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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Snow Tubing is the Equivalent of Skiing Under the New Jersey Ski Act

At the end of December, 2020, Plaintiff Martin McGuinniss took his family snow tubing at Campgaw Mountain, operated by Defendant Ski Campgaw Management, LLC (Campgaw). After a few runs, McGuinniss went down the hill and struck a bunched-up rubber mat, “catapulting” him into the air. He landed on his left shoulder and fractured his collar bone. The question in McGuinniss v. Ski Campgaw Mgmt., LLC, 2026 N.J. Super. LEXIS 46 (App. Div. Apr. 20, 2026) became whether snow tubing was an activity similar to skiing that protected Campgaw from Plaintiff’s personal injury suit under the Ski Act.

The tubing hill at Campgaw Mountain was divided into several lanes separated by berms of snow. Positioned at multiple points along each lane were rubber deceleration mats, equipment the ski industry accepted as an effective method of moderating speed on tubing hills. Further, Campgaw had employees positioned at the top and bottom of the hill who communicated by radio when each lane was clear for the next tube to go down.

Upon arriving at the mountain, McGuinniss signed a release where he acknowledged the inherent dangers of snow tubing. On his final run, McGuinniss was mid-hill, about 20 to 30 feet away from the first mat when he saw it had bunched up. Moving too fast to stop, he hit it, sending him into the air. After landing, he went home, returning to the mountain the next day to fill out a report. There had been 45 prior reports of accidents on the hill in the previous 2 years, but none of them were due to bunched-up mats. McGuinniss sued Campgaw for their negligence and breach of their duties under the Ski Act in causing his injury.

The New Jersey Ski Act (N.J.S.A. 5:13-1 to -11) limits the liability of the operator of a ski facility and protects it from the risks inherent in the law’s listed activities. Arising out of the uncertainty ski resorts faced after a 1970’s decision opened them to greater liability for injuries on their slopes and raised the costs of insurance, the Ski Act limited an operator’s liability to one of the narrowly defined duties in the Ski Act. Those duties required the operator to remove obvious, man-made hazards. It also protected an operator for clearly marked  equipment necessary for the operation of the ski area, and only then would the operator be liable if they knew or should have known about such a condition and had time to correct it. The Ski Act’s language defined an “operator” as one who welcomed paying customers to “ski . . . or operate skimobiles, toboggans, sleds, or similar vehicles.”

After discovery, Campgaw moved for summary judgment, asking the trial court to dismiss Plaintiff’s complaint under the Ski Act. McGuinniss argued that the Ski Act did not apply to snow tubing and, under a basic theory of negligence, Campgaw failed to observe and inspect the placement of the deceleration mats which created an unreasonable risk. The trial court agreed with McGuinniss that the Ski Act did not govern snow tubing. The court focused on control, finding the free-sliding snow tubes were “fundamentally different” from skiing or sledding because snow tubes lacked steering mechanisms or any ability to control their speed. Campgaw appealed.

The Appellate Division reversed the trial court and specifically held that snow tubing fell under the Ski Act because a snow tube is a “similar vehicle” defined in the Ski Act. The Court read the “similar vehicle” phrase broadly to include those used in snow-based recreational activities because each of them involved moving over snow-covered terrain and were subject to the same variables and inherent risks of winter activities. The Court disagreed with the trial court’s focus on controllability because nothing in the Ski Act made any reference to whether any of the listed vehicles’ inclusion relied on the issue of control; indeed, many sleds and toboggans lack braking or steering mechanisms. As a result, despite Plaintiff’s arguments, snow tubing was not so “fundamentally different” from these other activities, warranting inclusion under the Ski Act.

