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This blog, written by Litigation Department Shareholder and Hiring Shareholder Charles F. Holmgren, Esq., focuses on liability litigation cases decided in New Jersey courts.

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Appellate Division Upholds Trial Court’s Use of an Evidentiary Hearing to Dismiss Late Tort Claims Notice on Public Entity

Plaintiff Thomas Twomey (Twomey) slipped and fell on the Morristown New Jersey Transit (NJT) train platform in late October, 2021, but did not put NJT on notice of his claim or file suit until two years later in October, 2023. Not having received a timely Tort Claims Act (TCA) notice, NJT, a public entity, filed a motion to dismiss for failure to state a claim. In opposition, Twomey’s attorney argued he had filed two separate TCA notices, relying only on certifications from himself and his paralegal in support of that position. In ruling on NTJ’s motion to dismiss, the trial court held an evidentiary hearing in which Twomey’s paralegal and attorney testified about their efforts to properly put NJT on notice of Twomey’s TCA claim. The issue in Twomey v. N.J. Transit Corp., 2026 N.J. Super. Unpub. LEXIS 1362 (App. Div. June 25, 2026), was whether the trial court properly used an evidentiary hearing to resolve credibility disputes in a motion for summary judgment on issues of a late TCA notice.

The TCA requires all claimants to serve a TCA notice of claim within 90 days of the accrual of their claim, typically the date the injury occurred. If the claimant fails to serve a notice in that initial 90-day window, they have a year after the date of accrual to file a motion for leave to file a late TCA claim by showing that they could not timely file a TCA notice due to extraordinary circumstances. Each of these are strictly read. However, if they have not filed a TCA notice within one year of the date of accrual of their claim, they are barred from filing any claim against the public entity.

The trial court scheduled an evidentiary hearing to determine whether Twomey had served a TCA notice on time; also, because it would need to review facts, the trial court converted NJT’s motion to dismiss into a motion for summary judgment. At the hearing, Twomey’s paralegal testified that she mailed an initial TCA notice within the 90-day period via regular and certified mail, but recalled no further details. She claimed she received a certified mail green card confirming NJT’s receipt, but discarded it alongside other records when she left the firm. Further, she recalled sending a second notice (after the 90-day window expired and to the State rather than the NJT), but she could only testify that she followed her standard routine and the attorney’s instructions. Twomey’s attorney similarly testified that he did what he usually did for TCA notices and could only assume the paralegal “adhered to her custom and habit.” In response, an NJT employee testified that claim numbers are assigned upon receiving a notice and the only claim number associated with Twomey’s began with “23,” signaling it was opened only after receiving the formal complaint.

Reviewing the “totality of the circumstances,” the trial court granted NJT’s motion for summary judgment. The court found Twomey’s attorney and paralegal were not credible, as neither had any independent recollection of serving the notice and could only establish a vague reliance on following “normal procedure.” NJT, on the other hand, following protocol, created a claim upon receipt of the only notice from Twomey. The court found it highly unlikely that, if Twomey had sent two letters with timely notice, both would have been missed by NJT. The court also dismissed Twomey’s argument for substantial compliance and equitable estoppel, finding that the TCA’s mandate “requiring” a TCA notice did allow any room to allow those equitable remedies. Twomey appealed.

Twomey argued on appeal that the trial court was wrong in granting summary judgment when issues of fact as to the mailing of the TCA notice existed and in its reliance on “credibility findings” in making its summary judgment determination. The Appellate Division disagreed on both counts. For one, if there is any factual dispute with respect to the mailing of a TCA notice, New Jersey law requires the court to engage in an evidentiary hearing and hear evidence to resolve the issue. Further, on a fresh review of the evidence, the Appellate Division found the court made the proper determination that, because Twomey’s claim accrued in late October, 2021, he had until late January, 2022 to file his TCA notice. His failure to do so, and his failure to ask the court for leave to file his TCA notice thereafter with a showing of extraordinary circumstances at any time, bar his claim in its entirety.

This decision shows the unique divergence from a usual motion for summary judgment analysis on the distinct issue of TCA notices. Typically, when there is a genuine issue of material fact, summary judgment must be determined for the non-moving party. To decide the issue of a timely TCA notice, however, a trial court may take additional evidence, including testimony and a weighing of witnesses’ credibility, to come to a resolution of that factual issue. It also establishes the rigidity of a proper TCA notice – as to the timeliness and to the proper party on which it is served. The failure to do either correctly can be fatal to a claim.

