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Court Finds County Not Liable for Fall on Public Sidewalk Adjacent to County Road

Plaintiff Frances Hice tripped and fell and suffered injuries as a result of an uneven public sidewalk slab on Watchung Avenue in Bloomfield.  The sidewalk abutted a private residence owned by defendants Jose Cruz and Angelica Delacruz.  The sidewalk was adjacent to a road (Watchung Avenue) owned by the County of Essex.  The issue in Hice v. State of New Jersey, 2025 N.J. Super. Unpub. LEXIS 2039 (App. Div. Oct. 28, 2025) was whether the County could be held responsible for a fall which occurred due to an uneven sidewalk adjacent to its roadway.

The uneven sidewalk was caused by tree roots from a tree located on the Cruz-Delacruz property.  Plaintiff initially sued the Township, the State, the County, and the homeowners.  By the time the appeal occurred, the only remaining defendant was Essex County.

The County owned the Watchung Avenue roadway in Bloomfield but, pursuant to N.J.S.A. 27:16-8, it owned the roadway between the curblines, excluding sidewalks.  The sidewalk itself where plaintiff fell was not owned by the County, the homeowners, nor the Township of Bloomfield.  Rather, the sidewalk was considered a right of way and residential property owners would be responsible for maintaining it.

About two years before plaintiff fell, the County began a resurfacing project and was mandated, as part of the project, to install curb ramps compliant with the Americans with Disabilities Act (ADA) at the corners of all roadways.  This project included installation of a ramp near the sidewalk slab where plaintiff tripped.  The scope of the project, however, was limited to replacing the existing pavement markings, sidewalk and curb necessary for the installation of the handicap ramps.

It was undisputed that plaintiff did not fall on the handicap ramp or on the slab next to the handicap ramp.  Rather, plaintiff fell three slabs away from the end of the sidewalk where one of the new ramps was installed.  Plaintiff did concede that this distance was approximately 12 feet from the newly installed ramp.

Plaintiff obtained an expert report from an engineer, Dr. Wayne Nolte.  Dr. Nolte acknowledged that the property adjacent to the sidewalk was owned by the homeowners and that the sidewalk’s maintenance was the responsibility of the abutting property owner.  In his report, however, he stated that the sidewalk between the handicap ramps was required by the ADA standard to have elevation differentials no more than ¼ of an inch.  He concluded that the installation of the handicap ramps exceeded this height differential and, therefore, did not comply with the ADA standard.  But, he did not dispute that the location of the elevation differential, where plaintiff fell, was not on the handicap ramp, nor on the slab next to the ramp.

The defendant homeowners and the County filed for summary judgment at the trial court level.  A summary judgment dismissal was granted by the trial court judge, dismissing out both the homeowners and the County.

While plaintiff appealed both orders for summary judgment, he settled out with the homeowners before the appeal was heard.  Thus, upon appeal, the Appellate Division only dealt with the challenge to the order granting summary judgment to the County. 

The Appellate Division pointed out that a public entity may be held liable for an injury caused by a condition on its public property.  But, liability as to a public entity would only pertain to the property owned or controlled by the public entity. 

Plaintiff argued that the County constructed the ramp in violation of ADA due to the height differential.  Plaintiff argued that the uneven sidewalk caused the plaintiff to trip and fall and be injured.  Further, plaintiff contended that the County created the dangerous condition and, therefore, it had actual or constructive notice of it.

The Appellate Division pointed out the flaws in these assertions.  First, it was undisputed that the plaintiff fell on the sidewalk approximately three sidewalk slabs from the County’s worksite and not next to the handicap ramp.  There was no evidence that the County owned or was responsible for the entire sidewalk.  In fact, the Township Code clearly provided that the abutting property owner was responsible for the installation, repair, or replacement of sidewalks. 

