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This blog, written by Litigation Department Shareholder and Hiring Shareholder Charles F. Holmgren, Esq., focuses on liability litigation cases decided in New Jersey courts.

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Police Officer Found to Be Immune From Liability for an Accident Caused by High Speed Chase

Plaintiffs Omer Jackson and Sharonda Jackson sued defendants County of Hudson, Hudson County Sheriff’s Office, and Officer Renato Maure-Cascaret for injuries suffered by Omer when his car was hit by a car that was being pursued in a high speed chase by Officer Maure-Cascaret.  The defendants successfully filed for a motion for summary judgment, obtaining a dismissal of the lawsuit.  The issue in Jackson v. County of Hudson, 2024 N.J. Super. Unpub. LEXIS 561 (App. Div. Apr. 4, 2024) was whether the officer committed willful misconduct in his police pursuit or whether he was immune from liability under the Tort Claims Act.

The incident occurred at about 5:00 a.m. when Officer Maure-Cascaret of the Hudson County Sheriff’s Department was conducting radar enforcement in Jersey City.  He observed a vehicle driven by defendant Oriental Hamlet pass through three consecutive red lights and his radar captured his speed at traveling between 68 and 70 miles per hour on a road with a posted speed limit of 25 miles per hour.  The officer began following Hamlet and attempted to “close the gap” without turning on his patrol car’s lights or sirens.  He radioed the on-duty communications officers to inform them that he was following a vehicle traveling at a high speed.  The Hamlet vehicle ultimately slowed down and the officer was able to initiate a traffic stop.  After both vehicles were stopped for several seconds, the officer called in Hamlet’s license plate but then Hamlet suddenly sped away.

Officer Maure-Cascaret again contacted the on-duty communications officers to report that the vehicle had sped away and he was going to pursue it.  Hamlet then sped through a red light and collided with Omer’s vehicle which had the green light.

This entire incident from the time the officer initially observed Hamlet speeding to the attempt to pull him over, to the accident terminating the pursuit, lasted only about 50 seconds.  The time period after the initial stop was about 30 seconds and lasted approximately 9 or 10 blocks.  The officer was about one block behind Hamlet when the collision occurred.

The trial court found that the Tort Claims Act provision, N.J.S.A. 59:5-2(b)(2), conferred immunity on the police officer for injuries resulting from a pursuit.  Under this statutory provision, “neither a public entity nor a public employee is liable for any injury caused by an escaping person or escaped person.” And, further, under N.J.S.A. 59:5-2(c), neither the public employee, nor the public entity is liable for “any injury resulting from or caused by a law enforcement officer’s pursuit of a person.”

Plaintiff contended, however, that there was an issue whether the officer’s decision to initiate the pursuit and his subsequent failure to terminate the pursuit violated the Attorney General’s Vehicular Pursuit Policy and, therefore, constituted willful misconduct (which would void out these immunities).

In the prior New Jersey Supreme Court Case of Fielder v. Stonack, the Court defined willful misconduct in the context of police pursuits.  There are two elements which must be satisfied: “(1) disobeying either a specific lawful command of a superior or a specific lawful standing order and (2) knowing of the command or standing order, knowing that it is being violated and, intending to violate it.”  

The Appellate Division agreed with the trial court decision herein that “there were no credible facts in the record to establish Officer Maure-Cascaret engaged in willful misconduct during his pursuit of Hamlet.”  Under the Attorney General Guidelines, a police officer may only pursue a suspect if they have committed a first-or second-degree offense or if the officer reasonably believes the suspect poses an immediate threat to either the public or the officer. 

In his deposition, the officer had explained that his decision to pursue Hamlet was based, in part, on Hamlet pulling away from the initiated traffic stop.  This was a second degree offense of eluding, warranting police pursuit based upon the Attorney General Guidelines. In conjunction with the characterizations of Hamlet’s action as a second degree offense, the officer’s decision was authorized and, therefore, his actions did not constitute willful misconduct.

Further, the Appellate Division noted that this pursuit was of such a short duration that the accident occurred before the officer could even have a reasonable chance to terminate the pursuit.  As for the use of excessive speed, it is judged upon whether it is reasonable for the officer to move at excessive speed.  The trial judge had concluded that finding the officer acted improperly pursuing Hamlet at the speeds he traveled would be “an unfair and illogical reading of the guidelines.”