Employee’s Mid-Shift Pizza Run Was Outside of the Scope of His Employment to Hold Employer Vicariously Liable for His Car Accident

Defendant Jarrod Cooney (Cooney), a shift manager at a 7-Eleven in Bellmawr, left the store mid-shift in his own car to pick up a pizza for himself and a coworker. On his way back to the store, he caused a car accident, injuring Plaintiff Alex Seccia. 7-Eleven’s posted rules prohibited employees from leaving the store during their shift and paid them for “a straight [eight] hours.” Employees, including Cooney, remained clocked in for eight hours, including their thirty-minute break, and ate their lunch in the store. Cooney claimed he had his boss’ permission; the boss denied it. Seccia sued Cooney and 7-Eleven, alleging Cooney was in the scope of his employment for which 7-Eleven was vicariously liable. The issue in Seccia v. Cooney, 2026 N.J. Super. Unpub. LEXIS 1663 (App. Div. July 22, 2026) was whether Cooney’s pizza run was within the scope of his employment with 7-Eleven.

After discovery, Seccia settled with Cooney, but continued to pursue his claim against 7-Eleven. However, 7-Eleven moved for summary judgment, arguing that by leaving the store in direct violation of store rules, he was not acting within the scope of his employment and for which 7-Eleven could not be vicariously liable. The trial court agreed, and dismissed Seccia’s complaint against 7-Eleven. Seccia appealed.

Vicarious liability, also known as the doctrine of respondeat superior, holds an employer liable for its employee’s negligence based on the idea that an employee is the agent of and acts on behalf of their employer. It follows that an employer can be found liable for the negligence of its employee if, at the time of the accident, the employee was acting within the scope of their employment. The key focus of the respondeat superior standard is on the relationship between the employee’s job responsibilities and the alleged negligent conduct. Thus, an employer will not be liable for the employee’s conduct that occurs beyond the scope of the employment.

Under New Jersey law, an employee who is “going to” or “coming from” their job is not considered to be acting within the scope of their employment. However, in contrast, under the “dual purpose” rule, an employer can be liable where the employee’s personal affairs are also in furtherance of the employer’s business interests. The determining factor is whether the employer has control over the employee’s actions, meaning an employee’s travels to or from the workplace, regardless of whether their coming or going is in the beginning, middle, or end of the work day, the critical factor is whether the employer controls their travel. Such exceptions that indicate the type of control for which the courts will find an employer liable for its employee’s conduct is if the employee is running a special errand for the employer or when the employer requires the employee to use their own vehicle for such an errand.

On appeal, Seccia argued that the trial court misapplied the “going to” and “coming from” rule, for which Cooney was acting in the scope of his employment. Seccia argued that this only applied to employees commuting to and from the workplace both before and after the day’s work, but any mid-shift travel during the workday is distinct and for which the employer can be responsible. Further, because the summary judgment standard assumes issues of fact in the non-moving party’s favor, he had his boss’ permission to go get pizza and, as a result, 7-Eleven must be bound to his negligent conduct. The Appellate Division disagreed. It found that Cooney’s actions, even though done mid-shift, were outside of the scope of his employment because driving to pick up a pizza was “different in kind” from his authorized role as a 7-Eleven manager. Nor did his actions serve a “dual purpose” of both his and 7-Eleven’s interests. Finally, nothing in Cooney’s leaving 7-Eleven to get a pizza land outside of the “going to” and “coming from” rule. Cooney’s boss, though he may have authorized the trip, did not send Cooney to get the pizza, nor did he require Cooney use his own vehicle, thereby lacking any control over Cooney’s excursion or make it a special errand or a task done for a palpable benefit of the employer but Cooney’s own benefit in order for 7-Eleven to be vicariously liable for Seccia’s injuries.

The Court’s holding emphasizes that the “going to” and “coming from” rule applies wholly independent of when the travel occurs during the workday, placing the focus on the interaction between the employer and its control of the employee’s conduct and whether the employer yields some tangible benefit from the employee’s travel.

Appellate Division Reinforces Status Quo in Severing and Staying Discovery in UM/UIM Cases in Light of New Insurance Bad Faith Statute

Following a motor vehicle accident in which she was injured by an underinsured driver, Plaintiff Lindsay Cirelli (Plaintiff) submitted a claim for underinsured motorists benefits (UIM) to her insurer GEICO for her injuries. Due to delays in GEICO providing her the UIM coverage she claimed, she sued GEICO for failing to provide her with UIM coverage as well as a claim for common law bad faith and New Jersey’s newly enacted Insurance Fair Conduct Act (IFCA). As is commonly done by insurance company defendants in UIM/bad faith cases, GEICO moved to sever and stay any bad faith-related discovery until after the UIM matter is resolved. The issue in the published decision, Tenenbaum v. Allstate, 2026 N.J. Super.  LEXIS 49 (April 29, 2026) (both Tenenbaum and Allstate were companion parties who resolved their issues before this decision) was whether the trial court abused its discretion by refusing to sever and stay discovery on common law and IFCA bad faith claims before resolving the underlying UIM claim.

