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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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Appellate Division Reverses Dismissal of Plaintiff’s Complaint and Remands Matter for Evidentiary Hearing on the Issue of Charitable Immunity

Plaintiff Laurence Rothschild claims that he suffered injuries after a slip and fall in a puddle of water at a coin show that was held on a premises owned by the Police Athletic League of Parsippany-Troy Hills (“PAL”).  Plaintiff brought a negligence lawsuit against the Township of Parsippany-Troy Hills, PAL and Garden State Coin Stamps Currency Show, Inc. for damages. One of the issues in Rothschild v. Twp. of Parsippany-Troy Hills, 2024 N.J. Super. Unpub. LEXIS 372 (App. Div. March 8, 2024) was whether the trial court made a mistake in finding that PAL was entitled to charitable immunity against such claims.

The trial court had dismissed plaintiff’s complaint against PAL, holding that PAL was entitled to charitable immunity without conducting an evidentiary hearing. On appeal, Plaintiff argued that: 1) PAL failed to present sufficient evidence as to its revenue and funding sources to be entitled to charitable immunity; 2) the judge failed to follow his own orders and conduct an evidentiary hearing on the disputed facts; and 3) the judge mistakenly considered financial records provided well after the close of discovery and lacked authentication and attestation based on personal knowledge.

The Appellate Division noted that charitable immunity is an affirmative defense and an entity seeking charitable immunity must establish that: “1) it was formed for non-profit purposes; 2) is organized exclusively for religious, charitable or educational purposes; and 3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable work.”

When an entity asserts it is organized for charitable purposes, like PAL was in this case, the court must review its funding sources to determine whether a charitable purpose is being fulfilled. The Court further explained that to aid this inquiry, the entity must provide evidence, “to assist in analyzing its [financial records] and determining funds received from charitable contributions” and specify the fee structure for its programs and services and detail its fundraising efforts with specificity.

Here, three days prior to the scheduled hearing to determine whether PAL was entitled to charitable immunity, PAL presented several years of tax returns and other financial documents to support its claim for such immunity.  The Court noted that given these circumstances, Plaintiff lacked sufficient time to review the documents and retain an expert to rebut the information revealed by the financial documents. According to the Appellate Division, the judge should have rescheduled the hearing to give Plaintiffs the chance to do so.

In addition, the Court noted that the judge did not conduct an evidentiary hearing consistent with his own prior orders which robbed Plaintiffs of the opportunity to cross-examine PAL’s witnesses regarding the financial documents. The judge had only heard legal arguments from counsel on the issue of charitable immunity. Lastly, the Court also considered that the documents supplied by PAL were not properly authenticated, as there were no affidavits or certifications based on personal knowledge to authenticate the documents. The Court held that, because Plaintiffs challenged the authenticity and accuracy of these documents, the judge made a mistake in relying upon them to find that PAL was entitled to charitable immunity.

Therefore, the Appellate Division agreed with Plaintiff that the trial court should not have granted PAL charitable immunity based upon the evidence presented and remanded the matter back to the trial court for an evidentiary hearing to resolve the fact disputes about whether PAL was entitled to charitable immunity.

Court Rules That Amusement and Water Park Owner Able to Sue for Defamation Over Alleged False Rumor

This matter arises from a claim of plaintiffs Christopher Maier and Land of Make Believe, an amusement and water park, against defendant James Zellers for spreading a false rumor about an alleged statement made by Maier.  According to the complaint, in April of 2022, defendant “concocted a false and defamatory story” that Maier visited defendant at his pizzeria, warning him not to hire one of plaintiffs’ former employees who was autistic because the individual was “stupid.”  In Maier v. Zellers, 2024 N.J. Super. Unpub. LEXIS 359 (App. Div. Mar. 6, 2024) the issue was whether plaintiffs could sue defendant Zellers for defamation based upon this alleged false accusation and the damage suffered by their business as a result of the publication of this statement.

Plaintiffs claimed that the accusation was untrue and that it was “created to detract attention from defendant paying his employees under the table at his pizzeria.”  According to plaintiffs, this accusation created a “fire storm of bad publicity” for them and they suffered substantial financial damages as a result.

This statement was published on a local Facebook page by the sister of the employee to whom Maier was allegedly referring.  She attributed the source of this comment to defendant.

At the trial court level, defendant asked the court to dismiss the complaint for failure to state a claim.  The trial court found that the statements attributed to the defendant were only opinions and, therefore, the defendant could not be held liable.  Plaintiffs’ motion for reconsideration of this decision was denied.

This appeal ensued.  Plaintiffs argued that the trial court made a mistake in dismissing their defamation claim by incorrectly finding that defendant’s statement was an “opinion” – as opposed to a “statement.” Under New Jersey law, one would not be able to sue for damages if the statement made was only an “opinion” as opposed to a defamatory statement of fact.

The Appellate Division noted that a defamatory statement would be one that is “false and injurious to the reputation of another or exposes another person to hatred, contempt or ridicule or subjects another person to a loss of the goodwill and a confidence in which he or she is held by others.”  To be able to sue for defamation, a plaintiff must show three elements:

  • The assertion of a false and defamatory statement concerning another;
  • The unprivileged publication of that statement to a third party;
  • Fault amounting at least to negligence by the publisher.

The Court noted that there are two types of opinions. An opinion “is found when the maker of the statement states the facts on which they base their opinion of the plaintiff and then states a view as to the plaintiff’s conduct, qualifications or character.”   A statement can also be considered an opinion when “both parties to the communication know the facts or assume their existence and the statement of opinion is obviously based on those assumed facts as justification for the opinion.” Or, there is another type of mixed type of expression of opinion in which “is apparently based on facts about the plaintiff or their conduct that have neither been stated by the defendant nor assumed to exist by the parties to the communication.”

Here, the Appellate Division did find that the plaintiffs pled a cause of action for defamation.  The Court noted that, if proved, defendant’s alleged statement was not a statement of opinion.  Rather, “[i]t was neither an expression of his view of facts nor an opinion about facts not stated or assumed by the parties.”  The alleged statement was that defendant repeated what he believed to be facts “that Maier called an autistic person stupid.”

