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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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Insurance Carrier Not Required to Provide to Injured Employee UM Coverage Under Employer’s Policy in Same Amount of Third-Party Liability Limits

In Travieso v. Crespo, 2026 N.J. Super. LEXIS 712 (Aug. 6, 2026), the New Jersey Supreme Court considered whether plaintiff Nicky Travieso’s recovery under his employer’s auto liability policy for an accident caused by an uninsured motorist was limited to the $15,000 uninsured motorist (UM) coverage selected or whether it should be reformed to match the $1 million third party liability limits that the employer had selected. Travieso was driving his employer’s vehicle at the time of his accident. The vehicle was insured by Zurich. Zurich offered Travieso the $15,000 maximum UM coverage for his injuries but he argued that he should be entitled to UM coverage equal to the policy’s third party liability limit of $1 million.

Plaintiff Travieso had been in an accident with a vehicle driven by defendant Ciara Crespo. That vehicle had no liability insurance coverage. Hence, Travieso made a claim for his injuries to his employer’s insurance carrier, Zurich, for UM benefits.

The employer’s auto policy made clear that the Zurich limit for UM coverage provided to Travieso’s employer as the named insured and the UM coverage provided to employees such as Travieso were subject to the same $15,000 limit. The Supreme Court reviewed the relevant statutes and noted that step down provisions which purport to provide employees with less UM coverage than the named insured under an employer’s business auto policy were invalid. The statute deems a policy that names the corporate or business entity as the named insured to provide the maximum UM or UIM (underinsured motorist) coverage available under that policy to an individual employed by the corporate entity.

At the trial court level, the trial judge misunderstood the policy terms and thought that Zurich’s UM coverage was $1 million for the employer. In fact, the employer had only selected UM coverage for itself in the amount of $15,000. Based upon this mistaken belief, the trial court judge had granted summary judgment to the plaintiff employee and reformed the policy to provide Travieso with $1 million of UM coverage. Zurich appealed this decision to the New Jersey Supreme Court after the Appellate Division denied leave to appeal and the Court granted Zurich’s leave to file this appeal.

After considering the relevant auto statutes, the Supreme Court ruled that New Jersey law does not require a business auto policy to provide the same limits for UM and general third party liability coverage. Here, the maximum UM coverage available to Travieso was the same as the limit selected by the employer for its coverage. The Court found that the Zurich policy did not violate the auto statutes, nor public policy in not providing matching limits for UM and general third party liability coverage. Thus, it reversed the trial court’s summary judgment granted to plaintiff as to reformation of the policy and dismissed those claims.

Power Company’s Regulation-Mandated Duty to Maintain Trees Near Its Power Lines Does Not Extend to a Motorist

In May, 2019, while driving his car in West Milford, a tree fell on Plaintiff Mark Solaro’s car, injuring him. The tree in question stood next to a power line owned and operated by Defendants Jersey Central Power & Light (JCP&L) and FirstEnergy Corp. (FirstEnergy) in a nature preserve in a public park. Solaro sued JCP&L and FirstEnergy, claiming they were negligent in failing to inspect, maintain, and manage the trees surrounding their power line. The issue in the unpublished case Solaro v. FirstEnergy Corp., 2026 N.J. Super. Unpub. LEXIS 1649 (App. Div. July 20, 2026) was whether JCP&L and FirstEnergy owed Solaro a duty of care to manage trees near power lines for the safety of passing vehicles.

The power company defendants, relying on prior New Jersey case law, each filed a motion for summary judgment arguing that while they did have a duty to maintain trees to prevent interruptions in service, that duty did not extend to maintaining trees for passing vehicles unrelated to any interruptions to the transmission of electricity through those lines. Solaro opposed these motions.  Despite agreeing that even though the power line itself did not cause his injury, the line only sat next to the tree that fell on his car, he argued that recent vegetation-management regulations that applied to electricity companies like JCP&L and FirstEnergy took precedence over the case law. Those regulations, he argued, required power companies like JCP&L and FirstEnergy to maintain trees near power lines to prevent non-electrical hazards, including those that pose a risk of falling on passing vehicles. The trial court was unpersuaded by Solaro and granted both motions for summary judgment. Solaro appealed.

On appeal, Solaro repeated his argument. He claimed that because the State passed the regulations after the binding case law, they created a new, broader public safety duty on power companies that requires them to maintain trees near power lines regardless of the potential harm, thereby limiting the scope of the case law. The Appellate Division took the same view as the trial court and determined Solaro’s reading of the regulations and the law was in error. The Court held that the prior law that refused to place a duty on utility companies to protect drivers from non-electrical tree hazards remained the guiding principle, and the regulations did not broaden that duty – the regulations were focused on electrical reliability and safety (such as preventing trees from interacting with “energized conductors,” not roadside safety. Further, relying on the plain language of the statutory regulations, including their definitions of words such as “vegetation management,” “hazard tree,” and “mitigate,” the Court held the State intended to protect the electrical grid, not third parties such as drivers on the state’s roads. Ultimately, the Court held that it would be an overwhelming burden on a private entity such as JCP&L or First Energy to inspect and maintain trees over hundreds of miles of roadway for the broad purpose of the safety of passing motorists when that responsibility, more or less, already lies on private or public landowners and the Department of Transportation.

From this decision, beyond the clear pronouncement that a power company’s duty to maintain trees is tied to its role in delivering electricity, not general premises liability, the key takeaway is that general premises liability law controls and landowners, not utilities, are responsible for tree maintenance outside of some electrical malfunction. Further, and more deeply tied to the process of the Court’s reasoning in reading the statutory language deeply, the application of statutory regulations to tort law requires a need to show that the text and structure of the regulation, not the general use of safety-coded language, actually intends to apply to the class of plaintiff and harm at issue; as was the case here where drivers on the state’s roads and non-electrical tree-fall injuries fell outside of the purpose for the regulations.

Homeowner Not Responsible for Exploding Pool Filter Solely Maintained by Outside Contractors

In June 2021, Plaintiff Homero Mendoza, a pool technician employed by Aqua Pools, Inc., arrived at the Mahwah residence of Defendant Eleanor Davis to open her pool for the season. The prior autumn, Davis had hired a separate contractor, Our Pool Co. of NJ (Our Pool), to winterize the system. Between the winter closing and Mendoza’s arrival, Davis did not touch or operate the pool, its filter, or its pump. When Mendoza attempted to service the filtration system, the filter casing exploded, causing severe facial and head injuries. Mendoza filed a negligence action against Davis and Our Pool, alleging a failure to maintain the premises or warn of a dangerous condition. The issue in Mendoza v. Our Pool Co. of NJ, Inc., 2026 N.J. Super. Unpub. LEXIS 1715 (App. Div. July 27, 2026), was whether Davis breached her duty to maintain a safe premises for Mendoza or warn him of the danger posed by the pool equipment.

To support his claims, Mendoza relied primarily on an OSHA investigation report. The report determined that chlorine tablets left in the filtration system from Our Pool’s work in the fall, combined with elevated pre-season temperatures and a lack of water, caused gas to build up inside the system. OSHA suggested the resulting pressure could have been relieved via a manual valve and noted that the system “may” have emitted a detectable chlorine odor prior to the explosion. Mendoza did not retain an expert witness to testify on the mechanics of the filtration system or the likelihood of escaping gas.

Following discovery, Davis moved for summary judgment, arguing that Mendoza could not establish his negligence claim with the available facts, particularly without producing an expert report. Davis highlighted her complete lack of physical involvement with the equipment beyond retaining professionals to maintain it. Mendoza opposed, asserting that a jury could infer Davis was on notice of the danger due to the potential odor and her failure to open the pressure release valve. The trial court granted summary judgment for Davis, turning to the “well-settled legal proposition” that negligence is never presumed, but must be supported by proof of circumstances a jury could infer a defendant lacked due care. The trial court specifically rejected Mendoza’s claims that a reasonable homeowner would have detected the chlorine odor because Mendoza produced no competent evidence that she could have smelled any fumes. Further, the trial court found Mendoza required an expert to explain the functioning of the filtration system, a fatal error to his claims. Mendoza appealed.

On appeal, Mendoza argued that the trial court did not grant him the favorable inferences to which he was entitled and, as a business invitee, Davis owed him the highest duty of care. He turned to the OSHA report, and the inference that the gas buildup “may” have caused an odor to emanate and which Davis would have noticed precludes the need for an expert and is a question of fact for the jury.

The Appellate Division disagreed. Its opinion, echoing the trial court, advised that a party cannot defeat a properly supported motion for summary judgment on bare conclusions lacking any factual support – the plaintiff must prove their facts with support from the record, they’re never presumed; it remained undisputed that Davis never touched the pool equipment nor did she control or instruct the pool companies as to their work, she only asked them to maintain her pool. Further, the Court found the OSHA report, which contained the bulk of Mendoza’s evidence, was largely hearsay and failed to establish what Mendoza claims as to the chlorine gas emanating from the system or that Davis was capable of smelling it. Finally, while juries may weigh in on precautions expected of an average person, technical issues outside common lay experience require expert opinion. Pinpointing the cause of internal pressure buildup, the mechanics of gas escape, and whether a homeowner should recognize such a chemical hazard are specialized matters beyond a jury’s common knowledge.

This case emphasizes that litigants cannot rely on “common sense” or general premises liability duties when claims involve complex mechanical, electrical, or chemical systems and they must retain experts to explain such factors. Further, OSHA and other agency investigative records are useful discovery tools, but they do not serve as admissible expert reports and will not defeat summary judgment. Finally, hiring independent contractors to manage specialized residential systems insulates homeowners from liability for hidden hazards created or left unaddressed by those contractors.

No Liability to Property Owner for Subcontractor’s Fall Through Roof on Which He Worked

A fire caused structural damage to a building owned by J.H. Shaw Realty (Shaw) and occupied by steel manufacturer Blue Blade Steel Corp. (Blue Blade) in October, 2020. Blue Blade hired a roofing contractor to repair the roof. After an insurance investigation identified asbestos in the damaged roof, Blue Blade hired United Safety for the asbestos remediation. As the project neared completion in April, 2021, Plaintiff Kemal Beciragic, an employee of United Safety, fell through the roof and landed on the concrete floor below, sustaining severe injuries. Plaintiff sued Shaw and Blue Blade for his injuries; because it was his employer and solely liable for his injuries under the Workers’ Compensation Act, United Safety was only a party for discovery. The issue in Beciragic v. Blue Blade Steel Corp., 2026 N.J. Super. Unpub. LEXIS 1834 (App. Div. Aug. 6, 2026) was whether the defendants had a duty to Plaintiff to ensure his safety during his work on the roof.

Prior to their work, United Safety’s supervisor inspected the roof on Shaw’s building and found it in poor condition. Due to the danger, the supervisor instructed his workers, including Plaintiff, to use safety harnesses. However, Plaintiff was not wearing his harness at the time of his fall because it interfered with his freedom of movement. Further, because Blue Blade continued operations while United Safety performed their work, the two coordinated with each other on work scheduling, Blue Blade did not control United Safety’s work methods,  give them instructions on remediation, or manage their employees’ safety or equipment.

Shaw and Blue Blade each filed summary judgment motions arguing that they had no duty for Plaintiff’s injuries because they did not manage or instruct United Safety on its work and that Plaintiff was aware of the damage to the building and he chose not to use fall-protection gear provided by United Safety. Plaintiff opposed, arguing Blue Blade was responsible for oversight and coordination of the project and violated various OSHA regulations in not assuring any subcontractor complied with those requirements.

The trial court granted summary judgment, finding that the defendants owed no duty to Plaintiff because they disclosed the defect and foreseeable danger to United Safety, Plaintiff’s employer, who oversaw the means and methods of Plaintiff’s work. The trial court explained that because Plaintiff was injured doing the very work he was contracted to perform, the defendants had the right to assume United Safety’s  employees had sufficient skill to recognize the danger involved and adjust their methods accordingly. Further, the court found OSHA’s regulations were only a factor in the analysis of whether the defendants had a duty and did not dispositively establish a duty. Plaintiff appealed.

In its appeal, Plaintiff claimed that a genuine issue of material fact existed as to the duty each defendant owed to Plaintiff while working on their property and that all of the defendants were contractors who controlled some element of Plaintiff’s work.

The Appellate Division conducted its review by looking at the general law of negligence, then at the element of duty, establishing that Plaintiff was a business invitee to whom the defendants owed a duty to guard against dangerous conditions they know of or should have discovered. The Court then specifically focused on the duty a general contractor has for the injuries of its subcontractor’s employees, noting that a general contractor can assume a subcontractor and its employees are sufficiently skilled to recognize the dangers in their job and adjust their work accordingly. When the subcontractor is hired to work on a specific hazard itself, the owner or general contractor is not required to eliminate those hazards which are obvious and visible to the subcontractor and what the subcontractor was hired to  work on in the first place. Similarly, OSHA regulations intended to make a job site safe for contactors are only one factor in a negligence analysis, not the sole basis for a general contractor’s duty. The Appellate Division ultimately held that a landowner or general contractor is under no duty to protect the employee of a subcontractor from the very hazard created by the doing of the contract work when they do not retain control of the means and methods of the work itself.

Here, though the defendants all knew of the latent defects to the roof caused by the fire, they communicated those to United Safety; indeed, that was the specific reason United Safety had been hired. Plaintiff’s supervisor knew of the roof damage, had inspected it, and found it to be in bad shape. As a result, United Safety implemented safety measures, measures that Plaintiff intentionally chose to avoid. Further, to the extent Plaintiff argued each defendant was a general contractor, the same law applies – they are not liable for his injuries because they arose from the roof damage he knew existed and was hired to perform. As for Plaintiff’s claim that the defendants’ OSHA violations created an issue of material fact, the Court stated without more to support a claim for liability, an OSHA violation alone does not support a negligence claim. The Court affirmed the trial court’s grant of the defendants’ summary judgment motions, dismissing the complaint.

The key takeaways here include the reinforcement of a landowner’s duty to warn of a dangerous condition, and how that duty may be discharged to a subcontractor hired to perform repairs on that same open and obvious condition. Also, the critical fact here was the defendants’ lack of control over United Safety’s employees’ means and methods of work, which include the use (or lack of use) of safety equipment. Finally, while many plaintiffs may point at OSHA regulations as sacrosanct, this case makes it clear that those regulations do not create a per se legal duty, but are only factors to consider in a broader negligence analysis. 

Plaintiff’s Personal Injury Lawsuit Against Trampoline Park Dismissed Due to Lack of Expert Testimony As to Duty of Care Owed by Facility

Plaintiff Katie Freiermuth went with her children to defendant Get Air’s trampoline park. While walking to the restroom, she walked past two wet floor signs and an employee actively mopping the floor. She took several steps and slipped and fell on the wet floor. She subsequently sued Get Air for her injuries suffered from the fall. The issue in Freiermuth v. Get Air Mays Landing, LLC, 2026 N.J. Super. Unpub. LEXIS 1826 (App. Div. Aug. 5, 2026), was whether Plaintiff needed an expert to establish the industry standard of care for maintenance of the facility and whether there was any breach of a duty of care owed to her.

Plaintiff did not know the source of the water but the accident was captured on the defendant park’s video surveillance system. Plaintiff claimed to have suffered a lumbar and left knee injury due to her fall.

After discovery ended, defendant moved for a summary judgment. The trial court granted the motion and dismissed the lawsuit. The judge found that Get Air did owe plaintiff, as a business invitee, “a duty of reasonable care to guard against dangerous conditions on its property that it either knew about or should have discovered.” However, the judge found that plaintiff “failed to articulate any industry standard for which Get Air was responsible and breached,” that it did not create a dangerous condition or fail to exercise reasonable care to guard against such a condition, and that plaintiff signed a valid waiver and release of liability as to use of the facility.

This decision was appealed and upheld by the Appellate Division.

The appeals court agreed with the trial court that expert testimony was needed to establish the industry standards for the park’s cleaning and maintenance guidelines or standards during business hours. The Court found that the record lacked factual or expert testimony “to show that Get Air failed to exercise due care by not posting additional warning signs or safeguards for mopping during business hours.”

Expert testimony would be needed because “the average juror would be unable to determine whether Get Air’s actions in mopping and posting warning signs were unreasonable and did not comport with industry standards.” The Court agreed with the trial judge that “an expert would be necessary to assist the jury in determining whether Get Air’s actions fell below what was expected and required to maintain the park’s safe environment.”

The Appellate Division also found that Get Air’s mopping procedure did not create a dangerous condition. Cleaning the facility floor and putting up two wet floor signs to ensure the safety of its patrons was reasonable and did not create a dangerous condition. Regardless of the source of the water (it may have been from a spill), the park satisfied its duty to warn against such a potentially dangerous condition by posting the warning signs.

Further, the Court noted that the area being mopped was “open and obvious” to patrons. Plaintiff acknowledged that she walked past two wet floor signs on the way to the restroom and an employee actively mopping the floor. Hence, as the trial judge found, “plaintiff was on notice of any purported dangerous condition and walked into the area nonetheless.” Hence, there was no breach of a duty to warn. Because the Appellate Division found that the trial court judge correctly ruled that the plaintiff failed to establish a duty of care based on industry standards and a breach of that duty, it did not reach the issue of whether the liability waiver was applicable.

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.

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