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Recent Appellate Division Opinion Regarding Spoliation Claim

The Appellate Division on November 27, 2019 rendered an unpublished Opinion on the issue of alleged spoliation of evidence.  The matter is Promise v. Khubani Enterprises, Inc., 2019 WL 6353644 (App. Div. Nov. 27, 2019).

In July of 2014, Plaintiff Betty Promise was reportedly seated in a chair in the basement of the laundry room of her apartment building for approximately 30 minutes before a leg on the chair gave way. The building was owned by Defendant Khubani and the chairs in the laundry room were installed and maintained by Defendant Mac Gray Services.

The chair in question was part of a set of chairs that were connected to each other.  Plaintiff had reportedly been seated on an end chair.  She alleged that the leg of the chair “collapsed,” causing Plaintiff to become caught between the chair upon which she had been sitting and the chair connected to it, on her right, before she fell all the way to the floor. Plaintiff was reportedly alone in the laundry room at the time of this incident, and could not free herself, so she called out for help. Two employees of Defendant Khubani came to Plaintiff’s aid.  One of those employees, named Osuva, was responsible for maintenance work in the building.

Plaintiff claimed injuries to her shoulder, arm, neck, back and knees.

Members of Plaintiff’s family reportedly took photographs of the chair shortly after the incident and gave those photographs to Plaintiff’s attorney. Thereafter, on August 6, 2014, Plaintiff’s counsel wrote to Defendant Khubani advising of his representation and requesting that Khubani “kindly preserve the chair in question as it is evidence in this case.”

Thereafter, on September 16, 2014, while the chair was still in the possession of Khubani, an individual who identified himself as an attorney for Defendant Khubani reportedly photographed the chair.

Mr. Osuva reportedly stated he did not remember seeing the chair after the photographs were taken in September 2014, and said that he did not know to where the chair had been moved.

At some point in 2016, the laundry room chairs were replaced with new ones by Defendant Mac Gray.  Thereafter, the parties realized that the chair was missing, though Defendant Khubani acknowledged that the chair went missing while in its possession.

Plaintiff originally filed a Complaint against Defendant Khubani and the manufacturer of the chair, Caco Manufacturing Corp., and subsequently filed an Amended Complaint including Defendant Mac Gray.

At his subsequent deposition, Mr. Osuva confirmed that a photograph presented to him depicted the chair upon which she found Plaintiff, acknowledging that the left leg of the chair was “a little bent.” He identified another Khubani employee named Sean as an individual who cleaned the chairs and table in the laundry room every morning.  Mr. Osuva said that he had never noticed any problems with the chair, and the Plaintiff had apparently not noticed any, either, while she had been seated on the chair.  Plaintiff said she had never sat in the chairs before herself, but had seen other people sitting in them.

While the Appellate Division stated it was not clear from the record if or when Plaintiff attempted to examine the chair or have an expert do so, Caco, Khubani and Mac Gray all moved for Summary Judgment.  Plaintiff opposed Khubani’s Motion on the grounds that the chair was “destroyed or otherwise disposed of” by Khubani, which required an adverse inference due to spoliation, requiring the same to be left to the jury.

The Trial Judge granted Summary Judgment to Khubani and Mac Gray, finding that while Plaintiff presented a sufficient argument for spoliation, the destruction of the chair was only relevant to a product liability claim on the part of the manufacturer, and neither Khubani or Mac Gray were the designer or manufacturer of the chair.  As such, Plaintiff was required to provide evidence that either Khubani or Mac Gray knew or constructively knew or should have known that the chair was defective. The Court found that Plaintiff produced no such evidence.

Plaintiff thereafter appealed only as to Defendant Khubani, arguing that the spoliation of the chair that allegedly caused the injury raises an inference sufficient to preclude Summary Judgment.  The Appellate Division disagreed and accordingly affirmed.

The Appellate Division noted that there are different remedies for spoliation of evidence which are dependent in part on the timing of the discovery of the spoliation. Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203 N.J. 252, 273-74 (2010). When the alleged spoliation is discovered in time for the underlying litigation, remedies include a “spoliation inference,” which “allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.” Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001)

Further, a Plaintiff may be permitted to file an Amended Complaint to add a fraudulent concealment Count. If added, bifurcation is required because the fraudulent concealment remedy depends on the jury’s assessment of the underlying cause of action. In that instance, after the jury has returned a verdict in the bifurcated underlying action, the jury is then required to determine whether the elements of the tort of fraudulent concealment have been established, and, if so, whether damages are warranted.

Conversely, in circumstances where the spoliation is not discovered in time for the underlying action, Plaintiff may file a separate tort action where he or she is required to establish the elements of fraudulent concealment, and “[t]o do so, the fundamentals of the underlying litigation will also require exposition.” Id. at 408. Specifically, to make a claim of fraudulent concealment, a plaintiff must show:  (1) [t]hat the Defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation; (2) [t]hat the evidence was material to the litigation; (3) [t]hat plaintiff could not reasonably have obtained access to the evidence from another source; (4) [t]hat defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; [and] (5) [t]hat plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.  Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 118 (2008) (citing Rosenblit, 197 N.J. at 406-07).

