In Aronberg v. Tolbert , the Supreme Court considered whether the heirs of an uninsured motorist killed in a motor vehicle accident have a claim under the Wrongful Death Act , N.J.S.A. 2A:31-1 et seq, or whether N.J.S.A. 39:6A-4.5(a) which bars a lawsuit for personal injuries by an uninsured motorist, also bars the survival action.

The Appellate Division in affirming the trial court, found that the Wrongful Death Act granted the heirs an independent right of recovery, regardless of the decedents failure to purchase mandatory automobile insurance. The panel, in part, found nothing in the language of 39:6A-4.5(a), which supported a Legislative intent to punish innocent family members who are the beneficiaries under the Wrongful Death Act, for the decedent’s act of driving while uninsured.

The Supreme Court reversed finding that when an uninsured motorist’s claim is barred by 39:6A-4.5(a) , an heir has no right to recovery under the Wrongful Death Act. It determined that the Legislature intended for the 39:6A-4.5(a) lawsuit bar to also apply to the decedents’s next of kin in a wrongful death action.

Aronberg v. Tolbert ( A-9-10) decided August 9, 2011.

http://www.judiciary.state.nj.us/opinions/index.htm

Please contact Robert Ball with any questions regarding this post.

In DiBartolomeo v. New Jersey Sports and Exposition Authority ( NJSEA), the Appellate Division reinstated a personal injury suit against the NJSEA for a 2006 escalator collapse at Giants Stadium after a New York Jets football game. Plaintiff claimed that as fans were exiting, the escalator buckled and the treads flattened causing patrons to slide down with bodies piling up at the bottom.
The Appellate Division reversed summary judgment to the NJSEA finding that it was not entitled to immunity under the NJ Tort Claims Act. The court found that the stadium escalators could be found to pose a danger to the general public even when being used in a foreseeable manner. The potential dangerous condition was the NJSEA policy of operating the escalators that were rated for 300 lbs. per step, when it was foreseeable and likely that greater loads would be routinely applied.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a2716-09.pdf

In DiBartolomeo v. New Jersey Sports and Exposition Authority ( NJSEA), the Appellate Division reinstated a personal injury suit against the NJSEA for a 2006 escalator collapse at Giants Stadium after a New York Jets football game. Plaintiff claimed that as fans were exiting, the escalator buckled and the treads flattened causing patrons to slide down with bodies piling up at the bottom.
The Appellate Division reversed summary judgment to the NJSEA finding that it was not entitled to immunity under the NJ Tort Claims Act. The court found that the stadium escalators could be found to pose a danger to the general public even when being used in a foreseeable manner. The potential dangerous condition was the NJSEA policy of operating the escalators that were rated for 300 lbs. per step, when it was foreseeable and likely that greater loads would be routinely applied.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a2716-09.pdf

The artistic and technical problems of the new Spiderman musical are well-chronicled — http://www.huffingtonpost.com/2011/02/09/spider-man-reviews_n_820640.html. And, it is certainly a good thing that NY’s Labor Law does not apply to actors’ falls from heights — http://abcnews.go.com/Entertainment/wireStory?id=12446206. But, since the odds of some kind of lawsuit ultimately arising are, at least, decent, Saturday Night Live has decided to have some fun — http://www.nbc.com/saturday-night-live/video/spider-man-lawsuit/1291746/. If only, there wasn’t some truth to the absence of professional standards.

For more information about this post, please contact Bob Cosgrove at .

< ![CDATA[NJ Deemer statute metaphysically endorses Out-of-State Auto Policy]]>

In Capano v. Moral Foods , Inc, the Appellate Division affirmed the summary judgment dismissal of plaintiff’s personal injury complaint for a slip and fall accident in defendant’s supermarket.

Plaintiff slipped and fell in defendant’s store while shopping. A store surveillance video confirmed that a male customer dropped a container of cottage cheese on the floor at 3:02:40 and that plaintiff fell at 3:03:15, 33 seconds later. Plainitff argued that the store was small and the spill was in the front of the store , therefore that a fact question existed as to whether a store employee should have observed the spill.

The Appellate Division affirmed summary judgment finding that 33 seconds was not sufficient notice and that plaintiff’s fall was ” relatively instantaneous” providing no time for the store to react. The Court also found that the facts did not establish a ” dangerous mode of operation ” case which would have eliminated the requirement of proving notice. The Court found the dangerous condition caused by spillage from a packaged container of cottage cheese was not a foreseeable risk posed by the store’s mode of operation.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a3218-09.pdf

In Freeman v. Corzine, the Third U.S. Circuit Court of Appeals held that a portion of New Jersey’s alcoholic beverage control law violated the Commerce Clause by requiring out of state wineries to sell through wholesalers and retailers while allowing local NJ wineries to open shops at their farms to sell directly to consumers. The plaintiff’s included wine connoisseurs, a couple seeking more access to Kosher wines and a California winery who had sued NJ for the right to order wine by telephone or online and have it shipped directly to individuals homes. The Court found the bulk of the beverage control statute constitutional except the portion covering local wineries direct sales.

http://caselaw.findlaw.com/us-3rd-circuit/1548892.html

In Sims v. Deltec Power Systems, the Appellate Court upheld an Order barring a plaintiff’s liability expert from testifying at the time of trial. Plaintiff, Calvert Smith, alleged personal injuries due to exposure to sulfuric acid fumes. According to the plaintiff, a group of batteries attached to an uninerruptible power supply unit malfunctioned, and caused the release of fumes. Plaintiff brought suit against the manufacturer of the batteries.

Plaintiff’s expert, Mark Keith, testified that a manufacturing defect caused the leak, an opinion which was premised upon the fact that the battery casing was cracked. However, there was no evidence in the record to suggest that any of the batteries were cracked. Furthermore, plainitff’s expert acknowledged that one of two things could have caused the release of the fumes- negligence or a product defect. Ultimately, the appellate court upheld the trial court’s opinion that plaintiff’s expert’s testimony constituted an inadmissable net opinion which was properly excluded.

Thank you to Heather Aquino for this post.

http://www.judiciary.state.nj.us/opinions/a1058-09.pdf

In Gensollen v. Pareja, the New Jersey Appellate Division considered the extent to which a party may inquire into an expert’s finances and litigation history in order to prove bias at trial. The defense medical expert, Dr. Ronald Gerson, had testified at a deposition as to the number of IME’s he conducted per week, the fees per exam and the fact that more than 95% of his litigation work was for defendant’s. Subsequent to the deposition , the trial court compelled Dr. Gerson to create and produce, at his own expense , a significant amount of additional discovery.

The Appellate Division reversed finding that the trial judge abused his discretion in compelling additional discovery since the expert had already provided sufficient information at his deposition to allow the requesting party to argue to a jury that the expert was a “professional witness” or “hired gun”. The Court concluded that , ” the pursuit of discovery from an expert is neither limitless nor may it continue unceasingly until the expert cries “uncle” and concedes positional bias.” The Court emphasized that it found no evidence that Dr. Gerson had failed to provide accurate estimates or testimony regarding his litigation services.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a0401-10.pdf