entity had actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to take measures to protect against the dangerous condition.

Because plaintiff conceded that the Wildwood defendants lacked actual notice of the dangerous condition, the Appellate Division only analyzed whether plaintiff had established constructive notice under the Tort Claims Act.  The Court concluded that plaintiff failed to establish that the Wildwood defendants had constructive notice.  Plaintiff argued that under the City’s ordinances, the internal policies on lid safety and the replacement of the frozen nut after the accident supported “a reasonable inference that unsafe conditions were regularly observable and existed for a sufficient period of time to establish constructive notice.”

The Appellate Division pointed out that although the Wildwood defendants conceded that there was a loose pit lid and that such condition presented a danger, it is well settled that “the mere existence of an alleged dangerous condition is not constructive notice of it.”  There were no proofs showing that Rebecca, her family members, or any of the condominium’s residents had reported or complained about a loose or unsecured meter pit lid prior to the fall.  As the trial court noted, there was no information as to how long the lid was loose, whether it was for an hour, a week, a month or a year. 

Plaintiff also argued that constructive notice may be imputed to the Wildwood defendants based upon their duty to “inspect, detect and correct missing and loose lids.”  The Appellate Division agreed with the trial court judge that this argument was a misinterpretation of the applicable law and would essentially impose strict liability on the part of the Wildwood defendants for any injuries that arose from any sort of dangerous condition that existed on their property.

The Court pointed out that such an interpretation of the Tort Claims Act would be antithetical to its statutory purpose “to provide general immunity for all governmental bodies except in circumstances where the Legislature has specifically provided for a liability.”  Thus, the Appellate Division agreed that the existence of a general duty, policy, or training for public utility employees was insufficient to satisfy the notice requirement of the Tort Claims Act under the circumstances presented. 

The Appellate Division also addressed whether the City’s conduct was “palpably unreasonable” in failing to detect and correct the loose water pit lid condition.  The Court found that because plaintiff did not establish that the Wildwood defendants had constructive notice of the loose water pit lid, its failure to repair it prior to plaintiff’s fall could not be viewed as palpably unreasonable conduct. 

Hence, for all of the above reasons, the Appellate Division upheld the trial court’s decision to dismiss the lawsuit as to all of the Wildwood defendants.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On January 29, 2021, Plaintiff Michael Shaw tripped and fell while crossing Kearny Avenue due to a large pothole in the middle of the street. He suffered significant injuries including a broken right hip, chronic lumbar strain, and aggravation of other pre-existing conditions. The issue in Shaw v. Town of Kearny, 2025 N.J. Super. Unpub. LEXIS 937 (App. Div. June 4, 2025) was whether the Township was deemed to have notice of the alleged roadway defect and, hence, could be responsible for his accident.

Typically, in accidents involving potholes, the public entity responsible for the roadway will not be held liable due to lack of notice of the pothole. Usually, they will not have actual notice of the pothole because they can appear suddenly. Further, it is often hard to prove constructive notice for the same reason. However, the facts in the Shaw case were different. Plaintiff was able to present sufficient facts to establish that the pothole was present for years and was so obvious that Kearny, using due care, should have discovered it. Hence, sufficient facts exist to establish constructive notice.

Plaintiff suffered his injury on a dark night, after parking his car on Kearny Avenue to visit a nearby bakery to make a purchase. The bakery was on the opposite side of the street from where he parked. He went to the bakery and, on the way back, crossed in the middle of the street, not in the crosswalk. He was holding a box of custard cups, not looking down and encountered a large pothole and fell. The pothole was 4 feet in length, 12 inches wide and the deepest section was about 2-3 inches deep.

At the trial court level, the trial judge found that the Township did not have actual or constructive notice of the pothole, granted summary judgment, and dismissed the lawsuit. This appeal ensued.

