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

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

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

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

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

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

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

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

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

Appellate Division Finds Potential Liability for Driving Too Slowly

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Homeowner Not Responsible for Plaintiff’s Injury Caused by Slip on Ice in Front of Home

Plaintiff Joseph Costigan was walking on the sidewalk in front of the home of the defendants Gurprit and Sneh Bains when he slipped and fell on a patch of ice and struck his head.  He claimed that the drainage system on defendants’ property, that ran down the driveway and across the sidewalk, was faulty and caused the ice.  The issue in Costigan v. Bains, 2025 N.J. Super. Unpub. LEXIS 2091 (App. Div. Oct. 29, 2025) was whether the plaintiff needed an expert to support the theory that the drainage system caused the water to collect on the sidewalk, which could be a hazard when the weather was cold. 

Plaintiff  had retained Mark Marpet, Ph.D., P.E. as an engineering expert who issued a report that the defendants’ drainage system created a hazard by leading the drain water from the gutters and basement sump pump onto the driveway and sidewalk, where it could freeze and create a slip hazard.  In his opinion, the elements did not cause the hazard because it had been two days before the accident since any precipitation fell.

Defendants retained the services of Stephen Pellettiere, a certified meteorologist, to provide an expert opinion regarding the weather conditions on the day of the accident.  He relied on certified weather reports from the National Oceanic & Atmospheric Administration (NOAA) and opined that there had been a winter storm and snow/ice event on the day of the incident with approximately a half inch of snow on the ground when plaintiff slipped and fell.  He disagreed with Dr. Marpet’s report that it was not snowing at the time and noted that Dr. Marpet used erroneous weather underground data that contradicted the certified NOAH observations.  In Mr. Pellettiere’s opinion, it was highly unlikely that preexisting ice and snow was in place at the time of the incident because of rainfall of less than an inch ending 40 hours before the incident and temperatures were well above freezing after the rain had ended two days before the incident.

At the trial court level, the defendants filed a motion to strike Dr. Marpet’s report as a net opinion and asked for a summary judgment dismissal.  They argued that Dr. Marpet’s opinion that the drainage system created a hazard “lacked any measurements or demonstration of any slopes or angles or anything about water capacity and failed to provide any discussion about the sidewalk.”  Further, defendants argued that Dr. Marpet used erroneous data indicating there was no precipitation on the day of the fall when in fact there was an ongoing storm.  Defendants further argued that Dr. Marpet’s opinion failed to satisfy any of the requirements for an expert report because it contained “nothing but his pure conclusions.”

The trial court heard the arguments and agreed with the defendants, granting defendants’ motion to strike Dr. Marpet’s report as a net opinion and also granted a summary judgment dismissal.  The trial court found that Dr. Marpet’s report “constituted an inadmissible net opinion because it failed to explain the pertinent scientific principles and how he applied them to formulate the basis for his opinion.”  The trial court further noted that “Dr. Marpet did not analyze the rates of evaporation for rain water under the conditions of freezing temperatures, provide any measurements of the slope of defendants’ property, calculate the volume of water that could have exited the drain, or author scientific support from a qualified meteorologist.”  Thus, the trial court determined that Dr. Marpet did not provide the “why and wherefore of his opinion but rather offered only a mere conclusion.”

As for the summary judgment dismissal, because the trial court found that Dr. Marpet’s report was an inadmissible net opinion and plaintiff needed to present an expert opinion to establish that the drainage system worsened the conditions of the sidewalk beyond the natural hazards created by the storm, the court found that there was no genuine issue of material fact that could defeat defendants’ summary judgment motion.

Further, the trial court rejected plaintiff’s argument that he could proceed without an expert.  Without an expert, it was mere speculation that the drainage system somehow caused the sidewalk conditions.

The plaintiff appealed the summary judgment dismissal to the Appellate Division.  Upon appeal, the plaintiff did not argue that the trial court made a mistake in barring his expert.  Rather, upon appeal, plaintiff argued that he did not need an expert to be able to argue that the defendants’ drainage system caused water to collect on the sidewalk, which could be a hazard when the weather was cold.