Further, the County did not take control of that portion of the sidewalk when it began construction of the ADA compliant ramp.  The record did not show that the uneven sidewalk where plaintiff fell was caused by the County’s work.  Because there was no evidence showing that the County took control over the entire sidewalk, it had no legal duty to repair the part of the sidewalk where plaintiff fell.

Plaintiff argued that when the County undertook the responsibility of installing the handicap ramp, it had an obligation to ensure that there was nothing greater than ¼ of an inch height differential along the entire sidewalk.  The Appellate Division pointed out that the plaintiff provided no legal support for extending this legal duty to a portion of the sidewalk under the control of the abutting property owner and not the County. 

Hence, the Court declined “to expand a public entity’s duty to inspect and potentially repair sidewalks abutting County roadways not under their control or ownership to ameliorate any potential hazard.”  Because the Appellate Division found no genuine of issue of fact as to whether the County owned or controlled the sidewalk where plaintiff fell, the Court found that the trial court judge had properly granted summary judgment to the County and it affirmed the trial court’s dismissal.

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. 

Appellate Division Reverses Summary Judgment Order Granted Due to Plaintiff’s Medical Experts Failure to Apportion Her Injuries Among Two Accidents and Her Preexisting Condition

Plaintiff Hellen Bayer was in an automobile accident with defendant Michael Roman on November 22, 2017.  The parties contested the severity of the accident, but plaintiff alleged to have suffered injuries to her neck and back.  The issue in Bayer v. Roman, 2024 N.J. Super. Unpub. LEXIS 2605 (App. Div. Oct. 25, 2024) was whether plaintiff’s personal injury claim should have been subject to a summary judgment dismissal due to her failure to present medical testimony apportioning her injuries between her preexisting condition, injuries suffered from the 2017 accident, as well as potential injuries suffered in a subsequent April 2018 automobile accident.

At her deposition, the plaintiff claimed that the force of the impact was a 9 out of 10.  However, she acknowledged that the damage to her car was minimal, and it did not require repairs.  It was her testimony at depositions that her head struck the back of the seat twice, really hard, and that she also felt the impact to her left leg.  She was taken by ambulance to a local hospital where she complained of neck pain, radiating into her left arm with numbness and tingling into her left shoulder.  It was noted that three months previously, she had spinal fusion surgery at L4-L5.

As it turned out, back in December 2014, plaintiff had been diagnosed with a disc herniation at L3-L4 with degenerative disc changes at L5-S1.  Plaintiff had underwent lumbar spinal fusion in August 2017 before her auto accident with defendant Roman.

Plaintiff was also in a subsequent automobile accident in April 2018 when a car she was driving was struck from behind by a car traveling about 40-50 miles per hour.  As a result of the impact, plaintiff struck her head on the seat back.  She treated at a hospital with complaints of headache, neck pain, back pain and new right sided pain and tingling.   

Plaintiff received medical treatment for both her neck and back, as well as treatment for TMJ.  Her orthopedic surgeon, Dr. Meese, noted that plaintiff had been treating for her neck and back from a prior motor vehicle accident but that the 2017 accident exacerbated the pain in her neck and back, causing an acute exacerbation of cervical and lumbar radiculopathy. 

Plaintiff also obtained treatment from a dentist, Dr. Robert Federman for TMJ syndrome.  He noted that she had no preexisting history of dental injuries and concluded that the motor vehicle accident of 2017 was the probable cause for all of her injuries to her TMJ and related teeth. 

Finally, plaintiff treated with Dr. Cohen, who summarized her prior medical records and related her problems to her November 2017 accident.  He performed a Polk analysis (a comparison analysis of injuries from successive accidents) and opined that she had an aggravation and worsening of her preexisting lumbar fusion surgery after the 2017 accident and now suffered a new injury at the L4-5 level. 

However, neither of the reports of Drs. Federman or Cohen referenced the April 2018 accident. But, Plaintiff only claimed personal injuries for the November 2017 accident and did not file a lawsuit regarding the April 2018 collision.

