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Tiffany Torres vs. Walmart

Client: Walmart

Court: Workers’ Compensation

Trial Attorney:  Nicholas A. Dibble, Esq.

Brief Attorney:  Nicholas A. Dibble, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

In a truly peculiar fact pattern the petitioner alleged that she was bit by a dog at a BBQ while working as a cashier at Walmart.  The respondent denied the claim and filed a Motion to Dismiss arguing that the incident did not occur within the course and scope of employment.  A trial ensued on the Motion to Dismiss.

The petitioner was the first person to take the stand and testified that she worked at Walmart on the date of the incident, however, prior to the incident she had clocked out to lunch.  While clocked out for lunch she left the store, was picked up by her husband and taken to a BBQ at his friend’s house where she was bit by the dog.  Notably, the owner of the dog worked as a manager at a different Walmart location. There were more than a dozen people at the  BBQ but the only people there who worked for Walmart were the petitioner and the dog owner.   Although the BBQ was scheduled for the Saturday of the Fourth of July weekend, the petitioner testified that she was at the BBQ for a job interview with the dog’s owner for a position at a different Walmart location.  Her husband testified next and confirmed this.

The third witness offered by the petitioner was the dog’s owner who disagreed with the petitioner’s testimony.  The owner testified that they may have discussed potential openings at the dog owner’s store but at no time was the BBQ a job interview.  Following the testimony of the dog owner the petitioner rested.  Before proceeding any further with trial the respondent moved for the case to be dismissed immediately given the lack of evidence demonstrating that the dog bite occurred within the course and scope of employment. The Judge of Compensation agreed and dismissed the entire claim with prejudice as the dog bite did not occur within the course and scope of employment.

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Fields v. Wawa

Client: Wawa, Inc. and Wild Goose Holding Co., Inc.

Court: Superior Court, Camden County

Brief Attorney:  Betsy G. Ramos, Esq. and Voris M. Tejada, Jr., Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff initiated suit after sustaining serious injuries in a fall which occurred at a Wawa store at 1:40 a.m. While plaintiff did not remember slipping or falling, he alleged that when he regained consciousness, he observed a large puddle of water in the area where his head landed. Video surveillance footage showed that when plaintiff fell, he fell on top of a yellow “wet floor” cone which had been placed by Wawa’s employees.

Capehart & Scatchard, P.A., on behalf of Wawa, filed a Motion for Summary Judgment. While there was a dispute as to whether there was any water on the floor which caused plaintiff’s fall, the Court found that, even assuming the existence of water, Wawa satisfied its duty to warn by placing the above-referenced warning cone. Plaintiff argued that there was a question of fact as to whether the cone was placed in a location which gave reasonable notice of the condition. However, Capehart argued, and the Court found, that given the fact that plaintiff fell on top of the warning cone, it was clearly placed in close enough proximity to the alleged water to provide warning of same. The Court thus granted Wawa’s Motion, dismissing plaintiff’s complaint with prejudice.

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Victor Rodriguez — Romero v. Priority Compactor

Client: Amtrust

Court: Division of Workers’ Compensation

Trial Attorney:  Claire Y. Ringel, Esq.

Brief Attorney:  Claire Y. Ringel, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The worker was severely injured in a motor vehicle accident while bringing his work vehicle from his home to his place of employment before vacation. The case was denied as compensable based on the “going and coming” rule, that injuries prior to arriving at a workplace are generally non compensable.

Judge Del Valle-Koch conducted a bifurcated trial on the issue of compensability and, after the petitioner’s testimony and briefs, ruled in the respondent’s favor that the accident was non compensable.

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Patricia Costanzo vs. Meridian Rehab

Client: Meridian Rehab/ Zurich American Insurance Company

Court: Appellate Division

Trial Attorney:  Carla P. Aldarelli, Esq.

Brief Attorney:  Maura Burk, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

After a full five-day trial and testimony on petitioner’s Motion for Medical and/or Temporary Disability Benefits seeking left knee treatment, the Workers’ Compensation Judge denied petitioner’s Motion for Medical and/or Temporary Disability Benefits, finding for Respondent and finding that Respondent’s medical expert was more credible than petitioner’s medical expert. The Court concluded that petitioner failed to establish that any need for treatment to her left knee was work related.

Petitioner then appealed the Workers Compensation Court’s finding.

The Appellate Division affirmed the denial of the Motion for Medical and/or Temporary Disability Benefits, finding that the Workers’ Compensation Judge properly concluded that petitioner was not entitled to additional treatment to her left knee because her current condition was not caused by a work-related incident. The Appellate decision noted that there was ample evidence presented at the workers’ compensation level to support the Judge’s conclusion that petitioner’s current left knee condition was not related to her work injury.

To view the case, please click here.

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Melissa Surinski, individually and as parent and natural guardian of Ava Surinski, minor v. Toms River Fitness for Women, Inc., d/b/a Toms River Fitness & Aquatic Center

Client: Toms River Fitness for Women, Inc., d/b/a Toms River Fitness & Aquatic Center

Court: Superior Court of New Jersey, Ocean County

Brief Attorney: Edward F. Kuhn, III, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff, Ava Surinski (minor) opened a door to the locker room at the client’s gym after getting out of the pool. The door went over her foot causing a cut requiring stiches. Plaintiff alleged the door was in a defective condition as the removal of slip-proof mats around the pool allowed a large gap between the door and floor to exists that was large enough to go over Plaintiff’s foot causing the injury.

We obtained an engineering expert who found nothing defective with the design, installation or operation of the door. Plaintiff did not have an expert. We filed a motion for summary judgment arguing that Plaintiff has no evidence of negligence as they cannot prove that there was anything defective with the door. The judge granted our motion and barred Plaintiff from making any argument during trial that the door in question was defective. However, the judge denied a complete dismissal of Plaintiff’s Complaint on other grounds.

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John Bozzelli vs. ExxonMobil

Client: ExxonMobil

Court: Workers’ Compensation Court

Trial Attorney:  Michelle L. Duffield, Esq.

Brief Attorney:  Michelle L. Duffield, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

Petitioner owned a roofing company, Brocco Roofing, that regularly performed work for ExxonMobil. On April 7, 2014, petitioner allegedly sustained an injury to his right knee and neck. He filed a workers’ compensation claim against ExxonMobil alleging that he was an employee of ExxonMobil, or in the alternative, was a subcontractor for ExxonMobil acting as a general contractor. From the outset, we denied the claim and took a firm no pay position. Petitioner submitted a settlement demand of 26 ½% permanent partial disability apportioned 22 ½% for the petitioner’s right leg and 15% for the cervical spine plus six months of temporary benefits for a total of $63,516.00 plus approximately $9,500.00 in attorney’s fees associated with the permanency and temporary benefits. After a full Trial, petitioner’s claim was dismissed with prejudice for failure to establish either an employer/employee relationship or a general contractor/subcontractor relationship.

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Esperanza Perez v. Table Run Estates, Inc. et al, 2021 WL 329300, 2021 N.Y.Slip Op. 00533

Client: Table Run Estates, Inc. and Condetta Brown Desgoutte

Court: New York Appellate Division, First Department

Trial Attorney:  Stephen J. Alexander, Esq.

Brief Attorney:  Alyson L. Knipe, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

The New York Appellate Division First Department affirmed a lower court’s decision to vacate a $2.2 million dollar default judgment that was entered against Defendants Table Run Estates and Condetta Desgouttee when their answer was stricken based on their prior attorney’s failure to appear for court conferences and depositions.

The First Department held that an attorney who was suspended from and subsequently disbarred for neglecting legal matters and who failed to communicate with clients served as a reasonable excuse under CPLR 5015(a)(1) to vacate the default.  The court also found that plaintiff offered no evidence that she incurred any prejudice.  Therefore, the Appellate Division concluded that defendant’s motion to vacate the judgment was properly granted.

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L.B. o/b/o B.C. v. Washington Township BOE (Agency Dkt. #103-5/20) (OAL Dkt. #EDU 07411-20)

Client: Washington Township Board of Education

Court: Commissioner of Education

Brief Attorney:  Lauren E. Tedesco-Dallas, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Petitioner appealed the determination of the respondent Board that B.C. has not resided within the Washington Township School District since July 6, 2019 and is therefore not eligible to receive a free public education in Washington Township Public Schools. The Board filed a motion for summary decision, which petitioner failed to answer, and sought reimbursement of tuition for the period of B.C.’s ineligible attendance.

The Administrative Law Judge (ALJ) found, inter alia, that: there are no material facts at issue in this case, and the matter is ripe for summary decision.

Upon review of the record, the Commissioner of Education concurred with the ALJ’s findings and conclusion. The Initial Decision was adopted as the final decision, and the petitioner was ordered to reimburse the Board for tuition in the amount of $18,077, plus $100.43 for every school day during the 2020-2021 school year that the student attended Washington Township schools. The petition was dismissed.

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DiMeo v. Unidentified Insurance Company

Client: Unidentified Insurance Company

Court: Superior Court of New Jersey, Atlantic County

Brief Attorney:  Charles F. Holmgren, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiffs claimed they purchased an umbrella policy containing $1 Million in Underinsured Motorists (UIM) coverage and attempted to reform the actual policy they purchased, a $1 Million liability umbrella policy, to what they believed they had. After an auto accident, the plaintiffs sued their insurance company claiming: 1) the $1 Million liability umbrella policy should be reformed to a $1 Million UIM policy, 2) personal injury damages from the auto accident covered by the reformed UIM policy, and 3) bad faith in failing to pay their initial claims for UIM benefits covered by the reformed UIM policy.

In the Summer of 2020, the parties engaged in a socially-distanced, one-day bench trial on the initial issue of contract reformation. Without a direct defense witness as to any statements the plaintiffs made to the insurer, counsel was able to secure a verdict in favor of the insurance company denying the plaintiffs’ claim to reform the umbrella policy to include $1 Million in UIM. The Court determined that the plaintiffs could not meet their burden of proving fraud or unconscionable conduct by clear and convincing evidence, stating that “[e]ven if Plaintiffs’ burden was only a preponderance of the evidence, the claim for reformation would still fail.”

Importantly, because the plaintiffs could not reform the umbrella policy to include $1 Million in UIM coverage, the other two actions – the personal injury claim for UIM benefits and the claim for bad faith – were rendered moot because the court determined the plaintiffs did not have an umbrella policy permitting $1 Million of UIM coverage.

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Laura Battipaglia v. KIPP: Cooper Norcross Academy, CAM-L-2796-18

Client: KIPP: Cooper Norcross Academy Charter School

Court: New Jersey Superior Court, Law Division, Camden County

Brief Attorney:  Cameron R. Morgan, Esq.

**Results may vary depending on your particular facts and legal circumstances**

In a disparate treatment theory case brought under the New Jersey Law Against Discrimination (NJLAD), a teacher/learning specialist at a charter school alleged gender, pregnancy, and disability discrimination after she was non-renewed from her position after taking an FMLA leave and extended disability leave due to her high-risk pregnancy.  The teacher claimed that her employment contract was non-renewed based on her intention to start a family within the first few years of her employment.

In advance of trial, the court granted summary judgment on behalf of the Defendant charter school and dismissed the claims, finding that (1) the Plaintiff failed to set forth sufficient evidence from which a reasonable jury could conclude she had satisfied the prima facie elements of discriminatory intent on the part of the school underlying the non-renewal, or that she was performing the functions of her position at a level that met the school’s legitimate expectations; and (2) the charter school had numerous legitimate, non-discriminatory reasons for non-renewing her employment, including below proficient evaluation scores, improper use of “time-outs,” and poor classroom management skills.

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