The Appellate Division, however, disagreed with the trial court. While there was no proof of actual notice, it held that there were facts sufficient to establish constructive notice. It found that the record did include imagery from 2012-2015 showing evidence of cracking and surface depressions. The formation of a pothole appeared on images as of July 2018 and, by October 2020, further images showed continued pavement deterioration, and evidence of large pothole formation.

During this time, Kearny was engaged in a variety of roadway inspection, planning, project finance and repair activities on Kearny Avenue. Other areas near this pothole were patched and repaired in 2018 and 2019. Plaintiff’s expert opined that the accident site continued to deteriorate. Giving all inferences to Plaintiff, the Appellate Division found that there was ample evidence for a jury “to conclude that the Kearny Avenue pothole was a dangerous condition sometime after 2015; the dangerous condition existed for a significant period of time prior to the accident; and the dangerous condition was obvious, so much so that Kearny, using due care, should have discovered it.”

The Court noted that the record showed a continually deteriorating pothole near the middle of the roadway in the Kearny central business district where the Township had multiple opportunities to discover it. Hence, the Appellate Division disagreed with the trial court’s assessment as to the lack of notice and reversed the court’s order for summary judgment.

In the published case of Gottsleben v. Annese, 2025 N.J. Super. LEXIS 52 (App. Div. July 3, 2025), the plaintiff Debra Gottsleben unsuccessfully attempted to expand the principles of public sidewalk liability for commercial properties to a residential property that was unoccupied and undergoing renovations.  The plaintiff had slipped and fell on the sidewalk in front of the defendants’ house on the morning of February 18, 2021, due to an accumulation of snow and ice. She sued the defendants for her injuries suffered.

Plaintiff argued that because the property was vacant at the time of the fall and undergoing construction that could enhance the property value, the defendants, as a matter of public policy, should be governed by the same sidewalk law principles as commercial owners.  In the alternative, the plaintiff contended that the defendants were nonetheless liable as residential owners for allegedly worsening the sidewalk’s condition due to the poor shoveling and treatment of the sidewalk. 

At the trial court level, the defendants filed for a summary judgment.  They argued that as residential property owners, their duty was distinct from commercial owners and that New Jersey case law did not impose on them a duty to maintain the safety of a public sidewalk in front of their premises.  Further, they argued that there was no proof that they worsened the natural condition of the sidewalk.  They argued that the plaintiff’s proofs failed to substantiate her claims of negligent worsening and causation, and that her theory of liability was speculative and inadequate to present to a jury.

The trial court granted the defendants’ motion and dismissed the complaint.  The trial court judge found that defendants’ property could not be fairly treated as commercial under sidewalk liability principles.  The trial court judge pointed out that the property was not used for investment nor to generate profit, that defendants always intended to live at the property, and that the ongoing renovations at the time of the plaintiff’s fall did not alter the property’s residential status. Thus, the trial court applied residential sidewalk liability standards to the facts and ruled that defendants were entitled to summary judgment. 

This appeal ensued.  First, the plaintiff renewed her novel policy argument for treating defendants’ unoccupied property the same as commercial premises under the sidewalk law; second, she argued that there were genuine material issues of facts as to whether defendants worsened the sidewalk’s natural condition through poor shoveling and treatment. 

The Appellate Division noted the longstanding New Jersey law that an abutting property owner owed no duty to maintain the street or sidewalk in front of his house or premises.  New Jersey courts have declined “to impose civil liability upon homeowners for non-compliance with municipal ordinances that require them to remove accumulations of snow and ice on sidewalks abutting their residences.” Id. at *10.

These principles of sidewalk law have evolved through state case law, leading to the emergence of a “bright-line” between commercial and residential property owners. Under this “bright-line” test, residential property owners in New Jersey are not civilly liable for failing to comply with the municipal ordinances requiring them to clear snow and ice from adjoining sidewalks. 

