ANTHONY FOTI VS. JG ELIZABETH II, LLC D/B/A THE MILLS AT JERSEY GARDEN MALL (L-3213-17, UNION COUNTY AND STATEWIDE)
A-1971-19
| N.J. Super. Ct. App. Div. | Jul 2, 2021Background
- Anthony Foti, a Union County electrician, was installing electrical receptacles above the drop ceiling in Space 1158 (the Retail Skills Center) at The Mills at Jersey Gardens when he contacted an exposed live wire, fell from a ladder and was injured.
- Space 1158 was leased to the City of Elizabeth; the Lease reserved to the landlord (Glimcher/JG) an easement above the finished ceiling for access, repairs and installations.
- The County and nonprofit groups were using the space; no plans or approvals for the County’s work were submitted to the mall owner, and JG’s representatives were unaware Foti would be working there.
- Foti served an initial expert report by an electrical contractor (Laiosa) and, after a discovery extension, attempted to serve a supplemental expert report shortly before the extended discovery cutoff; the trial court excluded the supplemental report as untimely under Rule 4:17-7.
- The trial court granted summary judgment to both the City of Elizabeth (Tort Claims Act claim) and mall owner JG (premises liability), finding Foti could not show the defendants created the hazard or had actual/constructive notice of the concealed defect.
- The Appellate Division affirmed: it upheld exclusion of the supplemental expert report and affirmed summary judgment to both defendants; JG’s cross-appeal was dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Laiosa’s supplemental expert report under Rule 4:17-7 | Foti: report served before close of extended discovery and defendants were on notice; exclusion is prejudicial and fatal to the case | JG/Elizabeth: report was served after the court-ordered final report date; plaintiff didn’t certify late discovery nor seek timely extension; exclusion is proper sanction | Court: exclusion affirmed — plaintiff failed to comply with Rule 4:17-7 and did not show abuse of discretion or exceptional circumstances |
| TCA liability as to City of Elizabeth (dangerous condition / notice) | Foti: exposed live wires in open junction box above ceiling was a dangerous condition; Lease duties and long passage of time put Elizabeth on constructive notice | Elizabeth: no evidence it created or had actual notice; condition was latent/hidden and not of such obvious nature to give constructive notice | Court: summary judgment for Elizabeth — plaintiff failed to prove actual or constructive notice required under N.J.S.A. 59:4-2 |
| Landlord liability / duty to inspect (JG) — invitee status and easement effect | Foti: as a business invitee and because JG reserved an easement above the ceiling, JG had a duty to conduct reasonable inspections and discover latent hazards | JG: Foti was not its invitee (work was for County/tenant), JG had no notice, and reservation of an easement does not impose a periodic inspection/repair duty | Court: summary judgment for JG — easement reservation did not create a duty to inspect; no evidence JG created or knew of the hazard |
| Cross-appeal issues (licensee status / injury incidental to work) | JG argued alternative grounds: Foti was a licensee (lower duty) and injury was incidental to his own work | Foti contested invitee characterization | Court: cross-appeal dismissed as moot after affirming summary judgment on notice/duty grounds |
Key Cases Cited
- Polzo v. Cnty. of Essex, 196 N.J. 569 (2008) (Tort Claims Act principle: public-entity immunity is the general rule)
- Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119 (2001) (elements required to impose liability under N.J.S.A. 59:4-2)
- Garrison v. Twp. of Middletown, 154 N.J. 282 (1998) (definition and first-step analysis of a "dangerous condition")
- Rowe v. Mazel Thirty, LLC, 209 N.J. 35 (2012) (use of invitee/licensee categories to define landowner duties)
- Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993) (landowner owes invitee duty to conduct reasonable inspections to discover latent dangers)
- McBride v. Port Auth. of N.Y. & N.J., 295 N.J. Super. 521 (App. Div. 1996) (reservation of right to enter/repair does not equate to an ongoing duty to inspect)
- Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189 (2016) (summary-judgment standard applied on appeal)