Defendant did not retain a medical expert.  However, defendant did obtain an accident reconstruction expert and a biomechanical expert.  The biomechanical expert opined that plaintiff’s “claims of injury or enhancement of any preexisting condition resulting from the November 22, 2017 accident are inconsistent with the minimal severity of this incident.”

At the end of discovery, defendant filed for a summary judgment, claiming that the record was devoid of any credible evidence that he caused the accident.  He argued that his expert reports demonstrated that plaintiff’s injuries could not have occurred based upon the forces resulting from this type of accident.  Further, he argued that plaintiff’s experts failed to apportion the injuries between the present accident and her preexisting condition, or the present accident and subsequent accident.

The trial court judge granted the motion, dismissing the lawsuit.  The court “was persuaded plaintiff was unable to prove the accident was the proximate cause of her injuries.”  The trial court judge relied upon the uncontested opinion of the defendant’s biomechanical expert that plaintiff’s injuries could not have been caused by this accident.  Further, the trial court noted that the plaintiff’s medical experts failed to explain why the injuries could not have been caused by the later accident and it noted that a Polk analysis was required to prove causation at this stage of the litigation.  Hence, the trial court granted summary judgment because “no rational fact finder could find in plaintiff’s favor on the issue of causation.”

The Appellate Division reversed.  It noted that plaintiff bears the burden of proving defendant’s negligence and that the defendant’s negligence was the proximate cause of the plaintiff’s injury.   It further noted that “a plaintiff seeking recovery for an injury caused by successive accidents must apportion damages between each responsible party.”  The burden to allocate damages is placed on the party in the best position to present evidence.  Hence, the Appellate Division found that “in successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must prove comparative medical evidence ‘to isolate the physician’s diagnosis of the injury or injuries’ attributable to that tortfeasor’s negligent contact.”

But, the Court found that “whether a claimed injury is an aggravation of a preexisting injury, although possibly relevant on the issue of causation at the time of trial, is not an element of proof plaintiff must satisfy at the summary judgment stage.”  The Appellate Division noted that where an aggravation of injuries is claimed, plaintiff’s own testimony may satisfy that burden of establishing sufficient evidence to present a jury question.

Applying these principles, the Appellate Division found that the trial court judge erroneously determined a Polk analysis was required to defeat summary judgment.  Plaintiff had alleged that her injuries were attributable to the November 22, 2017 accident, which did not worsen after the April 2018 collision.  The Court found that plaintiff could testify at trial about the injuries that she allegedly suffered in the November 22, 2017, accident and to the extent to which both accidents, if at all, exacerbated her preexisting condition.  She does retain the burden of proving her injuries were attributable to the first accident.  It would be up to a jury to decide the weight to ascribe the omission of the April 2018 accident from her experts’ reports.

Further, the Appellate Division also found that there were genuine issues of material fact which precluded summary judgment on medical causation.  Plaintiff had testified at deposition as to the severity of the impact which caused her head to strike the seat back.  Although the defendant presented a biomechanical expert that the force was minimal and caused little damage to plaintiff’s vehicle, plaintiff’s failure to proffer a biomechanical or accident reconstruction expert “may be considered by the jury when assessing plaintiff’s proofs, including her testimony.”  However, the Court found that the facts were not so one-sided that defendant was entitled to prevail as a matter of law.

Hence, the Appellate Division reversed and remanded the matter back to the trial court for further proceedings.

Landlord Found Not To Be Responsible For Fatal Injury of Tenant’s Employee

The decedent Sean King was employed by High Grade Beverage (“HGB”) when he received a fatal electric shock while attempting to replace an emergency light fixture. OSHA determined that he was working with live wires when he was electrocuted, as the circuit breaker feeding the emergency light fixture had not been turned off. The issue in The Estate of Sean King v. High Grade Beverage, Inc., 2024 N.J. Super. Unpub. LEXIS 2321 (App. Div. Oct. 4, 2024) was whether the landlord, HGB Realty 2, LLC could be held liable for the decedent’s accident.

