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

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 The issue in the unpublished case Solaro v. FirstEnergy Corp., 2026 N.J. Super.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employee’s Mid-Shift Pizza Run Was Outside of the Scope of His Employment to Hold Employer Vicariously Liable for His Car Accident

Defendant Jarrod Cooney (Cooney), a shift manager at a 7-Eleven in Bellmawr, left the store mid-shift in his own car to pick up a pizza for himself and a coworker. On his way back to the store, he caused a car accident, injuring Plaintiff Alex Seccia. 7-Eleven’s posted rules prohibited employees from leaving the store during their shift and paid them for “a straight [eight] hours.” Employees, including Cooney, remained clocked in for eight hours, including their thirty-minute break, and ate their lunch in the store. Cooney claimed he had his boss’ permission; the boss denied it. Seccia sued Cooney and 7-Eleven, alleging Cooney was in the scope of his employment for which 7-Eleven was vicariously liable. The issue in Seccia v. Cooney, 2026 N.J. Super. Unpub. LEXIS 1663 (App. Div. July 22, 2026) was whether Cooney’s pizza run was within the scope of his employment with 7-Eleven.

After discovery, Seccia settled with Cooney, but continued to pursue his claim against 7-Eleven. However, 7-Eleven moved for summary judgment, arguing that by leaving the store in direct violation of store rules, he was not acting within the scope of his employment and for which 7-Eleven could not be vicariously liable. The trial court agreed, and dismissed Seccia’s complaint against 7-Eleven. Seccia appealed.

Vicarious liability, also known as the doctrine of respondeat superior, holds an employer liable for its employee’s negligence based on the idea that an employee is the agent of and acts on behalf of their employer. It follows that an employer can be found liable for the negligence of its employee if, at the time of the accident, the employee was acting within the scope of their employment. The key focus of the respondeat superior standard is on the relationship between the employee’s job responsibilities and the alleged negligent conduct. Thus, an employer will not be liable for the employee’s conduct that occurs beyond the scope of the employment.

Under New Jersey law, an employee who is “going to” or “coming from” their job is not considered to be acting within the scope of their employment. However, in contrast, under the “dual purpose” rule, an employer can be liable where the employee’s personal affairs are also in furtherance of the employer’s business interests. The determining factor is whether the employer has control over the employee’s actions, meaning an employee’s travels to or from the workplace, regardless of whether their coming or going is in the beginning, middle, or end of the work day, the critical factor is whether the employer controls their travel. Such exceptions that indicate the type of control for which the courts will find an employer liable for its employee’s conduct is if the employee is running a special errand for the employer or when the employer requires the employee to use their own vehicle for such an errand.

On appeal, Seccia argued that the trial court misapplied the “going to” and “coming from” rule, for which Cooney was acting in the scope of his employment. Seccia argued that this only applied to employees commuting to and from the workplace both before and after the day’s work, but any mid-shift travel during the workday is distinct and for which the employer can be responsible. Further, because the summary judgment standard assumes issues of fact in the non-moving party’s favor, he had his boss’ permission to go get pizza and, as a result, 7-Eleven must be bound to his negligent conduct. The Appellate Division disagreed. It found that Cooney’s actions, even though done mid-shift, were outside of the scope of his employment because driving to pick up a pizza was “different in kind” from his authorized role as a 7-Eleven manager. Nor did his actions serve a “dual purpose” of both his and 7-Eleven’s interests. Finally, nothing in Cooney’s leaving 7-Eleven to get a pizza land outside of the “going to” and “coming from” rule. Cooney’s boss, though he may have authorized the trip, did not send Cooney to get the pizza, nor did he require Cooney use his own vehicle, thereby lacking any control over Cooney’s excursion or make it a special errand or a task done for a palpable benefit of the employer but Cooney’s own benefit in order for 7-Eleven to be vicariously liable for Seccia’s injuries.

The Court’s holding emphasizes that the “going to” and “coming from” rule applies wholly independent of when the travel occurs during the workday, placing the focus on the interaction between the employer and its control of the employee’s conduct and whether the employer yields some tangible benefit from the employee’s travel.

Ongoing Storm Rule Upheld Due to Plaintiff’s Inability to Establish Clear Endpoint to Precipitation

On January 5, 2022, at some point between 11:00 a.m. and noon, plaintiff Tyrone Granum left a friend’s apartment in a multi-unit apartment building in Newark owned by defendant Ecuador Velez. Granum alleged that as he walked down the concrete exterior stairs leading from the building’s front door, he slipped and fell on a patch of ice near the top of the staircase, severely injuring his back. After Granum filed suit against Velez, titled Granum v. Velez, 2026 N.J. Super. Unpub. LEXIS 867 (App. Div. May 1, 2026), Velez produced an expert meteorologist’s report that identified freezing rain and sleet overnight, with some light snow intermittently overnight, with freezing rain continuing that morning, changing to rain from about 9:30 a.m. until shortly after noon. Velez filed a motion for summary judgment to dismiss the complaint, raising the issue of whether New Jersey’s recent “ongoing storm” rule was appropriate when the plaintiff could not establish when the storm had ended.

As the Appellate Division’s opinion points out, the Supreme Court, somewhat controversially, established the “ongoing storm” rule in 2021 in Pareja v. Princeton Int’l Props., 246 N.J. 546 (2021), when it overturned the Appellate Division’s own opinion that struck down the rule on public policy grounds. The rule established by the Supreme Court in Pareja states that a private landowner generally does not have a duty to remove snow or ice from public walkways until a reasonable time after the precipitation has ended. The Court noted two exceptions, one where the defendant’s conduct somehow increases the risk to pedestrians (such as forcing someone to take a longer walk around an area of dangerous ice) or when there was a pre-existing risk on the premises (such as the failure to remove snow or ice from a previous storm). The opinion left the door open for a plaintiff to introduce facts that questioned when the storm ended or whether the accumulation of ice or snow was from a prior storm, both of which may defeat a summary judgment motion.

In opposition to the motion, Granum testified that it had stopped snowing at the time of his fall, but he failed to show a clear endpoint of the rain or snow or that the endpoint occurred within a reasonable time before he fell. Finding that Velez met the standard for the ongoing storm rule to apply, even when the evidence was viewed in a light most favorable to Granum, the trial court granted Velez’s motion for summary judgment, dismissing the matter. Granum appealed.

On appeal, Granum’s argument was that the trial court failed to consider the evidence in a light most favorable to him because he factually disputed the timing of the storm’s end and that the ongoing storm rule should not apply to premises such as Velez’s apartment complex. The Appellate Division disagreed, finding that Granum could not present a genuine issue of material fact to defeat the motion.

Relying on their “obligation to apply” Supreme Court precedent, the Appellate Division found that Granum’s account of the facts was “imprecise and largely uncertain,” noting that he admitted it sleeted the night before and that, when he emerged from the apartment, he testified “it wasn’t snowing,” without explicitly denying whether it was still raining or sleeting, nor could he approximate when the precipitation ended entirely.

Further, Granum attempted to argue that owners of privately owned sidewalks, or stairs, have a heightened duty for the safety of the public with a reference to case law that removes public sidewalk immunity from a homeowner’s association since they own or control the sidewalk. The Appellate Division found this position inapplicable because, here, Velez is not claiming an immunity from liability, but that he does have a duty to remove ice and snow from the stairs and sidewalks, it is just suspended until “a reasonable time after the cessation of precipitation.”

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.”

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