In Piper v. The Cheesecake Factory, plaintiff alleged her eye was injured by a fragment from a shattered plate when a restaurant server dropped the plate six feet from the booth where plaintiff was sitting. The matter went to trial. The trial judge dismissed plaintiff’s complaint with prejudice finding that her medical expert’s report was net opinion.
The court noted that no doctors’ records showed the presence of a foreign object in her eye or a corneal abrasion. Plaintiff was treated by her eye doctor for what was diagnosed as pre-existing blepharitis. She also consulted other ophthalmologists, one of whom testified as her expert and concluded that if a foreign body hit her eye, it might have contributed to her symptoms. Defendants’ medical expert found no signs of trauma or injury to her cornea.
The Appellate Division agreed with the trial court that no medically sound evidence established a causal link between plaintiff’s alleged trauma and reported symptoms.
This case highlights how close scrutiny of an adversary’s medical expert report can lead to a dismissal of the adversary’s claim.
Thanks to Michael Noblett for his contribution to this post.
In Newton v. Sam’s Club, the New Jersey Appellate Division applied the New Jersey Supreme Court’s recently revised remittitur standard to determine whether a $1,000,000 verdict for plaintiff’s damages shocked the “judicial conscience.”
Generally, remittitur is a court decision that reduces the amount of damages granted by a jury in a civil case. In Cuevas v. Wentworth Group, the New Jersey Supreme Court held that remittitur includes an analysis of the case itself; witness testimony; the nature, extent, and duration of plaintiff’s injuries; and the impact of those injuries on the plaintiff’s life. The standard to determine whether remittitur is appropriate is not whether a damages award shocks the judge’s personal conscience, but whether it shocks the judicial conscience.
In Newton, plaintiff sustained severe lacerations to her left leg, leaving her wound visible but not severed. As a result of the injury, plaintiff walked with a limp and experienced constant pain in her leg. As she continued to experience pain, she stopped going to the gym and her physical activities were severely limited. In addition, plaintiff’s injuries impaired her ability to assist her already immobile husband. Prior to the accident, plaintiff was responsible for the day-to-day activities of her husband such as bathing him and driving.
Defendant argued on appeal that a new trial should be granted because the $1,000,000 verdict shocks the judicial conscience, was against the weight of the evidence, and was a product of sympathy, prejudice, and partiality. Defendant further argued that the trial court erred in denying a remittitur. In support of its arguments, defendant pointed out that the trial judge was inexperienced in personal injury litigation.
The Appellate Division was not persuaded by defendant’s arguments and affirmed the trial court’s denial of a new trial and remittitur. The Appellate Division reasoned that plaintiff sustained disfiguring scarring, numbness, constant pain, and impairment of the use of her leg. Taking into consideration plaintiff’s life expectancy and lifestyle, the court did not find the awarded damages were “so grossly disproportionate to the injuries suffered that it shocks the judicial conscience.” Although the Appellate Division acknowledged that the $1,000,000 verdict was high on the spectrum of damages, this does not mean it was excessive.
Thanks to Ken Eng for his contribution to this post and please write to Mike Bono with any questions.
In New York City, where a plaintiff is injured due to a slip and fall within a residential apartment building, a defendant must show through admissible evidence the last time the area was cleaned and inspected prior to the accident. However, it appears that in some instances, this alone is not enough.
In Hamilton v. Naica Housing Development, decided on February 6, 2018, the First Dept. upheld the lower court’s denial of the property owners’ motion for summary judgment. The property owner had produced two witnesses for a deposition. One witness, the building superintendent, testified that he personally cleaned and inspected the area prior to the accident and did not see any wet substances. The same witness stated that in the event of a wet condition, wet floor signs would be placed immediately, however that had not occurred in this case.
The second witness, a housekeeper for the building, who was present at the time of the accident, testified that he saw a wet floor sign in the area of plaintiff’s fall, but that he did not know who placed it there and did not do so himself. The defendant attempted to overcome the difference in testimony by arguing that even if the defendant owner did have notice of a condition between when it was cleaned and the accident, they adequately warned plaintiff by placing a wet floor sign.
It is evident in making the motion that the defendant thought both evidence of the last inspection and placement of a warning sign would be sufficient to show that they acted reasonably. However, the Court found that this different testimony from the defendant’s witnesses created issues of fact, namely as to whether the defendant did have notice of a condition and failed to remedy it. Further, the Court found questions of fact as to whether placing a wet floor sign is sufficient to warn or protect from a known dangerous condition, where that condition had not been cleaned up.
