Negligence

Plaintiff Mark Krzykalski sued defendants David Tindall and a John Doe, alleging negligence in the operation of their vehicles that caused an accident in which he was injured. At trial, the judge allowed the jury to allocate negligence between defendant Tindall and the fictitiously named John Doe. In the published decision of Krzykalski v. Tindall, 2016 N.J. Super. LEXIS 149 (App. Div. Dec. 5, 2016), the plaintiff appealed this determination to the Appellate Division.

The auto accident occurred on October 24, 2009 at the intersection of Hornberger Avenue and Route 130 in Florence Township. Plaintiff’s vehicle and Tindall’s vehicle were both in the same lane and had slowed to allow an emergency vehicle to enter onto Route 130 from Hornberger Avenue. As they were beginning to move forward, a vehicle driven by a fictitious John Doe passed them, cut in front of them, and crossed their lane to make a left turn onto Hornberger Avenue. Both plaintiff and Tindall braked but plaintiff was unable to stop without striking the vehicle in front of him and Tindall’s vehicle struck the rear of plaintiff’s vehicle.

At trial, plaintiff requested that the John Doe’s negligence be kept from the jury, which motion the judge denied. The jury found Tindall 3% negligent and John Doe 97% negligent for plaintiff’s injuries. On appeal, plaintiff argued that the phantom “John Doe” should not have been placed on the verdict sheet.

Plaintiff contended that a fictitious defendant is not a party to a suit and, hence, the statutory direction that the trier of fact determine “the extent, in the form of percentage of each party’s negligence” is inapplicable to a John Doe defendant. The Appellate Division disagreed, noting that prior case law has held that the consideration of a tortfeasor’s negligence “is not governed by whether that tortfeasor may be said to be a party but turns on whether the other tortfeasor will be affected by the verdict.” The factfinder should be allowed to evaluate the liability of all those potentially responsible.

A nonsettling defendant has a right to have a jury apportion the liability of a settling defendant once it is proven at trial that the settling defendant was negligent. Consequently, the Appellate Division noted that the comparative negligence of a phantom driver, such as a John Doe as in this case, should be considered by a jury in a trial brought by an injured party against another tortfeasor.

The plaintiff tried to distinguish prior case law on the basis that, in this case, no settlement had yet been reached on plaintiff’s uninsured motorist claim against the phantom driver. The Appellate Division rejected that argument.

The Court found no difference between cases in which an uninsured motorist claim had settled before trial or was still pending. In both instances, there remained a need to allocate responsibility between the two tortfeasors. If plaintiff and Tindall had settled before trial, apportionment would be required because Tindall, the remaining defendant, would be “chargeable with the total verdict less that attributable to the settling defendant’s percentage share.” The court found no reason to create a different rule in a situation in which no settlement had yet been reached with the UM carrier. Otherwise, the plaintiff would be able to obtain the full amount of his damages from Tindall and then seek recovery from the UM carrier, which could result in a windfall.

Thus, the Appellate Division upheld the trial court’s ruling, permitting an apportionment of negligence between Tindall and the John Doe fictitious defendant.

Plaintiff Elaine Anderocci was shopping in a retail store known as Reed Krakoff, in the Short Hills Mall, when she reached for a handbag and slipped and fell, fracturing her shoulder. Plaintiff claimed that the floor was very slippery, “like a sheet of glass.” In Anderocci v. Coach, Inc., 2016 N.J. Super. Unpub. LEXIS 2343 (App. Div. Oct. 27, 2016), she sued the retail store, claiming it was negligent because the store’s floor was in a dangerous condition.

The plaintiff obtained an expert report from an expert in wood flooring. He never examined the floor but, nevertheless, opined that the slippery condition of the floor was due to the use of excessive water in cleaning it. The defendant damp mopped the floor three times per week. However, there was no indication in the record as to how much water was used. The expert opined that, if too much water is used when this type of floor is mopped, “crowning” occurs due to a moisture imbalance. This imbalance creates a slippery condition.

After the plaintiff fell, two employees allegedly told the plaintiff that “A lot of people slip in this store” and “We all have to wear rubber-soled shoes here.” The employees later denied making these statements when they were deposed.

The defendant store moved for summary judgment, which was granted by the trial judge. The court concluded that the plaintiff’s expert report should be barred as a net opinion. She ruled that the employees’ statement were inadmissible hearsay. Last, even if these alleged statements were considered, they were not enough to prove negligence. The plaintiff appealed this decision, arguing that the issue of liability should have been presented to a jury.

The Appellate Division agreed with the trial court that the plaintiff’s expert report was an inadmissible net opinion. While the expert appeared to be knowledgeable in aspects of wood flooring, his opinions as to what caused plaintiff’s accident were too speculative to be admissible and were not sufficiently grounded upon factual support in the record. Although the expert did cite to NWFA standards in support of his general theory that excessive moisture used in cleaning may cause wood floors to crown, he failed to have any evidence establishing how much water was used when the floor was cleaned. His opinion simply had an inadequate factual basis and was speculative. Hence, the Appellate Division agreed that his testimony should be barred.

The Court disagreed, however, with the trial judge’s opinion that the statements of the two employees were inadmissible hearsay. The statements were admissible as being made by agents of the defendant. Regardless, the Appellate Division found that the employees’ statements, along with the plaintiff’s own testimony that the floor was slippery was insufficient to establish a cause of action for negligence.

The Court found that the evidence was inadequate to show that the defendant acted unreasonably in its maintenance practices or otherwise in failing to safeguard its customers from this alleged dangerous condition. The Court noted that “it is sheer speculation to deduce that defendants’ employees mopped the wood floor in an improper manner.” The plaintiff failed to argue that the defendant should have posted signs to warn customers of a slippery floor. Thus, the Appellate Division upheld the summary judgment as to the defendant, stating that the defendant is “not strictly liable for the condition of the floor without viable proof of negligence.”

This case points out that not all expert reports are admissible. There must be a factual predicate for the expert’s opinions – which did not exist in this case. Some negligence cases will fail without a liability expert opinion. Thus, if the defendant is able to obtain an order barring the plaintiff’s liability expert report, based upon the net opinion rule, that order may be a prelude to a successful defense motion for summary judgment.

Plaintiff, Marie Richardson, was injured while a passenger on a bus operated by her co-employee, Michelle Herbert (“Herbert”). As the bus approached a traffic light, it rear-ended the vehicle being driven by the defendant Helen Milling. A factual dispute existed as to the color of the traffic light at the intersection where the accident occurred and whether the defendant’s alleged negligence was a proximate cause of the accident. In Richardson v. Milling, 2016 N.J. Super. Unpub. LEXIS 998 (App. Div. May 2, 2016), the plaintiff appealed a summary judgment order dismissing her complaint after the trial court judge found the defendant not to be negligent.

Plaintiff’s only claim was against the defendant Milling because she was barred by the exclusive remedy defense of the Workers’ Compensation Act to sue Herbert, who was a co-employee. Thus, to recover for her injury, she had to prove that defendant, who was rear-ended by Herbert, could be negligent for this accident.

Plaintiff was unable to see the traffic signal at the intersection. Herbert claimed that defendant slammed on her brakes even though the light was green. Defendant asserted that she was travelling about 50 mph, and although almost all nearby vehicles went through the intersection, she stopped because the light was yellow.

Defendant also testified that, when she saw the light was yellow, she checked her rear view mirror and confirmed it was safe to stop. When she saw the bus approaching and realized that it could not stop in time, she took her foot off the brake to minimize potential impact. She claimed that traffic from a Walmart perpendicular to the intersection was travelling into the intersection at the time.

The trial judge concluded that plaintiff could not attribute any fault to defendant because no tickets were issued at the scene. The judge assumed that, due to the Walmart traffic travelling towards plaintiff, the light facing the parties was likely yellow or red. Moreover, the judge found that, even if the traffic light was green, Herbert had a duty to drive a reasonably safe distance from the defendant to avoid a collision. Thus, the trial judge granted the defendant’s motion for summary judgment, dismissing the complaint.

The plaintiff appealed, arguing that the trial judge inappropriately engaged in fact finding, failed to view the record in the light most favorable to plaintiff, and erred in his legal analysis.

The Appellate Division found that the trial judge, when faced with conflicting accounts of the accident, should not have resolved the factual issues in the defendant’s favor.

Prior case law held that, based upon the motor vehicle code, following too closely would constitute negligence. However, the Appellate Division pointed out that “the mere occurrence of a rear-end collision does not automatically establish a driver followed the preceding vehicle at an unreasonable distance.” The finder of fact must consider all the circumstances to determine whether a driver conformed to the relevant standard of care.

Here, there was conflicting testimony as to the color of the traffic light as the defendant and the bus proceeded through the intersection. Just because the defendant was not issued a traffic ticket, that does not mean that she could not be liable in a personal injury lawsuit. A driver operating a vehicle “must exercise reasonable care in the control, management, and operation of his or her vehicle, and a driver has a right to assume other drivers will adhere to this standard of care.”

The Appellate Division found that, when viewing the evidence in the most favorable light as to plaintiff, a jury could conclude that the defendant breached her duty of care by attempting to stop at a green light and that her conduct was a proximate cause of plaintiff’s injuries. The defendant need not be the sole proximate cause of plaintiff’s injuries and any negligence attributable to Herbert would not necessarily bar recovery by plaintiff. Thus, the Appellate Division reversed the trial court’s decision dismissing this case.