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Plaintiff Permitted to Pursue Personal Injury Claim Against Apartment Owner and Tenant Due to Injury Caused by Deficient Stair Railing

Plaintiff Nicolette Pippis was injured when she slipped and fell while leaving a building owned by defendant PDC, after visiting defendant MKG, a tenant in the building.  She claimed that, as she walked down the stairs, she was holding onto the handrail.  The handrail ended short of a few steps which she claimed caused her to slip and fall.  The issue in Pippis v. PDC 16-20 Hudson Place Realty, LLC, 2024 N.J. Super. Unpub. LEXIS 2108 (App. Div. Sept. 6, 2024) was whether plaintiff had produced sufficient evidence on the issue of proximate causation to have her case presented to a jury.

Plaintiff, who was 9 months pregnant at the time, had been at the building for a prenatal massage at MKG, which was located on the second floor in the building.  As she walked down the steps to leave the building, she fell near the bottom of the steps, breaking her ankle.   She claimed that, as she walked down the stairs, she was holding onto the handrail.  When she got towards the bottom steps, the railing ended and there was no lighting, causing her to miss the step and fall.  She testified in her deposition that she attempted to grab for the handrail, but the railing cut short a few steps.  She denied that she tripped.

Plaintiff presented an opinion from an architectural expert that the handrail for the stairs did not extend over the entire bottom tread and stopped short of the edge of the final step by 2½ inches.  He explained that current building codes would require the handrail for these steps to extend at least 10¼ inches past the bottom step.  He opined that Plaintiff lost her balance and fell at the bottom of the stairway because the handrail was short and she could not grasp it.  He further concluded that the lack of handrail coverage over the entire bottom tread was a dangerous condition that contributed to her accident. 

Following the conclusion of discovery, the defendants filed for a summary judgment.  The trial court entered an order granting the defendants’ motion and dismissed the complaint.  The judge determined that plaintiff was unable to prove proximate causation because there was conflicting information about the cause of her fall. 

Different versions of how the accident happened were in plaintiff’s medical records. The hospital records indicated that plaintiff fell from the fourth step and hurt her ankle, the emergency personnel reported that plaintiff explained that while she was walking down the steps, she tripped and slid down the last four steps.  Last, the triage nurse from the Medical Center commented that she slipped down four stairs.

In the plaintiff’s complaint, she alleged that defendants’ failure to provide adequate lighting and adequate railings caused her to slip and fall down the last 3-4 steps and suffer personal injuries. 

The trial judge found that there was a contradiction between plaintiff’s testimony, the complaint, and her expert as to what caused the accident.  Accordingly, he found that plaintiff was unable to prove proximate causation and dismissed her complaint.

The plaintiff appealed this order for summary judgment, arguing that plaintiff had produced sufficient evidence to present the issue of proximate causation to a jury.  There was also an issue appealed concerning spoliation of evidence because the surveillance video of the accident was not preserved.  However, that issue did not factor into the Appellate Division’s issue on appeal as to whether the summary judgment should have been granted.

The Appellate Division noted that the question of proximate cause “asks whether the actual harm suffered was a reasonable consequence of the defendant’s actual act or omission.”  It would suffice if it is a substantial contributing factor to the harm suffered.  The Appellate Division further noted that proximate cause is “generally a question for the jury.” 

The Court disagreed with the trial court judge’s finding that proximate cause was lacking.  The Appellate Division found that “a reasonable jury could find that additional railing at the end of plaintiff’s fall path could have helped plaintiff prevent or mitigate her injuries.”   Further, the Appellate Division found that “[b]ecause the absence of any railing at the end of the staircase may have contributed to plaintiff’s injuries, the issue of proximate causation should have been left to a jury.”  Hence the Court reversed the trial court judge’s ruling and remanded the matter back for further proceedings. 

Plaintiff’s Negligence Claim Against Casino Security Guard Dismissed Due to Failure to Retain Expert

Plaintiff John Coxe sued Harrah’s, claiming that he suffered injuries as a result of being improperly detained by Harrah’s security team.  He and his girlfriend, Valerie Kloepping, were in the pool area at Harrah’s when his credentials could not be located.  Although they were later located, Plaintiff became belligerent. Eventually, security had to physically restrain and remove him from the pool area.  The issue in Coxe v. Caesars Ent. Corp., 2024 N.J. Super. Unpub. LEXIS 2061 (App. Div. Aug. 29, 2024) was whether the trial court properly dismissed the plaintiff’s negligence claim against Harrah’s due to his failure to retain an expert to establish the standard of care for Harrah’s security guards. 

Plaintiff was a regular patron of Harrah’s for many years.  On the day of their visit, Coxe and his girlfriend went to the resort pool at around 3:00 p.m.  He gave his credentials, which included his driver’s license, room key and Harrah’s reward card, to the bartender to start a tab.  After being at the bar for six hours and consuming many beers, he attempted to close his tab.  The bartender advised plaintiff that his credentials could not be located.  Plaintiff became irate, in part because about one month earlier an unknown person had accessed his hotel room and stole his money.  He was concerned that he had been robbed again, and demanded to speak with a resort supervisor or police.

