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

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Appellate Division 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.

Appellate Division Reverses Summary Judgment Order Granted Due to Plaintiff’s Medical Experts Failure to Apportion Her Injuries Among Two Accidents and Her Preexisting Condition

Plaintiff Hellen Bayer was in an automobile accident with defendant Michael Roman on November 22, 2017.  The parties contested the severity of the accident, but plaintiff alleged to have suffered injuries to her neck and back.  The issue in Bayer v. Roman, 2024 N.J. Super. Unpub. LEXIS 2605 (App. Div. Oct. 25, 2024) was whether plaintiff’s personal injury claim should have been subject to a summary judgment dismissal due to her failure to present medical testimony apportioning her injuries between her preexisting condition, injuries suffered from the 2017 accident, as well as potential injuries suffered in a subsequent April 2018 automobile accident.

At her deposition, the plaintiff claimed that the force of the impact was a 9 out of 10.  However, she acknowledged that the damage to her car was minimal, and it did not require repairs.  It was her testimony at depositions that her head struck the back of the seat twice, really hard, and that she also felt the impact to her left leg.  She was taken by ambulance to a local hospital where she complained of neck pain, radiating into her left arm with numbness and tingling into her left shoulder.  It was noted that three months previously, she had spinal fusion surgery at L4-L5.

As it turned out, back in December 2014, plaintiff had been diagnosed with a disc herniation at L3-L4 with degenerative disc changes at L5-S1.  Plaintiff had underwent lumbar spinal fusion in August 2017 before her auto accident with defendant Roman.

Plaintiff was also in a subsequent automobile accident in April 2018 when a car she was driving was struck from behind by a car traveling about 40-50 miles per hour.  As a result of the impact, plaintiff struck her head on the seat back.  She treated at a hospital with complaints of headache, neck pain, back pain and new right sided pain and tingling.   

Plaintiff received medical treatment for both her neck and back, as well as treatment for TMJ.  Her orthopedic surgeon, Dr. Meese, noted that plaintiff had been treating for her neck and back from a prior motor vehicle accident but that the 2017 accident exacerbated the pain in her neck and back, causing an acute exacerbation of cervical and lumbar radiculopathy. 

Plaintiff also obtained treatment from a dentist, Dr. Robert Federman for TMJ syndrome.  He noted that she had no preexisting history of dental injuries and concluded that the motor vehicle accident of 2017 was the probable cause for all of her injuries to her TMJ and related teeth. 

Finally, plaintiff treated with Dr. Cohen, who summarized her prior medical records and related her problems to her November 2017 accident.  He performed a Polk analysis (a comparison analysis of injuries from successive accidents) and opined that she had an aggravation and worsening of her preexisting lumbar fusion surgery after the 2017 accident and now suffered a new injury at the L4-5 level. 

However, neither of the reports of Drs. Federman or Cohen referenced the April 2018 accident. But, Plaintiff only claimed personal injuries for the November 2017 accident and did not file a lawsuit regarding the April 2018 collision.

Defendant did not retain a medical expert.  However, defendant did obtain an accident reconstruction expert and a biomechanical expert.  The biomechanical expert opined that plaintiff’s “claims of injury or enhancement of any preexisting condition resulting from the November 22, 2017 accident are inconsistent with the minimal severity of this incident.”

At the end of discovery, defendant filed for a summary judgment, claiming that the record was devoid of any credible evidence that he caused the accident.  He argued that his expert reports demonstrated that plaintiff’s injuries could not have occurred based upon the forces resulting from this type of accident.  Further, he argued that plaintiff’s experts failed to apportion the injuries between the present accident and her preexisting condition, or the present accident and subsequent accident.

The trial court judge granted the motion, dismissing the lawsuit.  The court “was persuaded plaintiff was unable to prove the accident was the proximate cause of her injuries.”  The trial court judge relied upon the uncontested opinion of the defendant’s biomechanical expert that plaintiff’s injuries could not have been caused by this accident.  Further, the trial court noted that the plaintiff’s medical experts failed to explain why the injuries could not have been caused by the later accident and it noted that a Polk analysis was required to prove causation at this stage of the litigation.  Hence, the trial court granted summary judgment because “no rational fact finder could find in plaintiff’s favor on the issue of causation.”

The Appellate Division reversed.  It noted that plaintiff bears the burden of proving defendant’s negligence and that the defendant’s negligence was the proximate cause of the plaintiff’s injury.   It further noted that “a plaintiff seeking recovery for an injury caused by successive accidents must apportion damages between each responsible party.”  The burden to allocate damages is placed on the party in the best position to present evidence.  Hence, the Appellate Division found that “in successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must prove comparative medical evidence ‘to isolate the physician’s diagnosis of the injury or injuries’ attributable to that tortfeasor’s negligent contact.”

But, the Court found that “whether a claimed injury is an aggravation of a preexisting injury, although possibly relevant on the issue of causation at the time of trial, is not an element of proof plaintiff must satisfy at the summary judgment stage.”  The Appellate Division noted that where an aggravation of injuries is claimed, plaintiff’s own testimony may satisfy that burden of establishing sufficient evidence to present a jury question.

Applying these principles, the Appellate Division found that the trial court judge erroneously determined a Polk analysis was required to defeat summary judgment.  Plaintiff had alleged that her injuries were attributable to the November 22, 2017 accident, which did not worsen after the April 2018 collision.  The Court found that plaintiff could testify at trial about the injuries that she allegedly suffered in the November 22, 2017, accident and to the extent to which both accidents, if at all, exacerbated her preexisting condition.  She does retain the burden of proving her injuries were attributable to the first accident.  It would be up to a jury to decide the weight to ascribe the omission of the April 2018 accident from her experts’ reports.

Further, the Appellate Division also found that there were genuine issues of material fact which precluded summary judgment on medical causation.  Plaintiff had testified at deposition as to the severity of the impact which caused her head to strike the seat back.  Although the defendant presented a biomechanical expert that the force was minimal and caused little damage to plaintiff’s vehicle, plaintiff’s failure to proffer a biomechanical or accident reconstruction expert “may be considered by the jury when assessing plaintiff’s proofs, including her testimony.”  However, the Court found that the facts were not so one-sided that defendant was entitled to prevail as a matter of law.

Hence, the Appellate Division reversed and remanded the matter back to the trial court for further proceedings.

Plaintiff’s Personal Injury Lawsuit From Auto Accident Barred Due to Her Failure to Provide a Timely Certification of Permanency

Plaintiff Renee Ransdell was involved in an automobile accident with defendant Shari Waldron in January 2018.  At the time of this accident, plaintiff had an automobile insurance policy which subjected her to the limitation on lawsuit threshold, requiring her to prove a permanent injury to recover damages for her noneconomic loss (i.e., her pain and suffering).  The issue in Ransdell v. Waldron, 2024 N.J. Super. Unpub. LEXIS 2677 (App. Div. Oct. 30, 2024) was whether plaintiff’s claim was barred due to her failure to submit a timely certification of permanency and expert report to establish a permanent injury under the pertinent auto insurance statute, N.J.S.A. 39:6A-8(a).

 Plaintiff contended that she suffered a head injury, leading to a hearing loss, as well as spinal injuries from this accident.  Discovery in this case closed in September 2021. Plaintiff failed to provide any expert reports or expert opinions that her injuries were permanent and causally related to the accident during the discovery period.

The matter was arbitrated in March 2022, but plaintiff timely filed for a trial de novo and a trial was set for November 2022.  Before trial, the defendant filed a motion for summary judgment, which was to be heard on September 23, 2022.  Plaintiff requested consent to carry the motion until November 18, 2022, and the trial until February 13, 2023.  The defense counsel did consent, upon the proviso that it was to give plaintiff an opportunity to respond to the motion, and not to provide plaintiff with the opportunity to provide new and additional discovery. 

