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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Plaintiff Fails to Meet the Requirements of Fictitious Pleading Rule to Be Able to Add New Parties in Amended Complaint

Plaintiff Jorge Jimenez-Peguero was working for defendant Royal Packaging, LLC at its Totowa warehouse when he was severely and permanently injured by a large industrial machine.  Plaintiff claimed that the machine malfunctioned and struck him in the back and then dropped a 100 pound bag of “flower” onto him.  Approximately six months after the accident, OSHA issued a citation and notification of penalty to the employer for a violation of the OSHA Act.  OSHA’s report identified other parties responsible for the accident including EWMT Consulting, LLC (“EWMT”) and Magnum Systems (“Magnum”).  The issue in Jimenez-Peguero v. Royal Packaging, LLC, 2025 N.J. Super. Unpub. LEXIS 940 (App. Div. June 4, 2025) was whether plaintiff’s First Amended Complaint, naming EWMT and Magnum as two new defendants, was untimely.

EWMT was the entity who installed the machine, conducted training on the machine and prepared maintenance reports for the machine.  Magnum was the entity that manufactured the machine. 

The accident occurred on November 27, 2017.  Plaintiff received the OSHA report in response to a Freedom of Information Act request on October 24, 2019, approximately one month before the expiration of the two-year statute of limitations and filed a lawsuit against Royal Packaging, LLC, Royal Group, and Royal Distribution, LLC and several fictitious parties.  However, he did not sue EWMT or Magnum.

In its answer filed on January 23, 2020, Royal Packaging, however, did include third-party claims against EWMT for contractual indemnification and contribution.  Thereafter, about one month later, EWMT answered the third-party complaint and included a fourth-party complaint against Magnum.

Discovery ensued and, on February 17, 2021, plaintiff filed a motion seeking leave to file a first amended complaint against Magnum and EWMT, identifying them as the fictitious parties named in his initial complaint filed fourteen months earlier.  The motion was unopposed, and it was granted.  However, in their answers, both Magnum and EWMT asserted defenses that plaintiff’s claims against them were untimely.

After further discovery for another year, Magnum and EWMT moved for summary judgment. They argued that plaintiff’s claims against them in his first amended complaint were filed after the two-year statute of limitations expired and, hence, were untimely. The trial court granted both motions, dismissing the claims against both of them.

The trial judge found that based on the fictitious pleading rule, pursuant to Rule 4:26-4, plaintiff’s claims against both of these entities were time-barred.  The trial judge noted that it was undisputed that the OSHA report identified both Magnum and EWMT as potential defendants.  However, plaintiff failed to name either of them in his initial complaint, which entitled them to a dismissal of the first amended complaint.

This appeal ensued.  Plaintiff contended that he should have been allowed to proceed with his negligence claims against EWMT and Magnum.  Plaintiff argued that he was unaware of their respective involvement with the machine when he filed his initial complaint.  He further argued that, despite the expiration of the statute of limitations, naming them in the first amended complaint was proper under Rule 4:26-4, given his due diligence to identify their liability for his injuries. 

Plaintiff disputed the trial judge’s finding that he had ample notice through the OSHA report, which was received only about five weeks before the statute of limitations ran, to timely name these two entities as defendants in his initial complaint.  He argued that the OSHA report in no way tied these two entities to any acts that would have given rise to the plaintiff’s injuries.  Finally, plaintiff argued that he was aware of their potential liability for the accident only through EWMT’s third-party defendant interrogatory answers.

The issue upon appeal was whether plaintiff should have been allowed to amend his negligence claims against these two new parties after the statute of limitations expired.  The Appellate Division rejected plaintiff’s arguments and agreed with the trial court judge’s decision, dismissing the claims against them.

The Court noted that a lawsuit to recover damages for personal injury must be brought within two years after the date of the injury.  The fictitious pleading rule, Rule 4:26-4, permits a plaintiff to use a placeholder name for the defendant by asserting the name is “fictitious” and “adding an appropriate description sufficient for identification.”  However, once the fictitious party’s name is ascertained, the plaintiff must file a motion to amend the complaint to name the defendant.

