We previously reported on Kenneth Van Dunk , Sr. and Deborah Van Dunk vs. Reckson Associates, et al. in which the Appellate Division allowed an employee suit to go forward against an employer on the grounds of an intentional wrong. The NJ Supreme Court has now reversed the Appellate Division. The Supreme Court held that plaintiff failed to establish sufficient evidence of the employer’s commission of an intentional wrong and thus, as a matter of law, the workers’ compensation law barred the lawsuit.
For more information about these articles, please contact Bob Cosgrove at .
Perhaps because it’s the slow summer season, art and antiquities have been very much in the news – well at least in the NYT. So, for your beach reading pleasure, we refer you to:
In the first article entitled “The Curse of the Outcast Artifact, the NYT reports on the problems in donating unprovenanced artifacts – which by some estimates may include more than 111,900 objects in private hands.
In Maiello v. Kirchner, the Second Department was asked to determine whether a defendant was collaterally estopped from contesting liability in a civil matter where he entered a conditional plea of guilty to an assault charge, but that plea was later vacated.
On the day of the incident, the defendant went to the plaintiff’s house to speak with his estranged wife, who happened to be dating the plaintiff at the time. A confrontation ensued when the defendant tried to get in the door, so the plaintiff picked the defendant up and placed him on the front of the porch, where the defendant lost his balance. The defendant then reached out and grabbed the plaintiff, pulling him off the porch and causing substantial injuries.
The defendant subsequently pled guilty to assault in the third degree on the condition that upon completion of probation, the plea would be vacated and the charge would be amended to harassment in the second degree. The defendant completed the probation, the assault charge was vacated, and the charge was amended.
In his civil action against the defendant, the plaintiff moved for summary judgment arguing that based on his guilty plea to assault, the defendant was collaterally estopped from contesting liability. A party may invoke the doctrine of collateral estoppel to prevent a party from contesting liability where the criminal conviction is based upon facts identical to those in issue in a civil action. The party seeking benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior action, and is decisive in the present action. The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.
The Supreme Court found that the defendant’s plea estopped him from contesting liability, but the Second Department disagreed. It found that although the defendant’s plea involved the identical issue in the civil proceeding, liability was not decided because a conditional plea was not a final judgment. Rather, when a defendant enters a conditional plea, sentencing is adjourned.
The court further found that the defendant’s plea to harassment did not estop him from contesting liability because he did not have a full and fair opportunity to contest liability. It reasoned that the defendant did not have the same incentive to contest the charge against him because harassment was a nonviolent violation.
Sporting events are fertile grounds for injuries – not just to the participants but also to the parents, grandparents and coaches who attend. These injuries sometimes result in suits against youth leagues and public entities who run and host the events. However, there are strong defenses to these suits on behalf of both the leagues and the public entities.
In Kenny v. Bridgewater Golden Eagles, the plaintiff mother of a flag football player sued the league and town when she fell while walking down an embankment between two fields. She was assigned to volunteer at the snack bar located at the bottom of the embankment and was on her way to her shift when she slipped on dewy grass. She could have avoided the embankment by walking around the field, but chose the shortest route.
Significantly, the town council and the New Jersey Department of Environmental Protection had approved the design of the recreational facility in 1977. The original plans included the embankment area. The facility was built as designed, and no changes were made to the grading anytime thereafter. In all of the years that the fields had been in use, there had been no other prior injuries on the embankment.
The town had the documentation to show that it was entitled to immunity for the suit based upon the public body’s approval of the design that was built as approved. N.J.S.A. 59:4-6(a) offers plan and design immunity under these circumstances. The Appellate Division affirmed that once the design immunity attached, there could be no basis for liability against the town.
Likewise, the plaintiff had no recourse against the league since she could not sustain the basic elements of a claim for negligence. Specifically, the league had no duty of care with the respect to the grading of the park. The league did not own, design, construct, maintain, or control the park. It merely was permitted to use it during the fall. As a matter of fairness and public policy, the court refused to impose a duty under these circumstances.
Although the league also raised the Charitable Immunity Act as a further defense, the court did not reach that argument after finding no possibility for liability against it.
For more information, contact Denise Fontana Ricci at .
In a motor vehicle accident case, Torres v. Gamma Taxi Corp., the defendant taxi company moved for summary judgment on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d). A prior motion for the same relief was denied, due to “triable issues of fact” regarding causation. After the denial of its initial motion, however, defendant discovered that the plaintiff had been involved in two previous motor vehicle accidents resulting in similar injuries.
The Court heard defendant’s subsequent motion on the merits, despite the earlier denial, because plaintiff’s “lack of candor” at his deposition was the reason defendant did not earlier know about the prior accidents.
The Court then granted defendant’s new motion because the expert reports indicated that plaintiff’s injuries were not caused by the subject accident, and that plaintiff’s current allegations were “mere recurrences of the earlier symptoms.” Plaintiff’s experts failed to raise an issue of fact as to causation.
The salient point here is the work done by the defendant’s attorneys, adjusters and investigators to uncover plaintiff’s pre-existing condition, despite plaintiff’s denial of any such condition at his deposition. The Court does not opine on how the defendant obtained this information. The Court could have ruled that such information should have been obtained earlier, and thus denied the motion to reargue on those grounds. In any event, in this case, substantial digging and investigation resulted in a dismissed claim.
In Soltis v. Wakefern Food Corp., a Lackawanna County Common Pleas Judge cited some unlikely sources en route to denying dismissal to the parent corporation of a local supermarket. In that case, plaintiff Theresa Soltis filed suit for injuries she sustained when a box full of soy sauce jars fell on her foot as she was shopping at her local Price Rite supermarket. In her complaint, Soltis named Wakefern Food Corp. as the sole defendant despite the existence of PRRC, Inc., a wholly owned subsidiary that operates the Price Rite chain. Wakefern moved for summary judgment, arguing that PRRC was the proper defendant and Wakefern should be dismissed because it did not directly operate the store in question.