A Harrah’s security guard responded to the pool area and found plaintiff yelling at the pool manager for 5-10 minutes.  Plaintiff was described as “belligerent, clearly intoxicated and aggressive.”  Security attempted to de-escalate the situation which failed.  Eventually, Coxe’s credentials were located, and they were returned.  However, Coxe did not calm down and Harrah’s security repeatedly asked him to leave the pool now that his credentials had been returned.   Coxe refused and instead continued to argue with the bar staff. 

Harrah’s security guards had to physically restrain him to remove him from the pool area.  They placed him face down on the ground and handcuffed him.  They dragged him to the exit, which friction caused his swimsuit to slip down.  His swimsuit was adjusted, and he was escorted to Harrah’s holding cells.  He was detained there until Atlantic City police responded, at which time he was released and taken to the hospital. 

Coxe then filed suit against Harrah’s under theories of negligence, assault, false arrest and malicious prosecution.   The defendant filed for a summary judgment, which was granted as to the malicious prosecution claim.  The remaining claims proceeded to trial.  At the close of the evidence, but before the jury began to deliberate, Harrah’s moved for a directed verdict as to plaintiff’s negligence claim.  The trial court granted the motion, dismissing the negligence claim.  On the remaining claims of assault and false imprisonment, the jury returned a verdict for defendant and found no cause of action. 

This appeal ensued.  Plaintiff claimed that the trial court should not have granted defendant’s directed verdict motion as to the negligence claim.  Coxe claimed that one of the security guards testified about putting him in an escort hold and Coxe argued that this testimony was inconsistent with de-escalation or reasonable behavior by security. 

However, the Appellate Division found that the trial court did properly grant defendant’s motion.  The Court noted that plaintiff failed to introduce evidence which established a standard of care for Harrah’s security guards.  Further, the Appellate Division noted that there was “no evidence presented at trial from which a jury could infer how a reasonable security guard would act under the circumstances.”

The Court found that there would be no basis for a jury to find that the act of approaching a disorderly patron to remove that person from the premise was negligent conduct.  Further, the Appellate Division pointed out that the plaintiff’s argument that this security guard was unnecessarily aggressive was undermined by his further testimony that his attempted de-escalation had been futile and that plaintiff was intoxicated, belligerent and aggressive and had repeatedly refused requests to leave.

Finally, the Appellate Division rejected the plaintiff’s argument that an expert was not necessary to establish the standard of care because the circumstances in this case are within the ken of the average juror.  The Court rejected that argument and noted that the trial court had previously advised the plaintiff that he may wish to retain an expert to establish the standard of care.  Further, the trial court had advised plaintiff that he was not precluded from questioning the defendant about their policies and their conformance therewith, but the trial court judge did advise the plaintiff that he thought he would need an expert to establish the existence of a duty. 

Thus, the trial court did give plaintiff an opportunity to prove negligence without an expert. However, the plaintiff was unable to establish a duty based upon the testimony at trial.  Therefore, the Appellate Division found that the trial court’s grant of a directed verdict was proper and affirmed the trial court decision, dismissing the negligence claim. 

Expert Needed for Condominium Owner to Recover for Water Damage

Plaintiff, Harrison JC, LLC, a limited liability company, owned Unit 302 in Harrison Bridge Plaza, a 4-story condominium with commercial units on the first floor and residential units on the remaining floors.  Plaintiff Harrison bought the unit in February 2010 and had leased it to various tenants.  The unit experienced water seepage and leakage from the ceiling of its unit on 11 occasions from April 2014 through March 2021.  Plaintiff sued the unit owners above its unit, as well as the condominium association, HB Association, and Patrician Associates Management, the manager of the condominium association for the damage resulting from the leaks.  The issue in Harrison JC, LLC v. Harrison Bridge Plaza Condominium Association, 2024 N.J. Super. Unpub. LEXIS 1895 (App. Div. Aug. 7, 2024) was whether the plaintiff could pursue its claim for property damage from the water seepage and leakage without the retention of an expert.

The units above the plaintiff’s unit were owned by Claudia Santos and Joel Costas, Unit 401, and Ying Zi Zhu, Unit 403.  Per the Master Deed, unit owners’ responsibilities were limited to the interior of the walls, ceilings, and floor surfaces of their units.  The common elements, including roofs, parking lot and lobby, were owned and controlled by HB Association and were managed and maintained by defendant Patrician under a contract.