In Promise, the alleged spoliation of the missing chair was discovered during the underlying litigation. But, because Plaintiff only appealed the Summary Judgment Order as to Khubani, the property owner, any adverse inference about the chair had to be considered in the context of a premises liability/negligence claim.

In a negligence claim, “the landlord of a multiple-family dwelling is subject to the same basic duty as an owner or occupant of commercial property. …” Drazin, N.J. Premises Liability, § 5:2-2 (2019) (citations omitted). An owner of a business property has a duty of care to “discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.” Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982)). If a Plaintiff cannot show that an owner of a business property had actual or constructive notice of a dangerous condition, “[t]he absence of such notice is fatal to Plaintiff’s claims of premises liability.” Ibid. (citations omitted).

Accordingly, in this matter the Appellate Division held that the record revealed no evidence Khubani had actual or constructive notice of a defective chair in the laundry room. Rather, to the contrary, there was evidence that the chairs were cleaned every morning by a Khubani employee, and nothing in the record indicated the employee ever noticed a problem with the chairs or reported a problem with the chairs to Khubani. Further, Plaintiff herself had seen others sitting in the chairs with no issues, and did not notice anything out of the ordinary during the thirty minutes she sat in the chairs.

Therefore, the Court held that any factual dispute that could arise out of any possible adverse inferences regarding the chair, when considered in the light most favorable to Plaintiff, still could not alter the conclusion that Plaintiff did not demonstrate Khubani had actual or constructive notice of a prior problem with the chair. Therefore, Summary Judgment was appropriate as a matter of law.

Thus, this Opinion is an instructive reminder from the Appellate Division on the applicability of the various aspects of a potential spoliation claim, and what a Plaintiff is required to prove in order to pursue the same.

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Appellate Division Holds Property Owner Who Did Not Create Alleged Sidewalk Defect Entitled To Summary Judgment

In Claro v. 323 Firehouse, LLC, 2019 NY Slip Op 07970 (3d Dept 2019), the Plaintiff allegedly injured her left shoulder when she tripped and fell on a raised concrete sidewalk slab.  At the time of the accident, she was walking towards a diner that was owned by one of the defendants.  In fact, the owner of the diner had repaired and replaced the sidewalk outside of the diner prior to the incident.  In addition to the diner, the Plaintiff also sued a firehouse located next door.

The diner and the firehouse both filed motions for summary judgment.  The Supreme Court of Greene County denied the defendants’ motions, indicating that the defendants failed to meet their summary judgment burdens as there were triable issues of material fact as to their negligence.  The defendants, however, appealed the Supreme Court’s decision.

The New York Appellate Division, Third Department, reversed the Supreme Court’s denial of the firehouse’s motion for summary judgment but affirmed the denial of the diner’s summary judgment motion.  In its decision, the Appellate Division discussed that “landowner(s) have a duty to maintain [their] property in a reasonably safe condition, trivial defects are not actionable.” (Gami v. Cornell Univ., 162 AD3d 1441, 1442 (2018), lv denied 32 NY3d 916 (2019)).  Additionally, New York courts have not established a bright-line rule for how much height differential between sidewalk slabs would render a defect trivial.  Rather, courts look to various factors, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury.” Id. at 1442.

The Appellate Division affirmed the denial of summary judgment as to the diner. Specifically, the Court held that the diner failed to establish that it did not create the alleged dangerous condition when he undertook the repairs to the sidewalk.  As to the firehouse, the Appellate Division reversed the trial court’s denial of summary judgment.  In reversing the lower court, the Appellate Division found that the firehouse had not made any changes to the sidewalk or curb area since purchasing the property in 2004.  Additionally, the firehouse was never notified of the diner’s intent to install the new sidewalk.  The contractor hired by the diner had no contract with the firehouse.  Therefore, the Appellate Division held that the firehouse did not create the alleged defect that caused the Plaintiff’s fall and it was entitled to summary judgment.

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A Property Owner Is Absolved Of Liability For Fire Damage To A Neighbor’s Property Caused By A Criminal Arson

In Wakil v. Birdie Properties, LLC, No. 2018-C-1674 (Lehigh County September 11, 2019), the Court of Common Pleas of Lehigh County recently granted a defendant’s motion for summary judgment in a case involving purported arson and subsequent fire damage.  Plaintiff alleged that his property was damaged by a fire that had originated in the back of a rowhome owned by the defendant.  The plaintiff then filed a lawsuit seeking damages for the happening of the fire and resulting damage.

Prior to the fire, the defendant’s tenants regularly kept trash and debris in the backyard.  In May 2017, the defendant received a property maintenance violation from the city for the accumulation of trash and debris.  The fire was ultimately started by an unknown arsonist who set fire to two old mattresses in the defendant’s backyard.  Plaintiff denied any knowledge of anyone starting fires in the neighborhood and denied calling police about any strangers around their home.

The defendant moved for summary judgment arguing 1) the plaintiff failed to establish that the defendant was the proximate cause of the fire; 2) the defendant was not liable for intervening acts of the unknown arsonist; and 3) the plaintiff’s harm was not reasonably foreseeable.  The plaintiff argued that the defendant should have been aware that the condition of its property might avail a third-party the opportunity to commit a crime.  Additionally, the plaintiff argued that the defendant was negligent per se due to the violation it received in May 2017 regarding the excess trash and debris on the property.  The plaintiff argued that the facts created a jury question and the summary judgment should be denied.

The Court ultimately granted the defendant’s motion for summary judgment.  The Court held that the defendant’s actions were not the proximate cause of the fire and that the harm suffered by the plaintiff was not reasonably foreseeable.  Specifically, the Court found no evidence to conclude that the defendant’s property fell into such a state of disrepair as to create a risk of criminal activity.  The Court concluded that it was not reasonably foreseeable that an arsonist would start a fire simply because of a mattress in the defendant’s backyard.  Last, the Court found that the plaintiff’s negligence per se argument was not viable as the defendant received a violation for property maintenance, not a fire safety violation.

In this particular case, a court found that a defendant was not responsible for a fire that started on its property.  The defendant had a legitimate defense in this case as it did not start the fire, nor did the court find that the property was in such distress as to provoke criminal activity. However, this case does open the door in finding liability against a landowner under certain circumstances.  While the court did not find this particular property was in such bad shape, it does not create an automatic defense for any property owner.  A property in worse condition with more trash and debris could open the door for liability against the property owner due to criminal activity.  This holding does not absolve all property owners of criminal activity conducted on the property if the property is in such condition as to avail itself to criminal activity.

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Snow Removal Contractor Benefits From Hills and Ridges Doctrine

The Superior Court of Pennsylvania has upheld the protections of the “hills and ridges” doctrine as applied to a snow removal contractor.  In a recent opinion, dated August 28, 2019 in the case, James M. Hare, Jr. v. Mark Zaffino d/b/a Mark Zaffino Snow Removal, No. 1349 WDA 2018, the Superior Court of Pennsylvania upheld a trial court’s ruling granting summary judgment in favor of the snow removal contractor.

The relevant facts of the case are as follows.  On the morning of January 5, 2015, an employee of Defendant, Mark Zaffino Snow Removal (“Zaffino”) performed snow removal services between 4:25am and 5:30am at the Cobham Park Tank Farm (“Tank Farm”) in Warren, Pennsylvania, after a substantial accumulation of snow and ice that occurred overnight.  Zaffino had entered into a contract with Tank Farm stating that Zaffino would complete all necessary snow removal services before 7:00am after an accumulation of three inches of snow.

Plaintiff, an employee of Tank Farm, arrived at the property at approximately 5:30am.  It was still snowing at the time and there was already approximately 5 ½ to 6 inches of snow on the ground.  Plaintiff fell on an unplowed area of the roadway and fractured his left leg.  Plaintiff then filed a lawsuit against Zaffino, who moved for summary judgment based on the protections of the “hills and ridges” doctrine.  The trial court granted Zaffino’s motion for summary judgment and Plaintiff’s appeal followed.

As long as an owner or occupier of land has not permitted snow and ice from accumulating unreasonably into ridges or elevations creating generally slippery conditions, the owner or occupier is protected from liability under the “hills and ridges” doctrine.  A plaintiff is required to prove the following to overcome the “hills and ridges” doctrine: 1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; 2) that the property owner had notice, either actual or constructive, of the existence of such condition; 3) that it was the dangerous condition, accumulation of snow and ice, which caused the plaintiff to fall.  Generally, a landowner or occupier has a reasonable time to remove snow and ice after notice of the dangerous condition.

In this case, Hare argued that the “hills and ridges” doctrine did not apply to a snow removal contractor.  However, Superior Court disagreed with this theory.  The Superior Court held that it is well established that an independent contractor becomes a possessor of the necessary area of land in order to complete the work that is contemplated under a contract.  Furthermore, the Superior Court held that precedent specifically states that the “hills and ridges” doctrine applies to an independent contractor.  As such, the Superior Court upheld the trial court’s decision regarding the applicability of the “hills and ridges” doctrine to a snow removal company.  The Superior Court affirmed the trial court’s ruling that Zaffino was not liable for Plaintiff’s injuries, because it was still snowing at the time of the fall.  The snow had not accumulated to “hills and ridges” to put Zaffino on notice that it had become a dangerous condition.

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Mandatory, Non-Binding Arbitration Arrives In New York

On May 14, 2019, the New York State Unified Court System announced that it will begin rollout and implementation of a “presumptive” alternative dispute resolution (“ADR”) program [1], effectively bringing mandatory mediation to the New York System court system by the end of 2019.  The Presumptive ADR program is being implemented and modeled from similar practice in other jurisdictions, with a special focus eyeing New Jersey, where an automatic presumptive mediation program has been in place for more than a decade [2].  Local protocols and best practices are being developed by the Administrative Judges of each of New York’s 13 Judicial Districts to facilitate the process.

For the Supreme Court, Kings County in Brooklyn, the new rules for presumptive mediation are set to take effect on October 1, 2019.  All cases in Brooklyn where the Request for Judicial Intervention is filed on or after October 1, 2019 will be required to participate in the mediation program.  Mediations will begin in November, and will be scheduled 90 days from the date of the RJI.  Attorneys will be given 30 minutes of no-cost mediation, after which free half-hour the cost will be $400 per hour.  There will be an opt-out provision, available by order to show cause or by an in-person application to the mediator, if all parties agree that the mediation would not be feasible [3].  Court officials are estimating that nearly 20,000 mediation conferences will be held on Kings County civil cases in the first year [4].