The Appellate Division rejected the plaintiff’s novel argument that the principles of sidewalk liability for commercial properties should be applied to a residential property during a period when the premises are unoccupied and undergoing renovation or construction.  The Court noted that the defendants’ intention was to move into the house after the renovations were complete, despite the plaintiff’s argument that the renovations to the property would likely increase its market value and that the defendants might profit if they sold the property in the future. Whether it was profitable or not, the renovation of the property did not change its residential character.

Writing on behalf of the court, Judge Sabatino noted that the law “should not deter New Jersians from renovating their homes out of the concern that vacating the premises to enable such improvements will transform residents into commercial owners for purposes of sidewalk liability.” Id. at *15.

Hence, the Appellate Division stated that it was not its role to create new exceptions to the sidewalk law principles that have been repeatedly enunciated and modified by the Supreme Court.  The Court ultimately found that the trial court had properly applied the principles of residential sidewalk law to the facts of this case, rather than the commercial standards advocated by the plaintiff. 

There are circumstances under which an abutting residential owner can be liable for an injury caused by the condition of the public sidewalk.  However, under New Jersey law, a residential owner is not civilly liable for a hazardous condition of the public sidewalk abutting the owner’s property unless the owner’s conduct made the natural condition of the sidewalk more dangerous.

Here, the Appellate Division found that the plaintiff failed to present proofs that demonstrated how defendants’ conduct had worsened the natural condition of the sidewalk.  Thus, the Court affirmed the trial court decision granting summary judgment and dismissing the complaint. 

Plaintiff Gabriela Mirtha Tiscornia Sosa was injured when she slipped and fell on a wet floor at a concert at the Prudential Center.  This venue was owned by defendant DAE, which contracted with defendant ABM to provide janitorial services.  The issue in Sosa v. Devils Arena Entertainment, LLC, 2025 N.J. Super. Unpub. LEXIS 787 (App. Div. May 15, 2025) was whether the defendants could be liable for the injuries plaintiff suffered from her fall in the translucent puddle on the upper concourse.

Plaintiff and her daughter had upper-level seats but about 10 minutes into the show, a Prudential Center employee offered to move them to seats closer to the stage.  They agreed and went down the steps to the concourse level and entered the concourse.  Plaintiff slipped and fell as she looked for an elevator to take down from the upper level.  She claims she saw a translucent puddle while she was lying on the ground.  Plaintiff claimed that both DAE and ABM were negligent because they allowed a “dangerous condition” to exist, which caused her injury.

At the trial court level, the court granted summary judgment dismissing the case.  This appeal ensued. 

The claim against DAE was that it caused the injury by moving her seat and permitting the service of drinks and open containers.  Plaintiff argued that it was foreseeable that beverages would spill onto the floor and plaintiff did not have to show that DAE had notice.  Plaintiff claimed that the mode-of-operation doctrine applied because of the manner of the beverage service and an inference could be drawn that a drink caused the spill leading to her fall.  Plaintiff also claimed that ABM had constructive notice and was, therefore, liable because it was aware of DAE’s practice of allowing open drink containers.

The trial court judge found that the mode-of-operation doctrine did not apply because there was no information in the record establishing what the liquid that plaintiff fell on was, where the liquid came from, where it was created, or how long the liquid was present on the floor.  The Appellate Division agreed with the trial court’s decision that the mode-of-operation rule would not apply under these circumstances.

Further, the unrebutted evidence showed that DAE had contracted to keep the arena clean and that the ABM representatives’ testimony explained how ABM went about doing so.  Plaintiff failed to establish a nexus between DAE’s mode-of-operation, “mainly, serving drinks in open containers, having a janitorial services company patrol and monitor the area of floors,” and the liquid on the floor.

The Appellate Division further commented that there was no evidence to support the necessary elements of actual or constructive notice to hold either DAE or ABM liable.  Plaintiff did not know what she slipped on or what the liquid was on the floor.  There had been no reports of spills or debris.  Even if there was liquid on the floor, there was no evidence showing how long it was present or that it was caused by an open container beverage.  Hence, the Appellate Division affirmed the trial court’s decision, granting summary judgment and dismissing the complaint.

