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Court Dismisses Plaintiff’s Personal Injury Lawsuit Due to Inability to Identify Why Floor Was Slippery

Plaintiff Ann Brilliant slipped and fell inside an Outback Steakhouse but did not know how or why she slipped.  She was unable to identify any specific hazardous condition of the floor or deviation from accepted safety standards.  The issue in Brilliant v. Outback Steakhouse of Florida, LLC, 2025 U.S. Dist. LEXIS 87014 (D.N.J. May 7, 2025) was whether summary judgment should be granted to the defendant Outback Steakhouse due to plaintiff’s failure to identify why the floor was slippery and what caused her to fall.

Plaintiff had met her friend Darsell Pigford for dinner at an Outback Steakhouse in Deptford, New Jersey.  As she was walking to her table, she slipped and fell, breaking her arm and leg.

She testified at her deposition that she did not notice any substance on the floor that caused her to slip.  Rather, she guessed that “the floor was slippery because it had a wax residue on it that made it feel like a sheet of ice.”  However, she denied seeing or feeling any wax residue on the floor.  Plaintiff’s friend, Ms. Pigford, also testified in a deposition that she frequently ate at this Outback and that the floor always seemed slippery but, she was unaware of any particular condition that made the floor slippery.  Although, on one of her prior visits, she had apparently alerted restaurant staff about the slipperiness of the floor.

At the conclusion of discovery, Outback moved for summary judgment, arguing that, as a matter of law, no reasonable jury could find that it negligently maintained its floor.  The District Court found that plaintiff could not survive summary judgment “because she has failed to present evidence outside her and her witnesses’ own subjective characterizations that Outback maintained its floor negligently.”

The Court relied on prior New Jersey case law which held that “the mere fact that a plaintiff falls on a waxed floor is not enough to infer negligence; instead, the plaintiff has to show that the way the floor was waxed – in terms of the nature or quantity of the substance used, or in the matter or time of its application – was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises.” 

Here, plaintiff failed to produce any evidence that the floor was negligently waxed, or that it was waxed at all.  The Court also pointed to out of state decisions in which courts have held that a plaintiff cannot prevail on a negligence claim when she fails to offer any evidence that the floors were excessively slippery, “other than subjective characterizations about the appearance of the floor.”

Plaintiff had also argued that summary judgment should be denied because Outback failed to produce in discovery a completed opening and closing inspection checklist, as well as a completed facilities inspection checklist.  Instead, Outback had only produced a blank version of the opening checklist.  Plaintiff argued that defendant’s failure to preserve these records should create a negative inference that it either never created the records or that the records were destroyed because they were harmful for the defendant. 

The District Court disagreed with that argument.  Plaintiff had never objected in discovery to Outback’s failure to produce these completed versions of the checklist from the day of the accident.  Further, the Court noted that production of the completed checklists, even if they did exist, would not create a triable dispute of fact.  At most, the checklist would establish that inspections were conducted but not what if anything was observed during the inspections, let alone that any hazardous condition was or should have been detected.

The Court concluded that the undisputed evidence was that there was no admissible evidence of a dangerous hazard on the floor and, as such, the argument that any hazard could have been identified or remedied by an inspection procedure was speculative.  Thus, the District Court granted summary judgment and dismissed the complaint.

Appellate Division Affirms Dismissal of Case After Bifurcated Trial

The small details matter.  A petitioner will always have problems at trial when there is very little congruence between the allegations contained on the claim petition and the statements which petitioner gave to the employer and treating doctors at the time of the accident. That is the message in the case of Makins v. Palace Rehab & Care Center and Premier Cadbury, LLC, A-2263-23, A-2276-23 (App. Div. April 24, 2025).

Petitioner was a certified nursing assistant (CNA) who provided essential care to patients. She injured her back in 2013 while working for Palace Rehab with pain and numbness into her right leg. She received an award in that case and reopened that award on June 12, 2018.

On June 19, 2018, petitioner, who was then working for Premier Cadbury, filed two additional claim petitions.  The first claim petition alleged an injury on February 11, 2018, which aggravated her low back with pain into her legs while “picking up a resident.”  In the second claim petition, she alleged that she injured her back, left knee and left hip picking up a patient on June 8, 2018. Cadbury denied both claims, and the case proceeded to trial. The parties agreed to a bifurcated trial.  That meant that the case would be tried on the issue of the occurrence of an accident and causal relationship without medical experts necessarily testifying. 

During the first date of trial, petitioner said she did not remember whom she reported the first incident to but later she said she told her supervisor, whose name she did not recall.  She said she was lifting a patient when something happened to her low back.  She admitted to finishing work the day of the alleged injury on February 11, 2018.  She worked the next two days.  She then went to a hospital on February 14, 2018, and stayed home two days, returning to work on light duty before resuming full duty.

