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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.

  • Trial

Court Denies Defendant Motorist Request for Mockler Jury Charge

Plaintiff Melissa Presbery was stopped at a red light when she was rear ended by defendant Jason Willitts.  Willitts was unable to stop due to a wet roadway.  The issue in Presbery v. Willitts, 2025 N.J. Super. Unpub. LEXIS 406 (App. Div. Mar. 17, 2025) was whether the trial court correctly denied the defendant’s request for a Mockler jury charge, as well as some other trial errors alleged by the defendant.

According to the defendant’s testimony, he could not recall if it was raining but the roadway was wet because it had rained.  He was in the right hand lane and observed the red traffic light as he approached the intersection where plaintiff was stopped.  He noticed fewer vehicles in the left lane, so he moved into that lane.  As he was slowing down for the red light, he could not control his vehicle and his car hydroplaned, could not stop and he lost control.  His car subsequently collided into the rear of plaintiff’s vehicle.

In his pretrial Memorandum, defendant requested a jury charge pursuant to Mockler v. Russman. The proposed charge would have read as follows: “[i]f a driver is operating [their] car as would a reasonably prudent person under the circumstances, [they are] not to be held negligent merely because [their] car skidded or slid, resulting in damage or injury to another.” 

Following the trial testimony, the court conducted a charge conference to discuss charges to be read to the jury and the defendant again requested the Mockler charge.  The trial court denied the defendant’s request, stating that the jury would get to decide whether defendant was acting as a reasonable and prudent person whether the Mockler charge was there or not.  The trial court judge distinguished Mockler, finding that defendant was aware of the wet roadway, and he did not “suddenly” come upon the condition.

The trial court judge concluded that defense counsel was permitted to argue that defendant was not doing anything wrong and that he was acting as a reasonably prudent person. (There was also an issue with the defendant’s request for an aggravation charge which will not be discussed in this article.)

The jury found in favor of plaintiff and awarded non-economic damages in the amount of $240,000.  Defendant moved for a new trial, arguing that the court made a mistake in not giving the Mockler charge and also improperly utilizing an aggravation charge.

This appeal ensued, with defendant arguing that the court made a mistake in denying his request for a Mockler charge.

The Appellate Division found that Mockler, which was decided over 50 years ago, has never required that a trial court provide the Mockler charge.  The Court found in this case, that the jury did not lack a basis to find defendant’s inability to stop was anything other than negligence.  It was given an appropriate negligence charge regarding the operation of a motor vehicle.  The jury was instructed that automobile drivers are “required to use reasonable care in the control and management of their vehicles.”  As for defendant negotiating the wet roadway, the jury was further instructed that “a driver is required to make such observations for traffic in road conditions, and to exercise such judgment to avoid collision or injury to others on the highway as a reasonably prudent person would have done in circumstances.”

The Appellate Division pointed out that the plaintiff was free to argue in her closing argument that defendant failed to exercise due care, just as defendant was able to argue that he exercised reasonable care under the circumstances, including navigating the wet road.  Hence, the jury was able to consider both parties’ arguments regarding the road conditions and determine whether defendant exercised due care under the circumstances.  Hence, the Appellate Division found that there was no requirement that the Court provide defendant’s personally crafted proposed Mockler charge.

The Court denied the defendant’s other requests as well and upheld the trial court’s decisions, as well as the jury verdict.

Municipality Found to Have No Liability for Injury Caused by Trip on Uneven Boards on Boardwalk

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

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

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

The expert relied upon testimony from City employees who explained that the boards could become uneven for numerous reasons which included weather, shifting of the boardwalk foundation, sand being pushed up against the underside of the boardwalk and vehicles going across the boardwalk.  Displacements of more than a ¼ of an inch between boards were something that needed to be looked at.  The City also admitted that any vehicle on the boardwalk does damage.

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

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

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

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

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

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

2.         The dangerous condition proximally caused the injury.

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

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

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

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

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

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

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

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

Res Ipsa Loquitur Doctrine Found Not to Apply to Plaintiff’s Injury Caused by Falling Showerhead Screen

Plaintiff Abdullah Alhababi was a guest at defendant Caesar’s Hotel when he was injured due to a showerhead screen that suddenly detached and fell on his head.  It caused him to fall and lose consciousness.  The issue in Alhababi v. Caesar’s N.J., Inc., 2025 N.J. Super. Unpub. LEXIS 395 (App. Div. Mar. 14, 2025) was whether the doctrine of res ipsa loquitur should have been applied to afford the plaintiff a permissive inference that his injuries were caused by defendant’s negligence.

On the day before the accident, plaintiff had checked into a 2-bedroom suite at the defendant’s hotel, accompanied by three friends.  Each bedroom had its own adjoining bathroom and the living room also had its own bathroom.  Two of the friends stayed in one bedroom while the other friend stayed in the living room adjoining the two bedrooms.

On the next morning, plaintiff turned on the shower in the bathroom adjacent to the room he was staying in and let the water run as he shaved and brushed his teeth.  He noticed nothing amiss with the water coming out of the showerhead at that time.  He then entered the shower which had two showerheads.  One was on the wall and one was on the ceiling.  He claimed that he did not touch or adjust the one on the ceiling at any time and did not believe he could have done so due to its height.

After he entered the shower, he was washing his face and the screen of the ceiling showerhead came loose, fell and hit him on the right side of his head.  It caused him to lose his balance and fall backward.  He claims that his body hit the bench, causing him to lose consciousness.  He sued the defendant hotel for his injuries suffered as a result of this incident.  He claimed that he was diagnosed with various head and spine injuries.

Plaintiff relied upon the doctrine of res ipsa loquitur, which, if established, would have afforded him a permissive inference that his injuries were caused by defendant’s negligence.  At the close of evidence at the trial, plaintiff asked the trial judge to enter a judgment as to two of the three res ipsa loquitur elements.   The trial judge granted judgment on one of the elements, ruling that plaintiff had not contributed to the occurrence of the incident causing his injuries. 

However, he denied the motion with respect to the other element, declining to rule that defendant maintained exclusive control of the instrumentality that caused plaintiff’s injuries.  Instead, he allowed the jury to make that determination.  After deliberating, the jury returned a verdict for defendant.  Thereafter, plaintiff filed a motion for a judgment notwithstanding the verdict and asked for a new trial, which the trial court denied.

These motions were thereafter appealed to the Appellate Division.  Ultimately, the Appellate Division agreed with the trial court’s rulings and affirmed the trial court’s denial of plaintiff’s motion for a new trial.

The Court explained that the owner of commercial property must exercise reasonable care in ensuring the safety of its invitees.  However, the plaintiff has the burden of proving that the property owner’s negligence caused her injuries.  The Appellate Division explained that “when a plaintiff is unable to allege a defendant’s specific breach of duty, the doctrine of res ipsa loquitur allows the factfinder to draw an inference of negligence against the defendant if they were in exclusive control of the object or means that caused the accident.”

For this doctrine to apply, the factfinder would need to find as follows:

a)    the occurrence itself ordinarily bespeaks negligence;

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

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

Here, the Appellate Division found that plaintiff was not entitled to the legal conclusion that defendant had exercised exclusive control of the showerhead as a matter of law.  According to the hotel manager’s testimony, 64 guests made 71 reservations for the room in the 9 month period before the incident had occurred.  All of these guests who occupied the subject hotel room had access to the showerhead.

Although the plaintiff’s testimony was that none of his friends used the shower before the incident, that does not establish as a matter of law that the showerhead was “not generally accessible or manipulable by the other guests staying with plaintiff.”  Hence, the Appellate Division agreed with the trial court that “reasonable minds could differ” as to whether plaintiff, his in-room guests or any other previous hotel guest could have manipulated the showerhead in such a way to cause the screen to fall.

Thus, the Court found that the matter was properly submitted to a jury and the jury’s “reasonable minds” did differ from the plaintiff’s presentation, specifically rejecting plaintiff’s contentions that the showerhead was “within the defendant’s exclusive control.”  Accordingly, the doctrine of res ipsa loquitur did not apply to create an inference of negligence against the defendant hotel. 

Further, the Appellate Division agreed with the trial court’s decision that plaintiff did not present sufficient evidence to meet the significant burden to overturn the jury’s verdict.  The Court noted that even if the evidence did establish defendant’s exclusive control, the res ipsa inference is simply permissive and the jury is free to accept or reject it.  Thus, the Appellate Division concluded that the jury’s finding that defendant was not in exclusive control of the showerhead was supported by credible evidence in the record and its verdict was not a “miscarriage of justice.”  Hence, the Court affirmed the trial court’s denial of plaintiff’s motion for a new trial.

Court Rules That County Not Vicariously Liable for the Alleged Negligent Acts of Its Independent Contractor

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

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

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

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

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

Court Dismisses Plaintiff’s Personal Injury Claim Caused by Fall in Pothole Located in Crosswalk

Plaintiff Nelly Reis a/k/a Nelly Gonclaves and her husband filed a lawsuit against the City of Newark for her personal injuries.  She alleged that she tripped and fell in a pothole, a couple of feet outside of a crosswalk, while she was crossing an intersection in the City of Newark.  The issue in Reis v. City of Newark, 2024 N.J. Super. Unpub. LEXIS 3053 (App. Div. Dec. 17, 2024) was whether plaintiff was able to establish that Newark had constructive notice of the pothole and, hence, could be liable for the injuries she suffered due to her fall.

On the date of the accident, Nelly parked her car and walked to her office located on Rome Street.  She parked on the corner of Rome Street and Niagara Street because she could not park on Niagara Street due to street cleaning.  While walking to work, she crossed the intersection of Rome and Niagara outside of the crosswalk.  She tripped and fell in a pothole that was a couple feet outside of the crosswalk and about 100 feet from her office.  As a result of her fall, she suffered injuries.

She testified in her deposition that while she was familiar with the neighborhood, she did not recall seeing the pothole on Rome Street before she fell.  Nelly filed a tort claim notice against the City of Newark and subsequently filed this lawsuit.  She claimed that the large pothole in the roadway created a dangerous condition.

After discovery concluded, Newark filed a motion for summary judgment.  It argued that it lacked actual notice of the pothole before the accident and only became aware of the pothole after it received Nelly’s tort claim notice.  After receiving notice, the City sent a crew to repair it. 

Plaintiff, in opposition to the motion, submitted her own deposition testimony and Affidavits from three coworkers who stated that they were familiar with this pothole and it had existed for a long period of time, many months, prior to her accident.  She also submitted Google Earth images of this intersection which showed the pothole existing before the accident.      

Nevertheless, the motion judge granted Newark’s motion for summary judgment. Plaintiff appealed the decision, arguing that Newark had constructive notice of the pothole and that her complaint should not have been dismissed.

This personal injury claim is governed by the Tort Claims Act, under which plaintiff must prove that the property was in a dangerous condition at the time of the accident, that it proximately caused the injury, the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that either a negligent or wrongful act or omission of the public employee created or knew about the dangerous condition or that it had actual or constructive notice of the dangerous condition.  (N.J.S.A. 59:4-2) Hence, the critical inquiry in this case was whether Newark had constructive notice of the dangerous condition of the pothole. 

The plaintiff argued that there were genuine material facts in dispute and that she should be entitled to present her case to a jury.  The Appellate Division noted that under the Tort Claims Act, a public entity is liable for potholes or depression in the roadway “only when the public entity is on actual or constructive notice of a dangerous condition; and the public entity’s failure to protect against the roadway defect is palpably unreasonable.”  A public entity is only deemed to have constructive notice of the dangerous condition when the plaintiff is able to establish “that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

Plaintiff argued that she did provide evidence sufficient to prove the existence of the pothole before the accident.  However, the Appellate Division found that there was no evidence in the record that Newark had any notice of the pothole at the time of her fall.  Further, it found that the evidence she submitted fell “short of the competent evidence necessary to show Newark had constructive notice of the pothole.”

The Court noted that simply the admission of Google Earth photographs was not sufficient.  Plaintiff failed to offer any testimony as to whether the images were satellite or real images or when the images were captured and if any of the images were altered.

Thus, the Appellate Division agreed with the trial court decision.  It found no reason to reverse the judge’s conclusion because plaintiff had failed to meet her burden and establish that Newark had or should have had constructive notice of the pothole on Rome Street.  Thus, the summary judgment decision was affirmed.

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