Plaintiff Jessica Feeney tripped and fell while walking on the boardwalk in the City of Atlantic City.  She sued the City claiming that she tripped on uneven boards and that the City was negligent in causing the dangerous condition and that it failed to timely repair the condition.  The issue in Feeney v. City of Atlantic City, 2025 N.J. Super. Unpub. LEXIS 421 (App. Div. Mar. 19, 2025) was whether the City could be liable for either causing or failing to repair the boardwalk before the plaintiffs’ accident.

This accident occurred on August 30, 2019, when plaintiff was walking on the boardwalk in the City near the Showboat Hotel.  Plaintiff testified that there was a raised board and her right foot rolled on the uneven board and her leg buckled.   She tripped, fell and injured herself.  She denied noticing the uneven board before she fell.  After the accident, her husband went back and took photos which showed that there was one board that was lower than the adjacent board with a displacement of approximately 1 inch. 

She and her husband sued the City, claiming that the City was negligent in causing the condition on the boardwalk and in failing to timely repair the uneven board.  She retained a liability expert, Arthur Chew, who reviewed the photographs and opined that there was a hazardous condition.  He also opined that the City’s police vehicles and public works vehicles that ride on the boardwalk placed high stresses in the boardwalk and they may cause the boards to become uneven. 

The expert relied upon testimony from City employees who explained that the boards could become uneven for numerous reasons which included weather, shifting of the boardwalk foundation, sand being pushed up against the underside of the boardwalk and vehicles going across the boardwalk.  Displacements of more than a ÂĽ of an inch between boards were something that needed to be looked at.  The City also admitted that any vehicle on the boardwalk does damage.

The City filed for summary judgment, arguing that it was shielded from liability under the Tort Claims Act.  It asserted that it had no actual or constructive notice of the uneven boards where plaintiff fell.  It also argued that its conduct in inspecting the boardwalk, which was approximately 4½ miles long, was not palpably unreasonable.  Finally, it contended that the uneven boards or raised boards did not constitute a dangerous condition as defined by the Act.

The trial court granted the summary judgment and dismissed the case.  It found that the uneven condition of the boards did constitute a dangerous condition.  However, there was no evidence that the City caused the dangerous condition.  It found plaintiffs’ liability expert’s opinion to be speculative because there were no facts to support that the City had caused the boards to become uneven. Knowing that vehicles might cause the boardwalk to become uneven in certain places did not establish that the boards where plaintiff tripped became uneven because a vehicle drove on those boards.  Further, there were no facts to establish when the boards became uneven and, thus, a jury could not conclude that the City failed to repair the dangerous condition in a reasonable period of time. 

Finally, the trial court also concluded that the City had not acted palpably unreasonably.  The trial court pointed out that the City had an inspector who regularly inspected the boardwalk and plaintiff had presented no evidence that the City should have discovered the uneven boards before plaintiffs’ accident. 

This summary judgment dismissal was appealed to the Appellate Division.  Plaintiff argued that a trial court should not have granted summary judgment because there were material disputed facts concerning whether the City created the dangerous condition that caused her fall.  Further they argued that their expert’s opinions were not net opinions and were supported by the factual evidence.  However, the Appellate Division rejected these arguments and affirmed the trial court decision.

The Court noted that the City, as a public entity, was only liable for negligence as permitted under the Tort Claims Act.  To establish liability, the Appellate Division noted that the plaintiff must prove as follows:

1.         A dangerous condition existed on the property at the time of the injury.

2.         The dangerous condition proximally caused the injury.

3.         The dangerous condition caused a foreseeable risk of the kind of injury that occurred.

4.         The public entity had actual or constructive notice of the condition a sufficient time prior to the injury to correct the dangerous condition.

5.         The action or inaction taken by the public entity to protect against the dangerous condition was palpably unreasonable.

