logo-njlitigationblogcom

Litigation Blog

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

View OTHER BLOGS

Letter to Public Entity Lacking Critical Information Does Not “Substantially Comply” with Notice of Claim Requirements

On Feb. 13, 2024, Plaintiff Demetrius Lindsey claimed he sustained personal injuries when the NJ Transit (NJT) bus on which he was a passenger was involved in an accident. That day, the bus driver filled out an incident report and NJT prepared a form noting Lindsey’s complaints and visit to the ER. Lindsey retained an attorney and on Feb. 22 the attorney sent NJT a letter of representation, identifying himself, Lindsey, the location of the incident, and the fact that Lindsey sustained injuries in the Feb. 13 accident. The letter also requested any documents and reports created as a result of the accident. On May 31, 108 days after the accident, Lindsey’s attorney sent a second letter with a request a “claim be initiated” on Lindsey’s behalf. NJT and Lindsey’s attorney exchanged correspondence until Feb. 12, 2025, one day shy of the accident’s one year anniversary, when Lindsey’s attorney filed a motion for leave to file a late Tort Claims Notice. The issue in Lindsey v. NJ Transit Corp., 2026 N.J. Super. Unpub. LEXIS 2142 (App. Div. Sept. 29, 2026) was whether the content of Lindsey’s attorney’s Feb. 22, 2024, letter to NJT contained sufficient information to serve as a Notice of Claim under New Jersey’s Tort Claims Act (TCA).

The guiding principle of the TCA is that immunity is the rule and liability the exception for claims against public entities. An element of the TCA requires a claimant serve the public entity with a Notice of Claim in 90 days of the claim’s accrual date – the date of the claimed injury. The TCA requires a proper Notice of Claim contain the following critical information: the claimant’s name and address, the date and circumstances of the incident, a description of the injury, and the amount of claimed damages. The failure to serve the public entity with a Notice of Claim in 90 days from the accrual date will forever bar the claimant from filing a lawsuit against the public entity for that injury. However, to avoid that harsh result, a claimant may move for leave to file a late Notice of Claim if he is able to show “extraordinary circumstances” caused him to miss the 90 day deadline with no prejudice to the public entity.  

In his motion for leave, Plaintiff argued that NJT was on notice of his claim shortly after the incident due to his attorney’s Feb. 22 letter and the reports created by the bus driver and NJT. NJT opposed, arguing the TCA required a compliant Notice of Claim, and the Feb. 22 letter did not serve that purpose in fact or intent; evidenced by Lindsey’s attorney’s statement in the May 31 letter, that a “claim be initiated.” The parties agreed the claim accrued on Feb. 13, 2024, making a Notice of Claim due by May 13, 2024. However, the motion court sided with NJT that the Feb. 22 letter did not meet the standard required to satisfy a Notice of Claim to properly put NJT on notice, thereby denying Plaintiff’s motion, barring Plaintiff’s claim and opportunity to file suit. Plaintiff appealed.

The Appellate Division also focused on Plaintiff’s Feb. 22 letter and performed an analysis to determine whether that letter was in “substantial compliance” with the Notice of Claim requirements. Applying these elements, the Appellate Division determined the Feb. 22 letter fell short and upheld the motion court’s denial of the motion for leave. A court weighing substantial compliance will consider whether the substance of the notice given was both in writing and within the 90 day window and, while the notice may lack the specifics to satisfy the strict requirement of the TCA, the missing details did not deprive the public entity of effective and actual notice. The “substantial compliance” analysis considers the lack of prejudice to the public entity, steps taken by the claimant to comply with the TCA, general compliance with the purpose of the statute, reasonable notice of the claim, and a reasonable explanation why the claimant didn’t strictly follow the rule.

