logo-njlitigationblogcom

Litigation Blog

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

View OTHER BLOGS

Coverage for Auto Accident Denied Because Driver Was Not Permissive User

This matter concerned a coverage dispute as to an automobile accident between plaintiff Carrie and Ka-Sandra Allen and defendant Christian Kirch.  While driving his sister-in-law’s vehicle, defendant Kirch rear ended the Allens’ vehicle.  The vehicle operated by Kirch had been insured by New Jersey Manufacturer’s Insurance Company (NJM).  The issue in Allen v. Kirch, 2026 N.J. Super. Unpub. LEXIS 578 (App. Div. Mar. 24, 2026) was whether NJM properly denied coverage for the automobile accident because Kirch lacked actual or implied permission to use his sister-in-law’s vehicle when the accident occurred.

On the day of the accident, the owner of the vehicle, Kaitlynn Doheny, drove to her then-estranged husband Sebastian Kirch’s home so their children could visit with him.  She parked in the street and, upon entering the house, she placed her keys, her phone, and her purse on the counter because that is where “everyone put their keys when they came in the house.”  Shortly after she arrived, she laid down with her son to take a nap.

Sebastian later woke her up and advised her that Christian, Sebastian’s brother who was living with him at the time, was involved in a collision while driving Kaitlynn’s car.  According to Christian, he was driving her car to buy some “stuff”, which apparently included diapers for the children, when he struck the rear of the Allens’ car, which was stopped at a yield sign.  The accident resulted in the Allens being injured.

Before taking her car, Christian stated that he called Kaitlynn but she did not answer her phone.  Christian, who was originally from Peru, explained that “in my country, if you borrow a car from a relative it won’t be an issue but since I didn’t know so I just took her car because I needed to buy some stuff.”

Kaitlynn testified in a deposition that she was “friendly” with Christian but not close and she never resided with him.  Further, Christian never drove her car previously.  She had previously driven Christian to work probably less than five times. 

After the Allens filed their personal injury lawsuit against Christian and Kaitlynn, NJM sent a letter declining coverage under Kaitlynn’s policy for Christian’s operation of Kaitlynn’s vehicle.  It cited to the exclusion for liability coverage which stated as follows:

We do not provide liability coverage for any insured:. . . using a vehicle without a reasonable belief that such insured is entitled to do so.  This Exclusion. . . does not apply to a family member using your covered auto which is owned by you.

The policy defined the term family member as “a person related to you by blood, marriage, civil union under New Jersey law or adoption who is a resident of your household.” 

Following this declination, St. Paul Protective Insurance Company (“St. Paul”), the insurer of the Allens’ vehicle, filed a declaratory judgment action against NJM, seeking a declaration that NJM was required to insure Christian in the negligence action and included the Allens, Christian, and Kaitlynn as interested party defendants.

After discovery was exchanged, both the Allens and St. Paul filed for summary judgment, arguing that Christian was a permissive user under Kaitlynn’s insurance policy and, therefore, NJM was required to defend and insure him.  NJM cross-moved for summary judgment.  It argued that it was not required to defend Christian or cover any loss resulting from his driving, relying upon the policy’s permissive use exclusion.

After hearing the arguments of counsel, the trial court denied the Allens and St. Paul’s motions and granted NJM summary judgment.  It found that NJM was not required to defend or insure for the damages resulting from the accident because Christian was not a covered user of Kaitlynn’s vehicle and “Christian had no reasonable belief Kaitlynn permitted his use of her car” on the date of the accident.

Further, the court found the “initial permission rule” inapplicable because there was no evidence that Kaitlynn had ever in the past granted Christian authorization to drive her car or established a regular arrangement by which Christian could infer standing permission.  It explained that there was no evidence to suggest that Christian could have reasonably believed he had permission and rejected his claim that Christian’s prior experience in Peru would create that reasonable impression in these circumstances.  Further, Christian did not qualify as a covered family member because he resided at a different address and was Kaitlynn’s brother-in-law.

Following this decision, the Allens appealed the summary judgment in favor of NJM, arguing that they had demonstrated that Christian had implied permission to drive the vehicle, mandating coverage under Kaitlynn’s policy.  Or, at the minimum, they argued that there were material issues of fact existing regarding the reasonableness of his belief that he was permitted to borrow her vehicle, which should have resulted in the denial of the summary judgment motion.

The Appellate Division cited to the Supreme Court’s clarification of the statutory “use” clause which requires coverage for only permissive use of an automobile.  It quoted the Supreme Court language that “if a person is given permission to use a motor vehicle in the first instance, any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy.” 

Thus, the threshold permissive use inquiry evaluates whether the initial use of the vehicle was with the “consent, express or implied, of the insured.”  Permissive use may arise from “a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent.”  It can also be shown by “a pattern of permitted use of the vehicle, which may give rise to an inference that the owner gave his consent to use on a subsequent occasion.”

In applying this law, the Appellate Division reviewed the record and agreed with the trial court that any damage caused by Christian’s use of the vehicle was not covered under Kaitlynn’s policy.  After reviewing the record, the Court noted that there was no suggestion of Christian’s prior use of Kaitlynn’s vehicle, authorized or otherwise.  The evidence showed only that she drove him to work less than five times.  Thus, the Appellate Division found that “any argument Christian drove the vehicle subsequent to some prior expressed authorization or in continuation of initially authorized use belies the record and fails from the outset.”

