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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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Court Finds Defendants Unable To Pay Medicare Lien Directly Because Not Part of Settlement Reached

Plaintiff Walter Cabezas, as administrator of the Estate of Aldemar Cabezas, filed a wrongful death lawsuit following the death of Aldemar Cabezas who was struck by a vehicle owned by defendant Penske Truck Leasing Co. on September 7, 2021.  Medicare issued a conditional payment letter to plaintiff, stating that Medicare had identified $62,100.82 in conditional payments related to the claim.  The issue in Cabezas v. Penske Truck Leasing Co., L.P., 2025 N.J. Super. Unpub. LEXIS 2034 (App. Div. Oct. 28, 2025) was whether defendants (Penske Truck Leasing and Nehal Selim) were entitled to pay the lien directly or whether they were required to pay the entire settlement amount to plaintiff, who had agreed to satisfy any outstanding medical bills and liens, as well as indemnify and hold defendants harmless as to such liens.

The case settled for the amount of $500,000 and, in the settlement agreement, it indicated that plaintiff would release all claims and be solely responsible for satisfying any and all outstanding medical bills and liens.  However, despite the language in the agreement, defendants paid the Medicare lien directly and then remitted the remainder of the settlement amount to plaintiff.

After the case settled, plaintiff sent the defendants an executed release.  Thereafter, CMS issued a final demand letter setting the finalized Medicare lien at $39,365.09.  That final demand letter was supplied to defendants and plaintiff’s counsel again asserted plaintiff’s sole responsibility for the lien and pressed for immediate payment of the $500,000 settlement.

However, defendants notified plaintiff that it had issued a check for $460,634.91 and paid the Medicare lien directly.  Plaintiff objected and immediately demanded the full $500,000.

Plaintiff filed a motion to enforce the settlement agreement.  Defendants argued that plaintiff suffered no damages and would be provided a “windfall” if they now had to pay the full amount. 

At the oral argument, plaintiff made the argument that by the defendants paying the Medicare lien directly, it removed from them the ability to resolve the Medicare lien and potentially compromise the lien.  Hence, plaintiff argued that there was potential harm by defendants paying the lien directly. 

The trial court granted the motion and enforced the settlement agreement as written. The court awarded plaintiff counsel fees and costs incurred with bringing the motion and entered an order to enforce the settlement agreement, which required the defendants to pay plaintiff the full $500,000 settlement, despite having already satisfied the Medicare lien.

Defendants moved for reconsideration, arguing that the trial court’s decision provided plaintiff with a “double recovery” or a windfall.  The court denied reconsideration and found that the parties had a contract that they had agreed to $500,000 as a settlement.  The trial court found that the Medicare payment made by the defendants fell outside of the agreement and did not excuse the obligation to plaintiff. 

This decision was appealed.  Unfortunately for the defendants, it was upheld by the Appellate Division. 

The Appellate Division found that the parties had entered into a valid settlement agreement that defendants breached.  The language in the agreement was explicit in assigning the responsibility for satisfying any Medicare lien to plaintiff.  The Court found the language of the agreement to be clear and unambiguous.  Defendants were to pay plaintiff $500,000 in exchange for plaintiff releasing all claims and plaintiff was solely responsible for the Medicare lien.  Thus, the Court found that the trial court correctly enforced the settlement agreement as written when it ordered defendants to pay the entire $500,000.

The takeaway from this case is, if a defendant desires to pay the Medicare lien directly to avoid any future liability if the plaintiff’s counsel fails to satisfy this lien, this requirement must be part of the settlement agreement.  It cannot be done unilaterally or brought up after the settlement is reached.  Otherwise, a defendant may be forced to face the potential consequence of Penske Truck Leasing in this case in which, after paying the lien, it still was required to pay the full amount of the settlement to plaintiff.

Homeowner Not Responsible for Plaintiff’s Injury Caused by Slip on Ice in Front of Home

Plaintiff Joseph Costigan was walking on the sidewalk in front of the home of the defendants Gurprit and Sneh Bains when he slipped and fell on a patch of ice and struck his head.  He claimed that the drainage system on defendants’ property, that ran down the driveway and across the sidewalk, was faulty and caused the ice.  The issue in Costigan v. Bains, 2025 N.J. Super. Unpub. LEXIS 2091 (App. Div. Oct. 29, 2025) was whether the plaintiff needed an expert to support the theory that the drainage system caused the water to collect on the sidewalk, which could be a hazard when the weather was cold. 

Plaintiff  had retained Mark Marpet, Ph.D., P.E. as an engineering expert who issued a report that the defendants’ drainage system created a hazard by leading the drain water from the gutters and basement sump pump onto the driveway and sidewalk, where it could freeze and create a slip hazard.  In his opinion, the elements did not cause the hazard because it had been two days before the accident since any precipitation fell.

