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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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Summary Judgment Dismissal Affirmed Based Upon Storm In Progress Doctrine

Plaintiff Glenn Weidlich slipped and fell outside the front door of his condominium unit due to ice on the landing and fell down the stairs.  He sued the defendants, 313-319 First Street Condo Association Inc. and Clinton Hill Condo Association, among other defendants, claiming that they were negligent due to the unsafe condition of the exterior front stairs of the building.  At the time of his fall, there had been freezing rain.  The issue in Weidlich v. 313-319 First Street Condo Association, Inc., 2025 N.J. Super. Unpub. LEXIS 1366 (App. Div. July 22, 2025) was whether the ongoing storm rule immunized the condo association defendants from negligence for their failure to remove the ice from the stairs or whether one of the two exceptions to the ongoing storm rule applied.

Plaintiff owned and lived in the condominium unit located at 357 8th Street, Jersey City.  On the morning of January 5, 2022, as he stepped outside his front door, he slipped on ice on the landing and fell down the stairs.  Due to his fall, he suffered a torn patella tendon and underwent surgery.

Plaintiff sued the defendants, alleging negligence and premises liability.  He claimed that due to the unsafe condition of the exterior front of the stairs, he was caused to slip and fall on the steps.

At the conclusion of discovery, defendants filed motions for summary judgment, arguing that plaintiff fell solely because of the ongoing freezing rain and icy condition on the landing that morning and that they were immune due to the ongoing storm doctrine. 

The trial court found that plaintiff did slip and fall during an ongoing storm event.  It noted that the ongoing storm rule immunized “commercial landowners from negligence if they fail to remove an accumulation of snow and ice from public walkways during an ongoing storm,” citing to the Supreme Court Pareja v. Princeton International Properties case.  Further, the trial court found that neither exception to the ongoing storm rule was applicable.

This appeal ensued.  Unfortunately, for the plaintiff, the Appellate Division did agree with the trial court decision.

Plaintiff contended that the exceptions to the ongoing storm rule would prevent its application in his case.  He argued that there was a pre-existing dangerous condition of the stairs and that, further, the condition of the stairs was caused by a lack of maintenance and the recent paint job completed on the steps and landing. 

The Appellate Division noted the Supreme Court’s ongoing storm rule which affected the duty commercial landowners had to remove snow and ice accumulations and pathways during a storm.   The rationale of this rule was that “it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing.”  Thus, in Pareja, the Supreme Court held that “absent unusual circumstances, a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.” 

However, the Pareja Court did identify two exceptions to the ongoing storm rule that may impose a duty on a commercial landowner.  Under the first exception, a commercial landowner may be liable if his or her actions increased the risk to pedestrians and invitees on the property by, for example, creating unusual circumstances in which the defendant’s conduct exacerbated and increased the risk of injury to the plaintiff.  Under the second exception, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm.  Under the second exception, a landowner may be liable for an injury during a later ongoing storm if it “failed to remove or reduce a pre-existing risk on the property.”

In this case, neither party argued that the defendants did not have a duty to maintain the stairs outside defendant’s condominium and clear ice and snow for them.  The dispute focused, instead, on whether one of the exceptions to the ongoing storm rule applied. 

The plaintiff argued that defendants’ conduct created and increased the risk by not addressing the deterioration of the surface of the steps which allowed water infiltration and imperceptible freezing to occur over the surface; second, that the wrong paint was used during a recent paint job which, in plaintiff’s opinion, made the steps sleeker and harder to negotiate when wet; and, third, affixing the handrails next to the steps too far from the pedestrian pathway.

The Appellate Division noted that the plaintiff admitted that he never reached any of the steps because he fell on the landing outside his front door that morning due to the icy conditions.  As for the condition of the steps, plaintiff admitted that there had been no precipitation on the days before he slipped and fell but that there was precipitation in the form of freezing rain and snow at the time of his fall.  But, regardless of the condition of the steps, the plaintiff fell on the landing before he reached the steps.  Therefore, the pre-existing condition of the steps did not satisfy any exception to the rule. 

As for the handrails, although plaintiff had an expert on that point, the expert report failed to provide any support for his conclusion that the handrails were too far away from the walking pathway to allow plaintiff to utilize them to stabilize himself or help him regain his balance after slipping on the ice.  The Court found that it was a bare conclusion, not supported by any credible evidence on the record.  Thus, the Court found it to be an inadmissible net opinion.

With respect to plaintiff’s lay opinion that the paint job made the landing more slippery, the Court also rejected that argument as satisfying one of the exceptions to the storm in progress rule. The defendants argued that an expert was needed to explain how the type of paint used made the steps more slippery.   Plaintiff’s expert offered no opinion as to this assertion and the Court found that this conclusion required expert testimony.  The Appellate Division found that, without an expert, the record failed to establish any nexus between the paint job and plaintiff’s fall.

For the above reasons, the Court agreed that the ongoing storm rule applied and none of the exceptions to the rule applied.  Thus, the Appellate Division affirmed the trial court’s summary judgment dismissal of the lawsuit.

Appellate Division Rules That Injured Plaintiff May Pursue Pothole Claim Against Municipality

On January 29, 2021, Plaintiff Michael Shaw tripped and fell while crossing Kearny Avenue due to a large pothole in the middle of the street. He suffered significant injuries including a broken right hip, chronic lumbar strain, and aggravation of other pre-existing conditions. The issue in Shaw v. Town of Kearny, 2025 N.J. Super. Unpub. LEXIS 937 (App. Div. June 4, 2025) was whether the Township was deemed to have notice of the alleged roadway defect and, hence, could be responsible for his accident.

Typically, in accidents involving potholes, the public entity responsible for the roadway will not be held liable due to lack of notice of the pothole. Usually, they will not have actual notice of the pothole because they can appear suddenly. Further, it is often hard to prove constructive notice for the same reason. However, the facts in the Shaw case were different. Plaintiff was able to present sufficient facts to establish that the pothole was present for years and was so obvious that Kearny, using due care, should have discovered it. Hence, sufficient facts exist to establish constructive notice.

Plaintiff suffered his injury on a dark night, after parking his car on Kearny Avenue to visit a nearby bakery to make a purchase. The bakery was on the opposite side of the street from where he parked. He went to the bakery and, on the way back, crossed in the middle of the street, not in the crosswalk. He was holding a box of custard cups, not looking down and encountered a large pothole and fell. The pothole was 4 feet in length, 12 inches wide and the deepest section was about 2-3 inches deep.

At the trial court level, the trial judge found that the Township did not have actual or constructive notice of the pothole, granted summary judgment, and dismissed the lawsuit. This appeal ensued.

The Appellate Division, however, disagreed with the trial court. While there was no proof of actual notice, it held that there were facts sufficient to establish constructive notice. It found that the record did include imagery from 2012-2015 showing evidence of cracking and surface depressions. The formation of a pothole appeared on images as of July 2018 and, by October 2020, further images showed continued pavement deterioration, and evidence of large pothole formation.

During this time, Kearny was engaged in a variety of roadway inspection, planning, project finance and repair activities on Kearny Avenue. Other areas near this pothole were patched and repaired in 2018 and 2019. Plaintiff’s expert opined that the accident site continued to deteriorate. Giving all inferences to Plaintiff, the Appellate Division found that there was ample evidence for a jury “to conclude that the Kearny Avenue pothole was a dangerous condition sometime after 2015; the dangerous condition existed for a significant period of time prior to the accident; and the dangerous condition was obvious, so much so that Kearny, using due care, should have discovered it.”

The Court noted that the record showed a continually deteriorating pothole near the middle of the roadway in the Kearny central business district where the Township had multiple opportunities to discover it. Hence, the Appellate Division disagreed with the trial court’s assessment as to the lack of notice and reversed the court’s order for summary judgment.

Appellate Division Finds That Portion of Arbitrator’s Award Was Properly Vacated

This matter arises from a contractual dispute between Gallen Contracting Inc. (“Gallen”) and Centurion Construction, Inc. (“Construction”).  Construction had hired Gallen to perform concrete work for an automobile dealership in Wayne pursuant to a written agreement.  The agreement required that the parties submit disputes to mediation, followed by binding arbitration if mediation failed.  The issue in Centurion Companies, Inc. v. Gallen Contracting, Inc., 2025 N.J. Super. Unpub. LEXIS 861 (App. Div. May 27, 2025) was whether the arbitration award entered against not only Construction but also Centurion Companies, Inc. (“Companies”), a similarly named but separate corporation, was properly entered or whether the award entered against Companies should have been vacated. 

After a dispute arose under the contract, Construction fired Gallen and Gallen sued Construction.  Gallen subsequently amended its complaint and identified defendant as “Centurion Construction Inc., a/k/a Centurion Companies.”  However, Gallen’s amended complaint failed to assert any specific allegations against Companies. 

Construction filed a motion to compel mediation and arbitration, which the trial court judge granted.  Thereafter, Gallen and Construction entered into a June 2018 arbitration agreement delineating plaintiff Gallen Contracting, Inc. and defendants, Centurion Construction, Inc. and Glen Poppee, individually, as the parties participating in the arbitration.  The arbitration agreement specifically provided a signature line for Centurion Construction, Inc. and the individually named defendant.  It did not contain any signature line for Centurion Companies, Inc.

The arbitration hearing took place, and the arbitrator awarded damages to Gallen under the contract in the amount of $408,645.  The arbitrator directed Gallen to prepare a consent order to memorialize the award.  After the issuance of the arbitrator’s letter opinion, Construction objected to the inclusion of “a/k/a Centurion Companies” in any order memorializing the award.  Construction requested that the arbitrator issue a corrected award, reflecting that the entry of the award was against Construction, not Companies.  Construction contended that the arbitrator made an evident mistake in his identification of the parties bound to the award.

The arbitrator rejected that request.  The arbitrator found that Companies played an active part in the work associated with the contract and concluded that he had the discretion to amend Gallen’s pleading under the court rules and rules of evidence. 

Thereafter, plaintiffs filed a verified complaint and order to show cause to vacate the award against Companies.  Plaintiffs argued that the arbitrator exceeded his powers because Companies was not a party to the contract, Companies did not agree to arbitrate, and Companies did not sign the arbitration award.  Plaintiffs argued that the arbitrator made an evident mistake in entering the award against both Companies and Construction.  Further, plaintiffs argued that the arbitrator exceeded his power and lacked authority to issue an award against an entity (not a party) on a claim never submitted.

The trial court determined that the arbitration award was entered in error against Companies because Gallen did not properly advise Companies of the notice of the claim against them and Companies did not have a fair opportunity to defend.  Thus, the trial court judge found that the arbitration award entered in the matter as to Companies was contrary to clearly established public policy.

This order was appealed to the Appellate Division.  Gallen argued that the trial court judge made a mistake in vacating the arbitration award entered against Companies.  The Appellate Division rejected that argument.

The Court noted that the arbitration agreement was clear and unambiguous.  It bound Gallen and Construction only.  Companies was not a party to the agreement, nor did it sign the agreement.  There was nothing in the arbitration agreement that indicated Companies agreed to mediate or arbitrate any disputes under the contract because Companies was not a party to that agreement.

The Appellate Division noted that the general rule is that an action on a contract cannot be maintained against a person who is not a party to it.  While there are some exceptions to that rule, the Appellate Division pointed out that Gallen failed to present any of these exceptions to the arbitrator in support of the entry of the award against Companies as a non-party to the contract and the arbitration agreement.

Further, the Appellate Division agreed with the trial judge’s conclusion that the arbitrator exceeded the scope of his authority by entering the award against Companies.  The arbitrator had acknowledged that Construction and Companies were two separate and distinct entities, as well as recognized that only Gallen and Construction had signed the contract.

Based upon these findings, the Appellate Division ruled that the arbitrator expanded the clear and unambiguous terms of the contract to Companies, a non-party.  The Court also agreed with the trial court judge that Gallen did not provide notice that it was asserting claims against both Companies and Construction.  The Appellate Division pointed out that an arbitrator may not issue an award in the absence of indicia that all parties to the arbitration have reasonable advanced notice of the claim.

Hence, the Appellate Division upheld the trial court’s decision to vacate the arbitration award against Centurion Companies, Inc. and affirmed the trial court’s decision. 

Appellate Division Reaffirms “Bright-Line” Between Commercial and Residential Properties as to Public Sidewalk Liability

In the published case of Gottsleben v. Annese, 2025 N.J. Super. LEXIS 52 (App. Div. July 3, 2025), the plaintiff Debra Gottsleben unsuccessfully attempted to expand the principles of public sidewalk liability for commercial properties to a residential property that was unoccupied and undergoing renovations.  The plaintiff had slipped and fell on the sidewalk in front of the defendants’ house on the morning of February 18, 2021, due to an accumulation of snow and ice. She sued the defendants for her injuries suffered.

Plaintiff argued that because the property was vacant at the time of the fall and undergoing construction that could enhance the property value, the defendants, as a matter of public policy, should be governed by the same sidewalk law principles as commercial owners.  In the alternative, the plaintiff contended that the defendants were nonetheless liable as residential owners for allegedly worsening the sidewalk’s condition due to the poor shoveling and treatment of the sidewalk. 

At the trial court level, the defendants filed for a summary judgment.  They argued that as residential property owners, their duty was distinct from commercial owners and that New Jersey case law did not impose on them a duty to maintain the safety of a public sidewalk in front of their premises.  Further, they argued that there was no proof that they worsened the natural condition of the sidewalk.  They argued that the plaintiff’s proofs failed to substantiate her claims of negligent worsening and causation, and that her theory of liability was speculative and inadequate to present to a jury.

The trial court granted the defendants’ motion and dismissed the complaint.  The trial court judge found that defendants’ property could not be fairly treated as commercial under sidewalk liability principles.  The trial court judge pointed out that the property was not used for investment nor to generate profit, that defendants always intended to live at the property, and that the ongoing renovations at the time of the plaintiff’s fall did not alter the property’s residential status. Thus, the trial court applied residential sidewalk liability standards to the facts and ruled that defendants were entitled to summary judgment. 

This appeal ensued.  First, the plaintiff renewed her novel policy argument for treating defendants’ unoccupied property the same as commercial premises under the sidewalk law; second, she argued that there were genuine material issues of facts as to whether defendants worsened the sidewalk’s natural condition through poor shoveling and treatment. 

The Appellate Division noted the longstanding New Jersey law that an abutting property owner owed no duty to maintain the street or sidewalk in front of his house or premises.  New Jersey courts have declined “to impose civil liability upon homeowners for non-compliance with municipal ordinances that require them to remove accumulations of snow and ice on sidewalks abutting their residences.” Id. at *10.

These principles of sidewalk law have evolved through state case law, leading to the emergence of a “bright-line” between commercial and residential property owners. Under this “bright-line” test, residential property owners in New Jersey are not civilly liable for failing to comply with the municipal ordinances requiring them to clear snow and ice from adjoining sidewalks. 

The Appellate Division rejected the plaintiff’s novel argument that the principles of sidewalk liability for commercial properties should be applied to a residential property during a period when the premises are unoccupied and undergoing renovation or construction.  The Court noted that the defendants’ intention was to move into the house after the renovations were complete, despite the plaintiff’s argument that the renovations to the property would likely increase its market value and that the defendants might profit if they sold the property in the future. Whether it was profitable or not, the renovation of the property did not change its residential character.

Writing on behalf of the court, Judge Sabatino noted that the law “should not deter New Jersians from renovating their homes out of the concern that vacating the premises to enable such improvements will transform residents into commercial owners for purposes of sidewalk liability.” Id. at *15.

Hence, the Appellate Division stated that it was not its role to create new exceptions to the sidewalk law principles that have been repeatedly enunciated and modified by the Supreme Court.  The Court ultimately found that the trial court had properly applied the principles of residential sidewalk law to the facts of this case, rather than the commercial standards advocated by the plaintiff. 

There are circumstances under which an abutting residential owner can be liable for an injury caused by the condition of the public sidewalk.  However, under New Jersey law, a residential owner is not civilly liable for a hazardous condition of the public sidewalk abutting the owner’s property unless the owner’s conduct made the natural condition of the sidewalk more dangerous.

Here, the Appellate Division found that the plaintiff failed to present proofs that demonstrated how defendants’ conduct had worsened the natural condition of the sidewalk.  Thus, the Court affirmed the trial court decision granting summary judgment and dismissing the complaint. 

Judge Rules That Plaintiff Injured While Crossing a Roadway Was Not Entitled to Jury Charge As to an Unmarked Crosswalk

Plaintiff Aiyonna Daniels was struck and injured by defendant Chaunsa Bussey’s motor vehicle while she was attempting to cross a T-intersection of a two-lane road with a four-lane road.  She characterized this area as qualifying as an “unmarked crosswalk.”  The issue in Daniels v. Bussey, 2025 N.J. Super. Unpub. LEXIS 1159 (App. Div. June 26, 2025) was whether the trial judge made a mistake in refusing to charge the jury of the duty of an automobile driver in yielding the right-of-way to a pedestrian crossing the roadway in an “unmarked crosswalk.”

The plaintiff was attempting to cross from Mainbridge Lane, a two-lane street, across Levitt Parkway, a four-lane roadway, in Willingboro, New Jersey when she was struck by defendant’s vehicle.  These two roads form a T-intersection.  At that intersection, the four lanes of Levitt Parkway are bisected by a grassy median.  There was no sidewalk on either side at Levitt Parkway or the median where the plaintiff was attempting to cross. 

However, there was a crosswalk across Mainbridge Lane with a crosswalk across Levitt Parkway, just a short distance away.  Plaintiff did not follow that path.  Rather, she was walking on the sidewalk along Mainbridge Lane, stepped off of that corner into an unmarked area and attempted to cross the four lanes of Levitt Parkway directly when the accident happened.

The case went to trial and the parties conferred with the judge as to what law the judge should charge the jury with as to the obligations of the plaintiff, as a pedestrian, and the defendant as the motorist.  The defendant disputed that the area where plaintiff crossed constituted an “unmarked crosswalk.”  Further the defendant objected to a jury charge which stated that a driver of a vehicle must yield to a pedestrian crossing at either a marked crosswalk or an unmarked crosswalk.

In analyzing this situation, the judge refused to accept the plaintiff’s position that the area where plaintiff crossed Levitt Parkway constituted “an unmarked crossing” and accepted defendant’s position that the jury should not be charged with the law that would govern a driver’s obligations when a pedestrian crossed the roadway at an “unmarked crosswalk.”

After deliberations, the jury returned a verdict in favor of defendant, finding defendant was not negligent.  This appeal ensued.

The plaintiff argued that the trial court judge did not charge the jury with the appropriate law and should have charged the jury that the driver of a motor vehicle must yield the right-of-way to a pedestrian crossing the roadway within a marked crosswalk or within any unmarked crosswalk at an intersection.

The Appellate Division found that the area where plaintiff crossed did not constitute an “unmarked crosswalk” or an area to be considered an unmarked crosswalk. Under New Jersey law, there must be sidewalks on both sides of the streets that run laterally for the area to qualify as an “unmarked crosswalk.”  Here, for the court to consider that the area where she crossed was an unmarked crosswalk, sidewalks needed to be present on both sides of Levitt Parkway, but there were no such sidewalks present. 

Further, the Appellate Division noted that [because] Levitt Parkway did not have the necessary constructed components, the statute does not permit the inference of an unmarked crosswalk at that location.”  Thus, the Court found that the charge selected by the trial judge and provided to the jury was appropriate and reflected the “factual reality” of the area of the accident.  Hence, the Appellate Division affirmed the trial court decision, leaving in place the jury verdict in favor of defendant. 

Court Rules That County Not Vicariously Liable for the Alleged Negligent Acts of Its Independent Contractor

Plaintiff Wiggins Plastics, Inc. sued the County of Passaic and its contractor Assuncao Brothers, Inc. (“Assuncao”) for damages claimed to its property following the effects of Hurricane Ida.  Plaintiffs claimed that their properties were damaged due to the negligent acts related to a bridge replacement project, contracted by the County of Passaic to defendant Assuncao Brothers.  Plaintiffs alleged that the County was vicariously liable for its supervisory role over its contractor.  The issue in Wiggins Plastics, Inc. v. County of Passaic, 2025 N.J. Super. Unpub. LEXIS 224 (Law Div. Feb 6, 2025) was whether the County was immune from vicarious liability for the negligent acts of its independent contractor under the Tort Claims Act.

The County had engaged Assuncao as an independent contractor in the Kingsland Road Bridge replacement project.  Plaintiffs alleged that the effects of Hurricane Ida caused flooding and subsequent damages which, in part, were due to the negligent acts related to this bridge replacement project. 

The County filed for a summary judgment dismissal, arguing that it cannot be held vicariously liable for the alleged negligent acts of its independent contractor.  Under the Tort Claims Act, public entities can be held vicariously liable for the wrongful acts of their employees (N.J.S.A. 59:2-2(a)).  However, the Tort Claims Act expressly excludes independent contractors from the definition of “public employee” under Section N.J.S.A. 59:1-3.  Further, the trial court, in deciding the motion for summary judgment, noted that this distinction as to liability has been consistently upheld by the courts, finding that public entities are not liable for the actions of its independent contractors.

In this case, plaintiffs did concede that Assuncao was an independent contractor.  The court found that plaintiffs did not identify any applicable exception that would impose liability on the County, “nor have they presented specific facts that could establish vicarious liability and preclude summary judgment at this stage.”  Further, they have not demonstrated that the County had a non-delegable duty that would impose liability despite Assuncao’s status as an independent contractor.

For these reasons, the trial court found that the County was entitled to summary judgment for Plaintiffs’ claims against it which were based upon vicarious liability for Assuncao’s actions. 

Appellate Division Reverses Trial Court’s Minimal Award of Attorneys Fees to Plaintiff’s Counsel for Work Performed for a Collection Matter

Plaintiff, Law Offices of Rajeh A. Saadeh, LLC, filed a lawsuit against its clients, defendants Barbara Hutton and James Hutton, for the legal work it performed for them for a collection matter, for which they failed to pay its fees.  While the trial court entered a default judgment against defendants for the amount of the unpaid legal fees, it awarded the plaintiff law firm only a fraction of the requested counsel fees.  The issue in Law Offices of Rajeh A. Saadeh, LLC v. Hutton, 2025 N.J. Super. Unpub. LEXIS 185 (App. Div. Feb. 5, 2025) was whether the trial court mistakenly exercised its discretion in awarding only a fraction of the requested counsel fees.

According to the retainer agreement entered into between the defendants and the plaintiff law firm, the agreement provided that the law firm would be entitled to recover the costs of collection in the event that legal process was necessary to collect the amount outstanding for fees incurred.  In this case, defendants failed to pay plaintiff $4,939.20 for legal services performed.  The plaintiff law firm sent a fee arbitration pre-action notice to defendants informing them of their right to request a fee arbitration regarding the owed fees.  When the defendants did not respond, plaintiff filed a complaint for the payment of its fees.  Again, defendants failed to respond and the plaintiff requested that the court enter a default.

In its fee application, the law firm sought the amount of fees owed $4,939.20 (incurred in the collection matter) plus $2,010.00 in legal fees for its work pursuing the owed fees, $115.50 in expenses and disbursements, and $660.00 in anticipated fees.  The plaintiff law firm submitted a certification of services to support its application.

However, the trial court awarded only a fraction of the fees requested.  The court awarded plaintiff $363.00 in counsel fees, $115.00 in costs but no fees for any “anticipatory” fees.  The trial court denied almost the entirety of plaintiff’s counsel fee application because the fee application used “blocked billed” time entries.  The court found that was improper.

This decision was appealed to the Appellate Division.  The Court noted that the trial court did conduct the appropriate analysis to determine whether the number of hours were reasonably expended, as well as the specific hourly rates claimed.  Here, the attorney’s hourly rate of $330.00 was found reasonable.  However, the trial court found four of the listed time entries unreasonable, striking almost all of the time because of the “block billing.” The court struck 5 hours and 54 minutes of the 7 hours plaintiff spent on the matter.

Block billing is a method by which each lawyer would enter the total daily time spent working on a case, rather than itemizing the time expended on specific tasks.  It is essentially a summary of the activities performed rather than detailing every task.

While the trial court found that methodology of billing was improper, the Appellate Division disagreed.  It found that such billing should be upheld as reasonable if the listed activities reasonably correspond to the number of hours billed.   It did note that some of the entries were vague and that may be a reason to exclude certain hours but it would not be a reason to exclude the entire entry.

 The Appellate Division found that “[t]he more appropriate approach would be to look at the entire block, compare the listed activities and the time spent, and determine whether the hours reasonably correlate to all of the activities performed.”  The Court did note that plaintiff listed each task performed in the block entry.

Thus, the Appellate Division concluded that the fee award here was a result of a mistaken exercise of the Court’s discretion.  It vacated the fee award made to plaintiff and remanded the matter back to the trial court to consider anew its determination as to the amount of counsel fees plaintiff was entitled.

Appellate Division Reverses Trial Court Decision Denying Motion to Reinstate Complaint Dismissed Due to Lack of Prosecution

The decision of Dae Sun Yoon v. Fletcher & West Associates, LLC., 2025 N.J. Super. Unpub. LEXIS 200 (App. Div. Feb. 7, 2025) exemplifies the difficulty in obtaining a dismissal with prejudice due to a plaintiff’s lack of prosecution of a lawsuit.  In the Yoon case, plaintiff filed a personal injury lawsuit against defendants, Fletcher & West Associates, LLC. (“Fletcher”) and KFC USA, Inc., (“KFC”), back in December 2019 for a fall on defendant’s premises in October 2018.  Due to various procedural deficiencies, the lawsuit was dismissed with prejudice on October 24, 2023, based upon the plaintiff’s failure to prosecute the matter.  The issue in the Yoon case was whether the trial court applied the appropriate standard in reviewing the motion to reinstate the complaint, as well as whether the defendants were prejudiced by the plaintiff’s delay in prosecuting the matter.

It is clear from the procedural history, which I will not recite here in detail, that there were deficiencies on both sides. The lawyers in the plaintiff’s law firm failed to properly attend to the prosecution of this civil complaint, the lawyers for the defendants failed to timely file an answer, and there was the lack of any real prejudice to the defendants due to the plaintiff’s failure to timely move to reinstate the complaint after it had been dismissed without prejudice.

Under the civil court Rule 1:13-7(a), a plaintiff has four months after the filing of the complaint to ensure that a defendant is served and an answer is filed or the court will send a notice that the matter will be dismissed for lack of prosecution in sixty days unless action is taken such as filing a proof of service, the filing of an answer, or the entry of default.  Once a defendant is dismissed for lack of prosecution, the lawsuit can be reinstated as to that defendant upon the submission of a consent order vacating the dismissal and allowing the defendant to file an answer or, in the alternative, the plaintiff can file a motion for a vacation of the dismissal.  If a consent order vacating the dismissal is not submitted within sixty days of the order of dismissal, then a motion for reinstatement is required. 

In the Yoon case, the defendants were served but failed to file an answer within time.  Therefore, the court issued a lack of prosecution dismissal notice.  The plaintiff did request a default against defendant Fletcher and a default was entered.  The complaint, however, was dismissed as to KFC for lack of prosecution.

Thereafter, both defendants attempted to file an answer, which was rejected, because Fletcher was in default and KFC was dismissed.  While a consent order was entered to allow Fletcher to vacate the default and file an answer, the defendant still failed to file an answer.  Thus, the court issued an order also dismissing Fletcher for lack of prosecution and the order stated that a formal notice of motion was now required to restore the case to the active trial list.

However, defendants still attempted to defend this matter by filing another consent order vacating the default and attempted to file an answer.  But, the court issued a notice, advising the parties that the complaint had been dismissed for lack of prosecution as to both parties and if the plaintiff wished to proceed with the matter, a motion had to be filed with the court to vacate the dismissal.

It was not until a year and a half later, however, that plaintiff’s law firm did move to reinstate.  Defendants cross-moved to dismiss with prejudice, opposing the motion to reinstate based upon the “abandonment” of the matter and the failure to demonstrate exceptional circumstances to reinstate the action.  The trial court found that the exceptional circumstances standard applied and, that due to the passage of time and the lack of discovery, there was substantial prejudice to the defendants to now try to defend a case which had been dismissed three years previously.  This order was appealed to the Appellate Division, which did reverse the trial court decision.

First, the Appellate Division found that the trial court applied the wrong standard.  The Court found that the good cause standard should have been applied, as opposed to the exceptional circumstances standard.

The “good cause standard” is a lower threshold to meet based upon the case law. Applying this standard, if the plaintiff (not the plaintiff’s lawyers) is not to blame, and there is a lack of prejudice to the defendant, the matter should be reinstated.  The Appellate Division pointed out that the mere passage of time is an insufficient basis to show prejudice.  It also pointed out that here, the defendants were aware of the lawsuit and had been trying to obtain a reinstatement of the lawsuit so that it could be defended. 

The Appellate Division noted that both parties were at fault in causing a delay to proceed with this lawsuit.  Significantly, the Court found that “[t]he delays in this matter were in no way attributable to plaintiff, who was blameless.”

The Appellate Division found that there was insufficient evidence of actual prejudice to the defendants and that the passage of time alone could not support the Court’s finding in refusing to reinstate the complaint. It found that the defense counsel was engaged and was prepared to defend the case from the outset, but because of procedural “missteps” by both parties, an answer was not filed and no discovery occurred.  The defendants were not surprised or prejudiced by being brought into a case at a late juncture.  Therefore, the Appellate Division determined that defendants had not demonstrated prejudice.

While the Court noted that there was a desirability for the prompt disposal of cases, it also stated that “eagerness to move cases must defer to our paramount duty to administer justice in the individual case.”  Therefore, it found that plaintiff’s law firm’s inattention to the file should not be attributed to the plaintiff given the lack of prejudice to the defendants.  Therefore, it reversed the trial court’s decision and found that reinstatement was warranted.  It remanded the matter back to the trial court to set a reasonable discovery schedule so that the matter could proceed without any further unnecessary delay.

Plaintiff Barred From Pursuing Appeal After Executing Warrant to Satisfy Judgment

Plaintiff Linda Brehme filed a lawsuit against defendant Thomas Irwin for a rear end accident in which she claimed to have suffered bodily injuries.  At trial, plaintiff filed a motion to admit into evidence her projected future medical expenses.  This motion was denied by the trial court judge because she had not exhausted her personal injury protection (PIP) limits.  The issue before the New Jersey Supreme Court in Brehme v. Irwin, 2025 N.J. Lexis 11 (2025), was whether plaintiff had waived her right to appeal this ruling by accepting payment for the final judgment and executing a warrant to satisfy judgment.

The trial was a damages only trial because Irwin had admitted he was at fault.  Plaintiff had a $250,000 PIP policy with his insurance carrier, New Jersey Manufacturers Insurance Company (NJM).  NJM paid approximately $142,900 in benefits.  Brehme never exhausted her remaining PIP benefits but claims that NJM cut her off, although it is unclear exactly when that occurred or on what basis.

Almost two years after the accident, Brehme filed her personal injury complaint against Irwin.  The trial took place three years and eight months later, which was a damages only trial because Irwin admitted liability.  Although she received no medical treatment for the three years prior to the trial, in June 2022, Brehme relied on the amended collateral source rule, N.J.S.A. 39:6A-12, and asked the trial court judge to admit into evidence her projected future medical expenses. 

The trial court judge denied this motion because Brehme had not exhausted her PIP benefits.  During trial, the judge also denied her motion for reconsideration on this issue.  Prior to appealing from the final judgment, plaintiff did not seek leave to appeal this interlocutory evidentiary ruling barring her claim for future medical expenses.

Ultimately, the jury awarded Brehme $225,000 for pain, suffering, disability, impairment and loss of enjoyment of life.  It also awarded $50,000 for past lost wages and $0 for future lost earnings.  The total verdict was $275,000.  On July 7, 2022, the trial court judge entered the final judgment, which also included pre and post judgment interest.

Irwin’s insurance company paid the final judgment, which Brehme’s counsel deposited into his trust account.  On July 18, 2022, Brehme’s counsel also signed a warrant to satisfy judgment.  Thereafter, on July 29, 2022, after Brehme accepted payment of the final judgment and the warrant had been executed, Brehme’s counsel wrote to the trial court judge stating that he was trying to file an appeal regarding the barring of Brehme’s claim for future medical expenses.  He submitted a proposed order under the five-day rule, which purportedly memorialized the ruling barring evidence of future medical expenses.  

Irwin filed the warrant to satisfy judgment on August 8, 2022.  On that same day, Brehme filed her Notice of Appeal (to the Appellate Division) from the final judgment.  The Notice of Appeal was filed three weeks after plaintiff had accepted payment of the final judgment and three weeks after her counsel executed the warrant to satisfy judgment.   

The Appellate Division denied the appeal as moot.  It noted that Brehme never advanced, either on the record or in writing, that she intended to pursue her claim for future medical expenses.  Rather, she accepted and received the full final judgment amount and later signed a warrant to satisfy judgment before indicating her desire to appeal.  Thus, the Appellate Division concluded that the final judgment precluded her appeal challenging the trial judge’s denial of future medical expenses. 

Brehme filed a petition for certification before the New Jersey Supreme Court, seeking to reverse the Appellate Division decision.  Certification was granted by the Court.

Before the Supreme Court, Brehme argued that she filed her Notice of Appel within the forty-five-day deadline required under Rule 2:4-1 (time to file an appeal), and that the rule did not require a party to announce its decision to appeal before that deadline.  She further argued that, although her attorney executed the warrant to satisfy judgment before writing to the judge to request an order that memorialized his evidentiary ruling, she preserved her right to appeal since she filed the Notice of Appeal on the day that Irwin filed the warrant to satisfy judgment under Rule 4:48 (filing of warrant of satisfaction rule).  Plaintiff argued that she should be permitted to appeal the earlier trial evidentiary ruling, excluding her future medical expenses claim and that the Appellate Division made a mistake by dismissing her appeal as moot.

The defendant, however, argued that Brehme failed to clearly make her intention to appeal known before she accepted the benefits of the final judgment.  Further, he argued that if Brehme prevailed on the merits, by obtaining permission to admit into evidence future medical expenses, even though her PIP limits have not yet been exhausted, the only remedy would be to vacate the final judgment for the damages trial because evidence of pain and suffering and future medical expenses are not separable.  Further, Irwin argued that prevailing on appeal would nullify the final judgment, rather than potentially increase it.

The Supreme Court pointed out that, although Brehme complied with the deadline under Rule 2:4-1, that rule did not address whether a plaintiff can accept final payment of a judgment, execute a warrant to satisfy judgment, and then appeal.  The Court further noted that Rule 4:48-1 (warrant of satisfaction rule) also does not address that issue.  That rule provides that when a party satisfies a final judgment, a warrant must be executed and delivered to the party making satisfaction. 

The Court agreed with Brehme that Rule 4:48-1 does not alter the forty-five-day time period prescribed in Rule 2:4-1, i.e. the time to file a Notice to Appeal.  However, the Court also noted that Rule 4:48-1 “also does not explicitly address the legal effect of accepting a judgment and executing a warrant to satisfy the judgment before filing a Notice of Appeal.” 

However, the Supreme Court noted that New Jersey common law has addressed in other contexts whether a plaintiff can accept payment of a final judgment, execute a warrant to satisfy that judgment, and then appeal.  It noted that the longstanding general rule was “that when a litigant accepts the benefit awarded . . . by a final judgment, that litigant is precluded from afterward challenging the validity of the conditions by an appeal.”  When one party pays a judgment and the other accepts the money and executes a warrant to satisfy judgment, “the legal effect of what transpires is that a contract is entered into between the parties to terminate the litigation.”   

However, in other case law, the Court explained that an appeal could be maintainable if it would serve to increase but not reduce the amount of the judgment.  But, the parties seeking to appeal must make it known prior to accepting final judgment that it intended to appeal an issue which would not impact the final judgment other than to potentially increase it. 

Thus, the Supreme Court’s holding was as follows:

When a plaintiff accepts the final judgment, that party may still appeal if the party can show that (1) it made its intention to appeal known prior to accepting payment of the final judgment and prior to executing a warrant to satisfy that judgment, and also that (2) prevailing on the appellate issue will not in any way impact the final judgment other than to potentially increase it.

In applying these principles to the within case, the Court found that plaintiff did not make her intention to appeal known prior to accepting payment of the final judgment and prior to executing a warrant to satisfy that judgment.  To the contrary, she accepted payment of the final judgment, her counsel deposited the money into his trust account and also signed a warrant to satisfy judgment.  It was not until three weeks later that plaintiff filed her notice of appeal from the final judgment.

As to the second prong of this ruling, the Court found that plaintiff was also unable to show that prevailing on the trial court evidentiary ruling would not impact the final judgment and only potentially increase it.  The Supreme Court pointed out that personal injury awards are generally not divisible.  Evidence of pain and suffering “is inextricably linked to evidence of future medical expenses.”

The Court noted that one jury could not hear evidence relevant to pain and suffering and another jury hear evidence relevant to future medical expenses.  These two claims would need to be considered simultaneously and they are not fairly adjudicated separately.  Because plaintiff did not receive treatment for three years, it is possible that a subsequent jury could consider the evidence differently to find that she is entitled to less damages.  It would not be guaranteed that the issue of future medical expenses would only increase the sum the jury awarded to her.  Because the evidentiary issue on this appeal was not separable from the underlying final judgment, plaintiff could not show that it would only increase the final judgment.

In summary, the Supreme Court found that plaintiff could not show that she expressed her intention to appeal before accepting payment on the final judgment and before her attorney executed the warrant to satisfy the judgment or that the appeal would not impact the final judgment other than to increase it.  Hence, the Supreme Court found that plaintiff’s appeal could not proceed and that the Appellate Division properly dismissed it as moot.  Thus, the Supreme Court affirmed the Appellate Division decision dismissing the appeal. 

Plaintiff’s Personal Injury Claim Against NJ Transit Barred Due to Her Failure to Timely File a Notice of Tort Claim

On August 16, 2022, plaintiff Kathryn Hutchins claims to have suffered an injury while a passenger on a NJ Transit bus when it collided with a moped.  The Jersey City Police Department investigated the accident and prepared a report containing information regarding the accident and plaintiff’s injuries.  However, plaintiff failed to file with NJ Transit a notice of tort claim, showing her intent to pursue her claim, within the ninety- day time period, as required by the Tort Claims Act.  The issue in Hutchins v. NJ Transit Corp., 2025 N.J. Super. Unpub. LEXIS 7 (App. Div. Jan. 2, 2025) was whether the trial court should have granted plaintiff’s motion for leave to file a late notice of tort claim, when notice was filed just one day late.

This accident occurred when the bus made a sudden stop, which plaintiff claims caused her to strike the seat in front of her.  She alleges that she suffered injuries to her neck, lower back, right knee, and a small laceration on her lip.

Shortly after the accident, plaintiff did consult with an attorney, who declined to take her case.  However, this attorney did warn her of the strict ninety-day time limit to file her notice of tort claim.  Thereafter, in mid-September, plaintiff consulted with a second attorney.  Because of scheduling conflicts, the plaintiff did not meet with this new attorney until November 3, 2022, when she completed the notice of tort claim.  However, she did not sign the notice of tort claim until a second meeting on November 7, 2022, when she provided her hospital bills to her counsel.  But, her attorney miscalculated the expiration date of the ninety-day time period and did not file the notice of claim until November 15, 2022, which was ninety-one days after her accident.  Thus, the notice of tort claim was filed one day late. 

Plaintiff filed a lawsuit on May 11, 2023, and, on August 9, 2023, she filed a motion with the trial court, seeking leave to file a late notice of tort claim.  The trial court found that the plaintiff did not meet her burden of “extraordinary circumstances” to justify a delay of filing the notice of tort claim and denied her motion, resulting in the dismissal of her lawsuit. 

This order was appealed to the Appellate Division.  Plaintiff argued that the trial court’s decision should be reversed because she was diligent in pursuing her claim and NJ Transit was aware of material information about the accident based upon the police report.  She further argued that the trial court made a mistake in denying her motion for leave to file a late notice of tort claim because “the interest of justice” required that a one-day delay be considered a sufficient reason constituting an extraordinary circumstance.

The threshold requirement to be able to sue a public entity for a personal injury in New Jersey is to satisfy the notice requirement, as set forth in the Tort Claims Act. This notice requirement is strictly enforced by the courts. Based upon N.J.S.A. 59:8-8, a claimant who intends to pursue a claim for a personal injury must file a notice of tort claim with the pertinent public entity within ninety days after accrual of the cause of action, i.e., the date of the accident. 

Pursuant to N.J.S.A. 59:8-9, if the claimant fails to file the claim with the public entity within the ninety-day time period, the claim is forever barred.  However, N.J.S.A. 59:8-9 does provide an exception for a claimant who fails to file a notice of tort claim within ninety days, permitting the claimant to seek leave from a judge of the Superior Court within one year after the accrual of the claim, provided that the public entity has not been substantially prejudiced thereby.  The application for permission to file a notice of tort claim must be supported by an affidavit in which the individual must show “sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by Section 59:8-8.”

Here, plaintiff argued that she did diligently pursue her claim and that the details of the accident were set forth in the Jersey City Police Report and that NJ Transit was aware of the information contained in the police report.  She also noted that her ability was limited after the accident, and she had to use crutches.  Further, plaintiff’s counsel claims that his personal obligations caused a delay in meeting with the plaintiff which, in turn, contributed to the delay in filing the notice of tort claim.  Plaintiff argued that based upon the totality of the unique facts and circumstances presented, and the interests of justice, the trial court decision barring plaintiff’s claim should have been reversed.

However, the Appellate Division pointed out that an attorney’s inattention, or even an attorney’s malpractice, does not constitute an extraordinary circumstance to justify the late filing of a notice of tort claim.  The Court pointed out that plaintiff was able to consult with two attorneys prior to the ninety-day deadline and even executed a notice of tort claim within the ninety-day time period.

Plaintiff’s counsel conceded that he had a signed notice of tort claim by November 7, 2022, well in advance of the November 14, 2022, filing date.  It was the plaintiff’s counsel’s miscalculation of the deadline that led to the late filing.  The Appellate Division noted that neither an attorney’s inattention to a client’s file or even ignorance of the law constituted extraordinary circumstances to justify a late filing of tort claim. 

The Appellate Division further rejected plaintiff’s argument that the defendant was aware of material information related to the accident which put them on notice of claims from injured passengers, including plaintiff.  However, the Appellate Division found that NJ Transit may have received notice of this police report but that did not put it on notice that a particular plaintiff would be contemplating filing a claim against them.  Hence, receipt of a police report would not constitute a timely notice that a tort claim would be filed against the public entity.  As far as the potential prejudice to a public entity, that factor would only be relevant after a court determined that a plaintiff had demonstrated extraordinary circumstances.

Further, the plaintiff argued that a one-day delay in filing a tort claim notice was a “rare, unique circumstance that is a sufficient reason constituting extraordinary circumstances.”  The Appellate Division rejected that argument, finding that the tort claim notice was not mailed within the ninety-day time period but only served after the deadline had passed.  The Court pointed out that a notice of claim which is mailed certified mail within the time specified would satisfy the notice of claim requirement. But the statute did not create a general exception where a defendant could effectuate service beyond the timeframe set forth in this statute.  Because the tort claim notice was not mailed within the ninety-day time period, the Appellate Division found that it was not timely filed.

Hence, the Appellate Division upheld the trial court decision, denying the plaintiff’s application for leave to file a notice of tort claim, resulting in the dismissal of her lawsuit.

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