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Municipality Found Not Liable For Fall Due to Uneven Sidewalk

Plaintiff Allan Suarez sued Ridgefield Park for damages resulting from injuries he suffered when he claims to have tripped on an uneven portion of a sidewalk across the street from his home.  Ridgefield Park successfully obtained a summary judgment dismissal on the trial court level pursuant to the Tort Claims Act immunities.  In Suarez v. Gallagher, 2019 N.J. Super. Unpub. LEXIS 2003 (App. Div. September 30, 2019), the plaintiff appealed the summary judgment ruling, arguing that he had satisfied the Tort Claims Act requirements so as to be able to pursue the claim against Ridgefield Park.

In the appeal, plaintiff argued that he had satisfied the Act’s notice requirements, that the sidewalk constituted a dangerous condition, and Ridgefield Park’s failure to ameliorate the condition was palpably unreasonable.  The Appellate Division rejected all of these arguments.  First, the Appellate Division addressed the dangerous condition contention.  The Court noted that the sidewalk slabs were alleged to be uneven, with one protruding one and a half inches above the other.  The Appellate Division stated that “uneven sidewalk slabs do not necessarily constitute dangerous conditions as defined by the Act.”  It pointed out that a defect is not a dangerous condition merely because it exists and that an alleged defect must be more than “minor, trivial or insignificant.”  The Court found that a declivity of one or one and a half inches in a sidewalk is a commonplace defect and does not meet the Act’s definition of a dangerous condition.

Second, the Court found that the plaintiff also failed to show that Ridgefield Park had actual or constructive notice of the alleged defect, as required by the Act.  The plaintiff had presented no evidence to suggest that Ridgefield Park received any complaints about the sidewalk.  Instead, the evidence demonstrated that “neither plaintiff, who lived across the street, nor plaintiff’s neighbor whose property abutted the allegedly defective sidewalk, ever uttered a complaint about the sidewalk.”  Further, the Appellate Division rejected the argument that because Ridgefield Park has a shade tree commission and would fix defects when brought to its attention provided a basis for finding it possessed constructive notice of any sidewalk defects that were not brought to its attention.

Thus, the Appellate Division affirmed the trial court’s grant of summary judgment, dismissing the law suit against Ridgefield Park.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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It’s Abuse (FMLA) I Tell You!

Since the Federal Family and Medical Leave Act (“FMLA”) was passed back in 1993, employers have frequently worried about one overarching issue: FMLA abuse and fraud.  Just recently I had a client ask: what can an employer do when it suspects that an employee is lying about the need for FMLA leave? I tell employers to fear not, and not fret, because there are in fact legal tools available to them to weed out FMLA fraud.

Under the FMLA, before an employee can get FMLA leave, the employee must obtain supporting medical information from a health care provider to justify the need for leave.  Typically, employers receive a signed medical health certification form from the health care provider, which is a form prescribed for such use by the US Department of Labor. This is the first place to look to detect fraud. Closely scrutinize the form to determine whether the health care provider actually provides support for the medical diagnosis for which the employee is seeking leave. Where there are discrepancies between what the health care provider indicates and what you are being told by the employee, the employer should follow what the health care provider notes in the form rather than what the employee is telling you. This way, the employer can weed out any misinformation being provided by the employee to justify a leave.

The second-place on the form that should be evaluated is the nature of the leave that the health care provider is prescribing for the employee. Look to see exactly how much time the health care provider believes the employee needs to be out of work, and when, especially if intermittent leave is sought by an employee. For example, where the employer finds that the employee is spending more time out of work on intermittent leave than what the health care provider has indicated is necessary on the form, this is a telltale sign of possible abuse. So, what can the employer do in such circumstance? For one thing, the employer can ask for a recertification form from that physician/health care provider if the pattern of use is different from what was previously prescribed. FMLA regulations provide this tool to the employer to control possible abuse by alerting the health care provider that the employee is using the leave in a way which is different than what was originally recommended and prescribed.