The Appellate Division pointed out that the fictitious pleading rule will not shield a plaintiff who had adequate time to discover and obtain the identity of the defendant.  Under prior case law, there was an established 2-pronged analysis to discern whether a plaintiff may rely on a fictitious pleading:  1)  “A plaintiff must exercise due diligence endeavoring to identify the responsible defendants before filing the original complaint naming John Doe parties; and 2)  “A plaintiff must act with due diligence in taking prompt steps to substitute the defendant’s true name, after becoming aware of that defendant’s identity.”

In applying this test, the Appellate Division found that the plaintiff did not exercise due diligence naming these two defendants.  Plaintiff was aware of their involvement with the machine through the OSHA report that was received about five weeks before this statute of limitations expired.  Although the plaintiff contended that the report was insufficient to indicate a viable claim against Magnum and EWMT, the report did delineate the names of both entities, their connection to the machine, and disclosed EWMT’s address and Magnum’s telephone number. 

Moreover, in applying this 2-prong rule, the Appellate Division found that plaintiff had failed both prongs.  He failed to exercise due diligence in identifying these defendants before the original complaint was filed.  The OSHA report was sufficient to inform plaintiff that a potential claim existed against both of these entities.  The Appellate Division noted that plaintiff had timely notice of EWMT and Magnum’s identity and involvement with the machine but “neglected to take additional steps to investigate viable claims against them.”

Additionally, the Court found that plaintiff failed the second prong “as he did not act with due diligence in substituting EWMT and Magnum after becoming aware of their involvement.”  Although plaintiff contends that he became aware of these claims upon receipt of EWMT’s interrogatory answers, he did not move to amend the complaint until nine months later. 

In conclusion, the Appellate Division found that plaintiff had not shown he exercised due diligence to identify EWMT and Magnum as the defendants prior to the expiration of the statute of limitations, especially when he had received the OSHA report detailing their respective involvement with the machine.  Under these circumstances, regardless of whether EWMT and Magnum were not prejudiced in defending the matter, the Court found that was not a basis to circumvent the frivolous pleading rule.  Hence, the Appellate Division affirmed the trial court’s decision, dismissing the amended complaint against EWMT and Magnum.

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

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

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

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

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

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

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

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

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

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

Res Ipsa Loquitur Doctrine Found Not to Apply to Plaintiff’s Injury Caused by Falling Showerhead Screen

Plaintiff Abdullah Alhababi was a guest at defendant Caesar’s Hotel when he was injured due to a showerhead screen that suddenly detached and fell on his head.  It caused him to fall and lose consciousness.  The issue in Alhababi v. Caesar’s N.J., Inc., 2025 N.J. Super. Unpub. LEXIS 395 (App. Div. Mar. 14, 2025) was whether the doctrine of res ipsa loquitur should have been applied to afford the plaintiff a permissive inference that his injuries were caused by defendant’s negligence.

On the day before the accident, plaintiff had checked into a 2-bedroom suite at the defendant’s hotel, accompanied by three friends.  Each bedroom had its own adjoining bathroom and the living room also had its own bathroom.  Two of the friends stayed in one bedroom while the other friend stayed in the living room adjoining the two bedrooms.

On the next morning, plaintiff turned on the shower in the bathroom adjacent to the room he was staying in and let the water run as he shaved and brushed his teeth.  He noticed nothing amiss with the water coming out of the showerhead at that time.  He then entered the shower which had two showerheads.  One was on the wall and one was on the ceiling.  He claimed that he did not touch or adjust the one on the ceiling at any time and did not believe he could have done so due to its height.

After he entered the shower, he was washing his face and the screen of the ceiling showerhead came loose, fell and hit him on the right side of his head.  It caused him to lose his balance and fall backward.  He claims that his body hit the bench, causing him to lose consciousness.  He sued the defendant hotel for his injuries suffered as a result of this incident.  He claimed that he was diagnosed with various head and spine injuries.