Further, the Court considered the events of that day.  It concluded “no confluence of events on the day of the accident suggests Christian had implied permission to use the car.”  The Appellate Division noted the evidence that Christian took Kaitlynn’s keys from the counter without authorization.  There was no evidence that she consented or asked Christian to take her car. To the contrary, Christian admitted that he attempted to call her to ask permission to use her car, did not reach her, yet he took the car anyway.  Thus, the Court was satisfied that no jury could find these actions constituted implied permission.

Further, the Appellate Division rejected the Allens’ claim that Christian held a reasonable belief to drive the car, or, in the alternative, that he was a family member covered by the policy.  The term “family member” did not apply because Christian was not a “resident” of Kaitlynn’s household.  There was no evidence that their lives were interdependent or comingled in any significant manner.  Christian did not reside in the same household with Kaitlynn.  To the contrary, he resided with his brother, from whom Kaitlynn was separated and living apart on the day of the accident.  Therefore, the Appellate Division found that the “family member” exception did not apply.

Additionally, the Court rejected the reasonable belief argument.  It found that the record did not support a viable claim that Christian possessed the “reasonable belief” that he was free to take and operate Kaitlynn’s car that day.  The Appellate Division agreed with the trial court that Christian’s claim that in Peru, members of families freely use each other’s vehicles and that he was using the car to purchase diapers for her children, did not constitute a “reasonable belief” that he had permission to use Kaitlynn’s car.  Thus, the Court found that NJM “fairly denied coverage” for damages resulting from Christian’s driving and that summary judgment was properly entered in favor of NJM.  Hence, the Appellate Division affirmed the trial court’s decision, granting summary judgment to NJM. 

Compensatory Damages Are Not a Binary Choice and Must Fairly Compensate a Plaintiff

In September, 2022, a driver of a truck owned by Defendant G&E Services, LLC (“G&E”) accidentally ran into a commercial building owned by Plaintiff Long Valley Realty Holding, LLC (“Long Valley”). Long Valley sued G&E for the building’s damage caused by the impact, including visible cracking to the building’s bollards, brick facade, adjacent sidewalk, and damage to portions of the roof. The two parties agreed that G&E was liable for the damage and proceeded to a bench trial on the issue of the value of the property damage. Based upon the opinions of two experts, an engineer and a licensed building contractor, Long Valley claimed its damages, the cost to repair the building, was $112,000; with no supporting evidence, G&E argued that cost was only $3,650. The trial court found Long Valley did not sufficiently prove the cost of the damages and awarded Long Valley damages of the lower amount. Long Valley appealed. The issue before the Appellate Division in Long Valley Realty Holding, LLC v. G & E Servs., LLC, 2026 N.J. Super. Unpub. LEXIS 461 (App. Div. Mar. 13, 2026), was whether the trial court properly determined the lower damages award.

At trial, Plaintiff’s engineer presented his opinion as to the scope of the damage, admitting that some of the condition of the building pre-existed the accident. Plaintiff’s contractor provided an estimation of replacement costs and repair costs, including a replacement of the entire roof, concrete work to the bollard and sidewalk, and structural repair to the cracked facade. Though agreeing that the roof had been towards the end of its useful life, his analysis evaluated the cost of these repairs at $112,000. G&E provided no expert testimony, and proposed the $3,650 cost of the repairs with no source of support. The trial court expressed concern that neither of Long Valley’s experts itemized the cost to perform the proposed repairs, and there was some disagreement between the two as to what damage was caused by the accident. Further, the court found that without an itemized list of repairs and their proposal of one gross figure of $112,000, it was forced to speculate how to apportion that full figure amongst the roof, the bollards, the facade, and concrete. As a result, though admitting that a higher award was likely correct, because it only had two values on which to rule, the trial court awarded Long Valley $3,650 in damages – finding that Long Valley’s full $112,000 damages claim was a “severe overreach.” The court likened its determination to a professional baseball arbitration, where the two sides propose a figure, and the arbitrator must pick one.

The Appellate Division disagreed. Though handcuffed by the limited review of a trial court’s finding of fact in a bench trial, it found that and because compensatory damages are meant to compensate a plaintiff for their actual injury or loss, while the plaintiff must provide a reasonable estimation of damages, that estimate does not need to be certain. It decided that when a plaintiff clearly sustained some damages, any uncertainty as to the amount of those damages will not preclude them from a reasonable recovery. In this case, where neither side proposed a repair estimate that contradicted that of Long Valley, indeed G&E did not even provide one at all, the trial court’s reliance on G&E’s lower figure was unreasonable. Further, the appellate court disagreed with the baseball arbitration analogy, particularly when G&E’s valuation lacked any foundation may have complicated the court’s ability to analyze the value of the loss, there are methods to arrive at a reasonable estimate; there was no “binary choice” between one or the other. However, because it expressly noted it was not dictating a result, the Appellate Division stopped short of awarding Long Valley its full valuation of damages. Instead, the court vacated the trial court’s award of $3,650 and asked it to consider the evidence in front of it, and nothing else, and arrive at an appropriate calculation of damages.

