Category Archives: New Jersey

Expert’s Net Opinion Tangles Plaintiff’s Claim (NJ)

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Expert opinions can be crucial for establishing or defending against negligence claims. New Jersey evidence rules require trial courts to serve an important gatekeeping function when it comes to expert witness testimony at the time of trial. The New Jersey Rules of Evidence requires experts to base their opinions on facts or data. An expert may not offer an opinion at trial unless it is based on some facts or evidence in the record. The courts have described this as the “net opinion” rule, which bars expert opinions that are based solely on unsupported conclusions.

In Cabezas v. Spoleti, defendant was the owner of a residential property adjacent to plaintiff’s home. Defendant’s son, Vincent, lived nearby and helped his parents by maintaining their property including performing snow and ice removal during the winter seasons. Vincent did not receive compensation for his services. A few years before plaintiff’s accident, Vincent replaced the sidewalk abutting his parent’s home. He obtained a municipal permit for the work and did not receive any citations, warnings, or complaints with respect to the sidewalk replacement.

Seven years after the sidewalk replacement, plaintiff walked past defendant’s home and slipped and fell on ice that had accumulated on the sidewalk. He was hospitalized for two days and underwent surgery on his right ankle. Plaintiff filed suit against defendants alleging negligent inspection and maintenance of the sidewalk.  Plaintiff retained an engineering expert who prepared a report about the dangerous, hazardous conditions that existed due to the improper construction performed by defendants.

The report cited general construction and property maintenance regulations but did not identify any building code or industry standard that required construction of a sidewalk in the manner the expert described. Plaintiff’s expert opined that a properly constructed sidewalk should be covered with a specific type of sealant, but cited only to his “personal engineering opinion” based on his experience and research rather than any specific industry standard.

The appellate court found that plaintiff expert’s opinion lacked any foundation for admissibility. There was no authoritative materials that would support the expert’s opinions about accepted sidewalk construction practices or any basis on which to draw the conclusions offered. The appellate court affirmed the trial court’s dismissal of plaintiff’s claim, opining that plaintiff’s expert offered nothing more than a series of personal views which constituted a net opinion not worth of consideration.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

New Jersey Insurer May Be Off the Hook for Defense Obligation Due to Anti-Concurrent Language in Exclusion

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In Wear v. Woodbury Medical Center Associates, LLP, plaintiff, a nurse, alleged she suffered injuries due to exposure to mold and other fragments from the HVAC system at Woodbury Medical Center.

Woodbury tendered its defense to Selective Insurance Company who disclaimed coverage on the basis of the “fungi or bacteria” exclusion in their policy issued to Woodbury.  That clause excluded coverage for bodily injury resulting from the presence of fungi or bacteria.  The exclusion also contained anti-concurrent and anti-sequential language that stated the exclusion applied “regardless of whether any other cause, event, material or product contributed concurrently or in sequence to any such injury or damage.”  Woodbury then filed a declaratory judgment action against Selective, seeking a defense and indemnification in the Wear lawsuit.  The trial judge ruled Selective had to immediately fund the defense and reimburse Woodbury for amounts already spent.

On appeal, the Appellate Division ultimately held  the anti-concurrent and anti-sequential language in the exclusion was not ambiguous, and barred coverage.  While noting that New Jersey law construes exclusions narrowly, the court accepted Selective’s argument that there was no coverage because the complaint did not allege   Plaintiff suffered divisible injuries or that the exposure to mold was the principal cause of her symptoms. Under New Jersey law, where an insurer did not undertake the defense at the inception of the litigation, the duty to defend may be converted into a duty to reimburse pending the outcome of the coverage litigation.  Therefore, the court held that Selective may have to ultimately pay for the defense, but that that decision was on hold until the coverage litigation was completed.

Selective took a firm position with respect to coverage early on the litigation and may be ultimately rewarded as a result.  Many exclusions in insurance policies contain similar anti-concurrent and anti-sequential language in exclusions and insurers would be wise to consider their application where the controlling complaint does not allege divisible injuries.

Thanks to Doug Giombarrese for his contribution to this post.

 

 

 

Dismissal of Social Guest’s Personal Injury Action Upheld on Appeal

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In Marroquin v. Espinoza, plaintiff slipped and fell on black ice on her cousins’ walkway.  Plaintiff and other family members had been staying at the house  to celebrate Thanksgiving.  On the Saturday after Thanksgiving, it had rained and snowed, but plaintiff did not go outside.