Hon. George Silver, deputy chief administrative judge for the NYC courts has expressed his optimism that Presumptive ADR will benefit litigants and the court system alike, freeing up judicial resources for the more difficult cases.  “What we’re really doing, and it’s to the benefit of everyone, is we’re looking at cases earlier than later.  Certainly we know that there are cases that will never settle and will have to go to trial, but there certainly are that we can identify, and if we can settle 15 to 20 percent of cases [in Presumptive ADR], that leaves room for judges and everyone to work on more difficult cases.” [5].

 

Sources:

[1] A copy of the press release is available herehttps://ww2.nycourts.gov/sites/default/files/document/files/2019-05/PR19_09_0.pdf

[2] “New York Courts to Begin Presumptive Mediation for Civil Cases Later This Year”, New York Law Journal, May 16, 2019 by Dan M. Clark  https://www.law.com/newyorklawjournal/2019/05/16/new-york-courts-to-begin-presumptive-mediation-for-civil-cases-later-this-year/

[3] “Dear Colleagues: Kings County Mediation Rules”, open letter dated August 28, 2019 by NYSTLA President Michele S. Mirman

[4] “Brooklyn Supreme Court expects 20,000 cases to be mediated each year”, Brooklyn Daily Eagle September 4, 2019, by Rob Abruzzese.

[5] “Columbian Lawyers get a crash course in new presumptive mediation program”, Brooklyn Daily Eagle September 6, 2019, by Rob Abruzzese.

New York’s Office of Court Administration has announced its intent to adopt the Uniform Mediation Act (“UMA”) as promulgated by the National Conference of Commissioners of Uniform State Laws,

[https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2019-CivilPractice.pdf]  The new rules regarding mediation will become Article 74 of the CPLR and be known as the ‘Uniform Mediation Act’.  There will be a waiver provision, provided in CPLR §7404

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Recent Appellate Division Opinion Regarding Guidance on Admissibility of Evidence at Trial and Trial Tactics

The Appellate Division on September 12, 2019 rendered an unpublished Opinion on several trial-related issues.  The matter is Gomez v. Fritsche, 2019 WL 4313116.

This matter arose from a motor vehicle accident.  The jury found Defendant 100% negligent for causing an intersectional accident, and awarded Plaintiff the sum of $115,000.00.  Defendant appealed the denial of her Motion for a New Trial, arguing that the cumulative prejudice from several errors – specifically, the Trial Court barring evidence that Plaintiff had previously sustained permanent injuries; allowing the investigating police officer to opine as to fault for the accident; barring defense counsel from objecting during Plaintiff’s counsel’s closing; and Plaintiff’s counsel’s improper remarks during summation, deprived Defendant of a fair trial.  The Appellate Division agreed, in part, vacated the verdict, and remanded for a new trial.

As to the issue of evidence of Plaintiff’s previous permanent injuries, there was evidence that Plaintiff had been involved in prior motor vehicle accidents in 1994 and 2000.  A doctor had written in a report that Plaintiff suffered permanent injuries to her neck and back which would result in ongoing pain and limitation regarding both body parts.  The Trial Court granted a Motion in limine filed by Plaintiff to preclude defense counsel from raising the same, finding that the probative value of this evidence was outweighed by the risk of undue prejudice.  The Trial Court indicated that defense counsel would not be allowed to utilize this evidence even if Plaintiff testified that she never had any prior problems with her neck or back.

As to the issue of the police officer, the officer was allowed to read his conclusion in the police report to the effect that Defendant failed to yield to Plaintiff and was inattentive in not ensuring that the roadway was clear prior to entering the same.

During summation, Plaintiff’s counsel referenced the fact that while Defendant had testified, the Defendant thereafter left and was not present in Court during the closing.  Defense counsel objected, but the Trial Judge advised that “I should’ve mentioned this earlier, there’s no objections in closing argument.  Now that you’ve done it, I suggest it’s… closing argument.  He’s entitled to argue and if he wants to put that inference out there and draw an inference it’s fair game.  I don’t know why she’s here, she’s not here, but you know, I don’t understand the objection and it’s overruled.”

Thereafter, defense counsel apparently heeded the Trial Judge’s admonition not to object during Plaintiff’s closing statement, even when Plaintiff’s counsel then specifically invited the jurors to place themselves in Plaintiff’s situation.

The Appellate Division began by noting that as a general matter, trial courts have considerable discretion in determining whether evidence is relevant, and, if so, whether it should be excluded under N.J.R.E. 403 due to the fact that the probative value of the evidence is substantially outweighed by the risk of undue prejudice, confusion of issues or misleading the jury.  Wymbs v. Twp of Wayne, 163 N.J. 523, 537 (2000).

In this regard, the Appellate Division observed that the prior reports were as a threshold matter hearsay, inadmissible except as provided in N.J.R.E. 802.  Pursuant to Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985), expert reports are not statements of a party and therefore cannot be treated as an admission simply because they have been furnished in discovery by that party.

