In this appeal, the New Jersey Supreme Court considered “whether the plaintiffs’ premises liability claim under N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act (TCA) should survive summary judgment after the plaintiffs belatedly altered their factual theory of liability.” In 2015, the plaintiffs were injured when they lost control of their motorcycle while riding over an overpass. The plaintiffs sued the defendants, the New Jersey Turnpike Authority (the Authority) and Earle Asphalt (Earle), one of the Authority’s paving and roadwork contractors, for their alleged negligence in reconstructing the overpass. The plaintiffs alleged that they lost control of the motorcycle when they struck a piece of metal in the bridge’s expansion joint that jutted out of the roadway (the joint theory). During the argument before the trial court on the defendants’ joint motion for summary judgment, the plaintiffs changed their theory of liability. For the first time, they argued that the defendants failed to properly pave a portion of the roadway on the overpass, leaving a height differential in the pavement (the asphalt theory). Under the newly asserted asphalt theory, the plaintiffs alleged that the height differential in the roadway, rather than the joint, caused them to lose control of the motorcycle. The trial court distinguished the joint theory from the asphalt theory and considered only the joint theory. The court found that the Authority was entitled to immunity under the TCA and that Earle was entitled to derivative immunity. The Appellate Division reversed. The Supreme Court reversed and reinstated the trial court’s summary judgment order. The Court ruled that the plaintiffs’ new theory should not have been considered given its late presentation.
