NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2596-24
SHERRY SINGH and SURINDER SINGH,
Plaintiffs-Appellants,
v.
BORGATA HOTEL CASINO & SPA and MARINA DISTRICT DEVELOPMENT COMPANY, LLC,
Defendants-Respondents,
and
MGM RESORTS INTERNATIONAL,
Defendant. _________________________________
Argued May 5, 2026 – Decided August 4, 2026
Before Judges Sumners and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2147-22. Richard D. Picini argued the cause for appellants (Caruso Smith Picini, PC, attorneys; Richard D. Picini, of counsel and on the briefs).
Jennifer B. Barr argued the cause for respondents (Cooper Levenson, PA, attorneys; Jennifer B. Barr and Samantha T. Carmody, on the brief).
Plaintiffs Sherry Singh and Surinder Singh sued defendants Borgata Hotel
Casino & Spa, MGM Resorts International and Marina District Development
Company (collectively Borgata), attributing the cause of Sherry's1 slip and fall
to their negligent maintenance of a leaking toilet in plaintiffs' hotel room.
The motion court granted Borgata's summary judgment motion, finding
that plaintiffs failed to provide expert testimony establishing the standard of care
for maintaining toilets in their 700-room hotel and how Borgata breached the
standard. For the same reasons, the court denied plaintiffs' cross-motion for
partial summary judgment for liability only, rejecting the argument that Borgata
violated the standard of care set forth in administrative regulations arising from
the Hotel and Multiple Dwelling Law (the Act), N.J.S.A. 55:13A-1 to -31,
1 Because plaintiffs share the same last name, we refer to them by their first name for clarity. We mean no disrespect. A-2596-24 2 requiring that hotel room toilets to be functional at all times and that premises
remain free of hazards. Plaintiffs appeal the motion court's orders. We affirm.
I.
On December 27, 2020, Sherry slipped and fell in the bathroom of one of
Borgata's hotel rooms while her husband, Surinder, was gambling at Borgata's
casino. They sued Borgata, seeking damages for Sherry's injuries and Surinder's
per quo claims.
Sherry deposed that after entering the hotel room she put her suitcase
down, took off her shoes and entered the bathroom. The toilet had its own
separate door, to its right was a "stand-up shower," and to the left of the toilet
room was a double sink and towel rack. She stated that she first walked to pick
up a towel near the sink and did not feel water on the ceramic tiled floor, then
walked towards the toilet room and when she opened the room's door, she felt
water on the floor as she walked in. When she tried to "look down and turn
around," she fell.
Borgata's "incident report and maintenance log indicate that . . . [the
accident] was recorded and responded to by Borgata security and facilities at
approximately 1:00 a.m." Borgata's policy provides "that when [h]ousekeeping
prepares [a] room for its customers to check into, [housekeeping is] required to
A-2596-24 3 report any issues they may come across, including maintenance issues." The
guestroom was last rented six days before Sherry's accident. The maintenance
log shows no reported issues with the toilet in plaintiffs' room prior to Sherry's
accident. Borgata's service order log states the leak was from the "water feed
hose" found "under [the] toilet tank," which provides water to the tank from a
pipe in the wall. Prior to the accident, Borgata conducted a preventative
maintenance program where a general maintenance department team inspected
unoccupied guest rooms on a schedule to make sure that things were in working
order for the guests. However, the program was not in effect when plaintiffs
rented their room. Due to Covid-19, New Jersey casinos and their hotels were
closed earlier in 2020 but had reopened with a limited percentage of guest rooms
available to rent at the time of plaintiffs' visit. The preventative maintenance
program had not been reinstated until 2021, after Sherry's accident.
After discovery, Borgata moved for summary judgment dismissal of the
lawsuit, and plaintiffs cross-moved for partial summary judgment for liability
only. The motion court granted Borgata's motion and denied plaintiffs' cross-
motion, finding they failed to establish a hotel industry standard of care for
"ensuring that [its] rooms are put in proper condition," and did not "establish
A-2596-24 4 . . . what [Borgata] did with respect to ensuring the condition of the room was
unreasonable or violated some duty." The court reasoned that
plaintiffs' counsel . . . says well, it was six days in between the prior occupant and . . . plaintiff[s'] [room rental], making up the room is not enough. But who is going to provide the jury with a basis to say what . . . [Borgata] did was not enough? And not in the sense that water on a ceramic floor is slippery and it may or may not . . . need an expert for that.