The property was originally leased in 2011 to HGB.  It consisted of a one-story, masonry, cold storage industrial complex comprising of about 72,600 square feet of warehouse, office and garage space.  HGB acknowledged that it had inspected the property and was fully familiar with its condition at that time.  According to the lease, the basic rent payable by the tenant was intended to be a “triple net” and all other charges and expenses imposed upon the leased premises would be paid by the tenant.  In addition, according to the lease, the tenant was responsible to keep the leased premises, including but not limited to the electrical, in good condition and repair.

The original lease was apparently renewed in 2016, at which point the name of the landlord was changed to HGB Realty 2, LLC.  The 2016 lease had the same provision for the tenant to keep the leased premises in good condition and repair.  According to the Chief Financial Officer of HGB Realty 2, there were no circumstances in which the tenant was required to obtain approval from the landlord to perform maintenance on the property.

Perry Morris was HGB’s maintenance chief until July 2017.  He was not a licensed electrician but did take a course in household wiring.  While employed by HGB, Morris would perform maintenance such as changing ballasts and repairing and replacing light fixtures.  Prior to his retirement, he trained decedent for about two weeks.  He testified that when the building was first built, there were three electrical contractors who did not know what they were doing, resulting in circuit breaker panel labels that were not done right the first time.  He and another employee attempted to correct the labels to the best of their ability and for the most part were successful.

Plaintiff submitted an expert report of an engineer, Les Winter, P.E., who opined that the decedent’s electrocution was caused by his lack of training as an electrician and the panel board directory being non-compliant and unreliable.  He opined that it was not legibly marked and that decedent could not through “trial and error testing” turn off and on random circuit breakers to determine whether the fixture was de-energized.

At the conclusion of discovery, the landlord, HGB Realty 2, filed for a summary judgment.  The trial court granted the summary judgment, dismissing the complaint.  The trial court found that HGB’s employees knew about the electrical panel at issue, that the emergency light breaker was labeled and that Morris, who trained the decedent, did show him which switch controlled which circuit breaker.

Further, the court found that HGB Realty 2 leased exclusive control of the property to HGB and the tenant HGB knew of the condition or had reason to know of the condition prior to the decedent’s accident.  It had the opportunity and indeed attempted to remedy the condition prior to the accident at issue.  Thus, the trial court ruled that the landlord, HGB Realty 2, could not be held liable for the alleged defective condition.  This appeal ensued.

The Appellate Division agreed with the trial court’s decision.  It found that the tenant executed a triple net lease in which the commercial tenant was responsible for maintaining the premises and for paying all utilities, taxes and other charges associated with the property.  Additionally, the Appellate Division noted that HGB had exclusive use of the property and that the obligation to maintain and repair the property was delegated under the lease to HGB.  Further, HGB Realty 2 did not maintain an office at the property, did not actively participate, or oversee HGB’s maintenance consistent with the terms of the lease.  Thus, the Appellate Division agreed that, under New Jersey law, the landlord did not have responsibility for the personal injury suffered by its commercial tenant’s employee. 

Court Finds That Cross-Claims Against Third Party Defendant Window Manufacturer Not Dismissed After Third Party Plaintiff Window Supplier Dismissed From Lawsuit

This matter concerns a complex construction lawsuit arising from the allegedly defective design and construction of townhomes located on the Ventnor City boardwalk.  Plaintiff homeowners filed a lawsuit, suing, among other defendants, Universal Supply Co., the supplier of the windows and doors for the various townhome units at issue.  Thereafter, Universal filed an Answer and a Third-Party Complaint against Viwinco, the manufacturer of the pre-assembled windows and doors.  Universal successfully filed a motion for summary judgment and obtained a dismissal of all direct and third-party claims asserted against it.  The issue in the recently released decision in Bendesky v. Waves, LP, 2023 N.J. Super. Unpub. LEXIS 3638 (Law. Div. Dec. 8, 2023) was whether the dismissal of Universal also resulted in the dismissal of all claims against the manufacturer, Viwinco. 

Based upon the facts of this case, Universal ordered from Viwinco preassembled windows and patio doors.  Neither Universal nor Viwinco installed the windows or doors in the townhomes.  The plaintiffs’ expert witnesses opined that the windows and doors were defective and a source of water infiltration which caused the property damage to plaintiffs’ townhomes.  They also opined that the windows and doors were not properly installed. Defendant Sto Corp’s expert also opined that the Viwinco windows and doors and their installations were both found to be sources for water penetration and resulting damage.  Universal supplied an expert report which refuted these opinions, finding no evidence that any Viwinco window or door caused or contributed to the water infiltration experienced by the plaintiff homeowners.

Universal moved for summary judgment dismissal of all claims against it, as the supplier of the Ocean View windows and doors.  The trial court granted that motion and dismissed with prejudice all direct, cross, and counterclaims against Universal.

The basis of the court’s decision was that Universal did not manufacture, assemble, or install any of the windows or doors.  Thus, the court found that no reasonable factfinder could conclude that Universal had or breached a duty to the plaintiff homeowners.  The court also found that Universal did not supply a warranty for the windows or doors.  Rather, Viwinco, the manufacturer, had its own warranty.

After Universal was dismissed from the lawsuit, Viwinco claimed that there were no active claims against it, and it should similarly be dismissed.  It argued that no party had asserted or pursued claims against Viwinco beyond Universal and it was too late in the litigation for any defendant to attempt to do so.  Viwinco appeared to rely on the expert opinions proffered by Universal which conflicted with the expert opinions provided by the plaintiffs’ experts.

In response, defendants Sto Corp and The Waves claimed that their responsive pleadings did effectively preserve their cross-claims for contribution and indemnification against Viwinco, regardless of Universal’s dismissal from the matter.  Further, they contended that the conflicting expert opinions precluded the entry of a summary judgment.

The trial court agreed with the arguments of Sto Corp and The Waves.  The judge found that Sto Corp and The Waves defendants should not be estopped from proceeding with their cross-claims against Viwinco because Universal was no longer a party.  Their theory against Universal and Viwinco were essentially the same, i.e. that the windows and doors were a source of water infiltration in the townhomes.  It was undisputed that Viwinco did manufacture them.

Therefore, the court found that the declination of any party to contest Universal’s apparent lack of duty or warranty as to the windows did not estop that party from pursuing cross-claims for indemnification and contribution from Viwinco as the manufacturer of the windows and doors.  The trial judge pointed out that there were currently pending independent third-party claims against Viwinco and that defendants were entitled to pursue them.

Further, Viwinco’s motion failed because there was conflicting evidence in the expert reports regarding the windows and doors and the water infiltration suffered by the plaintiff homeowners.  It would be up to the finder of fact at trial to assess the credibility and weight of these opinions based upon the expert witnesses’ sworn testimony at trial.  Hence, the trial court judge found that summary judgment as to Viwinco was not appropriate and denied the motion.

Appellate Division Reverses Summary Judgment Granted to Defendant as to Property Damage Claim

Plaintiff Zulfigar Ahmed suffered a property damage loss at his owner-occupied two-story residential apartment house in Paterson due to a high wind rainstorm.  At that time, a tree limb and branches fell onto plaintiff’s home, damaging its roof, vinyl siding, concrete masonry wall, a window and other property.  The issue in Ahmed v. American Security Insurance Co., 2024 N.J. Super. Unpub. LEXIS 852 (App. Div. May 13, 2024) was whether the plaintiff had submitted sufficient proofs of his property damage from this rainstorm to survive a motion for a summary judgment dismissal.

Plaintiff’s home was insured with American Security Insurance Company under a hazard insurance policy.  The policy provided liability coverage for the dwelling.

After the rainstorm, plaintiff submitted an insurance claim, specifically claiming that rainwater leaked from the damaged roof and window to lower levels of the house causing water damage to the basement.  Defendant’s adjuster inspected the exterior of the property, taking limited pictures.  Plaintiff submitted damages in the form of an itemized invoice from Ortiz Construction in the amount of $34,246.00 for the repairs performed.  The defendant insurance company advised plaintiff it was preserving a full reservation of rights pending full access to the property for a complete inspection.  Subsequently, plaintiff submitted a request for payment for an exterior gutter, house trimming, a door, a step railing, the roof, and vinyl siding.  Plaintiff resubmitted the paid Ortiz Construction invoice and requested a payment of same.

A dispute arose as to the extent of the damage caused by this storm.  The defendant insurance company disputed causation for some of the plaintiff’s alleged property damage, attributing necessary repairs to prior insurance claims.  In the prior year, plaintiff had settled five property damage claims with defendant.

In December 2020, defendant notified plaintiff’s counsel that the claim adjustment was completed and sent a check in the amount of $8,703.00 to cover the damage it claims was caused by the rainstorm.  While the plaintiff’s counsel received the check, allegedly, it was returned as inadequate.  The plaintiff maintained that the total tree damage loss to his house and car was approximately $440,000.00. 

This dispute ended up in a lawsuit in which plaintiff sued the insurance company for breach of contract, negligent misrepresentation, declaratory judgment, specific performance, unjust enrichment, and bad faith.  Then it produced an expert report by a forensic engineer who opined that most of the interior damage was unrelated to the tree impact and was related to prior claims. While the report acknowledged the exterior damage, the expert opined that there was “historical and overlapping damage.”  Plaintiff, in rebuttal, produced multiple receipts, including additional paid invoices from Ortiz Construction and MK Construction. 

At the conclusion of discovery, the defendant moved for a summary judgment dismissal.  The trial court judge granted the motion, finding that all of the damage was not causally related to the tree damage.  Plaintiff appealed this ruling.

The Appellate Division reversed.  It found that summary judgment should not have been granted because there were issues of fact which precluded a dismissal though a summary judgment proceeding.  The Court found that the trial court judge failed to address plaintiff’s Ortiz Construction invoices which showed payment for the repair work.

The Appellate Division found that “the construction company invoices sufficiently demonstrated a prima facie showing of disputed facts regarding property damage causally related to the fallen tree limb precluding summary judgment.”  The Court expressed no opinion as to whether plaintiff’s proffered contractors should be qualified as experts, but it concluded that plaintiff made a sufficient prima facie showing as to at least some of the damages alleged.  Thus, the Appellate Division reversed and remanded back to the trial court for further proceedings.

Plaintiff Making Left Hand Turn Denied UIM Benefits for Injuries Incurred From Accident

Plaintiff Calise Belin was injured in a two vehicle accident after stopping at a stop sign on Lafayette Road in Voorhees, preparing to turn left on Haddonfield-Berlin Road. Plaintiff looked both ways and not seeing anyone coming, turned left. She collided with a vehicle being driven by Debra Lawless-Gattone who was travelling northbound on Haddonfield-Berlin Road. The issue in Belin v. New Jersey Manufacturers Ins. Co., 2022 N.J. Super. Unpub. LEXIS 1400 (App. Div. Aug. 5, 2022), was whether Plaintiff Belin was more than 50% at fault, precluding her from recovering any underinsured motorist benefits from her insurance company, NJM.