Plaintiff relied upon the doctrine of res ipsa loquitur, which, if established, would have afforded him a permissive inference that his injuries were caused by defendant’s negligence.  At the close of evidence at the trial, plaintiff asked the trial judge to enter a judgment as to two of the three res ipsa loquitur elements.   The trial judge granted judgment on one of the elements, ruling that plaintiff had not contributed to the occurrence of the incident causing his injuries. 

However, he denied the motion with respect to the other element, declining to rule that defendant maintained exclusive control of the instrumentality that caused plaintiff’s injuries.  Instead, he allowed the jury to make that determination.  After deliberating, the jury returned a verdict for defendant.  Thereafter, plaintiff filed a motion for a judgment notwithstanding the verdict and asked for a new trial, which the trial court denied.

These motions were thereafter appealed to the Appellate Division.  Ultimately, the Appellate Division agreed with the trial court’s rulings and affirmed the trial court’s denial of plaintiff’s motion for a new trial.

The Court explained that the owner of commercial property must exercise reasonable care in ensuring the safety of its invitees.  However, the plaintiff has the burden of proving that the property owner’s negligence caused her injuries.  The Appellate Division explained that “when a plaintiff is unable to allege a defendant’s specific breach of duty, the doctrine of res ipsa loquitur allows the factfinder to draw an inference of negligence against the defendant if they were in exclusive control of the object or means that caused the accident.”

For this doctrine to apply, the factfinder would need to find as follows:

a)    the occurrence itself ordinarily bespeaks negligence;

b)    the instrumentality was within the defendant’s exclusive control; and

c)    there is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

Here, the Appellate Division found that plaintiff was not entitled to the legal conclusion that defendant had exercised exclusive control of the showerhead as a matter of law.  According to the hotel manager’s testimony, 64 guests made 71 reservations for the room in the 9 month period before the incident had occurred.  All of these guests who occupied the subject hotel room had access to the showerhead.

Although the plaintiff’s testimony was that none of his friends used the shower before the incident, that does not establish as a matter of law that the showerhead was “not generally accessible or manipulable by the other guests staying with plaintiff.”  Hence, the Appellate Division agreed with the trial court that “reasonable minds could differ” as to whether plaintiff, his in-room guests or any other previous hotel guest could have manipulated the showerhead in such a way to cause the screen to fall.

Thus, the Court found that the matter was properly submitted to a jury and the jury’s “reasonable minds” did differ from the plaintiff’s presentation, specifically rejecting plaintiff’s contentions that the showerhead was “within the defendant’s exclusive control.”  Accordingly, the doctrine of res ipsa loquitur did not apply to create an inference of negligence against the defendant hotel. 

Further, the Appellate Division agreed with the trial court’s decision that plaintiff did not present sufficient evidence to meet the significant burden to overturn the jury’s verdict.  The Court noted that even if the evidence did establish defendant’s exclusive control, the res ipsa inference is simply permissive and the jury is free to accept or reject it.  Thus, the Appellate Division concluded that the jury’s finding that defendant was not in exclusive control of the showerhead was supported by credible evidence in the record and its verdict was not a “miscarriage of justice.”  Hence, the Court affirmed the trial court’s denial of plaintiff’s motion for a new trial.

  • Evidence

Photographs Showing Mopping of Floor and Caution Sign Placed Post-Accident Barred at Trial As Subsequent Remedial Measure

Plaintiff Pauline Jelken fell in a puddle of water in the lobby of the defendant’s Public Storage facility.  After she fell, an employee mopped the puddle and placed a caution sign on the floor.  Plaintiff sued Public Storage for her injuries suffered from the fall. The issue in Luciano v. Public Storage, 2025 N.J. Super. Unpub. LEXIS 383 (App. Div. Mar. 13, 2025) was whether the trial court judge properly barred Jelken from introducing photographs of the post-accident measures undertaken after Jelken fell, specifically the mopping of the floor and the placing of the caution sign. 