The Appellate Division noted that the defense did not intend to call as a witness the doctor who wrote the old report. Accordingly, it held that given the foregoing, the Trial Court acted within its broad discretion in prohibiting Defendant from utilizing the same.

However, regarding the Trial Court’s ruling permitting the police officer to render his opinion regarding the fault for the accident, the Appellate Division found otherwise.

While police reports are admissible as a business record and as a public record, if properly authenticated, if a proponent seeks to admit the report or an officer’s trial testimony regarding the same to prove the truth of something contained therein, a separate hearsay exception is required.

Significantly, New Jersey courts have prohibited the admission of police testimony as to the issue of fault.  Indeed, for a party to present a police officer as an expert, that officer must be properly qualified as an expert pursuant to N.J.R.E. 702.

Generally, police officers can present lay opinion testimony, but the same “is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.” State v. McLean, 205 N.J. 438, 460 (2011).  Thus, an officer is not permitted to provide opinion testimony at trial when that opinion is based primarily on the statements of others.  Neno v. Clinton, 167 N.J. 573, 585 (2001).

While Plaintiff argued that the officer never use the word “fault,” the Appellate Division indicated that the testimony as a whole made clear that in the opinion of the officer the Defendant was at fault at the time of the accident.

Indeed, Plaintiff’s counsel then “compounded the error” by emphasizing the same during his closing, telling the jury that the Defendant did not want to jurors to hear the police officer’s testimony.

Finally, turning to the issues regarding Plaintiff’s counsel’s closing argument, the Appellate Division cited State v. Farrell, 61 N.J. 99, 106 (1972) and State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997) for the proposition that challenging an adversary’s improper closing remarks after the closing, rather than during it, fails to timely alert the Court to the irregularities and provide the court with an opportunity to address and cure the same.

To the contrary, a party is precluded from claiming that it was harmed absent timely objection during the closing argument.  Farrell, 61 N.J. at 106.

Accordingly, the Appellate Division held that Trial Judges should not admonish counsel against making “appropriate” contemporaneous objections, expressing confidence that the bench can in appropriate circumstances promptly deal with any abusive conduct arising from the ability to object during an adversary’s closing.

Finally, the Appellate Division turned to consideration of specific remarks made by Plaintiff’s counsel during summation.  First, that regarding the Defendant not returning to the courtroom after testifying because Defendant – unlike Plaintiff – did not want to “see the case through.”  Second, the invitation for the jurors to place themselves in Plaintiff’s situation as to why jurors would or would not choose to undergo an epidural injection.  And third, the suggestion that defense counsel did not want the jury to hear the police officer’s conclusion about the accident.

Counsel are generally allowed significant latitude in closing arguments.  Bender v. Adelson, 187 N.J. 411, 431 (2006).  However, arguments may not include unfair and prejudicial appeals to emotion.  Jackowitz v. Lang, 408 N.J. Super. 495, 504-505 (App. Div. 2009).  Further, closing arguments must be based in truth and “counsel may not misstate the evidence nor distort the factual picture.”  Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 534 (Law Div. 1996).  Indeed, in Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004), the Court made clear that counsel may not disparage opposing counsel, or a witness, or suggest an intent to deceive the jury or deliberately distort the evidence.

Indeed, Botta v. Brunner, 26 N.J. 82, 94 (1958) even describes the prohibition against asking jurors what they would expect to receive if they were in a similar position to Plaintiff as the “Golden Rule.”

Accordingly, the Appellate Division found that while these issues may have been capable of being cured had a timely objection been made, since the Trial Judge had banned objections, this was impossible.

Significantly, the Appellate Division noted that the cumulative effect of small errors may collectively be so great as to warrant a new trial.  Pellicer ex rel Pellicer v. St. Barnabas Hospital, 200 N.J. 22, 53 (2009).  With the possible exception of the police officer’s improper opinion testimony, none of the issues addressed above would have warranted a new trial on their own. However, cumulatively, they did.  Accordingly, the Order of Judgment was vacated and the matter remanded for a new trial.

Thus, this Opinion is an instructive reminder from the Appellate Division on several key issues, including when evidence of prior injuries may be admissible, and how; the limits to which a police officer will generally be permitted to testify; and the proper process to be followed by both parties during closing arguments at trial.

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Important Appellate Division Reported Opinion Regarding Disclosure of Investigatory Materials Under The Work Product Doctrine

The Appellate Division on June 6, 2019 rendered a reported Opinion on the issue of when disclosure of materials prepared or collected prior to the institution of litigation is required.  The matter is Paladino v. Auletto Enterprises, Inc. t/a Auletto Caterers, 2019 WL 2375475.

On October 9, 2015, Plaintiff was a guest at a wedding reception held at Defendant’s catering facility when she fell and injured her left knee, lower back, and right ankle while walking down a staircase.  She immediately reported the accident to Defendant, such that Defendant prepared an accident report that same day, and shortly thereafter gave notice to its insurance company. The insurance company promptly retained an investigator.

Two weeks after the accident, on October 22, 2015, a senior claims examiner spoke with Plaintiff, and sent Plaintiff a letter advising that an investigator was looking into the accident. The investigator was instructed to photograph the accident scene and obtain statements from both Plaintiff and representatives of Defendant.

The claims examiner later certified that the intent in retaining the investigator was to “prepare a defense for [Defendant] in the event that [Plaintiff] filed a lawsuit,” and further certified that as the insurer was not disputing coverage, it did not hire the investigator to look into coverage issues.

The investigator arranged to meet with and take a recorded statement from Plaintiff on October 26, 2015. However, on the appointment date, the investigator was contacted by an attorney who advised that he had been retained by Plaintiff, such that the appointment was canceled. The next day, Plaintiff’s recently retained counsel sent a letter of representation to the insurance carrier.

Therefore, on October 26, 2015, the investigator inspected Defendant’s catering facility.  In the process, the investigator took photographs of the scene and prepared a diagram of the area.  The investigator also obtained recorded oral statements from two of Defendant’s employees, and approximately one week later also obtained a recorded oral statement from a third employee.

On December 3, 2015, Plaintiff’s counsel and a photographer visited Defendant’s premises for a documentary inspection. Thereafter, in January 2016, Defendant’s insurance carrier provided Plaintiff’s counsel with a copy of video surveillance that had actually captured Plaintiff falling on the staircase, as well as a copy of the incident report.

Plaintiff and her husband subsequently filed suit and Defendant filed an Answer.  Thereafter, in Answers to Interrogatories, Defendant disclosed that the investigator had taken photographs of the staircase, had prepared a diagram, and had obtained recorded statements from three of Defendant’s employees, none of whom witnessed Plaintiff’s fall. Significantly, asserting that they were protected by the work-product privilege, Defendant did not produce the photographs, diagram, or statements,

Plaintiff filed a Motion to Compel the production of the photographs and the recorded statements by Defendant’s employees, having withdrawn a prior request for the diagram prepared by the investigator,

Without hearing oral argument, the Trial Court granted Plaintiff’s Motion, relying on Pfender v. Torres, 336 N.J. Super. 379 (App. Div. 2001), on the grounds that because the photographs and statements were obtained by the insurance carrier before litigation, the carrier “may have” had interests apart from protecting its insured’s rights.  Defendant sought leave to appeal the Order compelling the production. The Appellate Division initially denied leave, but the Supreme Court granted leave to appeal and remanded the same to the Appellate Division “to consider [it] on the merits.”

In the appeal, Defendant made two arguments. First, it contended that the Court should reject the rationale of Pfender and, instead, adopt the reasoning set forth in Medford v. Duggan, 323 N.J. Super. 127 (App. Div. 1999). Second, Defendant- applying the standard set forth in Medford– urged that the Appellate Division should reverse because Plaintiff did not satisfy the requirements of Rule 4:10-2(c).

 The Court began by noting that the Work Product Doctrine and Rule 4:10-2(c) should be understood as exceptions to New Jersey’s general policy of “encouraging full and open discovery of all relevant information.” 2019 WL 2375475 at Page 2.  In most situations, parties to litigation have the right to discovery of all relevant information concerning the action. See Rule 4:10-2(a).

One of the recognized privileges that is an exception to that general policy is the Work Product Doctrine. See O’Boyle v. Borough of Longport, 218 N.J. 168, 188 (2014). That doctrine was first recognized by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947).

 The Work Product Doctrine is set forth in Rule 4:10-2(c), which states:

“[A] party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable under R[ule] 4:10-2(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis added.)

Defendant argued that a conflict exists in precedent concerning the scope of the Work Product Doctrine as discussed in Pfender compared to Medford. Defendant argued that Pfender essentially established a “bright line rule” that material obtained by an insurer before litigation is not protected by the Work Product Doctrine. Defendant urged that Medford established a “case-by-case test,” whereby material prepared by or for an insurer can be protected under the Work Product Doctrine if it was prepared in anticipation of litigation and the party seeking the same cannot establish a substantial need for it.

While the Appellate Division indicated that it did not find Pfender and Medford to be irreconcilable, as Defendant asserted, it did indicate that “the rationale and holding of Pfender needs to be clarified and properly understood as consistent with a case-by-case analysis.”  2019 WL 2375475 at Page 4.

 The Appellate Division thus stated that:

“[W]e clarify that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, as set forth in Rule 4:10-2(c), there is a multi-part, fact-specific test. The first inquiry is whether the materials were prepared or collected in anticipation of litigation or trial by another party or that party’s representative. See R. 4:10-2(c). The representative can be an ‘insurer or agent’ of the party. Ibid. If the materials were prepared in anticipation of litigation or trial, to obtain the materials, there is a two-part standard that must then be satisfied. See ibid. The party seeking the materials must (1) show a substantial need for the discovery; and (2) demonstrate that he or she is unable, without undue hardship, to obtain the substantial equivalent of the materials. Ibid. See also Carbis Sales, Inc., 397 N.J. Super. at 82, 935 A.2d 1236 (first citing Medford, 323 N.J. Super. at 133, 732 A.2d 533; then citing Pfender, 336 N.J. Super. at 391, 765 A.2d 208). Moreover, if such work-product materials are compelled to be produced, “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” R. 4:10-2(c). 2019 WL 2375475 at Page 5.

Significantly, the Court also noted that:

“The scope of the work-product doctrine has other limitations. It has long been established that the doctrine only protects documents or prepared materials; accordingly, it does not protect facts. See Hickman, 329 U.S. at 513, 67 S.Ct. 385; R. 4:10-2(c); O’Boyle, 218 N.J. at 188-89, 94 A.3d 299. Moreover, in considering statements, the doctrine does not protect statements that are prepared in the normal course of business. See Miller v. J.B. Hunt Transp., Inc., 339 N.J. Super. 144, 148, 770 A.2d 1288 (App. Div. 2001) (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 554, 691 A.2d 321 (1997)). Finally, we have previously clarified that the protection of a statement will usually be lost if the person who gave the statement is later called to testify at trial. See Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 100, 599 A.2d 528 (App. Div. 1991). In Dinter, we held that ‘where a fact witness testifies for an adverse party, the factual statement of that witness must be produced on demand for use in cross-examination as a potential tool for impeachment of credibility.’” 2019 WL 2375475 at Page 5.

Accordingly, the Appellate Division in this matter reversed the Order compelling Defendant to produce the photographs and recorded witness statements, and remanded with a specific instruction to the Trial Court to conduct further proceedings and apply a “case-by-case, fact-specific analysis” to determine whether the photographs and witness statements are within the ambit of the Work Product Doctrine.

Thus, this Opinion is a very helpful elaboration by the Appellate Division on exactly under what circumstances materials secured by an insurance company prior to litigation are subject to disclosure. The specific facts of a given case will accordingly determine whether disclosure is required.

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Third Circuit Rules That a Prior Stacking Waiver Will Apply To a Newly Added Insured Vehicle

The United States Court of Appeals for Third Circuit recently upheld a Magistrate Judge’s ruling that held that a waiver of stacking uninsured/underinsured (“UM/UIM”) coverages did apply to a vehicle that was added to an insured’s policy after the insured had already signed a stacking waiver.

In Kuhns v. The Travelers Home and Marine Insurance Company, No. 17-3371 (3rd Cir. January 3, 2019) the appellants, Wayne and Shannon Kuhns had an insurance policy with the appellees, The Travelers Home and Marine Insurance Company that covered three of their vehicles. The Kuhnses signed a stacking waiver at the time of obtaining the policy. The Kuhnses then obtained a fourth vehicle a few months later. This vehicle was added to the already existing policy with Travelers. No new stacking waiver was provided to the Kuhnses by Travelers at the time of adding the new vehicle.

The Kuhnses then sought to allow stacking of their UM/UIM coverages since no new stacking waiver was provided. The issue before the Magistrate Judge was whether the stacking waiver applied to the new vehicle that was added to the policy after the Kuhnses already signed a stacking waiver for that policy. The Magistrate Judge held that the waiver did apply and the Appellate Division agreed. Therefore, the Kuhnses do not get the benefit of stacking their UM/UIM coverages.

Stacking insurance is the ability to combine coverages for multiple vehicles under the same policy to provide an insured with greater coverage than that for a single vehicle. For example, an insured may have three vehicles listed under a single policy and each vehicle has $100,000 in UM/UIM benefits. The insured would be entitled to $300,000 in UM/UIM benefits ($100,000 multiplied by three vehicles) if the insured does not waive stacking. However, the insured would only be entitled to coverage under a single vehicle, or $100,000 under this example, if the insured does waive stacking.

The Magistrate Judge based her ruling on Sackett v. Nationwide Mutual Insurance Company, 919 A.2d 194 (Pa. 2007 (“Sackett I”) and Sackett v. Nationwide Mutual Insurance Company, 940 A.2d 329 (Pa. 2007) (“Sackett II”). Sackett II held that a stacking waiver that was signed before the addition of a new vehicle is applicable to the new vehicle if there is a “continuous after-acquired-vehicle clause.” An after-acquired-vehicle clause allows for coverage of an existing policy to extend to a newly added vehicle if the clause is found to be “continuous.”

The Kuhnses’s policy will automatically extend coverage to a new vehicle if the following three conditions are met: 1) The vehicle was acquired during the policy period; 2) the policy holder asks Travelers to insure it within 30 days; 3) no other insurance policy provides coverage for that vehicle. The Magistrate Judge found these conditions made the after-acquired-vehicle clause “continuous,” thereby extending the stacking waiver to the new vehicle.

The Kuhnses did not contend that they signed a valid stacking waiver, but rather contended that the new vehicle was added to the policy via an amended declaration page and not the after-acquired-vehicle clause. Additionally, the Kuhnses argued that, even if the new vehicle was added via the after-acquired-vehicle clause, this clause was not “continuous” as it required three conditions to extend coverage.

The Appellate Division held that the Magistrate Judge was correct in rejecting these arguments as Sackett II had already clearly ruled that this type of after-acquired-vehicle clause is “continuous” despite the conditions. The Appellate Division also held that the Kuhnses’s declaration page argument failed, because vehicles are generally added to policies by the after-acquired-vehicle clause according to the Pennsylvania Insurance Commissioner as opposed to an amended declaration page.