Plaintiff Harrison filed a lawsuit, claiming that it suffered property damage, loss of rental income, and out of pocket expenses when its unit experienced water seepage and leakage from the ceiling of its unit.  It is undisputed that the leaks happened and that all but the final leak was repaired.  Plaintiff claimed that the leaks originated in either Unit 401, Unit 403, or the common elements of the building.  It sued HB Association based upon negligence and its duty to maintain and repair the common elements of the building.  It sued Patrician based upon a breach of a contractual obligation to maintain and repair the common elements of the building and, last, it sued the unit owners for negligence for creating or failing to repair the leaks in their units that damaged plaintiff’s unit. 

However, plaintiff failed to retain an expert to offer any opinion with respect to the cause or origin of any of the leaks. At the close of discovery, all defendants filed for a summary judgment.  They argued that plaintiff was unable to establish liability without an expert opinion.  Plaintiff, in opposing the motion, argued that an expert opinion was not necessary under the doctrine of res ipsa loquitur.

The trial court granted summary judgment to each of the defendants.  It found that plaintiff was unable to establish liability without an expert report and found the doctrine of res ipsa loquitur did not apply to plaintiff’s claims and that “the jury could not be left to speculate as to the cause and origin of the leaks and whether defendants’ negligence was the cause of damage to plaintiff’s unit.”

This decision was appealed.  Plaintiff argued that the court should have taken judicial notice that water flows downward, and water does not normally come through the ceiling of a residential unit unless there is some defect or negligence in the area above the unit causing the leak and that the doctrine of res ipsa loquitur should have relieved plaintiff of its obligation to produce an expert report to prove negligence as to HB Association and Patrician.

The Appellate Division noted that the doctrine of res ipsa loquitur, if properly evoked, would enable a plaintiff to make out a prima facia case of negligence by allowing for the inference of negligence from undisputed facts.  However, the doctrine would only be applicable where “(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.”  Finally, the doctrine would not be applicable where the injured party fails to exclude other possible causes of the injury.

The Appellate Division agreed with the trial court decision that the doctrine of res ipsa loquitur was inapplicable to the facts of this case.  The Court found that “it is not within the common knowledge of the average juror that the acts of HB Association and Patrician, as the entities with control of the common elements of the building, were more likely than not the cause of the leakage in plaintiff’s unit.”  The Appellate Division found that without expert testimony to opine as to the origin and cause of the leaks, “jurors would be left to speculate as to whether HB Association and Patrician’s conduct negligently caused damage to plaintiff’s property.”  Finally, the Appellate Division noted that the design and maintenance of this condominium and the origin and cause of leaks in the building would not be matters within the ken of the average juror.

Further, the Court found that the plaintiff failed to produce evidence of the location of the leaks in its unit.  The leaks could have derived from the common areas, the units above Plaintiff’s unit, or from plaintiff’s unit as a result of acts by plaintiff’s tenants.  The Court found that expert testimony was necessary to prove that the leaks originated in an area within the exclusive control of HB Association or Patrician.  Without such expert testimony, a jury could not exclude plaintiff or its tenants as the negligent actors in causing the leaks without engaging in speculation.

Thus, the Appellate Division agreed that the doctrine of res ipsa loquitur was inapplicable to the plaintiff’s claim.  Because the plaintiff did not produce an expert report to offer an opinion as to the cause or origin of the leaks, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Landowners Liability Act Bars Claim for Fall in County Park

Plaintiff Andris Arias fell in a hole and was injured while rollerblading on a paved pedestrian pathway in Van Saun County Park in Paramus.  The Park, owned by the County of Bergen, consisted of 130 acres of land.  The issue in Arias v. County of Bergen, 2024 N.J. Super. LEXIS 74 (App. Div. June 14, 2024) was whether the County had immunity under the Landowners Liability Act for this accident.

Under the Landowners Liability Act, certain owners, lessees and occupants of property owe no duty to persons injured while using property for recreational activities and are immune from suit.  N.J.S.A. 2A:42A-3.  This immunity is available to public entities.  The immunity is not available to persons or entities if there is a “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.” 

The plaintiff argued that the County was not entitled to immunity under this Act because the Park was located in a residential, suburban neighborhood and, therefore, did not qualify as “premises” protected by the Act.  The County, however, argued that the focus of the Act was the dominant character of the land and the Park, as a property containing recreational lands, was exactly the type of premises that the Act was created to protect. 

Here, the trial court granted defendant’s motion to dismiss, which order was appealed to the Appellate Division.  The Appellate Division upheld the dismissal of the complaint.  It found that under the “dominant character of the land analysis, it was undisputed that the Park offered the general public access to picnic areas, playgrounds, pavilions, athletic fields, wooded areas, bicycling and wooded paths, and the dog park – without charging a fee.”

The Court noted that the Park’s “dominant character as an open space for sport and recreational activities renders the Park the type of property entitled to protection” under the Landowners Liability Act.  Thus, it agreed with the trial court judge that the Park was a “premises” as defined by the Act and that the County was entitled to Landowners Liability Act immunity from this accident.  The Appellate Division also agreed that the motion was not premature and affirmed the trial court decision, dismissing the lawsuit. 

