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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.

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.

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.

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 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. 

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.

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 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. 

Plaintiff Tameko Sawyer was in a motor vehicle accident with defendant Randy Lucas in which she claimed to have suffered an injury to her neck, lower back, and shoulder.  Defendant Lucas had been driving a tractor-trailer owned by defendant Hicks Paving, LLC and Hicks Septic & Portable Toilets, LLC on Route 78, when he moved his truck into plaintiff’s lane, striking her car and causing it to slam into the guardrail.  At issue in the case of Sawyer v. Lucas, 2024 N.J. Super. Unpub. LEXIS 53 (App. Div. Jan. 11, 2024) was whether the plaintiff’s Day in the Life video and her recently supplied supplemental medical records should have been barred by the trial court or whether this evidence should have been admitted into evidence and shown to the jury.

A Day in the Life video is a powerful tool of evidence utilized by plaintiffs to show graphically over the course of the day an injured party’s disability and pain and suffering caused by an accident.  This graphic evidence can be more compelling than mere oral testimony describing a person’s medical condition and limitations.

In Sawyer, there was an issue as to the extent of plaintiff’s injuries.  Plaintiff claimed an injury to her neck, lower back, and shoulder.  At the hospital, she was evaluated for head, neck, and back injuries.  Subsequently, she was found to have suffered disc herniations and bulges in her neck and underwent five separate surgeries.  At trial, she did testify about conservative pain management for an older, unrelated back injury.  During the trial, there was disputed testimony about the plaintiff’s back injury and whether it was either caused or exacerbated by the accident.

Prior to trial, the plaintiff had prepared a Day in the Life video.  This video was five minutes long and was recorded about one and a half years after the accident.  However, the video was made just eight days after plaintiff had back surgery, at which time she still required significant assistance with activities of daily living.  Plaintiff contended that the video was relevant “to support her claim for future medical costs and the pain, suffering and loss of enjoyment she endured.”

During trial, the defendants filed a motion to exclude the plaintiff’s Day in the Life video and some recently supplied medical records.  The trial court granted the motions and barred both the video and the recently supplied records from being admissible at trial.

The jury found in favor of the plaintiff. However, Plaintiff was dissatisfied with the amount of the verdict. She moved for a new trial on damages or additur. (Additur is a procedure by which a court may increase the amount of damages awarded by the jury.)  The trial court denied the additur motion, finding that the jury’s verdict did not shock the conscience (which is the standard for increasing or reducing a jury award on damages). 

She then appealed the trial court’s evidentiary rulings and the denial of her motion for a new trial on damages or additur. In reviewing these trial court decisions, the Appellate Division applied the “abuse of discretion” standard in determining if the lower court’s decisions should be upheld.

Upon appeal, the plaintiff argued that the Day in the Life video should have been admitted because it “was necessary to demonstrate her difficulty in day-to-day activities and the inability to present it deprived her the right to show the jury evidence of pain and suffering.” However, the Appellate Division found that the trial court did not abuse its discretion in excluding the videotape. 

The Appellate Division pointed out that the Sawyer video was taken during her recuperation from her back surgery, instead of day-to-day life post-accident.  Hence, it agreed with the trial court that the focus of the video was her recovery from surgery as opposed to her day-to-day life and that it was not an accurate representation of the continued impact of her injuries.  The Court noted that Plaintiff had testified during her trial regarding the extent of her injuries as a result of the accident and the impact of those injuries upon her.

The Appellate Division also upheld the trial court’s ruling in excluding the recently supplied medical records.  The trial court found that there had been plenty of opportunity to produce the records prior to two weeks before trial.  The appeals court found no abuse of discretion in the trial court’s motion to bar these records at trial.

Further, the Appellate Division upheld the trial court’s denial of the motion for a new trial or additur.  The plaintiff had argued that the verdict was against the weight of the evidence such that it constituted “a clear miscarriage of justice.”  Plaintiff argued that based upon her injuries and prolonged treatment, the verdict of $400,000 was “shockingly low.” Plaintiff pointed out that, considering the total medical expenses incurred, more than $600,000, the jury award was disproportionate.

Again, the Appellate Division upheld the trial court’s rulings on the motion for additur and new trial.  It found that there was no abuse of discretion in the denial of either motion.  The Court noted the trial court’s finding that there was contested testimony and that “given the contested testimony, the jury believes some of what each party said.”  The trial court was satisfied that the jury appropriately considered the information and competing arguments and arrived at a “reasoned judgment” based upon the evidence.  Further, the trial court did not find that the damages were so disproportionate “’such to shock the conscience or to be manifestly ‘[u]njust.’” 

Again, the Appellate Division found no abuse of discretion in the trial court’s ruling to deny the motion for additur and a new trial.  Thus, the appeals court affirmed the trial court’s rulings, leaving the jury verdict in place.

Plaintiff Alyssa Molcho was riding her bicycle on Heath Avenue in Ocean Township when she swerved to avoid a car and claimed that her rear tire went into a pothole.  That caused her to fall off her bike and onto the curb, resulting in injuries. The issue in Molcho v. Township of Ocean, 2023 N.J. Super. Unpub. LEXIS 1401 (App. Div. August 11, 2023) was whether the Township could be liable for the condition of its roadway in allegedly causing the plaintiff’s accident.