Plaintiff’s Lawsuit Against Municipality Dismissed Due to Failure to Prove Constructive Notice of Alleged Dangerous Condition

Plaintiff Margaret Kelly, as Guardian ad litem for Rebecca Kelly, filed a lawsuit on behalf of Rebecca due to an accident at her parent’s condominium complex.  Rebecca was a guest of her parents at Back of Bay Condominium Association in Wildwood, when she fell in a trash collection and utility common area exterior to the condominium unit owned by her parents.  She fell and suffered serious injuries when she stepped on one of six water meter pits in the area, causing the lid to dislodge and her foot to fall into the pit.  The issue in Kelly v. Back of Bay Condominium Association, Inc., 2026 N.J. Super. Unpub. LEXIS 291 (App. Div. Feb. 19, 2026) was whether the City of Wildwood defendants could be held liable for her fall due to the condition of the loose pit cover.

Rebecca was a disabled individual with a condition known as “brittle bone disease.”  The accident happened when she was carrying a recycling container, attempting to place it in the area of the water meter pits, when she fell.  She stepped on one of the water meter pits and, due to the loose lid, it dislodged and her foot fell into the pit.  She suffered serious injuries to her left foot and ankle, requiring surgery.  She also suffered an injury to her shoulder.  She needed surgery on both her left foot and her shoulder due to her fall.

Within a few weeks of her accident, the Senior Meter Reader and Water Inspector for the City of Wildwood inspected the condominium’s utility area to observe where Rebecca fell.  He found that the lid had a frozen nut and it would not allow the lid to be locked down by whoever was there last.  As a result, he took it away, put it on his truck and put a new lid on it.

Plaintiff filed a lawsuit against multiple defendants, including the condominium association, the City of Wildwood, the City of Wildwood Municipal Utility Authority, City of Wildwood Water Utility, and City of Wildwood Sewer Utility.  Plaintiff settled out with some defendants or reached voluntary dismissals as to others, but not the Wildwood defendants. 

In discovery, it was disclosed that the City had transmitters located on top of the lid and that the water meter pit and equipment in question was last replaced some years before the accident.  The testimony from the Water Director for the City was that the water meter pit lids had software or machines that pick up the readings from the meter and transfers the information remotely to staff as they ride up and down the street.  Thus, remote meter reading eliminated the need for quarterly on-site inspections of each meter and was both faster and more effective.  The meters were read electronically on a quarterly basis.

After the conclusion of discovery, the Wildwood defendants filed for summary judgment, seeking dismissal of all claims.  In response to the motion, plaintiff conceded that there was no evidence of actual notice of the alleged dangerous condition posed by the loose lid.  However, plaintiff argued that there should be constructive notice of the alleged dangerous condition.  The trial court disagreed and granted summary judgment.  This appeal ensued.

The Appellate Division noted that, under the Tort Claims Act, a public entity may only be liable for a personal injury caused by the dangerous condition of its public property.  Among other elements that a plaintiff must prove, the plaintiff must prove that the public entity had actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to take measures to protect against the dangerous condition.

Because plaintiff conceded that the Wildwood defendants lacked actual notice of the dangerous condition, the Appellate Division only analyzed whether plaintiff had established constructive notice under the Tort Claims Act.  The Court concluded that plaintiff failed to establish that the Wildwood defendants had constructive notice.  Plaintiff argued that under the City’s ordinances, the internal policies on lid safety and the replacement of the frozen nut after the accident supported “a reasonable inference that unsafe conditions were regularly observable and existed for a sufficient period of time to establish constructive notice.”

The Appellate Division pointed out that although the Wildwood defendants conceded that there was a loose pit lid and that such condition presented a danger, it is well settled that “the mere existence of an alleged dangerous condition is not constructive notice of it.”  There were no proofs showing that Rebecca, her family members, or any of the condominium’s residents had reported or complained about a loose or unsecured meter pit lid prior to the fall.  As the trial court noted, there was no information as to how long the lid was loose, whether it was for an hour, a week, a month or a year. 

Plaintiff also argued that constructive notice may be imputed to the Wildwood defendants based upon their duty to “inspect, detect and correct missing and loose lids.”  The Appellate Division agreed with the trial court judge that this argument was a misinterpretation of the applicable law and would essentially impose strict liability on the part of the Wildwood defendants for any injuries that arose from any sort of dangerous condition that existed on their property.

The Court pointed out that such an interpretation of the Tort Claims Act would be antithetical to its statutory purpose “to provide general immunity for all governmental bodies except in circumstances where the Legislature has specifically provided for a liability.”  Thus, the Appellate Division agreed that the existence of a general duty, policy, or training for public utility employees was insufficient to satisfy the notice requirement of the Tort Claims Act under the circumstances presented. 

The Appellate Division also addressed whether the City’s conduct was “palpably unreasonable” in failing to detect and correct the loose water pit lid condition.  The Court found that because plaintiff did not establish that the Wildwood defendants had constructive notice of the loose water pit lid, its failure to repair it prior to plaintiff’s fall could not be viewed as palpably unreasonable conduct. 

Hence, for all of the above reasons, the Appellate Division upheld the trial court’s decision to dismiss the lawsuit as to all of the Wildwood defendants.

Appellate Division’s Strict Reading of Auto Policy Denies Injured Driver UIM Benefits

In June, 2023, Plaintiff Michael Scott was injured in a car accident. At the time, he was driving a Jeep owned by his live-in girlfriend, Katie Opfer. Opfer was the lone named insured, Scott was listed as a driver, but not as a named insured. The driver at fault for the accident had a liability insurance policy carrying limits of $50,000. Opfer’s policy included uninsured and underinsured motorists (UM and UIM) coverage which provided $100,000 for each person, but contained explicit policy language that advised policy holders that the coverages in the policy may be limited by other  provisions in the policy. One such provision in the UM endorsement of the policy applied a “step-down” for UM/UIM coverage that narrowed the higher $100,000 UIM limits applying to only the named insured, resident spouse/civil union partner, and resident relatives; all others, specifically “any other person,” were only entitled to receive statutory minimum limits; $25,000 in New Jersey.