To deny the defendants’ summary judgment motion “would have required a factual dispute over whether Officer Maure-Cascaret demonstrated willful misconduct in both his decision to pursue Hamlet and his failure to terminate the pursuit prior to the collision.” 

The Appellate Division found that the undisputed facts showed that the pursuit occurred on a virtually empty street before 5:00 a.m., it lasted 30 seconds, for only 9 blocks, with no order from a commanding officer to terminate the pursuit, and there was no expert report opining that the officer’s speed was unreasonable.  Hence, based upon these factual circumstances, there were no facts that could demonstrate willful misconduct and, therefore, no genuine dispute as to any material fact existed.  Thus, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Appellate Division Reverses Summary Judgment Granted to Defendant as to Property Damage Claim

Plaintiff Zulfigar Ahmed suffered a property damage loss at his owner-occupied two-story residential apartment house in Paterson due to a high wind rainstorm.  At that time, a tree limb and branches fell onto plaintiff’s home, damaging its roof, vinyl siding, concrete masonry wall, a window and other property.  The issue in Ahmed v. American Security Insurance Co., 2024 N.J. Super. Unpub. LEXIS 852 (App. Div. May 13, 2024) was whether the plaintiff had submitted sufficient proofs of his property damage from this rainstorm to survive a motion for a summary judgment dismissal.

Plaintiff’s home was insured with American Security Insurance Company under a hazard insurance policy.  The policy provided liability coverage for the dwelling.

After the rainstorm, plaintiff submitted an insurance claim, specifically claiming that rainwater leaked from the damaged roof and window to lower levels of the house causing water damage to the basement.  Defendant’s adjuster inspected the exterior of the property, taking limited pictures.  Plaintiff submitted damages in the form of an itemized invoice from Ortiz Construction in the amount of $34,246.00 for the repairs performed.  The defendant insurance company advised plaintiff it was preserving a full reservation of rights pending full access to the property for a complete inspection.  Subsequently, plaintiff submitted a request for payment for an exterior gutter, house trimming, a door, a step railing, the roof, and vinyl siding.  Plaintiff resubmitted the paid Ortiz Construction invoice and requested a payment of same.

A dispute arose as to the extent of the damage caused by this storm.  The defendant insurance company disputed causation for some of the plaintiff’s alleged property damage, attributing necessary repairs to prior insurance claims.  In the prior year, plaintiff had settled five property damage claims with defendant.

In December 2020, defendant notified plaintiff’s counsel that the claim adjustment was completed and sent a check in the amount of $8,703.00 to cover the damage it claims was caused by the rainstorm.  While the plaintiff’s counsel received the check, allegedly, it was returned as inadequate.  The plaintiff maintained that the total tree damage loss to his house and car was approximately $440,000.00. 

This dispute ended up in a lawsuit in which plaintiff sued the insurance company for breach of contract, negligent misrepresentation, declaratory judgment, specific performance, unjust enrichment, and bad faith.  Then it produced an expert report by a forensic engineer who opined that most of the interior damage was unrelated to the tree impact and was related to prior claims. While the report acknowledged the exterior damage, the expert opined that there was “historical and overlapping damage.”  Plaintiff, in rebuttal, produced multiple receipts, including additional paid invoices from Ortiz Construction and MK Construction. 

At the conclusion of discovery, the defendant moved for a summary judgment dismissal.  The trial court judge granted the motion, finding that all of the damage was not causally related to the tree damage.  Plaintiff appealed this ruling.

The Appellate Division reversed.  It found that summary judgment should not have been granted because there were issues of fact which precluded a dismissal though a summary judgment proceeding.  The Court found that the trial court judge failed to address plaintiff’s Ortiz Construction invoices which showed payment for the repair work.

The Appellate Division found that “the construction company invoices sufficiently demonstrated a prima facie showing of disputed facts regarding property damage causally related to the fallen tree limb precluding summary judgment.”  The Court expressed no opinion as to whether plaintiff’s proffered contractors should be qualified as experts, but it concluded that plaintiff made a sufficient prima facie showing as to at least some of the damages alleged.  Thus, the Appellate Division reversed and remanded back to the trial court for further proceedings.