Appellate Division Finds Coverage Under Loading and Unloading Doctrine for Donut Shop Sued in Serving Customer Hot Tea Through Drive Through Window

By: Victoria M. Adeleke, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Plaintiffs Bridgewater Donuts, LLC and Tamar, Inc. filed a lawsuit against defendant Geico Indemnity Co. seeking coverage under an automobile liability policy issued to Susan Mendelsohn-Hall. Mendelsohn-Hall alleged she suffered injuries when hot tea spilled on her at the Dunkin’ Donuts drive-through, leading to a lawsuit against Plaintiffs. Plaintiffs then sought coverage under Mendelsohn-Hall’s auto policy issued by Geico, invoking the “loading and unloading” doctrine. However, Geico denied coverage, prompting this legal dispute. The issue in Bridgewater Donuts, LLC v. Geico Indemnity Co., 2024 N.J. Super. Unpub. LEXIS 1505 (App. Div.  July 9, 2024) was whether Plaintiffs qualified as additional insured under Mendelsohn-Hall’s auto policy under the loading and unloading doctrine.

Mendelsohn-Hall had a New Jersey Family Automobile Insurance policy that provided coverage for bodily injury sustained by a person arising out of the ownership, maintenance or use of the automobile. The policy defined the persons insured to include Mendelsohn-Hall and any other person using the auto with her permission.

On the day of the accident, Mendelsohn alleged she was scalded by hot tea as it was delivered to her at the drive thru window by plaintiffs’ employees and that her injuries were proximately caused by plaintiffs’ negligence.  

Plaintiffs filed a complaint against Defendant Geico, seeking a declaratory judgment that they were additional insureds under Mendelsohn-Hall’s policy. Defendant moved for summary judgment, arguing plaintiffs had not been using Mendelsohn-Hall’s vehicle when she sustained her injuries and, therefore, were not additionally insured as users of the automobile. The trial court granted Geico’s motion for summary judgment and dismissed Plaintiffs’ complaint. The trial court determined that Plaintiffs did not qualify as additional insureds under Mendelsohn-Hall’s auto policy because her injuries were not directly attributable to the loading of the tea by plaintiffs into her vehicle.

The Appellate Division reversed. The appellate court first explained that N.J.S.A. 39:6A-3 requires that automobile owners have auto insurance that covers loss arising out of the ownership, maintenance, operation and use of an automobile. The Court then explained that unloading and loading had always been a verified use of the vehicle under the statute, and implicit in this requirement is the obligation to provide omnibus liability coverage to all persons who use the named insured vehicle by participating in its loading or unloading.

The Appellate Division relied on the N.J. Supreme Court case of Penn Nat’l Ins. Co. v. Costa, where the Court found that to determine whether an injury arises out of the use of a motor vehicle thereby triggering coverage, that there must be a substantial nexus between the injury suffered and the asserted negligent use of the motor vehicle. Use of a motor vehicle has been interpreted broadly to include the acts of loading and unloading the automobile.

The Appellate Division found that in Bridgewater Donuts, LLC, the record supported a finding of the requisite substantial nexus. The Appellate Division pointed to the undisputed fact that plaintiffs’ drive-up window was available to customers to purchase and pick up their items and load the items into their car. Plaintiffs’ employee loading the hot tea she had purchased into her vehicle was integral to the completion of the transaction between Mendelsohn-Hall and plaintiffs. Therefore, the Court determined her injuries bore a substantial and not incidental nexus to Plaintiffs’ alleged negligent use during the loading process under her automobile policy.

Thus, the Court reversed the trial court’s order granting summary judgment to defendant Geico and denying Plaintiffs’ motion for summary judgment and remanded the case back to the trial court for further proceedings.

New Jersey Supreme Court Imposes Duty Upon Owner of Vacant Commercial Lot to Maintain the Public Sidewalk Abutting the Property

Plaintiff Alejandra Padilla allegedly tripped, fell, and suffered injuries on the sidewalk that abutted the vacant commercial lot in Camden owned by the defendants Young Il An and Myo Soon An.  This property had been purchased more than 25 years previously but no building was ever constructed.  The issue in Padilla v. Il An, 2024 N.J. LEXIS 575 (June 13, 2024) before the Supreme Court was whether the owner of a vacant commercial lot had a common law duty to maintain the abutting public sidewalk in reasonably good condition.

On September 11, 2019, plaintiff allegedly was injured while walking on the public sidewalk abutting the vacant commercial lot located on Westfield Avenue in Camden, New Jersey that was owned by the defendants.  According to her deposition, plaintiff suffered several injuries from the fall, including a broken foot and injured arm, and underwent surgery for her injuries.  She claims to suffer continuing symptoms, including migraines, pain, and memory loss.

The lot abutting this public sidewalk had been owned by the defendants 27 years before plaintiff’s fall.  According to defendant Young Il An, they bought the lot intending to construct a building there but due to economic conditions, they gave up that plan.  They also did not purchase liability insurance to cover the lot because, according to the defendant, insurance companies did not really want to insure it.  After the fall, the defendants did have the sidewalk abutting the subject lot repaired. 