This decision emphasizes the importance of having witnesses prepared, and their testimony in sync with each other, to eliminate holes in the defense case. Now, not only does this plaintiff have a pathway to trial, but he has an added advantage of facing conflicting defense witnesses. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions.
While attending a country music star concert at Monmouth University, plaintiff brought suit after she allegedly fell on unsafe stairs at the university’s Multipurpose Activity Center. Monmouth University had rented out the activity center to another company for the purposes of holding this concert. Plaintiff alleged that she was a business invitee and that the university breached its duty of care. The trial court granted summary judgment in favor of the university, citing the Charitable Immunity Act.
The Charitable Immunity Act protects nonprofit organizations that are organized exclusively for religious, charitable or educational purposes from damages to any person where such person is a beneficiary to the works of such nonprofit corporation. An entity qualifies for charitable immunity when the following three requirements are met: (1) it was formed for nonprofit purposes; (2) it was organized exclusively for religious charitable or educational purposes; and (3) it was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works.
Plaintiff conceded that the university satisfies the first two prongs of the charitable immunities standard. However, she argued that the country star concert was not an “educational” event. The courts rejected this argument, finding that the country music star’s concert was titled “Joy of Christmas” which was likely to include Christmas music. Whether classical, country or Christmas, music is an art and the court found that the concert was “a cultural and educational experience for patrons of this form of artistic production.” The university would have been immune if it presented such a concert itself, and the court found that it was no less immune just because it rented out its facilities to the outside entities who presented the concert.
Notably, even an organization “organized exclusively” for “charitable” purposes may be immune when it rents its facilities to for-profit entities. The courts have historically found that non-profit organizations that rent its facilities to the general public for activities such as piano recitals, dance classes and concerts serves important social and recreational needs of the community. As such, the trial courts grant of summary judgment in favor of the university was affirmed by the appellate court. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.
In Dawkins v. One Bus, the New Jersey Appellate Division considered whether expert testimony was required for a plaintiff to pursue claims against a bus company for the driver’s failure to contact her dispatcher when rowdy teens boarded the bus.
Plaintiff was riding in a bus operated by defendant when four teenagers boarded the same bus. At the bus stop, one teenager boarded at the front of the bus, while the remaining three teenagers boarded at the bus’s rear door without paying their fares. According to plaintiff, the teenagers “were standing in the aisle of the bus . . . being rude to other passengers [and] . . . talking bad about some passengers.” The bus driver informed the teenagers entering at the rear doors that they would have to board via the front entrance and pay their fares. However, the teens refused and remained on the bus. As plaintiff was exiting at the bus’s rear doors, one of the teenagers kicked plaintiff in the back, causing her to slide down the rear steps of the bus. Another teenager also threw a bottle of bleach at plaintiff’s face.
Plaintiff filed suit, alleging her injuries occurred as a result of the defendant bus company’s negligence. Plaintiff served a liability expert report, who opined that: (1) the driver should have immediately contacted the dispatcher when the teens boarded the bus and failed to pay their fare; and (2) the driver should have contacted the dispatcher when it was obvious that the teens were harassing other passengers.
At the conclusion of discovery, the trial court granted defendant’s motion for summary judgment, finding no link to demonstrate that if the driver had contacted the dispatcher, the incident could have been prevented. The trial judge also found plaintiff’s expert unqualified to render his opinions since he lacked a foundation based on any objective standard.
On appeal, the Appellate Division affirmed the trial court’s decision and agreed that plaintiff failed to demonstrate by competent evidence that defendant owed her a duty, that there was a breach of that duty, and that her injuries were caused by defendant’s breach. Specifically, the Appellate Division reasoned that there was no evidence that the bus driver was aware of any threats to the passengers. Under a totality of circumstances analysis, there was no evidence that any foreseeable harm would come to the passengers, let alone that a passenger would be kicked and then assaulted with bleach.
Without any information regarding the danger to the passengers, there were no reasonable steps the driver could have taken to protect plaintiff. Lastly, the Appellate Division found that plaintiff’s expert report and testimony failed to support that the generally accepted standard is for a bus driver under similar circumstances is to contact the dispatcher.
Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.
A decision by the New Jersey Supreme Court requires judiciary administrators to begin notifying parties litigating professional malpractice claims of their statutory obligations to file affidavits of merit and to schedule hearings to determine whether those affidavits are satisfactory. In a unanimous ruling in A.T. v. Cohen, the court held that a medical malpractice case should not have been dismissed when an out of state attorney, admitted to practice in New Jersey but unaware of New Jersey’s filing deadlines, failed to file a timely affidavit of merit.