Defense Counsel Permitted To Cross-Examine Plaintiff Concerning Statements Made In Pre-Accident Medical Records

Plaintiff Monica Graham was awarded $325,000 in damages in a lawsuit she filed against defendant Carole Venetianer for injuries she suffered in a car accident with defendant.  Plaintiff filed an appeal of this jury verdict, arguing that defense counsel should not have been permitted to cross-examine her using medical records not admitted into evidence.  The issue in Graham v. Venetianer, 2024 N.J. Super. Unpub. LEXIS 819 (App. Div. May 8, 2024) is whether the trial court made an error in permitting plaintiff to be cross-examined concerning her prior medical history, as well as focusing on her pre-accident admissions in those records during the summation to the jury.

Plaintiff was in an accident with the vehicle driven by the defendant on April 7, 2016.  Following the accident, she treated for spinal injuries, resulting in spinal surgeries performed by a neurosurgeon in 2018 and 2019.  The plaintiff had medical experts testify for her at trial, which did not include her family doctor, Dr. Linda Guirguis.  However, on cross-examination, defense counsel questioned plaintiff about her prior medical history and confronted her with admissions and statements attributed to her about her pain and therapy regimen in Dr. Guirguis’s medical records.  These records were never admitted into evidence.

The trial court found that the defense’s cross-examination of plaintiff regarding her pre-accident medical treatment was proper.  Upon appeal, plaintiff argued that she was unfairly prejudiced by defense counsel’s use during cross-examination of the pre-accident medical records. 

In analyzing the arguments made by the plaintiff, the Appellate Division noted that under the New Jersey Rules of Evidence, there were certain exceptions to the hearsay rule which permitted an out of court statement.  One of the exceptions is statements made for purposes of medical diagnosis or treatment. (N.J.R.E. 803(c)(4)).  Pursuant to this rule, statements made for the purposes of medical diagnosis would be admissible when used to show the existence of a medical issue.

The Appellate Division concluded that the scope of plaintiff’s cross-examination, to the extent it focused on her medical condition prior to her 2016 accident, was permissible.  The defense asked plaintiff to confirm her pre-accident statements to Dr. Guirguis about her prior neck and back pain, pain from sitting and standing while on vacation, two visits to her radiologist, continuous follow up on neck and back complaints and a prescription for pain medication.   The statements made by plaintiff were made to Dr. Guirguis for the purpose of obtaining a medical diagnosis or treatment.

The Appellate Division also found that plaintiff was not unfairly prejudiced by defense counsel’s reference to the same medical records in summation.  First, it noted that plaintiff’s counsel failed to object during the summation.  In the appeal, Plaintiff had targeted that part of defendant’s closing which referenced her visits and physical complaints to her family doctor in 2015.  The Appellate Division found that there was “nothing in defense counsel’s closing that could be characterized as plain error which was clearly capable of leading to an unjust result.”  Thus, the Appellate Division refused to disturb the trial court rulings and the jury verdict. 

Personal Injury Claim Resulting From Fall on Snow and Ice Barred by Ongoing Storm Rule

Plaintiff Joseph Devaney was working as a security guard for G4S at facilities owned by defendant Chemours Company.  On the day of the accident, there was a winter storm with light snow, sleet, and freezing rain.  During the course of plaintiff’s inspection of the premises, he slipped and fell, suffering injuries.  The issue in Devaney v. Chemours Co. FC, LLC, 2024 N.J. Super. Unpub. LEXIS 776 (App. Div. May 2, 2024) was whether the ongoing storm doctrine decided by the New Jersey Supreme Court after the date of his fall applied to bar his claim.

As a security guard, plaintiff’s responsibilities including inspecting  incoming and outgoing cars at Chemours entrance and exit.  He would walk through the doorway to conduct his inspection.  Four days before his fall, there was a winter storm that resulted in less than 4 inches of snow.  On the day of the accident, January 8, 2018, there was a winter storm that began around 2:00 p.m. and did not end until around 9:30 p.m.  When Chemours became aware of the icy conditions, they contacted their snow contractor and alerted their security guards.

Plaintiff’s shift began around 6:00 p.m.  At around 8:30 p.m., while walking his usual path, he slipped and fell on the asphalt into the doorway between the areas he was inspecting.  He suffered injuries as a result of his fall.

At the trial court level, the defendant landowner Chemours filed a motion for summary judgment, relying upon the case of Pareja v. Princeton International, which was granted.   In Pareja, the Supreme Court adopted the ongoing storm rule which held that commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.  Based upon the adoption of this rule, it “relieved commercial landowners of the duty to continuously clear snow and ice from their property throughout the duration of an inclement winter weather event.”

