New Jersey
"QUICK HITTERS” Legal Update

Winter Edition 2008

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 and 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 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.

Spotlight Case

Podias v. Mairs., No. A-6312-05T5 (N.J. Super. App. Div. June 26, 2007) - Plaintiff was a motorcyclist who was struck and run over by a car driven by defendant Mairs and occupied by other defendants. The other defendants knew that Mairs was intoxicated when he struck plaintiff with his car. All defendants exited the car and saw plaintiff lying in the middle of the street. Despite having cell phones, none of the defendants called for assistance or attempted to aid plaintiff. Subsequently, plaintiff was run over a second time, which ultimately led to his death. The trial court granted summary judgment to the defendants occupying Mairs’ vehicle, finding that they had no duty to come to the aid of another when they did not cause or contribute to the accident. The Appellate Division reversed, stating that “passengers in a third person’s vehicle are not liable to another run over by the car even though they may know or have reason to know the driver was unable to operate the vehicle in a reasonably careful and prudent manner.” However, where “the claim against the passengers is based on their alleged breach of a duty arising in the accident’s aftermath to take emergency action to prevent

Negligence - Premises Liability

Thompson v. Garden State Arts Center, No. A-3299-05T5 (N.J. Super. App. Div. June 5, 2007) – At a concert at PNC Center, for which security was provided by defendant Ultimate Services, defendant Rehfuss tapped plaintiff on the shoulder and then punched him in the face. The PNC and security defendants were dismissed by way of summary judgment. After an arbitration award against Rehfuss was entered, plaintiff appealed the dismissal of the other defendants. The Appellate Court affirmed the dismissal, holding that defendant Rehfuss’s actions were not foreseeable.

Barberia v. Hackensack University Medical Center, No. A- 5396-05T2 (N.J. Super. App. Div. Apr. 27, 2007) – Plaintiff slipped and fell on a piece of cellophane in a corridor owned and maintained by defendant hospital. As plaintiff produced no evidence that defendant either created the dangerous condition or had actual or constructive notice of the cellophane on the floor, summary judgment was granted. Additionally, the fact that cellophane was on the floor did not in and of itself call into question defendant’s maintenance policies and procedures. The Appellate Division affirmed for the same reasons.

Zaolino v. Campanelli, No. A-3873-05T5 (N.J. Super. App. Div. May 1, 2007) - Defendant-sellers of a private residencewere granted summary judgment from plaintiff-buyers’ claim that they breached a duty by failing to disclose foul odors from an adjacent recycling plant. The evidence adduced at trial showed that plaintiffs made several lengthy visits to the property and had full knowledge of the recycling plant. Plaintiffs conducted an investigation as to plant activities prior to closing on the house. Defendants knew that the plant had a composting operation and emitted a foul odor during the summer months but did not advise plaintiffs. The Appellate Division affirmed the dismissal, finding that defendants were not “professional” sellers of property and that the legislature had not identified composting activities as those that must be disclosed.

Negliegence - Construction

Mickens v. Scott, No A-1594-06 (N.J. Super. App. Div. Oct. 19, 2007) - The plaintiff-handyman sued defendanthomeowners for injuries sustained when he climbed onto the defendants’ roof to investigate and fix a leak. The trial judge concluded that defendants owed no duty to warn of the risks inherent in plaintiff’s attempts to inspect and make repairs to defendants’ roof and granted summary judgment. The Appellate Division determined that the existence of a bad shingle on defendants’ roof was not something defendants could have discovered through a reasonable inspection of the premises and, further, that defendants exercised no supervision or control over the manner in which plaintiff performed the work. Summary judgment was affirmed.

Neglience - Workers Compensation Bar

DiMatties v. Echelon Glen Apts., No. A-2420-06T5 (N.J. Super. App. Div. May 18, 2007) - The Appellate Division granted leave to appeal where defendant-contractor’s motion for summary judgment, premised on the workers compensation bar, was denied in this workplace-injury lawsuit. The trial judge found that plaintiff had complained on numerous occasions of workplace conditions leading to injury and that defendant had promised to rectify the situation but, in fact, took no action. The trial judge added that due to the above, the intentional-wrong exclusion to the workers compensation bar applies. The Appellate Division reversed and entered summary judgment, as the intentional-wrong exclusion applies only where it is “virtually certain” that an injury will occur.

