Res Ipsa Loquitur: the Thing Speaks for Itself… Unless the Thing We’re Speaking of Involves a Public Entity

By:  Jessica M. Anderson, Esq.

Res ipsa loquitur is not available in an action against a public entity grounded upon a dangerous condition of public property.  Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J. Super. 320, 339-40 (App. Div. 2000).  The Tort Claims Act requires proofs beyond those necessary for a res ipsa loquitur inference.

Similarly, the “mode of operation” rule, which permits a rebuttable inference of negligence where a business owner could reasonably anticipate that dangerous conditions would routinely arise from the customary method and manner in which he operates his business, does not apply to a public entity.  Application of that rule would not only broaden the circumstances under which a public entity could be held liable for a dangerous condition beyond those provided by N.J.S.A. 59:4-2 but would also impermissibly shift the burden of proof to the public entity.  Carroll v. New Jersey Transit, 366 N.J. Super. 380, 389-90 (App. Div. 2004).

In the recent unpublished Appellate decision, Chen v. New Jersey Transit, 2014 N.J. Super. Unpub. LEXIS 1480 (App. Div. June 20, 2014), in which this author represented Defendant, Plaintiff suffered an injury to her hand requiring internal fixation surgery when a metal object the size of a softball struck her while she was standing on the platform of the Edison train station. Two witnesses stated that the metal object either fell off or was kicked up by a passing train.  The trial court judge granted summary judgment, finding that Plaintiff could not demonstrate a prima facie case against New Jersey Transit, and failed to prove the elements necessary to establish dangerous condition liability under the New Jersey Tort Claims Act.  Plaintiff appealed, arguing that, as an invitee, Plaintiff vaulted the summary judgment threshold under the doctrine of res ipsa loquitur or the mode of operation doctrine.  The Appellate Division affirmed the trial court’s decision granting summary judgment, holding that res ipsa loquitur and the “mode of operation” rule do not apply to personal injury claims against public entities based upon the existence of an alleged dangerous condition of public property.

Capehart Scatchard Healthcare Attorney Addresses Medical Association

Capehart Scatchard Healthcare Law attorney, Sheila M. Mints recently presented a webinar entitled, “Physician Supervision of Physician Assistants and Nurse Practitioners.” The webinar was open to members of the New Jersey Medical Group Management Association.

In her presentation, Ms. Mints addressed the scope of responsibility of a physician when it comes to the use and supervision of mid-level providers.  Additionally, she spoke on recent statutory changes in New Jersey pertaining to physician’s assistants.

Ms. Mints, a resident of Riverton, Co-chairs the Healthcare Law Group. She specializes in healthcare transactional matters, including shareholder and employment agreements, purchases and sales of medical practices, including ACO transactions, and practice mergers. Ms. Mints acts as general counsel to many large practices and ambulatory care facilities, assisting with transactional, tax, human resources mattes and negotiation with payors and vendors. An experienced tax lawyer, Ms. Mints represents her clients before the Internal Revenue Service, the federal Tax Court and state taxation departments in a variety of tax matters.

Capehart Scatchard Attorneys Recognized As Top Attorneys By SJ Magazine

Thirty-four Capehart Scatchard attorneys achieved recognition by their peers as “Top Attorneys” in the current issue of SJ Magazine.   The magazine’s annual list of Southern New Jersey’s best lawyers is the result of comprehensive polling of members of the Southern New Jersey legal community.

The Capehart Scatchard Top Attorneys are:

Alternative Energy – Alan Fox

Bankruptcy – William Wright

Brownfields – Anthony Drollas, Jr.

Business – Thomas Clark, III

Class Actions – Laura Ruccolo

Closely Held Business – Yasmeen Khaleel

Commercial – Vincent Cieslik

Communication – Sanmathi “Sanu” Dev

Corporate – Charles Rizzi, Jr.

Criminal – Michelle Corea

Debt Collection – Sergio Scuteri

Divorce & Family – Amy Goldstein

Domestic Violence – Melissa Mignogna

Elder – Thomas Begley, III

Eminent Domain – John Fiorilla

Employee Benefits – Laurel Peltzman

Franchise & Distribution – Mary Ellen Rose

General – Gina Zippilli

Government – Evan Crook

Healthcare – Nikitas Moustakas

Insurance – Alyson Knipe

Intellectual Property – Samantha Vander Wielen

Labor & Employment – Ralph Smith, 3rd

Litigation – Christopher Hoare

Mediation – Bruce Harrison

Personal Injury – Stephen Alexander

Product Liability – Charles Holmgren

Public Finance – Thomas Hastie, Jr.

Real Estate – Kelly Dugan

School/Special Education – Joseph Betley

Sports – Carmen Saginario Jr.

Trial – Betsy Ramos

White Collar Crime – William Burns

Workers’ Compensation – Prudence Higbee


Capehart Scatchard Supports Kids’ Chance of New Jersey

Photo 1Photo 2

Several attorneys from Capehart Scatchard’s Workers’ Compensation Department recently attended the Fourth Annual Gala for Kids’ Chance of New Jersey.  Capehart Scatchard was a sponsor of the Gala held on July 28, 2016 at the Heldrich Hotel in New Brunswick, N.J.

The Gala was a fundraiser for Kids’ Chance, a non-profit organization, created to provide educational opportunities and scholarships for the children of workers who were fatally or catastrophically injured on the job.  John Geaney and Lora Northen, shareholders in the firm, serve as members of the Kids’ Chance Board of Directors.

The highlight of the Gala featured the presentation of scholarships to fifteen students whose parents suffered fatal or physically catastrophic injuries while working.  John Geaney presented a check for $10,000 to Will Gardner.  Gardner’s father, Bill Gardner, who worked for Fed-Ex as a truck driver, lost his life in a work- related truck accident.  Lora Northen presented a check for $10,000 to George Lockhart whose father, a podiatrist, was murdered in an attempted car robbery while leaving work one night.

Capehart Scatchard Workers’ Compensation Attorney Addresses Law Summer Institute Attendees

Capehart Scatchard workers’ compensation attorney, Richard E. Hickey, III, former Administrative Supervisory Judge of the Division of Workers’ Compensation recently spoke at a seminar on “The New Jersey Workers’ Compensation System” sponsored by the New Jersey Institute for Continuing Legal Education.

Judge Hickey spoke on the topic of “Protecting Medicare.”  In his presentation he covered how to protect Medicare’s interest and how to determine eligibility.

Judge Hickey, a Woolwich Twp. resident, received his law degree from Suffolk University School of Law and his B.S. degree in business administration from American International College.   He currently serves as an adjunct professor for Rutgers Camden School of Law.  Judge Hickey served as a Workers’ Compensation Judge from 1991 until 2009.  Prior to becoming a judge, he served as the Prosecutor for the County of Gloucester from 1986 until 1991.