Applying the Ski Act to facts of McGuinniss’ case, the Court focused on Campgaw’s duty to remove man-made hazards that was limited to those hazards they knew or should have known about and had a reasonable opportunity to fix. However, because McGuinniss himself said that he only saw the bunched-up mat when he was only 20 to 30 feet away and moving quickly, he could not establish Campgaw’s employees, who were located at the top and bottom of the hill knew about the condition – they had told him the lane was clear when he began his run. Also, despite prior accidents on the hill, McGuinniss could not show that any of them were caused by bunched-up mats, dooming his claim under the Ski Act.

Broadly-Read Insurance Policy Exclusion Allows Insurer to Deny Coverage for Pharma Company Due to Chairman’s Alleged Self-Dealing Scheme by New Jersey Supreme Court

Mist Pharmaceuticals (Mist), sought coverage from Mist’s insurer, Berkley Insurance Company (Berkley) under a Directors and Officers (D&O) policy for the damages and costs of defense arising out of two lawsuits. Those lawsuits alleged Joseph Krivulka, Mist’s Chairman, engaged in self-dealing between Mist and other entities he controlled. Berkley denied coverage to Mist, stating that coverage was not available to Mist arising out of allegations in the suits due to Krivulka’s roles with other entities. The primary question in Mist Pharms., LLC v. Berkley Ins. Co.,  2026 N.J. LEXIS 397 (2026), before the New Jersey Supreme Court was whether Berkley properly denied coverage for losses “in any way involving” wrongful acts by Krivulka serving in a capacity for any other entity than Mist.

Mist entered a D&O policy with Berkley in 2014 that covered Mist, including Krivulka in his role as Chairman, for any claims made against them for any alleged “Wrongful Act.” A “Wrongful Act” to mean any allegations of a breach of duty or neglect against either Krivulka, in his capacity as Chairman, and Mist. The policy included coverage for damages and costs of suit, but not to any claim arising out of damages not covered, or excluded, by the policy. One such exclusion, the “Capacity Exclusion,” stated that Berkley would not have to make any payments for a claim against Mist or Krivulka based upon or arising out of “or in any way involving any Wrongful Act” by Mist or Krivulka (in his capacity as Chairman).

An outside LLC filed the two lawsuits in question against Mist and Krivulka alleging that Akrimax Pharmaceuticals (Akrimax), a pharmaceutical company Krivulka formed in 2007, which he operated, and of which the LLCs were members, engaged in a scheme to divert funds from Akrimax to Mist. Akrimax was not an insured under Mist’s policy with Berkley.

Shortly after receiving the suit in late 2015, which named Mist, Krivulka, and several other Mist-related entities Berkley did not insure (including Akrimax and other entities owned or controlled by Krivulka), Mist submitted the claim to Berkley. After initially providing partial coverage, an ultimate decision by Berkley disclaimed coverage entirely. Causing Mist to file suit.

Mist advanced several claims against Berkley, primary amongst them was that Berkley misinterpreted the Capacity Exclusion. Mist argued that the D&O policy should cover “dual capacity” situations where an officer acts on behalf of both an insured and an uninsured entity. Berkley countered, arguing the plain meaning of the Capacity Exclusion barred coverage to Mist because all of the underlying allegations arose out of Krivulka’s self-dealing and misconduct as a director of Akrimax, an uninsured entity, not Mist.

The Supreme Court agreed with Berkley, finding that the underlying lawsuits fell squarely within the Capacity Exclusion. It determined that the repeated “or” in the exclusion indicated the exclusion should be read in the disjunctive, meaning that each term separated by an “or” is, on its own, sufficient to trigger the exclusion and deny coverage. That meant the phrasing “based upon” or “arising out of” or “in any way involving any Wrongful Act” should be interpreted very broadly. Here, there are allegations against multiple Krivulka-controlled entities, all of which share one common feature – Krivulka’s role as a director of an entity not insured by Berkley. Each allegation against Mist, or Krivulka as an insured through Mist, was related to his capacity as a member of an uninsured entity. Therefore, each of the allegations asserted against Krivulka, and therefore against Mist, implicate conduct outside of the scope of his covered capacity as the Chair of Mist, and thus excluded from coverage. The Court further disagreed with the “dual capacity” claim, stating that even if Krivulka was acting on behalf of Mist, the “scheme” allegations arose out of his role at Akrimax – an entity Berkley did not insure, and all of the claims against Mist or Krivulka were related to his leadership of Akrimax.