After filing suit against the at-fault party for his injuries and against Allstate for UIM benefits arising for his injuries out of the policy, Scott settled with the at-fault party for her full $50,000 policy limits. Allstate, claiming Scott, a listed driver but not a named insured, spouse, or relative, was not entitled to UIM benefits under the policy and asked the court to dismiss the suit. The trial court agreed and dismissed the suit against Allstate, causing Scott to appeal. The issue before the Appellate Division in Scott v. Snyder, 2026 N.J. Super. Unpub. LEXIS 177 (App. Div. Feb. 3, 2026) was whether Scott was in fact entitled to UIM coverage for his damages.

The Appellate Division looked at the policy and agreed with the trial court, affirming its decision in Allstate’s favor. Despite applicable law that requires courts to look at insurance contracts with “special scrutiny” due to the imbalance between insurer and their insureds in their understanding of insurance policies, the Court determined that the clear and unambiguous language of the policy did not provide UIM coverage for Scott. The Court specifically pointed to the language identifying who was entitled to UIM insurance, finding that Scott was neither a named insured, spouse/partner, or resident relative. As a result, he fell into the “step-down” category of “any other person,” to whom New Jersey’s minimum UIM coverage of $25,000 applied. More importantly, because the policy was limited by New Jersey statute, Scott would only be able to recover UIM benefits from Allstate if the UIM limits were in excess of his liability recovery from the at-fault driver. As a result, because the Court determined his UIM limits were $25,000, which is less than his liability recovery of $50,000, he was not entitled to UIM benefits from Allstate. If the Court had found he was entitled to the $100,000 UIM limits as a named insured, he would have been entitled to up to $50,000 of UIM coverage.

Appellate Division Rules That an Injured Plaintiff’s Changed Testimony at Trial Bars Her Claim for Future Medical Costs

After testifying at her deposition that she had no intention to undergo surgery, Plaintiff Yvonne Terrell changed her mind and testified at trial that she would have the surgery, causing the Appellate Division in Terrell v. Chitra, 2026 N.J. Super. Unpub. LEXIS 84 (Jan. 16, 2026), to consider whether that changed testimony would allow her to claim future medical costs from the surgery.

After a motor vehicle accident in 2018, Terrell sued Defendant Penafranc Chitra for injuries to her neck, back, and right shoulder. Noting the acute, traumatic herniated disc in her spinal column, Terrell’s primary treating doctor, an orthopedic surgeon, recommended she have a cervical discectomy and fusion. He explained the significant risks of the surgery to Terrell, which included paralysis and death. Terrell, a nurse and primary care-giver for a disabled son, worried about how a surgery would affect her and did not have the surgery in 2019 or 2020. Even after several other doctors’ opinions, she testified at her deposition that she felt the risks were too great to have the surgery. In his report in mid-2022, her medical expert stated Terrell, though still in pain, chose not to have the recommended surgery. Prior to trial she never amended any of her discovery responses to indicate any intention to have the neck surgery.

Ahead of trial, Chitra conceded that the accident was her fault, allowing the case to proceed on the issue damages alone. Working off of Terrell’s choice not to have surgery, Chitra’s attorneys asked the court to bar any evidence Terrell intended to introduce regarding the future medical costs of her surgery. The court agreed, and prevented her medical expert from offering an opinion as to those future medical costs.

At trial in the Fall of 2023, Terrell changed her story. She said her son had recently passed away and, since she intended to retire shortly and she did not want to have pain for the rest of her life, stated “surgery may help,” and she wanted to have the surgery – but made no firm decision to do so. In light of that testimony, Terrell, over the defense’s objection, asked the court to reconsider it’s decision on barring evidence of her future medical costs. The trial court agreed, and allowed her to introduce her medical expert’s testimony as to both her need for the surgery and its cost, $250,000. Upon hearing this testimony, the jury returned a verdict of $1,300,000; $1,000,000 for pain and suffering and $300,000 for future medical costs, including the surgery.

Chitra appealed. Critically, she claimed that Terrell’s future medical costs were inadmissible due to both her failure to disclose her intention to have the surgery prior to trial and because the introduction of the cost of the claimed surgery tainted the jury’s award on pain and suffering.

The Appellate Division agreed. It found that Terrell’s failure to amend her discovery responses at any time before trial to show any intention to have the surgery prejudiced defendant’s ability to defend against her claims that the surgery may occur. At no time from her deposition until she testified, including a lengthy pre-trial process and Chitra’s motion to strike evidence of future medical costs, did Terrell provide any suggestion she considered surgery; if she had done so, the defense could have prepared their defense accordingly. Because she did not, the Court determined, she prejudiced Chitra’s defense. The Court also noted she never made a definitive statement that she would have the surgery and, as her attorney admitted at oral argument before them, she still had not had it by late 2025.

Finally, the Court determined that because the trial court improperly allowed Terrell to present her expert’s opinion of her future medical costs related to the surgery, that evidence tainted  the jury as to the value of her injuries and affected their decision on pain and suffering. As a result, the Court vacated the full $1,300,000 judgment and sent the entire case back to the trial court for a new trial on damages, barring Terrell from introducing any of the contested evidence as to the purported surgery or its costs.

