Plaintiff Frank Danley rented a vacation home in Long Beach from Pasquale Pappalardo. The home had been recently renovated to add a third floor space which was accessible by an eight-step interior staircase. The plaintiff was talking to a friend standing in the kitchen and, while walking along the counter, missed the one step that led to the landing, fell down the stairs and was injured. In Danley v. Pappalardo, 2015 N.J. Super. Unpub. LEXIS 231(App. Div. February 9, 2015, he sued the defendant for his injuries. The issue was whether the defendant could be liable if the design of the stairs complied with the construction codes.

Both parties retained experts. The plaintiff’s expert opined that the design of the single step leading to the landing at the top of the stairs, because it was located along the open kitchen counter, was a hazard. He contended that handrails and a warning sign should have been installed.

The defendant’s expert disagreed, pointing out that the design conformed to the New Jersey Residential and Rehab Codes. Thus, the addition met the State’s specified criterion for public health and safety.

While the trial court granted summary judgment, dismissing the complaint, the Appellate Division disagreed with this decision. The appeals court found that compliance with applicable building codes and the issuance of certificates of occupancy were not dispositive of a lessor’s duty of care. The Appellate Division held that there was nothing in the Uniform Construction Code that expressed an intent to circumscribe tort liability for design defects only in those instances where it is alleged that the site violated the Code.

Thus, the appeals court held that the defendant’s compliance with construction codes and procurement of a certificate of occupancy does not bar the imposition of a duty of care, which requires more. Thus, a jury question existed as to the defendant’s liability, precluding the grant of summary judgment.

Children sometimes are injured when playing sports with other kids. The issue decided by the Appellate Division in the published case of C.J.R. v. G.A, 2014 N.J. Super. LEXIS 165 (App. Div. December 8, 2014), is what standard should be applied in determining whether the minor breached any duty owed to the injured minor in the context of a playing a sport together.

In C.J.R., the minors were playing in a Medford youth lacrosse team. With less than 20 seconds remaining on the clock, and the ball nestled in the basket of his stick, a Medford player (the plaintiff) was struck on the forearm by an opposing player (the defendant) on the Marlton team. The blow knocked the Medford player to the ground and he sustained a fractured left arm.

The Medford player sued the Marlton player. The defendant filed for a summary judgment, which was granted by the trial court. The trial court found that, even viewing the facts in the light most favorable to the plaintiff, in the context of this youth sports injury, the facts failed to support a cause of action.

The Appellate Division affirmed, finding that the minor defendant breached no legal duty in causing the minor plaintiff’s sports related injury. In reaching this conclusion, the Appellate Division enunciated a two-layered analysis for the court to apply in determining if there was liability for the injury. First, whether the opposing player’s injurious conduct would be actionable if it were committed by an adult, based upon sufficient proof of the defendant’s intent or recklessness and, second, whether it would be reasonable in the particular youth sports setting to expect a minor of the same age and characteristics as defendant to refrain from the injurious physical contact.

In this case, after reviewing the facts, the appeals court found that, at the very least, the second query had to be answered in the negative. Thus, there was no need to examine the first prong and summary judgment was appropriately granted.

Here the minor plaintiff was 12 years-old, while the minor defendant was only 11 years-old. The minor plaintiff was also about 14 pounds heavier and about 2 – 4 inches taller. The plaintiff contended that the defendant charged him and violated the rules of the game by approaching him on his blind side and engaging in what is known as a disallowed “take-out check.”

The Appellate Division, in following its analysis, noted the defendant was playing in a league of less experienced players. He was only 11 years old at the time of the incident. Although he may have committed a foul, the contact had to be considered in context. The game was close, time was running down, and his team could not tie or win the game unless they got the ball back. There was no proof of any prior enmity between these 2 players.

Based upon these facts, the Appellate Division found that the facts of this case did not rise to the level of recklessness that would make an 11 year-old novice lacrosse player monetarily liable for his misguided actions on the field. The appeals court noted that, while the minor plaintiff’s injury was regrettable, it was one of those unfortunate occasional consequences of minors playing in a rough and tumble sport.

Often parties are so focused on the monetary terms of a settlement, that they forget that there could be material nonmonetary terms that are important as well. Once a monetary offer is made and accepted, unless it has been made clear that there are other terms that are required to reach a final settlement, the other party could legitimately take the position that a final settlement has been reached and could move to enforce the settlement as binding – without those nonmonetary terms being included.

Some standard nonmonetary terms that are typically included in a personal injury settlement include the following:

• Blanket release
• Child support judgment search
• Lien documentation
• Medicare conditional payment letter
• W-9 of plaintiff’s attorney

When the offer is conveyed, there should be a discussion of the closing documentation that will be required to effectuate the settlement to avoid a dispute over whether these documents are required to complete the settlement.