The judiciary will now be responsible for notifying parties in malpractice actions of their deadline obligations. The judiciary will use its newly implemented e-filing system to electronically notify malpractice plaintiffs of their obligation to file an affidavit of merit within sixty days from the filing of defendant’s answer to the complaint. The judiciary will also notify litigations of the scheduling of mandatory conferences to determine the validity of the affidavits (known as Ferreira conferences).
The Cohen case arose from the birth of a child and the alleged malpractice of doctors and a hospital leading to the child’s birth defect. The plaintiff’s attorney at the time failed to comply with the statute requiring the filing of an affidavit of merit. As a result, the trial court dismissed plaintiff’s complaint. The Appellate Division affirmed, but the Supreme Court reversed, holding that equitable relief should be afforded to plaintiff. The Supreme Court was persuaded that a presumably valid complaint should not be dismissed because of a lawyer’s non-compliance with a statute.
Going forward, attorneys are on notice that disregarding the scheduling of a Ferreira conference will not provide a basis for relief from statutory obligations.
Thanks to Michael Noblett for his contribution to this post.
Plaintiffs have the burden of proof when establishing the negligence of defendants. In Frison v. A-1 Limousine et al., plaintiff appealed from two orders granting summary judgment: one in favor of Trenton Mercer Airport, Mercery County, and Mercer County Department of Transportation and Infrastructure, and one in favor of non-public entity defendants, A-1 Limousine, Inc. and Andre Williams.
Plaintiff was on a shuttle bus at Trenton Mercer County Airport, which she was taking to a remote parking lot used by the airport’s customers. The driver of the bus, defendant Andre Williams, dropped plaintiff off in an unlit area of the gravel-surfaced lot. As plaintiff exited the bus, she lost her footing and fell to the ground. Plaintiff sustained a tear in the meniscus of her left knee and fractured a bone in her right foot. Both defendants filed a motion for summary judgment, and the trial court granted both motions. Plaintiff subsequently appealed, arguing that defendant A-1 acted unreasonably in dropping plaintiff off in a “dangerously dark portion of the gravel parking lot” and alleging that the Trenton Mercer Airport acted in a palpably unreasonable manner by not installing lights in the parking lot.
The appellate court first addressed plaintiff’s arguments with respect to the public entities. The appellate court found that the heightened “palpably unreasonable” standard applies to dangerous conditions on public property and is intended to comport with the principles of liability used by the courts for local public entities in their capacity as landowners. Additionally, the appellate court opined that the Torts Claim Act defined a “dangerous condition” as a condition 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. Applying that standard, the court concluded that plaintiff failed to demonstrate that a “dangerous condition” existed in the parking lot. Plaintiff provided no proof that the condition was dangerous such that it presented a substantial risk of injury.
With respect to plaintiff’s claims against A-1, the court found that plaintiff failed to establish a legal basis to impose a duty of care under the circumstances presented. Plaintiff offered no proof that the vehicle’s condition caused her to fall. A-1 neither owned nor had the duty to maintain the parking lot. Additionally, plaintiff presented no proof that A-1 had notice of any condition of the lot as to implicate a duty to warn. As such, the appellate court affirmed the trial court’s decision on both motions and opined that defendants cannot be liable due to plaintiff’s failure to use due care.
Considering the lessened duty for municipalities, and the lack of any duty for the bus company, plaintiff simply fell in an unfortunate place for her to recover. The defendants held plaintiff to her burden here, and prevailed. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.
In a claim against a New Jersey public entity, a plaintiff must prove a permanent and substantial injury to permit recovery. Under the Torts Claims Act, public entities are immune from suits unless there is permanent loss of a body function, permanent disfigurement or dismemberment.
In Paz v. State of New Jersey, the plaintiff suffered injuries to her neck, back and shoulders after a trip and fall accident on a sidewalk at the Motor Vehicle Commission. She was diagnosed with cervical disc herniation, chronic neck pain, cervical neck pain, cervical radiculopathy, lumbar disc herniation, lumbar radiculopathy, chronic back pain, status post lumbar microdiskectomy and failed back syndrome.
By all accounts, plaintiff enjoyed a good surgical outcome, and reported her pain was largely resolved just two weeks after surgery. Plaintiffs treating doctor stated that she had reached maximum medical benefit. She returned to work and remained employed for two years following the accident. Although she complained of debilitating pain, plaintiff had no medical restrictions on her, and she relied upon over-the-counter medications for pain relief.
Plaintiff’s medical expert found a decreased range of motion in all directions in her neck, but he did not identify the degree to which her range of motion was decreased, or how that resulted in the substantial loss of any bodily function.