Plaintiffs contended that defendant made this false statement which harmed their reputations.  They further allege that defendant published this statement to a third-party because he told the employee’s sister, who posted it on Facebook and then her post was then shared widely in the community.  She identified defendant as the source of this defamatory statement.

Therefore, the Appellate Division found that plaintiffs’ complaint did state a cause of action for defamation against the defendant.  The Court reversed the trial court’s dismissal of the complaint and remanded it back to the trial court for further proceedings. 

Court Permits Plaintiff To File Late Notice Of Tort Claim

This case involved a tragic accident in which four members of a family were involved in a one-vehicle accident at a toll plaza on the Atlantic City Expressway.  Due to this accident, three of the family members were killed and the fourth member, a 12 year old girl, was severely injured.  To be able to sue the South Jersey Transportation Authority for this accident, the plaintiffs in this case, the Estates of the decedents and guardian of the survivor, sought leave from the court to file a late tort claims notice against the Authority (“SJTA”).  The issue in Estate of Khiev v. South Jersey Transportation Authority, 2024 N.J. Super. Unpub. LEXIS 226 (App. Div. Feb. 14, 2024) was whether the trial court correctly ruled that a late tort claim notice could be served. 

This accident happened on December 26, 2021 when the decedents’ vehicle crashed at the Egg Harbor Toll Plaza on the Atlantic City Expressway.  The South Jersey Transportation Authority owns and operates the Expressway.  On January 4, 2022, plaintiffs contacted and retained counsel to investigate the crash and also requested the police report and a video of the crash.  A preliminary police report was received on January 19, 2022 but it did not contain a full investigation or video of the accident.  In February 2022, plaintiffs retained two experts to investigate the crash.  Their preliminary investigations did not reveal any obvious roadway defects.

On March 17, 2022, the State Trooper with whom plaintiffs’ counsel had been in contact, advised plaintiffs that he had prepared a supplemental report and, further, plaintiffs could now request the complete report, as well as the video of the crash.  Their request was made that same day.  The final report, however, was not delivered to plaintiffs’ counsel until May 5, 2022 and the video of the accident was not delivered until May 11, 2022.  After plaintiffs’ experts reviewed and discussed the video, they formed the opinion that there was a design defect in the toll plaza that had substantially contributed to plaintiffs’ deaths and injury.  In their opinion, there was a sloped concrete barrier of the toll plaza, and that when plaintiffs’ vehicle travelled up the slope of the barrier, it caused the vehicle to combust and sustain catastrophic damage, which led to the deaths and injury of plaintiffs.

On May 31, 2022, plaintiffs filed a motion seeking leave to file a late notice of tort claim as to the SJTA.  The motion was unopposed and the court granted an order on June 24, 2022, permitting the late notice to be filed. Thereafter, the plaintiffs did file their tort claims notice on June 30, 2022.

However, it was ascertained that defendant Authority had not been properly served with the notice of motion.  Thus, defendant filed a motion to vacate the June 24, 2022 order and now filed opposition to plaintiffs’ motion for leave to file a late tort claims notice.

Although the trial court did vacate the June 24, 2022 order, it granted plaintiffs’ leave to file a late tort claims notice.  The court granted the application on two bases.  First, the trial court found that the date of accrual of plaintiffs’ claims was not until May 11, 2022 when plaintiffs had sufficient information that a public entity could be responsible for the crash, rather than December 26, 2021, the date of the crash.  Accordingly, the filing of the tort claims notice on June 30, 2022 was considered timely to meet the ninety (90) day notice requirement under the Tort Claims Act.

Second, the trial court found, in the alternative, that there were extraordinary circumstances justifying late notice.  The judge found that plaintiffs had exercised due diligence in investigating the accident but determined that defendant was potentially liable only when they received a video.  Also, the trial court found that the defendant SJTA would not suffer any substantial prejudice if the late claim was permitted.  It had been aware of the accident and witnesses related to the accident were still available.  The toll plaza worker who had been injured in the accident was still available as a witness and the damaged vehicle had been preserved and defendant had access to the video of the accident.

This decision was appealed to the Appellate Division.

Upon appeal, the SJTA made three arguments:  First, it contended that the trial court misapplied the law in finding that the accrual date was the date plaintiffs received the video, rather than the date of the accident. Second, it argued that the trial court abused its discretion “in finding that, even if the claim accrued on the date of the crash, extraordinary circumstances justified allowing plaintiffs to file a late notice.”  Last, defendant argued that the trial court abused its discretion in finding that there would be no substantial prejudice in in permitting plaintiffs the right to file a late notice.  The Appellate Division reviewed these arguments and rejected all of them.

Pursuant to N.J.S.A. 59:8-8, the failure to serve a notice of claim upon a public entity within the ninety (90) day period following accrual of the claim results in a bar against the claim.  However, the Tort Claims Act permits a claimant to move for leave to file a late notice of tort claim within one year after the claim accrues.  Under N.J.S.A. 59:8-9, a trial court may grant the motion “if there are sufficient reasons constituting extraordinary circumstances for the claimant’s failure to timely file” a notice within that ninety day period and, further, if the public entity is not substantially prejudiced thereby.

The “accrual” of a claim has been determined to be the date on which the underlying tortious act occurred.  However, under the “discovery rule,” the law also allows for a delay of the date of accrual when the victim is unaware of an injury or does not know that a third-party is liable for the injury.  Based upon the “discovery rule,” the accrual date is tolled from the date of the tortious act or injury when the injured party either does not know the injury or does not know that a third-party is responsible for the injury.  Under this rule, the claim will accrue when the claimant knows there has been an injury and there are facts suggesting that a third-party may be responsible. 

