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

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

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

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

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

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

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

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

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

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

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

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

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

Municipality Found Immune From Liability for Pedestrian Accident Under Both Tort Claims Act and Landowners’ Liability Act

Plaintiff Svetlana Fakhroutdinov was struck by a car while waiting to cross from the entrance of RiverWalk Pathway, a pedestrian pathway in Foschini Park, owned by the City of Hackensack (“City”). There was no crosswalk at that location (on East Salem Road) to direct pedestrian traffic to and from the Park. She was struck by a car driven by defendant Miguel Bueno, who swerved to avoid hitting another car driven by Allen Farnham, who had stopped to allow her to cross. The issue in Petrocelli v. Bueno, 2026 N.J. Super. Unpub. LEXIS 1204 (App. Div. June 3, 2026) was whether the City had immunity for this accident under either the Tort Claims Act and/or the Landowners’ Liability Act.

Although there was no crosswalk, there were two signs adjacent to the roadway, which stated “DANGER ROAD AHEAD” to warn pedestrians who were leaving the park. Plaintiff was struck by the Bueno vehicle after he lost control of his car, drove off the road, and struck her while she was still standing off the side of the roadway in Foschini Park, waiting to cross the road. She suffered severe injuries due to the impact.

Plaintiff claimed that the location of the accident was in a dangerous condition due to the absence of pedestrian warning signs, adequate pedestrian right of way/crosswalks, and adequate speed limits. She alleged that the City maintained, operated, controlled, inspected, and supervised this roadway and knew of the dangerous condition.

The City filed for a summary judgment, arguing that it had immunity under the Tort Claims Act (“TCA”), N.J.S.A. 59:4-5, which provides immunity for the placement or non-placement of traffic signals, road signals, etc. The City also argued that it had immunity under the TCA because Plaintiff had failed to meet all the requirements to establish a “dangerous condition” under N.J.S.A. 59:4-2. Finally, it argued for immunity under the Landowners’ Liability Act, N.J.S.A 2A:42A-1 et. seq., (“LLA”) which provides immunity for recreational activities due to conditions of parkland. 

The trial court agreed with some of these arguments and granted summary judgment to the City. It found that the City had partial immunity for the lack of signage per N.J.S.A. 59:4-5 but the Plaintiff’s theories of improper location and safe egress were not barred by this statute. 

But, the trial court agreed with the City that Plaintiff had failed to show the existence of a “dangerous condition.” The court found that it was not reasonably foreseeable that a car would swerve off the road to avoid hitting another vehicle so as to strike Plaintiff while standing on the pathway. That scenario did not create a “dangerous condition” of the pathway. Nor, did the “danger” sign establish that the City had constructive notice that some physical attribute of the path was a “dangerous condition.”

Additionally, the trial court agreed with the City that the Landowners’ Liability Act also immunized the City for this accident. The court found that Plaintiff was engaged in a recreational activity at the time of the incident and those enjoying the benefit of the land for recreational purposes were subject to the immunity of the LLA.

This appeal ensued. The Appellate Division considered whether the City should have been granted immunity under both the TCA and/or the LLA.

The Court noted that, for a public entity to be liable under the TCA, the Plaintiff must prove that the condition of the property was in a dangerous condition, defined as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The term refers to the physical condition of the property itself and not the activities on the property.

The Appellate Division agreed with the trial court that the pathway was not a dangerous condition. Rather, Plaintiff was injured due to the dangerous activity of a third party outside the Park. The placement of the pathway at the edge of East Salem Street did not cause her injuries. They were caused by defendant Bueno who was driving negligently on East Salem Street. Thus, the Court found that Plaintiff’s claims were barred under the Tort Claims Act.

The Court also agreed with the trial court that her claims were barred under the Landowners’ Liability Act. Landowners are exempt from liability for accidents on their property when a person is using their property for sports or recreational activities free of charge. For property to qualify for immunity under the Act, a court must consider the “dominant character of the land.” The Park with its playground, baseball fields, pedestrian walkways, free to the public, qualified as protected premises under the LLA.

Here, the Appellate Division agreed that Plaintiff was engaged in “recreational activities” in the Park as she walked through it and enjoyed the Park during a break from her students ice skating there. The Court took “judicial notice” that walking was a form of exercise and that would fit into a common definition of recreation. Hence, the Court also found that the City was immune from liability for Plaintiff’s accident under the Landowners’ Liability Act. The Appellate Division held that the trial court properly granted summary judgment to the City and affirmed the dismissal of the lawsuit as to the City.