Of note, affecting the Court’s determination of prejudice, the Court found that had Terrell made a definitive statement as to surgery before the close of discovery in 2021, or if she had the surgery, that surgery would have been covered by her Personal Injury Protection (PIP) benefits available through her auto insurance. But, because of her indecision and failure to have the surgery, the PIP statute of limitations may have expired, barring Chitra to seek reimbursement from the insurer.  The Court found that Terrell must bear the consequences of failing to choose to have surgery when PIP benefits would have been available to pay for it. Moreover, by rule, PIP-payable future medical costs are not admissible at trial and should not have been presented to the jury.

Appellate Division Reverses Ruling As to Applicability of Forum Selection Clause to Bar New Jersey Lawsuit

Defendant Total Quality Logistics, LLC (TQL) filed an appeal with the Appellate Division of a judgment for plaintiff Narrow Path Transport, LLC (Narrow Path) entered in the Special Civil Part, Small Claims Division, after the trial court had denied defendant’s motion to dismiss the complaint based upon a contractual forum selection clause.  This matter concerned claims under the contract between the parties, which contained a clause requiring the parties to litigate any dispute in state court in Ohio.  The issue in Narrow Path Transportation, LLC v. Total Quality Logistics, LLC, 2026 N.J. Super. Unpub. LEXIS 217 (App. Div. Feb. 9, 2026) was whether the trial court had properly considered the defendant’s motion to dismiss the complaint based upon this forum selection clause.

The parties had entered into a “Broker-Carrier” agreement by which Narrow Path would transport vehicle trailers for TQL’s customers on request.  That agreement contained a provision requiring Narrow Path to indemnify TQL against certain claims related to its performance under the agreement.  The agreement also contained a clause which required it to be governed by the laws of the state of Ohio, as well as the parties’ consent to the jurisdiction of the state court located in Clermont County, Ohio (the forum selection clause).  Pursuant to the contract, the parties waived any objection to the jurisdiction of that court and all claims arising under or related to the agreement would need to be brought in that court, which would have exclusive jurisdiction over any such dispute.

Despite this forum selection clause, Narrow Path filed a New Jersey small claims complaint against TQL seeking reimbursement of an amount TQL had deducted from Narrow Path’s earnings on other TQL jobs to pay for a customer’s damages.  Narrow Path claimed entitlement based upon the contract’s indemnification and offset provisions.  This complaint was filed in the Superior Court of New Jersey, Law Division, Burlington County (Special Civil Part, Small Claims Division). 

A few days before the trial, TQL filed a motion to dismiss the complaint based upon the contract’s forum selection clause (which required litigation to proceed in an Ohio state court).  Narrow Path’s representatives were present in the courtroom for the New Jersey trial and were later joined by TQL’s representative remotely.  The record did not reflect that any of the individuals were sworn in before providing trial testimony.

At the trial, Narrow Path did not argue the forum selection clause was inapplicable in opposition to TQL’s motion.  After the judge heard from Narrow Path as to its request for the entry of judgment, the judge denied TQL’s dismissal motion and stated that TQL had subjected itself to the jurisdiction of New Jersey courts based upon the parties’ course of conduct, which included seventy prior transports.  The judge then entered a monetary judgment in favor of Narrow Path based upon unsworn trial proofs.

TQL filed this appeal of the trial court’s decision.  It argued that the judge made a mistake by denying its dismissal motion, seeking to enforce the contract’s forum selection clause, and by entry of judgment absent subject matter jurisdiction. 

After reviewing the record and the applicable law, the Appellate Division stated that it was “constrained to vacate the  judgment” and remanded the matter for the court to comply with Rule 1:7-4 as to its denial of TQL’s dismissal motion, because the court’s determination not to enforce the forum selection clause was made without explanation. 

The Court noted that under well-established law, contracting parties may agree to resolve any dispute arising from their agreement in a particular forum. Under New Jersey law, forum selection clauses are prima facie valid and enforceable.

The Appellate Division noted that forum selection clauses would be enforced “unless the party objecting thereto demonstrates: (1) the clause is a result of fraud or overweening bargaining power, or (2) the enforcement in a foreign forum would violate strong public policy of the local forum, or (3) enforcement would be seriously inconvenient for the trial.”

The Court further noted that a party may waive their rights to enforce a forum selection clause.  However, a waiver would constitute “the voluntary and intentional relinquishment of a known right.”  The Appellate Division held that a court’s analysis regarding the waiver of a forum selection clause would be similar to the analysis conducted regarding the waiver of an arbitration clause.

Thus, the Court vacated the judgment and remanded the matter back to the trial judge to issue a statement of reasons, “stating clearly its factual findings and correlating them with relevant legal conclusions.”  Further, the Appellate Division held that if the trial court concluded that the contract’s forum selection clause was unenforceable or TQL waived enforcement of that clause and determined that the litigation should proceed in New Jersey, then the matter should be scheduled for a new trial and any trial witnesses must be sworn prior to providing testimony.

