New Jersey
"QUICK HITTERS” Legal Update

Summer Edition 2007

Introduction

Bennett, Bricklin & Saltzburg LLP is committed to providing our clients with high quality yet cost effective civil litigation services. From the inception of the firm in 1946, our priority has been service. Many of our clients have retained us for 20, 30, and 40 or more years. The firm’s litigators are experienced in the areas of insurance coverage and bad faith, special investigations and fraud, premises liability, automobile insurance and liability, employment law, aviation law, subrogration and medical malpractice. Our “Quick Hitters” Legal Update is designed to give New Jersey insurance professionals a quick overview of the most recent New Jersey decisions involving the insurance industry.

Negligence - Premises Liability

Willick v. Starbucks Coffee, No. A-1585-05T1 (N.J. Super. App. Div. Sept. 25, 2006) - Plaintiff appealed order dismissing claims against Starbucks. Plaintiff's decedent died following an accident caused by a motor vehicle which crashed through the store hitting plaintiff who was seated at a table. Plaintiff also sued driver and Ford claiming negligent operation of the motor vehicle or defect with cruise control. Court dismissed claims against Starbucks holding that under totality of circumstances, aberrant emergency situations beyond Starbucks' control were not reasonably foreseeable.

McCann v. Weight Watchers, No. A-0570-05T2 (N.J. Super. App. Div. Sept. 26, 2006) - After attending a Weight Watchers meeting, plaintiff slipped and fell on alleged icy spot on last step leading from building's main entrance and walkway. Weight Watchers was a tenant of the building. Judgment was entered in favor of Weight Watchers. Court held that Weight Watchers owed no duty to plaintiff to clear and remove snow where it was only a weekly tenant of a single meeting room in a building occupied on a regular basis by others.

lrizarry v. Pathmark Stores Inc., No. A-4307¬05T2 (N.J. Super. App. Div. Jan. 31, 2007) - Plaintiff appealed trial court grant of summary judgment to Pathmark where plaintiff slipped and fell on stairs in the restricted loading area of the supermarket. Although plaintiff had no idea what caused her fall, plaintiff’s expert opined that the stairs lacked anti-slip substance in violation of BOCA and OSHA regulations. Court held that although violations of BOCA or OSHA regulations may not constitute negligence per se, such evidence is sufficient to raise a genuine issue of material fact regarding a premises owner's duty and breach of duty.

Avala v. Rolden, No. A-4136-05T5 (N.J. Super. App. Div. Jan. 30, 2007) - Plaintiff appealed trial court decision granting summary judgment to apartment complex and the denial of her motion to extend discovery. Plaintiff was a visitor to the apartment complex a few days after it had snowed. When she proceeded through the entrance door she traversed a flight of stairs and slipped and fell on a water spot at the top of the landing. Plaintiff did not produce any evidence of the length of time the water spot existed nor did she produce an expert report. Court affirmed grant of summary judgment as there was a dearth of evidence to allow a reasonable jury to find that the landlord had actual or constructive knowledge of a dangerous condition.

Walker v. Vizzoni Group, No. A-2562-05TI (N.J. Super. App. Div. Jan. 17, 2007) - Plaintiff was knocked unconscious when she hit her head on a backhoe at a construction site. The backhoe was 22 feet long, 10 feet high, bright yellow and was in stowed position for over a day prior to the accident. The arm of the backhoe extended over the driveway where plaintiff was injured. Court held that no reasonable fact finder could conclude that the manner in which this backhoe was parked, or the failure to specifically warn plaintiff of its presence, breached any duty owed. Summary judgment was affirmed.

Espinal v. 60 Cedar Lane Inc., No. A-1955-05T5 (N.J. Super. App. Div. Jan. 12, 2007) - Plaintiff sought reversal of summary judgment to land owner over claim of design defect to parking lot. Plaintiff did not offer expert evidence but rather relied on landowner's subsequent remedial measures as evidence of negligence. No other design defect evidence was offered. Defendant countered with uncontroverted evidence that he neither designed nor constructed the parking lot. Summary judgment was affirmed.

Negligence - Tort Claims Act

Souhlakis v. N.J. Sports and Exposition Authority, No. 31-2-6781 (N.J. Super. App. Div. Mar. 13, 2007) - Plaintiff was injured when he fell on a discarded bottle in defendant's parking lot after a preseason game at Giants Stadium. Appellate Division affirmed grant of summary judgment to defendant as plaintiff could not establish a prima facie case of premises liability under the Tort Claims Act because he did not show that the property was in a dangerous condition or that defendant had sufficient actual or constructive notice of any dangerous condition to have taken remedial measures.

Mauro v. Trenton Thunder Baseball Club, No. 31-2-6804 (N.J. Super. App. Div. Mar. 16, 2007) - Infant plaintiff sued for injuries sustained while attending a baseball game where she was hit by an overthrown ball as outfielders warmed up with each other between games. Appellate Division affirmed grant of summary judgment to defendants as the offering of protective seating and posting warning signs fully complied with the limited duty of care owed to plaintiff as a spectator of a professional baseball game.