Another tool available in a suspected fraud situation is requesting a second opinion so that another health care provider paid by the employer can evaluate whether there is in fact the need at all for the FMLA leave. Where the second opinion differs from the original health care provider’s certification supporting the leave request, the FMLA statute and regulations provide for the obtaining of a third opinion, which is binding on both the employer and employee, and this becomes the final determination on whether leave is authorized. The final health care provider is chosen collectively by both the employee and employer. Clients of mine have used this method to stop potential FMLA fraud/abuse in its tracks where the employer reasonably suspected due to the circumstances presented that the requested leave was not needed by the employee.

Aside from the foregoing mechanisms, employee fraud has also actually been discovered through searches of the Internet and publicly available social media sites of the employee. Where an employer suspects fraud, taking a look on the Internet and conducting searches on the employee, especially on the publically accessible portions of social media site areas such as Facebook, can provide important information corroborating suspicions of fraud. In one reported case, an employee’s FMLA fraud was discovered from pictures posted by the employee on the Internet from a tropical island where the employee was vacationing at a time when he was out on FMLA leave. The employee tried to justify the vacation by arguing that his health care provider prescribed it to deal with the stress condition that prompted the request for FMLA leave, but the court did not buy that argument.

Sometimes, information about FMLA fraud will likewise come from co-employees who will report a violation because they too are upset that the employee is not at work. Similarly, I have had cases where an employee’s own relative reported the fraud in requesting FMLA to the employer so corrective action could be taken. In other extreme situations, private investigators can be used to monitor the daily activities of the employee to see whether the leave is truly needed.

The FMLA is very clear on this issue: fraud is not something that an employer must accept, and utilizing the tools available under the act will enable the employer to ferret out illegitimate requests for leave. Where fraud is discovered, employers have every right to take disciplinary action against the employee, including termination, as the employer did in the case involving the illicit vacation scenario mentioned above. So, if you are facing a situation where fraud is suspected, conduct an investigation, which sometimes will require that the employer directly confront the employee with the allegations. Employers will be amazed at how well you can guard against and remedy FMLA fraud by using the very mechanisms made available under the law and its accompanying regulations for combating such illegitimate practices.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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US Department of Labor Announces New Overtime Rules

Just a few years ago, employers were preparing to follow what were to become new overtime rules that were going into effect near the end of the Obama administration.  Those rules were sidetracked by an unexpected court ruling that struck the new rules down and declared them to be unenforceable. Since that time, employers have been waiting on what, if anything, the United States Department of Labor (“USDOL”) would do with this issue with a new administration in power in Washington, D.C. We received that answer this week on September 24, 2019 when the USDOL promulgated new final rules that will apply to overtime eligibility determinations starting in 2020.

The new provisions update the Fair Labor Standards Act’s (FLSA) regulations and minimum salary thresholds needed for executive, administrative, and professional employees to be exempt from overtime. These final rules will go into effect on January 1, 2020.

Here are the changes that are being made by the new rules:

  • The standard salary threshold for classifying an employee as exempt from overtime increases to $684 per week ($35,568 annually), up from $455 per week ($23,660 annually).
  • The minimum salary threshold for the Highly Compensated Employee (HCE) exemption increases to $107,432 annually, up from $100,000.
  • Nondiscretionary bonuses, incentive pay, and commissions, may make up to 10 percent of this standard income threshold, as long as they are paid at least annually.
  • Special salary levels for workers in United States territories and the motion picture industry will be revised.

