The New Jersey Appellate Division Revisits the “Relation Back Doctrine”

On March 9, 2022, the New Jersey Appellate Division had occasion to address, reaffirm and further clarify New Jersey’s “Relation Back Doctrine.”  In the unpublished opinion Segal v. Recovery at the Crossroads v. Gitelis, 2022 WL 701907, the Appellate Division applied the Relation Back Doctrine to a counterclaim filed well past the applicable statute of limitations that the Court found to be germane to the timely filed Complaint.

Third-Party Defendant Michael Gitelis (hereafter “Gitelis”) was admitted to the Recovery at Crossroads facility after showing signs of violent and erratic behavior. However, on or about December 6, 2017, he signed his against medical advice (hereafter “AMA”) discharge from the facility. After becoming agitated and threatening self-harm, Gitelis left the Crossroads facility by stealing an employee’s vehicle. Local police were alerted and eventually found Gitelis walking along the side of a local road and requesting a “second chance” for treatment at Recovery at Crossroads. He was once again admitted.

Thereafter, Gitelis continued to engage in threatening behavior and demanded he be discharged a second time. As the Appellate Division noted, upon Gitelis’ second discharge:

it should have been abundantly clear that he required a police escort lest he pose a danger to himself and/or others. No police nor law enforcement were contacted[,] despite Mr. Gitelis … displaying threatening behavior towards other people, and a lawful duty to do so was required by the New Jersey Duty to Warn Law, and/or be involuntarily committed as required by law.

Gitelis would go on to steal yet another vehicle and “went on a rampaging crime spree, during which he attacked and seriously injured [Plaintiff Segal] in an attempt to rob her on December 7, 2017, while in Brooklyn, New York.” Plaintiff was reportedly seriously and permanently injured as a result of the attack by Gitelis.

Plaintiff, Eileen Segal, filed her Complaint stemming from these December 7, 2017 events on December 3, 2019, only four days before the expiration of the Statute of Limitations on her claims. The Complaint named Recovery at the Crossroads, Behavioral Crossroads Recovery, LLC, Behavioral Crossroads, LLC and Deena Lefkovits (hereafter “Crossroads Defendants”) as Defendants, but omitted naming Gitelis among the Defendants. Instead, Plaintiff merely alleged that Gitelis was admitted as a patient at the Crossroads facility on or about December 4, 2017 until he was discharged pursuant to signing his AMA for a second time on December 7, 2017.

On April 24, 2020, the Crossroads Defendants were granted leave to file a Third-Party Complaint against Gitelis, which was filed on May 1, 2020. After the Court dismissed the Third-Party complaint for lack of prosecution, the Court signed a Consent Order on March 19, 2021, reinstating the Third-Party Complaint and permitting Gitelis to file an Answer.

On April 1, 2021, Gitelis filed his Answer to the Third-Party Complaint, setting forth eleven separate defenses and a counterclaim against the Crossroads Defendants. The allegations in the counterclaim “closely mirrored the allegations set forth in Plaintiff’s complaint, alleging that the [Crossroads Defendants] failed to screen Gitelis for mental illness and involuntary commitment, resulting in his discharge at a time when he was a danger to himself and to others.” Gitelis also alleged that the Crossroad Defendants “violated the standard of care for facilities … trained to evaluate and treat mental health issues as well as substance abuse issues” and as a result, the Crossroad defendants “caused injury to [Gitelis] and others.”

After the Crossroads Defendants filed their Answer to Gitelis’ counterclaim, they promptly filed a Motion for Summary Judgment, asserting that the counterclaim was barred by the statute of limitations. Gitelis opposed the motion, asserting that his counterclaim was timely in the context of the litigation pursuant to the “relation back” principles set forth in New Jersey Court Rule 4:9-3.

The Trial Court denied the Motion for Summary Judgment and listed several factors leading to its decision. Among its reasons for denying the Motion, the Court noted:

(1) plaintiff’s original complaint was timely filed; (2) plaintiff’s complaint alleged that the Crossroad defendants failed to screen Gitelis for mental illness and involuntary commitment, leading to his discharge and the subsequent injury of plaintiff; (3) the counterclaim pled by Gitelis ‘relates back [to] the claims of the original complaint as both arise from the same conduct and occurrences’; and (4) because the counterclaim ‘relates back’ to the date of plaintiff’s complaint, it is not barred by the statute of limitations.

The Trial Court also found that genuine issues of material fact existed regarding Gitelis’ counterclaim and that a rational fact finder could resolve this matter in his favor. The Crossroads Defendants were then granted leave to file an interlocutory appeal.

On appeal, the Crossroads Defendants argued that the Trial Judge erred in denying their Motion for Summary Judgment, asserting that the “Relation Back Doctrine” did not apply because Gitelis’ counterclaim was affirmative in nature, and therefore was not a “germane” counterclaim. As such, Crossroads Defendants concluded that the two year Statute of Limitations bars Gitelis’ counterclaim. The Appellate Division disagreed, indicating that:

Rule 4:7-1 provides that, ‘a pleading may state as a counterclaim any claim against the opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.’

Comments to Rule 4:7-1 provide support for the motion judge’s decision by stating:

Although this rule does not expressly so state, ordinarily a germane counterclaim will not be barred by the statute of limitations if the complaint itself is timely. A germane counterclaim is conceptually akin to an amended pleading that states a claim or defense arising out of the same conduct, transaction, or occurrence as the original claim, and R. 4:9-3 expressly provides for relation back in that situation. The only difference is the identity of the party raising the germane claim, and it would seem to make little functional difference whether a party amends his own pleading to add a germane claim or if the adverse party responds with a germane claim. The policy of the statute of limitations is no more offended in one case than the other.

See Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:7- 1 (2022).

Thus, the Appellate Division held that for a germane counterclaim to “relate back” to the filing of the original Complaint, “the following conditions must be met: (1) the original complaint must have been timely filed; and (2) the counterclaim must ‘arise out of the same conduct, transaction, or occurrence as the original claim.’” See also R. 4:7-1, at cmt. 4; R. 4:9-3.

The Appellate Division explained that in Molnar v. Hedden, 260 N.J. Super. 133 (App. Div. 1992), rev’d on other grounds, Molnar v. Hedden, 138 N.J. 96 (1994), in an opinion by Judge Pressler, the filing of a germane counterclaim is permitted after the expiration of the statute of limitations under the “relation-back” doctrine.  Id. at 140. Judge Pressler opined that:

the ‘relation back’ doctrine could permit the filing of a counterclaim after the expiration of the statute of limitations:

Application of our well-settled and liberal jurisprudence dictates that a counterclaim arising out of the same transaction as pleaded by the complaint and therefore meeting the test of R. 4:9-3 – that is to say, a litigation component embraced by the entire controversy doctrine – is eligible for the relation back principle of the rule and consequently for protection from the limitations bar.

However, after the Supreme Court reversed Molnar on other grounds, this left in question whether a germane counterclaim “relates back” to the original complaint when that counterclaim was filed outside the applicable limitations period. Molnar, 138 N.J. at 105. The Supreme Court in Molnar specified that “Because we find nothing to which defendant’s amendment can relate back, we save such a determination for a case that provides the proper factual support.”

Therefore, the Appellate Division in Segal was satisfied that this case provided the proper factual support found lacking by the Supreme Court in Molnar. Plaintiff’s timely-filed Complaint remained pending when Gitelis filed his first responsive pleading asserting his counterclaim. Gitelis’ counterclaim was clearly “germane” to the claims set forth in Plaintiff’s Complaint, where she asserted causes of action arising out of “the failure of the Crossroads Defendants to respond appropriately to the dangerous and threatening behavior exhibited by Gitelis during his two stays at their facility, including the failure to notify the police after Gitelis’ second departure from their facility.”

Satisfied that it could now affirm the New Jersey Supreme Court’s reasoning in Molnar with the proper factual background in place, the Appellate Division found that Gitelis’ counterclaim was germane to Plaintiff’s Complaint and applied the relation back doctrine accordingly. Thus, this unpublished opinion will be useful precedent in articulating the factors which a party must establish in order to invoke the “Relation Back Doctrine.”


Recent Appellate Division Opinion Regarding Strict Liability

The Appellate Division on June 8, 2020 rendered an interesting as yet unpublished Opinion related to strict liability and exceptions thereto.  The matter is Goldhagen v. Pasmowitz, No. A-3430-18T4, 2020 WL 3041414 (App. Div. June 8, 2020).

Plaintiff Bonay Goldhagen appealed an Order granting Defendant Susan Pasmowitz’s Motion for Summary Judgment and denying her Cross-Motion for Summary Judgment on liability. The Appellate Division affirmed.

Factually, in July of 2015, Defendant Pasmowitz boarded “Louie,” an approximately 120-pound Rottweiler mix, and a second, smaller dog at a “dog hotel.”  Plaintiff was employed as a dog groomer and kennel assistant at the dog hotel. Significantly, Plaintiff had twenty (20) years of experience in the business, and was therefore indisputably aware that dogs can and do bite.

Further, Defendant specifically informed Plaintiff that Louie had previously bitten her own son. Indeed, Defendant alleged that when she advised Plaintiff that Louie was a very strong dog, and thus Plaintiff should “trust” him, as the dog was going to “throw his weight around,” Plaintiff dismissively responded that she knew how to handle dogs.

Defendant also noted on the kennel’s intake form that Louie must “eat separately from (her other dog)” and also must be “muzzle[d] for nail clippings.”

However, Defendant did not advise Plaintiff that Louie had bitten Defendant herself on the face, requiring Defendant to receive about thirty stitches, four (4) years earlier when Defendant removed a tick from his ear.  Plaintiff would rely heavily on this omission.

Thereafter, on the very first day of the dogs’ boarding, Plaintiff was feeding the two dogs together when she was bitten by Louie.

Plaintiff filed suit, and upon completion of discovery, Defendant moved for Summary Judgment and Plaintiff crossed-moved for Partial Summary Judgment on liability.

The Law Division Judge entered an Order and oral decision granting Defendant Summary Judgment and denying Plaintiff’s Cross-Motion.

The Judge relied primarily on Reynolds v. Lancaster Cty. Prison, 325 N.J. Super. 298, 323-44 (App. Div. 1999) where the Appellate Division had limited the absolute liability of dog owners under N.J.S.A. 4:19-16, by holding that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner for a dog bite unless the dog owner “purposefully or negligently conceal[ed] a particular known hazard from the” independent contractor.

The Law Division Judge noted that while Defendant did not tell Plaintiff of the severe bite that she herself had sustained from her dog, this was far outweighed by the fact that Plaintiff was an experienced dog handler, and as such knew dogs sometimes bite; that Plaintiff knew the specific dog had previously bitten a child and needed muzzling for nail clipping; and that Plaintiff had seen co-workers previously bitten by dogs.

Thus, the Judge found that this was insufficient to create a genuine issue of material fact to defeat Defendant’s Motion. Rather, the Court found that Plaintiff had possessed adequate information provided by the Defendant regarding Louie’s specific history.

Notably, the Judge found that “the quality or consequences … of the dog bite” was not relevant or a material inquiry in this instance to defeat the Summary Judgment Motion.

The Judge held that as Plaintiff was a long-time professional in this industry, she should have taken necessary precautionary measures to safely address the needs of a dog, as well as her own.

Plaintiff appealed, arguing any assumption of risk and comparative negligence did not apply under N.J.S.A. 4:19-16 and she was entitled to Partial Summary Judgment on liability under the statute.

N.J.S.A. 4:19-16 states, in relevant part:

“The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.”