A UIM claim is when the value of an insured’s injuries from a motor vehicle accident exceed the liability limits of the driver who caused the accident, allowing the insured to pursue a claim against his insurer for UIM benefits. Under New Jersey common law, any party to a contract has the duty to act in good faith, this includes insurers when handling UIM insurance claims. A UIM cause of action arises, as here, in the event the insurer allegedly delays or denies payment on a valid claim. A common law bad faith claim flows from and is derivative of the UIM claim, arising in the event the insurer’s delay or denial was purportedly in bad faith. From this background, the New Jersey legislature recently passed the IFCA which provided a first-party, private cause of action for insureds to sue their insurers for an unreasonable denial or delay for their legitimate claims.

UIM/bad faith lawsuits are commonly brought together, and under those circumstances, New Jersey courts would traditionally sever (or “bifurcate”) the discovery to be conducted on the bad faith claim from discovery in the underlying UIM claim and, after determining the UIM claim, engage in the bad faith discovery. The general reasoning for this is that the insurer who would have to produce its claim file, including privileged material, in the bad faith litigation, which would prejudice its ability to defend the underlying UIM claim. Further, doing so promotes judicial economy and efficiency to hold off on timely, expensive, and wasteful bad faith discovery that may be mooted if the insurer succeeds in the plaintiff’s bad faith claim. Ultimately, because bad faith directly flowed from the right to UIM coverage, courts required an insured must show entitlement to coverage before pursuing a bad faith claim. As a result, courts consistently severed and stayed discovery in UIM/bad faith matters.

Under this framework, at the outset of her suit, Plaintiff demanded discovery from GEICO arising from her UIM claim and both her common law bad faith and IFCA claims. GEICO moved to sever and stay the UIM discovery from the bad faith discovery. Plaintiff opposed, arguing that the first-party IFCA claim trumped the prior reasons for severing and staying common law bad faith claims, the court found that the sever and stay practice did not apply to a first-party IFCA claim and allowed Plaintiff to pursue discovery on “any issue relevant to [the] entire complaint.” With this decision, Plaintiff attempted to depose GEICO’s CEO and two of its adjusters, obtain the entire claims file, and their “Reserves/Profit Loss Ratios” as to how long a case is held versus payment of the claim – all substantial demands. After motion practice, GEICO appealed, arguing that the simultaneous discovery on UIM/IFCA bad faith ran contrary to New Jersey practices and would allow any plaintiff to assert an IFCA claim in an effort to circumvent the traditional sever/stay practice.

The Appellate Division rejected the categorical conclusion that simple existence of an IFCA claim should bar the practice of severing and staying a bad faith claim and its discovery. Such a holding fails to address the underlying concerns of judicial economy, efficiency, and prejudice the sever/stay mechanism; it would allow bad faith discovery to continue without an insured first showing any entitlement to UIM coverage. Such a condition would permit plaintiffs to bypass a stay simply by alleging an IFCA violation and serve as an “open invitation” for plaintiffs to routinely tack bad faith claims onto every standard UIM solely to fish through insurer files. Moreover, discovery is already quite broad; to allow the deposition of a CEO and the discovery of sensitive reserve data underscore the burdens and inevitable and significant discovery disputes that would arise from permitting such a practice. The Appellate Division thus reversed the trial court and held that when both common law and IFCA bad faith claims accompanied a UIM claim, the proper course of action was to sever and stay bad faith discovery pending the outcome of the UIM matter, and remanded the matter back to the trial court.

The critical elements of the court’s determination was in the policies it propounded: judicial economy, efficiency, and avoiding protracted, expensive, and potentially unnecessary, discovery practice. It found that, because UIM matters typically resolve to moot bad faith discovery, requiring the right to UIM coverage before permitting such discovery reinforces the sever/stay procedure. It also set forth the precedent that, contrary to the trial court’s position, asserting an IFCA claim will not bypass the practice of severing and staying any bad faith claims.   

Bicyclists Covered by Auto Insurance with Limited Tort Must Establish a Permanent Injury to Sue for Pain and Suffering

On June 5, 2022, Plaintiff James Basilone (Basilone) was riding a bicycle when he was struck by the car driven by Defendant Krzysztof Kopec and then struck by a second vehicle driven by Defendant Alexander Sanchez. Basilone sued both defendants for his personal injuries seeking non-economic damages (i.e. pain and suffering). At the time of the accident, Basilone was insured with a New Jersey automobile insurance policy in which he had chosen the Limitation on Lawsuit option (a/k/a “limited tort”). The issue in Basilone v. Kopec, 2026 N.J. Super. Unpub. LEXIS 616 (Mar. 26, 2026) was whether limited tort applied to a bicyclist.

Under New Jersey’s Automobile Insurance Cost Reduction Act (AICRA), all New Jersey drivers must choose between two tort options, full tort and limited tort, and must maintain personal injury protection (PIP) insurance. By selecting the limited tort option, an insured gives up his right to sue for pain and suffering damages caused by an automobile unless he can prove that he sustained one in a list of various injuries; one of which is “a permanent injury.” To prove he had a permanent injury, he must provide the defendant with a physician’s certification showing his injury was permanent by credible, objective medical evidence, such as an MRI. He has, at the latest, 120 days from the day the defendant answers his complaint to provide this certification. Further, the AICRA defines a “pedestrian” as any person who is not occupying, entering into, or alighting from a vehicle propelled by anything other than muscular power.

