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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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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.

Personal Injury Complaint Dismissed Against County Due to Failure to Comply with Notice Provisions of Tort Claims Act

On August 26, 2020, Plaintiff Rachel Kasuch was injured while riding her bicycle in Middlesex County Greenway, owned and operated by Defendant County of Middlesex. As she rode on a path, her foot caught on a stabilizer leg of a front end loader being operated by a County employee. This contact caused her to fall over her handlebars and suffer injuries. The issue in Kasuch v. County of Middlesex, 2026 N.J. Super. Unpub. LEXIS 790 (App. Div. Apr. 20, 2026), was whether the lawsuit should be dismissed due to Plaintiff’s failure to provide proper notice of her claim to the County, as required by the Tort Claims Act (“TCA”).

To be able to sue a New Jersey public entity for an injury, the injured party must first provide written notice of the claim to that public entity within 90 days of the incident. This notice is a prerequisite to filing a lawsuit against that entity. N.J.S.A. 59:8-3 recites the basic information which must be included in that notice of claim. If the individual fails to meet the strict requirements of this law, the claimant could argue that there was “substantial compliance” with the notice requirement. That was the argument made by plaintiff in this case.

At the time of the accident, a County employee was clearing brush from a creek along a paved County path. The employee was using a yellow loader with a backhoe and front bucket parallel to the creek. One of the loader’s tires was on the stone along the path and the other tire was on the paved path, partially obstructing it. The employee extended the loader’s two stabilizer legs, which were low to the ground.

According to Plaintiff, she saw the yellow loader but did not see the stabilizer leg on the path. She assumed she could ride past it. As she rode past the loader, the pedal of her bicycle caught on the extended stabilizer leg. That caused her to fall over her handlebars and fall to the ground.

A County employee filled out an operations report which described the accident, her name, address, and driver’s license number. It mentioned that plaintiff suffered a cut chin and dizziness. There was also a police report prepared which included Plaintiff’s name, address, date of birth, and home telephone number.

After the accident, the defendant’s third party administrator’s adjustor reached out to Plaintiff to obtain personal information, asking for her social security number, gender, and date of birth for purposes of fulfilling Medicare reporting requirements. Plaintiff refused to provide this information. Thereafter, the adjustor received a letter of representation from Plaintiff’s attorney advising of his representation and providing a copy of the police report, which the adjustor already had. But, the letter failed to describe Plaintiff’s injuries, demand a specific amount of damages, or set forth a theory of defendant’s liability for plaintiff’s injuries.

After the expiration of the 90 day notice of claim period, not receiving a notice of claim, the adjustor closed his file. In response to a February 17, 2021 telephone inquiry made to the adjustor by the attorney whether he had received a notice of claim from the plaintiff, the adjustor sent out a denial letter.

On November 2, 2021, plaintiff filed a lawsuit against the County, asking for damages due to her accident. She alleged in her complaint that she had filed a notice of tort claim but did not identify the entity upon which the notice of claim was served. However, in discovery, plaintiff produced a copy of the notice of claim, showing that it had been filed with the State Department of Treasury. The notice identified the accident as occurring in Middlesex County Greenway and the responsible agency as Middlesex County. Yet, plaintiff produced no evidence that she filed the notice with the County.

Thereafter, the County filed for summary judgment on the basis that plaintiff failed to file a notice of claim with the County. Plaintiff opposed the motion, arguing that the police report and her attorney’s letter to the adjustor constituted “substantial compliance” with the notice requirement of the Tort Claims Act. The motion was initially denied without prejudice and the judge permitted the parties to conduct discovery.

After discovery, the County then re-filed its summary judgment motion on the notice of claim issue. Now plaintiff argued that the County must have received a copy of the notice from the State because the County conducted an investigation. In the alternative, she argued that she substantially complied with the notice requirement. The trial court accepted the latter argument and denied the motion.

