N.J. Model Civil Jury Charge 5.20F

5.20F DUTY OWED — CONDITION OF PREMISES

(Approved 03/2000; Revised 11/2022)

NOTE TO JUDGE

The duty owed by an occupier of land to third persons coming on that

land involves an inquiry identifying, weighing, and balancing several

factors — the relationship of the parties, the nature of the attendant risk,

the opportunity and ability to exercise care, and considerations of

public policy.

Our common law has developed well-defined categories based on the

status of the plaintiff. If the plaintiff falls into the predetermined

category of an invitee, licensee, or trespasser, the category itself

establishes the duty, dispensing with the Court weighing the above

factors to determine if a duty is owed.

1 The scope of that duty is set

forth in these Model Charges for each of the above categories.

However, if the facts in a given case do not fit into any of the above

categories, the Court must undertake a duty analysis weighing the

above factors and, if a duty is ascertained, must also define the scope

of the duty.

2

1 See Rowe v. Mazel Thirty, LLC , 209 N.J. 35, 44- 45, 48- 49 (2012) (“The common law

categories are a shorthand, in well-established classes of cases, for the duty analysis; they, too,

are based on the relationship of the parties, the nature of the risk, the ability to exercise care,

and considerations of public policy. The only difference [between those three classes of cases

and other cases] is that, through the evolution of our common law, the duty analysis has already

been performed in respect of invitees, licensees (social guests), and trespassers.”).

2 In Hopkins v. Fox & Lazo Realtors , 132 N.J. 426 (1993), the Supreme Court evaluated the

liability of a real estate broker for injuries sustained by a plaintiff who had attended an open

house on a third-party’s premises. Id. at 431-33. The Court found that the relationship between

the plaintiff and the real estate broker did not fit neatly into any of the three traditional categories

(i.e., invitee, licensee, or trespasser). Id. at 438 (“In a case such as this in which the legal

relationships are not precisely defined, the attempt to pigeonhole the parties within the

traditional categories of the common law is both strained and awkward.”). Accordingly, the

Court ruled that proper resolution of the issue in such a case required a full duty a nalysis that

evaluates “not what common law classification or amalgam of classifications most closely

characterizes the relationship of the parties, but . . . whether in light of the actual relationship

between the parties under all of the surrounding circumstances the imposition on the broker of

a general duty to exercise reasonable care in preventing foreseeable harm to its open -house

customers is fair and just.” Ibid. Applying that test, the Court held “that a real estate broker

has a duty to ensure through reasonable inspection and warning the safety of prospective buyers

and visitors who tour an open house,” and that “[t]he scope of the duty to inspect and warn is

limited only to defects that are reasonably discoverable through an ordinary inspection of the

home undertaken for purposes of its potential sale,” not “latent defects that are hidden and of

which the broker has no actual knowledge.” Id. at 448-49. In general, therefore, when the facts

of a case do not fit neatly into one of the three common law categories (trespasser, licensee, or

invitee), the court will evaluate whether a duty of care exists under the circumstance of the case

and, if so, define the scope of that duty. See ibid.; see, e.g., Robinson v. Vivirito, 217 N.J. 199

(2014) (conducting full duty analysis based on foreseeability, fairness, and public policy and

concluding that school principal owed no duty of care to person injured on school premises

after hours by dog owned by adjacent property owner); Ellis v. Hilton United Methodist Church,

455 N.J. Super. 33 (App. Div. 2018) (no duty owed by owner of vacant residential or

noncommercial property absent evidence of prior commercial use); Estate of Desir v. Vertus ,

214 N.J. 303 (2013) (performing “the traditional, comprehensive analysis of whether a duty is

owed,” and finding no duty of care owed by property owner to neighbor, when owner left

owner’s premises based on belief crime was being committed therein, asked neighbor to

telephone subject premises, and then failed to prevent ne ighbor from going to scene where

fleeing robber shot neighbor); Olivo v. Owens -Illinois, Inc., 186 N.J. 394 (2006) (evaluating

fairness and foreseeability concerns and holding “that to the extent [defendant] owed a duty to

workers on its premises for the f oreseeable risk of exposure to friable asbestos and asbestos

dust, similarly, [defendant] owed a duty to spouses handling the workers’ unprotected work

clothing based on the foreseeable risk of exposure from asbestos borne home on contaminated

clothing,” but remanding for resolution of “genuine issues of material fact about the extent of

the duty” because “[q]uestions persist concerning the scope of the work husband was hired to

perform, the scope of work that he actually performed, particularly with respect to the handling

of asbestos containing products, and the extent of [defendant’s] supervision and control over

the work”); Schwartz v. Accuratus Corp., 225 N.J. 517 (2016) (holding that Olivo’s duty of care

may, in appropriate circumstances, extend to a plaintiff who is not a spouse of a worker exposed

to the toxin by application of the Hopkins factors); Nielsen v. Wal-Mart Store #2171, 429 N.J.

Super. 251 (App. Div.) (holding that “the Hopkins factors” warrant finding that defendant

property owner owed duty to protect employee of independent contractor that defendant hired

from hazardous condition slightly outside the boundaries of owner’s unit, even though another

entity had contractually assumed duty to maintain and repair area in question), certif. den ied,

213 N.J. 535 (2013); see also Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44- 45, 48-49 (2012)

(observing that “[w]here the status of the plaintiff, vis -à-vis the landowner, does not fall into

1. Adult Trespasser — Defined and General Duty Owed

A trespasser is a person who enters or remains upon land in the possession of

another without a right to enter or remain on the property. A right may be created

by the possessor’s consent or otherwise. An owner/occupier of property owes a

duty to a trespasser to refrain from acts which willfully injure the trespasser.

Cases:

Lordi v. Spiotta, 133 N.J.L. 581, 584 (Sup. Ct. 1946); Snyder v. I. Jay

Realty Co., 30 N.J. 303, 312 (1959). See 2 Harper & James, Law of

Torts, § 27.3, pp. 1435, 1440 (1956), to the effect that a possessor of

land may take some steps to repel a trespasser, but may not arrange

the premises intentionally as to cause death or serious bodily harm to

a trespasser. Lordi v. Spiotta, supra, speaks of abstaining from

“willful or wanton injury.” See also Imre v. Riegel Paper Corp., 24

N.J. 438, 446-449 (1957), dealing with repeated trespasses. The Court

said that there may be such acquiescence as to amount to a license and

that some courts have held continued toleration of trespass amounts to

permission to use the land and transforms a trespasser into a licensee,

but the Court seems to prefer the rule that a higher degree of care is

owed to one whose repeated trespasses are known to the landowner

where the reasonably foreseeable risk of death or severe injury

outweighs the freedom of action that would otherwise govern the

conduct of a landowner in regard to a trespasser. Sledding on Shoprite

property by children held not sufficient to transform them from

trespassers to licensees. Ostroski v. Mount Prospect Shoprite, Inc., 94

N.J. Super. 374, 382 (App. Div. 1967).

one of the pre-determined categories, as in Hopkins , . . . we perform a full duty analysis,” but

nevertheless holding that plaintiff, police officer investigating vacant building pursuant to safe-

streets initiative, fell “within the category of a licensee” under the circumstances of the case);

Monaco v. Hartz Mt. Corp., 178 N.J. 401, 417-19 (2004) (holding that irrespective of whether

Court applied “the classic commercial landowner liability standard” or “the more fluid Hopkins

rule,” defendant landlord owed duty of care to employee of defendant’s commercial tenant).

2. Infant Trespasser — Defined and General Duty Owed (Revised 10/2003)

A trespasser is a person who enters or remains upon land in the possession

of another person without a right to enter or remain on the property. A trespasser

is one who is not invited, allowed, or privileged to be on another’s property. The

owner or occupier of property owes a duty to an adult trespasser only to refrain

from acts, which would willfully injure the trespasser. This rule of law on the

obligations of owners and occupiers of property towards adult trespassers is

modified in the case of children trespassers.

Although a possessor of land generally is not required to keep the land safe

for trespassers, an exception exists for those trespassers who are children.

