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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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Consent Order Bars Re-Litigation of Claims

Plaintiffs Scott Diamond and Edward Street Holdings filed a lawsuit in the Law Division against defendant Warren Diamond (“Warren”) for claims that had been the subject of a Chancery Division matter.  In the chancery matter, the plaintiffs had filed a 12-count counterclaim against Warren which included, among other claims, a malicious abuse of process claim, claiming that Warren willfully and maliciously abused the process with the ulterior motive to unlawfully take, by deception, assets belonging to Scott worth $12 to $15 million dollars. The issue in Diamond v. Diamond, 2024 N.J. Super. Unpub. LEXIS 2381 (App. Div. Oct. 10, 2024) was whether the later filed Law Division case was barred by a consent order the parties had entered into in negotiating a settlement, pending the adjudication of an arbitration hearing.

The consent order entered into between the parties specifically permitted either party within 60-days of the final adjudication of the arbitration to refile a separate action in the Union County Chancery Division for any “affirmative claims, counterclaims, and/or third-party claims that were advanced, and not dismissed by any respective party in that action.”  Further, all affirmative defenses would be tolled and suspended until sixty days after the adjudication of this arbitration.

The arbitration was adjudicated on July 15, 2021.  Neither party filed a new action as defined by the consent order within the 60-day period agreed to in the order.  About eighteen months later, plaintiffs filed this complaint against Warren in the Law Division.  The facts of the complaint were substantially the same as those set forth in the plaintiff’s dismissed chancery action counterclaim.

Following service of the complaint, Warren filed a motion to dismiss, arguing that the complaint was subject to dismissal because the consent order barred the refiling of plaintiffs’ claims after the 60-day tolling period.  Further, Warren argued that the consent order required any new action to be filed in the Chancery Division rather than the Law Division.  In addition, Warren made other arguments to support his motion to dismiss.

Plaintiff argued that the consent order from the chancery action only addressed the tolling of the statute of limitations and the order was not a final order since it only dismissed the parties’ claims and defenses without prejudice.  Plaintiff further argued that because its counterclaims in the chancery action were not dismissed with prejudice, their Law Division complaint was not barred by the consent order and should not be dismissed.

The trial court granted defendant Warren’s motion and entered an order dismissing plaintiffs’ complaint with prejudice.  The trial court found that the consent order was an agreement between the parties approved by the court and that it “operates as a contract between the parties” and that courts must “examine the plain language of the order and the parties’ intent, as evidenced by the contract’s purpose and surrounding circumstances.”  The court found that consent order was clear that there was a 60-day deadline that applied to both the tolling of the statute of limitations and an opportunity to refile any of the affirmative claims, counterclaims and/or third-party claims.  Further, the court found that the matter was adjudicated and a final award was entered in the arbitration.  Hence, the trial court found that the consent order barred the refiling of the claims. 

This order was appealed to the Appellate Division, which agreed with the trial court.  The Court noted that consent orders are “essentially unique contracts” and in construing a consent order, a court should use principles of contract interpretation.  In essence, a consent order is an agreement of the parties that has been approved by the court and operates as a contract between the parties.  Under basic contract principles, the Appellate Division noted that if the contract entered into is clear, then it must be enforced as written.

The Appellate Division reviewed the consent order and found that a refiled action would include “any affirmative claims, counterclaims, and/or third-party claims that were advanced, and not dismissed by any respective party in this action.”  It found that the consent order preserved and permitted a party to assert as part of any refiled action, all rights, remedies, defenses, and claims for relief that he, she, or it asserted, or seeking to obtain, or could have obtained in the action for a period of 60-days after the adjudication of the arbitration.

Based upon the Appellate Division’s review of the record, it concluded that plaintiffs’ were “distinctly” aware of the factual basis for their claims against Warren for malicious abuse of process and malicious use of process before the execution and filing of the consent order in the chancery action.  Almost identical claims were made in the plaintiffs’ counterclaim in the chancery action and the plainly disclosed facts forming the basis of the plaintiffs’ “new” claims asserted in the Law Division were known at the time the chancery action concluded. 

The Appellate Division concluded that the clear language in the consent order barred any claims against the other party in any refiled action which could have been obtained in the chancery action unless those claims were filed within the 60-day tolling period.  The Court noted that plaintiffs’ complaint asserted claims that could have brought in the chancery action. 

It found that the parties were bound by their contractual agreement set forth in the consent order, regardless of whether plaintiffs’ newly pled claims would have been filed in a timely manner under the applicable Statute of Limitations.  Hence, the Appellate Division found that the trial court’s dismissal of the complaint was appropriate and upheld the trial court’s dismissal.

Landlord Found Not To Be Responsible For Fatal Injury of Tenant’s Employee

The decedent Sean King was employed by High Grade Beverage (“HGB”) when he received a fatal electric shock while attempting to replace an emergency light fixture. OSHA determined that he was working with live wires when he was electrocuted, as the circuit breaker feeding the emergency light fixture had not been turned off. The issue in The Estate of Sean King v. High Grade Beverage, Inc., 2024 N.J. Super. Unpub. LEXIS 2321 (App. Div. Oct. 4, 2024) was whether the landlord, HGB Realty 2, LLC could be held liable for the decedent’s accident.

The property was originally leased in 2011 to HGB.  It consisted of a one-story, masonry, cold storage industrial complex comprising of about 72,600 square feet of warehouse, office and garage space.  HGB acknowledged that it had inspected the property and was fully familiar with its condition at that time.  According to the lease, the basic rent payable by the tenant was intended to be a “triple net” and all other charges and expenses imposed upon the leased premises would be paid by the tenant.  In addition, according to the lease, the tenant was responsible to keep the leased premises, including but not limited to the electrical, in good condition and repair.