Based upon those circumstances of this accident, it was undisputed that plaintiff’s slip and fall occurred during the snowstorm.  Accordingly, the Court found that the ongoing snowstorm rule applied and it relieved the defendant of any duty of care it may have owed plaintiff.

Plaintiff argued that the ongoing storm rule should not have been applied retroactively to accidents that occurred prior to the adoption of the rule.  Plaintiff argued that contradicted “the negligence jurisprudence that provides individuals recourse if they are seriously injured due to a defective sidewalk.”  The trial court judge rejected that argument. 

The Appellate Division found that the trial court correctly rejected the argument because there was nothing in Pareja which required prospective application only.  In fact, in Pareja, the Court applied the “newly rendered ongoing storm doctrine” to a 2015 slip and fall that had occurred during an ongoing storm.

The plaintiff also argued that the rule should not be extended to include sidewalks of “highly secured, restricted – access industrial facilities such as Chemours.”  The Appellate Division also rejected that argument, finding that Pareja rejected the distinction between public and private ownership, to ensure uniformity.  It declined to draw arbitrary lines for the type of property that fall under Pareja.  Hence, it found that there was no reason to limit Pareja’s application to exclude facilities such as Chemours.

Based upon Pareja, remediation was only required within a reasonable period of time after the storm had ended.  Thus, liability did not attach to the defendant landowner until after the storm ended, which in this case was about 9:00 p.m., well after the plaintiff fell.

Therefore, the Appellate Division was satisfied that the trial court correctly considered the entire record and found that the ongoing storm rule barred plaintiff’s negligence claim against defendant as a matter of law.  Therefore, the trial court decision was affirmed, which dismissed the lawsuit.

Court Finds That Lawsuit Filed Against Insurance Company Was Timely Filed

Plaintiffs Marlene Romhen and Ibrahim Mirkhan filed a lawsuit against the defendant insurance company Franklin Mutual Insurance Inc. based upon a theft loss that occurred at their insured residence.  The claim was denied by Franklin Mutual by letter dated September 17, 2021.  According to the denial letter, the insured needed to file suit against them within twelve (12) months of the date of the letter.  The issue in Romhen v. Franklin Mutual Insurance, Inc., 2024 N.J. Super. Unpub. LEXIS 708 (App. Div. Apr. 25, 2024) was whether the lawsuit was timely filed because it was filed on the Monday after the one year time period expired the prior Saturday.

The theft occurred at the insured residence on March 30, 2021.  Plaintiffs reported the loss to Franklin Mutual on April 1, 2021.  The insurance policy contained a provision that any lawsuit filed against Franklin Mutual must be filed within twelve (12) months of the date of the denial letter.  The denial letter was issued on September 17, 2021.

However, the plaintiffs did not file their complaint against Franklin Mutual until Monday, September 19, 2022.  Franklin Mutual argued before the trial court that the complaint needed to be filed on or before Saturday, September 17, 2022 to meet the 12 month shortened suit requirement, and, therefore, the complaint was filed two days late.

The trial court accepted that argument and dismissed the complaint.  This appeal ensued.

The Appellate Division noted the well settled law that “because insurance policies are contracts of adhesion, if any ambiguity exists, the ambiguity must be construed so as to effect the ‘reasonable expectations of the insured.’”  Further, the Court noted that if the policy language supported two meanings, one that favored the insurer and the other one that favored the insured, the policy should be construed so as to sustain coverage in favor of the insured.

Under New Jersey court rules, in computing any period of time fixed by rule or court order, if the last day of the time period falls on a Saturday, Sunday, or legal holiday, the time period would not run until the end of the next day which is neither a Saturday, Sunday, nor legal holiday.  The trial court, however, found that this court rule did not apply because it was applying the terms of the insurance policy, which is a contract between the parties.  The Appellate Division agreed with that rationale. 

However, the Court noted that it was not disputed that the parties agree to an abbreviated deadline, commonly referred to as a “shortened suit clause,” which shortens the time period from the normal six (6) year statute of limitations that would generally apply to a breach of contract in a civil case.