Defendants retained the services of Stephen Pellettiere, a certified meteorologist, to provide an expert opinion regarding the weather conditions on the day of the accident.  He relied on certified weather reports from the National Oceanic & Atmospheric Administration (NOAA) and opined that there had been a winter storm and snow/ice event on the day of the incident with approximately a half inch of snow on the ground when plaintiff slipped and fell.  He disagreed with Dr. Marpet’s report that it was not snowing at the time and noted that Dr. Marpet used erroneous weather underground data that contradicted the certified NOAH observations.  In Mr. Pellettiere’s opinion, it was highly unlikely that preexisting ice and snow was in place at the time of the incident because of rainfall of less than an inch ending 40 hours before the incident and temperatures were well above freezing after the rain had ended two days before the incident.

At the trial court level, the defendants filed a motion to strike Dr. Marpet’s report as a net opinion and asked for a summary judgment dismissal.  They argued that Dr. Marpet’s opinion that the drainage system created a hazard “lacked any measurements or demonstration of any slopes or angles or anything about water capacity and failed to provide any discussion about the sidewalk.”  Further, defendants argued that Dr. Marpet used erroneous data indicating there was no precipitation on the day of the fall when in fact there was an ongoing storm.  Defendants further argued that Dr. Marpet’s opinion failed to satisfy any of the requirements for an expert report because it contained “nothing but his pure conclusions.”

The trial court heard the arguments and agreed with the defendants, granting defendants’ motion to strike Dr. Marpet’s report as a net opinion and also granted a summary judgment dismissal.  The trial court found that Dr. Marpet’s report “constituted an inadmissible net opinion because it failed to explain the pertinent scientific principles and how he applied them to formulate the basis for his opinion.”  The trial court further noted that “Dr. Marpet did not analyze the rates of evaporation for rain water under the conditions of freezing temperatures, provide any measurements of the slope of defendants’ property, calculate the volume of water that could have exited the drain, or author scientific support from a qualified meteorologist.”  Thus, the trial court determined that Dr. Marpet did not provide the “why and wherefore of his opinion but rather offered only a mere conclusion.”

As for the summary judgment dismissal, because the trial court found that Dr. Marpet’s report was an inadmissible net opinion and plaintiff needed to present an expert opinion to establish that the drainage system worsened the conditions of the sidewalk beyond the natural hazards created by the storm, the court found that there was no genuine issue of material fact that could defeat defendants’ summary judgment motion.

Further, the trial court rejected plaintiff’s argument that he could proceed without an expert.  Without an expert, it was mere speculation that the drainage system somehow caused the sidewalk conditions.

The plaintiff appealed the summary judgment dismissal to the Appellate Division.  Upon appeal, the plaintiff did not argue that the trial court made a mistake in barring his expert.  Rather, upon appeal, plaintiff argued that he did not need an expert to be able to argue that the defendants’ drainage system caused water to collect on the sidewalk, which could be a hazard when the weather was cold.

The Appellate Division first noted that residential property owners can be liable “if their actions create an artificial, dangerous condition on an abutting sidewalk, thereby negligently introducing a new element of danger other than one created by natural forces.”  Further, the Court noted that “homeowners have no duty to maintain the sidewalks abutting their property so long as they have not affirmatively created a hazardous condition.”  Thus, for plaintiffs to overcome defendants’ immunity from sidewalk liability, the plaintiff must present competent evidence showing defendants created or exacerbated a hazardous condition on the sidewalk. 

Plaintiff was asserting that the defendants’ drainage system routed precipitation from a prior storm causing it to pool on the sidewalk which then froze to form a sheet of ice.   However, the Appellate Division agreed with the trial court that expert testimony would be needed to establish that the cause of the water on the sidewalks was from the defendants’ drainage system. 

The Court found that the “topography of defendants’ property, the relative slope and manner in which water drained off the property, and whether the drainage system led to water pooling on the sidewalk under the facts presented here, required an expert’s specialized and technical knowledge to establish defendants’ negligence was the proximate cause of plaintiff’s slip and fall injury.”  The Appellate Division ruled that a jury would not be competent “to supply the requisite standard by which to measure defendants’ conduct and would be left to speculate.”  Thus, the Court agreed with the trial court that defendant’s negligence could not be established without the aid of an expert and upheld the summary judgment dismissal. 

Appellate Division Refuses to Allow Plaintiff to Use the “John Doe” Rule to Avoid a Statute of Limitations Dismissal

New Jersey’s two-year statute of limitations is very strict, requiring a plaintiff to file their personal injury suit within two years of the date of the accident or injury or suffer a permanent bar to sue anyone for their injuries. New Jersey’s fictitious party rule (“John Doe” Rule), U. 4:26-4, provides a safe haven to a plaintiff “if the defendant’s true name is unknown to the plaintiff” after the statute of limitations has expired if they identify a John Doe as a placeholder for a to-be-identified defendant. This rule allows a plaintiff who timely files their complaint to amend their complaint to name the previously unknown, true defendant, after which the amended pleading will “relate back” to the original pleading and, thus, avoid the bar of the statute of limitations.

