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Building Owner May be Liable to Plaintiff Injured Due to Falling Ceiling Tile

Plaintiff Stephanie Ugaro was injured at work when a ceiling tile fell on her while she was in the bathroom. She sued the defendants who owned, managed and maintained the building where she worked under the doctrine of res ipsa loquitur.  The issue in Ugaro v. Livingston Circle Associates, L.P., 2023 N.J. Super. Unpub. LEXIS 381 (App. Div. Mar. 16, 2023) was whether the elements of res ipsa loquitur had been established so as to create a presumption of negligence by defendants.

Plaintiff had been employed by Verizon to work at a call center located in Livingston, New Jersey which was owned by defendant Livingston Circle Associates (“Livingston”) and managed by Eastman Management Corporation (“Eastman”).  Pursuant to the lease between Verizon and Livingston, Livingston had the obligation to maintain all parts of the building which included replacing all plumbing in bathrooms.

One evening, plaintiff went into the women’s restroom on the third floor of the building.  After she entered one of the stalls, the ceiling tile above the stall collapsed and struck her.

She sued the defendants, alleging that they were negligent in failing to provide safe premises to her as an employee of a tenant – a business invitee.  The defendants certified that their investigation of the incident disclosed that the cause of the ceiling collapse was water leaking from a broken pipe.  They determined that the water had leaked from the pipe, had accumulated on the ceiling tile above the third floor bathroom, which caused the tile to become saturated with water and collapse. 

At the trial court level, defendants filed for a summary judgment, claiming that plaintiff could not show that they had been negligent because they had no notice that the broken pipe was leaking water.  In opposition, the plaintiff argued the doctrine of res ipsa loquitur created a presumption of negligence and a jury should decide if defendants can rebut that presumption. 

The trial court considered plaintiff’s argument and determined that the plaintiff had established two of the three elements necessary to establish res ipsa loquitur, i.e. that the building and its components, including the ceiling tile and pipes, were under the exclusive control of defendants and plaintiff’s injury was not the result of her own voluntary act or neglect.  The third prong, however, was the issue, which was whether the occurrence “bespoke negligence.” 

The trial court reasoned that plaintiff was unable to establish the third prong because the root cause of the ceiling collapse was not visible or accessible for purposes of inspection or repair without breaching a wall or floor.  Plaintiff had failed to proffer any evidence as to the specific cause of the plumbing failure.  She also did not offer an expert as to the “proper protocols, policies or procedures for inspection, testing or maintenance of a plumbing system in a commercial building of this character, including of piping that is obscured by walls, floors and ceilings.”  Hence, the trial court granted summary judgment to the defendants.

The plaintiff appealed the summary judgment order and contended that she did establish all three elements for the application of the res ipsa loquitur presumption and that the case should have been decided by a jury whether defendants were liable.

The Appellate Division reversed the trial court decision.  It agreed with the plaintiff that the three elements triggering the res ipsa loquitur inference were established.  Thus, the question of whether defendants can rebut their presumption of negligence must be presented to a jury.

The Court pointed out that res ipsa loquitur “is an equitable doctrine that allows, in appropriate circumstances, a permissive inference of negligence to be drawn against a party who exercises control of premises with an unsafe condition that causes injury to another.”  If this inference applies, it will ordinarily allow the plaintiff to establish a prima facie case and survive a motion to dismiss at the summary judgment stage.  If the case goes to trial, and the jury is instructed on the res ipsa loquitur inference, the jury may accept or reject the inference.

The Appellate Division agreed that there was no dispute that plaintiff established two of the elements of the res ipsa loquitur inference.  It was undisputed that defendants maintained exclusive control over the maintenance and upkeep of the building.  Further, it was undisputed that plaintiff’s injuries were not the result of her own voluntary act or neglect.  The remaining issue was whether “the occurrence itself ordinarily bespeaks negligence.”

The Court found that the focus of the defendants and the trial court was misplaced.  It noted that plaintiff was injured by a falling ceiling tile and that a ceiling tile does not ordinarily fall, and if it does, that occurrence “bespeaks negligence.”  The defendants’ proofs concerning the leaking pipe were not “so overwhelming that they destroy any reasonable inference of negligence.”  The Appellate Division pointed out that the jury need not accept plaintiff’s inference that defendants were negligent and need not accept defendants’ contention that it would be unreasonable to inspect pipes which were within a wall.