So, what should employers do while waiting for the new rules to go into effect?  Like many employers did when the overtime rules were expected to change during the Obama administration, employers should conduct an audit of its workforce and determine how these regulations might affect your current payroll practices. It is believed by the USDOL that, due to these new regulations, an additional 1.3 million employees will be now eligible for overtime. Therefore, if you have employees who were classified as exempt because of their meeting the older salary test standard, employers will now need to decide if they want to raise what those employees are being paid to the higher 2020 salary level to maintain the exemption or reclassify those employees as non-exempt moving forward.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Municipality Not Entitled To Weather Or Snow Removal Immunities If Accident Resulted From Other Causes

Plaintiff Barbara Santopietro alleged that she fell on black ice on the roadway in front of her home in the Borough of Union Beach.  Her husband Gabriel asserted that whenever it rained, large pools of stagnant water formed in front of their home, which he reported to the Borough.  The issue in Santopietro v. Borough of Union Beach, 2019 N.J. Super. Unpub. LEXIS 1551 (App. Div. July 8, 2019) was whether the Borough was entitled to common law snow removal immunity and/or weather immunity under the Tort Claims Act to avoid liability for the plaintiff’s fall if the fall occurred due to ice forming from causes other than a snowstorm.

After the plaintiff’s husband complained to the Department of Public Works about the pools of stagnant water that reoccurred on his street after a rainfall, their road was milled by the Borough.  As a result of these efforts, the reoccurring pooling problem was temporarily eliminated.  The milled road then directed water to a sewer grate, which eliminated the ponding.

About two years later, the road was repaved following the installation of a water main and the pooling in front of their home came back.  There was no drain, and according to Gabriel, it would get bigger and bigger, now coming up their driveway and into their front yard.  Plaintiff fell on black ice while walking to her car and suffered injuries that she claims were caused by this “dangerous condition.”

The Borough argued to the trial court that it had common law snow removal immunity and/or weather immunity under the Tort Claims Act.  Pursuant to N.J.S.A. 59:4-7, public entities have immunity “for an injury caused solely by the effect on the use of streets and highways of weather conditions.”  Also, under the Miehl v. Darpino case, the courts recognize immunity for injuries caused by the snow removal activities of public entities.

The Appellate Division, however noted that the weather immunity statute (N.J.S.A. 59:4-7) did not apply in cases where injuries were allegedly caused by a combination of weather and other factors.  Also, the common law snow removal immunity cases consider claims solely based upon negligent snow removal, independent of any other cause.  If there was conduct that was unrelated to the snow removal activity, the court noted that the cause of action could still be maintained despite this common law immunity.

In this case, the Borough contended that it had snowed two or three days before the plaintiff’s accident and the plaintiff did not observe any water on the ground that morning. The plaintiffs produced an expert report as to the improper road re-pavement after the water line installation. The report claimed that the repaving worsened the water accumulation problem in front of the plaintiff’s home and that the municipality failed to address the flooding and draining problem caused by the improper slope, which lead to the icy condition on the roadway and the plaintiff’s fall.

The Borough argued that it appeared that plaintiff slipped and fell on black ice, which was a result of melting and re-freezing after the Borough’s snowplow plowed the roadway a few days prior to her accident.

The plaintiff’s version, however, was that the sheet of ice was as a result of the pooling on the street that was not resolved by the Borough, as opposed to the result of melting and re-freezing.

The Appellate Division agreed with the plaintiffs that the trial court erred when it held that the Borough enjoyed common law snow removal immunity.  The evidence showed a possible cause for the plaintiff’s injuries other than the Borough’s snow removal efforts.  Not only would the Borough not be afforded immunity under the common law but also it would not have immunity under the Tort Claims Act weather immunity defense.

However, there was no evidence on the record that the Borough had any notice of the icy condition prior to the accident. Under the Tort Claims Act, the plaintiffs were required to establish that the road was in a dangerous condition and that the Borough had actual or constructive notice of this condition within a sufficient amount of time to take protective measures.

Even though the plaintiff’s husband may have complained to the Borough’s mayor that there was still water in front of their house after it was re-paved and that a neighbor may have also informed the mayor about the flooding in front of the house, the notices to the Borough were not about the formation of black ice.  Rather, they were about flooding after a rainfall.  The plaintiff did not slip on a large accumulation of frozen water.  Rather, she slipped on a thin coating of black ice.

Hence, the Appellate Division found that these alleged verbal complaints by the plaintiff’s husband and his neighbor did not put the Borough on notice of the condition that caused the plaintiff’s fall.  Therefore, the Appellate Division did find that the Borough was immune after all, based upon the lack of notice, and affirmed the trial court’s grant of summary judgment to the Borough.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Snow Removal Contractor Benefits From Hills and Ridges Doctrine

The Superior Court of Pennsylvania has upheld the protections of the “hills and ridges” doctrine as applied to a snow removal contractor.  In a recent opinion, dated August 28, 2019 in the case, James M. Hare, Jr. v. Mark Zaffino d/b/a Mark Zaffino Snow Removal, No. 1349 WDA 2018, the Superior Court of Pennsylvania upheld a trial court’s ruling granting summary judgment in favor of the snow removal contractor.

The relevant facts of the case are as follows.  On the morning of January 5, 2015, an employee of Defendant, Mark Zaffino Snow Removal (“Zaffino”) performed snow removal services between 4:25am and 5:30am at the Cobham Park Tank Farm (“Tank Farm”) in Warren, Pennsylvania, after a substantial accumulation of snow and ice that occurred overnight.  Zaffino had entered into a contract with Tank Farm stating that Zaffino would complete all necessary snow removal services before 7:00am after an accumulation of three inches of snow.

Plaintiff, an employee of Tank Farm, arrived at the property at approximately 5:30am.  It was still snowing at the time and there was already approximately 5 ½ to 6 inches of snow on the ground.  Plaintiff fell on an unplowed area of the roadway and fractured his left leg.  Plaintiff then filed a lawsuit against Zaffino, who moved for summary judgment based on the protections of the “hills and ridges” doctrine.  The trial court granted Zaffino’s motion for summary judgment and Plaintiff’s appeal followed.

As long as an owner or occupier of land has not permitted snow and ice from accumulating unreasonably into ridges or elevations creating generally slippery conditions, the owner or occupier is protected from liability under the “hills and ridges” doctrine.  A plaintiff is required to prove the following to overcome the “hills and ridges” doctrine: 1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; 2) that the property owner had notice, either actual or constructive, of the existence of such condition; 3) that it was the dangerous condition, accumulation of snow and ice, which caused the plaintiff to fall.  Generally, a landowner or occupier has a reasonable time to remove snow and ice after notice of the dangerous condition.

In this case, Hare argued that the “hills and ridges” doctrine did not apply to a snow removal contractor.  However, Superior Court disagreed with this theory.  The Superior Court held that it is well established that an independent contractor becomes a possessor of the necessary area of land in order to complete the work that is contemplated under a contract.  Furthermore, the Superior Court held that precedent specifically states that the “hills and ridges” doctrine applies to an independent contractor.  As such, the Superior Court upheld the trial court’s decision regarding the applicability of the “hills and ridges” doctrine to a snow removal company.  The Superior Court affirmed the trial court’s ruling that Zaffino was not liable for Plaintiff’s injuries, because it was still snowing at the time of the fall.  The snow had not accumulated to “hills and ridges” to put Zaffino on notice that it had become a dangerous condition.

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Mandatory, Non-Binding Arbitration Arrives In New York

On May 14, 2019, the New York State Unified Court System announced that it will begin rollout and implementation of a “presumptive” alternative dispute resolution (“ADR”) program [1], effectively bringing mandatory mediation to the New York System court system by the end of 2019.  The Presumptive ADR program is being implemented and modeled from similar practice in other jurisdictions, with a special focus eyeing New Jersey, where an automatic presumptive mediation program has been in place for more than a decade [2].  Local protocols and best practices are being developed by the Administrative Judges of each of New York’s 13 Judicial Districts to facilitate the process.

For the Supreme Court, Kings County in Brooklyn, the new rules for presumptive mediation are set to take effect on October 1, 2019.  All cases in Brooklyn where the Request for Judicial Intervention is filed on or after October 1, 2019 will be required to participate in the mediation program.  Mediations will begin in November, and will be scheduled 90 days from the date of the RJI.  Attorneys will be given 30 minutes of no-cost mediation, after which free half-hour the cost will be $400 per hour.  There will be an opt-out provision, available by order to show cause or by an in-person application to the mediator, if all parties agree that the mediation would not be feasible [3].  Court officials are estimating that nearly 20,000 mediation conferences will be held on Kings County civil cases in the first year [4].

