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Co-Chair, Hospitality & Liquor Liability

Co-Chair, Premises & Retail Liability

Portrait of Carolyn Kelly Bogart

Results

  • Summary Judgment Secured in New Jersey Wrongful Death Case

    We won summary judgment in a wrongful death case, based on a lack of duty owed by a groom to his wedding guest, and dismissal of cross claims for lack of a viable contract owing indemnity under Azurak. The decedent was a plus-one guest at our client’s wedding, which was held at a multi-building facility in Moorestown, NJ. Specifically, the venue consisted, in part, of a 131-year-old home with a castle-like outward appearance. The home’s design includes an elevated terrace (raised approximately five feet and accessible by stairs) with an unguarded, flat ledge. The plaintiff alleges the decedent was sitting and/or leaning against the ledge when he fell over, sustaining injuries that allegedly resulted in his death a few months after the event. Our client was an employee at the facility. The corporate owners of the property permitted him to use the home for his wedding, at no cost, provided he obtain an event insurance policy. The co-defendants sought indemnification, arguing that the policy evidenced an agreement that our client would provide indemnification to them. It was our position, and the court agreed, that our client owed no duty to warn the decedent as this was an open and obvious condition that the decedent was aware of or by a reasonable use of his faculties would observe. Further, our client and the decedent were both invitees to the property, and it is the co-defendant landowners who had a non-delegable duty to use reasonable care to protect against dangerous conditions. Therefore, the claims raised in the complaint and cross-claims for contribution were dismissed. Further, the court found no breach of contract or enforceable agreement to indemnify; the negligence in this case was on the co-defendant commercial property owners.

  • Summary Judgment Obtained in an Indemnity and Common Law Contribution Case

    We successfully argued and secured summary judgment in favor of a masonic organization, dismissing third-party claims for indemnity and common law contribution. At issue was a third-party complaint for contractual indemnity and common law contribution over an alleged trip and fall due to a structural condition with a rented property. The masonic organization rented the property for a single use event in support of the organization. The plaintiff claimed to be a guest and initiated suit against the commercial property owner, the third-party plaintiff. In support of the third-party complaint, a rental agreement was produced, which was not for the alleged date of loss. The third-party plaintiff argued the rental agreement disclaimed liability on the part of the property owner and turned the property over to the renter’s charge; therefore, the renter was required to inspect the property and warn its guests of dangerous conditions. The court granted summary judgment for the following reasons. First, the rental agreement could not support contractual indemnity because it was not Azurak compliant as there was no explicit language requiring indemnity. Second, the masonic organization’s duty as a short-term lessee did not require inspection prior to the event, nor was there sufficient factual evidence to overcome the masonic organization’s charitable immunity.   

  • Summary Judgment Secured in a Dram Shop Liability Case

    We won summary judgment in a challenging dram shop liability case against a large restaurant chain where the demand was $1 million. The plaintiff alleged our client was responsible for overserving the co-defendant driver prior to the subject motor vehicle accident. The court agreed with our arguments that the plaintiff failed to establish a violation of the The New Jersey Dram Shop Act. The plaintiff failed to present an expert report until opposing our motion for summary judgment. The expert report, which was submitted as an exhibit to the plaintiff’s opposition brief, did not extrapolate the defendant’s BAC at the time he left the defendant’s establishment. There was also no eyewitness testimony on the issue. The court rejected the plaintiff’s arguments that there was sufficient circumstantial evidence to support a jury’s conclusion that the co-defendant driver was visibly intoxicated at the time of service based on police observations at the scene of the accident and a (.17) BAC reading, which was administered approximately one hour and 30 minutes after leaving the restaurant. Distinguishing between prior case law and the subject circumstances, summary judgment was awarded based on the lack of either direct testimony or expert opinion as to the co-defendant’s state of intoxication at the time of service. 

  • Appellate Court Pivots; Motion to Dismiss Granted

    We obtained a published decision in the New Jersey Appellate Division reversing the denial of a motion to dismiss because of a lack of duty. The plaintiff’s ex-husband drove through the gate at a large, high-rise apartment complex, waited for plaintiff to arrive, and then shot her in the face. Our client was the former management company which ceased its management obligations 17 days before the shooting, when a successor management company took over. The plaintiff argued that our client was negligent based on procedures for securing the lot it put in place when it managed the property. We sought summary judgment, arguing a lack of duty due to the expiration of a management contract. The Law Division judge denied that motion, asserting there were genuine issues of fact and that the jury had to decide whether a duty existed. We persuaded the Appellate Division to grant interlocutory appeal, and then we successfully argued for a reversal. First, the Appellate Division agreed with us that the trial judge erred by holding that the existence of a duty was a jury question and not a question for the court to decide as a matter of law. Second, the Appellate Division held that, since our client no longer had any rights or responsibilities over the security of the premises when the shooting happened, and because there was no indication that the successor management company or the owner of the property could not have changed the procedures which our client had put in place, the former management company owed no duty to the plaintiff and that summary judgment was therefore appropriate.

  • Social Host Act Does Not Apply to Gross Negligence Claims.

    Carolyn Bogart was successful in opposing a plaintiff’s appeal against our client, a former fraternity member and social guest. In 2014, the plaintiff was a 20-year-old college student and fraternity member attending a university in New Jersey. After consuming his own alcohol, he fell asleep in a dorm room that was the location of an on-campus party. In the early morning hours, he left the dorm room and proceeded to drive his vehicle, which was unknown to anyone in attendance, as all of the party attendees had either left the party or were asleep when he left. He injured himself in a one-car accident, resulting in a traumatic brain injury and disfigurement claim. In 2016, he filed a lawsuit naming all party attendees and fellow brothers in his fraternity, as well as the university and its employees. Following over 30 depositions, summary judgment was granted to all defendants. The appeal was filed in 2019, and a reported decision issued on March 25, 2021, affirming the underlying Superior Court decision as to our client. The appeal raised questions concerning the scope of the duty owed to an adult not old enough to drink legally, but who nonetheless drank to excess. The appellate panel ruled that the Social Host Liability Act did not apply because it governs liability for third party injuries resulting from the service of alcohol to an of-age adult.

  • Dismissal of Complaint Under New Jersey’s Charitable Immunity Act

    Marshall Dennehey was successful in the New Jersey Appellate Division, which affirmed the dismissal of the plaintiff’s complaint under New Jersey’s Charitable Immunity Act. The defendant operated a shelter for battered women, their dependent children and the homeless. The plaintiff and her child were residents at the shelter and beneficiaries of its charitable goals when the plaintiff slipped and fell on ice on the shelter’s property. She argued that she was not a beneficiary of the charity because she did administrative tasks and volunteered in the charity’s thrift store. However, the trial court and Appellate Division rejected those arguments, holding that the plaintiff’s presence on the defendant’s property was due to her being a resident beneficiary of the charity, not as a result of any volunteer work she may have performed for the defendant. Thus, because her volunteer activities were incidental to her residency at the shelter, the Charitable Immunity Act applied and the dismissal of the complaint was affirmed.

  • Claims Barred Under New Jersey's Charitable Immunity Doctrine.

    We obtained summary judgment in the Passaic County Superior Court of New Jersey on behalf of a non-profit shelter for battered women. The plaintiff, who was staying at the shelter at the time of her alleged incident, accused the shelter of negligence with regard to removing snow and ice from their parking lot. The plaintiff attempted to argue that she was not a “beneficiary” of the shelter but was a volunteer, who was not required to help but who chose to work at the shelter in exchange for room and board. Defense counsel successfully argued that the defendant was a qualified non-profit organization and that the plaintiff was clearly benefiting from the non-profit at the time of her incident. Therefore, the plaintiff’s claims were barred under the New Jersey Charitable Immunity doctrine.

Firm Highlights

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.