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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.

Concert Venue Found Not Liable for Slip and Fall Injury From Liquid on Concourse

Plaintiff Gabriela Mirtha Tiscornia Sosa was injured when she slipped and fell on a wet floor at a concert at the Prudential Center.  This venue was owned by defendant DAE, which contracted with defendant ABM to provide janitorial services.  The issue in Sosa v. Devils Arena Entertainment, LLC, 2025 N.J. Super. Unpub. LEXIS 787 (App. Div. May 15, 2025) was whether the defendants could be liable for the injuries plaintiff suffered from her fall in the translucent puddle on the upper concourse.

Plaintiff and her daughter had upper-level seats but about 10 minutes into the show, a Prudential Center employee offered to move them to seats closer to the stage.  They agreed and went down the steps to the concourse level and entered the concourse.  Plaintiff slipped and fell as she looked for an elevator to take down from the upper level.  She claims she saw a translucent puddle while she was lying on the ground.  Plaintiff claimed that both DAE and ABM were negligent because they allowed a “dangerous condition” to exist, which caused her injury.

At the trial court level, the court granted summary judgment dismissing the case.  This appeal ensued. 

The claim against DAE was that it caused the injury by moving her seat and permitting the service of drinks and open containers.  Plaintiff argued that it was foreseeable that beverages would spill onto the floor and plaintiff did not have to show that DAE had notice.  Plaintiff claimed that the mode-of-operation doctrine applied because of the manner of the beverage service and an inference could be drawn that a drink caused the spill leading to her fall.  Plaintiff also claimed that ABM had constructive notice and was, therefore, liable because it was aware of DAE’s practice of allowing open drink containers.

The trial court judge found that the mode-of-operation doctrine did not apply because there was no information in the record establishing what the liquid that plaintiff fell on was, where the liquid came from, where it was created, or how long the liquid was present on the floor.  The Appellate Division agreed with the trial court’s decision that the mode-of-operation rule would not apply under these circumstances.

Further, the unrebutted evidence showed that DAE had contracted to keep the arena clean and that the ABM representatives’ testimony explained how ABM went about doing so.  Plaintiff failed to establish a nexus between DAE’s mode-of-operation, “mainly, serving drinks in open containers, having a janitorial services company patrol and monitor the area of floors,” and the liquid on the floor.

The Appellate Division further commented that there was no evidence to support the necessary elements of actual or constructive notice to hold either DAE or ABM liable.  Plaintiff did not know what she slipped on or what the liquid was on the floor.  There had been no reports of spills or debris.  Even if there was liquid on the floor, there was no evidence showing how long it was present or that it was caused by an open container beverage.  Hence, the Appellate Division affirmed the trial court’s decision, granting summary judgment and dismissing the complaint.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appellate Division Rules That Department of Transportation and State of New Jersey Were Not Liable for Injury Caused by Pothole

By: Uyen Nguyen, Law Clerk
Edited By: Betsy G. Ramos, Esq.

Plaintiff Josef and Stefani Langel filed a complaint against Defendants New Jersey Department of Transportation (DOT), State of New Jersey, county, municipal, and private entities, alleging that Defendants’ failure to provide proper warning and repair a pothole in the roadway caused his injuries when he was thrown off his bike. The issue in Langel v. State DOT, 2024 N.J. Super. Unpub. LEXIS 1490 (App. Div. July 10, 2024) was whether Defendants DOT and the State of New Jersey were liable for the injuries Plaintiff Josef Langel sustained from the pothole.

On March 16, 2019, Josef Langel rode a bicycle on Sylvan Avenue, a section of Route 9 West, in Englewood Cliffs, NJ. He hit a pothole in the roadway, causing him to be thrown off his bike and sustain injuries. Plaintiff and his friends were on a bike trip from New York City to Piermont, NY. Plaintiff claimed that he rode the same route six months before the accident. However, Plaintiff never noticed the pothole before the accident, nor made any complaint about the road conditions to any state entities.

Ronald Gallucci, a DOT crew supervisor who oversaw the maintenance of Route 9 West, testified that he had neither received any complaints, nor seen the pothole that injured the Plaintiff. He stated that his maintenance crew inspected the roadway every other day for potholes. According to Gallucci, if the DOT had received a complaint about the potholes, he or his crew would have inspected the area.

William Falato, a DOT equipment operator, also testified that he was familiar with the area where the accident occurred and had never seen the pothole before. According to this witness, if the pothole had been there for a substantial period, he or his crew would have noticed it due to its large size. He also recounted instances where his crews inspected an area and saw no potholes, but within days later, DOT received a complaint that a pothole had formed.

Englewood Cliffs Patrol Officer Marc Krapels, who responded to Plaintiff’s accident, also testified that he had not seen the pothole before. Krapels stated that from his experience patrolling the area, a pothole could form at any time, since the town is located on a cliff. DOT also provided complaints it received on February 27, 2019 regarding potholes in areas surrounding where Plaintiff hit the pothole. However, the records indicated DOT did not receive any complaint about the pothole that Plaintiff hit.

Meanwhile, Plaintiff obtained a report from expert engineer Richard Balgowan, who indicated that the pothole had been present for at least a year before Plaintiff’s accident. However, Balgowan admitted that he did not inspect the location until April 23, 2021, which was more than two years since Plaintiff’s accident, and the pothole had been repaired by then.

On August 1, 2022, Defendants filed a motion for summary judgment claiming they were entitled to discretionary immunity under the NJ Tort Claims Act (TCA), N.J.S.A. 59:2-3. Defendants maintained that their conduct in maintaining the roadway was not palpably unreasonable, and Plaintiff’s expert report was a net opinion. On the other hand, Plaintiff cross-moved for summary judgment, arguing that defendants were not entitled to discretionary immunity. Plaintiffs claimed Defendants had actual and constructive knowledge of the dangerous conditions, and their actions or omissions were palpably unreasonable. Plaintiff also argued that their expert report was not a net opinion.

The Law Division granted the summary judgment in favor of Defendants DOT and the State of New Jersey, denied Plaintiff’s summary judgment, and dismissed the complaint with prejudice. Ultimately, Plaintiff moved for reconsideration. Plaintiff’s motion for summary judgment and reconsideration was denied because they had failed to establish that Defendants had actual or constructive notice of the pothole. On appeal, the Appellate Division reviewed whether the trial judge had abused his discretion in denying Plaintiff’s motions for reconsideration.

Under the TCA, a public entity is liable for injuries caused by a dangerous condition if it has actual or constructive notice of its existence. To establish actual notice, Plaintiff must show that the public entity has actual knowledge of the existence of a condition and knew or should have known of its dangerous character. Defendants can still be liable, even though they didn’t have actual notice if Plaintiff can establish that they have constructive notice of the dangerous condition. To establish constructive notice, Plaintiffs must show that the dangerous condition had existed for a period of time and was of such an obvious nature that Defendants should have discovered it if they exercised due care.

To show actual knowledge, Plaintiff offered a photograph of the pothole that had been paved over at some point. However, Plaintiff failed to prove that the repair was performed before the accident. Thus, Plaintiff could not prove that Defendants had actual notice or knew about the pothole before his accident. Regarding constructive notice, Defendants’ witnesses all testified that a pothole could have formed within a few days or even overnight. Plaintiff could not show that the pothole had existed for a period of time despite its obvious nature, and DOT failed to exercise due care to discover it. Thus, Plaintiff was also unable to establish Defendants had constructive notice of the pothole.

Furthermore, the Appellate Division held that the expert’s opinion Plaintiff provided was a mere conclusion. Applying the standard established by the NJ Supreme Court in Pomerantz Paper Corp. v. New Community Corp. regarding the admissibility of expert opinions, the Court concluded that the expert’s opinions in this case were a mere conclusion because Plaintiffs’ expert witness could not “give the why and wherefore” to support his opinion. Furthermore, the fact this expert did not inspect the pothole in person two years after the accident did not weigh in favor of Plaintiffs.

Under discretionary immunity, a public entity is not liable for the exercise of discretion unless a court concludes that its procedures or policies are palpably unreasonable. Although the Law Division did not rely on this doctrine as a basis to grant Defendant’s motion, the Appellate Division applied the doctrine in this case and held that the DOT Assistant Commissioner’s decisions in inspecting roadway and repairing potholes were entitled to discretionary immunity. Thus, Defendants are not liable for Plaintiff’s injuries because their conduct in maintaining the roadway and making repairs was not palpably unreasonable.

Hence, the Appellate Division affirmed the summary judgment granted to the Defendants, dismissing the Complaint.

Court Permits Plaintiff To File Late Notice Of Tort Claim

This case involved a tragic accident in which four members of a family were involved in a one-vehicle accident at a toll plaza on the Atlantic City Expressway.  Due to this accident, three of the family members were killed and the fourth member, a 12 year old girl, was severely injured.  To be able to sue the South Jersey Transportation Authority for this accident, the plaintiffs in this case, the Estates of the decedents and guardian of the survivor, sought leave from the court to file a late tort claims notice against the Authority (“SJTA”).  The issue in Estate of Khiev v. South Jersey Transportation Authority, 2024 N.J. Super. Unpub. LEXIS 226 (App. Div. Feb. 14, 2024) was whether the trial court correctly ruled that a late tort claim notice could be served. 

This accident happened on December 26, 2021 when the decedents’ vehicle crashed at the Egg Harbor Toll Plaza on the Atlantic City Expressway.  The South Jersey Transportation Authority owns and operates the Expressway.  On January 4, 2022, plaintiffs contacted and retained counsel to investigate the crash and also requested the police report and a video of the crash.  A preliminary police report was received on January 19, 2022 but it did not contain a full investigation or video of the accident.  In February 2022, plaintiffs retained two experts to investigate the crash.  Their preliminary investigations did not reveal any obvious roadway defects.

On March 17, 2022, the State Trooper with whom plaintiffs’ counsel had been in contact, advised plaintiffs that he had prepared a supplemental report and, further, plaintiffs could now request the complete report, as well as the video of the crash.  Their request was made that same day.  The final report, however, was not delivered to plaintiffs’ counsel until May 5, 2022 and the video of the accident was not delivered until May 11, 2022.  After plaintiffs’ experts reviewed and discussed the video, they formed the opinion that there was a design defect in the toll plaza that had substantially contributed to plaintiffs’ deaths and injury.  In their opinion, there was a sloped concrete barrier of the toll plaza, and that when plaintiffs’ vehicle travelled up the slope of the barrier, it caused the vehicle to combust and sustain catastrophic damage, which led to the deaths and injury of plaintiffs.

On May 31, 2022, plaintiffs filed a motion seeking leave to file a late notice of tort claim as to the SJTA.  The motion was unopposed and the court granted an order on June 24, 2022, permitting the late notice to be filed. Thereafter, the plaintiffs did file their tort claims notice on June 30, 2022.

However, it was ascertained that defendant Authority had not been properly served with the notice of motion.  Thus, defendant filed a motion to vacate the June 24, 2022 order and now filed opposition to plaintiffs’ motion for leave to file a late tort claims notice.

Although the trial court did vacate the June 24, 2022 order, it granted plaintiffs’ leave to file a late tort claims notice.  The court granted the application on two bases.  First, the trial court found that the date of accrual of plaintiffs’ claims was not until May 11, 2022 when plaintiffs had sufficient information that a public entity could be responsible for the crash, rather than December 26, 2021, the date of the crash.  Accordingly, the filing of the tort claims notice on June 30, 2022 was considered timely to meet the ninety (90) day notice requirement under the Tort Claims Act.

Second, the trial court found, in the alternative, that there were extraordinary circumstances justifying late notice.  The judge found that plaintiffs had exercised due diligence in investigating the accident but determined that defendant was potentially liable only when they received a video.  Also, the trial court found that the defendant SJTA would not suffer any substantial prejudice if the late claim was permitted.  It had been aware of the accident and witnesses related to the accident were still available.  The toll plaza worker who had been injured in the accident was still available as a witness and the damaged vehicle had been preserved and defendant had access to the video of the accident.

This decision was appealed to the Appellate Division.

Upon appeal, the SJTA made three arguments:  First, it contended that the trial court misapplied the law in finding that the accrual date was the date plaintiffs received the video, rather than the date of the accident. Second, it argued that the trial court abused its discretion “in finding that, even if the claim accrued on the date of the crash, extraordinary circumstances justified allowing plaintiffs to file a late notice.”  Last, defendant argued that the trial court abused its discretion in finding that there would be no substantial prejudice in in permitting plaintiffs the right to file a late notice.  The Appellate Division reviewed these arguments and rejected all of them.

Pursuant to N.J.S.A. 59:8-8, the failure to serve a notice of claim upon a public entity within the ninety (90) day period following accrual of the claim results in a bar against the claim.  However, the Tort Claims Act permits a claimant to move for leave to file a late notice of tort claim within one year after the claim accrues.  Under N.J.S.A. 59:8-9, a trial court may grant the motion “if there are sufficient reasons constituting extraordinary circumstances for the claimant’s failure to timely file” a notice within that ninety day period and, further, if the public entity is not substantially prejudiced thereby.

The “accrual” of a claim has been determined to be the date on which the underlying tortious act occurred.  However, under the “discovery rule,” the law also allows for a delay of the date of accrual when the victim is unaware of an injury or does not know that a third-party is liable for the injury.  Based upon the “discovery rule,” the accrual date is tolled from the date of the tortious act or injury when the injured party either does not know the injury or does not know that a third-party is responsible for the injury.  Under this rule, the claim will accrue when the claimant knows there has been an injury and there are facts suggesting that a third-party may be responsible. 

Here, the Appellate Division found that the claim did not accrue until May 11, 2022 when their counsel received video footage of the crash.  Until that date, there were no facts suggesting that the South Jersey Transportation Authority may have been responsible for the plaintiffs’ deaths and injuries.  The Appellate Division agreed with the trial court that just knowing that the defendant owned the roadway and toll plaza was not sufficient for the claim to accrue.  Rather, the claim accrued when plaintiffs’ experts reviewed and analyzed the video and learned that defendant might be responsible for the plaintiffs’ deaths and injuries. 

The Appellate Division also considered the alternative argument that the plaintiffs’ late notice of claim was justified by extraordinary circumstances.  In determining whether extraordinary circumstances exist, the inquiry focuses on whether there has been reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor. 

Here, again, the Appellate Division agreed with the trial court that the plaintiffs had shown extraordinary circumstances to justify a late notice of tort claim.  The Court found that the plaintiffs acted with due diligence to retain experts and to obtain the accident report and the video.  However, it was the state police who took some time to approve the final accident report and released the video.  Therefore, the accident report was not received until May 5, 2022 and the video on May 11, 2022.  It was not until the video was reviewed and analyzed by the plaintiffs’ experts, who, for the first time, had a basis to opine that the Authority could be responsible for this accident.  Thus, the Appellate Division agreed that the plaintiffs acted with due diligence and were prevented from serving a timely tort claims notice by extraordinary circumstances.

Finally, the Court considered whether there was substantial prejudice to the Authority by the filing of the late notice of tort claim.  The Appellate Division found that the Authority had not demonstrated any prejudice, much less substantial prejudice. It was well aware of the accident, the car had been preserved, and the witnesses to the accident were still available.  Hence, the Appellate Division found no abuse of discretion in the trial court’s finding that there was no substantial prejudice to defendant.  Accordingly, the trial court decision to permit the filing of a late notice of claim was affirmed and plaintiffs were allowed to go forward with their lawsuit. 

No Liability Found for Jersey City for Injury Caused by Trip and Fall on Uneven Pavement

Plaintiff Linda Emmanoulidis was walking her dog in Enos Park in Jersey City when she tripped and fell on an uneven pavement and sustained injuries. The issue in Emmanoulidis v. City of Jersey City, 2023 N.J. Super. Unpub. LEXIS 477 (App. Div. Mar. 30, 2023) was whether the City could be liable for a pedestrian accident caused by a trip and fall on an uneven pavement under the Tort Claims Act.

Prior to her fall, Plaintiff had never walked in the area before and did not know how long the condition existed. After her fall, Plaintiff retained an engineering expert who opined that the elevation of the crack where Plaintiff stated she fell was 1/2 – 3/4 inches. In his report, the expert noted that some of the concrete sidewalk slabs showed signs of repairs but not in the specific area where plaintiff fell. The report did not indicate when the repairs were done and who performed the work.

Plaintiff sued the City of Jersey City claiming that the uneven pavement was a dangerous condition which caused her accident. The City moved for summary judgment dismissal, contending that the plaintiff had not established the existence of a dangerous condition of which the City had actual or constructive notice. In addition, the City contended plaintiff did not demonstrate that the City’s conduct was palpably unreasonable.  In response to the motion, plaintiff presented a certification from her brother-in-law, a retired Jersey City police officer. He certified that, in course of his job, he had searched evidence in the area where plaintiff fell and the condition of the pavement was exactly as it was on the day she fell for at least four years.