Plaintiff had been driving to a basketball game after work in a car owned by her parents. At the time of the accident, it was dark and rainy. The other driver, Lawless-Gattone, was on her way to pick up her son from hockey practice. She was in the left lane of Haddonfield-Berlin Road, deciding whether to move to the right lane when she saw Plaintiff’s car approach the stop sign on Lafayette Road. She was satisfied that Plaintiff would stop and checked her rear view mirror to see if it was safe to move into the right lane. Lawless-Gattone’s path of travel was not controlled by any traffic sign or signal. When she turned back, Plaintiff was coming out of Lafayette Road, turning in front of her. She braked and turned her wheel in an attempt to avoid Plaintiff but did not have sufficient time to stop before colliding with Plaintiff’s driver’s side door.

Plaintiff claimed that she stopped and that the fault of the accident lay with Lawless-Gattone because she hit Plaintiff. She claims that Lawless-Gattone could have paid better attention to avoid the accident. Plaintiff claimed that Lawless-Gattone was speeding or, at least, driving too fast for existing weather conditions. She also alleged that Lawless-Gattone was distracted by looking around to change lanes.

Under New Jersey law, it was the Plaintiff’s burden to establish that Lawless-Gattone was at least 50 percent negligent for the accident to permit Plaintiff to recover against NJM (for underinsured motorist benefits). The trial court judge, Judge Belgard, disagreed with Plaintiff’s claim that Lawless-Gattone was at fault and dismissed the case. Although Lawless-Gattone may have given different statements about the speed limit on Haddonfield-Berlin Road where the accident happened, her testimony was consistent that she was not speeding. Plaintiff offered no contrary testimony. The judge also found no evidence in the record that Lawless-Gattone was distracted.

This decision was appealed to the Appellate Division, which agreed with the trial court judge. Plaintiff had failed to offer evidence “to permit a rational factfinder to conclude Lawless-Gattone was speeding or distracted or that plaintiff who was making a left turn in front of Lawless-Gattone from a side street controlled by a stop sign, had the right of way, even when viewed in the light most favorable to plaintiff.”  To prevent summary judgment from being granted, a plaintiff must “demonstrate by competent evidential material that a genuine issue of fact existed.”  The Court noted that plaintiff failed to do so and affirmed the entry of summary judgment in favor of NJM, dismissing the lawsuit.

Federal Court Finds That Children of Deceased Father Have No Standing to Pursue Section 1983 Claim Against City for Death of Father While in Police Custody

The decedent, Phillip White, died en route to the hospital after an encounter with Vineland police officers. A federal lawsuit was filed against Vineland by Mr. White’s mother, as his Administratrix Ad Prosequendum, and two of his children. The issue in White v. City of Vineland, 2022 U.S. Dist. LEXIS 199436 (D.N.J. Nov. 2, 2022) was whether the children had any standing to pursue a claim for an alleged violation of their father’s constitutional rights under the civil rights laws, the federal statute, 42 U.S.C. § 1983 (“Section 1983”) or the New Jersey Civil Rights Act, (“NJCRA”).

Before trial, the defendants filed for a summary judgment and obtained a dismissal of certain claims, the New Jersey Wrongful Death and Survivorship statutes. The constitutional claims, Section 1983 and the NJCRA, were permitted to proceed to trial. However, at trial, the Court raised with the parties whether the children of the decedent had standing to pursue such claims. Concluding that they did not, the Court issued an order dismissing their claims. The jury returned a verdict for the defense on the claims that were not dismissed by summary judgment. Thereafter, the Court issued this opinion to explain the basis of its dismissal of the children’s claims.

The Court noted that to have a cognizable claim to sue, a plaintiff must have “standing” to assert a claim. A plaintiff must be able to show “1) an injury-in-fact, b) causation, and c) redressability.”  Further, the Court stated that “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”

Here the decedent’s children were not asserting “any invasion of their legally protected interests,” but, rather, were pursuing claims based on the alleged violations of their father’s rights. But, the Court found that “the children had no standing to seek relief for a violation of their father’s rights.”

The children argued that they had standing under New Jersey’s wrongful death and survivorship laws. But, the Court pointed out that Section 1983 only provides for liability “to the party injured.” Thus, only a victim or his representative can sue and no one else. The NJCRA has similar language to Section 1983.

