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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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No Liability Found for Jersey City for Injury Caused by Trip and Fall on Uneven Pavement

Plaintiff Linda Emmanoulidis was walking her dog in Enos Park in Jersey City when she tripped and fell on an uneven pavement and sustained injuries. The issue in Emmanoulidis v. City of Jersey City, 2023 N.J. Super. Unpub. LEXIS 477 (App. Div. Mar. 30, 2023) was whether the City could be liable for a pedestrian accident caused by a trip and fall on an uneven pavement under the Tort Claims Act.

Prior to her fall, Plaintiff had never walked in the area before and did not know how long the condition existed. After her fall, Plaintiff retained an engineering expert who opined that the elevation of the crack where Plaintiff stated she fell was 1/2 – 3/4 inches. In his report, the expert noted that some of the concrete sidewalk slabs showed signs of repairs but not in the specific area where plaintiff fell. The report did not indicate when the repairs were done and who performed the work.

Plaintiff sued the City of Jersey City claiming that the uneven pavement was a dangerous condition which caused her accident. The City moved for summary judgment dismissal, contending that the plaintiff had not established the existence of a dangerous condition of which the City had actual or constructive notice. In addition, the City contended plaintiff did not demonstrate that the City’s conduct was palpably unreasonable.  In response to the motion, plaintiff presented a certification from her brother-in-law, a retired Jersey City police officer. He certified that, in course of his job, he had searched evidence in the area where plaintiff fell and the condition of the pavement was exactly as it was on the day she fell for at least four years.

The trial court granted the City’s motion for summary judgment, holding that the plaintiff had not demonstrated the uneven sidewalk was a dangerous condition and that the City had actual or constructive notice of the “declivity in the walkway.” The Court reviewed the photographs on record and concluded that the condition was not so open and obvious to provide the City of constructive notice of a dangerous condition. 

Upon appeal, plaintiff argued that the court erred in finding: 1) the uneven pavement was not a dangerous condition; 2) the City was aware of the dangerous condition; and 3) the City’s failure to fix the dangerous condition was palpably unreasonable. The Appellate Division noted that under the Tort Claims Act, a dangerous condition exists when there is a defect in the physical condition of the property itself. The Court held that whether the defect in the pavement was a dangerous condition could be left to the jury for determination.

To determine the issue of notice, the Court considered that the plaintiff could not establish: 1) the duration for which the crack was present; 2) there was no evidence to show that the City had actual knowledge of the crack; 3) the City had no record of any complaints regarding the crack; and 4) the certification offered by plaintiff’s brother-in-law did not satisfy the notice to public entity standard. In addition, plaintiff could not show the crack was open and obvious. Thus, the Appellate Division held that plaintiff did not demonstrate that the City had actual or constructive notice of the defect. Therefore, the Court ruled that the plaintiff did not establish that the City was liable under the Tort Claims Act and affirmed the summary judgment dismissal.

Insurance Carrier Not Estopped From Denying Coverage After Affording Defense of Its Insured From an Automobile Accident

This case involved an insurance coverage dispute from an automobile accident involving an employee of defendant Century Waste Services, LLC (“Century”).  The employee was driving a vehicle owned by a manager’s mother, which was a vehicle not covered under the insurance policy issued to Century by United Specialty Insurance Company (“USI”).  The trial court had ruled that USI was not required to indemnify Century for this accident.  In the case of United Specialty Insurance Co. v. Century Waste Services, LLC, 2023 N.J. Super. Unpub. LEXIS 2097 (App. Div. Nov. 20, 2023), the issue on appeal was whether USI was estopped from denying coverage because USI’s reservation of rights letter did not inform Century that it could accept or reject USI’s assigned counsel.

This accident happened when a manager employed by Century asked another employee to drive from Elizabeth, New Jersey to Bronx, New York to pick up a check from a Century customer.  The employee was given permission by the manager to drive a vehicle owned by the manager’s mother.  However, the employee was involved in a car accident on the way to pick up the check.

The passengers in the other vehicle sued Century, the Century employee who drove the borrowed vehicle, and the owner of the borrowed vehicle to recover damages for injuries they suffered in the car accident.  Thereafter, USI’s claim administrator sent a letter to Century advising it had retained counsel to defend Century in the underlying action.  The letter also advised Century that, if Century chose to retain its own attorney, it would be at its expense. 

GEICO was the borrowed vehicle’s insurer and assigned counsel to defendant both the vehicle’s owner and the Century employee driving the vehicle at the time of the accident.

USI wrote to Century offering to continue defend it in the underlying lawsuit, subject to a reservation of rights.  The letter stated as follows:

“If we do not hear from you to the contrary, we will assume that you consent to the retention of Meaghan Lipton, Esq., for this matter.” 

Century did not object to USI’s continued representation in the underlying action.

Thereafter, USI filed a lawsuit seeking a declaratory judgment that USI did not owe Century a defense or indemnity in the underlying lawsuit.  USI filed a motion for summary judgment in the declaratory judgment action.  Century filed a cross-motion for summary judgment, seeking to require USI to provide a defense and indemnify Century in the underlying lawsuit.  The trial court heard both motions and denied them both.

Thereafter, USI filed a second motion for summary judgment, seeking a declaratory judgment that it did not owe Century a defense or indemnity in the underlying suit.  Again, Century cross-moved for summary judgment and opposed USI’s motion.  This time, the trial court entered an order granting USI’s summary judgment motion and denying Century’s cross motion. 

In making its ruling, the trial court reasoned that there was never any coverage for Century on the underlying action under the USI policy in the first place and that Century cannot be allowed to create that coverage through estoppel.  The court made a determination that the letter from USI reserving its rights was not insufficient simply because it did not include “certain magic words.”   Further, the court determined that Century had suffered no prejudice. 

Century appealed this ruling and contended that USI should be estopped from denying coverage because the reservation of rights letter did not contain the required language “to inform Century it could accept or reject the offer of a defense,” and also because Century incurred prejudice as a result of USI’s control of the legal defense. 

The Appellate Division explained that estoppel is a doctrine applied at law and in equity for the purpose of precluding a party “from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worst.”  The Court also noted that the “predominant view” is that a loss which is not within the coverage of a policy cannot be bought within such coverage by invoking the principles of waiver or estoppel.

In this matter, Century did not dispute that the borrowed vehicle did not qualify as a “covered auto” under the USI policy.  Its argument rested on the principle of estoppel, which in turn hinged on whether Century was properly informed of its right to choose either to consent to legal representation by the lawyer provided by USI or to retain its own attorney at its own expense. 

The Appellate Division noted the well-settled law that “without the insured’s consent or circumstances that suggest the insured acquiesced in the insurer’s control of the defense, an insurer will be estopped from later disclaiming coverage.”  Further, the Court noted that reservation of rights letters have been regarded as “proper defense mechanisms for insurance companies.” 

In this situation, the Court found that it was dealing with a variation of acquiescence by silence.  It noted that there are no magic words that need to constitute a valid reservation of rights.  In this case, the Appellate Division was satisfied that “if we do not hear from you” language in the reservation of rights letter adequately communicated that Century had the option to reject the use of the attorney by USI.  The Court inferred that Century elected not to exercise its option to retain its own counsel when it chose not to advise USI that it did not want its interest represented by the attorney retained by USI.  Thus, the Appellate Division concluded that Century had consented to allow the attorney retained by USI to control the defense of the underlying lawsuit.

Under these circumstances, the Appellate Division found that Century failed to provide a basis upon which to apply the estoppel doctrine.  Further, the Court found that Century had not suffered any prejudice.  It was unable to show how the case would have been handled differently had it chosen to retain a different attorney at its own expense.  Thus, the Appellate Division affirmed the trial court’s ruling that USI was not estopped from denying coverage because of the lack of specific language in its reservation of rights letter.

Plaintiff’s Personal Injury Claim Found Barred by Statute of Limitations

Plaintiff, the Estate of Irene Avagnano appealed the trial court’s order granting summary judgment, dismissing the personal injury action filed against defendants, Atrium Post Acute Care at Wayneview (“Atrium”) and Pulse Medical Transportation (“Pulse”).  Plaintiff had alleged claims of negligence, gross negligence and violation of the New Jersey Nursing Home Responsibilities and Rights of Residents Act in connection with a fall that occurred in May 2018.  An earlier complaint had been dismissed because it was filed in Avagnano’s name after her death, which rendered it a nullity.  Avagnano’s Estate then filed this second action.  The trial court determined that the Estate’s complaint was time-barred under the two-year statute of limitations.  The issue in Estate of Irene Avagnano v. Atrium Post Acute Care at Wayneview, 2023 N.J. Super. Unpub. LEXIS 740 (App. Div. May 15, 2023), was whether the trial court correctly ruled that the complaint was barred and that no equitable doctrines applied to extend the statute of limitations.

The lawsuit arose from a fall on May 11, 2018 of Irene Avagnano, a resident of Atrium’s nursing home.  She fell out of a wheelchair while being transported to a doctor appointment by Pulse.  Due to the fall, she suffered cervical vertebrae fractures.  On August 2, 2018, she died at the age of 91 from causes unrelated to the accident.  Her counsel, who had been retained prior to her death, filed a lawsuit on January 17, 2019, not knowing she had died four months earlier.

On April 29, 2020, Ms. Avagnano’s son, Frank Avagnano, was appointed administrator ad prosequendum.  He did not advise the attorney who filed the lawsuit of his ad prosequendum appointment until August 18, 2020.  The next day, the second complaint was filed, making the same claims as in the first complaint but in the name of the Estate.

Prior to the filing of the second complaint, Pulse had filed a motion to dismiss the first complaint on the grounds that a complaint cannot be brought by a deceased person.  That motion was granted and the first complaint was dismissed.  Pulse later filed a motion to dismiss the first complaint with prejudice, which was granted.  The dismissal of the initial complaint was not appealed.

Thereafter, Pulse filed a second motion in lieu of an Answer to dismiss the second amended complaint as to the two-year statute of limitations.  Atrium filed an Answer and moved for a summary judgment on the same grounds.

The Estate opposed defendants’ motion.  It argued that the statute of limitations was tolled until the date of Avagnano’s death because she lacked capacity to understand her legal rights.  Plaintiff’s counsel produced medical records indicating that Avagnano suffered from auditory hallucinations and impaired cognition.  However, plaintiff failed to submit an expert report regarding her mental competency at the relevant times.  Plaintiff also raised the theories of substantial compliance and equitable tolling to excuse the failure to comply with the statute of limitations.

Nevertheless, the trial court judge granted defendants’ motion and dismissed the second complaint with prejudice.  He ruled that the second complaint could not relate back to the initial complaint to meet the statute of limitations because the initial complaint was a legal nullity.  He rejected plaintiff’s mental incapacity tolling argument because of the plaintiff’s failure to establish that a condition of mental derangement actually prevented her from understanding her legal rights or initiating legal actions.  The trial court also rejected plaintiff’s substantial compliance theory.  The court reasoned that the initial complaint provided insufficient notice because it contained only broad generalities.  Last, the trial court judge rejected plaintiff’s equitable tolling argument.  He concluded that there was no wrongdoing on the part of the defendants that would have induced plaintiff into missing the deadline. 

Upon appeal, the Appellate Division reviewed the plaintiff’s argument that the complaint should not have been barred by the statute of limitations.  The Court rejected all of the plaintiff’s arguments and affirmed the trial court’s dismissal of the second complaint.   The Appellate Division agreed with the trial court that the first lawsuit was a nullity because it was brought in the name of a dead person.  Hence, an amended complaint could not relate back to something that never existed, nor can a non-existent complaint be corrected.

The Appellate Division also rejected plaintiff’s argument that the second complaint was timely filed based upon tolling attributable to decedent’s incompetence.  The Court found the tolling argument unavailing because the second complaint was still filed after the statute of limitations expired.

The Court also considered the applicability of the doctrine of substantial compliance.  The Appellate Division found that doctrine inapplicable as well. 

Finally, the Court considered the doctrine of equitable tolling.  The Court noted that absent a showing of intentional inducement or trickery by a defendant, equitable tolling should be applied sparingly and “only in the rare situation where it is demanded by sound legal principles and in the interest of justice.”  It would require the plaintiff to diligently pursue their claim and does not excuse claimants from exercising reasonable insight and diligence required to pursue their claim.

The Appellate Division agreed with the trial court that equitable tolling did not apply.  Just because a mistake was made in the filing of the initial complaint and there was a lack of communication between the power of attorney and the law firm, that mistake did not merit the application of equitable tolling so as to extend the statute of limitations.

Hence, the Appellate Division agreed with the trial court on all rulings and determined that the second complaint should be dismissed with prejudice. 

Plaintiff’s Loss of Balance May Satisfy the Permanency Requirement of the Tort Claims Act

Plaintiff Berta Abreu Flores was injured as a result of a collision by the defendant North Hudson Regional Fire & Rescue Department’s fire engine.  During a training exercise, the fire engine crossed the road and struck the front of her residence opposite the fire house where plaintiff was working on the first floor.  She claimed an injury from the accident, including a hearing loss, shoulder injury, and a loss of balance.   The issue in Flores v. North Hudson Regional Fire & Rescue, 2023 N.J. Super. Unpub. LEXIS 1928 (App. Div. Oct. 27, 2023) was whether the plaintiff’s injuries satisfied the substantiality and permanency of the Tort Claims Act verbal threshold under N.J.S.A. 59:9-2(d).

At the time of the accident, plaintiff was operating a tax preparation business out of the first floor of the residence.  While she was working, the defendant fire company was conducting a training exercise at a fire station.  The fire engine crossed the road, struck the front of the residence where she was working, and the impact damaged the building’s support columns.  While plaintiff was speaking with one of her employees, the employee saw the wall coming down.  She yanked plaintiff from her chair by her right arm. 

After plaintiff was pulled from her desk, she immediately began to have pain on the left side of her head.  She noted fragments of glass that were in her hair and a lump in her head.  She was taken to a local emergency room where she reported pain in her left side, head, and shoulder and dizziness.

She continued to experience pain in the weeks following the accident but did continue to work until the end of the tax season.  She has not worked since that time. 

About four months after the accident, plaintiff went to an audiologist with complaints of “hearing loss, dizziness, nasal congestion, and difficulty maintaining her balance.”  The audiologist tested her and found that plaintiff had decreased hearing in both ears and injury to her brain stem.  He further diagnosed her with a loss of balance.  He attributed the hearing deficits and loss of balance to the incident.  Plaintiff tried to take Lasix for the dizziness but the drug’s side effects caused kidney damage and it had to be discontinued.  After that drug was discontinued, plaintiff’s loss of balance worsened.  Although her hearing problems persisted to some extent, she did not obtain hearing aids. 

She also sustained injury to her right shoulder and treated with an orthopedist who diagnosed her with a tear of the supraspinatus tendon.  After physical therapy failed to resolve her shoulder symptoms, she underwent an arthroscopic rotator cuff repair.  She continued to have post-surgery about a 10% loss of full function in her right shoulder.

Plaintiff filed a lawsuit against the fire department and two of its employees as a result of the accident.  She claims that the defendants were negligent in causing the accident. 

Following the completion of discovery, defendants filed for a summary judgment to dismiss the plaintiff’s claims of pain and suffering.  Defendants argued that her post-accident medical problems were not substantial and permanent, as required under the Tort Claims Act, N.J.S.A. 59:9-2(d), to pursue a claim for pain and suffering.  In the opposition to the motion, the plaintiff attested to her balance and hearing problems.  In particular, she noted that she was losing her balance at least twice each day on average and had fallen recently. 

Nevertheless, the trial court judge granted summary judgment to the defendants.  He found that the plaintiff’s medical experts did not show that the damage to her hearing loss was substantial.  He found that she did not require a hearing aid and she was still able to return to work.  She was also able to finish the tax season.  As for her right shoulder, the trial court judge found that plaintiff had not shown by objective medical evidence that the injuries resulted in a loss of bodily function that was substantial.  However, he did not comment on her imbalance problems.

This summary judgment dismissal was appealed to the Appellate Division.  The Court noted that under the Tort Claims Act verbal threshold provision, for the plaintiff to obtain a monetary award, plaintiff must prove a “permanent loss of a bodily function, permanent disfigurement or dismemberment.”  Under New Jersey case law, the courts have construed this provision to require that the claimant suffer an “objective” permanent injury or disfigurement that is “substantial.” 