Here, the Appellate Division found that the claim did not accrue until May 11, 2022 when their counsel received video footage of the crash.  Until that date, there were no facts suggesting that the South Jersey Transportation Authority may have been responsible for the plaintiffs’ deaths and injuries.  The Appellate Division agreed with the trial court that just knowing that the defendant owned the roadway and toll plaza was not sufficient for the claim to accrue.  Rather, the claim accrued when plaintiffs’ experts reviewed and analyzed the video and learned that defendant might be responsible for the plaintiffs’ deaths and injuries. 

The Appellate Division also considered the alternative argument that the plaintiffs’ late notice of claim was justified by extraordinary circumstances.  In determining whether extraordinary circumstances exist, the inquiry focuses on whether there has been reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor. 

Here, again, the Appellate Division agreed with the trial court that the plaintiffs had shown extraordinary circumstances to justify a late notice of tort claim.  The Court found that the plaintiffs acted with due diligence to retain experts and to obtain the accident report and the video.  However, it was the state police who took some time to approve the final accident report and released the video.  Therefore, the accident report was not received until May 5, 2022 and the video on May 11, 2022.  It was not until the video was reviewed and analyzed by the plaintiffs’ experts, who, for the first time, had a basis to opine that the Authority could be responsible for this accident.  Thus, the Appellate Division agreed that the plaintiffs acted with due diligence and were prevented from serving a timely tort claims notice by extraordinary circumstances.

Finally, the Court considered whether there was substantial prejudice to the Authority by the filing of the late notice of tort claim.  The Appellate Division found that the Authority had not demonstrated any prejudice, much less substantial prejudice. It was well aware of the accident, the car had been preserved, and the witnesses to the accident were still available.  Hence, the Appellate Division found no abuse of discretion in the trial court’s finding that there was no substantial prejudice to defendant.  Accordingly, the trial court decision to permit the filing of a late notice of claim was affirmed and plaintiffs were allowed to go forward with their lawsuit. 

Appellate Division Reverses Trial Court’s Dismissal of Lawsuit

This lawsuit involved a letter of protection dispute arising from $183,107.30 of medical bills allegedly owed for services rendered by plaintiff North Jersey Hip & Knee Center to defendant Janet Quevedo after an automobile accident.  Plaintiff had treated Quevedo for her injuries from the accident based upon a letter of protection from Amy Peterson, Esq., Quevedo’s personal injury attorney.  Due to plaintiff’s failure to comply with a court order compelling discovery, the trial court dismissed the complaint with prejudice.  The issue in North Jersey Hip & Knee Center v. Quevedo, 2024 N.J. Super. Unpub. LEXIS 171 (App. Div. Feb. 5, 2024) was whether the trial court made a mistake in entering the ultimate sanction of dismissal versus other less drastic sanctions available due to the plaintiff’s failure to comply with the court order. 

Because defendant Quevedo did not have personal auto insurance, her attorney represented to Quevedo’s physician, Dr. Aiman Rifai (at North Jersey Hip & Knee Center), that she would protect plaintiff’s customary and reasonable fees to the extent available from a third-party recovery when the case was concluded. In other words, Quevedo’s attorney was essentially “guaranteeing” that the physician would be paid out of any third-party settlement if he agreed to render medical care to defendant.

Presumably, there was a third-party settlement but the plaintiff medical practice was not paid for its services.  Plaintiff sued defendant seeking damages for the payment of its medical bill, attorney’s fees, interest, and costs.  An answer was filed, including a third-party complaint against Dr. Rifai, which plaintiff’s counsel answered.

After the answer was filed, defendant served plaintiff with discovery requests including a request for Answers to Interrogatories, and Notice to Produce Documents and Request for Admissions.  After plaintiff failed to provide the requested discovery, defendant sent via e-mail “a good faith deficiency letter.”  Defendant also served plaintiff with a deposition notice for Dr. Rifai.  One day before the noticed deposition, plaintiff informed defendant that Dr. Rifai was unavailable.

Thereafter, defendant filed a motion to dismiss the complaint without prejudice pursuant to the court rule which permitted a dismissal based upon a failure to answer discovery.  The court entered an order granting the motion to dismiss the complaint without prejudice for failure to provide discovery but also entered an order to compel Dr. Rifai to appear for a deposition within thirty days or else “face sanctions as permitted by the rules of the court up to and including dismissal with prejudice.”

Defendant then served plaintiff with another notice of deposition prior to the end of the 30 day period.  Again, the day before the deposition, plaintiff informed defendant that Dr. Rifai was unavailable.  Defendant filed another motion to now dismiss the complaint with prejudice for failure to appear for a deposition and failure to comply with the court’s order.  Before the motion was heard, plaintiff did serve answers to the written discovery requests.

The trial court judge, however, granted the motion to dismiss the complaint with prejudice.  The judge found that the plaintiff had elected to willfully ignore the court’s directive.  Motions to vacate the dismissal and reinstate the complaint and also for reconsideration of that order were both denied.

This appeal ensued in which the plaintiff argued that the trial court judge “abused her discretion by failing to consider alternative sanctions and imposing the ultimate sanction of a dismissal with prejudice.”  The Appellate Division noted that the review of a dismissal of complaint with prejudice for discovery misconduct is based upon whether the trial court abused its discretion in entering the order.  A court must “carefully weigh what sanction is the appropriate one, choosing the approach that imposes a sanction consistent with fundamental fairness to both parties.”  Further, the Appellate Division stated that in determining the selection of a sanction, the court must consider the varying levels of culpability of delinquent parties.   Further, it held that the ultimate sanction of dismissal was to be used only sparingly.

While the Appellate Division commented that it did not condone “the dilatory pace at which plaintiff prosecuted its action and/or its failure to respond to discovery demands,” it nevertheless concurred with plaintiff’s argument that the judge erroneously dismissed the complaint with prejudice when lesser sanctions were available.  The Court noted that the trial court judge failed to address at any point that the defendant had served an untimely deposition notice on defendant.