Negligence - Tort Claims Act

Owens v. Feigin, No. A-1074-06T5 (N.J. Super. App. Div. June 21, 2007) - The trial court dismissed plaintiff’s claims under New Jersey’s constitution and the New Jersey Civil Rights Act of 2004, as plaintiffs did not comply with the notice requirements of the Tort Claims Act, N.J.S.A. 59:1-1 (“TCA”). The Appellate Division reversed, holding that the TCAdoes not apply to a cause of action based on a violation of civil rights.

Woloshin v. Camden, No. A-2746-05T3 (N.J. Super. App. Div. Apr. 19, 2007) – Plaintiff fell into a large sinkhole located on a street owned and maintained by the City. Defendant was granted summary judgment on demonstrating that it did not have actual and/or constructive knowledge of the sinkhole. The Appellate Division noted that two affidavits of city officials revealed that the sinkhole in question was present for over four months prior to the accident. Photographs of the sinkhole taken either the day of the accident or the following day revealed dirt and litter inside the deep hole. The grant of summary judgment was reversed.

Chambers v. Township of Howell and Howell Township Bd. Of Educ., No. A-0081-06T2 (N.J. Super. App. Div. July 12, 2007) - The trial court granted summary judgment to the Township as owner-lessor of a parking lot and the Board of Education as the lessee of the parking lot where plaintiff slipped and fell on snow and ice. The Appellate Division affirmed the trial court grants, as both defendants are public entities immune from liability for failure to properly clear snow and ice.

Santiago v. Vineland, No. A-0864-06 (N.J. Super. App. Div. Oct. 10, 2007) - Plaintiff appealed from an order which granted summary judgment in favor of the City of Vineland in an action where plaintiff was struck by a falling 60-foot maple tree. The trial judge determined that the City’s action or inaction was not palpably unreasonable under the Tort Claims Act. The judge noted that the City had not retained an arborist to “go around and inspect trees for girdling roots and perhaps a myriad of other types of similar problems, which would make a tree unsafe.” Based on the evidence, the Appellate Division held that the trial judge correctly found that a jury could not find that the City’s failure to have such an inspection program was “patently unacceptable under any given circumstance.”

Negligence – Charitable Immunity

Currie v. Alpha Day Care and Child Development, No. A- 2632-05T5 (N.J. Super. App. Div. Apr. 25, 2007) - Two minor children got into a fight on a playground while at defendant’s day care facility. The day care defendant and its employees were subject to the Charitable Immunities Act. Plaintiff argued that the immunity did not extend to grossly negligent acts. The trial judge held that evidence demonstrating that defendant had two teachers supervising instead of three was grossly negligent and therefore pierced defendants’ immunity. The Appellate Division reversed, holding that defendants did not know that having two teachers instead of three would probably result in injury to a student let alone that the risk was recklessly disregarded. Thus, the protections of the Charitable Immunities Act were not defeated.

Nieto and Tatez v. Hydewood Park Baptist Church, No. A-0908-06T1 (N.J. Super. App. Div. July 10, 2007) - The trial court dismissed plaintiff’s claims by way of summary disposition where plaintiff tripped and fell on a sidewalk abutting the defendant church. The trial judge determined that the church operated solely for religious activities and was therefore not a commercial entity. The Appellate Division affirmed the trial court decision, adding that the nature of the use of a property and not just who owns it will determine whether a property is deemed religious or commercial.

Negligence - Sporting Event

Egerter v. Amato, No. A-4005-05T1 (N.J. Super. App. Div. May 23, 2007) - Defendant, a 14-yearold middle school student, moved for summary judgment after being sued for hitting his track coach in the head with a shot put. The trial court granted defendant’s motion, as the conduct was negligent and not reckless or intentional. On appeal, the Appellate Division affirmed the dismissal and rejected plaintiff’s argument that a negligence standard should be employed because the injury occurred at a training session rather than an actual sporting contest.

Negligence - Dog Bite

Moncur v. Ellison, No. A-2709-04T1 (N.J. Super. App. Div. May 11, 2007) - Plaintiffs brought suit against the tenant-owner of two pit bulls and the landlord defendants in strict liability under the dog bite statute. The trial court granted summary judgment to the landlords, stating that there was no evidence that they knew of the dogs’ vicious propensity and that there had been no expert testimony that pit bulls are inherently a vicious breed. The Appellate Division affirmed the dismissal, holding that the dog bite statute does not extend to non-owners of dogs.

Negligence - Dram Shop

Mazzacano v. Estate of Kinnerman, No. A-5292- 05 (N.J. Super. App. Div. Oct. 23, 2007) - Plaintiff filed suit against a private club when her husband was killed after driving home intoxicated from a pig roast. A jury returned a no-cause verdict in favor of the club and plaintiff appealed, claiming that the club knowingly served decedent alcohol despite his showing signs of intoxication. Plaintiff’s expert report concluded that based on decedent’s blood alcohol content, he would have shown signs of intoxication. However, several patrons at the pig roast testified that the decedent did not exhibit outward signs of intoxication. One witness testified that he spoke with the decedent before he, the decedent, got into his car and left and noticed no signs of intoxication. The Appellate Division affirmed the jury’s no-cause finding, holding that ample evidence existed for same.

Consumer Fraud Act

D’Antonio v. Maytin, No. A-5718-05T5 (N.J. Super. App. Div. June 5, 2007) - Plaintiffcontractor appealed the trial court’s grant of defendant’s motion for summary judgment dismissing plaintiff’s claims under the New Jersey Consumer Fraud Act (“CFA”). Plaintiff’s complaint was premised solely on an alleged oral contract between the parties. The Appellate Division affirmed dismissal of the plaintiff’s claim, as the CFA requires a written contract signed by the parties which sets forth the specific terms of the bargain.

Insurance Coverage

Perez v. El Bamboo Bar/Club v. Alea London Ltd., No. A-1547-06T2 (N.J. Super. App. Div. July 23, 2007) - Third-party plaintiff El Bamboo filed an appeal of the trial court’s decision dismissing its third-party complaint against its insurer, Alea. Plaintiff, a patron of El Bamboo, was shot by another patron. Plaintiff sued El Bamboo for failure to provide a safe environment. El Bamboo claimed coverage from Alea under a general liability policy. The Appellate Division affirmed the trial court, agreeing with Alea that coverage was not owed to El Bamboo because of an assault and/or battery exclusion in the policy at issue.

Quincy Mutual Fire Ins. Co. v. Sampson, No. A- 5862-04T2 (N.J. Super. App. Div. June 4, 2007) - Wright filed a complaint against Sampson, alleging personal injuries as a result of a malicious assault and battery upon him. Plaintiff filed a declaratory judgment seeking a court determination that coverage was not owed due to an intentional act exclusion in Sampson’s policy. After the jury found in favor of the insurance carrier, defendant Wright appealed the trial court’s jury instruction that the intent to injure could be inferred from the conduct. The Appellate Division affirmed the jury determination, stating that policy provisions that exclude coverage resulting from intentional wrongful acts are common, are accepted as valid limitations, and are consistent with public policy.

Rossi v. French, No. A-5552-05T5 (N.J. Super. App. Div. May 18, 2007) - Underlying plaintiff was injured when he accidentally ran into his coach’s brother, Coleman, at a cross-country meet. Defendant Board of Education was insured by the New Jersey School Boards Insurance Group, and defendant Coleman was insured under a homeowners policy issued by Allstate. Despite Allstate’s request, the Insurance Group refused to defend and indemnify Coleman, who had permission to run with the team. Upon motion at the conclusion of the trial, the judge ordered the Insurance Group to pay for Coleman’s defense, as the Insurance Group policy provided for same. The Appellate Division reversed, holding that the Insurance Group was not a party to the litigation and that it could have been joined by third-party complaint or a declaratory judgment action, neither of which had occurred.

Catenacci v. Gonzalez, Nos. A-5681-05 and 5685- 05 (N.J. Super. App. Div. Oct. 19, 2007) - Plaintiff and defendant were guests at a party during which plaintiff came to the aid of the hostess and was punched in the face by defendant. Allstate provided a defense for defendant under his parents’ homeowners policy, which contained an exclusion for intended acts. The trial judge found that a “hard punch aimed at one’s opponent is an intentional rather than a negligent act and . . . the injury resulting from such a punch is not an accident.” The Appellate Division agreed holding that a person who deliberately strikes another with a closed fist must reasonably expect that an injury will result from his conduct.

Apro Management, Inc. v. Royal Surplus Lines Ins. Co., No. A-3976-05T2 (N.J. Super. App. Div. Apr. 30, 2007) - Apro contracted with a group of individuals (The Wangs) to build a commercial property. Apro reported to the Wangs that the complex could not be constructed as planned due to conditions on site. As the Wangs refused to change the plans, all monies were returned, and the contract was terminated. Thereafter, another group built the complex according to original specifications. The Wangs sued Apro, which was insured under a claims-made policy by Royal Surplus. Ultimately, the trial judge found that Royal Surplus owed a defense and indemnification to Apro for the Wang litigation. The Appellate Division reversed the trial court determination, finding that Royal Surplus was not advised of the claim until more than 60 days after the end of the policy period. The holding concluded that the Wang lawsuit constituted a reportable occurrence or claim under the claimsmade policy and that failure to report the claim in a timely manner during the policy period foreclosed coverage obligations.

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.

Damages - Lost Wages

Bernard v. Lovett, No. A-6487-05T5 (N.J. Super. App. Div. Sept. 7, 2007) - Plaintiff prevailed on a claim for malicious prosecution and asserted a claim for lost wages and related expenses. The plaintiff testified that he missed six days of work because of his arrest and incarceration. The Appellate Division affirmed the trial court’s conclusion that plaintiff was competent to testify concerning the number of days of work he missed and the extent of his yearly self-employment earnings. See N.J.R.E. 602; Phillips v. Gelpke, 190 N.J. 580, 589-90 (2007). Similarly, plaintiff was held competent to testify as to the expenses incurred by him for attorney fees.

Expert Witness

Castano v. Serge Elevator Co., No. A-1158-06 (N.J. Super. App. Div. Nov. 9, 2007) -Plaintiff alleged that an elevator operated by defendant accelerated upward, striking the ceiling of the elevator framework. The trial court granted defendant summary judgment, as plaintiff failed to produce expert testimony regarding the operation of the elevator. The Appellate Court reversed the trial court, holding that expert testimony is not required for jurors to understand that the elevator should not have hit the ceiling of the elevator framework. The court concluded that the occurrence itself “bespeaks negligence.”

Koruba v. American Honda Motor Co., No. A- 5953-05 (N.J. Super. App. Div. Nov. 19, 2007) - Plaintiff was injured when he “jumped his ATV.” Plaintiff sued the ATV manufacturer, which obtained summary disposition, as the owner’s manual contained explicit no-jump warnings. Plaintiff’s expert opined that because of the magnitude and severity of the risk involved, the “no jumping” warning should have been emphasized by placement directly on the ATV itself. The trial judge found the report to be a net opinion. The Appellate Division affirmed, stating that plaintiff’s expert never identified any factual or statistical measure defining such risk. Further, plaintiff’s expert pointed to nothing in Honda’s advertisements, publications, or promotional literature from which a reasonable trier of fact could find a “counteracting representation” that undermined the effectiveness of the printed and oral warnings against jumping which accompanied the product.

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 atweiner@bbs-law.com