The court found that the plaintiff did not sustain a permanent loss of an bodily function under the language of the Torts Claims Act. Although it is not necessary for a plaintiff to prove a total permanent loss of use of a bodily function, “a mere limitation on a bodily function” will not suffice. Similarly, “an injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain,” is insufficient.
The court dismissed the plaintiff’s claim, finding that she failed to demonstrate any reduction in normal function that was both permanent and substantial. Although unreported and not precedential, this case is an example of the threshold of injury required under the Tort Claims Act. Even surgery may vault the requirement of a substantial and permanent injury. The court will examine how a plaintiff has recovered from injuries and to what extent residual impact there has been on life a person’s function.
Thanks to Heather Aquino Obregon for her contribution.
For more information, contact Denise Fontana Ricci at .
When a plaintiff files litigation on the last day of the statute of limitations, can a defendant file a counterclaim arising out of the same incident?
In Veronica Barley v. Arnell Barley, step sisters sought damages from one another for personal injuries after an altercation. The plaintiff sister, Veronica, alleged that her sister, Arnell, scratched her and tried to run her over with a car. She filed suit on the last day of the statute of limitations.
Along with Arnell’s answer, she counterclaimed that Veronica was the aggressor who had actually injured her. The problem was that her counterclaim was filed after the statute had run. She argued that her claim should be considered as related back to the time of the filing of the complaint.
Although the trial judge was unpersuaded, the appellate division found that since the case was pending and the counterclaim was promptly filed, it related back to the original complaint filing date. The court noted that the plaintiff had delayed filing until the last day of the statute (implying this was tactically done) leaving her sister no time to counterclaim. Under these circumstances, the court felt that justice could only be served by allowing the defendant’s counterclaim to be heard.
For more information, contact Denise Fontana Ricci at .
In Assevero v Hamilton & Church Props, the Second Department recently allowed plaintiffs to amend their 2008 complaint to include new allegations of wrongful death after the plaintiff passed away in 2015 – seven years after the underlying accident.
The case arose from a 2007 accident in which Hugh Assevero sustained injuries while working at a renovation project at a building owned by the defendants. Assevero alleged that he was descending an unsecured ladder, which shifted suddenly, causing him to fall from the third floor of the building to the basement. He commenced an action in 2008 to recover damages based upon, inter alia alleged violations of Section 240(1) and 241(6) of the Labor Law. Following the completion of depositions, Assevero moved for summary judgment on his 240(1) claim, and the defendants cross-moved for summary judgment dismissing the 240(1) and 241(6) on the basis of the homeowners’ exception. In 2012, the court granted defendants cross motion to dismiss the statutory claims and denied Assevero’s motion. Assevero appealed. Several months after the court partially granted the defendants’ cross-motion – i.e., during the pendency of his appeal –Assevero died. His wife substituted in as administrator of his estate. Approximately three years after Assevero’s death, the Second Department issued a decision on Assevero’s appeal, and denied the defendants’ summary judgment motion, finding that they failed to make a prima facie showing that their home qualified as a two family home.
Then, approximately three months after the Second Department’s original decision, the plaintiff moved the Supreme Court for leave to amend the complaint and add a new cause of action for Assevero’s wrongful death. The plaintiff argued that Assevero died as a result of “complications of treatment for pain resulting from” his fall from the ladder. In support of her motion, she submitted Assevero’s autopsy report, which indicated that the cause of his death was “acute intoxication due to the combined effects of fentanyl, benzodiazepines, lidocaine and cyclobenzaprine,” and that the manner of death was “misuse of prescription medication.” The Supreme Court granted the plaintiff’s motion to amend the complaint, and defendants appealed.
Now before the Second Department for the second time, the justices noted that under the CPLR, “leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit.” The Court went on to note a movant’s low burden in these situations, explaining, “leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt.” In the case at bar, the Second Department held that because Assevero died during his appeal and its prior order reinstated the causes of action alleging violations of §§ 240(1) and 241(6), the defendants failed to demonstrate surprise or prejudice resulting from the delay in asserting the wrongful death cause of action. Further, the Court held that the plaintiff’s the proposed amendment was “neither palpably insufficient nor patently devoid of merit.”
Perhaps what is most striking about this outcome is not the application of the law, but the underlying facts and the significant delay. Of course, this goes to show that even where a new allegation – especially in the case of wrongful death – significantly alters a defendant’s valuation of the case, courts mean it when they say, “leave to amend a complaint should be freely given.” Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions.
