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New Jersey Defendants Carry the Burden of Differentiating Between Multiple Potential Causes of a Plaintiff’s Injury.

When a plaintiff pleads in her Complaint that an accident aggravated a pre-existing injury, it is the plaintiff’s burden to provide a comparative analysis of the two injuries – the prior injury and the aggravation – in order to succeed on her claim that the accident caused the aggravation. The Appellate Division in Blocker v. DeLoatch, 2022 N.J. Super. Unpub. LEXIS 1059 (App. Div. June 14, 2022) held that when a plaintiff had a pre-existing injury but did not allege an accident caused an aggravation of that injury, it is the defendant’s burden to establish that the injury had multiple different causes.

In Blocker, the plaintiff’s medical history indicated she sustained a workers’ compensation injury to her lower back in 2015. Thereafter she was involved in two motor vehicle accidents about two years apart from one another: a three-car accident in Franklin Township in April 2016, and another motor vehicle accident in New Brunswick in March 2018. Plaintiff filed a complaint in April 2018, asserting a negligence claim against all of the other drivers in both of the 2016 and 2018 accidents seeking damages for “permanent injuries” sustained because of those two accidents. Plaintiff, however, did not allege that either the 2016 and 2018 accidents aggravated any previously sustained injuries. Plaintiff’s expert provided a report that indicated the plaintiff sustained a permanent injury caused by the 2016 accident, that was aggravated by the 2018 accident. She had no complaints prior to the 2016 accident.

Prior to the close of discovery, the defendants filed a motion for summary judgment arguing that, (1) the plaintiff’s failure to submit a comparative analysis of the injuries sustained prior to the 2016 accident; (2) the injuries suffered in the 2016 accident; (3) the injuries sustained in the 2018 accident; and (4) how those accidents may have aggravated or exacerbated the pre-existing lower back injuries, was fatal to her complaint. In response, the plaintiff provided her expert’s report from a doctor she claimed rebutted the defendants’ claims. The motion judge granted summary judgment, agreeing with defendants that the plaintiff’s expert’s report failed to provide any analysis as to whether or how the injuries from the 2016 accident were aggravated by the 2018 accident and that there was no review of anything concerning plaintiff’s pre-2016 injuries.

The Appellate Division reversed, holding that, in a non-aggravation case, a plaintiff need only show she sustained a permanent injury arising from the claimed accident to carry her burden without having to exclude all prior injuries to the same body part. The court determined that plaintiff only had to present proof of aggravation by way of a comparative analysis when she pled aggravation. Conversely, they held that a plaintiff is not required to present such an analysis when she does not plead aggravation. It follows that in such a circumstance the defense has the burden to show that the alleged injury existed at the time of the causal accident.

If it is fully incumbent on a defendant to bear the burden of establishing a plaintiff had a pre-existing injury to the same body part injured in a subsequent accident, a logical conclusion from the above appears to question the practice of alleging a plaintiff had an aggravation of a pre-existing injury at all. The strategy appears to be that, since it is the defendant’s burden to prove aggravation, a plaintiff’s attorney would anticipate that strategy, prepare a comparative analysis on the side and, in the event that a defendant does (a) discover a pre-existing injury and (b) provide the proofs to establish same, produce the comparative analysis to rebut the claims made by a defendant. On the other hand, to carry their own burden, the defendant should investigate a plaintiff’s medical history to uncover prior injuries, have their expert establish the aggravation and prepare for the showdown with the plaintiff.

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Broad Application of Summary Judgment Standard in Plaintiff’s Favor Tests Limits of Premises Liability Claims

Carol Frie was walking from the parking lot toward the mall when she stepped onto the sidewalk from the parking lot surface. While she did not know what element of the sidewalk caused her fall, she stated that it was “unkempt.” In Frie v. Fairlane Village Mall, 2020 Pa. Super. Unpub. LEXIS 2848 (Sept. 9, 2020), the issue in the appellate court was whether Ms. Frie, who could not specifically identify the portion of the sidewalk that caused her fall, raised a genuine issue of material fact to defeat the Mall’s motion for summary judgment.

In October, 2014, Ms. Frie parked her car in the parking lot of the Fairlane Village Mall in Pottsville, Pennsylvania, and walked across the parking lot towards the Mall. She testified that she was looking straight ahead as she stepped onto the sidewalk and she fell due to, what her answers to interrogatories stated broadly stated was “unkempt property.” She reported the incident to an employee of the Mall’s manager who took photographs of the area at which Ms. Frie said she fell. Ms. Frie agreed the photos showed the area she fell. The employee said that she took photos of that specific area because that was where Ms. Frie pointed; the employee noticed a “little lip” in the sidewalk in the area where Ms. Frie pointed and she felt she needed to show how much of a lip existed by taking a close up photograph. She then stated that she wrote in an incident report that Ms. Frie had told her she “tripped over the uneven sidewalk and fell;” “uneven sidewalk” being the employee’s own words. The employee said Ms. Frie only pointed to the sidewalk in general and the employee, finding the “little lip,” assumed it was the cause of her fall. Ms. Frie agreed with this assertion.

On these facts, the trial court granted the Mall’s motion for summary judgment. The court relied on case law that states, though property owners have a duty to keep their sidewalks in a reasonably safe condition for travel for the public and business invitees, in order to establish liability, someone who falls on a sidewalk “must prove what actually caused the accident, not what might possibly have caused it.” The court found that because Ms. Frie could not identify the cause of her accident, she could not prove what actually caused her fall.

The appellate court reversed this decision. The appellate court found that the trial court failed to apply the proper standard on summary judgment, to construe the record in the light most favorable to the plaintiff, Ms. Frie. The appellate court saw that the employee’s claims that Ms. Frie showed her where she tripped, the photographs of the uneven sidewalk, the incident report that stated Ms. Frie tripped over an uneven sidewalk and, especially, Ms. Frie’s agreement with everything the employee had stated required a jury to determine whether the uneven sidewalk caused Ms. Frie’s fall or that Ms. Frie could not specifically identify the “little lip” as the cause of her fall. This is a broadly important determination because, despite case law specifically requiring a plaintiff to identify what caused their fall, a general claim can present a factual issue as to what portion of the sidewalk caused a fall in order to defeat a summary judgment motion.

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Appellate Division Reinforces “Extraordinary Circumstances” Requirement for a Late Notice of Tort Claim

By: Charles F. Holmgren, Esq.

When plaintiffs fail to file a Tort Claims Notice with a public entity within ninety days of their personal injury the plaintiffs believe was caused by the public entity, they must file a motion with a court seeking the court’s permission to file a late Tort Claim Notice. However, if he or she hopes to succeed, a plaintiff must meet the very strict standard of showing “extraordinary circumstances” under the Tort Claims Act as to why they were not able to timely file the Tort Claims Notice. Our firm handled a recent case before the New Jersey Appellate Division (Hallett v. Hamill, 2018 N.J. Super. Unpub. LEXIS 587 (App. Div. March 15, 2018)), in which the Appellate Division reaffirmed the extraordinary in the “extraordinary circumstances” requirement for the timely filling for a Tort Claims Notice.

In Hallett, an elderly Ruth Hallett fell on ice in front a house owned by Letita Hamill on February 16, 2016. She sustained a fractured femur and was hospitalized until she passed away on July 23, 2016, allegedly from injuries related to her accident. Ms. Hallett did not seek any legal advice or file a Tort Claims Notice within the required ninety day. On August 8, 2016, after Ms. Hallett’s death, her daughter retained an attorney to handle Ms. Hallett’s personal injury claim. The attorney filed a Complaint against the Township of Ewing, alleging the Township was in some way responsible for Ms. Hallett’s fall. The Township responded by moving the court to dismiss the Complaint for failure to file a Tort Claims Notice. The plaintiff responded by cross-moving for leave to file a late Tort Claims Notice.

In a certification accompanying the motion, the plaintiff’s attorneys gave a brief outline of the facts of her fall and that she died in the hospital thereafter; the attorneys did not state how long the plaintiff was in the hospital, whether her ability to concentrate was affected by any medication or whether she suffered any head injuries or had any mental impairment beyond a fractured leg. At oral argumenta the trial court level, Ms. Hallett’s attorneys argued, without any objective proof of Ms. Hallett’s hospital stay or condition, that her incapacity in the hospital, with no more than a fractured leg, was justification for her inability to file a Tort Claims Notice on time.

As counsel for Ewing, we argued that the plaintiff’s oral evidence of her incapacity, without more, was insufficient to satisfy the exacting standards of the “extraordinary circumstances” requirement of the Tort Claims Act. Nevertheless, the trial court granted the plaintiff’s motion to file a late Tort Claims Notice based upon the position that such motions are viewed with “great liberality” so that such cases may be heard on their merits and that such a determination was well within its discretion.

The Township appealed, arguing that the “great liberality” standard used by the trial court did not meet the strict “extraordinary circumstances” requirement of the Tort Claims Act and that the trial court abused its discretion in using a lower and inappropriate standard.

The Appellate Division agreed with Ewing and reversed. The Appellate Division emphasized the “extraordinary circumstances” standard that came with a 1994 amendment to the Tort Claims Act, noting the pre-1994 amendment language permitted a much more lax “sufficient reasons” standard. The change from the pre-1994 standard to the more rigorous standard was an express refutation of the more liberal reading of the Act. The more strict reading of the amended Act required that all medical conditions meet the “extraordinary circumstances” standard only if they are severe or debilitating and affect the plaintiff’s very ability to attend to the duties of filing a claim. The Court emphasized two past cases where serious head trauma or a medical induced coma were sufficient medical reasons that satisfied the heightened standard. It then noted that the plaintiff’s failure to provide objective medical evidence showing the nature or extent of her injuries or disability, other than a fractured femur, failed to meet the standard. Notably, the appellate court pointed out that, “plaintiff did not claim to have suffered any head injuries or cognitive impairment.”

The Appellate Division further noted that the trial court’s ability to exercise discretion was limited to cases in which the plaintiff was able to show extraordinary circumstances for the delay, as a judicial finding of extraordinary circumstances must be expressly made. Indeed, an abuse of discretion will be found if the trial court proceeded on a misconception of the law, as it did here in applying a less onerous standard than “extraordinary circumstances.”

An analysis of “extraordinary circumstances” is often very factually oriented, with reasonable minds able to come to different conclusions as to which circumstances are sufficiently extraordinary. The Appellate Division’s opinion here emphasizing the plaintiff’s inability to show any head injuries, cognitive impairment or mental trauma as failing to meet the extraordinary circumstances standard specifically in reference to whether it affected her ability to file a claim may signal a key factor that courts should be looking to regarding what medical conditions are sufficient for “extraordinary circumstances.”

Appellate Division Finds Plaintiffs Fail to Meet Standard to File Late Notice of Tort Claim

By: Charles F. Holmgren, Esq. and Betsy G. Ramos, Esq.

To file a personal injury claim against a public entity, the Tort Claims Act requires that a plaintiff must file a notice of tort claim with that entity within 90 days of his/her accident. If no tort claim notice is filed within that time period, a claimant has up to one year to seek leave with the court to file a late notice of tort claim. However, the claimant must establish that extraordinary circumstances prevented his or her filing of this notice within that 90 day time period – which is a difficult standard to meet. In a case handled by our firm before the New Jersey Appellate Division, Silver v. Wang, 2017 N.J. Super. Unpub. LEXIS 441 (App. Div. Feb. 24, 2017), the Appellate Division ruled that even the death of the claimant is not an impediment to the court’s refusal to find extraordinary circumstances exist to relax the strict requirement of a timely filed notice of tort claim.

The accident in the Silver case occurred on April 11, 2014. There, Plaintiffs’ decedent Jennifer Peplinski died when her car swerved off of Route 130 in North Brunswick, New Jersey and struck a utility pole off the side of the road. On January 21, 2015, the Middlesex County Prosecutor’s Office and the North Brunswick Police Department issued an investigation report of the accident showing that Mrs. Peplinski’s car was struck by another vehicle that caused her to lose control of her car and strike the pole. On receipt of this report, Mrs. Peplinski’s adult children, the plaintiffs, met with an attorney on January 31, 2015, took steps to create an estate for her, and filed a motion for leave to file a late notice of tort claim. They argued that only when they received the report, well after the ninety day notice period, did they learn that that defendants Township of North Brunswick and the State of New Jersey could have been involved in their mother’s accident and, during that ninety day period, no estate existed in order to file a claim on their mother’s behalf.

The defendants opposed the motion. The defendants argued that the claimant learned nothing new from the investigation report pertaining to North Brunswick or the State; that, at the time of her death or soon thereafter, the plaintiffs knew Mrs. Peplinski died from striking a pole off of Route 130 in North Brunswick and, on these facts alone, they had sufficient information to file a timely tort claims notice and that the plaintiffs’ failure to do so alone fails to satisfy the extraordinary circumstances requirement of pertinent Tort Claims Act section, N.J.S.A. 59:8-9. Furthermore, the defendants argued that the Tort Claims Act makes clear that an estate did not need to exist in order for the plaintiffs to file a notice on the decedent’s behalf.

The trial court was unpersuaded by the defendants’ position and found that the totality of the circumstances showed that only when they received the report did the plaintiffs learn the facts of the accident and, based on those proofs, met the threshold intended by the Act. Furthermore, the court found that without an estate to file the claims notice, there would be no entity chargeable with the failure to file a notice. Thus, the trial court permitted the plaintiffs to file a late notice of tort claim. Both defendants appealed this order.

On appeal, the Appellate Division reversed. The two issues before the appellate court were whether the trial court abused its discretion in finding the plaintiffs demonstrated extraordinary circumstances to relax the ninety day statutory period and whether the plaintiffs could have filed a notice of tort claim on behalf of the estate before the estate was created.

The Appellate Division found that the plaintiffs never indicated what new information they learned from the investigation report that prompted them to pursue the claim on their mother’s behalf against North Brunswick and the State. The Court found that the plaintiffs only came to an understanding they had a claim against the defendants after they visited an attorney who then informed them that the utility pole, which may be owned by either defendant, could be too close to the road and thereby could have contributed to the decedent’s death. As there was nothing in the investigation report that set forth the proximity of the utility pole to the roadway, the investigation report did not provide them with any information they did not already have in their possession immediately after their mother’s death. Because the failure to seek an attorney or ignorance of the filing period fails to satisfy the extraordinary circumstances threshold, the Court determined the plaintiffs could not meet the strict standards required by the Act. Thus, the Appellate Division found the trial court erred in its decision to grant the plaintiffs’ motion to file a late tort claims notice.

Furthermore, the Tort Claims Act specifically states that a notice “shall be signed by the claimant or by some person on his behalf.” Indeed, no case interpreting the Act supported the plaintiffs’ claim that only an estate can file a notice. Hence, the Appellate Division also ruled that an estate need not be created before a notice of tort claims is filed on a decedent’s behalf.