SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5193-16T3

JONATHAN LIBOCK, 

Plaintiff-Respondent,

v. 

JOHN FOTE,

Defendant-Appellant. 

__________________________________

Argued September 26, 2018 – Decided October 9, 2018

Before Judges Nugent and Mawla.

On appeal from Superior Court of New Jersey, Law 

Division, Burlington County, Docket No. SC-0968-17.

George B. Keahey argued the cause for appellant.

Jonathan Libock, respondent, argued the cause pro se. 

PER CURIAM

Defendant John Fote appeals from a July 26, 2017 default judgment for 

$2,995 plus court costs, entered in favor of plaintiff Jonathan Libock. We 

reverse.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-5193-16T3

The following facts are taken from the record. On May 29, 2017, plaintiff 

was working as an Uber driver in Long Beach Island. At four o'clock in the 

morning, plaintiff had dropped off a fare on Ocean Boulevard when a severe

wind storm caused a patio umbrella to fly from defendant's property into

plaintiff's car. Plaintiff was the only witness to the incident. The parties did not 

dispute either that defendant was not present on the day of the incident or that

defendant's property was occupied by summer renters at the time. 

Defendant did not appear for trial. However, his attorney appeared on his 

behalf, and stipulated defendant was the owner of the property and the umbrella 

which struck plaintiff's vehicle. Counsel also stipulated to plaintiff's damages. 

Beyond the stipulations, defendant's counsel offered summation at the 

conclusion of the trial. No other witnesses testified. In summation, counsel 

argued defendant could not be held strictly liable, plaintiff had failed to establish 

any negligence on defendant's part, and the incident was an act of God. 

Following summations, the trial judge recessed for four minutes to 

consider the matter. She then returned, and for the first time announced 

judgment would be entered "by way of default." She explained she was entering 

default because defendant failed to appear and "therefore the plaintiff could not 
3

A-5193-16T3

have an opportunity to question the defendant at the time of trial with regard to 

how this umbrella was secured." 

After defendant filed his notice of appeal, the trial judge filed a letter 

amplifying her findings pursuant to Rule 2:5-1(b). The judge stated defendant's 

failure to appear for trial "weighed heavily against [his] credibility." The judge 

concluded even if defendant had appeared "any testimony would have confirmed 

plaintiff's argument that defendant was negligent in ensuring that the subject 

umbrella was properly secured at defendant's property, thereby causing 

plaintiff's damages." 

The trial judge concluded she could enter default judgment against 

defendant because he had failed to appear for trial as required by Rule 6:2-1, 

and present a defense. The judge acknowledged counsel had appeared for 

defendant, but concluded he had not asserted a defense. The judge found 

counsel's argument plaintiff's claim was based on strict liability was 

"disingenuous" because plaintiff was unable to question defendant. 

According to the judge, regardless of the entry of default, there was 

enough evidence to find defendant liable. The judge found that based on 

plaintiff's testimony the umbrella was open, she could conclude defendant had 

not "properly strapped (sic) or secured [the umbrella] to withstand the subject 
4

A-5193-16T3

storm." The judge found defendant's stipulation he owned the property and the 

umbrella allowed her to conclude "defendant was negligent in failing to ensure 

that the umbrella was properly secured at the property; thus, resulting in 

plaintiff's damages." 

We defer to the trial court's factual findings if "supported by adequate, 

substantial, and credible evidence in the record." D.A. v. R.C., 438 N.J. Super. 

431, 451 (App. Div. 2014) (citation omitted). We owe no deference, however, 

to rulings not based on witness testimony or credibility findings. Yueh v. Yueh, 

329 N.J. Super. 447, 461 (App. Div. 2000). Our review of questions of law is, 

of course, de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan 

Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, defendant argues the trial judge erred by entering default 

judgment against him where his attorney had appeared for the trial on 

defendant's behalf. Defendant argues the trial judge held him strictly liable for 

causing the damage to plaintiff's car even though defendant's property was 

rented at the time and defendant was not in possession. We agree.

A trial judge may sanction a party for failing to appear for trial by entering 

default judgment. Rule 1:2-4(a) states:

[I]f without just excuse or because of failure to give 

reasonable attention to the matter, no appearance is made 
5

A-5193-16T3

on behalf of a party . . . on the day of trial, . . . the court 

may order any one or more of the following: . . . (c) . . . 

the striking of the answer and the entry of judgment by

default[.]