The petitioner’s version of the second alleged incident on June 8, 2018 was similar.  She said she was lifting a patient, putting her on a toilet, when she felt sharp pain in her back.  She also said that she bent down to pick up a box of tissues that the patient dropped but then she fell to the floor, striking her back and left hips.  She said she told a nurse who entered the room what had occurred. She recalled signing an incident report but claimed she had not read the incident report because she was in too much pain.  She said Susan, who completed the incident report, told her to see her family doctor.  She was referred to an orthopedist, who gave her an injection.  She was then referred to Dr. Kepler, a surgeon.  She also had two visits with Concentra, which were arranged through her employer.

Cadbury’s counsel focused heavily during trial on numerous inconsistencies in this case:

1)  The incident report of February 16, 2018, which was signed by a supervisor but not by petitioner, contained a handwritten response to the question about how the incident happened: it read “overall strain on back – did not occur with just [one] resident.” Defense counsel asked petitioner to comment on this description.  The judge observed that during her response,  “petitioner’s head went down, she would not make eye contact with respondent attorney, she did not speak for a period that was uncomfortable, shrugging with [a] lack of expression.”  She then said she did not recall making that statement.

2)  Regarding the alleged incident on June 8, 2018, petitioner admitted that she signed the incident report but said that she had not read it. She denied ever saying the words contained in the report: “Employee was simply walking, passing out trays and performing routine duties when she felt sharp pain in her left hip like a dislocation – now has radiated to lower back.”  Petitioner testified, “This didn’t happen like this.”

3)  Petitioner was shown a document entitled “Workers’ Compensation – First Report of Injury or Illness.”  She said she did not agree with the description on that document, namely: “Employee was simply walking, passing out trays and performing routine care when she felt a sharp pain in her left hip/lower back.”

4)  Petitioner was also shown notes from a physician’s assistant in the orthopedic practice for her June 13, 2018 appointment. She did not agree with the description: “[The patient] states that she has been having low back pain for approximately a month. She states that a few [sic] last week at work when she was in a standing position, her leg gave out and she did not fall.  She states that her knee has been feeling painful as well.”

5)  Petitioner also disagreed with a statement contained in a June 14, 2018 appointment at Concentra: “Patient states that as she was walking her left leg gave out, she was able to prevent herself from falling, she states she sat down and rested and later in the day the same thing happened again. She reports since then she has been experiencing lower back pain, left knee and left hip pain.  She states that her left knee appears to slip out of place and she is unable to resume regular activity until it returns to a normal position.  She reports a history of arthritis to the back.  She denies slipping, tripping or other mechanics of injury.”

6)  Petitioner also disagreed with the note from a Concentra doctor in her June 18, 2018 appointment where the physician described her as having a “preexisting condition.”

7)  Petitioner also was shown a note from her orthopedic physician at her July 2, 2018 appointment.  The doctor wrote that petitioner had “a history of chronic recurrent lower back pain for many years” and “severe osteoarthritis of her left knee.”  The doctor also wrote that petitioner denied any specific injury and admitted that her symptoms began “insidiously.”  Petitioner did admit that she had preexisting problems but did not recall this specific discussion.

8)  Petitioner also did not recall the history contained in an IME performed at Cadbury’s request which referenced a prior August 8, 2017 incident when petitioner felt pain while helping a 200-pound patient get off a toilet. Petitioner did not recall being examined by the doctor and did not recall that particular history.  In fact, she disagreed with that description of a 2017 injury.

On examination by the attorney for Palace, (the first employer), petitioner did agree with a statement by Dr. Kepler in his May 21, 2019 report that she suffered two injuries at Cadbury on February 11, 2018 and June 8, 2018, both of which aggravated her back and leg pain.

Cadbury produced two witnesses:  a Director of Nursing in 2018 and an Executive Assistant and Supervisor for the front desk. These witnesses testified to the procedures that Cadbury followed for reporting an injury at work.  The first witness testified that the information on the First Report of Injury Form came from the information on the Incident Report. The second witness testified that she created the incident report for the alleged February 11, 2018 accident based on what petitioner had reported to her.

The Judge of Compensation admitted into evidence over objection from petitioner’s attorney the incident reports and the Workers’ Compensation First Report under the Business Records exception to hearsay.  The Judge permitted the petitioner on the final day of trial to bring in a doctor to challenge impeachment evidence but petitioner declined to do so.  Certain documents were introduced into evidence by all parties, and the Judge of Compensation rendered a decision finding that … “petitioner failed to prove by a preponderance of the evidence that her injuries were causally related to the alleged accidents at Cadbury.”  The Judge dismissed both claim petitions with prejudice.  The Judge also noted that he did not give the First Report of Injury Form any weight in arriving at his decision.  He specifically stated that he found petitioner not to be credible.