On July 4, 2018, Jelken went to defendant Public Storage’s facility with her friend Arlene Castello to retrieve items she had stored there.  It rained that day and she slipped and fell in a puddle of water in the lobby of the premises.  Jelken reported her fall to the defendant’s employee.  Thereafter, an employee mopped the puddle and placed a caution sign on the floor.

Jelken filed a personal injury lawsuit for injuries she suffered in her fall.  The case proceeded to trial and, among other witnesses, the defense presented a forensic engineering expert, Dr. David Behnken, to testify as to the condition of the floor. 

Prior to trial, the defense made two evidentiary motions, ruled upon by the trial court, one of which will be discussed in this blog article.  One of the motions concerned post-accident photos that showed the floor being mopped and a caution sign placed at the scene of the fall. The defendant sought to bar them from being introduced into evidence at the trial. The trial court judge granted that motion.

The trial court judge asked Jelken’s attorney to state the basis for introducing this evidence.  Jelken’s attorney stated that he intended to use the photographs to demonstrate Jelken “got out of the facility safely.”  The trial court judge ruled that the post-accident photographs were inadmissible under the evidentiary rule, N.J.R.E. 407, which barred the introduction of evidence of subsequent remedial measures.

The judge reasoned that the photos went more to the remedial measures that were taken by the defendant after the accident. While pictures of the condition of the floor at the time of the accident would be admissible, the judge found that the mopping and pictures with the signage around it was not the condition of the floor at the time of the accident and barred their admission at trial.

At trial, Jelken’s attorney sought to revisit this ruling after defense counsel gave his opening statement.  During the opening statement, the defense counsel argued that the floor was slip resistant and that you could pour all the water you want on the floor and you could not slip.  Jelken’s attorney made the argument that defendant sought to portray the floor as slip proof and contended that “the photographs demonstrating defendant’s employee mopped the floor and placed a caution sign refuted the floor’s safety.”

The judge restated his pre-trial ruling that the post-accident photographs constituted inadmissible subsequent remedial measures, precluded under N.J.R.E. 407.  The judge further commented that Jelken had the opportunity to call an expert in the matter to indicate that the floor was not slip proof.  The judge also barred Jelken’s attorney from using the photographs of defendant’s post-accident remedial measures to cross-examine defendant’s engineering expert. 

After hearing all of the testimony, the jury found that plaintiff had failed to prove defendant was negligent and found for defendant.  Jelken filed a motion for a new trial based upon the court’s evidentiary rulings.  That motion was denied and this appeal ensued. 

On appeal, Jelken argued that the judge made a mistake in excluding evidence of defendant’s post-accident safety measures.  In considering this argument, the Appellate Division noted that: “while evidence of safety measures taken after an accident may tend to prove or disprove a fact of consequence, New Jersey has a clear and longstanding public policy favoring the immunization of remedial measures from negative inferences.” 

The Court explained that, pursuant to this rule of evidence, evidence of remedial measures taken after an event were not admissible to prove that the event was caused by negligence or culpable contact.  However, evidence of subsequent remedial conduct may be admitted as to other issues such as to establish control over the instrumentality causing the injury, to show defendant’s customary standard of care, to prove the condition existed at the time of the accident, to show that a feasible alternative for avoiding the danger existed at the time, or to attack the credibility of a witness. 

During the appeal, plaintiff argued that the photographs were relevant to show that plaintiff got out of the facility safely, to show the floor was slippery, and to impeach defendant’s engineering expert who testified the floor was highly slip resistant. 

The Appellate Division found that the trial court judge did not abuse his discretion in precluding evidence of the defendant’s post-accident conduct under N.J.R.E. 407.  The photographs, showing the defendant’s employee mopping a puddle and placing a caution sign were changes and repairs made subsequent to the accident, were precautions taken subsequently to prevent recurrence of an injury and were not admissible as showing negligence or as amounting to an admission of negligence. 