Prior to the date of the accident, plaintiff had sent an e-mail to the Township’s Director of Public Works, complaining generally about the condition of Heath Avenue.  She sent him a few photographs of potholes in the road but not of the area where her accident occurred.  According to her e-mail, she had contacted public works several times since she moved to the area regarding repaving of the street.

The Director of Public Works responded to plaintiff’s complaint.  He noted that he was aware of the area to which she was referring.  He advised that this area was slated for milling and paving under the Township’s road improvement program.

Ocean Township had a road improvement program for which it would select roads for repaving to be funded out of its budget for capital improvements.  The Township’s engineer would prepare an annual list, based upon inspections performed by the Department of Public Works, grading the Township’s roads on a scale from 0 to 100, with 100 being a perfect road and 0 being the worst road.  This list would then be presented to the Township Manager with a recommendation of the roads to repave, along with the cost estimates for doing so.  In turn, the Township Manager would include the estimates in the Township’s proposed annual budget.  Once the budget was approved, the Township would put the work out for bid.  After the contracts were awarded, the contractor would schedule the work.  This entire process took about two years from inspection to repaving.  This particular road was not repaved until two months after plaintiff’s accident.

At the trial court level, the Township filed a motion for a summary judgment.  That motion was granted by the trial court judge.  The judge found that plaintiff had failed to provide any evidence about this specific pothole that she claims caused her to fall off her bike.  Plaintiff had failed to identify the specific pothole, produced no photos of it, no measurements and any person who saw the pothole in question either before or after plaintiff’s accident. 

The trial court judge held that the plaintiff had failed to establish the existence of a dangerous condition.  For purposes of the motion, however, the judge found that even if the court assumed that plaintiff had presented evidence that the road was in a dangerous condition, she was unable to establish either actual or constructive notice on the part of the Township of the alleged pothole that caused her fall based upon her failure to have ever identified the specific pothole that caused her accident.

The trial court judge rejected plaintiff’s argument that her complaints to the Township about the general condition of her street was sufficient to put the Township on notice. Because she was never able to describe the specific pothole or present evidence describing it, the trial court judge found that “she could not establish the pothole was of such an obvious nature and had existed for a sufficient time to have allowed the Township exercising due care, to have discovered and corrected the dangerous condition.” Without actual or constructive notice of the pothole, the judge found that plaintiff could not establish that the Township’s failure to have patched the pothole and repaved the road sooner was “palpably unreasonable.”

This decision was appealed to the Appellate Division.   The plaintiff argued that the Township had actual or constructive notice of the pothole that caused her fall because it had notice of the general deteriorated condition of the roadway in which plaintiff fell, which was necessitating it being repaved.  Plaintiff argued that the Township “can hardly argue simultaneously that it had no notice of a dangerous condition but nevertheless responded reasonably to it.”

Pursuant to the Tort Claims Act (N.J.S.A. 59:4-2), for a public entity to be liable for an injury caused by a condition of its property, a plaintiff must establish “that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.”  Further, the plaintiff must prove that either an employee of the public entity created that condition or that the public entity had actual or constructive notice of the dangerous condition with “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  Further, this statute states that nothing in this provision shall “impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonably.”

The Appellate Division considered the provisions of N.J.S.A. 59:4-2 and upheld the trial court’s decision.  The Court agreed with the trial court judge “that it is difficult to see how a plaintiff could prove a public entity’s property was in a dangerous condition without identifying specifically the property – here, the pothole that caused plaintiff to fall off a bicycle.”  While in prior case law, complaints of neighborhood residents about a dangerous condition may serve to establish actual or constructive notice to a municipality of that condition, one neighbor’s complaint about a dangerous condition in a particular location does not serve as notice of the same or similar dangerous condition at a different location on the street.

Hence, applying this case law, the Court noted that the plaintiff complained about the condition of another area of the street prior to the accident.  Plaintiff’s complaint putting the Township on notice of an alleged dangerous condition of other parts of her street “did not serve as notice of a dangerous condition of the place where she fell.”

The plaintiff attempted to argue that the Township should have notice of the dangerous condition of its street when it is so full of potholes that any of them may cause an injury.  While the Court accepted for argument’s sake “that a residential street would be in a dangerous condition if it had so many potholes that a bicycle rider trying to avoid one would be dashed into another, plaintiff did not establish that Heath Avenue was riddled with potholes or that a crowd of them littered the street at the time of her fall.”

The Court noted that there was not a description or any pictures of the area where plaintiff claims she fell. Hence, the Court found that she failed to establish the existence of an issue of material fact regarding whether there was a dangerous condition of Heath Avenue and the place where she fell. 

Further, the Appellate Division found that even if it was assumed that she had established a dangerous condition and that the public entity was on notice, she “failed utterly to establish that Ocean Township’s act of selecting parts of Heath Avenue for repaving through its road improvement program or its failure to have repaved those parts sooner was palpably unreasonable.”  Under the palpably unreasonable standard, plaintiff would need to supply proof that the Township’s action was “manifest and obvious that no prudent person would approve of its course of action or inaction.”  The Appellate Division found that the plaintiff had failed to meet this standard as well. 

Hence, the trial court decision was affirmed, upholding the summary judgment order granted to the Township.

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