Because children may lack sufficient discretion for their own safety, a possessor

of property, who maintains an artificial condition upon the property, will be liable

for physical harm to a child trespassing on the property caused by the artificial

condition if:

(a) the possessor of the property knows or has reason to know children

are likely to trespass in the place where the condition exists, and

(b) the possessor of the property knows or has reason to know and

realizes or should realize that the condition involves an unreasonable

risk of death or serious bodily harm to such children, and

(c) the children because of their youth either

(1) do not discover the condition, or

(2) do not realize the risk involved by trespassing in that area of

the property made dangerous by the condition, or

(3) do not realize the risk involved in

intermeddling with the condition, and

(d) the utility to the possessor of maintaining the condition and the

burden of eliminating the danger are slight as compared with the risk

to the children involved, and

(e) the possessor of the property fails to exercise reasonable care to

eliminate the danger or otherwise protect the children.

In order for the defendant to be held liable for the plaintiff ’s injuries, the

plaintiff must prove each and every one of these five elements.

Cases:

Restatement of Torts, 2d, §339 , p. 197 (1965) ; Ostroski v. Mount

Prospect Shoprite, Inc., 94 N.J. Super. 374 (App. Div. 1967), certif.

denied, 49 N.J. 369 (1967); Scheffer v. Braverman, 89 N.J. Super.

452 (App. Div. 1965); Turpan v. Merriman, 57 N.J. Super. 590 (App.

Div. 1959), certif. denied, 31 N.J. 549 (1960); Coughlin v. U.S. Tool

Co., Inc., 52 N.J. Super. 341 (App. Div. 1958), certif. denied, 28 N.J.

527 (1959); Vega by Muniz v. Piedilato, 154 N.J. 496 (1998).

In this case the plaintiff has alleged that the plaintiff was injured as a result

of [describe the artificial condition]. I will now discuss each of these five

elements with you as they relate to that condition.

(a) the possessor of the property knows or has reason to know children are

likely to trespass in the place where the condition exists,

If you find the landowner or occupant has no reason to anticipate the

presence of children at a place of danger on landowner’s/occupant’s land, the

landowner/occupant has no duty to look out for children and no liability for

injuries sustained by children trespassing at such place of danger.

When I say the plaintiff must prove the possessor of land “knows” or “has

reason to know” children are likely to trespass at a place of danger on the land, I

mean the law charges a defendant with information from which a person of

reasonable intelligence would infer that children are likely to trespass on the

property and would govern the possessor’s conduct upon the assumption that they

would.

Cases:

Long v. Sutherland -Backer Co., 48 N.J. 134 (1966), reversing 92

N.J. Super. 556 (App. Div. 1966); Callahan v. Dearborn

Developments, Inc., 57 N.J. Super. 437 (App. Div. 1959), aff’d, 32

N.J. 27 (1960); Hoff v. Natural Refining Products Co., 38 N.J. Super.

222 (App. Div. 1955); Restatement of Torts 2d, §339, Comment g.,

p. 201 (1965).

(b) the possessor of the property knows or has reason to know and realizes

or should realize that the condition involves an unreasonable risk of

death or serious bodily harm to such children,

When I say the plaintiff must prove the possessor of land “knows” or “has

reason to know ” that the condition involves an unreasonable risk of death or

bodily harm, I mean the law charges a defendant with information from which a

person of reasonable intelligence would infer that the condition involves an

unreasonable risk of death or bodily harm and would govern the possessor ’s

conduct upon the assumption that the condition is likely to be dangerous to

trespassing children.

Citation:

Restatement of Torts 2d, §339, Comment h, p. 201 (1965)

(c) the children because of their youth

(1) do not discover the condition, or

(2) do not realize the risk involved by trespassing in that area of the

property made dangerous by the condition, or

(3) do not realize the risk involved in intermeddling with the

condition,

In determining whether a child because of the child’s youth either did not

discover the condition, or did not realize the risk involved by trespassing in that

area of the property made dangerous by the condition, or did not realize the risk

involved in intermeddling with the condition, you are to determine whether the

child’s state of mind at the time of the accident was such that either the child did

not discover the condition, or the child did not realize the risk involved by

trespassing in that area of the property made dangerous by the condition, or the

child did not realize the risk involved in intermeddling with the condition.

If you find that the child, regardless of the child’s age, did in fact discover

the condition and realize the risk and appreciate the danger involved, and still

proceeded despite knowledge and appreciation of the danger, the child cannot

recover for the child’s injuries. The purpose of the duty placed upon the possessor

of property is to protect children from dangers, which they do not appreciate, but

not to protect them against harm resulting from their own immature recklessness

in the case of dangers, which they know and appreciate. Therefore, even though

the possessor of land should know that the condition is one that children are

unlikely to appreciate the full extent of the danger of meddling with it or

encountering it, the possessor of land is not subject to liability to a child who in

fact discovers the condition and appreciates the full risk involved, but nonetheless

chooses to encounter it out of recklessness or bravado.

Cases:

Vega by Muniz v. Piedilato , 154 N.J. 496, 506 (1998); Restatement

of Torts 2d, §339, Comment i, p. 202 (1965); Ostroski v. Mount

Prospect Shoprite, Inc., 94 N.J. Super. 374 (App. Div. 1967), certif.

denied, 49 N.J. 369 (1967).

(d) the utility to the possessor of maintaining the condition and the burden

of eliminating the danger are slight as compared with the risk to

children involved,

In determining whether a particular condition maintained by a possessor of

land involves an unreasonable risk to trespassing children, you must compare the

recognizable risk to the children with the usefulness to the possessor of lan d in

maintaining the condition. A particular condition is, therefore, regarded as not

involving an unreasonable risk to trespassing children unless it involves a risk of

serious bodily harm to the children, and could be removed without any serious

interference with the possessor’s legitimate use of the land.

Citation:

Restatement of Torts 2d, §339, Comment n, p. 205 (1965).

(e) the possessor of the property fails to exercise reasonable care to

eliminate the danger or otherwise protect the children.

The possessor of land is liable to the trespassing child only if the possessor

of land has failed to conform to the standard of care of a reasonable person in the

same or similar circumstances.

Even if you find the possessor of land knew or had reason to know that

children were likely to trespass on the property, and that the condition on the land

involved an unreasonable risk of harm to the trespassing children, and even if you

find the children were not likely to discover or appreciate the r isk, the possessor

of land is liable only if you find the possessor of land failed to take such steps as

a reasonable person would have taken to make the condition safe or to protect the

children.

If you find that the possessor of land took the same care that a reasonable

person in the same or similar circumstances would take to make the condition safe

or protect the children which the possessor of land had reason to know would

trespass on the property, then the possessor of land is not liable even though an

injury has occurred to the trespassing child.

Cases:

Restatement of Torts 2d, § 339, Comment n, p. 205 (1965); Coughlin

v. U.S. Tool Co., Inc., supra. “Foresight” is not synonymous with

“omniscience”; hence, the possessor is not chargeable with

knowledge of inherent danger in the storage of its cement mixer

where boys pushed the mixer causing its wheels to move forward and

the towing tongue to come down and crush the decedent. Long v.

Sutherland-Backer Co., supra, 92 N.J. Super. at 559. In Diglio v.

Jersey Central Power & Light Co. , 39 N.J. Super. 140 (App. Div.

1956), it was held that a fence was made unreasonably dangerous

when sharp, pointed wires projecting upward were added in the face

of knowledge that children often played on the property, and of the

propensity of children to climb fences, where the utility of the

dangerous fence to defendant was slight in contrast to the foreseeable

risk to the children.

NOTE TO JUDGE

For definitions of trespasser, licensee and invitee, see subsection 1,

3 and 5 above; Snyder v. I. Jay Realty Co., 30 N.J. 303, 312 (1959).

Prior use of area by children is not sufficient to warrant a finding of

licensee. Ostroski v. Mount Prospect Shoprite, Inc., supra, 94 N.J.

Super. at 382. However, continued toleration of trespass and

acquiescence therein may amount to permission or implied leave and

license. Imre v. Riegel Paper Corp., 24 N.J. 438, 446 (1957).

As to infant trespassers on railroad property, see Egan v. Erie R. Co.,

29 N.J. 243 (1959) and N.J.S.A. 48:12-152. This statute absolves a

railroad company from the duty to a trespasser, including an infant

trespasser. Although in Egan v. Erie R. Co., supra, 29 N.J. at 254,

the Court held that the statute does not preclude recovery for injuries

caused by a railroad’s willful or wanton conduct, the failure to have

watchmen present to protect infant trespassers is not wanton

misconduct as a matter of law.