Although Common Pleas Judge Carmen Minora seemingly agreed with Wakefern’s position as to liability, he ultimately refused to dismiss the parent corporation from the case. In doing so, Judge Minora cited an unreported federal decision from the Eastern District of Pennsylvania, a 47-year-old Pennsylvania Supreme Court case, and a United States Supreme Court ruling dating back to the early 1900’s. Minora concluded that while the plaintiff’s pleading is technically erroneous, the weight of authority suggests that there is sufficient “interaction and involvement” between Wakefern and PRRC to call into question whether the two legal entities should be viewed as separate and distinct for the purposes of litigation. Moreover, Judge Minora explained that the technical error was not attributable to a lack of diligence by the plaintiff, but rather Wakefern’s failure to provide timely notice of the discrepancy.
As it turns out, Wakefern’s delay in addressing the plaintiff’s error was more costly than could be anticipated. Not only did Judge Minora refuse to dismiss the parent corporation from the case, but he also granted the plaintiff leave to add PRRC as a defendant and conduct additional, specialized discovery into the parent-subsidiary relationship. The result was certainly an admonition of Wakefern’s delay and a reminder that Pennsylvania courts expect defendant businesses to know their own corporate structure.
Thanks to law clerk Adam Gomez for his contribution to this post. If you have an questions or comments, please email Paul at pclark@wcmlaw.
In Harry v. Roman Catholic Diocese of Brooklyn, the Appellate Division, Second Department articulated the standard of care for premises owners with respect to volunteers using their facilities. In Harry, plaintiff was injured when a table collapsed while he was attending a meeting of a local senior citizens’ club on the defendants’ premises. The table was improperly set up by a volunteer member of the club. The defendants merely provided space where the senior citizens club would meet but otherwise had no involvement in its meetings.
The defendants moved for summary judgment arguing that they did not have any notice of or create the hazardous condition, and could not be vicariously liable for the acts of an unaffiliated volunteer. The Second Department agreed and upheld the dismissal of plaintiff’s complaint and grant of summary judgment to the defendant owners.
Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul at
No one seems happy with the workers compensation system. Employers and their insurers complain that the system is biased in favor of employees, awarding compensation even in the face of fraud, malingering or worse. On the other hand, employees kvetch that workers compensation insurers are slow to process and pay claims, leading to delays in treatment, needless anxiety and unhappy medical providers.
With this background in mind, may an injured employee seek damages directly from his employer’s workers compensation insurer for pain and suffering allegedly due to the insurer’s delay in making required payments?
The New Jersey Supreme Court tackled this issued in Stancil v. ACE USA, ruling in favor of the workers compensation insurer. In Stancil, the employee alleged that the insurer routinely delayed medical payments and ignored a directive from the workers compensation court to rectify this situation by a date certain. In response, the employee filed suit against the insurer in the local Superior Court seeking damages for pain, suffering and physical injury allegedly caused by the insurer’s delay. The Superior Court and Appellate Division dismissed plaintiff’s complaint on the pleadings but, ever the persistent fellow, plaintiff was granted permission to appeal to the New Jersey Supreme Court. A good omen indeed.
Displaying unusual deference to the worker compensation system, the Supreme Court ruled that the employee’s complaint could not stand for three reasons. First, the legislature constructed the workers compensation system that eliminated the worker’s right to file suit in the Superior Court. The employee’s suit was inconsistent with that scheme. Second, the legislature had already enacted remedies to deter the occasional recalcitrant insurer. Neither the courts nor an injured employee should interfere with or expand those remedial measures. Finally, the Supreme Court found that the present system worked fairly well for several decades and the legislature had moved quickly and decisively when problems became apparent. In other word, no need to tinker with a system that, albeit not perfect, was working fairly well.
Stancil settles the question of whether an employee can seek damages for pain and suffering from a workers compensation insurer for alleged delays in making required payments. The Supreme Court firmly declined to recognize a remedy beyond that authorized by the Workers Compensation Act.
If you have any questions or comments, please email Paul at
In 1870, attorney George Graham Vest reportedly argued that “the one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog.” While that observation may be true, may a pet owner recover for emotional injuries sustained when her dog is violently attacked and killed right before her eyes? Or, is the pet owner’s loss no different than a shattered piece of furniture or other item of personal property?
In McDougall v. Lamm, the New Jersey Supreme Court ruled that a pet owner may not recovery for emotional distress caused by observing the traumatic death of a pet. The court drew a sharp line in the sand and declined to expand the reach of prior case law designed to compensate individuals for the traumatic loss of a narrowly defined class of individuals such as parents, children or fiancés . In short, the death of a pet may be tragic but the owner cannot recover for any ensuing emotional loss in New Jersey.
The loss of a “man’s [or woman’s] best friend” may be devastating, but the aggrieved owner may not recover for any emotional loss no matter how severe.
If you have any questions or comments about this post, please email Paul at .
In Pierre v 100 Corp., the Appellate Division reversed the trial court’s order striking the answer of an individual and the two corporate defendants. The trial court held that the defendants did not produce witnesses for a deposition. However, the defendants had produced a witness who was an officer of both corporations for a deposition. Furthermore, the defendants were under no obligation to produce other individuals who were not employed by them or otherwise under their control. The Appellate Division held that the production of a single individual satisfied the defendants’ discovery obligations. Thus, an attorney can avoid the need for multiple depositions by producing a single witness that is an officer of several corporate defendants.
Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul at .