Sometimes a party desire that a certain form of release be used, additional parties be added to the release (such as an insurance carrier or a parent or subsidiary of the named party), or a narrow release be used (such as a release only as to certain claims and not a blanket release). If other than the boilerplate form of release is desired, any special language must be negotiated before a final settlement is reached.

Parties also need to consider whether they want a settlement agreement to memorialize the settlement – not just a release. If so, that needs to be made clear to the opposing counsel when the offer is conveyed – that the offer is subject to memorialization in a written settlement agreement.

Other nonmonetary terms that should be considered in a negotiating a settlement, depending on the type of case, include:

• Venue and jurisdiction clause (if a dispute arises over the settlement, what court would have jurisdiction to resolve the dispute?)
• When is the settlement check due?
• Are attorney’s fees being released? (This should always be addressed in any nonpersonal injury release.)
• Nondisparagement clause
• Tax treatment of settlement monies paid

Last, and often very important to a defendant, is whether the settlement must remain confidential. A confidentiality provision is a material term that must be negotiated before a final settlement is reached. And, from a practical standpoint, it should be conveyed with the first offer. If it is not mentioned until the end of the negotiations, the plaintiff may have already discussed the offer with third parties and a confidentiality provision will not be as effective.

The point of this article is that often there are nonmonetary terms to a settlement that are very important to a party. They should be discussed and negotiated at the same time as the monetary terms or they may end up not included in the settlement.

Plaintiff, Wendy Lazarus, was injured as she tried to enter the elevator at the PATH station.  In Lazarus v. Port Authority of New York and New Jersey, 2014 N.J. Super. Unpub. LEXIS 2970 (App. Div. Dec. 29, 2014), the plaintiff sued the Port Authority for her injuries. Initially, her case was dismissed by the trial judge because she did not have an expert witness to testify as to how the Port Authority was negligent. However, she appealed, claiming that the doctrine of res ipsa loquitor applied and she did not need an expert to pursue her claim.

The plaintiff had been on her way to work when she entered the elevator at the PATH station. After the elevator doors opened, she put her leg into the elevator and, suddenly, it rose 3 to 4 inches above the platform level, causing her to fall forward onto her hands and knees. She later learned that she had fractured her patella.

The defendant’s records showed that prior to the accident, the elevator had  recurring problems. Repair technicians had been there 2 times the month before her accident and that just 12 hours prior to her accident, technicians had been called to troubleshoot the controller and valve. The elevator had just been returned to service less than an hour before the plaintiff entered it.

After discovery ended, the defendant successfully moved for summary judgment, dismissing the case. It contended that without an expert to establish negligence, “the common knowledge of lay jurors is incapable of assessing negligence” as to the defendant. The trial judge rejected the application of the doctrine of res ipsa loquitor (which means “the thing speaks for itself”), reasoning that the mechanics of how an elevator works was a complex issue that jurors could not understand without the assistance of expert testimony.

The plaintiff appealed that decision to the Appellate Division, claiming that she should have been entitled to proceed under this doctrine. The Appellate Division agreed and reversed the trial court’s ruling.

The court explained that this doctrine arose from public policy concerns to allow a blameless injured plaintiff to obtain an inference of negligence where certain required factors are met. This doctrine allows a permissive inference, that a jury can accept or reject, that “if due care had been exercised by the person having control of the instrumentality causing the injury, the mishap would not have occurred.”

Res ipsa loquitor would permit this inference of defendant’s negligence if the following is established: (1) the occurrence itself ordinarily bespeaks negligence: (2) the instrumentality was within defendant’s exclusive control; and (3) there is no indication in the circumstances that the injury was the result of plaintiff’s voluntary act or neglect.

The Appellate Division pointed out that res ipsa loquitor has consistently been recognized in cases involving malfunctioning complex instrumentalities such as escalators, elevators, and automatic sliding doors. After reviewing the facts, the appeals court found that the plaintiff did meet the test for the application of this doctrine.

The Appellate Division stated that common knowledge suggests that elevators do not usually operate in the manner reported by the plaintiff and that such accident does not normally occur absent negligence. Further, there was no evidence that the  plaintiff was at fault.

The court’s conclusion was further supported by the prior complaints as to this elevator. Although this case involved a complex instrumentality, technical knowledge is not essential for jury to understand what happened and to determine if the defendant was negligent. Hence, the Appellate Division held that the plaintiff may proceed with her case without expert testimony.

By Betsy G. Ramos, Esq.

The question of the legal duty owed is not always clear under New Jersey law, particularly, if the claimed injury does not fall within the analysis of traditional premises liability law. In Peguero v. Tau Kappa Epsilon, 2015 N.J. Super. LEXIS 9 (App. Div. 2015), the Appellate Division, in a published decision, had to decide whether a fraternity owed a party attendee a legal duty to prevent him from harm from the criminal act of another shooting and injuring him.

The plaintiff Peguero attended a large party hosted at a private residence rented by several fraternity members. After consuming several drinks, the plaintiff tried to assist a friend involved in an argument. During that altercation, the plaintiff was shot and wounded by an unknown assailant, who has never been identified. There was no evidence that the fraternity had any prior incidents involving guns on the premises or involving violent criminal behavior.

Plaintiff sued the fraternity and its members, claiming that it was negligent. The defendant fraternity argued that there was no evidence showing that it was reasonably foreseeable that plaintiff would be shot by a third party while attending this event. Hence, the defendants breached no legal duty to plaintiff under the circumstances. The trial court agreed and granted summary judgment, dismissing the complaint.

The Appellate Division noted that there are no reported cases in the State that have addressed the scope of duties that may be owed by a college fraternity or its officers or members to protect their guests from violent conduct that may occur at the social event. After reviewing the facts, the appeals court found that the defendant did not breach any duty owed to the plaintiff.

The court applied the nontraditional analysis of premises liability in reaching this determination. It focused on: “the relationship of the parties; the nature of the attendant risk; the opportunity and ability to exercise care; and the public policy considerations.” This is a fact intensive analysis.

In analyzing these factors, the Appellate Division found that the shooting of the plaintiff was not reasonably foreseeable. There was no previous pattern of criminal conduct at the fraternity house that would have alerted its members that an unknown assailant would pull a gun and shoot another guest. No witness saw the shooter with a gun or acting belligerently or dangerously prior to the shooting.

The appeals court did make it clear that it was not absolving a fraternity or its members from any criminal acts that occur on its premises. Acts such as hazing or sexual assaults have occurred at fraternities. However, under the facts of this case, there was simply no basis to impose civil liability upon the defendants.

When the mode of operation doctrine applies in a personal injury case, it makes a case more difficult to defend because it eliminates the plaintiff’s burden of proof in establishing that the proprietor had notice of the dangerous condition. In the recent case of Novick v. Glass Gardens, Inc., 2014 N.J. Super. Unpub. LEXIS 2873 (Dec. 12, 2014 App. Div.), the plaintiff argued that the mode of operation rule should apply in the context of a fall due to milk leaking from a milk carton at the checkout aisle of the supermarket.

The plaintiff was shopping at a supermarket and claimed to have slipped on a wet surface of the floor near the checkout aisle and fell onto his right knee. In the supermarket’s incident report, the assistant manager noted a small amount of milk on the floor that was caused by a customer on line that had a gallon of milk on its side, which had leaked onto the floor. The first time he noticed the milk carton was when he was assisting the plaintiff after the fall.

The defendant supermarket filed a motion for summary judgment, arguing that the plaintiff failed to produce any evidence that defendant had any prior knowledge of the wet substance that caused him to fall. More specifically, the defendant argued that the plaintiff failed to present any evidence that the defendant had (1) either actual or constructive knowledge of the existence of the dangerous condition and (2) failed to take reasonable measures to address and correct this dangerous condition.

The plaintiff argued that when the nature of the defendant’s business created the hazard, the inference of negligence exits and it shifts the burden to the defendant to submit evidence of due care. Therefore, the plaintiff contended that the mode of operation doctrine should apply.

After considering the arguments, the trial court judge granted defendant’s motion for summary judgment and dismissed the case.

The Appellate Division considered the applicability of the mode of operation doctrine under the facts of this case. As the court had explained in another recent case “the mode of operation doctrine is an extension of the general principle that when a proprietor creates a dangerous condition, notice, actual or constructive, of that dangerous condition is not required.” The court further noted that a mode of operation charge is appropriate in a self-service area when loose items are reasonably likely to fall to the ground.

Under the facts of this case, however, the Appellate Division ruled that they did not present a rational basis to apply the mode of operation doctrine and relieve the plaintiff from the burden of establishing that the defendant had actual or constructive knowledge of the milk prior to the slip and fall. Ultimately, the court affirmed the dismissal of the case.

A dispute arose between a chiropractic provider, Complete Care, and an automobile insurer, GEICO, over personal injury protection (“PIP”) benefits. The insured, Walter Jones, was injured in an auto accident in 2007 and treated by Complete Care. When GEICO stopped paying his bills, Jones assigned his right to receive PIP benefits to Complete Care. In Complete Care v. GEICO, 2014 N.J. Super. Unpub. LEXIS 2858 (App. Div. Dec. 11, 2014), both parties tried to appeal the trial court’s rulings to the Appellate Division.

GEICO appealed the trial court’s decision, which was to remand the matter back to the DRP to put in the record findings as to the medical necessity for the treatment. Complete Care cross-appealed, arguing that the trial court erred in rejecting its position; that all of the treatments of Jones should have been compensable until the IME was furnished.

The Appellate Division, however, dismissed both the appeal and the cross-appeal for lack of appellate jurisdiction. The Alternative Procedure for Dispute Resolution Act (“APDRA”) makes it clear that the trial court’s appeal of an award entered under this statute is the final appeal. PIP arbitration is to be conducted under the procedures in this statute, and the DRP is governed by the Act. The pertinent statutory provision of the Act, N.J.S.A 2A:23A-18(b), specifically states: “There shall be no further appeal or review of the judgment or decree.”

In only “rare” circumstances would an appeal be permitted in an APDRA matter. Here, there was nothing momentous, legally or factually, about this case. The sums in dispute were relatively small. There were no significant issues of public policy. The trial court judge did not act outside of the proper boundaries of the APDRA. Hence, the Appellate Division found that the entire appeal should be dismissed.

A recent New Jersey civil procedure rule amendment now requires that plaintiffs serve HIPAA authorizations along with their answers to interrogatories. Pursuant to R. 4:17-4, a plaintiff seeking damages for personal injuries shall serve contemporaneously with his or her answers to interrogatories, an executed form authorizing disclosure to the opposing party or parties, for purposes of litigation, of the plaintiff’s medical records pursuant to HIPAA, as to each health care provider named in his or her answers to interrogatories excluding non-treating expert witnesses.

This rule change is not well known, although it became effective September 1, 2014. Plaintiffs’ attorneys are not providing these authorizations as required because they are apparently unaware of this rule change. We recommend including a reminder at the inception of the case when an answer is filed or supplemental interrogatories are served.

This rule change does not require HIPAA authorizations to be provided for the plaintiff’s pharmacy, family doctor (unless that family doctor is named as a treating physician), or any providers that provided treatment for prior or subsequent accidents. Defense counsel will continue to be required to prepare these other HIPAA authorizations if they wish to obtain these records.

The law is well settled that a beneficiary of charitable works who is injured while attending an immunized event is barred from recovering for a bodily injury negligence claim against the charitable organization. However, what about when the “beneficiary” is dropped off at a church by her daughter to attend an event and the daughter is injured? Is that church protected under the Charitable Immunity Act, N.J.S.A. 2A:53A-7, for the daughter’s injury? That is the question that the Appellate Division decided in Pollard v. Jerusalem Baptist Church, 2014 N.J. Super. Unpub. LEXIS 2834 (App. Div. Dec. 8, 2014).

Plaintiff Elvina Pollard was injured when she fell down the stairs at the Jerusalem Baptist Church. At the time of her accident, the Church was hosting an usher’s council meeting. While she was not attending the meeting, the plaintiff dropped her mother off to attend the meeting. The plaintiff slipped and fell down the Church’s stairs when she returned to pick up her mother.

The Church claimed it was immune from liability based upon the Charitable Immunity Act. Under the Act, the Church would be immune if (1) the entity was formed for non-profit purposes; (2) it is organized exclusively for religious, charitable, or educational purposes, and (3) it was promoting such objectives and purposes at the time of the injury to the plaintiff, who was then a beneficiary, to whatever degree, of its charitable works.

Plaintiff disputed the last factor as to whether she was a beneficiary of the Church’s religious or charitable work. The appeals court noted that one is considered to be a beneficiary if she receives, in some way, a benefit from the functioning of the entity at the time of the accident. Prior case law has bestowed beneficiary status upon the individual if, for example, they were accompanying a child or others to an immunized activity, even if they do not intend to participate in that activity. Further, beneficiary status does not depend upon whether the claimant personally received a benefit from the works of the charity but, rather, whether the institution was engaged in the performance of its charitable objectives when the injury occurred.

The Appellate Division pointed out that the Act has been liberally interpreted to provide immunity. Thus, the court found that plaintiff’s presence on the premises was sufficient to bestow beneficiary status upon her. Her presence was clearly incident to the accomplishment of her objectives, ensuring her mother could participate in the ushers’ council meeting, as well as spending time with her mother. Further, the Church was engaged in a religious activity at the time of the accident. Consequently, the Appellate Division found the Church to be immune from liability for the plaintiff’s injuries suffered in the accident and upheld the dismissal of the lawsuit.