This ruling is significant as it protects an insurer by limiting coverage only to what an insured had elected. An insurer and insured can rely on a valid after-acquired-vehicle clause to quickly add a new vehicle to an insurance policy without the concern that an insured may be entitled to more coverage than the insured elected. Both parties will get the coverage that each had bargained for.

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Appellate Division Finds Big Apple Maps Did Not Provide City With Legally Adequate Notice Due to Minor Discrepancy Between Plaintiff’s Testimony and Map’s Sidewalk Defect Description

Typically, in New York City, the Big Apple Pothole and Sidewalk Protection Committee (“Big Apple”)’s maps provide legally sufficient notice to the City of dangerous potholes or sidewalk conditions. See https://www.nystla.org/index.cfm?pg=Pothole for more information. Big Apple was established in 1982 by the New York State Trial Lawyers Association to map the City’s 13,000 miles of sidewalks in New York that were capable of causing personal injury. See https://www.nytimes.com/2009/01/04/nyregion/04pothole.html for more information.

These maps were presented annually to the City of New York Department of Transportation (“DOT”) to provide them with the current status of the various sidewalks in the City. For many years, the Big Apple maps forced the City of New York to pay out millions of dollars in claims for personal injuries sustained on City sidewalks. However, in De Zapata v. City of New York, the Appellate Division of the Supreme Court recently decided that the City did not have the proper notice.

Plaintiff was injured on January 24, 2014 when she fell while walking along a public sidewalk in front of a property located at 96 Hemlock Street, Brooklyn, NY. The Plaintiff filed a Notice of Claim against the City of New York on April 16, 2014, asserting a claim against the City for physical injuries from the hazardous snow and ice that was in the depressed and broken section of the sidewalk.

The City moved to dismiss, arguing that it did not have prior written notice of the alleged icy condition and that, therefore, it lacked constructive notice of any icy condition. In opposition, Plaintiff pointed to her §50-h testimony, General Municipal Law §50-h, photographs, and the map served upon the DOT by Big Apple. Specifically, Plaintiff contended that the Big Apple map constituted prior notice and constructive notice of the defect.

The Administrative Code of the City of New York § 7-201(c), specifically limits the City’s responsibility over municipal streets and sidewalks by allowing for liability only if the City had actual notice of the defect at that location. Katz v. City of New York, 87 N.Y.2d 241, 243. Therefore, the Plaintiff must plead the City had prior written notice of the defect in order to maintain an action against the City. Katz, supra, 87 N.Y.2d at 243. Importantly, “Transitory conditions present on a roadway or walkway such as debris, oil, ice, or sand have been found to constitute potentially dangerous conditions for which prior written notice must be given before liability may be imposed upon a municipality.” Farrell v. City of New York, 49 A.D.3d 806, 807.

With that legal background, the Appellate Division held that the City was entitled to summary judgment and a dismissal of all of Plaintiff’s claims against it. The basis for this decision was that the Big Apple map only indicated that the sidewalk abutting the property located at 96 Hemlock Street, Brooklyn, NY had an “[e]xtended section of raised or uneven sidewalk.” However, the Court held that the true defect, as established throughout the case, was the existence of a “hole,” “ditch,” or “icy condition” that Plaintiff claimed to have caused her fall. Therefore, the Court found that the Big Apple map did not provide adequate notice of the sidewalk’s dangerous condition to the City.

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New York Court of Appeals Finds that Plaintiffs Moving for Partial Summary Judgment on Liability are not Required to Prove the Absence of their Own Comparative Negligence

Plaintiff Carlos Rodriguez, a garage utility worker for the New York City Department of Sanitation, was standing between a parked car and a rack of tires when a sanitation truck, which was trying to back into a garage, crashed into the front of the parked car, propelling it into plaintiff and pinning him up against the tires.  The plaintiff sued the City of New York for negligence and moved for partial summary judgment on liability.  The Supreme Court denied plaintiff’s motion and the First Department of the Appellate Division affirmed, finding that plaintiff had failed to make a prima facie showing that he was free of comparative negligence.  The question in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), was whether plaintiffs moving for partial summary judgment in a comparative negligence action must establish the absence of their own comparative negligence.

The Court of Appeals answered this question in the negative: “To be entitled to partial summary judgment[,] a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault.”  Rodriguez, 31 N.Y.3d at 315, 324-25.  In so holding, the Court of Appeals recognized that under New York’s comparative negligence statute, a plaintiff’s culpable conduct “shall not bar recovery” because it “is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence”; rather, such conduct only serves to diminish “the amount of damages otherwise recoverable.”  Id. at 317-19.  The Court also noted that since a plaintiff’s culpable conduct is an affirmative defense to be pleaded and proved by the party asserting it, a rule requiring plaintiffs to disprove their culpability would flip the burden of proof and would thus be inconsistent with the plain language of the comparative negligence statute.  See id. at 318.  The Court found that such an outcome would not be consistent with the legislative history of the comparative negligence statute, which indicated that the law was designed to bring “New York law into conformity with the majority rule and represent[ed] the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff.”  Id. at 321.

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