Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard
logo-njlitigationblogcom

Litigation Blog

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

View OTHER BLOGS

Plaintiff Barred From Pursuing Appeal After Executing Warrant to Satisfy Judgment

Plaintiff Linda Brehme filed a lawsuit against defendant Thomas Irwin for a rear end accident in which she claimed to have suffered bodily injuries.  At trial, plaintiff filed a motion to admit into evidence her projected future medical expenses.  This motion was denied by the trial court judge because she had not exhausted her personal injury protection (PIP) limits.  The issue before the New Jersey Supreme Court in Brehme v. Irwin, 2025 N.J. Lexis 11 (2025), was whether plaintiff had waived her right to appeal this ruling by accepting payment for the final judgment and executing a warrant to satisfy judgment.

The trial was a damages only trial because Irwin had admitted he was at fault.  Plaintiff had a $250,000 PIP policy with his insurance carrier, New Jersey Manufacturers Insurance Company (NJM).  NJM paid approximately $142,900 in benefits.  Brehme never exhausted her remaining PIP benefits but claims that NJM cut her off, although it is unclear exactly when that occurred or on what basis.

Almost two years after the accident, Brehme filed her personal injury complaint against Irwin.  The trial took place three years and eight months later, which was a damages only trial because Irwin admitted liability.  Although she received no medical treatment for the three years prior to the trial, in June 2022, Brehme relied on the amended collateral source rule, N.J.S.A. 39:6A-12, and asked the trial court judge to admit into evidence her projected future medical expenses. 

The trial court judge denied this motion because Brehme had not exhausted her PIP benefits.  During trial, the judge also denied her motion for reconsideration on this issue.  Prior to appealing from the final judgment, plaintiff did not seek leave to appeal this interlocutory evidentiary ruling barring her claim for future medical expenses.

Ultimately, the jury awarded Brehme $225,000 for pain, suffering, disability, impairment and loss of enjoyment of life.  It also awarded $50,000 for past lost wages and $0 for future lost earnings.  The total verdict was $275,000.  On July 7, 2022, the trial court judge entered the final judgment, which also included pre and post judgment interest.

Irwin’s insurance company paid the final judgment, which Brehme’s counsel deposited into his trust account.  On July 18, 2022, Brehme’s counsel also signed a warrant to satisfy judgment.  Thereafter, on July 29, 2022, after Brehme accepted payment of the final judgment and the warrant had been executed, Brehme’s counsel wrote to the trial court judge stating that he was trying to file an appeal regarding the barring of Brehme’s claim for future medical expenses.  He submitted a proposed order under the five-day rule, which purportedly memorialized the ruling barring evidence of future medical expenses.  

Irwin filed the warrant to satisfy judgment on August 8, 2022.  On that same day, Brehme filed her Notice of Appeal (to the Appellate Division) from the final judgment.  The Notice of Appeal was filed three weeks after plaintiff had accepted payment of the final judgment and three weeks after her counsel executed the warrant to satisfy judgment.   

The Appellate Division denied the appeal as moot.  It noted that Brehme never advanced, either on the record or in writing, that she intended to pursue her claim for future medical expenses.  Rather, she accepted and received the full final judgment amount and later signed a warrant to satisfy judgment before indicating her desire to appeal.  Thus, the Appellate Division concluded that the final judgment precluded her appeal challenging the trial judge’s denial of future medical expenses. 

Brehme filed a petition for certification before the New Jersey Supreme Court, seeking to reverse the Appellate Division decision.  Certification was granted by the Court.

Before the Supreme Court, Brehme argued that she filed her Notice of Appel within the forty-five-day deadline required under Rule 2:4-1 (time to file an appeal), and that the rule did not require a party to announce its decision to appeal before that deadline.  She further argued that, although her attorney executed the warrant to satisfy judgment before writing to the judge to request an order that memorialized his evidentiary ruling, she preserved her right to appeal since she filed the Notice of Appeal on the day that Irwin filed the warrant to satisfy judgment under Rule 4:48 (filing of warrant of satisfaction rule).  Plaintiff argued that she should be permitted to appeal the earlier trial evidentiary ruling, excluding her future medical expenses claim and that the Appellate Division made a mistake by dismissing her appeal as moot.

The defendant, however, argued that Brehme failed to clearly make her intention to appeal known before she accepted the benefits of the final judgment.  Further, he argued that if Brehme prevailed on the merits, by obtaining permission to admit into evidence future medical expenses, even though her PIP limits have not yet been exhausted, the only remedy would be to vacate the final judgment for the damages trial because evidence of pain and suffering and future medical expenses are not separable.  Further, Irwin argued that prevailing on appeal would nullify the final judgment, rather than potentially increase it.

The Supreme Court pointed out that, although Brehme complied with the deadline under Rule 2:4-1, that rule did not address whether a plaintiff can accept final payment of a judgment, execute a warrant to satisfy judgment, and then appeal.  The Court further noted that Rule 4:48-1 (warrant of satisfaction rule) also does not address that issue.  That rule provides that when a party satisfies a final judgment, a warrant must be executed and delivered to the party making satisfaction. 

The Court agreed with Brehme that Rule 4:48-1 does not alter the forty-five-day time period prescribed in Rule 2:4-1, i.e. the time to file a Notice to Appeal.  However, the Court also noted that Rule 4:48-1 “also does not explicitly address the legal effect of accepting a judgment and executing a warrant to satisfy the judgment before filing a Notice of Appeal.” 

