In its recent decision in Fleming v. Graham, the Court of Appeals articulated a standard for assessing claims of “permanent and severe facial disfigurement ” for the purpose of qualifying as a “grave injury” exception to the Workers’ Compensation bar. The Court ruled that “an injury disfigures the face when it detrimentally alters the plaintiff’s natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiff’s face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a disfigurment is severe, plaintiff’s injury must greatly alter the appearance of the face from its appearance before the accident.”
Monthly Archives: March 2008
NJ Appellate Court Expands Bar’s Liability for Drunken Patrons.
In the case of Bauer v. Nesbitt, A-2343-06, the decedent and his friend Nesbitt had been drinking heavily before they arrived at the C View Inn. Once at the inn, they ordered only cokes, but the decedent spiked Nesbitt’s drinks to the point where Nesbitt was visibly intoxicated. Nesbitt subsequently attempted to drive the decedent home, but in his intoxicated state, caused a fatal crash instead. The decedent’s estate sued the C View Inn. The trial court dismissed the action and held that because the C View Inn did not serve Nesbitt alcohol, New Jersey’s Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, did not apply. In reversing the trial court’s dismissal of the action, the appellate court held: “if employees of the Inn recognized or should have recognized Hamby’s intoxication as the result of the visible manifestations of his condition that we have described, the Inn had a duty to protect him from foreseeable injury as the result of an automobile accident by insuring that he did not drive and that he did not ride as a passenger with a patron who was similarly impaired.”
PA Supreme Court to Re-visit Strict Liability in Product Liability Cases.
Since 1978 in the case of Azzarello v. Black Brothers Co. Inc., the PA law on products liability cases is that a product is defective if it left the manufacturer “lacking any element necessary to make it safe or having any element making the product unsafe.” This strict liability standard is about to be revisited as the Supreme Court has just granted allocatur in Bugosh v. I.U. North America Inc.. In this case, the Court will decide whether to adopt the Restatement Third on Torts which employs a negligence standard in product defect cases.
Plaintiff Bends In Path Of Subway Train And Is Awarded $11 Million
In Huang v. New York City Transit Authority, plaintiff claimed personal injuries as a result of being struck in the head by a departing train as she bent down beside the train to retrieve her bible that she had dropped on the platform. This caused her to spin around and ultimately caused her left leg to become wedged between the platform and train, resulting in her being dragged 40 feet on the subway platform. The jury found the defendant 100% responsible and awarded the plaintiff over $28 million.
The Appellate Division, First department reduced the award to $11 million but affirmed the finding of negligence against the defendant.
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_02010.htm
New Jersey Supreme Court Allows Testimony Of Biomechanical Expert In Low Impact Crash Case.
In Hisenaj v. Kuehner, the Supreme Court found that expert testimony based on data from low impact crashes with human test subjects was properly admitted in a fender bender accident that resulted in a low jury verdict. The case was watched closely by both the plaintiff and defense bars and drew amicus curiae appearances from the Association of Trial Lawyers of America-New Jersey (ATLA) and the New Jersey Defense Association.
http://www.judiciary.state.nj.us/opinions/supreme/A-86-06%20Hisenaj%20v%20Kuehner.pdf
An Education In Pricing For U.S. College Students Studying Abroad
As a student at Wheaton College, Jennifer Bombasaro-Brady spent a semester studying in South Africa. Although away from the Wheaton campus, Ms. Bombasaro-Brady was still required to pay full tuition, room and board, despite the fact that the program she attended, without all the amenities provided at Wheaton, cost less. Accusing Wheaton of engaging in deceptive practice, the Bombasaro-Brady family has filed suit in Massachusetts state court. Meanwhile, the relationship between universities and study-abroad programs have already come under the scrutiny of the attorney generals of New York and Connecticut.
http://www.nytimes.com/2008/03/09/education/09studyabroad.html
Plaintiff’s Improper Use Of A Supplemental Bill Of Particulars And Punitive Damages Thwarted
On the eve of trial in the personal injury action Kraycar v. Monahan, plaintiff successfully moved for leave to serve a supplemental bill of particulars and for leave to serve an amended complaint seeking punitive damages. The Appellate Division, Second Department reversed since plaintiff improperly sought to introduce only new injuries with the supplemental bill of particulars. Moreover, since it was not established that defendant’s actions were willful or wanton negligence, plaintiff’s added claim for punitive damages was without merit, equally warranting a denial of that branch of his motion.
http://www.nycourts.gov/reporter/3dseries/2008/2008_01923.htm
Decedent Killed Sitting On Subway Tracks, A.D. Dismisses Case And Plaintiff’s Expert
In Mirjah v. New York City Transit Authority, plaintiff brought an action for wrongful death and personal injuries stemming from a July 15, 2000 accident whereupon plaintiff’s decedent was struck and killed by a subway train. Directly before his death, the decedent was determined to be intoxicated and was observed sitting on the tracks, facing the oncoming train, that was coming around a curve in the rain. The trial court denied defendant’s motion for summary judgment, apparently giving credence to the mathematical theory of Nicholas Bellizzi, plaintiff’s expert, that the defendant’s operator could have stopped the train without hitting the decedent.
The Appellate Division, Second Department reversed, finding Mr. Bellizzi’s conclusions to be “merely speculative” and unable to raise a triable issue of fact.
http://www.nycourts.gov/reporter/3dseries/2008/2008_01722.htm
Trial Attorney Ads Raise Pretrial Publicity Controversy.
Trial lawyer, Geoffrey Feiger, was indicted on charges of funneling $127,000 to former presidential candidate, John Edwards. His trial is scheduled to begin in Michigan in April.
Feiger is now accused of trying to taint the potential jury pool by running commercials comparing the Bush Administration to Nazis, and claiming that trial lawyers are under attack from the federal government. Feiger has appealed a recent decision ordering him to discontinue the ads on First Amendment grounds.