Civil Lawsuits

Plaintiff Robert Calderone (“Calderone”) claimed to have been injured as a result of an automobile accident with the defendant Michael DeFeo II (“DeFeo”). After Calderone sued DeFeo for his injuries, the defendant filed a motion for summary judgment, requesting a dismissal on the basis that plaintiff’s injuries did not satisfy the verbal threshold (also known as “the lawsuit threshold”). The issue presented to the trial court in Calderone v. DeFeo, 2018 N.J. Super. Unpub. LEXIS 2192 (Law Div. Sept. 28, 2018) was whether plaintiff was subject to the verbal threshold of his domestic partner with whom he had resided for the past 38 years.

Plaintiff filed a lawsuit after being rear-ended by DeFeo’s vehicle. He claimed that he was not bound by the lawsuit limitation set forth in N.J.S.A. 39:6A-8a. If not, he would not be required to show that he suffered a serious bodily injury, as defined by this statute (the “verbal threshold” or “limitation on lawsuit” option.) Plaintiff argued that he was not subject to the verbal threshold of his domestic partner, Joseph Amorino (“Amorino”), despite living together for the past 38 years and being listed on Amorino’s insurance policy as a member of the household. Calderone claimed that because they had not entered into a civil marriage, he did not qualify as either Amorino’s “spouse” or “immediate family member residing with the insured.” Thus, he argued that he should be entitled to pursue his personal injury claim against the defendant without being subject to the lawsuit threshold.

The trial judge rejected these arguments. The court stated that the terms of the insurance policy control this issue. He noted that Amorino’s Plymouth Rock insurance policy included within the definition of a family member “a lawfully recognized civil union under New Jersey law or adoption and resides in your household.” Further, the policy defines a named insured to include a spouse or “a Domestic partner who is registered as such under any states domestic partner or civil union law.”

Also, Calderone is listed on the Declarations page as a “Licensed Operator Resident in Your Household.” Calderone did not have his own insurance. He was apparently added onto Amorino’s policy to provide coverage for him.  The trial judge found that it was objectively reasonable to infer that Amorino’s addition of Calderone as a member of his household was because he intended to cover him as well.

The trial judge found that the interpretation of an insurance policy was a determination to be made by the court and the Declarations page of a policy was to be given significant weight. The court judge found that the terms of the policy included both domestic partners, as well as spouses, within the definition of an insured. Because the policy specifically included domestic partners as insureds, the plaintiff did not need to be married to Amorino to be covered by his policy. Therefore, the court concluded that Calderone was included in Amorino’s insurance policy as a domestic partner and was bound by the lawsuit limitation as well.

Plaintiff Maryann Zagloba injured her back when she slipped on laundry detergent spilled in the mailroom of her apartment building. She sued the owner of the building, Vista Gardens Associates LLC (“Vista Gardens”), for her injuries. She argued that the mode of operation doctrine should apply and, as a result, that she did not have to prove either actual or constructive notice of the dangerous condition. In Zagloba v. Vista Gardens Associates, LLC, 2018 N.J. Super. Unpub. LEXIS 1789 (App. Div. July 26, 2018), the issue on appeal was the applicability of the mode of operation doctrine to this setting.

Plaintiff was a tenant in Vista Garden’s apartment building. One Sunday, she was in the mailroom, carrying her laundry basket on her way to do her laundry, when she slipped on detergent spilled on the floor near the laundry room door. The two rooms were connected and the tenants entered the laundry room through the mailroom. While the building provided coin operated washers and dryers, the tenants had to provide their own laundry detergent.

Under New Jersey law, the landlord of a multi-family dwelling has the duty to “maintain all parts of the structure in good repair.” In particular, Vista Gardens would have the affirmative duty “to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating dangerous conditions that would render the premises unsafe.” To pursue a negligence claim against Vista Gardens, the plaintiff must demonstrate “that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”

If the mode of operation doctrine applied, the plaintiff would be relieved of the burden of having to prove notice.  This doctrine would apply when “a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.” If the doctrine applied, the burden would then shift to the defendant to “come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.”

The trial court found this doctrine inapplicable to the circumstances of this accident. The trial court judge also found that the plaintiff failed to prove prior notice of the condition. Thus, the court granted summary judgment to the defendant, dismissing the complaint. The plaintiff appealed that dismissal, claiming that the trial court judge erred in not applying the mode of operation doctrine.

The Appellate Division rejected that argument. The Court found that this doctrine has never been expanded beyond the self-service setting, “in which customers independently handle merchandise without the assistance of employees or may come into direct contact with product displays, shelving, packaging, and other aspects of the facility that may present a risk.” Previously, the Court had refused to apply the doctrine simply because the risk of injury was inherent in the nature of the defendant’s operation.

Here, while it was foreseeable that tenants would bring detergent into the mailroom and into the laundry room, tenants could not purchase detergent in the building. Hence, there was no self-service aspect of the incident that caused the plaintiff’s accident. Thus, the Appellate Division agreed with the trial court judge that, under these circumstances, the mode of operation doctrine did not apply. The Court affirmed the dismissal of the lawsuit.