However, the Supreme Court noted that New Jersey common law has addressed in other contexts whether a plaintiff can accept payment of a final judgment, execute a warrant to satisfy that judgment, and then appeal.  It noted that the longstanding general rule was “that when a litigant accepts the benefit awarded . . . by a final judgment, that litigant is precluded from afterward challenging the validity of the conditions by an appeal.”  When one party pays a judgment and the other accepts the money and executes a warrant to satisfy judgment, “the legal effect of what transpires is that a contract is entered into between the parties to terminate the litigation.”   

However, in other case law, the Court explained that an appeal could be maintainable if it would serve to increase but not reduce the amount of the judgment.  But, the parties seeking to appeal must make it known prior to accepting final judgment that it intended to appeal an issue which would not impact the final judgment other than to potentially increase it. 

Thus, the Supreme Court’s holding was as follows:

When a plaintiff accepts the final judgment, that party may still appeal if the party can show that (1) it made its intention to appeal known prior to accepting payment of the final judgment and prior to executing a warrant to satisfy that judgment, and also that (2) prevailing on the appellate issue will not in any way impact the final judgment other than to potentially increase it.

In applying these principles to the within case, the Court found that plaintiff did not make her intention to appeal known prior to accepting payment of the final judgment and prior to executing a warrant to satisfy that judgment.  To the contrary, she accepted payment of the final judgment, her counsel deposited the money into his trust account and also signed a warrant to satisfy judgment.  It was not until three weeks later that plaintiff filed her notice of appeal from the final judgment.

As to the second prong of this ruling, the Court found that plaintiff was also unable to show that prevailing on the trial court evidentiary ruling would not impact the final judgment and only potentially increase it.  The Supreme Court pointed out that personal injury awards are generally not divisible.  Evidence of pain and suffering “is inextricably linked to evidence of future medical expenses.”

The Court noted that one jury could not hear evidence relevant to pain and suffering and another jury hear evidence relevant to future medical expenses.  These two claims would need to be considered simultaneously and they are not fairly adjudicated separately.  Because plaintiff did not receive treatment for three years, it is possible that a subsequent jury could consider the evidence differently to find that she is entitled to less damages.  It would not be guaranteed that the issue of future medical expenses would only increase the sum the jury awarded to her.  Because the evidentiary issue on this appeal was not separable from the underlying final judgment, plaintiff could not show that it would only increase the final judgment.

In summary, the Supreme Court found that plaintiff could not show that she expressed her intention to appeal before accepting payment on the final judgment and before her attorney executed the warrant to satisfy the judgment or that the appeal would not impact the final judgment other than to increase it.  Hence, the Supreme Court found that plaintiff’s appeal could not proceed and that the Appellate Division properly dismissed it as moot.  Thus, the Supreme Court affirmed the Appellate Division decision dismissing the appeal. 

Plaintiff’s Personal Injury Claim Against NJ Transit Barred Due to Her Failure to Timely File a Notice of Tort Claim

On August 16, 2022, plaintiff Kathryn Hutchins claims to have suffered an injury while a passenger on a NJ Transit bus when it collided with a moped.  The Jersey City Police Department investigated the accident and prepared a report containing information regarding the accident and plaintiff’s injuries.  However, plaintiff failed to file with NJ Transit a notice of tort claim, showing her intent to pursue her claim, within the ninety- day time period, as required by the Tort Claims Act.  The issue in Hutchins v. NJ Transit Corp., 2025 N.J. Super. Unpub. LEXIS 7 (App. Div. Jan. 2, 2025) was whether the trial court should have granted plaintiff’s motion for leave to file a late notice of tort claim, when notice was filed just one day late.

This accident occurred when the bus made a sudden stop, which plaintiff claims caused her to strike the seat in front of her.  She alleges that she suffered injuries to her neck, lower back, right knee, and a small laceration on her lip.

Shortly after the accident, plaintiff did consult with an attorney, who declined to take her case.  However, this attorney did warn her of the strict ninety-day time limit to file her notice of tort claim.  Thereafter, in mid-September, plaintiff consulted with a second attorney.  Because of scheduling conflicts, the plaintiff did not meet with this new attorney until November 3, 2022, when she completed the notice of tort claim.  However, she did not sign the notice of tort claim until a second meeting on November 7, 2022, when she provided her hospital bills to her counsel.  But, her attorney miscalculated the expiration date of the ninety-day time period and did not file the notice of claim until November 15, 2022, which was ninety-one days after her accident.  Thus, the notice of tort claim was filed one day late. 

Plaintiff filed a lawsuit on May 11, 2023, and, on August 9, 2023, she filed a motion with the trial court, seeking leave to file a late notice of tort claim.  The trial court found that the plaintiff did not meet her burden of “extraordinary circumstances” to justify a delay of filing the notice of tort claim and denied her motion, resulting in the dismissal of her lawsuit. 

This order was appealed to the Appellate Division.  Plaintiff argued that the trial court’s decision should be reversed because she was diligent in pursuing her claim and NJ Transit was aware of material information about the accident based upon the police report.  She further argued that the trial court made a mistake in denying her motion for leave to file a late notice of tort claim because “the interest of justice” required that a one-day delay be considered a sufficient reason constituting an extraordinary circumstance.

The threshold requirement to be able to sue a public entity for a personal injury in New Jersey is to satisfy the notice requirement, as set forth in the Tort Claims Act. This notice requirement is strictly enforced by the courts. Based upon N.J.S.A. 59:8-8, a claimant who intends to pursue a claim for a personal injury must file a notice of tort claim with the pertinent public entity within ninety days after accrual of the cause of action, i.e., the date of the accident. 