In Perez v. Rental Shop Holdings, LLC, 2025 N.J. Super. Unpub. LEXIS 1938 (App. Div. Oct. 15, 2025), plaintiff Leonidas Perez attempted this tactic. After falling down a flight of stairs in her apartment building in Newark, Ms. Perez went to an attorney with all of the critical information of her injury: the facts of her fall, the correct address of her apartment building, and the identity of her landlord, defendant Rental Shop Holdings. Three days before the two-year statute of limitations expired, her attorney filed a personal injury complaint identifying only the State of New Jersey and a fictitious “John Doe” as defendants. Two weeks later, realizing he entered an incorrect address for the building and the State as an incorrect defendant, her attorney filed an amended complaint under the “John Doe” Rule. He admitted that, despite having the correct information, he simply erred in naming the wrong defendant.

After service of the amended complaint, Rental Shop filed a motion to dismiss Ms. Perez’s complaint for violating the statute of limitations. The trial court denied the motion, ruling that because the attorney acted so quickly in filing the amended complaint, his conduct showed both due diligence and the lack of any prejudice to Rental Shop, two factors courts use to support the Rule’s application.

Upon appeal, the Appellate Division strongly disagreed, emphasizing the primary requirement in using the “John Doe” Rule is that that the plaintiff not know or have any reason to know the John Doe defendant’s identity. It discounted plaintiff’s due diligence claims because, despite quickly correcting the error, she and her attorney had two years to confirm the proper defendant, and her failure to do this “basic and easy investigation,” and name them in the timely filed initial complaint, was a simple lack of diligence.

This case sticks out from more traditional John Doe cases because courts will commonly grant, and affirm, the use of fictitious party practices, often opting to see cases resolve on their merits rather than more technical disqualifications. Yet, the starkness of the attorney’s error in failing to identify Rental Shop as the proper defendant in the complaint filed before the expiration of the statute of limitations, despite his client’s clear communication of that fact to him, and his candid admission of the mistake, likely made this determination by the Appellate Division quite simple.

District Court Finds That Mode of Operation Rule Did Not Apply to a Fall From a Blueberry Sold in a Clamshell Container

Plaintiff Jessica Nunez was shopping at the Clifton Costco and claimed that she slipped and fell on at least one blueberry on the floor in the meat department.  She sued Costco for her personal injuries.  The issue in Nunez v. Costco Wholesale Corp., 2025 U.S. Dist. LEXIS 196212 (D.N.J. Oct. 3, 2025) was whether Costco could be held liable under the mode of operation doctrine due to the sale of its blueberries packed in a clamshell container with pinch points at each corner, but not taped shut.

As a result of her fall, plaintiff suffered a fracture of her left patella, which required emergency surgery.  She claims that her surgery left her with substantial medical bills, lost time from work and changes in her employment. 

It was undisputed that Costco sold the blueberries packaged in a clamshell container with pinch points at each corner and that it sold them exclusively in the produce department, which was about 200 feet from the meat department where plaintiff fell.  The containers were not always taped, depending on the vendor, and sometimes the plastic containers did pop open.

The evidence showed that Costco employees performed daily floor walks to inspect for hazardous conditions, covering all areas at the store.  Plaintiff admitted that she could not recall ever encountering any spilled produce on the floor of this Costco prior to the date of the incident.  Further, the testimony was that while Costco employees did permit customers to open sealed produce containers while shopping, it did not encourage customers to eat while shopping.

It was unclear how long the blueberry (or blueberries) had been on the floor before the incident occurred.  There was no surveillance footage or eyewitnesses as to the accident.

The case was originally filed in New Jersey state court but it was removed to federal court. Thus, the litigation ensued in the Federal District Court of New Jersey.

Costco filed a motion for summary judgment, arguing that plaintiff was not able to establish a negligence claim under New Jersey law.  The two issues addressed by the Court were whether the mode of operation doctrine applied and, if not, whether Costco had actual or constructive notice of the alleged dangerous condition, i.e. the blueberry on the ground, that caused plaintiff’s injuries.

To establish a negligence claim, the plaintiff must show that there was a duty of care owed by the defendant and that the defendant breached that duty of care.  Costco, as a business owner, owed its invitee (its customer) a duty of reasonable care to provide a safe environment to its invitee.  However, the plaintiff must prove that the defendant/business owner had actual or constructive notice of the dangerous condition that caused the accident.

The District Court pointed out that in “very limited” circumstances, where the mode of operation rule applied, a plaintiff does not need to show actual or constructive notice to prove that a defendant/business owner breached its duty of care.  Once this rule is triggered, the burden switches to the business owner to establish that it “did all that a reasonably prudent man would do in the light of the risk of injury the operation entailed.”

The mode of operation rule only applies in self-service settings where “a business permits its customers to handle products and equipment, unsupervised by employees.”  There must be a nexus between the self-service components of the defendant’s business and the risk of injury in the area where the accident occurred.

Here, Costco conceded that it sold products in a self-service fashion and permitted customers to handle produce containers without employee supervision.  However, Costco argued that there was no nexus between the self-service component of its business and the risk of injury. 

Under New Jersey case law, “when a business owner instead uses a method that poses virtually no chance of spillage during ordinary, permissible customer handling,” the mode of operation rule does not apply.  The District Court cited to the New Jersey Supreme Court case of Jeter v. Sam’s Club, 250 N.J. 240 (2022), among other New Jersey state court decisions, in explaining and considering the application of the mode of operation rule to the facts of this case.

The Court noted that in Jeter, the New Jersey Supreme Court found “no reasonable factual nexus between the self-service activity and the dangerous condition causing plaintiff’s injury” when the business permitted only the self-service sale of pre-packaged sealed grape containers, rather than allowing customers to handle the produce in open top bags.  The Sam’s Club’s customers were intended only to handle the closed grape containers. The Jeter Court made clear that the presence or absence of tape on a closed container did not determine whether the mode of operation rule applied. 

The District Court also noted a prior District Court decision, also against Costco, Scalera v. Costco Wholesale Corp., in which the Court noted that “the taping of the containers was not the lynch pin of the Court’s analysis” in Jeter.  That case involved the sale of strawberries in a clam shell container which was not secured by tape.  As the Court in Scalera noted, “the analysis in Jeter hinged on whether the packing of the grapes in closed clamshell containers made it reasonably foreseeable that grapes would drop on the floor, and not on whether the containers were taped or might occasionally pop open.”

In considering the arguments made in Nunez, the District Court found that the mode of operation doctrine did not apply to the sale of the defendant’s blueberries in a clamshell container.  As in Jeter, the Court found that the defendant’s customers were not intended to handle the blueberries themselves or package the blueberries themselves.  Instead, they were intended only to handle the closed containers. 

Further, the Court found that plaintiff was unable to establish that Costco had actual or constructive notice of the blueberry on the floor.  It was undisputed that Costco had no actual knowledge.  The issue was whether the facts established that Costco could have had constructive knowledge of the blueberry being on the floor. 

To establish constructive notice of a hazardous condition, a plaintiff must be able to show that the condition was present “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  The length of time that the condition was present is key to determining whether constructive notice existed. 

A plaintiff is unable to prove constructive notice “when he or she cannot identify any facts in the record indicating how long the dangerous condition itself is present.”  The District Court noted that a court will look for evidence such as video footage, eyewitness testimony and whether the plaintiff his or herself noticed the hazard or had knowledge of when it was created.

Here, plaintiff had not pointed to any evidence from which a determination could be made as to how long the blueberry had been on the floor before the plaintiff’s fall.  Plaintiff did not know how long the blueberry had been on the floor prior to the incident.  Further, she was unable to identify any evidence regarding “characteristics of the berry that would indicate how long it had been there.”  Further, there was no surveillance footage, nor did any party claim that any eyewitnesses were present.  The Court found that “no one involved has any idea at all how long the hazardous condition existed before the incident occurred.”

Further, the Court pointed out that Costco did perform floor walks to check the floor for hazards hourly.   A Costco employee had performed an entire walk through of the store which had concluded only about 15 minutes before the incident occurred.

Thus, the District Court found that plaintiff had been unable to point to any evidence at all showing how long the hazard existed, but there was evidence that showed that Costco employees did closely monitor the area.  Hence, the Court found that plaintiff was unable to establish constructive notice.  Because of the absence of evidence of actual or constructive notice, that was fatal to plaintiff’s claim of premises liability.  Hence, the District Court granted summary judgment in favor of the defendant, dismissing the case.

Civil Rights Complaint Dismissed Because Group Pleading Filed Against Public Officials and Police Officers

This matter arose due to a dispute in 2021 between plaintiff Kelsey Kelly and her ex-husband, defendant Karl Kelly, which led to plaintiff’s arrest and criminal charges being filed against her.  While preparing for a trip to Texas, plaintiff entered her motor vehicle and removed two handguns from the trunk.  At that time, her ex-husband was a police officer and, at the request of her ex-husband, members of the police department arrived at the scene and arrested plaintiff for burglary and theft.  The issue in Kelly v. Ewing Township, 2025 U.S. Dist. LEXIS 136736 (D.N.J. July 17, 2025) was whether plaintiff’s complaint failed to state a claim upon which relief could be granted, particularly because it alleged facts regarding the conduct of at least 6 of the 9 defendants as a “group” pleading and failed to distinguish the actions of each defendant.

In her complaint, plaintiff alleged that the police department arrested her in order to “aid” her husband who was with the police force at the time and that the Mercer County Prosecutor’s Office pursued her arrest knowing that there was no merit to it.  She filed a lawsuit against the Mayor and Council, Ewing Township, the Ewing Police Department, the Mercer County Prosecutor’s Office and later added the officers and an assistant prosecutor to the lawsuit.  Thereafter, the Mercer County Prosecutor’s Office, Assistant Prosecutor, and defendant Kelly moved to dismiss and/or file the motion for summary judgment.

The District Court found that the complaint “impermissibly” grouped all defendants together without sufficient factual allegations as to each defendant to satisfy the rule requirement that the complaint contain a “short and plain statement” and provide notice of the claims.  The District Court noted that courts in this district “routinely dismiss complaints when the complaints contain improper group pleading.”  If the complaint contained mere conclusory allegations against the defendant as a group, prior courts have found that such a complaint would fail to allege the personal involvement of any defendant sufficient to survive a motion to dismiss.  A plaintiff must allege facts as to each individual defendant’s liability for the misconduct alleged.

Here, the complaint alleged only that unidentified members of the Ewing Police Department arrested plaintiff for burglary and theft at the request of her ex-husband and, on other undated occasions, unidentified members of the Ewing Police Department responded to an instance of domestic violence and arrested her for simple assault.  Further, she alleged that this action was similarly taken to protect her ex-husband because he was a member of the police force at the time.

The Court found that the complaint failed to allege any facts regarding the conduct of at least 6 of the 9 named defendants, including the Mayor and Council, Ewing Township, three officers, and the Assistant Prosecutor.  In each of the alleged counts, the District Court found that the complaint impermissibly grouped all defendants together and alleged without distinction that the actions of the defendants were malicious and resulted in the false arrest of a plaintiff and that the actions resulted in the malicious prosecution of the plaintiff and, therefore, they violated 42 U.S.C. § 1983.

The Court held that this type of group pleading in which all the defendants were lumped together did not provide the defendants notice of the claims against them and the grounds upon which those claims rested. These types of pleadings do not “set forth facts sufficient to give the individual defendants notice as to the misconduct with which each is charged or to provide this Court with a basis upon which to determine the viability of the claims against each of them.”  Thus, the District Court found that in failing to differentiate which defendant was involved in the unlawful conduct, the allegations of the complaint as pled were insufficient to state a claim. 

Additionally, the District Court found that the complaint contained other defects.  The Court found that the complaint’s minimal factual allegations were insufficient to state a federal claim under § 1983.  Further, as to various individuals like the Assistant Prosecutor, the complaint allegations were extremely brief and did not allege the personal involvement of each defendant or articulate any municipal policy or custom that caused the conduct at issue in this case.  Therefore, the Court found that the plaintiff could not sustain a § 1983 claim against the identified individual defendants or municipalities.  Further, the Court noted that the complaint’s impermissible group pleading, as previously discussed, was particularly fatal to plaintiff’s § 1983 claim.

Because the pleading defects applied to both the moving defendants and the other non-moving defendants equally, the District Court sua sponte dismissed the complaint without prejudice as to all defendants.  However, the Court did permit the plaintiff to file a Third-Amended Complaint within 30 days of the order.  The Court stated that the plaintiff must allege specific actions by each defendant, which resulted in her alleged harm, and may not refer to them collectively as “defendants.”

Appellate Division Upholds Trial Court’s Involuntary Dismissal of Plaintiff’s Personal Injury Claim Due to Her Failure to Prove Liability

The Pro Se plaintiff Tannia Winston tried her personal injury case on her own against 7-Eleven.  She claimed that she was injured due to a slip and trip at defendant’s convenience store.  The issue in Winston v. 7-Eleven, Inc., 2025 N.J. Super. Unpub. LEXIS 1705 (App. Div. Sept. 18, 2025) was whether the trial court properly granted the defendant’s motion for an involuntary dismissal at the end of plaintiff’s case at trial.

Plaintiff commenced her lawsuit with counsel.  However, her attorney was relieved as counsel before the trial.  Therefore, plaintiff represented herself at the trial of this matter.

Plaintiff’s injury occurred when she entered a 7-Eleven in Jersey City on a rainy day to purchase a cup of coffee.  She claimed that, as she entered the store, her foot was caught under a large “object on the floor.”  She testified that she fell forward, stiffened up, and locked her knee to avoid falling.  She also claimed that an employee “quickly grabbed the object and ran it [sic] out of the building.”  Plaintiff further testified that she limped out of the store, boarded a bus to the emergency room, where a cast was placed on her leg.  She did admit upon cross-examination that it was actually a knee immobilizer.

At the conclusion of her testimony, plaintiff rested her case and 7-Eleven moved for an involuntary dismissal.  The defendant argued that plaintiff had failed to satisfy her burden of proving liability.  In particular, defendant argued that plaintiff failed to demonstrate “there was a condition in the store that was unreasonably dangerous” or that the defendant’s store was on notice of “whatever condition” plaintiff claimed caused her to trip.  Further, defendant argued that plaintiff failed to demonstrate the accident was the proximate cause of her alleged damages.

Plaintiff argued that defendant knew the object was on the floor because an employee grabbed it and commented to her about its improper placement at the entrance.  Plaintiff did not present any witnesses to testify about the object’s placement or duration at the entry.  She claimed that the judge forbade her from explicitly testifying she tripped on “cardboard” because she was unable to present expert testimony concluding that the object was cardboard.

The trial court judge granted the defendant’s motion for a dismissal.  The trial court judge found that plaintiff had failed to establish that the defendant 7-Eleven “knew or should have known of this alleged dangerous condition and failed to use a reasonable degree of diligence and care with respect to whatever the object was.” 

The trial court commented that the plaintiff was unable to tell the jury what object caused her to slip and there was no testimony about how long it was there or who put it there. Even though someone from 7-Eleven may have removed it after her incident, the trial court judge found that it did not establish that 7-Eleven was responsible for the placement of that object, how long it had been there or that they knew it was there and “they were not exercising reasonable care in their failure to remove it.”

Upon appeal, the Appellate Division noted that to prove a negligence claim in the context of a business invitee’s fall at a defendant’s premises, the plaintiff “must prove by a preponderance of the evidence: (1) defendant’s actual or constructive notice of a dangerous condition; (2) lack of reasonable care by defendant; (3) proximate causation of plaintiff’s injury; and (4) damages.”

The Appellate Division further noted that owners of premises were generally not liable for injuries caused by defects for which they had no actual or constructive  notice and no reasonable opportunity to discover them.  The Court stated that the absence of notice would be fatal to a plaintiff’s claims of premises liability.  Further, the Appellate Division noted that the “mere occurrence of an incident causing an injury is not alone sufficient to impose liability.”

Here, the Court found that the record supported the judge’s decision that plaintiff had failed to produce any evidence demonstrating that the defendant had actual or constructive notice of the condition that allegedly caused her to trip.  The Appellate Division also rejected the plaintiff’s claims that the trial court had refused to grant a continuance to allow her to produce witnesses and found that she failed to produce any evidence that the trial court judge instructed her what words were allowed for her to state and what she could not state during the trial. 

Hence, the Appellate Division affirmed the trial court’s dismissal of the lawsuit.

Shooting Victim’s Failure to Show Newark PD’s Custom of Excessive Force Allows District Court to Dismiss Complaint

On New Year’s Eve in 2020, three undercover detectives of the Newark Police Department (NPD) were patrolling a high-crime area in their unmarked vehicle. Upon hearing what sounded like gunshots, they sped to the location they believed the gunshots came from. One detective exited the car with his gun drawn, accidentally bumped into a man crossing the street, and immediately shot him in the chest, all under three seconds. The man’s hands were empty and he was not carrying a weapon. He later died at a local hospital. In Fong v. City of Newark, 2025 U.S. Dist. LEXIS 172225 (D.N.J. Sept. 4, 2025), the decedent’s estate sued Newark, alleging it was liable for having an official policy or custom that caused his death, permitting him to file a lawsuit for the deprivation of his constitutional rights under 42 U.S.C. § 1983, a Monell claim, arising from the U.S. Supreme Court case Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1977).

Because municipalities cannot be held liable for the unconstitutional acts of its employees, such as police officers, a plaintiff claiming a violation of their constitutional rights must assert a Monell claim against the municipality directly. A successful Monell plaintiff must then establish he suffered a violation of his constitutional rights and that some municipal policy, custom, or practice was the cause, or “moving force,” behind the harm suffered.

In Fong, the plaintiff’s complaint argued that the NPD’s custom was to permit its officers to use excessive force, including the use of firearms, by identifying several documents to show the City had not done anything to correct a known prior pattern of unconstitutional policing. However, the court found that the documents plaintiff referenced actually undermined his theory. The plaintiff claimed the NPD never underwent an audit of its use of force; but, the Court noted, the City’s production of a “Force Audit Report” completed by an independent monitor in 2021 disproved that claim. In fact, the Report actually showed Newark made corrective policy changes and had shown improvement in training and discipline with its police officers in the relevant time frame.

Further, the court determined that even if the plaintiff had been able to identify an unconstitutional custom by the NPD, he could not show the causation requirement of a Monell claim, that some causal nexus existed between the custom and the injury. While Newark was certainly on notice of its prior custom of excessive use of force when it signed a court-enforced Consent Decree in 2016, the Force Audit Report noted the NPD’s use of force complied with those mandates thereafter and it had shown “substantial improvement” with regard to its officers’ discipline. As a result, on these two elements of the plaintiff’s Monell claim against Newark, the Court dismissed the plaintiff’s claims against the City.

An interesting element of this case was that this decision came as the result of a motion to dismiss on the pleadings for failure to state a claim; a very heavy burden for Newark to carry. Therefore, in its determination, the Court could not look outside of the plaintiff’s complaint and attached exhibits, it had to construe all facts in favor of the plaintiff, and the plaintiff would win if he could show a “plausible claim for relief.” That he lost here, particularly on an issue as weighty as a shooting death, underscores the proofs needed to satisfy the elements of a Monell claim.

Defendant in Civil Case May Be Questioned at Deposition As to Statements Made During Criminal Guilty Plea

Defendant Alex Brown-Eskengren, with two accomplices, attacked minor plaintiff R.J. after a party.  Defendant was charged criminally for this attack and eventually pled guilty to third-degree aggravated assault on the condition that he would be admitted to pre-trial intervention (PTI).  As part of the plea, he gave a factual allocution regarding the attack, testifying that he struck plaintiff.  The issue in R.J. v. Brown-Eskengren, 2025 N.J. Super. Unpub. LEXIS 1620 (App. Div. Aug. 27, 2025) was whether the defendant could be compelled to answer questions in his civil suit deposition regarding his sworn statement and testimony given in the criminal case.

Plaintiff R.J. sued defendant for injuries he suffered during the attack.  After plaintiff requested defendant’s deposition, the trial court ordered that it be adjourned until the resolution of defendant’s criminal charges.  After his criminal plea, he was deposed.  During the deposition, plaintiff’s counsel tried to impeach defendant using his guilty plea allocution.  (A criminal allocution consists of statements and testimony made by defendant with respect to entering a plea for a criminal charge.)