To recover under [the statute], a Plaintiff must prove that the Defendant owned the dog, that the dog bit the Plaintiff, and that the Plaintiff was in a public place or lawfully on the owner’s property.” DeRobertis v. Randazzo, 94 N.J. 144, 158 (1983). “Satisfaction of the elements of the statute imposes strict liability … for damages sustained by [the] Plaintiff.” Pingaro v. Rossi, 322 N.J. Super. 494, 503 (App. Div. 1999).

However, in Reynolds, recognizing an exception to the imposition of strict liability, the Appellate Division held that:

“[w]hen a dog owner turns his dog over to an independent contractor who has agreed to care for the dog, the owner is not liable under the dog-bite statute when the dog bites the independent contractor unless the owner knew, or had reason to know, the dog was vicious and withheld that information. Similarly, under the doctrine of primary assumption of the risk, as described in Emmons v. Stevane, 77 N.J.L. 570, 573-74 (E. & A. 1908)], it would appear that an owner would not be liable under the statute to an independent contractor who undertakes the care of a domestic animal with knowledge that it is particularly dangerous.

325 N.J. Super. at 324.

The Appellate Division held that the principles articulated in Reynolds applied to this case.  The Plaintiff in Reynolds had worked for a guard dog company as a dog handler and he was seriously injured when one of the company’s dogs attacked him. Id. at 306. Of course, in general, a landowner has the duty to “use reasonable care to protect independent contractors [from] ‘known or reasonably discoverable dangers.’” Id. at 321-22.  The Court was persuaded by case law from other states regarding veterinarians, and held that “a veterinarian has all of the characteristics of an independent contractor” and “the owner [of a dog] is not liable under the dog-bite statute when the dog bites the independent contractor unless the owner knew, or had reason to know, the dog was vicious and withheld that information.” Id. at 324.

Accordingly, the Appellate Division held that like the dog handler in Reynolds, Plaintiff was an independent contractor who “agree[d] to care for a dog.” Ibid. She was “aware of the risk that any dog, regardless of its previous nature, might bite while being” cared for. Ibid. And as the Motion Judge determined, even though Defendant did not tell Plaintiff that Louie had bitten her, there was no dispute that Plaintiff was made aware of several crucial facts, including Louie’s aggressive nature; that he had bitten Defendant’s son; that he had to be muzzled during nail clippings; and that he should not be fed with Otis – “the latter being the precise situation when Plaintiff was bitten.”

Accordingly, the Appellate Division concluded that, based on the evidence presented, a reasonable factfinder could only reach one conclusion: that Plaintiff had sufficient warning that Louie might bite her while she was caring for him. Thus, as there was no genuine issue of material fact, as a matter of law, Defendant was entitled to Summary Judgment.

While the fact pattern of this matter is of course extreme, this opinion is an important reminder that there can be exceptions even in situations where the general rule is that of strict liability.  Similarly, the arguments in this matter as to dog groomers and veterinarians could easily be analogized to any number of other backgrounds with which a given Plaintiff may present.  Therefore, consideration should be given to an analysis of exactly what knowledge a given Plaintiff possessed, along with any information provided to that Plaintiff by the Defendant, before assuming that strict liability applies.


Recent Appellate Division Opinion Regarding Spoliation Claim

The Appellate Division on November 27, 2019 rendered an unpublished Opinion on the issue of alleged spoliation of evidence.  The matter is Promise v. Khubani Enterprises, Inc., 2019 WL 6353644 (App. Div. Nov. 27, 2019).

In July of 2014, Plaintiff Betty Promise was reportedly seated in a chair in the basement of the laundry room of her apartment building for approximately 30 minutes before a leg on the chair gave way. The building was owned by Defendant Khubani and the chairs in the laundry room were installed and maintained by Defendant Mac Gray Services.

The chair in question was part of a set of chairs that were connected to each other.  Plaintiff had reportedly been seated on an end chair.  She alleged that the leg of the chair “collapsed,” causing Plaintiff to become caught between the chair upon which she had been sitting and the chair connected to it, on her right, before she fell all the way to the floor. Plaintiff was reportedly alone in the laundry room at the time of this incident, and could not free herself, so she called out for help. Two employees of Defendant Khubani came to Plaintiff’s aid.  One of those employees, named Osuva, was responsible for maintenance work in the building.

Plaintiff claimed injuries to her shoulder, arm, neck, back and knees.

Members of Plaintiff’s family reportedly took photographs of the chair shortly after the incident and gave those photographs to Plaintiff’s attorney. Thereafter, on August 6, 2014, Plaintiff’s counsel wrote to Defendant Khubani advising of his representation and requesting that Khubani “kindly preserve the chair in question as it is evidence in this case.”

Thereafter, on September 16, 2014, while the chair was still in the possession of Khubani, an individual who identified himself as an attorney for Defendant Khubani reportedly photographed the chair.

Mr. Osuva reportedly stated he did not remember seeing the chair after the photographs were taken in September 2014, and said that he did not know to where the chair had been moved.

At some point in 2016, the laundry room chairs were replaced with new ones by Defendant Mac Gray.  Thereafter, the parties realized that the chair was missing, though Defendant Khubani acknowledged that the chair went missing while in its possession.

Plaintiff originally filed a Complaint against Defendant Khubani and the manufacturer of the chair, Caco Manufacturing Corp., and subsequently filed an Amended Complaint including Defendant Mac Gray.

At his subsequent deposition, Mr. Osuva confirmed that a photograph presented to him depicted the chair upon which she found Plaintiff, acknowledging that the left leg of the chair was “a little bent.” He identified another Khubani employee named Sean as an individual who cleaned the chairs and table in the laundry room every morning.  Mr. Osuva said that he had never noticed any problems with the chair, and the Plaintiff had apparently not noticed any, either, while she had been seated on the chair.  Plaintiff said she had never sat in the chairs before herself, but had seen other people sitting in them.

While the Appellate Division stated it was not clear from the record if or when Plaintiff attempted to examine the chair or have an expert do so, Caco, Khubani and Mac Gray all moved for Summary Judgment.  Plaintiff opposed Khubani’s Motion on the grounds that the chair was “destroyed or otherwise disposed of” by Khubani, which required an adverse inference due to spoliation, requiring the same to be left to the jury.

The Trial Judge granted Summary Judgment to Khubani and Mac Gray, finding that while Plaintiff presented a sufficient argument for spoliation, the destruction of the chair was only relevant to a product liability claim on the part of the manufacturer, and neither Khubani or Mac Gray were the designer or manufacturer of the chair.  As such, Plaintiff was required to provide evidence that either Khubani or Mac Gray knew or constructively knew or should have known that the chair was defective. The Court found that Plaintiff produced no such evidence.

Plaintiff thereafter appealed only as to Defendant Khubani, arguing that the spoliation of the chair that allegedly caused the injury raises an inference sufficient to preclude Summary Judgment.  The Appellate Division disagreed and accordingly affirmed.

The Appellate Division noted that there are different remedies for spoliation of evidence which are dependent in part on the timing of the discovery of the spoliation. Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203 N.J. 252, 273-74 (2010). When the alleged spoliation is discovered in time for the underlying litigation, remedies include a “spoliation inference,” which “allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.” Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001)

Further, a Plaintiff may be permitted to file an Amended Complaint to add a fraudulent concealment Count. If added, bifurcation is required because the fraudulent concealment remedy depends on the jury’s assessment of the underlying cause of action. In that instance, after the jury has returned a verdict in the bifurcated underlying action, the jury is then required to determine whether the elements of the tort of fraudulent concealment have been established, and, if so, whether damages are warranted.

Conversely, in circumstances where the spoliation is not discovered in time for the underlying action, Plaintiff may file a separate tort action where he or she is required to establish the elements of fraudulent concealment, and “[t]o do so, the fundamentals of the underlying litigation will also require exposition.” Id. at 408. Specifically, to make a claim of fraudulent concealment, a plaintiff must show:  (1) [t]hat the Defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation; (2) [t]hat the evidence was material to the litigation; (3) [t]hat plaintiff could not reasonably have obtained access to the evidence from another source; (4) [t]hat defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; [and] (5) [t]hat plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.  Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 118 (2008) (citing Rosenblit, 197 N.J. at 406-07).

In Promise, the alleged spoliation of the missing chair was discovered during the underlying litigation. But, because Plaintiff only appealed the Summary Judgment Order as to Khubani, the property owner, any adverse inference about the chair had to be considered in the context of a premises liability/negligence claim.

In a negligence claim, “the landlord of a multiple-family dwelling is subject to the same basic duty as an owner or occupant of commercial property. …” Drazin, N.J. Premises Liability, § 5:2-2 (2019) (citations omitted). An owner of a business property has a duty of care to “discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.” Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982)). If a Plaintiff cannot show that an owner of a business property had actual or constructive notice of a dangerous condition, “[t]he absence of such notice is fatal to Plaintiff’s claims of premises liability.” Ibid. (citations omitted).

Accordingly, in this matter the Appellate Division held that the record revealed no evidence Khubani had actual or constructive notice of a defective chair in the laundry room. Rather, to the contrary, there was evidence that the chairs were cleaned every morning by a Khubani employee, and nothing in the record indicated the employee ever noticed a problem with the chairs or reported a problem with the chairs to Khubani. Further, Plaintiff herself had seen others sitting in the chairs with no issues, and did not notice anything out of the ordinary during the thirty minutes she sat in the chairs.

Therefore, the Court held that any factual dispute that could arise out of any possible adverse inferences regarding the chair, when considered in the light most favorable to Plaintiff, still could not alter the conclusion that Plaintiff did not demonstrate Khubani had actual or constructive notice of a prior problem with the chair. Therefore, Summary Judgment was appropriate as a matter of law.

Thus, this Opinion is an instructive reminder from the Appellate Division on the applicability of the various aspects of a potential spoliation claim, and what a Plaintiff is required to prove in order to pursue the same.


Recent Appellate Division Opinion Regarding Guidance on Admissibility of Evidence at Trial and Trial Tactics

The Appellate Division on September 12, 2019 rendered an unpublished Opinion on several trial-related issues.  The matter is Gomez v. Fritsche, 2019 WL 4313116.

This matter arose from a motor vehicle accident.  The jury found Defendant 100% negligent for causing an intersectional accident, and awarded Plaintiff the sum of $115,000.00.  Defendant appealed the denial of her Motion for a New Trial, arguing that the cumulative prejudice from several errors – specifically, the Trial Court barring evidence that Plaintiff had previously sustained permanent injuries; allowing the investigating police officer to opine as to fault for the accident; barring defense counsel from objecting during Plaintiff’s counsel’s closing; and Plaintiff’s counsel’s improper remarks during summation, deprived Defendant of a fair trial.  The Appellate Division agreed, in part, vacated the verdict, and remanded for a new trial.

As to the issue of evidence of Plaintiff’s previous permanent injuries, there was evidence that Plaintiff had been involved in prior motor vehicle accidents in 1994 and 2000.  A doctor had written in a report that Plaintiff suffered permanent injuries to her neck and back which would result in ongoing pain and limitation regarding both body parts.  The Trial Court granted a Motion in limine filed by Plaintiff to preclude defense counsel from raising the same, finding that the probative value of this evidence was outweighed by the risk of undue prejudice.  The Trial Court indicated that defense counsel would not be allowed to utilize this evidence even if Plaintiff testified that she never had any prior problems with her neck or back.

As to the issue of the police officer, the officer was allowed to read his conclusion in the police report to the effect that Defendant failed to yield to Plaintiff and was inattentive in not ensuring that the roadway was clear prior to entering the same.

During summation, Plaintiff’s counsel referenced the fact that while Defendant had testified, the Defendant thereafter left and was not present in Court during the closing.  Defense counsel objected, but the Trial Judge advised that “I should’ve mentioned this earlier, there’s no objections in closing argument.  Now that you’ve done it, I suggest it’s… closing argument.  He’s entitled to argue and if he wants to put that inference out there and draw an inference it’s fair game.  I don’t know why she’s here, she’s not here, but you know, I don’t understand the objection and it’s overruled.”

Thereafter, defense counsel apparently heeded the Trial Judge’s admonition not to object during Plaintiff’s closing statement, even when Plaintiff’s counsel then specifically invited the jurors to place themselves in Plaintiff’s situation.

The Appellate Division began by noting that as a general matter, trial courts have considerable discretion in determining whether evidence is relevant, and, if so, whether it should be excluded under N.J.R.E. 403 due to the fact that the probative value of the evidence is substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury.  Wymbs v. Twp of Wayne, 163 N.J. 523, 537 (2000).

In this regard, the Appellate Division observed that the prior reports were as a threshold matter hearsay, inadmissible except as provided in N.J.R.E. 802.  Pursuant to Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985), expert reports are not statements of a party and therefore cannot be treated as an admission simply because they have been furnished in discovery by that party.

The Appellate Division noted that the defense did not intend to call as a witness the doctor who wrote the old report. Accordingly, it held that given the foregoing, the Trial Court acted within its broad discretion in prohibiting Defendant from utilizing the same.

However, regarding the Trial Court’s ruling permitting the police officer to render his opinion regarding the fault for the accident, the Appellate Division found otherwise.

While police reports are admissible as a business record and as a public record, if properly authenticated, if a proponent seeks to admit the report or an officer’s trial testimony regarding the same to prove the truth of something contained therein, a separate hearsay exception is required.

Significantly, New Jersey courts have prohibited the admission of police testimony as to the issue of fault.  Indeed, for a party to present a police officer as an expert, that officer must be properly qualified as an expert pursuant to N.J.R.E. 702.

Generally, police officers can present lay opinion testimony, but the same “is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.” State v. McLean, 205 N.J. 438, 460 (2011).  Thus, an officer is not permitted to provide opinion testimony at trial when that opinion is based primarily on the statements of others.  Neno v. Clinton, 167 N.J. 573, 585 (2001).

While Plaintiff argued that the officer never use the word “fault,” the Appellate Division indicated that the testimony as a whole made clear that in the opinion of the officer the Defendant was at fault at the time of the accident.

Indeed, Plaintiff’s counsel then “compounded the error” by emphasizing the same during his closing, telling the jury that the Defendant did not want to jurors to hear the police officer’s testimony.

Finally, turning to the issues regarding Plaintiff’s counsel’s closing argument, the Appellate Division cited State v. Farrell, 61 N.J. 99, 106 (1972) and State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997) for the proposition that challenging an adversary’s improper closing remarks after the closing, rather than during it, fails to timely alert the Court to the irregularities and provide the court with an opportunity to address and cure the same.

To the contrary, a party is precluded from claiming that it was harmed absent timely objection during the closing argument.  Farrell, 61 N.J. at 106.

Accordingly, the Appellate Division held that Trial Judges should not admonish counsel against making “appropriate” contemporaneous objections, expressing confidence that the bench can in appropriate circumstances promptly deal with any abusive conduct arising from the ability to object during an adversary’s closing.

Finally, the Appellate Division turned to consideration of specific remarks made by Plaintiff’s counsel during summation.  First, that regarding the Defendant not returning to the courtroom after testifying because Defendant – unlike Plaintiff – did not want to “see the case through.”  Second, the invitation for the jurors to place themselves in Plaintiff’s situation as to why jurors would or would not choose to undergo an epidural injection.  And third, the suggestion that defense counsel did not want the jury to hear the police officer’s conclusion about the accident.

Counsel are generally allowed significant latitude in closing arguments.  Bender v. Adelson, 187 N.J. 411, 431 (2006).  However, arguments may not include unfair and prejudicial appeals to emotion.  Jackowitz v. Lang, 408 N.J. Super. 495, 504-505 (App. Div. 2009).  Further, closing arguments must be based in truth and “counsel may not misstate the evidence nor distort the factual picture.”  Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 534 (Law Div. 1996).  Indeed, in Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004), the Court made clear that counsel may not disparage opposing counsel, or a witness, or suggest an intent to deceive the jury or deliberately distort the evidence.

Indeed, Botta v. Brunner, 26 N.J. 82, 94 (1958) even describes the prohibition against asking jurors what they would expect to receive if they were in a similar position to Plaintiff as the “Golden Rule.”

Accordingly, the Appellate Division found that while these issues may have been capable of being cured had a timely objection been made, since the Trial Judge had banned objections, this was impossible.

Significantly, the Appellate Division noted that the cumulative effect of small errors may collectively be so great as to warrant a new trial.  Pellicer ex rel Pellicer v. St. Barnabas Hospital, 200 N.J. 22, 53 (2009).  With the possible exception of the police officer’s improper opinion testimony, none of the issues addressed above would have warranted a new trial on their own. However, cumulatively, they did.  Accordingly, the Order of Judgment was vacated and the matter remanded for a new trial.

Thus, this Opinion is an instructive reminder from the Appellate Division on several key issues, including when evidence of prior injuries may be admissible, and how; the limits to which a police officer will generally be permitted to testify; and the proper process to be followed by both parties during closing arguments at trial.


Important Appellate Division Reported Opinion Regarding Disclosure of Investigatory Materials Under The Work Product Doctrine

The Appellate Division on June 6, 2019 rendered a reported Opinion on the issue of when disclosure of materials prepared or collected prior to the institution of litigation is required.  The matter is Paladino v. Auletto Enterprises, Inc. t/a Auletto Caterers, 2019 WL 2375475.

On October 9, 2015, Plaintiff was a guest at a wedding reception held at Defendant’s catering facility when she fell and injured her left knee, lower back, and right ankle while walking down a staircase.  She immediately reported the accident to Defendant, such that Defendant prepared an accident report that same day, and shortly thereafter gave notice to its insurance company. The insurance company promptly retained an investigator.

Two weeks after the accident, on October 22, 2015, a senior claims examiner spoke with Plaintiff, and sent Plaintiff a letter advising that an investigator was looking into the accident. The investigator was instructed to photograph the accident scene and obtain statements from both Plaintiff and representatives of Defendant.

The claims examiner later certified that the intent in retaining the investigator was to “prepare a defense for [Defendant] in the event that [Plaintiff] filed a lawsuit,” and further certified that as the insurer was not disputing coverage, it did not hire the investigator to look into coverage issues.

The investigator arranged to meet with and take a recorded statement from Plaintiff on October 26, 2015. However, on the appointment date, the investigator was contacted by an attorney who advised that he had been retained by Plaintiff, such that the appointment was canceled. The next day, Plaintiff’s recently retained counsel sent a letter of representation to the insurance carrier.

Therefore, on October 26, 2015, the investigator inspected Defendant’s catering facility.  In the process, the investigator took photographs of the scene and prepared a diagram of the area.  The investigator also obtained recorded oral statements from two of Defendant’s employees, and approximately one week later also obtained a recorded oral statement from a third employee.

On December 3, 2015, Plaintiff’s counsel and a photographer visited Defendant’s premises for a documentary inspection. Thereafter, in January 2016, Defendant’s insurance carrier provided Plaintiff’s counsel with a copy of video surveillance that had actually captured Plaintiff falling on the staircase, as well as a copy of the incident report.

Plaintiff and her husband subsequently filed suit and Defendant filed an Answer.  Thereafter, in Answers to Interrogatories, Defendant disclosed that the investigator had taken photographs of the staircase, had prepared a diagram, and had obtained recorded statements from three of Defendant’s employees, none of whom witnessed Plaintiff’s fall. Significantly, asserting that they were protected by the work-product privilege, Defendant did not produce the photographs, diagram, or statements,

Plaintiff filed a Motion to Compel the production of the photographs and the recorded statements by Defendant’s employees, having withdrawn a prior request for the diagram prepared by the investigator,

Without hearing oral argument, the Trial Court granted Plaintiff’s Motion, relying on Pfender v. Torres, 336 N.J. Super. 379 (App. Div. 2001), on the grounds that because the photographs and statements were obtained by the insurance carrier before litigation, the carrier “may have” had interests apart from protecting its insured’s rights.  Defendant sought leave to appeal the Order compelling the production. The Appellate Division initially denied leave, but the Supreme Court granted leave to appeal and remanded the same to the Appellate Division “to consider [it] on the merits.”

In the appeal, Defendant made two arguments. First, it contended that the Court should reject the rationale of Pfender and, instead, adopt the reasoning set forth in Medford v. Duggan, 323 N.J. Super. 127 (App. Div. 1999). Second, Defendant- applying the standard set forth in Medford– urged that the Appellate Division should reverse because Plaintiff did not satisfy the requirements of Rule 4:10-2(c).

 The Court began by noting that the Work Product Doctrine and Rule 4:10-2(c) should be understood as exceptions to New Jersey’s general policy of “encouraging full and open discovery of all relevant information.” 2019 WL 2375475 at Page 2.  In most situations, parties to litigation have the right to discovery of all relevant information concerning the action. See Rule 4:10-2(a).

One of the recognized privileges that is an exception to that general policy is the Work Product Doctrine. See O’Boyle v. Borough of Longport, 218 N.J. 168, 188 (2014). That doctrine was first recognized by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947).

 The Work Product Doctrine is set forth in Rule 4:10-2(c), which states:

“[A] party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable under R[ule] 4:10-2(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis added.)

Defendant argued that a conflict exists in precedent concerning the scope of the Work Product Doctrine as discussed in Pfender compared to Medford. Defendant argued that Pfender essentially established a “bright line rule” that material obtained by an insurer before litigation is not protected by the Work Product Doctrine. Defendant urged that Medford established a “case-by-case test,” whereby material prepared by or for an insurer can be protected under the Work Product Doctrine if it was prepared in anticipation of litigation and the party seeking the same cannot establish a substantial need for it.

While the Appellate Division indicated that it did not find Pfender and Medford to be irreconcilable, as Defendant asserted, it did indicate that “the rationale and holding of Pfender needs to be clarified and properly understood as consistent with a case-by-case analysis.”  2019 WL 2375475 at Page 4.

 The Appellate Division thus stated that:

“[W]e clarify that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, as set forth in Rule 4:10-2(c), there is a multi-part, fact-specific test. The first inquiry is whether the materials were prepared or collected in anticipation of litigation or trial by another party or that party’s representative. See R. 4:10-2(c). The representative can be an ‘insurer or agent’ of the party. Ibid. If the materials were prepared in anticipation of litigation or trial, to obtain the materials, there is a two-part standard that must then be satisfied. See ibid. The party seeking the materials must (1) show a substantial need for the discovery; and (2) demonstrate that he or she is unable, without undue hardship, to obtain the substantial equivalent of the materials. Ibid. See also Carbis Sales, Inc., 397 N.J. Super. at 82, 935 A.2d 1236 (first citing Medford, 323 N.J. Super. at 133, 732 A.2d 533; then citing Pfender, 336 N.J. Super. at 391, 765 A.2d 208). Moreover, if such work-product materials are compelled to be produced, “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” R. 4:10-2(c). 2019 WL 2375475 at Page 5.

Significantly, the Court also noted that:

“The scope of the work-product doctrine has other limitations. It has long been established that the doctrine only protects documents or prepared materials; accordingly, it does not protect facts. See Hickman, 329 U.S. at 513, 67 S.Ct. 385; R. 4:10-2(c); O’Boyle, 218 N.J. at 188-89, 94 A.3d 299. Moreover, in considering statements, the doctrine does not protect statements that are prepared in the normal course of business. See Miller v. J.B. Hunt Transp., Inc., 339 N.J. Super. 144, 148, 770 A.2d 1288 (App. Div. 2001) (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 554, 691 A.2d 321 (1997)). Finally, we have previously clarified that the protection of a statement will usually be lost if the person who gave the statement is later called to testify at trial. See Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 100, 599 A.2d 528 (App. Div. 1991). In Dinter, we held that ‘where a fact witness testifies for an adverse party, the factual statement of that witness must be produced on demand for use in cross-examination as a potential tool for impeachment of credibility.’” 2019 WL 2375475 at Page 5.

Accordingly, the Appellate Division in this matter reversed the Order compelling Defendant to produce the photographs and recorded witness statements, and remanded with a specific instruction to the Trial Court to conduct further proceedings and apply a “case-by-case, fact-specific analysis” to determine whether the photographs and witness statements are within the ambit of the Work Product Doctrine.

Thus, this Opinion is a very helpful elaboration by the Appellate Division on exactly under what circumstances materials secured by an insurance company prior to litigation are subject to disclosure. The specific facts of a given case will accordingly determine whether disclosure is required.


Appellate Division Revisits Contract and Insurance Policy Interpretation

The Appellate Division on January 22, 2019 decided an interesting case regarding insurance coverage which has been approved for publication. The matter is Katchen v. GEICO et al., No. A-5685-16T4, 2019 WL 272926 (App. Div. Jan. 22, 2019).

In December 2015, Plaintiff Katchen was injured in a motor vehicle accident. Significantly, at the time of the accident, he was operating a Harley-Davidson motorcycle which he owned. Before settling with the other driver or that driver’s $25,000 policy limit, Katchen submitted a UIM claim under three separate insurance policies he maintained:

1. A motorcycle policy issued by Rider Insurance Company;
2. A commercial automobile policy issued by Farmers Insurance Company of Flemington; and
3. A personal auto policy issued by GEICO.

GEICO “disclaim[ed] coverage” pursuant to an exclusion in Section IV of its policy, which addresses both uninsured motorist, or “UM,” and underinsured motorist, “UIM,” coverages.  That provision stated:


We will pay damages for bodily injury and property damage caused by an accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle arising out of the ownership, maintenance[,] or use of that vehicle.”

However, Section IV also contained an exclusion of coverage for “bodily injury sustained by an insured while occupying a motor vehicle owned by an insured and not described in the declarations and not covered by the Bodily Injury and Property Damage liability coverages of this policy.”

Because while the motorcycle was owned by Plaintiff Katchen, it was not listed on the policy issued and GEICO determined that it did not constitute an “owned auto,” which the policy defined as a “vehicle described in this policy for which a premium charges shown for these coverages.”  As a result, GEICO denied the claim.

Plaintiff Katchen then filed a declaratory judgment action naming the three carriers, seeking a declaratory judgment that the UIM coverage of all three carriers applied to the subject accident. GEICO responded by filing a motion urging the court to find its “owned motor vehicle exclusion” to be “valid, unambiguous and enforceable.” The Motion Court denied that motion, finding that the language of GEICO’s policy was ambiguous.

The parties subsequently came to an agreement that Rider and Farmers would pay their respective pro rata share of the total of $975,000.00 in UIM coverage owed to Plaintiff Katchen, and GEICO would pursue this appeal. If GEICO did not prevail, it would pay its pro rata share as well. Plaintiff, Rider and Farmers all opposed GEICO’s appeal.

Accordingly, the Appellate Division indicated that “in this appeal, we consider whether an auto insurance form may combine uninsured (UM) and underinsured motorist (UIM) coverage in a single section and include exclusions not listed on the policy’s declaration page. We also consider if an insurer may exclude UIM coverage for an accident involving a vehicle owned by the insured but not covered under the subject policy.”

The Appellate Division accordingly held that “Because we find the exclusion does not violate public policy or result in ambiguity, we reverse.”

On appeal, contract interpretation is de novo.  Manalapan Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995).  When an insurance contract terms are clear and unambiguous, the Court interprets the policy as written, using the “plain, ordinary meaning” of the words used.  Zacarias v. Allstate Insurance Co., 168 N.J. 590, 595 (2001).  But where an ambiguity arises, the policy is interpreted in favor of the insured and against the insurer. President v. Jenkins, 180 N.J. 550, 562-63 (2004).

An ambiguity exists when “the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage.”  Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979).

Insurance policies are to be interpreted narrowly, but the provisions within are presumed valid and effective if “specific, plain, clear, prominent and not contrary to public policy.”  Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997).

The Respondents argued that GEICO’s policy, which addressed both UM and UIM coverage in the same section, violated various statutory mandates. GEICO responded that the exclusion unambiguously bars UIM coverage for loss sustained by Plaintiff while operating a motor vehicle he owned but did not insure under GEICO’s policy.

The Appellate Division agreed with GEICO, finding that the policy was not ambiguous.  For example, the Court observed that any ordinary reasonable person understands that a motorcycle is a type of motor vehicle.

While acknowledging that the exclusions did not appear on GEICO’s declaration page, the Appellate Division noted that requiring such would result in even more “fine print” and run the risk of making insurance policies more difficult for the average insured to understand, and would also “eviscerate the rule that a clause should be read in the context of the entire policy.”

Thus, the Appellate Division stated that “The failure to list the exclusion at issue on the declaration page does not automatically render the contract ambiguous. Reading the GEICO policy in its totality, we conclude the exclusion is clear and unambiguous. The fact that the exclusion is not mentioned on the declaration sheet does not bar its enforcement.”

Accordingly, the Katchen opinion is a very instructive recent summary by the Appellate Division of the procedure that will be utilized in analyzing contracts and insurance policies.

Plaintiff Unable to Meet Permanency Threshold of Tort Claims Act Despite Knee Surgery

By: Chris Carlson, Esq.

The New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 to 59:13-10, requires that a Plaintiff seeking to recover damages from a public entity must prove as a threshold requirement that he or she sustained a “permanent loss of body function.”  N.J.S.A. 59:9-2(d). The Appellate Division of the Superior Court of New Jersey on January 3, 2017 issued an opinion, not yet approved for publication, which addresses this requirement in the matter of Moore v. Frucci, 2017 N.J. Super. Unpub. LEXIS 1 (App. Div. Jan. 3, 2017).

The fact pattern is fairly unusual in that, on December 1, 2013, Plaintiff John Moore was standing on a Camden sidewalk observing police activity at a crime scene. Plaintiff alleged that Defendant Detective Christopher Frucci drove an unmarked Camden City Police vehicle onto the sidewalk, and the vehicle struck Plaintiff in the rear of the right leg, causing Plaintiff to lose his balance, but not fall to the ground. Defendant Frucci denied that the vehicle struck Plaintiff, but liability was not an issue raised in Defendants’ Motion for Summary Judgment.  Rather, Defendants claimed that Plaintiff failed to meet the threshold to recover under the TCA.

Plaintiff sought treatment at an emergency department approximately 40 minutes after the incident.  X-rays of the right lower extremity were essentially negative. Plaintiff was also noted to be ambulating without difficulty. However, four days later, on December 5, 2011, Plaintiff commenced a course of physical therapy and chiropractic treatment, alleging injuries to his knee and ankle, as well as severe lower back pain. He continued this treatment for approximately six months.

On February 1, 2012, Plaintiff underwent an MRI of the right knee. The MRI report noted no fracture or contusions, but a “chronic appearing partial tear of the proximal ACL” and “small joint effusion.”

Plaintiff also came under the care of a board certified orthopedic surgeon on February 29, 2012. This doctor indicated that Plaintiff had suffered “aggravation of chronic lumbosacral sprain and strain” and a “right knee contusion with high-grade partial versus full thickness tear of the ACL.” Plaintiff was recommended to continue chiropractic treatment and physical therapy, and was fitted for a knee brace.

After periodic follow-ups with the surgeon and Plaintiff’s claims of persistent tenderness in the right knee, arthroscopic surgery was performed on August 30, 2012. The operative report describes the procedure as “diagnostic arthroscopy of right knee, partial synovectomy medial joint, lateral joint, notch, and suprapatellar pouch, and chondroplasty of patella.”  Plaintiff thereafter attended several post-surgical follow-up visits with the surgeon, as part of what the surgeon described as continuing “aggressive therapy,” which included two injections of the knee with Depo-Medrol and the lidocaine.

The surgeon also ultimately provided a permanency evaluation in which he stated that Plaintiff “has had an insult to his anterior cruciate ligament. There was a partial tear. He did have posttraumatic changes with chondromalacia patella and synovitis of the right knee.” The doctor also opined that Plaintiff might require knee replacement surgery in the future.

In his deposition, Plaintiff, who was employed as a public adjuster, claimed that he had difficulty climbing onto roofs, and when climbing stairs he experienced a “little bit” of pain in the knee. Plaintiff also testified that, given his condition, he paid more attention to his activities due to his knee.  He also claimed that given the right knee soreness and swelling, he was required to ice the knee three to four times per week. He claimed the problems with his knee limited his ability to participate in other activities of daily living, including hunting, riding dirt bikes and a motorcycle which he owned, and caused him pain and difficulty when he remained in the same position for an extended period of time.

The trial court ruled that the proofs set forth above were insufficient to create a triable issue as to whether Plaintiff had met the threshold of the TCA.  Accordingly, Defendants’ Motion for Summary Judgment was granted.

On appeal, the Appellate Division set forth the specific language of N.J.S.A. 59:9-2(d), which indicates that:

“No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.  For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.”

Therefore, in circumstances where a Plaintiff has incurred in excess of $3,600.00 in medical expenses, the Appellate Division noted that “to recover pain-and-suffering damages against a public entity the plaintiff must also prove: (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial.”  Toto v. Ensuar, 196 N.J. 134, 145 (2008).”  Further, Plaintiffs “may not recover under the TCA for mere subjective feelings of discomfort.  Brooks v. Odom, 150 N.J. 395, 403 (1997).”  In Brooks, although Plaintiff Brooks had ongoing pain and permanent restrictions of motion in the neck and back, her claims were still dismissed due to the fact that she could function in her employment and as a homemaker.  Id. at 406-407.  The Appellate Division also referenced the opinion in Ponte v. Overeem, 171 N.J. 46 (2002), in which even though Plaintiff in that matter sustained a knee injury which required surgery, the same still was determined not to meet the threshold.

Given all of the foregoing, in Moore the Appellate Division held that Plaintiff did not meet his burden of proof to establish the objective evidence that he had as a result of the incident sustained a permanent substantial injury to his knee. The Court relied heavily upon the fact that following the surgery, plaintiff remained “fully capable of performing in his employment and none of his avocational pursuits were significantly impaired. The discomfort he experienced while performing such activities was insufficient to meet the TCA threshold. Further, (the surgeon’s) suggestion of the possibility of future surgery was insufficient to establish a permanent loss of bodily function that was substantial.”

Thus, this recent Appellate Division opinion stands for the proposition that Plaintiff’s burden to meet the threshold of the TCA is a significant one, as even surgery may not be found sufficient to meet the same. This case shows that, even with objection evidence of a permanent injury, if a plaintiff is unable to show that the loss is substantial with respect to a limitation of his ability to work or his recreational or daily activities, it may be subject to dismissal based upon the TCA’s permanency defense.