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Appellate Division Reverses and Remands No-Cause Verdict for Auto Negligence Claim Following Inadmissible Cross-Examination

By: Eric Richwine, Law Clerk
Edited by: Betsy G. Ramos, Esq.

The issue before the New Jersey Appellate Division in Rodriguez v. Cano, No. A-1561-21, 2023 N.J. Super. Unpub. LEXIS 1733 (App. Div. Oct. 12, 2023) was whether plaintiff Lenny Rodriguez (“Rodriguez”) was denied a fair trial following a no-cause verdict in a damages-only auto negligence case in favor of defendant-driver Stephanie Cano.  Plaintiff contended that defense counsel went too far in cross-examining Plaintiff’s treating physician about a fraudulent medical services action pending against the physician.

In the trial court proceedings, Defendant Cano did not contest liability; rather, the sole issue for the jury to determine was the amount of damages to be awarded to Rodriguez. During trial, Rodriguez’s treating physician testified to his injuries following the accident. The defense counsel soon after cross-examined the physician, focusing on the fact that a major insurance company had a pending fraudulent medical services action against him. During this cross-examination, the defense counsel also noted that Mr. Rodriguez’s treatment was explicitly included in the insurance fraud complaint to provide an example of the physician’s fraud. The defense counsel reasoned that this line of questioning was for the purpose of establishing the physician’s credibility.

The trial court judge realized only after the cross-examination that this line of questioning, which ultimately implied that Rodriguez’s treatment was unnecessary (or even fraudulent), was inadmissible, and, as such, the court instructed the jurors to disregard the testimony. The judge also allowed Rodriguez’s counsel to engage in re-direct to provide the physician the opportunity to rebut and elaborate on the defense counsel’s accusations. During re-direct, Rodriguez’s physician became irate and made several allegations against the insurer for false allegations and bad faith.

Plaintiff’s Rodriguez’s counsel moved for a mistrial, which the trial court denied. The jury returned a no-cause verdict. Rodriguez’s counsel then moved for a new trial, which the trial court also denied. The judge reasoned that any errors were “harmless.” The judge further reasoned that the jury surely “didn’t consider the evidence that I told them … to disregard,” citing the amount of time the jury took to deliberate; because the jury “didn’t come back in five minutes,” the judge purported that the jury did not think of Mr. Rodriguez and the physician as “criminals” or “fraudsters.” Plaintiff Rodriguez appealed.

The Appellate Division first addressed the defense’s cross-examination of the physician and the timing of the trial court judge’s instruction to the jury to disregard the testimony. The Court cited Rule 608 of the New Jersey Rules of Evidence, which prohibits the use of specific instances of conduct through cross-examination in a civil action to attack a witness’s character for truthfulness. The Court quickly determined that defense counsel’s line of questioning was “patently improper” per Rule 608 and that the trial court’s verdict “cannot stand.”

The Court found that, despite the defense counsel’s purported reason for its cross-examination questioning, it was inadmissible and ergo the trial court did correctly instruct the jury to disregard the testimony. The Court further noted that, although the trial court was well-intentioned in allowing the physician the opportunity for re-direct following the defense counsel’s ambush, this decision was ultimately misguided and backfired, as evidenced by the physician’s outburst.

Stating that “the prejudice to [Mr. Rodriguez] … cannot be overstated,” the Appellate Division ultimately determined that the trial court’s denial of Mr. Rodriguez’s mistrial motion and motion for a new trial was improper; as such, the Court held that Plaintiff was denied a fair trial and reversed the trial court’s decisions and remanded the matter back to the trial court for further proceedings.

Casino Had No Duty to Protect Patron From Theft of Money Kept in Shopping Bag

Plaintiff, Sridhar Jayaraman, was a guest at Caesar’s Hotel and Casino in Atlantic City for a six-night stay.  While sitting at the bar with his girlfriend, he had with him a black plastic shopping bag, allegedly containing $120,000 in cash.  After he stepped away from the bar, an unknown male later identified as Frederick Exume (“Exume”), approached Plaintiff’s girlfriend, made conversation with her and stole the bag with the money.  The issue in the federal court case, Jayaraman v. Boardwalk Regency, LLC., 2023 U.S. Dist. LEXIS 173841 (D.N.J. Sept. 28, 2023), was whether the casino breached any duty owed to Plaintiff to protect him from the theft of his money.

The incident happened during the early hours of February 8, 2022, when Plaintiff and his girlfriend arrived at the Toga Bar at the Defendant Boardwalk for a night cap.  Plaintiff, while sitting at the bar with his girlfriend had a black plastic shopping bag which allegedly contained $120,000 in cash.  He put the bag on a chair at a high-top table across from his girlfriend and stepped away.  Plaintiff, however, did not advise his girlfriend to watch the bag as he stepped away.