No Liability for Landlord, Parent Company, and Landscaper for Fall on Black Ice

On his way into work at an Acme Supermarket in early November, 2019, Plaintiff Andrew Kasbarian slipped and fell on black ice in the parking lot caused by sprinklers that had triggered earlier that chilly morning, suffering a severe shoulder injury requiring surgery. Not able to sue Acme, he sued Albertsons (Acme’s parent company), Parene (the premises’ owner and landlord), and Green Meadows (the landscape contractor) for their negligence in maintaining and failing to warn about the dangerous condition posed by the black ice. The issue in Kasbarian v. Parene Realty Co., LLC, 2026 N.J. Super. Unpub. LEXIS 180 (App. Div. Feb. 3, 2026) was whether any of the defendants were responsible for the black ice formed by the sprinklers that caused Kasbarian’s fall.

Parene was the long-time owner of the premises who had a lease agreement requiring Acme to perform all repairs and maintenance. Green Meadows provided landscaping and irrigation services under a contract with Albertsons that did not require it to winterize and shut down the sprinkler system until Albertsons requested. In fact, that request came three hours after Kasbarian’s fall.

The three defendants challenged Kasbarian’s complaint with summary judgment motions, arguing that, even if the parties agreed to all the facts, Kasbarian could not show they were liable for his injuries. The trial court granted the motions based on the various contracts between the parties and the lack of notice to each defendant, and dismissed the complaint against them, causing Kasbarian to appeal.

On appeal, as to Green Meadows, Kasbarian argued they were a property manager and responsible for maintaining a safe parking lot. Focusing on the contract with Albertsons that only required them to perform sprinkler winterization when Albertsons asked, the Court found Green Meadows had no duty to Kasbarian. They reasoned that Green Meadows lacked the type of relationship with Kasabian that suggested a duty; that, the risk of black ice on the parking lot, an area for which Green Meadows had no control, was one for which Green Meadows could not be held responsible; Green Meadows lacked any opportunity to salt the parking lot and remove the black ice because they were not required to show up until Albertsons asked; and that, if they were to find Green Meadows responsible, that would put the burden on all contractors to winterize all sprinkler systems, no matter their contractual obligation – and that was not reasonable. The Court also found that Green Meadows, who did not come to the Acme parking lot until a few hours after Kasbarian fell, had no actual notice of the black ice or, because the black ice was temporary, they lacked constructive notice.

As for Albertsons, Kasbarian argued that they were vicariously liable because either Green Meadows was their agent or, because they were Acme’s parent company, because of Acme’s negligence. The Court disagreed with these arguments as well, stating that because Green Meadows was not liable, Albertsons could not be vicariously liable. Also, because New Jersey law will not hold a parent company liable for the negligence of a wholly owned subsidiary, they could not be liable for any negligence that Acme may have had.

Finally, the Court found Parene had no liability due to the lease agreement Parene had with Acme. Looking at the interplay of contract and tort law, the Court reaffirmed the rule that, when a lease unambiguously places liability on a tenant, the landlord will not be liable for personal injuries sustained by an employee on that property. Here, through the lease, Parene put the responsibility for all maintenance on its tenant, Acme, and as a result, it had no duty of care for Kasbarian. Further, because Parene was not a party to the Green Meadows/Albertsons contract, they had no responsibility to make sure Green Meadows would winterize the sprinklers in a timely manner.

With the above reasoning focusing on the interplay of the parties’ responsibilities through their various contracts, the Appellate Division affirmed the trial court’s determination that none of the defendants was liable for Kasbarian’s injuries on black ice in the Acme parking lot.

New Jersey Supreme Court Rules That Landowners Liability Act Bars Claim for Fall in County Park

Plaintiff Andris Arias was injured due to a rollerblading accident at a park owned by the County of Bergen.  Plaintiff Arias filed a lawsuit against the County for personal injuries. This case went all the way up to the New Jersey Supreme Court.  The issue in the Supreme Court case of Arias v. County of Bergen, 2026 N.J. LEXIS 68 (Jan. 22, 2026) was whether the County had immunity under the Landowners Liability Act for this accident. 

Fortunately, for the County, at all levels of the court system, the judges agreed that the County was immune from liability.  Further, when the case reached the Supreme Court, the Court clarified the test to be used, making it easier for more premises to quality for this immunity. 

Plaintiff Arias was rollerblading at Van Saun County Park owned and operated by the County of Bergen when the plaintiff fell into a pothole on a paved pedestrian path.  This park consisted of 130 acres, containing playgrounds, tennis courts, pathways, fishing ponds, and wooded areas.  It was available to the public free of charge.  Plaintiff sued the County, claiming negligence for failure to maintain the path or warn visitors of the pothole.

Before rendering its decision, the Supreme Court went through the history of the Landowners Liability Act.  The first version was enacted back in 1962 and was passed to protect landowners from liability for hunting and fishing on their property.  Then, it was replaced in 1968 and immunity was expanded to an “owner, lessee or occupant of premises” for “sport and recreational activities.”  Then it was further amended in 1991 to make it clear that it should be liberally construed to serve as an inducement for landowners to permit persons to come onto their property for sport and recreational activities without fear of being sued.  At that time, the immunity was also expanded to improved or commercial premises. 

Prior to this amendment, the Supreme Court utilized a four part test to determine if there should be immunity.  Pursuant to that test, the factors to be considered in determining the applicability of the landowners’ liability were as follows: “the use for which the land is owned, the nature of the community in which it was located, its relative isolation from densely populated neighborhoods, as well as its general accessibility to the public at large.”

However, in Arias, the Court decided that the analysis of whether this Act should apply would depend on the “dominant character” of the premises itself and whether it is open land conducive to engaging in sport and recreational activities.  Thus, the four part test was abandoned in favor of this simpler “dominant character” of the premises test.