Applying these elements, the Appellate Division determined the Feb. 22 letter fell short and upheld the motion court’s denial of the motion. It found the only critical information contained in the letter was Lindsey’s name, the date of the incident, the location of the incident, and the fact the incident occurred. The letter lacked any reference that Lindsey intended to state a claim against NJT, the specifics of the claim, or what injuries Lindsey sustained. Further, Lindsey’s attorney’s reference in the May letter of his intent to “initiate a claim” only established that the Feb. 22 letter did not have that purpose. Finally, the fact that NJT possessed internal documentation does not rise to the level of a claim; the Court found that no public entity has the obligation to review its internal documents and “put itself on notice that a potential plaintiff failed to supply.”

The key takeaways here are that a TCA Notice of Claim must be the notice of a claim, not the notice that a potential claimant is represented by an attorney, is requesting records, and may have the basis for a claim. Further, substantial compliance is narrowly drawn; while it forgives some technical defects in timely written Notices, it will not permit a missing or late notice or notices lacking crucial information.

Despite a Clear Policy Exclusion, Insurer’s Lengthy Delay Opens Door to Equitable Estoppel

In August, 2024, Plaintiff Matthew Galeano was in a motor vehicle accident while riding his motorcycle on I-80. The car that struck him had too little coverage, allowing Galeano to submit an underinsured motorist (UIM) claim to his insurer. Galeano owned an auto policy with USAA for two cars, but not the motorcycle, which had coverage with a separate insurer. Further, the USAA policy’s language expressly excluded UIM coverage for a person, like Galeano, who was operating any vehicle he owned that did not have UIM coverage with USAA. Nevertheless, though admitting he had no UIM coverage for this accident with USAA, Galeano submitted his UIM claim to USAA. Over the ensuing 16 months, USAA sent several letters to Galeano advising him that his claim remained unresolved and asked him to submit medical records for them to assess his injuries. One such letter was a response to Galeano’s “Longworth” letter seeking permission to settle with the other driver. Though USAA’s response alluded to their review of his coverage, it allowed him to settle. Ultimately, relying on the exclusion, USAA denied Galeano’s claim in January, 2026. Galeano sued claiming USAA was “equitably estopped” from denying him coverage. The issue in Galeano v. USAA Gen. Indem. Co., 2026 N.J. Super. Unpub. LEXIS 2333 (App. Div. Oct. 19, 2026) was, despite the admitted exclusion, whether USAA’s conduct and 16-month delay equitably estopped it from denying Galeano coverage.

As its name suggests, equitable estoppel is based in equity, or basic fairness, stating that when one party reasonably relies on another party’s course of action, the other party cannot change that course of action to the detriment of the first party. For insurers, equitable estoppel may apply when a carrier takes control of a claim and, despite knowing it has reason to deny the claim, it fails to advise the insured it may deny the claim with a “reservation of rights,” and after a lengthy delay, denies the claim. In such a case, the insured, without knowing of the potential for the denial of coverage, may avoid or refrain from taking other steps that may improve his position in hopes that the carrier agrees to provide him coverage, to his detriment.

Here, based on the exclusion, USAA filed a motion for summary judgment to allow it to deny Galeano UIM coverage. USAA relied on its response to the “Longworth” letter in which it expressly disclaimed any confirmation of UIM coverage. Galeano’s opposition argued his equitable estoppel claim – that he reasonably relied on potential UIM coverage from USAA because, over the course of more than a year, USAA advising him he may settle his underlying accident in its response to his “Longworth” letter and USAA never mentioned the possibility it would deny coverage. Though admitting he was not entitled to coverage, Galeano argued USAA should have known that from the outset and told him so. Because they didn’t tell him of the possibility, but wanted medical records to review and allowed him to settle, he was in a worse spot because he could not seek other remedies. The trial court weighed the value of the contrasting positions, ultimately denying USAA’s summary judgment motion due to the genuine issue of material fact as to whether USAA’s conduct was equitable. USAA filed an interlocutory appeal, allowing the Appellate Division to review the determination immediately.

The Appellate Division was similarly perplexed with the facts of this case. Its analysis relied on precedent which held that an insurer may be estopped from denying a claim if it assumes control of a claim knowing it has grounds to deny the claim, but does not put the insured on notice that it could deny the claim by issuing a “reservation of rights” letter. The precedent also held that, even if it did not take control of a claim, because an insurer has a duty to investigate claims within a reasonable time, any unreasonable delay may also be also grounds for estoppel. However, another more recent precedent, stated that estoppel did not apply when, though there was a delay, the insurer’s repeated “reservation of rights” letters removed the “reasonable reliance” element from the assessment. Based on the split in the precedents, the Appellate Division emphasized the fact-sensitive nature of the equitable estoppel analysis and did not make an up-or-down ruling. Instead, it sent the matter back to the trial court (“remand”) for further proceedings to determine: a) why did it take 16 months for USAA to identify its exclusion and keep requesting medical records without advising Galeano of the potential denial; and b) if he agreed he was not entitled to UIM coverage, how could Galeano have reasonably relied on USAA providing him that coverage.

Two key takeaways for insurers are, for one, avoid delay. Prepare a coverage analysis early. An unreasonable delay and other handling issues can put otherwise clear policy language into question. Two, if there is any question of coverage, put the insured on notice. Generic language like “evaluating” or “reviewing” coverage without a clear “reservation of rights” language, while actively engaging in coverage determinations like a “Longworth” reply, seems to have kept this case alive.

Records from Plaintiff’s Hidden, Subsequent Accident Properly Used to Impeach on Cross-Examination

In March, 2022, Defendant John Szmitkowski rear-ended Plaintiff Young An. An claimed permanent injuries to his back, right shoulder and right knee, culminating in back surgery in 2024. Discovery revealed that he had a prior car accident in 2002, also with a back injury. An denied any other injuries at his deposition. After post-deposition discovery, Szmitkowski’s attorney identified an MRI invoice for An’s left shoulder and left knee from 2023. An’s counsel declined to explain the previously undisclosed accident or records. Further discovery into the source of the MRIs uncovered a third car accident in 2023, as well as a lawsuit filed by the same plaintiff’s firm. At trial, An produced three experts to testify that the accident caused his permanent injuries. Relying on the 2023 accident records, Szmitkowski’s attorney cross-examined An and his experts, impeaching their credibility. The jury found Szmitkowski 100% at fault but did not find An had sustained a permanent injury and awarded him no money damages. The primary issue in An v. Szmitkowski, 2026 N.J. Super. Unpub. LEXIS 2227 (App. Div. Oct. 2, 2026), was whether the trial judge abused his discretion in letting Szmitkowski’s attorney use the 2023 records to cross-examine An and his experts.

Before trial, the defense identified the records from the 2023 accident and told An they would use them at trial to impeach An and his experts. An opposed, claiming the 2023 records were irrelevant and inadmissible because they identified injuries unrelated to those from his 2022 accident. The judge disagreed. He allowed Szmitkowski to use the records, but only for cross-examination, not as evidence on their own. The judge reasoned that An’s claim they were irrelevant to his 2022 accident required an expert’s conclusion, not his attorney’s opinion.

At trial, An’s three experts all testified that An’s injuries were permanent and caused by the 2022 crash. However, each expert admitted on cross-examination that he was unaware of the 2002 or 2023 accidents, but that did not change his opinion that An’s injuries from the 2022 accident were permanent and causally related. On cross-examination, An admitted to all three accidents and, despite a record from the 2023 accident saying he was “pain free” prior to that accident, claimed his injuries from his 2022 lawsuit all came from his 2022 accident. After both parties rested, the jury returned their verdict finding Szmitkowski 100% negligent for the happening of the accident, but denied An any money damages. An appealed.

On appeal, An argued that the 2023 records were irrelevant to his 2022 injuries and the trial court should not have allowed Szmitkowski to use it during cross-examination. The Appellate Division affirmed the trial court’s determinations. It underscored its role in ruling on a trial court’s evidence determinations on an “abuse of discretion” standard; that it may only reverse such a determination when it is made “without a rational explanation.” The Court further noted that when a plaintiff accuses a defendant of causing a medical condition, the defendant may impeach the plaintiff and his experts with evidence of prior medical conditions to allow a jury to determine the factual cause of the injury. Similarly, a defendant has the right to provide evidence that an injury was caused by a prior accident, particularly in cross-examination, because it is effective in a “jury’s search for the truth.” The Court disagreed with An’s claims that the 2023 records were irrelevant. Based on the testimony, the Court found that the jury could find An’s injuries were causally related to all three accidents as his complaints and difficulties with activities of daily living after his 2023 accident were similar and associated with his complaints of the 2022 and 2002 accident. Also, by not admitting the 2023 records into evidence and limiting their use to cross-examination, the Court found the trial court properly used its discretion to allow Szmitkowski the opportunity to impeach An and his experts about the 2023 accident and limit it to cross-examination rather than for its own substance.

This case highlights the importance of a thorough investigation into a plaintiff’s claims through his medical records and his deposition. Here, the plaintiff’s entire case imploded because the defense attorney found a single MRI invoice in discovery. Identifying any treatment for body parts not alleged in the suit and prior/subsequent accident through medical records of treating providers, primary care providers, pharmacists, or an ISO search, then expanding that search for any other doctors may identify other, related treatment. A plaintiff’s later denial of any such prior or subsequent injury in a deposition sets the foundation on which his, and his experts, credibility may eventually crumble.

Appellate Division Affirms Defense Verdict in Traffic Accident Trial After Plaintiff Fails to Identify Clear Error

On June 25, 2025, Plaintiff Yao Ren was driving his car on Route 124 at its intersection with Morris Ave. in Millburn and came to a stop at an intersection intending to turn left on Morris Ave. According to his testimony, when the signal turned green, he proceeded into the intersection and struck the rear bumper of the car driven by defendant David Coelho. Ren claimed he had a green left-turn arrow while Coelho had a red light and, with his green light, the right of way in making a left turn. He claimed Coelho’s left-rear bumper stuck out and caught his right bumper, tearing it off. Ren sued Coelho in small claims court for his property damage. When he lost in a non-jury trial, Ren requested the court reconsider its findings. The issue in Yao Ren v. Coelho, 2026 N.J. Super. Unpub. LEXIS 2152 (App. Div. Oct. 1, 2026) was whether the trial court abused its discretion in denying plaintiff’s motion for reconsideration under Rule 4:49-2.

At trial, the presiding judge reviewed photos of the intersection that showed the lanes in which the parties traveled, the police report that described the facts of the accident (but placed no fault on either party and issued no summonses), and the parties’ testimony, and found Ren caused the accident. With this, the court dismissed the complaint. Ren filed a motion for reconsideration, claiming the court did not review all of the evidence. The court denied that motion. Ren appealed.

At the outset, the Appellate Division advised that its review of a bench trial was limited, giving deference to the court’s determinations based on oral testimony and written evidence and biding on appeal when supported by the “adequate, substantial, and credible evidence.” Here, the Court found the lower court’s reliance on the testimony and evidence was reasonable and should not be disturbed. Further, it noted that a motion for reconsideration, another process in which the appeals court permits the trial court broad discretion, requires the moving party to specifically state the basis for their motion and controlling case law on which it is made. However, in a much more strict manner, the Appellate Division held that reconsideration should only be granted upon a “palpably incorrect and irrational basis” or when it was obvious the court failed to consider critical, competent evidence. The Appellate Division found that the trial court satisfied its light burden by noting Ren failed to point to any evidence he believed the trial court erred or overlooked and that the court had reviewed all evidence at trial. In doing so, the Court found no grounds to overrule the trial court’s denial of the motion for reconsideration as well.

This matter underscores the standards at which New Jersey’s Appellate Division defers to the state’s trial courts on bench trials and motions for reconsideration. Because those two trial court functions are fact-intensive and delicate, appellate courts will defer to their findings unless the trial record is devoid of evidence supporting its conclusions or its rulings are clearly in error. As a result, the Appellate Division must stay away from inserting its judgment for that of the trial court.

Board of Education Not Liable for Death of Minor Who Was Fatally Struck by Bullet at High School Football Game

Plaintiff Angela Tennant brought her son Micah and his sister to a playoff football game at Pleasantville High School. Sometime after halftime, defendant Alvin Wyatt arrived at the game with an illegal firearm. He then fired shots at Ibn Abdullah in retribution for a prior shooting incident in which Abdullah shot at Wyatt and Wyatt’s cousin died in connection with that shooting. Micah was struck by one of Wyatt’s bullets and died 5 days later. The issue in Tennant v. Pleasantville Board of Education, 2026 N.J. Super. LEXIS 77 (App. Div. Aug. 10, 2026), was whether the Pleasantville Board of Education could be held liable for Micah’s death based upon a state-created danger theory.

The playoff game was between Pleasantville High School (“PHS”) and Camden High School.  Micah and his sister were not students at the Pleasantville School District. The family bought tickets when they arrived at the beginning of the third quarter of the game.

PHS had a security plan for the football game. It increased the normal assignment of 3 Pleasantville police officers to 6 officers, assisted by a K-9 unit. The officers were strategically positioned around the perimeter of the field and the bleachers. Additionally, PHS had 7 event staff in the parking lot, entrance, end zone and concession stand. Camden Police also had at a minimum of 2 officers and several additional security personnel to assist. Attendees to the game were only permitted to bring in a bag no larger than the size of a small purse. However, metal detectors were not used, as they were not used at any PHS sporting events.

Plaintiff filed a lawsuit against PHS claiming that there was no metal detector at the entrance to the field and the Board of Education failed to take appropriate safety measures. Plaintiff relied upon a theory that a state actor can be found civilly liable under the New Jersey Civil Rights Act and the New Jersey Constitution under a state-created danger theory.

The New Jersey Supreme Court had previously recognized this theory of liability in the case of Gormley v. Wood-El, 218 N.J. 72 (2014). In that case, the plaintiff, a public defender, had been brutally attacked while visiting an involuntarily committed client at Ancora Psychiatric Hospital, a state run hospital. The Court found that evidence showed that the defendants had acted with deliberate indifference for the plaintiff’s safety, given the number of assaults that had occurred against attorneys at Ancora.

The Board of Education’s motion for summary judgment was denied by the trial court based upon Gormley. The trial court found that the Board of Education created a dangerous condition by failing to screen attendees for weapons at the football game.

However, after reviewing the evidence, the Appellate Division disagreed with that decision, finding that Plaintiff had not demonstrated that the Board of Education “created a danger which would expose it to liability and permit an exception from the well-established precedent that a person does not have a constitutional right to have a state actor protect them from criminal misconduct of another.”

The Appellate Division looked at the 4 part test applied in Gormley to determine if there was sufficient evidence of a state-created danger so as to preclude a summary judgment to the Board of Education. It focused on two prongs, whether the Board’s failure to install metal detectors to screen attendees constituted “deliberate indifference” that “shocked the conscience” and whether defendants affirmatively used their authority in a way to create a danger to Micah.

The Court concluded that Plaintiff had not presented the egregious totality of circumstances to meet the conscience shocking factor. Although the city of Pleasantville was generally considered a high crime area and there were acts of violence at the high school, it noted that “could unfortunately describe and pertain to an infinite number of situations in this or any state.” There was no evidence of prior violence at the football field or any prior PHS football game.

Further, unlike Ancora in the Gormley case, the Board of Education had implemented a safety plan, took precautions and attempted to ensure the safety of its attendees. The Appellate Division noted the strong security presence of police officers, which precluded a finding of deliberate indifference and disregard for constitutional rights.

Additionally, the Court held that the Board of Education did not take any affirmative action to establish a protocol or policy that increased the risk to Micah. The failure to install metal detectors did not qualify as an “affirmative action” to increase the risk of harm to Plaintiff.

Hence, the Appellate Division disagreed with the trial court’s decision denying the Board of Education’s summary judgment motion. It found that the Plaintiff failed to satisfy the standard to establish a state-created danger theory of liability to hold the Pleasantville Board of Education responsible for a private actor’s criminal misconduct and Plaintiff’s resulting damages. Thus, the trial court’s decision denying summary judgment was reversed.

Mistaken Belief That Library Was a State Entity Does Not Meet Tort Claim Notice Extraordinary Circumstances Threshold

In December, 2023, Plaintiff Tannia Winston was involved in an incident at the Jersey City Public Library that gave rise to claims of slander, discrimination, and harassment. A month later, on January 12, 2024, based on her investigation into the library, Plaintiff served a Notice of Claim for her damages on the State of New Jersey, but not Jersey City. Two weeks later, she filed a complaint against Defendant Jersey City Public Library outlining each of her claims and attaching the Jan. 12 Notice. In July, Plaintiff realized her mistake of putting the State rather than Jersey City on notice and filed a motion to allow her more time to serve a Notice of Claim on Jersey City. The issue in Winston v. Jersey City Public Library, 2026 N.J. Super. Unpub. LEXIS 1813 (App. Div. Aug. 4, 2026) became whether she could show extraordinary circumstances for her failure to serve Jersey City with a Notice of Claim on time.

New Jersey’s Tort Claims Act requires a claimant to notify a public entity of their intent to sue the entity within ninety days of the day the cause of action accrued. If they do not notify the public entity by the ninetieth day, the claimant must file a motion with the court identifying “sufficient reasons constituting extraordinary circumstances” why they could not file the Notice of Claim within ninety days after their claim accrued.

In support of her motion, Plaintiff claimed the extraordinary circumstances that prevented her from serving timely notice on the Library were that the Jersey City Public Library received funding from the State and, thus, it must be a state entity, not a municipal entity. The motion judge was not persuaded. Reasoning that it was difficult to see how Plaintiff could reasonably make the mistake that a library with the name “Jersey City Public Library” was a State of New Jersey entity, the motion judge denied Plaintiff’s motion and dismissed her complaint. Plaintiff appealed.

Leaning on the Tort Claims Act’s emphasis on making the extraordinary circumstances requirement a demanding one, the Appellate Division found Plaintiff’s position unavailing. Her extraordinary circumstances argument leaned on the same claims: that her interpretation of the Library receiving State funds implicitly made it a state entity and not knowing about the interplay between state and local entities was confusing and, alternatively, that it was a “clerical error.” Further, she claimed the trial court made errors in the course of her oral argument; she did not receive a fair hearing. The Court dismissed her initial substantive claims out of hand, stating that Plaintiff could not identify a reasonable basis for her confusion and, to that end, the lower court’s finding was correct. As to her new claims arising out of the oral argument before the motion court, the Appellate Division advised that her reasons for extraordinary circumstances must be set forth in her motion and that her failure to adequately explain those grounds before the motion court could not save her claims.

Though on a lower scale of magnitude than other “circumstances constituting extraordinary circumstances” claims, Plaintiff’s unavailing claims here serve to reinforce the “extraordinary” element of extraordinary circumstances: an ordinary, routine mistake will not satisfy the standard, but it must be something with a much greater impact that directly affects the claimant’s very ability to file the notice.

Hearsay Statements of Future Payment for Album Cover Photos Sink Claims Against Bruce Springsteen

In the recent Appellate Division opinion in Estate of Billotti v. Springsteen, 2026 N.J. Super. Unpub. LEXIS 2094 (App. Div. Sept. 15, 2026), the Court reviewed whether alleged statements by Bruce Springsteen and his agents to a car owner for future use of photos of a classic car were sufficiently reliable for the plaintiff to recover on his claims of failed payment.