Plaintiff sued defendants based upon their alleged negligence in failing to reasonably maintain the sidewalk abutting the subject lot.  At the trial court level, the defendants were successful in obtaining a summary judgment dismissal.  The trial court held that the defendants did not owe a duty of care to plaintiff, relying on the Appellate Division’s decision in Abraham v. Gupta.  In the Abraham case, the Appellate Division held that “the liability imposed on commercial property owners to reasonably maintain abutting sidewalks does not apply to sidewalks abutting vacant lots.”  The trial court’s rationale was that the defendants did not have a duty to maintain the sidewalk because it abutted a vacant lot that was not generating any income.

This summary judgment dismissal in the Padilla case was appealed to the Appellate Division, which affirmed the trial court’s judgment.  The Appellate Division ruled that Abraham remained good law as applied to the subject lot and declined to impose any duty upon the defendant vacant lot property owner to maintain the abutting sidewalk in a safe condition.

Plaintiff filed a petition for certification on the issue of whether owners of vacant commercial lots owe a duty of care to pedestrians to reasonably maintain the sidewalks abutting those lots.  The New Jersey Supreme Court granted the plaintiff’s petition, bringing this issue before the Supreme Court.

Plaintiff urged the Supreme Court to reverse the Appellate Division’s decision, contending that the Abraham case should be reversed.  Plaintiff contended that the Stewart v. 104 Wallace Street, Inc. case which imposed a duty of care upon commercial properties, as opposed to residential properties, to maintain the abutting public sidewalk, did not distinguish among types of commercial properties or consider whether those properties had active businesses on them.  Plaintiff further argued that imposing a duty of care would be fair because the subject lot was capable of generating income. 

The Supreme Court noted that in the four decades since the Stewart case, the New Jersey courts “have adhered to the rule imposing liability on commercial landowners.”  The issue in this case was whether that liability should be extended to commercial landowners of vacant lots.  The Court adopted a bright-line test, concluding that a duty should be imposed on owners of vacant commercial lots to maintain the abutting sidewalks in reasonably good condition.

The Court noted that there would be “something profoundly unfair about commercial property owners purchasing vacant lots and having no responsibility whatsoever from maintaining the area where the general public traverses.”   Hence, the Court ruled that all commercial landowners, including owners of vacant commercial lots “must maintain the public sidewalks abutting their property in reasonably good condition and can be held liable to pedestrians injured as a result of their negligent failure to do so.”

The Court explained that once “an individual or an entity purchases a lot in a commercially zoned area, meaning the only use to which that land can be put as commercial, the purchaser has begun a commercial endeavor and intends to make money.”  The Supreme Court rejected any type of profitability test to determine whether a duty should be imposed upon a commercial landowner, finding that profitability would be a difficult task to determine.  Thus, it found that a bright-line rule that commercial property owners owe a duty “is the most workable rule to protect the general public and ensure consistency in our courts.” 

Accordingly, the Supreme Court reversed the Appellate Division’s decision, which had affirmed the trial court’s order granting summary judgment to the defendant property owners and remanded the case back to the trial court for further proceedings.

Experienced Trucking Employee Permitted to Offer Lay Opinion on Standard of Care for Transporting a Sealed Container of Food-Grade Substance

Plaintiff Mecca & Sons Trucking Corp. sued J.B. Hunt Transport, Inc. over a shipment it claimed was damaged while in the possession of J.B. Hunt.  Because the seal on the food-grade shipment was broken, the customer had rejected the shipment.  The issue in Mecca & Sons Trucking Corp. v. J.B. Hunt Transp., Inc., 2024 N.J. Super. Unpub. LEXIS 990 (App. Div. May 30, 2024) was whether Mecca’s employee of 40 years could offer an opinion on the standard of care for transporting a sealed container of a food-grade substance across the country.

Mecca had been hired by ADM Logistics to transport and deliver 20 sacks of Fibersol, which is a soluble dietary fiber used in foods, drinks, and supplements, in a sealed container from New Jersey to Illinois.  The sacks of Fibersol were made of polyurethane and tied at the top so the Fibersol would not fall out.  Further, the Fibersol was packed inside a shipping container sealed with an exterior lock.  The seal has a specific lock to stop unauthorized personnel from accessing the load and attached to the seal is a number that corresponds to a pickup number.  Mecca’s employee testified that “seals are common in the industry and are not to be broken under any circumstances by another other than the receiver at the time of delivery, and if the seal is broken, the load was tampered with.”

When the defendant J.B. Hunt took possession of the shipment it received, it received a bill of lading and acknowledged receipt of the shipment at the point of origin in good order.  The bill of lading referenced the seal number.   J.B. Hunt transported the sealed container via train from New Jersey to Landers, Illinois where it arrived still sealed.  An inspection of the container in Landers showed that the seal remained intact.  The container remained in J.B. Hunt’s possession for 4-5 days in its yard in Landers before another entity who was not a party, F&S Logistics, attempted to deliver the shipment to its final destination.