The Supreme Court expressed its concern that, to hold otherwise, it might discourage counties and municipalities from opening existing or new properties to the public for free.  Further, the Court noted that if this park was not covered by the Act, it might cause public entities to close their parks to avoid liability and cause increased costs to taxpayers. 

There are two caveats for the Act to provide immunity.  First, the premises must be open to the public free of charge.  Second, while the Act immunizes negligent conduct, it does not immunize “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure of activity.”  However, based upon this Supreme Court decision, more premises will qualify for immunity under the Landowners Liability Act.

Tort Claims Act Protects Borough from Liability for a Pedestrian’s Trip and Fall in a Pothole

Plaintiff Galina Benimovich tripped and fell in a pothole located in the street in front of her daughter’s residence in Montvale’s residential Hickory Hill neighborhood, causing her to fracture her wrist and sue the Borough in Benimovich v. Borough of Montvale, 2026 N.J. Super. Unpub. LEXIS 23 (App. Div. Jan. 7, 2026). That area of Hickory Hill lacked sidewalks, causing all pedestrians to use the street. Montvale’s records showed that multiple complaints and repairs had been made of similar potholes in Hickory Hill, but those records showed no similar complaints or reports of any roadway defects in 2021, about the time of the plaintiff’s fall, in the location of the plaintiff’s fall. Montvale expressly prioritized larger, more serious potholes they considered an “emergency,” typically three to four inches deep that “can take out a tire or a bicycle or be considered a tripping hazard.” The pothole was an inch-and-a-half deep, about three feet long, and about a foot wide. The plaintiff’s engineer determined a pothole of one-quarter of an inch deep presented a tripping hazard, and that this pothole far exceeded that standard, particularly where pedestrians were anticipated to pass due to the lack of sidewalks.

Montvale filed for summary judgment pursuant to the Tort Claims Act, N.J.S.A. 59:4-1-1, et seq. (TCA), claiming the plaintiff could not establish the pothole in question was a dangerous condition, actual or constructive notice of the pothole in which she fell, or that Montvale’s failure to respond to the danger posed by the pothole was “palpably unreasonable.” The trial court agreed, specifically finding that the plaintiff failed to establish Montvale’s notice of “this particular pothole.” As a result, the plaintiff appealed.

On appeal, the plaintiff emphasized prior New Jersey TCA case law that established a three-fourths inch depression in a roadway was sufficient to constitute a dangerous condition. Further, the potholes in Hickory Hill were a known, recurring problem, as Montvale’s own records established, giving the Borough constructive notice of the dangerous condition. Finally, the plaintiff stated that Montvale’s failure to fix this pothole was palpably unreasonable due to knowing potholes would occur regularly in Hickory Hill and failing to properly keep records to record and address those dangers. The Appellate Division disagreed on all counts.

In finding the pothole was not a dangerous condition, the Court focused its attention on the Hickory Hill street as a roadway which, though used by pedestrians, was still principally constructed for vehicular traffic, and any defect on it could not be “viewed in a vacuum.” They reasoned that municipalities should not be compelled to retrofit or redesign roadways to accommodate pedestrians simply due to the absence of sidewalks and the resulting foreseeability of pedestrian traffic. Besides, since roadways are reasonably expected to have potholes, just because there are potholes in a roadway does not create an inherently dangerous condition.

Further, the Court underscored the fact that the plaintiff presented no evidence that Montvale knew of this pothole as a result of their lengthy history of complaints and repairs in the area. The Court pointed to the TCA, which requires the plaintiff to prove Montvale had actual or construction notice of the particular pothole in which the plaintiff fell, as shown by testimony or past records of complaints of that condition, not general knowledge of the problem in the area or past repairs.  

Finally, in finding that Montvale’s failure to act did not meet the palpably unreasonable standard, the Court found the record lacked evidence that Montvale’s “actions were so lacking in justification and patently unacceptable under any circumstances.” Despite the plaintiff’s position that the roadway was in regular disrepair, and the Borough knew, the Court found the plaintiff did not show the egregious neglect required under the palpably unreasonable standard, but that Montvale met the standard by prioritizing the use of their limited public resources on potholes they considered more hazardous and in more urgent need of attention than potholes such as this one.

Federal District Court Sets Reasonable Fee for Deposition of Plaintiff’s Medical Expert

Both federal and state courts in New Jersey require that the fee charged by an expert for a deposition be paid by the party requesting the deposition.  Hence, if a defendant wishes to take the deposition of plaintiff’s expert, the defendant would be required to pay that expert’s reasonable fee.  However, often an issue arises as to what would be a “reasonable” fee.  The issue in the federal case of Salmon v. Lewis, 2025 U.S. Dist. LEXIS 260053 (D.N.J. Dec. 16, 2025) was whether the defendants would be required to pay the flat fee of $12,000 for a full day deposition of plaintiff’s expert, Dr. Roman Shulkin, an anesthesiologist.  Additionally, there was an issue as to whether the fee of the plaintiff’s orthopedic surgeon, who demanded $1,250 per hour, equating to $10,000 for a full day deposition, was a reasonable fee. 

This case involved personal injuries resulting from a motor vehicle accident.  Plaintiff was driving a truck within the scope of his employment when a collision occurred with the defendant Roger Lewis, also operating a truck within the scope of his employment.  Plaintiff alleged that Lewis was negligent, resulting in a collision with his vehicle, and sued Lewis and his employer.   As a result of the accident, plaintiff claimed to have suffered severe and permanent injuries.

In discovery, plaintiff identified both Dr. Roman Shulkin, an anesthesiologist, and Dr. Howard Baum, an orthopedic surgeon, as his experts.  The defendants reached out to plaintiff to schedule the deposition of both experts and asked as to their fees for appearing at the deposition.

Dr. Shulkin demanded a fee of $12,000 for a full day of testimony or $8,000 for a half day of testimony but did not provide an hourly fee.  The defendants filed a motion with the court to set a reasonable fee for Dr. Shulkin and asked the court to set the fee at $450 an hour, which the defendants argued was a reasonable fee for an anesthesiologist.

As for Dr. Baum, he demanded a fee of $1,250 per hour to appear for his deposition, which would equate to about $10,000 for a full day deposition.  The defendants filed another motion to set a reasonable expert fee for Dr. Baum, again asking the court to set the fee at $450 per hour, which defendants claimed was the prevailing rate for orthopedic surgeons to testify at a deposition. 

In response to the motions, the Court noted that the federal court rules required that the expert be paid a “reasonable” fee for time spent in responding to discovery.  Moreover, the party taking the expert’s deposition would bear the cost charged by the expert for the testimony.  However, the party seeking reimbursement of their expert’s fee would bear the burden of showing that the requested fees and costs are reasonable.

Thus, the Court had to determine the reasonableness of fees owed by the deposing party and must adjust fees that are deemed unreasonable.

In this matter, the defendants did not object to paying a fee for the depositions of plaintiff’s experts.  They merely disputed the amount of that fee.  Thus, the only issue before the Court was the reasonableness of both of the doctor’s respective fees.  The Court noted that it had virtually no information before it to determine what constituted a reasonable fee.

The defendants’ argument that the reasonable fee should be $450 per hour was made with no support for this conclusory statement, making it impossible for the Court to evaluate the factors courts would normally consider when setting expert fees.  The defendants failed to provide any comparative data concerning fees charged by similarly-situated doctors in other cases.  The only useful information that the defendants provided to the court in a footnote was where defendants cited to U.S. Bureau of Labor Statistics data for the mean annual income for an anesthesiologist. 

Similarly, the defendants provided no evidence or data to support their contention that the prevailing rate for an orthopedist’s deposition should be $450 per hour.  Again, the only information provided was the U.S. Bureau of Labor Statistics mean annual income for an orthopedic surgeon. 

However, the Court pointed out that the plaintiff carries the burden of demonstrating the reasonableness of his experts’ demanded fees.  Plaintiff did not oppose either motion or provide the Court with any information that might explain why both of these doctors’ fees were reasonable.  Plaintiff did not even provide the Court with the experts’ curriculum vitae.

Because the Court was provided no information about either doctors’ training, education, experience or the complexity of their anticipated deposition testimony, the anticipated length of their deposition, the fees being charged to plaintiff, or the fees defendants were paying for a similarly situated experts, the Court was left to use its own discretion to determine a reasonable expert fee.  The Court conducted research with courts around the country and concluded that the reasonable deposition fee for an orthopedic surgeon varied from $400 per hour to over $1,500 per hour.  The Court located only one case addressing the reasonable deposition fee for an anesthesiologist who set the fee at $600 per hour.

Due to the scant evidence before it, and the complete silence from plaintiff on this issue, the Court determined that $850 per hour was a reasonable hourly rate for the orthopedic surgeon, Dr. Baum.  It set that fee as a midpoint between the demanded fee of $1,250 and the $450 rate defendants proposed.  It also was roughly a midpoint for deposition fees set around the country for orthopedic surgeons, with a slightly higher rate to account for inflation and the generally higher rates charged in this geographic area.

As for Dr. Shulkin, the anesthesiologist, although no hourly rate was provided, but based upon his flat fee demands, the Court concluded that his actual rate was $2,000 for the first four hours and $1,500 for the remaining four hours.  In setting a reasonable hourly rate, the only case the Court discovered from its own research set the expert fee for an anesthesiologist at $600 per hour.  However, the Court noted that this case was 15 years old and emanated from the Northern District of Indiana.  Due to the passage of time and accounting for the historically higher rates charged in this area, the court also set a reasonable expert fee for Dr. Shulkin at $850 per hour.

Finally, the Court noted that should either doctor insist on being paid their demanded fees to sit for a deposition, then plaintiff must pay the excess amount between the rate set by the Court and the rate demanded by the doctor. 

This case is instructive for setting the reasonable fee of an expert.  Note that in this case, the plaintiff did not submit any response to these motions and, hence, was stuck with the court’s ruling.  If the plaintiff’s experts do not accept the fee set by the court, then the plaintiff will be stuck paying the balance of the fee, which could be substantial.  On the other hand, the defendants could have provided better data to justify their requested fee of $450 per hour.  Without providing any data, the defendants are now stuck paying almost twice what they suggested was a reasonable fee for deposing plaintiff’s experts.

Capehart Blogs

Firm News
Capehart Scatchard Attorneys Selected For Inclusion in Best Lawyers In America® Lists
Litigation Blog
No Liability to Property Owner for Subcontractor’s Fall Through Roof on Which He Worked
Duty of Care
Plaintiff’s Personal Injury Lawsuit Against Trampoline Park Dismissed Due to Lack of Expert Testimony As to Duty of Care Owed by Facility
Subscribe to Blog Updates

Categories

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