In a damages only trial for an uninsured motorist claim, the jury awarded the plaintiff $1.5 million in compensatory damages. The judge molded the verdict to the insurance company’s $500,000 policy limit. Thereafter, in Chetney v. New Jersey Manufacturers Re-Insurance Co., 2018 N.J. Super. Unpub. LEXIS 1718 (App. Div. July 17, 2018), the UM carrier, New Jersey Manufacturers Re-Insurance Company (“NJMRe”) filed an appeal. The Appellate Division rejected all but one argument concerning whether the plaintiff and his wife could be permitted to testify that he suffered from erectile dysfunction after the accident without offering expert opinion.

The plaintiff contended that a 1998 accident was the sole cause of his condition. He alleged that from the 1998 accident, which happened when he was working as a paramedic and his vehicle was struck by an uninsured driver, he had suffered a permanent injury to his lumbosacral spine. He also had 3 prior motor vehicle accidents, one prior slip and fall, and four subsequent non-motor vehicle accidents but alleged that the 1998 accident was the principal cause of his permanent injury. Despite spinal fusion surgery, he suffered from chronic pain. His pain was controlled with morphine and an implanted device to redirect nerve signals.

He and his wife testified about the impact of the 1998 accident on various recreational and family activities. His wife was pregnant at the time of the accident but miscarried. She was unable to conceive a third child or engage in intimacy with the plaintiff after his 1998 accident.

Defendant NJM had moved to bar any testimony concerning the erectile dysfunction because it was not adequately disclosed in discovery and expert testimony was required to establish that plaintiff suffered from the condition and that the 1998 collision caused it. NJM sought to redact part of plaintiff’s orthopedist’s de bene esse deposition, in which he testified that the nerve impingement in the lumbosacral spine could affect plaintiff’s urologic function.

The trial court granted the motion as to the expert’s testimony but permitted the plaintiff and his wife to testify about how the accident affected his life. He found that expert testimony was not necessary to establish what plaintiff had experienced.

The Appellate Division agreed that the plaintiff and his wife could testify about the symptoms he was experiencing. However, the Court disagreed with the trial court on the necessity of expert testimony. The Appellate Division ruled that expert testimony was necessary to establish causation. An expert was needed to identify the medical cause. Although plaintiff and his wife testified that he had no difficulty before the 1998 accident, the Court held that “coincidence is not causation.”

Hence, the Court ordered a new trial in which plaintiff would be obliged to present expert testimony to establish the causal connection between his spinal injury to the 1998 accident and his erectile dysfunction to that injury.  The Appellate Division found that it was up to the trial court to permit the parties to reopen discovery to permit the plaintiff to amend prior disclosures to present the required medical expert opinion and the defendant to obtain an independent medical examination.

Plaintiff Enrico Andricola (“Andricola”) slipped and fell in the cafeteria of Defendant Kennedy Hospital (“Kennedy”). He injured his ankle and sued Kennedy. In Andricola v. Kennedy Univ. Hosp. Inc., 2018 N.J. Super. Unpub. LEXIS 1146 (App. Div. May 16, 2018), the issue was whether the plaintiff was entitled to a mode of operation charge for a fall in a self-service restaurant when he could not identify the substance that caused him to fall.

Andricola would visit Kennedy’s cafeteria for lunch a couple of times a week. On the day of the accident, he slipped on some sort of slippery substance while walking to a table after paying for his food. There was no puddle and he thought the substance more likely grease or wax than a liquid.

Defendant filed for summary judgment, arguing that plaintiff failed to show that Kennedy had actual or constructive notice of the substance on the floor. Defendant also contended that plaintiff was unable to rely on the mode of operation rule because he was unable to offer “any specifics about the substance on which he slipped” which “left him unable to show it ‘was related to a product sold or procured in the cafeteria.’” Plaintiff argued that he was entitled to a mode of operation charge because it was ”’clearly foreseeable and known that customers of [he Hospital’s] cafeteria would bring food and/or drink into the area where Plaintiff fell, as they had to pay Defendant for said food and drink in that very area.’”

The trial judge granted summary judgment, finding that plaintiff could not say what he slipped on and that plaintiff’s evidence was too speculative to permit a mode of operation charge.

On appeal, the Court noted that under the Supreme Court Prioleau case, not every slip in a self-service restaurant merits a mode of operation charge.  To be entitled to the rebuttable inference of negligence, a plaintiff must show a nexus between the self-service operation and the risk of injury in the area where the accident occurred.

The Appellate Division found that, although plaintiff slipped in an area that might be affected by the cafeteria’s self-service operation, between the cashier and the tables, “his inability to do more than guess at the substance he slipped on prevented him from establishing factual nexus between that operation and the dangerous condition.” Plaintiff was unable to establish that he fell on either a wax build up or some type of grease. The Court pointed out that a wax buildup could just as easily occur in a full service set up. Hence, plaintiff was unable to prove that the dangerous condition bore any relationship the defendant’s self-service method of business. Thus, the Appellate Division agreed with the trial court that his proofs were too speculative to permit a mode of operation charge.

