Litigation Quarterly NL

The Appellate Division on June 8, 2020 rendered an interesting as yet unpublished Opinion related to strict liability and exceptions thereto.  The matter is Goldhagen v. Pasmowitz, No. A-3430-18T4, 2020 WL 3041414 (App. Div. June 8, 2020).

Plaintiff Bonay Goldhagen appealed an Order granting Defendant Susan Pasmowitz’s Motion for Summary Judgment and denying her Cross-Motion for Summary Judgment on liability. The Appellate Division affirmed.

Factually, in July of 2015, Defendant Pasmowitz boarded “Louie,” an approximately 120-pound Rottweiler mix, and a second, smaller dog at a “dog hotel.”  Plaintiff was employed as a dog groomer and kennel assistant at the dog hotel. Significantly, Plaintiff had twenty (20) years of experience in the business, and was therefore indisputably aware that dogs can and do bite.

Further, Defendant specifically informed Plaintiff that Louie had previously bitten her own son. Indeed, Defendant alleged that when she advised Plaintiff that Louie was a very strong dog, and thus Plaintiff should “trust” him, as the dog was going to “throw his weight around,” Plaintiff dismissively responded that she knew how to handle dogs.

Defendant also noted on the kennel’s intake form that Louie must “eat separately from (her other dog)” and also must be “muzzle[d] for nail clippings.”

However, Defendant did not advise Plaintiff that Louie had bitten Defendant herself on the face, requiring Defendant to receive about thirty stitches, four (4) years earlier when Defendant removed a tick from his ear.  Plaintiff would rely heavily on this omission.

Thereafter, on the very first day of the dogs’ boarding, Plaintiff was feeding the two dogs together when she was bitten by Louie.

Plaintiff filed suit, and upon completion of discovery, Defendant moved for Summary Judgment and Plaintiff crossed-moved for Partial Summary Judgment on liability.

The Law Division Judge entered an Order and oral decision granting Defendant Summary Judgment and denying Plaintiff’s Cross-Motion.

The Judge relied primarily on Reynolds v. Lancaster Cty. Prison, 325 N.J. Super. 298, 323-44 (App. Div. 1999) where the Appellate Division had limited the absolute liability of dog owners under N.J.S.A. 4:19-16, by holding that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner for a dog bite unless the dog owner “purposefully or negligently conceal[ed] a particular known hazard from the” independent contractor.

The Law Division Judge noted that while Defendant did not tell Plaintiff of the severe bite that she herself had sustained from her dog, this was far outweighed by the fact that Plaintiff was an experienced dog handler, and as such knew dogs sometimes bite; that Plaintiff knew the specific dog had previously bitten a child and needed muzzling for nail clipping; and that Plaintiff had seen co-workers previously bitten by dogs.

Thus, the Judge found that this was insufficient to create a genuine issue of material fact to defeat Defendant’s Motion. Rather, the Court found that Plaintiff had possessed adequate information provided by the Defendant regarding Louie’s specific history.

Notably, the Judge found that “the quality or consequences … of the dog bite” was not relevant or a material inquiry in this instance to defeat the Summary Judgment Motion.

The Judge held that as Plaintiff was a long-time professional in this industry, she should have taken necessary precautionary measures to safely address the needs of a dog, as well as her own.

Plaintiff appealed, arguing any assumption of risk and comparative negligence did not apply under N.J.S.A. 4:19-16 and she was entitled to Partial Summary Judgment on liability under the statute.

N.J.S.A. 4:19-16 states, in relevant part:

“The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.”

To recover under [the statute], a Plaintiff must prove that the Defendant owned the dog, that the dog bit the Plaintiff, and that the Plaintiff was in a public place or lawfully on the owner’s property.” DeRobertis v. Randazzo, 94 N.J. 144, 158 (1983). “Satisfaction of the elements of the statute imposes strict liability … for damages sustained by [the] Plaintiff.” Pingaro v. Rossi, 322 N.J. Super. 494, 503 (App. Div. 1999).