Hence, the Court found that absent a proffer of the photographs to prove some other fact in issue, the evidence of subsequent remedial measures could not be used to show negligence.

The Appellate Division also rejected the argument that the photographs were required to prove Jelken exited defendant’s facility safely.  Both plaintiff and her friend who accompanied her testified that they left the facility without further incident.  While photographs showing the condition of the floor at the time of the fall might be relevant to plaintiff’s negligence claim, photographs of the floor after defendant’s employee took action constituted evidence of subsequent remedial measures which were properly precluded under this rule of evidence.

Plaintiff further argued that she intended to use the photographs of defendant’s post-accident conduct to prove the floor was slippery.  The Appellate Division found that the best evidence in support of this contention was the testimony proffered by plaintiff and her friend during the trial.

The Appellate Division further rejected the argument that the evidence of defendant’s subsequent remedial measures should be admissible to impeach defendant’s engineering expert. During direct testimony, the engineering expert was never questioned as to defendant’s post-accident conduct.  During cross-examination, plaintiff’s attorney hypothetically asked the witness if he had been at defendant’s premises at the time of the fall, whether he would have placed a sign warning people to be careful.  He testified that he would not have directed the placement of such a sign. Because Plaintiff’s counsel, not Defendant’s counsel brought up the issue of placement of the sign, the post-accident photos showing the sign could not be used to impeach the expert’s testimony.

Thus, the Appellate Division ruled that this evidentiary ruling was proper by the trial court judge.  The Court found that the denial of Jelken’s new trial motion was not a miscarriage of justice under the law and affirmed the trial court’s decision.  Accordingly, the jury verdict in favor of the defendant was upheld.

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.

Court Dismisses Plaintiff’s Personal Injury Claim Due to Failure to Plead Claim Under the Products Liability Act

Plaintiff Chris Williams filed a lawsuit against defendant QuickChek Corp. when his right hand was burned as a result of hot water melting a Styrofoam cup.  Although the plaintiff pled a premises liability cause of action, the complaint did not include a claim against QuickChek based upon the Products Liability Act (“PLA”).  The issue in Williams v. QuickChek Corp., 2024 N.J. Super. Unpub. LEXIS 3238 (App. Div. Dec. 30, 2024) was whether the complaint should be dismissed based upon the plaintiff’s failure to plead a claim under the Products Liability Act.

Plaintiff filed a lawsuit against QuickChek based upon an incident that occurred in December 2021 at the QuickChek in Wayne, New Jersey.  He claimed that his right hand was burned as a result of hot water melting a Styrofoam cup which caused him injury and disability.  Almost two years later, on January 9, 2023, he filed a lawsuit against QuickChek, asserting that defendant was responsible for the care and maintenance of the premises and that it negligently maintained, repaired and/or controlled the premises so as to permit a hazard, a nuisance and a trap for persons lawfully on the premises.  Plaintiff further claimed that as a result of the carelessness, recklessness and/or negligence of defendant, he suffered a burn when the Styrofoam cup melted.

After the lawsuit was filed, QuickChek moved to dismiss the complaint for failure to state a cause of action.  The defendant argued that this case was not a premises liability case.  Rather, it was a product liability action and plaintiff failed to plead a claim under the PLA and that, under New Jersey law, all common law claims were subsumed by the PLA.  The trial court judge agreed with the defendant’s argument and dismissed the lawsuit. 

The judge also held that, because the two year statute of limitations had run under the PLA, it would be futile to permit the plaintiff to amend the complaint.  This dismissal was appealed to the Appellate Division.

The Appellate Division noted that the PLA is the exclusive remedy for personal injury claims arising out of product use.  This statute “is intended to protect users from harm caused by defective products by ‘establishing clear rules’ in actions for damages for harm caused by products.”  The Court noted that the PLA “imposes liability upon the manufacturer or seller for a products’ manufacturing defects, warning defects, and design defects.”  Further, the Appellate Division pointed out that the Legislature “established a unified theory of recovery for harm caused by products.”  Thus, the PLA subsumes claims for a defective product under the Consumer Fraud Act, as well as any alternative remedy for injuries such as negligence and breach of implied warranty.