Defendant’s counsel objected on the grounds that the plea allocution was inadmissible.  However, the trial court ordered that defendant could be cross-examined regarding his plea allocution.  Defense counsel then unilaterally cancelled the deposition.

Thereafter, plaintiff’s counsel filed an application to compel the defendant’s deposition.  The trial court judge granted the application and ordered that defendant’s deposition be taken within forty-five days.  Additionally, the trial court entered an order compelling defendant to answer questions regarding his sworn statement and testimony in the criminal case.  The court found that the question of admissibility could be addressed closer to trial and that the rules covering discovery in a civil case did not prevent plaintiff from cross-examining defendant regarding his guilty plea allocution at the deposition. 

Defendant appealed these orders, contending that the questions regarding his guilty plea allocution should be barred.

Initially, the Appellate Division noted that in evaluating a trial court’s evidentiary rulings, an appellate court would “generally defer to a trial court’s disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistake and understanding of the applicable law.”  Further, the court noted that New Jersey’s discovery rules are to be construed liberally in favor of broad pre-trial discovery.

The Appellate Division cited to R. 4:10-2(a) which stated that “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . .”  The Court did note that the parties’ discovery rights are not unlimited and that protective orders can be entered which would protect a party or person “from annoyance, embarrassment, oppression or undue burden or expense.”

Here, defendant did not contend that his guilty plea allocution was privileged or that it would cause annoyance, embarrassment, oppression or undue burden or expense which would require a protective order.  Defendant simply argued that the allocution was inadmissible at trial.  The Court pointed out that the test for discoverability under the civil court rules was limited to whether the evidence was relevant, not whether it was admissible.

The Appellate Division concluded that “the trial court did not abuse its discretion in compelling defendant’s attendance at deposition and permitting cross-examination of him regarding his guilty plea allocution.”  The Court agreed that the trial court correctly found that the ultimate question of admissibility was to be determined after the deposition.  Therefore, the Appellate Division affirmed the trial court’s ruling that defendant must sit for a deposition and that he must answer questions regarding his sworn statement and testimony in his criminal case.

Appellate Division Upholds Shorter Statute of Limitations in Insurance Policy for UIM Claim

On January 10, 2018, plaintiff Amy Vanrell was driving a motor vehicle covered by an insurance policy with USAA and was in an accident.  She sued the other driver for her injuries but failed to make a claim against her insurance company, USAA, for underinsured motorist coverage until May 2, 2022.  The issue in Vanrell v. United Services Auto Assn., 2025 N.J. Super Unpub. LEXIS 1479 (App. Div. Aug. 6, 2025) was whether plaintiff failed to timely file an underinsured motorist claim under the terms of her insurance policy.

The other driver (the tortfeasor) involved in the accident had limited liability coverage of $50,000 per person/$100,000 per accident.  Plaintiff’s insurance policy with USAA provided underinsured motorist coverage (“UIM”) for bodily injuries of up to $300,000 per person/$500,000 per accident.

The day after the accident, on January 11, 2018, plaintiff notified USAA of her claim for property damages and personal injury protection benefits.  While she filed suit against the other driver on December 23, 2019 for her injuries, she failed to notify USAA of her suit at the time it was filed.

The first communication she had with USAA concerning an underinsured motorist claim was on May 2, 2022, when she sent USAA a letter seeking permission to settle her claims against the other driver for $43,000 (a “Longworth” letter).  In that letter, she identified the tortfeasor (the other driver) as an underinsured motorist and provided the name and docket number of plaintiff’s suit against the tortfeasor.

In her Longworth letter, she requested permission to settle her claims against the tortfeasor and asked whether USAA wished to waive subrogation of its claims against the tortfeasor.  USAA responded on May 4, 2022, approving the request to settle and waiving a potential subrogation claim but did not guarantee that the UIM coverage had been triggered by that loss.

On the day after, plaintiff’s counsel wrote to USAA demanding its $300,000 policy “to amicably resolve this matter.”  Thereafter, there were a number of correspondences back and forth in which USAA was asking for medical records to evaluate plaintiff’s settlement demand.  On February 24, 2023, USAA did offer to settle plaintiff’s UIM claim for $85,000.  However, plaintiff rejected that demand.  Eventually, USAA increased its offer to $100,000 to settle.

On May 17, 2023, plaintiff filed a lawsuit against USAA seeking UIM coverage.  USAA filed an Answer, which asserted as an affirmative defense that the complaint was barred by the statute of limitations and plaintiff failed to comply with the terms of the policy.  Discovery was thereafter exchanged.  Before the close of discovery, USAA moved to dismiss the complaint as untimely under the terms of the policy.  It argued that the policy required plaintiff to file her UIM claim within four years after the accident or one year of when she was aware or should have been aware of her UIM claim, whichever was later. 

Plaintiff opposed this motion, arguing that the six-year statute of limitations for breach of contract claims applied.

The trial court found that plaintiff did not timely file the complaint but did not specify which of the policy limitation periods applied, either the four year or one year, in reaching its decision.  It also did not address plaintiff’s conformity-to-law and equitable estoppel arguments.

This appeal ensued.  The plaintiff made the arguments that the six-year statute of limitations applied, that USAA was equitably estopped from raising the timeliness of plaintiff’s complaint, that it waived its timeliness argument by not raising it in its Answer and that the four year period in the policy, if applicable, was tolled until USAA denied UIM coverage.

The Appellate Division noted that the primary issue before the court was which of the two limitations period applied to plaintiff’s UIM claim – the six-year statute of limitations that applies to contract claims or the four-year statute of limitations in the policy.

The Court noted that New Jersey law holds that the six-year statute of limitations would ordinarily apply to insurance actions.  However, under New Jersey case law, the courts have found that period may be shortened by the terms of an insurance contract. 

The Appellate Division found that the USAA policy contained an unequivocal provision shortening the time period in which plaintiff must file her UIM claims to four years from the date of accident or one year from the date she was aware or should have been aware that she had a UIM claim, whichever was later.

It found that four years from the date of the January 10, 2018 accident would have been January 10, 2022.  While plaintiff did not identify the date on which she became aware or should have become aware that she had a UIM claim, she presumably became aware of the extent of her injuries and the limits of the tortfeasor’s insurance coverage while her lawsuit against the tortfeasor was pending in the Law Division.  At the very latest, she was aware of her UIM claim on May 2, 2022, when she requested USAA’s consent to settle her claims against a tortfeasor for less than what plaintiff alleged her damages from the accident.

Plaintiff did not file a lawsuit against USAA for the UIM claim until May 17, 2023, which was more than a year and four months after the January 10, 2022 date and fifteen days after May 2, 2023.  Therefore, the Appellate Division found that under either prong of the contractual limitations, (either the four-year period or the one-year period), plaintiff’s complaint was untimely.

The Court found that legal precedent has permitted parties to an insurance contract to agree to a shorter limitations period than is provided by the statute.  Further, the Court’s review of the record did not reveal any basis on which to apply equitable estoppel to bar USAA from raising the timeliness of plaintiff’s complaint. 

The Appellate Division also rejected Plaintiff’s other arguments.  Hence, the Court affirmed the trial court’s decision, barring the plaintiff’s uninsured motorist claim due to the failure to comply with the policy’s statute of limitations. 

Supreme Court Rules on Statute of Limitations for False Light Invasion of Privacy Claim

In January 2020, Plaintiff Salve Chipola attended a Clearview Regional High School’s basketball game, at which time he encountered an acquaintance, Defendant Sean Flannery speaking with a member of the school staff.  When attending a subsequent game at the school, a police officer prevented him from entering and handed him a letter from the school, informing him that he was banned from school grounds because of the belief that he was a drug dealer and was selling drugs to or purchasing alcohol for students.  He later learned that Defendant Flannery had made statements to the school official, alleging that Plaintiff was a drug dealer and had provided drugs and alcohol to the students.  Chipola sued Flannery, claiming that his alleged statements constituted a “false light invasion of privacy.”  The issue in Chipola v. Flannery, 2025 N.J. LEXIS 752 (Aug. 7, 2025) was what statute of limitations applied to this claim – one year or two years?

Chipola did not sue Flannery for false light invasion of privacy until about two years after the alleged incident.  In the lawsuit, he claimed that Flannery made false statements about him, creating a false impression of him as a drug dealer, harming his reputation and causing him emotional distress.  He further alleged that Flannery made these statements knowing they were false or in reckless disregard of the comments’ falsity and, as a result, his “reputation as a drug dealer was publicized throughout Gloucester County.”

Defendant Flannery filed a motion to dismiss, arguing that Chipola had filed his complaint outside the applicable one-year statute of limitations for defamation, which he argued applied to a false light invasion of privacy claim.  The limitations period began to run on the date of the alleged comments, January 9, 2020.  The trial court granted the motion to dismiss, agreeing with the plaintiff’s argument that the one-year statute of limitations applied to this type of claim and barred the claims in the lawsuit.

Chipola appealed this decision to the Appellate Division which affirmed the dismissal of the lawsuit in an unpublished opinion.  Thereafter, the matter was further appealed to the New Jersey Supreme Court.

Plaintiff argued that the two-year personal injury statute of limitations should apply, rather than the one-year statute of limitations governing defamation claims.  On the other hand, Defendant argued that false light claims were essentially the same in nature as one of defamation and, therefore, should be governed by the defamation’s one-year statute of limitations. 

The Supreme Court agreed with the trial court and Appellate Division decisions that a one-year statute of limitations should be applied to a false light claim.  It noted that “the conduct at the heart of both defamation and false light invasion of privacy claims is essentially the same; in holding otherwise would cause false light to engulf the tort of defamation and eradicate the narrowed one-year limitations that is intended to balance potentially tortious behavior with free speech rights.”  It noted the overlap between the causes of action for false light and defamation, in conjunction with the practical considerations and free speech protections.  Further, the Court noted that a significant number of other jurisdictions throughout the country had applied the same statute of limitations to false light and defamation claims.

Hence, the Supreme Court ruled that false light claims would be subject to the same one-year statute of limitations as defamation claims.  Therefore, the lower courts’ decisions were affirmed, dismissing the lawsuit due to the failure to file the claim within the statute of limitations.

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