Ashwinni D. Seopersad v. Fulger's Golden Beer & Liquors

NOT FOR PUBLICATION WITHOUT THE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-3003-23

ASHWINNI D. SEOPERSAD,

Plaintiff-Appellant,

v.

FULGER'S1 GOLDEN BEER &

LIQUORS, a/k/a FULGER'S

HARRISON, CIFELLI & SONS

GENERAL CONTRACTING

INC., and PRAJ 98, LLC,

Defendants-Respondents,

and

TOWN OF HARRISON,

Defendant.

__________________________

Argued November 6, 2025 – Decided February 3, 2026

Before Judges Mayer, Gummer, and Jacobs.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-0442-21.

1

Improperly pled as Fulgers.

Douglas S. Schwartz argued the cause for appellant

(Sisselman & Schwartz, LLP, attorneys; Douglas S.

Schwartz, on the briefs).

Mario A. Batelli argued the cause for respondents

Fulger's Golden Beer & Liquors and Praj 98, LLC

(Foster & Mazzie, LLC, attorneys; Mario A. Batelli, on

the brief).

Virginia E. Hughes argued the cause for respondent

Cifelli & Sons General Contracting Inc. (Vilacha &

Demille, attorneys; Virginia E. Hughes, on the brief).

PER CURIAM

Plaintiff Ashwinni D. Seopersad appeals from three orders: (1) a March

27, 2024 order granting a directed verdict in favor of defendants Fulger's Golden

Beer & Liquor (Fulger's) and Praj 98, LLC (Praj) at the close of plaintiff's case

at trial; (2) an April 12, 2024 order entering judgment on the jury's verdict in

favor of defendant Cifelli & Sons General Contracting, Inc. (Cifelli); and (3) a

May 13, 2024 order denying plaintiff's motion for a new trial. We affirm.

I.

On October 25, 2019, plaintiff fell while exiting a liquor store operated

by Fulger's and owned by Praj. The fall occurred on a newly constructed step

at the store's entrance. Cifelli had poured concrete for the step in connection

with a municipal sidewalk improvement project pursuant to the Americans with

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Disabilities Act, 42 U.S.C. §§ 12101-12213, managed by the Town of Harrison

("Harrison" or "the Town").

Plaintiff alleged the step constituted a dangerous condition because it was

uniform in color, unmarked, and lacked warning indicators, such as painted

edges, signage, or cones, to alert pedestrians to an unfamiliar change in

elevation.

In February 2021, plaintiff filed suit alleging negligence against Fulger's,

Praj, Cifelli, and Harrison. Harrison settled with plaintiff before trial.

Trial with the remaining defendants began on March 13, 2024. Testimony

established the entryway to Fulger's store was previously an eight-inch step

down to the sidewalk. Cifelli was awarded a contract from Harrison and

provided with the blueprints of the intended improvements from the municipal

engineer, Rocco Russomano. As construction progressed, a grading issue

developed and Russomano verbally instructed Cifelli to construct a modified

step with a maximum rise of seven inches instead of eight. Cifelli completed

construction of the step as revised, which was inspected and approved by

Russomano. Testimony further established that neither Fulger's nor Praj

requested or paid for the construction of the step and had no decision -making

authority regarding it. On completion, all indications delineating the work area,

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such as cones, caution tape, and other barricades, were removed the evening

before plaintiff's fall.

Plaintiff's liability expert, Wayne Nolte, P.E., Ph.D., opined the existence

of the unmarked step constituted a hazardous condition. He maintained that

Harrison, through Russomano, "either knew or should have known that [the]

step without [a] barricade, or without a bright colored warning on its edge,

created a hazardous condition." Notwithstanding this position, Dr. Nolte

acknowledged the step had no structural defects, did not violate the Uniform

Construction Code, and that the applicable code did not require it to be painted,

edged, or marked with warnings. Dr. Nolte further acknowledged that once

Cifelli completed its work and removed the safety barriers, it no longer owed a

duty to warn the public.

As for the defense, Cifelli called Michael Cronin and Fulger's and Praj

called Walter Wysowaty, both of whom are liability experts. Both experts

opined there was no legal or code-based requirement under either state or

municipal law that mandated painting, handrails, or additional visual safety

markers on the step. Cronin elaborated that Harrison had acted as both the

design professional and responsible party, while Cifelli functioned as the

contractor and performed work strictly under the Town's direction. In such a

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circumstance, contractors such as Cifelli are not tasked with independently

assessing the safety or design of construction plans provided by a licensed

engineer. In all, Cronin's testimony reinforced the defense position that at stake

was not a construction defect, but rather a design issue that did not implicate

negligence and consequent liability.

On March 21, at the conclusion of plaintiff's case-in-chief, Fulger's and

Praj moved for a directed verdict of dismissal. They argued that because

plaintiff's expert testified the step complied with construction codes and had

been approved by the Town engineer, neither Fulger's nor Praj could be found

liable as a matter of law. Plaintiff opposed the motion, arguing it was premature

under Rule 4:40-1 because the third defendant, Cifelli, had not yet presented its

case. She contended the Rule permits a directed verdict only after all defendants

have rested. However, the judge ruled the motion timely and granted it.2

Trial resumed as to the remaining defendant, Cifelli. After deliberation,

the jury returned a verdict on March 27 finding Cifelli not negligent by an 8-0

vote and finding Harrison negligent by a 6-2 vote. The jury also found

Harrison's negligence was not a proximate cause of the accident by a 7-1 vote.

2

Although decided on March 21, 2024, the order was dated and entered on

March 27, 2024.

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No damages were awarded.

Plaintiff moved to set aside the verdict and for a new trial, contending the

jury's findings were internally inconsistent. Finding no inconsistency, the trial

judge entered judgment on the jury's verdict on April 12 and on May 13 denied

plaintiff's motion for a new trial. This appeal followed.

II.

The three orders entered during trial are all subject to de novo appellate

review. Smith v. Millville Rescue Squad, 225 N.J. 373, 397 (2016). "[I]f,

accepting as true all the evidence which supports the position of the party

defending against the motion and according him the benefit of all inferences

which can reasonably and legitimately be deduced therefrom, reasonable minds

could differ, the motion must be denied." Verdicchio v. Ricca, 179 N.J. 1, 30

(2004) (alteration in original) (quoting Est. of Roach v. TRW, Inc., 164 N.J. 598,

612 (2000)).

Further, "[t]he standard of review on appeal from decisions on motions

for a new trial is the same as that governing the trial judge—whether there was

a miscarriage of justice under the law." Hayes v. Delamotte, 231 N.J. 373, 386

(2018) (first quoting Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506,

522 (2011); then citing R. 2:10-1). "[A] 'miscarriage of justice' can arise when

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there is a 'manifest lack of inherently credible evidence to support the finding,'

when there has been an 'obvious overlooking or under-valuation of crucial

evidence,' or when the case culminates in 'a clearly unjust result.'" Ibid. (quoting

Risko, 206 N.J. at 521-22).

Plaintiff argues the directed verdict in favor of Fulger's and Praj was both

procedurally improper under Rule 4:40-1 and unsupported by the record. She

claims the evidence presented, including expert testimony and photographs, was

sufficient for a reasonable jury to conclude Fulger's and Praj had knowledge of

the hazardous condition and failed to warn. Moreover, she argues the trial court

erred in denying her motion for a new trial, given the jury's findings that

Harrison was negligent but its negligence was not a proximate cause of her

injury, while Cifelli was found not negligent. She maintains those findings were

an inherently logically inconsistent outcome, reflecting either jury confusion or

legal error mandating a new trial.

Directed Verdicts in Favor of Fulger's and Praj

Rule 4:40-1 allows a party to make a motion for judgment "either at the

close of all the evidence or at the close of the evidence offered by an opponent."

Plaintiff challenges the trial court's ruling, contending the motion was

made before codefendant Cifelli had rested and before the close of all evidence,

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rendering it premature. The judge found the motion "was made at the right time"

because it was made "after the codefendant's [Cifelli's] evidence was presented

and they closed their case as far as I remember it on the record."

Plaintiff alleges the judge's recollection was errant. She submits

"Fulger[']s and Praj moved for judgment at the close of their own case-in-chief

and not after Cifelli rested." In fact, the judge ruled on the directed verdict

motion before Cifelli rested. Plaintiff contends the timing of the judge's decision

violated her right to rely on "any evidence that would have been presented by

Cifelli."

Fulger's and Praj jointly argue their motion was not untimely because it

was filed at the close of plaintiff's case and after presentation of their case-in-

chief. They contend no evidence relevant to their alleged negligence remained

to be introduced, as codefendant Cifelli did not offer testimony implicating

them.

To that end, defendants highlight that neither Cronin nor Dr. Nolte offered

opinions adverse to Fulger's and Praj. Therefore, defendants argue the judge's

ruling was substantively correct. Because no prejudice resulted from the

sequence of motion filing, they argue reversal is unwarranted.

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We are persuaded by defendants' arguments. Our review of the record

supports the conclusion that Cifelli's expert, Cronin, offered no opinion on the

negligence of Fulger's or Praj. No other Cifelli witness attributed liability to

them. Moreover, plaintiff's own expert, Dr. Nolte, offered no opinion regarding

any negligence by Fulger's or Praj. Accordingly, there is no basis to conclude

that any evidence presented after the motion could have altered the trial court 's

ruling, even if the motion was facially premature. In this context, we are mindful

that courts will not reverse based on technical errors absent a showing of actual

prejudice. See R. 2:10-2 ("Any error or omission shall be disregarded by the

appellate court unless it is of such a nature as to have been clearly capable of

producing an unjust result . . . ."). Because we discern no unjust result, we

conclude the trial court's exercise of discretion in hearing and granting the

motion did not constitute reversible error.

Purported Inconsistency in the Jury's Verdict

A jury's verdict should not be set aside unless it so plainly misses or

misconstrues the legal elements at issue that a miscarriage of justice results.

Baxter v. Fairmont Food Co., 74 N.J. 588, 598-99 (1977); Dolson v. Anastasia,

55 N.J. 2, 6-7 (1969); Law v. Newark Bd. of Educ., 175 N.J. Super. 26, 37 (App.

Div. 1980).

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Plaintiff argues the verdict should be set aside because it is inconsistent

and reflects confusion in that the jury found Harrison negligent but determined

its negligence was not a proximate cause of plaintiff's injuries. Plaintiff

contends that, in the absence of an intervening cause, a finding of negligence

necessarily implies proximate cause. Because no intervening cause was

presented at trial, she maintains a verdict finding negligence but not proximate

cause is irreconcilable and requires reversal.

Plaintiff further asserts the trial court improperly speculated the jury

found plaintiff wholly at fault, noting the verdict sheet contains no allocation of

comparative fault to plaintiff. Because no percentage of fault was assigned to

her, plaintiff argues that attributing the accident entirely to her conduct is

conjectural and insufficient to cure the alleged inconsistency.

Cifelli responds that the verdict is neither legally inconsistent nor

indicative of confusion. The jury found Cifelli not negligent and Harrison

settled before trial. Therefore, any alleged inconsistency concerning Harrison

is immaterial to Cifelli.

Cifelli further argues negligence and proximate cause are distinct

elements of a tort claim, and a finding of the former does not per se establish the

latter. Here, the jury awarded no damages, assigned no fault to plaintiff, and

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exonerated the only remaining defendant. Viewed as a whole, Cifelli maintains,

the verdict supports the conclusion that the jury may have found Harrison 's

conduct imperfect, but not a substantial factor in causing plaintiff 's fall.

Here, the record contains evidence that plaintiff failed to observe the step,

the work complied with the Town engineer's instructions, and no expert

testimony attributed fault to Cifelli or directly implicated Harrison in

supervisory failures. The trial judge found as much:

I am not reading this verdict to be inconsistent for this

reason. I don't think it is unreasonable or conjecture to

think that they said Harrison might have done

something wrong, but it was all the plaintiff's fault

. . . . Plus[,] the other testimony at least created a

genuine issue of material fact, enough for a jury to

rationally find that no matter, if it was painted yellow,

if it was painted purple, if anything, she was looking to

the left up the street, not down at the sidewalk, because

she said that. And then stumbled going down the step,

a split second later after she left that door. Just look at

the video. That is enough factual evidence to support a

finding for the jury to say we don't have to get to

proximate cause for her. We don't have to get to

comparative negligence. And I think . . . it's not

inconsistent or [ir]rational or speculation to believe that

that would explain how they found Harrison negligent

and no proximate cause. That also obviates the need

for me to determine whether Cifelli was also negligent

because of what Harrison did. Because if the jury found

that Harrison was negligent for the same reasons that

the plaintiff wants to blame Cifelli to be negligent, that

even if they had found Cifelli negligent and Harrison

negligent, under my reading of the jury verdict form

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they still would have found no proximate cause as to

both defendants because they would have blamed it all

on the plaintiff.

In light of the absence of a damages award and the jury's verdict in favor

of Cifelli, it was reasonable for the judge to conclude the jury believed plaintiff's

fall resulted from her own inattention rather than a dangerous condition.

Motion for New Trial

Plaintiff contends the verdict is inconsistent because any negligence

attributed to Harrison could arise only from its vicarious liability for Cifelli's

work. Harrison performed no construction itself and acted solely through its

contractor, Cifelli. According to plaintiff, any negligence finding against

Harrison must derive from Cifelli's conduct, either through vicarious liability

under N.J.S.A. 59:2-2 or under N.J.S.A. 59:4-2, based on Cifelli's alleged

creation of a dangerous condition.

Plaintiff rejects Cifelli's contention that it merely followed Harrison's

plans, citing trial testimony that the step was not included in the original

blueprint but resulted from a verbal field change. Plaintiff further argues Cifelli

improperly invoked plan-or-design immunity, which was neither pleaded nor

supported by evidence of preapproved plans. In plaintiff's view, any design

defect was attributable to Cifelli's execution of the work, rendering Harrison's

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liability inseparable from Cifelli's. Because the jury found Harrison negligent,

plaintiff asserts it must have found a dangerous condition existed, and

considering Cifelli constructed the step, the verdict absolving Cifelli, while

imposing liability on Harrison, is reversible error.

We disagree. The determinative question here is whether a verdict finding

a municipality negligent while exonerating its contractor is necessarily

inconsistent. Such a verdict may be inconsistent when the municipality's

liability is based solely on the contractor's conduct. See Bechefsky v. Newark,

59 N.J. Super. 487, 493 (App. Div. 1960). However, a municipality may also

be directly liable for its own independent negligence, including negligent

planning, design, or supervision. See Posey v. Bordentown Sewerage Auth.,

171 N.J. 172, 190 (2002); Weiss v. N.J. Transit, 128 N.J. 376, 382 (1992).

Where a municipality fails to act reasonably in design or oversight, a jury may

assign liability to the municipality alone, even if the contractor faithfully

followed instructions.

The trial record shows the step was designed and approved by Harrison's

engineer and that Cifelli exercised no independent discretion in carrying out the

work. Consistent with N.J.A.C. 5:23-2.21, the engineer is responsible for code-

compliant design, the owner for selecting a contractor, and the contractor for

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executing the approved plans. If the design omitted necessary safety features,

the jury could reasonably find Harrison breached its duty of care without also

finding Cifelli negligent. Thus, the evidence supports the jury's conclusion, as

surmised by the trial judge, that Harrison was negligent in its independent design

role while Cifelli was not negligent in executing that design.

III.

In sum, the court's order granting defendants' motion for a directed verdict

was not reversible error. The court did not err in entering judgment for

defendants as the record supports the jury's verdict and was not internally

inconsistent. The court also properly denied plaintiff's motion for a new trial

because the verdict reflected a rational evaluation of the evidence and does not

demonstrate mistake, confusion, or injustice.

Affirmed.

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