After he stepped away from the table, Exume approached Plaintiff’s girlfriend to make conversation with her.  After conversing with her, he reached under the table, extracting the bag without her detection, and then exited the casino.  Upon returning from the restroom, Plaintiff noticed the bag was missing and contacted Boardwalk Security.

Boardwalk Security investigated the incident and identified Exume through video surveillance as the individual that stole the bag.  The casino was familiar with Exume because two days previously, Exume was ejected from the casino for public urination and permanently barred by Boardwalk from its premises.  However, Boardwalk first learned that Exume was back on its premises only after Plaintiff reported the incident to the casino security and the casino security officers watched the theft on video surveillance.

Two days prior to the incident, Plaintiff had been approached by the casino security and advised not to carry large sums of money on his person in a shopping bag.  Security then escorted Plaintiff to his hotel room so that he could store his money in the safe provided in his room.

The defendant casino filed a motion for summary judgment, arguing that it breached no duty owed to Plaintiff and the case should be dismissed. In reviewing the arguments submitted in support of the defendant casino’s motion for summary judgment, the District Court noted that the existence of scope of a duty of care are legal issues to be determined by the court.  The Court noted that Boardwalk owed Plaintiff a duty of care to maintain safe premises.  That general duty included a duty to protect patrons from foreseeable criminal acts of third parties occurring in their premises. 

Boardwalk argued that it did not owe Plaintiff a duty to protect him from Exume’s conduct because it did not know or have reason to know that Exume would steal Plaintiff’s property.  Plaintiff, on the other hand, argued that Boardwalk owed Plaintiff a duty to protect him from the foreseeable criminal acts of others, such as Exume’s.  He contended that it was foreseeable that a theft of property would occur on the floor of a busy Atlantic City casino.  Further, Plaintiff argued that it was reasonably foreseeable that a person permanently banned from a casino – no matter the reason – but later re-entered would commit the crime of theft.

However, the District Court noted that a foreseeability analysis would have to be conducted.  The Court noted that, under the law, a defendant business “should reasonably anticipate careless or criminal contact on the part of third persons . . . and may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” 

With this duty in mind, even if the Court assumed that Exume’s theft of the money was foreseeable third-party criminal conduct and, thus, a duty should be imposed, which the Court did not decide, “Plaintiff must still provide some evidence that Boardwalk breached its duty to either; “(1) provide sufficient security services to afford Plaintiff reasonable protection from Exume’s conduct; or (2) take reasonable precautions to protect against Exume’s criminal conduct.”  The District Court found that the record contained no evidence to show either theory of a breach.

The Court noted that Plaintiff’s only argument for how Boardwalk breached its duty of care was that it should have enforced its ban of Exume from the premises.  However, the District Court found no evidence suggesting that Boardwalk failed to provide security services, or it otherwise failed to take reasonable measures to protect Plaintiff from Exume’s conduct. 

The Court noted that the casino security had warned Plaintiff to not carry large sums of money on his person in a shopping bag.  Further, that security escorted Plaintiff to his hotel room to store the money in a safe.  Thus, based upon this evidence, Boardwalk did maintain security services that were cognizant of the risk to a patron carrying large sums of money in an unsecured bag and took precautions against future thefts by advising Plaintiff to keep his winnings in a safe provided by Boardwalk.

Further, the Court found that Plaintiff did not provide evidence that Boardwalk failed to take reasonable precautions to enforce its ban of Exume. Boardwalk was not under a duty to stop any and all criminal conduct from occurring.  Rather, a business owner only had a duty to take precautions against criminal conduct that was foreseeable to the business owner.

Here, Plaintiff provided no evidence that Boardwalk or its security services failed to take reasonable steps to prevent Exume from entering the premises or that it failed to take reasonable steps to prevent the theft from occurring.  Plaintiff offered no suggestions for what more Boardwalk could have done to ensure Exume did not enter the premises after being banned.  Further, the Court noted that there was no evidence that Boardwalk knew Exume was on the premises but failed to remove him or that Exume did anything that reasonably should have apprised Boardwalk’s security of Exume’s presence. 

Thus, the District Court found that there was no genuine dispute of material fact as to a breach in this matter because of Plaintiff’s failure to provide evidence to suggest Boardwalk breached its alleged duty owed to Plaintiff.  Thus, the Court found that even if Boardwalk owed Plaintiff a duty, its motion for summary judgment must be granted because there was no evidence to establish Boardwalk breached that duty.  Therefore, the Plaintiff’s complaint was dismissed. 

How Is Comparative Negligence Law Applied Under New Jersey Law?

Under New Jersey law, N.J.S.A. 2A:15-5.1 (the Comparative Negligence Act), for a lawsuit based upon negligence claims, juries are allowed to apportion fault for an accident to multiple parties and assign liability in terms of a percentage of fault to each party. What happens if a plaintiff is assessed a percentage of fault for the accident? As long as a plaintiff is not determined to be more than 50% at fault, the plaintiff can recover damages for their injuries but at a reduced amount based upon their percentage of fault.

