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New Jersey Appellate Division Revisits Statutes of Limitations in the Context of the Discovery Rule

The New Jersey Appellate Division recently addressed the accrual of causes of action in the context of a Plaintiff seeking to invoke the Discovery Rule as a means to toll applicable limitations periods. In Caprio v. Nutley Park ShopRite, Inc., No. A-0156-21 (App. Div. Sep. 21, 2022), Plaintiff, Gino Caprio alleged that in mid-November 2018, while he was present at Shoprite in Nutley Park, New Jersey, he was advised to leave the premises by ShopRite manager John Purcaro. Purcaro explained that this ShopRite location’s parent company, Wakefern Food Corp., received emails from a female patron lodging complaints about Plaintiff’s inappropriate conduct in her presence and while on the ShopRite premises. Plaintiff alleged that Purcaro then forcibly removed him from the ShopRite in the presence of other patrons who knew the Plaintiff.  Plaintiff described the event as “humiliating and embarrassing” which caused him “physical and mental distress.”

Plaintiff did not take immediate legal action following these alleged events. Instead, he attempted to obtain copies of the referenced email complaints from ShopRite. In May 2020, Plaintiff received written notification from ShopRite that, after a search of both the Wakefern and ShopRite databases, no such email complaint was ever received. Plaintiff filed a complaint nearly one year later in May 2021, asserting claims of infliction of emotional distress, defamation and a violation of the New Jersey Civil Rights Act.

Defendants ShopRite and Purcaro moved to dismiss the Complaint by arguing that each of the applicable statutes of limitation for each of Plaintiff’s claims had expired since the November 2018 incident. Plaintiff argued in opposition that the motion was premature and that he was entitled to discovery given that he had received an undated letter from ShopRite in May 2020 explaining that there were no complaints filed against him, which Plaintiff argued would toll the limitations period pursuant to the Discovery Rule.

The trial court granted the Defendants’ motion to dismiss the Complaint and asserted that all of Plaintiff’s causes of action were time-barred by applicable statutes of limitation and that Plaintiff failed to establish any basis for invocation of the “Discovery Rule.”

On appeal, the Appellate Division agreed with the motion court’s finding that every cause of action accrued in mid-November 2018 when Plaintiff was removed from the ShopRite. In so deciding, the court explained that a defamation claim must be filed within one year of the publication of an actionable writing or utterance and that the statute of limitations for a New Jersey Civil Rights Act claim will accrue beginning from the date of the negligent act or omission that caused the Plaintiff’s harm to occur. The Court explained that each of Plaintiff’s claims accrued in mid-November 2018 as that was the date the alleged harms were caused.

Plaintiff argued on appeal that since he received the redacted letter from ShopRite explaining that no complaints were filed against him in May 2020, the Discovery Rule would allow for the tolling of the applicable statutes of limitation. Plaintiff argued that a claim does not accrue until the plaintiff discovers, or by an exercise of reasonable diligence and intelligence, should have discovered that he may have a basis for an actionable claim. However, the Court rejected this argument as irrelevant because the actionable harms occurred in November 2018 and Plaintiff did not “discover” that he suffered harm in May 2020 for the purposes of invoking the Discovery Rule.

Ultimately, the Appellate Division affirmed the State’s understanding of when tort claims are said to accrue for the purpose of tolling of the statute of limitations for a particular claim. The Discovery Rule may not be used as a mechanism for a Plaintiff to toll the applicable limitations period merely because more evidence of an actionable harm came to light at some date after the actual harm serving as the basis for a claim took place.

SEPTA Race Discrimination Settlement Requires SEPTA to Implement New Anti-Racism Policies & Pay Compensatory Damages

On August 1, 2022, the United States Department of Justice announced a settlement with Southeastern Pennsylvania Transportation Authority (SEPTA), a regional public transit company based in Philadelphia, Pennsylvania that will require SEPTA to overhaul its anti-racism policies and pay for damages caused as a result of employment inequities.

In an action captioned United States of America v. Southeastern Pennsylvania Transportation Authority, No. 2:22-CV-03004-KSM, the United States filed a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that several SEPTA employees were subject to a hostile work environment and the basis of race and religion. The complaint is based on charges of discrimination filed with the Equal Employment Opportunity Commission’s (EEOC)’s Philadelphia District Office on October 21, 2019, which were investigated. The investigated discrimination was directed at three (3) officers from the SEPTA Police Department. After investigation, the EEOC found reasonable cause that SEPTA violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, national origin, sex and religion, and prohibits retaliation against employees for opposing employment practices that are discriminatory under Title VII.

