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Plaintiff’s Personal Injury Lawsuit Against Trampoline Park Dismissed Due to Lack of Expert Testimony As to Duty of Care Owed by Facility

Plaintiff Katie Freiermuth went with her children to defendant Get Air’s trampoline park. While walking to the restroom, she walked past two wet floor signs and an employee actively mopping the floor. She took several steps and slipped and fell on the wet floor. She subsequently sued Get Air for her injuries suffered from the fall. The issue in Freiermuth v. Get Air Mays Landing, LLC, 2026 N.J. Super. Unpub. LEXIS 1826 (App. Div. Aug. 5, 2026), was whether Plaintiff needed an expert to establish the industry standard of care for maintenance of the facility and whether there was any breach of a duty of care owed to her.

Plaintiff did not know the source of the water but the accident was captured on the defendant park’s video surveillance system. Plaintiff claimed to have suffered a lumbar and left knee injury due to her fall.

After discovery ended, defendant moved for a summary judgment. The trial court granted the motion and dismissed the lawsuit. The judge found that Get Air did owe plaintiff, as a business invitee, “a duty of reasonable care to guard against dangerous conditions on its property that it either knew about or should have discovered.” However, the judge found that plaintiff “failed to articulate any industry standard for which Get Air was responsible and breached,” that it did not create a dangerous condition or fail to exercise reasonable care to guard against such a condition, and that plaintiff signed a valid waiver and release of liability as to use of the facility.

This decision was appealed and upheld by the Appellate Division.

The appeals court agreed with the trial court that expert testimony was needed to establish the industry standards for the park’s cleaning and maintenance guidelines or standards during business hours. The Court found that the record lacked factual or expert testimony “to show that Get Air failed to exercise due care by not posting additional warning signs or safeguards for mopping during business hours.”

Expert testimony would be needed because “the average juror would be unable to determine whether Get Air’s actions in mopping and posting warning signs were unreasonable and did not comport with industry standards.” The Court agreed with the trial judge that “an expert would be necessary to assist the jury in determining whether Get Air’s actions fell below what was expected and required to maintain the park’s safe environment.”

The Appellate Division also found that Get Air’s mopping procedure did not create a dangerous condition. Cleaning the facility floor and putting up two wet floor signs to ensure the safety of its patrons was reasonable and did not create a dangerous condition. Regardless of the source of the water (it may have been from a spill), the park satisfied its duty to warn against such a potentially dangerous condition by posting the warning signs.

Further, the Court noted that the area being mopped was “open and obvious” to patrons. Plaintiff acknowledged that she walked past two wet floor signs on the way to the restroom and an employee actively mopping the floor. Hence, as the trial judge found, “plaintiff was on notice of any purported dangerous condition and walked into the area nonetheless.” Hence, there was no breach of a duty to warn. Because the Appellate Division found that the trial court judge correctly ruled that the plaintiff failed to establish a duty of care based on industry standards and a breach of that duty, it did not reach the issue of whether the liability waiver was applicable.

Ongoing Storm Rule Upheld Due to Plaintiff’s Inability to Establish Clear Endpoint to Precipitation

On January 5, 2022, at some point between 11:00 a.m. and noon, plaintiff Tyrone Granum left a friend’s apartment in a multi-unit apartment building in Newark owned by defendant Ecuador Velez. Granum alleged that as he walked down the concrete exterior stairs leading from the building’s front door, he slipped and fell on a patch of ice near the top of the staircase, severely injuring his back. After Granum filed suit against Velez, titled Granum v. Velez, 2026 N.J. Super. Unpub. LEXIS 867 (App. Div. May 1, 2026), Velez produced an expert meteorologist’s report that identified freezing rain and sleet overnight, with some light snow intermittently overnight, with freezing rain continuing that morning, changing to rain from about 9:30 a.m. until shortly after noon. Velez filed a motion for summary judgment to dismiss the complaint, raising the issue of whether New Jersey’s recent “ongoing storm” rule was appropriate when the plaintiff could not establish when the storm had ended.

As the Appellate Division’s opinion points out, the Supreme Court, somewhat controversially, established the “ongoing storm” rule in 2021 in Pareja v. Princeton Int’l Props., 246 N.J. 546 (2021), when it overturned the Appellate Division’s own opinion that struck down the rule on public policy grounds. The rule established by the Supreme Court in Pareja states that a private landowner generally does not have a duty to remove snow or ice from public walkways until a reasonable time after the precipitation has ended. The Court noted two exceptions, one where the defendant’s conduct somehow increases the risk to pedestrians (such as forcing someone to take a longer walk around an area of dangerous ice) or when there was a pre-existing risk on the premises (such as the failure to remove snow or ice from a previous storm). The opinion left the door open for a plaintiff to introduce facts that questioned when the storm ended or whether the accumulation of ice or snow was from a prior storm, both of which may defeat a summary judgment motion.

In opposition to the motion, Granum testified that it had stopped snowing at the time of his fall, but he failed to show a clear endpoint of the rain or snow or that the endpoint occurred within a reasonable time before he fell. Finding that Velez met the standard for the ongoing storm rule to apply, even when the evidence was viewed in a light most favorable to Granum, the trial court granted Velez’s motion for summary judgment, dismissing the matter. Granum appealed.

On appeal, Granum’s argument was that the trial court failed to consider the evidence in a light most favorable to him because he factually disputed the timing of the storm’s end and that the ongoing storm rule should not apply to premises such as Velez’s apartment complex. The Appellate Division disagreed, finding that Granum could not present a genuine issue of material fact to defeat the motion.

Relying on their “obligation to apply” Supreme Court precedent, the Appellate Division found that Granum’s account of the facts was “imprecise and largely uncertain,” noting that he admitted it sleeted the night before and that, when he emerged from the apartment, he testified “it wasn’t snowing,” without explicitly denying whether it was still raining or sleeting, nor could he approximate when the precipitation ended entirely.

Further, Granum attempted to argue that owners of privately owned sidewalks, or stairs, have a heightened duty for the safety of the public with a reference to case law that removes public sidewalk immunity from a homeowner’s association since they own or control the sidewalk. The Appellate Division found this position inapplicable because, here, Velez is not claiming an immunity from liability, but that he does have a duty to remove ice and snow from the stairs and sidewalks, it is just suspended until “a reasonable time after the cessation of precipitation.”

Court Determines Plaintiff’s Evidence of Black Ice “Conjecture” in Dismissing Complaint

In December, 2020, Plaintiff Gwenevere Love (Love) walked out of an Acme in Audubon and sustained a serious knee injury when she stepped off the curb and slipped. She went to the hospital four hours later and told the ER nurses, as seen in the ER records, she had slipped and fell on black ice. She filed suit against the Acme (and others) for failure to maintain their premises. In her deposition she testified she did not see black ice, or any ice or snow, in the area, but the ground was cold when she landed and she surmised she slipped on black ice. Love produced weather reports that suggested the weather warmed up during the day, melting earlier snow, then re-froze, causing black ice. Acme moved for summary judgment, claiming there was no evidence of notice or that her fall was caused by a dangerous condition. After the trial court granted the motion and Love appealed, the Appellate Division in Love v. Acme Mkts., Inc., 2026 N.J. Super. Unpub. LEXIS 1041 (App. Div. May 20, 2026) had to determine whether the trial court applied the proper standard in reviewing evidence and making inferences in Love’s favor when deciding the motion for summary judgment.

Long-standing New Jersey law holds that summary judgment should be granted if the facts in the matter show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. An issue of fact is not a “genuine” issue of fact if, for the purposes of the motion, it has a single, unavoidable resolution. In reviewing a summary judgment motion, the trial court must consider the competent evidence and draw all reasonable inferences from that evidence in a light most favorable to the non-moving party.

Love’s position was that the evidence established there was a genuine issue of material fact “beyond mere conjecture, speculation, surmise, or guess” that black ice on Acme’s property, and their failure to inspect for it, caused her to fall. She argued that the facts from her deposition testimony and statements she made to ER personnel that she fell on ice, and the weather reports met the standard. She also argued that the trial judge did not properly apply the standard in drawing all reasonable inferences in her favor and to stay out of resolving factual disputes.

The Appellate Division upheld the trial court, finding that it correctly ruled on the evidentiary issues and concluded there was no genuine issue of material fact that Acme was entitled to summary judgment. The Court agreed that Love’s statement in the ER records that she slipped on ice, made four hours after she fell, was inadmissible hearsay. While those records would be admissible for her statements of pain, they would not be admissible for something non-treatment related, such as the presence of snow or what caused her fall. Further, they found her deposition testimony that she slipped on ice speculative. She only concluded she slipped on black ice circumstantially (the ground was cold, her foot slipped) and, more importantly, she did not see any snow or ice on the ground in the area she fell or in the parking lot. The Court found that while the non-moving party is entitled to the benefit of all favorable inferences, there’s a difference between a favorable inference and speculation. Her testimony that she slipped on black ice was mere conjecture and not based on competent evidence to present a genuine issue of fact. As for the weather reports, without an expert to interpret the data included in the weather reports to link it directly to a thaw and refreeze, the court was under no obligation to use that evidence to draw an inference in her favor. This evidence only established the mere possibility that ice caused her fall, and this was not enough to resolve the issue in her favor.

Importantly, the Appellate Division was satisfied with the role the trial court took to distinguish between inferences and conjecture, and did not intrude on the fact-finding duties of the jury. The Court held that when a trial court’s ruling depends on certain evidentiary issues, the trial court must decide on the admissibility of that evidence. The Appellate Division here approved of the trial court’s weighing and sifting of evidence (determining the ER record to be hearsay, the deposition testimony inadmissible speculation, and the weather report’s need to be supported by an expert opinion), and its function here appropriately stopped short of interfering in fact-finding responsibility that is the sole domain of the jury.

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. 

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