Pursuant to N.J.S.A. 59:8-9, if the claimant fails to file the claim with the public entity within the ninety-day time period, the claim is forever barred.  However, N.J.S.A. 59:8-9 does provide an exception for a claimant who fails to file a notice of tort claim within ninety days, permitting the claimant to seek leave from a judge of the Superior Court within one year after the accrual of the claim, provided that the public entity has not been substantially prejudiced thereby.  The application for permission to file a notice of tort claim must be supported by an affidavit in which the individual must show “sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by Section 59:8-8.”

Here, plaintiff argued that she did diligently pursue her claim and that the details of the accident were set forth in the Jersey City Police Report and that NJ Transit was aware of the information contained in the police report.  She also noted that her ability was limited after the accident, and she had to use crutches.  Further, plaintiff’s counsel claims that his personal obligations caused a delay in meeting with the plaintiff which, in turn, contributed to the delay in filing the notice of tort claim.  Plaintiff argued that based upon the totality of the unique facts and circumstances presented, and the interests of justice, the trial court decision barring plaintiff’s claim should have been reversed.

However, the Appellate Division pointed out that an attorney’s inattention, or even an attorney’s malpractice, does not constitute an extraordinary circumstance to justify the late filing of a notice of tort claim.  The Court pointed out that plaintiff was able to consult with two attorneys prior to the ninety-day deadline and even executed a notice of tort claim within the ninety-day time period.

Plaintiff’s counsel conceded that he had a signed notice of tort claim by November 7, 2022, well in advance of the November 14, 2022, filing date.  It was the plaintiff’s counsel’s miscalculation of the deadline that led to the late filing.  The Appellate Division noted that neither an attorney’s inattention to a client’s file or even ignorance of the law constituted extraordinary circumstances to justify a late filing of tort claim. 

The Appellate Division further rejected plaintiff’s argument that the defendant was aware of material information related to the accident which put them on notice of claims from injured passengers, including plaintiff.  However, the Appellate Division found that NJ Transit may have received notice of this police report but that did not put it on notice that a particular plaintiff would be contemplating filing a claim against them.  Hence, receipt of a police report would not constitute a timely notice that a tort claim would be filed against the public entity.  As far as the potential prejudice to a public entity, that factor would only be relevant after a court determined that a plaintiff had demonstrated extraordinary circumstances.

Further, the plaintiff argued that a one-day delay in filing a tort claim notice was a “rare, unique circumstance that is a sufficient reason constituting extraordinary circumstances.”  The Appellate Division rejected that argument, finding that the tort claim notice was not mailed within the ninety-day time period but only served after the deadline had passed.  The Court pointed out that a notice of claim which is mailed certified mail within the time specified would satisfy the notice of claim requirement. But the statute did not create a general exception where a defendant could effectuate service beyond the timeframe set forth in this statute.  Because the tort claim notice was not mailed within the ninety-day time period, the Appellate Division found that it was not timely filed.

Hence, the Appellate Division upheld the trial court decision, denying the plaintiff’s application for leave to file a notice of tort claim, resulting in the dismissal of her lawsuit.

Appellate Division Upholds Summary Judgment Dismissal of Suit for Plaintiff’s Failure to Maintain New Jersey Automobile Insurance

Plaintiff Ramon Hernandez claimed to have suffered injuries when his car was struck in the rear on a New Jersey road by a car being driven by defendant Hannah Kurtz and owned by co-defendant Eric Kurtz. In Hernandez v. Kurtz, 2024 N.J. Super. Unpub. LEXIS 3049 (App. Div. Dec. 17, 2024), the issue was whether plaintiff Hernandez’s failure to obtain a New Jersey automobile insurance policy at the time of the accident barred him from recovering damages for his injuries. The trial court judge relied upon a New Jersey statute which disallowed a monetary recovery when a plaintiff lacked the required New Jersey auto insurance coverage.

In this case, the plaintiff was driving his car when he met with an accident with defendants’ vehicle in New Jersey.  However, at the time of the accident, plaintiff had a driver’s license issued by the state of Maryland, and his vehicle was insured and registered in Maryland. Plaintiff sued defendants for damages from injuries he suffered as a result of the accident. Thereafter, defendants filed for a summary judgment dismissal of the lawsuit on the ground that his claim was barred because his car was considered “principally garaged” in New Jersey at the time of the accident, yet it was not insured under a New Jersey auto policy.

The Court reflected upon the applicable statutes, noting that N.J.S.A. 39:6B-1(a) mandated that every owner or registered owner of a motor vehicle, “registered or principally garaged in this State shall maintain . . . motor vehicle liability insurance coverage.” The coverage must include, a $15,000 minimum level of coverage for PIP benefits. The Court observed that, the applicable statutes did not define “principally garaged,” but case law suggested that term signified the physical location where the vehicle was primarily kept most of the time.

Defendants claimed that plaintiff’s claim was barred under N.J.S.A. 36:6A-4.5(a), which provided that an individual who failed to maintain Personal Injury Protection (PIP) coverage at the time of the accident was barred from recovering economic or non-economic losses for injuries suffered in the accident

Further, the Court noted that although the insurance statute did not provide a time interval for when a vehicle would be deemed to be principally garaged in New Jersey, the state’s motor vehicle statutes required owners of motor vehicles to get the vehicle registered in 60 days after re-locating to New Jersey. The Court clarified that the 60-day grace period was triggered not when the vehicle was principally garaged in the state, but rather, when the vehicle owner becomes a resident of the state.

Following the analysis of the applicable law, the Appellate Division observed that, in support of the motion for summary judgment, defendants relied upon plaintiff’s deposition testimony which revealed that he had moved to Maryland in 2007-2008, lived there for a few years and then moved back to NJ in 2021. It was his testimony that, at the time of his deposition, he had been living in New Jersey for about two and a half years. However, at the time of the accident, he had been living in New Jersey for about three months and had owned the subject vehicle for either two or three years. It was undisputed that, as of the time of the accident, plaintiff had not registered his car in New Jersey, nor had he procured a New Jersey auto insurance policy.

