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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Plaintiff’s Complaints of Pain Without an Objectively Permanent Injury Fails to Meet the Verbal Threshold

In January, 2019, Plaintiff Martchela Popova-Mladenov was injured in a motor vehicle accident when Defendant Jason Coigne swerved into her lane on I-295 in Mount Laurel, causing her to hit him. She complained of neck pain, but she chose not to go to the ER. A month later, complaining of lower back pain, a doctor took an X-ray, which showed “mild degenerative disc disease.” She had a lumbar MRI a few months later, which showed a pre-existing, degenerative condition to her lower back. In 2021, Popova-Mladenov filed a lawsuit against Coigne, alleging she sustained permanent injuries to her lower back. The issue in Popova-Mladenov v. Coigne, 2026 N.J. Super. Unpub. LEXIS 258 (App. Div. Feb. 12, 2026) was whether Popova-Mladenov met the “verbal threshold” and could prove she had sustained a permanent injury through objective clinical evidence, rather than only exhibiting subjective complaints of pain.

New Jersey’s Automobile Insurance Cost Reduction Act (AICRA) allows drivers seeking New Jersey automobile insurance to choose between one of two tort options: “limitation on lawsuit” and “no limitation on lawsuit.” Those who choose the “limitation on lawsuit” option, otherwise known as the “verbal threshold,” can only succeed in a lawsuit for non-economic “pain and suffering”-type damages if their injuries meet the “verbal threshold.” They can do so by proving they have one of several listed injuries, including, among others, a “permanent injury within a reasonable degree of medical certainty.” They also must prove their permanent injury through accepted diagnostic tests, and not entirely upon their subjective responses or complaints of pain.

Prior to trial, both parties obtained experts to offer opinions on Plaintiff’s claims of injuries to her lower back. Plaintiff’s expert, Dr. Joshua Landa, arrived at the conclusion that the accident caused damage to Popova-Mladenov’s lumbar spine, including a permanent aggravation of pre-existing degenerative changes. Defendant Coigne’s expert, Dr. Seven Carl Hausmann concluded that the objective clinical evidence from the MRIs of her lumbar spine showed her condition was “consistent with degenerative spondylosis, which is age-related” and was not due to, and pre-dated, the accident. Plaintiff produced a second report from Dr. Landa to rebut Dr. Hausmann’s conclusions, confirming that the condition of her lower back pre-dated the accident, but that condition made them “susceptible to injury,” and the pain she experienced after the accident had not resolved and was “likely a permanent injury.” The emphasis on “likely,” included in the opinion, is important.

At trial, Dr. Landa testified on Popova-Mladenov’s behalf, stating that though the objective condition of Plaintiff’s spine pre-dated the accident, he confirmed that his opinion that she had a permanent injury was based on her continued, subjective complaints of pain. After Plaintiff had introduced all of her evidence, Coigne asked the court to dismiss Plaintiff’s complaint. He argued that Plaintiff failed to meet the verbal threshold because Dr. Landa could not prove she had a permanent injury based on objective medical evidence, only Plaintiff’s ongoing, subjective pain. The trial court agreed and dismissed Plaintiff’s complaint, and she appealed.

In reviewing the trial court’s opinion, the Appellate Division focused on Dr. Landa’s opinion that Plaintiff “likely” had a permanent injury, and that, after he admitted the MRI established the condition of her lumber spine was degenerative and pre-dated the accident (and could not show objective evidence of an injury caused by this accident), Dr. Landa based his conclusions as to Plaintiff’s permanency for the purposes of the verbal threshold on her complaints of pain alone. The Appellate Division referred to New Jersey Supreme Court precedent, which stated that subjective complaints of pain, “standing alone, are insufficient to satisfy the verbal threshold,” and a plaintiff must present objective clinical evidence from diagnostic tests, like an MRI, establishing a permanent injury.

Here, the Appellate Division concluded that Dr. Landa could not identify anything in Plaintiff’s lumbar MRI that showed objective medical evidence of an injury caused by the accident. As a result, because his conclusion that she sustained a permanent injury to her lower back was based solely on Plaintiff’s own complaints of pain, and no objective diagnostic test, she could not meet the verbal threshold, and the trial court properly dismissed her complaint.

Court Bars Admission of Prior Conviction at Trial

At the federal court personal injury trial in Erodici v. Boardwalk Regency LLC, 2026 U.S. Dist. LEXIS 72542 (D.N.J. Apr. 2, 2026), one of the pre-trial issues raised was whether the prior criminal conviction of Plaintiff Marcus Erodici was admissible. Evidence of prior criminal convictions can be used to attack the credibility of a witness. The Plaintiff filed a pre-trial motion, called an in limine motion, to exclude evidence of Erodici’s prior criminal conviction for racketeering. Defendant Boardwalk Regency argued that it should be permitted as impeachment testimony.

The applicable court rule of evidence governing the admissibility of criminal convictions under both federal and New Jersey state rules of evidence is Rule 609. Pursuant to this rule of evidence, convictions may be used as evidence of truthfulness for impeachment purposes.

However, under the federal rules (Rule 609(b)), if more than 10 years has passed (as of the date of the trial) since the witness’s conviction or release from confinement, whichever is later, then “evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.”

New Jersey has a similar rule of evidence, in determining admissibility under these circumstances, in which the court will consider:

  1. Whether there are intervening convictions for crimes or offenses and, if so, the number, the nature, and seriousness of those crimes or offenses;
  2. Whether the conviction involved a crime of dishonesty, lack of veracity or fraud;
  3. How remote the conviction is in time;
  4. The seriousness of the crime.

In Erodici, Plaintiff argued that evidence of his criminal conviction for racketeering should be precluded because he was released from incarceration 13 years ago and “the probative value of that conviction does not substantially outweigh its prejudicial effect.” Defendant argued that he was released from probation less than 10 years before the trial and, hence, the 10 year rule would not apply.

The Court found that the fact that Plaintiff was only released from probation within the 10 year period had no relevance to the application of this rule. The time period would run from when he was released from custody, not probation.

Under the federal case law, convictions more than 10 years old are presumptively excluded. Evidence of these types of convictions are admitted “very rarely and only in exceptional circumstances.”

Here, the Court found that the evidence of Plaintiff’s conviction must be excluded at trial. Defendant made no argument for why the probative value of his conviction would substantially outweigh the prejudicial effect. And, the District Court found that this was not one of the “exceptional circumstances” meriting the inclusion of such evidence. The Court noted that his racketeering conviction would have little probative value in this premises liability case.

Thus, the District Court granted Plaintiff’s motion to exclude evidence of his racketeering conviction at his personal injury trial.

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

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

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

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

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 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.

Court Dismisses Plaintiff’s Personal Injury Lawsuit Due to Inability to Identify Why Floor Was Slippery

Plaintiff Ann Brilliant slipped and fell inside an Outback Steakhouse but did not know how or why she slipped.  She was unable to identify any specific hazardous condition of the floor or deviation from accepted safety standards.  The issue in Brilliant v. Outback Steakhouse of Florida, LLC, 2025 U.S. Dist. LEXIS 87014 (D.N.J. May 7, 2025) was whether summary judgment should be granted to the defendant Outback Steakhouse due to plaintiff’s failure to identify why the floor was slippery and what caused her to fall.

Plaintiff had met her friend Darsell Pigford for dinner at an Outback Steakhouse in Deptford, New Jersey.  As she was walking to her table, she slipped and fell, breaking her arm and leg.

She testified at her deposition that she did not notice any substance on the floor that caused her to slip.  Rather, she guessed that “the floor was slippery because it had a wax residue on it that made it feel like a sheet of ice.”  However, she denied seeing or feeling any wax residue on the floor.  Plaintiff’s friend, Ms. Pigford, also testified in a deposition that she frequently ate at this Outback and that the floor always seemed slippery but, she was unaware of any particular condition that made the floor slippery.  Although, on one of her prior visits, she had apparently alerted restaurant staff about the slipperiness of the floor.

At the conclusion of discovery, Outback moved for summary judgment, arguing that, as a matter of law, no reasonable jury could find that it negligently maintained its floor.  The District Court found that plaintiff could not survive summary judgment “because she has failed to present evidence outside her and her witnesses’ own subjective characterizations that Outback maintained its floor negligently.”

The Court relied on prior New Jersey case law which held that “the mere fact that a plaintiff falls on a waxed floor is not enough to infer negligence; instead, the plaintiff has to show that the way the floor was waxed – in terms of the nature or quantity of the substance used, or in the matter or time of its application – was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises.” 

Here, plaintiff failed to produce any evidence that the floor was negligently waxed, or that it was waxed at all.  The Court also pointed to out of state decisions in which courts have held that a plaintiff cannot prevail on a negligence claim when she fails to offer any evidence that the floors were excessively slippery, “other than subjective characterizations about the appearance of the floor.”

Plaintiff had also argued that summary judgment should be denied because Outback failed to produce in discovery a completed opening and closing inspection checklist, as well as a completed facilities inspection checklist.  Instead, Outback had only produced a blank version of the opening checklist.  Plaintiff argued that defendant’s failure to preserve these records should create a negative inference that it either never created the records or that the records were destroyed because they were harmful for the defendant. 

The District Court disagreed with that argument.  Plaintiff had never objected in discovery to Outback’s failure to produce these completed versions of the checklist from the day of the accident.  Further, the Court noted that production of the completed checklists, even if they did exist, would not create a triable dispute of fact.  At most, the checklist would establish that inspections were conducted but not what if anything was observed during the inspections, let alone that any hazardous condition was or should have been detected.

The Court concluded that the undisputed evidence was that there was no admissible evidence of a dangerous hazard on the floor and, as such, the argument that any hazard could have been identified or remedied by an inspection procedure was speculative.  Thus, the District Court granted summary judgment and dismissed the complaint.

Appellate Division Affirms Dismissal of Case After Bifurcated Trial

The small details matter.  A petitioner will always have problems at trial when there is very little congruence between the allegations contained on the claim petition and the statements which petitioner gave to the employer and treating doctors at the time of the accident. That is the message in the case of Makins v. Palace Rehab & Care Center and Premier Cadbury, LLC, A-2263-23, A-2276-23 (App. Div. April 24, 2025).

Petitioner was a certified nursing assistant (CNA) who provided essential care to patients. She injured her back in 2013 while working for Palace Rehab with pain and numbness into her right leg. She received an award in that case and reopened that award on June 12, 2018.

On June 19, 2018, petitioner, who was then working for Premier Cadbury, filed two additional claim petitions.  The first claim petition alleged an injury on February 11, 2018, which aggravated her low back with pain into her legs while “picking up a resident.”  In the second claim petition, she alleged that she injured her back, left knee and left hip picking up a patient on June 8, 2018. Cadbury denied both claims, and the case proceeded to trial. The parties agreed to a bifurcated trial.  That meant that the case would be tried on the issue of the occurrence of an accident and causal relationship without medical experts necessarily testifying. 

During the first date of trial, petitioner said she did not remember whom she reported the first incident to but later she said she told her supervisor, whose name she did not recall.  She said she was lifting a patient when something happened to her low back.  She admitted to finishing work the day of the alleged injury on February 11, 2018.  She worked the next two days.  She then went to a hospital on February 14, 2018, and stayed home two days, returning to work on light duty before resuming full duty.

The petitioner’s version of the second alleged incident on June 8, 2018 was similar.  She said she was lifting a patient, putting her on a toilet, when she felt sharp pain in her back.  She also said that she bent down to pick up a box of tissues that the patient dropped but then she fell to the floor, striking her back and left hips.  She said she told a nurse who entered the room what had occurred. She recalled signing an incident report but claimed she had not read the incident report because she was in too much pain.  She said Susan, who completed the incident report, told her to see her family doctor.  She was referred to an orthopedist, who gave her an injection.  She was then referred to Dr. Kepler, a surgeon.  She also had two visits with Concentra, which were arranged through her employer.

Cadbury’s counsel focused heavily during trial on numerous inconsistencies in this case:

1)  The incident report of February 16, 2018, which was signed by a supervisor but not by petitioner, contained a handwritten response to the question about how the incident happened: it read “overall strain on back – did not occur with just [one] resident.” Defense counsel asked petitioner to comment on this description.  The judge observed that during her response,  “petitioner’s head went down, she would not make eye contact with respondent attorney, she did not speak for a period that was uncomfortable, shrugging with [a] lack of expression.”  She then said she did not recall making that statement.

2)  Regarding the alleged incident on June 8, 2018, petitioner admitted that she signed the incident report but said that she had not read it. She denied ever saying the words contained in the report: “Employee was simply walking, passing out trays and performing routine duties when she felt sharp pain in her left hip like a dislocation – now has radiated to lower back.”  Petitioner testified, “This didn’t happen like this.”

3)  Petitioner was shown a document entitled “Workers’ Compensation – First Report of Injury or Illness.”  She said she did not agree with the description on that document, namely: “Employee was simply walking, passing out trays and performing routine care when she felt a sharp pain in her left hip/lower back.”

4)  Petitioner was also shown notes from a physician’s assistant in the orthopedic practice for her June 13, 2018 appointment. She did not agree with the description: “[The patient] states that she has been having low back pain for approximately a month. She states that a few [sic] last week at work when she was in a standing position, her leg gave out and she did not fall.  She states that her knee has been feeling painful as well.”

5)  Petitioner also disagreed with a statement contained in a June 14, 2018 appointment at Concentra: “Patient states that as she was walking her left leg gave out, she was able to prevent herself from falling, she states she sat down and rested and later in the day the same thing happened again. She reports since then she has been experiencing lower back pain, left knee and left hip pain.  She states that her left knee appears to slip out of place and she is unable to resume regular activity until it returns to a normal position.  She reports a history of arthritis to the back.  She denies slipping, tripping or other mechanics of injury.”

6)  Petitioner also disagreed with the note from a Concentra doctor in her June 18, 2018 appointment where the physician described her as having a “preexisting condition.”

7)  Petitioner also was shown a note from her orthopedic physician at her July 2, 2018 appointment.  The doctor wrote that petitioner had “a history of chronic recurrent lower back pain for many years” and “severe osteoarthritis of her left knee.”  The doctor also wrote that petitioner denied any specific injury and admitted that her symptoms began “insidiously.”  Petitioner did admit that she had preexisting problems but did not recall this specific discussion.

8)  Petitioner also did not recall the history contained in an IME performed at Cadbury’s request which referenced a prior August 8, 2017 incident when petitioner felt pain while helping a 200-pound patient get off a toilet. Petitioner did not recall being examined by the doctor and did not recall that particular history.  In fact, she disagreed with that description of a 2017 injury.

On examination by the attorney for Palace, (the first employer), petitioner did agree with a statement by Dr. Kepler in his May 21, 2019 report that she suffered two injuries at Cadbury on February 11, 2018 and June 8, 2018, both of which aggravated her back and leg pain.

Cadbury produced two witnesses:  a Director of Nursing in 2018 and an Executive Assistant and Supervisor for the front desk. These witnesses testified to the procedures that Cadbury followed for reporting an injury at work.  The first witness testified that the information on the First Report of Injury Form came from the information on the Incident Report. The second witness testified that she created the incident report for the alleged February 11, 2018 accident based on what petitioner had reported to her.

The Judge of Compensation admitted into evidence over objection from petitioner’s attorney the incident reports and the Workers’ Compensation First Report under the Business Records exception to hearsay.  The Judge permitted the petitioner on the final day of trial to bring in a doctor to challenge impeachment evidence but petitioner declined to do so.  Certain documents were introduced into evidence by all parties, and the Judge of Compensation rendered a decision finding that … “petitioner failed to prove by a preponderance of the evidence that her injuries were causally related to the alleged accidents at Cadbury.”  The Judge dismissed both claim petitions with prejudice.  The Judge also noted that he did not give the First Report of Injury Form any weight in arriving at his decision.  He specifically stated that he found petitioner not to be credible.

Petitioner appealed and raised several issues.  The first issue pertained to petitioner’s competence to testify.  Petitioner was asked by the judge at the outset of testimony whether she was under the influence of anything that would interfere with her ability to testify.  She said no.  Then her own attorney asked her if she was under the influence of medications.  She said yes, that she was taking oxycodone and muscle relaxers which affected her memory.  She also said she was suffering from memory issues related to Long Covid.  The Appellate Division commented, “The problem with that argument is that petitioner and her counsel chose to have her testify, fully aware of what medication she had taken and her Long Covid condition and their potential effects on her memory.  Nothing in the record indicates petitioner or her counsel asked the judge for an adjournment…”  The Court also noted that petitioner initially told the Judge of Compensation that she was not under the influence of anything that would cloud her judgment. Furthermore, the Appellate Court noted that the Judge of Compensation focused more on “the differences in her demeanor when she testified about facts that were in her favor and when she testified about facts that were not in her favor.”

The next issue on appeal was the decision to bifurcate the trial.  Counsel for petitioner challenged the trial judge’s decision to bifurcate the trial because it contended that this may have prevented petitioner from producing testimony from her treating physicians.   The Appellate Court said there was no error in bifurcating the trial because neither party objected to this approach.  The Court also noted that the Judge of Compensation allowed petitioner to bring in medical testimony on the final date of trial but petitioner’s counsel declined. The Appellate Court commented that in this case the judge found that petitioner was not credible in her claims that work accidents happened.

The last argument on appeal was that the Cadbury incident and first reports should not have been admitted into evidence because they did not meet the test of a business record under N.J.R.E. 803 (c)(6).  Counsel also argued that petitioner was denied due process when Cadbury did not produce the author of the incident report. The Appellate Court noted that the Judge of Compensation gave no weight to the First Report of Injury Form.  The Court also noted, “… [A] Judge of Compensation is not bound strictly by the Rules of Evidence, see N.J.S.A. 34:15-56, and may admit documents into evidence without authentication testimony,” citing Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244 (2003). The Court also observed that petitioner did admit that she signed the first page of the June 8, 2018 incident report, “which contained a description of the purported accident that did not match the description petitioner gave on her claim form or in her testimony.” Finally, the Court commented that all counsel in the case consented to the admission of certain documents into evidence; hence there was no due process violation.

The dilemma for petitioner in this case was the inability to overcome the inconsistency between the allegations in her claim petitions and the contrary statements in the incident reports and doctors’ notes close in time to the alleged accidents.

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