[Warning of Condition, Where Appropriate Add:]

In dealing with the obligation of the possessor of land to use reasonable

care to eliminate the danger or otherwise protect an infant trespasser, you may

consider whether a warning would have been sufficient. In a particular situation,

a warning may be sufficient, and if you find that the possessor gave such a

warning, but that warning was disregarded by the child, you may find for the

defendant. In that connection, you must also determine whether the child was

mature enough to understand the full nature and scope of the warning and danger

involved. Only if you find that the child was capable of understanding the

warning and danger involved may you find for the defendant in this regard. If,

however, you find that the child was too young to understand or heed the warning,

or that the warning was not sufficient, a possessor may not be relieved from

liability simply by giving such warning.

Citation:

Restatement of Torts 2d, §339, Comment o, p. 206 (1965).

[Artificial Condition, Where Appropriate Add:]

A landowner or occupant is responsible for harm caused by artificial

conditions upon the landowner’s/occupant’s land.

Conversely, a landowner or possessor is not responsible for harm caused

by a natural condition upon the land, even if you find the natural condition of the

property was a proximate cause of the accident and the minor plaintiff’s injuries.

Case:

Ostroski v. Mount Prospect Shoprite, Inc., supra, 94 N.J. Super. 374

at 380 (App. Div. 1967).

[Creation of Condition, Where Appropriate Add:]

In order for you to find the defendant liable it is not necessary that the

defendant be the person who created the condition that caused the plaintiff ’s

injuries. You may find defendant liable even though the condition was created by

some third person, provided you find the defendant had actual knowledge of the

condition and should have foreseen that the condition would create an

unreasonable risk of harm to children entering the property. However, the

landowner has no obligation to make regular inspections upon the property for

dangers created by others.

Cases:

Caliguire v. City of Union City, 104 N.J. Super. 210 (App. Div.

1967), aff’d, 53 N.J. 182 (1969); Simmel v. N.J. Coop Co., 28 N.J. 1,

11 (1958); Lorusso v. DeCarlo, 48 N.J. Super. 112 (App. Div. 1957).

[Comparative Negligence of Trespassing Child, Where Appropriate Add:]

In this case, the defendant claims the minor plaintiff was negligent, in other

words, that the minor plaintiff failed to exercise that degree of care or caution for

the minor plaintiff’s own safety that you would expect of a reasonable child of the

same age.

In order to decide whether or not the minor plaintiff was negligent, you

must consider the child’s actions or inactions by an evaluating whether the child

failed to exercise that degree of care for the child’s own safety that a person of the

same age would have exercised under the same or similar circumstances.

a. In General (7 years and older)

A child, old enough to be capable of negligence, is required to act with the

same amount of care as children of similar age, judgment and experience. In order

for you to determine whether a child has acted negligently, you should take into

consideration the child ’s age, intelligence and experiences. Also, you must

consider the child’s capacity to understand and avoid the danger to which the child

was exposed in the actual circumstances and situation in this case. You, the jury,

must decide the factual question of whether this child was comparatively

negligent.

b. Where Child is Under 7 Years

There is a presumption in the law that a child under the age of seven years

is not capable of acting negligently. You may reject this presumption only if the

party who is claiming the child was negligent proves that this particular child had

the experience and the capacity to avoid the danger, which was present in this

situation.

If you decide that this child had the capacity to act negligently, then you

must review the facts to see if the child failed to use that amount of care to avoid

the danger, which should have been exercised by children with like experiences

and intelligence.

If you find that the minor plaintiff deviated from this standard of care, then

you will find that the minor plaintiff was also negligent, and you will then consider

whether or not the negligence of the minor trespassing plaintiff was a proximate

cause of the accident and the injuries, which you find were caused by the accident.

NOTE TO JUDGE

Paragraphs a. and b. are taken from Model Civil Charge 7.11 A and

B. Please refer to Note to Judge in Charge 7.11.

The Supreme Court in Vega by Muniz v. Piedilato, 154 N.J. 496, 506

(1998), citing with approval Colls v. City of Chicago, 212 Ill.App. 3d

904, 571 N.E. 2d 951 (1991) , held that a comparative negligence

charge in a trespassing child case was proper. The Court held that in

determining whether an infant plaintiff has met the burden on

element c of the prima facie case the jury is to use a subjective

standard in evaluating the plaintiff ’s state of mind. If the jury

concludes that the defendant is negligent, the jury must then

determine whether the infant plaintiff is negligent under an objective

evaluation of whether the infant plaintiff failed to use that degree of

care which persons of the same age should exercise for their own

safety in the same or similar circumstances.

3. Licensee, Defined and General Duty Owed (Approved 03/2000; Revised

12/2014)

A licensee is a person who has the right to enter or remain upon land by the

consent of the possessor. A licensee is not invited but the licensee’s presence is

tolerated. The owner/occupier of property owes a duty to a licensee to abstain from

willfully injurious acts. If the owner/occupier knows of a hazardous condition on

the premises and the owner/occupier could reasonably anticipate the licensee would

not observe and avoid such condition, then the owner/occupier must either give

warning of it or make the condition reasonably safe. A licensee is a person who is

permitted to come onto the property and does so for the licensee’s own purposes.

The owner does not have a duty to a licensee to actually discover latent – hidden

defects. The owner does have a duty to warn a licensee/social guest of any

dangerous conditions of which the owner had actual knowledge and of which the

guest is unaware.

NOTE TO JUDGE

The duty of care owed to a social guest is the same duty owed to a

licensee. Berger v. Shapiro, 30 N.J. 89, 96, 98 (1959); Pearlstein v.

Leeds, 52 N.J. Super. 450, 457 (App. Div. 1958), certif. denied, 29 N.J.

354 (1959). For a more complete charge and supporting authorities

see Social Guest, Defined and General Duty Owed in subsection 4,

below.

Cases:

Snyder v. I. Jay Realty Co. , 30 N.J. 303, 312 (1959), holding that a

friend of a manufacturer ’s employee who visits the manufacturer ’s

rented factory premises at the invitation of the employee is a licensee

of the manufacturer-tenant, but is an invitee as to the landlord’s duty

of care in common passageways.

One may enter the premises of another without invitation, express or

implied, and be regarded as a licensee rather than a trespasser if one’s

presence is either expressly or impliedly permitted by the possessor of

the premises. Prevailing customs often determine whether a possessor

of land is willing to have a third person come thereon. They may be

such that it is entirely reasonable for one to assume that one’s presence

will be tolerated unless told otherwise. Snyder v. I. Jay Realty Co. ,

supra, 30 N.J. at 312.

Rowe v. Mazel , 209 N.J. 35 (2012), where police officer on duty

investigating an abandoned building was deemed to be a licensee, but

specific facts of a case will determine if a police officer is a licensee or

invitee.

Examples of licensees: Salesmen or solicitors canvassing at the door

of private homes, tourists visiting a plant at their own request, people

who enter a building to get out of the rain, parents in search of their

children, someone who comes to borrow tools, etc. Prosser, Torts (3rd

ed. 1964) § 60, p. 386.

NOTE TO JUDGE

As to passengers in automobiles, the duty owed is the same, whether a

licensee or an invitee. Cohen v. Kaminetsky, 36 N.J. 276, 283 (1961).

4. Social Guest — Defined and General Duty Owed (Approved 03/2000;

Revised 11/2019)

A social guest is someone invited to a host’s premises. The social guest must

accept the premises of the host as the social guest finds them. In other words, the

host has no obligation to make the home safer for the social guest than for the host.

The host also is not required to inspect the premises to discover defects that might

cause injury to the social guest.

If, however, the host knows or has reason to know of some artificial or natural

condition on the premises which could pose an unreasonable risk of harm to the

guest and that the guest could not be reasonably expected to discover it, the

owner/occupier owes the social guest a duty to exercise reasonable care to make the

condition safe or to give warning to the guest of its presence and of the risk involved.

In other words, although a social guest is required to accept the premises as the host

maintains them, the guest is entitled to the host’s knowledge of dangerous conditions

on the premises. On the other hand, where the guest knows or has reason to know

of the condition and the risk involved and nevertheless enters or remains on the

premises, the host cannot be held liable for the accident.

