ABUSE CLAIMS SUBJECT TO TORT CLAIM ACT’S MEDICAL EXPENSE THRESHOLD
C.W. v. Roselle Board of Education, __ N.J. Super. __ (App. Div. 2023)
The Appellate Division recently considered whether plaintiff, an alleged victim of sexual abuse by a teacher, was barred from seeking pain and suffering damages under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 et seq., because he had not incurred the requisite amount of medical expenses. Plaintiff asserted he met the medical expense threshold because a psychologist concluded he would likely need future psychological treatment, and a rational fact finder could conclude continued treatment and therapy would exceed the threshold.
The Appellate Division found any claim of costs for future medical treatment was speculative and the need for medical treatment was not related directly to the sexual abuse. No evidence was presented of the cost of past, present, or future medical expenses as incurred because of the sexual abuse by the teacher. Plaintiff, therefore, did not meet the monetary threshold under the TCA to defeat summary judgment on his claims of pain and suffering. The Appellate Division concluded to obtain pain and suffering damages under the TCA, a plaintiff must demonstrate the permanent loss of a bodily function, even when the injury only manifests itself in psychological symptoms, and that medical treatment expenses were in excess of $3,600.
Although the Legislature has made recent amendments to the TCA regarding sexual abuse claims, it did not eliminate the statutory threshold regarding medical expenses. Therefore, the trial court’s order barring plaintiff from seeking pain and suffering damages was affirmed though plaintiff was not foreclosed from other available damages under the statute.
JUDICIAL ESTOPPEL LIMITED TO SUCCESSIVE, NOT JOINT TORTFEASORS
Adams v. Yang, __ N.J. Super. __ (App. Div. 2023)
In a medical malpractice matter, defendants appealed from an order denying defendants’ motion to bar the standard of care opinions of plaintiff’s expert at trial. After plaintiff’s decedent died of gastric cancer in August 2013, plaintiff filed a complaint alleging negligence in the care and treatment of decedent. Plaintiff’s expert opined that co-defendant Yang, who settled prior to trial, did not deviate from the standard of care. On appeal, defendants argued that Glassman v. Friedel should be extended to cases involving a settling joint tortfeasor. Glassman implicates judicial estoppel to preclude a plaintiff from disavowing the negligence of an initial tortfeasor who settled in a later action against a successive tortfeasor. The trial court found Glassman did not extend to cases involving only joint tortfeasors.
The Appellate Division concluded Glassman is expressly limited to successive tortfeasors and an extension of its holding to joint tortfeasors was not warranted. Glassman's “assignment of damages to a preceding event is not possible where, as here, plaintiff seeks to establish fault as to a single, indivisible injury where two or more persons are subject to common liability.” A joint tortfeasor may still seek an allocation of liability against the settling codefendant at trial as the right of contribution assures that a joint tortfeasor can seek a remedy for the fault allocated to a settling codefendant. Thus, the Appellate Division held it was unwarranted to invoke the extraordinary remedy of judicial estoppel and affirmed the trial court’s order.
OPERATION OF VEHICLE DETERMINATIVE FOR UNINSURED MOTORIST STATUTE
Memudu v. Gonzalez, __ N.J. Super. __ (App. Div. 2023)
The Appellate Division addressed the novel issue of whether the statutory bar set forth in N.J.S.A. 39:6A-4.5(a) precludes plaintiff’s Wrongful Death and Survivor Acts claims stemming from the second of two separate accidents occurring a half hour apart at the same location, the latter of which resulted in the death of decedent. The court concluded the statutory bar pursuant to N.J.S.A. 39:6A-4.5(a) is not implicated because decedent was not operating his vehicle at the time of the second accident.
Decedent’s vehicle was rear-ended on the New Jersey Turnpike, resulting in a disabled vehicle partially in the left travel lane and partially on the shoulder. While waiting for the police, decedent returned to his vehicle to search for his cell phone. A different vehicle crashed into the front passenger side of decedent’s vehicle. Decedent was observed face down on the road outside of the vehicle and pronounced dead at the scene.
Defendants asserted N.J.S.A. 39:6A-4.5(a) barred plaintiff’s claims as decedent’s uninsured vehicle was involved in a double impact motor vehicle accident. The statute deprives an uninsured motorist of the right to sue for any loss caused by another, regardless of fault. Aronberg v. Tolbert, 207 N.J. 587 (2011).
The Appellate Division concluded decedent was not operating his uninsured vehicle for the purposes of the statute and the trial court correctly denied defendants’ motion for summary judgment. While decedent was operating an uninsured vehicle at the time of the first accident, he was killed in the second accident more than thirty minutes after the first accident, when neither he nor anyone else was “operating an uninsured vehicle.” Thus, the Appellate Division rejected defendants’ expansive reading of N.J.S.A. 39:6A-4.5(a) and found the statutory bar inapplicable and did not preclude plaintiff’s wrongful death and survivor claims.
PARTY SOPHISTICATION CONSIDERED IN ARBITRATION ENFORCEABILITY
County of Passaic v. Horizon Healthcare Services, Inc., __ N.J. Super. __ (App. Div. 2023)
The Appellate Division recently affirmed enforcement of an arbitration provision in a dispute between the County of Passaic and Horizon Healthcare Services. The County alleged Horizon had breached their contract by failing to implement reimbursement rates. Horizon moved to compel arbitration based on a stipulation in a written agreement between the parties. The County, relying on Atalese v. U.S. Legal Services Group, L.P., asserted the provision was unenforceable as it lacked the explicit waiver of access to the courts. The Appellate Division rejected this argument as the County is a sophisticated contracting party with sufficient bargaining power to resist the agreement to arbitrate, whereas Atalese applies to an employee or consumer lacking sufficient bargaining power.
