A motion for summary judgment should only be granted when the record reveals no genuine issue as to any material facts. A recent New Jersey Appellate Court decision examined whether conflicting expert reports served to create a genuine issue of fact to overcome summary judgment.
In Platvoet v. Mancini, the plaintiff sued her own mother after she suffered an injury when she fell into the pool on her mother’s property. Plaintiff’s engineering expert found that the pool’s deck was a “dangerous condition,” violated applicable codes, and that the defendant should have warned the plaintiff of the dangerous condition on the property. Defendant’s expert disagreed on the condition of the property, whether defendant should have warned the plaintiff, and the cause of the accident.
The plaintiff appealed the trial court’s dismissal of her claim, arguing that the conflicting expert opinions created genuine issues of fact that precluded summary judgment. The Appellate Court upheld the dismissal of the plaintiff’s claim, noting that there was absolutely no evidence that the alleged dangerous condition of the pool had anything to do with the accident, and it was undisputed that the plaintiff was thoroughly familiar with the pool configuration.
This case is important because it reveals that the mere existence of an expert report may not be enough to create a genuine issue of material fact sufficient to overcome dismissal of a claim. The plaintiff still needs to connect the expert’s findings to the cause of the accident. Hopefully the lawsuit did not dominate conversation at this family’s Thanksgiving dinner!
Thanks to Heather Aquino for her contribution to this post. Please email Brian Gibbons with any questions.
C.H. v. Rahway Board of Education, a recent decision from the New Jersey Appellate Division, involved a plaintiff-student who got injured while playing in a student-teacher fundraising basketball game. Plaintiff collided with a teacher during the game when they both jumped up for a rebound. She injured her knee as a result.
The trial court granted summary judgment to defendants since plaintiff presented no evidence of negligent supervision, nor was there any evidence that the teacher acted recklessly or intentionally. On appeal, plaintiff argued that the teacher owed her a duty of supervisory care and that there were material fact issues as to whether the teacher acted recklessly. The court disagreed since plaintiff’s description of the incident showed that the teacher did not act recklessly or intentionally and there was no showing of a breach of the duty to supervise. Moreover, the game was officiated by a referee, additional supervision was provided by five teachers who did not participate in the game and there were no facts showing the game was being played in a reckless or out of control manner when plaintiff was injured.
This decision is yet another step in New Jersey toward virtually eliminating a host or sponsor’s potential liability for supervised recreational or sporting events involving voluntary participants.
Thanks to Michael Noblett for his contribution to this post.
In C.H. v. Rahway Board of Education, a minor fourteen year old plaintiff (“C.H.”) was injured while participating in a student-teacher fundraising basketball game. Student participation was voluntary and the game was officiated by at least one referee. The minor plaintiff injured her knee retrieving a rebound after being boxed out by an adult teacher. The teacher was whistled for a foul; a few years later, the school district was served with a complaint.
The facts describe normal activity that occurs when players attempt to make rebounds during a basketball game. Plaintiff C.H. testified that she and the teacher both jumped to retrieve a rebound. The teacher, however, “shove[d] back,” which caused her to land off-balance after their upper bodies collided. This off-balance landing caused her to injure her knee. C.H. subsequently filed a claim seeking damages for negligent supervision and recklessness. After the discovery phase ended, the school district moved for summary judgment as a matter of law.
The trial court ruled for the school district. The court noted that C.H. failed to present any evidence that the district had engaged in negligent supervision, considering (1) the game was officiated by a referee, (2) five non-participating teachers supervised, and (3) C.H. failed to show how the injury could have been prevented by further supervision. The trial court also ruled that a participant in a recreational sport activity cannot assert a claim of mere negligence against a co-participant; instead, a plaintiff must show that the co-participant engaged in reckless or intentional conduct that caused the injury.
On appeal, a unanimous Appellate Division panel upheld the trial court’s grant of summary judgment.
Although school officials have a duty to supervise children in their care, that supervisory duty extends to “foreseeable dangers … [that] arise from the careless acts or intentional transgressions of others.” Frugis v. Bracigliano. 177 N.J. 250, 268 (2003). The undisputed facts in this case, based on deposition testimony and first-hand accounts, did not reveal a game being conducted in a reckless or out-of-control manner. C.H.’s injury therefore was not the result of lacking supervision, or a breach of a school official’s supervisory duty, but rather her participation in a recreational sport activity.