In the Fall of 2021, two photographers contacted Louis Billotti, Sr., the owner of a 1967 Pontiac GTO, to use his car in two Monmouth County photo shoots for a price of $750 and $450, respectively. Billotti, Sr. and the photographers agreed over phone and text with no written contracts, and Billotti, Sr. was paid in full. Billotti, Sr. died about a year later. His son, Louis Billotti, Jr. became the estate’s executor and sole beneficiary.

Billotti, Sr. did not learn Bruce Springsteen was the subject of the shoot until he arrived. Months after his death, the car appeared on a Springsteen album cover and various merchandising. Billotti, Jr., on the estate’s behalf, sued, claiming Springsteen and an agent had promised Billotti, Sr. additional money for future use of the photos. The trial court had to determine whether Springsteen’s alleged promises were admissible at trial for a jury to determine whether the parties had an agreement.

Billotti alleged that his father told him about the conversations. The first one with Springsteen in which he asked what would happen if the car appeared on an album cover. Springsteen allegedly answered that he had “people who deal with that,” implying a contract would follow, and the agent alleged promised such a contract. In his deposition, though initially not recalling the conversation, Springsteen acknowledged he spoke with Billotti, Sr., but he denied making any promises. Depositions of various other people who had alleged knowledge of the situation failed to disclose any first-hand knowledge of any agreement or anyone to whom Billotti, Sr. had shared what Springsteen had said, beyond his son. Two close friends submitted two similar affidavits: one saying he suggested to Billotti, Sr. to get a contract and another, Billotti, Sr.’s own attorney, denied ever hearing it. Springsteen moved both to exclude the statements as hearsay and for summary judgment. The trial court granted both. The Appellate Division affirmed.

Hearsay is an out of court statement offered to prove what that statement establishes is true. Because of the inherent unreliability of statements made out of court under certain circumstances, preventing the inclusion of hearsay statements is meant to ensure the accuracy of the jury’s role in determining a case’s facts by leaving out “inherently untrustworthy statements.” The statements here were not only hearsay, they were double hearsay or “hearsay within hearsay,” Springsteen’s alleged statement to Billotti, Sr., nested inside Billotti, Sr.’s alleged statement to his son. Under New Jersey’s evidence rules, both statements must fall under an exception in order for a jury to hear either statement.

Next, the Court unpacked the two hearsay statements, both of which must fall under an exception to be admissible. The first, Springsteen or his agent’s alleged statement to Billotti, was an admission of a party opponent (or his agent). Because the alleged statement by Springsteen that he would pay Billotti, Sr. for the future use of his car on an album cover was an alleged admission to payment against Springsteen’s interests, it satisfied the first step of resolving the double hearsay puzzle. The second statement, Billotti, Sr.’s relation to Billotti of what Springsteen said, did not fare as well. It did not fall under a clear exception set forth in the rules. Billotti argued that, because of his father’s death, it should be admitted for its inherent trustworthiness. To allow a statement to be sufficiently trustworthy, it must be made in good faith, with personal knowledge, and under trustworthy circumstances. To that end, Billotti said that his father’s vague suggestion to various people that he would make a lot of money from the photos implicated the trustworthiness of his claims. However, the Court found that an unknown agent’s unknown words to the decedent were not trustworthy, or sufficiently trustworthy to allow them to be heard by a jury. Further, the terms were indefinite, without any written contract or even a confirming text or other written memorialization of the agreement. Thereby upholding the trial court’s barring of them, and ultimately granting summary judgment.

The key takeaway is memorializing agreements of whatever scope, size, or shape. Even a contemporaneous text message agreeing to the fact of the agreement would go far towards either establishing a meeting of the minds or, at least, the trustworthiness as to claims that the agreement existed in the first place.

Expert Required for Plaintiff to Establish a Hotel’s Standard of Care for Her Slip and Fall from a Leaking Toilet

In late December 2020, while her husband gambled at Borgata’s Atlantic City casino, Sherry Singh entered the couple’s room, took off her shoes, walked into the bathroom, and slipped on a puddle of water. Singh sued Borgata for negligence, alleging it failed to keep the room safe for guests. After discovery, Borgata filed a motion for summary judgment, arguing Singh needed an expert to establish the standard of care for maintaining rooms in a large hotel. The issue in Singh v. Borgata Hotel Casino & Spa, 2026 N.J. Super. Unpub. LEXIS 1815 (App. Div. Aug. 4, 2026) was whether a plaintiff must present expert testimony to establish a large hotel’s standard of care for inspecting and maintaining its bathrooms.

The 700-room Borgata produced a work order tracing the water to a leak in the feed hose under the toilet’s tank. The room had last been occupied six days earlier, but a maintenance log showed no prior issues. Borgata normally inspected vacant rooms under a preventative maintenance program, but had suspended the program during COVID-19 and hadn’t reinstated it until after the accident.

Borgata argued that without an expert, Singh couldn’t establish an industry standard for keeping rooms in proper condition, or show that anything Borgata did breached that standard. Singh countered that New Jersey administrative regulations imposed a duty requiring hotels to keep “all parts of the premises” free from hazards and all toilets in working order. The motion court agreed with Borgata, reasoning that Singh had no basis to tell a jury what Borgata’s duty was or how it was breached. Moreover, even if the regulations applied, they didn’t establish Borgata’s inspection responsibilities or how they’d been violated. Singh appealed.

On appeal, Singh argued Borgata owed the ordinary common law duty any business owes its invitees: reasonable care to keep the premises safe, including sending an employee to inspect a vacant room for hazards before a new guest arrives. She argued a leaking toilet is neither “esoteric nor complex” enough to require expert testimony. The Appellate Division disagreed. Managing a 700-room hotel, it held, is esoteric and beyond a lay juror’s common knowledge and that without an expert’s guidance, a jury would have to speculate as to the duty a hotel owes its guests under these circumstances. Singh’s failure to provide an expert was fatal to her claim.

The Court also rejected Singh’s position that the regulations established a duty. The Court held that while the regulations dictate the condition rooms must be in, they say nothing about how often rooms must be inspected. Finally, the court found Borgata lacked constructive notice of the leak. Singh argued that the absence of notice didn’t excuse Borgata’s duty to inspect. The Court held otherwise: notice remains an independent element of any premises liability claim, and Singh needed to show how long the condition existed for a jury to assess whether Borgata had a reasonable opportunity to fix it. The court contrasted this case with situations involving circumstantial evidence of duration, like flattened, wet leaves on an outdoor step, against situations where duration is simply unknowable, like dog feces on a train platform that could have been there minutes or hours. With no comparable evidence here, any finding on how long the toilet had leaked would be pure speculation, giving the court a third independent ground to affirm.

One key takeaway is that a standard of care does not necessarily scale. While a leaking toilet and wet floor in a small hotel or business setting may be an obvious condition and less “esoteric” as to require an expert or to create an issue of notice, the maintenance responsibilities of a 700-room hotel will put that duty beyond the knowledge of an average juror. Further, a regulation does not directly equate to a legal duty, but a plaintiff must show how the duty set by the regulation meets the legal standard for a tort duty. Finally, notice remains a separate, independent element of a liability claim, and even a clear duty and a clear breach won’t sustain a premises liability claim without proof of actual or constructive notice.

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.

Capehart Blogs

Jurisdiction
Appellate Division Affirms Judge of Compensation in Dismissing New Jersey Medical Provider Application Where Injured Worker Was Injured, Hired, and Worked in New York
Firm News
Shareholder Presents at North Jersey Workers’ Compensation Education Seminar
Liability
Letter to Public Entity Lacking Critical Information Does Not “Substantially Comply” with Notice of Claim Requirements

Subscribe to Blog Updates

Choose the blogs and newsletters you would like to receive.

Subscribe

Categories

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage discovery dismissal Diversity & Inclusion Committee duty of care employees employers Employment Law evidence government records insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Pennsylvania Law personal injury premises liability Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter