By Matthew V. Villani 

“Before recovery may be had, a duty must exist in law, and a failure in that duty must be proved as a fact.” Mergel v. Colgate-Palmolive-Peet Co., 41 N.J. Super.372, 379 (App. Div. 1956). There can be no recovery in a negligence action if the actor violated no duty owed to the injured party. Karuth v. Geller, 54 N.J. Super.442, 453 (App. Div. 1959). Furthermore, “negligence is tested by whether the reasonable, prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others.” Rappaport v. Nichols, 31 N.J. 188, 201 (1959).Therefore, the standard of care must be that of “a reasonable person of ordinary prudence” under the same or similar circumstances.” Butler v. Acme Markets, Inc., 177 N.J. Super.279, 286 (1981). 

Foreseeability requires the court to look at the “totality of the circumstances,” and deals with the knowledge, either actual or imparted, on the part of the defendants of the risk of injury to the plaintiff. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507 (1997). Foreseeability is the “ability to foresee injury to a potential plaintiff, and is crucial to determining whether imposition of a duty on an alleged tortfeasor should be imposed.” Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 572 (1996).

The existence of a duty and its extent are ordinarily dependent on the facts of each case. Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). In addition, foreseeability of the harm at issue is a significant consideration in determining whether a defendant owed a duty of reasonable care. Carvalho, 143 N.J. at 572. The “ability to foresee injury to a potential plaintiff does not, in itself, establish existence of a duty, but it is a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate.” Id. at 572-573 (quoting Carter Lincoln-Mercury, Inc. v. Emar Group, Inc., 135 N.J. 182, 194 (1994).

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