If the jury determines that both the defendant (or defendants) as well as the plaintiff, are liable for the accident, it must assess each party’s responsibility, which has to add up to 100%. (N.J.S.A. 2A:15-2). If a plaintiff is determined to be no more than 50% at fault, any monetary award made by a jury in favor of the plaintiff would be reduced by that percentage assessed against the plaintiff.  As an example, if the jury found that both the plaintiff and the defendant were each 50% liable and awarded the plaintiff $100,000 in damages, the verdict would be molded so that the plaintiff’s net recovery would be $50,000. Using this same example, however, if the plaintiff is assessed to be 51% negligent, the plaintiff would recover $0 in damages.

So what happens if there is more than one defendant and each defendant is assessed a portion of fault? From whom can the plaintiff collect? Under N.J.S.A. 2A:15-3, a plaintiff can only recover the percent damage award assessed against that defendant – unless the defendant is found to be at least 60% at fault. Using my example above, if there are two defendants (and assuming no comparative negligence is assessed against the plaintiff) and each defendant is found to be 50% responsible for the accident, then the plaintiff can only recover 50% of the award from each defendant ($50,000 each). However, if liability is assessed 60% against one of defendant and 40% against the other defendant, then the plaintiff can proceed to collect the entire $100,000 award against the defendant who was found to be 60% negligent.

There is an exception to this rule for public entities (i.e., municipalities, counties, public boards, and the State). Negligence claims against public entities are governed by the New Jersey Tort Claims Act (N.J.S.A. 59:1, et seq.) According to N.J.S.A. 59:9-3.1, public entities shall be liable for no more than their share of damages equal to the percentage of the negligence attributable to that entity. Hence, regardless of the percentage of liability assessed against a public entity for negligence in causing or contributing to an accident, a plaintiff is limited to collecting only that percentage of fault assessed against that entity.

Now what happens when a plaintiff does collect the whole award from one defendant because one of the defendants is found to be at least 60%? That’s when contribution rights can kick in. With the filing of their answer, defendants can assert a cross-claim for contribution and/or indemnification pursuant to Rule 4:7-5. Actually, defendants have 90 days after service upon the complaint upon them or upon the party against whom the cross-claim is asserted, whichever is later, to file a cross-claim against that defendant. After that time period, the defendant would have to file a motion and ask the court for permission to file the cross-claim. If a defendant does end up paying more than its “share,” it can try to pursue the co-defendant for that defendant’s percentage of fault assessed against the co-defendant.

Newark Police Officers Immune from Tort Liability for Injuries that Occurred During a Vehicle Pursuit

By: Ruhani K. Aulakh, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Priscilla Godoy was standing in between two parked cars in a line of several cars on May 5, 2018.  As she was standing in between these cars, a Jeep Cherokee involved in a police chase crashed into a parked car several feet away from Godoy.  The crash caused all the parked cars to collide, crushing Godoy.  As a result of this collision, Godoy sustained fatal injuries.  The issues in Godoy v. Washington, 2023 N.J. Super. Unpub. LEXIS 1170 (App. Div. July 13, 2023) were whether the police officers pursuing the Cherokee were negligent and reckless in their pursuit and whether the police officers engaged in willful misconduct in the apprehension of the Cherokee.

On May 5, 2018, defendant police officers Paul Hamilton and Vanessa Lorenzo were on duty in Newark.  The officers spotted a Jeep Cherokee that was stolen during an armed carjacking earlier that night for which the Newark Police Department had issued a Be on the Lookout Order (“BOLO”).  Hamilton and Lorenzo attempted to stop the car; however, the Cherokee did not stop, so the defendants began a pursuit with Hamilton driving. 

During the pursuit, the police officer’s vehicle traveled at around forty-five miles per hour, while the Cherokee traveled at approximately fifty-five miles per hour.  The pursuit was monitored by a Communications Division Officer and a field supervisor; however, officers Hamilton and Lorenzo did not inform their supervisor of the speed of the Cherokee.

The pursuit lasted approximately ninety-five seconds.  After sixty seconds, the driver of the Cherokee veered off road into a park where the driver went over a speed bump and lost control of the vehicle.  This caused a chain reaction which involved three additional vehicles, pinning Godoy between two of these vehicles.  After Godoy was injured, the driver of the Cherokee fled the scene, but officers Hamilton and Lorenzo did not pursue him.

Godoy’s estate filed suit against the two defendant police officers, arguing that the defendants were negligent and reckless in their pursuit of the Cherokee.  Further, the plaintiff argued that the defendants acted with willful misconduct in not complying with policies while continuing the pursuit.