The Court noted that once a res ipsa loquitur inference was established, the burden shifts to defendants to present countervailing proofs that were so overwhelming that they destroy any reasonable inference of negligence.  Here, the defendants never offered any explanation as to why the pipe broke, nor were there any proofs in the record as to how long the pipe was leaking before sufficient water accumulated on the ceiling tile and caused the tile to fall on plaintiff.  Plus, the Appellate Division found that “a reasonable jury could accept plaintiff’s inference of negligence and reject defendants’ arguments that it would be unreasonable for them to conduct an inspection of pipes in bathrooms, even pipes enclosed in walls.”

The Appellate Division also rejected the idea that an expert report was essential to plaintiff’s case.  It noted that the facility manager testified that there was an access panel in one of the fourth floor bathrooms, which was easily opened and, at that point, one could see indications that water was leaking behind the wall.  The facility manager explained that he would need to break through the wall to see the pipe itself, but that water damage could be seen before he broke the wall.   Hence, the Court found that a jury could reasonably conclude that defendants were negligent in not conducting at least periodic inspections to look through the access panel.

Accordingly, the Appellate Division disagreed with the trial court’s decision.  The Court found that the res ipsa loquitur inference should be charged to the jury “and the jury can determine whether it accepts the inference or accepts defendants’ explanation for why they were not negligent.”  Therefore, the Court reversed the summary judgment order in favor of the defendants and remanded the matter for trial.

Mall Owner Not Liable to Plaintiff Injured on Interior Department Store Staircase

Plaintiff Thomas Seltzer, an employee of Bloomingdale’s, was injured when he fell on a staircase used solely for Bloomingdale employees in the store.  He sued the mall owner Riverside Square for negligence, claiming that it had some degree of control over the staircase which allegedly had irregular steps.  The issue in Seltzer v. Riverside Square Limited Partnership, 2023 N.J. Super. Unpub. LEXIS 453 (App. Div. Mar. 27, 2023) was whether the defendant mall owner owed a duty to plaintiff if it did not own or maintain Bloomingdale’s or the interior staircase.

Bloomingdale’s, which was built as a stand-alone department store in 1959, was now part of a 2-level enclosed shopping mall constructed around it.  The mall was owned and operated by Riverside Square.  Under the terms of an agreement with Bloomingdale’s, Riverside Square had no authority to modify Bloomingdale’s or the staircase.

The defendant Riverside Square moved for a summary judgment dismissal, contending that it owed no duty to Seltzer because it did not own or maintain Bloomingdale’s or the staircase.  The trial court judge denied summary judgment.  The court found that “there are genuine issues of material fact relative to both the subject accident and the issue of control and the degree thereof, regarding the overall area where [Seltzer] had his trip and fall accident is a disputed fact.”  The court felt that it had to accept Seltzer’s version of facts, and as such grant him the benefit of all inferences that such facts support. 

Riverside Square filed an application before the Appellate Division on an interlocutory basis, seeking leave to appeal.  The Appellate Division agreed to accept the interlocutory appeal. [“Interlocutory” means the appeal is filed before the final conclusion of the case.]

The Appellate Division disagreed with the trial court’s decision.  The Court found that the trial court was incorrect in finding that there were genuine issues of material fact.  The Appellate Division pointed out that there was no question that there was a valid agreement concerning Riverside Square’s responsibility and obligations toward Bloomingdale’s property.

The Court further held that Riverside Square did not owe a duty to Seltzer.  It pointed out that the staircase where Seltzer was injured was part of Bloomingdale’s premises when the department store was built, long before the mall was built.  The Court noted that there was no support in the record for Seltzer’s contention that Riverside Square “retains some degree of control and responsibility over issues such as repairs and maintenance, even on property of its admitted tenant Bloomingdale’s.”  Additionally, the Appellate Division held that under the clear terms of the agreement with Bloomindale’s, Riverside Square had no obligation to maintain any aspect of Bloomingdale’s premises.  Further, there were no facts indicating Riverside Square exercised any control or maintenance over the staircase that would contradict its interpretation of the agreement.

Thus, Seltzer’s liability expert’s opinion concerning the construction and maintenance of the staircase was “of no import” because Riverside Square did not construct the staircase and had no duty to ensure it could be safely traversed.

Thus, the Appellate Division found that there were no genuine issues of material facts in dispute and that Riverside Square was entitled to summary judgment as a matter of law.  Therefore, it reversed the trial court’s order denying summary judgment and remanded the case back to the trial court for an entry of an order granting summary judgment dismissal of Seltzer’s action.

Plaintiff’s Failure to Prove Property Owner Had Actual or Prior Notice of Ice on Steps Merited Dismissal of Lawsuit

Plaintiff Karimah Sharif slipped and fell, allegedly on ice, while walking down the exterior steps of the rear entrance of defendant’s commercial building.  On the morning of the accident, plaintiff had visited her son who had an office in the building and did not notice any ice on the steps.  The issue in Sharif v. Dominant Domain, LLC, 2023 N.J. Super. Unpub. LEXIS 368 (App. Div. Mar. 14, 2023) was whether the plaintiff was entitled to pursue a personal injury lawsuit against the defendant commercial property owner when she did not recall seeing ice, nor was plaintiff able to prove that the defendant property owner had actual or constructive notice of the ice on the steps.

While the plaintiff did not notice any ice while walking up the steps upon her arrival, when she left the building, she started going down the steps and ended up on the ground.  She testified at her deposition that she saw ice on the bottom steps but could not recall exactly how many of the five steps she traversed had ice.  Plaintiff could not recall seeing ice on the top couple of steps, which she claimed she slipped upon. 

It did not snow or rain on the day of the accident and plaintiff could not recall the last time it had snowed.  The owner of the building testified at a deposition that there was no precipitation on the steps, although there were leftover piles of snow from the previous storm.  Based upon the owner’s observation immediately after the accident, she did not observe any ice on the steps.

Further, the owner and her operations manager examined the steps each time they entered or exited the building.  The stairs were inspected up to 20 times a day.  However, on the day of the incident, the owner had entered the building only once before plaintiff’s fall.

The defendant property owner filed for a summary judgment, claiming that there was no evidence to demonstrate that it possessed actual or constructive notice of the alleged dangerous condition on the stairs.  The trial court judge rejected plaintiff’s claim and found that plaintiff had failed to prove that the defendant had actual or constructive notice of the dangerous condition.  Further, the trial court noted that the plaintiff failed to present an expert liability report to establish a standard of care regarding snow removal protocols and noted that the stairs were inspected several times a day.

Upon appeal, the Appellate Division agreed that the plaintiff was required to prove that the defendant had actual or constructive notice of an alleged dangerous condition to pursue a negligence claim.  Further, the Appellate Division noted that “[a] defendant may counter with evidence it conducted regular inspections of the site where the injury occurred.”  To prove constructive notice, the plaintiff had to prove that the condition existed “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.” 

The Appellate Division agreed with the trial court’s conclusion that there were no facts to support that the defendant proprietor had actual or constructive notice of an icy condition prior to plaintiff’s fall.  The Court noted the plaintiff’s lack of recall of seeing ice on the steps she fell upon either prior or after her fall.  She failed to offer evidence of weather conditions that could have proven ice accumulated on the steps between the time she went into the building in the morning and at the time she exited in the afternoon.  Further, she could not recall the last time it had snow or precipitated.

The Appellate Division noted the undisputed testimony that the proprietor and her staff frequently checked the exterior pathways around the building.  Further, it pointed out that the proprietor did not see any ice or precipitation in this area before or after the accident.  Thus, plaintiff was unable to demonstrate that the defendant proprietor had actual or constructive notice of an icy condition on the steps. 

Finally, the Court noted that to the extent plaintiff attempted to claim a structural defect of an adjacent gutter which may have dripped and caused a patch of ice, she was required to proffer an expert report “about the construction, design, condition, or maintenance of the gutter or its placement in relation to the stairs.”  Hence, the Appellate Division found that plaintiff failed to establish a prima facie case of negligence and held that the defendants were entitled to a summary judgment as a matter of law.  Thus, the Court affirmed the trial court’s decision to dismiss the case.

Commercial Landowner Found Not Entitled to Summary Judgment for Fall on Ice Based Upon Exception to Ongoing Storm Rule

Plaintiff Adel Hanna fell in the parking lot of the Woodland condominium complex on January 7, 2017, slipping on snow and ice in an unplowed parking lot.  The issue in Hanna v. Woodland Community Association, 2022 N.J. Super. Unpub. LEXIS 2180 (App. Div. Nov. 17, 2022) was whether the defendant owner and property manager were entitled to a summary judgment dismissal based upon the ongoing storm rule enunciated by the New Jersey Supreme Court in Pareja v. Princeton Int’l Props., 246 N.J. 546 (2021). 

The plaintiff sued both the owner of the property, Woodland Community Association (“Woodland”), and the management company, Diversified Property Management for his fall. Woodland had contracted with A. Guzzo Landscaping, LLC to provide snow and ice removal services for the property.  Plaintiff Hanna was a resident of the community and fell while walking through the snow to his daughter’s house.

The defendants filed for a summary judgment, relying upon the Pareja decision, where the Court adopted the “ongoing storm rule.” This rule held that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.”  The trial court found that there were two storms on January 6 and January 7 and noted that plaintiff fell within an hour after the snow stopped falling on January 7.  Thus, the trial court found defendants did not owe plaintiff a duty pursuant to the ongoing storm rule.

