Civil Lawsuits

New Jersey provides the opportunity for litigants to file a lawsuit in either Small Claims court or Special Civil Part of the Superior Court if those claims are under the jurisdictional limits of those courts. As of July 1, 2022, the jurisdictional limit for a civil matter to be brought in Small Claims court will be increased from $3,000 to $5,000. The jurisdictional limit for Special Civil Part will be increased from $15,000 to $20,000. To file a lawsuit in either of these courts, that means the money damages or the amount in dispute cannot exceed that jurisdictional limit.

Civil claims filed in either court cannot include a claim for professional malpractice, probate or a Family court or Tax court matter. However, they can include a claim for a return of all or part of a security deposit in dispute.

Any civil claims that exceed these jurisdictional limits would need to be filed in the Superior Court (either Law or Chancery divisions).

There are pros and cons in filing a civil lawsuit in either Small Claims or Special Civil Part. The primary advantage is the time it will take to reach a trial date. As an example, in my experience, depending on the county in which the lawsuit is filed, a Small Claims complaint could be assigned a trial date within about 30 days of its filing (barring COVID delays). A Special Civil Part complaint could be assigned a trial date within about 3-4 months of the filing of the lawsuit.

On the other hand, again, depending on the county, pre-COVID, a Superior Court civil lawsuit would typically be reached for trial within 1-2 years of the filing of the lawsuit. Post-COVID, it could be 3 or more years before a trial date is reached due to the trial backups caused by court shutdowns.

The main disadvantage, however, would be the lack of discovery permitted in Small Claims court and the limited discovery permitted in Special Civil Part. While questions called interrogatories can be served on a limited basis in a Special Civil Part case, there are no depositions permitted without a court order.

In summary, filing a lawsuit in Small Claims or Special Civil Part case, if within the jurisdictional limits of those courts, will result in a speedier resolution. However, litigants must be aware of the more limited informational exchange through the discovery process permitted in those courts. You may not find out your adversary’s defenses or evidence until you arrive in court on the day of trial.

Plaintiff Francine Latorraca fell while a customer at a McDonalds restaurant and suffered an injury.  She claims to have fallen as a result of a greasy food wrapper on the floor near the front register. The issue in Latorraca v. Aladyn, Inc., 2021 N.J. Super. Unpub. LEXIS 998 (App. Div. May 25, 2021) was whether McDonalds could be liable under the application of the mode of operation doctrine or under an alternative negligence theory.

On the day of the accident, the plaintiff had entered through the back entrance of the restaurant.  She had walked up to the front register to place her order.  After she ordered her food, but before leaving the counter area, a young female dropped a plastic cup.  As plaintiff bent down to pick up the cup, her right foot slipped and she fell.  When she looked at the floor near where she fell, plaintiff saw a wrapper which she described as “wrinkly” and “yellow with a brown… tint to it.”  Further, she stated that the wrapper “felt like a light grease as opposed to if you have a sandwich two hours ago and it gets coagulated grease, it’s a different feeling.  This one felt like it was fresh, like.”

The plaintiff saw nothing else on the floor where she fell, except for this wrapper.  There was no water or any substance of any kind on the floor.  She did not think the wrapper had been on the ground for a long time and thought that the person before her maybe had dropped it.

The McDonalds manager was deposed.  Although he was not an eyewitness to the fall, he testified that the area in question was cleaned “all the time,” and that there was an employee at the restaurant dedicated to cleaning the lobby. 

The defendant restaurant moved for a summary judgment, claiming that the plaintiff failed to present any issues of negligence or other basis to impose liability for her fall.  Plaintiff argued against the motion, stressing the dangerous and slippery condition of the floor where she fell.  The trial court granted the defendant’s motion and this appeal ensued.

Plaintiff argued two theories of defendant’s liability, both of which the trial court had rejected.  First, she contended that the defendant restaurant was responsible for the slippery condition of the floor by the store counter because of its “mode of operation.”  Second, she argued that even if the mode of operation theory failed, she was entitled to present her claims to the jury under ordinary principles of negligence.