Plaintiff Aaron Adena was involved in a motor vehicle accident with defendant Joseph Cupoli in which he suffered no injuries but his vehicle sustained extensive damage. Plaintiff’s insurance carrier, MetLife Auto & Home (MetLife) declared plaintiff’s vehicle a total loss and paid him for its actual cash value plus the cost of a rental car. In Adena v. Cupoli, 2017 N.J. Super. Unpub. LEXIS 1006 (App. Div. April 25, 2017), the plaintiff contended that the defendant should pay him for the additional costs for him to purchase a new vehicle.

MetLife paid the plaintiff $11,277.21 for the cash value of his vehicle plus $270 for fees incurred in renting a substitute vehicle. Plaintiff incurred no out of pocket expenses for towing or storage.

MetLife sent a subrogation demand to defendant’s insurance carrier, demanding reimbursement for the monies it paid to plaintiff. The defendant’s carrier paid MetLife in full.

However, plaintiff filed a complaint in Special Civil Part for $4,624.08, consisting of $259.58 for car rental fees, $2,430 for the purchase of a new vehicle, $230 for the registration and license plates for the new vehicle, $197.90 for floor mats for the new vehicle, and $1,560 to pay off the balance of his car loan for the damaged vehicle.

Defendant filed a motion for summary judgment, arguing that the plaintiff was paid in full and was entitled to no additional monies. The trial court agreed and granted the motion.

Upon appeal, the Appellate Division noted that “the measure of damages for the destruction of an automobile is the market value at the time of the loss.” A plaintiff would be entitled to recover reasonable out of pocket expenses for towing, storage, and rental for a substitute vehicle. However, the Court noted that the plaintiff already received the market value for his destroyed vehicle plus the rental cost of a substitute vehicle. Hence, the plaintiff’s property damage claim was paid in full and he was not entitled to any additional expenses. Thus, it affirmed the trial court’s decision, dismissing the complaint.

While it is well settled that the Workers’ Compensation Act bars employees from recovering in a civil suit against their employers for injuries sustained on the job, it is not as well known that a second employer, a “special employer,” may also find protection against suits from their “special employees” through the application of the Act. Based upon N.J.S.A. 34:15-8, workers’ compensation is the exclusive remedy for employees injured on the job (also known as “the exclusive remedy defense”).

Case law known as the “Manpower cases,” for the Manpower staffing agency, has established a test to determine whether the employee qualifies as a “special employee.” This five-part test looks at 1) whether there was an express or implied contract between the employee and special employer, 2) whether the work the employee did was essentially that of the special employer, 3) whether the special employer had the right to control the employee’s work, 4) who paid the employee’s wages, and 5) who had the right to hire and fire the employee. To establish a special employment relationship, a defendant need not make a comprehensive showing that all prongs are satisfied and none of the prongs alone are dispositive.

Nevertheless, the first prong, establishing an express or implied contract between the employee and special employer is critical in establishing the special employment relationship. Consent is found, however, if there is proof that the employee knew he would be hired out to the special employer and accepted that employer just as he accepted the general employer. Second, as is often the case in a temporary relationship, the work the employee performs on a daily basis is that of the special employer.

Third, and often considered the most significant factor, the right to control the employee’s work must be held by the special employer. It is not the actual exercise of control over the employee’s work itself, because often a temporary employee is skilled in the work he or she performs, it is the right to control that work. Thus, showing that, for instance, the special employer provided and supervised the employee assignments, permitted the employee to take sick leave, or supplied tools to the employee, are all indicative of the right to control the employee’s work.

Fourth, though the temporary employee will often be paid by his general employer, establishing that those wages were paid by the special employer indirectly is sufficient to satisfy this prong. Thus, for instance, if the employee is paid a flat wage by a staffing agency (the general employer), but the staffing agency invoices the special employer that flat wage plus a mark-up which includes the staffing agency’s profit margin, overhead and benefits for the employee (often including workers’ compensation insurance), that indirect payment by the special employer of the employee’s wages is sufficient to pass the fourth prong of the test.

Finally, the power to hire and fire an employee may be retained by the special employer directly, by advising the employee of his status, or indirectly, by advising the general employer the desire to retain the employee or that his or her services are no longer needed by the special employer.

Circumstances in which the special employer defense arises are often on behalf of a business seeking to be granted special employer status to protect itself against a civil lawsuit by a temporary staffing employee injured while working on its premises. New Jersey has consistently held that a special employment relationship exists between an employee working on behalf of a temporary staffing agency and the special employer for whom he is actually performing services, thereby barring any claim that employee has against the special employer. Recently, our office handled a case with such facts and was successful in obtaining a dismissal of the lawsuit, utilizing the special employer defense.