Here, the Appellate Division noted that there was no evidence that the City had actual knowledge of the uneven boards.  Instead, the plaintiffs’ argument was that the City knew that vehicles drove on the boardwalk, that vehicles might cause the boards to become uneven, and that the City’s vehicles going across the boardwalk likely created the uneven boards.  However, the Court found that there was no evidence from which a jury could find that the City had actual or constructive notice of this condition.  It pointed out that “[k]nowing that a boardwalk stretching more than 4 miles can be damaged on various times and various causes, including vehicles driving on or across the boardwalk, does not constitute actual or constructive knowledge of this specific dangerous condition that caused [plaintiff] to fall.”

As for plaintiffs’ theory that the City should have inspected and found the uneven boards, the Court pointed out that the problem with this theory is that plaintiffs have no evidence as to how long the boards were uneven.  Plaintiffs’ liability expert was never able to identify when the boards became uneven.  Rather, he merely speculated that the City should have discovered the uneven boards if they conduct a regular inspection.  The Court found that without knowing when the boards became uneven, a jury would have no basis to find that the City had “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

As for the last prong as to whether the City acted palpably unreasonable, the plaintiffs’ best argument was that the City should have discovered the uneven inspections where plaintiff fell by conducting more regular inspections.  However, the City did inspect for dangerous conditions on the boardwalk and there was no evidence from which a jury could find that the City’s failure to conduct more inspections was palpably unreasonable.

The Appellate Division also rejected the expert’s opinion that the City’s vehicles created the damage to the boards.  The Court pointed out that there were no facts to support this opinion.

Thus, the Appellate Division agreed with the trial court’s decision and affirmed the summary judgment dismissal in favor of the City of Atlantic City.

Plaintiff Vito Collucci fell on ice and snow while walking towards a restaurant in the parking lot of a multi-tenant strip mall.  He sued the owner of the shopping center, the restaurant, as well as other tenant stores located in the strip mall.  The issue in Collucci v. Cosima Cassese, 2025 N.J. Super. Unpub. LEXIS 186 (App. Div. Feb. 5, 2025) was whether the commercial tenants could be liable for his fall in the parking lot in front of the building.

The strip mall was owned by defendant Cassese Enterprises, Inc. (“Cassese”). The mall contained a restaurant (Amore Restaurant) and other tenants.  Plaintiff had been eating dinner at the Amore Restaurant with his family.  He parked in the parking lot in front of the building.  After dinner, he went to his car to retrieve a cake he brought for dessert.  He did not re-enter the restaurant through the front door but instead walked past the restaurant to the end of the building around the corner and toward the back where he intended to enter Amore’s kitchen through a back door.  Plaintiff Collucci slipped on ice while walking in the parking lot as he was near the back door of Amore bringing the cake to the kitchen. 

Defendant Amore, along with other named commercial tenants, had lease agreements with the owner Cassese.  According to the lease, the common areas were subject to the exclusive control and management of the owner lessor. The owner’s representative admitted that Cassese was responsible to ensure that no dangerous snow or ice conditions existed in the parking lot of the strip mall.  Cassese hired PL Landscaping to clear snow and ice at the shopping center.  Further, the owner’s representative admitted that she did not expect the defendant tenants to clear snow and ice from the sidewalk in front of their respective premises.

At the trial court level, the defendant tenants filed for a summary judgment, arguing that they did not owe plaintiff a contractual or common law duty regarding the strip mall, that the parking lot fell under the definition of a common area, and that the owner/landlord Cassese was responsible for the maintenance of the common areas.  This responsibility included snow or ice removal in the parking lot.

The trial court found that the lease agreement contained plain and unambiguous language requiring the tenants to maintain the areas in front of their stores and nothing more.  Based upon this lease, the landlord intended to exercise control over common areas, such as parking lots. 

Further, the court cited to the prior case of Kandrac v. Marrazzo’s Market in which the court had ruled that tenants in a multi-tenant shopping center, sharing a common area parking lot, were under no contractual duty to maintain the common areas, and were not responsible for a fall in the parking lot. 