The EEOC was not able to resolve the matter between the parties, so the EEOC referred the charges to the Justice Department. The United States thereafter filed a complaint regarding these charges against SEPTA in the Eastern District of Pennsylvania. Specifically, the officers alleged that they were subjected to hostile work environment by their supervisor and subsequently experienced retaliation when they opposed this harassment. The hostile work environment claims originated from the officers’ supervisor repeatedly harassing them with racial slurs and derogatory comments about Black people and Muslims, threatening the officers and physically assaulting them.  The complaint further alleges that the Police Chief retaliated against the officers for opposing the harassment. The Police Chief and the Officers’ supervisor are no longer employed by SEPTA.

While SEPTA has denied any discriminatory conduct in violation of the Civil Rights Act, it has entered into a consent decree with the United States in an attempt to avoid further costs and litigation. The decree, initially filed August 1, 2022 and thereafter amended on August 25, 2022, required SEPTA to cease any discriminatory conduct immediately, namely, cease all conduct that has been alleged to have created a hostile work environment on the basis of race and religion. SEPTA also agreed to cease any actions that would otherwise violate the Civil Rights of any of its employees. In addition, SEPTA is charged with drafting and implementing, subject to United States approval, new anti-discrimination and anti-retaliation procedures for reporting any conduct in violation of those new procedures. These polices would be specific to Transit Police and would clearly lay out a prohibition on race and religion based discrimination, a prohibition against retaliation for reporting discriminatory conduct, appropriate descriptions of prohibited conduct, identification of employees to whom complaints can be submitted, a description of the investigation process into alleged discrimination and implementation of these procedures among several other requirements. Transit Police would be required to attend additional and specific trainings to avoid discriminatory conduct.

In addition to the need to overhaul its policies as a result of this legal action, SEPTA will also pay the complaining officers a total of $496,000 in compensatory damages. The Department of Justice explained that the decree would seek “the full and fair enforcement of Title VII” and this goal “is a top priority of the Justice Department’s Employment Litigation Section of the Civil Rights Division.”

New Jersey Defendants Carry the Burden of Differentiating Between Multiple Potential Causes of a Plaintiff’s Injury.

When a plaintiff pleads in her Complaint that an accident aggravated a pre-existing injury, it is the plaintiff’s burden to provide a comparative analysis of the two injuries – the prior injury and the aggravation – in order to succeed on her claim that the accident caused the aggravation. The Appellate Division in Blocker v. DeLoatch, 2022 N.J. Super. Unpub. LEXIS 1059 (App. Div. June 14, 2022) held that when a plaintiff had a pre-existing injury but did not allege an accident caused an aggravation of that injury, it is the defendant’s burden to establish that the injury had multiple different causes.

In Blocker, the plaintiff’s medical history indicated she sustained a workers’ compensation injury to her lower back in 2015. Thereafter she was involved in two motor vehicle accidents about two years apart from one another: a three-car accident in Franklin Township in April 2016, and another motor vehicle accident in New Brunswick in March 2018. Plaintiff filed a complaint in April 2018, asserting a negligence claim against all of the other drivers in both of the 2016 and 2018 accidents seeking damages for “permanent injuries” sustained because of those two accidents. Plaintiff, however, did not allege that either the 2016 and 2018 accidents aggravated any previously sustained injuries. Plaintiff’s expert provided a report that indicated the plaintiff sustained a permanent injury caused by the 2016 accident, that was aggravated by the 2018 accident. She had no complaints prior to the 2016 accident.

Prior to the close of discovery, the defendants filed a motion for summary judgment arguing that, (1) the plaintiff’s failure to submit a comparative analysis of the injuries sustained prior to the 2016 accident; (2) the injuries suffered in the 2016 accident; (3) the injuries sustained in the 2018 accident; and (4) how those accidents may have aggravated or exacerbated the pre-existing lower back injuries, was fatal to her complaint. In response, the plaintiff provided her expert’s report from a doctor she claimed rebutted the defendants’ claims. The motion judge granted summary judgment, agreeing with defendants that the plaintiff’s expert’s report failed to provide any analysis as to whether or how the injuries from the 2016 accident were aggravated by the 2018 accident and that there was no review of anything concerning plaintiff’s pre-2016 injuries.

The Appellate Division reversed, holding that, in a non-aggravation case, a plaintiff need only show she sustained a permanent injury arising from the claimed accident to carry her burden without having to exclude all prior injuries to the same body part. The court determined that plaintiff only had to present proof of aggravation by way of a comparative analysis when she pled aggravation. Conversely, they held that a plaintiff is not required to present such an analysis when she does not plead aggravation. It follows that in such a circumstance the defense has the burden to show that the alleged injury existed at the time of the causal accident.

If it is fully incumbent on a defendant to bear the burden of establishing a plaintiff had a pre-existing injury to the same body part injured in a subsequent accident, a logical conclusion from the above appears to question the practice of alleging a plaintiff had an aggravation of a pre-existing injury at all. The strategy appears to be that, since it is the defendant’s burden to prove aggravation, a plaintiff’s attorney would anticipate that strategy, prepare a comparative analysis on the side and, in the event that a defendant does (a) discover a pre-existing injury and (b) provide the proofs to establish same, produce the comparative analysis to rebut the claims made by a defendant. On the other hand, to carry their own burden, the defendant should investigate a plaintiff’s medical history to uncover prior injuries, have their expert establish the aggravation and prepare for the showdown with the plaintiff.

An Insurance Company’s Actions Within an Insurance Contract Not Sufficient to Bring Negligence Action for Denial of Benefits

In Moravia Motorcycle, Inc. v. Allstate Ins. Co., 2022 U.S. Dist. LEXIS 83043 (W.D. Pa. May 9, 2022), the United States District Court of the Western District of Pennsylvania dismissed an insured’s negligence claim against its insurer carrier but upheld a bad faith claim for the insurer’s sudden and unexplained denial of benefits for property damage to a motor home after previously accepting the claim causing the insurer further damage.

In April 2020, plaintiffs’ motor home was damaged after a storm caused a tree branch to fall on the motor home’s roof. The damaged roof allowed water to seep into the home. Plaintiffs notified their insurer, who sent an adjuster to evaluate the damage. The adjuster concluded that the damage was covered under plaintiffs’ policy. Allstate, the insurer, then sent a second adjuster without explanation to again inspect the damage. The second adjuster denied the claim. The motor home was not repaired resulting in additional damage including electrical issues, decay of the interior walls and mold growth. As a result of this denial, plaintiffs filed negligence and bad faith claims against Allstate.

Allstate moved pursuant to Rule 12(b)(6) to dismiss plaintiff’s negligence and bad faith claims for failing to state a claim for which relief can be granted. Plaintiffs’ negligence count argued that Allstate misrepresented the status of the policy, failed to fully advise them of the actual terms of coverage, failed to train its agents about the coverage, failed to inform its agents as to the proper manner by which policyholders should be advised about the scope and extent of insurance coverage and failed to inspect the motor home in a workmanlike manner.

Plaintiffs’ bad faith count was based upon Allstate’s alleged conduct in violation of 42 Pa. C.S. § 8371, which is Pennsylvania’s bad faith statute. To prevail on a bad faith claim under 42 Pa. C.S. § 8371, a plaintiff must demonstrate (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew or recklessly disregarded its lack of a reasonable basis in denying the claim. Nealy v. State Farm Mut. Auto. Ins. Co., 695 A.2d 790, 792 (Pa. Super. 1997).

The District Court granted Allstate’s motion as to the negligence claim but denied the motion as the bad faith claim. Allstate argued that the only relationship between the parties was the insurance contract and, therefore, the parties can only be held to their contractual obligations and not a broader tort standard. Plaintiffs relied on Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014) in which the Pennsylvania Supreme Court allowed a negligence claim to proceed against an insurance company when its adjuster and engineer found mold in the plaintiff’s basement but advised it was harmless. The plaintiff’s house ultimately became uninhabitable and the court allowed a negligence claim to proceed based on the assurances made by the insurer’s representative that were outside the scope of the contract.

The District Court distinguished Bruno from the present case as Allstate’s adjuster in the present matter did not make any representations regarding the damage. The adjuster merely denied the claim based on the terms of the policy. Plaintiffs did not allege that Allstate took any actions or made any representations outside of the contract to warrant a negligence claim.

The District Court denied Allstate’s bad faith claim despite Allstate’s arguments that plaintiffs failed to plead with specificity, name any of the adjusters personally or plead how the coverage decision was conveyed. The District Court held that plaintiffs sufficiently pled a legally cognizable claim for bad faith under 42 Pa. C.S. § 8371 since plaintiffs alleged that the first adjuster approved the claim but a second adjuster inexplicably denied the claim without explanation causing plaintiffs further damage.

While plaintiffs were ultimately not successful in pursuing a negligence action against Allstate, the District Court did state under which circumstances a negligence claim between parties of contract can proceed. Actions and words by an insurance company’s representatives can open up the insurance company to a negligence claim thereby exposing the company to different and greater damages than those contemplated by the insurance contract.

Separating Elevations Risks Under Labor Law § 240 (1) From Other Conditions That Could Cause an Employee’s Injury

By: Erika Vasant, Law Clerk
Editor: Patrick J. Graham, Esq.

In Schutt v. Dynasty Transp. of Ohio, Inc., 203 A.D.3d 858 (2022), the Supreme Court of New York, Appellate Division, Second Department reaffirmed the State’s current understanding of Labor Law §240(1). In this case, plaintiff, an elevator assembly employee, was unloading the components of an elevator from a truck. As plaintiff was attempting to move a hydraulic jack, his foot slipped and he fell down two feet from the truck bed injuring his shoulders and back. When plaintiff stood up, he noticed that an oily substance was on his clothes, which he determined to have originated from the truck’s bed.

Plaintiff filed a complaint alleging violations of Labor Law §240(1) and §241(6) as well as negligence by the defendants. The Supreme Court, however, granted all the defendants’ motions to dismiss, and the plaintiff appealed.

The Appellate Division first referenced the notes in Labor Law Section 240(1) which states:

Labor §240(1) should apply only to circumstances where there are risks related to elevation differentials since types of devices which statute prescribes (ladders, scaffolds, etc.) share common characteristic related to relative elevation at which task must be performed or at which materials or loads must be positioned or secured.

As such, the Court reasoned that if plaintiff’s injury resulted from an elevation risk, but the fall was actually caused by spilled oil, the fall would constitute a separate hazard. Leaning on the Court of Appeals of New York’s decision in Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90 (N.Y. 2015), the Court noted that “regardless of the type of safety device involved, liability arises under Labor Law §240(1) only where the plaintiff’s injuries are the ‘direct consequence’ of an elevation-related risk not a separate and ordinary tripping or slipping hazard.”

Prior to Nicometi, the Court of Appeals held that “…the question is whether the circumstances surrounding plaintiff’s work subjected him to the sort of risk which Section 240(1) was intended to obviate.” Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (N.Y. 1991). In analyzing both Nicometi and Rocovich the Court affirmed that Labor Law §240(1) only applied to injuries caused by elevated surface differentials.

Nonetheless, the Court did not dismiss the claims against the same defendants regarding the causes of action relating to Labor Law Section 241(6) based on 12 NYCRR 23-1.7(d). The law bars employers from allowing employees to “use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition.” N.Y. Comp. Codes R. & Regs. tit. 12 §23-1.7 (2021). In this case, the Court found that the defendants did incur liability by allowing Plaintiff to perform his work in the truck amidst spilled oil.

Fundamentally, this case continued Labor Law §240(1) preference for employers because liability is only incurred when the injury stems from a device that creates elevation risks. If an injury stems from any other type of object that has no elevation risk, then employers are exempt from liability. Even so, employers must remain careful so as to not permit employees to perform their work in slippery conditions in order to avoid violating 12 NYCRR 23-1.7(d).

_________________________________________________________

Erika Vasant is one of Capehart Scatchard’s 2022 Law Clerks. Ms. Vasant is a rising 3L at Rutgers Law School. She has played an active role in diversity as President of the South Asian Law Students Association. Currently, she is President of the Rutgers Employment and Labor Law Association, Vice President of the Animal Legal Defense Fund, and the Notes and Comments Editor for the Women’s Rights Law Reporter. Last summer, she interned with the Honorable Judge Younge in the United States District Judge for the Eastern District of Pennsylvania. She is incredibly honored to be interning at Capehart Scatchard this summer!

Providing Legal Counsel To New York State Funeral Homes Facing Liability – A Brief Overview Of Relevant Issues

Death is one of life’s greatest uncertainties and is often accompanied by fear, discomfort and existentialism. Societal reluctance to discuss death in an open and honest manner often carries real costs by leaving families and friends of the deceased ill-prepared for the untimely deaths of loved ones. In a time of uncertainty and emotional taxation, families spending thousands of dollars on funeral arrangements expect perfection and flawless delivery of contracted funeral services. While errors by funeral homes and service providers in executing these arrangements do happen and can often be resolved with transparent communication, larger mistakes, such as burial of the wrong body, or burial in an incorrect manner, can land funeral service providers in civil lawsuits potentially carrying disastrous consequences. The State of New York has developed a large body of law addressing these civil claims asserted against funeral homes and this law probes a funeral service provider’s conduct in its disposition of the remains of the deceased.

New York recognizes, among other claims, a specific cause of action to recover for funeral home negligence by way of Right of Sepulcher. Generally, common law Right of Sepulcher protects the next of kin’s right to bury the deceased. This common law right was seminally articulated in Rugova v. City of New York where the Court noted that it is the next of kin’s absolute right “to the immediate possession of a decedent’s body for preservation and burial.” The right’s parameters were further articulated in Melfi v. Mount Sinai Hosp., where the Court explained that if a “person unlawfully interferes with that right or improperly deals with the decedent’s body,” damages are awarded against that person “as compensation to the next of kin” for the emotional injury that resulted from their inability to conduct a proper burial.”

The Right of Sepulcher is recognized in New York’s common law, but the State legislature also codified the right under the New York Public Health Law Article 42 (hereafter “NYPHL 42”).  A plaintiff can assert claims under both the common law and NYPHL 42 versions of the right when interference with right to a proper burial occurs. NYPHL 42 deals with cadavers and consists of multiple chapters and subsections discussing these issues.  New York’s Courts have recognized a cause of action under NYPHL 4200 for interference with right to immediate possession of decedent’s body and specifically provides:

Except in the cases in which a right to dissect it is expressly conferred by law, every body of a deceased person, within this state, shall be decently buried or incinerated within a reasonable time after death…The provisions of this section shall not impair the right to carry the body of a deceased person through this state, or to remove from this state the body of a person who has died within it, for the purpose of burying the same elsewhere.

New York Courts have broadly interpreted the issues surrounding this right, and have awarded compensation in the past for violations of the same. The New York judiciary has historically favored plaintiffs in hearing these claims. New York Courts have essentially created a “deluxe package” of the property right in a deceased’s body and disposition, which was first recognized in the case of Larson v. Chase. Over the years, New York Courts have assigned property value in corpses to be protected, allowed for recovery for emotional distress even absent money damages, expanded the right to include body parts and organs and imposed a duty to notify. This “deluxe package” only increased the duties and penalties on hospitals and those who handle the dead.

Typically, practitioners asserting claims on behalf of a deceased’s next of kin in New York Courts will file a civil complaint against a funeral home or funeral service to accuse the entity of negligence, breach of contract, or breach of some other kind of duty. The decision to assert a separate count citing the Right of Sepulcher is a strategic one and some attorneys choose to raise the Right of Sepulcher for the first time in a dispositive motion. As discussed in more detail below, it is of the utmost importance for a plaintiff’s attorney to prove that the funeral service provider failed to act in good faith in carrying out the disposition of the deceased’s remains. The Right of Sepulcher is especially concerned with the lack of good faith conduct and will find for a plaintiff when the same is present.

Given the strength of the Right of Sepulcher and the New York judiciary’s tendency to favor Plaintiffs, it should be noted that the right is not absolute. NYPHL 42 also provides for statutory defenses that New York practitioners defending funeral homes and funeral service providers should seek to invoke. NYPHL 4201 concerns “disposition of remains, responsibility therefore.”  Article 42, Title 7 concerning cemetery and funeral home liability, provides a shield for funeral home liability for:

actions taken reasonably and in good faith to carry out the written directions of a decedent as stated in a will or in a written instrument executed pursuant to this section [and] actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person:

(a) is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section; or (b) that he or she has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section.

This statutory defense places a great deal of emphasis on having the right person control the disposition of the deceased’s remains. For many funeral homes and service providers, this issue of control is a nonfactor as control is not for the funeral service provider to decide and is normally left to the next of kin or to the deceased in preparing a last will and testament. To be afforded this protection, a funeral home must first prove that it took actions in good faith to carry out the directions of a member of the estate who represented that he or she is entitled to control of the disposition of decedent’s remains. The other component of the statute requires the funeral home to request and receive a written statement that such person is either the designated agent of the decedent (designated in a will or written instrument executed pursuant to this section); or that person has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section shown above.

In showing that it acted in good faith in carrying out the instructions the deceased’s designated agent, a funeral home or service provider must establish a fine detailed timeline of events in conducting the disposition. Funeral service providers should be aware that these types of claims function as an examination of their compliance with the statutory requirements under NYPHL 4201. In defending against Right of Sepulcher claims, a timeline showing compliance with NYPHL 4201 and to the designated agent’s instructions by way of the deceased may be the difference in funeral service providers avoiding liability for alleged mistakes.

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