While the trial court acknowledged that there was an exception to the ongoing storm rule for a pre-existing storm, it found that “there is no credible evidence in this record supporting the existence of left over ice from the January 6 storm.”  The plaintiff appealed this ruling and argued that the trial court should have found that summary judgment was precluded because he fell on ice from a pre-existing storm, which had not been remediated.

The facts showed that the snow on January 6 stopped falling at about 5:30 a.m. and left about one inch of snow.  The parties do not dispute that the snow contractor, Guzzo, was not called out to perform any snow or ice remediation for that storm.  In fact, no defendant took any remedial step with respect to the one inch of snow that fell on the ground.

Temperatures on that date rose above freezing.  The plaintiff’s expert report found that a combination of some sunshine and the above freezing temperatures resulted in a portion of the residual snow cover to melt and generate run off snow melt water, which then froze.

On the 7th, snow fell from about 4:30 a.m. to 6:00 p.m., leaving about 7 inches of snow.  The temperatures that day were well below freezing.  The lot was plowed from 11:00 a.m. to midnight.  This accident occurred between 6:00 and 7:00 p.m. on the evening of January 7.  According to the plaintiff, the parking lot he walked through had not yet been plowed.  Plaintiff, through his expert, claimed that he slipped on ice that formed on the evening of January 6, when the one inch of snow that fell that morning melted, then refroze.  He claimed that the ice was then covered over by the snow on January 7.

Upon appeal, plaintiff Hanna alleged that the ongoing storm rule did not relieve the defendants of their duty to maintain the common elements of the condominium.  He claimed that the ongoing storm rule did not apply to condominium associations.  The Appellate Division rejected that argument, finding no distinction between a condominium association and a commercial landowner for purposes of the application of the ongoing storm rule.

Hence, the Appellate Division found that the ongoing storm rule did apply.  Pursuant to this rule, it suspends a landowner’s duty until a reasonable time after the cessation of precipitation and the duty arises within a reasonable time after the storm.  The Court noted that the ruling “makes clear landowners need not have all snow and ice cleared the moment snow stops falling.”

In this case, plaintiff fell within an hour after the snow stopped, according to his own expert reports.  Given the 7 inch snow storm falling on a 75 acre commercial property, it was not a reasonable time to have completed all snow removal activities within one hour of the snowstorm ending. 

However, the Appellate Division did find that there was a question in fact as to the defendants’ potential liability due to the pre-existing risk exception to the ongoing storm rule.  The Court found that there was a question of fact whether the January 6 storm actually created a pre-existing risk.  Because Hanna did see ice on the ground after he fell, the Appellate Division found that there was a reasonable inference from that finding that the ice Hanna saw was from the January 6 storm. 

Thus, the Court found that when that ice formed was a genuine issue of material fact, precluding summary judgment.  Because there was a factual question as to whether this exception to the ongoing storm rule applied, the Appellate Division reversed the summary judgment as to the defendant property owner and management company and remanded the matter back for trial.

Owner of Vacant Lot Adjoining Public Sidewalk Held Not Liable for Injury Caused by Fall on Sidewalk

Plaintiff Alejandra Padilla slipped and fell on the sidewalk adjoining a vacant lot in Camden, which was owned by the defendants Myo Soon and Young Il an.  She claimed to have suffered permanent injuries as a result of her fall.  The issue in Padilla v. Young Il an, 2023 N.J. Super. Unpub. LEXIS 14 (App. Div. Jan. 4, 2023), was whether the defendants, as owners of the vacant lot, abutting the public sidewalk, owed a duty to the plaintiff to safely maintain that sidewalk.

At the trial court level, the defendants filed for a summary judgment dismissal on the basis that they did not owe a duty to plaintiff.  The trial court judge agreed, based upon prior precedent, that “they had no duty to maintain the sidewalk because it abutted a vacant lot which was not generating any income.”  The trial court judge rejected the plaintiff’s argument that defendants could have generated income by either developing or selling the property.  While the trial court judge acknowledged that the prior Supreme Court case of Stewart v. 104 Wallace St., held that the owner of a commercial property had a duty to the plaintiff to safely maintain an abutting sidewalk, the subsequent Appellate Division decision of Abraham v. Gupta found that duty did not apply where the property could not generate income to purchase liability insurance.

Upon appeal, the plaintiff renewed her argument that Stewart should apply because the property was capable of generating income by operation of a commercial activity on it and defendants bought and sold the property for a commercial profit.  Further, plaintiff noted that there was a municipal ordinance that required that the sidewalks in the City “shall be kept in repair by the owner or owners of the abutting property at the cost and expense of the owner or owners of the lands in front of which any such sidewalk is constructed.”

Upon appeal, the Appellate Division rejected the argument that the ordinance provided any private remedy to persons injured as a result of the breach of the ordinance.  It reaffirmed the longstanding precedent regarding the lack of liability for violation of the duty imposed by an ordinance upon abutting property owners to maintain sidewalks.  The Appellate Division also agreed with the trial court judge that the Abraham case remained good law that an owner of an non-income producing vacant lot owes no duty to the public to maintain the lot’s abutting sidewalk in a safe condition.  Thus, it affirmed the trial court decision, dismissing the lawsuit. 

Municipality Found Not Liable for Injury Caused by Trip Over Raised Boardwalk Board

Plaintiff Ercilia Rojas, while walking on the boardwalk in Atlantic City, tripped and fell over a raised board. As a result of her fall, she suffered a rotator cuff tear in her shoulder. She sued Atlantic City, among other defendants, alleging negligence for a dangerous condition on public property. The issue in Rojas v. AC Ocean Walk, LLC, 2022 N.J. Super. Unpub. LEXIS 2083 (App. Div. Nov. 10, 2022), was whether defendant Atlantic City had “constructive notice” of this tripping hazard and, thus, could be held responsible for Plaintiff’s fall.

Atlantic City was granted summary judgment by the trial court, which dismissed the complaint. However, the Plaintiff appealed, arguing that she had proffered sufficient facts to show that there was a dangerous condition on public property.

The Appellate Division noted that public entities are immune from tort liability under the Tort Claims Act unless the plaintiff is able to prove that a dangerous condition of public property caused the injury, that it created a reasonably foreseeable risk of the kind of injury incurred, that either the condition was caused by an employee or the entity knew of the condition, and that the entity’s conduct was palpably unreasonable.

Here, the City’s Department of Public Works supervising mason admitted in a deposition that the raised board created a tripping hazard. But, for the public entity to be liable for plaintiff’s injury, the plaintiff must be able to prove that the entity had either actual or constructive notice of the condition. If the allegation is constructive notice, the plaintiff must show “that the condition existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

The Plaintiff did not contend that the City had actual knowledge of the raised board. Instead, the Plaintiff argued that the City failed to exercise due care to discover the dangerous condition and, therefore, should be charged with constructive notice.

The Public Works supervising mason testified that he regularly inspected the City’s Boardwalk, dividing it into zones and each day inspected a half mile section to visually inspect the boardwalk by foot. The last time the portion of the boardwalk where plaintiff fell was visually inspection was 3 days before her fall. Plaintiff argued that, had the City exercised due care, it would have discovered the problem with the raised board.

The Appellate Division rejected Plaintiff’s argument. The Court stated that “Plaintiff is not entitled to the benefit of demonstrating constructive, as opposed to actual, notice of a dangerous condition by speculating that it existed ‘for such a period of time’ and was actually present when the City’s reasonable inspection program would have detected the problem.” Further, even if Plaintiff was able to prove constructive notice, the City had an organized inspection program that addressed dangerous conditions, including raised boards, on its boardwalk. The Appellate Division found that “[n]o reasonable factfinder could conclude that the City’s conduct was palpably unreasonable simply because the inspections did not take place” within the 3 days before the accident and “this raised board-among thousands of boards on the boardwalk-was not detected in advance of plaintiff’s accident.”

Hence, the Appellate Division affirmed the trial court decision, dismissing the complaint as to Atlantic City.

Former Property Manager of Apartment Complex Found Not Liable to Plaintiff Who Was Shot by Estranged Husband While at Complex

Plaintiff Fritzy Rivera was leaving her friend’s apartment at the Cherry Hill Towers apartment complex when she was shot by her estranged husband. He had accessed the apartment complex through an open security gate. The issue in Rivera v. Cherry Hill Towers, LLC, 2022 N.J. Super. LEXIS 142 (App. Div. Dec. 12, 2022) was whether the defendant Vikco, Inc., as the former property management company, could be liable for the shooting based upon the practice that it had established to leave open the security gate after hours.

Vikco was not the property manager at the time of the shooting. However, for 18 years, it served as the property manager for this 434 residential apartment complex. The apartment complex was fully enclosed by a security gate with one central entrance point and three exits. When it was the property manager, Vikco was responsible to ensure the safety of its residents and guests. The complex was sold in October 2018 and when new ownership took over, AION Management assumed all Vikco’s property management duties.

Just seventeen days later, Plaintiff’s estranged husband, Brian Walker, drove through the open security gate at the front entrance at about 11:30 pm to lay in wait for Plaintiff to leave the complex. He confronted her in the parking lot and shot her in the head, chest, and arm.

While Vikco was the property manager, the front gate was unmanned and generally left open during leasing office hours.  After hours, which would be after 5pm, the gate was supposed to be closed with access restricted to residents. AION apparently continued Vikco’s practice of leaving the gate unsecured after hours.

Plaintiff Rivera sued Vikco, and other defendants, for alleged negligence in providing security at Cherry Hill Towers, a high crime area, claiming that was the proximate cause of the assault. Vikco filed for a summary judgment, arguing that it could not be held liable for the assault because its property management contract had ended. The trial court judge denied the motion, finding that it was a jury question as to whether it owed a duty to plaintiff in not taking steps to prevent the assault.

Vikco filed for an interlocutory appeal over this decision and the Appellate Division granted leave for Vikco to appeal. Upon reviewing the appeal, in a published decision, the Appellate Division reversed the trial court ruling, finding that Vikco was entitled to a summary judgment dismissal of the lawsuit.

First, the Appellate Division found that the trial court judge mistakenly found that it was up to the jury to decide whether a duty was owed to Plaintiff. The Court noted that whether a duty is owed to another party is for the court to decide, not the jury. While Vikco was the property manager, Vikco had a duty to prove safe premises by “taking reasonable security precautions to protect [Cherry Hill Towers] tenants and guests from foreseeable criminal acts.”

But, once Vikco was no longer the property manager, it had no relationship with Plaintiff and no ability to exercise control over the complex.  The Court found that there was “no public interest in imposing security responsibility upon Vikco for conduct that was under the full control of AION without input from Vikco.”

The Court rejected the Plaintiff’s argument that Vikco should be held responsible for the security measures continued by AION. There were no allegations that any deficiencies in that security system could not have been remedied by AION after it took over as the property manager. Further, Vikco has no contractual obligation as to the management of the property at the time of the assault. It would not have been able to prevent the assault because it was no longer responsible for the safety of Cherry Hill Towers’ residents and guests.  

The Court pointed out that New Jersey case law has not addressed “whether an apartment complex’s property manager has a common law duty to residents and their guests to provide a safe environment after the property manager’s duties are discontinued.” The Appellate Division further stated that “[u]nder the circumstances presented, we see no reason to do so now.”

Because it found that Vikco did not owe a duty to Plaintiff when she was assaulted, the Court ruled that Vikco was entitled to a summary judgment. Hence, the trial court judge’s decision was reversed.

Appellate Division Reverses Denial of Summary Judgment to Social Hosts for Plaintiffs’ Son Drowning in Their Pool

By: Erika Vasant, Law Clerk
Editor: Betsy G. Ramos, Esq.

In August 2017, intoxicated, twenty-six year old Raniel Hernandez attended a party, where he subsequently drowned after jumping into a pool. Earlier this week, the New Jersey Appellate Division, addressed the tort claims arising from the tragic accident. Plaintiffs Silvana Lansigan Delvalle and Ralph Hernandez, parents of the deceased Raniel Hernandez, sued with claims of common law negligence, intentional infliction of emotional distress, as well as a Portee claim regarding their son’s death. The issued on appeal in Delvalle v. Trino, 2022 N.J. Super. LEXIS 139 (App. Div. Dec. 6, 2022) was whether the defendant homeowners, Henry and Charlene Trino, and their son, Airel Trino, (and some of the guests) were liable as social hosts for Raniel’s death.  

Airel Trino hosted a party at his parents’ house, and allowed attendees to use the swimming pool if they wished to. He purchased alcohol for guests, and about 60 people attended, including Raniel. During the party, a visibly intoxicated Raniel entered the pool, after Wendy, another attendee, agreed to let him throw her into the pool – an activity he had planned weeks before.  Afterwards, Wendy was exiting the pool when she noticed that Raniel was not getting out. She tried to pull Raniel out, but was unsuccessful. Kevin Garcia, another attendee, jumped in and tried to rescue Raniel, but all efforts to save him were ineffective. After about 25 minutes, 9-1-1 was called. The autopsy report showed that Raniel’s blood alcohol content (BAC) was significantly high, causing the accidental drowning and cardiac arrest.

At the close of discovery, the defendants filed for a summary judgment dismissal, which was denied at the trial court level. However, leave to appeal was granted and, in a published decision, the Appellate Division reversed those decisions.

In addressing the defendants’ appeal, the Appellate Division found that there was nothing in the record that indicated that Garcia had any influence on Raniel’s decision to jump into the pool. More specifically, Garcia owed no statutory duty to save Raniel, and the Social Host Liability Act (SHLA), did not apply either, because Garcia was not a host. Even though Garcia attempted to rescue Raniel, his rescue efforts were protected by the Good Samaritan Act. The plaintiffs failed to allege any evidence of roughhousing or altercations between Garcia and Raniel. Although Garcia left the party after attempting to rescue Raniel, he was not fleeing. Instead he left the premises to escort his underage girlfriend away to avoid being cited for underage drinking. In consideration of all of these facts, Garcia was entitled to summary judgment, and the Appellate Division reversed the denial of summary judgment for this defendant.

In regards to the Trinos defendants the Appellate Division came to the same conclusion: that there was no genuine issue of fact that would justify the denial of a grant of summary judgment. SHLA did not apply to the Trinos because that statute is exclusive to injuries related to the negligent operation of a motor vehicle. SHLA is not triggered simply because a social host decided to serve alcohol. Furthermore, the Trinos did not owe a duty to Raniel since there was no public safety concern of him ever operating a motor vehicle in the situation.  Nonetheless, the Court noted that the plaintiffs may have a potential claim regarding a failure to warn. However, there was no case law suggesting that socials hosts have a duty to “prevent a voluntarily intoxicated adult guest from going swimming to safeguard the guest’s own well-being.” Although the plaintiffs contend that the Trinos should have had a lifeguard at the pool party, there was no regulation or case law suggesting it was required. Underage drinking at the party, although a concern, was not at issue in this case, because Raniel was a twenty-six-year-old ex-Marine.

The Appellate Division also found summary judgment should have been granted for the claims regarding intentional infliction of emotional distress. Plaintiffs allege that there was a deliberate attempt to cover up Raniel’s death since no one told them about what happened to their son after they arrived. This behavior does not, however, amount to extreme and outrageous as defined by case law. The plaintiffs also failed to allege sufficient facts for a Portee claim, because Ralph was not present when his son drowned.

Federal Judge Finds Mode of Operation Rule Does Not Apply to Accident Involving Motorized Cart in Store

Plaintiff Talia Pena claimed that, while shopping in a store, she was struck by an unidentified customer operating a motorized shopping cart. While bending over to smell body sprays on a lower shelf near the self-checkout lanes, an unidentified female customer drove a motorized cart into her. The woman did not see Plaintiff because her cart was stacked so high with paper products, they blocked the woman’s vision. The issue in the District Court of New Jersey Pena case (2022 U.S. Dist. LEXIS 215009 Nov. 29, 2022), was whether the mode of operation rule would apply to this accident, which would obviate the need for the Plaintiff to prove that the store had actual or constructive notice of the alleged dangerous condition.

The defendant store filed for a summary judgment, arguing that the mode of operation rule did not apply and, because Plaintiff could not demonstrate actual or constructive notice of the “dangerous condition,” it should be granted a summary judgment dismissal.

The District Court noted the general duty under New Jersey law that “business owners owe to invitees a duty of reasonable care to provide a safe environment for doing that which is within the scope of the invitation.”  That duty would include an obligation “to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.” The plaintiff must prove that “the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”

The District Court also noted that “a plaintiff need not prove actual or constructive notice under the ‘mode of operation’ rule, which applies ‘when a substantial risk of injury is inherent in a business operator’s method of doing business.’” For that rule to apply, “the plaintiff must show there was a ‘reasonable probability’ that the dangerous condition would occur ‘as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.’”

The Court rejected the Plaintiff’s argument that the mode of operation rule should apply to the use of a motorized cart. Merely providing shopping carts as a self-service equipment “does not alone increase the risk of a dangerous condition to warrant application of the mode of operation rule.” The District Court found that the rule would not apply because Plaintiff was unable to produce any evidence to support her position that supplying motorized carts, as opposed to non-motorized shopping carts, “is an aspect of the store’s self-service operation that creates a substantial risk of injury.”

Further, the Plaintiff presented no evidence that the store had actual notice of the alleged dangerous condition. As for constructive notice, Plaintiff had produced no evidence of how long this unidentified customer had over stacked her cart before Plaintiff’s accident. Thus, without the application of the mode of operation rule, and Plaintiff being unable to prove that the store had actual or constructive notice of the alleged hazard, the District Court granted the defendant’s motion for summary judgment, dismissing the lawsuit.

Plaintiff’s Loading Dock Injury Claim Dismissed Due To Failure To Obtain Liability Expert Report

Plaintiff Paomar Konteh was picking up a shipment at defendant McCollister’s Technical Services Inc.’s warehouse in New Jersey when he suffered an injury attempting to roll the defendant’s computer cabinets from the loading dock onto the back of his truck.  He sued the defendant McCollister for his injuries based upon several theories of liability.  The issue in Konteh v. McCollister’s Tech. Servs., 2022 N.J. Super. Unpub. LEXIS 888 (App. Div. May 24, 2022) was whether the plaintiff’s claim was subject to a dismissal for failure to obtain an expert report as to liability. 