[Where Appropriate Add:]

If you find that the property owner/occupier (1) knew or had reason to know

of the dangerous or defective condition, (2) realized or in the exercise of reasonable

foresight should have realized it involved an unreasonable risk of harm to the guest,

(3) had reason to believe the guest would not discover the condition and realize the

risk, and (4) failed to take reasonable steps to protect the guest from the danger by

either making the condition safe or warning the guest of the condition and the risk

involved, you may find the host negligent under the circumstances. If, however,

you find that the defect was obvious and the owner/occupier had reason to believe

the social guest would be aware of the defect and the risk involved, you must find

the host was not negligent even though an injury occurred.

Cases:

Berger v. Shapiro, 30 N.J. 89 (1959) (Houseowner’s mother-in-law,

who had been visiting homeowner for several week s, was a social

guest or licensee to whom there was not owed a higher degree of care

as to one on the premises to confer some benefit to the owner other

than purely social). Pearlstein v. Leeds, 52 N.J. Super. 450 (App. Div.

1958), certif. denied, 29 N.J. 354 (1959) (Party guest who helped

homeowner with preparations was a mere licensee and entitled only to

same degree of care as a licensee); Giordano v. Mariano , 112 N.J.

Super. 311 (App. Div. 1970) (reversing dismissal of suit brought by

11-1/2-year-old social guest injured after running into closed sliding

glass door while attending birthday party, because homeowner had

actual knowledge of the dangerous condition of unmarked, previously

open glass door on pitch black night and therefore presented a jury

question regarding reasonableness of defendant’s conduct); Endre v.

Arnold, 300 N.J. Super.136 (App. Div. 1997) (affirming summary

judgment for defendant-host because alleged defects in stairway were

obvious such that host did not breach her duty to social guest as to

conditions of property); Tighe v. Peterson , 175 N.J. 240 (2002)

(affirming summary judgment for defendant because social guest

injured while using homeowner’s swimming pool was aware of the

configuration of the pool’s depth, as social guest had been in the pool

many times before and knew where the deep and shallow areas were

located) (but see dissent of Justice Long outlining the fact-sensitive

nature of the duty inquiry, which must account for the great risk of

harm compared to the small cost for avoiding it, and arguing that

ultimate question was for the jury) ; Parks v. Rogers, 176 N.J. 471

(2003) (reversing summary judgment for defendant because, although

social guest injured after fall down dark stairway with short railing was

aware of the darkness hazard, that darkness caused her to rely on the

handrail, and therefore a factual issue remained regarding whether she

was aware or should have been aware of the shortness of the handrail);

Sussman v. Mermer, 373 N.J. Super. 501 (App. Div. 2004) (reversing

summary judgment for defendant because a factual question existed

regarding whether social guest injured after fall down social guest’s

neighbors’ unilluminated porch steps was aware or should have been

aware of the hazards of the steps (see also reference to transition of

broadening application of general tort obligation to exercise

reasonable care against foreseeable harm to others)); Longo v. Aprile,

374 N.J. Super. 469 (App. Div. 2005) (Neighbor who volunteered to

perform household tasks for neighbor deemed to be a social guest, not

an invitee. Danger which plaintiff encountered was self -evident);

Bagnana v. Wolfinger, 385 N.J. Super. 1 (App. Div. 2006) (Social

guest who sustained injury while jumping on homeowner ’s

trampoline. Summary judgment denied where issues of fact existed

as to whether homeowner removed warning label from trampoline

prior to guest’s arrival and whether homeowner failed to enforce the

manufacturer’s rules and prohibitions, and observing that “the fact

that a danger is obvious is . . . not necessarily conclusive evidence

that the licensee can be expected to avoid it without a warning by the

landowner”); see also Estate of Desir v. Vertus, 214 N.J. 303 (2013)

(observing that “[a] property owner has a duty to warn a social guest

of a dangerous condition on the property of which the owner is aware,”

and deeming that “a fair proposition because the social guest should be

at no greater risk than the landowner, who, by reason of his knowledge

of the property, has the ability to protect himself against a dangerous

condition” (citations and internal quotation marks omitted)).

NOTE TO JUDGE

(1) EXCEPTION AS TO VOLUNTARY UNDERTAKINGS

(If this exception is applicable, the General Duty charge for a social

host does not apply and should not be charged. See Piech v.

Layendecker, 456 N.J. Super. 367 (App. Div. 2018)).

Where the host has gratuitously undertaken to do an act or perform a

service recognizably necessary to a guest’s bodily safety, and there is

reasonable reliance thereon by the guest, the host is liable for harm

sustained by the guest resulting from the host ’s failure to exercise

reasonable care to carry out the undertaking. Johnson v. Souza, 71 N.J.

Super. 240 (App. Div. 1961) (reversing dismissal of plaintiff -

licensee’s case because jury could determine that plaintiff reasonably

relied on host’s undertaking of salting icy front steps after plaintiff had

warned about the dangerous condition), certif. denied , 36 N.J. 598

(1962); but see O’Neill v. Suburban Terrace Apartments, Inc., 110 N.J.

Super. 541, 547 (App. Div.) (affirming dismissal of plaintiff ’s case

because it was beyond dispute that plaintiff did not rely on landlord’s

undertaking to shovel snow), certif. denied, 57 N.J. 138 (1970).

(2) EXCEPTION AS TO HOST’S ACTIVITIES

(If this exception is applicable, the General Duty charge for a social

host does not apply and should not be charged. Piech v. Layendecker,

456 N.J. Super. 367 (App. Div. 2018)).

In cases where the host is conducting some “activity” on the premises

at the time of the guest’s presence, the host is under an obligation to

exercise reasonable care for the protection of the guest. Hanna v.

Stone, 329 N.J. Super. 385, 389-91 (App. Div. 2000) (holding that “[i]n

regard to activities, the duty of the person conducting the activity, such

as parents sponsoring a party for their son, is simply to use reasonable

care in all the circumstances,” and affirming summary judgment for

parents who hosted birthday party where plaintiff-guest was injured in

a fight with another guest); Vallillo v. Muskin Corp., 218 N.J. Super.

472, 475- 76 (App. Div. 1987) (reversing summary judgment and

remanding for trial because, notwithstanding plaintiff’s knowledge of

the shallowness of the pool, there were fact questions regarding

whether defendants prevented plaintiff from knowing that diving was

prohibited or actively facilitated and condoned the prohibited

conduct), certif. denied , 111 N.J. 624 (1988); accord Cohen v.

Kaminetsky, 36 N.J. 276, 279-80 (1961); Barbarisi v. Caruso, 47 N.J.

Super. 125, 131 (App. Div. 1957); Cropanese v. Martinez , 35 N.J.

Super. 118 (App. Div. 1955); see also Berger v. Shapiro, 30 N.J. 89,

97 (1959); Prosser, Torts (3rd ed. 1964), § 60, p . 388; 2 Harper &

James, The Law of Torts, § 27.10, p. 1474 (1956).

(3) GUEST DEEMED INVITEE AS TO COMMON

PASSAGEWAYS OF MULTIPLE DWELLING

See Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 121 (2005);

Taneian v. Meghrigian, 15 N.J. 267, 277-278 (1954), Van Der Woude

v. Gatty, 107 N.J. Super. 164, 166-167 (App. Div. 1969), and for the

rule that an owner of a two -family or multi-family dwelling owes a

social guest the same duty of care as is owed to an invitee with respect

to common passageways.

(4) SOCIAL GUEST PERFORMING SERVICES FOR HOST

If the main purpose of the visit is social and the guest also performs

services beneficial to the host, the social guest remains a social guest.

Pearlstein v. Leeds, 52 N.J. Super. 450, 459 (App. Div. 1958), certif.

denied, 29 N.J. 354 (1959). However, where the sister of a homeowner

was asked to perform some chores for the homeowner and did not enter

the home for a social gathering, the sister was deemed an invitee.

Benedict v. Podwats, 109 N.J. Super. 402, 406 (App. Div. 1970), aff’d

per curiam, 57 N.J. 219.

5. Invitee — Defined and General Duty Owed (12/1988)

An invitee is one who is permitted to enter or remain on land (or premises)

for a purpose of the owner/occupier. The invitee enters by invitation, expressed or

implied. The owner/occupier of the land (or premises) who by invitation, expressed

or implied, induced persons to come upon the premises, is under a duty to exercise

ordinary care to render the premises reasonably safe for the purposes embraced in

the invitation. Thus, the owner/occupier must exercise reasonable care for the

invitee’s safety. The owner/occupier must take such steps as are reasonable and

prudent to correct or give warning of hazardous conditions or defects actually

known to the owner/occupier (or the owner ’s/occupier’s employees), and of

hazardous conditions or defects which the owner/occupier (or the

owner’s/occupier’s employees) by the exercise of reasonable care, could discover.

[Where Appropriate As to Business Invitee Add:]

The basic duty of a proprietor of premises to which the public is invited for

business purposes of the proprietor is to exercise reasonable care to see that one who

enters the premises upon that invitation has a reasonably safe place to do that which

is within the scope of the invitation.

NOTE TO JUDGE

(1) Business Invitee: The duty owed to a “business invitee” is no

different than the duty owed to other “invitees.”

(2) Construction Defects, Intrinsic and Foreign Substances: The

rules dealt with in this section and subsequent sections apply mainly to

those cases where injury is caused by transitory conditions, such as

falls due to foreign substances or defects resulting from wear and tear

or other deterioration of premises which were originally constructed

properly.

Where a hazardous condition is due to defective construction or

construction not in accord with applicable standards it is not necessary

to prove that the owner or occupier had actual knowledge of the defect

or would have become aware of the defect had the owner or occupier

personally made an inspection. In such cases the owner is liable for

failing to provide a safe place for the use of the invitee.

Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the Court

distinguished between a risk due to the intrinsic quality of the material

used (calling it an “intrinsic substance” case) and a risk due to a foreign

substance or extra-normal condition of the premises. There the case

was submitted to the jury on the theory that the terrazzo floor was

peculiarly liable to become slipper y when wet by water and that

defendant should have taken precautions against said risk. The Court

appears to reject defendant’s contention that there be notice, direct or

imputed by proof of adequate opportunity to discover the defective

condition. 17 N.J. at 389.

It may be possible to reconcile this position with the requirement of

constructive notice of an unsafe condition by saying that an owner of

premises is chargeable with knowledge of such hazards in construction

as a reasonable inspection by an appropriate expert would reveal. See

Restatement to Torts 2 d, § 343, Comment f, pp. 217 -218 (1965),

saying that a proprietor is required to have superior knowledge of the

dangers incident to facilities furnished to invitees.

Alternatively, one can view these cases as within the category of

defective or hazardous conditions created by defendant (see subsection

b. 9 below) or by an independent contractor for which defendant would

be liable (see introductory note above).

(3) Landlord and Tenant Both May be Liable to Invitee: Krug v.

Wanner, 28 N.J. 174 (1958). The Court held that a tenant storekeeper

and landlord owner were both liable to customer who tripped over

protruding edge of cellar door in sidewalk. There the landlord installed

and repaired the cellar door and tenant could have required the landlord

to make repairs, or, in default thereof, made repairs himself, even if the

lease called upon the landlord to make repairs. See authority cited in

28 N.J. at 183.

(4) Negligent Activities or Operations: As to injury to invitees

caused by activities or operations negligently conducted on the

premises, see Model Civil Charge 5.20E.

(5) Public Officials: As to public officials not controlled by

“fireman’s rule, ” but who are injured while making same use of

property that an invitee should have been reasonably anticipated to

have made, duty owed is that to an invitee. Caroff v. Liberty Lumber

Co., 146 N.J. Super. 353, 361 (App. Div. 1977), certif. denied 74 N.J.

266 (1977).

Cases:

Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky,

slimy substance in self -service cafeteria which inferably fell to the

floor as an incident of defendant’s mode of operation).

Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over

improperly illuminated curbstone).

Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall

on wet composition floor in store).

Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on

smooth stairway in railroad station).

Gudnestad v. Seaboard Coal Dock Co ., 15 N.J. 210, 219 (1954)

(employee of contractor engaged in repair work on defendant railroad

company’s yard struck by railroad car).

Gallas v. Public Service Electric and Gas Co ., 106 N.J. Super. 527

(App. Div. 1969) (employee of contractor killed while constructing a

water tank when boom of crane made contact with power lines).

Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389

(App. Div. 1960) (fall over low wire fence separating grass plot from

sidewalk).

Nary v. Dover Parking Authority, 58 N.J. Super. 222, 226-227 (App.

Div. 1959) (fall over bumper block in parking lot).

Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App.

Div. 1957) (slip and fall on wet linoleum near entrance of store on

rainy day).

Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App.

Div. 1958) (inadequate lighting of parking lot of supermarket, fall over

unknown object).

Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551,

557 (App. Div. 1954) (fall over ladder placed in theatre lobby by

workmen of independent contractor).

Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and

fall on littered stairway at entrance to restaurant).

6. Implied Invitation (Approved 05/1970; Revised 11/2022)

a. Defined

The test of an implied invitation is whether the entry of the plaintiff upon

the premises was for a purpose directly or indirectly connected with the business

carried on there by the owner/occupier or was of interest or advantage which was

common or mutual to the owner/occupier and to the plaintiff.

Another test of an implied invitation is whether the owner/occupier by the

arrangement of the premises or ot her conduct led the plaintiff reasonably to

believe that the premises were intended to be used in the manner in which plaintiff

used them.

Cases:

Barnard v. Trenton-New Brunswick Theatres Co., 32 N.J. Super. 551

(App. Div. 1954). Also see Restatement of Torts 2d, § 332, p. 176 et

seq. (1965); 2 Harper & James, Torts, § 27.17, p. 1478 et seq. (1956).

Handelman v. Cox, 39 N.J. 95, 106 et seq. (1963) (jury could find that

employer knew and acquiesced in visits by salesman to sell

merchandise to employees and that salesman reasonably felt welcome

to enter the premises); Black v. Central Railroads Co., 85 N.J.L. 197,

201 (E. & A. 1913) (private way given all appearances of public

street); Phillips v. Library Co., 55 N.J.L. 307, 315 (E. & A. 1893).

NOTE TO JUDGE

The purpose of the entrant’ s visit need not involve some business

benefit to the owner or occupier — the “economic benefit” test is not

the exclusive one for determining whether an implied invitation exists.

The “invitation test” which focuses upon the holding out of the

premises by the owner or occupier for certain purposes also may be

utilized. Handelman v. Cox, supra, 39 N.J. at 106 et seq.

b. Scope of Invitation

The plaintiff is deemed to be an invitee only to the extent that the plaintiff

remains within the scope of the plaintiff’s invitation. An invitation extends to all

parts of the premises to which the invitee reasonably may be expected to go in

view of the invitation given to the plaintiff , and to those parts of the premises

which the defendant by the defendant ’s conduct has led plaintiff reasonably to

believe are open to the plaintiff.

Cases:

With respect to commercial establishments, courts have held that the

duty owed to customers includes a duty to provide reasonably safe

means of “ingress and egress. ” In Warrington v. Bird , 204 N.J.

Super. 611, 617-18 (App. Div. 1985), certif. denied, 103 N.J. 473

(1986), the restaurant’s limited duty was extended to ensure safe

ingress and egress to patrons crossing a public roadway with

adequate lighting to access a parking lot for the restaurant. See also

Mulraney v. Auletto’s Catering, 293 N.J. Super. 315, 321 (App. Div.)

(holding th at business proprietor has a duty, at least under same

circumstances, to undertake reasonable safeguards to protect its

customers from dangers posed by crossing adjoining highway to area

proprietor knows or should know its customers will use for parking),

certif. denied, 147 N.J. 263 (1996); but see Ross v. Moore, 221 N.J.

Super. 1, 6-7 (App. Div. 1987) (Tort Claims Act immunity precluded

claim against school board by night student who parked in shopping

center lot opposite the school. In dictum, the court in Ross, supra,

distinguished Warrington, supra, because it involved a commercial

proprietor who owned and provided the parking lot; the court in

Mulraney, supra, 293 N.J. Super. at 323 -24, disagreed with said

dictum, noting its opinion that ownership and control are irrelevant

to the dispositive inquiry, which focuses instead on the reasonable

expectations of the invitee).

See also Reiter v. Max Marx Color & Chemical Co., 82 N.J. Super.

