Plaintiff Assumed Risk of Funplex Foam Balls (NJ)

In Osei-Amoako v. Stafford FEC, Plaintiff broke her ankle when she slipped and fell on foam balls while supervising her four-year-old son in an amusement attraction, Foam Frenzy, at the Funplex owned and operated by defendant. The court granted summary judgment to defendant, holding that plaintiff’s injury was not caused by defendant’s breach of duty, but due to her own conduct.  Plaintiff appealed from the order, contending that the judge erred because the facts supported plaintiff’s theory of liability against defendants.

The Foam Frenzy is an amusement attraction for children. There are 8,000 to 10,000 foam balls throughout the attraction which is set up so that participants can chase each other, throw foam balls at each other, and dodge foam balls while playing in the attraction. Plaintiff alleged that she slipped and fell on one of more than fifty foam balls in her immediate area while walking toward her son. She alleged that the foam balls blended into the carpeted floor.  Additionally, she witnesses two Foam Frenzy employees attempting to fix an inoperable vacuum that was used by participants to suck up and recirculate the loose foam balls back onto designated areas.

The court recognized that defendants owed plaintiff a duty of reasonable care to maintain a safe environment. However, the court held that defendants did not breach that duty and there was no dangerous condition in the Foam Frenzy.  The court opined that the main component of the Foam Frenzy was to play in an area overfilled with foam balls.

The appellate court affirmed the trial court’s holding, as plaintiff’s injury was the result of slipping on a foam ball, and no reasonable juror could find that defendants breached its duty of care when plaintiff was engaged in the very activity that she and her son expected.  Essentially, she assumed the risk inherent in a foam ball kiddie park… whatever risk that may have been.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Condominium Associations continue to be “Residential” Despite Commercial Nature of Some Units.

In New Jersey, residential property owners do not owe a duty to maintain public sidewalks abutting their properties, but commercial property owners do.  New Jersey courts have consistently followed this dichotomy since 1981, but much litigation has ensued as to what is “residential” as opposed to “commercial.”  Courts employ the “predominate use” test to determine whether a property is residential or commercial.

In Waldier v. Piper 1 Townhouse Condominium Association, the Appellate Division upheld a trial court’s dismissal of a Condominium Association on summary judgment.  In that case, plaintiff alleged that she was thrown from her bicycle and injured due to a defect in a sidewalk adjacent to the condominium complex.

The condominium complex consisted of thirteen units, and the Association was a not-for-profit entity.  The owners made up the Association.  The condominium’s Master Deed contained a restrictive covenant mandating that each unit be used as a private residence only.  However, unit owners were permitted to rent units.  Discovery revealed that two to four units were held for rent by their owners.  Only five of the units were owner-occupied all year.  Nonetheless, the trial court determined that the condominium complex was predominately residential and the appellate court agreed.

Thanks to Michael Noblett for his contribution to this post.




Bus Company and Municipality Dismissed from Slip & Fall Suit for Distinct Reasons(NJ)

Plaintiffs have the burden of proof when establishing the negligence of defendants.  In Frison v. A-1 Limousine et al., plaintiff appealed from two orders granting summary judgment: one in favor of Trenton Mercer Airport, Mercery County, and Mercer County Department of Transportation and Infrastructure, and one in favor of non-public entity defendants, A-1 Limousine, Inc. and Andre Williams.

Plaintiff was on a shuttle bus at Trenton Mercer County Airport, which she was taking to a remote parking lot used by the airport’s customers. The driver of the bus, defendant Andre Williams, dropped plaintiff off in an unlit area of the gravel-surfaced lot. As plaintiff exited the bus, she lost her footing and fell to the ground. Plaintiff sustained a tear in the meniscus of her left knee and fractured a bone in her right foot.  Both defendants filed a motion for summary judgment, and the trial court granted both motions. Plaintiff subsequently appealed, arguing that defendant A-1 acted unreasonably in dropping plaintiff off in a “dangerously dark portion of the gravel parking lot” and alleging that the Trenton Mercer Airport acted in a palpably unreasonable manner by not installing lights in the parking lot.

The appellate court first addressed plaintiff’s arguments with respect to the public entities.  The appellate court found that the heightened “palpably unreasonable” standard applies to dangerous conditions on public property and is intended to comport with the principles of liability used by the courts for local public entities in their capacity as landowners. Additionally, the appellate court opined that the Torts Claim Act defined a “dangerous condition” as a condition that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. Applying that standard, the court concluded that plaintiff failed to demonstrate that a “dangerous condition” existed in the parking lot. Plaintiff provided no proof that the condition was dangerous such that it presented a substantial risk of injury.

With respect to plaintiff’s claims against A-1, the court found that plaintiff failed to establish a legal basis to impose a duty of care under the circumstances presented. Plaintiff offered no proof that the vehicle’s condition caused her to fall. A-1 neither owned nor had the duty to maintain the parking lot. Additionally, plaintiff presented no proof that A-1 had notice of any condition of the lot as to implicate a duty to warn. As such, the appellate court affirmed the trial court’s decision on both motions and opined that defendants cannot be liable due to plaintiff’s failure to use due care.

Considering the lessened duty for municipalities, and the lack of any duty for the bus company, plaintiff simply fell in an unfortunate place for her to recover.   The defendants held plaintiff to her burden here, and prevailed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Unintentional Destruction of Security Footage is No Excuse (NY)

In personal injury cases the existence of security footage of the incident itself is rare, often due to the length of time between an accident and the commencement of a lawsuit. In many instances, especially where a defendant may not even know an accident occurred, the footage is erased within days or hours of the accident and irretrievable at a later date. Normally, that would not result in a finding of spoliation.  However, where a party did maintain the evidence initially, and it was later destroyed, the outcome may not be so favorable.

In Eksarko v. Associated, 2017 Slip Op 07975 (2d Dept. 2017), plaintiff alleged that she slipped and fell on a grape that had fallen onto the floor of the defendant supermarket. The supermarket, having been notified by plaintiff at the time of the accident that she was injured, pulled and saved the footage of the accident caught on the store’s security video system.

Shortly after commencement of the lawsuit, the store was undergoing renovations when the computer that was storing the footage was destroyed and could not be retrieved. This was conveyed to plaintiff through counsel and through testimony of the Store Manager. When the defendant moved for summary judgment plaintiff cross-moved seeking sanctions for the defendants alleged spoliation of evidence due to the destruction of the video footage.

The Appellate Division overturned the lower Court’s decision and denied the defendants’ motion for summary judgment and granted plaintiff’s cross-motion for sanctions against the defendant. The Court found that even where evidence was destroyed negligently, versus intentionally, if a party can show that the evidence was relevant to their claim or defense the Court can impose sanctions against the party that failed to preserve the evidence.

The Appellate Division found that plaintiff established that the footage was relevant to her claims and to defeating the defendant’s motion on notice and as such sanctions against the defendant were warranted. Due to the fact that plaintiff had other evidence to establish her claim and that the spoliation was not intentional, but negligent, the Court determined that it would not strike the defendants Answer, but rather would direct an adverse inference charge at trial related to the destroyed footage.   The message is clear — if you have notice of a claim and of the existence of footage, save that footage!  And as attorneys and claim professionals, we need to remind insured clients of their duties to preserve such footage.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Expert Needed to Explain Dangerous Mannequin Placement (NJ)

In Reiger v. Ann, Inc., the New Jersey Appellate Division faced the strange question as to whether expert testimony was required for plaintiff to pursue claims against a defendant store owner for its placement of a mannequin platform display near a mirror.

Plaintiff was shopping in defendant’s clothing store and tried on a scarf in the dressing area.  As plaintiff was backing away from a mirror, her heel hit a mannequin platform and she tripped over the platform, causing a mannequin on the platform to fall over plaintiff, injuring her shoulder and elbow.  Plaintiff testified that she did not notice the platform display when she entered the dressing area.

Defendant retained an engineering expert who opined that plaintiff’s accident was caused by her failure to maintain a proper lookout in the direction that she was moving before she fell.  Defendant’s expert also found that the aisle between the mirror and the platform exceeded the applicable building codes, and that plaintiff’s accident was not caused by a defective condition.  Although plaintiff retained an engineering expert who conducted a site inspection, plaintiff failed to serve an expert report during discovery.

The trial court granted defendant’s motion for summary judgment, finding that plaintiff failed to demonstrate that the platform’s placement breached a standard of care and constituted a dangerous condition.  Specifically, the trial court ruled that plaintiff required (and lacked) expert testimony to establish that there was insufficient space between the mirror and the mannequin platform.

On appeal, plaintiff argued that a liability expert was not required to help a jury decide whether defendant breached a duty of care because her injuries were a foreseeable result of defendant’s placement of the mannequin platform across from the mirror.

The Appellate Division affirmed the trial court’s decision and agreed that plaintiff needed an expert to explain how the placement of the mannequin platform constituted a dangerous condition because “the customs and standards” for retail store displays and safe clearance conditions are not part of a jury’s common knowledge.  The Appellate Division further reasoned that it was undisputed that defendant did not violate any building codes, and the platform was neither camouflaged nor protruding into the access way.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Court of Appeals finds Question as to Constructive Notice Despite Security Footage (NY)

Premises cases can hinge on notice of an allegedly defective condition, and an eventual accident. For defendant property owners, proving that you did not create or have notice of the dangerous condition is a continuous uphill battle. It is even more difficult when the condition is water or debris that is transient and could manifest at any time.  Under such circumstances, a defendant property owner must show when the area was last inspected and/or cleaned on the date of the accident to establish that the condition was not present for a sufficient period of time to constitute constructive notice.

In Parietti v. Wal-Mart Stores, Inc., 140 A.D.3d 1039, 34 N.Y.S.3d 474 (2d Dept. 2016), reversed (Sept. 14, 2017), plaintiff slipped and fell on a wet spot near an ice machine inside a Wal-Mart store. Wal-Mart submitted affidavits from store employees who were working in the area at and around the time of the accident and surveillance footage which showed a Wal-Mart employee constantly walking and inspecting the area where the accident occurred. The Appellate Division, Second Department, reversed the trial court’s initial denial of the defendants motion and found that defendant Wal-Mart established that the alleged wet condition was not present for a sufficient period of time for Wal-Mart’s employees to discover and remedy it prior to the accident. This was supported by plaintiff’s own testimony that she did not see the water when she initially walked in the area.

Thereafter, plaintiff sought leave to appeal to the Court of Appeals. The Court of Appeals heard the case and concluded that despite the evidence presented, a question of fact exists as to the length of time the water was present and if it were long enough that Wal-Mart should have discovered and remedied the condition. While the Court did not elaborate, it is possible that the footage actually hurt Wal-Mart’s position in that the area was constantly inspected so the condition, should have been noticed and cleaned immediately.

This decision highlights the difficulty in obtaining summary judgment on a slip and fall case for a defendant. It is even more difficult when the defendant does not have footage or a witness to testify about when the area was last inspected or cleaned on the date of the accident.  We expect Parietti to be widely cited by the plaintiff”s bar in summary judgment motion practice going forward.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Lack of Specific Defense Testimony Prompts SJ Reversal in Premises Case (NY)

In a premises liability context, a property owner must establish that they did not create a dangerous condition that allegedly caused a plaintiff’s accident and that they did not have actual or constructive notice of the condition. In recent years, Court have raised the burden of proof for defendants to establish that they did not have constructive notice of a condition.

In Lombardo v. Kimco , LLC,2017 NY Slip Op 06531 (2d Dept. 2017), plaintiff slipped and fell on a wet and slippery substance on the floor of the defendants restaurant, Carrabba’s Italian Grill, LLC. The defendants established through testimony and affidavits that they did not create the wet or slippery condition and that they had a regular inspection and cleaning procedure in place so could not have had constructive notice. The Supreme Court agreed and granted summary judgment in the defendants favor.

The Appellate Division, Second Department, overturned the decision because the defendant failed to establish that the cleaning and inspection procedure was followed on the date of the accident and when the area had last been cleaned and inspected prior to the accident.  The Court found that without specific testimony from someone who cleaned or inspected the premises prior to the accident the defendant failed to establish that they did not have constructive notice of the condition.  In other words, the existence of maintenance protocols was not enough;   the property owner needed to show that it followed those protocols.

This increased burden for a defendant poses difficulty when a defendant is trying to establish lack of constructive notice. In most instances, the lawsuit has arisen years after the accident and the person who did the inspection may no longer be employed by the defendant. It is incumbent upon defendants to get statements from their employees when they are first notified of a loss and to keep in contact with them even if they leave. If defense counsel can’t locate the former employee who actually did the cleaning or inspection, summary judgment will be an uphill battle.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.


Charitable Immunity Prevails Even Where Non-Profit Rents to For-Profit Organization (NJ)

The New Jersey Charitable Immunity Act (CIA) bars negligence claims against  nonprofit corporations organized exclusively for religious, charitable, or educational purposes.  An entity qualifies for charitable immunity when it is formed for non-profit, educational, religious or charitable purpose, and was promoting such objectives and purposes at the time of the injury to a plaintiff who was a beneficiary of the organization’s works.

In Losado v. Princeton University, the court examined whether Princeton University, a non-profit educational organization, was entitled to Charitable Immunity when the plaintiff was injured on its campus. The key question was whether the University was engaged in its educational objectives when renting a pool on campus to an outside organization.

The plaintiff’s daughter participated in a swim meet hosted by the Princeton Tigers Aquatic Club, an organization not affiliated with the university other than pool rental.  The plaintiff was injured in a fall as she left the swim meet when she stepped into a depression adjacent to a walkway.

