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Letter to Public Entity Lacking Critical Information Does Not “Substantially Comply” with Notice of Claim Requirements

On Feb. 13, 2024, Plaintiff Demetrius Lindsey claimed he sustained personal injuries when the NJ Transit (NJT) bus on which he was a passenger was involved in an accident. That day, the bus driver filled out an incident report and NJT prepared a form noting Lindsey’s complaints and visit to the ER. Lindsey retained an attorney and on Feb. 22 the attorney sent NJT a letter of representation, identifying himself, Lindsey, the location of the incident, and the fact that Lindsey sustained injuries in the Feb. 13 accident. The letter also requested any documents and reports created as a result of the accident. On May 31, 108 days after the accident, Lindsey’s attorney sent a second letter with a request a “claim be initiated” on Lindsey’s behalf. NJT and Lindsey’s attorney exchanged correspondence until Feb. 12, 2025, one day shy of the accident’s one year anniversary, when Lindsey’s attorney filed a motion for leave to file a late Tort Claims Notice. The issue in Lindsey v. NJ Transit Corp., 2026 N.J. Super. Unpub. LEXIS 2142 (App. Div. Sept. 29, 2026) was whether the content of Lindsey’s attorney’s Feb. 22, 2024, letter to NJT contained sufficient information to serve as a Notice of Claim under New Jersey’s Tort Claims Act (TCA).

The guiding principle of the TCA is that immunity is the rule and liability the exception for claims against public entities. An element of the TCA requires a claimant serve the public entity with a Notice of Claim in 90 days of the claim’s accrual date – the date of the claimed injury. The TCA requires a proper Notice of Claim contain the following critical information: the claimant’s name and address, the date and circumstances of the incident, a description of the injury, and the amount of claimed damages. The failure to serve the public entity with a Notice of Claim in 90 days from the accrual date will forever bar the claimant from filing a lawsuit against the public entity for that injury. However, to avoid that harsh result, a claimant may move for leave to file a late Notice of Claim if he is able to show “extraordinary circumstances” caused him to miss the 90 day deadline with no prejudice to the public entity.  

In his motion for leave, Plaintiff argued that NJT was on notice of his claim shortly after the incident due to his attorney’s Feb. 22 letter and the reports created by the bus driver and NJT. NJT opposed, arguing the TCA required a compliant Notice of Claim, and the Feb. 22 letter did not serve that purpose in fact or intent; evidenced by Lindsey’s attorney’s statement in the May 31 letter, that a “claim be initiated.” The parties agreed the claim accrued on Feb. 13, 2024, making a Notice of Claim due by May 13, 2024. However, the motion court sided with NJT that the Feb. 22 letter did not meet the standard required to satisfy a Notice of Claim to properly put NJT on notice, thereby denying Plaintiff’s motion, barring Plaintiff’s claim and opportunity to file suit. Plaintiff appealed.

The Appellate Division also focused on Plaintiff’s Feb. 22 letter and performed an analysis to determine whether that letter was in “substantial compliance” with the Notice of Claim requirements. Applying these elements, the Appellate Division determined the Feb. 22 letter fell short and upheld the motion court’s denial of the motion for leave. A court weighing substantial compliance will consider whether the substance of the notice given was both in writing and within the 90 day window and, while the notice may lack the specifics to satisfy the strict requirement of the TCA, the missing details did not deprive the public entity of effective and actual notice. The “substantial compliance” analysis considers the lack of prejudice to the public entity, steps taken by the claimant to comply with the TCA, general compliance with the purpose of the statute, reasonable notice of the claim, and a reasonable explanation why the claimant didn’t strictly follow the rule.

Applying these elements, the Appellate Division determined the Feb. 22 letter fell short and upheld the motion court’s denial of the motion. It found the only critical information contained in the letter was Lindsey’s name, the date of the incident, the location of the incident, and the fact the incident occurred. The letter lacked any reference that Lindsey intended to state a claim against NJT, the specifics of the claim, or what injuries Lindsey sustained. Further, Lindsey’s attorney’s reference in the May letter of his intent to “initiate a claim” only established that the Feb. 22 letter did not have that purpose. Finally, the fact that NJT possessed internal documentation does not rise to the level of a claim; the Court found that no public entity has the obligation to review its internal documents and “put itself on notice that a potential plaintiff failed to supply.”

The key takeaways here are that a TCA Notice of Claim must be the notice of a claim, not the notice that a potential claimant is represented by an attorney, is requesting records, and may have the basis for a claim. Further, substantial compliance is narrowly drawn; while it forgives some technical defects in timely written Notices, it will not permit a missing or late notice or notices lacking crucial information.

Employees with Approved Intermittent FMLA and Discipline for Attendance Policy Violations

A recent federal court decision, Green v. Sugarhouse HSP Gaming LP, No. 2:25-cv-02193 (E.D. Pa. Oct. 13, 2026), provides guidance for employers navigating the interplay between protected medical leave and employee discipline. The decision by the Court shows how documentation, clear leave procedures, consistent policy enforcement, and evidence of legitimate business reasons can help employers defend disciplinary decisions involving employees who take intermittent leave in accordance with the Family Medical Leave Act (“FMLA”).

By way of background, Robert Green (“Green”) began working in Rivers Casino’s security department (“Rivers”) in 2015. He later was promoted to a supervisory position in 2021. That same year, Green began experiencing health problems that required intermittent FMLA leave. Rivers had a written policy that required employees to notify both Rivers management and Rivers’ leave administrator, MetLife, when requesting qualifying FMLA leave. Under the Rivers’ policy, if an employee called out of work but did not provide the required notice to MetLife that the absence was for an FMLA related reason, that day could be recorded as a regular absence. Rivers also maintained an attendance policy under which employees who were absent more than eight times within a year could be terminated.

Green was well aware of Rivers’ call out policy and usually provided proper notice for his FMLA absences. During his employment, Green successfully notified MetLife of approximately 80 to 100 FMLA absences. When MetLife received the necessary information, it routinely issued approval letters, and those days did not count as regular absences. However, between April 22, 2023, and February 1, 2024, Green accumulated 9.5 recorded absences that were not FMLA related. In February 2024, Green contacted his supervisor to question whether some of the absences should have been treated as FMLA leave. Management reviewed the records and found no corresponding MetLife notifications from Green for the relevant dates. Rivers concluded that since Green had not notified MetLife about 9.5 of his absences, he had exceeded the regular absence threshold. Rivers terminated Green’s employment on February 19, 2024.

Green then filed suit, alleging disability discrimination and retaliation under the Americans with Disabilities Act as well as interference with and retaliation for exercising his FMLA rights. Rivers denied the allegations, maintaining that it had permitted Green to take FMLA leave whenever he followed the applicable notification procedures. According to Rivers, Green was terminated because he accumulated more absences than the attendance policy permitted without providing the required notice to MetLife of his need for FMLA leave.

The United States District Court for the Eastern District of Pennsylvania reviewed the case and granted summary judgment in Rivers’ favor on all of Green’s claims. The Court found that Rivers identified a specific, nondiscriminatory reason for its decision. Specifically, Green had exceeded the permitted number of absences under the attendance policy. Importantly, Green did not dispute that his recorded absences exceeded the policy’s threshold. Nor did he contend that he had provided timely notice to MetLife of FMLA leave for the dates that were considered to be absences. Instead, he argued that applying the attendance policy and the requirement to contact MetLife without considering reasonable accommodations could be considered unlawful.

The Court rejected Green’s argument because Green had successfully followed the MetLife notification process many times during his employment, and he did not identify evidence that his disability prevented him from complying with the process. Green also provided no evidence that he had informed Rivers that he needed an accommodation related to the notification requirement. The Court emphasized that a different result might be warranted if an employee’s disability prevented timely notification and the employer refused to consider a reasonable accommodation.

The Court’s decision highlights the fact that employees who take intermittent FMLA leave are not necessarily exempt from otherwise lawful attendance policies. Employers may enforce discipline requirements when employees fail to follow applicable leave notification procedures, provided that the policies are made known to the employees and that they are administered consistently.

Mistaken Belief That Library Was a State Entity Does Not Meet Tort Claim Notice Extraordinary Circumstances Threshold

In December, 2023, Plaintiff Tannia Winston was involved in an incident at the Jersey City Public Library that gave rise to claims of slander, discrimination, and harassment. A month later, on January 12, 2024, based on her investigation into the library, Plaintiff served a Notice of Claim for her damages on the State of New Jersey, but not Jersey City. Two weeks later, she filed a complaint against Defendant Jersey City Public Library outlining each of her claims and attaching the Jan. 12 Notice. In July, Plaintiff realized her mistake of putting the State rather than Jersey City on notice and filed a motion to allow her more time to serve a Notice of Claim on Jersey City. The issue in Winston v. Jersey City Public Library, 2026 N.J. Super. Unpub. LEXIS 1813 (App. Div. Aug. 4, 2026) became whether she could show extraordinary circumstances for her failure to serve Jersey City with a Notice of Claim on time.

New Jersey’s Tort Claims Act requires a claimant to notify a public entity of their intent to sue the entity within ninety days of the day the cause of action accrued. If they do not notify the public entity by the ninetieth day, the claimant must file a motion with the court identifying “sufficient reasons constituting extraordinary circumstances” why they could not file the Notice of Claim within ninety days after their claim accrued.

In support of her motion, Plaintiff claimed the extraordinary circumstances that prevented her from serving timely notice on the Library were that the Jersey City Public Library received funding from the State and, thus, it must be a state entity, not a municipal entity. The motion judge was not persuaded. Reasoning that it was difficult to see how Plaintiff could reasonably make the mistake that a library with the name “Jersey City Public Library” was a State of New Jersey entity, the motion judge denied Plaintiff’s motion and dismissed her complaint. Plaintiff appealed.

Leaning on the Tort Claims Act’s emphasis on making the extraordinary circumstances requirement a demanding one, the Appellate Division found Plaintiff’s position unavailing. Her extraordinary circumstances argument leaned on the same claims: that her interpretation of the Library receiving State funds implicitly made it a state entity and not knowing about the interplay between state and local entities was confusing and, alternatively, that it was a “clerical error.” Further, she claimed the trial court made errors in the course of her oral argument; she did not receive a fair hearing. The Court dismissed her initial substantive claims out of hand, stating that Plaintiff could not identify a reasonable basis for her confusion and, to that end, the lower court’s finding was correct. As to her new claims arising out of the oral argument before the motion court, the Appellate Division advised that her reasons for extraordinary circumstances must be set forth in her motion and that her failure to adequately explain those grounds before the motion court could not save her claims.

Though on a lower scale of magnitude than other “circumstances constituting extraordinary circumstances” claims, Plaintiff’s unavailing claims here serve to reinforce the “extraordinary” element of extraordinary circumstances: an ordinary, routine mistake will not satisfy the standard, but it must be something with a much greater impact that directly affects the claimant’s very ability to file the notice.

Expert Required for Plaintiff to Establish a Hotel’s Standard of Care for Her Slip and Fall from a Leaking Toilet

In late December 2020, while her husband gambled at Borgata’s Atlantic City casino, Sherry Singh entered the couple’s room, took off her shoes, walked into the bathroom, and slipped on a puddle of water. Singh sued Borgata for negligence, alleging it failed to keep the room safe for guests. After discovery, Borgata filed a motion for summary judgment, arguing Singh needed an expert to establish the standard of care for maintaining rooms in a large hotel. The issue in Singh v. Borgata Hotel Casino & Spa, 2026 N.J. Super. Unpub. LEXIS 1815 (App. Div. Aug. 4, 2026) was whether a plaintiff must present expert testimony to establish a large hotel’s standard of care for inspecting and maintaining its bathrooms.

The 700-room Borgata produced a work order tracing the water to a leak in the feed hose under the toilet’s tank. The room had last been occupied six days earlier, but a maintenance log showed no prior issues. Borgata normally inspected vacant rooms under a preventative maintenance program, but had suspended the program during COVID-19 and hadn’t reinstated it until after the accident.

Borgata argued that without an expert, Singh couldn’t establish an industry standard for keeping rooms in proper condition, or show that anything Borgata did breached that standard. Singh countered that New Jersey administrative regulations imposed a duty requiring hotels to keep “all parts of the premises” free from hazards and all toilets in working order. The motion court agreed with Borgata, reasoning that Singh had no basis to tell a jury what Borgata’s duty was or how it was breached. Moreover, even if the regulations applied, they didn’t establish Borgata’s inspection responsibilities or how they’d been violated. Singh appealed.

On appeal, Singh argued Borgata owed the ordinary common law duty any business owes its invitees: reasonable care to keep the premises safe, including sending an employee to inspect a vacant room for hazards before a new guest arrives. She argued a leaking toilet is neither “esoteric nor complex” enough to require expert testimony. The Appellate Division disagreed. Managing a 700-room hotel, it held, is esoteric and beyond a lay juror’s common knowledge and that without an expert’s guidance, a jury would have to speculate as to the duty a hotel owes its guests under these circumstances. Singh’s failure to provide an expert was fatal to her claim.

The Court also rejected Singh’s position that the regulations established a duty. The Court held that while the regulations dictate the condition rooms must be in, they say nothing about how often rooms must be inspected. Finally, the court found Borgata lacked constructive notice of the leak. Singh argued that the absence of notice didn’t excuse Borgata’s duty to inspect. The Court held otherwise: notice remains an independent element of any premises liability claim, and Singh needed to show how long the condition existed for a jury to assess whether Borgata had a reasonable opportunity to fix it. The court contrasted this case with situations involving circumstantial evidence of duration, like flattened, wet leaves on an outdoor step, against situations where duration is simply unknowable, like dog feces on a train platform that could have been there minutes or hours. With no comparable evidence here, any finding on how long the toilet had leaked would be pure speculation, giving the court a third independent ground to affirm.

One key takeaway is that a standard of care does not necessarily scale. While a leaking toilet and wet floor in a small hotel or business setting may be an obvious condition and less “esoteric” as to require an expert or to create an issue of notice, the maintenance responsibilities of a 700-room hotel will put that duty beyond the knowledge of an average juror. Further, a regulation does not directly equate to a legal duty, but a plaintiff must show how the duty set by the regulation meets the legal standard for a tort duty. Finally, notice remains a separate, independent element of a liability claim, and even a clear duty and a clear breach won’t sustain a premises liability claim without proof of actual or constructive notice.

Appellate Division Upholds Trial Court’s Use of an Evidentiary Hearing to Dismiss Late Tort Claims Notice on Public Entity

Plaintiff Thomas Twomey (Twomey) slipped and fell on the Morristown New Jersey Transit (NJT) train platform in late October, 2021, but did not put NJT on notice of his claim or file suit until two years later in October, 2023. Not having received a timely Tort Claims Act (TCA) notice, NJT, a public entity, filed a motion to dismiss for failure to state a claim. In opposition, Twomey’s attorney argued he had filed two separate TCA notices, relying only on certifications from himself and his paralegal in support of that position. In ruling on NTJ’s motion to dismiss, the trial court held an evidentiary hearing in which Twomey’s paralegal and attorney testified about their efforts to properly put NJT on notice of Twomey’s TCA claim. The issue in Twomey v. N.J. Transit Corp., 2026 N.J. Super. Unpub. LEXIS 1362 (App. Div. June 25, 2026), was whether the trial court properly used an evidentiary hearing to resolve credibility disputes in a motion for summary judgment on issues of a late TCA notice.

The TCA requires all claimants to serve a TCA notice of claim within 90 days of the accrual of their claim, typically the date the injury occurred. If the claimant fails to serve a notice in that initial 90-day window, they have a year after the date of accrual to file a motion for leave to file a late TCA claim by showing that they could not timely file a TCA notice due to extraordinary circumstances. Each of these are strictly read. However, if they have not filed a TCA notice within one year of the date of accrual of their claim, they are barred from filing any claim against the public entity.

The trial court scheduled an evidentiary hearing to determine whether Twomey had served a TCA notice on time; also, because it would need to review facts, the trial court converted NJT’s motion to dismiss into a motion for summary judgment. At the hearing, Twomey’s paralegal testified that she mailed an initial TCA notice within the 90-day period via regular and certified mail, but recalled no further details. She claimed she received a certified mail green card confirming NJT’s receipt, but discarded it alongside other records when she left the firm. Further, she recalled sending a second notice (after the 90-day window expired and to the State rather than the NJT), but she could only testify that she followed her standard routine and the attorney’s instructions. Twomey’s attorney similarly testified that he did what he usually did for TCA notices and could only assume the paralegal “adhered to her custom and habit.” In response, an NJT employee testified that claim numbers are assigned upon receiving a notice and the only claim number associated with Twomey’s began with “23,” signaling it was opened only after receiving the formal complaint.

Reviewing the “totality of the circumstances,” the trial court granted NJT’s motion for summary judgment. The court found Twomey’s attorney and paralegal were not credible, as neither had any independent recollection of serving the notice and could only establish a vague reliance on following “normal procedure.” NJT, on the other hand, following protocol, created a claim upon receipt of the only notice from Twomey. The court found it highly unlikely that, if Twomey had sent two letters with timely notice, both would have been missed by NJT. The court also dismissed Twomey’s argument for substantial compliance and equitable estoppel, finding that the TCA’s mandate “requiring” a TCA notice did allow any room to allow those equitable remedies. Twomey appealed.

Twomey argued on appeal that the trial court was wrong in granting summary judgment when issues of fact as to the mailing of the TCA notice existed and in its reliance on “credibility findings” in making its summary judgment determination. The Appellate Division disagreed on both counts. For one, if there is any factual dispute with respect to the mailing of a TCA notice, New Jersey law requires the court to engage in an evidentiary hearing and hear evidence to resolve the issue. Further, on a fresh review of the evidence, the Appellate Division found the court made the proper determination that, because Twomey’s claim accrued in late October, 2021, he had until late January, 2022 to file his TCA notice. His failure to do so, and his failure to ask the court for leave to file his TCA notice thereafter with a showing of extraordinary circumstances at any time, bar his claim in its entirety.

This decision shows the unique divergence from a usual motion for summary judgment analysis on the distinct issue of TCA notices. Typically, when there is a genuine issue of material fact, summary judgment must be determined for the non-moving party. To decide the issue of a timely TCA notice, however, a trial court may take additional evidence, including testimony and a weighing of witnesses’ credibility, to come to a resolution of that factual issue. It also establishes the rigidity of a proper TCA notice – as to the timeliness and to the proper party on which it is served. The failure to do either correctly can be fatal to a claim.

Appellate Division Reinforces Strict Compliance With the “Notice Requirement” of the Tort Claims Act

In S.S. v. Woodcliff Lake Board of Education, Plaintiff appealed an order dismissing his complaint for failure to serve a claim notice upon defendant Woodcliff Lake Board of Education (“Board”) pursuant to a provision of the Tort Claims Act (“TCA”), N.J.S.A. 59:8-8. The Appellate Division on March 9, 2026, affirmed in part and remanded in part.

Plaintiff’s son was an elementary student who was disciplined pursuant to the Board’s Harassment, Intimidation, and Bullying (“HIB”) policy. Plaintiff requested a hearing before the Board to contest the principal’s findings. The Board upheld the principal’s findings, and the Plaintiff filed an appeal with the New Jersey Commissioner of Education (“Commissioner”). While the appeal was pending, the Plaintiff filed a three-count civil complaint in the Law Division of the Superior Court of New Jersey alleging (1) negligence, (2) defamation, and (3) intentional infliction of emotional distress. Plaintiff sought compensatory damages and an order directing the Board to invalidate and remove the HIB finding from his son’s educational record.

The Board filed a motion to dismiss based on Plaintiff’s failure to file a timely notice of claim under the TCA and sought to bar Plaintiff’s request for compensatory damages. The Board maintained the accrual date for Plaintiff’s causes of action was March 8, 2024, the date when the HIB investigation concluded, and Plaintiff was required to file a notice of claim by August 6, 2024.  

Additionally, the Board argued Plaintiff failed to exhaust all administrative remedies because Plaintiff’s redress lied solely with the Commissioner of Education. See N.J.S.A. 18A:37-15(b)(6)(e). The Board asserted Plaintiff’s requests must first be fully adjudicated before the Office of Administrative Law and the Commissioner of Education.

The court determined Plaintiff was statutorily barred from pursuing monetary claims against the Board due to his failure to file a timely notice of claim under the TCA. The court agreed that May 8, 2024, was the accrual date, and the Plaintiff should have filed a claim notice by August 6, 2024. Additionally, the court concluded Plaintiff’s action was premature and he must first exhaust administrative remedies. Accordingly, the court granted the Board’s motion to dismiss with prejudice. Plaintiff sought reconsideration and requested the court clarify whether dismissal with prejudice precluded him from refiling after administrative exhaustion. He asked the court to amend the dismissal to be “without prejudice.” The court denied the request and Plaintiff appealed.

Plaintiff maintained he was only concerned with the “prejudicial designation attached to the exhaustion ruling.” He claimed the lower court’s order prematurely blocked opportunity for future litigation after the administrative exhaustion requirement is met.

The Appellate Division affirmed the court’s dismissal of Plaintiff’s tort claims against the Board for failure to comply with the TCA. However, regarding the written order dismissing Plaintiff’s complaint, the Appellate Division agreed that the court’s written order dismissing his complaint could be “erroneously interpreted to preclude [P]laintiff’s right to exhaust the administrative process before the Commissioner.” Id. at 13. As such, the Appellate Division remanded and instructed the court to amend its order to provide that dismissal for Plaintiff’s failure to exhaust administrative remedies is without prejudice so that Plaintiff may complete an administrative appeal.

This decision reinforces the procedural protections afforded under the TCA, even in matters arising from student discipline and HIB determinations. School districts should promptly assess potential claims and determine whether compliance with statutory notice deadlines are required by either party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court Refuses to Apply Mode of Operation Doctrine to Plaintiff’s Fall as a Result of Hanger on Floor of Retail Store

Plaintiff Rosalie Soiro claimed that, while walking down an aisle, she slipped and fell on a clothes hanger on the floor of a Family Dollar Store in Orange Township.  She further claimed that she hit her head on a shelf, landed on the floor, and suffered permanent injuries as a result of the fall.  The issue in Soiro v. Family Dollar, 2025 N.J. Super. Unpub. LEXIS 2504 (App. Div. Dec. 3, 2025) was whether the plaintiff had been able to establish actual or constructive notice as to the hanger on the floor and, in the alternative, whether the mode of operation doctrine applied.

Plaintiff alleged that she suffered injuries to her neck, back, left shoulder and left knee due to her fall.  She testified in her deposition that she was unaware of any hangers on the floor before she fell and did not see what caused her to fall.  However, it was her testimony that two young boys in the store told her the hangers caused her to fall.  She only saw the hangers on the floor after she fell.

During discovery, plaintiff did not depose any Family Dollar store employees or a corporate designee.  She also failed to produce any medical records or expert reports establishing a causal connection between her fall and her claimed injuries.

After discovery concluded, the defendant store filed for a summary judgment.  The defendant argued that plaintiff was unable to establish that it had actual or constructive notice of this alleged dangerous condition, the mode of operation doctrine did not apply, and plaintiff lacked medical proof of any injury causally related to the incident.  In opposition, plaintiff argued that she was not required to establish that defendant had notice of the hangers on the floor because the mode of operation doctrine applied.

After hearing argument, the trial court granted defendant’s motion and dismissed the lawsuit.  The trial court found that the defendant had failed to present evidence that defendant had either actual or constructive notice of the hanger and that this was not a mode of operation case.

This decision was appealed.  The Appellate Division noted that for plaintiff to pursue a negligence claim against the store, she must demonstrate that the defendant had actual or constructive knowledge of the dangerous condition that caused her accident.  The Court noted that the record was “devoid of any competent evidence to show or suggest actual or constructive notice to hold a defendant liable.”  Plaintiff failed to present the incident report or deposition testimony from a store employee to demonstrate defendant had notice of the hanger on the floor. 

Further, the Court noted that even if it were to accept plaintiff’s testimony as true, that a hanger was on the floor before her fall, there was no evidence defendant had the constructive knowledge the hanger was on the floor “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  Hence, the Appellate Division found that the absence of actual or constructive notice of the dangerous condition was fatal to her claim of premises liability. 

It also disagreed with the plaintiff that the mode of operation doctrine applied, which would have relieved her of demonstrating defendant’s actual or constructive notice of the alleged dangerous condition. The Appellate Division pointed out that the mode of operation rule was not a general rule of premises liability, “but a special application of foreseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a customer’s self-service model.” 

Thus, the Court noted that for a plaintiff to invoke the mode of operation doctrine, the plaintiff must demonstrate the dangerous condition arose as a result of the business’s self-service mode of operation.

Here, the Appellate Division found that her argument suffered from a fatal flaw.  She had not established that the defendant operated a self-service business, although both parties described the business as a retail establishment. The Court found that without factual evidence regarding the nature of the merchandise for sale and the actual method of defendant’s business operations, plaintiff had not satisfied the requisite elements to invoke the mode of operation doctrine.

Even after giving all reasonable inferences to plaintiff, she had not established a dangerous condition existed on defendant’s property and that defendant was on notice of the condition.  The Appellate Division found that “[t]o hold otherwise would impermissibly permit a jury to engage in conjecture about notice because it would have to speculate whether a hanger was on the floor, how the hanger came to be on the floor, and the duration of its existence on the floor.”  Accordingly, the Appellate Division found that the defendant was entitled to summary judgment as a matter of law and affirmed the trial court’s decision.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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