Plaintiff went out shopping with her mother the next day.  It was not raining, but it was cold.  She had no difficulty getting to her car  in the driveway.  Upon her return, plaintiff parked her car on the street in front of the house.  She went inside for a few hours and then proceeded to pack her car with luggage.  She had no difficulty walking out of the car with her luggage.  However, when she was approaching the car to go home t, she slipped on the walkway leading to the street.  She claimed to have slipped on black ice.

The trial court dismissed plaintiff’s complaint on summary judgment because, as a social guest, she had the burden of proving that her cousins, the defendants, knew or should have known about the black ice on the walkway.   Residential homeowners in NJ have a duty to render private walkways on the property reasonably safe, and to clear snow and ice that presents a danger to known or expected visitors.  The residential owner also has a duty to warn of any dangerous condition of which he or she has actual knowledge, and of which the social guest is unaware.

The record showed that plaintiff’s cousins were unaware of the icy condition on the front walkway.  Neither plaintiff nor defendants said that they knew of the ice prior to the fall.  The defendants testified that they cleared and salted the walkway the day before plaintiff’s fall, and one of the defendants testified that the walkway was clear the morning before plaintiff’s fall.  Finally, plaintiff proffered no evidence that defendants’ should have known that light rain would cause black ice.  This is because plaintiff had no expert to discuss the meteorological conditions or the nature of the walkway.

This case is a good illustration of how defense counsel can obtain a dismissal in the absence of an appropriate liability expert report from plaintiff.

Thanks to Michael Noblett for his contribution to this post.

 

 

 

 

Plaintiff’s (lack of) ED Proof Fails to Satisfy Appellate Court (NJ)

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In proving damages in bodily injury claims, most states require expert support to provide objective evidence of a plaintiff’s subjective complaints of pain.  In a recent New Jersey appellate case, the Court address the necessity of expert support for plaintiff’s claimed residual erectile dysfunction after a motor vehicle accident.

In Chetney v. NJM Re-Insurance Company, plaintiff was working as a paramedic when his ambulance was struck by a vehicle operated by an uninsured driver. Plaintiff claimed that the accident caused permanent injury to his lumbosacral spine. Plaintiff had a long history of prior accidents which included three motor vehicle accidents, one slip and fall, and four subsequent non-motor vehicle accidents. Despite the plethora of accidents, plaintiff claimed that he suffered from chronic pain, and that this accident was the principal cause of his permanent injury.

Plaintiff and his wife testified that the injury from this accident caused him to limit various recreational and family-related activities and negatively affected his quality of life. Plaintiff and his wife testified that he lived an active lifestyle which included sports, hunting, tumbling with his two toddlers and maintaining his lawn. Plaintiff built furniture as a hobby and participated in snow removal for himself and his neighbors. The aforementioned activities were severely restricted or eliminated entirely as a result of this accident.

In particular, plaintiff and his wife testified that he suffered from erectile dysfunction after the subject accident. His wife testified that she was pregnant at the time of the accident but had a miscarriage shortly after. Plaintiff’s wife testified that as a result of this accident, they were unable to conceive a third child or engage in intimacy. The salient point on the appeal pertained to the testimony about erectile dysfunction.

Defendant NJMRe filed a pre-trial motion to bar any testimony about the condition, contending that it was not adequately disclosed during discovery and that expert witness testimony was required to establish that plaintiff suffered from the condition.  Further, NJMRe sought to redact portions of plaintiff’s orthopedic expert’s testimony in which he explained how nerve impingement in the lumbosacral spine could affect urologic function.

The trial court granted the motion as to expert’s testimony, concluding that he lacked the expertise to address urologic conditions, but denied it as to the testimony of plaintiff and his wife regarding erectile dysfunction. The court reasoned that expert testimony was not necessary to establish what plaintiff experienced himself. Although the appellate court agreed that the specific diagnosis of erectile dysfunction is outside the expertise of a lay witness, it noted that plaintiff and his wife avoided medical nomenclature and instead described in lay terms what he experienced and what she observed. As such, the appellate court found no issue with the testimony.

However, the appellate court found that expert testimony was required to establish causation. Quoting J.W. v. L.R., the appellate court held that competent expert testimony would be required to establish causation of a current medical or psychological condition. Based on this premise, the appellate court reversed and remanded the matter to the trial court.

It remains unclear, objectively, whether 1) plaintiff truly suffered from ED, and 2) if so, whether the ED was causally related to the accident.  To put that claim before a jury, expert support would have been required.   Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Appellate Division Affirms No New Trial & Additur in $35,000 Jury Award for Permanent Ankle Injury (NJ)    

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In Helfgott v. Jospeh Konopka Funeral Home, the New Jersey Appellate Division evaluated whether the trial court correctly denied plaintiff’s motion for a new trial or, in the alternative, additur.

Plaintiff alleged that he suffered severe and permanent injuries when he slipped and fell on the sidewalk abutting a property owned by defendants.  Plaintiff alleged that the defendants failed to inspect and maintain the sidewalk from forming snow and ice.  At trial, plaintiff (age 36) testified that he slipped and fell on icy pavement and injured his ankle.  Police and emergency medical services responded to the scene, and plaintiff underwent surgical open reduction with internal fixation to his right ankle.  The treating surgeon inserted an eight-hole metal plate with eight screws.  Plaintiff was immobile for several months, received an additional surgery to his right ankle, and attended physical therapy sessions.

At trial, plaintiff testified that he made a “decent recovery,” but his ankle was not fully recovered.  Plaintiff also testified that he walked with an irregular gait and his right foot tended to lag behind his left foot.  Plaintiff further testified that he experiences stiffness and soreness in his right foot.  However, plaintiff admitted that he walked up to twelve miles in one day during a vacation.  Plaintiff’s medical expert testified at trial that plaintiff’s future prognosis included: (1) an ankle fusion; (2) total ankle replacement; and (3) continued conservative treatment.  Defendants’ medical expert testified that plaintiff had indeed sustained a permanent injury and that plaintiff’s injuries had resulted in residual disability, meaning an indefinite functional impairment to plaintiff’s right ankle.  However, defendants’ medical expert also testified that plaintiff might not need fusion surgery and although plaintiff’s condition could worsen, he could also be healthy.  Defendants’ medical expert opined that plaintiff has a “minimal amount of residual disability” and no noticeable gait.  The jury found that defendants were negligent and solely responsible for plaintiff’s injuries—awarding plaintiff $35,000 in damages for pain and suffering, disability, impairment, and loss of enjoyment of life.  Plaintiff then filed a motion for a new trial or additur, which was denied by the trial judge.  On appeal, plaintiff argues that the jury’s $35,000 award is grossly inadequate, shocks the conscience, and results in a miscarriage of justice.

The Appellate Division found that the trial judge’s determination to deny plaintiff’s motion for additur and a new trial did not shock the judicial conscience and was not a miscarriage of justice.  The trial court judge correctly found that the jury had the right to reject the credibility of any fact or expert witness and to accord the trial testimony whatever weight it determined appropriate.  It is not the judge’s role to second-guess the jury’s credibility assessment, or weigh the persuasiveness of the evidence, but rather to determine whether a reasonable jury could accept the evidence presented as support for the verdict.  Here, based on the plaintiff’s testimony and the testimony of both medical experts, the jury could reasonably find that although there was a permanent injury to plaintiff, the impact was minimal and warranted an award of $35,000.

Thanks to Ken Eng for his contribution to this post and please write to Vincent Terrasi for more information.

Asbestos Insurers Beware: New Jersey Decision Aims to “Maximize Insurance Resources”

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In Continental Insurance Company v. Honeywell International, the New Jersey Supreme Court held that Honeywell was not required to contribute to damages related to brake and clutch pads containing asbestos, even though the company continued to make those products for more than a decade after 1987, when it could no longer obtain insurance coverage.  Specifically, the Court held “an insured is not forced to assume responsibility in that allocation during the insurance coverage block for years in which insurance coverage is not reasonably available for purchase.”

Asbestos coverage disputes are unique in that, because asbestos-related diseases generally do not emerge until decades after exposure, many years of coverage are implicated, and determining what policies will pay has proven to be a complicated task.  Under New Jersey law, each insurer pays based on the degree of risk assumed, and the amount of time each policy was on the risk.  Normally, if the policyholder did not purchase insurance for a particular period, they would be on the hook for that portion of liability.  However, the Honeywell court affirmed prior New Jersey precedent that, if no insurance was available, then the unavailability exception applies and the policyholder will not be required to contribute.  This is the case even though asbestos exclusions became ubiquitous in 1987 and Honeywell continued to manufacture asbestos products.  To that end, the court focused on the goals of “maximizing insurance resources” and spreading risk across the insurance industry.

In dissent, Justice Albin noted the negative impact of the holding, writing, “This court compels insurance carriers that previously insured the corporation – but later refuse to do so – to remain guarantors for claims arising during the years the corporation continues to manufacture its dangerous products.”  This underscores the potential negative effects that could follow should other states follow the New Jersey Supreme Court.  Given the thousands of outstanding asbestos cases throughout the country, and because this issue could come up over again, asbestos insurers may be required to pay for millions in future lawsuits.

Thanks to Douglas Giombarrese for his contribution to this post.

No Recovery for Bitten Broker (NJ)

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In Ward v. Ochoa, plaintiff allegedly serious injuries after being attacked by a pitbull while performing an appraisal of a property. She brought suit against defendants Century 21 Worden & Green and Ken Song for her injuries. The trial court granted summary judgment in favor of defendants and dismissed plaintiff’s claims, leading to her subsequent appeal.

Song had entered into a listing agreement with the homeowners with a view toward conducting a short sale of their foreclosed residential property. Song, a realtor employed by Century 21, was the listing agent and the buyer’s agent. It was Song’s responsibility to ascertain the number and breed of the dogs the homeowners owned during the period of the listing agreement. Plaintiff, a licensed real estate appraiser, was assigned to inspect and appraise the subject property.

Plaintiff was contacted directly by Land Safe Appraisal Services to perform the appraisal of the property. She was unable to get in touch with the residential property owners, so she contacted Song to facilitate making the appointment for the appraisal. At her deposition, plaintiff testified that no inquiry was made as to whether the home was owner occupied or if dogs were on the premises. However, Song informed plaintiff that there was a dog on the premises prior to the date of the appraisal. The homeowners contended that their dog did not have any vicious propensities prior to this incident.

When plaintiff arrived at the property for the appraisal, there were two dogs crated in the kitchen and an older, lethargic pitbull was in the bedroom. Plaintiff described the older dog as calm and docile and did not object to the presence of any of the dogs or request their removal. The first half of the appraisal was without incident. As plaintiff examined the exterior of the home, she observed that the dogs were now out of their crates and on the deck making noise. As plaintiff walked toward her car, one of the pitbulls charged her and she ran away in fear. At the foot of the driveway, plaintiff was repeatedly attacked by one of the pitbulls which resulted in her sustained a fractured radius and nerve damage requiring surgery.

It was undisputed that plaintiff never had a written agreement with Century 21 or Song. Further, the court found that the defendants were in compliance with the Century 21 internal policy to ensure that pets were appropriately secured by homeowners, as evidenced by the fact that the dogs were restrained and crated at the time plaintiff arrived. The trial judge determined that plaintiff could not maintain a negligence claim because no duty of care existed between the parties.

The appellate court on review determined that plaintiff was injured as a result of her employment with P&R. The record was devoid of any evidence to suggest that plaintiff was a “customer” of Century 21 or Song. Consequently, there was no legal relationship between the parties and no privity of contract. As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed with prejudice.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

NJ Court Finds Death Certificate Inadmissible Hearsay Without Medical Examiner Testimony

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In Quail v. Shop-Rite Supermarkets, Inc., plaintiff alleged his wife died as a result of blunt trauma from a cash register station that fell on her leg.  After the accident, plaintiff’s wife told Shop-Rite she was fine, not in need of medical attention.  Four days later, however, she was transported to the hospital where she died.  The following day, a Certificate of Death was issued.  It stated the cause of death was complications of blunt trauma to the right leg.  Plaintiff sought to forego calling the Examiner who issued the Certificate to the witness stand.  Instead, plaintiff sought to rely on the Certificate only.

The Appellate Division upheld the trial court’s dismissal of plaintiff’s case on Summary Judgment because plaintiff had no medical expert on the issue of medical causation.  The Court held that the Certificate, by itself, was inadmissible hearsay despite Rules of Evidence expressly deeming the Certificate to be admissible.  The Court reasoned that despite these Rules, the Certificate, by itself, was inadmissible without the Examiner being called to the witness stand to explain his findings.

This case serves as a reminder to attorneys to ensure that evidence is admitted properly at trial, and if not, motions to dismiss should be filed.

Thanks to Michael Noblett for his contribution to this post.

Non-Commercial Vacant Landowners Owe No Duty to Maintain Abutting Sidewalks (NJ)

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Plaintiff, in Ellis v. Hilton Methodist Church, rolled the dice of life and sued the owner of a vacant church – the Hilton United Methodist Church and the Board of Trustees of the Greater New Jersey Annual Conference of the United Methodist Church – for damages arising from injuries he sustained when he slipped and fell on a sidewalk. He argued a recent decision imposing liability to maintain abutting sidewalks on the owner of a vacant, boarded-up commercial property should apply to vacant churches. His argument, however, was not infallible.

Generally, a landowner in New Jersey does not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner’s property. Dupree v. City of Clifton, 351 N.J.Super. 237, 241 (App.Div. 2002). An exception applies to commercial landowners, who are responsible for maintaining, “in reasonably good condition,” the sidewalks abutting their property. Stewart v. 104 Wallace Street, 87 N.J. 146, 157 (1981). The Court expanded the commercial landowner exception in Gray v. Caldwell Wood Products, Inc., 425 N.J.Super. 496 (App.Div. 2012), which held that commercial landowners retain their duty to maintain abutting sidewalks, even if – as was the case in Gray – the commercial building was vacant and boarded-up.

The plaintiff, in Ellis, sought to expand this exception. The argument was simple: a commercial landowner has a duty in New Jersey to maintain abutting sidewalks; the Court recently extended this duty to maintain abutting sidewalks beyond the life of a commercial property; and since landowners now owe pedestrians a duty to maintain abutting sidewalks of vacant and boarded-up commercial properties, public policy warrants an extension to the owners of a vacant and boarded-up churches. The Court not only disagreed, but also affirmed the duties of commercial property owners do not extend to noncommercial and residential landowners.

The Court reaffirmed that the church at issue in this case is not a commercial building. Nothing in the record, the Court noted, indicated it was ever operated for commercial purposes. (9). Simply maintaining liability insurance, like a commercial property, does not convert the church to being one. Additionally, the mere fact that a vacant building could have been used to generate income, and therefore be classified as a commercial property, is irrelevant. Id. In rejecting that argument, the Court noted that liability would then attach to any vacant or abandoned noncommercial (or residential) building.

In rejecting the plaintiff’s attempt to expand the Gray sidewalk liability exception, the Court made it clear: “[w]e reject any reading of Gray that imposes liability on owners of vacant residential or noncommercial properties that have not been put to any commercial use.” (2). Noncommercial property owners of vacant buildings, and the Board of Trustees of the Greater New Jersey Annual Conference of the United Methodist Church, can now breathe a little easier.

Thanks to Brent Bouma for his contribution to this post. Please write to Tony Pinto for more information.

Municipal Violation Does Not Give Rise to Tort Liability (NJ)

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A municipal ordinance that seemingly created tort liability was challenged in Doremus v. DeLorenzo. Plaintiff filed a complaint against defendants alleging she sustained personal injuries while walking on the sidewalk by defendant’s residential property. Plaintiff asserted that a town ordinance required abutting property owners to maintain the sidewalk, and failing to do so would impose liability on the property owner.

The ordinance stated in part that in an on any public street, the sidewalks shall be maintained at the expense of the abutting property owner as provided by the law. The courts have long held that municipal ordinances cannot create tort liability with regard to residential landowners. Further, it is well-settled law that residential homeowners are not liable for injuries caused by the condition of sidewalks abutting their property.

The only exception to this rule is where a residential property owner negligently repairs the public sidewalk by themselves for the direct use, or where the owner obstructs the sidewalk in such a manger as to render it unsafe for passersby. However, plaintiff did not allege that the defendant engaged in negligent repairs or obstruction of the sidewalk.

Ultimately, the court found that a municipal ordinance does not, and cannot impose liability on defendants. As such, defendant was protected by common-law public sidewalk immunity and plaintiff’s claims were dismissed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.