Participants in recreational sports that cause injuries to other participants in a recreational sporting activity cannot be found liable for simple negligence. “[T]he duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” Schick v. Ferolito, 167 N.J. 7, 12 (2001) quoting Crawn v. Campo, 136 N.J. 494, 497 (1994). Since C.H. conceded that the teacher was not trying to injure her intentionally, the court looked for genuine issues of material fact showing the teacher acted recklessly when he jumped for the rebound. It found none.
Finally, and perhaps most importantly, the court rejected C.H.’s argument to impose a negligence standard in connection with the parties’ teacher/school official-student relationship. Rather than conduct an analysis examining the interplay between a school official’s duties to his or her students, the court simply ruled the facts in the record did not demonstrate that the teacher used his position to conduct himself any differently than a normal basketball player. As a result, there is no basis to impose a greater duty on him than any other participant in a recreational sporting activity.
Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.
Plaintiff, a certified dog groomer, had been grooming defendant’s Golden Retriever for three years. When defendants first brought their dog to plaintiff to be groomed, they provided notice that the dog was “a little problematic.” As such, plaintiff would place a muzzle on defendant’s dog during each grooming session. On June 6, 2013, plaintiff prepared to groom defendant’s dog just as she had done six or seven times prior. She placed a muzzle on the dog, and began to bathe him. There was no indication that he was agitated or aggressive. Suddenly, as plaintiff began to trim the hair around the dog’s rear, he pulled the muzzle off with his paw, whipped his head around, and sank his teeth into plaintiff’s left arm, causing ten puncture wounds. Plaintiff was hospitalized for six days and was out from work for approximately six weeks.
Following the close of discovery, defendants moved for summary judgment. The court, applying the Reynolds case, held in favor of the defendants, ruling that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner unless the dog owner purposefully or negligently conceals a particular known hazard from the independent contractor. Here, the court was satisfied that defendants provided notice to the plaintiff that the dog tended to be problematic. Additionally, the court noted that plaintiff chose to muzzle the dog each time he was groomed due to the warnings from the defendant.
Plaintiff appealed the ruling of the trial court, arguing that it erroneously held that the groomer assumed the risk of the dog bite and that the judge did not consider that defendants purposefully concealed the dog’s violent propensity from the plaintiff. Additionally, on appeal, plaintiff’s argued that there was no expert report likening dog groomers to veterinarians with regard to assumption of the risk of being bitten by a dog. Plaintiff noted that veterinarians must be licensed, while dog groomers do not need a license.
The appellate court held that the principles in Reynolds are not confined to veterinarians. Instead, the appellate court ruled that Reynolds applies to any independent contractor who agrees to care for a dog. Further, the court cited plaintiff’s deposition testimony wherein she stated that she was in the commercial dog-grooming business, and being bitten by dogs “goes with the territory.” As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.
As many have experienced, New Jersey Courts can become a quagmire in construction defect (and other complex) cases. To potentially fix this issue, on September 1, 2018 New Jersey implemented brand new Complex Business Litigation Program (“CBLP”) rules – rules that presumptively include all complex construction defect cases with a value above $200,000. This post is a general guideline on (1) what the CBLP changes; and (2) how to effectively utilize the CBLP in an advantageous fashion.
One Judge Per County
The CBLP requires each New Jersey county to designate a CBLP judge to rule on motions or otherwise preside over the inevitable discovery disputes common to CD cases. This particular rule, §4:102-3, should hopefully allow more prompt discovery rulings that allow cases to progress quicker than the current system.
Result: The new CBLP rules will likely result in a more efficient discovery practice as the presiding Judge will be familiar with complex construction actions and the complications of the same.
Initial Conference
§4:103 requires all parties, prior to (a) discovery commencing; and (b) an initial case management conference, to hold a conference among all counsel. This initial conference is where smart litigants can really obtain an advantage. During this conference, counsel is required to:
Set initial case deadlines, including deposition and discovery end dates;
Set deadlines for initial disclosures;
Set limits for discovery requests. The current CBLP rules limit discovery requests to 15 interrogatories per party, including sub-parts, unless otherwise stipulated or ordered by Court.
