Court Rulings

Plaintiff Christopher Casucci was rear ended by the defendants’ commercial vehicle driven by defendant Kevin Valan and owned by Marascio Brothers Electric. The collision was a minor impact but plaintiff claimed to have suffered neck pain, headaches and tingling in his hands as a result of the accident.  The issue in Casucci v. Valan, 2022 N.J. Super. Unpub. LEXIS 1833 (App. Div. Oct. 5, 2022), was whether the jury’s verdict of zero damages should be upheld in light of the defendants’ stipulation to liability before trial.

At the time of the accident, plaintiff was wearing a seat belt and his body did not strike any part of the car.  He admitted that the impact was minor.  At the scene, he did not request an ambulance or any treatment.  He began seeing a chiropractor about one month later, who he had previously seen for low back pain.  He treated for three months and reported improvement.   He saw an orthopedist three times over a one year period and he had an MRI.  The orthopedist noted that the plaintiff’s cervical range of motion lacked five degrees but was otherwise “normal.”

Before the trial, the defendants admitted liability for causing the accident and stipulated that the only issue before the jury was whether or not the plaintiff was entitled to damages.  Both parties presented expert testimony concerning plaintiff’s injuries suffered in the accident.  While the plaintiff’s expert opined that the plaintiff injured his neck and suffered a disc herniation, on cross examination, he conceded that the plaintiff suffered from pre-existing arthritis which may have caused the herniation.  He could find no objective evidence of the tingling sensation that the plaintiff complained of in his hands for objective testing.  On the flip side, the defendants’ expert opined that the plaintiff suffered a soft tissue sprain.  He was also unable to find objective evidence of the tingling.  After he reviewed the MRI, he opined that the disc herniation was the result of the plaintiff’s longstanding degenerative disease and there was no evidence of a permanent injury caused by the accident.

At trial, plaintiff requested that the trial court judge grant a directed verdict on proximate cause.  He argued that both doctors testified that there are injuries in this case and that the proposed verdict sheet asked the jury only the quantum of damages, not proximate cause.  Plaintiff argued that the jury could not award zero damages because all of the evidence clearly demonstrated that there was an injury.

The defendants, however, argued that the jury could make credibility determinations of the witnesses and reject all the testimony and determine that there was no compensable injury.  They argued that the jury could conclude that there was an injury from the accident but it was not worth any amount of compensation. 

The trial court judge denied the request for a directed verdict.  He noted that, although defendants had stipulated to liability, their expert’s testimony was not dispositive of whether the plaintiff had suffered an injury.  The defense expert saw the plaintiff two years after the accident and his opinion was that “I think he has suffered a soft tissue strain of his cervical spine.”   

Upon appeal, the Appellate Division noted that given these “qualified statements, the trial court correctly found the jury was free to reject all or some of his testimony.” The Court found that proximate cause is ordinarily a fact issue to be resolved by a jury.  Further, it noted that there was sufficient evidence in the record to submit the question of whether plaintiff’s current physical condition was proximately caused by the accident.  Thus, the Court found that the trial court properly denied the motion for a directed verdict, allowing the issue to go to the jury.

The Appellate Division also noted that the defendants’ stipulation as to liability did not include a stipulation as to proximate cause or damages.  Further, the Court stated that “[a] jury is always at liberty to find that there are no compensable damages sustained as a result of the accident, even if both experts admit an injury was sustained.”  The Appellate Division found that a jury did have “substantial, credible evidence to determine plaintiff did not suffer compensable injury.”  The jury could reasonably determine that plaintiff suffered a mild injury that had resolved itself based upon the evidence presented. 

Further, it held that “a jury has no obligation to award positive damages where it has determined a plaintiff’s injuries, although they may never vanish, are not sufficiently pronounced to warrant financial recovery.” The Court stated that the law does not require a remedy for a de minimis harm.

In reviewing the evidence, the Appellate Division found that the jury’s award was reasonable.  It noted that there was a minimal impact based upon the dash cam video, the plaintiff was able to drive away and did not seek treatment for nearly a month, he had limited treatment after the accident, he had previous treatments with a chiropractor for back pain, both experts were unable to point to any objective evidence of a self-reported symptom, defendant’s expert opined that plaintiff’s injuries were caused by his degenerative disease and that plaintiff did not suffer permanent injury as a result of the accident. 

Thus, the Appellate Division ruled that the jury did have “an ample reasonable basis” to find that the plaintiff did not suffer a compensable injury due to the accident.  Thus, the Court found that the trial judge properly denied plaintiff’s motion for a directed verdict on proximate cause and properly submitted the issue to the jury for the jury to decide if plaintiff’s injuries merited compensation. 

Plaintiff’s deceased husband Bernard Waddell contracted COVID-19 in March 2020 while he was working as a Corrections Officer at the Hudson County Correctional Center.  He died from viral pneumonia secondary to COVID-19 on April 1, 2020.  Plaintiff, Sheliah Waddell, Bernard’s wife filed a Notice of Tort Claim in November 2020 and thereafter filed a motion for leave to file a late notice in March 2021.  The issue in Waddell v. County of Hudson, 2022 N.J. Super. Unpub. LEXIS 1320 (App. Div. July 21, 2022) was whether the plaintiff had presented extraordinary circumstances to warrant the late filing of a Tort Claim Notice.

Under the Tort Claims Act, N.J.S.A. 59:8-8, a plaintiff is required to file a Notice of Tort Claim upon a public entity not later than the ninetieth day after accrual of the cause of action.  The failure to serve such a notice of claim on a timely basis results in a bar against the claim and recovery.  Under these facts, the plaintiff’s cause of action accrued on April 1, 2020, the date of Bernard’s death.  It was undisputed that the Tort Claims Notice was not filed until well after the 90-day period.

The Tort Claims Act, however, does afford relief pursuant to N.J.S.A. 59:8-9, which allows a plaintiff to file a motion for leave to file a late notice within one year after the accrual of the claim.  The trial court may grant the motion if there are “sufficient reasons constituting extraordinary circumstances for the claimant’s failure to timely file” the Tort Claim Notice within the statutory mandate.  Also, the plaintiff must be able to show that the public entity was not substantially prejudiced thereby.  The trial court must undertake a fact sensitive analysis on a case by case basis to determine whether the plaintiff has presented extraordinary circumstances to justify the leave to file a late notice.

Case law has determined that the “extraordinary circumstances” standard for a late filing of a claim notice is a demanding one.  The court must look at the severity of the medical condition and the consequential impact on the claimant’s ability to seek redress and pursue a claim.

Here, the decedent’s wife, Sheliah, certified that her son was sick from COVID-19 from mid-April until the end of May 2020.  Further, she was grieving over the death of her husband during that time period and did not consider that her husband’s death may have been due to the fault of another until some months later.  She did not retain counsel to represent her in this action until October 2020.

However, the County had opened a workers’ compensation claim for Bernard on April 2, 2020.  The third-party administrator of Hudson County’s workers’ compensation program had a communications with the plaintiff in July, advising her that Bernard’s time card revealed he was exposed to coworkers and inmates who testified positive for COVID-19.  Further, Sheliah received reimbursement for funeral expenses and dependency benefits.  Also, the County Finance Department worked with Sheliah in May 2020 to assist her in obtaining several types of benefits available to the Estate.

The trial court determined that the plaintiff had shown sufficient reasons for her failure to timely file the Notice of Tort Claim.  The trial court considered the ongoing health crisis, Bernard’s death, and the illness of plaintiff’s son to be sufficient reasons for the late filing.

The Appellate Division disagreed.  The Appellate Division found that the facts did not present a situation so “severe, debilitating or uncommon” to prevent Sheliah from contacting an attorney and pursuing a claim.  The Court noted that Sheliah was “not incapacitated, confined to a hospital, or under a mental impairment as seen in other instances.”  Further, although she had certified that she had been concentrating on her ill son, she did not state that he was hospitalized or gravely ill, and, in fact, he recovered from his illness in May.

Further, immediately following Bernard’s death, Sheliah had communications with County employees regarding potential benefits relating to her husband’s death.  She was aware that he was exposed to COVID-19 while working for the County and that he died of complications from the disease.  While she may not have been aware that the defendant County could have any legal liability for Bernard’s death, the Court pointed out that the New Jersey Supreme Court has rejected knowledge of fault as an excuse for a late Tort Claim Notice filing.

The Appellate Division noted that, while it was sympathetic to Sheliah’s loss and the “unprecedented impact” of COVID-19, the circumstances did not meet the required high threshold to bring a claim under the Tort Claims Act.  Sheliah’s conduct in the 90 days following Bernard’s death confirmed that she could have contacted an attorney from her home, as she eventually did.

Thus, the Appellate Division found that the plaintiff could not demonstrate that extraordinary circumstances existed for the untimely filing of the Tort Claims Notice.  Hence, it reversed the trial court decision permitting leave to file a late notice of claim.  Accordingly, based upon this decision, the plaintiff would be barred in pursuing the County of Hudson for tort damages due to the death of her husband.

Plaintiff Jeffrey Wichot sued Defendant for emotional injuries suffered from a car kidnapping that occurred in 2012. Plaintiff had previously suffered a horrific injury as a young boy in 2002 which resulted in a traumatic brain injury. One of the issues in Wichot v. Allstate N.J. Prop. & Cas. Ins. Co., 2021 N.J. Super. Unpub. LEXIS 1020 (App. Div. May 27, 2021), was whether Plaintiff needed to provide a comparative analysis of his injuries suffered in the two incidents to be able to establish causation of his injuries incurred in the second incident.

In 2002, Plaintiff’s traumatic brain injury resulted in a severe closed-head injury, from which he continued to suffer and resulted in him being legally incapacitated. He had been riding a motorized scooter when he was struck by a van and propelled 20 feet, striking his head on the concrete road.

In 2012, the subject of this lawsuit, Plaintiff was kidnapped from his own car, driven around, slapped around, and threatened with a gun. Ultimately, there was an accident in which the driver hit a wall and Plaintiff escaped from the car. Plaintiff’s treating doctor opined that he suffered PTSD from this assault incident, which worsened Plaintiff’s pre-existing cognitive and emotional injuries from his brain injury suffered from the 2002 incident. Further, his doctor opined that the assault caused permanent emotional damage to his functioning, which was qualitatively and quantitatively different than his symptoms before the assault.

Defendant filed for a summary judgment, arguing that Plaintiff had failed to provide a comparative analysis of the injuries between the two incidents, so as to “give the jury guidance… as to what … psychological and emotional injuries [were] attributable to this accident.” The trial court judge granted the motion and dismissed the lawsuit, finding that Plaintiff’s treating doctor failed to provide a proper allocation of injuries suffered between the two accidents and, thus, the jury’s decision would be “purely speculative as to what psychological and emotional injuries are attributable to this accident.”

The Plaintiff appealed this decision to the Appellate Division, arguing that he did not plead aggravation of a pre-existing injury in his complaint and, therefore, to establish causation of injuries caused by the second accident, he was not required to provide a comparative analysis of injuries suffered in the two incidents to survive a summary judgment motion. While Defendant conceded that aggravation was not pled in the Complaint, Defendant argued that it was acknowledged through Plaintiff’s response to interrogatories and in his treating doctor’s report.

The Appellate Division noted that, Plaintiff’s claim was subject to the verbal threshold, N.J.S.A. 39:6A-8(a). Under prior case law (referred to as a “Polk” analysis), when a plaintiff alleges an aggravation of a pre-existing injury or condition, he must produce comparative evidence to move forward with the causation element of his tort claim. However, when Plaintiff does not plead aggravation of a pre-existing injury, this comparative analysis is not required.

Here, Plaintiff’s claim was that the assault caused “a separate and distinct injury,” and Plaintiff did not plead an aggravation from the 2002 incident. His treating doctor opined that he suffered PTSD from his 2012 incident. However, his doctor’s report did mention an exacerbation of his prior traumatic brain injury and Plaintiff’s response to Defendant’s interrogatory as to prior disability stated that the assault “severely exacerbated” his prior injury.

The Appellate Division found those statements made in his doctor’s report and in answers to discovery were insufficient to trigger a Polk analysis. Regardless, the Court found that the Defendant may produce evidence that the Plaintiff’s injury was caused, wholly or in part, by an earlier accident or pre-existing condition. Based on the treating doctor’s report, there were disputed issues of fact about whether this accident caused Plaintiff’s permanent injury. Further, the Court held that “even if defendant is correct that aggravation of a prior injury is part of this case – which plaintiff contends is inaccurate – then that aspect of the proofs would become a matter of proximate cause for the jury.”

Hence, the Appellate Division reversed the trial court’s grant of summary judgment and remanded the matter back for trial.