Further, even if state law was applied as to standing, it would not provide the children with a legally protected interest. Both the New Jersey Wrongful Death Act and the Survivorship Act name the estate administrator as the proper plaintiff to pursue a claim when an injured party dies. Here, only the decedent’s mother, Ms. White, who was acting as Administratrix Ad Prosequendum of Mr. White’s estate, was a proper plaintiff under Section 1983.

The Court concluded that while it “has sympathy for these children’s loss, this Court cannot go beyond its power and give the children the ability to sue for alleged injuries to their father.”

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Claim Against City of Newark Due to Failure to Provide Police Protection Barred by Immunity under Tort Claims Act

By: Jack Hagerty, Law Clerk

On August 4, 2012, plaintiff, Patricia Ruff, was walking with her daughter and grandchildren to a reunion hosted by Hayes Home Family Organization (Hayes) at the West Kinney Vocational High School playground in Newark, New Jersey, when disaster struck. Plaintiff was shot by an unknown assailant. Plaintiff later sued Newark in tort, asserting the City was responsible for a lack of police protection. Ruff v. Gardens, 2017 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 11, 2017).

As plaintiff approached the playground, two women yelled somebody had a gun and everyone began to run. Feeling “a pinch” in her arm, plaintiff yelled for her grandchildren to keep running before feeling the bullet, which left her “knocked out cold.” In all, plaintiff was shot three (3) times: once in the arm, once in the breast, and once in the back.

Newark had issued a permit for the Hayes reunion to be held at the playground and had also arranged for a police officer to be present from 12:00 p.m. to 8:30 p.m. When plaintiff was shot, she was not on Newark property. Plaintiff could neither identify her shooter, nor indicate from where the shots originated. However, she argued the shooter was located on Newark property at the time of the shooting; thus, exposing Newark to liability.

Newark moved for summary judgment. The trial court denied Newark’s motion, identifying the disputed location of the shooter at the time of the incident as a material fact which precluded the court from granting summary judgment. Newark moved for reconsideration. The trial court also denied that motion. Finally, Newark moved for leave to appeal the order denying summary judgment and the Appellate Division granted Newark’s motion for leave.

On appeal, Newark argued the trial judge’s denial of summary judgment was error because Newark was entitled to immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The statute provides, in relevant part: “[n]either a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” N.J.S.A. 59:5-4. This exception has been interpreted to preclude suits against public entities “based upon contentions that damage occurred from the absence of a police force or from the presence of an inadequate one.” Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979). Accordingly, Newark contended, the location of the shooter was not a material fact. Therefore, the dispute in question could not warrant a denial of summary judgment, because even if the shooter were on Newark property, the statutory immunity would apply.

Turning to case law, the Appellate Division noted the guiding principle of the Tort Claims Act is that “immunity from tort liability is the general rule and liability is the exception.” Coyne v. Dep’t of Transp., 182 N.J. 481, 488 (2005). Further, the court noted that, in New Jersey, it is public policy that a public entity will only be liable for negligence as set forth in the Tort Claims Act. Finally, the court restated the legislative purpose behind the Tort Claims Act “is to protect the public entity’s essential right and power to allocate its resources in accordance with its conception of how the public interest will best be served, an exercise of political power which should be insulated from interference by judge or jury in a tort action.” Rodriguez v. N.J. Sports & Exposition Auth., 193 N.J. Super. 39, 43 (App. Div. 1983).

At oral argument, Plaintiff conceded her claim against Newark was based on the alleged failure to provide police protection at the time of the incident. In light of this concession (which squarely placed plaintiff’s claim within the Tort Claims Act immunity) and the court’s finding that the location of the shooter was not a material fact for purposes of denying summary judgment, the Appellate Division reversed and remanded for the entry of judgment of dismissal in favor of Newark.

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