334 (App. Div.), aff’d, 42 N.J. 352, 353 (1964) (employee of plumbing

company working on water tank fell while using defective ladder

attached to inside of tank. The Court held: “When an owner of

premises engages a contractor to perform certain work or repairs

thereon, under the law he impliedly invites the employees of the

contractor to use such part or parts of the premises as are reasonably

necessary for the doing of the work or the making of the repairs” );

Handelman v. Cox , 39 N.J. 95, 110 (1963) (salesman showing

merchandise to em ployees of defendant used rear entrance of

defendant’s diner); Giangrosso v. Dean Floor Covering Co., 51 N.J.

80, 83 (1968) (open area in rear of store not intended for use by

customers as pathway to store); Williams v. Morristown Memorial

Hospital, 59 N.J. Super. 384, 389-90 (App. Div. 1960) (jury question

as to invitation to cross grass area between parking space and cement

walk.)

7. Duty to Inspect Owed To Invitee

The duty of an owner/occupier of land (or premises) to make the place

reasonably safe for the proper use of an invitee requires the owner/occupier to

make reasonable inspection of the land (or premises) to discover hazardous

conditions.

Cases:

See, e.g., Monaco v. Hartz Mt. Cmp. , 178 N.J. 401 (2004)

(landowner’s duty to make a reasonable inspection of its property

included inspecting an unsafe sign on the abutting sidewalk, even

though it was owned and maintained by the city); Filipowicz v.

Diletto, 350 N.J. Super. 552 (App. Div. 2002) (garage-sale customer

tripped on a drop off in homeowner’s sidewalk camouflaged by tall,

uncut grass); Teney v. Sheridan Gardens, Inc. , 163 N.J. Super. 404

(App. Div. 1978) (a jury could reasonably find that flattened wet

leaves, which had fallen from a nearby tree, were on the apartment

steps for at least a day, and had defendant performed its inspection

duty, it would have observed them); Zentz v. Toop, 92 N.J. Super.

105 (App. Div. 1966), aff’d, 50 N.J. 250 (1967) (roofing contractor

required to make a reasonable inspection to protect its employees

from guy wires, which were the same color of the surface of the

roof); Handelman v. Cox , 39 N.J. 95 (1963) (salesman showing

merchandise to employees of defendant fell down cellar stairway

partially obscured by carton); Van Staveren v. F. W. Woolworth Co.,

29 N.J. Super. 197 (App. Div. 1954) (owner of department- store

cafeteria had a duty to inspect the brackets and bolts of the stools at

lunch counter).

But see Geringer v. Hartz Mountain Development Corp. , 388 N.J.

Super. 392, 404 (App. Div. 2006) (landlord had no “ongoing duty to

perform inspections” because the lease unambiguously placed upon

the tenant exclusive responsibility for maintenance and repair of the

area where the plaintiff fell).

8. Notice of Particular Danger as Condition of Liability

If you find that the land (or premises) was not in a reasonably safe

condition, then, in order to recover, plaintiff must show either:

(a) Actual Notice for a period of time before plaintiff’s injury to permit

the owner/occupier, in the exercise of reasonable care, to have

corrected it; or

(b) Constructive Notice.

When the term Actual Notice is used, we mean that the owner/occupier or

the owner’s/occupier’s employees actually knew about the unsafe condition.

When the term C onstructive Notice is used, we mean that the particular

condition existed for such period of time that an owner/occupier of the premises

in the exercise of reasonable care should have discovered its existence. That is to

say, constructive notice means that the person having a duty of care to another is

deemed to have notice of such unsafe conditions, which exist for such period of

time that a person of reasonable diligence would have discovered them.

Cases:

See, e.g., Monaco v. Hartz Mt. Corp., 178 N.J. 401 (2004) (testimony

that a city -owned sign on the sidewalk abutting the landowner’s

property had a cracked base, was crooked, and squeaked and moved

when subject to high winds was sufficient to permit a finding of

constructive notice where defendant inspected the area two or three

times per week); Ruiz v. Toys R Us, Inc., 269 N.J. Super. 607 (App.

Div. 1994) (where defendant had actual knowledge of a leak in the

ceiling, plaintiff did not have to prove actual or constructive

knowledge of the specific puddle upon which she fell); Milacci v.

Mato Realty Co., 217 N.J. Super. 297 (App. Div. 1987) (plaintiff’s

testimony that she fell on sand and dirt on the stairs of defendant’s

building was sufficient to permit a finding of constructive notice);

Terrey v. Sheridan Gardens, Inc. , 163 N.J. Super. 404 (App. Div.

1978) (a jury reasonably could find that flattened wet leaves, which

had fallen from a nearby tree, were on the apartment steps for at least

a day, and had defendant performed its inspection duty, it would have

observed them); Tua v. Modem Homes, Inc. , 64 N.J. Super. 211

(App. Div. 1960), affd, 33 N.J. 476 (1960) (plaintiffs’ testimony that

a wax-like substance on the floor of defendant’s store was soft in the

center but “encrusted” around the edges and could not be cleaned

without scraping it was sufficient to raise a jury question about

defendant’s constructive notice); Parmenter v. Jarvis Drug Store,

Inc., 48 N.J. Super. 507 (App. Div. 1957) (in a case involving

plaintiffs slip and fall on wet linoleum near entrance of store on rainy

day, testimony of the severity and duration of the storm and evidence

that the water on the floor was dirty was sufficient to permit a finding

of constructive notice of the water on the floor); Ratering v. Mele, 11

N.J. Super. 211 (App. Div. 1951) (when plaintiff fell on stairs littered

with cigarette butts, matches and paper, evidence indicating

accumulation of litter over two and one -half hour period without

inspection by defendant presented a jury issue as to defendant’ s

constructive knowledge).

But see Carroll v. New Jersey Transit , 366 N.J. Super. 380 (App.

Div. 2004) (plaintiff could not prove that defendant had actual or

constructive notice of dog feces because there was “ no evidence to

indicate how long the substance was on the stairway”). See also

Vellucci v. Allstate Ins. Co. , 431 N.J. Super. 39 (App. Div. 2013)

(commercial owner did not owe duty to ensure its water supply was

not contaminated with Legionella bacteria absent evidence of actual

or constructive notice of contamination).

NOTE TO JUDGE

(1) The above charge is applicable to those cases where the

defendant is not at fault for the creation of the hazard of where the

hazard is not to be reasonably anticipated as an incident of

defendant’s mode of operation. See Maugeri v. Great Atlantic &

Pacific Tea Company, 357 F.2d 202 (3d Cir. 1966) (dictum).

(2) An employee ’s knowledge of the danger is imputed to the

employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104

(1963).

(3) See Note to Judge , numbered paragraph 2, in subsection 5

above, distinguishing between transitory defective conditions, such

as foreign substance cases, where actual or constructive notice is

required, and original defects in construction, sometimes referred to

as ‘‘intrinsic substance” cases, where it is not necessary to prove that

the owner had personal knowledge of the hazardous condition.

9. Notice Not Required When Condition is Caused by Defendant

If you find that the land (or premises) was not in a reasonably safe condition

and that the owner/occupier and/or an agent, servant or employee of the

owner/occupier created that condition through their own act or omission, then, in

order for plaintiff to recover, it is not necessary for you also to find that the

owner/occupier had actual or constructive notice of the particular unsafe

condition.

Cases:

See, e.g., Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253

(App. Div. 2011) (plaintiff was not required to prove actual or

constructive knowledge where defendant’s negligent snow removal

created icy condition of sidewalk that caused plaintiff to fall); Atalese

v. Long Beach Twp. , 365 N.J. Super. 1 (App. Div. 2003) (actual or

constructive notice not required where the County created depression

in pedestrian- bicycle lane by negligently installing storm sewer

extension); Smith v. First National Stores, 94 N.J. Super. 462 (App.

Div. 1967) (slip and fall on greasy stairway caused by sawdust

tracked onto the steps by defendant’s employees); Plaga v. Follis, 88

N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant

area traversed by bus boy); Gill v. Krassner, 11 N.J. Super. 10 (App.

Div. 1950) (in a case involving excessive accumulation of wax on

defendant’s floor, plaintiff did not need to establish actual or

constructive notice of the condition; instead, plaintiff only needed to

prove that defendant’s employee performed the floor waxing

negligently).