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

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

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

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

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

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

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

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

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

Equitable Tolling Does Not Apply to Claims Against Public Entities Under the Tort Claims Act’s Statute of Limitations

On Aug. 5, 2022, Timothy Scruggs boarded a New Jersey Transit (NJT) bus in Philadelphia. As he walked down the aisle, the bus began moving, causing Scruggs to lose his balance and fall against a broken seat, sustaining an injury. Two years later, on Aug. 5, 2024, Scruggs filed a lawsuit against NJT, a New Jersey public entity, in the Pennsylvania Court of Common Pleas in Philadelphia. Scruggs did not file a lawsuit in New Jersey for another 7 weeks. Defendant NJT filed a motion to dismiss Plaintiff Scruggs’ New Jersey complaint for violating New Jersey’s Tort Claims Act’s (TCA) statute of limitations of 2 years. Plaintiff opposed. The issue in Scruggs v. N.J. Transit Corp., 2026 N.J. Super. Unpub. LEXIS 1006 (App. Div. May 13, 2026), was whether equitable tolling applied to a lawsuit against a public entity under the TCA.

Equitable tolling is, as it name suggests, an equitable remedy where the “interests of justice, morality, and common fairness” will excuse the clear violation of a time-limitation period. While limitations periods are typically gray deadlines that are subject to equitable tolling, this is generally not the case against a public entity as it is to a private entity or when it would be in direct conflict with the relevant statute, such as the TCA.

The TCA’s guiding principle is that immunity from tort liability is the general rule, and liability the exception and supporting case law demands it be strictly construed. Section 59:9-8(a) of the TCA bars a claimant from recovering against a public entity if “two years have elapsed since the accrual of the claim.”

Nevertheless, in this case, the trial court denied NJT’s motion to dismiss and applied equitable tolling, finding that Shruggs’ suit filed in Philadelphia fell under the two year TCA statute of limitations in New Jersey. NJT asked the trial court to reconsider its opinion, stating it had misapplied the equitable remedy. The trial court reconsidered its opinion and reversed itself, agreeing that the TCA must be strictly construed. Scruggs appealed.

The Appellate Division agreed with the trial court on its reversal, confirming that there was no place for equitable tolling in the TCA’s statute of limitations. The appellate court pointed to the plain reading of the TCA’s limitation language and how it “expressly precludes” a claimant from asserting a cause of cation more than 2 years after the date of injury. The court expressly indicated that equitable tolling was not available to actions against public entities, such as NJT, under the TCA because the legislature made it clear that courts must strictly construe the TCA.

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.

Plaintiff’s Lawsuit Against Municipality Dismissed Due to Failure to Prove Constructive Notice of Alleged Dangerous Condition

Plaintiff Margaret Kelly, as Guardian ad litem for Rebecca Kelly, filed a lawsuit on behalf of Rebecca due to an accident at her parent’s condominium complex.  Rebecca was a guest of her parents at Back of Bay Condominium Association in Wildwood, when she fell in a trash collection and utility common area exterior to the condominium unit owned by her parents.  She fell and suffered serious injuries when she stepped on one of six water meter pits in the area, causing the lid to dislodge and her foot to fall into the pit.  The issue in Kelly v. Back of Bay Condominium Association, Inc., 2026 N.J. Super. Unpub. LEXIS 291 (App. Div. Feb. 19, 2026) was whether the City of Wildwood defendants could be held liable for her fall due to the condition of the loose pit cover.

Rebecca was a disabled individual with a condition known as “brittle bone disease.”  The accident happened when she was carrying a recycling container, attempting to place it in the area of the water meter pits, when she fell.  She stepped on one of the water meter pits and, due to the loose lid, it dislodged and her foot fell into the pit.  She suffered serious injuries to her left foot and ankle, requiring surgery.  She also suffered an injury to her shoulder.  She needed surgery on both her left foot and her shoulder due to her fall.

Within a few weeks of her accident, the Senior Meter Reader and Water Inspector for the City of Wildwood inspected the condominium’s utility area to observe where Rebecca fell.  He found that the lid had a frozen nut and it would not allow the lid to be locked down by whoever was there last.  As a result, he took it away, put it on his truck and put a new lid on it.

Plaintiff filed a lawsuit against multiple defendants, including the condominium association, the City of Wildwood, the City of Wildwood Municipal Utility Authority, City of Wildwood Water Utility, and City of Wildwood Sewer Utility.  Plaintiff settled out with some defendants or reached voluntary dismissals as to others, but not the Wildwood defendants. 

In discovery, it was disclosed that the City had transmitters located on top of the lid and that the water meter pit and equipment in question was last replaced some years before the accident.  The testimony from the Water Director for the City was that the water meter pit lids had software or machines that pick up the readings from the meter and transfers the information remotely to staff as they ride up and down the street.  Thus, remote meter reading eliminated the need for quarterly on-site inspections of each meter and was both faster and more effective.  The meters were read electronically on a quarterly basis.

After the conclusion of discovery, the Wildwood defendants filed for summary judgment, seeking dismissal of all claims.  In response to the motion, plaintiff conceded that there was no evidence of actual notice of the alleged dangerous condition posed by the loose lid.  However, plaintiff argued that there should be constructive notice of the alleged dangerous condition.  The trial court disagreed and granted summary judgment.  This appeal ensued.

The Appellate Division noted that, under the Tort Claims Act, a public entity may only be liable for a personal injury caused by the dangerous condition of its public property.  Among other elements that a plaintiff must prove, the plaintiff must prove that the public entity had actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to take measures to protect against the dangerous condition.

Because plaintiff conceded that the Wildwood defendants lacked actual notice of the dangerous condition, the Appellate Division only analyzed whether plaintiff had established constructive notice under the Tort Claims Act.  The Court concluded that plaintiff failed to establish that the Wildwood defendants had constructive notice.  Plaintiff argued that under the City’s ordinances, the internal policies on lid safety and the replacement of the frozen nut after the accident supported “a reasonable inference that unsafe conditions were regularly observable and existed for a sufficient period of time to establish constructive notice.”

The Appellate Division pointed out that although the Wildwood defendants conceded that there was a loose pit lid and that such condition presented a danger, it is well settled that “the mere existence of an alleged dangerous condition is not constructive notice of it.”  There were no proofs showing that Rebecca, her family members, or any of the condominium’s residents had reported or complained about a loose or unsecured meter pit lid prior to the fall.  As the trial court noted, there was no information as to how long the lid was loose, whether it was for an hour, a week, a month or a year. 

Plaintiff also argued that constructive notice may be imputed to the Wildwood defendants based upon their duty to “inspect, detect and correct missing and loose lids.”  The Appellate Division agreed with the trial court judge that this argument was a misinterpretation of the applicable law and would essentially impose strict liability on the part of the Wildwood defendants for any injuries that arose from any sort of dangerous condition that existed on their property.

The Court pointed out that such an interpretation of the Tort Claims Act would be antithetical to its statutory purpose “to provide general immunity for all governmental bodies except in circumstances where the Legislature has specifically provided for a liability.”  Thus, the Appellate Division agreed that the existence of a general duty, policy, or training for public utility employees was insufficient to satisfy the notice requirement of the Tort Claims Act under the circumstances presented. 

The Appellate Division also addressed whether the City’s conduct was “palpably unreasonable” in failing to detect and correct the loose water pit lid condition.  The Court found that because plaintiff did not establish that the Wildwood defendants had constructive notice of the loose water pit lid, its failure to repair it prior to plaintiff’s fall could not be viewed as palpably unreasonable conduct. 

Hence, for all of the above reasons, the Appellate Division upheld the trial court’s decision to dismiss the lawsuit as to all of the Wildwood defendants.

Tort Claims Act Protects Borough from Liability for a Pedestrian’s Trip and Fall in a Pothole

Plaintiff Galina Benimovich tripped and fell in a pothole located in the street in front of her daughter’s residence in Montvale’s residential Hickory Hill neighborhood, causing her to fracture her wrist and sue the Borough in Benimovich v. Borough of Montvale, 2026 N.J. Super. Unpub. LEXIS 23 (App. Div. Jan. 7, 2026). That area of Hickory Hill lacked sidewalks, causing all pedestrians to use the street. Montvale’s records showed that multiple complaints and repairs had been made of similar potholes in Hickory Hill, but those records showed no similar complaints or reports of any roadway defects in 2021, about the time of the plaintiff’s fall, in the location of the plaintiff’s fall. Montvale expressly prioritized larger, more serious potholes they considered an “emergency,” typically three to four inches deep that “can take out a tire or a bicycle or be considered a tripping hazard.” The pothole was an inch-and-a-half deep, about three feet long, and about a foot wide. The plaintiff’s engineer determined a pothole of one-quarter of an inch deep presented a tripping hazard, and that this pothole far exceeded that standard, particularly where pedestrians were anticipated to pass due to the lack of sidewalks.

Montvale filed for summary judgment pursuant to the Tort Claims Act, N.J.S.A. 59:4-1-1, et seq. (TCA), claiming the plaintiff could not establish the pothole in question was a dangerous condition, actual or constructive notice of the pothole in which she fell, or that Montvale’s failure to respond to the danger posed by the pothole was “palpably unreasonable.” The trial court agreed, specifically finding that the plaintiff failed to establish Montvale’s notice of “this particular pothole.” As a result, the plaintiff appealed.

On appeal, the plaintiff emphasized prior New Jersey TCA case law that established a three-fourths inch depression in a roadway was sufficient to constitute a dangerous condition. Further, the potholes in Hickory Hill were a known, recurring problem, as Montvale’s own records established, giving the Borough constructive notice of the dangerous condition. Finally, the plaintiff stated that Montvale’s failure to fix this pothole was palpably unreasonable due to knowing potholes would occur regularly in Hickory Hill and failing to properly keep records to record and address those dangers. The Appellate Division disagreed on all counts.

In finding the pothole was not a dangerous condition, the Court focused its attention on the Hickory Hill street as a roadway which, though used by pedestrians, was still principally constructed for vehicular traffic, and any defect on it could not be “viewed in a vacuum.” They reasoned that municipalities should not be compelled to retrofit or redesign roadways to accommodate pedestrians simply due to the absence of sidewalks and the resulting foreseeability of pedestrian traffic. Besides, since roadways are reasonably expected to have potholes, just because there are potholes in a roadway does not create an inherently dangerous condition.

Further, the Court underscored the fact that the plaintiff presented no evidence that Montvale knew of this pothole as a result of their lengthy history of complaints and repairs in the area. The Court pointed to the TCA, which requires the plaintiff to prove Montvale had actual or construction notice of the particular pothole in which the plaintiff fell, as shown by testimony or past records of complaints of that condition, not general knowledge of the problem in the area or past repairs.  

Finally, in finding that Montvale’s failure to act did not meet the palpably unreasonable standard, the Court found the record lacked evidence that Montvale’s “actions were so lacking in justification and patently unacceptable under any circumstances.” Despite the plaintiff’s position that the roadway was in regular disrepair, and the Borough knew, the Court found the plaintiff did not show the egregious neglect required under the palpably unreasonable standard, but that Montvale met the standard by prioritizing the use of their limited public resources on potholes they considered more hazardous and in more urgent need of attention than potholes such as this one.

Municipality Found to Have No Liability for Injury Caused by Trip on Uneven Boards on Boardwalk

Plaintiff Jessica Feeney tripped and fell while walking on the boardwalk in the City of Atlantic City.  She sued the City claiming that she tripped on uneven boards and that the City was negligent in causing the dangerous condition and that it failed to timely repair the condition.  The issue in Feeney v. City of Atlantic City, 2025 N.J. Super. Unpub. LEXIS 421 (App. Div. Mar. 19, 2025) was whether the City could be liable for either causing or failing to repair the boardwalk before the plaintiffs’ accident.

This accident occurred on August 30, 2019, when plaintiff was walking on the boardwalk in the City near the Showboat Hotel.  Plaintiff testified that there was a raised board and her right foot rolled on the uneven board and her leg buckled.   She tripped, fell and injured herself.  She denied noticing the uneven board before she fell.  After the accident, her husband went back and took photos which showed that there was one board that was lower than the adjacent board with a displacement of approximately 1 inch. 

She and her husband sued the City, claiming that the City was negligent in causing the condition on the boardwalk and in failing to timely repair the uneven board.  She retained a liability expert, Arthur Chew, who reviewed the photographs and opined that there was a hazardous condition.  He also opined that the City’s police vehicles and public works vehicles that ride on the boardwalk placed high stresses in the boardwalk and they may cause the boards to become uneven. 

The expert relied upon testimony from City employees who explained that the boards could become uneven for numerous reasons which included weather, shifting of the boardwalk foundation, sand being pushed up against the underside of the boardwalk and vehicles going across the boardwalk.  Displacements of more than a ¼ of an inch between boards were something that needed to be looked at.  The City also admitted that any vehicle on the boardwalk does damage.

The City filed for summary judgment, arguing that it was shielded from liability under the Tort Claims Act.  It asserted that it had no actual or constructive notice of the uneven boards where plaintiff fell.  It also argued that its conduct in inspecting the boardwalk, which was approximately 4½ miles long, was not palpably unreasonable.  Finally, it contended that the uneven boards or raised boards did not constitute a dangerous condition as defined by the Act.

The trial court granted the summary judgment and dismissed the case.  It found that the uneven condition of the boards did constitute a dangerous condition.  However, there was no evidence that the City caused the dangerous condition.  It found plaintiffs’ liability expert’s opinion to be speculative because there were no facts to support that the City had caused the boards to become uneven. Knowing that vehicles might cause the boardwalk to become uneven in certain places did not establish that the boards where plaintiff tripped became uneven because a vehicle drove on those boards.  Further, there were no facts to establish when the boards became uneven and, thus, a jury could not conclude that the City failed to repair the dangerous condition in a reasonable period of time. 

Finally, the trial court also concluded that the City had not acted palpably unreasonably.  The trial court pointed out that the City had an inspector who regularly inspected the boardwalk and plaintiff had presented no evidence that the City should have discovered the uneven boards before plaintiffs’ accident. 

This summary judgment dismissal was appealed to the Appellate Division.  Plaintiff argued that a trial court should not have granted summary judgment because there were material disputed facts concerning whether the City created the dangerous condition that caused her fall.  Further they argued that their expert’s opinions were not net opinions and were supported by the factual evidence.  However, the Appellate Division rejected these arguments and affirmed the trial court decision.

The Court noted that the City, as a public entity, was only liable for negligence as permitted under the Tort Claims Act.  To establish liability, the Appellate Division noted that the plaintiff must prove as follows:

1.         A dangerous condition existed on the property at the time of the injury.

2.         The dangerous condition proximally caused the injury.

3.         The dangerous condition caused a foreseeable risk of the kind of injury that occurred.

4.         The public entity had actual or constructive notice of the condition a sufficient time prior to the injury to correct the dangerous condition.

5.         The action or inaction taken by the public entity to protect against the dangerous condition was palpably unreasonable.

Here, the Appellate Division noted that there was no evidence that the City had actual knowledge of the uneven boards.  Instead, the plaintiffs’ argument was that the City knew that vehicles drove on the boardwalk, that vehicles might cause the boards to become uneven, and that the City’s vehicles going across the boardwalk likely created the uneven boards.  However, the Court found that there was no evidence from which a jury could find that the City had actual or constructive notice of this condition.  It pointed out that “[k]nowing that a boardwalk stretching more than 4 miles can be damaged on various times and various causes, including vehicles driving on or across the boardwalk, does not constitute actual or constructive knowledge of this specific dangerous condition that caused [plaintiff] to fall.”

As for plaintiffs’ theory that the City should have inspected and found the uneven boards, the Court pointed out that the problem with this theory is that plaintiffs have no evidence as to how long the boards were uneven.  Plaintiffs’ liability expert was never able to identify when the boards became uneven.  Rather, he merely speculated that the City should have discovered the uneven boards if they conduct a regular inspection.  The Court found that without knowing when the boards became uneven, a jury would have no basis to find that the City had “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

As for the last prong as to whether the City acted palpably unreasonable, the plaintiffs’ best argument was that the City should have discovered the uneven inspections where plaintiff fell by conducting more regular inspections.  However, the City did inspect for dangerous conditions on the boardwalk and there was no evidence from which a jury could find that the City’s failure to conduct more inspections was palpably unreasonable.

The Appellate Division also rejected the expert’s opinion that the City’s vehicles created the damage to the boards.  The Court pointed out that there were no facts to support this opinion.

Thus, the Appellate Division agreed with the trial court’s decision and affirmed the summary judgment dismissal in favor of the City of Atlantic City.

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

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

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

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

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

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

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