Thus, the Appellate Division agreed with the trial court judge in dismissing the complaint.  The focus of plaintiff’s claim was clearly on a defective Styrofoam cup that melted when hot water was poured into it.  The Appellate Division found that the plaintiff should have brought the claim pursuant to the PLA which was the “exclusive remedy” for personal injuries arising out of the use of a product.  Instead, plaintiff asserted a claim as a premises liability negligence claim which claim is subsumed under the PLA.  Further, the Appellate Division noted that claiming that a party negligently maintained its premises “is not the same thing – not even close – as alleging it sold a defective product.”  Thus, the trial court’s decision was affirmed, dismissing the complaint.

Plaintiff Unable to Establish That Stone Filler in Front of Township Recycling Box Car Constituted a Dangerous Condition

Plaintiff Lois Henry suffered an injury from a fall on gravel after arrival at the Cranford Conservation Center, a recycling facility owned and maintained by the Township of Cranford.  The facility had box cars designated for different types of recycling.  In front of the containers was a filler of mixed stones.  The issue in Henry v. Township of Cranford, 2024 N.J. Super. Unpub. LEXIS 2811 (App. Div. Nov. 15, 2024) was whether the rocks and gravel in front of the box car constituted a dangerous condition of public property.

The Center provided box cars for residents to dispose of their recycling and yard waste.  When visitors arrived at the site, they would have to walk through a small entrance building and then a paved driveway which would lead them to various box cars designated for different types of recycling.  In front of these containers was a filler of mixed stones, various shapes and sizes to prevent puddling and icy conditions from forming in front of the recycling containers.

Plaintiff tripped and fell while returning to her car after she dropped off her recycling in one of the box cars.  She claimed that she put her foot down on the rocks and gravel, stepped on a rock and her foot twisted and she went down on her right knee.  She suffered a fracture of her fifth metatarsal on her right foot.

Plaintiff sued the Township of Cranford and the Cranford Conservation Center under the Tort Claims Act (“TCA”), claiming that the gravel and filler at the site constituted a dangerous condition of public property.  The Township’s Director of the Department of Public Works testified in his deposition that the filler was placed in front of the box car to avoid puddling and icy conditions.  There were employees there to keep things in order but there were no scheduled inspections.  However, he was unaware of any previous incidents at the location or any complaints about the stone filler. While he had been aware of no other accidents, he was aware of some people losing their balance on the stones.

At the trial court level, the defendants filed for a summary judgment.  The trial court judge granted the motion and dismissed the complaint with prejudice.

Plaintiff appealed that dismissal order, arguing that “there are genuine issues of material fact concerning various elements of dangerous condition liability under the TCA.”

The Appellate Division noted that under the Tort Claims Act, a public entity may be liable for a personal injury caused by the dangerous condition of its public property under N.J.S.A. 59:4-2.  To recover for an injury under this section of the Tort Claims Act, the plaintiff must prove several elements, including the existence of the dangerous condition at the time of the accident and that the public entity had actual or constructive notice of the dangerous condition with “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  But, under this statutory section, no liability would be imposed upon the public entity for a dangerous condition “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

The Appellate Division agreed with the trial court decision.  It found that although plaintiff’s injury was “unfortunate,” there were no “genuine issues of material fact that reasonably could support defendants’ liability under the required elements of the TCA.”  The Court noted that there were no previous reported accidents at the location or other sufficient proof of actual or constructive notice of the “dangerous condition.”

Further, in reviewing the photographs provided, the Appellate Division did not find that these photos established an actionable dangerous condition.  Finally, the Court found that there was no bona fide jury question on whether “the Township’s choice of surface outside of the container was so irrational and extreme to be found ‘palpably unreasonable’ as required under the TCA.”  Hence, the trial court decision, dismissing the complaint, was affirmed. 

Plaintiff Permitted to Pursue Personal Injury Claim Against Apartment Owner and Tenant Due to Injury Caused by Deficient Stair Railing

Plaintiff Nicolette Pippis was injured when she slipped and fell while leaving a building owned by defendant PDC, after visiting defendant MKG, a tenant in the building.  She claimed that, as she walked down the stairs, she was holding onto the handrail.  The handrail ended short of a few steps which she claimed caused her to slip and fall.  The issue in Pippis v. PDC 16-20 Hudson Place Realty, LLC, 2024 N.J. Super. Unpub. LEXIS 2108 (App. Div. Sept. 6, 2024) was whether plaintiff had produced sufficient evidence on the issue of proximate causation to have her case presented to a jury.

Plaintiff, who was 9 months pregnant at the time, had been at the building for a prenatal massage at MKG, which was located on the second floor in the building.  As she walked down the steps to leave the building, she fell near the bottom of the steps, breaking her ankle.   She claimed that, as she walked down the stairs, she was holding onto the handrail.  When she got towards the bottom steps, the railing ended and there was no lighting, causing her to miss the step and fall.  She testified in her deposition that she attempted to grab for the handrail, but the railing cut short a few steps.  She denied that she tripped.

Plaintiff presented an opinion from an architectural expert that the handrail for the stairs did not extend over the entire bottom tread and stopped short of the edge of the final step by 2½ inches.  He explained that current building codes would require the handrail for these steps to extend at least 10¼ inches past the bottom step.  He opined that Plaintiff lost her balance and fell at the bottom of the stairway because the handrail was short and she could not grasp it.  He further concluded that the lack of handrail coverage over the entire bottom tread was a dangerous condition that contributed to her accident. 

Following the conclusion of discovery, the defendants filed for a summary judgment.  The trial court entered an order granting the defendants’ motion and dismissed the complaint.  The judge determined that plaintiff was unable to prove proximate causation because there was conflicting information about the cause of her fall. 

Different versions of how the accident happened were in plaintiff’s medical records. The hospital records indicated that plaintiff fell from the fourth step and hurt her ankle, the emergency personnel reported that plaintiff explained that while she was walking down the steps, she tripped and slid down the last four steps.  Last, the triage nurse from the Medical Center commented that she slipped down four stairs.

In the plaintiff’s complaint, she alleged that defendants’ failure to provide adequate lighting and adequate railings caused her to slip and fall down the last 3-4 steps and suffer personal injuries. 

The trial judge found that there was a contradiction between plaintiff’s testimony, the complaint, and her expert as to what caused the accident.  Accordingly, he found that plaintiff was unable to prove proximate causation and dismissed her complaint.

The plaintiff appealed this order for summary judgment, arguing that plaintiff had produced sufficient evidence to present the issue of proximate causation to a jury.  There was also an issue appealed concerning spoliation of evidence because the surveillance video of the accident was not preserved.  However, that issue did not factor into the Appellate Division’s issue on appeal as to whether the summary judgment should have been granted.

The Appellate Division noted that the question of proximate cause “asks whether the actual harm suffered was a reasonable consequence of the defendant’s actual act or omission.”  It would suffice if it is a substantial contributing factor to the harm suffered.  The Appellate Division further noted that proximate cause is “generally a question for the jury.” 

The Court disagreed with the trial court judge’s finding that proximate cause was lacking.  The Appellate Division found that “a reasonable jury could find that additional railing at the end of plaintiff’s fall path could have helped plaintiff prevent or mitigate her injuries.”   Further, the Appellate Division found that “[b]ecause the absence of any railing at the end of the staircase may have contributed to plaintiff’s injuries, the issue of proximate causation should have been left to a jury.”  Hence the Court reversed the trial court judge’s ruling and remanded the matter back for further proceedings. 

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