NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3929-24
HARVEST RESTAURANTS GROUP, LLC, CHESTER GRABOWSKI and ROBERT J. MOORE,
Plaintiffs-Appellants,
v.
THOMAS P. ADACH, and TECHTON, LLC,
Defendants,
and
STRUCTURAL WORKSHOPS, LLC, and JOSEPH DIPOMPEO,
Defendants/Third-Party Plaintiffs-Respondents,
KRZAK CONSTRUCTION,
Third-Party Defendant. __________________________ Argued May 14, 2026 – Decided June 1, 2026
Before Judges Mawla, Bishop-Thompson and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2542-19.
Jay J. Rice argued the cause for appellants (Nagel Rice LLP, attorneys; Jay J. Rice and Bradley L. Rice, of counsel and on the briefs).
John H. King argued the cause for respondents Structural Workshops, LLC and Joseph DiPompeo (Thompson Becker, LLC, attorneys; John H. King, of counsel and on the brief; Francesca R. Collins and Christopher D. Hartt, on the brief).
Timothy F. Hegarty argued the cause for amicus curiae American Council of Engineering Companies of New Jersey (Zetlin & De Chiara, LLP, attorneys; Timothy F. Hegarty, on the brief).
PER CURIAM
Plaintiffs Harvest Restaurant Group, LLC, Chester Grabowski, and Robert
J. Moore appeal from a February 13, 2025 order granting defendants Structural
Workshops, LLC and Joseph DiPompeo partial summary judgment and an April
16, 2025 order denying plaintiffs reconsideration of the February 2025 order.
We affirm.
Plaintiffs leased a building from Tarta Luna, LLC in Westfield to operate
a restaurant on the premises. The lease involved extensive repairs, rebuilding,
A-3929-24 2 and construction of an addition. Plaintiffs hired an architect for the project. In
September 2014, plaintiffs and defendants entered a contract for defendants to
act as the engineer of record. Defendants' fee was $9,950. The agreement
included a limitation of liability provision, which read as follows:
In recognition of the relative risks . . . of the project[,] . . . [defendants'] total liability to [plaintiffs], for any and all . . . claims [or] losses . . . arising out of this agreement from any cause . . . shall not exceed the total amount of $50,000 or the amount of fees paid to [defendants] . . . (whichever is greater). Such causes include, but are not limited to, [defendants'] negligence, errors, omissions, strict liability, breach of contract[,] or breach of warranty.
The local planning board granted preliminary and final site plan approval to
plaintiffs in October 2014. Construction took place during 2015, and the
restaurant opened in November 2016.
In August 2016, Tarta Luna and the owner of an adjoining building sued
plaintiffs to stop construction, alleging the construction and design made the
building unsafe because it increased the load on the building's walls to a
dangerous level. DiPompeo had certified he believed the construction was up
to code. The architect and municipal construction code official confirmed this
as well. Defendants, Tarta Luna, and a court-appointed expert prepared
A-3929-24 3 engineering reports, which were admitted into evidence. DiPompeo testified at
trial but was not a party in the lawsuit.
In December 2017, the Tarta Luna court found defendants applied the
wrong building code, and there was a safety risk to the public. The court ordered
the restaurant to close for repairs. The restaurant reopened in December 2018.
In December 2019, plaintiffs sued defendants, alleging engineering
malpractice and breach of contract. Grabowski was deposed during discovery.
He testified he signed the contract with defendants, had the opportunity to
negotiate its terms, and have it reviewed by an attorney but did not do so.
Grabowski recognized the limitation of liability provision and, though he had
the opportunity to read it, he could not recall doing so.
Plaintiffs' engineering expert was also deposed and testified defendants
"improperly applied the building code and neglected [to] do a full structural
analysis and design." She agreed with the Tarta Luna court's finding the
construction was a safety threat to the public. Defendants' engineering expert
reported defendants complied with the industry standard of care, the proper
building code, and the project "did not []pose immediate danger to the public."
A-3929-24 4 Both parties moved for summary judgment. On February 13, 2025, the
motion judge issued a detailed written opinion denying plaintiffs' motion and
granting defendants' motion for partial summary judgment.
Pertinent to the issues raised on appeal, plaintiffs argued the limitation of
liability provision violated public policy and was an exculpation clause. The
clause was exculpatory because it did not ensure defendants' performance.