However, in Reynolds, recognizing an exception to the imposition of strict liability, the Appellate Division held that:

“[w]hen a dog owner turns his dog over to an independent contractor who has agreed to care for the dog, the owner is not liable under the dog-bite statute when the dog bites the independent contractor unless the owner knew, or had reason to know, the dog was vicious and withheld that information. Similarly, under the doctrine of primary assumption of the risk, as described in Emmons v. Stevane, 77 N.J.L. 570, 573-74 (E. & A. 1908)], it would appear that an owner would not be liable under the statute to an independent contractor who undertakes the care of a domestic animal with knowledge that it is particularly dangerous.

325 N.J. Super. at 324.

The Appellate Division held that the principles articulated in Reynolds applied to this case.  The Plaintiff in Reynolds had worked for a guard dog company as a dog handler and he was seriously injured when one of the company’s dogs attacked him. Id. at 306. Of course, in general, a landowner has the duty to “use reasonable care to protect independent contractors [from] ‘known or reasonably discoverable dangers.’” Id. at 321-22.  The Court was persuaded by case law from other states regarding veterinarians, and held that “a veterinarian has all of the characteristics of an independent contractor” and “the owner [of a dog] is not liable under the dog-bite statute when the dog bites the independent contractor unless the owner knew, or had reason to know, the dog was vicious and withheld that information.” Id. at 324.

Accordingly, the Appellate Division held that like the dog handler in Reynolds, Plaintiff was an independent contractor who “agree[d] to care for a dog.” Ibid. She was “aware of the risk that any dog, regardless of its previous nature, might bite while being” cared for. Ibid. And as the Motion Judge determined, even though Defendant did not tell Plaintiff that Louie had bitten her, there was no dispute that Plaintiff was made aware of several crucial facts, including Louie’s aggressive nature; that he had bitten Defendant’s son; that he had to be muzzled during nail clippings; and that he should not be fed with Otis – “the latter being the precise situation when Plaintiff was bitten.”

Accordingly, the Appellate Division concluded that, based on the evidence presented, a reasonable factfinder could only reach one conclusion: that Plaintiff had sufficient warning that Louie might bite her while she was caring for him. Thus, as there was no genuine issue of material fact, as a matter of law, Defendant was entitled to Summary Judgment.

While the fact pattern of this matter is of course extreme, this opinion is an important reminder that there can be exceptions even in situations where the general rule is that of strict liability.  Similarly, the arguments in this matter as to dog groomers and veterinarians could easily be analogized to any number of other backgrounds with which a given Plaintiff may present.  Therefore, consideration should be given to an analysis of exactly what knowledge a given Plaintiff possessed, along with any information provided to that Plaintiff by the Defendant, before assuming that strict liability applies.

The Appellate Division on November 27, 2019 rendered an unpublished Opinion on the issue of alleged spoliation of evidence.  The matter is Promise v. Khubani Enterprises, Inc., 2019 WL 6353644 (App. Div. Nov. 27, 2019).

In July of 2014, Plaintiff Betty Promise was reportedly seated in a chair in the basement of the laundry room of her apartment building for approximately 30 minutes before a leg on the chair gave way. The building was owned by Defendant Khubani and the chairs in the laundry room were installed and maintained by Defendant Mac Gray Services.

The chair in question was part of a set of chairs that were connected to each other.  Plaintiff had reportedly been seated on an end chair.  She alleged that the leg of the chair “collapsed,” causing Plaintiff to become caught between the chair upon which she had been sitting and the chair connected to it, on her right, before she fell all the way to the floor. Plaintiff was reportedly alone in the laundry room at the time of this incident, and could not free herself, so she called out for help. Two employees of Defendant Khubani came to Plaintiff’s aid.  One of those employees, named Osuva, was responsible for maintenance work in the building.

Plaintiff claimed injuries to her shoulder, arm, neck, back and knees.

Members of Plaintiff’s family reportedly took photographs of the chair shortly after the incident and gave those photographs to Plaintiff’s attorney. Thereafter, on August 6, 2014, Plaintiff’s counsel wrote to Defendant Khubani advising of his representation and requesting that Khubani “kindly preserve the chair in question as it is evidence in this case.”

Thereafter, on September 16, 2014, while the chair was still in the possession of Khubani, an individual who identified himself as an attorney for Defendant Khubani reportedly photographed the chair.