Plaintiff’s Maryland policy provided him with basic PIP coverage, mandated under Maryland law, which was only $2,500. It was undisputed that this coverage was below the $15,000 minimum PIP coverage required under New Jersey law. Thus, this policy did not comply with the requirements of a New Jersey auto insurance policy.

The Court noted that the motion judge correctly focused on the sixty-day grace period for car registration, and plaintiff’s acknowledgment that at the time of the accident he had been living in New Jersey for a longer period of “about three months, more or less.” The Appellate Division stated that the “principally garaged” provision denoted that the car owner should act promptly within a reasonable time to acquire the mandatory minimum insurance coverages and that, in this case, plaintiff failed to do so. Further, the Court noted that plaintiff presented no evidence to show that he had been living in New Jersey for less than three months before the accident and that his vehicle was garaged elsewhere.

Therefore, the Appellate Division upheld the decision of the trial court, ruling that plaintiff lacked the required New Jersey auto coverage at the time of the accident and, hence, was prohibited from recovering personal injury damages from defendants. Thus, the Court affirmed the summary judgment dismissal in favor of defendants.

Court Dismisses Plaintiff’s Personal Injury Claim Due to Failure to Plead Claim Under the Products Liability Act

Plaintiff Chris Williams filed a lawsuit against defendant QuickChek Corp. when his right hand was burned as a result of hot water melting a Styrofoam cup.  Although the plaintiff pled a premises liability cause of action, the complaint did not include a claim against QuickChek based upon the Products Liability Act (“PLA”).  The issue in Williams v. QuickChek Corp., 2024 N.J. Super. Unpub. LEXIS 3238 (App. Div. Dec. 30, 2024) was whether the complaint should be dismissed based upon the plaintiff’s failure to plead a claim under the Products Liability Act.

Plaintiff filed a lawsuit against QuickChek based upon an incident that occurred in December 2021 at the QuickChek in Wayne, New Jersey.  He claimed that his right hand was burned as a result of hot water melting a Styrofoam cup which caused him injury and disability.  Almost two years later, on January 9, 2023, he filed a lawsuit against QuickChek, asserting that defendant was responsible for the care and maintenance of the premises and that it negligently maintained, repaired and/or controlled the premises so as to permit a hazard, a nuisance and a trap for persons lawfully on the premises.  Plaintiff further claimed that as a result of the carelessness, recklessness and/or negligence of defendant, he suffered a burn when the Styrofoam cup melted.

After the lawsuit was filed, QuickChek moved to dismiss the complaint for failure to state a cause of action.  The defendant argued that this case was not a premises liability case.  Rather, it was a product liability action and plaintiff failed to plead a claim under the PLA and that, under New Jersey law, all common law claims were subsumed by the PLA.  The trial court judge agreed with the defendant’s argument and dismissed the lawsuit. 

The judge also held that, because the two year statute of limitations had run under the PLA, it would be futile to permit the plaintiff to amend the complaint.  This dismissal was appealed to the Appellate Division.

The Appellate Division noted that the PLA is the exclusive remedy for personal injury claims arising out of product use.  This statute “is intended to protect users from harm caused by defective products by ‘establishing clear rules’ in actions for damages for harm caused by products.”  The Court noted that the PLA “imposes liability upon the manufacturer or seller for a products’ manufacturing defects, warning defects, and design defects.”  Further, the Appellate Division pointed out that the Legislature “established a unified theory of recovery for harm caused by products.”  Thus, the PLA subsumes claims for a defective product under the Consumer Fraud Act, as well as any alternative remedy for injuries such as negligence and breach of implied warranty.

Thus, the Appellate Division agreed with the trial court judge in dismissing the complaint.  The focus of plaintiff’s claim was clearly on a defective Styrofoam cup that melted when hot water was poured into it.  The Appellate Division found that the plaintiff should have brought the claim pursuant to the PLA which was the “exclusive remedy” for personal injuries arising out of the use of a product.  Instead, plaintiff asserted a claim as a premises liability negligence claim which claim is subsumed under the PLA.  Further, the Appellate Division noted that claiming that a party negligently maintained its premises “is not the same thing – not even close – as alleging it sold a defective product.”  Thus, the trial court’s decision was affirmed, dismissing the complaint.

Court Dismisses Plaintiff’s Personal Injury Claim Caused by Fall in Pothole Located in Crosswalk

Plaintiff Nelly Reis a/k/a Nelly Gonclaves and her husband filed a lawsuit against the City of Newark for her personal injuries.  She alleged that she tripped and fell in a pothole, a couple of feet outside of a crosswalk, while she was crossing an intersection in the City of Newark.  The issue in Reis v. City of Newark, 2024 N.J. Super. Unpub. LEXIS 3053 (App. Div. Dec. 17, 2024) was whether plaintiff was able to establish that Newark had constructive notice of the pothole and, hence, could be liable for the injuries she suffered due to her fall.

On the date of the accident, Nelly parked her car and walked to her office located on Rome Street.  She parked on the corner of Rome Street and Niagara Street because she could not park on Niagara Street due to street cleaning.  While walking to work, she crossed the intersection of Rome and Niagara outside of the crosswalk.  She tripped and fell in a pothole that was a couple feet outside of the crosswalk and about 100 feet from her office.  As a result of her fall, she suffered injuries.

She testified in her deposition that while she was familiar with the neighborhood, she did not recall seeing the pothole on Rome Street before she fell.  Nelly filed a tort claim notice against the City of Newark and subsequently filed this lawsuit.  She claimed that the large pothole in the roadway created a dangerous condition.

After discovery concluded, Newark filed a motion for summary judgment.  It argued that it lacked actual notice of the pothole before the accident and only became aware of the pothole after it received Nelly’s tort claim notice.  After receiving notice, the City sent a crew to repair it. 

Plaintiff, in opposition to the motion, submitted her own deposition testimony and Affidavits from three coworkers who stated that they were familiar with this pothole and it had existed for a long period of time, many months, prior to her accident.  She also submitted Google Earth images of this intersection which showed the pothole existing before the accident.      

Nevertheless, the motion judge granted Newark’s motion for summary judgment. Plaintiff appealed the decision, arguing that Newark had constructive notice of the pothole and that her complaint should not have been dismissed.

This personal injury claim is governed by the Tort Claims Act, under which plaintiff must prove that the property was in a dangerous condition at the time of the accident, that it proximately caused the injury, the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that either a negligent or wrongful act or omission of the public employee created or knew about the dangerous condition or that it had actual or constructive notice of the dangerous condition.  (N.J.S.A. 59:4-2) Hence, the critical inquiry in this case was whether Newark had constructive notice of the dangerous condition of the pothole. 

The plaintiff argued that there were genuine material facts in dispute and that she should be entitled to present her case to a jury.  The Appellate Division noted that under the Tort Claims Act, a public entity is liable for potholes or depression in the roadway “only when the public entity is on actual or constructive notice of a dangerous condition; and the public entity’s failure to protect against the roadway defect is palpably unreasonable.”  A public entity is only deemed to have constructive notice of the dangerous condition when the plaintiff is able to establish “that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

Plaintiff argued that she did provide evidence sufficient to prove the existence of the pothole before the accident.  However, the Appellate Division found that there was no evidence in the record that Newark had any notice of the pothole at the time of her fall.  Further, it found that the evidence she submitted fell “short of the competent evidence necessary to show Newark had constructive notice of the pothole.”

The Court noted that simply the admission of Google Earth photographs was not sufficient.  Plaintiff failed to offer any testimony as to whether the images were satellite or real images or when the images were captured and if any of the images were altered.

Thus, the Appellate Division agreed with the trial court decision.  It found no reason to reverse the judge’s conclusion because plaintiff had failed to meet her burden and establish that Newark had or should have had constructive notice of the pothole on Rome Street.  Thus, the summary judgment decision was affirmed.

New Jersey Supreme Court Determined That Juries Can View Video in Slow Motion

This matter concerns a challenge to the trial court’s decision to permit the jury to replay surveillance video evidence in slow motion and with intermittent pauses during deliberations in a criminal trial.  Although this case involved a criminal matter, the holding may also be utilized in a civil case.  In the case of State v. Knight, 2024 N.J. LEXIS 1174 (Sup. Ct. Dec. 18, 2024), three men were on trial for robbing a victim behind a deli.  The issue in Knight was whether the trial court properly permitted a surveillance video taken from inside the deli, showing four men walking outside past the deli’s back door, to be played in slow motion during deliberations.

Allegedly, three men robbed a victim behind the deli.  The victim identified defendants as two of the robbers.  However, at trial, defendants disputed the identification and their involvement in the robbery.

During the trial, the State presented a surveillance video taken from inside the deli about six seconds in length, that showed, for about two seconds, four men walking outside past the partially obscured window in the deli’s back door.  In addition to playing the video as part of its case and again several times in closing, the State played the video once in slow motion.

During jury deliberations, the jury requested that the video be replayed several more times in slow motion, at other varying speeds, and with intermittent pauses.  Although the defendants objected, the trial court judge permitted those playbacks under her supervision in the court room.  Ultimately, the jury found defendants guilty of armed robbery and other defenses.

This conviction was appealed to the Appellate Division, which affirmed, finding no reversable error concerning the slow-motion video replays.  The Appellate Division held that relevant “surveillance video evidence may be presented during a trial or closing argument . . . in slow motion or at other varying speeds or with intermittent pauses, if the trial court reasonably finds [it] would assist the juror’s understanding of the pertinent events and help them resolve disputed factual issues.”  Further, the Appellate Division found that “trial courts have the discretion to grant a jury’s request during deliberations to replay surveillance videos in such modes one or more times, provided that the playbacks occur in open court under the judge’s supervision and in the presence of counsel.” 

Further, the Appellate Division ruled that the trial court, in exercising its discretion as to whether to permit the replays of the surveillance videos should consider among other things the following:

A.    Whether the video has a soundtrack that contains recorded statements of the filmed persons;

B.    Whether the video is difficult to discern when played only at a normal speed;

C.   Whether the video can assist in resolving disputed issues of identification;

D.   Whether the video bears upon disputed issues of intentionality; and

E.    Whether the video contains content that is particularly disturbing or inflammatory to watch repeatedly in slow motion.

The Supreme Court agreed with the Appellate Division and affirmed substantially for the reasons expressed in the Appellate Division decision.  The Court concurred with the Appellate Division’s list of non-exclusive factors for trial courts to consider in exercising their discretion. 

Further, the Supreme Court noted that watching a video in slow motion is not beyond the ken of an average juror.  It would not require any kind of specialized knowledge.  It would be similar to a case in which the Court had permitted the use of a conventional magnifying glass during deliberations to view a photograph in evidence.  In that case, the Court had determined that the magnifying glass was not new evidence but nearly a commonplace tool familiar to the jury.

