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No Liability for Landlord, Parent Company, and Landscaper for Fall on Black Ice

On his way into work at an Acme Supermarket in early November, 2019, Plaintiff Andrew Kasbarian slipped and fell on black ice in the parking lot caused by sprinklers that had triggered earlier that chilly morning, suffering a severe shoulder injury requiring surgery. Not able to sue Acme, he sued Albertsons (Acme’s parent company), Parene (the premises’ owner and landlord), and Green Meadows (the landscape contractor) for their negligence in maintaining and failing to warn about the dangerous condition posed by the black ice. The issue in Kasbarian v. Parene Realty Co., LLC, 2026 N.J. Super. Unpub. LEXIS 180 (App. Div. Feb. 3, 2026) was whether any of the defendants were responsible for the black ice formed by the sprinklers that caused Kasbarian’s fall.

Parene was the long-time owner of the premises who had a lease agreement requiring Acme to perform all repairs and maintenance. Green Meadows provided landscaping and irrigation services under a contract with Albertsons that did not require it to winterize and shut down the sprinkler system until Albertsons requested. In fact, that request came three hours after Kasbarian’s fall.

The three defendants challenged Kasbarian’s complaint with summary judgment motions, arguing that, even if the parties agreed to all the facts, Kasbarian could not show they were liable for his injuries. The trial court granted the motions based on the various contracts between the parties and the lack of notice to each defendant, and dismissed the complaint against them, causing Kasbarian to appeal.

On appeal, as to Green Meadows, Kasbarian argued they were a property manager and responsible for maintaining a safe parking lot. Focusing on the contract with Albertsons that only required them to perform sprinkler winterization when Albertsons asked, the Court found Green Meadows had no duty to Kasbarian. They reasoned that Green Meadows lacked the type of relationship with Kasabian that suggested a duty; that, the risk of black ice on the parking lot, an area for which Green Meadows had no control, was one for which Green Meadows could not be held responsible; Green Meadows lacked any opportunity to salt the parking lot and remove the black ice because they were not required to show up until Albertsons asked; and that, if they were to find Green Meadows responsible, that would put the burden on all contractors to winterize all sprinkler systems, no matter their contractual obligation – and that was not reasonable. The Court also found that Green Meadows, who did not come to the Acme parking lot until a few hours after Kasbarian fell, had no actual notice of the black ice or, because the black ice was temporary, they lacked constructive notice.

As for Albertsons, Kasbarian argued that they were vicariously liable because either Green Meadows was their agent or, because they were Acme’s parent company, because of Acme’s negligence. The Court disagreed with these arguments as well, stating that because Green Meadows was not liable, Albertsons could not be vicariously liable. Also, because New Jersey law will not hold a parent company liable for the negligence of a wholly owned subsidiary, they could not be liable for any negligence that Acme may have had.

Finally, the Court found Parene had no liability due to the lease agreement Parene had with Acme. Looking at the interplay of contract and tort law, the Court reaffirmed the rule that, when a lease unambiguously places liability on a tenant, the landlord will not be liable for personal injuries sustained by an employee on that property. Here, through the lease, Parene put the responsibility for all maintenance on its tenant, Acme, and as a result, it had no duty of care for Kasbarian. Further, because Parene was not a party to the Green Meadows/Albertsons contract, they had no responsibility to make sure Green Meadows would winterize the sprinklers in a timely manner.

With the above reasoning focusing on the interplay of the parties’ responsibilities through their various contracts, the Appellate Division affirmed the trial court’s determination that none of the defendants was liable for Kasbarian’s injuries on black ice in the Acme parking lot.

Court Refuses to Apply Mode of Operation Doctrine to Plaintiff’s Fall as a Result of Hanger on Floor of Retail Store

Plaintiff Rosalie Soiro claimed that, while walking down an aisle, she slipped and fell on a clothes hanger on the floor of a Family Dollar Store in Orange Township.  She further claimed that she hit her head on a shelf, landed on the floor, and suffered permanent injuries as a result of the fall.  The issue in Soiro v. Family Dollar, 2025 N.J. Super. Unpub. LEXIS 2504 (App. Div. Dec. 3, 2025) was whether the plaintiff had been able to establish actual or constructive notice as to the hanger on the floor and, in the alternative, whether the mode of operation doctrine applied.

Plaintiff alleged that she suffered injuries to her neck, back, left shoulder and left knee due to her fall.  She testified in her deposition that she was unaware of any hangers on the floor before she fell and did not see what caused her to fall.  However, it was her testimony that two young boys in the store told her the hangers caused her to fall.  She only saw the hangers on the floor after she fell.

During discovery, plaintiff did not depose any Family Dollar store employees or a corporate designee.  She also failed to produce any medical records or expert reports establishing a causal connection between her fall and her claimed injuries.

After discovery concluded, the defendant store filed for a summary judgment.  The defendant argued that plaintiff was unable to establish that it had actual or constructive notice of this alleged dangerous condition, the mode of operation doctrine did not apply, and plaintiff lacked medical proof of any injury causally related to the incident.  In opposition, plaintiff argued that she was not required to establish that defendant had notice of the hangers on the floor because the mode of operation doctrine applied.

After hearing argument, the trial court granted defendant’s motion and dismissed the lawsuit.  The trial court found that the defendant had failed to present evidence that defendant had either actual or constructive notice of the hanger and that this was not a mode of operation case.

This decision was appealed.  The Appellate Division noted that for plaintiff to pursue a negligence claim against the store, she must demonstrate that the defendant had actual or constructive knowledge of the dangerous condition that caused her accident.  The Court noted that the record was “devoid of any competent evidence to show or suggest actual or constructive notice to hold a defendant liable.”  Plaintiff failed to present the incident report or deposition testimony from a store employee to demonstrate defendant had notice of the hanger on the floor. 

Further, the Court noted that even if it were to accept plaintiff’s testimony as true, that a hanger was on the floor before her fall, there was no evidence defendant had the constructive knowledge the hanger was on the floor “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  Hence, the Appellate Division found that the absence of actual or constructive notice of the dangerous condition was fatal to her claim of premises liability. 

It also disagreed with the plaintiff that the mode of operation doctrine applied, which would have relieved her of demonstrating defendant’s actual or constructive notice of the alleged dangerous condition. The Appellate Division pointed out that the mode of operation rule was not a general rule of premises liability, “but a special application of foreseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a customer’s self-service model.” 

Thus, the Court noted that for a plaintiff to invoke the mode of operation doctrine, the plaintiff must demonstrate the dangerous condition arose as a result of the business’s self-service mode of operation.

Here, the Appellate Division found that her argument suffered from a fatal flaw.  She had not established that the defendant operated a self-service business, although both parties described the business as a retail establishment. The Court found that without factual evidence regarding the nature of the merchandise for sale and the actual method of defendant’s business operations, plaintiff had not satisfied the requisite elements to invoke the mode of operation doctrine.

Even after giving all reasonable inferences to plaintiff, she had not established a dangerous condition existed on defendant’s property and that defendant was on notice of the condition.  The Appellate Division found that “[t]o hold otherwise would impermissibly permit a jury to engage in conjecture about notice because it would have to speculate whether a hanger was on the floor, how the hanger came to be on the floor, and the duration of its existence on the floor.”  Accordingly, the Appellate Division found that the defendant was entitled to summary judgment as a matter of law and affirmed the trial court’s decision.

Homeowner Not Responsible for Plaintiff’s Injury Caused by Slip on Ice in Front of Home

Plaintiff Joseph Costigan was walking on the sidewalk in front of the home of the defendants Gurprit and Sneh Bains when he slipped and fell on a patch of ice and struck his head.  He claimed that the drainage system on defendants’ property, that ran down the driveway and across the sidewalk, was faulty and caused the ice.  The issue in Costigan v. Bains, 2025 N.J. Super. Unpub. LEXIS 2091 (App. Div. Oct. 29, 2025) was whether the plaintiff needed an expert to support the theory that the drainage system caused the water to collect on the sidewalk, which could be a hazard when the weather was cold. 

Plaintiff  had retained Mark Marpet, Ph.D., P.E. as an engineering expert who issued a report that the defendants’ drainage system created a hazard by leading the drain water from the gutters and basement sump pump onto the driveway and sidewalk, where it could freeze and create a slip hazard.  In his opinion, the elements did not cause the hazard because it had been two days before the accident since any precipitation fell.

Defendants retained the services of Stephen Pellettiere, a certified meteorologist, to provide an expert opinion regarding the weather conditions on the day of the accident.  He relied on certified weather reports from the National Oceanic & Atmospheric Administration (NOAA) and opined that there had been a winter storm and snow/ice event on the day of the incident with approximately a half inch of snow on the ground when plaintiff slipped and fell.  He disagreed with Dr. Marpet’s report that it was not snowing at the time and noted that Dr. Marpet used erroneous weather underground data that contradicted the certified NOAH observations.  In Mr. Pellettiere’s opinion, it was highly unlikely that preexisting ice and snow was in place at the time of the incident because of rainfall of less than an inch ending 40 hours before the incident and temperatures were well above freezing after the rain had ended two days before the incident.

At the trial court level, the defendants filed a motion to strike Dr. Marpet’s report as a net opinion and asked for a summary judgment dismissal.  They argued that Dr. Marpet’s opinion that the drainage system created a hazard “lacked any measurements or demonstration of any slopes or angles or anything about water capacity and failed to provide any discussion about the sidewalk.”  Further, defendants argued that Dr. Marpet used erroneous data indicating there was no precipitation on the day of the fall when in fact there was an ongoing storm.  Defendants further argued that Dr. Marpet’s opinion failed to satisfy any of the requirements for an expert report because it contained “nothing but his pure conclusions.”

The trial court heard the arguments and agreed with the defendants, granting defendants’ motion to strike Dr. Marpet’s report as a net opinion and also granted a summary judgment dismissal.  The trial court found that Dr. Marpet’s report “constituted an inadmissible net opinion because it failed to explain the pertinent scientific principles and how he applied them to formulate the basis for his opinion.”  The trial court further noted that “Dr. Marpet did not analyze the rates of evaporation for rain water under the conditions of freezing temperatures, provide any measurements of the slope of defendants’ property, calculate the volume of water that could have exited the drain, or author scientific support from a qualified meteorologist.”  Thus, the trial court determined that Dr. Marpet did not provide the “why and wherefore of his opinion but rather offered only a mere conclusion.”

As for the summary judgment dismissal, because the trial court found that Dr. Marpet’s report was an inadmissible net opinion and plaintiff needed to present an expert opinion to establish that the drainage system worsened the conditions of the sidewalk beyond the natural hazards created by the storm, the court found that there was no genuine issue of material fact that could defeat defendants’ summary judgment motion.

Further, the trial court rejected plaintiff’s argument that he could proceed without an expert.  Without an expert, it was mere speculation that the drainage system somehow caused the sidewalk conditions.

The plaintiff appealed the summary judgment dismissal to the Appellate Division.  Upon appeal, the plaintiff did not argue that the trial court made a mistake in barring his expert.  Rather, upon appeal, plaintiff argued that he did not need an expert to be able to argue that the defendants’ drainage system caused water to collect on the sidewalk, which could be a hazard when the weather was cold.

The Appellate Division first noted that residential property owners can be liable “if their actions create an artificial, dangerous condition on an abutting sidewalk, thereby negligently introducing a new element of danger other than one created by natural forces.”  Further, the Court noted that “homeowners have no duty to maintain the sidewalks abutting their property so long as they have not affirmatively created a hazardous condition.”  Thus, for plaintiffs to overcome defendants’ immunity from sidewalk liability, the plaintiff must present competent evidence showing defendants created or exacerbated a hazardous condition on the sidewalk. 

Plaintiff was asserting that the defendants’ drainage system routed precipitation from a prior storm causing it to pool on the sidewalk which then froze to form a sheet of ice.   However, the Appellate Division agreed with the trial court that expert testimony would be needed to establish that the cause of the water on the sidewalks was from the defendants’ drainage system. 

The Court found that the “topography of defendants’ property, the relative slope and manner in which water drained off the property, and whether the drainage system led to water pooling on the sidewalk under the facts presented here, required an expert’s specialized and technical knowledge to establish defendants’ negligence was the proximate cause of plaintiff’s slip and fall injury.”  The Appellate Division ruled that a jury would not be competent “to supply the requisite standard by which to measure defendants’ conduct and would be left to speculate.”  Thus, the Court agreed with the trial court that defendant’s negligence could not be established without the aid of an expert and upheld the summary judgment dismissal. 

District Court Finds That Mode of Operation Rule Did Not Apply to a Fall From a Blueberry Sold in a Clamshell Container

Plaintiff Jessica Nunez was shopping at the Clifton Costco and claimed that she slipped and fell on at least one blueberry on the floor in the meat department.  She sued Costco for her personal injuries.  The issue in Nunez v. Costco Wholesale Corp., 2025 U.S. Dist. LEXIS 196212 (D.N.J. Oct. 3, 2025) was whether Costco could be held liable under the mode of operation doctrine due to the sale of its blueberries packed in a clamshell container with pinch points at each corner, but not taped shut.

As a result of her fall, plaintiff suffered a fracture of her left patella, which required emergency surgery.  She claims that her surgery left her with substantial medical bills, lost time from work and changes in her employment. 

It was undisputed that Costco sold the blueberries packaged in a clamshell container with pinch points at each corner and that it sold them exclusively in the produce department, which was about 200 feet from the meat department where plaintiff fell.  The containers were not always taped, depending on the vendor, and sometimes the plastic containers did pop open.

The evidence showed that Costco employees performed daily floor walks to inspect for hazardous conditions, covering all areas at the store.  Plaintiff admitted that she could not recall ever encountering any spilled produce on the floor of this Costco prior to the date of the incident.  Further, the testimony was that while Costco employees did permit customers to open sealed produce containers while shopping, it did not encourage customers to eat while shopping.

It was unclear how long the blueberry (or blueberries) had been on the floor before the incident occurred.  There was no surveillance footage or eyewitnesses as to the accident.

The case was originally filed in New Jersey state court but it was removed to federal court. Thus, the litigation ensued in the Federal District Court of New Jersey.

Costco filed a motion for summary judgment, arguing that plaintiff was not able to establish a negligence claim under New Jersey law.  The two issues addressed by the Court were whether the mode of operation doctrine applied and, if not, whether Costco had actual or constructive notice of the alleged dangerous condition, i.e. the blueberry on the ground, that caused plaintiff’s injuries.

To establish a negligence claim, the plaintiff must show that there was a duty of care owed by the defendant and that the defendant breached that duty of care.  Costco, as a business owner, owed its invitee (its customer) a duty of reasonable care to provide a safe environment to its invitee.  However, the plaintiff must prove that the defendant/business owner had actual or constructive notice of the dangerous condition that caused the accident.

The District Court pointed out that in “very limited” circumstances, where the mode of operation rule applied, a plaintiff does not need to show actual or constructive notice to prove that a defendant/business owner breached its duty of care.  Once this rule is triggered, the burden switches to the business owner to establish that it “did all that a reasonably prudent man would do in the light of the risk of injury the operation entailed.”

The mode of operation rule only applies in self-service settings where “a business permits its customers to handle products and equipment, unsupervised by employees.”  There must be a nexus between the self-service components of the defendant’s business and the risk of injury in the area where the accident occurred.

Here, Costco conceded that it sold products in a self-service fashion and permitted customers to handle produce containers without employee supervision.  However, Costco argued that there was no nexus between the self-service component of its business and the risk of injury. 

Under New Jersey case law, “when a business owner instead uses a method that poses virtually no chance of spillage during ordinary, permissible customer handling,” the mode of operation rule does not apply.  The District Court cited to the New Jersey Supreme Court case of Jeter v. Sam’s Club, 250 N.J. 240 (2022), among other New Jersey state court decisions, in explaining and considering the application of the mode of operation rule to the facts of this case.

The Court noted that in Jeter, the New Jersey Supreme Court found “no reasonable factual nexus between the self-service activity and the dangerous condition causing plaintiff’s injury” when the business permitted only the self-service sale of pre-packaged sealed grape containers, rather than allowing customers to handle the produce in open top bags.  The Sam’s Club’s customers were intended only to handle the closed grape containers. The Jeter Court made clear that the presence or absence of tape on a closed container did not determine whether the mode of operation rule applied. 

The District Court also noted a prior District Court decision, also against Costco, Scalera v. Costco Wholesale Corp., in which the Court noted that “the taping of the containers was not the lynch pin of the Court’s analysis” in Jeter.  That case involved the sale of strawberries in a clam shell container which was not secured by tape.  As the Court in Scalera noted, “the analysis in Jeter hinged on whether the packing of the grapes in closed clamshell containers made it reasonably foreseeable that grapes would drop on the floor, and not on whether the containers were taped or might occasionally pop open.”

In considering the arguments made in Nunez, the District Court found that the mode of operation doctrine did not apply to the sale of the defendant’s blueberries in a clamshell container.  As in Jeter, the Court found that the defendant’s customers were not intended to handle the blueberries themselves or package the blueberries themselves.  Instead, they were intended only to handle the closed containers. 

Further, the Court found that plaintiff was unable to establish that Costco had actual or constructive notice of the blueberry on the floor.  It was undisputed that Costco had no actual knowledge.  The issue was whether the facts established that Costco could have had constructive knowledge of the blueberry being on the floor. 

To establish constructive notice of a hazardous condition, a plaintiff must be able to show that the condition was present “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  The length of time that the condition was present is key to determining whether constructive notice existed. 

A plaintiff is unable to prove constructive notice “when he or she cannot identify any facts in the record indicating how long the dangerous condition itself is present.”  The District Court noted that a court will look for evidence such as video footage, eyewitness testimony and whether the plaintiff his or herself noticed the hazard or had knowledge of when it was created.

Here, plaintiff had not pointed to any evidence from which a determination could be made as to how long the blueberry had been on the floor before the plaintiff’s fall.  Plaintiff did not know how long the blueberry had been on the floor prior to the incident.  Further, she was unable to identify any evidence regarding “characteristics of the berry that would indicate how long it had been there.”  Further, there was no surveillance footage, nor did any party claim that any eyewitnesses were present.  The Court found that “no one involved has any idea at all how long the hazardous condition existed before the incident occurred.”

Further, the Court pointed out that Costco did perform floor walks to check the floor for hazards hourly.   A Costco employee had performed an entire walk through of the store which had concluded only about 15 minutes before the incident occurred.

Thus, the District Court found that plaintiff had been unable to point to any evidence at all showing how long the hazard existed, but there was evidence that showed that Costco employees did closely monitor the area.  Hence, the Court found that plaintiff was unable to establish constructive notice.  Because of the absence of evidence of actual or constructive notice, that was fatal to plaintiff’s claim of premises liability.  Hence, the District Court granted summary judgment in favor of the defendant, dismissing the case.

Appellate Division Upholds Trial Court’s Involuntary Dismissal of Plaintiff’s Personal Injury Claim Due to Her Failure to Prove Liability

The Pro Se plaintiff Tannia Winston tried her personal injury case on her own against 7-Eleven.  She claimed that she was injured due to a slip and trip at defendant’s convenience store.  The issue in Winston v. 7-Eleven, Inc., 2025 N.J. Super. Unpub. LEXIS 1705 (App. Div. Sept. 18, 2025) was whether the trial court properly granted the defendant’s motion for an involuntary dismissal at the end of plaintiff’s case at trial.

Plaintiff commenced her lawsuit with counsel.  However, her attorney was relieved as counsel before the trial.  Therefore, plaintiff represented herself at the trial of this matter.

Plaintiff’s injury occurred when she entered a 7-Eleven in Jersey City on a rainy day to purchase a cup of coffee.  She claimed that, as she entered the store, her foot was caught under a large “object on the floor.”  She testified that she fell forward, stiffened up, and locked her knee to avoid falling.  She also claimed that an employee “quickly grabbed the object and ran it [sic] out of the building.”  Plaintiff further testified that she limped out of the store, boarded a bus to the emergency room, where a cast was placed on her leg.  She did admit upon cross-examination that it was actually a knee immobilizer.

At the conclusion of her testimony, plaintiff rested her case and 7-Eleven moved for an involuntary dismissal.  The defendant argued that plaintiff had failed to satisfy her burden of proving liability.  In particular, defendant argued that plaintiff failed to demonstrate “there was a condition in the store that was unreasonably dangerous” or that the defendant’s store was on notice of “whatever condition” plaintiff claimed caused her to trip.  Further, defendant argued that plaintiff failed to demonstrate the accident was the proximate cause of her alleged damages.

Plaintiff argued that defendant knew the object was on the floor because an employee grabbed it and commented to her about its improper placement at the entrance.  Plaintiff did not present any witnesses to testify about the object’s placement or duration at the entry.  She claimed that the judge forbade her from explicitly testifying she tripped on “cardboard” because she was unable to present expert testimony concluding that the object was cardboard.

The trial court judge granted the defendant’s motion for a dismissal.  The trial court judge found that plaintiff had failed to establish that the defendant 7-Eleven “knew or should have known of this alleged dangerous condition and failed to use a reasonable degree of diligence and care with respect to whatever the object was.” 

The trial court commented that the plaintiff was unable to tell the jury what object caused her to slip and there was no testimony about how long it was there or who put it there. Even though someone from 7-Eleven may have removed it after her incident, the trial court judge found that it did not establish that 7-Eleven was responsible for the placement of that object, how long it had been there or that they knew it was there and “they were not exercising reasonable care in their failure to remove it.”

Upon appeal, the Appellate Division noted that to prove a negligence claim in the context of a business invitee’s fall at a defendant’s premises, the plaintiff “must prove by a preponderance of the evidence: (1) defendant’s actual or constructive notice of a dangerous condition; (2) lack of reasonable care by defendant; (3) proximate causation of plaintiff’s injury; and (4) damages.”

The Appellate Division further noted that owners of premises were generally not liable for injuries caused by defects for which they had no actual or constructive  notice and no reasonable opportunity to discover them.  The Court stated that the absence of notice would be fatal to a plaintiff’s claims of premises liability.  Further, the Appellate Division noted that the “mere occurrence of an incident causing an injury is not alone sufficient to impose liability.”

Here, the Court found that the record supported the judge’s decision that plaintiff had failed to produce any evidence demonstrating that the defendant had actual or constructive notice of the condition that allegedly caused her to trip.  The Appellate Division also rejected the plaintiff’s claims that the trial court had refused to grant a continuance to allow her to produce witnesses and found that she failed to produce any evidence that the trial court judge instructed her what words were allowed for her to state and what she could not state during the trial. 

Hence, the Appellate Division affirmed the trial court’s dismissal of the lawsuit.

Summary Judgment Dismissal Affirmed Based Upon Storm In Progress Doctrine

Plaintiff Glenn Weidlich slipped and fell outside the front door of his condominium unit due to ice on the landing and fell down the stairs.  He sued the defendants, 313-319 First Street Condo Association Inc. and Clinton Hill Condo Association, among other defendants, claiming that they were negligent due to the unsafe condition of the exterior front stairs of the building.  At the time of his fall, there had been freezing rain.  The issue in Weidlich v. 313-319 First Street Condo Association, Inc., 2025 N.J. Super. Unpub. LEXIS 1366 (App. Div. July 22, 2025) was whether the ongoing storm rule immunized the condo association defendants from negligence for their failure to remove the ice from the stairs or whether one of the two exceptions to the ongoing storm rule applied.

Plaintiff owned and lived in the condominium unit located at 357 8th Street, Jersey City.  On the morning of January 5, 2022, as he stepped outside his front door, he slipped on ice on the landing and fell down the stairs.  Due to his fall, he suffered a torn patella tendon and underwent surgery.

Plaintiff sued the defendants, alleging negligence and premises liability.  He claimed that due to the unsafe condition of the exterior front of the stairs, he was caused to slip and fall on the steps.

At the conclusion of discovery, defendants filed motions for summary judgment, arguing that plaintiff fell solely because of the ongoing freezing rain and icy condition on the landing that morning and that they were immune due to the ongoing storm doctrine. 

The trial court found that plaintiff did slip and fall during an ongoing storm event.  It noted that the ongoing storm rule immunized “commercial landowners from negligence if they fail to remove an accumulation of snow and ice from public walkways during an ongoing storm,” citing to the Supreme Court Pareja v. Princeton International Properties case.  Further, the trial court found that neither exception to the ongoing storm rule was applicable.

This appeal ensued.  Unfortunately, for the plaintiff, the Appellate Division did agree with the trial court decision.

Plaintiff contended that the exceptions to the ongoing storm rule would prevent its application in his case.  He argued that there was a pre-existing dangerous condition of the stairs and that, further, the condition of the stairs was caused by a lack of maintenance and the recent paint job completed on the steps and landing. 

The Appellate Division noted the Supreme Court’s ongoing storm rule which affected the duty commercial landowners had to remove snow and ice accumulations and pathways during a storm.   The rationale of this rule was that “it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing.”  Thus, in Pareja, the Supreme Court held that “absent unusual circumstances, a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.” 

However, the Pareja Court did identify two exceptions to the ongoing storm rule that may impose a duty on a commercial landowner.  Under the first exception, a commercial landowner may be liable if his or her actions increased the risk to pedestrians and invitees on the property by, for example, creating unusual circumstances in which the defendant’s conduct exacerbated and increased the risk of injury to the plaintiff.  Under the second exception, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm.  Under the second exception, a landowner may be liable for an injury during a later ongoing storm if it “failed to remove or reduce a pre-existing risk on the property.”

In this case, neither party argued that the defendants did not have a duty to maintain the stairs outside defendant’s condominium and clear ice and snow for them.  The dispute focused, instead, on whether one of the exceptions to the ongoing storm rule applied. 

The plaintiff argued that defendants’ conduct created and increased the risk by not addressing the deterioration of the surface of the steps which allowed water infiltration and imperceptible freezing to occur over the surface; second, that the wrong paint was used during a recent paint job which, in plaintiff’s opinion, made the steps sleeker and harder to negotiate when wet; and, third, affixing the handrails next to the steps too far from the pedestrian pathway.

The Appellate Division noted that the plaintiff admitted that he never reached any of the steps because he fell on the landing outside his front door that morning due to the icy conditions.  As for the condition of the steps, plaintiff admitted that there had been no precipitation on the days before he slipped and fell but that there was precipitation in the form of freezing rain and snow at the time of his fall.  But, regardless of the condition of the steps, the plaintiff fell on the landing before he reached the steps.  Therefore, the pre-existing condition of the steps did not satisfy any exception to the rule. 

As for the handrails, although plaintiff had an expert on that point, the expert report failed to provide any support for his conclusion that the handrails were too far away from the walking pathway to allow plaintiff to utilize them to stabilize himself or help him regain his balance after slipping on the ice.  The Court found that it was a bare conclusion, not supported by any credible evidence on the record.  Thus, the Court found it to be an inadmissible net opinion.

With respect to plaintiff’s lay opinion that the paint job made the landing more slippery, the Court also rejected that argument as satisfying one of the exceptions to the storm in progress rule. The defendants argued that an expert was needed to explain how the type of paint used made the steps more slippery.   Plaintiff’s expert offered no opinion as to this assertion and the Court found that this conclusion required expert testimony.  The Appellate Division found that, without an expert, the record failed to establish any nexus between the paint job and plaintiff’s fall.

For the above reasons, the Court agreed that the ongoing storm rule applied and none of the exceptions to the rule applied.  Thus, the Appellate Division affirmed the trial court’s summary judgment dismissal of the lawsuit.

Appellate Division Reaffirms “Bright-Line” Between Commercial and Residential Properties as to Public Sidewalk Liability

In the published case of Gottsleben v. Annese, 2025 N.J. Super. LEXIS 52 (App. Div. July 3, 2025), the plaintiff Debra Gottsleben unsuccessfully attempted to expand the principles of public sidewalk liability for commercial properties to a residential property that was unoccupied and undergoing renovations.  The plaintiff had slipped and fell on the sidewalk in front of the defendants’ house on the morning of February 18, 2021, due to an accumulation of snow and ice. She sued the defendants for her injuries suffered.

Plaintiff argued that because the property was vacant at the time of the fall and undergoing construction that could enhance the property value, the defendants, as a matter of public policy, should be governed by the same sidewalk law principles as commercial owners.  In the alternative, the plaintiff contended that the defendants were nonetheless liable as residential owners for allegedly worsening the sidewalk’s condition due to the poor shoveling and treatment of the sidewalk. 

At the trial court level, the defendants filed for a summary judgment.  They argued that as residential property owners, their duty was distinct from commercial owners and that New Jersey case law did not impose on them a duty to maintain the safety of a public sidewalk in front of their premises.  Further, they argued that there was no proof that they worsened the natural condition of the sidewalk.  They argued that the plaintiff’s proofs failed to substantiate her claims of negligent worsening and causation, and that her theory of liability was speculative and inadequate to present to a jury.

The trial court granted the defendants’ motion and dismissed the complaint.  The trial court judge found that defendants’ property could not be fairly treated as commercial under sidewalk liability principles.  The trial court judge pointed out that the property was not used for investment nor to generate profit, that defendants always intended to live at the property, and that the ongoing renovations at the time of the plaintiff’s fall did not alter the property’s residential status. Thus, the trial court applied residential sidewalk liability standards to the facts and ruled that defendants were entitled to summary judgment. 

This appeal ensued.  First, the plaintiff renewed her novel policy argument for treating defendants’ unoccupied property the same as commercial premises under the sidewalk law; second, she argued that there were genuine material issues of facts as to whether defendants worsened the sidewalk’s natural condition through poor shoveling and treatment. 

The Appellate Division noted the longstanding New Jersey law that an abutting property owner owed no duty to maintain the street or sidewalk in front of his house or premises.  New Jersey courts have declined “to impose civil liability upon homeowners for non-compliance with municipal ordinances that require them to remove accumulations of snow and ice on sidewalks abutting their residences.” Id. at *10.

These principles of sidewalk law have evolved through state case law, leading to the emergence of a “bright-line” between commercial and residential property owners. Under this “bright-line” test, residential property owners in New Jersey are not civilly liable for failing to comply with the municipal ordinances requiring them to clear snow and ice from adjoining sidewalks. 

The Appellate Division rejected the plaintiff’s novel argument that the principles of sidewalk liability for commercial properties should be applied to a residential property during a period when the premises are unoccupied and undergoing renovation or construction.  The Court noted that the defendants’ intention was to move into the house after the renovations were complete, despite the plaintiff’s argument that the renovations to the property would likely increase its market value and that the defendants might profit if they sold the property in the future. Whether it was profitable or not, the renovation of the property did not change its residential character.

Writing on behalf of the court, Judge Sabatino noted that the law “should not deter New Jersians from renovating their homes out of the concern that vacating the premises to enable such improvements will transform residents into commercial owners for purposes of sidewalk liability.” Id. at *15.

Hence, the Appellate Division stated that it was not its role to create new exceptions to the sidewalk law principles that have been repeatedly enunciated and modified by the Supreme Court.  The Court ultimately found that the trial court had properly applied the principles of residential sidewalk law to the facts of this case, rather than the commercial standards advocated by the plaintiff. 

There are circumstances under which an abutting residential owner can be liable for an injury caused by the condition of the public sidewalk.  However, under New Jersey law, a residential owner is not civilly liable for a hazardous condition of the public sidewalk abutting the owner’s property unless the owner’s conduct made the natural condition of the sidewalk more dangerous.

Here, the Appellate Division found that the plaintiff failed to present proofs that demonstrated how defendants’ conduct had worsened the natural condition of the sidewalk.  Thus, the Court affirmed the trial court decision granting summary judgment and dismissing the complaint. 

Concert Venue Found Not Liable for Slip and Fall Injury From Liquid on Concourse

Plaintiff Gabriela Mirtha Tiscornia Sosa was injured when she slipped and fell on a wet floor at a concert at the Prudential Center.  This venue was owned by defendant DAE, which contracted with defendant ABM to provide janitorial services.  The issue in Sosa v. Devils Arena Entertainment, LLC, 2025 N.J. Super. Unpub. LEXIS 787 (App. Div. May 15, 2025) was whether the defendants could be liable for the injuries plaintiff suffered from her fall in the translucent puddle on the upper concourse.

Plaintiff and her daughter had upper-level seats but about 10 minutes into the show, a Prudential Center employee offered to move them to seats closer to the stage.  They agreed and went down the steps to the concourse level and entered the concourse.  Plaintiff slipped and fell as she looked for an elevator to take down from the upper level.  She claims she saw a translucent puddle while she was lying on the ground.  Plaintiff claimed that both DAE and ABM were negligent because they allowed a “dangerous condition” to exist, which caused her injury.

At the trial court level, the court granted summary judgment dismissing the case.  This appeal ensued. 

The claim against DAE was that it caused the injury by moving her seat and permitting the service of drinks and open containers.  Plaintiff argued that it was foreseeable that beverages would spill onto the floor and plaintiff did not have to show that DAE had notice.  Plaintiff claimed that the mode-of-operation doctrine applied because of the manner of the beverage service and an inference could be drawn that a drink caused the spill leading to her fall.  Plaintiff also claimed that ABM had constructive notice and was, therefore, liable because it was aware of DAE’s practice of allowing open drink containers.

The trial court judge found that the mode-of-operation doctrine did not apply because there was no information in the record establishing what the liquid that plaintiff fell on was, where the liquid came from, where it was created, or how long the liquid was present on the floor.  The Appellate Division agreed with the trial court’s decision that the mode-of-operation rule would not apply under these circumstances.

Further, the unrebutted evidence showed that DAE had contracted to keep the arena clean and that the ABM representatives’ testimony explained how ABM went about doing so.  Plaintiff failed to establish a nexus between DAE’s mode-of-operation, “mainly, serving drinks in open containers, having a janitorial services company patrol and monitor the area of floors,” and the liquid on the floor.

The Appellate Division further commented that there was no evidence to support the necessary elements of actual or constructive notice to hold either DAE or ABM liable.  Plaintiff did not know what she slipped on or what the liquid was on the floor.  There had been no reports of spills or debris.  Even if there was liquid on the floor, there was no evidence showing how long it was present or that it was caused by an open container beverage.  Hence, the Appellate Division affirmed the trial court’s decision, granting summary judgment and dismissing the complaint.

Court Dismisses Plaintiff’s Personal Injury Lawsuit Due to Inability to Identify Why Floor Was Slippery

Plaintiff Ann Brilliant slipped and fell inside an Outback Steakhouse but did not know how or why she slipped.  She was unable to identify any specific hazardous condition of the floor or deviation from accepted safety standards.  The issue in Brilliant v. Outback Steakhouse of Florida, LLC, 2025 U.S. Dist. LEXIS 87014 (D.N.J. May 7, 2025) was whether summary judgment should be granted to the defendant Outback Steakhouse due to plaintiff’s failure to identify why the floor was slippery and what caused her to fall.

Plaintiff had met her friend Darsell Pigford for dinner at an Outback Steakhouse in Deptford, New Jersey.  As she was walking to her table, she slipped and fell, breaking her arm and leg.

She testified at her deposition that she did not notice any substance on the floor that caused her to slip.  Rather, she guessed that “the floor was slippery because it had a wax residue on it that made it feel like a sheet of ice.”  However, she denied seeing or feeling any wax residue on the floor.  Plaintiff’s friend, Ms. Pigford, also testified in a deposition that she frequently ate at this Outback and that the floor always seemed slippery but, she was unaware of any particular condition that made the floor slippery.  Although, on one of her prior visits, she had apparently alerted restaurant staff about the slipperiness of the floor.

At the conclusion of discovery, Outback moved for summary judgment, arguing that, as a matter of law, no reasonable jury could find that it negligently maintained its floor.  The District Court found that plaintiff could not survive summary judgment “because she has failed to present evidence outside her and her witnesses’ own subjective characterizations that Outback maintained its floor negligently.”

The Court relied on prior New Jersey case law which held that “the mere fact that a plaintiff falls on a waxed floor is not enough to infer negligence; instead, the plaintiff has to show that the way the floor was waxed – in terms of the nature or quantity of the substance used, or in the matter or time of its application – was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises.” 

Here, plaintiff failed to produce any evidence that the floor was negligently waxed, or that it was waxed at all.  The Court also pointed to out of state decisions in which courts have held that a plaintiff cannot prevail on a negligence claim when she fails to offer any evidence that the floors were excessively slippery, “other than subjective characterizations about the appearance of the floor.”

Plaintiff had also argued that summary judgment should be denied because Outback failed to produce in discovery a completed opening and closing inspection checklist, as well as a completed facilities inspection checklist.  Instead, Outback had only produced a blank version of the opening checklist.  Plaintiff argued that defendant’s failure to preserve these records should create a negative inference that it either never created the records or that the records were destroyed because they were harmful for the defendant. 

The District Court disagreed with that argument.  Plaintiff had never objected in discovery to Outback’s failure to produce these completed versions of the checklist from the day of the accident.  Further, the Court noted that production of the completed checklists, even if they did exist, would not create a triable dispute of fact.  At most, the checklist would establish that inspections were conducted but not what if anything was observed during the inspections, let alone that any hazardous condition was or should have been detected.

The Court concluded that the undisputed evidence was that there was no admissible evidence of a dangerous hazard on the floor and, as such, the argument that any hazard could have been identified or remedied by an inspection procedure was speculative.  Thus, the District Court granted summary judgment and dismissed the complaint.

  • Evidence

Photographs Showing Mopping of Floor and Caution Sign Placed Post-Accident Barred at Trial As Subsequent Remedial Measure

Plaintiff Pauline Jelken fell in a puddle of water in the lobby of the defendant’s Public Storage facility.  After she fell, an employee mopped the puddle and placed a caution sign on the floor.  Plaintiff sued Public Storage for her injuries suffered from the fall. The issue in Luciano v. Public Storage, 2025 N.J. Super. Unpub. LEXIS 383 (App. Div. Mar. 13, 2025) was whether the trial court judge properly barred Jelken from introducing photographs of the post-accident measures undertaken after Jelken fell, specifically the mopping of the floor and the placing of the caution sign. 

On July 4, 2018, Jelken went to defendant Public Storage’s facility with her friend Arlene Castello to retrieve items she had stored there.  It rained that day and she slipped and fell in a puddle of water in the lobby of the premises.  Jelken reported her fall to the defendant’s employee.  Thereafter, an employee mopped the puddle and placed a caution sign on the floor.

Jelken filed a personal injury lawsuit for injuries she suffered in her fall.  The case proceeded to trial and, among other witnesses, the defense presented a forensic engineering expert, Dr. David Behnken, to testify as to the condition of the floor. 

Prior to trial, the defense made two evidentiary motions, ruled upon by the trial court, one of which will be discussed in this blog article.  One of the motions concerned post-accident photos that showed the floor being mopped and a caution sign placed at the scene of the fall. The defendant sought to bar them from being introduced into evidence at the trial. The trial court judge granted that motion.

The trial court judge asked Jelken’s attorney to state the basis for introducing this evidence.  Jelken’s attorney stated that he intended to use the photographs to demonstrate Jelken “got out of the facility safely.”  The trial court judge ruled that the post-accident photographs were inadmissible under the evidentiary rule, N.J.R.E. 407, which barred the introduction of evidence of subsequent remedial measures.

The judge reasoned that the photos went more to the remedial measures that were taken by the defendant after the accident. While pictures of the condition of the floor at the time of the accident would be admissible, the judge found that the mopping and pictures with the signage around it was not the condition of the floor at the time of the accident and barred their admission at trial.

At trial, Jelken’s attorney sought to revisit this ruling after defense counsel gave his opening statement.  During the opening statement, the defense counsel argued that the floor was slip resistant and that you could pour all the water you want on the floor and you could not slip.  Jelken’s attorney made the argument that defendant sought to portray the floor as slip proof and contended that “the photographs demonstrating defendant’s employee mopped the floor and placed a caution sign refuted the floor’s safety.”

The judge restated his pre-trial ruling that the post-accident photographs constituted inadmissible subsequent remedial measures, precluded under N.J.R.E. 407.  The judge further commented that Jelken had the opportunity to call an expert in the matter to indicate that the floor was not slip proof.  The judge also barred Jelken’s attorney from using the photographs of defendant’s post-accident remedial measures to cross-examine defendant’s engineering expert. 

After hearing all of the testimony, the jury found that plaintiff had failed to prove defendant was negligent and found for defendant.  Jelken filed a motion for a new trial based upon the court’s evidentiary rulings.  That motion was denied and this appeal ensued. 

On appeal, Jelken argued that the judge made a mistake in excluding evidence of defendant’s post-accident safety measures.  In considering this argument, the Appellate Division noted that: “while evidence of safety measures taken after an accident may tend to prove or disprove a fact of consequence, New Jersey has a clear and longstanding public policy favoring the immunization of remedial measures from negative inferences.” 

The Court explained that, pursuant to this rule of evidence, evidence of remedial measures taken after an event were not admissible to prove that the event was caused by negligence or culpable contact.  However, evidence of subsequent remedial conduct may be admitted as to other issues such as to establish control over the instrumentality causing the injury, to show defendant’s customary standard of care, to prove the condition existed at the time of the accident, to show that a feasible alternative for avoiding the danger existed at the time, or to attack the credibility of a witness. 

During the appeal, plaintiff argued that the photographs were relevant to show that plaintiff got out of the facility safely, to show the floor was slippery, and to impeach defendant’s engineering expert who testified the floor was highly slip resistant. 

The Appellate Division found that the trial court judge did not abuse his discretion in precluding evidence of the defendant’s post-accident conduct under N.J.R.E. 407.  The photographs, showing the defendant’s employee mopping a puddle and placing a caution sign were changes and repairs made subsequent to the accident, were precautions taken subsequently to prevent recurrence of an injury and were not admissible as showing negligence or as amounting to an admission of negligence. 

Hence, the Court found that absent a proffer of the photographs to prove some other fact in issue, the evidence of subsequent remedial measures could not be used to show negligence.

The Appellate Division also rejected the argument that the photographs were required to prove Jelken exited defendant’s facility safely.  Both plaintiff and her friend who accompanied her testified that they left the facility without further incident.  While photographs showing the condition of the floor at the time of the fall might be relevant to plaintiff’s negligence claim, photographs of the floor after defendant’s employee took action constituted evidence of subsequent remedial measures which were properly precluded under this rule of evidence.

Plaintiff further argued that she intended to use the photographs of defendant’s post-accident conduct to prove the floor was slippery.  The Appellate Division found that the best evidence in support of this contention was the testimony proffered by plaintiff and her friend during the trial.

The Appellate Division further rejected the argument that the evidence of defendant’s subsequent remedial measures should be admissible to impeach defendant’s engineering expert. During direct testimony, the engineering expert was never questioned as to defendant’s post-accident conduct.  During cross-examination, plaintiff’s attorney hypothetically asked the witness if he had been at defendant’s premises at the time of the fall, whether he would have placed a sign warning people to be careful.  He testified that he would not have directed the placement of such a sign. Because Plaintiff’s counsel, not Defendant’s counsel brought up the issue of placement of the sign, the post-accident photos showing the sign could not be used to impeach the expert’s testimony.

Thus, the Appellate Division ruled that this evidentiary ruling was proper by the trial court judge.  The Court found that the denial of Jelken’s new trial motion was not a miscarriage of justice under the law and affirmed the trial court’s decision.  Accordingly, the jury verdict in favor of the defendant was upheld.

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