Petitioner appealed and raised several issues.  The first issue pertained to petitioner’s competence to testify.  Petitioner was asked by the judge at the outset of testimony whether she was under the influence of anything that would interfere with her ability to testify.  She said no.  Then her own attorney asked her if she was under the influence of medications.  She said yes, that she was taking oxycodone and muscle relaxers which affected her memory.  She also said she was suffering from memory issues related to Long Covid.  The Appellate Division commented, “The problem with that argument is that petitioner and her counsel chose to have her testify, fully aware of what medication she had taken and her Long Covid condition and their potential effects on her memory.  Nothing in the record indicates petitioner or her counsel asked the judge for an adjournment…”  The Court also noted that petitioner initially told the Judge of Compensation that she was not under the influence of anything that would cloud her judgment. Furthermore, the Appellate Court noted that the Judge of Compensation focused more on “the differences in her demeanor when she testified about facts that were in her favor and when she testified about facts that were not in her favor.”

The next issue on appeal was the decision to bifurcate the trial.  Counsel for petitioner challenged the trial judge’s decision to bifurcate the trial because it contended that this may have prevented petitioner from producing testimony from her treating physicians.   The Appellate Court said there was no error in bifurcating the trial because neither party objected to this approach.  The Court also noted that the Judge of Compensation allowed petitioner to bring in medical testimony on the final date of trial but petitioner’s counsel declined. The Appellate Court commented that in this case the judge found that petitioner was not credible in her claims that work accidents happened.

The last argument on appeal was that the Cadbury incident and first reports should not have been admitted into evidence because they did not meet the test of a business record under N.J.R.E. 803 (c)(6).  Counsel also argued that petitioner was denied due process when Cadbury did not produce the author of the incident report. The Appellate Court noted that the Judge of Compensation gave no weight to the First Report of Injury Form.  The Court also noted, “… [A] Judge of Compensation is not bound strictly by the Rules of Evidence, see N.J.S.A. 34:15-56, and may admit documents into evidence without authentication testimony,” citing Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244 (2003). The Court also observed that petitioner did admit that she signed the first page of the June 8, 2018 incident report, “which contained a description of the purported accident that did not match the description petitioner gave on her claim form or in her testimony.” Finally, the Court commented that all counsel in the case consented to the admission of certain documents into evidence; hence there was no due process violation.

The dilemma for petitioner in this case was the inability to overcome the inconsistency between the allegations in her claim petitions and the contrary statements in the incident reports and doctors’ notes close in time to the alleged accidents.

  • Evidence

Photographs Showing Mopping of Floor and Caution Sign Placed Post-Accident Barred at Trial As Subsequent Remedial Measure

Plaintiff Pauline Jelken fell in a puddle of water in the lobby of the defendant’s Public Storage facility.  After she fell, an employee mopped the puddle and placed a caution sign on the floor.  Plaintiff sued Public Storage for her injuries suffered from the fall. The issue in Luciano v. Public Storage, 2025 N.J. Super. Unpub. LEXIS 383 (App. Div. Mar. 13, 2025) was whether the trial court judge properly barred Jelken from introducing photographs of the post-accident measures undertaken after Jelken fell, specifically the mopping of the floor and the placing of the caution sign. 

On July 4, 2018, Jelken went to defendant Public Storage’s facility with her friend Arlene Castello to retrieve items she had stored there.  It rained that day and she slipped and fell in a puddle of water in the lobby of the premises.  Jelken reported her fall to the defendant’s employee.  Thereafter, an employee mopped the puddle and placed a caution sign on the floor.

Jelken filed a personal injury lawsuit for injuries she suffered in her fall.  The case proceeded to trial and, among other witnesses, the defense presented a forensic engineering expert, Dr. David Behnken, to testify as to the condition of the floor. 

Prior to trial, the defense made two evidentiary motions, ruled upon by the trial court, one of which will be discussed in this blog article.  One of the motions concerned post-accident photos that showed the floor being mopped and a caution sign placed at the scene of the fall. The defendant sought to bar them from being introduced into evidence at the trial. The trial court judge granted that motion.

The trial court judge asked Jelken’s attorney to state the basis for introducing this evidence.  Jelken’s attorney stated that he intended to use the photographs to demonstrate Jelken “got out of the facility safely.”  The trial court judge ruled that the post-accident photographs were inadmissible under the evidentiary rule, N.J.R.E. 407, which barred the introduction of evidence of subsequent remedial measures.

The judge reasoned that the photos went more to the remedial measures that were taken by the defendant after the accident. While pictures of the condition of the floor at the time of the accident would be admissible, the judge found that the mopping and pictures with the signage around it was not the condition of the floor at the time of the accident and barred their admission at trial.

At trial, Jelken’s attorney sought to revisit this ruling after defense counsel gave his opening statement.  During the opening statement, the defense counsel argued that the floor was slip resistant and that you could pour all the water you want on the floor and you could not slip.  Jelken’s attorney made the argument that defendant sought to portray the floor as slip proof and contended that “the photographs demonstrating defendant’s employee mopped the floor and placed a caution sign refuted the floor’s safety.”

The judge restated his pre-trial ruling that the post-accident photographs constituted inadmissible subsequent remedial measures, precluded under N.J.R.E. 407.  The judge further commented that Jelken had the opportunity to call an expert in the matter to indicate that the floor was not slip proof.  The judge also barred Jelken’s attorney from using the photographs of defendant’s post-accident remedial measures to cross-examine defendant’s engineering expert. 

After hearing all of the testimony, the jury found that plaintiff had failed to prove defendant was negligent and found for defendant.  Jelken filed a motion for a new trial based upon the court’s evidentiary rulings.  That motion was denied and this appeal ensued. 

On appeal, Jelken argued that the judge made a mistake in excluding evidence of defendant’s post-accident safety measures.  In considering this argument, the Appellate Division noted that: “while evidence of safety measures taken after an accident may tend to prove or disprove a fact of consequence, New Jersey has a clear and longstanding public policy favoring the immunization of remedial measures from negative inferences.” 

The Court explained that, pursuant to this rule of evidence, evidence of remedial measures taken after an event were not admissible to prove that the event was caused by negligence or culpable contact.  However, evidence of subsequent remedial conduct may be admitted as to other issues such as to establish control over the instrumentality causing the injury, to show defendant’s customary standard of care, to prove the condition existed at the time of the accident, to show that a feasible alternative for avoiding the danger existed at the time, or to attack the credibility of a witness. 

During the appeal, plaintiff argued that the photographs were relevant to show that plaintiff got out of the facility safely, to show the floor was slippery, and to impeach defendant’s engineering expert who testified the floor was highly slip resistant. 

The Appellate Division found that the trial court judge did not abuse his discretion in precluding evidence of the defendant’s post-accident conduct under N.J.R.E. 407.  The photographs, showing the defendant’s employee mopping a puddle and placing a caution sign were changes and repairs made subsequent to the accident, were precautions taken subsequently to prevent recurrence of an injury and were not admissible as showing negligence or as amounting to an admission of negligence. 

Hence, the Court found that absent a proffer of the photographs to prove some other fact in issue, the evidence of subsequent remedial measures could not be used to show negligence.

The Appellate Division also rejected the argument that the photographs were required to prove Jelken exited defendant’s facility safely.  Both plaintiff and her friend who accompanied her testified that they left the facility without further incident.  While photographs showing the condition of the floor at the time of the fall might be relevant to plaintiff’s negligence claim, photographs of the floor after defendant’s employee took action constituted evidence of subsequent remedial measures which were properly precluded under this rule of evidence.

Plaintiff further argued that she intended to use the photographs of defendant’s post-accident conduct to prove the floor was slippery.  The Appellate Division found that the best evidence in support of this contention was the testimony proffered by plaintiff and her friend during the trial.

The Appellate Division further rejected the argument that the evidence of defendant’s subsequent remedial measures should be admissible to impeach defendant’s engineering expert. During direct testimony, the engineering expert was never questioned as to defendant’s post-accident conduct.  During cross-examination, plaintiff’s attorney hypothetically asked the witness if he had been at defendant’s premises at the time of the fall, whether he would have placed a sign warning people to be careful.  He testified that he would not have directed the placement of such a sign. Because Plaintiff’s counsel, not Defendant’s counsel brought up the issue of placement of the sign, the post-accident photos showing the sign could not be used to impeach the expert’s testimony.

Thus, the Appellate Division ruled that this evidentiary ruling was proper by the trial court judge.  The Court found that the denial of Jelken’s new trial motion was not a miscarriage of justice under the law and affirmed the trial court’s decision.  Accordingly, the jury verdict in favor of the defendant was upheld.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court Finds Petitioner Cannot Prove Work-Related Need for Breast Reconstruction Surgery

A misunderstanding of a key fact can doom an expert opinion.  That was the situation in V.S. v. Spectrum360, No. A-0710-23 (App. Div. June 24, 2024). The petitioner, a special education teacher, was working on July 26, 2021, when a student kicked her in her left breast.  Petitioner felt pain, tenderness, extreme redness and blood clotting in her left breast.

A medical examination on the date of the incident was consistent with a contusion to the left breast.  V.S. had undergone breast augmentation surgery in 2011.  Since then, petitioner admitted that she had gained a “significant amount of weight,” which augmented her breast size.  Petitioner’s board certified plastic surgeon, Dr. Boris Volshteyn, suspected that V.S. “sustained a fracture of the silicone implant on the left side.”  He sent her for an MRI on September 30, 2021.  Dr. Volshteyn said that the MRI “demonstrated significantly increased folding of the implant on the affected left side compared to the right side.”  He attributed the changes in her left breast to the work incident and recommended breast reconstruction surgery and removal and replacement of both breast implants to repair what he thought was a slow leak rupture of the left breast implant.

Petitioner filed a motion for medical treatment seeking breast reconstruction surgery. Respondent sent petitioner for a second opinion with Dr. Beverly Friedlander, a board certified plastic surgeon.  In a key distinction between the two plastic surgeons, Dr. Friedlander noted that petitioner did not have silicone implants, contrary to what Dr. Volshteyn had assumed.  Rather she had saline implants. She pointed out that if Dr. Volshteyn had been correct that petitioner had suffered a rupture or puncture of the left breast when kicked by the student, a deflation in the breast would have occurred rapidly with a saline implant.  When a saline implant is compromised, she said its contents will leak and reabsorb into the body quickly.  But that had not happened in this case.  Even petitioner agreed that there was no material difference in size after the accident between the left and right breasts. 

The experts also disagreed on the interpretation of the MRI results.  The MRI of the left breast showed evidence of folds in the left breast.   Dr. Volshteyn attributed this to the work incident, arguing that the MRI demonstrated “significantly increased folding of the implant on the affected left side compared to the right side.”  Dr. Friedlander read the same MRI but she did not notice in her examination any rippling in the left breast.  She added that ripples in breast implants are actually quite common.  She said that all breast implants ripple, and that if an implant is underfilled, the ripples are even more observable.  In her opinion, one implant was inflated more than the other implant, leading to surface irregularities. She concluded that the folds that showed on the MRI had nothing to do with the work injury.

The Judge of Compensation denied the petitioner’s motion, finding that Dr. Friedlander was more credible than petitioner’s expert.  The Appellate Division affirmed the dismissal.  It said, “The judge found Dr. Volshteyn erroneously believed V.S. had silicone – not saline – implants and that mistake regarding the composition of the implants undermined his overall opinion.” The Court felt that there was sufficient credible evidence for the Judge of Compensation to find Dr. Friedlander more credible in that petitioner’s left breast implant was intact and had not ruptured contrary to the opinion of Dr. Volshteyn.

As for petitioner’s complaint of more pain in her left breast after the accident, the Court noted that Dr. Friedlander had an explanation for this.  Petitioner had chronic pain related to a 2007 motor vehicle accident as well as lupus/rheumatoid arthritis.  Dr. Friedlander also said that petitioner had a history of discomfort in both breasts related to her significant weight gain since the time of her 2011 augmentation.

The post Court Finds Petitioner Cannot Prove Work-Related Need for Breast Reconstruction Surgery appeared first on NJ Workers' Comp Blog.

Defense Counsel Permitted To Cross-Examine Plaintiff Concerning Statements Made In Pre-Accident Medical Records

Plaintiff Monica Graham was awarded $325,000 in damages in a lawsuit she filed against defendant Carole Venetianer for injuries she suffered in a car accident with defendant.  Plaintiff filed an appeal of this jury verdict, arguing that defense counsel should not have been permitted to cross-examine her using medical records not admitted into evidence.  The issue in Graham v. Venetianer, 2024 N.J. Super. Unpub. LEXIS 819 (App. Div. May 8, 2024) is whether the trial court made an error in permitting plaintiff to be cross-examined concerning her prior medical history, as well as focusing on her pre-accident admissions in those records during the summation to the jury.

Plaintiff was in an accident with the vehicle driven by the defendant on April 7, 2016.  Following the accident, she treated for spinal injuries, resulting in spinal surgeries performed by a neurosurgeon in 2018 and 2019.  The plaintiff had medical experts testify for her at trial, which did not include her family doctor, Dr. Linda Guirguis.  However, on cross-examination, defense counsel questioned plaintiff about her prior medical history and confronted her with admissions and statements attributed to her about her pain and therapy regimen in Dr. Guirguis’s medical records.  These records were never admitted into evidence.

The trial court found that the defense’s cross-examination of plaintiff regarding her pre-accident medical treatment was proper.  Upon appeal, plaintiff argued that she was unfairly prejudiced by defense counsel’s use during cross-examination of the pre-accident medical records. 

In analyzing the arguments made by the plaintiff, the Appellate Division noted that under the New Jersey Rules of Evidence, there were certain exceptions to the hearsay rule which permitted an out of court statement.  One of the exceptions is statements made for purposes of medical diagnosis or treatment. (N.J.R.E. 803(c)(4)).  Pursuant to this rule, statements made for the purposes of medical diagnosis would be admissible when used to show the existence of a medical issue.

The Appellate Division concluded that the scope of plaintiff’s cross-examination, to the extent it focused on her medical condition prior to her 2016 accident, was permissible.  The defense asked plaintiff to confirm her pre-accident statements to Dr. Guirguis about her prior neck and back pain, pain from sitting and standing while on vacation, two visits to her radiologist, continuous follow up on neck and back complaints and a prescription for pain medication.   The statements made by plaintiff were made to Dr. Guirguis for the purpose of obtaining a medical diagnosis or treatment.

The Appellate Division also found that plaintiff was not unfairly prejudiced by defense counsel’s reference to the same medical records in summation.  First, it noted that plaintiff’s counsel failed to object during the summation.  In the appeal, Plaintiff had targeted that part of defendant’s closing which referenced her visits and physical complaints to her family doctor in 2015.  The Appellate Division found that there was “nothing in defense counsel’s closing that could be characterized as plain error which was clearly capable of leading to an unjust result.”  Thus, the Appellate Division refused to disturb the trial court rulings and the jury verdict. 

Plaintiff’s Personal Injury Lawsuit Dismissed Due to Her Failure to Identify the Condition That Caused Her Accident

Plaintiff Artherine Price was at the Quaker Bridge Mall on May 10, 2018, when she twisted her ankle in the parking lot of the Mall.  She claims that she fell in the crosswalk while walking from her parked car to enter the store and sued the Mall defendants for her injuries.  The issue in Price v. Quaker Bridge Mall, LLC., 2024 N.J. Super. Unpub. LEXIS 591 (App. Div. April 10, 2024) was whether the plaintiff’s claim should be dismissed due to her failure to identify the exact cause of her injury.

Plaintiff testified that her ankle twisted, and she almost fell as she was in the crosswalk.  She could not identify the exact location of where the incident occurred within the crosswalk.  She also testified that she never saw anything in the crosswalk, before or after the incident that caused her to twist her ankle.  Even after the incident, when she returned to the crosswalk with the security guard, she was unable to point to the specific spot where the incident occurred.  The best she could state was that the incident occurred in an area where the pavement was cracked.  Hence, she believed that the cracked or broken pavement caused her to twist her ankle.

The Mall defendants filed for a summary judgment dismissal based upon the plaintiff’s deposition testimony.  The trial court judge found that there was no dispute that plaintiff was injured in the Mall’s parking lot.  However, the issue was that plaintiff could not establish causation.  Even when she went to the location a few days later and took photographs, she was unable to identify any particular cause.  Because the mere happening of an accident was insufficient to establish negligence, the trial court judge granted defendants’ summary judgment motion.

The plaintiff appealed that decision to the Appellate Division.

Upon appeal, Plaintiff acknowledged that her deposition testimony had inconsistencies regarding causation and that a jury could conclude at trial that such inconsistencies adversely affected her credibility.  Plaintiff argued that they did not provide a basis for the trial court judge to disregard her testimony and grant defendant’s summary judgment.

The Appellate Division noted that proximate causation is a basic element of tort law.  The court stated that “[to] establish causation a plaintiff must prove the defendant’s act or omission was both the factual and proximate cause of his or her injury.”  It would be the factual cause if, but for the event, the injury probably would not have happened.

Here, the Appellate Division was convinced that defendants were entitled to a judgment as a matter of law.  The Court noted “that [t]he judge’s factual findings were supported by substantial evidence in the record and reveal there is no dispute of fact regarding causation.”  The Court further pointed out that plaintiff was unable to establish that “but for” defendants’ actions or omission she would not have twisted her ankle because she cannot establish what condition caused her to twist her ankle. 

Accordingly, the Appellate Division found that she failed to make a showing sufficient to establish causation, which is an essential element of her case.  Therefore, the Court agreed that defendants were entitled to summary judgment and affirmed the trial court decision, dismissing her lawsuit. 

What is “Discovery” in a Civil Lawsuit?

Lawyers understand the term “discovery” in the context of a civil lawsuit but laypeople involved in a lawsuit likely do not understand what it means to “conduct discovery.” In general terms, it means exactly as it is defined in plain English, i.e. to find out something. In the context of a lawsuit, discovery is used to find out about the basis of the plaintiff’s claims, as well as the basis of the defendant’s defenses.

Our court rules permit a wide latitude in discovery. A party may “discover” any information or documentation that is either relevant to the subject matter of the lawsuit, either the claims or the defenses, or which is “reasonably calculated to lead to the discovery of admissible evidence.” This information or documentation may not be admissible at trial based upon an evidentiary rule but it may nevertheless be required to be produced in discovery if requested.

Discovery can be made through various formats. Typically, lawsuits start off by requesting the other party to answer written questions called interrogatories. These questions will include topics asking about either the claims or defenses, such as asking about the party’s version of events, persons with knowledge of relevant facts, the plaintiff’s injuries and/or damages, and the identity of experts and their reports.

Additionally, written discovery requests will likely ask for relevant documents that would support the party’s claim or defenses.

After written discovery is exchanged, the parties usually move onto depositions. In depositions, witnesses are asked to give oral sworn testimony about the subject matter of the lawsuit. Some of the same topics asked in written questions are often asked in depositions but in much more detail. It also gives the other party the opportunity to assess the individual’s demeanor as a witness.

Discovery may also include an inspection if the claim involves an incident resulting from the condition of a premises or a piece of equipment or machinery. Experts, if retained, may need to conduct an inspection to prepare an expert report.

If the matter involves a personal injury, medical records need to be obtained during the discovery process to be able to assess the medical condition and extent of injuries suffered by the injured plaintiff. These records are evaluated by defense counsel and then typically utilized to set up a defense medical examination. The plaintiff has treating or examining doctors and the defense will need its own doctor to examine the plaintiff and provide an opinion on what injuries the plaintiff suffered in the incident and if the plaintiff suffered a permanent injury.

Depending on how the accident occurred, after the written discovery and depositions are completed, then the parties decide if other experts need to be retained. In addition to medical experts, other experts may need to be retained who can render opinions on the liability aspect of the case, such as who is responsible for the incident occurring (or not responsible). In addition, there could be other experts as to damages that need to be retained, such as economic or vocational experts.

And, the last discovery typically conducted would be expert depositions. Due to the cost of deposing experts, expert depositions are not routinely conducted.

Once all of this discovery is completed, the lawsuit moves onto its final stage. Settlement is often considered at the conclusion of discovery. If the case does not settle, personal injury lawsuits are subject to mandatory nonbinding arbitration in New Jersey. Additionally, mediation is used frequently as a proceeding to facilitate settlement.

If the case does not settle, the parties can consider filing a motion for summary judgment to try to obtain a dismissal before trial. If not, or if the motion is not granted, at that point, the case would be resolved through a trial.

Appellate Division Reverses Dismissal of Plaintiff’s Complaint and Remands Matter for Evidentiary Hearing on the Issue of Charitable Immunity

Plaintiff Laurence Rothschild claims that he suffered injuries after a slip and fall in a puddle of water at a coin show that was held on a premises owned by the Police Athletic League of Parsippany-Troy Hills (“PAL”).  Plaintiff brought a negligence lawsuit against the Township of Parsippany-Troy Hills, PAL and Garden State Coin Stamps Currency Show, Inc. for damages. One of the issues in Rothschild v. Twp. of Parsippany-Troy Hills, 2024 N.J. Super. Unpub. LEXIS 372 (App. Div. March 8, 2024) was whether the trial court made a mistake in finding that PAL was entitled to charitable immunity against such claims.

The trial court had dismissed plaintiff’s complaint against PAL, holding that PAL was entitled to charitable immunity without conducting an evidentiary hearing. On appeal, Plaintiff argued that: 1) PAL failed to present sufficient evidence as to its revenue and funding sources to be entitled to charitable immunity; 2) the judge failed to follow his own orders and conduct an evidentiary hearing on the disputed facts; and 3) the judge mistakenly considered financial records provided well after the close of discovery and lacked authentication and attestation based on personal knowledge.

The Appellate Division noted that charitable immunity is an affirmative defense and an entity seeking charitable immunity must establish that: “1) it was formed for non-profit purposes; 2) is organized exclusively for religious, charitable or educational purposes; and 3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable work.”

When an entity asserts it is organized for charitable purposes, like PAL was in this case, the court must review its funding sources to determine whether a charitable purpose is being fulfilled. The Court further explained that to aid this inquiry, the entity must provide evidence, “to assist in analyzing its [financial records] and determining funds received from charitable contributions” and specify the fee structure for its programs and services and detail its fundraising efforts with specificity.

Here, three days prior to the scheduled hearing to determine whether PAL was entitled to charitable immunity, PAL presented several years of tax returns and other financial documents to support its claim for such immunity.  The Court noted that given these circumstances, Plaintiff lacked sufficient time to review the documents and retain an expert to rebut the information revealed by the financial documents. According to the Appellate Division, the judge should have rescheduled the hearing to give Plaintiffs the chance to do so.

In addition, the Court noted that the judge did not conduct an evidentiary hearing consistent with his own prior orders which robbed Plaintiffs of the opportunity to cross-examine PAL’s witnesses regarding the financial documents. The judge had only heard legal arguments from counsel on the issue of charitable immunity. Lastly, the Court also considered that the documents supplied by PAL were not properly authenticated, as there were no affidavits or certifications based on personal knowledge to authenticate the documents. The Court held that, because Plaintiffs challenged the authenticity and accuracy of these documents, the judge made a mistake in relying upon them to find that PAL was entitled to charitable immunity.

Therefore, the Appellate Division agreed with Plaintiff that the trial court should not have granted PAL charitable immunity based upon the evidence presented and remanded the matter back to the trial court for an evidentiary hearing to resolve the fact disputes about whether PAL was entitled to charitable immunity.

Plaintiff’s Injury Claim Against Municipality Caused by Stepping Into Pothole Fails Due to Lack of Notice of Condition

Plaintiff Reginald Jones was injured when he was attempting to cross in the middle of Isabella Avenue in Irvington.  While stepping off the curb, his foot became stuck in a hole in the street adjacent to the curb.  It caused him to fall and suffer injuries.  The issue in Jones v. Township of Irvington, 2024 N.J. Super. Unpub. LEXIS 176 (App. Div. Feb. 6, 2024) was whether he could pursue a claim against the Township for its failure to remediate the pothole. 

Personal injury claims against public entities are governed by the Tort Claims Act.  To be able to sue a public entity for tort liability for injuries caused by that entity’s property, under N.J.S.A. 59:4-2, the plaintiff must establish the property was in a dangerous condition at the time of the injury and that the condition was either created by an employee of the public entity or the public entity had actual or constructive notice of the condition. However, even if the plaintiff is able to present those proofs, the public entity would not be liable for the dangerous condition of its property “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

There were two issues in this case.  First, the issue was whether the plaintiff had sufficiently established that there was a dangerous condition of the Township’s property at the time of his accident.  Second, the issue was whether the Township had notice that the property was in a hazardous condition.

While the parties conducted discovery, there were no depositions taken and there were no experts retained.  The only evidence of the pothole were 11 photographs of the roadway produced by the plaintiff.  The photographs showed a hole which was surrounded by vegetation growth, cracked, and filled with garbage and vegetation.  According to the plaintiff, the hole measured about 19 inches long, 19 inches wide, and 16 inches deep.

Once discovery concluded, the Township filed for a summary judgment.  It argued that the plaintiff had failed to state a claim that the plaintiff’s injuries were caused by a dangerous condition of its property.  Plaintiff opposed that motion, arguing that the Township had constructive notice of the ‘“large sinkhole.’”

The trial court judge granted the motion for summary judgment.  The judge ruled that plaintiff had failed to present any competent evidence other than speculation and legal conclusion to prove that the hole was in a dangerous condition.  The trial court judge noted that the only evidence in support of the condition of the property were the photographs attached to plaintiff’s answers to interrogatories which were not glossy color photos, nor were they provided with any certification stating who took the photos and when they were taken. Further, the plaintiff failed to prove that the Township had notice of the condition.

Plaintiff filed a motion for reconsideration, which was denied, again on the same basis due to the plaintiff’s failure to prove the Township had prior notice of the condition or had adequate proofs as to its actual condition.  The plaintiff appealed this decision to the Appellate Division.

The Appellate Division found that the trial court correctly ruled that plaintiff had failed to establish liability under the Tort Claims Act due to lack of evidence that the Township either caused the hole in the street or had actual or constructive notice of the hole. In support of the notice argument, plaintiff cited to a Township Public Works website that street sweepers were on Isabella Avenue twice a week.  However, the Court found this information insufficient to show that the Township had constructive notice of the hole. 

The Court also found that plaintiff had failed to offer any expert testimony or proofs showing that there were any reports about the hole which could have established that the Township had actual notice thereof.  Last, the Appellate Division found that the plaintiff had failed to submit any proofs that the Township acted in a “palpably unreasonable manner.”  The Appellate Division agreed with the trial court that the plaintiff’s claim was based on nothing more than ‘“mere speculation.’”

The appeals court also agreed with the trial court that the photographs themselves were insufficient competent evidence due to the lack of foundation as to these photographs.  The plaintiff had failed to offer any competent testimony “concerning the measurements of the hole, who took the photographs, when they were taken, and if they were altered.” 

Hence, the Appellate Division agreed that plaintiff failed to meet his burden under the Tort Claims Act to “establish that the Township had or could have had actual or constructive notice of the hole in the middle of Isabella Avenue.”  Therefore, the Court affirmed the trial court decision, dismissing the lawsuit. 

Capehart Blogs

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Appellate Division Upholds Trial Court’s Use of an Evidentiary Hearing to Dismiss Late Tort Claims Notice on Public Entity
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Appellate Division Upholds Trial Court’s Use of an Evidentiary Hearing to Dismiss Late Tort Claims Notice on Public Entity

Employee’s Mid-Shift Pizza Run Was Outside of the Scope of His Employment to Hold Employer Vicariously Liable for His Car Accident

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