Court Rulings

Plaintiff Ronald Rowell was injured on February 17, 2011 when his tractor trailer, parked in a commercial warehouse located in New Jersey, was struck by another vehicle. Initially, plaintiff sued the defendants he believed were responsible for the accident. However, after the statute of limitations expired, the plaintiff discovered the correct parties responsible for the accident. Plaintiff then dismissed his first lawsuit and refiled suit against defendants Jeffrey Stecker and his employer Honey Locust Farms LLC in Rowell v. Stecker, 2017 U.S. App. LEXIS (3d Cir. June 29, 2017). The issue before the Third Circuit Court of Appeals (the federal appeals court) was whether, under New Jersey law, the statute of limitations could be equitably tolled so as to prevent a dismissal.

The Third Circuit noted that the limitations period under New Jersey law may be equitably tolled under the following circumstances: “where the plaintiff (1) has been ‘induced or tricked by his adversary’s misconduct’ into allowing the deadline to pass; (2) has been prevented from filing suit ‘in some extraordinary way’; or (3) has ‘timely asserted his rights mistakenly by either defective pleading or in the wrong forum.” Further, the doctrine of equitable tolling is to be applied sparingly, absent intentional inducement or trickery by a defendant. Finally, the Court noted that equitable tolling “requires the exercise of reasonable insight and diligence by a person seeking its protection.”

Here, the Court found that the plaintiff failed to demonstrate that he was reasonably diligent. The correct name of the driver and his employer were contained in the accident report that Rowell filed with his employer. However, his attorneys made no effort to obtain the report. The report was not obtained until September 2014 by one of the defendants in the first lawsuit. Had his attorneys timely obtained Rowell’s accident report from his employer, they would have been able to timely identify the correct name of the driver who struck him, along with the name of the driver’s employer.

Further, there was no evidence that the defendants were responsible for the plaintiff’s untimely filing. Even if the accident was not reported to the police, the defendants took no action to actively conceal their identity. Due to the lack of defendants’ misconduct, the plaintiff’s reasonable diligence, or a satisfactory explanation for why the plaintiff was prevented from bringing suit against the correct defendants, the Court found that equitable tolling was inappropriate so as to prevent the suit from being dismissed based upon the expiration of the statute of limitations.

The plaintiff also made the argument that the new complaint should “relate back” to the date that the original suit was filed. However, the plaintiff cited to no legal authority for his claim that his second complaint can relate back to the pleadings filed against different parties in a different lawsuit. Both New Jersey state law and federal law only permit the relation-back rule to apply to amended pleadings (which would permit an amended complaint to relate back to the original filing date so as to be within the statute of limitations).

Hence, the Court upheld the trial court’s dismissal of this lawsuit based upon the statute of limitations.

This case demonstrates that there are certain limited circumstances in which a lawsuit filed after the expiration of the statute of limitations can be deemed timely filed. However, as recited by the Third Circuit in this case, tolling of the limitations period will be applied sparingly and only if the plaintiff can meet one of the specific criteria to justify equitable tolling.

Plaintiff Martin Rosenbaum exited a relative’s condominium and fell on a driveway outside the unit, which driveway was maintained by the defendant Highlands Condo Association. His daughter, Nanette Rosenbaum, tried to come to his aid and fell as well. In Rosenbaum v. Highlands Condo Association, 2017 N.J. Super. Unpub. LEXIS 680 (App. Div. March 21, 2017), the plaintiffs sued the defendant condo association for their personal injuries suffered in their falls. The issue was whether an expert was needed to establish that the slope between the two driveways, that created a substantial height differential, was a dangerous condition.

The defendant argued to the trial court that the plaintiffs could not establish that defendant breached its duty to plaintiffs without expert testimony as to how the slope was dangerous or defective. The trial court agreed and granted summary judgment in favor of the defendant, concluding that the plaintiffs’ complaint alleged a design defect for which the plaintiffs were required to establish through expert testimony.

Upon appeal, the plaintiffs argued that the complaint alleged a dangerous condition but not a design defect. After reviewing the complaint, the Appellate Division found that it did not allege a design defect but, rather, alleged that the plaintiffs fell due to a dangerous and defective condition of the premises.

In determining whether expert testimony is necessary, the court considers “whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the [defendant] was reasonable.” In cases in which a layperson’s “common knowledge” is sufficient to permit a jury to find that the duty of care has been breached, an expert is not required. Some hazards are so commonplace, they do not require the explanation of experts for an average person to understand their danger.

Here, the Appellate Division reviewed the evidence and found that a jury could conclude that the slope constituted a dangerous condition without the aid of expert testimony. A photograph showed a substantial step down of about 12 inches between the two levels of blacktop. There was no striping showing the end of the higher level and the beginning of the step down, creating a camouflaged step that could constitute a dangerous condition.

Further, the Court found that “[t]here is nothing esoteric about understanding the danger of a height differential between two driveways that was unmarked in any way and about which defendant had been provided actual notice.” Thus, the Court concluded that an expert was not required to explain the alleged dangerous condition. Accordingly, the Court reversed the trial court decision and remanded the matter back to the trial court for further proceedings.

While on the state trial court level, our New Jersey trial court judges tend to be lenient in enforcing rules concerning motion practice and briefing (as well as many of the rules of civil procedure), the Appellate Division judges can be much more exacting in enforcing their rules concerning the submission of briefs. In the published decision of Noren v. Heartland Payment Systems, 449 N.J. Super. 193 (App. Div. 2017), the defendant Heartland Payment Systems (“Heartland”) learned the hard way that its failure to comply with the Appellate Division briefing rules resulted in a dismissal of its cross-appeal.

Heartland had filed a cross-appeal in this matter but failed to include in the appendix to its brief all items that were submitted to the trial court on the summary judgment motion or even a statement of the items submitted. It argued to the court that the pertinent court rule (R. 2:6-1(a)(1)) requiring these items only applied if the appeal was from a grant of a summary judgment motion. Because its cross-appeal was from a denial of a summary judgment, it contended that this rule did not apply.

The Appellate Division rejected this argument, finding this interpretation of this rule as too literal. The Court found that the rule was obviously intended to identify for the appellate court those documents which had been presented to the trial court, regardless of how the motion was decided. In deciding how to rule on an appeal involving a summary judgment order, the appellate court is limited to an examination of the original summary judgment records.

If the appellate court was not provided the same information provided to the trial court, it might “stray” from its function as a reviewing court and consider material never presented to the trial judge. Thus, the Appellate Division emphasized that this rule should not be read literally and that the phrase “from a summary judgment” in this rule should be taken to mean “from the disposition of a summary judgment motion.”

This matter was submitted as one for reconsideration before the Appellate Division. The Court dismissed Heartland’s cross-appeal in an unpublished decision and, in this published decision, affirmed that dismissal by denying this motion for reconsideration of its decision.

This case points out the importance in strictly complying with New Jersey state appellate rules in submitting briefs and appendices. While trial court judges often provide much leeway and overlook procedural deficiencies, as demonstrated by this case, the Appellate Division enforces its rules much more stringently.

Plaintiff Joseph Pasterkiewicz slipped and fell on the floor of a buffet restaurant operated by the defendant Marina Buffet, Inc. and owned by defendant King T. Group, LLC. The plaintiff claimed that he fell on the flooring around the buffet area. In Pasterkiewicz v. Marina Buffet, Inc., 2017 N.J. Super. Unpub. LEXIS 199 (App. Div. Jan. 30, 2017), the plaintiff contended that the defendants should be liable for his fall due to the “inherently dangerous, slippery floor.”

Plaintiff’s fall occurred at his second trip to the buffet. While there was carpeting around his table, the area around the buffet islands was some kind of ceramic tile, which the plaintiff claimed was “brightly shiny, like marble or shiny tile” and was “highly polished.”

After serving himself his second helping, he was headed back to his table. The plaintiff claimed that he intentionally walked slowly on the tile floor because of how polished it was. He did not allege that there was any food, liquid, or any substance on the floor that caused him to fall. His allegation was that the defendants negligently maintained a dangerous condition, i.e., the slippery floor. Further, he contended that the mode of operation doctrine should apply and, hence, he should not be required to prove that the defendants had actual or constructive notice of the dangerous condition. Rather, their negligence should be inferred.

The plaintiff failed to provide any expert opinion that the floor itself was dangerous. The defendants filed for summary judgment based upon the plaintiff’s failure to proffer that any substance on the floor caused his fall and the lack of an expert report to opine that the floor was dangerous due to its slipperiness. The trial court agreed with the defendants’ arguments, rejected the plaintiff’s claim that the mode of operation would apply, and granted the motion for summary judgment.

Upon appeal, the Appellate Division affirmed, upholding the dismissal of the complaint. It noted that it is the plaintiff’s burden to prove negligence. While the defendants had a duty to maintain a safe premises for their customers, including discovering and eliminating dangerous conditions, the plaintiff failed to offer any proof that the defendants breached their duty. The Appellate Division ruled that expert testimony would be needed to opine that the floor was inherently dangerous due to its slippery condition. The mere fact that plaintiff slipped and fell was insufficient to establish this claim.

The Appellate Division also rejected the plaintiff’s claim that the mode of operation would apply. The Court pointed out that, while the mode of operation doctrine relieves the plaintiff of the need to prove that the defendants had notice of a dangerous condition, the plaintiff must still prove that there was a dangerous condition. Further, the plaintiff must prove that the dangerous condition arose from the defendants’ self-service nature of its business.

Here, the plaintiff failed to offer any proof that any food, debris, or liquid on the floor created a dangerous condition. Although plaintiff fell near the buffet islands, he presented no proof that the surface near the buffet islands was any different than any other area of the restaurant that had a hard surface. Hence, he was unable to present a nexus to the defendants’ self-service nature of its business and his injury – which was fatal to pursuing a mode of operation claim.

Plaintiff Jennifer Corona entered into a contract with defendant Stryker Golf, LLC to hold her wedding reception at defendant’s catering hall. The contract price for the entire event was $12,012. Plaintiff paid a deposit of $2500 and then an additional $6,891 in 2 installments for a total of $9,391. Six months before the wedding, she cancelled. The defendant refused to refund her monies, citing the contract’s cancellation clause. In Corona v. Stryker Golf, LLC, 2017 N.J. Super. Unpub. LEXIS 690 (App. Div. Mar. 20, 2017), the Court was asked to decide whether the contract’s cancellation clause was a valid liquidated damages clause or an unenforceable penalty.

Under the contract’s cancellation clause, cancellation was not permitted. In addition to forfeiting all deposits, the customer remained responsible for the balance of the contract. When the plaintiff cancelled the contract, the defendant catering hall claimed breach of contract and refused to return the monies paid. The plaintiff conceded that the defendant was entitled to keep the $2500 nonrefundable deposit but argued that the remaining funds should be returned to her.

Based upon well settled case law, the Court distinguished between an enforceable liquidated damages clause and an unenforceable penalty as follows:

Liquidated damages is the sum a party to a contract agrees to pay if he breaks some promise, and which, having been arrived at by a good faith effort to estimate in advance the actual damages that will probably ensue from the breach, is legally recoverable as agreed damages if the breach occurs.

A penalty is the sum a party agrees to pay in the event of a breach, but which is fixed, not as a pre-estimate of probable actual damages, but as a punishment, the threat of which is designed to prevent the breach.

Further, the Court noted that a stipulated damage clause “must constitute a reasonable forecast of the provable injury resulting from breach; otherwise, the clause will be unenforceable as a penalty and the non-breaching party will be limited to conventional damage measures.”

In this case, the Court found that the liquidated damages clause was “untethered” to any reasonable basis in determining the actual economic loss the defendant catering hall may have suffered as a result of a cancellation 6 months before the actual event. Coincidentally, the contract identifies the defendant’s cost for food and beverages at $9,680, which was almost the same as the $9,391 that plaintiff paid before the cancellation. Because the defendant no longer had this expense, permitting it to retain the entire $9,391 paid would constitute a windfall and an unenforceable penalty. Hence, the Court ruled that the defendant was required to return all monies but the $2500 deposit.