Princeton University filed a motion for summary judgment, arguing that they were immune from suit under the CIA.  The motion judge found that the plaintiff was a beneficiary of the University at the time of her injury, and therefore dismissed the claim under the CIA.  On appeal, the plaintiff argued that the Judge erred since the renting of a facility on the campus was not part of the “educational pursuits” that the University was organized to advance. Specifically, the plaintiff argued that youth sports by an outside organization was not an educational objective that Princeton was organized to advance. They further noted that the PTAC was not a charitable organization.

Per statutory requirement, the Appellate Court liberally construed the CIA to afford immunity to a non-profit entity even when renting facilities to members of the general public for social and recreational activities.  So long as the non-profit facility is not dominated by rentals of for-profit entities, the use of the facilities serves important social and recreational needs of the community.

Importantly, this case affirms once again that an organization is entitled to charitable immunity even when renting a portion of its property to a non-charitable organization.  These type of rental agreements are common between organizations, and will not prevent the non-profit entity from asserting and succeeding on a charitable immunity defense.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at


Slippery When (possibly, maybe) Wet – Not Enough to Defeat SJ Motion (PA)

On August 15, 2017, the Superior Court of Pennsylvania affirmed summary judgment in favor of Coakley & Williams Hotel Management Company in Demisew v. Coakley & Williams Hotel  The case stems from a slip and fall at a Days Inn, managed by Coakley & Williams on October 16, 2013.  Specifically, plaintiff Gela Demisew fell down a stairwell at the Days Inn, due to an allegedly slippery step.  She alleged that Coakley & Williams were negligent in allowing this dangerous condition to persist.

In September 2015, the trial court granted summary judgment in favor of Coakley & Williams and the Plaintiff filed a timely appeal.  On appeal, the Plaintiff argued that Coakley & Williams owed her a duty, as a business invitee, to exercise reasonable care in discovering the dangerous condition.  To support her assertion, the Plaintiff alleged that Coakley & Williams only had the stairwell cleaned on a weekly or “as needed” basis.  Further, the Plaintiff asserted that it rained on the day of the accident and someone could have tracked water into the stairwell as a result.

However, the Plaintiff testified that she did not know the substance she slipped on and never revisited the accident site.  Further, the director of maintenance at the Days Inn testified that the maintenance staff walked the property twice per day including the stairwells.  The director of maintenance also noted that the stairwell was cleaned once per day and no issues were documented on the date of the accident.

Thus, the court held that the Plaintiff merely speculated at the cause of her slip and fall and did not put forth any evidence to show whether the step was slippery or that the hotel had constructive notice of the alleged dangerous condition.  Thus, the grant of summary judgment was proper.   Had plaintiff testified that she was certain she slipped on tracked in rain water, as opposed to being uncertain of what she slipped on, she may have raised an issue of fact as to defendant’s negligence.   Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

Homeowners Lose MSJ after Invitee Steps Through Sheetrock Ceiling (NY)

Obviously, a homeowner never wants to be sued in a personal injury lawsuit arising out of an accident on his or her property. Unfortunately, simply owning the property is enough to place a duty of care onto the owner of the property to maintain it in a safe condition.   This duty of care extends to anyone that may come onto the property for any reason, whether a homeowner knows of their presence or not.

On August 23, 2017, the Court affirmed the trial court’s order denying the defendants motion for summary judgment in Gallardo v. Gilbert, 2017 Slip Op 06256 (2d Dept. 2017). The plaintiff was at the defendants’ home to perform cleaning services, including cleaning out the attic above the garage. While in the attic, plaintiff stepped from a plywood landing, and fell through the sheetrock ceiling of the garage below sustaining injuries.

The Court upheld the standard that a homeowner has a duty to maintain the premises in a reasonably safe condition. The only time in which a homeowner does not have a duty is when a condition is open, obvious and not inherently dangerous.

The defendant homeowners argued that plaintiff stepped onto a portion of the attic that did not have the plywood to step on and that the danger of falling through the sheetrock ceiling was open, obvious and not inherently dangerous. The Court found that the homeowners failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open, obvious and not inherently dangerous as a matter of law.  In fact, the condition may have constituted a “trap,” making an injury all the more foreseeable.

In our practice, we come across of claims just like this one, where an invitee was injured in a client’s. With the Court continuing to uphold the stringent duty to maintain a private home, the uphill battle to get these cases dismissed continues getting steeper.  Sadly, all invitees should be regarded as potential claimants.  (Sometimes, the advice of defense counsel isn’t as neighborly as we would like!)   Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions.