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

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.

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.

Capehart Blogs

Firm News
Diversity and Inclusion Committee Host CLE On Women’s Legal Rights
Litigation
Mistaken Belief That Library Was a State Entity Does Not Meet Tort Claim Notice Extraordinary Circumstances Threshold
Evidence
Hearsay Statements of Future Payment for Album Cover Photos Sink Claims Against Bruce Springsteen

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 insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Open Public Records Act 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