Thus, the courts have set up a 2-prong standard in evaluating whether the plaintiff’s injuries constitute a permanent loss of bodily function.  First, the plaintiff must prove that there is an objective medical evidence of a permanent injury and then, second, plaintiff must prove that there is a permanent loss of a bodily function that is substantial.

In reviewing the record, the Appellate Division agreed that the plaintiff’s shoulder injury and hearing loss claim did not vault the verbal threshold.  The trial court judge found from the medical evidence that plaintiff’s shoulder injury had been effectively resolved through surgery.  The 10% estimated residual limitation on her shoulder functions was not sufficiently “substantial” to qualify to the statute.  Further, she had not prevented sufficient evidence that her post-surgery shoulder condition had substantially restricted her daily life activities. 

The Appellate Division found that a closer question was whether the plaintiff’s hearing loss claims vaulted the threshold.  Again, however, the Appellate Division agreed with the trial court that it was not sufficient.  It noted that none of the plaintiff’s expert had expressed a numerical value as to the plaintiff’s diminution of hearing.  Further, it did not rise to the level to be a substantial limitation on her daily life activities.  It was not severe enough for plaintiff to obtain the aid of a hearing device.  Further, plaintiff admitted that, with attentiveness, she was able to engage in normal conversation with others. 

However, the Appellate Division reached a different conclusion with respect to the plaintiff’s ongoing deficits of balance.  Her medical documentation did establish that she has suffered significant problems with her balance, as often as twice per day.  The Court concluded that plaintiff’s frequent and persistent loss of balance post-Lasix presented a genuine issue of material fact under the Tort Claims Act.  Thus, it reversed the summary judgment.

When the case is tried, the Court noted that the jury verdict’s form should contain a specific inquiry concerning the loss of balance.  If that loss is found by the jury to surmount the threshold, then plaintiff’s other injuries caused by the accident could also be compensated.

Hence, the Appellate Division reversed the trial court’s decision and remanded it back for further proceedings.

Hotel Found Not to Be Liable for an Injury Caused by Trip Over Corner of Bed Frame

Plaintiff Cheryl King was a guest at the defendant Harrah’s Atlantic City Hotel.  While walking through her hotel room, she hit her leg on the corner of the bed frame which caused her to trip and hit her head on the wall.  The issue in King v. Harrah’s Atlantic City Operating Co., LLC, 2023 U.S. Dist. LEXIS 70806 (D.N.J. Apr. 24, 2023) was whether the defendant hotel breached any duty owed to plaintiff that caused her injury.

Plaintiff claimed that the bed frame was improperly exposed and, thus, created a dangerous tripping hazard.  However, she had slept in the room at least once and had not reported any issues with the bed or the bed frame until after she fell.  She claimed that the defendant hotel was liable for her injuries and negligence because it knew of the alleged defect in the bed frame prior to her stay but had never sought to correct it.

It was not disputed that the defendant hotel owed plaintiff a duty to maintain the premises in a reasonably safe condition. Rather, the issue was whether plaintiff could adequately demonstrate that defendant breached its duty.

The defendant filed a motion for summary judgment, seeking a dismissal.  It claimed that it was not liable for her alleged trip and fall incident.

To establish a breach of duty care, plaintiff must prove “that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”  The dangerous condition of the property must involve an unreasonable risk of harm.  The District Court noted that not every property condition on which persons can hurt themselves is unreasonably dangerous or hazardous.

Based upon the facts of this case, the plaintiff did not claim that the bed frame was broken or damaged, that it blocked her path as she walked around her hotel room, or that the bed frame ever moved from the original position it had presumably always occupied prior to her fall.  Her claim was that it was “defective” because one particular corner extended out beyond the mattress.

The District Court noted the following: “while it is clear that plaintiff tripped over a bed frame, the Court fails to comprehend based on the record before it how the bed frame was defective or otherwise posed an reasonable risk of harm.”  The Court found that the plaintiff had not submitted any evidence suggesting that the danger of this particular bed frame differed from the ordinary risks inherent in any other bed frame.  Further, she offered no expert testimony demonstrating that the bed frame created a dangerous condition or that it was contrary to industry standards.  The Court found that “plaintiff has failed to fully articulate any real defect at all, much less prove the existence of a dangerous one.”

Further, the Court noted that any danger that the bed frame could have posed was “undoubtedly neutralized by its clear and obvious visibility in the room.”    The simple fact that plaintiff tripped and fell does not make the bed frame unreasonably dangerous or hazardous as a matter of law.  Further, the Court found that it did not diminish the bed frame’s plain visibility, the appropriateness of its placement, or lessen the expectation that plaintiff should have taken reasonable care as she walked to avoid this particular injury. 

Based upon the facts, the District Court found that no reasonable jury could find that defendant had actual or constructive notice of the bed frame as a dangerous condition.  Any reasonable prudent person would have observed, in light of the dimensions of the bed, its presence in his or her lane of travel.  Because plaintiff could not prove that defendant breached its duty of care, the District Court found that her negligence claim must fail as a matter of law.  Hence, the defendant’s motion for summary judgment was granted.

Building Owner Found Not Liable for Injury to Tenant’s Contractor

Defendant Rock Pile Properties, LLC (“Rock Pile”) owned a building in Garwood, which it leased to Defendant Statewide Fence Contractors, LLC (“Statewide”), a residential, commercial, and industrial fence company.  According to the lease, Statewide was required to make all repairs and maintain the property, including the roof.  Plaintiff John Gudoski (“John”), had prior experience working for his father’s company, Statewide Restoration, Inc., restoring and repairing building cracks. He suffered an injury in the course of inspecting a masonry crack from the defendant’s roof.  The issue in Gudoski v. Rock Pile Properties, LLC., 2022 N.J. Super. Unpub. LEXIS 2031 (App. Div. Nov. 3, 2022) was whether defendant Rock Pile could be liable for the injuries suffered by plaintiff when he fell off the roof to inspect a crack.

The facts are somewhat in dispute as to whether John was present on the property as an independent contractor of the tenant Statewide or a friend doing a favor for another friend.  According to Statewide’s owner, John came to the property to look at the building and offer a friend some advice about a crack in the building.  When he arrived, there was an ongoing Labor Day picnic on the premises.  John observed the building perimeter, and he noticed some large cracks in the masonry in what appeared to be a corner separating from the sidewalk. He told Statewide’s owner that he needed to go on the roof to fully examine the crack.  According to several witnesses, Statewide’s owner told John not to go onto the roof.  However, John went up on the roof and, while inspecting it, stepped onto a skylight and fell through it onto the concrete ground.  As a result, he suffered several injuries, including to his shoulder, hand, and mouth.

Plaintiff sued the property owner Rock Pile, as well as Statewide for negligence damages.  Both defendants filed for summary judgment prior to trial.  The motion judge found that while there was a genuine issue of material facts as to the nature of the relationship between John and Statewide, he did grant the summary judgment motion as to Rock Pile.  He found that the owner did not owe a duty of care to John merely because it owned the building.  This order was appealed to the Appellate Division.

Upon appeal, the Court noted that whether a defendant owes a legal duty to another, and the scope of that duty, are generally questions of law for the court to decide.  To determine the scope of the duty, a court would make an inquiry involving “identifying, weighing, and balancing several factors – the relationship with the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.”

In applying this standard to determine if a duty existed between Rock Pile and plaintiff, the Appellate Division found that none of these factors were met.

The Court found that there was no evidence that John and the defendant owner had a relationship of any type.  The Appellate Division found it was not foreseeable that John would be on the roof and fall through a skylight.  There was no notice, actual, or otherwise to the defendant owner and this defendant neither maintained a presence on the site, nor was it responsible for repairs to the building.  Thus, under these facts, there was no reasonable opportunity for the defendant owner to exercise care.  Finally, the Appellate Division found that they were “unconvinced public policy supports the imposition of liability on defendant, given it was Statewide who brought John onto the property it controlled pursuant to the lease.” 

Thus, based upon the Appellate Division’s review of the facts and the law, it affirmed the trial court decision, dismissing plaintiff’s complaint as to the defendant owner Rock Pile Properties, LLC.

Court Finds That Minor’s Left Elbow Fracture May Meet Permanency Requirement of Tort Claims Act

Plaintiff T.R.C. through his guardian ad litem Ada Cardenas filed a personal injury complaint against defendants, Harrison Board of Education, Harrison In District Day School, and the Town of Harrison due to an injury in the preschool program at the Harrison In District Day School.  The minor plaintiff, while playing on the playground equipment, fell and fractured his left elbow.  The issue in Child T.R.C. v. Harrison In District Day School, 2023 N.J. Super. Unpub. LEXIS 1797 (App. Div. Oct. 18, 2023) was whether the minor’s injury qualified as a “permanent loss of bodily injury function,” as required by the Tort Claims Act to be able to sue for pain and suffering.

The injury happened while the minor and his classmates were at a playground near the school during recess.  The minor fell from a platform, landed on his left arm and suffered a left elbow injury.  He underwent surgery to repair a displaced lateral condyle fracture in his left elbow which required the placement of two pins.  After the surgery, his arm was in a long arm cast for five weeks, after which the pins were removed.  He then underwent a year of physical therapy.

At the conclusion of discovery, the defendants filed a motion for summary judgment, arguing that the minor had not suffered a permanent loss of bodily function.  The trial court agreed with the argument and dismissed the complaint.  This appeal ensued.

The Appellate Division noted that under New Jersey law, to recover for pain and suffering under the Tort Claims Act, “a plaintiff must show (1) an objective permanent injury and (2) a permanent loss of a bodily function that is substantial.”  For purposes of the summary judgment motion, the trial court had assumed that the minor plaintiff had presented objective medical evidence of a permanent bodily injury under the first prong.  The issue was the second prong and whether the plaintiff’s injuries were considered “substantial.”

Here, the testimony was that the minor plaintiff could no longer participate in gym class because of this injury.  He could no longer write using his left arm.  He was unable to partake in his favorite pastimes such as playing sports, playing with his friends and playing at the playground.  He is unable to dress himself.  Further, the minor’s father testified that he was embarrassed about his scars and that he now eats with his right hand instead of his left.

The plaintiff provided expert testimony that concluded more likely than not that the minor had sustained a permanent injury that will have a permanent residual sequelae. The minor also presented a plastic surgery expert, reporting that the minor’s left elbow had several scars, including the larger one which was 5 cm. by 1 cm.  He also had three smaller scars that were all hypopigmented.  The plaintiff’s plastic surgeon expert opined that the scars were permanent in nature.

The defendants presented an orthopedic defense expert who opined that the plaintiff did have some permanent losses, including scars about the lateral elbow with a loss of range of motion of about 10% and a loss of grip strength.

Based upon these facts, the Appellate Division found that the plaintiff had raised a genuine issue of material fact as to whether he sustained a permanent loss of bodily function that is substantial.  It was undisputed by the defendant’s orthopedic expert that the plaintiff still had a 10 degree decreased range of motion in his elbow, along with reduced grip strength in his left hand.  This limitation along with his alleged inability to dress himself, participate in gym class, participate in sports and write with his left hand created a legitimate fact issue as to whether the plaintiff had met the permanency threshold.  Given the plaintiff’s young age, his significant life expectancy, and the genuine prospect that he may face a lifetime of limitations for these permanent residuals, the Court held that “a jury could find plaintiff demonstrated a permanent loss of bodily function that is substantial.”

Further, the Appellate Division noted that the trial court had not sufficiently addressed the plaintiff’s scarring.  The plaintiff had argued that the scars constituted a permanent disfigurement.  However, there was no indication as to whether plaintiff provided the court with photos of the scar or have plaintiff appear before the court so as to give the judge an opportunity to observe the scars.

The Appellate Division noted that a permanent disfigurement could qualify as a permanent injury under the Tort Claims Act but the scar “must impair or injure the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, or deforming them in some manner.”  Thus, the Court held that, upon remand, the plaintiff shall brief the issue and provide the trial court with photos or an opportunity to view the scars in person so the record may be properly developed.  The trial court would then be in a position to perform the requisite analysis under the applicable case law to determine whether the minor plaintiff’s scars constituted a permanent disfigurement.

Based upon all the facts, the Appellate Division reversed the trial court decision and remanded it back to the trial court.  The Court found that, for purposes of summary judgment, plaintiff had demonstrated a material factual dispute as to whether his elbow injuries met the requirements of the Tort Claims Act so as to permit him to pursue a pain and suffering claim.

Homeowner Did Not Have Insurance Coverage for Accident of Person Who Lived With Insured

Plaintiff Mary Ann Iaeck lived with Patricia Barnaba in a condominium owned by Defendant Barnaba.  Plaintiff fell down a flight of stairs in the condominium and sued Barnaba, claiming that Barnaba’s negligence caused her fall.  Barnaba had a homeowner’s insurance policy with personal liability coverage with Federal Insurance Company (“Federal”).  The issue in Iaeck v. Barnaba, 2023 N.J. Super. Unpub. LEXIS 1768 (App. Div. Oct. 16, 2023) was whether the Federal insurance policy provided coverage for this personal injury claim or whether the exclusion for liability to persons who live with the policyholder was triggered.

Plaintiff had lived with Barnaba in the condominium since 2008.  She had a verbal lease with Barnaba and paid Barnaba rent.  However, it was undisputed that they shared parts of the condominium, including the kitchen, the garage, the mailbox and the space where the washing machine and dryer were located.  Plaintiff used the bedroom and bathroom on the fourth floor of the condominium.

After living with Barnaba for about 11 years, plaintiff fell down the stairway in the condominium.  She claimed that she tripped because the lights were out, the handrail was loose and Barnaba had placed boxes and other things on the steps.

As a result of her fall, plaintiff suffered a fracture of her left leg and compartment syndrome. Plaintiff was required to have multiple surgeries, which left her with permanent scarring.

At the time of the accident, Barnaba had a homeowner’s insurance policy with Federal.  The policy did cover Barnaba’s home and provided her with personal liability coverage which provided coverage for damages Barnaba was legally obligated to pay for personal injuries.

However, the policy contained numerous exclusions.  The pertinent one was entitled “Covered person’s or dependent’s personal injury.”  According to that exclusion, Federal stated that it would not cover damages for personal injuries for any covered person or their dependents where the ultimate beneficiary is the offending party or defendant.  Further, the exclusion stated that Federal would not cover any damages for personal injury “for which you or a family member can be held legally liable in any way, to a spouse, a family member, a person who lives with you, or a person named in the Coverage Summary.”

After the plaintiff’s fall, counsel for plaintiff sent Federal a letter advising of the fall and asking Federal to open a bodily injury claim under its policy.  Thereafter, Federal denied any obligation to provide Barnaba with coverage for plaintiff’s injuries.  Federal advised that Barnaba’s personal liability coverage was excluded under the policy’s “Covered person’s or dependent’s personal injury exclusion.”

Thereafter, plaintiff sued Barnaba with plaintiff claiming that Barnaba was negligent in causing her injuries.  Thereafter, plaintiff amended her complaint to assert a direct claim against Federal and sought a declaratory judgment that the policy issued by Federal to Barnaba provided coverage for plaintiff’s injuries.  She also requested a default against Barnaba.  Sometime later the trial court conducted a proof hearing concerning plaintiff’s injuries, for which Barnaba did not appear.  A judgment in the amount of $766,330 was entered in favor of plaintiff against Barnaba.

Cross-motions for summary judgment were filed between Federal and plaintiff as to the coverage issue.  The trial court granted summary judgment to Federal and declared that Federal did not have any indemnity or defense obligations as to plaintiff’s personal injury claims against Barnaba and dismissed all claims against Federal with prejudice.  That order was appealed to the Appellate Division.

The issue upon appeal was whether the “Covered person’s or dependent’s personal injury” exclusion applied to plaintiff’s personal injury claims because plaintiff lived with Barnaba.  The Appellate Division noted the well settled concepts that coverage provisions are to be read broadly and exclusions are to be read narrowly with any potential ambiguities being resolved in favor of the insured. Further, the policy is to be read in a manner that fulfills the insured’s reasonable expectations.  However, if the plain language of the policy is unambiguous, the court is not to engage in a strained construction to support the imposition of liability or write a better policy for the insured than the one purchased.

In applying these principles, the Appellate Division found that the “Covered person’s or dependent’s personal injury” exclusion did apply.  The Appellate Division explained that Barnaba’s liability to plaintiff for her personal injuries was excluded under the policy because plaintiff did live with Barnaba at the time of the accident.  It found that the language was “plain and unambiguous.”  The Court found that the exclusion applied to personal injury suffered by plaintiff because plaintiff was living with Barnaba at the time of the accident.  It found no ambiguity in this exclusion, even if read narrowly, and also found that it was not contrary to public policy because “it is reasonable for an insurer to exclude coverage for liability for personal injuries to people who live with the covered person.”

One of the arguments made by plaintiff upon appeal was that the exclusion should be read to apply only to individuals who are part of the covered person’s household or who have a romantic or familial relationship with the covered person.  The Appellate Division rejected that argument as inconsistent with the plain language of the exclusion.  It noted that the exclusion did not use the term “household” members.  Rather, it stated that there was no liability coverage for personal injuries to “a person who lives with” the covered person.

Further, the Appellate Division found that if the exclusion was meant only to apply to household members or family members, there would be no need to list “a spouse, a family member or a person who lives with you.”  By separately listing “a person who lives with you,” the Court found that “Federal was clearly stating that the exclusion applied to people who are not in a familial relationship.”  There was nothing in the terms “a person who lives with you” that require that there be a romantic relationship between that person and the covered person.

The Court rejected all of the plaintiff’s other arguments and upheld the trial court’s decision. Thus, the summary judgment entered in favor of the Federal Insurance Company dismissing the case against it was affirmed. 

Appellate Division Reverses and Remands No-Cause Verdict for Auto Negligence Claim Following Inadmissible Cross-Examination

By: Eric Richwine, Law Clerk
Edited by: Betsy G. Ramos, Esq.

The issue before the New Jersey Appellate Division in Rodriguez v. Cano, No. A-1561-21, 2023 N.J. Super. Unpub. LEXIS 1733 (App. Div. Oct. 12, 2023) was whether plaintiff Lenny Rodriguez (“Rodriguez”) was denied a fair trial following a no-cause verdict in a damages-only auto negligence case in favor of defendant-driver Stephanie Cano.  Plaintiff contended that defense counsel went too far in cross-examining Plaintiff’s treating physician about a fraudulent medical services action pending against the physician.

In the trial court proceedings, Defendant Cano did not contest liability; rather, the sole issue for the jury to determine was the amount of damages to be awarded to Rodriguez. During trial, Rodriguez’s treating physician testified to his injuries following the accident. The defense counsel soon after cross-examined the physician, focusing on the fact that a major insurance company had a pending fraudulent medical services action against him. During this cross-examination, the defense counsel also noted that Mr. Rodriguez’s treatment was explicitly included in the insurance fraud complaint to provide an example of the physician’s fraud. The defense counsel reasoned that this line of questioning was for the purpose of establishing the physician’s credibility.

The trial court judge realized only after the cross-examination that this line of questioning, which ultimately implied that Rodriguez’s treatment was unnecessary (or even fraudulent), was inadmissible, and, as such, the court instructed the jurors to disregard the testimony. The judge also allowed Rodriguez’s counsel to engage in re-direct to provide the physician the opportunity to rebut and elaborate on the defense counsel’s accusations. During re-direct, Rodriguez’s physician became irate and made several allegations against the insurer for false allegations and bad faith.

Plaintiff’s Rodriguez’s counsel moved for a mistrial, which the trial court denied. The jury returned a no-cause verdict. Rodriguez’s counsel then moved for a new trial, which the trial court also denied. The judge reasoned that any errors were “harmless.” The judge further reasoned that the jury surely “didn’t consider the evidence that I told them … to disregard,” citing the amount of time the jury took to deliberate; because the jury “didn’t come back in five minutes,” the judge purported that the jury did not think of Mr. Rodriguez and the physician as “criminals” or “fraudsters.” Plaintiff Rodriguez appealed.

The Appellate Division first addressed the defense’s cross-examination of the physician and the timing of the trial court judge’s instruction to the jury to disregard the testimony. The Court cited Rule 608 of the New Jersey Rules of Evidence, which prohibits the use of specific instances of conduct through cross-examination in a civil action to attack a witness’s character for truthfulness. The Court quickly determined that defense counsel’s line of questioning was “patently improper” per Rule 608 and that the trial court’s verdict “cannot stand.”

The Court found that, despite the defense counsel’s purported reason for its cross-examination questioning, it was inadmissible and ergo the trial court did correctly instruct the jury to disregard the testimony. The Court further noted that, although the trial court was well-intentioned in allowing the physician the opportunity for re-direct following the defense counsel’s ambush, this decision was ultimately misguided and backfired, as evidenced by the physician’s outburst.

Stating that “the prejudice to [Mr. Rodriguez] … cannot be overstated,” the Appellate Division ultimately determined that the trial court’s denial of Mr. Rodriguez’s mistrial motion and motion for a new trial was improper; as such, the Court held that Plaintiff was denied a fair trial and reversed the trial court’s decisions and remanded the matter back to the trial court for further proceedings.