The original lease was apparently renewed in 2016, at which point the name of the landlord was changed to HGB Realty 2, LLC.  The 2016 lease had the same provision for the tenant to keep the leased premises in good condition and repair.  According to the Chief Financial Officer of HGB Realty 2, there were no circumstances in which the tenant was required to obtain approval from the landlord to perform maintenance on the property.

Perry Morris was HGB’s maintenance chief until July 2017.  He was not a licensed electrician but did take a course in household wiring.  While employed by HGB, Morris would perform maintenance such as changing ballasts and repairing and replacing light fixtures.  Prior to his retirement, he trained decedent for about two weeks.  He testified that when the building was first built, there were three electrical contractors who did not know what they were doing, resulting in circuit breaker panel labels that were not done right the first time.  He and another employee attempted to correct the labels to the best of their ability and for the most part were successful.

Plaintiff submitted an expert report of an engineer, Les Winter, P.E., who opined that the decedent’s electrocution was caused by his lack of training as an electrician and the panel board directory being non-compliant and unreliable.  He opined that it was not legibly marked and that decedent could not through “trial and error testing” turn off and on random circuit breakers to determine whether the fixture was de-energized.

At the conclusion of discovery, the landlord, HGB Realty 2, filed for a summary judgment.  The trial court granted the summary judgment, dismissing the complaint.  The trial court found that HGB’s employees knew about the electrical panel at issue, that the emergency light breaker was labeled and that Morris, who trained the decedent, did show him which switch controlled which circuit breaker.

Further, the court found that HGB Realty 2 leased exclusive control of the property to HGB and the tenant HGB knew of the condition or had reason to know of the condition prior to the decedent’s accident.  It had the opportunity and indeed attempted to remedy the condition prior to the accident at issue.  Thus, the trial court ruled that the landlord, HGB Realty 2, could not be held liable for the alleged defective condition.  This appeal ensued.

The Appellate Division agreed with the trial court’s decision.  It found that the tenant executed a triple net lease in which the commercial tenant was responsible for maintaining the premises and for paying all utilities, taxes and other charges associated with the property.  Additionally, the Appellate Division noted that HGB had exclusive use of the property and that the obligation to maintain and repair the property was delegated under the lease to HGB.  Further, HGB Realty 2 did not maintain an office at the property, did not actively participate, or oversee HGB’s maintenance consistent with the terms of the lease.  Thus, the Appellate Division agreed that, under New Jersey law, the landlord did not have responsibility for the personal injury suffered by its commercial tenant’s employee. 

Court Finds That Cross-Claims Against Third Party Defendant Window Manufacturer Not Dismissed After Third Party Plaintiff Window Supplier Dismissed From Lawsuit

This matter concerns a complex construction lawsuit arising from the allegedly defective design and construction of townhomes located on the Ventnor City boardwalk.  Plaintiff homeowners filed a lawsuit, suing, among other defendants, Universal Supply Co., the supplier of the windows and doors for the various townhome units at issue.  Thereafter, Universal filed an Answer and a Third-Party Complaint against Viwinco, the manufacturer of the pre-assembled windows and doors.  Universal successfully filed a motion for summary judgment and obtained a dismissal of all direct and third-party claims asserted against it.  The issue in the recently released decision in Bendesky v. Waves, LP, 2023 N.J. Super. Unpub. LEXIS 3638 (Law. Div. Dec. 8, 2023) was whether the dismissal of Universal also resulted in the dismissal of all claims against the manufacturer, Viwinco. 

Based upon the facts of this case, Universal ordered from Viwinco preassembled windows and patio doors.  Neither Universal nor Viwinco installed the windows or doors in the townhomes.  The plaintiffs’ expert witnesses opined that the windows and doors were defective and a source of water infiltration which caused the property damage to plaintiffs’ townhomes.  They also opined that the windows and doors were not properly installed. Defendant Sto Corp’s expert also opined that the Viwinco windows and doors and their installations were both found to be sources for water penetration and resulting damage.  Universal supplied an expert report which refuted these opinions, finding no evidence that any Viwinco window or door caused or contributed to the water infiltration experienced by the plaintiff homeowners.

Universal moved for summary judgment dismissal of all claims against it, as the supplier of the Ocean View windows and doors.  The trial court granted that motion and dismissed with prejudice all direct, cross, and counterclaims against Universal.

The basis of the court’s decision was that Universal did not manufacture, assemble, or install any of the windows or doors.  Thus, the court found that no reasonable factfinder could conclude that Universal had or breached a duty to the plaintiff homeowners.  The court also found that Universal did not supply a warranty for the windows or doors.  Rather, Viwinco, the manufacturer, had its own warranty.

After Universal was dismissed from the lawsuit, Viwinco claimed that there were no active claims against it, and it should similarly be dismissed.  It argued that no party had asserted or pursued claims against Viwinco beyond Universal and it was too late in the litigation for any defendant to attempt to do so.  Viwinco appeared to rely on the expert opinions proffered by Universal which conflicted with the expert opinions provided by the plaintiffs’ experts.

In response, defendants Sto Corp and The Waves claimed that their responsive pleadings did effectively preserve their cross-claims for contribution and indemnification against Viwinco, regardless of Universal’s dismissal from the matter.  Further, they contended that the conflicting expert opinions precluded the entry of a summary judgment.

The trial court agreed with the arguments of Sto Corp and The Waves.  The judge found that Sto Corp and The Waves defendants should not be estopped from proceeding with their cross-claims against Viwinco because Universal was no longer a party.  Their theory against Universal and Viwinco were essentially the same, i.e. that the windows and doors were a source of water infiltration in the townhomes.  It was undisputed that Viwinco did manufacture them.

Therefore, the court found that the declination of any party to contest Universal’s apparent lack of duty or warranty as to the windows did not estop that party from pursuing cross-claims for indemnification and contribution from Viwinco as the manufacturer of the windows and doors.  The trial judge pointed out that there were currently pending independent third-party claims against Viwinco and that defendants were entitled to pursue them.