For an example of this principle applied to a defendant’s omission,

see Ruiz v. Toys R Us, Inc. , 269 N.J. Super. 607 (App. Div. 1994)

(where defendant had actual knowledge of a leak in the ceiling,

plaintiff did not have to prove actual or constructive kno wledge of

the specific puddle upon which she fell).

10. Notice Not Required Under Certain Circumstances

A proprietor of business premises has the duty to provide a reasonably safe

place for customers. If you find that the premises were in a hazardous condition,

whether caused by defendant’s employees or by others, such as customers, and if

you find that said hazardous condition was likely to result from the particular

manner in which defendant ’s business was conducted, and if you find that

defendant failed to take reasonable measures to prevent the hazardous condition

from arising or failed to take reasonable measures to discover and correct such

hazardous condition, then defendant is liable to plaintiff. In these circumstances,

defendant would be liable even if defendant and defendant’s employees did not

have actual or constructive knowledge of the particular unsafe condition, which

caused the accident and injury.

11. Mode of Operation Rule

A proprietor of business premises that permits its customers to handle

products and equipment in a self -service setting, unsupervised by employees,

increases the risk that a dangerous condition will go undetected and that patrons

will be injured. In self-service settings, patrons may also be at risk for injury from

the manner in which the business’s employees handle the business’s products or

equipment, or from the inherent quality of the merchandise itself.

If you find that plaintiff has proven that (1) the defendant ’s business was

being operated as a self-service operation; (2) that the plaintiff’s accident occurred

in an area affected by the business’ s self-service operations; and (3) that there is

a reasonable factual nexus between the defendant’ s self-service activity and the

dangerous condition allegedly producing the plaintiff ’s injury, then the plaintiff

is relieved of the burden of proving that the defendant had actual or constructive

knowledge of the particular dangerous condition. In such circum stances, an

inference of negligence arises that shifts the burden to the defendant to produce

evidence that it did all that a reasonably prudent business would do in the light of

the risk of injury that the self-service operation presented.

Cases:

The “mode-of-operation” rule is typically used in connection with

accidents arising from self -service stations at supermarkets. See,

e.g., Nisivoccia v. Glass Gardens, Inc. , 175 N.J. 559, 563 (2003)

(loose grapes displayed in open-top, vented plastic bags); Wollerman

v. Grand Union Stores Inc. , 47 N.J. 426 (1966) (string beans sold

from open self -service bins); Bozza v. Vornado Inc. , 42 N.J. 355

(1964) (beverages served in paper cups without lids or tops); Torda

v. Grand Union Co. , 59 N.J. Super. 41 (App. Div. 1959) (slip and

fall on the wet floor near self-service bin containing wet vegetables);

Francois v. American Stores Co. , 46 N.J. Super. 394 (App. Div.

1957) (a self -service display of stacked cans of soda in the narrow

quarters of the checkout aisle in front of cashier came tumbling down

onto plaintiff). But see Jeter v. Sam’s Club, 250 N.J. 240 (2022) (the

mode of operation rule does not apply to the sale of grapes in closed

clamshell containers).

This rule, however, is not limited to only supermarket cases. See ,

e.g., Craggan v. IKEA USA , 332 N.J. Super. 53 (App. Div. 2000)

(trip on string in self -help loading area); O’ Shea v. K. Mart Corp. ,

304 N.J. Super. 489 (App. Div. 1997) (golf bag fell from shelf and

hit plaintiff); Krackomberger v. Vornado. Inc. , 119 N.J. Super. 380

(App. Div. 1972) (slip on clear plastic apparel coverings on floor

from rack in retail store); Mahoney v. J.C. Penney Co., 71 N.M. 244,

317 P.2d 663 (Sup. Ct. 1963) (fall on stairway littered with sticky

substance); Ryder v. Ocean County Mall, 340 N.J. Super. 504 (App.

Div.) (slip and fall outside food court area while holiday shopping),

certif. denied, 170 N.J. 88 (2001); Walker v. Costco Wholesale

Warehouse, 445 N.J. Super. 111, 121-128 (App. Div. 2016)

(reversing judgment for defendant and remanding for new trial

during which “mode of operation ” instruction shall be charged,

because plaintiff presented sufficient evidence to justify givi ng the

charge, but holding that jury must first be instructed to determine

“whether [plaintiff] met his threshold burden of proving the

necessary factual nexus to a defendant ’s self-service activity,” i.e.,

that plaintiff in fact “slipped on a substance that came from the stand

with free samples”).

But see Arroyo v. Durling Realty, LLC , 433 N.J. Super. 238, 241

(App. Div. 2013) (declining to apply mode-of-operation rule to claim

by plaintiff injured on public sidewalk by tripping on used phone

card against store that might have sold card); Carroll v. New Jersey

Transit, 366 N.J. Super. 380 (App. Div. 2004) (in a case in which a

customer of a municipal subway system slipped on dog feces as the

customer descended a flight of stairs, the mode-of-operation rule was

inapplicable because there was no evidence in the record to indicate,

as a matter of reasonable probability, that the presence of dog feces

was likely to occur as a result of the nature of the defendant’ s

business, the condition of the property, or a demonstrable pattern of

conduct or incidents); Znoski v. Shop- Rite Supermarkets, Inc. , 122

N.J. Sup er. 243 (App. Div. 1973) (holding that the mode -of-operation rule was inapplicable where plaintiff was struck in the back

by a shopping cart pushed by a child because there was no substantial

risk of injury as shopping carts are not dangerous instrumentalities).

Znoski, supra, subsequently was distinguished by the Supreme Court

in Meade v. Kings Supermarket-Orange, 71 N.J. 539 (1976), where

the Court limited Znoski to its precise facts, holding that where

plaintiff was struck by line of shopping carts and propelled through

plate glass window, there was abundant proof from which jury could

find design and construction of ramp were defective and that

shopping carts moving in and around supermarket premises is

reasonably foreseeable).

See also Prioleau v. Kentucky Fried Chicken, Inc. , 434 N.J. Super.

558, 582 (App. Div. 2014) (mode of operation doctrine found

inapplicable in case where plaintiff slipped and fell on way to

restroom due to absence of proof that fall on grease was caused by

defendants as fry cook used the rest room. The court found the

“mode of operation ” rule focuses on business model encouraging

self-service, not conduct of establishment’s employee), aff ’d, 223

N.J. 245, 264 (2015) (affirming inapplicability of mode-of-operation

doctrine under circumstances because “[t]here is no evidence in the

trial record that the location in which plaintiff’s accident occurred—

the section of the restaurant traversed by plaintiff as she walked from

the counter to the restroom —bears the slightest relationship to any

self-service component of defendants’ business”). But see Walker v.

Costco Wholesale Warehouse, 445 N.J. Super. 111, 121-128 (App.

Div. 2016) (finding reasonable factual basis sufficient to justify

giving “mode of operation ” charge in c ase involving plaintiff ’s

allegation that plaintiff slipped and fell on cheesecake given out from

free sample stand in Costco).

NOTE TO JUDGE

BURDEN OF GOING FORWARD

In Wollerman v. Grand Union Stores, Inc. , 47 N.J. 426, 429 -430

(1966), the Court held that where string beans are sold from bins on

a self-service basis there is a probability that some will fall or be

dropped on the floor either by defendant ’s employees or by

customers. Since plaintiff would not be in a position to prove

whether a particular string bean was dropped by an employee or

another customer (or how long it was on the floor) a showing of this

type of operation is sufficient to put the burden on the defendant to

come forward with proof that defendant did what was reasonably

necessary (made periodic inspections and clean- up) in order to

protect a customer against the risk of injury likely to be generated by

defendant’s mode of operation. Presumably, however, the burden of

proof remains on plaintif f to prove lack of reasonable care on

defendant’s part. If defendant fails to produce evidence of

reasonable care, the jury may infer that the fault was probably of

defendant. See also Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964).

12. Notice to Invitee or Obviousness of Defect

a. Affecting Negligence or Comparative Negligence

Whether defendant has furnished an invitee with a reasonably safe place

for the invitee’s use may depend upon the obviousness of the condition claimed

to be hazardous and the likelihood that the invitee would realize the hazard and

protect against it.

Even though an unsafe condition may be observable by an invitee, you may

find that an owner/occupier of premises is negligent, nevertheless, in maintaining

said condition when the condition presents an unreasonable hazard to invitees in

the circumstances of a particular case.

If you find that defendant was negligent in maintaining an unsafe condition,

even though the condition would be obvious to an invitee, the fact that the

condition was obvious should be considered by you in determining whether the

invitee was comparatively negligent (a) in proceeding in the face of a known

hazard or (b) in the manner in which the invitee proceeded in the face of a known

hazard.

NOTE TO JUDGE

See comprehensive note at the end of this section.

b. Warning of Danger

The duty of an owner or occupier of premises is to provide a reasonably

safe place for use by an invitee. Where the owner/occupier knows of an unsafe

condition the owner/occupier may satisfy the duty by correcting the condition, or,

in those circumstances where it is reasonable to do so, by giving warning to the

invitee of the unsafe condition.

Where a warning has been given, it is for you as jurors to determine whether

the warning given was adequate to meet the duty of care owed to the invite e. In

this regard you should consider the nature of the defect or unsafe condition, the

prevailing circumstances, and the likelihood that the warning given would be

adequate to call attention to the invitee of the hazard and of the need to protect

against said hazard.

NOTE TO JUDGE

See comprehensive note at the end of this section.

c. Distraction or Forgetfulness of Invitee

Even if you find that plaintiff knew of the existence of the unsafe or

defective condition, or that the unsafe or defective condition was so obvious that

defendant had a reasonable basis to expect that an invitee would realize its

existence, plaintiff may still recover if the circumstances or conditions are such

that plaintiff’s attention would be distracted so that the plaintiff would not realize

or would forget the location or existence of the hazard or would fail to protect

against it.

Thus, even where a hazardous condition is obvious , you must first

determine whether , in the circumstances, the defendant was negligent in

permitting the condition to exist. You should still consider the plaintiff ’s

comparative negligence. To find plaintiff comparatively negligent, defendant

must prove that plaintiff should have had knowledge of the particular danger and

knowingly and voluntar ily encountered that risk before it can be found that

plaintiff was negligent . In considering whether plaintiff was comparatively

negligent, you may consider that even persons of reasonable prudence in certain

circumstances may have their attention distracted so that they would not realize

or remember the existence of a hazardous condition and would fail to protect

themselves against it. Mere lapse of memory or inattention or mental abstraction

at the critical moment is not an adequate excuse. One who is inattentive or

forgetful of a known and obvious danger is comparatively negligent unless there

is some condition or circumstance which would distract or divert the mind or

attention of a reasonably prudent person.

NOTE TO JUDGE

In Thomas v. Toys “ R” Us, Inc. , 282 N.J. Super. 569 (App. Div.

1995), the Court held that the jury could have concluded that plaintiff

was comparatively negligent where the defendant placed a yellow

warning sign on the floor marking the place where defect existed, a

missing tile, and that a reasonable shopper could have and should

have observed it.

In La Russa v. Four Points at Sheraton, 360 N.J. Super. 156, 165

(App. Div. 2003) , the court indicated that plaintiff ’s awareness of

water tracked into a corridor by a delivery person would be relevant

to the question of comparative negligence.

In Filipowicz v. Diletto, 350 N.J. Super. 552, 561-562 (App. Div.

2002), certif. den., 174 N.J. 362 (2002), the court indicated that a

plaintiff whose inattention resulted in a fall was subject to a

comparative negligence analysis.

In McGrath v. American Cyanamid Co. , 41 N.J. 272 (1963), the

employee of a subcontractor was killed when a plank comprising a

catwalk over a deep trench up ended causing him to fall. The court

held that even if the decedent had appreciated the danger that fact by

itself would not have barred recovery. The Court said if the danger

was one which due care would not have avoided, due care might,

nevertheless, require notice of warning unless the danger was known

or obvious. If the danger was created by a breach of defendant’s duty

of care, that negligence would not be dissipated merely because the

decedent knew of the danger. Negligence would remain, but

decedent’s knowledge would affect the issue of comparative

negligence. The issue would remain whether decedent acted as a

reasonably prudent person in view of the known risk, either by

incurring the known risk (by staying on the job), or by the manner in

which decedent proceeded in the face of that risk.

In Fenie v. D ’Arc, 31 N.J. 92, 95 (1959), the Court held that there

was no reasonable excuse for plaintiff ’s forgetfulness or inattention

to the fact that a railing was temporarily absent from her porch, as

she undertook to throw bones t o her dog, and fell to the ground

because of the absence of a railing she customarily leaned upon.

Although the Court references “contributory negligence ” in the

quote below as this case was decided prior to the adoption of the New

Jersey Comparative Negligence Act, the same rationale would apply

to an analysis of plaintiff’s comparative negligence. The Court held:

When an injury results from forgetfulness or inattention

to a known danger, the obvious contributory negligence

is not excusable in the absence of some condition or

circumstance which would divert the mind or attention

of an ordinarily prudent man. Mere lapse of memory, or

inattention or mental abstraction at the critical moment

cannot be considered an adequate diversion. One who

is inatt entive to or forgetful of a known and obvious

condition which contains a risk of injury is also guilty

of contributory negligence as a matter of law, unless

some diversion of the type referred to above is shown

to have existed at the time.

INFANT TRESPASSER JURY VERDICT SHEET

1. Did the Plaintiff prove that the Defendant knew or had reason to know that

children were likely to trespass on Defendant’s property?

YES ________ NO ________

If your answer is “YES,” proceed to question 2. If your Answer is “ NO,”

cease deliberations.

2. Did the Plaintiff prove that the Defendant knew or had reason to know that

(describe dangerous condition) involved an unreasonable risk of death or

serious bodily harm to children trespassing on Defendant’s property?

YES ________ NO ________

If your answer is “YES,” proceed to question 3. If your Answer is “ NO,”

cease deliberations.

3. Did the plaintiff prove that because of the child’s youth, the child

(A) did not discover the condition, or

(B) did not realize the risk involved by trespassing in that area of

the property made dangerous by the condition, or

(C) did not realize the risk involved in intermeddling with the

condition?

If your answer to any one of the three subparts of question 3 is “YES,” then

your answer to question 3 is “YES.” If your answer to all subparts is “NO,”

then your answer to question 3 is “NO.”

YES ________ NO ________

If your answer is “YES,” proceed to question 4. If your Answer is “ NO,”

cease deliberations.

4. Did the plaintiff prove that the usefulness to the defendant of maintaining

the condition and the burden of eliminating its danger were slight as

compared with its risk of death or serious bodily harm to the Plaintiff?

YES ________ NO ________

If your answer is “YES,” proceed to question 5. If your Answer is “ NO,”

cease deliberations.

5. Did the Plaintiff prove that the Defendant failed to exercise reasonable care

to eliminate the danger of the condition or otherwise protect the trespassing

children from the danger of the condition?

YES ________ NO ________

If your answer is “YES ,” proceed to question 6. If your answer is “ NO,”

cease deliberations.

6. Did the Plaintiff prove that the Defendant’s negligence was a proximate

cause of the plaintiff’s injuries?

YES ________ NO ________

If your answer is “YES,” proceed to question 7. If your Answer is “ NO,”

cease deliberations.

7. Did the Defendant prove that the Plaintiff failed to exercise that degree of

care or caution for Plaintiff’s own safety that you would expect of a

reasonable child of the same age as Plaintiff?

YES ________ NO ________

If your answer is “YES,” proceed to question 8. If your Answer is “ NO,”

proceed to question 10.

8. Did the Defendant prove that the Plaintiff ’s negligence was a proximate

cause of the plaintiff’s injuries?

YES ________ NO ________

If your answer is “YES,” proceed to question 9. If your Answer is “ NO,”

proceed to question 10.

9. By answering questions 5, 6, 7 and 8 “YES ,” you have found both the

Plaintiff and Defendant negligent and that their negligent conduct

proximately caused the accident. Taking the combined negligence of both

Plaintiff and Defendant which caused this accident as being 100%, what

percentage of such total negligence is attributable to:

Defendant _____________

Plaintiff _____________

Total 100%

10. What sum of money will fairly and reasonably compensate the Plaintiff for

damages sustained as a proximate result of this accident?

$_____________________