But, the Appellate Division found that there was an ambiguity in the insurance contract.  It noted that if Franklin Mutual “wanted to ensure strict adherence to a one-year deadline with no exceptions or extensions for weekends, it could have said so explicitly in the endorsement it drafted.”  Further, when it sent out its denial of coverage letter, it could have specified the exact date when the deadline for filing a lawsuit would expire.  By specifying the exact date, that would have left no doubt as to its interpretation of the policy clause and would have provided clear notice of the last day in which a lawsuit could be filed.  However, the denial letter left it up for the policy holders to determine the one year deadline because the letter made no reference to the fact that, in this instance, the expiration of the one year time period fell on a Saturday.

The Appellate Division applied a liberal interpretation of the shortened suit clause in the insured’s favor, “coupled with the general preference to hear cases on their merits rather than dismiss them based on strict enforcement of procedure rules.”  Hence, the Court determined that the lawsuit challenging Franklin Mutual’s denial of coverage as to the lawsuit which was filed on Monday, September 19, 2022 was deemed timely under the shortened suit clause endorsement.  Thus, the Appellate Division reversed the trial court decision and remanded the case back to the trial court for further proceedings.

Public Entities Are Not Immune From Frivolous Sanction Litigation

In Borough of Englewood Cliffs v. Trautner, 2024 N.J. Super. LEXIS 37 (App. Div. Apr. 22, 2024), in a published decision, the Appellate Division settled the issue of whether a public entity is immune from sanctions for filing a frivolous lawsuit in accordance with the Frivolous Litigation Statute N.J.S.A. 2A:15-59.1 (hereinafter FLS). The issue stemmed from the Borough’s retention of Thomas J. Trautner and Chiesa Shahinian & Giantomasi, PC (hereinafter CSG), Albert Wunsch III,  Jeffrey Surenian and Jeffrey Surenian and Associates, LLC (hereinafter Surenian) to represent it in affordable housing litigation.

The affordable housing matter was eventually settled but after change of political control in the Borough’s Council, the newly constituted Council sued CSG, Wunsch, and Surenian alleging professional malpractice, breach of contract, unjust enrichment, civil conspiracy, and aiding and abetting in course of their representation of the Borough in the litigation.  Shortly after being served the complaint, each defendant sent the Borough’s attorneys notices demanding the lawsuit be voluntarily dismissed because it was frivolous. Later, the trial court granted defendants’ motion to dismiss the Borough’s complaint with prejudice.

The defendants then filed a motion to recover attorney’s fees on the ground that the Borough failed to withdraw the lawsuit as they demanded. The trial court awarded fees to the defendant attorneys, and one of the basis for this appeal was the Borough’s contention that as a municipality it was immune from frivolous litigation sanctions.

The Appellate Division observed that the issue of whether a State, its agencies and political subdivisions are immune from frivolous litigation sanctions under the FLS statute is an unsettled law with only two prior divergent rulings that address the issue. The Court considered the ruling in In the Matter of K.L.F., 275 N.J. Super. 507, 511 (Ch. Div. 1993), where the Chancery court had concluded that the “ the State and its agencies and political subdivisions do indeed fall within the purview and operation” of FLS. In reaching this conclusion, the court had noted that the legislative intent underlying the statute was to reimburse the party that was victimized by frivolous litigation and, because the legislature did not carve out an exception immunizing state agencies within the language of the statute, it is evident that the legislative intent was not to exempt the state and its agencies from the sanctions.

The Appellate also discussed a different conclusion reached by another Chancery court in Division of Youth & Family Services v. P.M.,  301 N.J. Super. 80, 82 (Ch. Div. 1997). In this case, the court had concluded that a state agency was immune from FLS sanctions focusing on the language of the statute, “A party who prevails in a civil action . . . against any other party may be awarded all reasonable litigation costs and reasonable attorney fees or defense  . . . if the [claim] of the nonprevailing person was frivolous” and holding that the word person does not include the State of New Jersey unless used to designate the owner of property.

The Appellate Division agreed with the reasoning of the Chancery court in K.L.F., holding that a public entity is not immune from sanctions that can be imposed under the FLS. The Court noted that, given the plain language in the statute and the unqualified use of the term, “party,” leads it to conclude that the term does not exclude a public entity “party.” The Court also observed that the legislative objective in enacting the statute was punitive in nature and there is no indication in the statute’s legislative history that public entities were meant to be exempt from sanctions if they filed claims determined to be frivolous. The Court noted that even in subsequent amendments to the statute, after the decision in P.M., the Legislature did not amend the statute to clarify whether public entities were immune. Therefore, based on the plain language of the statute, backed by legislative history, the Appellate Division concluded that FLS allows for sanctions against public entities and affirmed the decision of the trial court.