The Appellate Division rejected the mode of operation as a doctrine applicable to the plaintiff’s fall.  For this doctrine to be applicable, the plaintiff would have to prove, among other elements, that the accident occurred in an area affected by the business’s self-service operation.  If the plaintiff was able to demonstrate that the mode of operation rule applied, then “an inference of negligence arises that shifts the burden to the defendant to produce evidence that it did all that a reasonably prudent business would do in a light of the risk of an injury that the self-service operation presented.” 

Here, the Appellate Division agreed with the trial court that the mode of operation doctrine did not apply. There was no evidence that the plaintiff’s fall was produced by any self-service feature of the defendant’s business.  Plaintiff did not attribute the slippery surface to a beverage that another customer might have obtained from a self-service dispenser and then spilled.  Rather, the plaintiff acknowledged that the cup she saw on the floor near the counter did not appear to have any spilled liquid.  Plaintiff attributed the condition of the floor to the “greasy food wrapper” that was on the floor near where she fell.

However, the Appellate Division pointed out that there was no evidence that the wrapper was on the floor because of any self-service activities.  The sandwiches were provided in wrapped condition to customers at the counter as they make payment.  The Court noted that there was “no evidence customers are encouraged to unwrap their sandwiches and eat them while they are standing near the counter.”  Hence, the Appellate Division ruled that the motion judge correctly determined that this lack of a self-service component defeated a mode of operation claim.

Additionally, the Appellate Division found that the plaintiff had no viable cause of action under ordinary negligence principles.  What was missing was plaintiff’s proof of actual or constructive notice of the alleged dangerous condition. 

Based upon the plaintiff’s own testimony, the grease on the wrapper she spotted on the floor was “fresh.”  Plaintiff presented no evidence that a store worker saw the discarded wrapper before plaintiff slipped.  Further, there was no evidence that the “fresh” greasy item had been on the floor long enough to have reasonably placed defendant on constructive notice of a hazard.  Finally, the Appellate Division noted the testimony of the manager “attesting to the store’s regular maintenance practices in endeavoring to keep the floor clear of debris is uncontroverted.”  Thus, the Appellate Division found that the summary judgment was justifiably granted and affirmed the trial court’s dismissal of the case.

The plaintiff, Frank Campbell was involved in an automobile accident with a vehicle operated by Joyce Roberts.  Plaintiff claimed that Roberts negligently operated her vehicle and that her negligence was a proximate cause of his accident and his injuries. Plaintiff filed an Underinsured Motorist claim with his insurance company, Allstate Insurance Co. as a result of the accident. In the case of Campbell v. Allstate Insurance Company, 2019 N.J. Super. LEXIS 77 (Law Div. March 28, 2019), in a published Law Division decision by Judge James Savio, the Court ruled upon whether a defense IME doctor, who listed six published medical journal articles in the references section in his report, was required to produce a copy of those articles. 

Plaintiff had contended that Allstate was obligated to compensate him because his damages exceeded the liability insurance policy limits applicable to the Roberts vehicle.  Plaintiff served Interrogatories and a Notice to Produce on the defendant Allstate.  Additionally, the defendant was obligated to answer the Form Interrogatories which contained a question requiring the defendant to produce the name and address of its expert witness.  However, the Form Interrogatories do not require that the named expert supply copies of any literature that the expert intends to rely upon at trial.  Nonetheless, Request No. 3 of the Notice to Produce served by plaintiff on defendant required the defendant to supply plaintiff with “copies of pertinent portions of any textbook, paper or authority upon which your expert relied in forming her/his conclusions and opinions.”  Allstate responded to that request by stating “none in defendant’s possession.” 