Rule 6:2-1 governs the form of summons in small claims matter. The 

annotation to the Rule states: "the summons form requires, in lieu of defendant's 

filing an answer, an appearance in court at a specified time and place orally to 

state a defense together with the advisory that failure to appear may result in 

entry of a default judgment granting the plaintiff the requested relief." Pressler 

& Verniero, Current N.J. Court Rules, cmt. on R. 6:2-1, (2018).

Here, however, there was no basis for the trial judge to enter default, let 

alone without notice, and after having considered the testimony and summation. 

Defendant did not fail to appear because his counsel had appeared on his behalf. 

Moreover, the judge's view default judgment should enter because 

plaintiff was deprived of the ability to cross-examine defendant is unsupported 

by the facts. Indeed, there was no dispute defendant was not present, and 

summer renters were occupying the property at the time of the incident. 

Therefore, we fail to see how defendant's absence deprived plaintiff his day in 

court. 

To sustain a cause of action for negligence, a plaintiff must prove four 

elements: (1) a duty of care, (2) breach of that duty, (3) proximate cause, and (4) 
6

A-5193-16T3

actual damages. Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008). The burden is on 

the plaintiff to establish these elements "by some competent proof." Davis v. 

Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citing Overby v. Union 

Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953)). 

"[T]he question whether there is a 'duty' merely begs the more fundamental 

question whether the plaintiff's interests are entitled to legal protection against the 

defendant's conduct." J.S. v. R.T.H., 155 N.J. 330, 338 (1998) (alteration in original) 

(quoting Weinberg v. Dinger, 106 N.J. 469, 481 (1987)). "[I]mplicated in this 

analysis is an assessment of the defendant's 'responsibility for conditions creating 

the risk of harm' and an analysis of whether the defendant had sufficient control, 

opportunity, and ability to have avoided the risk of harm." Id. at 338-39 (quoting 

Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 574 (1996); citing Kuzmicz v. 

Ivy Hill Park Apts., Inc., 147 N.J. 510, 515 (1997)). 

The scope of a duty is determined under "the totality of the 

circumstances," and must be "reasonable" under those 

circumstances. Factors to be taken into consideration 

include the risk of harm involved and the practicality of 

preventing it. When the defendant's actions are "relatively 

easily corrected" and the harm sought to be prevented is 

"serious," it is fair to impose a duty. In the final analysis, 

the "reasonableness of action" that constitutes such a duty 

is "an essentially objective determination to be made on 

the basis of the material facts" of each case.

[Id. at 339-40 (citations omitted).]
7

A-5193-16T3

Furthermore,

[W]hen the risk of harm is that posed by third persons, a 

plaintiff may be required to prove that defendant was in a 

position to "know or have reason to know, from past 

experience, that there [was] a likelihood of conduct on the 

part of [a] third person[]" that was "likely to endanger the 

safety" of another.

[Id. at 338 (alterations in original) (quoting Clohesy v. 

Food Circus Supermarkets, Inc., 149 N.J. 496, 507

(1997)).]

"Even as to foreseeable risks, however, it has been cautioned that 'not all foreseeable 

risks give rise to duties.'" Ivins v. Town Tavern, 335 N.J. Super. 188, 195 (App. 

Div. 2000) (quoting Williamson v. Waldman, 150 N.J. 232, 251 (1997)).

Determining the existence of "a duty 'involves 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 the public interest in the 

proposed solution.'" Alloway v. Bradlees, Inc., 157 N.J. 221, 230 (1999) (quoting 

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). "The analysis is both 

very fact-specific and principled; it must lead to solutions that properly and fairly 

resolve the specific case and generate intelligible and sensible rules to govern future 

conduct." Hopkins, 132 N.J. at 439.
8

A-5193-16T3

The record lacks sufficient findings by the trial judge as to whether 

plaintiff had proven defendant's duty, breach of duty, or proximate causation. 

Plaintiff's testimony and the stipulations did not constitute substantial credible 

evidence to support the judge's findings defendant had negligently secured the 

umbrella. Moreover, the judge's belief she could assess defendant's credibility 

without his testimony is without any basis in law. Under the facts adduced by 

plaintiff, there was no basis to conclude defendant was negligent.

Reversed.