However, thereafter, the County filed a summary judgment on the merits of the case, arguing that the temporary parking of the loader along the paved path did not constitute a dangerous condition and that plaintiff did not act with due care to avoid the loader as she attempted to pass it. That argument the trial court accepted and granted summary judgment, dismissing the lawsuit.

That decision prompted the plaintiff to appeal the dismissal of her lawsuit to the Appellate Division. The County cross-appealed, arguing that its prior motion to dismiss for failure to comply with the notice requirement of the TCA should have been granted.

As it turns out, the Appellate Division agreed with the County that its motion on the notice requirement should have been granted, reversing the trial court’s denial of that motion. Hence, it did not reach the plaintiff’s appeal on whether summary judgment should not have been granted on the merits, finding it be moot

The Appellate Division noted that the Tort Claims notice provision serves several purposes. It permits the public entity time to review and settle meritorious claims prior to a lawsuit being filed, it provides prompt notification of the claim to adequately investigate the facts and prepare a defense, it affords the public entity a chance to correct the conditions, and informs the public entity in advance as to the indebtedness or liability that it might expect.

The notice of claim was due 90 days from the accrual of the incident, which here made it due by November 24, 2020. While plaintiff addressed her notice of claim to the State Department of Treasury, there was no evidence that she filed it with the County. Filing with the State Department of Treasury would not constitute filing this notice with the County. It must be filed directly with the specific entity against whom the claim is being made.

Next, the Court considered whether the written notification by plaintiff’s attorney constituted “substantial compliance” so as to fulfill the notice requirement. The Appellate Division found it lacking.

The notice must include basic information, including the person’s name and address. That requirement was fulfilled with the attorney’s letter and the police report.

It must identify the date, place and circumstance of the incident giving rise to the claim and must include the name of the public entity or employee causing the injury or damage, if known. The Court found that requirement also fulfilled.

But the Appellate Division found that the letter and police report did not provide “a general description of the injury, damage or loss incurred,” nor did it indicate “the amount claimed, including the estimated amount of any prospective injury, damage or loss, insofar as it may be known.”

The Court found that plaintiff claimed substantial injuries beyond a lacerated chin. Plaintiff failed to notify the County of the extent of her injuries. As a result, the County was unable to assess its indebtedness or potential liability. In addition, neither the operations report, the police report, nor the attorney’s letter identified plaintiff’s theory of the County’s liability for her claimed damages.

Further, the Court pointed out that the plaintiff failed to provide any explanation as to why she completed the State’s claim form, but failed to file with the County, the correct entity. The Appellate Division found that “[f]iling the incorrect form with the incorrect entity does not constitute a series of steps taken to comply with the notice provisions of the TCA.”  Nor did she provide any reasonable explanation why her attorney’s letter did not describe her injuries, quantify her damages, or set forth a theory of defendant’s liability for those damages.

The Court held that this failure to file a notice of claim prejudiced the County because “it was deprived of the opportunity to investigate and attempt to remediate a purported dangerous condition and assess and attempt to settle plaintiff’s damages claim prior to the filing of the complaint.”

Therefore, the Appellate Division concluded that the trial court’s finding that plaintiff had substantially complied with the notice provisions of the TCA was not supported by the evidence in the record. The Court reversed the trial court’s denial of the motion filed by the County based upon the plaintiff’s failure to comply with the notice requirement and remanded the matter back to the trial court to dismiss the lawsuit on that basis.

Court Upholds Oral Settlement of Personal Injury Claim Immediately Following Auto Accident

Plaintiff Ravon Hinton was involved in an automobile accident with Defendant Keyla Rivas Acosta on September 17, 2023. Immediately following the accident, Hinton offered to Defendant to settle the claim if Defendant would pay him $500 in cash. Acosta agreed to settle and, after negotiation as to the amount, paid Plaintiff $400. The issue in Hinton v. Acosta, 2026 N.J. Super. Unpub. LEXIS 806 (App. Div. Apr. 22, 2026) was whether this oral settlement agreement was enforceable so as to bar the lawsuit subsequently filed by Hinton against Acosta.

The accident happened when Hinton was walking across an intersection in Paterson and was struck by Acosta’s car. It was a dark and rainy night and Hinton was wearing dark clothing. Immediately following the accident and before police arrived Hinton told Acosta that there was no need to call the police or file an insurance claim or pursue any legal action against her in exchange for $500 in cash.

Despite that offer, Acosta contacted the Paterson police department and Officer Cesar Nunez arrived to respond to the call. Thereafter, the interaction between Hinton and Acosta was captured on Nunez’s body worn camera. In the footage on the camera, it shows Hinton repeatedly expressing his desire to accept $500 cash from Acosta. Caught on camera are the negotiations between Hinton and Acosta concerning a cash settlement for this accident in which Hinton eventually agreed to accept $400 to settle.

However, Acosta did not have that much cash and told the officer she would need to stop at an ATM to secure the funds to pay plaintiff. Hinton, Acosta, and the officer thereafter located an open ATM and, while on the officer’s camera, she withdrew the agreed upon cash and handed it to Hinton.

Despite this agreement, Hinton retained counsel who filed a civil complaint against Acosta on May 13, 2024. The lawsuit claimed that Hinton suffered serious injuries to his brain, neck, back, and knee due to the accident. Acosta’s attorney filed an answer, denied liability and included the affirmative defense of accord and satisfaction and release based upon the oral agreement between the parties as a complete defense to the lawsuit.

Defendant Acosta thereafter filed a motion for summary judgment, asking the court to enforce the oral settlement made at the scene of the accident. She used certifications from the officer and witnesses, deposition testimony from the officer, as well as his body camera video footage to support her motion.

The trial court judge granted the motion, dismissing the lawsuit. He found that the body worn camera footage and the officer’s testimony supported that the plaintiff was lucid, aware of the implications of his conduct, controlled the negotiations, and that there was clear evidence of an offer and acceptance.

This appeal ensued. Plaintiff argued that there was no meeting of the minds, that a hearing should have been held concerning its viability as a contract and plaintiff’s waiver of his personal injury claims were unenforceable because the settlement agreement occurred within 30 days of the accident in violation of N.J.S.A. 17:29B-15.

The Appellate Division noted that settlement agreements “are encouraged as a matter of public policy because they promote the amicable resolutions of disputes and lighten the increasing load of litigation faced by … courts.” These types of agreements are governed by principles of contract law. They are freely enforceable unless there is fraud or other compelling circumstances that should bar their enforcement.

To be valid, a settlement requires an offer and acceptance. And, the terms of the agreement “must be sufficiently definite [so] that the performance to be rendered by each party can be ascertained by each party with reasonable certainty.” The Court further noted that once the parties agree on essential terms and show an intent to be bound by those terms, then they have created an enforceable contract.

Here, plaintiff argued that he never accepted defendant’s offer to settle and that he did not have the requisite capacity to enter into an agreement. He also argued that the body worn camera footage was ambiguous.

The Appellate Division disagreed with plaintiff’s position. The Court found that the officer’s body worn camera footage showed that the parties voluntarily entered into a settlement agreement. That footage showed that a valid agreement was reached. Further, the footage showed that the plaintiff was not pressured into this settlement. To the contrary, it showed that Hinton repeatedly stated that “he just wanted his money” and “wanted to go home.”

The Court also rejected the argument that N.J.S.A. 17:29B-15 applied to these circumstances. Under this statute, no insurance release or waiver of rights by a claimant to compensation for personal injury or wrongful death, arising from an accident, executed within 30 days is enforceable without a written disclosure informing the claimant that he may seek legal representation.

The Appellate Division found that this statute only applied to a waiver or release with an insurance company and that it did not apply to private party settlements – which is what happened in this case. Hence, the Court found this statute to be inapplicable.

Thus, the Appellate Division upheld the trial court’s decision to dismiss this lawsuit based on the oral agreement reached between Hinton and Acosta at the scene of the accident.

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