Further, Viwinco’s motion failed because there was conflicting evidence in the expert reports regarding the windows and doors and the water infiltration suffered by the plaintiff homeowners.  It would be up to the finder of fact at trial to assess the credibility and weight of these opinions based upon the expert witnesses’ sworn testimony at trial.  Hence, the trial court judge found that summary judgment as to Viwinco was not appropriate and denied the motion.

State Found Immune From Liability for Auto Accident Based Upon Tort Claims Act Immunities

Plaintiff Ralph Jameson was injured in an automobile accident while he was driving around a traffic circle (Cranbury Circle) in Cranbury Township.  His vehicle collided with a truck driven by defendant Richard Kyle.  The issue in Jameson v. DRD Int’l, Inc., 2024 N.J. Super. Unpub. LEXIS 1481 (App. Div. July 8, 2024) was whether the plaintiff could pursue a claim against the State of New Jersey, which controlled the Cranbury Circle, or whether the State had immunity from this claim under the Tort Claims Act.

This accident occurred when Jameson was driving northbound on U.S. Route 130 in Cranbury Township.  Defendant Kyle was driving a truck on South Main Street, which intersects with the northbound lanes of U.S. Route 130 at the Cranbury Circle.  Although there is a stop sign at the intersection of South Main Street where it enters the Cranbury Circle, Kyle did not stop at the stop sign.  He believed he had enough time to pass through the intersection and circle before any northbound vehicles on U.S. Route 130 came to the intersection.  However, he misjudged and Jameson’s car struck Kyle’s truck which resulted in severe injuries to Jameson.

Plaintiff sued Kyle and his employer, DRD International, Inc.  That claim settled.  However, he also sued the State of New Jersey and Middlesex County. The County was later dismissed out of the case. This appeal concerned plaintiff’s claim against the State.

Plaintiff contended that the State was negligent in its design, maintenance, and/or control of Cranbury Circle and that it created a dangerous condition.  Plaintiff produced two expert reports to support his claim.  His engineering expert opined that the Cranbury Circle was a dangerous condition because it had a crash history “that exceeded crash history standards and that the Cranbury Circle’s crash history should have raised red flags.”  His accident reconstruction expert opined that there was a dangerous condition at the Cranbury Circle “because slow-moving vehicles, such as tractor trailers, entering the Cranbury Circle could pose a danger to vehicles traveling at highway speeds.”

At the trial court level, the State filed for a summary judgment.  It contended that plaintiff had not and could not establish that the Cranbury Circle was a dangerous condition.  It also argued that it was entitled to plan or design immunity and immunity for failure to provide traffic signals.  The trial court granted the State’s summary judgment motion and dismissed the claims against the State.  

That order was appealed to the Appellate Division. The issues upon appeal were whether plaintiff was able to show that the Cranbury Circle was a dangerous condition under the Tort Claims Act and whether the State had established that it was entitled to plan or design immunity under the Act.

The Appellate Division agreed with the trial court decision.  It found that the plaintiff did not establish the existence of a dangerous condition at the Cranbury Circle.   The plaintiff had not identified anything specific in the Cranbury Circle that created a danger.  Plaintiff’s engineering expert suggested that the Circle may be poorly designed because there were a high number of accidents at the Cranbury Circle but his expert failed to point to a specific design defect in the Cranbury Circle.  The expert had suggested several changes that could be made to the Cranbury Circle, including widening lanes or installing traffic signals, rather than stop signs, but emphasized that the high volume of traffic through the Cranbury Circle and the multiple points where accidents could occur were what made the Circle dangerous as a whole.

As for the reconstruction expert, he effectively acknowledged that Kyle failed to stop at the stop sign and “tried to excuse that failure by reasoning that a truck would have difficulty traveling across the Cranbury Circle in a timely manner if it had stopped at the stop sign.”  The Appellate Division found that this opinion did not form a factual basis from which a jury could find that there was a dangerous condition at the Circle if Kyle had stopped as required by the stop sign.  The jury would have been left to speculate that there would have been a sufficient gap in ongoing traffic to allow a truck to safely pass through the intersection.

The Court pointed out that plaintiff’s real argument was that the dangerous condition at the Cranbury Circle arose out of its design.  However, plaintiff failed to show that the design was defective.  Plaintiff also failed to show that the unidentified dangerous condition at the Cranbury Circle caused this accident.

Further, the Appellate Division found that the State did have plan or design immunity under the statute, N.J.S.A. 59:4-6(a).  Under the Tort Claims Act, a public entity would have plan or design immunity from liability for an accident if it is able to show that the injury was caused by the plan or design of its property, where this plan or design has been approved in advance of the construction or improvement by the Legislature, or the governing body of the public entity.  The Court pointed out that when this immunity attaches, the public entity is not subject to liability for an injury that arises from the design of the property.

Here, the Appellate Division found that the State did provide several as-built documents and diagrams of the Cranbury Circle’s design plan.  It noted that these drawings contemplated the “geometry” of the Cranbury Circle, which is apparently what plaintiff contended caused or contributed to the accident.  The documents included signatures of the individuals who submitted, recommended or approved the plans.  Some of the documents predated the construction of the Circle. 

The Appellate Division found that by producing these documents, the State had met its burden of demonstrating that it considered the Cranbury Circle’s shape in formulating its design.  It did not need to produce a plan or design applicable to the stop sign but only needed to offer evidence that it considered the flow of traffic around the Cranbury Circle generally.  Hence, the Appellate Division found that the State was entitled to plan or design immunity.

Because the Appellate Division found that the plaintiff had failed to demonstrate a dangerous condition at the Cranbury Circle and that the State established that it was entitled to plan or design immunity, even if there had been a dangerous condition of the Cranbury Circle, it affirmed the trial court’s decision, dismissing the lawsuit.