Subsequently, plaintiff was examined by Dr. Roy Friedenthal, an orthopedic surgeon, on behalf of defendant.  Following the examination, Dr. Friedenthal prepared a written report which contained his conclusions concerning causation and damages.  Allstate amended its Answers to Interrogatories to name Dr. Friedenthal as an expert witness who would testify at trial.  In a footnote in the last page of the report, under the word “references”, Dr. Friedenthal listed six published medical journal articles.  He identified the name of the author, name of the article and citation for each of the articles.  He did not specifically indicate in his report that he planned to refer to the articles during his testimony at trial.

Plaintiff then requested full copies of the materials referred to in Dr. Friedenthal’s report.  In response, defense counsel requested that Dr. Friedenthal provide him copies of the materials identified in the report. Dr. Friedenthal stated that he could not provide copies of the articles because the articles “are copyrighted materials which preclude him from reproducing” and sending copies of the articles to plaintiff’s counsel.  However, defense counsel did not supply the court with any authority supporting the assertion that supplying copies of the articles identified in Dr. Friedenthal’s report would violate any provision of the copyright law.

Next, plaintiff moved to suppress the defendant’s defenses and strike defendant’s Answer and Defenses without prejudice for failure to provide a response to the Notice to Produce.  In a Cross-Motion, the defendant moved for a Protective Order, providing that defendant would not be required to supply the requested materials.

Plaintiff’s counsel advised the Court that he was unsuccessful in his attempt to obtain the cited materials.  He conducted an internet search for copies of the articles and some were unavailable and the others only retrievable at a cost of upwards of $300 per article.  Hence, plaintiff’s counsel had not secured a copy of the articles. 

Judge Savio indicated in his opinion that Interrogatories requesting the name of articles, books, or treatises for use by an attorney in cross examination are proper subjects of discovery in non-medical negligence actions.  This mutual exchange of information affords both parties the opportunity to know before trial what treatises or other texts could be used in direct and cross-examination and avoid surprises.  The Court noted that statements from learned treatises may be used to impeach the credibility of defense and expert witnesses provided there is an acknowledgement that the texts are recognized and stated authorities on the subject.  Further, the Court noted that if the defendant did not identify the articles in its Answers to Interrogatories, the attempt to use them at trial pose the risk of unfair surprise.

The Court found that the plaintiff was entitled to review both the defense experts report, as well as the articles cited by the defense expert to be able to properly prepare for cross-examination of the defendant’s expert at trial.  Since defendant answered the discovery requests, the Court denied the plaintiff’s application to suppress the defendant’s answers and defenses.

Nevertheless, the defendant failed to respond to Request No. 3 of the Notice to Produce.  The Court interpreted the Court Rule (R. 4:17-4(e)) to include an obligation on the part of a party naming an expert witness who identifies specific medical literature that the expert apparently intends to use to support an opinion to supply a copy of the article cited by the expert in the report to the adversary’s attorney.  (Pursuant to that rule, a report from an expert must contain a complete statement of that person’s opinions and the basis therefore and the facts and data considered informing the opinions)    

Judge Savio found that the physician may not rely upon a legal opinion about the effect of some uncited copyright laws to refuse to produce literature cited by the physician in support for his opinions.  The Court recognized that Dr. Friedenthal is competent to express opinions in the field of orthopedic surgery and completely discounted his alleged opinions in the field of copyright law.  Accordingly, Judge Savio ruled that if the defendant failed to produce copies of the articles within twenty (20) days, Dr. Friedenthal would be precluded from referring to the articles at the time of trial.

Plaintiff Mariusz Kuzian claimed to have suffered personal injuries in a motor vehicle accident caused by the defendant Steven Tomaszewski. During the trial, his lawyer questioned him as to whether his vehicle was totaled in the accident. The issue in Kuzian v. Tomaszewski, 2018 N.J. Super. LEXIS 183 (Law Div. July 12, 2018) was whether plaintiff would be permitted to testify about whether his vehicle was totaled in an attempt to establish the extent of the collision and its resulting impact on plaintiff’s injuries.

At trial, plaintiff’s counsel asked the plaintiff whether his vehicle was totaled in the accident. Defense counsel objected to this question, arguing that it was improper and, without more information, it could mislead the jury as to the actual extent of the damage to the vehicle. Plaintiff’s counsel contended that whether the vehicle was totaled was relevant to the extent of the collision and its corresponding impact on plaintiff’s injuries.

The trial judge considered whether this evidence would be relevant to the jury’s consideration of plaintiff’s alleged injuries from the accident. The court noted that photographs of the vehicle can be entered into evidence and that the jury is permitted to consider the photographs in evaluating the seriousness of the accident and its impact on plaintiff’s injuries.

But the judge found that the use of photographs was distinguishable from advising the jury that the vehicle was totaled. This testimony could be misleading to the jury. The judge pointed out that the term “totaled” has two very different meanings. It could mean that the vehicle had been completely demolished in the accident. Or, it could mean that the vehicle was considered a total loss based upon a variety of factors that an insurance company would use to determine if its cost of repair exceeds the actual cash value of the vehicle. Further, the criteria used by insurance companies to determine if the vehicle is a total loss varies by insurance company and may be controlled by state statute or regulation.

Hence, due to the different meanings of the term “totaled,” the judge found that it would be improper to allow either party to raise this issue. Without more information, this testimony does not render the desired inference, i.e., that plaintiff was injured because of the severity of the accident.                

However, photographs that depict the damage of the vehicle were properly introduced into evidence. But, the court ruled that any attempt to ask a witness whether the vehicle was totaled was irrelevant and barred at trial.

Plaintiff Haroon Rashid claimed to have suffered an injury while working as a jitney driver when his vehicle was struck on the passenger side by defendant’s vehicle shortly after plaintiff picked up passengers from a local casino. One of the passengers was thrown from her seat, injured, and taken to the hospital by ambulance. In a Law Division case, recently approved for publication, Rashid v. Reed, 2018 N.J. Super. LEXIS 184 (Law Div. July 31, 2018), the issue arose as to whether the plaintiff’s counsel can question his client at trial as to whether a passenger in plaintiff’s vehicle suffered an injury to help establish that the plaintiff was injured in the accident.

Liability was stipulated in this case and, hence, the only issue at trial was damages. The plaintiff was subject to the lawsuit threshold and the jury needed to decide whether he had suffered a permanent injury so as to satisfy this threshold and obtain a damages award for his claimed pain and suffering.

During the trial, plaintiff’s counsel asked the plaintiff what happened to one of the passengers in the jitney at the time of the impact and defense counsel objected to this question. The lawyers spoke to the judge at sidebar and the plaintiff’s counsel represented to the judge that the plaintiff was prepared to testify that one of the passengers on the jitney was thrown from her seat, injured, and went to the hospital by ambulance.

Defense counsel objected to this testimony, arguing that it was irrelevant to the plaintiff’s injury whether one of the plaintiff’s passengers was thrown from the jitney and suffered an injury. Plaintiff’s counsel, however, argued that it would be relevant to the severity of the impact but also that, if the passenger was injured, it was likely the plaintiff was injured.

The trial court judge noted that this issue comes up frequently in automobile negligence cases. However, typically, it is defense counsel who tries to introduce evidence that plaintiff could not have been seriously injured because other passengers were not injured. In this case, plaintiff’s counsel wanted to make the flip argument to show that if another passenger was injured, it was more likely than not that the plaintiff was injured.

The trial court judge ruled that whether a passenger was thrown from her seat from the jitney would be relevant to show the seriousness of the impact. It would show the significance of the accident and demonstrate how hard the defendant’s vehicle struck the jitney. Thus, the court permitted the plaintiff to testify about the passenger on the jitney being thrown from her seat as evidence regarding the extent of the impact. However, the court found it was improper for the plaintiff to testify about the passenger being injured due to the impact.

The court noted that only evidence that is relevant is admissible at trial. Whether another individual in the accident suffered an injury would “not necessarily have a tendency to prove (or disprove) whether plaintiff sustained a permanent injury in the subject accident.”  Hence, the trial court judge found that “whether another individual was injured in the same accident as plaintiff is not relevant as to whether plaintiff sustained a permanent injury.”

The judge pointed out that one could be in a catastrophic accident in which someone dies and someone else walks away with no injury and, further, noted that there are many variables that could factor in why a person suffers an injury in an automobile accident, such as being frail. Or, depending on their positioning, one individual could suffer the brunt of the impact.

Thus, the trial court ruled that neither plaintiff, nor the defense would be permitted to introduce into evidence whether a passenger was or was not injured for the purposes of proving or disproving the plaintiff’s alleged injuries. However, the court did not foreclose the admission of testimony regarding another passenger’s injuries in certain limited circumstances. (The court did not elaborate on what those circumstances might be.) But, regardless, this testimony would remain inadmissible as to whether the plaintiff suffered a permanent injury.

Plaintiff Ana Lidia Alpizar-Fallas sued Progressive Garden State Insurance Company (“Progressive”) and one of its agents, claiming that the Progressive agent violated the Consumer Fraud Act due to deceptive business practices. Alpizar-Fallas was insured by Progressive, as was the driver of the other vehicle. She claimed to have suffered a personal injury in a car accident. She claims that, the day after the accident, a Progressive agent had her sign a release of her personal injury claim, under the guise of facilitating the payment of damages for her property damages for her vehicle. In Alpizar-Fallas v. Favero, 908 F.3d 910 (3d Cir. 2018), one of the issues was whether plaintiff was able to make a claim under the Consumer Fraud Act for the allegedly deceptive practices of Progressive with respect to her personal injury claim.

Alpizar-Fallas sued the driver of the other vehicle, Frank Favero, for the personal injuries she claimed to have suffered from the accident. Thereafter, she amended her complaint to include a class action against Progressive and its agent, Brian Barbosa (“Barbosa”), based upon their allegedly deceptive business practices in having her sign a release of her personal injury claims. She submitted this claim based upon several causes of action, including the New Jersey Consumer Fraud Act.

Progressive and Barbosa filed a motion to dismiss her class action for failure to state a claim.  In support of their motion to dismiss the Consumer Fraud Act (“CFA”), they argued that the CFA does not apply “to schemes to defraud policyholders of their benefits and personal injury claims.”  The District Court agreed and dismissed the CFA claim, holding that the CFA applied only to the sale or marketing of insurance policies. It followed a New Jersey state court decision, Myska v. NJM, 440 N.J. Super. 458 (App. Div. 2015), in which the District Court quoted Myska that the CFA does not apply to “an insurance company’s refusal to pay benefits.”

This matter was appealed to the Court of Appeals for the Third Circuit, which issued a precedential decision in this case. The Third Circuit found that Myska did not apply to these facts. Here, the plaintiff was not claiming that she filed an insurance claim and was denied benefits. Rather, the Court found that her allegations in her complaint fit squarely within the language of the CFA.

She alleged that: (1) she relied on the express false representations of the agent that the documents she needed to sign were merely to facilitate payment for damages to her motor vehicle; (2) the agent (Barbosa) made false representations to her about the documents she signed; (3) the document actually prepared and signed was a broadly written comprehensive release of any and all claims; (4) she reasonably relied on the materially false representations when she signed the documents; (5) Defendants and others at the insurance company engaged in the same pattern of unlawful conduct as to other similarly situated individuals; and (6) as a result of “this deceptive and unconscionable practice, present and former insurance policy holders of Defendant, Progressive[,] have continued to be stripped of their rights to pursue claims against other policy holders of Progressive Garden State Insurance Company due to the [Appellees’] false and misleading representations…..”

The Third Circuit found that these facts, when taken together, did state a claim for fraud in connection with the subsequent performance of a  consumer contract, which was a situation “explicitly” covered by the language of the CFA. Hence, the Court predicted “that the New Jersey Supreme Court would apply the CFA to Alpizar-Fallas’s claim, where an insurance company is alleged to have fraudulently performed a contract with a consumer.” Accordingly, the Third Circuit concluded that the plaintiff’s complaint did state a viable claim under the CFA and reversed the District Court’s decision as to the dismissal of this claim.

Plaintiff Ann Giesguth was in a motor vehicle accident with a car driven by defendant Anthony Costanza. A week after the accident, she was found unresponsive and was taken to the hospital.  She was diagnosed with a pulmonary embolism. The hospital notes indicated that she “apparently suffered a closed head injury, TBI (traumatic brain injury) and may be suffering from post-concussive, intermittent delirium with disorientation.” The issue in Giesguth v. Costanza, 2019 N.J. Super. Unpub. LEXIS 41 (App. Div. Jan. 8, 2019), was whether the plaintiff had satisfied the permanency requirement of the verbal threshold based upon the opinion of her family doctor that she suffered a “mental decline.”

After the motor vehicle accident, the plaintiff did not seek medical attention. It was not until one week later, when she was found unresponsive at her home, that she was taken to AtlantiCare Medical Center that she was diagnosed with a pulmonary embolism. The hospital’s progress notes indicated that she apparently suffered from a TBI. After being discharged from the hospital, she went to a rehabilitation facility where it was recommended that she undergo a neuropsychological evaluation to determine if the TBI was contributing to her “her loss of memory and behavioral aberrancies.” However, no such evaluation was ever performed.

Before trial, the defendant moved for summary judgment, contending that the plaintiff had failed to meet the limitation on lawsuit threshold (the “verbal threshold”). Because the plaintiff had selected the verbal threshold option in her automobile insurance policy, before she could sue for her noneconomic (“pain and suffering”) injuries suffered in this car accident, she was required to meet one of the listed categories of injuries, as set forth in the verbal threshold statute, N.J.S.A. 39:6A-8(a).

To satisfy the verbal threshold, a plaintiff must present objective clinical evidence that the injury meets one of the categories of injuries listed in the statute. The category of “permanent injury” is defined as follows: “An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.”  A physician must provide a certification that the person suffered from a “statutorily enumerated injury” and must base his or her opinion upon “credible, objective medical evidence.”

The plaintiff contended that she had suffered a permanent brain injury due to her car accident and, hence, met the verbal threshold permanency requirement. Her attorney contended that “her mental acuity tests showed a mild cognitive impairment and mental decline…”

However, the trial court judge agreed with the defense that she had not satisfied the verbal threshold requirement and dismissed the plaintiff’s complaint. The judge pointed out that there was not “objective clinical evidence” of a permanent injury. He noted that there were no medical records specifically establishing a TBI and none of the plaintiff’s specialists opined that she suffered a permanent injury. The plaintiff relied solely on the certification of her family doctor who had treated her for 10 years and examined her shortly before the accident.

The family doctor opined generally that “plaintiff suffered a severe decline in mental status; that in his professional opinion the decline in mental status was caused by the car accident; and that this injury has not healed to function normally and will not heal to function normally with further medical treatment.” The trial court judge found that this opinion was a net opinion and was insufficient to satisfy the verbal threshold.

The Appellate Division reiterated that the physician opining on “the permanency of a plaintiff’s injury must make such determination through the use of objective medical evidence.” The Court noted that the plaintiff’s family doctor’s report was based only upon his own general observations of plaintiff’s behavior and he did not perform any objective testing on her. In fact, there were no medical tests performed on her and no neurological examination was conducted. Her family doctor’s permanency certification “simply states that the accident caused plaintiff’s mental decline.” There were no medical records to establish that she had suffered a TBI as well.

The Court pointed out that the plaintiff presented no evidence of a causal connection through “objective, critical medical evidence that her apparent mental decline resulted from the accident.” The Appellate Division found that the trial court judge aptly found that her family doctor’s opinion was a “net opinion because no records or medical tests substantiated his bare conclusions.”  Because his opinion was based upon speculation, it was, therefore, not reliable. Accordingly, the Court concluded that the plaintiff did not satisfy the required showing of a permanent injury and affirmed the trial court’s decision, granting summary judgment to the defendant.