When the container arrived at its final destination, the customer, Parke Toll, rejected the delivery because the container seal was broken, although none of the 20 sacks of Fibersol were examined or determined to have been opened or compromised, nor were their contents tested for damage or adulteration.  Although the bill of lading did not contain express language that the seal must be intact upon delivery, according to the customer, it was its policy, as an entity that deals with food products to attempt to always maintain a good seal record and reject shipments that arrive with a broken seal.  Therefore, the truck was resealed and returned to defendant’s truck yard.  The entire shipment of Fibersol was deemed unusable and eventually destroyed. 

Plaintiff Mecca filed a claim with J.B. Hunt’s cargo claims office “for product integrity compromised” due to the broken seal on the shipment which had precipitated a complete loss of the Fibersol.  J.B. Hunt denied the claim. 

Mecca filed this lawsuit against J.B. Hunt, claiming breach of contract and negligence for the cargo loss and damage.  At the trial court level, J.B. Hunt filed for a summary judgment and the contract claim was dismissed but the negligence claim was not dismissed. 

The trial court found that the negligence claim was based upon J.B. Hunt’s failure to deliver the Fibersol with an intact seal.  Further, the trial court noted that the record contained evidence indicating that if the seal was broken upon delivery, that goes against the industry standard. 

To establish the industry standard, plaintiff Mecca presented the testimony of its employee Andre Zielinski with 40 years’ experience in the industry to establish the requisite standard of care.  He testified that the seal was a lock and you place a specific lock on a load from stopping an unauthorized personnel to enter into the load.  The seal is common in the industry and, if it is broken, that means the load was tampered with.  At that point, the receiver can choose to either accept the load or refuse the load because it is not intact.  His opinion was based upon his many years in the shipping industry in which he worked as a traffic manager or variations of that title.

On the eve of trial, the defendant made a motion in limine to bar Zielinski’s deposition testimony on the standard of care because he had not been named as an expert witness.  The court granted that motion, ruling that he could not provide an opinion on the standard of care because plaintiff had failed to name him as an expert.  However, the court ruled that Zielinski could testify as a fact witness based on his personal observations about the seal.

The matter proceeded to a bench trial and the court did find that the seal was intact when that Fibersol arrived in Landers.  It further found that, while the container was in the defendant’s yard for 4-5 days, the seal had been broken by a J.B. Hunt driver prior to the receipt of the delivery to the customer. 

However, the court found that the negligence claim was predicated on a standard of care owed by J.B. Hunt as a transport company, which standard was too complex to be determined without expert testimony.  The trial court judge found that plaintiff was required to establish the appropriate standard of care through an expert. Because the plaintiff had failed to establish the standard of care owed by J.B. Hunt, the Court dismissed the complaint.

This appeal ensued.  Plaintiff argued that the trial court made a mistake in prohibiting its longtime employee, with his many years of experience in the shipping industry, from opining on the standard of care.  Further, plaintiff argued that the trial court made a mistake by determining expert proof was required to establish damages.  The Appellate Division agreed with both of these arguments. 

Initially, the Court noted as follows: “A trial court’s decision to admit or exclude evidence generally is entitled to deference absent a showing that the court abused its discretion such that the decision was so wide off the mark as to constitute a manifest in justice.”

Further, the Appellate Division stated that the courts “have required expert testimony to establish the standard of care in negligence actions or the underlying facts concern scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue.”  Under the lay opinion evidence rule, N.J.R.E. 701, “a party to an action with expertise gained through such personal experience may express an opinion of the sort ordinarily provided by an expert.”

The Appellate Division noted that Zielinski’s testimony was admitted by the court but that the trial court did not accept it to establish the appropriate standard of care.  The Court found that this decision was an error by the trial court.  Because Zielinski’s undisputed testimony that he had been in the shipping industry for about 40 years, had been an employee by a few companies, mostly major freight forwarding companies, where he worked as a traffic manager or the like, his testimony about the seal was based on facts known to him in his professional role as plaintiff’s employee.  Because of his extensive professional experience and personal knowledge about the facts of the case, the Appellate Division found that Zielinski was qualified to opine on the requisite standard of care on this negligence claim.  Further, the Court found that Zielinski was not required to be designated as an expert witness or to prepare a report to testify as to the standard of care.

Accordingly, the Appellate Division remanded the matter back to the trial court for reconsideration of the trial evidence consistent with its opinion.