The motion judge found the limitation of liability provision was not an
exculpation clause. He observed defendants' liability was capped at $50,000,
which was a multiple greater than five times their $9,950 fee. Discovery showed
plaintiffs "had the opportunity to read the . . . [c]lause and object if [they] chose
to do so. [They] did not. Plantiff[s] also did not have an attorney review the
contract despite having the opportunity to do so. There [wa]s no merit to any
argument of unequal bargaining power." The judge concluded the limitation of
liability provision was enforceable and granted defendants partial summary
judgment.
Plaintiffs moved for reconsideration. They argued the limitation of
liability provision was invalid as a matter of public policy because defendants'
conduct created a public safety hazard. Plaintiffs pointed to Hubner v. Spring
Valley Equestrian Center, 203 N.J. 184 (2010); Marcinczyk v. State of New
A-3929-24 5 Jersey Police Training Commission, 203 N.J. 586 (2010); and Wilson ex rel.
Manzano v. City of Jersey City, 209 N.J. 558 (2012), as support for the
proposition parties cannot contractually avoid liability where they act in a
manner that endangers the public. The Tarta Luna court's finding defendants
deviated from the standard of care was evidence of the public danger.
The motion judge distinguished these cases. He noted Hubner involved
the operators of an equine facility under the Equine Act, which generally bars
suits against facility operators, except in instances where they act with a
negligent disregard for safety. N.J.S.A. 5:15-9(d). No such statute applied to
defendants here. Wilson also involved a statutory limitation of liability related
to telephone companies, which the judge found inapplicable for similar reasons.
In Marcinczyk, the Court held a public entity cannot condition the
provision of public services on the recipient's waiver of liability because it
violated "the public policy expressed by the Legislature in the Tort Claims Act
[(TCA)]." 203 N.J. at 595-96. The judge observed the limitation of liability
provision here does not injure the public and the TCA did not apply.
Plaintiffs also argued defendants' failure to adhere to the professional
standard of care was a separate reason to invalidate the limitation of liability
provision. They pointed to Lucier v. Williams, which held, regardless of the
A-3929-24 6 level of damages, limitation of liability provisions in professional service
contracts are disfavored because they immunize the malfeasant party from their
own negligence. 366 N.J. Super. 485, 492-93 (App. Div. 2004). Plaintiffs
argued Lucier required the court to consider the disparity between the
consequences of negligence amongst the parties.
The judge found no evidence the limitation of liability provision
immunized defendants because they were still liable for multiples of their
expected compensation. Lucier's disparity between the consequences of the
negligence standard did not apply because there was an exculpation clause in
that case, but there was none here. Further, the disparity standard applied where
the parties have unequal bargaining power, which the judge found did not exist
here because "[p]laintiff[s are] a sophisticated business[,] owning and operating
multiple restaurants[,] . . . and were afforded the opportunity to review . . . and
present the contract to an attorney." The liability cap was a better measure than
the damages alleged by plaintiffs because it was the product of mutual assent.
Plaintiffs argued whether the public safety hazard created by defendants
invalidated the limitation of liability provision and whether deviation from the
standard of care permitted them to rely upon the limitation of liability provision
were disputed facts, which prevented the entry of summary judgment . The
A-3929-24 7 motion judge found no law to support these propositions. He noted "limitation
of liability provisions are written into contracts under the exact assumption that
one party may be negligent in its performance." Because the clause here was
not exculpatory, "it would be unfair . . . to render the provision unenforceable."
The judge denied the reconsideration motion.
On August 4, 2025, a different judge tried the remaining claims. During
the hearing, the parties drafted a consent order entering judgment in favor of
plaintiffs and against defendants for $50,000, pursuant to the limitation of
liability provision. The consent order reserved plaintiffs' right to appeal from
the February 13 and April 16, 2025 orders. The parties agreed if plaintiffs
prevailed on appeal, the judgment against defendants would be vacated and the
matter would proceed to a jury trial. Plaintiffs filed their appeal, and we
subsequently granted the American Council of Engineering Companies of New
Jersey's motion to appear as amicus.
I.
A motion for summary judgment must be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
A-3929-24 8 matter of law." R. 4:46-2(c). We review the trial court's grant or denial "of a
motion for summary judgment de novo, applying the same standard used by the
trial court." Samolyk v. Berthe, 251 N.J. 73, 78 (2022). The court must
"consider whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor of the non-
moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
"To decide whether a genuine issue of material fact exists, the trial court
must 'draw[] all legitimate inferences from the facts in favor of the non -moving
party.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original)
(quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "The court's
function is not 'to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm.,
Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540).
"Summary judgment should be granted, in particular, 'after adequate time
for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial.'" Friedman, 242
N.J. at 472 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
A-3929-24 9 However, summary judgment is not meant to "shut a deserving litigant from
[their] trial." Brill, 142 N.J. at 540 (quoting Judson v. Peoples Bank & Tr. Co.
of Westfield, 17 N.J. 67, 77 (1954)). Nor is it appropriate when discovery is
incomplete and critical facts are within the moving party's knowledge.
Friedman, 242 N.J. at 472.
"If there is no genuine issue of material fact, [the court] must then 'decide
whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting
& Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013)
(quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div.
2007)). On de novo review, "[a] trial court's interpretation of the law and the
legal consequences that flow from established facts are not entitled to any
special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019)
(alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
The enforceability of contract provisions is a question of law also subject
to de novo review. Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019). No
deference is owed to a trial court's contractual interpretation. Ibid.
We review the adjudication of a motion for reconsideration for an abuse
of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). "An
A-3929-24 10 abuse of discretion 'arises when a decision is made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440
N.J. Super. 378, 382 (App. Div. 2015) (internal quotation marks omitted)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
II.
Plaintiffs argue if the motion judge had applied Lucier to analyze the
limitation of liability provision, he would have found the provision
unenforceable as against public policy. The judge erred by not examining the
public policy exceptions to the enforceability of such a provision both at the
summary judgment and reconsideration phases.
Plaintiffs reiterate defendants were not entitled to the protection of the
provision where their conduct created a public safety danger. The judge misread
Hubner, Marcinczyk, and Wilson by noting the statutes discussed in them did
not cover defendants' conduct here. The enforceability of the limitation of
liability provisions in those cases did not turn on statutory law.
Plaintiffs argue the motion judge ignored the fact N.J.S.A. 45:8-27, which
governs the licensing and qualifications of engineers, also requires them to
"safeguard life, health and property, and promote the public welfare." The judge
A-3929-24 11 should have recognized that where a party has a statutory duty, it cannot limit
its liability. The limitation of liability provision, therefore, injured the public
because it interfered with public welfare and safety by immunizing defendants.
Plaintiffs contend liability may not be limited where, as here, a party is a
licensed professional and breaches the professional standard of care. The judge
misunderstood Lucier because he focused on comparing defendants' fee and the
limitation of liability cap, and should have instead considered the difference
between the liability created and the cap. He also misconstrued Lucier when he
concluded the parties had equal bargaining power because Lucier held a licensed
professional cannot shield themselves from liability, even where the parties are
sophisticated and have equal bargaining power.
Plaintiffs argue the judge acknowledged at the motion for reconsideration
there were material questions of fact related to the reasonableness of the $50,000
liability cap yet did not analyze them. They reiterate reasonable jurors could
determine this limitation of liability was essentially an exculpation clause.
There was also a genuine material dispute about whether defendants' conduct
constituted professional negligence and caused a public safety danger. These
were disputed facts for a jury to decide.
A-3929-24 12 III.
"A basic tenet of [New Jersey] law is the doctrine of freedom of contract."
Marcinczyk, 203 N.J. at 592. When arms-length contracts are unambiguous,
they will be enforced as written unless evidence of fraud, duress, illegality, or
mistake is shown. Id. at 592-93. This is because it is "conclusively presumed"
the parties understood and assented to the legal effect by signing the contract.
Rudbart v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 353 (1992)
(quoting Fivey v. Pa. R.R. Co., 67 N.J.L. 627, 632 (E. & A. (1902))).
"Generally, when the terms of a contract are clear, the construction and effect
of the contract is a matter of law which must be resolved by the court and not
the jury." Mango v. Pierce-Coombs, 370 N.J. Super. 239, 256 (App. Div. 2004).
"As a general and long-standing matter, contracting parties are afforded
the liberty to bind themselves as they see fit." Stelluti v. Casapenn Enters., LLC,
203 N.J. 286, 302 (2010). Courts may not rewrite agreements for a party "for
the purpose of giving that party a better bargain." Lucier, 366 N.J. Super. at
491. Lucier set forth a framework to determine whether a limitation of liability
is enforceable by requiring courts to examine, with particular attention, "any
inequality in the bargaining power and status of the parties, as well as the
substance of the contract." Id. at 492.
A-3929-24 13 Parties may allocate risks through a variety of tools, including exculpatory
clauses and limitation of liability or damages clauses. Exculpatory clause s are
"contractual provision[s] relieving a party from liability resulting from a
negligent or wrongful act." Black's Law Dictionary 648 (9th ed. 2009).
Limitation of liability or damages clauses are "contractual provision[s] by which
parties agree on a maximum amount of damages recoverable for a future breach
of the agreement." Black's Law Dictionary 1013 (9th ed. 2009). Such contract
provisions will be invalidated if either unconscionable or against public policy.
Lucier, 366 N.J. Super. at 491.
The "focus [of the] inquiry [is] whether the limitation is a reasonable
allocation of risk between the parties or whether it runs afoul of the public policy
disfavoring clauses which effectively immunize parties from liability for their
own negligent actions." Id. at 492. A provision will be found enforceable if the
damages cap sufficiently provides a realistic incentive to a party to act
diligently. Ibid. "It is clear that private parties to a transaction lacking public
interest are bound by their agreements relieving against liability for negligence."
Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575, 580 (App. Div. 1955).
Our Supreme Court has stated:
[A]n agreement is against public policy if it is injurious to the interest of the public, contravenes some
A-3929-24 14 established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or . . . is at war with the interests of society and is in conflict with public morals.
[Marcinczyk, 203 N.J. at 594 (quoting Frank Briscoe Co. v. Travelers Indem. Co., 65 F. Supp. 2d 285, 312 (D.N.J. 1999)).]
Public policy is informed by principles espoused by the Legislature and judicial
opinions. Ibid.
In Lucier, the plaintiff homebuyers brought claims against the defendant
home inspector, but the defendant argued a limitation of liability provision in
their contract limited his liability to one-half of the home inspection fee. 366
N.J. Super. at 488. We concluded the provision violated public policy because
it was a contract of adhesion and did not incentivize the defendant to act
diligently. Id. at 493. The parties had unequal bargaining power because the
plaintiffs were unsophisticated and never had the opportunity to seek legal
advice. Ibid. The limitation was essentially an exculpatory clause because the
cap of one-half of the inspection fee was drastically minimal compared to the
consequences of a breach. Id. at 495.
Having considered the record pursuant to these principles, we reject
plaintiffs' arguments and affirm substantially for the reasons expressed in the
motion judge's opinions. We add the following comments.
A-3929-24 15 The parties' dispute over the limitation of liability provision is not a jury
question. There is no evidence the provision was ambiguous or the contract was
entered into because of fraud, duress, illegality, or mistake. Where a contract's
terms are plainly written, our obligation is to enforce those terms.
Plaintiffs fault the motion judge for distinguishing the cases cited to him,
including Hubner, Marcinczyk, and Wilson, based on the statutes applicable in
them, and point us to N.J.S.A. 45:8-27 and argue the judge ignored the statute's
public policy considerations, which we highlight next. In relevant part, N.J.S.A.
45:8-27 reads as follows: "In order to safeguard life, health and property, and
promote the public welfare, any person practicing or offering to practice
professional engineering . . . in this State shall hereafter be required to submit
evidence that [they are] qualified so to practice and shall be licensed as
hereinafter provided." (Emphasis added).
Plaintiffs' statutory argument is unpersuasive because when read with the
rest of the statute, the public welfare language is nothing more than an
explanation of why engineers must be licensed. The language has nothing to do
with an engineer's liability, let alone the enforceability of a limitation of liability
provision, unless an engineer is practicing without a license. The motion judge
A-3929-24 16 correctly found the limitation of liability provision did not harm the public's
interest or cause the contract to interfere with public welfare or safety.
We conclude plaintiffs have not shown a public policy exception that
would invalidate the limitation of liability provision as a matter of law. As a
result, summary judgment was properly granted to defendants and the denial of
the motion for reconsideration was not an abuse of discretion. The remaining
arguments raised on appeal lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3929-24 17