Under the court rules, deposition notices must be served ten days in advance and the deposition notice for Dr. Rifai was only served eight days in advance.  There was no indication in the record that defendant’s attorney made any “good faith attempt” to confer with plaintiff’s attorney to resolve scheduling Dr. Rifai’s deposition.  The trial court judge also failed to consider that plaintiff had served answers to interrogatories and responses to the notice to produce documents before the return date of the motion.  Further, the trial court judge apparently gave little consideration to counsel’s representation that they did not receive the two e-mail discovery requests. 

Hence, the Appellate Division found that these considerations, “in addition to the untimely deposition notice, weighed in favor of a lesser sanction.”  Accordingly, the Court found that the drastic sanction of dismissal was unwarranted.  There existed lesser alternative sanctions which could address plaintiff’s failure to complete the deposition.  The Appellate Division did not express any view as to what lesser sanction should be imposed.  However, the Court reversed the orders which denied plaintiff’s motion to reinstate the complaint and remanded the case back to the trial court.

Defendant Failed to Timely Demand a Jury Trial

Plaintiff Shree Atulya Realty, LLC filed a lawsuit against defendant Jorlinar Santos concerning the purchase of property from defendant located in Newark.  As part of the purchase, the plaintiff financed directly with the defendant (the seller) a portion of the purchase price with a note and mortgage on the property.  The payments to the seller for this financing were conditioned on certain repairs being completed.  An issue arose as to the required repairs not being completed and, because they were not completed, the plaintiff took the position that no monies were owed and the mortgage should be discharged.  Thereafter, plaintiff filed a lawsuit in the Chancery Division, General Equity Part, seeking to discharge the mortgage and asserted claims for a breach of contract, unjust enrichment and fraud. When the case reached the trial stage, one of the issues in Shree Atulya Realty, LLC v. Santos, 2024 N.J. Super. Unpub. LEXIS 223 (App. Div. Feb. 14, 2024) was whether defendant failed to timely request a jury trial and, as a result, whether this failure constituted a waiver of the right to a trial by jury.

The complaint had been filed in the Chancery Division on June 25, 2018.  On August 16, 2018, defendant filed an Answer, Counterclaim, and Third-Party Complaint against other defendants. Plaintiff had not made a jury demand in the complaint, nor did Defendant request a jury trial at the time his Answer was filed.  On October 24, 2018, the Third-Party Defendants filed an Answer to the Third-Party Complaint, which also did not include a jury demand.

The Court conducted two case management conferences in 2018.  On both occasions, case management orders were issued, providing that if the pleadings did contain a jury demand, any parties seeking a jury trial must file a motion for a jury trial within 10 days of the date of the order or the jury demand would be waived.  No jury demand was made as a result of either case management order.

In February 2019, the parties all filed for a summary judgment.  At that time, defendant also made a request to transfer the case to the Law Division and requested a jury trial.  On March 15, 2019, the Chancery Division denied the parties’ motion for summary judgment without prejudice and also denied defendant’s request for a jury trial.  The judge found the request untimely and waived pursuant to Court Rule 4:35-1(c).  At that time, the court also transferred the case to the Law Division.

Before the case was tried, in May 2020, the defendant filed a motion seeking to vacate the prior order denying his request for a jury trial.  The Law Division found that there was no basis to reconsider the Chancery judge’s determination that defendant had waived the right to a jury trial by failing to make a timely demand.

Thereafter, the case did proceed to a 4-day bench trial with defendant as the only defense witness.  He testified that the Agreement signed at the closing was inconsistent with the terms negotiated by the parties and that he did not agree to make repairs. Nevertheless, he also testified that he completed all the required repairs.

The court found that defendant’s claim that the Agreement was inconsistent with the intent of the parties to lack credibility and did determine that the Agreement was the “‘operative agreement”’ now.  The court also determined that defendant had been required to make the necessary repairs and, with the contingency requiring repairs not met, the judge determined that the mortgage should be discharged and cancelled.  Further, any obligation for plaintiff to pay the note was nullified. 

Therefore, the trial court entered judgment in favor of plaintiff on its claim for a declaratory judgment and discharged and cancelled the mortgage and nullified the note.  The judge ruled that plaintiff had no obligation to pay defendant pursuant to the Agreement, Note, or Mortgage.  All other claims were dismissed and an appeal to the Appellate Division followed.

Among other issues on appeal, defendant argued that the trial court made a mistake in finding he had waived his right to demand a jury trial and by denying reconsideration of that order.  Defendant argued that he was not able to demand a jury trial earlier because jury demands are not permitted in the Chancery Division.  Defendant contended that his right to demand a jury arose when the case was transferred to the Law Division.

The Appellate Division, however, rejected the defendant’s argument that he had not waived his right to demand a jury trial.  The Court cited to the court rule, which stated that any party may demand a trial by jury “by serving upon the other parties a demand therefore in writing not later than ten [days] after the service of the last pleading directed to such issue.”  Further, the Appellate Division noted that per this rule, the failure of a party to serve a jury demand as required would constitute a waiver of trial by jury.

The appeals court found that the defendant did not demand a jury trial until he filed a motion for summary judgment on February 15, 2019.   At that point, it was long after the time to make such a demand had expired.  Further, the Appellate Division noted that a jury trial could be demanded on any legal claim in the Chancery Division.  It noted that the Case Management Orders expressly stated a jury could be demanded in the Chancery Division.  Hence, the Appellate Division found that the lower court had correctly determined that defendant had waived his right to demand a jury trial.

Further, the Appellate Division found that the trial court did not abuse its discretion by finding that defendant failed to establish good cause to relax the court rule, nor did it make a mistake by denying the defendant’s motion for reconsideration of this order.  Thus, the Court upheld the trial court’s decision to deny the defendant the right to a jury trial.

Plaintiff’s Injury Claim Against Municipality Caused by Stepping Into Pothole Fails Due to Lack of Notice of Condition

Plaintiff Reginald Jones was injured when he was attempting to cross in the middle of Isabella Avenue in Irvington.  While stepping off the curb, his foot became stuck in a hole in the street adjacent to the curb.  It caused him to fall and suffer injuries.  The issue in Jones v. Township of Irvington, 2024 N.J. Super. Unpub. LEXIS 176 (App. Div. Feb. 6, 2024) was whether he could pursue a claim against the Township for its failure to remediate the pothole. 

Personal injury claims against public entities are governed by the Tort Claims Act.  To be able to sue a public entity for tort liability for injuries caused by that entity’s property, under N.J.S.A. 59:4-2, the plaintiff must establish the property was in a dangerous condition at the time of the injury and that the condition was either created by an employee of the public entity or the public entity had actual or constructive notice of the condition. However, even if the plaintiff is able to present those proofs, the public entity would not be liable for the dangerous condition of its property “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

There were two issues in this case.  First, the issue was whether the plaintiff had sufficiently established that there was a dangerous condition of the Township’s property at the time of his accident.  Second, the issue was whether the Township had notice that the property was in a hazardous condition.

While the parties conducted discovery, there were no depositions taken and there were no experts retained.  The only evidence of the pothole were 11 photographs of the roadway produced by the plaintiff.  The photographs showed a hole which was surrounded by vegetation growth, cracked, and filled with garbage and vegetation.  According to the plaintiff, the hole measured about 19 inches long, 19 inches wide, and 16 inches deep.

Once discovery concluded, the Township filed for a summary judgment.  It argued that the plaintiff had failed to state a claim that the plaintiff’s injuries were caused by a dangerous condition of its property.  Plaintiff opposed that motion, arguing that the Township had constructive notice of the ‘“large sinkhole.’”

The trial court judge granted the motion for summary judgment.  The judge ruled that plaintiff had failed to present any competent evidence other than speculation and legal conclusion to prove that the hole was in a dangerous condition.  The trial court judge noted that the only evidence in support of the condition of the property were the photographs attached to plaintiff’s answers to interrogatories which were not glossy color photos, nor were they provided with any certification stating who took the photos and when they were taken. Further, the plaintiff failed to prove that the Township had notice of the condition.

Plaintiff filed a motion for reconsideration, which was denied, again on the same basis due to the plaintiff’s failure to prove the Township had prior notice of the condition or had adequate proofs as to its actual condition.  The plaintiff appealed this decision to the Appellate Division.

The Appellate Division found that the trial court correctly ruled that plaintiff had failed to establish liability under the Tort Claims Act due to lack of evidence that the Township either caused the hole in the street or had actual or constructive notice of the hole. In support of the notice argument, plaintiff cited to a Township Public Works website that street sweepers were on Isabella Avenue twice a week.  However, the Court found this information insufficient to show that the Township had constructive notice of the hole. 

The Court also found that plaintiff had failed to offer any expert testimony or proofs showing that there were any reports about the hole which could have established that the Township had actual notice thereof.  Last, the Appellate Division found that the plaintiff had failed to submit any proofs that the Township acted in a “palpably unreasonable manner.”  The Appellate Division agreed with the trial court that the plaintiff’s claim was based on nothing more than ‘“mere speculation.’”

The appeals court also agreed with the trial court that the photographs themselves were insufficient competent evidence due to the lack of foundation as to these photographs.  The plaintiff had failed to offer any competent testimony “concerning the measurements of the hole, who took the photographs, when they were taken, and if they were altered.” 

Hence, the Appellate Division agreed that plaintiff failed to meet his burden under the Tort Claims Act to “establish that the Township had or could have had actual or constructive notice of the hole in the middle of Isabella Avenue.”  Therefore, the Court affirmed the trial court decision, dismissing the lawsuit. 

Plaintiff Unable to Recover for Negligent Infliction of Emotional Distress Suffered in Finding Body of Murdered Friend in Their Hotel Room

This case involved an emotional distress claim filed by plaintiff Richard Sperazza in waking up to find the body of his murdered friend and co-worker in the hotel room they were sharing during a work assignment.  Plaintiff and his deceased friend and co-worker were sharing a hotel room during an out of town work assignment.  The issue in Strayer v. Wingate at Wyndham, 2024 N.J. Super. Unpub. LEXIS 90 (App. Div. Jan. 19, 2024) was whether the plaintiff had a claim for a negligent infliction of emotional distress against the defendant Wingate at Wyndham for the emotional harm he suffered on waking up to find the body of his murdered friend and co-worker in their hotel room.

Plaintiff Sperazza had been employed by Osmose Utilities Services, Inc. as a technician who worked with his friend and roommate, Ivan Scott Strayer.  Plaintiff, Strayer, and other utility workers were assigned to work crews which travelled to various locations around the country and lived together in hotels while on assignment.  Plaintiff and Strayer had been hotel roommates on other work assignments and also socialized frequently outside of work.  Plaintiff was the best man at Strayer’s wedding and plaintiff considered Strayer family and attended his family functions.

Plaintiff and other members of the Osmose work crew had been staying at the Wingate Hotel in Vineland.  The crew consisted of five crew members including plaintiff, Strayer and two brothers, Charles Pulcine and his brother Larry Pulcine, and the crew leader, Mark Knowles.  Larry Pulcine had recently joined the crew.  Knowles made the hotel reservations and advised the front desk clerk who was staying in which room.  The crew members were assigned to three rooms in which plaintiff and Strayer were assigned to Room 404, the Pulcine brothers were assigned to Room 405 and Knowles was assigned to Room 406.

On the evening of the murder, plaintiff ate at a restaurant located in front of the hotel.  Strayer eventually met him at the restaurant but returned to the hotel room.  When plaintiff returned later to their hotel room around 10:00, he observed the television was on and Strayer appeared to be sleeping.  Thereafter, he received a text message from Chuck Pulcine, inviting him to hang out and drink some beers in his room.  At about 10:05 p.m., plaintiff went to Pulcine’s room, although he briefly returned to his room to grab a few beers while Strayer stayed in their hotel room.  He then returned to the Pulcines’ room where he stayed until about 11:30 p.m.

While plaintiff was in the Pulcines’ room, Larry had left for about 30 minutes, stating he was going to do laundry and when he returned, Larry was “shooting his mouth off.” Therefore, plaintiff returned to his hotel room and went to sleep.

When plaintiff woke up around 5:00 to 5:15 a.m. and Strayer was still in bed, plaintiff went over to look at him.  He noticed that “his eyes were open” but “nothing really going on.”  He grabbed his foot which was ice cold, checked his pulse twice and panicked and ran out of the room.  He felt shock at finding his friend’s body and feared for his own safety.  He later learned that Strayer had been shot with a handgun.  However, plaintiff did not witness the murder and did not encounter the murderer in his hotel room and, further, was not physically harmed himself.

It was later learned that Larry had obtained a key card from the front desk to the plaintiff’s room and shot Strayer sometime between 10:30 and 11:30 p.m. while plaintiff was across the hall in the Pulcines’ hotel room. 

Strayer’s wife brought a wrongful death and survivorship action against the defendant hotel, among other defendants.  Plaintiff brought a separate action for negligent infliction of emotional distress for discovering the body of his murdered friend.

Plaintiff obtained a hotel management operations expert who opined that the Wingate Hotel “was aware of its safety obligations and deviated from the industry standard of care that created a foreseeable risk of harm to the hotel’s guests.”  Further, the expert opined that “Larry’s criminal acts were the type of criminal activity that adequate safety and security measures are intended to prevent and were, therefore foreseeable.”  According to the expert, the failure to identify or properly register the Osmose crew was inconsistent with proper keycard control “and resulted in a foreseeable risk of harm to guests.”  The expert opined “that the implementation and enforcement of a proper keycard controlled protocol system could have prevented Larry’s unauthorized entry into plaintiff’s and Strayer’s room.”

At the trial court level, the defendants moved for a summary judgment, which was granted.  The trial court judge found that plaintiff had failed to demonstrate that defendant hotel’s actions proximately caused plaintiff’s emotional injuries.  He found that the injuries were not based upon the handing of a keycard and that neither defendants nor their employees caused any of the emotional distress being suffered by plaintiff.  While acknowledging that defendant’s employee should not have given the keycard to Larry Pulcine, he noted that the crew members were all friends and he had seen them together and it was not as if he was giving a keycard to a stranger.

This appeal ensued.  Plaintiff argued that the trial court made a mistake in granting defendant’s summary judgment because he has a direct claim for negligent infliction of emotional distress based upon defendants’ breach of duty it owed directly to him.  Plaintiff relied on the case of Falzone v. Busch, 45 N.J. 559 (1965) in support of his claim for emotional distress.  The Appellate Division rejected this argument.

For a plaintiff to recover for emotional distress for witnessing harm suffered by others, the individual must be able to allege that they were “fearful of immediate injury.”  The Appellate Division found that, under these facts, the plaintiff had failed to demonstrate a reasonable fear of immediate personal injury.  While he may have felt fear when he discovered his roommate’s dead body, there was no evidence in the record that he had a “reasonable fear of immediate personal injury.”  To the contrary, plaintiff did not even realize at the time that Strayer had been murdered and he thought that Strayer had died from natural causes.  He did not encounter the murderer in his hotel room and was not present when Strayer was murdered.  Because of his failure to present any evidence that he suffered a reasonable fear of personal injury, the Appellate Division found that the plaintiff was unable to establish a claim for negligent infliction of emotional distress.  Hence, it upheld the trial court decision, granting summary judgment and dismissing the case.

Day in the Life Video Excluded at Trial

Plaintiff Tameko Sawyer was in a motor vehicle accident with defendant Randy Lucas in which she claimed to have suffered an injury to her neck, lower back, and shoulder.  Defendant Lucas had been driving a tractor-trailer owned by defendant Hicks Paving, LLC and Hicks Septic & Portable Toilets, LLC on Route 78, when he moved his truck into plaintiff’s lane, striking her car and causing it to slam into the guardrail.  At issue in the case of Sawyer v. Lucas, 2024 N.J. Super. Unpub. LEXIS 53 (App. Div. Jan. 11, 2024) was whether the plaintiff’s Day in the Life video and her recently supplied supplemental medical records should have been barred by the trial court or whether this evidence should have been admitted into evidence and shown to the jury.

A Day in the Life video is a powerful tool of evidence utilized by plaintiffs to show graphically over the course of the day an injured party’s disability and pain and suffering caused by an accident.  This graphic evidence can be more compelling than mere oral testimony describing a person’s medical condition and limitations.

In Sawyer, there was an issue as to the extent of plaintiff’s injuries.  Plaintiff claimed an injury to her neck, lower back, and shoulder.  At the hospital, she was evaluated for head, neck, and back injuries.  Subsequently, she was found to have suffered disc herniations and bulges in her neck and underwent five separate surgeries.  At trial, she did testify about conservative pain management for an older, unrelated back injury.  During the trial, there was disputed testimony about the plaintiff’s back injury and whether it was either caused or exacerbated by the accident.

Prior to trial, the plaintiff had prepared a Day in the Life video.  This video was five minutes long and was recorded about one and a half years after the accident.  However, the video was made just eight days after plaintiff had back surgery, at which time she still required significant assistance with activities of daily living.  Plaintiff contended that the video was relevant “to support her claim for future medical costs and the pain, suffering and loss of enjoyment she endured.”

During trial, the defendants filed a motion to exclude the plaintiff’s Day in the Life video and some recently supplied medical records.  The trial court granted the motions and barred both the video and the recently supplied records from being admissible at trial.

The jury found in favor of the plaintiff. However, Plaintiff was dissatisfied with the amount of the verdict. She moved for a new trial on damages or additur. (Additur is a procedure by which a court may increase the amount of damages awarded by the jury.)  The trial court denied the additur motion, finding that the jury’s verdict did not shock the conscience (which is the standard for increasing or reducing a jury award on damages). 

She then appealed the trial court’s evidentiary rulings and the denial of her motion for a new trial on damages or additur. In reviewing these trial court decisions, the Appellate Division applied the “abuse of discretion” standard in determining if the lower court’s decisions should be upheld.

Upon appeal, the plaintiff argued that the Day in the Life video should have been admitted because it “was necessary to demonstrate her difficulty in day-to-day activities and the inability to present it deprived her the right to show the jury evidence of pain and suffering.” However, the Appellate Division found that the trial court did not abuse its discretion in excluding the videotape. 

The Appellate Division pointed out that the Sawyer video was taken during her recuperation from her back surgery, instead of day-to-day life post-accident.  Hence, it agreed with the trial court that the focus of the video was her recovery from surgery as opposed to her day-to-day life and that it was not an accurate representation of the continued impact of her injuries.  The Court noted that Plaintiff had testified during her trial regarding the extent of her injuries as a result of the accident and the impact of those injuries upon her.

The Appellate Division also upheld the trial court’s ruling in excluding the recently supplied medical records.  The trial court found that there had been plenty of opportunity to produce the records prior to two weeks before trial.  The appeals court found no abuse of discretion in the trial court’s motion to bar these records at trial.

Further, the Appellate Division upheld the trial court’s denial of the motion for a new trial or additur.  The plaintiff had argued that the verdict was against the weight of the evidence such that it constituted “a clear miscarriage of justice.”  Plaintiff argued that based upon her injuries and prolonged treatment, the verdict of $400,000 was “shockingly low.” Plaintiff pointed out that, considering the total medical expenses incurred, more than $600,000, the jury award was disproportionate.

Again, the Appellate Division upheld the trial court’s rulings on the motion for additur and new trial.  It found that there was no abuse of discretion in the denial of either motion.  The Court noted the trial court’s finding that there was contested testimony and that “given the contested testimony, the jury believes some of what each party said.”  The trial court was satisfied that the jury appropriately considered the information and competing arguments and arrived at a “reasoned judgment” based upon the evidence.  Further, the trial court did not find that the damages were so disproportionate “’such to shock the conscience or to be manifestly ‘[u]njust.’” 

Again, the Appellate Division found no abuse of discretion in the trial court’s ruling to deny the motion for additur and a new trial.  Thus, the appeals court affirmed the trial court’s rulings, leaving the jury verdict in place.

Employer Found Not Liable for an Auto Accident Caused by an Employee Who Stole Van From Employer

Plaintiff Richard Finaldi (“Finaldi”) was in an automobile accident with defendant Matthew Knight (“Knight”), one of defendant Cornucopia Logistics, LLC’s (“Cornucopia”) dispatchers.  Knight had stolen a Cornucopia delivery van, fell asleep while operating the van, went through a red light and collided with plaintiff Finaldi.  Plaintiff Finaldi suffered serious injuries as a result of the accident.  An issue in Finaldi v. Knight, 2024 N.J. Super. Unpub. LEXIS 7 (App. Div. Jan. 3, 2024) was whether the defendant Cornucopia could be held responsible for its employee’s actions in causing this accident. 

Cornucopia had an agreement with Amazon to deliver groceries ordered through Amazon Fresh.  Pursuant to its agreement, Cornucopia had exclusive responsibility for its employees and employment conditions.  It used leased delivery vans to make the deliveries, which it stored at the Amazon Fulfillment Center in Avenel, where Cornucopia also had an office.

Back at the time of the accident, Cornucopia had several employees at this facility including managers, four dispatchers and about thirty drivers, each for the morning and the night shifts.  Each shift had one dispatcher.  The dispatcher would log in and assign the drivers their routes.  When a driver clocked in, the dispatcher would give them a handbag containing a key to a van, an EZ pass, vehicle registration and insurance and a scanner which permitted the drivers to scan each package in and out.  The scanner also acted as a GPS and had a camera.  It allowed supervisors to see where each driver had dropped off their last package.

When the vans were not in use, Cornucopia kept the keys in a cabinet behind the dispatch table.  It was supposed to be locked after the dispatcher checked in the drivers and gave them their handbags.  Each dispatcher had a key to the cabinet, as well as two of the managers.  The standard operating procedure was for the dispatcher to log in each key and take inventory of those keys.  The dispatcher would count the keys after the drivers returned.  If one of the dispatchers discovered a key was missing, they would see if the vehicle was in the parking lot and, if not, notify one of the managers.

Knight, initially worked for Cornucopia as a driver but, after his license was suspended, he became a dispatcher.  This position did not require driving so he could continue to work at Cornucopia.

The day before the accident, Knight had stolen the van to assist his mother in moving.  His plan had been to return the van to the facility in time for the next shift.  He entered the facility, found the cabinet with the keys to the van unlocked and took one of them.  Only after the accident did Knight inform the Cornucopia fleet coordinator that he had taken the van.  No one at Cornucopia knew the van was missing until after the accident.  According to the testimony, this was the first time that an employee had used a van for personal use. 

Plaintiff sued for Cornucopia for both negligent hiring and retention, as well as general negligence.

At the trial court level, Cornucopia moved for a summary judgment which was granted as to both claims.  The court found that Cornucopia owed no duty to plaintiffs because Cornucopia had no reason to know “that there was an enhanced risk of harm to a third-party by hiring Knight to work as a dispatcher.”  The court also found that there was no history of Cornucopia employees stealing vehicles and that it had adequate security measures in place.

Further, the trial court ruled that plaintiffs failed to establish that Cornucopia’s actions were the proximate cause of plaintiff’s injuries.  The court reasoned that Knight was not working at the time of the accident, he was not using the vehicle with Cornucopia’s permission, and Cornucopia took reasonable precautions to prevent against such actions.

A motion for reconsideration was also denied.  This appeal ensued.  Upon appeal, the Appellate Division noted that the threshold question was whether Cornucopia owed a duty to plaintiffs.  The Court held that for a Court to impose a duty, “there must be a foreseeable risk of harm.”  Plaintiffs argued in the appeal that Cornucopia’s employees did not follow its procedures to prevent and detect the theft of the van.

The Appellate Division rejected that argument.  It found that Cornucopia’s policy in keeping the keys in a locked cabinet, having the dispatcher on duty take inventory of them twice every shift, and that the Avenel facility not being in a high crime area did not result in an imposition of a duty upon Cornucopia. 

Further, the Appellate Division noted that Cornucopia had no reason to suspect an employee would take a van for their own personal use.  Its policies prohibited an employee from taking the delivery vans for their own use and an employee could be terminated for violating that policy. 

Hence, the appeals court declined to follow plaintiff’s argument that the unauthorized use of the van and the accident were sufficiently foreseeable to impose a duty upon Cornucopia.  Moreover, the Court noted that even if it was foreseeable that an employee would steal one of the vans, it could not have known that Knight, who had no prior accidents as a driver for the company, would doze off at the wheel and collide with the plaintiff.  

Additionally, the Appellate Division rejected plaintiff’s argument that Cornucopia was negligent in promoting Knight to a dispatcher position after his license was suspended.  A license suspension alone did not suggest an employee would be deceitful or prone to theft.  It would not have put Cornucopia on notice that he would use its vehicle in violation of company policy.  Accordingly, the Appellate Division upheld the trial court’s decision, dismissing the case as to Cornucopia.

The Consequences of Coaching Your Witness During Trial

The case of Hernandez v. La Fortaleza, Inc., 2024 N.J. Super. Unpub. LEXIS 22 (App. Div. Jan. 5, 2024) is a lesson as to why counsel should not coach their witness during trial.  This case involved a slip and fall accident in which the plaintiff Hernandez claimed that she fell on an uneven raised defect on the property of defendant La Fortaleza.  The case proceeded to trial via a virtual trial where, on a lunch break, the plaintiff’s attorney coached the witness as to her testimony. 

Plaintiff Hernandez was the first witness at the virtual trial.  The trial court judge told her that she had to be alone and on her own while she testified, except that her husband could be in the room.  During her direct testimony, her attorney showed her a photograph of the defendant restaurant and the area where the fall occurred.  She was trying to explain in her testimony where the fall occurred in the photograph.   The plaintiff’s husband was in the room but the judge admonished him that he had to remain quiet while she was testifying.  The plaintiff’s attorney explained to the Court that the plaintiff was having trouble manipulating the curser on the screen.  Therefore, the Court recessed the trial for lunch and instructed Mrs. Hernandez’s attorney to straighten out issues with the exhibits and utilization of the curser.

Defense counsel objected and claimed that, on the critical issue of liability, no coaching would be tolerable.  The trial judge restated her point to the plaintiff’s attorney that no one else can be in the room but plaintiff’s husband and that her husband must be visible behind her but cannot speak until it is his opportunity to testify.

Unfortunately for the plaintiff, during the recess, the conversation between the plaintiff, her husband, and her attorney was recorded.  In this recorded conversation, the attorney coached the plaintiff as to her testimony, telling her how she should respond to his questions and how she should testify as to where she fell.  After the recess, defense counsel continued the objection about coaching and advised the Court that plaintiff’s attorney’s microphone was on during recess and he listened to the attorney coaching the witness with the witness’s husband.  Defense counsel requested that the Court grant a mistrial. 

The judge polled the jurors and made certain that they had not overheard the recess conversation.  She concluded that the jury itself was not tainted.

The next day, defense counsel renewed his request for a mistrial or a dismissal of plaintiff’s complaint with prejudice.  The trial judge listened to the recording and concluded that the plaintiff’s attorney, despite being warned about coaching, had coached the plaintiff and directed her to testify as to where the slip and fall occurred.  Hence, the trial court judge felt that she was compelled to declare a mistrial.  The trial court judge ordered that plaintiff and/or their counsel reimburse the Court for the cost of the interpreter and court services.  The judge also permitted defendant to file a motion for dismissal with prejudice.

The defendant did file such a motion and the judge entered an order dismissing plaintiff’s complaint with prejudice.  She based it in part on the transcript of the conversation, as well as the certification of two bilingual paralegals from defense counsel’s office who heard the recess conversation.  One of them heard plaintiff state that it had been so long she didn’t remember where she fell.

In granting the defendant’s motion to dismiss the complaint with prejudice, the judge found as follows:

“The conduct of the attorney here to invite a client to state that an accident occurred in a particular place when she had no independent recollection to resolve the issues of liability where she was the only witness to the fall itself introduces prejudice too great to present to the finder of fact.”

Plaintiff appealed the dismissal.  Plaintiff argued that the trial judge made a mistake in the exercise of her discretion because there was no fraud on the Court and the sanction of dismissal was too severe.  However, the Appellate Division agreed with the trial court’s decision.

The Appellate Division noted that plaintiff’s husband failed to comply with the judge’s instruction on coaching Hernandez and, further, the plaintiff’s attorney after indicating he would not talk to plaintiff about her testimony at any time during the testimony, even during a lunch break, proceeded “to perpetuate a falsity” by directing the plaintiff to create an issue of liability by “stating that an accident occurred in a particular place when she had no independent recollection.”

While the Appellate Division found that a dismissal with prejudice was a drastic remedy, to be employed “only sparingly,” it found that the trial court did not abuse its discretion in dismissing this lawsuit.  The Court found that the plaintiffs shared the blame and the fraud because they received instructions from the judge concerning coaching.  Instead of listening to the judge, the plaintiffs willingly participated in a scheme to provide false testimony in an ongoing trial.  Based upon this falsified testimony, the Appellate Division found that the ultimate sanction of dismissal with prejudice was merited. 

Further, the Court found that the public interest was served by a dismissal with prejudice.  It noted that “[a] misrepresentation to a tribunal is a most serious breach of ethics because it affects directly the administration of justice.”  This dismissal warns plaintiffs and their attorneys that “their behavior will not be tolerated and that their conduct was so egregious as to cause them to suffer a drastic remedy – the loss of their cause of action.”  The Appellate Division further noted that “it informs other litigants that they risk dismissal if they commit a fraud on a court.”

Thus, the trial court’s decision was affirmed and the dismissal was upheld by the Appellate Division.

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