Casino Had No Duty to Protect Patron From Theft of Money Kept in Shopping Bag

Plaintiff, Sridhar Jayaraman, was a guest at Caesar’s Hotel and Casino in Atlantic City for a six-night stay.  While sitting at the bar with his girlfriend, he had with him a black plastic shopping bag, allegedly containing $120,000 in cash.  After he stepped away from the bar, an unknown male later identified as Frederick Exume (“Exume”), approached Plaintiff’s girlfriend, made conversation with her and stole the bag with the money.  The issue in the federal court case, Jayaraman v. Boardwalk Regency, LLC., 2023 U.S. Dist. LEXIS 173841 (D.N.J. Sept. 28, 2023), was whether the casino breached any duty owed to Plaintiff to protect him from the theft of his money.

The incident happened during the early hours of February 8, 2022, when Plaintiff and his girlfriend arrived at the Toga Bar at the Defendant Boardwalk for a night cap.  Plaintiff, while sitting at the bar with his girlfriend had a black plastic shopping bag which allegedly contained $120,000 in cash.  He put the bag on a chair at a high-top table across from his girlfriend and stepped away.  Plaintiff, however, did not advise his girlfriend to watch the bag as he stepped away.

After he stepped away from the table, Exume approached Plaintiff’s girlfriend to make conversation with her.  After conversing with her, he reached under the table, extracting the bag without her detection, and then exited the casino.  Upon returning from the restroom, Plaintiff noticed the bag was missing and contacted Boardwalk Security.

Boardwalk Security investigated the incident and identified Exume through video surveillance as the individual that stole the bag.  The casino was familiar with Exume because two days previously, Exume was ejected from the casino for public urination and permanently barred by Boardwalk from its premises.  However, Boardwalk first learned that Exume was back on its premises only after Plaintiff reported the incident to the casino security and the casino security officers watched the theft on video surveillance.

Two days prior to the incident, Plaintiff had been approached by the casino security and advised not to carry large sums of money on his person in a shopping bag.  Security then escorted Plaintiff to his hotel room so that he could store his money in the safe provided in his room.

The defendant casino filed a motion for summary judgment, arguing that it breached no duty owed to Plaintiff and the case should be dismissed. In reviewing the arguments submitted in support of the defendant casino’s motion for summary judgment, the District Court noted that the existence of scope of a duty of care are legal issues to be determined by the court.  The Court noted that Boardwalk owed Plaintiff a duty of care to maintain safe premises.  That general duty included a duty to protect patrons from foreseeable criminal acts of third parties occurring in their premises. 

Boardwalk argued that it did not owe Plaintiff a duty to protect him from Exume’s conduct because it did not know or have reason to know that Exume would steal Plaintiff’s property.  Plaintiff, on the other hand, argued that Boardwalk owed Plaintiff a duty to protect him from the foreseeable criminal acts of others, such as Exume’s.  He contended that it was foreseeable that a theft of property would occur on the floor of a busy Atlantic City casino.  Further, Plaintiff argued that it was reasonably foreseeable that a person permanently banned from a casino – no matter the reason – but later re-entered would commit the crime of theft.

However, the District Court noted that a foreseeability analysis would have to be conducted.  The Court noted that, under the law, a defendant business “should reasonably anticipate careless or criminal contact on the part of third persons . . . and may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” 

With this duty in mind, even if the Court assumed that Exume’s theft of the money was foreseeable third-party criminal conduct and, thus, a duty should be imposed, which the Court did not decide, “Plaintiff must still provide some evidence that Boardwalk breached its duty to either; “(1) provide sufficient security services to afford Plaintiff reasonable protection from Exume’s conduct; or (2) take reasonable precautions to protect against Exume’s criminal conduct.”  The District Court found that the record contained no evidence to show either theory of a breach.

The Court noted that Plaintiff’s only argument for how Boardwalk breached its duty of care was that it should have enforced its ban of Exume from the premises.  However, the District Court found no evidence suggesting that Boardwalk failed to provide security services, or it otherwise failed to take reasonable measures to protect Plaintiff from Exume’s conduct. 

The Court noted that the casino security had warned Plaintiff to not carry large sums of money on his person in a shopping bag.  Further, that security escorted Plaintiff to his hotel room to store the money in a safe.  Thus, based upon this evidence, Boardwalk did maintain security services that were cognizant of the risk to a patron carrying large sums of money in an unsecured bag and took precautions against future thefts by advising Plaintiff to keep his winnings in a safe provided by Boardwalk.

Further, the Court found that Plaintiff did not provide evidence that Boardwalk failed to take reasonable precautions to enforce its ban of Exume. Boardwalk was not under a duty to stop any and all criminal conduct from occurring.  Rather, a business owner only had a duty to take precautions against criminal conduct that was foreseeable to the business owner.

Here, Plaintiff provided no evidence that Boardwalk or its security services failed to take reasonable steps to prevent Exume from entering the premises or that it failed to take reasonable steps to prevent the theft from occurring.  Plaintiff offered no suggestions for what more Boardwalk could have done to ensure Exume did not enter the premises after being banned.  Further, the Court noted that there was no evidence that Boardwalk knew Exume was on the premises but failed to remove him or that Exume did anything that reasonably should have apprised Boardwalk’s security of Exume’s presence. 

Thus, the District Court found that there was no genuine dispute of material fact as to a breach in this matter because of Plaintiff’s failure to provide evidence to suggest Boardwalk breached its alleged duty owed to Plaintiff.  Thus, the Court found that even if Boardwalk owed Plaintiff a duty, its motion for summary judgment must be granted because there was no evidence to establish Boardwalk breached that duty.  Therefore, the Plaintiff’s complaint was dismissed. 

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