Hon. George Silver, deputy chief administrative judge for the NYC courts has expressed his optimism that Presumptive ADR will benefit litigants and the court system alike, freeing up judicial resources for the more difficult cases.  “What we’re really doing, and it’s to the benefit of everyone, is we’re looking at cases earlier than later.  Certainly we know that there are cases that will never settle and will have to go to trial, but there certainly are that we can identify, and if we can settle 15 to 20 percent of cases [in Presumptive ADR], that leaves room for judges and everyone to work on more difficult cases.” [5].

 

Sources:

[1] A copy of the press release is available herehttps://ww2.nycourts.gov/sites/default/files/document/files/2019-05/PR19_09_0.pdf

[2] “New York Courts to Begin Presumptive Mediation for Civil Cases Later This Year”, New York Law Journal, May 16, 2019 by Dan M. Clark  https://www.law.com/newyorklawjournal/2019/05/16/new-york-courts-to-begin-presumptive-mediation-for-civil-cases-later-this-year/

[3] “Dear Colleagues: Kings County Mediation Rules”, open letter dated August 28, 2019 by NYSTLA President Michele S. Mirman

[4] “Brooklyn Supreme Court expects 20,000 cases to be mediated each year”, Brooklyn Daily Eagle September 4, 2019, by Rob Abruzzese.

[5] “Columbian Lawyers get a crash course in new presumptive mediation program”, Brooklyn Daily Eagle September 6, 2019, by Rob Abruzzese.

New York’s Office of Court Administration has announced its intent to adopt the Uniform Mediation Act (“UMA”) as promulgated by the National Conference of Commissioners of Uniform State Laws,

[https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2019-CivilPractice.pdf]  The new rules regarding mediation will become Article 74 of the CPLR and be known as the ‘Uniform Mediation Act’.  There will be a waiver provision, provided in CPLR §7404

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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.

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Court Denies Plaintiff’s Motion for Leave to File Late Notice of Tort Claim Despite Plaintiff’s Medical Issues

On September 26, 2017, Plaintiff Antoinette Marra tripped and fell on the property of defendant Hopatcong Senior Center and Borough of Hopatcong.  She suffered a broken arm and fractured hip, which necessitated hip replacement surgery, among other injuries.  The issue in Marra v. Hopatcong Senior Center, 2019 N.J. Super. Unpub. LEXIS 1685 (App. Div. July 26, 2019), was whether the plaintiff’s injuries constituted “extraordinary circumstances,” justifying the filing of a late notice of tort claim.

Following the plaintiff’s surgery, she was transferred to a nursing home where she spent two months recovering.  Thereafter, she was discharged and began in home care.

Plaintiff did not seek legal counsel until March 2018.  She was unaware of the 90 day time period for which to file a notice of tort claim.  On May 18, 2018, she filed a personal injury complaint and a motion for leave to file a late notice of tort claim.  This motion was filed 4½ months after the deadline for a timely filing of her tort claims notice.  In her motion, she alleged that she suffered from various medical conditions, constituting exceptional circumstances, and argued that those conditions warranted an acceptance of her late notice of claim.

The defendants opposed her motion and cross-moved to dismiss the plaintiff’s complaint.  However, the trial court denied the cross-motion and granted plaintiff’s motion, permitting the filing of the late notice of tort claim.  The trial court judge found that the plaintiff suffered numerous health issues after her hip replacement surgery which precluded her from timely pursuing her personal injury claims against the defendants.  Further, he found that the plaintiff was so incapacitated that she was unable to file a notice within 90 days.

The judge noted that she was diagnosed with major depressive disorder and was bedridden at all times except for when she was in physical therapy.  She had difficulty keeping food down and could not complete basic tasks of personal hygiene.  She also had cataract surgery within a few days of the end of the 90 day time period and remained confined to her home for an extended period of time.  She was expected to need home nursing care for a further 8 weeks or more.  In summary, the trial court held that these limitations were sufficient to qualify as “extraordinary circumstances.”

The defendants appealed this finding and argued that plaintiff’s medical issues were not so severe or debilitating so as to preclude her from filing a timely notice of tort claim.  Because she had failed to demonstrate extraordinary circumstances, the defendants contend that her complaint should have been dismissed.

The Appellate Division noted that the Tort Claims Act imposes strict requirements upon litigants seeking to file claims against public entities, including filing a notice of claim no later than the 90th day after accrual of the cause of action.  If a plaintiff misses the 90 day deadline, a notice of tort claim may be filed up to one year after the claim but only if “extraordinary circumstances” excuse the delay and the public entity would not be “substantially prejudiced.”

The Appellate Division noted that in reviewing the extraordinary circumstances requirement based upon a plaintiff’s medical condition, the courts look to the severity of the medical condition and the consequential impact from the plaintiff’s ability to pursue the claim.

Here, the Court found that the plaintiff did not demonstrate that her medical issues were so “severe, debilitating, or uncommon” that she was unable to contact an attorney to pursue her claims.  The Appellate Division noted that the plaintiff’s certification described her recovery from her injuries and her depressed mental state during her recovery.  However, nowhere in the record was there any medical evidence from a physician that she was “physically or mentally unable to contact an attorney to file a timely notice of claim.”  Further, upon her discharge from the nursing home, she still had 30 days within which to file a timely notice of claim.  The Court stated that there was no evidence in the record that the plaintiff was bedridden after she was discharged from her nursing home.  Even though she required assistance with her activities of daily living, the Appellate Division held that such assistance did not constitute a medical condition so severe and debilitating so as to impact her ability to pursue her personal injury claims.

The Court noted that requiring assistance with grooming and eating are common after surgery.  Her depression during her extended recovery period was not uncommon and she was treated for depression.  Further, the Appellate Division found that the plaintiff had “ample opportunity” after her discharge from the nursing home to seek assistance from others to pursue her personal injury claims in a timely manner.

With respect to her being on multiple pain medications, the Court stated that there was no evidence in the record that these medications compromised her cognitive ability.  Specifically, the Court found that “the general descriptions offered by plaintiff of her post-injury pain, need for assistance with activities of daily living, and resulting depression are insufficient to qualify as extraordinary medical conditions allowing a late filing of a notice of claim.”

The Appellate Division emphasized that the record was devoid of any medical opinion that she suffered from a severe or debilitating medical condition that precluded her ability to seek counsel on a timely basis.  Rather, the record provided by plaintiff contained “self-serving and subjective statements of plaintiff’s pain and depression.”  The Appellate Division noted that the trial judge mistakenly assumed facts regarding the plaintiff’s condition due to the lack of medical or psychological treatment records.

Because the plaintiff failed to demonstrate extraordinary circumstances, the Appellate Division reversed the trial court judge’s order allowing plaintiff to file a late notice of tort claim.  Hence, the Court remanded the matter back for the trial court judge to enter an order granting defendant’s motion and dismissing plaintiff’s Complaint.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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New Jersey’s Groundbreaking New Wage Anti-Theft Law

In the past, employees who believed that they were not properly paid in line with minimum wage and overtime pay requirements under New Jersey’s wage payment law could either bring a lawsuit in state court or file an administrative claim with the New Jersey Department of Labor to recoup unpaid wages. Many politicians and leading legal activists have dubbed an employer’s failure to properly pay employees owed wages as “wage theft,” and vociferously campaigned for stricter enforcement laws to benefit employees in their quest to fight such “wage theft.”  On August 6, 2019, new legislation was passed, giving employees here in New Jersey new legal tools to fight against this claimed “wage theft,” and then some.

On that date, New Jersey’s Acting Governor Sheila Oliver signed a new anti “wage theft” law that drastically expands the fines, penalties, and damages to be imposed for violations of the state’s wage payment law, and similarly extends the statute of limitations for bringing such claims from two to six-years. The new law takes effect immediately. These changes are groundbreaking and require employers to take prompt actions to audit payroll practices to ensure that these significant new legal requirements are not applied adversely against your company.

Expanded Civil and Criminal Penalties

One of the most important changes made by the new law is the availability of liquidated damages for wage payment violations. Violators are now required to pay the wages owed to the employee plus liquidated damages equal to 200% of the wages owed. Liquidated damages can be avoided, however, for a first time violation if the employer can show that (a) the violation was an inadvertent error made in good faith, (b) the employer had reasonable grounds for believing that the payroll action taken was not a violation of wage and hour requirements, and (c) the employer acknowledges the violation and pays the wages owed within 30 days of the notice of violation. In addition to the possible awarding of liquidated damages, the new law also sets fines of $500 and 20% of the owed wages for a first offense. Fines increase to $1,000 and 20% of the owed wages for each subsequent offense. Additional administrative penalties up to $250 for a first violation and $500 for each subsequent violation can likewise be assessed by the New Jersey Department of Labor and Workforce Development.

In addition to employer civil fines, penalties, and civil damages, the law similarly allows for the imposition of criminal penalties. Significantly, any corporate officer or employee responsible for the wage payment violation commits a disorderly person’s offense. A first violation comes with a fine of $500 to $1,000 or jail time of 10 to 90 days, or both a fine and jail. For subsequent violations, the fines can range from $1,000 to $2,000 and jail time could be imposed from 10 to 100 days. Thus, the law expressly allows for the simultaneous imposition of both a fine and jail time. Employers who violate the bill three or more times are deemed to be guilty of a new third-degree crime of “pattern of wage nonpayment.” Also, in a first in wage collection matters, employees who bring suit can now recover both reasonable attorneys’ fees and costs against the offending employer in having to file a wage collection claim.

The law likewise opens the door for expanded New Jersey Department of Labor and Workforce Development wage and hour payment audits. Under the law, employers may be made subject to a wage payment audit as an alternative to, or in addition to, any of the above referenced sanctions. If that audit ultimately reveals additional violations, the employer and corporate employees involved in the wage payment violation may likewise be subject to additional fines, penalties, damages, and jail time, as well as additional audits. The New Jersey Department of Labor and Workforce Development is also similarly granted the express authority to issue a stop work order or permanently revoke an employer’s operating licenses for repeat violations.

Strict Anti-Retaliation Protection

Along with its expanded civil and criminal penalties, the act also contains very strict anti-retaliation protections for employees who file wage claim complaints. In a drastic change from prior law, it will now be presumed that retaliation has occurred if an adverse action is taken against an employee within 90 days of the filing of a wage complaint. Retaliation against an employee who files a wage payment complaint also subjects a corporate employer to a disorderly person’s criminal offense and the potential imposition of employer fines in the range of $100 to $1,000, plus payment of wages lost as a result of the retaliation and liquidated damages of 200% of the wages lost.

In addition, if an employee is discharged in retaliation for filing a wage payment complaint, the employer is required to offer reinstatement, unless prohibited by law, along with all lost wages as a result of that discharge, which likewise is a quite radical change in how the law operated previously.

Other Prominent Legal Changes

The law‘s coverage is quite broad and is not just limited to failure to pay wages. It applies to both the failure to pay compensation and benefits, which includes health benefits, pensions, medical treatment, disability benefits, and workers’ compensation. In addition to the expanded scope of what is covered under the law, an employer’s failure to provide sufficient employee records in response to an employee’s wage claim now results in a rebuttable presumption that the employee worked for the employer for the period of time asserted and for the amount of wages alleged in the employee’s claim.

Moreover, as part of its incredible expansive approach, the new law similarly imposes joint and several liability on both an employer and a labor contractor providing workers to the employer. This liability cannot be waived or contractually shifted from the employer to the labor contractor.

Finally, in what will likely be deemed a quite controversial aspect of the new law, violations and names of violating employers will be made public on a government website.  Employers will also be required to provide new hires and employees with a written copy of a statement of their rights under New Jersey’s wage-and-hour laws, and an explanation of how to file a claim or take other action in the event of an alleged violation, which is one more added responsibility that applies to orienting new employees to a company.

Next Steps for Employers

As the instant summary shows, the legal modifications made by this new law to the wage collection process are game changing and should concern all employers moving forward.  At a minimum, employers must start internally auditing its payroll practices to ensure that employees are being properly paid and are correctly classified to avoid possible overtime payment violations. Thus, in light of this new law, employers must be even more proactive in keeping in step with wage and hour compliance, and obtaining effective legal advice will help employers meet such requirements in this always changing New Jersey legal environment.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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New Jersey Restricts Pre-Hiring Consideration of Salary History Information

On July 25, 2019, New Jersey became the latest of a growing number of states that now prevent employers from requesting salary history information about applicants as part of the pre-hiring process.  The new law bars employers from screening a job applicant based upon an applicant’s salary history or requiring that the applicant’s salary history be disclosed or satisfy any minimal or maximum criteria.  As part of the law’s legislative history, several sponsors indicated that this law is designed to help enforce the mandates of the state’s Equal Pay Act that was passed a few years ago.

While employers may not request salary history information, salary information may still be considered if the applicant, without employer prompting or coercion, voluntarily provides such information to the employer.  An applicant’s refusal to voluntarily provide such information cannot be considered in the making of any employment decisions. Moreover, the law also allows employers to request that an applicant provide a written authorization to confirm salary history after an offer of employment that includes an explanation of the overall compensation package has been made to the applicant.

The law does not apply in the following situations: (1) to internal transfers or promotions within an employee’s current employer, or use by the employer of previous knowledge obtained as a consequence of prior employment with the employer; (2) to any actions taken by an employer pursuant to any federal law or regulation that expressly requires the disclosure or verification of salary history for employment purposes, or requires knowledge of salary history to determine an employee’s compensation; (3) to any attempt by an employer to obtain, or verify a job applicant’s disclosure of, non-salary related information when conducting a background check on the job applicant, provided that when requesting information for the background check, the employer shall specify that salary history information is not to be disclosed; and (4) to employer inquiries regarding an applicant’s previous experience with incentive and compensation plans and the terms and conditions of those plans, provided that the employer shall not seek or require the applicant to report information about the amount of earnings of the applicant in connection with those plans, and that the employer shall not make any inquiry regarding the applicant’s previous experience with incentive and commission plans unless the employment opening with the employer includes an incentive for compensation component as part of the total compensation program.

Furthermore, if an employer does business in other states besides New Jersey, an employer may include a question about salary history on a job application, but it must expressly indicate that if the applicant is seeking a position in New Jersey, the applicant need not answer the salary history inquiry.

Any employer who violates the law shall be liable for a civil penalty in an amount not to exceed $1000 for the First Violation, $5000 for the Second Violation, and $10,000 for each subsequent violation. The fine is collectible by the New Jersey Commissioner of Labor and Workforce Development in a summary proceeding pursuant to the New Jersey Penalty Enforcement Law.

Finally, while the new law precludes an employer from requesting salary information from an applicant, an employer is not prohibited from acquiring salary history information that is publicly available, but an employer cannot retain or consider that information when determining salary, benefits, or other compensation of the applicant, unless the applicant voluntarily, without employer prompting or coercion, provides the employer with salary history.

This new law does not go into effect until the first day of the sixth-month next following enactment. Accordingly, employers have until January 1, 2020 to bring its pre–hiring practices in line with these new requirements.  Thus, employers should begin today to revise employment applications, where salary history information is requested, and likewise start to train all persons involved in the pre-hiring process about the prohibition of asking for (and consideration of) salary history information as part of any hiring determinations.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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