Article by Capehart Scatchard

By: Betsy G. Ramos, Esq.

Below is a short summary of all significant litigation cases for the past six months. We will publish this update twice a year. Look forward to the next case summary in November.

Adverse Inference. Washington v. Perez, 430 N.J. Super. 121 (App. Div. 2013). Trial judge found to have committed reversible error in giving adverse inference charge against defendants because they did not call their medical experts to testify. Four factor test the court is to consider in deciding whether to give the charge. Here, the court found that, based upon this test, proper exercise of discretion would have been to deny plaintiff’s request to give the charge. Jury award was reversed and remanded for new trial.

Civil Rights. Lefemine v. Wideman, 133 S. Ct. 9, 184 L. Ed. 2d 313 (2012). This case involved an issue as to whether the plaintiff could obtain attorneys fees as a prevailing party under a Section 1983 claim when it was successful in obtaining injunctive relief only. The injunction entered did order the defendant officials to change their behavior in a way that benefitted plaintiff. Thus, the plaintiff was found to be a prevailing party and should be entitled to obtain attorneys fees.

Dram Shop. Halvorsen v. Villamil, 429 N.J. Super. 568 (App. Div. 2013). Dram Shop case in which Appellate Division found that eyewitness testimony not needed to prove a person was visibly intoxicated and reversed summary judgment in favor of bar. Held that visible intoxication can be proven by circumstantial evidence. In this case, the court found the following evidence to be sufficient: person did not consume alcohol before going to bar, accident occurred 20 minutes later, erratic driving of vehicle observed, alcohol noticed on his breath, told police he was not in pain despite sustaining serious injuries in accident requiring hospitalization, and expert’s report that his BAC was .278 about 1½ hours after accident.

Indemnification. Sayles v. G&G Hotels, Inc., 429 N.J. Super. 266 (App. Div. 2013). This case involved a dispute between G&G Hotels and Howard Johnson International and Howard Johnson’s claim for indemnification due to the death of one plaintiff and serious injury of the second plaintiff when they fell through a third floor window of G&G’s Atlantic City hotel. G&G had entered into a license agreement which permitted it to use the name of Howard Johnson but also contained an indemnity provision. The court found that the indemnification provision was clear and enforced it against G&G.

Lawsuit Threshold. Adrignolo v. Emejuru, 2012 N.J. Super. Unpub. LEXIS 2253 (App. Div. 2012). Plaintiff was injured in an auto accident and claimed injury to his left hand. Plaintiff was unable to show objective clinical evidence of permanent injury and, thus, did not meet the lawsuit threshold. As for his economic injury, because he did not plead it in his complaint, nor raise it with the trial judge, the Appellate Division refused to consider it.

Liability of Contractor for Injury to Employee of Subcontractor.  Tarabokia v. Structure Tone, 429 N.J. Super. 103 (App. Div. 2012). The plaintiff, an employee of a subcontractor, claimed a repetitive motion injury at an office building construction site. He was an electrician employed by an independent contractor hired by the project’s general contractor to install wiring for light fixtures. He claimed permanent injuries to both arms by repeatedly using a specialized power tool over the course of several weeks. Under the circumstances, the court found no basis to impose a duty of the GC to ensure plaintiff’s safe and proper use of equipment supplied by his employer and dismissed plaintiff’s claim.

Liability for Acts of Independent Contractor. Slotnick v. Club ABC Tours, Inc., 430 N.J. Super. 59 (Law Div. 2012). Travel agent found not liable for injury that occurred on a tour booked with independent contractor tour guide. Not liable for alleged negligence of independent supplier of services to tour because they have no control over such entities.

Medical Malpractice. Nicholas v. Mynster, __ N.J. ___, 2013 N.J. LEXIS 359 (2013). This case involved the strict application of the Affidavit of Merit statute. Plaintiff suffered brain injury due to carbon monoxide poisoning and sued the ER doctor and the admitting doctor for failing to refer him to a facility with a hyperbaric chamber. The Plaintiff’s experts, while board certified in internal and preventative medicine and specialized in hyperbaric treatment, were not board certified in emergency medicine and family medicine, which were the specialties of the defendants. The Appellate Division ruled that the plaintiffs cannot establish the standard of care through an expert who, although credentialed by a hospital to treat the same condition, does not practice in the same specialties as the defendant physicians.

Offer of Judgment. Jacobsen v. Dara, 62 A.3d 942 (Law Div. 2011). In a medical malpractice case involving 90 plaintiffs, plaintiffs filed an offer of judgment, offering to take judgment in the single amount of $3 million as to all plaintiffs. The defendants moved to strike the offer of judgment on the basis that Rule 4:58-4 only provided for a single unallocated offer in situations in which plaintiff has joined another plaintiff for the purpose of asserting a per quod claim. Law Division agreed with defendants and struck offer of judgment.

PIP and Lawsuit threshold. Schaefer v. Vannucci, No. HNT-L-154-11, 2013 N.J. Super. Unpub. LEXIS 551 (Law Div. Mar. 8, 2013). PIP case in which individual was operating a jeep owned by Jean’s Honey, Inc., plaintiff’s solely owned business and insured by Farm Family. Vehicle was registered to 360 Old York Road, Flemington, NJ where plaintiff claimed he resided with his parents, despite being married and his wife residing at a different address. Court found that he qualified as the named insured under the policy and hence was subject to the no limitations option, as opposed to the Lawsuit tort threshold in his wife’s NJM policy.

Premises Liability. Kandrac v. Marrazzo’s Mkt., 429 N.J. Super. 79 (App. Div. 2012). Plaintiff fell in multi-tenant commercial parking lot, after leaving Marrazzos, and was injured. Question was whether a commercial tenant in a multi-tenant shopping center owed a duty to its patrons to maintain an area of the parking lot that the landlord is contractually obligated to maintain. The Appellate Division found that Marrazzo’s, the commercial tenant, does not have such a duty and affirmed the summary judgment in Marrazzo’s favor.

Premises Liability. Nielsen v. Wal-Mart Store #2171, 429 N.J. Super. 251 (App. Div. 2013). Plaintiff in the Nielsen case fared better than the Kandrac plaintiff. A different appellate panel found that Wal-mart, an owner of a unit in a multi-unit commercial condominium, was found to have a duty to warn its independent contractor’s employee of a hazardous condition in an area that the owner/developer was contractually bound to repair and maintain. The court distinguished the Kandrac case by stating that Wal-mart had directed this employee to access a certain entrance where he encountered the loose sand and gravel, causing his fall. Further, Wal-mart was familiar with its unit and the surrounding perimeter. Thus, the circumstances weighed in favor of the imposition of a duty of care as to Wal-mart.

Res Ipsa Loquitor. Mayer v. Once Upon a Rose, Inc., 429 N.J. Super. 365 (App. Div. 2013). The plaintiff, a caterer, was injured when a glass vase he was carrying shattered in his hands. The vase contained a floral arrangement, which a florist working the event had carried into the room. The plaintiff sued the florist and claimed that either the florist had been gripping the vase in a dangerous manner or had not adequately inspected it for cracks. The florist obtained a directed verdict at the end of plaintiff’s case because the caterer had not retained a liability expert. However, the Appellate Division reversed, finding that the doctrine of res ipsa loquitor applied and, hence, it was not essential for plaintiff to retain a liability expert.

Summary Judgment. Alfano v. Schaud, 429 N.J. Super. 469 (App. Div. 2013). This is the latest summary judgment case and will be helpful in obtaining dismissals. The plaintiff sued the Borough of Longport and its police officer Schaud based upon the officer’s alleged violation of his civil rights arising from a traffic stop. Although the plaintiff claimed it took 40 minutes, the defendants were able to establish through objective evidence (an audiotape) that the stop was no longer than 9 minutes. Despite the purported fact dispute, the Appellate Division found that the plaintiff’s version was clearly refuted by this objective evidence. Thus, it rejected plaintiff’s version of the incident and found the traffic stop to be a temporary detention, not violative of his civil rights.

Tort Claims Act. Crystal Ice-Bridgeton, LLC v. City of Bridgeton, 428 N.J. Super. 576 (App. Div. 2012). Plaintiff sued the City of Bridgeton and its Fire Chief for ordering the demolition of its fire damaged commercial building without notice to him. The fire chief had ordered the partial demolition because the remaining walls were deemed unsafe. The Appellate Division found that the fire chief acted in good faith in conducting firefighting operations and in ordering the destruction of the property to reveal any possible hidden fires. The Court found that the city and the chief were immune under the Tort Claims Act, N.J.S.A. 59:3-3 which provides that a public employee is immune from liability of an injury “resulting from the exercise of judgment or discretion vested in him.”

Tort Claims Act. D.D. v. University of Med. & Dentistry of New Jersey, 213 N.J. 130 (2013). In a significant Tort Claims Act decision, the New Jersey Supreme Court strictly enforced the notice requirements of this statute. The Court held that the inattention of plaintiff’s counsel and the plaintiff’s medical conditions, which were neither severe nor debilitating, did not meet the requirements of “extraordinary circumstances” needed to excuse the failure to timely file a notice of tort claim under N.J.S.A. 59:8-9. Further, the Court ruled that timely oral notice of the tort claim did not constitute substantial compliance to relieve a plaintiff of the obligation of the statute’s requirement of filing a written notice.

Tort Claims Act. Turner v. Township of Irvington, No. A-5478-11T2,  2013 N.J. Super. LEXIS 58 (App. Div. Apr. 23, 2013). Both Irvington and its two 9-1-1 operators were sued because the alleged mishandling of  9-1-1 calls, which allegedly resulted in the kidnapping and injury of the plaintiff by her former boyfriend. The Appellate Division found that N.J.S.A. 52-17C-10(d) immunized 9-1-1 operators and their employers for the negligent mishandling of emergency calls. Further, the Tort Claims Act provision, N.J.S.A. 59:2-10 immunized a public entity from the willful and wanton conduct of their employees. Thus, between the two statutes, the township was found immune for both the negligent and willful and wanton misconduct of its 9-1-1 operators.

UM. Vega v. 21st Century Ins. Co., 430 N.J. Super. 18 (App. Div. 2013). Insurer’s timely letter rejecting arbitration award is sufficient to trigger its right to nullify an uninsured motorist arbitration award. Party does not have to specifically assert its “demand for trial” to nullify the award.

Wrongful Death. Estate of Mendonca v. Da Silva, No. A-3515-11T2, 2013 N.J. Super. Unpub. LEXIS 395 (App. Div. Feb. 22, 2013). Law firm appealed the reduction of its counsel fee to 25% in wrongful death case in which sole beneficiary was minor. Court found that because case was settled for only one class of beneficiary, a minor, the plaintiff’s counsel was limited to a 25% contingent fee that applies to claims for minors.