The plaintiff’s accident occurred when defendant’s warehouse employee asked plaintiff to help him load the defendant’s cabinets onto the back of the truck.  The plaintiff was transporting in his truck certain four-wheeled computer cabinets, known as “Netshelters.”  The Netshelters can weigh up to 3000 pounds.   As the two men were attempting to roll the first cabinet from the loading dock onto the back of the truck, it fell on plaintiff, causing him injuries. 

Plaintiff had a number of theories as to defendant’s liability, including whether the ramp was defective, whether the other defendant’s employee did not properly align the ramp, whether the defendant’s employee should not have continued pushing once the wheel became stuck, whether the defendant’s employee pushed the cabinet with too much force, whether the defendant did not have sufficient personnel for the loading, whether or not the defendant heeded warnings and had proper safety measures, and whether the defendant should have had a lift for heavy merchandise.

In answers to discovery, plaintiff stated that he was caused to fall when the wheel of the cabinet became stuck in a crack or separation in the floor.   The defendant produced an OSHA report confirming that the dock plates were in proper working condition in the month prior to the accident.  In his deposition, plaintiff acknowledged that he had previously loaded Netshelters with the assistance of only one other person. 

The truck was connected to the warehouse loading dock via a dock plate that automatically lifted and lowered to form a ramp between the two.  However, even when properly set, it left a gap.  Plaintiff stated that the defendant’s out of state workers (when he made out of state deliveries) always covered the gap with a piece of metal, unlike in New Jersey, where they simply pushed “with power” to get the Netshelter onto the dock plate.  When the Netshelter’s first wheel rolled into the gap, it became stuck and fell on him.

The plaintiff never produced an expert report, despite having discovery extended twice for him to do so.  Following the close of discovery, the trial judge entered an order, barring the plaintiff from serving any liability expert report.  That motion was unopposed.

The defendant filed a summary judgment motion, arguing that the case should be dismissed due to the plaintiff’s failure to produce a liability expert report.  The trial judge pointed out that it is the “plaintiff’s burden to prove that the dock plate used by the defendant was defective or dangerous or substandard.”  The plaintiff’s theory that the elevation difference between the loading dock and the hydraulic dock plate was dangerous or defective did require expert testimony.  It would be “beyond the ken of an average juror to understand what was defective or dangerous.”  Further, plaintiff was aware of the height difference and there was no indication that plaintiff was concerned about a defective condition on the property.  Thus, the trial court judge ruled that the plaintiff’s claim would be dismissed for the failure to produce a liability expert report.

This decision was appealed to the Appellate Division.  The standard utilized by the Appellate Division to review the trial court ruling to dismiss the case due to the failure to produce an expert report was the “abuse of discretion” standard.  Under the case law, an “abuse of discretion occurs when a decision is made without a rational explanation, inexplicably departed from established policies, are rested on an impermissible basis.” 

The Appellate Division pointed out that in most negligence cases, a plaintiff is not required to retain an expert to establish the applicable standard of care.  However, in some cases, a jury would not be competent to supply the standard by which to evaluate the defendant’s conduct and therefore, the plaintiff must present the testimony of a liability expert.  To determine whether a plaintiff must produce a liability expert, a court must consider “whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the defendant was reasonable.” 

Here, the Appellate Division agreed with the trial court judge that the plaintiff was required to retain an expert to be able to pursue his claim.  The Court pointed out that “although the average person knows from common experience that a wheel can become stuck in a gap, causing a wheeled object to topple, the average person is not equipped to consider the physics of loading unusually heavy objects, and the point at which a gap between flooring, or changes in elevation, become dangerous.”  Further, because the plaintiff advanced different theories of liability, it could not be “reasonably expected” for a jury to be able to decide liability based upon those different theories.

The Court also noted that, in a different context, an accident from pushing a heavy object over irregular flooring might not require expert testimony.  But here, OSHA had found nothing deficient in the dock ramp and the plaintiff had used this ramp many times before to maneuver a Netshelter onto the back of his truck with just one person to help him.  Because the plaintiff was uncertain as to what caused the accident, and his description conflicted with the defendant employee’s description and involved trucking industry standards, the Court found that the need for an expert report and expert testimony was clear.  Thus, the Appellate Division ruled that the judge’s decision was not an abuse of discretion and affirmed the decision, dismissing the case. 

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