Further, the trial court found that the plaintiff fell in an area of the parking lot that was not on the leased premises of any tenant nor on the sidewalk that abutted their store fronts.  Rather, Plaintiff was going to the rear of the restaurant, which was not a defined route to any of the tenants’ premises.  Accordingly, the trial court granted the tenant’s motions for summary judgment, dismissing the lawsuit. 

The plaintiff appealed this order to the Appellate Division, arguing that the tenants did have a contractual and common law duty to clear the snow and ice in the area of plaintiff’s fall.

The Appellate Division began its analysis by reviewing the lease agreement.  It noted that the area where plaintiff fell was not a sidewalk or a walkway but rather the parking lot blacktop on the side of the building, which did fall under the definition of a common area under the lease and which was under the exclusive control of the landlord.  Further, the Court pointed out that the landlord’s representative had agreed that it was the landlord’s obligation to remove snow and ice from the parking lot and the sidewalk and, in fact, hired a contractor to fulfill that obligation.  The Appellate Division found that the defendant tenants did not have a contractual duty to remove snow and ice from the area of plaintiff’s fall.

The Appellate Division ruled that the Kandrac case did apply, which case had similar facts – the tenants were in a multi-tenant shopping center, sharing a common area parking lot with a lease that did not impose any contractual duty on the tenants to maintain the common areas.  According to that case, the Court had found that the landlord was responsible for any negligence in maintaining the parking lot.

Thus, the Appellate Division found that Kandrac was the controlling law in these circumstances and reiterated that “as a general rule, when a commercial tenant in a multi-tenant shopping center has no control or contractual obligation to maintain a parking lot shared with other tenants, the common law does not impose a duty upon the tenant to do so.”  Hence, the Court agreed with the trial court decision and affirmed the summary judgment order, dismissing the complaint as to the tenant defendants.

Plaintiff Wiggins Plastics, Inc. sued the County of Passaic and its contractor Assuncao Brothers, Inc. (“Assuncao”) for damages claimed to its property following the effects of Hurricane Ida.  Plaintiffs claimed that their properties were damaged due to the negligent acts related to a bridge replacement project, contracted by the County of Passaic to defendant Assuncao Brothers.  Plaintiffs alleged that the County was vicariously liable for its supervisory role over its contractor.  The issue in Wiggins Plastics, Inc. v. County of Passaic, 2025 N.J. Super. Unpub. LEXIS 224 (Law Div. Feb 6, 2025) was whether the County was immune from vicarious liability for the negligent acts of its independent contractor under the Tort Claims Act.

The County had engaged Assuncao as an independent contractor in the Kingsland Road Bridge replacement project.  Plaintiffs alleged that the effects of Hurricane Ida caused flooding and subsequent damages which, in part, were due to the negligent acts related to this bridge replacement project. 

The County filed for a summary judgment dismissal, arguing that it cannot be held vicariously liable for the alleged negligent acts of its independent contractor.  Under the Tort Claims Act, public entities can be held vicariously liable for the wrongful acts of their employees (N.J.S.A. 59:2-2(a)).  However, the Tort Claims Act expressly excludes independent contractors from the definition of “public employee” under Section N.J.S.A. 59:1-3.  Further, the trial court, in deciding the motion for summary judgment, noted that this distinction as to liability has been consistently upheld by the courts, finding that public entities are not liable for the actions of its independent contractors.

In this case, plaintiffs did concede that Assuncao was an independent contractor.  The court found that plaintiffs did not identify any applicable exception that would impose liability on the County, “nor have they presented specific facts that could establish vicarious liability and preclude summary judgment at this stage.”  Further, they have not demonstrated that the County had a non-delegable duty that would impose liability despite Assuncao’s status as an independent contractor.

For these reasons, the trial court found that the County was entitled to summary judgment for Plaintiffs’ claims against it which were based upon vicarious liability for Assuncao’s actions. 

Capehart Blogs

Subscribe to Blog Updates

Categories