Here, the Supreme Court noted that playing in slow motion the same video that was properly admitted into evidence to highlight the action occurring on screen and assist the jury was no different from allowing a jury to use a magnifying glass to inspect a picture.  However, some tools or functions may be so specialized that their usage constitutes an alteration of evidence or creating new evidence.  In those type of situations, the Court noted that an expert may be needed to testify about the modifications.

Thus, the Supreme Court confirmed the Appellate Division and upheld the trial court’s ruling to permit the video to be played back in slow motion.

Court Dismisses Lawsuit Filed by Driver Turning Left From Middle Lane

Plaintiff Mildred Green filed a lawsuit against defendants Ricardo Arboleda Guapacha and Alba Vidal due to an automobile accident.  Green and Arboleda Guapacha were both stopped at a red light before the accident occurred.  Green was in the middle lane and Arboleda Guapacha was in the left lane. The issue in Green v. Arboleda Guapacha, 2024 N.J. Super. Unpub. LEXIS 2899 (App. Div. Nov. 21, 2024), was whether Arboleda Guapacha owed any duty of care to Green who made a left-hand turn from the middle lane of the roadway.

The facts were undisputed that Arboleda Guapacha’s vehicle was in the left lane of traffic and Green’s vehicle was in the middle lane of the roadway before Green began to turn left.  The only lane of traffic that was authorized to turn left at that intersection was the lane that Arboleda Guapacha was traveling in.  Green was in the middle lane which was marked as a “straight lane” only.

The accident occurred when the left-hand turn signal controlling Arboleda Guapacha’s lane of travel turned green.  He began to make the left-hand turn.  Green, disregarding the middle lane’s red light, along with the lane markings, also began to turn left.  Plaintiff Green claimed that she and other drivers have made left-hand turns onto Route 280 from the middle lane due to traffic in this intersection, despite the traffic markings that only allowed her to proceed straight.

Plaintiff Green told the police that she was in the middle lane, making the left-hand turn onto Route 280, when Arboleda Guapacha’s vehicle sped up and hit her vehicle.  She suffered damage to her driver’s side rear fender and claims that she was injured as a result.  After discovery concluded, defendants filed for a summary judgment, which the trial court granted.  The trial court judge found that there was no evidence that Arboleda Guapacha failed to operate his vehicle in accordance with prevailing law.

This appeal ensued.  The Appellate Division noted that the threshold question was whether Arboleda Guapacha owed a duty of care to Green.  The Court noted that for it to impose a duty of care, “there must be a foreseeable risk of harm.” 

Here, the parties did not dispute that Green’s lane was controlled by a red light and that due to the designation of the roadway, only a straight path of travel was permitted from that lane.  Instead of obeying the traffic command, plaintiff turned left from the middle lane.  She elected to disregard the red light and the middle lane markings and drive her vehicle into the lane of travel that she should not have occupied.

The Appellate Division found that while both drivers had a duty to make proper observations, Green’s presence in the roadway next to Arboleda Guapacha’s lane of travel at the time of impact was not “reasonably foreseeable.”  Hence, the Appellate Division concluded that Arboleda Guapacha owed no duty to Green.

The Appellate Division also noted that the trial court judge properly rejected Green’s argument that she and other drivers had made a left-hand turn onto Route 280 from the middle lane on prior occasions despite the traffic control device and in contravention of the roadway markings, requiring a vehicle in the middle lane of travel to proceed straight.  The Court noted that only vehicles in the left most lane were permitted to turn left at that intersection.  It found that even if other drivers had “previously disregarded traffic laws at this intersection, such conduct by others does not exempt Green from the consequences of proceeding in contravention of designated traffic markings.” 

It also rejected the argument that Arboleda Guapacha could be liable for making an improper wide left turn or speeding up as he made the turn.  It noted that there was no evidence that Green’s vehicle would have been struck had she not been making a prohibited left-hand turn from the middle lane.

Hence, the Appellate Division agreed with the trial court’s ruling and upheld the summary judgment dismissal as to the defendants.

Appellate Division Rules That Trial Court Should Have Vacated Default Judgment Due to Mistaken Identity of Defendant

This case involved plaintiffs Latoya Coard and Anishah Stewart suing the wrong defendant.  Plaintiff Coard, along with her passenger Stewart, were in an automobile accident on August 19, 2017, both suffering injuries.  They filed a lawsuit against an individual named Okanlawon Johnson, a New York resident.  The actual individual involved in the accident was a Georgia resident with the inverse of defendant’s name, Johnson Okanlawon.  The issue in Coard v. Johnson, 2024 N.J. Super. Unpub. LEXIS 2936 (App. Div. Nov. 26, 2024) was whether the trial court made a mistake in refusing to vacate the default judgment entered against the wrong individual, Okanlawon Johnson.

According to the police report, the correct named defendant was a Georgia resident with the name of Johnson Okanlawon and he was driving a black Chevrolet Tahoe with a Georgia license plate when it collided with a car driven by plaintiff Latoya Coard.  When plaintiffs filed their lawsuit, instead of naming the correct defendant, the Georgia resident named Johnson Okanlawon, they instead sued an individual named Okanlawon Johnson, a New York resident.

Plaintiffs did serve Mr. Johnson at his New York address.  He did not respond to the complaint and thereafter, a default was entered against him, followed by the entry of a default judgment.  Defendant Johnson was informed of the proof hearing before it was filed.  Ultimately a final judgment by default was entered against defendant Johnson, awarding $74,000 to plaintiff Coard and $102,000 to plaintiff Stewart in February 2022.  Plaintiff’s counsel thereafter sent defendant a copy of the judgment and asked defendant to contact him. 