Negligence – Construction

Francis v. Burnett, No. 31-2-6748 (N.J. Super. App. Div. Mar. 9, 2007) – Sub-contractor plaintiff, hired to install siding, sued property owners, framing contractor and railing subcontractor after falling to the ground from a ladder three stories high. Railings had been delivered to the home and plaintiff contended he would not have fallen had the railings been installed prior to the siding work. Summary judgment to all defendants affirmed as property owners are not responsible for establishing the progress of work, and the imposition of a duty to protect the safety of other employees of a sub-contractor is neither fair nor attains any particular public policy objective.

Negligence - Social Guest

Agnelli, Sr. v. Agnelli, No. 31-2-6436 (N.J. Super. App. Div. Feb. 8, 2007) - Plaintiff was injured when he fell from a ladder at defendant/sister-in-law’s premises, where he was trying to help re-attach a gutter. Trial court categorized plaintiff as a social guest and granted defendant summary judgment. Appellate Division reversed and remanded as there was a claim that the ladder in question was faulty and testimony of defendant and her daughter established that both felt that the ladder was unsafe prior to plaintiff's fall. The categorization of plaintiff as a social guest was upheld.

Insurance Coverage

Shelby Casualty Ins. Co. v. H.T., No. A-5424-05T3 (N.J. Super. App. Div. Mar. 26, 2007) - The inferred-intent rule, which precludes as a matter of law insurance coverage for a sexual assault committed by an adult against a young child, does not apply to a perpetrator under 14 years of age. A factual determination must be made on a case-by-case basis to determine the perpetrator's subjective intent.

Lane v. Tishman Constr. Corp. of N.J., No. 23-2-7053 (N.J. Super. App. Div. Apr. 11, 2007) - Plaintiff, a union ironworker foreman employed by a subcontractor, was injured when a load of structural steel shifted on a flatbed trailer causing the steel to roll onto him. Appellate Division affirms trial court ruling that insurer must provide defense and indemnification to its insured, the safety consultant on the job in question, and primary liability coverage to the project manager and owner under its CGL policy. Insurer unsuccessfully argued that claims triggered "professional services" exclusion and that the "other insurance -excess coverage" endorsement was ambiguous.

Consumer Fraud

Mullakandova v. C&K Imports Inc., No. A¬I059-05T2 (N.J. Super. App. Div. Oct. 5, 2006) - ¬Plaintiff appealed trial court decision denying claim for attorney's fees under the Consumer Fraud Act. Trial court held that there was no colorable money claim, which is essential to a consumer fraud action, because jury found no damages even though violation of consumer fraud law was found. The ruling was reversed on appeal because plaintiff obtained a directed verdict on some of her claims. As a matter of law, therefore, plaintiff was entitled to attorney's fees.

Carboni v. Massimo, No. A-2068-05T3 (N.J. Super. App. Div. Jan. 31, 2007) -Defendant¬-contractor appealed a jury verdict finding Consumer Fraud Act violations, arguing that the Act did not apply because plaintiffs acted as their own general contractor. The contract between homeowner - plaintiffs and contractor - defendant listed defendant as contractor, required defendant to furnish all materials and precluded any deviation without written orders from defendant. Court reasoned that defendant’s claim that the contract is exempt from the Act because plaintiffs prepared their own plans is antithetical to the purpose of the Act and its concomitant regulations and affirmed the judgment.

Invasion of Privacy – Damages

Del Mastro v. Grimado, No. 36-2-6834 (N.J. Super. App. Div. Mar. 20, 2007) - Trial Judge awarded plaintiff $85,000 in compensatory damages and $425,000 in punitive damages where defendant intentionally utilized private photographs of plaintiff for "hurtful, poisonous reasons which can not be justified." Appellate Division affirmed the award based on theory of invasion of privacy.

Discovery

Sconfienza v. DeFeo, No. A- 6753 - 04TI (N.J. Super. App. Div. Sept. 28, 2006) - Plaintiff appealed trial court decisions denying motion to enlarge discovery and make late amendments to interrogatory answers. Appellate Court, noting that granting discovery extensions was discretionary, held that excuse of substitution of counsel shortly before trial was insufficient basis to show good cause. In upholding denial of late amendments to interrogatories, court held that plaintiff failed to certify, as required by R.4:17-7, that amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.

Avala v. Rolden, No. A-4I36-05T5 (N.J. Super. App. Div. Jan. 30, 2007) - Plaintiff appealed denial of motion for reconsideration of order denying the extension of discovery. At the discovery end date, plaintiff did not have an expert report. After the order was denied, plaintiff obtained an expert and moved to reconsider. The Appellate Division held that the fact that the expert report materialized after the motion to extend discovery was denied is not a basis for a motion for reconsideration and accordingly affirmed.