Set limits for the hours and amounts of depositions. The CBLP Rules presumptively limit, unless otherwise stipulated by the parties or ordered by the Court, a limit of 70 hours for plaintiff depositions and 70 hours total for all defendant depositions.
This conference is where a smart litigator can utilize the rules in a fashion to craft an advantage for a client. Is the client a 3rdor 4thparty defendant with limited liability? If so, it would be best to limit discovery as much as possible. Is the client the target defendant? If so, it would be best to expand discovery as much as possible.
Result: If played properly, the new rules allow for tactical decisions to benefit the client and/or limit defense costs.
Initial Disclosures
As noted above, initial disclosures are now required in all CBLP cases. The disclosures include the following information: (1) all relevant insurance policies; (2) identity of individuals with discoverable information; (3) initial relevant documents or categories of relevant documents; and (4) alleged damages.
The Initial Disclosures are a blessing for risk-transfer purposes. Often, through the intransigence or indifference of counsel, the actual insurance policies often must be subpoenaed – which is not a short process. Consequently, the new CBLP rules allow the risk-transfer phase of construction litigation to commence at an earlier stage. Specifically, this allows initial tenders and specific responses at an earlier date – which starts the clock for potential reimbursement of costs and/or fees.
Result: The inclusion of the mandated exchange of insurance policies is a massive benefit to the program. Moreover, the disclosures additionally require all parties to disclose the identities of individuals with relevant information at an early stage, without specific requests, This can also allow the early joinder of relevant parties as well as an analysis of possible contribution and/or risk-transfer possibilities.
Meet and Confer
However, with respect to discovery motions, the new CBLP rules also require the parties to “meet and confer” prior to the filing of the motion. This is similar to the requirement in Federal Courts, that require the relevant parties to attempt to resolve the dispute in good faith prior involving the Courts.
Result: Parties will likely no longer unreasonably withhold discoverable information that another party is entitled to. Discovery motions will no longer be commonplace but rather only result where a genuine dispute exists between the parties.
Conclusion
These new rules are designed to streamline the litigation process. Whether or not they actually effectuate change and make construction defect litigation more efficient remains to be seen. We’re only two months into the new rules, so much remains to be seen!
Thanks to Matt Care for his work on this post. For more information about it, please contact ">Bob Cosgrove.
The Supreme Court of New Jersey has finally adopted the Daubert factors for assessing the reliability of expert testimony and reaffirmed the trial court’s duty to engage in “rigorous gatekeeping” when adjudicating whether an expert opinion is admissible.
In re: Accutane Litigation involved allegations that the prescription cystic acne medication caused Crohn’s disease. Despite numerous epidemiological studies finding no association b, plaintiff’s expert gastroenterologist relied on suspect data, animal studies and his own unique theory of biological plausibility to opine that Accutane can, in fact, cause Crohn’s disease.
The trial court concluded that there wasno epidemiological evidence establishing a causal link between Accutane and Crohn’s disease, and that plaintiff’s expert report was conclusion driven. The Appellate Division reversed, concluding that plaintiff’s expert relied on methodologies and data of the type reasonably relied upon by comparable experts which wasthe standard in New Jersey for the admission of expert opinions. It also held that it owes less deference to the trial court when making a determination on whether to admit or exclude an expert opinion.
New Jersey’s Supreme Court explicitly rejected the Appellate Division’s heightened standard of review and reaffirmed “that the abuse of discretion standard applies in the appellate review of a trial court’s determination to admit or deny scientific expert testimony on the basis of unreliability in civil matters.”
The Supreme Court made clear that trial courts must “assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion”. Trial courts are now instructed to consider Daubert’s non-exhaustive list of factors when assessing the reliability of expert testimony:
Whether the scientific theory can be, or at any time has been, tested;
Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form or peer review but is not a “sine qua non”;
Whether there is any known or potential rate of error and whether there exists any standards for maintaining or controlling the technique’s operation; and
Whether there does exist a general acceptance in the scientific community about the scientific theory.
Applying this standard, the Court determined that “the trial court did the type of rigorous gatekeeping that is necessary when faced with a novel theory of causation, particularly one, as here, that flies in the face of consistent findings of no causal association as determined by higher levels of scientific proof.”
Requiring trial courts to take their gatekeeping role seriously in NJ has been long overdue since defense counsel often seek to exclude a plaintiff’s expert report. It is not uncommon for a report to be stricken, but then reinstated by the appellate division which has used New Jersey’s liberal standard for the admission of expert opinions. The Supreme Court has now made clear that the trial court’s determination on these issues is owed deference by the trial court, just like any other evidence determination.
Thanks to Michael Noblett for his contribution to this post.
The Appellate Division recently held that the Dram Shop Act does not apply to a tavern hosting a small party where the guests, who were employees of the tavern, brought their own alcohol to the party. The Dram Shop Act was designed to protect the rights of persons who suffer loss as a result of the negligent service of alcohol by a licensed alcoholic beverage server.
In Votor-Jones v. Delly, plaintiff was one of seven employees and patrons of Kelly’s Tavern invited on a social trip organized by the tavern’s owner. The guests brought with them four or five coolers of alcohol on two boats. One guest, Michelle, started drinking before they got on the boat. Michelle continued to drink alcohol after the boats departed for the ocean. Other guests described Michelle as “loud”, “boisterous” and “excited,” but they conceded that they did not know whether she was intoxicated.
After stopping the boats, Michelle was allowed to operate Kelly’s boat. Michelle sped away, but turned back toward the other boat at a speed of 40mph. Michelle then struck plaintiff who was swimming in the ocean.
To prevail on a Dram Shop Act Claim, a party must present evidence that an establishment served alcohol to a visibly intoxicated person. The Appellate Division rejected as “too attenuated” plaintiff’s contention that the circumstances fell within the scope of the Dram Shop Act because neither Kelly’s Tavern nor Kelly individually were acting as a “licensed alcoholic beverage server” or “server” completed by the statute. Moreover, Michelle was not a “customer” of Kelly’s Tavern or Kelly. The Court summarized the outing as an informal, small-scale get together that required attendees to bring their own food and alcohol.
Although there are many instances where an individual is “served” alcohol, not every instance will give rise to liability if that person injures another after imbibing alcohol. Small get-togethers hosted by a tavern where guests bring their own alcohol will not subject a tavern to liability, but the Court acknowledged that a more large scale party for employees where alcohol is provided to them would result in liability to the tavern.
Thanks to Michael Noblett for his contribution to this post.
It is well settled law in New Jersey that a landowner has a duty to use reasonable care to protect an invitee on their property against known or discoverable dangers. However, a recent New Jersey court decision examined the duty owed when that invitee is an independent contractor performing work on the premises.
In the recent case of Gilvary v. Cerza, the plaintiff filed suit against the defendant homeowners when she was injured while working as a home health nurse on the defendants’ property. Specifically, the plaintiff allegedly injured her back while lifting a patient, and claimed that the defendants were responsible for failing to obtain the proper equipment necessary to lift the patient.
The Appellate Court noted that the duty to provide a reasonably safe working place for independent contractors does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform. However, that exception only applies when the landowner does not retain control over the means and methods of the work. In this case, the record revealed that the defendants retained a sufficient level of control and instruction over the nurse’s work, therefore precluding a dismissal of the plaintiff’s claim.
This case is important because it reveals that a homeowner may be responsible for injuries sustained to a contractor working on their premises if the homeowner is directing the work performed.
Thanks to Heather L. Aquino for her contribution to this post.
Plaintiff Cesar Asijtuj-Jutzuy is a former construction worker and employee of Bossolina Construction, Inc., appealing from a summary judgment dismissal of his personal injury action alleging injuries he sustained when he fell eleven feet from a scaffolding plank.
In Asijtuj-jutzuy v. Werner Co., plaintiff sued Sikorski Construction, alleging that it was responsible for oversight of the entire project and that it breached its duty to plaintiff by failing to provide a reasonably safe place to work. Although plaintiff also brought product liability claims against the manufacturer, this article will focus on the negligence claims against Sikorski Construction.