In May 2022, defendant Johnson apparently retained counsel and defense counsel asked plaintiff’s counsel to sign a consent order vacating the judgment, asserting that he had sued the wrong individual.  Defendant then moved to vacate the judgment and certified that he was not the individual involved in the accident, he never lived in Georgia, he did not own a black Chevrolet Tahoe and the car he owned at the time of the accident was not involved in the accident.  He did admit that he had been served with a summons and complaint and various other pleadings after the accident but claimed that he did not fully understand the bases of the allegations made against him.  Further, because he was not involved in the accident, nor was his vehicle involved in the accident, he believed that this was simply an error.

Plaintiffs opposed this motion.  Although they did not contest defendant’s mistaken identity assertions, they argued that defendant had not offered any excuse for his failure to respond to the complaint, the motion, or any correspondence and could not establish any reasonable basis, nor good cause for his failure to timely address the incorrect process.  Further, plaintiffs argue that the defendant’s neglect had prejudiced plaintiffs, in that the defendants failure to address the mistaken identity until three years into the litigation, severely prejudiced plaintiffs in their ability to amend the pleadings and rectify the situation.

The trial court denied the defendant’s motion to vacate the default judgment.  Similarly, the trial court denied the defendant’s motion for reconsideration of that order.  Although the judge acknowledged that it appeared to be an error that plaintiffs transposed the names of the defendant, he faulted defendant for not raising his mistaken identity defense sooner and that plaintiffs would now be prejudiced by defendant’s delay based on a possible statute of limitations defense by the actual driver.

This appeal ensued. 

Initially, the Appellate Division noted that a statute of limitations may be equitably tolled “if the wrongdoer has concealed his identity, thereby preventing the injured party from bringing suit within the limitations.”  Further, the Court noted that under Rule 4:50-1, a trial court may relieve a party from a final judgment and order on certain bases.  One of those bases would be “if a grave injustice would occur.” 

Further the Appellate Division noted that a motion to vacate a default judgment should be considered by the Court “with great liberality, and should tolerate every reasonable ground for indulgence to the end that a just result is received.”  Finally, the Court noted that there were equitable principles that must be considered by the trial court in avoiding an unjust result.  It noted that “[t]he importance of finality must be weighed in the balance with the equally salutary principle that justice be done in every case.”

One of the bases for excusable neglect under Rule 4:50-1 to justify vacating a default judgment would be “a situation where the default was attributable to an honest mistake that is compatible with due diligence and reasonable prudence.”  Also, to vacate a default judgment, a party must demonstrate that he or she has a meritorious defense.

After reviewing all of these principles, the Appellate Division concluded that the trial judge mistakenly exercised his discretion in failing to vacate the default judgment and reconsideration motion.  The Court found that defendant certainly had a meritorious defense because he was not the person driving the car that allegedly caused the accident.  The defendant reviewed the materials sent to him but concluded that this was simply an error because he was not involved in the accident.

The Appellate Division noted that this reason “strikes us as being an honest mistake compatible with reasonable prudence.”  Further, the Court found that based upon the undisputed facts of this case, “a grave injustice” would occur if defendant was required to pay plaintiffs $176,000 in damages in the lawsuit in which he was incorrectly named, regarding an accident in which he was not involved. 

Based upon the evidence in the record and “the liberal and equitable principles governing motions to vacate default judgements,” the Appellate Division found that the trial court judge did abuse his discretion when he denied defendant’s motion to vacate and again when he denied the unopposed motion for reconsideration.  Accordingly, the Appellate Division reversed the trial court’s decision and remanded the matter back to the trial court for proceedings consistent with their opinion.

Plaintiff Unable to Establish That Stone Filler in Front of Township Recycling Box Car Constituted a Dangerous Condition

Plaintiff Lois Henry suffered an injury from a fall on gravel after arrival at the Cranford Conservation Center, a recycling facility owned and maintained by the Township of Cranford.  The facility had box cars designated for different types of recycling.  In front of the containers was a filler of mixed stones.  The issue in Henry v. Township of Cranford, 2024 N.J. Super. Unpub. LEXIS 2811 (App. Div. Nov. 15, 2024) was whether the rocks and gravel in front of the box car constituted a dangerous condition of public property.

The Center provided box cars for residents to dispose of their recycling and yard waste.  When visitors arrived at the site, they would have to walk through a small entrance building and then a paved driveway which would lead them to various box cars designated for different types of recycling.  In front of these containers was a filler of mixed stones, various shapes and sizes to prevent puddling and icy conditions from forming in front of the recycling containers.

Plaintiff tripped and fell while returning to her car after she dropped off her recycling in one of the box cars.  She claimed that she put her foot down on the rocks and gravel, stepped on a rock and her foot twisted and she went down on her right knee.  She suffered a fracture of her fifth metatarsal on her right foot.

Plaintiff sued the Township of Cranford and the Cranford Conservation Center under the Tort Claims Act (“TCA”), claiming that the gravel and filler at the site constituted a dangerous condition of public property.  The Township’s Director of the Department of Public Works testified in his deposition that the filler was placed in front of the box car to avoid puddling and icy conditions.  There were employees there to keep things in order but there were no scheduled inspections.  However, he was unaware of any previous incidents at the location or any complaints about the stone filler. While he had been aware of no other accidents, he was aware of some people losing their balance on the stones.

At the trial court level, the defendants filed for a summary judgment.  The trial court judge granted the motion and dismissed the complaint with prejudice.

Plaintiff appealed that dismissal order, arguing that “there are genuine issues of material fact concerning various elements of dangerous condition liability under the TCA.”

The Appellate Division noted that under the Tort Claims Act, a public entity may be liable for a personal injury caused by the dangerous condition of its public property under N.J.S.A. 59:4-2.  To recover for an injury under this section of the Tort Claims Act, the plaintiff must prove several elements, including the existence of the dangerous condition at the time of the accident and that the public entity had actual or constructive notice of the dangerous condition with “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  But, under this statutory section, no liability would be imposed upon the public entity for a dangerous condition “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

The Appellate Division agreed with the trial court decision.  It found that although plaintiff’s injury was “unfortunate,” there were no “genuine issues of material fact that reasonably could support defendants’ liability under the required elements of the TCA.”  The Court noted that there were no previous reported accidents at the location or other sufficient proof of actual or constructive notice of the “dangerous condition.”

Further, in reviewing the photographs provided, the Appellate Division did not find that these photos established an actionable dangerous condition.  Finally, the Court found that there was no bona fide jury question on whether “the Township’s choice of surface outside of the container was so irrational and extreme to be found ‘palpably unreasonable’ as required under the TCA.”  Hence, the trial court decision, dismissing the complaint, was affirmed. 

Federal Court Remands Case Back to State Court Due to Defendant’s Failure to Establish Diversity Jurisdiction

Plaintiff Jeffrey Taylor filed a lawsuit against Target Corporation due to personal injuries that occurred at a Target store in Brick, New Jersey.  Plaintiff filed his complaint in state court in Ocean County.  Upon receipt of the complaint, defendant Target filed a Petition for Removal to remove the matter to federal court.  The issue in Taylor v. Target Corp., 2024 U.S. Dist. LEXIS 201963 (D.N.J. Nov. 6, 2024) was whether Target had alleged complete diversity between all parties so as to make the lawsuit eligible to be removed to federal court.

When a lawsuit is filed in state court, a defendant may “remove” the lawsuit to federal court if it is able to establish either that there is complete diversity between all parties or that a federal question is involved. If the removal is on the basis of diversity of the parties, the defendant must be able to show that all plaintiffs are “diverse” in citizenship from all defendants and the matter in controversy exceeds $75,000.  That means a defendant would need to be able to establish the state of residence of each plaintiff and each defendant and be able to show that the plaintiffs reside in different states than the defendants.

Here, in its Petition for Removal, Target alleged that it is a citizen of Minnesota and plaintiff is a citizen of New Jersey and that it believed the amount in controversy exceeded $75,000. Thus, it alleged that the lawsuit was removable to federal court under 28 U.S.C. § 1441.

However, there were other defendants in the lawsuit.  In addition to Target Corporation, plaintiff had sued Dayton Hudson Corp. and Mervyn’s Inc. and Target’s store manager, Alexander Applegate.  Plaintiff alleged that Applegate was a resident (“citizen”) of New Jersey and that because he was the director of the store on the date of the incident, he “had an affirmative executive duty to monitor and supervise” the store to prevent the alleged accident.

The District Court noted that removal of a lawsuit from state to federal court was proper only if the federal court to which the lawsuit was removed would have had original jurisdiction over the matter.  Further, to maintain subject matter jurisdiction over a lawsuit either there must be diversity jurisdiction or federal court jurisdiction.   Upon removal, if a district court finds that it lacked subject matter jurisdiction over a removed action, it must remand the action to state court.

In a lawsuit in which the defendants do not have complete diverse citizenship from the plaintiff, a diverse defendant may still remove the action “if it can establish that the non-diverse defendants were fraudulently named or joined solely to defeat diversity jurisdiction.”  The District Court noted that joinder is considered fraudulent “where there is no reasonable basis in fact or a colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.”  However, the moving party would carry a heavy burden of persuasion to show that the claim was not colorable.

The District Court found that Target had not met its burden of demonstrating that Applegate was fraudulently joined for the purpose of defeating diversity jurisdiction. The complaint had alleged that Applegate “did negligently, improperly, and carelessly design, construct, maintain, and supervise the aforementioned premises and. . . did fail to give warning to business invitees of the dangerous and hazardous condition that existed,” and that these actions caused plaintiff to fall and suffer serious and permanent injuries.

In prior cases, the District Court had held that similar claims for negligence against individual store managers like Applegate would be colorable and had “repeatedly rejected” fraudulent joinder arguments when considering similar claims for negligence against defendant store managers. 

Target admitted that Applegate was the store director on the date of the alleged accident but claimed that he was not on the premises at any time on that date.  Therefore, Target argued that Applegate was fraudulently joined because plaintiff could not allege that Applegate was actually in control of or negligently supervised the premises on the date of the accident.

The District Court rejected this argument because Target had failed to allege when Applegate was last on duty or when the hazardous condition was created.  That left open the possibility that Applegate failed to remedy a hazardous condition that harmed plaintiff, even if he was not present on the date the harm occurred.

The District Court was also unpersuaded that plaintiff’s naming of “non-existent entities” (presumably New Jersey entities) demonstrated plaintiff’s intent to defeat diversity jurisdiction.  Plaintiff did provide a basis for naming these entities as defendants, specifically, a letter from the Brick Township Tax Assessor which listed these entities as the owner of the real estate where the Target store was located.

Hence, the District Court found that diversity jurisdiction was lacking and because Target did not assert subject matter jurisdiction on any other basis, it remanded the matter back to state court.

Capehart Blogs

Insurance
Bicyclists Covered by Auto Insurance with Limited Tort Must Establish a Permanent Injury to Sue for Pain and Suffering
Firm News
Shareholder Claire Ringel Retires
Liability
Municipality Found Immune From Liability for Pedestrian Accident Under Both Tort Claims Act and Landowners’ Liability Act
Subscribe to Blog Updates

Categories

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage discovery dismissal Diversity & Inclusion Diversity & Inclusion Committee duty of care employees employers Employment Law evidence insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Pennsylvania Law personal injury Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Taxes Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter