Court Rulings

Plaintiff Michael Martin was employed by Gary F. Gardner, Inc. to perform inspections and correct punch list items at an assisted living facility that was under construction. He filed suit against Gary F. Gardner and “John Doe’s (1-4)” just prior to the expiration of the statute of limitations. In Martin v. Conifer-LeChase Construction, LLC, 2017 N.J. Super. Unpub. LEXIS 2827 (App. Div. Nov. 14, 2017), the issue was whether the two additional defendants who were named in an Amended Complaint, after the statute of limitations expired, were entitled to a dismissal – or did the claims against them “relate back” to the original filing of the Complaint.

Pursuant to Rule 4:26-4, a party is permitted to sue a defendant under a fictitious name if the defendant’s true name is unknown to the plaintiff. He is required to state it to be fictitious and add on an appropriate description sufficient for identification.

Also, pursuant to Rule 4:9-3, a party may amend his pleading and it will relate back to the date of the original pleading “whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” If an amendment changes the party against whom the claim is made, it relates back if it is asserted within the time provided by law to commence the action against such party and the party has received notice of the institution of the action and will not be prejudiced in maintaining a defense on the merits.

Here, the plaintiff sought to add Conifer-LeChase Construction, Inc. (“LeChase”) (who was building the facility) and Conifer Realty, Inc. (“Conifer”) (who was in charge of maintenance). Plaintiff had slipped and fallen at the facility while working. He claimed that someone employed by Conifer Realty used the wrong kind of wax on the floor. But, plaintiff admitted that he knew the name of his employer and he knew the identities of the construction company and the maintenance company at the time of his fall.

LeChase and Conifer filed a motion to dismiss, based upon the statute of limitations. The trial court found that neither the fictitious pleading rule, nor the relation back doctrine applied and dismissed the Amended Complaint. Upon appeal, the plaintiff relied only on the relation back doctrine, claiming that the Amended Complaint should not have been dismissed.

The Appellate Division noted that the two new defendants did not have notice of the plaintiff’s lawsuit within the statute of limitations, as required by the court rule. Further, plaintiff had admitted that he knew their identities and their roles at the construction site. He also admitted that he knew that a Conifer employee had used the wrong wax on the floor. Thus, there was no “legally competent evidence in the record explaining why he did not name both defendants in the original complaint.”

Accordingly, the Appellate Division affirmed the trial court’s order dismissing the Amended Complaint.

Plaintiffs Richard and Vicki Klein filed a claim with Defendant Franklin Mutual Insurance Co. (“FMI”) due to damage to their in-ground pool. Plaintiffs claimed that the damage was caused by a rotted tree branch from a neighbor’s property which fell into their pool. The defendant disputed the cause of the damage, contending that it was caused by normal wear and tear, which was barred by an exclusion in their homeowner’s policy. In Klein v. Franklin Mutual Insurance Co., 2017 N.J. Super. Unpub. LEXIS 2653 (App. Div. Oct. 23, 2017), the plaintiffs appealed the trial court’s decision dismissing their case.

In the winter of 2014, plaintiffs noticed that their in-ground pool cover appeared lower than usual. After the snow and ice melted off of the pool cover, they saw a branch in the pool and tears in the pool cover and pool lining. They also observed that the pool walls were bowing inward.

Although the plaintiffs surmised that the damage was caused by their neighbor’s branch, they did not observe this event. Their public adjustor opined that wind caused the tree branch to fall, which had punctured the pool cover and vinyl lining. He further opined that “[t]his puncturing lead to the draining of the pool, which negated the counteracting lateral water pressure and thus the lateral earth pressure buckled the main wall of the pool.”

FMI retained an engineer to investigate the claim. He inspected the pool and observed several bowed walls and corroded metal connection bars, as well as the pool stairs not being level. He opined that the bowed walls were “caused by weakening support connections and differential movement of the ground/soil adjacent to such wall.” Further, in his opinion, the bowing of the wall most likely occurred over a period of the past 5-10 years. Hence, FMI denied the claim based upon the “wear and tear” exclusion of their homeowners policy.

The trial court judge barred the opinion of the plaintiff’s public adjustor as an impermissible net opinion. While the trial court agreed that it was up to FMI to demonstrate that the claim fell within an exclusion in the policy, he found that the engineer’s report satisfied that burden. Based upon the wear and tear exclusion, the trial judge granted FMI summary judgment.

Upon appeal, the plaintiffs argued that that trial judge should not have required them to prove causation for their claimed damages and that he should have permitted a jury to assess the credibility of the defense’s expert witness.

Because the plaintiff’s expert was barred from testifying, the Appellate Division found that FMI presented unrebutted expert opinion that the damage to the pool satisfied the “wear and tear” exclusion of the policy. Plaintiffs were unable to contradict this evidence, except for their unsubstantiated theory as to how the damage may have occurred. Accordingly, the Appellate Division found that summary judgment was properly granted to the defendant FMI.

Plaintiff Diedre Bradley resided in an apartment building in East Orange that was managed by Defendant Dynamic Capital Property (“Dynamic”). On January 16, 2012, Plaintiff suffered an injury when she tripped and fell due to a crack on the marble stairs in the common area of the building. In Bradley v. Dynamic Capital Property, 2017 N.J. Super. Unpub. LEXIS 2649 (App. Div. Oct. 20, 2017), Plaintiff sued Dynamic, claiming that it negligently managed the property. The issue was whether the property manager owed her a duty and, if so, if it breached such duty.

The trial court dismissed the case as to the property manager via summary judgment. The court found that the plaintiff had failed to present a prima facie case that Dynamic had breached any duty owed to plaintiff in causing her accident.

Plaintiff had argued that the Defendant manager owed her a duty pursuant to N.J.A.C. 5:10-4.1(a), which governs the maintenance of multiple dwellings, which required owners and managing agents to have the general duties set forth in the regulation for the maintenance of the premises. In this case, the Plaintiff had failed to name the owner of the property as a defendant.

Upon appeal, the Appellate Division agreed with the trial court that there was no evidence to show that the defendant had breached its duty of care to plaintiff. Although the plaintiff produced photographs showing cracked stairs, which she claims caused her injury, she provided no proof explaining how long the stairs had been in that condition or showing that defendant had notice of the condition and failed to address the condition, which proximately caused her injury. Hence, the Appellate Division upheld the trial court’s decision that the plaintiff failed to present a prima facie case against the defendant and affirmed the dismissal.

The Appellate Division also upheld the trial court’s denial of the plaintiff’s motion to amend the complaint to name the owner of the property. Plaintiff claimed that the fictitious defendant rule should allow her to amend the complaint and the amended complaint should relate back to the filing date of the original complaint. Even if the plaintiff included the naming of a fictitious party as the owner of the building, she must act with diligence to amend the complaint. If not, the amendment will not be allowed and the action would be time barred if filed after the expiration of the statute of limitations.

Here the plaintiff knew of the identity of the owner one year after she filed suit, yet she waited 2 years to file an application to amend the complaint, which was 4 years after the accident occurred. At that point, the statute of limitations had expired.

Although the court rules provide that leave of court “shall be freely given in the interests of justice” where a party seeks leave to amend a pleading, the Appellate Division found that the trial court did not abuse its discretion in denying this motion to amend. The Court noted that “a defendant suffers some prejudice merely by the fact that it is exposed to potential liability for a lawsuit after the statute of limitations has run.”  Due to the plaintiff’s lack of diligence in seeking to amend the complaint after it learned the identity of the owner, the Court upheld the trial court’s decision to deny this motion to amend to add the owner as a defendant.

Plaintiffs Edan and Edna Ben Elazar alleged that they suffered various personal injuries due to chemical vapors that infiltrated their electronics repair shop. The chemicals emanated from leaking underground storage tanks that belonged to the dry cleaner next door to the plaintiff’s shop but were buried in adjoining municipal property with the Township’s permission. In Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123 (2017), the issue litigated as to the municipality was whether the Tort Claims Act notice was timely filed. Under the facts of the case, the New Jersey Supreme Court ruled that the claim was not barred based upon the application of the discovery rule.

Back in 1946, the Township permitted the dry cleaner to locate underground storage tanks containing fuel oil and solvents on municipal property in a lane directly adjacent to the cleaner’s property. In 1998, contamination was discovered when the tanks were removed. The DEP was notified and cleanup activities began. They continued after the dry cleaner ceased operating in 2008. In late 2010, the dry cleaner’s environmental consultant began testing indoor air at properties adjoining to the cleaner, including the plaintiff’s shop.

In January 2011, the consultant wrote to the Township, with a copy to the plaintiffs, advising the Township that the indoor air pollution at the plaintiff’s place of business posed a health threat. On March 11, 2011, the cleaner’s consultant wrote directly to the plaintiffs, advising them that the sampling results showed that the indoor air sample in their basement contained chemicals that exceeded the DEP’s screening levels and was considered not acceptable due to a long-term health risk when breathing the contaminated indoor air. Neither letter mentioned that the tanks were located on Township property.

From the time that the plaintiffs opened their shop in 1988, they detected a chemical smell from the dry cleaner. Over the years, both of them experienced respiratory symptoms. Plaintiff Edan claimed that the contamination exacerbated his asthma. Both claimed that the chemicals caused them chronic respiratory problems. The record was clear that, as of the receipt of the March 11, 2011 letter, the plaintiffs were aware that the indoor air pollution from the cleaner posed a health risk to them.

Plaintiffs ultimately retained counsel in March 2012 who sent an OPRA request to the DEP. Upon receipt of the documents in July 2012, they learned that the dry cleaner’s underground storage tanks were located on Township property. Thereafter, they filed a notice of Tort Claim on September 4, 2012.

Suit was filed by the plaintiffs for their injuries and the Township was joined to that suit in September 2013. The Township filed a motion for summary judgment on the basis that the notice was not timely filed. The trial court granted the motion, which was appealed and affirmed by the Appellate Division.

On appeal, the plaintiffs argued that their September 2012 notice was timely. The Appellate Division rejected that argument. However, the case was further appealed to the New Jersey Supreme Court, which reversed the Appellate Division’s decision.

The Supreme Court noted that, under the Tort Claims Act “TCA”), a plaintiff must file a notice of claim with the public entity within 90 days of the accrual of the cause of action. Barring extraordinary circumstances, failure to do so bars any tort claim against the public entity.

The time period to file the TCA notice is the date upon which the claim accrues. The accrual date will depend on the date on which the alleged tortious act occurred. The discovery rule may apply depending upon whether the facts would alert “a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.” If a plaintiff knows he has suffered an injury but does not know that it is attributable to the fault of another, the Court held that the discovery rule tolls the date of accrual as to that unknown responsible party.

In the context of the TCA, the discovery rule would apply to the notice requirement. Hence, the discovery rule would toll the accrual date and the 90 day time period within which the injured party must file a notice of claim against a public entity is delayed until the injured party learns of the injury or of the third party’s responsibility for that injury.

Here, the letters sent by the consultant did not mention that the tanks were located on Township property. Nothing in those communications would have alerted a reasonable person that anyone other than the cleaner was responsible for the contamination. The evidence that the tanks were placed on public property was not disclosed until the DEP released documents in July 2012. Hence, under the circumstances, the Supreme Court found that the discovery rule applied. Thus, the notice of claim, filed in September 2012, was timely filed after the involvement of the municipality was disclosed.

Accordingly, the Court reversed the Appellate Division’s decision and the case was remanded back to the trial court.

In a recent New Jersey Supreme Court case, The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, 2017 N.J. LEXIS 845 (2017), the Court was asked to rule on when the statute of limitations accrued in a construction defect property damage case. The plaintiff Association filed suit against the general contractor and three subcontractors alleging that the building complex was defectively constructed. However, the defendants argued that the lawsuits were barred by the six year statute of limitations in N.J.S.A. 2A:14-1.

The project was deemed substantially complete as of May 1, 2002. The prior owners first rented apartments in the building and then converted the apartments into condominium units. The prior owners did not relinquish control to the plaintiff Association until July 2006. After the Association took control, they retained an engineering and architectural services firm, the Falcon Group, to inspect the common elements for any construction defects. Thereafter, the Falcon Group issued a report on June 13, 2007, detailing all construction defects found. Based upon this report, the Association filed several suits, the first one being filed on March 12, 2009.

The Supreme Court ruled that both the trial court and the Appellate Division applied the wrong statute of limitations. The trial court ruled that the limitations period began to run in May 2002 when the building was substantially complete. The trial court found that the suit was barred because the building’s owners knew or should have known of the defects before May 2008, yet filed suit after that date.

The Appellate Division, however, reversed and found that the plaintiff’s claims did not accrue until June 2007, when the plaintiff Association took control of the building and became “reasonably aware” of the construction defect claims after it obtained an expert report outlining such defects. Because suit was filed within 6 years of that date, the Appellate Division found that suit was timely filed.

The Supreme Court ruled that neither the trial court, nor the Appellate Division applied the correct legal standard for determining when a construction defect action accrued. The Court held that, while the six year statute of limitations would typically run from the date of substantial completion, it is subject to the discovery rule. Based upon the discovery rule, the limitations “clock” does not start until “the plaintiff is able to discover, through the exercise of reasonable diligence, the facts that form the basis for actionable claim against the identifiable defendant.”

The Court further clarified that the lawsuit must be filed within six years “from the time that the building’s original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a cause of action.” A subsequent owner would stand in no better position than a prior owner in calculating the statute of limitations. The Court ruled that if “a prior owner knew or reasonably should have known of a basis for a construction defect action, the limitations period began at that point.”

Because the record was not fully developed below as to what information the original owners possessed as to any construction defects before control was relinquished to the Association, as well as what knowledge of any defects which the Association knew, or should have known, through the exercise of reasonable diligence, the Court reversed the Appellate Division judgment and remanded the matter back to the trial court to conduct a hearing to answer these questions.

Plaintiff Sabrina Losada filed suit against Princeton University and the Princeton Tigers Aquatic Club (“PTAC”) for injuries she suffered while attending her daughter’s swim meet. She claimed that she fell in a depression next to a walkway adjacent to the Princeton University building where the pool was located. In Losada v. Princeton University, 2017 N.J. Super. Unpub. LEXIS 2143 (App. Div. Aug. 24, 2017), the issue was whether Princeton University was immune from liability pursuant to the New Jersey Charitable Immunity Act.

The swim meet was held at Princeton’s DeNunzio pool and hosted by the PTAC, a youth swim team that is not affiliated with Princeton. Princeton is an educational institution and qualifies as a public charity under the Internal Revenue Code. Princeton’s charter states its purpose as “not for profit, including colleges and schools affiliated therewith, in various branches within or without [New Jersey].”

PTAC is a private swim team that also provides swimming lessons to children. Princeton rented its pool to PTAC for swim meets and practices.

The trial judge determined that summary judgment should be granted, dismissing as to Princeton, on the basis that the plaintiff was a beneficiary of Princeton’s educational goals within the meaning of the Charitable Immunity Act “CIA.” Under the CIA, immunity from a negligence claim is afforded to any “nonprofit corporation” which is “organized exclusively for religious, charitable or educational purposes” and where the injured person “is a beneficiary, to whatever degree, of the works of such nonprofit corporation.” The judge found that, at the time of the accident, Princeton was engaged in the performance of the charitable objective that it was organized to advance and, as a spectator at the swim meet, the plaintiff was a recipient of those good works.

On appeal, the plaintiff argued that Princeton’s stated purpose was the education of undergraduates and graduates, not the minor children that participated in PTAC’s activities. Further, plaintiff argued that youth sports offered by an outside organization was not within the educational objective that Princeton was organized to advance. Hence, plaintiff argued that Princeton should not be entitled to charitable immunity under the Act.

The Appellate Division disagreed with the plaintiff’s argument and found that Princeton was entitled to the immunity provided for it under the CIA. The Court pointed out that the law was to be “liberally construed” in favor of the protected entities.

“Education” has been construed broadly under the Act and is not limited to purely scholastic activities. In prior case law, the New Jersey courts ruled that “the purpose of teaching and promoting good citizenship and sportsmanship and assembling teams and groups for participation in sports qualifies it as a non-profit organization within the scope of the CIA.” Further, in a prior case involving Princeton University, the Court found that the “CIA may afford immunity to a non-profit entity’s rental to members of the general public for social and recreational activities.” The Court had found that the use of Princeton’s facilities by members of the general public served “important social and recreational needs of the community.”

Here, the Appellate Division found that the plaintiff was a beneficiary of Princeton’s educational purposes, as defined broadly by the CIA. Plaintiff, as a spectator at a youth sporting event held at Princeton, clearly qualified as a beneficiary. As a spectator and mother of a participant in an “educational endeavor,” taking place on Princeton’s premises, the Court held that plaintiff was a beneficiary because she benefited in some degree by attending the swim meet in which her child participated. It was irrelevant whether the PTAC was organized as a for profit or nonprofit entity. Thus, the Appellate Division upheld the summary judgment award in Princeton’s favor.