In deciding to pursue the Cherokee, the defendants were governed by procedures set forth both in the Newark Police Division General Order and the New Jersey Attorney General’s Policy.  Both policies authorize officers to pursue a vehicle when they reasonably believe that a violator has committed an offense and they believe that violator poses an immediate threat to the safety of the public.  Once the officers choose to pursue the vehicle, they must immediately notify the Communications Division of pertinent information, such as the reason for the pursuit, the direction of travel, identifying factors of the vehicle, and the speed of the pursued vehicle. 

The plaintiff conceded that the defendants were justified in their pursuit of the vehicle; however, the plaintiff argued that the officers were in violation of policy when they did not report the speed of the pursued vehicle.  The defendant police officers moved for summary judgment, claiming that under the Tort Claims Act, they were immune from liability.  The trial court granted summary judgment on all counts, holding that the defendants were immune from liability unless there was evidence of willful misconduct.  The lower court further reasoned that there was no evidence of willful misconduct because reporting the speed of the pursued vehicle was not a requirement; rather, it was up to the discretion of the police officers.

On appeal, the plaintiff argued that the trial court erred in granting summary judgment because the plaintiff presented sufficient evidence of the defendants’ willful misconduct.  The plaintiff further argued that the trial court erred in determining that the defendants were entitled to summary judgment based on good faith immunity.

In affirming the lower court’s decision, the Appellate Division first analyzed good faith immunity.  The court upheld that the officers were immunized, looking to state Supreme Court precedent from Tice v. Cramer, 133 N.J. 347, 367 (1993).  There, the Court held that N.J.S.A. 59:5-2 immunizes absolutely all negligence of a public employee when the negligence, combined with the conduct of the escaping person, leads to injury.  The Court set forth a narrow exception in that decision, holding that immunity does not exonerate a public officer from liability if their conduct was outside of the scope of employment or constituted willful misconduct.

To determine whether the narrow willful misconduct exception applied in this case, the Appellate Division again looked to state Supreme Court precedent in Fielder v. Stonack, 141 N.J. 101, 123-30 (1995), which defined willful misconduct in the context of a police pursuit.  There, the Court established a two part test for willful misconduct which required that the public employee disobey a specific lawful command or standing order and that the public employee intended to violate it.

Here, the Appellate Division applied the Fielder test and held that in order for the plaintiff to establish willful misconduct, the plaintiff must have demonstrated that the defendants disobeyed a standing order that required them to report the speed of the Cherokee to Communications and that the defendants knew of the standing order, knew that they were violating it, and intended to violate it.  The Court held that because there was no standing order requiring the defendant officers to report the speed of the Cherokee, there was no willful misconduct on their behalf.  Thus, the Appellate Division affirmed the lower court’s decision to grant the defendants’ motion for summary judgment.

Post Office Found Not Liable for Fall Due to Drop Off From Cement Sidewalk

Plaintiff Richard Rauso slipped and fell while at the premises at the United States Post Office in South Bound Brook, New Jersey.  He sued the defendants Post Office and Ofaniyim Holdings, LLC, which owned the property upon which the Post Office is located and leased it to the United States, for injuries suffered in the fall.  The issue in Rauso v. United States of America, 2023 U.S. Dist. LEXIS 94360 (D.N.J. May 31, 2023) was whether the defendants were liable for the plaintiff’s fall, which occurred when he was walking down the Post Office’s cement sidewalk, his foot slipped and he fell onto the adjacent dirt path.

On the day of the accident, the plaintiff arrived at the Post Office and parked his vehicle in the parking lot on the side of the Post Office.  He then walked from the parking lot to the entrance of the Post Office via the cement walkway which connected the parking lot to the entrance.  There was a dirt path adjacent to the cement walkway that plaintiff did not utilize. 

When he exited the Post Office, he used the same cement walkway.  However, it was raining as he walked back towards his vehicle.  As he was walking, his foot slipped and he fell onto the adjacent dirt path.  He broke his ankle as a result of the fall.

The defendants United States and the property owner Ofaniyim both filed for a summary judgment dismissal, arguing that the plaintiff had not made out a prima face case of negligence.  They argued that the plaintiff failed to show that either defendant breached its duty to provide a reasonably safe walkway for the Post Office customers because plaintiff failed to offer evidence that a dangerous condition existed.  Further, the defendants argued that, even assuming the cement sidewalk or the adjacent dirt path constituted a dangerous condition, neither defendant was liable because the danger was open and obvious. 

The District Court applied New Jersey law in deciding this motion.  Under New Jersey law, to establish negligence, “a plaintiff must establish four elements to sustain a negligence action (1) duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.”  Here, plaintiff contended that the junction of the cement sidewalk and the adjoining dirt path was a dangerous condition due to the unmarked and unsupported several inch elevation change.  Plaintiff’s expert measured a 2” drop from the cement sidewalk surface to the dirt path touching the sidewalk edge.  One foot away from the sidewalk, plaintiff’s expert also measured a 5” drop between the sidewalk and dirt path. 