Personal Injury Claim Resulting From Fall on Snow and Ice Barred by Ongoing Storm Rule

Plaintiff Joseph Devaney was working as a security guard for G4S at facilities owned by defendant Chemours Company.  On the day of the accident, there was a winter storm with light snow, sleet, and freezing rain.  During the course of plaintiff’s inspection of the premises, he slipped and fell, suffering injuries.  The issue in Devaney v. Chemours Co. FC, LLC, 2024 N.J. Super. Unpub. LEXIS 776 (App. Div. May 2, 2024) was whether the ongoing storm doctrine decided by the New Jersey Supreme Court after the date of his fall applied to bar his claim.

As a security guard, plaintiff’s responsibilities including inspecting  incoming and outgoing cars at Chemours entrance and exit.  He would walk through the doorway to conduct his inspection.  Four days before his fall, there was a winter storm that resulted in less than 4 inches of snow.  On the day of the accident, January 8, 2018, there was a winter storm that began around 2:00 p.m. and did not end until around 9:30 p.m.  When Chemours became aware of the icy conditions, they contacted their snow contractor and alerted their security guards.

Plaintiff’s shift began around 6:00 p.m.  At around 8:30 p.m., while walking his usual path, he slipped and fell on the asphalt into the doorway between the areas he was inspecting.  He suffered injuries as a result of his fall.

At the trial court level, the defendant landowner Chemours filed a motion for summary judgment, relying upon the case of Pareja v. Princeton International, which was granted.   In Pareja, the Supreme Court adopted the ongoing storm rule which held that commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.  Based upon the adoption of this rule, it “relieved commercial landowners of the duty to continuously clear snow and ice from their property throughout the duration of an inclement winter weather event.”

Based upon those circumstances of this accident, it was undisputed that plaintiff’s slip and fall occurred during the snowstorm.  Accordingly, the Court found that the ongoing snowstorm rule applied and it relieved the defendant of any duty of care it may have owed plaintiff.

Plaintiff argued that the ongoing storm rule should not have been applied retroactively to accidents that occurred prior to the adoption of the rule.  Plaintiff argued that contradicted “the negligence jurisprudence that provides individuals recourse if they are seriously injured due to a defective sidewalk.”  The trial court judge rejected that argument. 

The Appellate Division found that the trial court correctly rejected the argument because there was nothing in Pareja which required prospective application only.  In fact, in Pareja, the Court applied the “newly rendered ongoing storm doctrine” to a 2015 slip and fall that had occurred during an ongoing storm.

The plaintiff also argued that the rule should not be extended to include sidewalks of “highly secured, restricted – access industrial facilities such as Chemours.”  The Appellate Division also rejected that argument, finding that Pareja rejected the distinction between public and private ownership, to ensure uniformity.  It declined to draw arbitrary lines for the type of property that fall under Pareja.  Hence, it found that there was no reason to limit Pareja’s application to exclude facilities such as Chemours.

Based upon Pareja, remediation was only required within a reasonable period of time after the storm had ended.  Thus, liability did not attach to the defendant landowner until after the storm ended, which in this case was about 9:00 p.m., well after the plaintiff fell.

Therefore, the Appellate Division was satisfied that the trial court correctly considered the entire record and found that the ongoing storm rule barred plaintiff’s negligence claim against defendant as a matter of law.  Therefore, the trial court decision was affirmed, which dismissed the lawsuit.

Plaintiff’s Personal Injury Claim Dismissed Due to Lack of Expert Report As to Causation

The decedent Alice Trainor fell while attending the defendant’s adult day health care services.  The 89-year-old Alice fell while walking towards the bathroom at the defendant’s facility, suffered injuries, and ultimately passed away.  The issue in Estate of Alice Trainor v. Active Day of Brick, 2024 N.J. Super. Unpub. LEXIS 552 (App. Div. Apr. 3, 2024) was whether the plaintiff was required to provide expert testimony as to the causation of Alice’s injuries to be able to pursue a claim for personal injuries.

The decedent, Alice Trainor, with vascular dementia, was attending adult day health care services at defendant’s Active Day of Brick’s facility.  She began walking towards the bathroom at the facility when another participant in the program attempted to help her.  However, defendant’s activities manager, Kellie Piaskowski, intervened and proceeded to assist Alice towards the bathroom.  She was attempting to guide her there.  Alice was shuffling her feet somewhat and tripped over her feet.  Alice fell flat down to the floor and banged her face.  She was taken by ambulance and treated for her injuries.  A few weeks later, she was found unresponsive, and her condition deteriorated.  She ultimately passed away within two months after the incident.

Her Estate filed a lawsuit against the facility, arguing that the defendant facility had a duty to provide Alice with a safe environment but failed to do so.  The defendant moved for a summary judgment, arguing that the plaintiff’s claims failed because plaintiff did not have a medical expert to support plaintiff’s case.  The trial judge agreed with that argument, finding that plaintiffs had not provided an expert medical opinion asserting a causal relationship between the alleged negligence and the injuries Alice suffered. The judge granted the motion, dismissing the case and this appeal ensued.

Plaintiffs argued that there was a State mandated ratio of 9-1 (patient to staff ratio) and that Medicaid required a ratio of 5-1.  However, the defendant maintained a 30-1 ratio of patients to staff.  Plaintiffs argued that, because of the extreme imbalance between patients and caregivers, the finder of fact could rely on the theory of res ipsa loquitur to infer defendant’s lack of due care and, hence, negligence.  The trial judge had rejected this theory, stating that “under any stretch of the imagination,” this was not a res ipsa loquitor case.

Plaintiffs argued upon appeal that the medical causation was not in question and the jury does not need an expert to determine whether defendants’ 30-1 patient to staff ratio was a gross deviation from the standard of care.  The Appellate Division rejected that argument.

The Appellate Division noted that the doctrine of res ipsa loquitur, if applied, would allow a finder of fact “to infer with the defendant’s lack of due care only when three elements of the doctrine had been satisfied:

a)         The occurrence itself ordinarily speaks negligence;

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

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

The Court noted that to satisfy this res ipsa loquitur standard, “plaintiffs would need to demonstrate that an 89-year-old falling while being assisted by a caregiver ‘itself ordinarily bespeaks negligence’; the environment was in ‘defendant’s exclusive control’; and ‘there was no indication in the circumstances that the injury was the result of [Alice]’s own voluntary act or neglect.’”  The Appellate Division found that the plaintiff was not able to satisfy any of these elements. 

Further, the Court explained that res ipsa loquitur only fills in a gap in plaintiff’s negligence claim with the respect to a breach of duty of care and not as to the causal relationship between a breach and the injury suffered.  The causal relationship is what the trial judge found was missing.  The Appellate Division noted that the jury would have no means of judging whether defendant’s purported short staffing or the staff member who helped Alice was the proximate cause of Alice’s injuries.

The appeals court agreed with the trial court’s conclusion that “a lay jury is insufficiently knowledgeable of the specifics of elder care and assistance to competently determine whether any purported short-staffing or Piaskowski’s helping Alice to the bathroom was the cause of Alice’s injuries.”  Thus, the Appellate Division affirmed the trial judge’s decision that, lacking expert testimony to that effect, the defendant must prevail as a matter of law. 

Plaintiff’s Personal Injury Lawsuit Dismissed Due to Her Failure to Identify the Condition That Caused Her Accident

Plaintiff Artherine Price was at the Quaker Bridge Mall on May 10, 2018, when she twisted her ankle in the parking lot of the Mall.  She claims that she fell in the crosswalk while walking from her parked car to enter the store and sued the Mall defendants for her injuries.  The issue in Price v. Quaker Bridge Mall, LLC., 2024 N.J. Super. Unpub. LEXIS 591 (App. Div. April 10, 2024) was whether the plaintiff’s claim should be dismissed due to her failure to identify the exact cause of her injury.

Plaintiff testified that her ankle twisted, and she almost fell as she was in the crosswalk.  She could not identify the exact location of where the incident occurred within the crosswalk.  She also testified that she never saw anything in the crosswalk, before or after the incident that caused her to twist her ankle.  Even after the incident, when she returned to the crosswalk with the security guard, she was unable to point to the specific spot where the incident occurred.  The best she could state was that the incident occurred in an area where the pavement was cracked.  Hence, she believed that the cracked or broken pavement caused her to twist her ankle.

The Mall defendants filed for a summary judgment dismissal based upon the plaintiff’s deposition testimony.  The trial court judge found that there was no dispute that plaintiff was injured in the Mall’s parking lot.  However, the issue was that plaintiff could not establish causation.  Even when she went to the location a few days later and took photographs, she was unable to identify any particular cause.  Because the mere happening of an accident was insufficient to establish negligence, the trial court judge granted defendants’ summary judgment motion.

The plaintiff appealed that decision to the Appellate Division.

Upon appeal, Plaintiff acknowledged that her deposition testimony had inconsistencies regarding causation and that a jury could conclude at trial that such inconsistencies adversely affected her credibility.  Plaintiff argued that they did not provide a basis for the trial court judge to disregard her testimony and grant defendant’s summary judgment.

The Appellate Division noted that proximate causation is a basic element of tort law.  The court stated that “[to] establish causation a plaintiff must prove the defendant’s act or omission was both the factual and proximate cause of his or her injury.”  It would be the factual cause if, but for the event, the injury probably would not have happened.

Here, the Appellate Division was convinced that defendants were entitled to a judgment as a matter of law.  The Court noted “that [t]he judge’s factual findings were supported by substantial evidence in the record and reveal there is no dispute of fact regarding causation.”  The Court further pointed out that plaintiff was unable to establish that “but for” defendants’ actions or omission she would not have twisted her ankle because she cannot establish what condition caused her to twist her ankle. 

Accordingly, the Appellate Division found that she failed to make a showing sufficient to establish causation, which is an essential element of her case.  Therefore, the Court agreed that defendants were entitled to summary judgment and affirmed the trial court decision, dismissing her lawsuit. 

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