The underlying facts pertaining to the accident were undisputed: plaintiff was standing on an aluminum work platform which was positioned at a height of approximately eleven to twelve feet. Plaintiff was in the process of removing stucco with a power grinder, when the grinder suddenly jammed and kicked plaintiff back off the platform causing him to fall and strike his head on the cement pavement below.
There was a dispute whether Sikorski worked on the project as an individual. Sikorski testified that he did not, but the owner of Bossolina Construction testified that Sikorski obtained permits for the project. Further, plaintiff alleged that Sikorski was responsible for running the job and implementing safety measures. Sikorski testified that he had undergone a lumbar fusion the month before plaintiff’s accident and was still recovering during plaintiff’s accident. Sikorski testified that he was unable to participate in the project in any capacity. The trial court had granted summary judgment to Sikorski Construction on the ground that there was no evidence of it having a contract with respect to this project and the lack of evidence that Sikorski was on the project site. In doing so, the trial court noted that Sikorski had not been named as an individual defendant.
The appellate court found that Bossolina did not distinguish between himself as an individual and Bossolina Construction. Sikorski, much in the same way, did not distinguish between himself and his company when providing testimony. For example, when Bossolina testified he subcontracted the job to Sikorski, he did not, individually, have a job to subcontract out. Thus, when he testified he subcontracted the project to Sikorski, he likely meant Bossolina Construction subcontracted the job, and he may have meant – and a jury could have reasonably inferred – Bossolina Construction subcontracted the project to Sikorski Construction. As such, even if Sikorski himself was not physically at the project site, there was a question as to whether Sikorski Construction had agreements and duties arising from the agreements.
Citing the Burwell v. Hobby Lobby Stores case, in a sole proprietorship, the business and its owner are one and the same. Thus, Sikorski could not avoid liability by using a name for his business when his business was a sole proprietorship. The appellate court held that the trial court should have permitted plaintiff to amend his pleadings to name Sikorski as an individual defendant or in the alternative, should have amended the pleadings itself. The appellate court reversed and remanded the matter for trial, holding that Sikorski and Sikorski Construction were indistinguishable as legal entities. As such, the question of Sikorski’s involvement with the project was a question of fact that should have been determined by the jury. Thanks to Steve Kim for his contribution to this post. Please contact Brian Gibbons by email or on Twitter (@bgibbons35) with any questions.
In DaSilva v. JDDM Enterprises LLC et. al., the Appellate Division for the Superior Court of New Jersey recently considered the interplay between worker’s compensation statutes and the common Workers’ Compensation Exclusion often present in contractor’s insurance policies.
The coverage action arose out of Utica Insurance Company’s disclaimer of coverage to JDDM, a general contractor insured by a Utica Contractor’s Special insurance policy. Plaintiff DaSilva, an employee of a JDDM subcontractor, sued JDDM for injuries he incurred on the construction site. His employer, the subcontractor, failed to obtain Worker’s Compensation insurance coverage, as it was required to do pursuant to the N.J. statute. JDDM tendered to Utica, and Utica disclaimed all coverage pursuant to the policy’s Workers’ Compensation Exclusion, which excluded coverage for all bodily injury if “benefits are provided or required to be provided by the insured under a workers’ compensation law.”
JDDM argued that the exclusion was ambiguous, and should be construed in favor of coverage given the unequal bargaining power between JDDM and Utica. The Court disagreed, holding the Workers’ Compensation Exclusion was unambiguous and Utica’s disclaimer was proper.
The Court found N.J. Statute 34:15-79(a) dispositive. This statute required any contractor who places work with a subcontractor, to obtain workers’ compensation coverage “in the event of the subcontractor’s failing to carry workers’ compensation insurance as required by this article.” Thus, the New Jersey regulation explicitly makes contractors liable for the workers’ compensation coverage that would otherwise be carried by their subcontractors, thus providing a powerful incentive for contractors to hire insured subs. Given this rule, the Court found that JDDM, as Utica’s insured, was plainly required by law to provide workers’ compensation, and thus the plain language of the Exclusion barred coverage.
The DaSilva case is a reminder to contractors in New Jersey to be mindful of workers’ compensation coverage to all subcontractors hired, given the ubiquity of the Workers’ Compensation Exclusion in insurance policies.
Thanks to Vivian Turetsky for her contribution to this post.