The trial court granted the City’s motion for summary judgment, holding that the plaintiff had not demonstrated the uneven sidewalk was a dangerous condition and that the City had actual or constructive notice of the “declivity in the walkway.” The Court reviewed the photographs on record and concluded that the condition was not so open and obvious to provide the City of constructive notice of a dangerous condition. 

Upon appeal, plaintiff argued that the court erred in finding: 1) the uneven pavement was not a dangerous condition; 2) the City was aware of the dangerous condition; and 3) the City’s failure to fix the dangerous condition was palpably unreasonable. The Appellate Division noted that under the Tort Claims Act, a dangerous condition exists when there is a defect in the physical condition of the property itself. The Court held that whether the defect in the pavement was a dangerous condition could be left to the jury for determination.

To determine the issue of notice, the Court considered that the plaintiff could not establish: 1) the duration for which the crack was present; 2) there was no evidence to show that the City had actual knowledge of the crack; 3) the City had no record of any complaints regarding the crack; and 4) the certification offered by plaintiff’s brother-in-law did not satisfy the notice to public entity standard. In addition, plaintiff could not show the crack was open and obvious. Thus, the Appellate Division held that plaintiff did not demonstrate that the City had actual or constructive notice of the defect. Therefore, the Court ruled that the plaintiff did not establish that the City was liable under the Tort Claims Act and affirmed the summary judgment dismissal.

Hotel Found Not to Be Liable for an Injury Caused by Trip Over Corner of Bed Frame

Plaintiff Cheryl King was a guest at the defendant Harrah’s Atlantic City Hotel.  While walking through her hotel room, she hit her leg on the corner of the bed frame which caused her to trip and hit her head on the wall.  The issue in King v. Harrah’s Atlantic City Operating Co., LLC, 2023 U.S. Dist. LEXIS 70806 (D.N.J. Apr. 24, 2023) was whether the defendant hotel breached any duty owed to plaintiff that caused her injury.

Plaintiff claimed that the bed frame was improperly exposed and, thus, created a dangerous tripping hazard.  However, she had slept in the room at least once and had not reported any issues with the bed or the bed frame until after she fell.  She claimed that the defendant hotel was liable for her injuries and negligence because it knew of the alleged defect in the bed frame prior to her stay but had never sought to correct it.

It was not disputed that the defendant hotel owed plaintiff a duty to maintain the premises in a reasonably safe condition. Rather, the issue was whether plaintiff could adequately demonstrate that defendant breached its duty.

The defendant filed a motion for summary judgment, seeking a dismissal.  It claimed that it was not liable for her alleged trip and fall incident.

To establish a breach of duty care, plaintiff must prove “that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”  The dangerous condition of the property must involve an unreasonable risk of harm.  The District Court noted that not every property condition on which persons can hurt themselves is unreasonably dangerous or hazardous.

Based upon the facts of this case, the plaintiff did not claim that the bed frame was broken or damaged, that it blocked her path as she walked around her hotel room, or that the bed frame ever moved from the original position it had presumably always occupied prior to her fall.  Her claim was that it was “defective” because one particular corner extended out beyond the mattress.

The District Court noted the following: “while it is clear that plaintiff tripped over a bed frame, the Court fails to comprehend based on the record before it how the bed frame was defective or otherwise posed an reasonable risk of harm.”  The Court found that the plaintiff had not submitted any evidence suggesting that the danger of this particular bed frame differed from the ordinary risks inherent in any other bed frame.  Further, she offered no expert testimony demonstrating that the bed frame created a dangerous condition or that it was contrary to industry standards.  The Court found that “plaintiff has failed to fully articulate any real defect at all, much less prove the existence of a dangerous one.”

Further, the Court noted that any danger that the bed frame could have posed was “undoubtedly neutralized by its clear and obvious visibility in the room.”    The simple fact that plaintiff tripped and fell does not make the bed frame unreasonably dangerous or hazardous as a matter of law.  Further, the Court found that it did not diminish the bed frame’s plain visibility, the appropriateness of its placement, or lessen the expectation that plaintiff should have taken reasonable care as she walked to avoid this particular injury. 

Based upon the facts, the District Court found that no reasonable jury could find that defendant had actual or constructive notice of the bed frame as a dangerous condition.  Any reasonable prudent person would have observed, in light of the dimensions of the bed, its presence in his or her lane of travel.  Because plaintiff could not prove that defendant breached its duty of care, the District Court found that her negligence claim must fail as a matter of law.  Hence, the defendant’s motion for summary judgment was granted.

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