In the course of discovery, Basilone produced the certification of a physician. However, that certification did not state the accident caused a permanent injury nor did it include credible, medical evidence showing such an injury. Based on this certification, the Defendants filed motions for summary judgment, both arguing that Basilone did not establish he sustained a permanent injury from the accident and, as a result, could not meet AICRA’s limited tort threshold. Basilone’s response was, simply, the limited tort threshold did not apply to him at the time of the accident, because he was riding a bicycle. The trial court granted both motions; Basilone appealed.

Before the Appellate Division, Basilone’s argument expanded. Though conceding he chose the limited tort option, he claimed the inclusion of bicyclists in the AICRA “does not make sense” because bicyclists: do no participate in the auto insurance system; face a greater risk of serious injury than drivers and passengers of vehicles; are the more vulnerable party in a collision with a vehicle; and would be discouraged from bicycling and thereby frustrating New Jersey’s policy for eco-friendly transportation. However, the Court focused on the AICRA statute in a direct, step-by-step analysis. It looked at the statute’s definition of a pedestrian and determined there was no question that a cyclist was a pedestrian for insurance purposes, meaning he was subject to his selection of the limited tort threshold. It follows that, by choosing limited tort, Basilone had to show, by objective medical evidence in a physician’s certification, that he sustained a permanent injury. In agreement with the Trial Court, the Appellate Division found that the certification, which lacked any opinion that Basilone had sustained a permanent injury caused by the accident and had no reference to any objective medical evidence to support such an injury, did not “vault” the limited tort threshold to succeed in a lawsuit for pain and suffering. The Appellate Court affirmed the Trial Court’s dismissal of Basilone’s complaint.

One key takeaway is that a New Jersey auto policy follows a New Jersey insured in all circumstances when the tortfeasor is driving a vehicle and will follow them whether they are walking, running, skateboarding, or riding a bicycle rather than driving or a passenger in a car when the accident occurred. Also, a limited tort plaintiff must provide a sufficient physician’s certification within 120 days. If he does not, or if the certification lacks permanency or the required credible, objective medical evidence, the tortfeasor-defendant should be entitled to summary judgment as a matter of law.  

Municipality Found Immune From Liability for Pedestrian Accident Under Both Tort Claims Act and Landowners’ Liability Act

Plaintiff Svetlana Fakhroutdinov was struck by a car while waiting to cross from the entrance of RiverWalk Pathway, a pedestrian pathway in Foschini Park, owned by the City of Hackensack (“City”). There was no crosswalk at that location (on East Salem Road) to direct pedestrian traffic to and from the Park. She was struck by a car driven by defendant Miguel Bueno, who swerved to avoid hitting another car driven by Allen Farnham, who had stopped to allow her to cross. The issue in Petrocelli v. Bueno, 2026 N.J. Super. Unpub. LEXIS 1204 (App. Div. June 3, 2026) was whether the City had immunity for this accident under either the Tort Claims Act and/or the Landowners’ Liability Act.

Although there was no crosswalk, there were two signs adjacent to the roadway, which stated “DANGER ROAD AHEAD” to warn pedestrians who were leaving the park. Plaintiff was struck by the Bueno vehicle after he lost control of his car, drove off the road, and struck her while she was still standing off the side of the roadway in Foschini Park, waiting to cross the road. She suffered severe injuries due to the impact.

Plaintiff claimed that the location of the accident was in a dangerous condition due to the absence of pedestrian warning signs, adequate pedestrian right of way/crosswalks, and adequate speed limits. She alleged that the City maintained, operated, controlled, inspected, and supervised this roadway and knew of the dangerous condition.

The City filed for a summary judgment, arguing that it had immunity under the Tort Claims Act (“TCA”), N.J.S.A. 59:4-5, which provides immunity for the placement or non-placement of traffic signals, road signals, etc. The City also argued that it had immunity under the TCA because Plaintiff had failed to meet all the requirements to establish a “dangerous condition” under N.J.S.A. 59:4-2. Finally, it argued for immunity under the Landowners’ Liability Act, N.J.S.A 2A:42A-1 et. seq., (“LLA”) which provides immunity for recreational activities due to conditions of parkland. 

The trial court agreed with some of these arguments and granted summary judgment to the City. It found that the City had partial immunity for the lack of signage per N.J.S.A. 59:4-5 but the Plaintiff’s theories of improper location and safe egress were not barred by this statute. 

But, the trial court agreed with the City that Plaintiff had failed to show the existence of a “dangerous condition.” The court found that it was not reasonably foreseeable that a car would swerve off the road to avoid hitting another vehicle so as to strike Plaintiff while standing on the pathway. That scenario did not create a “dangerous condition” of the pathway. Nor, did the “danger” sign establish that the City had constructive notice that some physical attribute of the path was a “dangerous condition.”

Additionally, the trial court agreed with the City that the Landowners’ Liability Act also immunized the City for this accident. The court found that Plaintiff was engaged in a recreational activity at the time of the incident and those enjoying the benefit of the land for recreational purposes were subject to the immunity of the LLA.

This appeal ensued. The Appellate Division considered whether the City should have been granted immunity under both the TCA and/or the LLA.

The Court noted that, for a public entity to be liable under the TCA, the Plaintiff must prove that the condition of the property was in a dangerous condition, defined as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The term refers to the physical condition of the property itself and not the activities on the property.

The Appellate Division agreed with the trial court that the pathway was not a dangerous condition. Rather, Plaintiff was injured due to the dangerous activity of a third party outside the Park. The placement of the pathway at the edge of East Salem Street did not cause her injuries. They were caused by defendant Bueno who was driving negligently on East Salem Street. Thus, the Court found that Plaintiff’s claims were barred under the Tort Claims Act.

The Court also agreed with the trial court that her claims were barred under the Landowners’ Liability Act. Landowners are exempt from liability for accidents on their property when a person is using their property for sports or recreational activities free of charge. For property to qualify for immunity under the Act, a court must consider the “dominant character of the land.” The Park with its playground, baseball fields, pedestrian walkways, free to the public, qualified as protected premises under the LLA.

Here, the Appellate Division agreed that Plaintiff was engaged in “recreational activities” in the Park as she walked through it and enjoyed the Park during a break from her students ice skating there. The Court took “judicial notice” that walking was a form of exercise and that would fit into a common definition of recreation. Hence, the Court also found that the City was immune from liability for Plaintiff’s accident under the Landowners’ Liability Act. The Appellate Division held that the trial court properly granted summary judgment to the City and affirmed the dismissal of the lawsuit as to the City.

Driver Not Liable for Failing to See or Interpret Another Vehicle’s Swerve as Evidence of a Pedestrian in the Roadway

On a dark Sunday night in early September, 2021, Jeffrey Pooner (Defendant) was driving his Dodge pick-up at about the speed limit of 50 mph westbound on U.S. Route 30 in Hamilton. That night traffic was heavier than normal, lighting was poor, and visibility was “quite difficult” on that stretch of road. After passing the intersection of CR 542, he saw a vehicle directly in front of him and traveling in the same direction change lanes, which he found “unusual.” Immediately after seeing the car change lanes, he saw a “silhouette” appear in front of his truck. He jammed on the brakes but was unable to avoid striking Nancy Martinez (Plaintiff), who was walking across the road after work. An eyewitness traveling in the opposite direction at the same time saw a car ahead of him swerve “pretty aggressively,” causing the witness to change lanes. As he did so, he also saw a “silhouette” crossing from his lane into Defendant’s westbound lane of traffic. The witness remarked to his wife, “Oh my God, this person is gonna get hit!” immediately before Defendant’s vehicle struck Plaintiff. Defendant testified he never saw the “swerve.” The issue in Martinez v. Pooner, 2026 N.J. Super. Unpub. LEXIS 1285 (App. Div. June 15, 2026) was whether Defendant, who was operating his vehicle within the speed limit at night, breached his duty of reasonable care by failing to observe and interpret an oncoming vehicle’s aggressive swerve as a warning of a pedestrian hazard in the roadway.

During discovery, Plaintiff retained an expert engineer to provide a reconstruction of the accident. Using accepted formulae, the expert determined the swerve occurred about 9.1 seconds before, and Defendant was about 700 feet away from, the time and location of the accident. He also concluded Plaintiff’s location would have been within Defendant’s sight distance at that spot. The expert’s opinion stated that, “if” Defendant saw the swerve and acknowledged that it indicated a hazard existed ahead, and “if” he had reacted to the swerve by applying the brakes in a normal manner, based on his location and speed at the time he saw the swerve, he would have had enough time to stop prior to the point of impact and avoid the incident. However, the expert had no opinion that Defendant had an obligation to see the swerve or that, if he had seen the swerve, that would have resulted in him seeing the Plaintiff.

Defendant moved to bar the expert report and for summary judgment. Defendant’s primary argument in his motion for summary judgment was that the expert’s opinion failed to support the Plaintiff’s claim of liability. The expert had to, within a reasonable degree of engineering certainty, establish Defendant “should” have seen the swerve or the Plaintiff, not “if.” By stating his opinion as an “if” Defendant saw the swerve or the Plaintiff, the expert based his opinion on “unsupported speculation and unquantified possibilities.” Because Defendant’s undisputed testimony clearly established he did not see the swerve, this fact eliminated Plaintiff’s expert’s ability to argue “if” he saw the swerve. Plaintiff’s position was that Defendant “could” have seen the swerve, and that was sufficient evidence to establish negligence. The trial court disagreed; Defendant won summary judgment and the Plaintiff appealed.

The Appellate Division upheld the court’s ruling The Appellate Division focused on Defendant’s duty of care towards Plaintiff, a pedestrian walking across a state highway, in the dark, at a location without an intersection or crosswalk. Plaintiff based her entire claim on the sole premise that a swerve 700 feet ahead should have alerted a driver that there was a person crossing the busy street on foot. However, at no time could Plaintiff establish sufficient evidence that Defendant could have, would have, or should have seen the swerve. Indeed, the only testimony on that fact came from Defendant himself, who provided uncontroverted evidence he did not see the swerve. Further, the Plaintiff produced no evidence to show that a prudent driver would have made the connection between the swerve and that a person was walking across the road. The Appellate Division found that Plaintiff’s theory, including the expert’s report, lacked any basis in the evidence in the matter and was nothing but simple speculation, necessitating dismissal.

Ongoing Storm Rule Upheld Due to Plaintiff’s Inability to Establish Clear Endpoint to Precipitation

On January 5, 2022, at some point between 11:00 a.m. and noon, plaintiff Tyrone Granum left a friend’s apartment in a multi-unit apartment building in Newark owned by defendant Ecuador Velez. Granum alleged that as he walked down the concrete exterior stairs leading from the building’s front door, he slipped and fell on a patch of ice near the top of the staircase, severely injuring his back. After Granum filed suit against Velez, titled Granum v. Velez, 2026 N.J. Super. Unpub. LEXIS 867 (App. Div. May 1, 2026), Velez produced an expert meteorologist’s report that identified freezing rain and sleet overnight, with some light snow intermittently overnight, with freezing rain continuing that morning, changing to rain from about 9:30 a.m. until shortly after noon. Velez filed a motion for summary judgment to dismiss the complaint, raising the issue of whether New Jersey’s recent “ongoing storm” rule was appropriate when the plaintiff could not establish when the storm had ended.

As the Appellate Division’s opinion points out, the Supreme Court, somewhat controversially, established the “ongoing storm” rule in 2021 in Pareja v. Princeton Int’l Props., 246 N.J. 546 (2021), when it overturned the Appellate Division’s own opinion that struck down the rule on public policy grounds. The rule established by the Supreme Court in Pareja states that a private landowner generally does not have a duty to remove snow or ice from public walkways until a reasonable time after the precipitation has ended. The Court noted two exceptions, one where the defendant’s conduct somehow increases the risk to pedestrians (such as forcing someone to take a longer walk around an area of dangerous ice) or when there was a pre-existing risk on the premises (such as the failure to remove snow or ice from a previous storm). The opinion left the door open for a plaintiff to introduce facts that questioned when the storm ended or whether the accumulation of ice or snow was from a prior storm, both of which may defeat a summary judgment motion.

In opposition to the motion, Granum testified that it had stopped snowing at the time of his fall, but he failed to show a clear endpoint of the rain or snow or that the endpoint occurred within a reasonable time before he fell. Finding that Velez met the standard for the ongoing storm rule to apply, even when the evidence was viewed in a light most favorable to Granum, the trial court granted Velez’s motion for summary judgment, dismissing the matter. Granum appealed.

On appeal, Granum’s argument was that the trial court failed to consider the evidence in a light most favorable to him because he factually disputed the timing of the storm’s end and that the ongoing storm rule should not apply to premises such as Velez’s apartment complex. The Appellate Division disagreed, finding that Granum could not present a genuine issue of material fact to defeat the motion.

Relying on their “obligation to apply” Supreme Court precedent, the Appellate Division found that Granum’s account of the facts was “imprecise and largely uncertain,” noting that he admitted it sleeted the night before and that, when he emerged from the apartment, he testified “it wasn’t snowing,” without explicitly denying whether it was still raining or sleeting, nor could he approximate when the precipitation ended entirely.

Further, Granum attempted to argue that owners of privately owned sidewalks, or stairs, have a heightened duty for the safety of the public with a reference to case law that removes public sidewalk immunity from a homeowner’s association since they own or control the sidewalk. The Appellate Division found this position inapplicable because, here, Velez is not claiming an immunity from liability, but that he does have a duty to remove ice and snow from the stairs and sidewalks, it is just suspended until “a reasonable time after the cessation of precipitation.”

Court Determines Plaintiff’s Evidence of Black Ice “Conjecture” in Dismissing Complaint

In December, 2020, Plaintiff Gwenevere Love (Love) walked out of an Acme in Audubon and sustained a serious knee injury when she stepped off the curb and slipped. She went to the hospital four hours later and told the ER nurses, as seen in the ER records, she had slipped and fell on black ice. She filed suit against the Acme (and others) for failure to maintain their premises. In her deposition she testified she did not see black ice, or any ice or snow, in the area, but the ground was cold when she landed and she surmised she slipped on black ice. Love produced weather reports that suggested the weather warmed up during the day, melting earlier snow, then re-froze, causing black ice. Acme moved for summary judgment, claiming there was no evidence of notice or that her fall was caused by a dangerous condition. After the trial court granted the motion and Love appealed, the Appellate Division in Love v. Acme Mkts., Inc., 2026 N.J. Super. Unpub. LEXIS 1041 (App. Div. May 20, 2026) had to determine whether the trial court applied the proper standard in reviewing evidence and making inferences in Love’s favor when deciding the motion for summary judgment.

Long-standing New Jersey law holds that summary judgment should be granted if the facts in the matter show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. An issue of fact is not a “genuine” issue of fact if, for the purposes of the motion, it has a single, unavoidable resolution. In reviewing a summary judgment motion, the trial court must consider the competent evidence and draw all reasonable inferences from that evidence in a light most favorable to the non-moving party.

Love’s position was that the evidence established there was a genuine issue of material fact “beyond mere conjecture, speculation, surmise, or guess” that black ice on Acme’s property, and their failure to inspect for it, caused her to fall. She argued that the facts from her deposition testimony and statements she made to ER personnel that she fell on ice, and the weather reports met the standard. She also argued that the trial judge did not properly apply the standard in drawing all reasonable inferences in her favor and to stay out of resolving factual disputes.

The Appellate Division upheld the trial court, finding that it correctly ruled on the evidentiary issues and concluded there was no genuine issue of material fact that Acme was entitled to summary judgment. The Court agreed that Love’s statement in the ER records that she slipped on ice, made four hours after she fell, was inadmissible hearsay. While those records would be admissible for her statements of pain, they would not be admissible for something non-treatment related, such as the presence of snow or what caused her fall. Further, they found her deposition testimony that she slipped on ice speculative. She only concluded she slipped on black ice circumstantially (the ground was cold, her foot slipped) and, more importantly, she did not see any snow or ice on the ground in the area she fell or in the parking lot. The Court found that while the non-moving party is entitled to the benefit of all favorable inferences, there’s a difference between a favorable inference and speculation. Her testimony that she slipped on black ice was mere conjecture and not based on competent evidence to present a genuine issue of fact. As for the weather reports, without an expert to interpret the data included in the weather reports to link it directly to a thaw and refreeze, the court was under no obligation to use that evidence to draw an inference in her favor. This evidence only established the mere possibility that ice caused her fall, and this was not enough to resolve the issue in her favor.

Importantly, the Appellate Division was satisfied with the role the trial court took to distinguish between inferences and conjecture, and did not intrude on the fact-finding duties of the jury. The Court held that when a trial court’s ruling depends on certain evidentiary issues, the trial court must decide on the admissibility of that evidence. The Appellate Division here approved of the trial court’s weighing and sifting of evidence (determining the ER record to be hearsay, the deposition testimony inadmissible speculation, and the weather report’s need to be supported by an expert opinion), and its function here appropriately stopped short of interfering in fact-finding responsibility that is the sole domain of the jury.

Court Finds No Liability of Defendant Homeowner for Social Guest’s Fall Down Her Steps

Plaintiff Akhilesh Parasher was visiting his elderly mother, defendant Maya Etvir Sharma, when he tripped on a three step outdoor staircase leading from her back door. He had been there for Mother’s Day and helped her with some chores and errands. The issue in Parasher v. Sharma, 2026 N.J. Super. Unpub. LEXIS 1076 (App. Div. May 26, 2026), was whether Plaintiff qualified as a business invitee versus a social guest, for which a lesser degree of care would be owed by the landowner.

Sharma was an elderly woman with dementia and is now deceased. She had lived in this home for over 50 years. After Plaintiff’s father died, he lived in the house for two years. In the year before the accident, Plaintiff visited his mother almost every day and would take her grocery shopping and run errands. While unloading the groceries, he would use the back door. He did not notice any defects in the steps leading up to the back door.

On the day of the accident, Sharma called Plaintiff and asked him to come over on Mother’s Day to have some “family fun.” He did come over and helped her with house cleaning and then took her to the store to buy groceries. They used the back door to carry in the groceries.

When he was leaving that day, he also used the back door. He made it down the first step but fell backwards when he reached the second step. These steps had handrails but only on the highest step and, on one side, the railing was dislodged from its anchor point.

Plaintiff retained a liability expert who concluded that the steps were in a dangerous condition. He opined that the staircase was dangerous because of “the lack of dimensional uniformity, a defective guardrail and handrailing system and the absence [o]f visual clues.”

Plaintiff sued Defendant (his mother Sharma), alleging negligence as to the condition of her property. Following the completion of discovery, Sharma filed a motion for summary judgment. The trial court judge granted the motion, dismissing the lawsuit. This appeal ensued.

As part of the trial court’s decision, the judge concluded that Plaintiff was a social guest, not a business invitee. On appeal, Plaintiff made the argument that he was misclassified and because he was conferring “essential household benefits,” he should have been classified as a business invitee, with the higher duty of care imposed upon the Defendant, as the landowner.

The Appellate Division pointed out that the duty of care owed to an injured party is dependent upon their status – whether they are a business invitee, social guest, or trespasser. A business invitee is someone who is “invited on the premises for purposes of the owner that often are commercial or business related.”  If a business invitee, the landowner would owe “a duty of reasonable care to guard against any dangerous conditions to his or her property that the owner either knows about or should have discovered.”

However, a lesser degree of care is owed to a social guest or licensee. Such a person would be someone who is on the premises for personal purposes. As a social guest/licensee, the owner would only be liable for that person’s injury if the owner knew or had reason to know of the condition (that caused the injury) and should realize that it involved an unreasonable risk of harm to such licensee and should expect that they would not discover or realize the danger. Further, the owner would not be liable unless the licensee did not know or have reason to know of the condition and the risk involved.

The Appellate Division noted that a person would generally remain as a “social guest,” even if they performed some services beneficial to their host. The rationale is that the main purpose of their visit was social and not to render services. The Court cited to prior case law that the “nature of the relationship should be governed by throughout by that purpose and not by the fact that the guest may during a small portion of the stay assist in preparing food for a meal or perform some other minor chore of benefit to the hostess at the latter’s request.”

Here, Plaintiff came to his mother’s house for a social purpose. He was coming at his mother’s request for “family fun” on Mother’s Day. While Plaintiff did help clean and run errands, the Court found that these actions did not convert his status from a social guest to a business invitee. His social interaction was concurrent with the performance of household chores.

And regardless of his status, the Appellate Division noted that there would be no liability because the hazard posed by the staircase was obvious. As either a social guest or an invitee, there would be no liability to an injured party from a hazard which is apparent or known to the injured party.

The Court noted that the “defects” in the staircase pointed out by Plaintiff’s expert were obvious to Plaintiff. He had lived in the house and visited his mother regularly. Thus, the Appellate Division found that Plaintiff should have been aware of them. Hence, the Court affirmed the trial court’s decision, granting summary judgment as to Defendant Sharma.

Equitable Tolling Does Not Apply to Claims Against Public Entities Under the Tort Claims Act’s Statute of Limitations

On Aug. 5, 2022, Timothy Scruggs boarded a New Jersey Transit (NJT) bus in Philadelphia. As he walked down the aisle, the bus began moving, causing Scruggs to lose his balance and fall against a broken seat, sustaining an injury. Two years later, on Aug. 5, 2024, Scruggs filed a lawsuit against NJT, a New Jersey public entity, in the Pennsylvania Court of Common Pleas in Philadelphia. Scruggs did not file a lawsuit in New Jersey for another 7 weeks. Defendant NJT filed a motion to dismiss Plaintiff Scruggs’ New Jersey complaint for violating New Jersey’s Tort Claims Act’s (TCA) statute of limitations of 2 years. Plaintiff opposed. The issue in Scruggs v. N.J. Transit Corp., 2026 N.J. Super. Unpub. LEXIS 1006 (App. Div. May 13, 2026), was whether equitable tolling applied to a lawsuit against a public entity under the TCA.

Equitable tolling is, as it name suggests, an equitable remedy where the “interests of justice, morality, and common fairness” will excuse the clear violation of a time-limitation period. While limitations periods are typically gray deadlines that are subject to equitable tolling, this is generally not the case against a public entity as it is to a private entity or when it would be in direct conflict with the relevant statute, such as the TCA.

The TCA’s guiding principle is that immunity from tort liability is the general rule, and liability the exception and supporting case law demands it be strictly construed. Section 59:9-8(a) of the TCA bars a claimant from recovering against a public entity if “two years have elapsed since the accrual of the claim.”

Nevertheless, in this case, the trial court denied NJT’s motion to dismiss and applied equitable tolling, finding that Shruggs’ suit filed in Philadelphia fell under the two year TCA statute of limitations in New Jersey. NJT asked the trial court to reconsider its opinion, stating it had misapplied the equitable remedy. The trial court reconsidered its opinion and reversed itself, agreeing that the TCA must be strictly construed. Scruggs appealed.

The Appellate Division agreed with the trial court on its reversal, confirming that there was no place for equitable tolling in the TCA’s statute of limitations. The appellate court pointed to the plain reading of the TCA’s limitation language and how it “expressly precludes” a claimant from asserting a cause of cation more than 2 years after the date of injury. The court expressly indicated that equitable tolling was not available to actions against public entities, such as NJT, under the TCA because the legislature made it clear that courts must strictly construe the TCA.

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