Coffey v. Beachemin, No. A-OO I 7 -05TI (N.J. Super. App. Div. Feb. 9, 2007) - Plaintiff's submission of additional expert reports and certification of permanency after the discovery deadline and after an arbitration date had been scheduled were properly excluded as plaintiff was required to show exceptional circumstances. Plaintiff's affidavit that insurance declined the pre-certification of the MRIs and that it was difficult to seek medical attention because of work and child care issues related to her pending divorce did not suffice to show exceptional circumstances.

Kukielka v. Gibson, No. A-3080-05T2 (N.J. Super. App. Div. Feb. 19, 2007) -Summary judgment was granted to defendants on the verbal threshold. Thereafter, the first MRI report, which confirmed herniation, was obtained and plaintiff’s motion for reconsideration was denied. A motion for reconsideration for new evidence is determined within the context of R. 4:24-1(c) necessitating a showing that the new evidence was out of the litigants’ and attorneys’ hands. Plaintiff's assertion that his physician did not order MRI until after discovery end date did not meet standard and reconsideration was properly denied.

Expert Opinion

Kelly v. Walker-Grassi, No. A-2484-05T5 (N.J. Super. App. Div. Jan. 24, 2007) - Plaintiff sought reversal of trial court ruling allowing defense expert to testify as to proximate causation. Plaintiff did not contend that the expert's opinions were bare conclusions, but rather that the expert's opinion contradicted defendant's interrogatory answers and deposition statements. Court held that since expert covered the why and wherefore portions of his testimony, his testimony did not constitute net opinion.

Civil Procedure - Choice of Law & Venue

Mastondrea v. Occidental Hotels Mgmt, No. A-6412-05T3 (N.J. Super App. Div. March 9, 2007) - Specific personal jurisdiction may be maintained by New Jersey courts over a Mexican resort that conducts, through an agent, targeted advertising directed to New Jersey residents and maintains contractual relationships with a travel entity headquartered in New Jersey. The law of the Mexican state will apply to issues of apportionment of liability and damages.

Caliendo v. Trump Taj Mahal Assocs., No. 31-7-6471 (D.N.J. Feb. 8, 2007) - Elderly Massachusetts plaintiff brought lawsuit against defendant casino for personal injury in Camden vicinage. Plaintiff filed motion for transfer of venue to Newark vicinage or New York district court based on forum non conveniens. District court denied motion as plaintiff chose to file lawsuit in Camden vicinage, the proposed alternate venues were not significantly more convenient than the existing one and Camden had the most substantial contacts with the case.

Civil Procedure - Vacating Default Judgment

Liberty Mutual Ins. Co. v. Perez, No. 07-2-6886 (N.J. Super. App. Div. Mar. 26, 2007) -The plaintiff filed a complaint against defendant, its insured, alleging insurance fraud. The Complaint was served at defendant's house and accepted by his mother. Defendant claimed he did not live at the residence but admitted that his mother gave him the Complaint two months later. Defendant signed for the notice of default at the same address. Default judgment was entered 4 months later. Defense counsel was hired and filed a motion to vacate default 10 months later. Appellate Division affirmed trial court denial of motion. Defendant's actions were not compatible with due diligence or reasonable prudence.

Hicks v. Winslow Faith Church, No. 07-2-6480 (N.J. Super. App. Div. Feb. 13, 2007) - The plaintiff's slip-and-fall complaint against defendant church was administrately dismissed in 2003 for failure to serve. Two years later, plaintiff moved to reinstate complaint asserting that private investigator located and served defendant. Defendant asserted that there was no excuse for long delay and no witnesses could be located, preventing a proper defense. The trial judge denied the motion. On appeal, it was determined that defendant and its insurance carrier knew of the accident in 2001 and received a copy of the original complaint in 2003. The plaintiff was badly injured and the statute of limitations had run. The Appellate Division reversed and remanded for a decision on the merits citing the interest of justice.

Civil Procedure – Consolidation

Borke v. Tillem, No. 07-3-6547 (N.J. Super. App. Div. Feb. 16, 2007) - The court denied plaintiff's motion seeking to consolidate the damages portion of the trial in an automobile negligence case he filed in January 2005 with another automobile negligence case he filed in November 2006, in which discovery was just beginning. Although plaintiff argued that he sustained similar injuries in both accidents, and that it would be difficult to apportion his injuries between the two accidents, the court agreed with defendants that consolidation would further delay the trial in the older case, in which the trial date had already been adjourned several times, and would significantly prejudice defendants. Moreover, the consolidation might allow plaintiff to recover a windfall.

For more information on any of the above articles, please feel free to contact Michael Dolich, Esquire at dolich@bbs-law.com or Michael Weiner, Esquire at weiner@bbs-law.com