Appellate Division Upholds Dismissal of Complaint With Prejudice Due to Plaintiff’s Failure to Provide Complete Discovery

This appeal concerned the trial court’s dismissal of the plaintiff’s complaint with prejudice for failure to provide discovery.  The matter involved a complaint against the plaintiff’s commercial condominium association’s board members and property manager for consumer fraud, common law fraud, unjust enrichment, and negligent misrepresentation.  After filing an answer, the defendants served plaintiff with a notice to produce documents and interrogatories.  The issue in Arsenis v. Frank, 2024 N.J. Super. Unpub. LEXIS 2164 (App. Div. Sept. 17, 2024) was whether the trial court judge abused her discretion by dismissing plaintiff’s lawsuit due to her failure to provide discovery.

In response to defendants’ request for discovery, plaintiff did provide certain information in response to the discovery demands, which defendants deemed inadequate.  Defendants’ counsel sent plaintiff two deficiency letters, detailing their objections to various interrogatories and document requests.  The defendants demanded fully responsive answers to these discovery requests within two weeks to avoid motion practice.

Plaintiff, however, failed to respond to the deficiency letters and, thereafter, defendants filed a motion to compel more specific responses to their demands.  The trial court judge granted that motion, issuing an order to require plaintiff to provide more specific responses within seven days.  In that order, the court elaborated as to how plaintiff should address each of the requested interrogatories.

Plaintiff failed to comply with this order.  Thus, defendants filed another motion to dismiss her complaint, without prejudice, which motion was granted.  Sometime thereafter, plaintiff filed a motion to reinstate her complaint, claiming that she had complied with the prior orders.  The judge denied plaintiff’s motion, finding that plaintiff failed to comply with both prior orders “and otherwise provide good cause to vacate dismissal of the case and restoration to the active trial calendar.” 

Thereafter, defendants now filed a motion to dismiss plaintiff’s complaint with prejudice, which motion the trial court judge again granted. The judge noted that “not withstanding the prior court’s explicit direction to plaintiff,” she failed to comply with the court’s prior orders.  Thus, the trial court judge dismissed plaintiff’s complaint with prejudice.

Upon appeal, the Appellate Division considered whether the trial court had abused its discretion in entering its orders to dismiss the complaint.  The Court noted that dismissal of a complaint under court Rule 4:23-5 follows a two-step process.  First, the non-delinquent party may move for dismissal without prejudice for noncompliance with discovery obligations.  If the delinquent party does provide full and responsive discovery, it may then move to vacate the dismissal without prejudice at any time before the entry of an order of dismissal with prejudice. 

But, if the delinquent party fails to cure its discovery delinquency, “the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal . . . with prejudice.”  According to Rule 4:23-5(a)(2), the court is to grant the motion to dismiss with prejudice unless a motion to vacate the previously entered order of dismissal without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

The Appellate Division further noted that this rule advances two objectives, which are to compel discovery which would promote resolution of disputes on the merits and “to afford the aggrieved party the right to seek final resolution through dismissal.”  It noted that the dismissal of a claim for failure to comply with discovery is the “last and least favorable option.”

In this matter, however, plaintiff failed to move to vacate the without prejudice dismissal order, she had not demonstrated that she provided fully responsive discovery or presented any circumstances that qualified as exceptional circumstances to avoid the dismissal of her action with prejudice.   

The Court further noted that it was not persuaded by the plaintiff’s argument that the motion judge failed “to carefully scrutinize her discovery responses before dismissing her complaint with prejudice.”  Accordingly, the Appellate Division upheld the ultimate sanction that was imposed upon plaintiff, to dismiss her complaint with prejudice. 

Plaintiff Permitted to Pursue Personal Injury Claim Against Apartment Owner and Tenant Due to Injury Caused by Deficient Stair Railing

Plaintiff Nicolette Pippis was injured when she slipped and fell while leaving a building owned by defendant PDC, after visiting defendant MKG, a tenant in the building.  She claimed that, as she walked down the stairs, she was holding onto the handrail.  The handrail ended short of a few steps which she claimed caused her to slip and fall.  The issue in Pippis v. PDC 16-20 Hudson Place Realty, LLC, 2024 N.J. Super. Unpub. LEXIS 2108 (App. Div. Sept. 6, 2024) was whether plaintiff had produced sufficient evidence on the issue of proximate causation to have her case presented to a jury.

Plaintiff, who was 9 months pregnant at the time, had been at the building for a prenatal massage at MKG, which was located on the second floor in the building.  As she walked down the steps to leave the building, she fell near the bottom of the steps, breaking her ankle.   She claimed that, as she walked down the stairs, she was holding onto the handrail.  When she got towards the bottom steps, the railing ended and there was no lighting, causing her to miss the step and fall.  She testified in her deposition that she attempted to grab for the handrail, but the railing cut short a few steps.  She denied that she tripped.

Plaintiff presented an opinion from an architectural expert that the handrail for the stairs did not extend over the entire bottom tread and stopped short of the edge of the final step by 2½ inches.  He explained that current building codes would require the handrail for these steps to extend at least 10¼ inches past the bottom step.  He opined that Plaintiff lost her balance and fell at the bottom of the stairway because the handrail was short and she could not grasp it.  He further concluded that the lack of handrail coverage over the entire bottom tread was a dangerous condition that contributed to her accident. 

Following the conclusion of discovery, the defendants filed for a summary judgment.  The trial court entered an order granting the defendants’ motion and dismissed the complaint.  The judge determined that plaintiff was unable to prove proximate causation because there was conflicting information about the cause of her fall. 

Different versions of how the accident happened were in plaintiff’s medical records. The hospital records indicated that plaintiff fell from the fourth step and hurt her ankle, the emergency personnel reported that plaintiff explained that while she was walking down the steps, she tripped and slid down the last four steps.  Last, the triage nurse from the Medical Center commented that she slipped down four stairs.

In the plaintiff’s complaint, she alleged that defendants’ failure to provide adequate lighting and adequate railings caused her to slip and fall down the last 3-4 steps and suffer personal injuries. 

The trial judge found that there was a contradiction between plaintiff’s testimony, the complaint, and her expert as to what caused the accident.  Accordingly, he found that plaintiff was unable to prove proximate causation and dismissed her complaint.

The plaintiff appealed this order for summary judgment, arguing that plaintiff had produced sufficient evidence to present the issue of proximate causation to a jury.  There was also an issue appealed concerning spoliation of evidence because the surveillance video of the accident was not preserved.  However, that issue did not factor into the Appellate Division’s issue on appeal as to whether the summary judgment should have been granted.

The Appellate Division noted that the question of proximate cause “asks whether the actual harm suffered was a reasonable consequence of the defendant’s actual act or omission.”  It would suffice if it is a substantial contributing factor to the harm suffered.  The Appellate Division further noted that proximate cause is “generally a question for the jury.” 

The Court disagreed with the trial court judge’s finding that proximate cause was lacking.  The Appellate Division found that “a reasonable jury could find that additional railing at the end of plaintiff’s fall path could have helped plaintiff prevent or mitigate her injuries.”   Further, the Appellate Division found that “[b]ecause the absence of any railing at the end of the staircase may have contributed to plaintiff’s injuries, the issue of proximate causation should have been left to a jury.”  Hence the Court reversed the trial court judge’s ruling and remanded the matter back for further proceedings. 

Plaintiff’s Negligence Claim Against Casino Security Guard Dismissed Due to Failure to Retain Expert

Plaintiff John Coxe sued Harrah’s, claiming that he suffered injuries as a result of being improperly detained by Harrah’s security team.  He and his girlfriend, Valerie Kloepping, were in the pool area at Harrah’s when his credentials could not be located.  Although they were later located, Plaintiff became belligerent. Eventually, security had to physically restrain and remove him from the pool area.  The issue in Coxe v. Caesars Ent. Corp., 2024 N.J. Super. Unpub. LEXIS 2061 (App. Div. Aug. 29, 2024) was whether the trial court properly dismissed the plaintiff’s negligence claim against Harrah’s due to his failure to retain an expert to establish the standard of care for Harrah’s security guards. 

Plaintiff was a regular patron of Harrah’s for many years.  On the day of their visit, Coxe and his girlfriend went to the resort pool at around 3:00 p.m.  He gave his credentials, which included his driver’s license, room key and Harrah’s reward card, to the bartender to start a tab.  After being at the bar for six hours and consuming many beers, he attempted to close his tab.  The bartender advised plaintiff that his credentials could not be located.  Plaintiff became irate, in part because about one month earlier an unknown person had accessed his hotel room and stole his money.  He was concerned that he had been robbed again, and demanded to speak with a resort supervisor or police.

A Harrah’s security guard responded to the pool area and found plaintiff yelling at the pool manager for 5-10 minutes.  Plaintiff was described as “belligerent, clearly intoxicated and aggressive.”  Security attempted to de-escalate the situation which failed.  Eventually, Coxe’s credentials were located, and they were returned.  However, Coxe did not calm down and Harrah’s security repeatedly asked him to leave the pool now that his credentials had been returned.   Coxe refused and instead continued to argue with the bar staff. 

Harrah’s security guards had to physically restrain him to remove him from the pool area.  They placed him face down on the ground and handcuffed him.  They dragged him to the exit, which friction caused his swimsuit to slip down.  His swimsuit was adjusted, and he was escorted to Harrah’s holding cells.  He was detained there until Atlantic City police responded, at which time he was released and taken to the hospital. 

Coxe then filed suit against Harrah’s under theories of negligence, assault, false arrest and malicious prosecution.   The defendant filed for a summary judgment, which was granted as to the malicious prosecution claim.  The remaining claims proceeded to trial.  At the close of the evidence, but before the jury began to deliberate, Harrah’s moved for a directed verdict as to plaintiff’s negligence claim.  The trial court granted the motion, dismissing the negligence claim.  On the remaining claims of assault and false imprisonment, the jury returned a verdict for defendant and found no cause of action. 

This appeal ensued.  Plaintiff claimed that the trial court should not have granted defendant’s directed verdict motion as to the negligence claim.  Coxe claimed that one of the security guards testified about putting him in an escort hold and Coxe argued that this testimony was inconsistent with de-escalation or reasonable behavior by security. 

However, the Appellate Division found that the trial court did properly grant defendant’s motion.  The Court noted that plaintiff failed to introduce evidence which established a standard of care for Harrah’s security guards.  Further, the Appellate Division noted that there was “no evidence presented at trial from which a jury could infer how a reasonable security guard would act under the circumstances.”

The Court found that there would be no basis for a jury to find that the act of approaching a disorderly patron to remove that person from the premise was negligent conduct.  Further, the Appellate Division pointed out that the plaintiff’s argument that this security guard was unnecessarily aggressive was undermined by his further testimony that his attempted de-escalation had been futile and that plaintiff was intoxicated, belligerent and aggressive and had repeatedly refused requests to leave.

Finally, the Appellate Division rejected the plaintiff’s argument that an expert was not necessary to establish the standard of care because the circumstances in this case are within the ken of the average juror.  The Court rejected that argument and noted that the trial court had previously advised the plaintiff that he may wish to retain an expert to establish the standard of care.  Further, the trial court had advised plaintiff that he was not precluded from questioning the defendant about their policies and their conformance therewith, but the trial court judge did advise the plaintiff that he thought he would need an expert to establish the existence of a duty. 

Thus, the trial court did give plaintiff an opportunity to prove negligence without an expert. However, the plaintiff was unable to establish a duty based upon the testimony at trial.  Therefore, the Appellate Division found that the trial court’s grant of a directed verdict was proper and affirmed the trial court decision, dismissing the negligence claim. 

Prosecutor’s Office Found Not Liable for Civil Claim in Prosecuting Former Police Officer for Criminal Acts

Plaintiff Thomas Aletta, a former police officer for the Hackensack Police Department sued the Bergen County Prosecutor’s Office, State of New Jersey, Prosecutor John Molinelli, Assistant Prosecutor Daniel Keitel, and Prosecutor Investigator Lieutenant Jay Haviland after he was acquitted of official misconduct, conspiracy and evidence tampering.  He alleged a politically motivated conspiracy to prosecute him contrary to state and federal law.  The issue in Aletta v. Bergen County Prosecutor’s Office, 2024 N.J. Super. Unpub. LEXIS 976 (App. Div. May 29, 2024), was whether the plaintiff had stated a constitutional claim and/or a claim under the New Jersey Tort Claims Act against the defendants.

This case was dismissed at the summary judgment level as to all defendants based upon immunity under the Tort Claims Act, as well as prosecutorial immunity under §1983 and the New Jersey Civil Rights Act (“NJCRA”).  Further, the defendants had argued that the Prosecutor defendants enjoyed qualified immunity due to the existence of probable cause for the charges against plaintiff. 

The Appellate Division found that as to the entity defendants, the claims were properly dismissed.  However, as to the individual defendants, the Appellate Division agreed that the defendants were entitled to immunity for their roles in plaintiff’s prosecution except for the allegations against the individual defendants that they pressured witnesses to lie or change their statements, destroyed exculpatory evidence, and presented false testimony to the court and/or grand jury.

Plaintiff’s prosecution arose from an assault against a juvenile in which the Prosecutor’s office claimed that the plaintiff improperly sought to secure another juvenile’s involvement in the case.  Plaintiff alleged that his prosecution arose from a political conspiracy due to his support of the Hackensack Police Chief.  Plaintiff, however, was acquitted from the criminal proceedings brought against him and, thereafter, filed this civil suit against the defendants. 

As for the entity defendants, the Appellate Division agreed that they were absolutely immune from plaintiff’s § 1983 and NJCRA. claims.  The court noted that prosecutors have absolute immunity from claims arising out of their governmental function.  That immunity is based on “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from their public duties, and the possibility that they would shade their decisions instead of exercising the independence of judgment required by their public trust.” 

Activities which are an integral part of the judicial process are protected.  The court noted that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings and for trial, which occur in the course of their role as an advocate for the State, are entitled to the protections of absolute immunity.  In fact, courts have granted immunity from claims alleging a prosecutor failed to disclose exculpatory evidence and use false testimony in connection with the prosecution “so long as they did so while functioning in their prosecutorial capacity.” 

However, prosecutors do not have immunity outside their role as an advocate.  A prosecutor is not entitled to absolute immunity “when performing administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.”  Further, the Court noted that a prosecutor “is not entitled to absolute immunity if they acted out of personal motive, with malicious intent, or in excess of their jurisdiction.”   However, a government official may be entitled to qualified immunity “for discretionary acts that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 

As to the entity defendants, the Appellate Division agreed with the trial court that plaintiff’s NJCRA and §1983 claims against the State failed because it is not amenable to suit under either statute.   The Court noted that the State is not subject to suit because it did not waive its sovereign immunity for either a 1983 or a NJCRA claim.

The Appellate Division also agreed that the prosecutor’s office was properly dismissed.  A public entity may be held liable under the NJCRA or § 1983 if it causes harm through the “implementation of an official municipal policy which caused a constitutional violation.”  The public entity cannot be held liable under the doctrine of respondeat superior.  Liability can only be imposed “when the policy or custom itself violates the Constitution or when the policy or custom, while not unconstitutional itself, is the moving force behind a constitutional tort of one of its employees.”  Where the policy or custom at issue is a failure to train or supervise, “the plaintiff must show that this failure amounts to deliberate indifference to the rights of persons with whom the municipality’s employees will come into contact.”

Here, plaintiff alleged generally that the prosecutor’s office had a custom of “condoning the actions of their agents, servants and/or employees by virtue of their training, supervision, policies, procedures, and/or directives.”  However, the Appellate Division noted that this “conclusory, undetailed statement” did not identify any specific and constitutional component or how this custom was the “moving force” behind any allegedly tortious conduct.  The plaintiff had alleged that all named prosecutor defendants “failed to follow proper and lawful guidelines, policies, procedures, and methods for conducting criminal investigations and prosecutions.”  However, the Court found that plaintiff had failed to identify any specific training he claimed would be necessary nor any pattern of similar constitutional violations to put the prosecutor’s office on notice that a new training program was necessary.  Hence, the Appellate Division agreed that the dismissal against the prosecutor’s office was proper. 

However, the Appellate Division disagreed with the dismissal of the common law claims against the individual defendants. These claims were governed by the Tort Claims Act.  The Appellate Division grouped the plaintiff’s allegations based upon the purported underlying conduct as the following:

(1) Improper charging and prosecution of plaintiff based on personal and/or political motives, (2) coercion of witnesses to lie or change their statements, (3) use of those false statement, (4) purposeful destruction of exculpatory evidence.

As for the allegations concerning charging and prosecuting plaintiff, the Court found that the individual defendants had immunity under N.J.S.A. 59:3-8 in which there was immunity for “instituting or prosecuting any judicial . . . proceeding within the scope of defendant’s employment.”  As for pressuring witnesses to lie, the Court concluded that the record was insufficient for a determination whether defendants were entitled to Tort Claims Act immunity.  The Appellate Division ruled that the plaintiff must specify each instance forming the basis for these claims and defendants may then renew their motion as appropriate.

As for the knowing use of false testimony before the grand jury and/or trial, the Court found that this claim, as pled, constituted willful misconduct. Thus, the two prosecutors were not entitled to immunity for this alleged willful misconduct.  As for the allegation of destruction of exculpatory evidence, the Court found that the plaintiff did not provide any specific details as to how the prosecutors were involved.  However, as to the investigator, the court found that the plaintiff had presented sufficient facts suggesting that he was not entitled to immunity for purportedly ordering and/or participating in the destruction of evidence.  Thus, the Appelate Division found that the investigator Haviland was not entitled to prosecutorial immunity under the Tort Claims Act for allegedly destroying evidence.

As for the common law claims asserted against the entity defendants, the court noted that while a public entity may be held responsible for acts or omissions of its employees under a theory of respondeat superior under the Tort Claims Act, it is “not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.”  Further, under N.J.S.A. 59:2-10,  it is not liable “where the employee’s acts or omissions constitute a crime, actual fraud, actual misconduct.” 

Thus, the Appellate Division ruled that to the extent it has determined that any of the individuals are entitled to immunity, neither the prosecutor’s office nor the State can be held liable on a respondeat theory related to those claims.  Further, the Appellate Division ruled that to the extent any individual defendant engaged in willful misconduct or acted outside the scope of their employment such that they were not entitled to immunity, the entity defendants cannot be held liable for those actions.

The defendants also argued that the plaintiff’s complaint should be dismissed for failure to meet the verbal threshold under N.J.S.A. 59:9-2(d).  Under this provision, no damages may be awarded against a public entity for pain and suffering, except for cases of “permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.”  Emotional distress is considered to be pain and suffering.  However, where a public employee’s actions constitute willful misconduct, the plaintiff did not need to satisfy the verbal threshold.

The Appellate Division agreed that the record did not reflect medical treatments in excess of $3,600.  However, based upon the allegation of the investigator’s purported destruction of evidence and the prosecutor’s alleged use of false testimony constituting willful misconduct, they found that the verbal threshold provision would be inapplicable.

In summary, the court agreed that all claims against the prosecutor’s office and the State were properly dismissed.  Further, all claims based upon defendants’ allegedly improper motivation to prosecute the plaintiff, the constitutional claims based upon the defendants’ alleged known use of false testimony before the grand jury or at plaintiff’s trial, and all claims against the two prosecutors based upon their alleged destruction of evidence were all properly dismissed. 

However, the Court reversed and vacated the dismissal against the investigator Haviland based upon his alleged destruction of evidence, all claims against the individual defendants based upon their alleged coercion of witnesses and the common law claims against the two prosecutors based upon their alleged presentation of false testimony to the grand jury and/or at trial.  But, upon remand, the plaintiff was ordered “to provide specific details about the purported coercion, including the specific defendant(s) alleged to be involved, when the conduct occurred, and whether the witness later testified before the grand jury or at plaintiff’s trial.”

Plaintiff’s Bodily Injury Claim Dismissed Due to Failure to Show How a Subsequent Accident Aggravated Pre-existing Injuries From Prior Accident

Plaintiff Tony Polite was involved in two automobile accidents within thirty days.  The first accident occurred on May 15, 2019, and the second one occurred on June 16, 2019.  Plaintiff claimed to have injured his neck, back, left shoulder, and right knee in the first accident and alleged that those injuries became significantly worse following his second accident.  The issue in Polite v. Kahn, 2024 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 18, 2024) was whether plaintiff had provided sufficient proofs to show that the second accident aggravated his pre-existing injuries from his first accident.

In plaintiff’s May accident, he was t-boned from the driver’s side, causing his vehicle to hit a telephone pole.  He suffered injuries to his cervical spine, lumbar spine, left shoulder, and right knee.  He filed a lawsuit against the driver Estell Norman.  One month later on June 16, 2019, he was in a second car accident in which he was injured by defendant Airshad Kahn’s vehicle.  It caused his chin to strike the steering wheel and his right knee to strike under the steering wheel.  He filed the within lawsuit against defendant Kahn.  These two lawsuits were consolidated and discovery ensued.  He claimed that his symptoms from the first accident became significantly worse following his second accident.

Plaintiff treated with a chiropractor (Dr. Funiciello) who prepared a narrative report.  The chiropractor attributed a direct causal link between plaintiff’s injuries and the May accident.  He also opined that his exacerbations were due solely to the severe injuries to his neck and back following the accident in May 2019.  Thereafter, he settled the Norman matter (the first accident).

Plaintiff then obtained chiropractic treatment with Dr. Wael Elkholy for the injuries suffered in the June accident.  His complaints were of his neck, left shoulder, lower back and right knee.

Following the close of discovery, defendant Kahn filed a motion for summary judgment, arguing that plaintiff had not established his injuries were caused by the June accident or that the June accident exacerbated his injuries from the May accident.   Plaintiff relied on the treatment records from Dr. Elkholy and opposed the motion. 

Before the motion was heard, plaintiff returned to Dr. Elkholy to treat his persistent low back pain.  He obtained a second MRI which now showed a new disc herniation at L4-5 and L5-S1 and a new thecal sac decompression at L4-5 was recommended and was subsequently performed in July 2022.  Plaintiff provided a supplemental certification with these additional medical records.  However, the treatment records from Dr. Elkholy did not causally relate plaintiff’s injuries to the June accident, nor did they state that there was exacerbation of his injuries from the May accident.

The trial court judge granted the defendant’s motion for summary judgment.  The judge found that there was a “complete absence of any report showing either causation or exacerbation from the second accident.”  The injuries from the first accident were severe and the judge found they were still severe when the second accident occurred.  He held that the “lack of any reference to a causal connection between the second accident to the plaintiff’s injuries is fatal to the plaintiff’s case.” 

This decision was appealed.  Plaintiff argued that there should be a reversal because of the inference of fact weighed in his favor, which would permit a jury to find his injuries were caused by the June accident.

The Appellate Division rejected that argument.  It found that there can be no inference drawn from the plaintiff’s treatment records and diagnostic tests related to the June accident.  The progress notes did not state that the June accident was the cause of plaintiff’s injuries.  Further, plaintiff submitted no expert report or proof that the injuries he suffered were caused by the June accident.

Even though there was a lack of proof, plaintiff argued that the June accident aggravated his pre-existing injuries from the May accident.  He pointed to the June 2022 MRI which showed two new disc herniations when compared to the May 2019 MRI.  However, neither Dr. Elkholy’s treatment records, nor Dr. Funiciello’s narrative report attributed any portion of plaintiff’s injuries to the June accident.

 Hence, the Appellate Division found that plaintiff failed to show an aggravation of pre-existing injuries.  The Court further noted that plaintiff failed to produce any comparative evidence regarding his injuries from the May and June accidents.

 In conclusion, the Appellate Division found that the plaintiff could not show the causation element of his negligence claim concerning the June accident.  Because plaintiff failed to establish proximate causation, defendant was entitled to summary judgment.  Thus, the Appellate Division affirmed the trial court decision dismissing the lawsuit.

Expert Needed for Condominium Owner to Recover for Water Damage

Plaintiff, Harrison JC, LLC, a limited liability company, owned Unit 302 in Harrison Bridge Plaza, a 4-story condominium with commercial units on the first floor and residential units on the remaining floors.  Plaintiff Harrison bought the unit in February 2010 and had leased it to various tenants.  The unit experienced water seepage and leakage from the ceiling of its unit on 11 occasions from April 2014 through March 2021.  Plaintiff sued the unit owners above its unit, as well as the condominium association, HB Association, and Patrician Associates Management, the manager of the condominium association for the damage resulting from the leaks.  The issue in Harrison JC, LLC v. Harrison Bridge Plaza Condominium Association, 2024 N.J. Super. Unpub. LEXIS 1895 (App. Div. Aug. 7, 2024) was whether the plaintiff could pursue its claim for property damage from the water seepage and leakage without the retention of an expert.

The units above the plaintiff’s unit were owned by Claudia Santos and Joel Costas, Unit 401, and Ying Zi Zhu, Unit 403.  Per the Master Deed, unit owners’ responsibilities were limited to the interior of the walls, ceilings, and floor surfaces of their units.  The common elements, including roofs, parking lot and lobby, were owned and controlled by HB Association and were managed and maintained by defendant Patrician under a contract.

Plaintiff Harrison filed a lawsuit, claiming that it suffered property damage, loss of rental income, and out of pocket expenses when its unit experienced water seepage and leakage from the ceiling of its unit.  It is undisputed that the leaks happened and that all but the final leak was repaired.  Plaintiff claimed that the leaks originated in either Unit 401, Unit 403, or the common elements of the building.  It sued HB Association based upon negligence and its duty to maintain and repair the common elements of the building.  It sued Patrician based upon a breach of a contractual obligation to maintain and repair the common elements of the building and, last, it sued the unit owners for negligence for creating or failing to repair the leaks in their units that damaged plaintiff’s unit. 

However, plaintiff failed to retain an expert to offer any opinion with respect to the cause or origin of any of the leaks. At the close of discovery, all defendants filed for a summary judgment.  They argued that plaintiff was unable to establish liability without an expert opinion.  Plaintiff, in opposing the motion, argued that an expert opinion was not necessary under the doctrine of res ipsa loquitur.

The trial court granted summary judgment to each of the defendants.  It found that plaintiff was unable to establish liability without an expert report and found the doctrine of res ipsa loquitur did not apply to plaintiff’s claims and that “the jury could not be left to speculate as to the cause and origin of the leaks and whether defendants’ negligence was the cause of damage to plaintiff’s unit.”

This decision was appealed.  Plaintiff argued that the court should have taken judicial notice that water flows downward, and water does not normally come through the ceiling of a residential unit unless there is some defect or negligence in the area above the unit causing the leak and that the doctrine of res ipsa loquitur should have relieved plaintiff of its obligation to produce an expert report to prove negligence as to HB Association and Patrician.

The Appellate Division noted that the doctrine of res ipsa loquitur, if properly evoked, would enable a plaintiff to make out a prima facia case of negligence by allowing for the inference of negligence from undisputed facts.  However, the doctrine would only be applicable where “(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant’s exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.”  Finally, the doctrine would not be applicable where the injured party fails to exclude other possible causes of the injury.

The Appellate Division agreed with the trial court decision that the doctrine of res ipsa loquitur was inapplicable to the facts of this case.  The Court found that “it is not within the common knowledge of the average juror that the acts of HB Association and Patrician, as the entities with control of the common elements of the building, were more likely than not the cause of the leakage in plaintiff’s unit.”  The Appellate Division found that without expert testimony to opine as to the origin and cause of the leaks, “jurors would be left to speculate as to whether HB Association and Patrician’s conduct negligently caused damage to plaintiff’s property.”  Finally, the Appellate Division noted that the design and maintenance of this condominium and the origin and cause of leaks in the building would not be matters within the ken of the average juror.

Further, the Court found that the plaintiff failed to produce evidence of the location of the leaks in its unit.  The leaks could have derived from the common areas, the units above Plaintiff’s unit, or from plaintiff’s unit as a result of acts by plaintiff’s tenants.  The Court found that expert testimony was necessary to prove that the leaks originated in an area within the exclusive control of HB Association or Patrician.  Without such expert testimony, a jury could not exclude plaintiff or its tenants as the negligent actors in causing the leaks without engaging in speculation.

Thus, the Appellate Division agreed that the doctrine of res ipsa loquitur was inapplicable to the plaintiff’s claim.  Because the plaintiff did not produce an expert report to offer an opinion as to the cause or origin of the leaks, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

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