Mr. Osuva reportedly stated he did not remember seeing the chair after the photographs were taken in September 2014, and said that he did not know to where the chair had been moved.

At some point in 2016, the laundry room chairs were replaced with new ones by Defendant Mac Gray.  Thereafter, the parties realized that the chair was missing, though Defendant Khubani acknowledged that the chair went missing while in its possession.

Plaintiff originally filed a Complaint against Defendant Khubani and the manufacturer of the chair, Caco Manufacturing Corp., and subsequently filed an Amended Complaint including Defendant Mac Gray.

At his subsequent deposition, Mr. Osuva confirmed that a photograph presented to him depicted the chair upon which she found Plaintiff, acknowledging that the left leg of the chair was “a little bent.” He identified another Khubani employee named Sean as an individual who cleaned the chairs and table in the laundry room every morning.  Mr. Osuva said that he had never noticed any problems with the chair, and the Plaintiff had apparently not noticed any, either, while she had been seated on the chair.  Plaintiff said she had never sat in the chairs before herself, but had seen other people sitting in them.

While the Appellate Division stated it was not clear from the record if or when Plaintiff attempted to examine the chair or have an expert do so, Caco, Khubani and Mac Gray all moved for Summary Judgment.  Plaintiff opposed Khubani’s Motion on the grounds that the chair was “destroyed or otherwise disposed of” by Khubani, which required an adverse inference due to spoliation, requiring the same to be left to the jury.

The Trial Judge granted Summary Judgment to Khubani and Mac Gray, finding that while Plaintiff presented a sufficient argument for spoliation, the destruction of the chair was only relevant to a product liability claim on the part of the manufacturer, and neither Khubani or Mac Gray were the designer or manufacturer of the chair.  As such, Plaintiff was required to provide evidence that either Khubani or Mac Gray knew or constructively knew or should have known that the chair was defective. The Court found that Plaintiff produced no such evidence.

Plaintiff thereafter appealed only as to Defendant Khubani, arguing that the spoliation of the chair that allegedly caused the injury raises an inference sufficient to preclude Summary Judgment.  The Appellate Division disagreed and accordingly affirmed.

The Appellate Division noted that there are different remedies for spoliation of evidence which are dependent in part on the timing of the discovery of the spoliation. Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203 N.J. 252, 273-74 (2010). When the alleged spoliation is discovered in time for the underlying litigation, remedies include a “spoliation inference,” which “allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.” Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001)

Further, a Plaintiff may be permitted to file an Amended Complaint to add a fraudulent concealment Count. If added, bifurcation is required because the fraudulent concealment remedy depends on the jury’s assessment of the underlying cause of action. In that instance, after the jury has returned a verdict in the bifurcated underlying action, the jury is then required to determine whether the elements of the tort of fraudulent concealment have been established, and, if so, whether damages are warranted.

Conversely, in circumstances where the spoliation is not discovered in time for the underlying action, Plaintiff may file a separate tort action where he or she is required to establish the elements of fraudulent concealment, and “[t]o do so, the fundamentals of the underlying litigation will also require exposition.” Id. at 408. Specifically, to make a claim of fraudulent concealment, a plaintiff must show:  (1) [t]hat the Defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation; (2) [t]hat the evidence was material to the litigation; (3) [t]hat plaintiff could not reasonably have obtained access to the evidence from another source; (4) [t]hat defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; [and] (5) [t]hat plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.  Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 118 (2008) (citing Rosenblit, 197 N.J. at 406-07).

In Promise, the alleged spoliation of the missing chair was discovered during the underlying litigation. But, because Plaintiff only appealed the Summary Judgment Order as to Khubani, the property owner, any adverse inference about the chair had to be considered in the context of a premises liability/negligence claim.

In a negligence claim, “the landlord of a multiple-family dwelling is subject to the same basic duty as an owner or occupant of commercial property. …” Drazin, N.J. Premises Liability, § 5:2-2 (2019) (citations omitted). An owner of a business property has a duty of care to “discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.” Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982)). If a Plaintiff cannot show that an owner of a business property had actual or constructive notice of a dangerous condition, “[t]he absence of such notice is fatal to Plaintiff’s claims of premises liability.” Ibid. (citations omitted).

Accordingly, in this matter the Appellate Division held that the record revealed no evidence Khubani had actual or constructive notice of a defective chair in the laundry room. Rather, to the contrary, there was evidence that the chairs were cleaned every morning by a Khubani employee, and nothing in the record indicated the employee ever noticed a problem with the chairs or reported a problem with the chairs to Khubani. Further, Plaintiff herself had seen others sitting in the chairs with no issues, and did not notice anything out of the ordinary during the thirty minutes she sat in the chairs.

Therefore, the Court held that any factual dispute that could arise out of any possible adverse inferences regarding the chair, when considered in the light most favorable to Plaintiff, still could not alter the conclusion that Plaintiff did not demonstrate Khubani had actual or constructive notice of a prior problem with the chair. Therefore, Summary Judgment was appropriate as a matter of law.

Thus, this Opinion is an instructive reminder from the Appellate Division on the applicability of the various aspects of a potential spoliation claim, and what a Plaintiff is required to prove in order to pursue the same.

The Appellate Division on September 12, 2019 rendered an unpublished Opinion on several trial-related issues.  The matter is Gomez v. Fritsche, 2019 WL 4313116.

This matter arose from a motor vehicle accident.  The jury found Defendant 100% negligent for causing an intersectional accident, and awarded Plaintiff the sum of $115,000.00.  Defendant appealed the denial of her Motion for a New Trial, arguing that the cumulative prejudice from several errors – specifically, the Trial Court barring evidence that Plaintiff had previously sustained permanent injuries; allowing the investigating police officer to opine as to fault for the accident; barring defense counsel from objecting during Plaintiff’s counsel’s closing; and Plaintiff’s counsel’s improper remarks during summation, deprived Defendant of a fair trial.  The Appellate Division agreed, in part, vacated the verdict, and remanded for a new trial.

As to the issue of evidence of Plaintiff’s previous permanent injuries, there was evidence that Plaintiff had been involved in prior motor vehicle accidents in 1994 and 2000.  A doctor had written in a report that Plaintiff suffered permanent injuries to her neck and back which would result in ongoing pain and limitation regarding both body parts.  The Trial Court granted a Motion in limine filed by Plaintiff to preclude defense counsel from raising the same, finding that the probative value of this evidence was outweighed by the risk of undue prejudice.  The Trial Court indicated that defense counsel would not be allowed to utilize this evidence even if Plaintiff testified that she never had any prior problems with her neck or back.

As to the issue of the police officer, the officer was allowed to read his conclusion in the police report to the effect that Defendant failed to yield to Plaintiff and was inattentive in not ensuring that the roadway was clear prior to entering the same.

During summation, Plaintiff’s counsel referenced the fact that while Defendant had testified, the Defendant thereafter left and was not present in Court during the closing.  Defense counsel objected, but the Trial Judge advised that “I should’ve mentioned this earlier, there’s no objections in closing argument.  Now that you’ve done it, I suggest it’s… closing argument.  He’s entitled to argue and if he wants to put that inference out there and draw an inference it’s fair game.  I don’t know why she’s here, she’s not here, but you know, I don’t understand the objection and it’s overruled.”

Thereafter, defense counsel apparently heeded the Trial Judge’s admonition not to object during Plaintiff’s closing statement, even when Plaintiff’s counsel then specifically invited the jurors to place themselves in Plaintiff’s situation.

The Appellate Division began by noting that as a general matter, trial courts have considerable discretion in determining whether evidence is relevant, and, if so, whether it should be excluded under N.J.R.E. 403 due to the fact that the probative value of the evidence is substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury.  Wymbs v. Twp of Wayne, 163 N.J. 523, 537 (2000).

In this regard, the Appellate Division observed that the prior reports were as a threshold matter hearsay, inadmissible except as provided in N.J.R.E. 802.  Pursuant to Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985), expert reports are not statements of a party and therefore cannot be treated as an admission simply because they have been furnished in discovery by that party.

The Appellate Division noted that the defense did not intend to call as a witness the doctor who wrote the old report. Accordingly, it held that given the foregoing, the Trial Court acted within its broad discretion in prohibiting Defendant from utilizing the same.

However, regarding the Trial Court’s ruling permitting the police officer to render his opinion regarding the fault for the accident, the Appellate Division found otherwise.

While police reports are admissible as a business record and as a public record, if properly authenticated, if a proponent seeks to admit the report or an officer’s trial testimony regarding the same to prove the truth of something contained therein, a separate hearsay exception is required.

Significantly, New Jersey courts have prohibited the admission of police testimony as to the issue of fault.  Indeed, for a party to present a police officer as an expert, that officer must be properly qualified as an expert pursuant to N.J.R.E. 702.

Generally, police officers can present lay opinion testimony, but the same “is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.” State v. McLean, 205 N.J. 438, 460 (2011).  Thus, an officer is not permitted to provide opinion testimony at trial when that opinion is based primarily on the statements of others.  Neno v. Clinton, 167 N.J. 573, 585 (2001).

While Plaintiff argued that the officer never use the word “fault,” the Appellate Division indicated that the testimony as a whole made clear that in the opinion of the officer the Defendant was at fault at the time of the accident.

Indeed, Plaintiff’s counsel then “compounded the error” by emphasizing the same during his closing, telling the jury that the Defendant did not want to jurors to hear the police officer’s testimony.

Finally, turning to the issues regarding Plaintiff’s counsel’s closing argument, the Appellate Division cited State v. Farrell, 61 N.J. 99, 106 (1972) and State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997) for the proposition that challenging an adversary’s improper closing remarks after the closing, rather than during it, fails to timely alert the Court to the irregularities and provide the court with an opportunity to address and cure the same.

To the contrary, a party is precluded from claiming that it was harmed absent timely objection during the closing argument.  Farrell, 61 N.J. at 106.

Accordingly, the Appellate Division held that Trial Judges should not admonish counsel against making “appropriate” contemporaneous objections, expressing confidence that the bench can in appropriate circumstances promptly deal with any abusive conduct arising from the ability to object during an adversary’s closing.

Finally, the Appellate Division turned to consideration of specific remarks made by Plaintiff’s counsel during summation.  First, that regarding the Defendant not returning to the courtroom after testifying because Defendant – unlike Plaintiff – did not want to “see the case through.”  Second, the invitation for the jurors to place themselves in Plaintiff’s situation as to why jurors would or would not choose to undergo an epidural injection.  And third, the suggestion that defense counsel did not want the jury to hear the police officer’s conclusion about the accident.

Counsel are generally allowed significant latitude in closing arguments.  Bender v. Adelson, 187 N.J. 411, 431 (2006).  However, arguments may not include unfair and prejudicial appeals to emotion.  Jackowitz v. Lang, 408 N.J. Super. 495, 504-505 (App. Div. 2009).  Further, closing arguments must be based in truth and “counsel may not misstate the evidence nor distort the factual picture.”  Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 534 (Law Div. 1996).  Indeed, in Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004), the Court made clear that counsel may not disparage opposing counsel, or a witness, or suggest an intent to deceive the jury or deliberately distort the evidence.

Indeed, Botta v. Brunner, 26 N.J. 82, 94 (1958) even describes the prohibition against asking jurors what they would expect to receive if they were in a similar position to Plaintiff as the “Golden Rule.”

Accordingly, the Appellate Division found that while these issues may have been capable of being cured had a timely objection been made, since the Trial Judge had banned objections, this was impossible.

Significantly, the Appellate Division noted that the cumulative effect of small errors may collectively be so great as to warrant a new trial.  Pellicer ex rel Pellicer v. St. Barnabas Hospital, 200 N.J. 22, 53 (2009).  With the possible exception of the police officer’s improper opinion testimony, none of the issues addressed above would have warranted a new trial on their own. However, cumulatively, they did.  Accordingly, the Order of Judgment was vacated and the matter remanded for a new trial.

Thus, this Opinion is an instructive reminder from the Appellate Division on several key issues, including when evidence of prior injuries may be admissible, and how; the limits to which a police officer will generally be permitted to testify; and the proper process to be followed by both parties during closing arguments at trial.