The pendulum of liability may be swinging back in favor of commercial property owners in New Jersey. In Gross v. Royal Cliffs Diner, A-3621-03T1, decided Feb. 3, 2005, the Appellate Division upheld summary judgment  dismissing Plaintiff’s slip and fall complaint on the grounds that the property owner did not breach any duty of care to Plaintiff because it lacked notice of an alleged unsafe condition. In Gross, Plaintiff sought damages for personal injuries stemming from a slip and fall on wet leaves located on the exterior handicap ramp entrance to the defendant diner. The accident occurred on a drizzly morning when plaintiff exited the diner. Discovery revealed that Plaintiff utilized the same route to enter the diner 35-40 minutes prior to the accident and did not observe any leaves on the handicap ramp. The Defendant did not inspect the ramp on the morning of Plaintiff’s accident.
The diner argued that Plaintiff failed to prove the breach of a duty of care to Plaintiff because the diner lacked notice of any unsafe condition. Plaintiff posited that the diner breached its duty of care by failing to inspect the ramp every thirty minutes. Plaintiff further argued that the diner possessed notice of the hazard posed by wet leaves because of the existence of shrubbery that borders the ramp. In upholding the trial court’s grant of summary judgment, the Appellate Division held that requiring the defendant to inspect the ramp every thirty minutes was unreasonable unless the Defendant were on notice of a dangerous condition. Moreover, the Plaintiff did not establish that the Defendant’s failure to inspect the ramp proximately caused her injury. The Court reasoned that Plaintiff’s failure to observe any leaves thirty-five to forty minutes before her accident occurred shows that even if the defendant had inspected the ramp at the time that Plaintiff entered the diner, they would not have observed any leaves either. While this decision turned on the issue of notice, the reasoning employed by the Court  suggests that the New Jersey courts may be beginning to consider whether a court can establish limits for what constitutes reasonableness as a matter of law. In the past courts have generally held that reasonableness of a party’s acts or omissions constitutes a jury question. See e.g. Hambright v. Yglesias, 200 N.J. Super. 392 (App. Div. 1985). In Gross, the Appellate Division appears to be leaning toward setting an outside limit on what conduct can be deemed reasonable as a matter of law. Obviously, any future consideration of this issue and the creation of a potential outer limit of reasonableness will involve very fact specific inquiries since it is the policy of the New Jersey courts to deter negligence instead of merely compensating victims of torts. See e.g. Hopkins v. Fox & Lazo, 132 N.J. 426(1993). Nevertheless, the Gross case suggests that the Courts may start to favor an outside limit as to what it considers reasonableness as a matter of law. Only future decisions will determine whether a trend is beginning or whether this case constitutes an anomaly of New Jersey jurisprudence.

– Eric S. Schlesinger, Esq.