Nevertheless, plaintiff attached to her opposition to the motion for summary judgment, an “affirmation” by Dr. Rahul Sood, stating that he was one of her treating physicians. She also attached notes from an October 18, 2022, visit with him.  The treatment portion of this report provided an opinion that her symptoms were causally related to this automobile accident with a reasonable degree of medical probability.  He also stated that her prognosis was guarded. Further, plaintiff submitted a certification of permanency provided by Dr. Sood. 

The trial court granted the motion for summary judgment, ruling that plaintiff failed to meet her burden under the statute.  The court noted that plaintiff’s failure to produce a timely certification of permanency was not fatal to her claim.  However, plaintiff did not timely provide any medical expert report or narrative report as required under the court rules.  Further, the trial court noted that plaintiff failed to move the court to reopen discovery and failed to attach a certification of due diligence to the belated certification of permanency.   

This appeal followed.  Plaintiff argued that the certification of permanency from her treating doctor did comply with the New Jersey statute, N.J.S.A. 39:6A-8(a).  Further, plaintiff argued that the case should be remanded so her new attorney could remedy the errors of her prior counsel.

The Appellate Division noted that the trial courts have broad discretion to establish discovery deadlines.  Generally, the Appellate Division will defer to a trial court’s disposition of discovery unless it finds that the trial court has abused its discretion.  The admission or exclusion of expert testimony is “committed to the sound discretion of the trial court.” 

The Court noted that under New Jersey auto insurance law (referred as AICRA), if the plaintiff has selected the limitation on lawsuit threshold option, a claim for a non-economic loss is only permitted where the injured party has suffered a bodily injury which results “in a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. . . .”  It requires that the plaintiff file a certification by a physician attesting “under the penalty of perjury that the injury satisfies one of the threshold categories.” 

Further, this law requires a plaintiff to provide within sixty days of the answer (to the complaint) a certification from a physician, stating that the plaintiff’s injury is permanent and is based on and refers to objective clinical evidence.  The focus on objective evidence is to prevent lawsuits based only upon a plaintiff’s subjective reports from proceeding.  Further, the Court noted that a court can grant no more than one additional period, not to exceed sixty days, to file the certification.  If the plaintiff fails to timely file a certification, plaintiff would be subject to “an array of sanctions that include reimbursing the defendant with reasonable attorney’s expenses or dismissal of the complaint.”  The court is to “choose a response that is proportionate to the procedural stimulus after considering the facts.”

In applying the standard in this case, the Appellate Division was not persuaded that the trial court made a mistake in granting defendant’s motion for summary judgment.  It noted that the plaintiff had failed to provide any expert reports by the end of the discovery period, before the arbitration was held, before defendant filed a motion for summary judgment, before the initial return date of the motion or before the initial trial date that had been scheduled.  Rather, she submitted an untimely expert report from a previously unnamed expert over one year after the end of discovery in opposition to defendant’s motion for summary judgment.

The Appellate Division further noted that under the court rules, specifically
R. 4:23-5(b), a court may exclude the testimony of a treating physician whose report is not furnished pursuant to the court rules when it is demanded. Rule 4:17-7 requires that amendments to Answers to Interrogatories must be served no later than twenty days prior to the end of the discovery period and “may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.”  Without a certification of due diligence, any late amendment must be disregarded by the court and adverse parties.

In considering these rules, the Appellate Division found that plaintiff’s untimely submission of her expert report, as an exhibit to her opposition to defendant’s summary judgment motion without a certificate of due diligence or a motion to open discovery, did not comply with the pertinent court rule (R. 4:17-7).  The Court agreed with the trial court that “the uncontroverted sequence of events indicates dismissal was the appropriate remedy.”  This certification of permanency was only sought by the plaintiff’s former counsel in response to the motion for summary judgment, well after the discovery end date.  Plaintiff failed to file a motion for good cause to extend the time for filing as permitted by the statute.

Hence, the Appellate Division agreed that under the circumstances and considering the substantial prejudice to defendant, “the trial court was well within its discretion to disregard the certification of permanency and consider it outside the scope of the record upon which summary judgment could be granted.”  Therefore, the Appellate Division affirmed the trial court’s decision in granting summary judgment and dismissing the complaint. 

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