As to plaintiffs' cross-motion argument that Borgata was negligent for
violating State administrative regulations, N.J.A.C. 5:10-6.12 and N.J.A.C. 5:10-
21.1(e),3 the court found that "assuming [the regulations] [did] apply for present
purposes," plaintiffs did not provide an "evidentiary basis to say what . . . the
responsibilities [are] and how . . . those [were] breached." The court determined
plaintiffs' reliance on Terrey v. Sheridan Gardens, Inc., 163 N.J. Super. 404, 406
(App. Div. 1978), was misplaced. The court distinguished Sherry's fall from the
accident in Terrey, where the plaintiff fell on steps covered with wet leaves. 163
N.J. Super. at 406. There, the state regulations required the defendant to provide
2 N.J.A.C. 5:10-6.1 provides: "The owner of any hotel or multiple dwelling shall be responsible at all times for keeping all parts of the premises occupied by himself or other persons . . . clean and free of infestation and hazards to the health or safety of occupants . . . ." 3 N.J.A.C. 5:10-21.1(e) provides: "Every toilet . . . shall be maintained in good operating condition at all times . . . ." A-2596-24 5 daily care for all common areas. Id. at 409. We thus held that flattened wet
leaves on a step provided a reasonable inference for a jury to find that the leaves
had been on the steps for at least a day and to conclude that the defendant had
breached their duty. Id. at 409–10. In contrast, the motion court found that
plaintiffs presented no standard of care by which a jury could determine whether
Borgata had breached their duty. This appeal followed.
II.
We review a motion court's summary judgment decision de novo.
DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172, 180 (2024).
Applying the same standard as the motion court, we 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). "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). No "'special deference'"
is accorded to the "'[motion] court's interpretation of the law and the legal
consequences that flow from established facts.'" Cherokee LCP Land, LLC v.
A-2596-24 6 City of Linden Plan. Bd., 234 N.J. 403, 414–15 (2018) (quoting Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
III.
A.
Applying these review principles, we now discuss the substance of this
appeal. "To sustain a cause of action for negligence, a plaintiff must establish:
(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual
damages." Funtown Pier Amusements, Inc. v. Biscayne Ice Cream and
Asundries, Inc., 477 N.J. Super. 499, 512 (App. Div. 2024) (quoting T.B. v.
Novia, 472 N.J. Super. 80, 94 (App. Div. 2022)). "[W]hether a defendant owes
a legal duty to another and the scope of that duty are generally questions of law
for the court to decide." Robinson v. Vivirito, 217 N.J. 199, 208 (2014).
The plaintiff's burden must be sustained by proof of circumstances
allowing a legitimate inference that the defendant failed to exercise due care.
Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div.
1954). "[W]hether the duty was breached is a question of fact" to be determined
by the jury. Jerkins ex. rel. Jerkins v. Anderson, 191 N.J. 285, 305 (2007). "An
inference can be drawn only from proved facts and cannot be based upon a
foundation of pure conjecture, speculation, surmise or guess." Long v. Landy,
A-2596-24 7 35 N.J. 44, 54 (1961). "'[T]he evidence must be such as to justify an inference
of probability as distinguished from the mere possibility of negligence on the
part of the defendant.'" Malin v. Union Carbide Corp., 219 N.J. Super. 428, 439
(App. Div. 1987) (quoting Callahan v. Nat'l Lead Co., 4 N.J. 150, 154–55
(1950)).
"'[A] proprietor's duty to [their] invitee is one of due care under all the
circumstances.'" Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 257
(2015) (quoting Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964)). This
"includes an affirmative duty to inspect the premises and 'requires a business
owner to discover and eliminate dangerous conditions, to maintain the premises
in safe condition, and to avoid creating conditions that would render the
premises unsafe.'" Troupe v. Burlington Coat Factory Warehouse Corp., 443
N.J. Super. 596, 601 (App. Div. 2016) (quoting Nisivoccia v. Glass Gardens,
Inc., 175 N.J. 559, 563 (2003)). However, "an invitee seeking to hold a business
proprietor liable in negligence 'must prove, as an element of the cause of action,
that the defendant had actual or constructive knowledge of the dangerous
condition that caused the accident.'" Prioleau, 223 N.J. at 257 (quoting
Nisivoccia, 175 N.J. at 563). "A defendant has constructive notice when the
condition existed 'for such a length of time as reasonably to have resulted in
A-2596-24 8 knowledge and correction had the defendant been reasonably diligent.'" Troupe,
443 N.J. Super. at 602 (quoting Parmenter v. Jarvis Drug Stores, Inc., 48 N.J.
Super. 507, 510 (App. Div. 1957)).
B.
The motion court's summary judgment rulings were based primarily on
finding that plaintiffs failed to establish Borgata's standard of care with respect
to the toilet leak. Plaintiffs, relying on Handleman v. Cox, 39 N.J. 95, 111
(1962), argue that Borgata's "common law duty was to use reasonable care to
make the premises safe," including "the duty to make a reasonable inspection[]
to discover defective conditions." Plaintiffs contend "that [Borgata] should have
an employee enter a room that was vacant for more than a day to make sure there
were no hazards present before the room is rented to its guests." They argue the
motion court's ruling that they needed an expert to establish the standard of care
is contrary to our Supreme Court's recognition in Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 406 (2014), that a plaintiff is not required to
establish a standard of care in most negligent cases. The Davis court held that
"when deciding whether expert testimony is necessary, a court properly
considers 'whether the matter to be dealt with is so esoteric that jurors of
common judgment and experience cannot form a valid judgment as to whether
A-2596-24 9 the conduct of the [defendant] was reasonable.'" 219 N.J. at 407 (alteration in
original) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)).
Plaintiffs aver that the toilet leak issue here is "neither esoteric nor complex"
such that a jury would not need an expert's opinion to articulate a standard of
care that Borgata violated. Under the circumstances of this case, we disagree.
The standard for making sure 700 hotel rooms are properly maintained
does not "involve facts about which 'a layperson's common knowledge is
sufficient to permit a jury to find that the duty of care has been breached without
the aid of an expert's opinion.'" Davis, 219 N.J. at 407 (quoting Giantonnio v.
Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)). The management of such a
large hotel is somewhat esoteric; especially when guest rooms may be vacant
for several days. A juror "would not be expected to have sufficient knowledge
or experience" regarding this situation; thus, expert testimony is necessary
because the jury "would have to speculate without the aid of expert testimony."
Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). An expert
with knowledge of hotel management standards would be able to opine to what
extent its guest rooms need to be inspected to prevent guests from renting rooms
that have unsafe conditions. Therefore, the motion court did not err in finding
A-2596-24 10 that plaintiffs should have provided expert testimony to establish the standard
of care.
C.
Plaintiffs also contend, as they argued in their cross-motion for partial
summary judgment, that expert testimony is not needed, because Borgata
violated the standard of care set forth in N.J.A.C. 5:10-6.1 and N.J.A.C. 5:10-
21.1 by not making sure all areas of their guest room were free of hazards and
the toilets in the room were functional. We disagree.
The motion court dismissed plaintiffs' partial summary judgment motion,
finding that N.J.A.C. 5:10-6.1 and -21.1(e) provided "no evidentiary basis to say
what are [Borgata's] responsibilities and how were those breached, how is the
requirement that those responsibilities be met, not met in this case."
Specifically, as to N.J.A.C. 5:10-21.1(e), the court stated there was no expert to
say what "the standard of the industry to maintain [toilets] in operating
condition, and here's how you inspect when one guest leaves before the next
guest comes in and frequency and so forth." However, N.J.A.C. 5:10-6.1 and -
21.1(e) have nothing to do with industry standards. It appears that the court was
imposing a standard of care requirement onto a simple regulatory violation.
There is no dispute that the toilet was not in "good operating condition" as a
A-2596-24 11 leaking hose had to be replaced. Similarly, there is no question that water on a
tile bathroom floor is a hazard to the health or safety of occupants and violates
N.J.A.C. 5:10-6.1's requirement that hotel owners ensure their premises are free
from such hazards. An expert is not needed to determine that a broken toilet
leaking water on the bathroom floor violated the regulations' plain meaning. See
J.H. v. R&M Tagliareni, LLC, 239 N.J. 198, 214 (2019) (quoting Medford
Convalescent & Nursing Ctr. v. Div. of Med. Assistance & Health Servs., 218
N.J. Super. 1, 5 (App. Div. 1985)) ("A 'regulation should be construed in
accordance with the plain meaning of its language and in a manner that makes
sense when read in the context of the entire regulation.'").
While N.J.A.C. 5:10-6.1 and -21.1(e) provide a standard of care insofar
as they require all areas to be free of hazards and toilets to always be functional,
they do not provide a standard for how often rooms should be inspected for these
issues. The Act does provide that "housekeeping" and "interior maintenance"
shall be conducted "on a daily basis if a hotel, or weekly basis if a rooming
house, but under any circumstances each such unit shall be completely inspected
and cleaned where the occupancy thereof is changed." N.J.A.C. 5:10-23.2(a)(2).
Further, every "occupied guest room" must be "cleaned and sanitized every
day," and there must be a logbook certifying that these requirements have been
A-2596-24 12 met daily. N.J.A.C. 5:10-23.2(b)(4) and (c). However, these regulations do not
set forth inspection requirements of vacant rooms before it is re-rented, which
is the gravamen of plaintiffs' contention. Consequently, there is no basis to grant
plaintiffs' partial summary judgment for liability due to Borgata's violation of
the N.J.A.C. 5:10-6.1 and -21.1(e).
D.
Even accepting plaintiffs' argument that expert testimony was
unnecessary and N.J.A.C. 5:10-6.1 and -21.1(e) set forth a standard of care that
Borgata breached, the court's orders should remain because plaintiffs did not
establish that Borgata had constructive notice of the toilet leak. There is no
dispute that Borgata did not have actual notice of the toilet leak.
Plaintiffs argue that notice is not an issue to establish a prima facie case
of negligence. They contend Borgata's position that "no liability can attach
unless [it] had notice of a defective condition" is inconsistent with the "active
duty" the Act and common law imposed on Borgata. They aver that Borgata's
"duty to perform reasonable inspections cannot be abrogated by the lack of
notice." Plaintiffs reiterate the argument they made before the motion court that
a leaking toilet is the same as the leaves in Terrey, which this court constituted
as a "patent condition," of which the defendant would have had knowledge of
A-2596-24 13 had they complied with their statutorily mandated daily obligation. See 163 N.J.
Super. at 410. We reject these contentions as did the motion court.
A property owner's "liability is still governed by negligence principles,
and to be found negligent, the [owner] must be shown to have actual or
constructive knowledge of the dangerous condition." Ruiz ex rel. Ruiz v.
Kaprelian, 322 N.J. Super. 460, 468 (App. Div. 1999). Our courts have
consistently required evidence of how long a condition has lasted such that a
jury could determine whether the defendants had the opportunity to act
reasonably and repair the dangerous condition. For example, in Ratering v.
Mele, this court found testimony that the trash and debris on vestibule stairs to
the entrance of an inn, which caused the plaintiff's fall, and had increased over
the two-and-a-half hour period the plaintiff was at the establishment, "presented
an issue for the jury's consideration as to whether the improper condition of the
stairs had existed for sufficient time to have been discoverable and remediable."
11 N.J. Super. 211, 214 (App. Div. 1951). Similarly, in Tua v. Modern Homes,
Inc., we concluded evidence that the wax-like substance which caused the
plaintiff to slip on the sales floor of a store had "'encrusted' around the edges as
to require [an employee] to use an implement to scrape the 'encrusted' substance
from the floor surface . . . was sufficient to justify the very inference of the
A-2596-24 14 existence of the offending substance on the floor for a protracted period of time."
64 N.J. Super. 211, 220 (App. Div. 1960). And in Terrey, a statute mandated
daily upkeep of common areas and the fact that the leaves were flattened on
steps over time provided context for concluding the leaves had been sitting there,
thereby imputing constructive notice to the defendant. 163 N.J. Super. at 409–
In contrast, we concluded that there was not sufficient evidence to provide
constructive notice in Grzanka v. Pfeifer, 301 N.J. Super. 563 (App. Div. 1997).
There, a traffic signal had stopped working from vandalism to its circuit breakers
and a car accident resulted. Id. at 567–68. This court found the City of Paterson
did not have constructive notice and affirmed the trial court's granting of
summary judgment to the city, in part, because it could not "know whether the
vandalism that caused the condition of the signal occurred hours, minutes or
seconds before the accident." Id. at 574; see also Carroll v. N.J. Trans., 366 N.J.
Super. 380, 388 (App. Div. 2004) (finding there was no constructive notice
because "there was no evidence of how long the dog feces[,] [which caused the
plaintiff's fall,] was on the steps").
Here, unlike in Terrey, Ratering, and Tua, the dangerous condition was in
the bathroom of one of the Borgata's 700 hotel rooms—not in a public area, such
A-2596-24 15 as an entrance, the reception area, or conference room, where it would have been
more obvious. As such, it was not readily observable by Borgata. There had
been no prior reports of a leak or maintenance requests in the room plaintiffs
rented. Contra Ruiz v. Toys R Us, Inc., 269 N.J. Super. 607, 610 (App. Div.
1994) (holding that notice was not an issue because the defendants were aware
and had prior complaints of persistent roof leakage problems).
More importantly, plaintiffs have not provided enough evidence to
establish how long the condition was present such that a jury could consider
whether defendants could have known about it and acted accordingly. As in
Grzanka and Carroll, the condition could have occurred hours minutes or
seconds before the accident, making constructive notice impossible to ascertain.
Thus, even accepting plaintiffs' contention that vacant rooms should be
inspected before renting them out, it would be "pure conjecture" or "speculation"
that an employee would have discovered the leak, as it could have begun after
the inspection—even if the inspection occurred the same day the room was
rented to plaintiffs, as there is no indication of the volume of water leaking from
the hose. Long, 35 N.J. at 54. It is also speculative to suggest that had Borgata's
preventative maintenance program in effect at the time of plaintiffs' rental, the
leak would have been discovered.
A-2596-24 16 To the extent we have not addressed any of plaintiffs' arguments, it is
because they lack sufficient merit to be discussed in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-2596-24 17