The Appellate Division first noted that residential property owners can be liable “if their actions create an artificial, dangerous condition on an abutting sidewalk, thereby negligently introducing a new element of danger other than one created by natural forces.”  Further, the Court noted that “homeowners have no duty to maintain the sidewalks abutting their property so long as they have not affirmatively created a hazardous condition.”  Thus, for plaintiffs to overcome defendants’ immunity from sidewalk liability, the plaintiff must present competent evidence showing defendants created or exacerbated a hazardous condition on the sidewalk. 

Plaintiff was asserting that the defendants’ drainage system routed precipitation from a prior storm causing it to pool on the sidewalk which then froze to form a sheet of ice.   However, the Appellate Division agreed with the trial court that expert testimony would be needed to establish that the cause of the water on the sidewalks was from the defendants’ drainage system. 

The Court found that the “topography of defendants’ property, the relative slope and manner in which water drained off the property, and whether the drainage system led to water pooling on the sidewalk under the facts presented here, required an expert’s specialized and technical knowledge to establish defendants’ negligence was the proximate cause of plaintiff’s slip and fall injury.”  The Appellate Division ruled that a jury would not be competent “to supply the requisite standard by which to measure defendants’ conduct and would be left to speculate.”  Thus, the Court agreed with the trial court that defendant’s negligence could not be established without the aid of an expert and upheld the summary judgment dismissal. 

District Court Finds That Mode of Operation Rule Did Not Apply to a Fall From a Blueberry Sold in a Clamshell Container

Plaintiff Jessica Nunez was shopping at the Clifton Costco and claimed that she slipped and fell on at least one blueberry on the floor in the meat department.  She sued Costco for her personal injuries.  The issue in Nunez v. Costco Wholesale Corp., 2025 U.S. Dist. LEXIS 196212 (D.N.J. Oct. 3, 2025) was whether Costco could be held liable under the mode of operation doctrine due to the sale of its blueberries packed in a clamshell container with pinch points at each corner, but not taped shut.

As a result of her fall, plaintiff suffered a fracture of her left patella, which required emergency surgery.  She claims that her surgery left her with substantial medical bills, lost time from work and changes in her employment. 

It was undisputed that Costco sold the blueberries packaged in a clamshell container with pinch points at each corner and that it sold them exclusively in the produce department, which was about 200 feet from the meat department where plaintiff fell.  The containers were not always taped, depending on the vendor, and sometimes the plastic containers did pop open.

The evidence showed that Costco employees performed daily floor walks to inspect for hazardous conditions, covering all areas at the store.  Plaintiff admitted that she could not recall ever encountering any spilled produce on the floor of this Costco prior to the date of the incident.  Further, the testimony was that while Costco employees did permit customers to open sealed produce containers while shopping, it did not encourage customers to eat while shopping.

It was unclear how long the blueberry (or blueberries) had been on the floor before the incident occurred.  There was no surveillance footage or eyewitnesses as to the accident.

The case was originally filed in New Jersey state court but it was removed to federal court. Thus, the litigation ensued in the Federal District Court of New Jersey.

Costco filed a motion for summary judgment, arguing that plaintiff was not able to establish a negligence claim under New Jersey law.  The two issues addressed by the Court were whether the mode of operation doctrine applied and, if not, whether Costco had actual or constructive notice of the alleged dangerous condition, i.e. the blueberry on the ground, that caused plaintiff’s injuries.

To establish a negligence claim, the plaintiff must show that there was a duty of care owed by the defendant and that the defendant breached that duty of care.  Costco, as a business owner, owed its invitee (its customer) a duty of reasonable care to provide a safe environment to its invitee.  However, the plaintiff must prove that the defendant/business owner had actual or constructive notice of the dangerous condition that caused the accident.

The District Court pointed out that in “very limited” circumstances, where the mode of operation rule applied, a plaintiff does not need to show actual or constructive notice to prove that a defendant/business owner breached its duty of care.  Once this rule is triggered, the burden switches to the business owner to establish that it “did all that a reasonably prudent man would do in the light of the risk of injury the operation entailed.”

The mode of operation rule only applies in self-service settings where “a business permits its customers to handle products and equipment, unsupervised by employees.”  There must be a nexus between the self-service components of the defendant’s business and the risk of injury in the area where the accident occurred.

Here, Costco conceded that it sold products in a self-service fashion and permitted customers to handle produce containers without employee supervision.  However, Costco argued that there was no nexus between the self-service component of its business and the risk of injury. 

Under New Jersey case law, “when a business owner instead uses a method that poses virtually no chance of spillage during ordinary, permissible customer handling,” the mode of operation rule does not apply.  The District Court cited to the New Jersey Supreme Court case of Jeter v. Sam’s Club, 250 N.J. 240 (2022), among other New Jersey state court decisions, in explaining and considering the application of the mode of operation rule to the facts of this case.

The Court noted that in Jeter, the New Jersey Supreme Court found “no reasonable factual nexus between the self-service activity and the dangerous condition causing plaintiff’s injury” when the business permitted only the self-service sale of pre-packaged sealed grape containers, rather than allowing customers to handle the produce in open top bags.  The Sam’s Club’s customers were intended only to handle the closed grape containers. The Jeter Court made clear that the presence or absence of tape on a closed container did not determine whether the mode of operation rule applied. 

The District Court also noted a prior District Court decision, also against Costco, Scalera v. Costco Wholesale Corp., in which the Court noted that “the taping of the containers was not the lynch pin of the Court’s analysis” in Jeter.  That case involved the sale of strawberries in a clam shell container which was not secured by tape.  As the Court in Scalera noted, “the analysis in Jeter hinged on whether the packing of the grapes in closed clamshell containers made it reasonably foreseeable that grapes would drop on the floor, and not on whether the containers were taped or might occasionally pop open.”

In considering the arguments made in Nunez, the District Court found that the mode of operation doctrine did not apply to the sale of the defendant’s blueberries in a clamshell container.  As in Jeter, the Court found that the defendant’s customers were not intended to handle the blueberries themselves or package the blueberries themselves.  Instead, they were intended only to handle the closed containers. 

Further, the Court found that plaintiff was unable to establish that Costco had actual or constructive notice of the blueberry on the floor.  It was undisputed that Costco had no actual knowledge.  The issue was whether the facts established that Costco could have had constructive knowledge of the blueberry being on the floor. 

To establish constructive notice of a hazardous condition, a plaintiff must be able to show that the condition was present “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  The length of time that the condition was present is key to determining whether constructive notice existed. 

A plaintiff is unable to prove constructive notice “when he or she cannot identify any facts in the record indicating how long the dangerous condition itself is present.”  The District Court noted that a court will look for evidence such as video footage, eyewitness testimony and whether the plaintiff his or herself noticed the hazard or had knowledge of when it was created.

Here, plaintiff had not pointed to any evidence from which a determination could be made as to how long the blueberry had been on the floor before the plaintiff’s fall.  Plaintiff did not know how long the blueberry had been on the floor prior to the incident.  Further, she was unable to identify any evidence regarding “characteristics of the berry that would indicate how long it had been there.”  Further, there was no surveillance footage, nor did any party claim that any eyewitnesses were present.  The Court found that “no one involved has any idea at all how long the hazardous condition existed before the incident occurred.”

Further, the Court pointed out that Costco did perform floor walks to check the floor for hazards hourly.   A Costco employee had performed an entire walk through of the store which had concluded only about 15 minutes before the incident occurred.

Thus, the District Court found that plaintiff had been unable to point to any evidence at all showing how long the hazard existed, but there was evidence that showed that Costco employees did closely monitor the area.  Hence, the Court found that plaintiff was unable to establish constructive notice.  Because of the absence of evidence of actual or constructive notice, that was fatal to plaintiff’s claim of premises liability.  Hence, the District Court granted summary judgment in favor of the defendant, dismissing the case.

Appellate Division Upholds Trial Court’s Involuntary Dismissal of Plaintiff’s Personal Injury Claim Due to Her Failure to Prove Liability

The Pro Se plaintiff Tannia Winston tried her personal injury case on her own against 7-Eleven.  She claimed that she was injured due to a slip and trip at defendant’s convenience store.  The issue in Winston v. 7-Eleven, Inc., 2025 N.J. Super. Unpub. LEXIS 1705 (App. Div. Sept. 18, 2025) was whether the trial court properly granted the defendant’s motion for an involuntary dismissal at the end of plaintiff’s case at trial.

Plaintiff commenced her lawsuit with counsel.  However, her attorney was relieved as counsel before the trial.  Therefore, plaintiff represented herself at the trial of this matter.

Plaintiff’s injury occurred when she entered a 7-Eleven in Jersey City on a rainy day to purchase a cup of coffee.  She claimed that, as she entered the store, her foot was caught under a large “object on the floor.”  She testified that she fell forward, stiffened up, and locked her knee to avoid falling.  She also claimed that an employee “quickly grabbed the object and ran it [sic] out of the building.”  Plaintiff further testified that she limped out of the store, boarded a bus to the emergency room, where a cast was placed on her leg.  She did admit upon cross-examination that it was actually a knee immobilizer.

At the conclusion of her testimony, plaintiff rested her case and 7-Eleven moved for an involuntary dismissal.  The defendant argued that plaintiff had failed to satisfy her burden of proving liability.  In particular, defendant argued that plaintiff failed to demonstrate “there was a condition in the store that was unreasonably dangerous” or that the defendant’s store was on notice of “whatever condition” plaintiff claimed caused her to trip.  Further, defendant argued that plaintiff failed to demonstrate the accident was the proximate cause of her alleged damages.

Plaintiff argued that defendant knew the object was on the floor because an employee grabbed it and commented to her about its improper placement at the entrance.  Plaintiff did not present any witnesses to testify about the object’s placement or duration at the entry.  She claimed that the judge forbade her from explicitly testifying she tripped on “cardboard” because she was unable to present expert testimony concluding that the object was cardboard.

The trial court judge granted the defendant’s motion for a dismissal.  The trial court judge found that plaintiff had failed to establish that the defendant 7-Eleven “knew or should have known of this alleged dangerous condition and failed to use a reasonable degree of diligence and care with respect to whatever the object was.” 

The trial court commented that the plaintiff was unable to tell the jury what object caused her to slip and there was no testimony about how long it was there or who put it there. Even though someone from 7-Eleven may have removed it after her incident, the trial court judge found that it did not establish that 7-Eleven was responsible for the placement of that object, how long it had been there or that they knew it was there and “they were not exercising reasonable care in their failure to remove it.”

Upon appeal, the Appellate Division noted that to prove a negligence claim in the context of a business invitee’s fall at a defendant’s premises, the plaintiff “must prove by a preponderance of the evidence: (1) defendant’s actual or constructive notice of a dangerous condition; (2) lack of reasonable care by defendant; (3) proximate causation of plaintiff’s injury; and (4) damages.”

The Appellate Division further noted that owners of premises were generally not liable for injuries caused by defects for which they had no actual or constructive  notice and no reasonable opportunity to discover them.  The Court stated that the absence of notice would be fatal to a plaintiff’s claims of premises liability.  Further, the Appellate Division noted that the “mere occurrence of an incident causing an injury is not alone sufficient to impose liability.”

Here, the Court found that the record supported the judge’s decision that plaintiff had failed to produce any evidence demonstrating that the defendant had actual or constructive notice of the condition that allegedly caused her to trip.  The Appellate Division also rejected the plaintiff’s claims that the trial court had refused to grant a continuance to allow her to produce witnesses and found that she failed to produce any evidence that the trial court judge instructed her what words were allowed for her to state and what she could not state during the trial. 

Hence, the Appellate Division affirmed the trial court’s dismissal of the lawsuit.

Summary Judgment Dismissal Affirmed Based Upon Storm In Progress Doctrine

Plaintiff Glenn Weidlich slipped and fell outside the front door of his condominium unit due to ice on the landing and fell down the stairs.  He sued the defendants, 313-319 First Street Condo Association Inc. and Clinton Hill Condo Association, among other defendants, claiming that they were negligent due to the unsafe condition of the exterior front stairs of the building.  At the time of his fall, there had been freezing rain.  The issue in Weidlich v. 313-319 First Street Condo Association, Inc., 2025 N.J. Super. Unpub. LEXIS 1366 (App. Div. July 22, 2025) was whether the ongoing storm rule immunized the condo association defendants from negligence for their failure to remove the ice from the stairs or whether one of the two exceptions to the ongoing storm rule applied.

Plaintiff owned and lived in the condominium unit located at 357 8th Street, Jersey City.  On the morning of January 5, 2022, as he stepped outside his front door, he slipped on ice on the landing and fell down the stairs.  Due to his fall, he suffered a torn patella tendon and underwent surgery.

Plaintiff sued the defendants, alleging negligence and premises liability.  He claimed that due to the unsafe condition of the exterior front of the stairs, he was caused to slip and fall on the steps.

At the conclusion of discovery, defendants filed motions for summary judgment, arguing that plaintiff fell solely because of the ongoing freezing rain and icy condition on the landing that morning and that they were immune due to the ongoing storm doctrine. 

The trial court found that plaintiff did slip and fall during an ongoing storm event.  It noted that the ongoing storm rule immunized “commercial landowners from negligence if they fail to remove an accumulation of snow and ice from public walkways during an ongoing storm,” citing to the Supreme Court Pareja v. Princeton International Properties case.  Further, the trial court found that neither exception to the ongoing storm rule was applicable.

This appeal ensued.  Unfortunately, for the plaintiff, the Appellate Division did agree with the trial court decision.

Plaintiff contended that the exceptions to the ongoing storm rule would prevent its application in his case.  He argued that there was a pre-existing dangerous condition of the stairs and that, further, the condition of the stairs was caused by a lack of maintenance and the recent paint job completed on the steps and landing. 

The Appellate Division noted the Supreme Court’s ongoing storm rule which affected the duty commercial landowners had to remove snow and ice accumulations and pathways during a storm.   The rationale of this rule was that “it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing.”  Thus, in Pareja, the Supreme Court held that “absent unusual circumstances, a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.” 

However, the Pareja Court did identify two exceptions to the ongoing storm rule that may impose a duty on a commercial landowner.  Under the first exception, a commercial landowner may be liable if his or her actions increased the risk to pedestrians and invitees on the property by, for example, creating unusual circumstances in which the defendant’s conduct exacerbated and increased the risk of injury to the plaintiff.  Under the second exception, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm.  Under the second exception, a landowner may be liable for an injury during a later ongoing storm if it “failed to remove or reduce a pre-existing risk on the property.”

In this case, neither party argued that the defendants did not have a duty to maintain the stairs outside defendant’s condominium and clear ice and snow for them.  The dispute focused, instead, on whether one of the exceptions to the ongoing storm rule applied. 

The plaintiff argued that defendants’ conduct created and increased the risk by not addressing the deterioration of the surface of the steps which allowed water infiltration and imperceptible freezing to occur over the surface; second, that the wrong paint was used during a recent paint job which, in plaintiff’s opinion, made the steps sleeker and harder to negotiate when wet; and, third, affixing the handrails next to the steps too far from the pedestrian pathway.

The Appellate Division noted that the plaintiff admitted that he never reached any of the steps because he fell on the landing outside his front door that morning due to the icy conditions.  As for the condition of the steps, plaintiff admitted that there had been no precipitation on the days before he slipped and fell but that there was precipitation in the form of freezing rain and snow at the time of his fall.  But, regardless of the condition of the steps, the plaintiff fell on the landing before he reached the steps.  Therefore, the pre-existing condition of the steps did not satisfy any exception to the rule. 

As for the handrails, although plaintiff had an expert on that point, the expert report failed to provide any support for his conclusion that the handrails were too far away from the walking pathway to allow plaintiff to utilize them to stabilize himself or help him regain his balance after slipping on the ice.  The Court found that it was a bare conclusion, not supported by any credible evidence on the record.  Thus, the Court found it to be an inadmissible net opinion.

With respect to plaintiff’s lay opinion that the paint job made the landing more slippery, the Court also rejected that argument as satisfying one of the exceptions to the storm in progress rule. The defendants argued that an expert was needed to explain how the type of paint used made the steps more slippery.   Plaintiff’s expert offered no opinion as to this assertion and the Court found that this conclusion required expert testimony.  The Appellate Division found that, without an expert, the record failed to establish any nexus between the paint job and plaintiff’s fall.

For the above reasons, the Court agreed that the ongoing storm rule applied and none of the exceptions to the rule applied.  Thus, the Appellate Division affirmed the trial court’s summary judgment dismissal of the lawsuit.

Court Dismisses Plaintiff’s Personal Injury Lawsuit Due to Inability to Identify Why Floor Was Slippery

Plaintiff Ann Brilliant slipped and fell inside an Outback Steakhouse but did not know how or why she slipped.  She was unable to identify any specific hazardous condition of the floor or deviation from accepted safety standards.  The issue in Brilliant v. Outback Steakhouse of Florida, LLC, 2025 U.S. Dist. LEXIS 87014 (D.N.J. May 7, 2025) was whether summary judgment should be granted to the defendant Outback Steakhouse due to plaintiff’s failure to identify why the floor was slippery and what caused her to fall.

Plaintiff had met her friend Darsell Pigford for dinner at an Outback Steakhouse in Deptford, New Jersey.  As she was walking to her table, she slipped and fell, breaking her arm and leg.

She testified at her deposition that she did not notice any substance on the floor that caused her to slip.  Rather, she guessed that “the floor was slippery because it had a wax residue on it that made it feel like a sheet of ice.”  However, she denied seeing or feeling any wax residue on the floor.  Plaintiff’s friend, Ms. Pigford, also testified in a deposition that she frequently ate at this Outback and that the floor always seemed slippery but, she was unaware of any particular condition that made the floor slippery.  Although, on one of her prior visits, she had apparently alerted restaurant staff about the slipperiness of the floor.

At the conclusion of discovery, Outback moved for summary judgment, arguing that, as a matter of law, no reasonable jury could find that it negligently maintained its floor.  The District Court found that plaintiff could not survive summary judgment “because she has failed to present evidence outside her and her witnesses’ own subjective characterizations that Outback maintained its floor negligently.”

The Court relied on prior New Jersey case law which held that “the mere fact that a plaintiff falls on a waxed floor is not enough to infer negligence; instead, the plaintiff has to show that the way the floor was waxed – in terms of the nature or quantity of the substance used, or in the matter or time of its application – was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises.” 

Here, plaintiff failed to produce any evidence that the floor was negligently waxed, or that it was waxed at all.  The Court also pointed to out of state decisions in which courts have held that a plaintiff cannot prevail on a negligence claim when she fails to offer any evidence that the floors were excessively slippery, “other than subjective characterizations about the appearance of the floor.”

Plaintiff had also argued that summary judgment should be denied because Outback failed to produce in discovery a completed opening and closing inspection checklist, as well as a completed facilities inspection checklist.  Instead, Outback had only produced a blank version of the opening checklist.  Plaintiff argued that defendant’s failure to preserve these records should create a negative inference that it either never created the records or that the records were destroyed because they were harmful for the defendant. 

The District Court disagreed with that argument.  Plaintiff had never objected in discovery to Outback’s failure to produce these completed versions of the checklist from the day of the accident.  Further, the Court noted that production of the completed checklists, even if they did exist, would not create a triable dispute of fact.  At most, the checklist would establish that inspections were conducted but not what if anything was observed during the inspections, let alone that any hazardous condition was or should have been detected.

The Court concluded that the undisputed evidence was that there was no admissible evidence of a dangerous hazard on the floor and, as such, the argument that any hazard could have been identified or remedied by an inspection procedure was speculative.  Thus, the District Court granted summary judgment and dismissed the complaint.

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