New Jersey Supreme Court Unanimously Holds Future Medical Costs Still Payable by PIP are “Collectible” and Inadmissible at Trial

After she was injured in a car accident in 2016, Lakita Murray applied for Personal Injury Protection insurance benefits (PIP) that would pay her all of her post-accident medical bills up to $250,000. Her treatment after the accident did not hit that limit, nor did her medical expert’s opinion of what he anticipated to be her future medical expenses. After the trial court allowed a jury to hear the evidence of her future medical expenses, leading to a significant award in her favor, the appeals process led all the way to the New Jersey Supreme Court where, in Murray v. Punina, 2026 N.J. LEXIS 387 (2026), in an opinion handed down earlier this week, the issue was whether Murray’s evidence of future medical expenses is admissible at trial when those projected expenses would not exceed her PIP coverage limits.

Under New Jersey law, PIP benefits are intended to promptly pay the medical expenses of someone injured in a motor vehicle accident, regardless of whether the injured person was at fault (hence it’s official but less common name, “No-Fault” insurance). A caveat of PIP benefits under New Jersey law is that any amount “collectible” under PIP, that is any amount that falls within the limits of an injured person’s PIP coverage, may not be presented as evidence of damages when that plaintiff sues for their injuries at trial.

After her accident, the cost of Murray’s treatment before trial did not exceed her PIP limits of $250,000. In a deposition prior to trial, Murray’s expert opined that her future medical expenses – treatment Murray stated she would like to have but did not have prior to trial – would amount to between $42,000 and $160,000. Prior to trial the defendant filed a motion with the court to remove that testimony arguing that evidence of these expenses is inadmissible under the PIP law. The trial court denied the motion and admitted the expert’s opinion of how much her future medical treatment would cost. The jury found in Murray’s favor and awarded her $100,000 in future medical expenses. The defendant appealed on three basic facts: 1) Murray was eligible for $250,000 in PIP benefits, 2) those benefits had not been exhausted prior to trial, and 3) the expert’s projected future expenses would not exhaust the remainder of Murray’s PIP benefits. The Appellate Division reversed the trial court, finding that because PIP had not been exhausted, the expert’s proposed future medical expenses were still “collectible” under PIP and, thus, inadmissible at trial.

Murray asked the Supreme Court to review this opinion. She claimed future medical expenses are not “collectible” or “paid” as outlined in the law because they had not yet been incurred, and if they had not been incurred, they were not yet “collectible.” The defense argued  that any evidence of medical expenses, past or future, that do not exceed PIP limits are either “paid” or “collectible” under PIP and are thus inadmissible at trial.

The Supreme Court considered the arguments and agreed with the Appellate Division and defendant that future medical expenses that were “collectible” by PIP were inadmissible in a personal injury trial. The Court stated that this conclusion best reflects what the legislature clearly intended in passing the No Fault Act in that any amounts “collectible or paid” under PIP were inadmissible as evidence against the tortfeasor. Further, the Court disagreed with Murray’s position in that categorizing future expenses as “unpaid” and thus admissible as evidence, would allow a Plaintiff to defer treatment until after trial, and unfairly expose a defendant to greater exposure. Perhaps most importantly, the Court clearly voiced its distaste and rejection of a “double recovery,” or permitting a plaintiff to collect twice on future medical bills. It reasoned that if a plaintiff were allowed to show a jury future medical expenses that PIP could still pay, the Plaintiff would be able to recover those costs in the form of a jury verdict, and again from PIP. This, the Court determined, was not the purpose or intent of the PIP law.

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