Plaintiff’s Personal Injury Claim Dismissed Due to Lack of Expert Report As to Causation

The decedent Alice Trainor fell while attending the defendant’s adult day health care services.  The 89-year-old Alice fell while walking towards the bathroom at the defendant’s facility, suffered injuries, and ultimately passed away.  The issue in Estate of Alice Trainor v. Active Day of Brick, 2024 N.J. Super. Unpub. LEXIS 552 (App. Div. Apr. 3, 2024) was whether the plaintiff was required to provide expert testimony as to the causation of Alice’s injuries to be able to pursue a claim for personal injuries.

The decedent, Alice Trainor, with vascular dementia, was attending adult day health care services at defendant’s Active Day of Brick’s facility.  She began walking towards the bathroom at the facility when another participant in the program attempted to help her.  However, defendant’s activities manager, Kellie Piaskowski, intervened and proceeded to assist Alice towards the bathroom.  She was attempting to guide her there.  Alice was shuffling her feet somewhat and tripped over her feet.  Alice fell flat down to the floor and banged her face.  She was taken by ambulance and treated for her injuries.  A few weeks later, she was found unresponsive, and her condition deteriorated.  She ultimately passed away within two months after the incident.

Her Estate filed a lawsuit against the facility, arguing that the defendant facility had a duty to provide Alice with a safe environment but failed to do so.  The defendant moved for a summary judgment, arguing that the plaintiff’s claims failed because plaintiff did not have a medical expert to support plaintiff’s case.  The trial judge agreed with that argument, finding that plaintiffs had not provided an expert medical opinion asserting a causal relationship between the alleged negligence and the injuries Alice suffered. The judge granted the motion, dismissing the case and this appeal ensued.

Plaintiffs argued that there was a State mandated ratio of 9-1 (patient to staff ratio) and that Medicaid required a ratio of 5-1.  However, the defendant maintained a 30-1 ratio of patients to staff.  Plaintiffs argued that, because of the extreme imbalance between patients and caregivers, the finder of fact could rely on the theory of res ipsa loquitur to infer defendant’s lack of due care and, hence, negligence.  The trial judge had rejected this theory, stating that “under any stretch of the imagination,” this was not a res ipsa loquitor case.

Plaintiffs argued upon appeal that the medical causation was not in question and the jury does not need an expert to determine whether defendants’ 30-1 patient to staff ratio was a gross deviation from the standard of care.  The Appellate Division rejected that argument.

The Appellate Division noted that the doctrine of res ipsa loquitur, if applied, would allow a finder of fact “to infer with the defendant’s lack of due care only when three elements of the doctrine had been satisfied:

a)         The occurrence itself ordinarily speaks negligence;

b)         The instrumentality was within the defendant’s exclusive control; and

c)         There is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

The Court noted that to satisfy this res ipsa loquitur standard, “plaintiffs would need to demonstrate that an 89-year-old falling while being assisted by a caregiver ‘itself ordinarily bespeaks negligence’; the environment was in ‘defendant’s exclusive control’; and ‘there was no indication in the circumstances that the injury was the result of [Alice]’s own voluntary act or neglect.’”  The Appellate Division found that the plaintiff was not able to satisfy any of these elements. 

Further, the Court explained that res ipsa loquitur only fills in a gap in plaintiff’s negligence claim with the respect to a breach of duty of care and not as to the causal relationship between a breach and the injury suffered.  The causal relationship is what the trial judge found was missing.  The Appellate Division noted that the jury would have no means of judging whether defendant’s purported short staffing or the staff member who helped Alice was the proximate cause of Alice’s injuries.

The appeals court agreed with the trial court’s conclusion that “a lay jury is insufficiently knowledgeable of the specifics of elder care and assistance to competently determine whether any purported short-staffing or Piaskowski’s helping Alice to the bathroom was the cause of Alice’s injuries.”  Thus, the Appellate Division affirmed the trial judge’s decision that, lacking expert testimony to that effect, the defendant must prevail as a matter of law. 

Plaintiff’s Personal Injury Lawsuit Dismissed Due to Her Failure to Identify the Condition That Caused Her Accident

Plaintiff Artherine Price was at the Quaker Bridge Mall on May 10, 2018, when she twisted her ankle in the parking lot of the Mall.  She claims that she fell in the crosswalk while walking from her parked car to enter the store and sued the Mall defendants for her injuries.  The issue in Price v. Quaker Bridge Mall, LLC., 2024 N.J. Super. Unpub. LEXIS 591 (App. Div. April 10, 2024) was whether the plaintiff’s claim should be dismissed due to her failure to identify the exact cause of her injury.

Plaintiff testified that her ankle twisted, and she almost fell as she was in the crosswalk.  She could not identify the exact location of where the incident occurred within the crosswalk.  She also testified that she never saw anything in the crosswalk, before or after the incident that caused her to twist her ankle.  Even after the incident, when she returned to the crosswalk with the security guard, she was unable to point to the specific spot where the incident occurred.  The best she could state was that the incident occurred in an area where the pavement was cracked.  Hence, she believed that the cracked or broken pavement caused her to twist her ankle.

The Mall defendants filed for a summary judgment dismissal based upon the plaintiff’s deposition testimony.  The trial court judge found that there was no dispute that plaintiff was injured in the Mall’s parking lot.  However, the issue was that plaintiff could not establish causation.  Even when she went to the location a few days later and took photographs, she was unable to identify any particular cause.  Because the mere happening of an accident was insufficient to establish negligence, the trial court judge granted defendants’ summary judgment motion.

The plaintiff appealed that decision to the Appellate Division.

Upon appeal, Plaintiff acknowledged that her deposition testimony had inconsistencies regarding causation and that a jury could conclude at trial that such inconsistencies adversely affected her credibility.  Plaintiff argued that they did not provide a basis for the trial court judge to disregard her testimony and grant defendant’s summary judgment.

The Appellate Division noted that proximate causation is a basic element of tort law.  The court stated that “[to] establish causation a plaintiff must prove the defendant’s act or omission was both the factual and proximate cause of his or her injury.”  It would be the factual cause if, but for the event, the injury probably would not have happened.

Here, the Appellate Division was convinced that defendants were entitled to a judgment as a matter of law.  The Court noted “that [t]he judge’s factual findings were supported by substantial evidence in the record and reveal there is no dispute of fact regarding causation.”  The Court further pointed out that plaintiff was unable to establish that “but for” defendants’ actions or omission she would not have twisted her ankle because she cannot establish what condition caused her to twist her ankle. 

Accordingly, the Appellate Division found that she failed to make a showing sufficient to establish causation, which is an essential element of her case.  Therefore, the Court agreed that defendants were entitled to summary judgment and affirmed the trial court decision, dismissing her lawsuit. 

What is “Discovery” in a Civil Lawsuit?

Lawyers understand the term “discovery” in the context of a civil lawsuit but laypeople involved in a lawsuit likely do not understand what it means to “conduct discovery.” In general terms, it means exactly as it is defined in plain English, i.e. to find out something. In the context of a lawsuit, discovery is used to find out about the basis of the plaintiff’s claims, as well as the basis of the defendant’s defenses.

Our court rules permit a wide latitude in discovery. A party may “discover” any information or documentation that is either relevant to the subject matter of the lawsuit, either the claims or the defenses, or which is “reasonably calculated to lead to the discovery of admissible evidence.” This information or documentation may not be admissible at trial based upon an evidentiary rule but it may nevertheless be required to be produced in discovery if requested.

Discovery can be made through various formats. Typically, lawsuits start off by requesting the other party to answer written questions called interrogatories. These questions will include topics asking about either the claims or defenses, such as asking about the party’s version of events, persons with knowledge of relevant facts, the plaintiff’s injuries and/or damages, and the identity of experts and their reports.

Additionally, written discovery requests will likely ask for relevant documents that would support the party’s claim or defenses.

After written discovery is exchanged, the parties usually move onto depositions. In depositions, witnesses are asked to give oral sworn testimony about the subject matter of the lawsuit. Some of the same topics asked in written questions are often asked in depositions but in much more detail. It also gives the other party the opportunity to assess the individual’s demeanor as a witness.

Discovery may also include an inspection if the claim involves an incident resulting from the condition of a premises or a piece of equipment or machinery. Experts, if retained, may need to conduct an inspection to prepare an expert report.

If the matter involves a personal injury, medical records need to be obtained during the discovery process to be able to assess the medical condition and extent of injuries suffered by the injured plaintiff. These records are evaluated by defense counsel and then typically utilized to set up a defense medical examination. The plaintiff has treating or examining doctors and the defense will need its own doctor to examine the plaintiff and provide an opinion on what injuries the plaintiff suffered in the incident and if the plaintiff suffered a permanent injury.

Depending on how the accident occurred, after the written discovery and depositions are completed, then the parties decide if other experts need to be retained. In addition to medical experts, other experts may need to be retained who can render opinions on the liability aspect of the case, such as who is responsible for the incident occurring (or not responsible). In addition, there could be other experts as to damages that need to be retained, such as economic or vocational experts.

And, the last discovery typically conducted would be expert depositions. Due to the cost of deposing experts, expert depositions are not routinely conducted.

Once all of this discovery is completed, the lawsuit moves onto its final stage. Settlement is often considered at the conclusion of discovery. If the case does not settle, personal injury lawsuits are subject to mandatory nonbinding arbitration in New Jersey. Additionally, mediation is used frequently as a proceeding to facilitate settlement.

If the case does not settle, the parties can consider filing a motion for summary judgment to try to obtain a dismissal before trial. If not, or if the motion is not granted, at that point, the case would be resolved through a trial.

Court Enforces Strict Deadline for Filing Demand for Trial De Novo

Plaintiff Arabruny Lindor, as Administrator Ad Prosequendum of the Estate of Roosevelt Rene, filed a wrongful death lawsuit against defendant Janoris Jenkins which was arbitrated on September 21, 2022.  The arbitrator assessed liability at 50% to each party and awarded plaintiff gross damages of $800,000 with a net award of $400,000.  The issue in Lindor v. Jenkins, 2024 N.J. Super. Unpub. LEXIS 348 (App. Div. Mar. 5, 2024) was whether the defendant timely filed a demand for a trial de novo, rejecting the arbitration award.

Pursuant to the New Jersey court system, this lawsuit was required to be submitted to an arbitration proceeding.  However, under the court rules, if either party is dissatisfied with the award, the party may reject the award and request a trial de novo, as long as the request with the filing fee is made within 30 days of the award.  The problem in the Lindor case was that the arbitrator verbally informed counsel of the decision and completed the arbitrator’s award on the date of the proceeding.  However, the court, through the eCourts system did not notify counsel that the arbitration award was filed until September 22, 2022, the day after the proceeding. 

On October 24, 2022, defendant filed his request for a trial de novo.  The form indicated that the hearing date was September 21, 2022, but the defendant added that the arbitration award was not entered until September 22, 2022.

On October 31, 2022, plaintiff filed a motion to vacate the trial de novo and confirm the arbitration award, arguing that defendant’s request for a trial was untimely as the last day to file for a trial de novo was October 21, 2022.  In opposing the motion, defendant argued that the time to file ran from the court’s filing date of the arbitration hearing, September 22, and not the date of the hearing, September 21.  Because October 22 was a Saturday, defendant claimed that his filing on Monday, October 24 was timely.

At the trial court level, the judge granted plaintiff’s motion and vacated the entry of the trial de novo and confirmed the arbitration award.  The trial court judge agreed that the defendant had miscalculated the time period by which to file for the trial de novo.  The judge found that the time ran from the date the arbitration award was filed on September 21, 2022, and, hence, the demand for a trial de novo was due no later than Friday, October 21, 2022.  Thus, defendant’s demand for a trial de novo filed on Monday, October 24, 2022, was untimely. 

The defendant appealed this ruling to the Appellate Division.  Unfortunately, for the defendant, the Appellate Division agreed with the plaintiff.  It strictly construed the court rule which stated that a party has 30 days after filing of the arbitration award to file a notice, served upon the civil division manager and all other parties, rejecting the award and demanding a trial de novo.  The Court found that there was no ambiguity in the rule.  This rule has been in place since 1986 and there has been no change in the meaning of the “filing date” of an award. 

In this case, the date was stamped on the award, September 21, and counsel was advised through eCourts that the award was filed on September 21, even though counsel was unable to view it in the eCourt system until September 22.  The Appellate Division found that it would be confusing to accept the defendant’s interpretation that the award was not considered filed until the court system recorded the filing.  The Court found that such an interpretation would lead to different time frames in every case.

Here, the date was clear and conveyed to the parties on the award itself and through the eCourts notification and on the case jacket.  Thus, the Appellate Division agreed that the trial de novo request was untimely.  It found no reason to disturb the trial court’s decision that the defendant’s demand for a trial de novo was untimely and that the arbitration award should be confirmed. 

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