The District Court noted that New Jersey courts had found that a drop off at the edge of a road or path can, under some circumstances, create a dangerous condition.  However, the mere existence of a drop off or a height differential in the walkway is not sufficient in itself to find a substantial risk of injury sufficient to constitute a dangerous condition. 

The District Court noted that plaintiff’s own deposition testimony contradicted the existence of a dangerous condition.  It was his testimony that the sidewalk itself had no defects or obstructions; it was raining heavier than a drizzle when the accident occurred; he walked along the cement sidewalk to and from the Post Office and viewed the cement sidewalk as safer than walking up the dirt path, which was muddy and wet.  On the way back from the Post Office, he walked close to the right edge of the cement sidewalk such that he was in close proximity to the drop-off and the adjoining dirt path.  It was when he was walking back to the parking lot on the cement sidewalk, he fell and landed on the adjacent dirt path.

Thus, the Court noted the record was clear that the Post Office did provide an adequate cement sidewalk for plaintiff to access its building.  To the extent that the dirt path qualified as a dangerous condition, the District Court noted that the record was equally clear that the condition was open and obvious.  Plaintiff was aware of the condition and he failed to avoid it.  Therefore, the Court found that defendants had not breached their obligations to plaintiff.   Thus, the District Court granted the motion for summary judgment filed by the defendants, dismissing the case. 

Court Finds That Mode of Operation Doctrine Properly Charged for Slip and Fall Accident

Plaintiff Lavant Jones slipped and fell inside the vestibule of defendant Rite Aid’s Willingboro store.  She slipped on a plastic tablecloth and brochure that had blown off a display table setup by Rite Aid to promote a flu vaccine program.  In Jones v. Rite Aid, 2023 N.J. Super. Unpub. LEXIS 1201 (App. Div. July 17, 2023), Rite Aid contended that the trial court should not have charged the jury with the mode of operation doctrine. 

 The table had a cardboard sign that advertised flu vaccines, brochures, flu vaccine sign-up sheets, and hand sanitizer placed on the tablecloth.  Plaintiff contended that, due to her fall, she suffered injuries to her neck, right shoulder, back, wrists and hand.

Plaintiff testified at trial that she walked into the store with her eyes focused straight ahead.  She fell because she got tangled up with the tablecloth and the cardboard.  She denied seeing the display table near the entrance or the blue tablecloth prior to her fall. 

At the trial, plaintiff’s counsel requested that the mode of operation jury charge be given to the jury.  Defense counsel did not object.  After a four day trial, the jury found that the plaintiff had suffered a permanent injury and awarded her $700,000 in damages, plus pre-judgment interest.

Following the jury award, defendant moved for a new trial, arguing that the jury verdict was “grossly” disproportionate to plaintiff’s injuries and the mode of operation charge was erroneous and resulted in prejudice.  As to the mode of operation jury charge, the trial court judge concluded the charge was appropriate because the brochures were part of the “self-service” setup and used for “self-service purposes.”  The judge found that there was a nexus between the self-service and touching the items on the display table, the hand sanitizer and the brochures moving around, the sign-up sheets and the blowing wind that allowed for the mode of operation charge.

Upon appeal, the Appellate Division considered whether the mode of operation charge was properly given by the trial court judge.  The Court noted that the mode of operation doctrine applies when a “dangerous condition is likely to occur as a result of the nature of the [defendant’s] business, the property’s condition, or a demonstrable pattern of conduct or incidents.”

Further, the Appellate Division noted that “when the defendant’s business has a “self-service method of operation, the defendant is required to anticipate debris falling on the ground because of the carelessness of either customers or employees.”  When plaintiff successfully demonstrates that the mode of operation rule applies, “then an inference of negligence arises and shifts the burden to the defendant to produce evidence that it did all that a reasonably prudent person would do in the light of the risk of injury that the self-service operation presented.”

After considering these principles, the Appellate Division rejected defendant’s contention that the trial court made a mistake in charging the jury on mode of operation.  The Court found that the trial court judge properly concluded that facts supported the mode of operation jury charge.  The trial court judge determined that there was a reasonable factual nexus between the self-service defendant provided, its display items, the heavy hand sanitizer bottle used to prevent items from blowing off the table because of the wind and defendant’s advertisements and brochures for flu shots and vaccines to support the mode of operation charge.  Further, the Appellate Division noted in plaintiff’s testimony that she fell because of the blue tablecloth and brochure.

The Court noted that defendant failed to demonstrate that the blue tablecloth and brochure landed on the floor for reasons unrelated to the wind.  The store’s personnel testified that they were aware of the wind blowing items off the table. The Appellate Division found that the trial court judge properly determined that “the mode of operation charge was appropriate because the brochure on the display table was part of the self-service setup and used for defendant’s self-service purposes.”  Thus, the Appellate Division upheld the trial court’s determination to charge the jury with the mode of operation doctrine.

Appellate Division Finds that “Dirty” Substance on Floor Does Not Constitute Constructive Notice for Slip and Fall in Pharmacy

By: Eric Richwine, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Plaintiff Michael Racine slipped and fell while walking inside defendant Rite Aid’s Irvington, New Jersey, store.  He suffered a fractured left tibia, resulting in him filing a complaint against the defendant, in which he alleged negligent maintenance of and failure to conduct reasonable inspections of the premises.  The trial judge had granted summary judgment to the defendant on the basis that the plaintiff failed to demonstrate that the defendant had actual or constructive notice of any “dangerous condition” on the premises.  The issue on appeal in Racine v. Rite Aid Pharmacy, 2023 N.J. Super. Unpub. LEXIS 959 (App. Div. June 14, 2023) was whether constructive notice can be inferred by the presence of dirt in a condition.

Plaintiff testified that he had not noticed anything on the floor as he entered the store looking to purchase hair gel, which was on a shelf close to the entrance.  He reported that he soon after fell, and after which, he noticed a “dark greasy spot” on the floor which he believed to be a mixture of dirt with either hair gel or grease.

On appeal, the plaintiff contended that the trial judge “drew all inferences against plaintiff rather than the reverse” and that he sufficiently established that defendant had “constructive notice of the condition that caused [plaintiff] to slip.”  The Appellate Division first considered whether the plaintiff was relieved of the burden to prove constructive notice via the mode of operation exception, i.e., by demonstrating that the dirty substance here was likely to occur as the result of the nature of Rite Aid’s business.  The Court quickly determined that this was not the case.

The Appellate Division then turned to whether or not a jury could find that defendant had constructive notice of a dangerous condition.  Plaintiff contended that, because “the substance appeared dirty,” the factfinder could logically infer that “the substance had been on the floor for a significant time.”  Plaintiff supported this argument by citing the Court’s decision in Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507 (App. Div. 1957), in which a plaintiff slipped and fell just inside an entrance of a store on an “all wet” and “all dirt” floor, which the Court declared was sufficient to put the defendant store on constructive notice.  

However, the Appellate Division distinguished the facts in Parmenter to those before the Court here; namely, the dirty, wet floor in the defendant store of Parmenter was the result of an all-morning rainstorm that was continuously tracking in dirt and rain into the store upon the opening and closing of its doors.

Here, there was no such storm.  The Court emphasized that, unlike in Parmenter, the plaintiff here could not identify the cause or duration of the “dangerous condition” of the dirty substance on the floor of the store.  Further, the Court rejected the contention that the presence of “dirt” permitted a speculative inference that the substance had been on the floor for an adequate period of time as to place the defendant on constructive notice.

As such, the Appellate Division found that the plaintiff failed to meet his burden of demonstrating that defendant was put on constructive notice of the dirty substance on its store’s floor, nor was he able to successfully argue that a jury could infer such. Therefore, the Court affirmed the trial judge’s granting of defendant’s motion for summary judgment.

N.J. Supreme Court Holds Employer’s Vicarious Liability Under Borrowed-Employee Doctrine Is Question of Fact Reserved for Jury

By: Ruhani Aulakh, Law Clerk

Editor: Betsy G. Ramos, Esq.

Plaintiff Philip Pantano, an employee of Container Services of New Jersey (“CSNJ”), was moving a piece of heavy equipment at work.  Lawrence Giamella was also working that day and used a forklift to help move the equipment.  Giamella dropped the equipment on the plaintiff’s foot, causing permanent damage that led to amputation of the plaintiff’s foot.  The plaintiff brought a personal injury action against CSNJ and Marine Transport, Inc. (MT), both of which are owned by the same person.  The dispute in Pantano v. New York Shipping Ass’n, 2023 N.J. LEXIS 597 (June 5, 2023) was whether the question of an employer’s vicarious liability under the borrowed-employee doctrine is a question of law to be decided by the court or a question of fact reserved for the jury.

At the trial court level, the court dismissed the claims against all defendants except for CSNJ, MT, and the companies’ landlords.  The remaining defendants all sought summary judgment, with the court granting both the landlord and CSNJ’s motions.  In its motion for summary judgment, MT argued that it was not Giamella’s employer and thus not vicariously liable for his negligence.  MT argued that although Giamella was on its payroll, Giamella was a “borrowed employee” working for CSNJ at the time of the accident.

At the jury trial, MT moved for judgment at trial pursuant to R. 4:40-1 on the same “borrowed employee” theory it had raised in its motion for summary judgment.  The trial judge reserved judgment on the motion until after the jury verdict and instructed the jury to presume that MT was vicariously liable, as counsel assented to have the court resolve the borrowed-employee argument.  The jury awarded plaintiff damages for pain and suffering, lost wages, and loss of consortium.  Outside of the jury’s presence, the trial judge determined that Giamella was a borrowed employee working for CSNJ and vacated the jury verdict.

Plaintiff appealed the trial court’s decision.  The Appellate Division reversed the trial court and reinstated the jury verdict.  The Appellate Division emphasized that the trial judge erred in reaching a conclusion on the merits of the borrowed-employee question.  Because MT moved for judgment at trial, the judge should have performed a directed verdict analysis in accordance with R. 4:40-1’s requirements.  The Appellate Division applied the directed verdict standard and determined there was substantial evidence to satisfy the plaintiff’s burden under R. 4:40-1.

MT filed a petition for certification to the New Jersey Supreme Court, largely arguing that the borrowed employee question is a purely legal one that should not be decided by a jury.  MT also argued that the Court should not consider how a jury may weigh the factors for borrowed employee determination which the Court set forth in Galvao v. G.R. Robert Const. Co., 179 N.J. 462 (2004).  Rather, the court should decide the issue on a plenary basis.

The Court granted certification solely on the issue of whether an employer’s vicarious liability under the borrowed-employee doctrine was one to be reserved for the jury.  In making its determination, the Court went through several cases that addressed the borrowed-employee doctrine.  Cases dating back to almost a century ago had ruled that a jury rather than a judge was who properly decided the borrowed-employee question.  Since then, the New Jersey courts have consistently held that the borrowed-employee question is presumptively a jury question.  The Court reasoned that although Galvao did not explicitly address the jury’s role in borrowed-employee disputes, nothing in the case changed the traditional allocation of the jury’s role in such disputes.

The Court did note, however, that not all disputes over borrowed-employee status must be sent to the jury.  Specifically, where the evidence is so one-sided that there are no genuine disputed facts, the court may decide the issue without a jury. 

After completing an analysis of the case history, the Court returned to the dispute at hand. The Court agreed with the Appellate Division that the evidence was not sufficiently one-sided that the issue may be decided without a jury.  While the Court would typically remand the issue so it may be presented to the jury to resolve, the Court took the parties’ agreement into consideration.  The parties emphasized that they did not desire a remand; rather, they would accept a reinstatement of the jury’s verdict.

As such, the Court affirmed the Appellate Division’s decision. The Court reinstated the jury’s verdict and held MT vicariously liable for the damages award. 

Mode of Operation Found to Apply to Accident Caused by Brown Substance on Floor of Bagel Store

Plaintiff, Samira Aly, was a customer at defendant A&H Bagels.  While walking to throw out her trash, she fell and suffered a serious injury.  Both deposition and video surveillance footage showed a brown substance on the floor near where she fell.  The issue in Aly v. A&H Bagels & Deli, Inc., 2023 N.J. Super. Unpub. LEXIS 695 (App. Div. May 8, 2023) was whether the trial judge made a mistake in refusing to charge the “mode of operation” standard in considering the summary judgment motion filed by the defendant A&H. 

Unfortunately, both the incident report and a log of inspections to the premises was lost in a subsequent fire.  However, Aly’s fall on the brown substance was documented through A&H Bagels’ surveillance footage but the footage was taken into police custody after the fire and never viewed by Aly.

At the trial court level, the defendant A&H filed a motion for a summary judgment dismissal, which was granted.  Plaintiff Aly appealed, arguing that the trial court failed to apply the appropriate “mode of operation” standard and, even absent the applicability of the mode of operation standard, the plaintiff argued that A&H Bagels should have had constructive notice of the brown substance on the floor near the trash receptacle.

While in a typical premises liability case, a plaintiff must prove that the defendant had notice of the alleged dangerous condition that caused the accident, when the mode of operation rule applies, it creates an inference of negligence and the burden shifts to the defendant to negate the inference by submitting evidence of due care.  When this doctrine applies, it relieves the plaintiff of proving that the defendant had actual or constructive notice of the dangerous condition.  Instead, it requires a defendant to show that it did “all that a reasonably prudent man would do in light of the risk of injury the mode of operation entailed.”

The Appellate Division disagreed with the trial court’s failure to apply the mode of operation standard and found that it should have been applied.  The Court noted that “[l]ike the businesses previously found to have created the hazard by their self-service nature, A&H Bagel’s format requires courts to contemplate its duty through a mode of operation standard as well.”  Further, the Appellate Division found that the trial court failed to adhere to the summary judgment standard of giving all reasonable inferences to the plaintiff when it granted A&H Bagel’s motion.

The Court noted that the customers at the bagel shop purchased sandwiches, coffee in cups, and juices in closed containers at the counter and then carry their food and beverages to their seats to eat before disposing of their trash in the receptacle.  The customers wait on themselves after being served at a counter.  The Appellate Division noted that “this is exactly the situation where the burden should shift to the defendant to show that they acted reasonably considering this specific business format.”  Further, the Court held that “[t]he dangerous condition caused by the brown substance near the trash receptacle was a foreseeable risk posed by the bagel shop’s mode of operation.”  Hence, the Appeals Court found that the mode of operation rule did apply to this scenario.

The Appellate Division further reversed the trial court’s ruling that, even if the mode of operation rule did apply to this setting, A&H Bagels had met its burden because “they did all that a reasonably prudent shop would do considering the risk of injury the mode of operation entailed.”  The Appellate Division found that the trial court improperly concluded that A&H Bagels took all reasonable actions.  The Court found that there were genuine issues of material fact that only a jury could decide.  It was disputed exactly how much of the brown substance was on the floor, whether the brown substance caused the fall and also how soon before the fall were their inspections and garbage changes.  It should have been up to the jury to decipher whether defendant acted reasonably no matter whose burden it becomes to prove that.

Therefore, the Appellate Division reversed the trial court’s summary judgment dismissal.  It found that the mode of operation standard should have been applied.  Further, assuming it is applied, the jury must decide whether the defendant acted reasonably based upon its “mode of operation” to protect its invitees from the alleged dangerous condition, i.e., the brown substance on the floor. 

Macy’s Found Not Liable for Slip and Fall Injury Due to Plaintiff’s Failure to Identify Dangerous Condition

Plaintiff Irina Galperin suffered an injury when she fell at Macy’s, located in the Garden State Plaza Shopping Center in Paramus, New Jersey, upon stepping from a tile walkway to a carpeted area.  While she initially claimed that she fell due to liquid on the floor, she later claimed that she fell when her foot got caught on the edge of the carpet which bordered the tile walkway inside the Macy’s store.  The issue in Galperin v. Macy’s, 2023 N.J. Super. Unpub. LEXIS 589 (App. Div. Apr. 19, 2023) was whether plaintiff would be able to maintain a negligence claim against Macy’s in light of her failure to identify the exact dangerous condition which caused her fall and the lack of an expert to identify a breach of duty in the design of the flooring.

In answers to Interrogatories, plaintiff certified “she was caused to slip and fall due to a dangerous condition, namely liquid on the floor.”  However, in her deposition, she disavowed this response and stated that she was unable to identify anything on the floor that caused or contributed to the fall.  She submitted an amended Interrogatory answer, stating that when she fell, the front of her right foot got caught on the edge of the carpet which bordered the tile walkway.  Further, she testified at her deposition that the incident occurred after she stepped off the escalator and walked toward the store’s exit.  She stated that there were too many people in the aisle and, while trying to go around the customers, she fell on the border of tile and carpet and struck a table display with a metal frame.  As for the cause of her fall, she simply stated it was the border between the tile and carpet. 

At the trial court level, Macy’s filed a motion for a summary judgment dismissal, arguing that plaintiff failed to identify a dangerous condition that caused her accident and she did not establish Macy’s possessed actual or constructive notice of any such condition.  Further, to the extent that plaintiff was maintaining that the purported height differential constituted a hazardous condition, Macy’s argued that “any claim was beyond the ken of the average juror thereby requiring expert testimony, which she failed to provide.”

The trial court agreed with Macy’s that plaintiff had failed to offer any proof of a dangerous condition.  The court rejected plaintiff’s argument that “the mere existence of a transition from tile to a carpet, without even some kind of torn or ripped carpet, broken tiles, or misleveled surface, constituted a dangerous condition.”  Further, plaintiff had failed to submit any factual or expert proofs that the flooring violated some code or regulation or standard that a reasonably prudent business owner would meet.  The court agreed that a claim that the border between the tile and the carpet created a defect required expert testimony. 

Hence, the trial court granted the summary judgment as to Macy’s.

Upon appeal, the plaintiff made the same arguments to the Appellate Division that were made to the trial court.  However, the Appellate Division rejected those arguments and agreed with the trial court and noted that the “mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence.”  The Court noted that the plaintiff had failed to identify anything related to the tile or carpet that caused her to fall.  The vague statements that her foot caught on the edge of the carpet and something between the tiles and the carpet caused her to fall were found to be insufficient to establish a dangerous condition.  Further, the Appellate Division agreed that an expert would be necessary to establish the existence of a dangerous condition that the transition area was dangerous due to a design or installation defect.

Thus, the Appellate Division affirmed the trial court decision, stating that “[i]n light of plaintiff’s inability to identify the circumstances of her fall, expert testimony was necessary to establish the area where she fell was in some manner dangerous, if for no other reason than to exclude other potential causes of the accident and avoid pure speculation by the factfinder.” 

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