If you, like Green Day, were waiting to be woken up when September ends then that time has come! Welcome to fall! We hope summer provided a chance for a bit of refreshment.
We have a wide breadth of decisions and news items for you in this addition of HKMP’s Case Alerts. The courts here in New Jersey and New York appear to be picking up steam as evidenced by the constant churn of opinions and our attorneys starting to appear for in-person proceedings.
The New Jersey Supreme Court addressed the NJ Dog Bite statute and the familiar topic of qualified immunity under the NJ Tort Claims Act, this time as to police officers.
The Third Circuit issued a decision on the standards for discretionary jurisdiction over insurance coverage declaratory actions.
The New Jersey Appellate Division has also been active tackling issues such as employer limited liability for acts of its employees outside the scope of employment, trial court demeanor and exclusion of experts in the context of a claim of miscarriage of justice, exculpatory clauses being upheld in membership agreements, proof hearing standards to establish damages and collectability, business owner duties to invitees, spoliation of evidence and lack thereof, affidavit of merit timeliness and the substantial compliance doctrine, and yet another decision addressing ice and snow on a sidewalk.
The New Jersey U.S. District Court has also been issuing written decisions including a decision regarding New Jersey Consumer Fraud Act claims and the denial of amended complaints to destroy diversity jurisdiction.
We have a legislative alert involving the New Jersey Department of Banking and Insurance as insurance companies are being required to provide an email address to the Department so that claimants and their attorneys can request policy limit information directly from an insurer.
You’ll also find an update to the New Jersey Model Jury Charges.
As always, we welcome your thoughts and we hope you enjoy this issue of HKMP’s Case Alerts.
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NJ DOG BITE STATUTE APPLICATION
Goldhagen v. Pasmowitz, __ N.J. __ (2021) (A-17-20) (084668)
The New Jersey Supreme Court addressed the question of whether the strict liability standard in the Dog Bite Statute (N.J.S.A. 4:19-16) includes an exception, based on primary assumption of the risk, for independent contractors hired to care for a dog. In July 2015, the defendant’s dog bit plaintiff causing severe facial injury. At the time of the incident, plaintiff was a groomer and kennel assistant employed at a pet care facility where defendant boarded her two dogs. Defendant told plaintiff and the facility manager her dog had “nipped” or “bit” her son and urged caution in handling the dog. On the intake form, defendant noted that her dogs needed to eat separately, and that staff should sit with one of the dogs while eating. Plaintiff admitted she did not review the intake form until after one of the dogs bit her. Plaintiff was very busy and fed the dogs at the same time, at which point one of the dogs bit her. Plaintiff asserted a claim based upon the Dog Bite Statute and common law claims for absolute liability and negligence. The trial court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for partial summary judgment on the issue of liability of her common law claims. The Appellate Decision affirmed both rulings.
The Supreme Court, after granting certification, held that the Dog Bite Statute’s strict liability applies to the claim of an independent contractor who agrees to care for a dog. The Court stressed that the Dog Bite Statute’s plain language reveals no legislative intent to recognize an exception to the strict liability standard. However, the Comparative Negligence Act applies to plaintiff’s claim, and plaintiff’s status as a professional experienced in the care of dogs are relevant to an allocation of fault. The Court found genuine issues of material fact warranted the denial of plaintiff’s motion for partial summary judgment on her common law claims and remanded to the trial court for a determination of any further summary judgment motions and for trial with respect to any issues not resolved by summary judgment.
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NJ TORT CLAIMS ACT - WHETHER POLICE OFFICERS HAVE QUALIFIED IMMUNITY IS A FACTUAL DETERMINATION
Estate of Gonzalez v. City of Jersey City, __ N.J. __ (2021) (A-19-20) (084381)
The New Jersey Supreme Court affirmed an appellate decision reinstating an estate’s claim finding that whether police officers have qualified immunity under the New Jersey Tort Claims Act, ("TCA"), N.J.S.A. 59:1-1 to :12-3, is a factual determination. More specifically, a factual determination is required as to whether the officers’ decision to leave the now decedent at the scene of a crash, after decedent refused to ride with the police to another location, was within their own discretion or whether they were acting in a ministerial capacity in accordance with law and policy decisions that had been made for them. The TCA grants immunity for discretionary actions; not ministerial actions; and in this case there were factual disputes regarding the night of the crash including whether the officers were instructed to leave the scene of the accident due to a “busy Saturday night” and/or whether the officers exercised their own discretion considering the departments resource allocation. In this case, the Supreme Court analyzed the Tort Claims Act and the distinction between discretionary and ministerial duties of police officers. When a public entity's or employee's actions are discretionary, liability is imposed only for palpably unreasonable conduct, N.J.S. A. 59:2-3, which is a jury determination. Liability for ministerial actions, in contrast, is evaluated based on an ordinary negligence standard.
Additionally, the Court found the Good Samaritan Act, N.J.S.A. 2A:62A-1 to -35, was not implicated since the acts at issue did not occur “in rendering care”. N.J.S.A. 26:2B-16 was similarly inapplicable as that statute immunizes the decision to remove an intoxicated individual and the determination as to his incapacitation; but, here, the officers had not assisted the decedent in a manner contemplated by the statute.
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U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT |
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THIRD CIRCUIT ADDRESSES STANDARDS FOR DISCRETIONARY JURISDICTION OVER INSURANCE COVERAGE DECLARATORY JUDGMENT ACTIONS
Dianoia’s Eatery, LLC v. Motorists Mut. Ins. Co., __ F.4th ___ (3rd Cir. 2021)
The Third Circuit clarified how district courts should apply standards for determining whether to exercise federal court jurisdiction over insurance coverage declaratory judgment actions. The case involved three separate actions brought by policyholders in state courts seeking declaratory judgments that insurers had obligations to afford coverage for business losses resulting from COVID-19 and/or related governmental orders. The insurers removed the actions to federal courts based on diversity jurisdiction. The District Courts entered orders remanding the actions to state courts. The Third Circuit noted that federal courts generally must exercise their jurisdiction, but under the Declaratory Judgment Act, 28 U.S.C. § 2201-02, federal courts have discretion to abstain from deciding a declaratory judgment action. The court rejected insurers’ arguments that the cases sought legal relief and therefore were not actually declaratory judgment actions. The court stated that each action sought only an order declaring coverage rights and obligations, and not a monetary judgment or injunction enforceable by attachment, lien, or contempt order. The court further stressed that a declaratory judgment action did not bar plaintiffs from bringing a subsequent action for damages, coercive relief, or further declaratory relief. The court then addressed the factors set forth in Reifer v. Westport Ins. Corp., 751 F.3d 129 (3rd Cir. 2014), that district courts should consider in determining whether or not to exercise jurisdiction: 1) the likelihood that a federal court declaration will resolve the controversy; 2) the convenience of the parties; 3) the public interest in settlement of the controversy; 4) the availability and relative convenience of other remedies; 5) a general policy of restraint when the same issues between the same parties are pending in state court; 6) avoidance of duplicative litigation; 7) prevention of “procedural fencing”; and 8) any conflict between an insurer’s duty to defend a state court action and its attempt in federal court to characterize that action in a manner that excludes coverage. The court found that the District Courts had improperly found that the first, third, and fifth factors supported remand because state courts had not issued binding decisions on certain issues and remanded the cases to the District Courts for reweighing of the applicable factors. On the first factor, the court found that decisions would resolve the controversies between the parties, even though cases with similar issues involving other parties may remain pending. On the third factor, the court found that virus exclusions would be evaluated based on settled principles of policy interpretation, and that arguments that the exclusions were void as contrary to states’ public policy could be decided by federal courts. On the fifth factor, the court noted that there were no parallel proceedings involving the same parties and found that the existence of proceedings involving different parties in state courts on similar issues should not militate against the exercise of federal court jurisdiction.
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NEW JERSEY APPELLATE DIVISION |
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EMPLOYER IS LIABLE FOR THE ACTS OF ITS EMPLOYEE OUTSIDE THE SCOPE OF EMPLOYMENT ONLY IN LIMITED CIRCUMSTANCES
E.S., et al. v. Brunswick Investment Ltd. Partnership, et al., __ N.J. Super. __ (App. Div. 2021)
The Appellate Division affirmed the lower court’s grant of summary judgement in favor of defendants, finding plaintiff failed to establish under §§219(2)(b) and (d) that defendant Brunswick was vicariously liable for the sexual assaults committed by defendant’s former employee F.M. against plaintiff’s daughters. The Appellate Division first addressed the lower court’s interpretation of the decision Davis v. Devereux Foundation, finding the judge misconstrued Davis insofar as that § 219(2) (d) of the Restatement Second of Agency never applies to criminal conduct of low-level employees, and that expert testimony was required to establish the proper standard of care. Nevertheless, summary judgement was still properly granted for defendant. Indeed, the Court has applied § 219(2)(b) and (d) to hold an employer potentially liable for the acts of its employee outside the scope of his employment only in limited circumstances. Here, plaintiff failed to offer, and the Court is not aware of, any relevant case law that relied upon § 219(2)(b) to impose direct liability on an employer for the torts of an employee committed outside the scope of his employment. And because plaintiff has failed to offer any evidence that the employee’s conduct was a foreseeable result of his maintenance services, subsection (b) cannot be applied. The Court also noted that, unlike respondeat superior, negligent hiring, supervision, and training are not forms of vicarious liability and are based on the direct fault of an employer. To be found liable for a claim of negligent hiring, supervision or training, a plaintiff must show (1) an employer had knowledge the likelihood of a risk presented by its employee to plaintiff; and (2) that risk of harm materializes and causes the plaintiff's damages. Accordingly, since the motion record is devoid of any facts demonstrating defendant knew or should have reasonably known its maintenance employee posed a risk to any tenant, plaintiff's negligent supervision cause of action, was properly dismissed.
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II. UNPUBLISHED DECISIONS |
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NEW JERSEY APPELLATE DIVISION |
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TRIAL COURT JUDGE DEMEANOR AND EXCLUSION OF EXPERT DID NOT RESULT IN A MISCARRIAGE OF JUSTICE
Boutros v. Cook, A-4996-18 (N.J. Super. Ct. App. Div. Aug. 23, 2021) (unpub.)
The Appellate Division recently affirmed a lower court decision, finding the judge's demeanor, comments, and rulings demonstrated prejudice toward plaintiff or his counsel resulting in a miscarriage of justice. On appeal, plaintiff argued entitlement to a new trial based on erroneous restrictions on experts made by the judge, and the court's "animosity towards plaintiff['s] counsel coupled with its erroneous adverse rulings aggregated to make the trial unfair." The Appellate Division found plaintiff was not prejudiced by the limitation placed by the trial judge, which restricted plaintiff’s experts from testifying about proximate causation, because the jury, having seen the accident video, could have easily related its occurrence to the alleged breaches in design. Moreover, plaintiff's inability to prove a prima facie case against defendants Smith-Sondy and Straight Edge had nothing to do with the limit the judge placed on the experts' testimony. The Court next considered the trial judge’s decision to exclude expert William Guyla’s testimony. Although the Appellate Division disagreed with the judge’s conclusion that Gulya was unqualified, plaintiff was not prejudiced by the absence of his testimony because, even had Gulya testified in accordance with his report, the judge would have still properly granted directed verdicts in favor of Smith- Sondy and Straight Edge. Considering plaintiff’s additional arguments, the Court found the plaintiff failed assert how he was prejudiced by any limitation imposed by the judge, and, even if the judge mistakenly exercised his discretion in prohibiting any questioning of the experts related to the surveillance video, that harmless error was not a basis for a new trial. Accordingly, viewing the trial in its entirety, the Appellate Division could not conclude the judge's demeanor, comments, or rulings demonstrated prejudice toward plaintiff or his counsel resulting in a miscarriage of justice.
EXCULPATORY CLAUSE UPHELD IN MEMBERSHIP USAGE AGREEMENTS
Leah Skarbnik v. Life Time Fitness, A-3229-19 (N.J. Super. Ct. App. Div. Sept. 2, 2021) (unpub.)
The Appellate affirmed a summary judgment order in favor of defendant, agreeing with the trial judge that the exculpatory language in the parties’ Membership Usage Agreement (MUA) was enforceable and not against public policy. Therefore, plaintiff’s negligence claim is barred and her untimely oral application for leave to amend the complaint was improper and correctly denied. Exculpatory clauses are generally disfavored because they tend to violate the aims of tort law. However, such a provision will be upheld if the party seeking to enforce the exculpatory clause can show that the party giving up the right to seek compensation voluntarily and intentionally agreed to it with full knowledge of its legal consequences. The Supreme Court has held that exculpatory clauses limiting a private gym’s liability are enforceable and not contrary to public policy, where injuries were sustained as a matter of negligence that result from a patron’s voluntary use of equipment and participation in instructed activity. Here, plaintiff’s injuries were not the result of a garden variety slip and fall that would occur in an ordinary business setting. It was directly related to plaintiff’s participation in defendant’s yoga class, which she knew involved the participants sweating. Accordingly, the Appellate Division found that a reasonably prudent person in plaintiff’s position would have exercised ordinary care to avoid such a slip and fall. Therefore, since the MUA was enforceable, and due to plaintiff’s failure to timely claim gross negligence, the motion judge properly granted summary judgment for defendant.
PROOF HEARINGS ESTABLISHING DAMAGES AND COLLECTABILITY
Arelis Parra v. Francisco S. Guzman, Esq., and The Guzman Law Practice, PC, A-2205-19 (N.J. Super. Ct. App. Div. Sept. 8, 2021) (unpub.)
In this legal malpractice case, the Appellate Division reversed in part a judgment of the trial court, concluding a hearing was necessary to justify the damages calculation, because the award was not supported by sufficient evidence to show that defendant’s failure to file a personal injury law suit on plaintiff’s behalf was the proximate cause of the injuries claimed. Although the trial court had entered a judgment for $95,000, there was no medical proof that plaintiff’s claimed injuries were proximately caused by the accident because there was no medical testimony at trial. Plaintiff was not medically qualified to opine on the severity of her injuries, or that the injuries related to her 2014 accident rather than her prior accident in 2009. Further, proof of the collectability of the judgment was required, and these proofs were also absent before the trial court. Accordingly, the matter was remanded for a new proof hearing limited to the issue of damages and collectability.
ACTUAL OR CONSTRUCTIVE NOTICE OF A DANGEROUS CONDITION/SPOLIATION OF EVIDENCE
Quinones v. Kohl’s Dep’t Store Inc., A-2879-19 (N.J. Super. Ct. App. Div. Sept. 2, 2021) (unpub.)
The Appellate Division affirmed summary judgment in favor of defendant, finding the motion judge correctly determined that no genuine issue of material fact existed as to defendant’s actual or constructive notice of the water that caused plaintiff’s fall. In New Jersey, business owners owe to invitees a duty of reasonable care to provide a safe environment within the scope of the invitation. This duty requires an owner to discover and eliminate dangerous conditions, maintain the premises in a safe condition, and avoid creating conditions that would render the premises unsafe. An injured plaintiff ordinarily must establish that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Significantly, the absence of actual or constructive notice of a dangerous condition is fatal to a plaintiff’s claims of premises liability. Given the critical importance of actual knowledge in slip-and-fall cases, the Court found it completely ridiculous and unreasonable for plaintiff to claim, on appeal, that she omitted an alleged admission by an agent of defendant from discovery because she did not believe it was relevant.
The Appellate Division also dealt with the issue of spoliation of evidence. Plaintiff claimed that defendant “spoliated” evidence by failing to retain the video footage of her slip and fall thereby precluding her from establishing constructive notice of the water. The Court argument was procedurally improper and substantively without merit. Spoliation of evidence in a forthcoming civil action occurs when pertinent evidence is destroyed, thereby interfering with the action’s proper administration and disposition. Responding to plaintiff’s supplemental interrogatory inquiring about in-house cameras, defendant stated it has never possessed a video of plaintiff’s accident. Likewise, defendant was unable to produce images of the accident because it never possessed such images. An assistant store manager did testify the store had security cameras. However, when asked if the security cameras would depict an invitee’s slip and fall, she responded “not necessarily. They're in motion so . . .” That testimony did not establish spoliation; it did not establish that a video of plaintiff's accident or the events leading up to it ever existed and was destroyed by defendant.
AFFIDAVIT OF MERIT - DISMISSAL OF ACTION FOR FAILURE TO COMPLY WITH DEADLINE DATE AND SUBSTANTIAL COMPLIANCE DOCTRINE
Terry L. Brown v. Garett Forosisky, M.D., and Inspira Medical Center Vineland, A-3614-19 (N.J. Super. Ct. App. Div. Sept. 10, 2021) (unpub.)
The Appellate Division affirmed a ruling of the lower court, agreeing with the trial judge that plaintiff was non-compliant with the strict mandates of the Affidavit of Merit (AOM) statute. Plaintiff visited the emergency room of Inspira Medical Care due to a laceration of the right thumb and was treated by Dr. Forosisky who sutured the wound. However, Dr. Forosisky did not prescribe antibiotics, and soon after plaintiff suffered an infection at the site of the sutures. Plaintiff timely submitted an AOM from Dr. Bruce Charash, a board-certified specialist in internal medicine cardiology. Defendant Dr. Forosisky’s counsel sent a letter to plaintiff’s counsel objecting to the AOM because Dr. Charash was not board-certified in emergency medicine. Thereafter, the Ferreira conference was conducted where the parties agreed that plaintiff would have until a date certain to file an AOM that complied with N.J.S.A. 2A:53A-41. Plaintiff missed the deadline and Dr. Forosisky moved to dismiss. Seventeen days after the deadline, plaintiff filed an AOM authored by Dr. Marc Borenstein who is board-certified in emergency room medicine. Plaintiff’s only explanation for the delay was that due to the volume of the medical records, Dr. Borenstein required additional time to provide an AOM. The motion judge dismissed the complaint, finding plaintiff’s efforts at compliance with the statute did not satisfy the fifth requirement of the substantial compliance doctrine, because plaintiff’s one sentence explanation for the delay did not account for when Dr. Borenstein was contacted, retained or sent records. Absent such evidence, there were too many questions unanswered.
In Nicholas v. Mynster, the Supreme Court held that for a plaintiff to comply with the AOM statute, it must present an expert who shares the same specialty as the defendant physicians to properly assess the applicable standard of care. However, to moderate the draconian results of an inflexible application of the statute, courts will sometimes apply the substantial compliance doctrine. To establish substantial compliance with the statute, a plaintiff must show: (1) lack of prejudice to defendant; (2) steps taken towards compliance; (3) general compliance with the purpose of the statute; (4) reasonable notice of petitioner’s claim; and (5) reasonable explanation for failure to strictly comply. Galik v. Clara Maass Med. Notwithstanding plaintiff's argument to the contrary, the Appellate Division agreed with the motion trial judge that plaintiff has failed to meet this heavy burden. Plaintiff, fully aware of the deficiency still tendered an untimely AOM. Plaintiff’s untimeliness, failure to provide a reasonable explanation for delay, and the otherwise absence of extraordinary circumstances warranted dismissal.
SLIP AND FALL – RELATED TO SNOW AND ICE - IN A DRIVEWAY APRON BISECTING A SIDEWALK
Greenstein v. Forsgate Industrial Complex, A-0947-19 (N.J. Super. Ct. App. Div. Jul. 22, 2021) (unpub.)
The Appellate Division reversed a trial court and held that there were issues of fact regarding tenant Amazon’s duty to remove snow and ice in the area of plaintiff’s fall. Under its lease agreement with Forsgate, Amazon was responsible for ice and snow removal and in fact not only retained Bergen Outdoors to provide snow remediation services but also instructed employees to perform perimeter inspections, to notify Bergen Outdoors of any additional work needed and to use salt and shovels themselves before Bergen Outdoors arrived. Plaintiff , a bus commuter, typically cut across the Amazon property on her way to work . Amazon asserted that "the driveway apron was part of the public way" and therefore it did not owe plaintiff a duty to clear the ice and snow; Bergen Outdoors asserted that since Amazon did not request snow removal that day it was under no contractual obligation for removal . The trial judge acknowledged Amazon's duty to maintain its sidewalk in a reasonably safe condition, but declined to extend that duty to the "apron" area where plaintiff fell. The ongoing storm rule of Pareja v. Princeton Int'l Properties, N.J. (2021) was not at issue in this case . The Appellate Division found that because the driveway apron bisected Amazon's sidewalk, pedestrians must walk across the apron to follow the sidewalk in either direction; so, although the driveway apron is designed for vehicles to exit Amazon's driveway, it was also "intended for pedestrian use" since the apron connects the sidewalks on either side, and as such it can be considered "structurally an integral part" of the sidewalk. It was therefore foreseeable that pedestrians would walk in the area; hence , foreseeability supports the finding of a duty , resulting in a reversal of summary judgment and remand to the trial court for a fact finder to determine reasonableness of Amazon actions and whether it breached a duty. Further , the appellate Division vacated summary judgment as to Bergen Outdoors since the trial court failed to provide any factual findings or legal conclusions .
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NJ CONSUMER FRAUD ACT CLASS ACTION REMAND ABSENT PROOF THAT DAMAGES EXCEEDED FIVE MILLION
Hoffman v. North Am. Nutraceuticals, LLC, 2:21-cv-0045 (D.N.J. Aug. 27, 2021) (unpub.)
In a matter to determine whether to remand a putative class action to the Superior Court of Bergen County, the Federal District Court adopted the Magistrate Judge’s Report and Recommendation granting plaintiff’s motion to remand. Plaintiff, a New Jersey resident, commenced this putative class action against defendant, alleging that defendant defrauded purchasers of its male virility product by making false and unlawful claims regarding the therapeutic nature of the product, in violation of the NJ Consumer Fraud Act. Plaintiff moved to remand pursuant to 28 U.S.C. §1447(c), arguing the district court lacks subject matter jurisdiction under the Class Action Fairness Act (CAFA). In a case removed to federal court pursuant to CAFA, the defendant’s amount-in-controversy allegation should be accepted unless otherwise contested by the plaintiff or questioned by the court. However, where, as in this matter, the plaintiff challenges the removing defendant’s assertion regarding the amount in controversy, the defendant has the burden of establishing by a preponderance of the evidence that the amount in controversy exceeds $5 million. A plausible, good faith allegation of the amount in controversy is insufficient. Here, the defendant’s certification–its proffered evidence–summarily concludes that, when considering defendant’s sales of the product during the class period, the amount in controversy exceeds $5 million. However, defendant presented nothing further in support of its damages assertion to either plaintiff or the Court. Therefore, since the Court could not reasonably infer that the amount in controversy exceeds $5 million, defendant failed to meet its burden under CAFA.
FAILURE TO STATE A CLAIM FOR RELIEF UNDER FEDERAL PLEADING STANDARDS TO DESTROY DIVERSITY JURISDICTION
Lukasewicz v. Valtris Specialty Chem. Co., 2:21-cv-4128 (D.N.J. Aug. 23, 2021) (unpub.)
The Federal District Court denied plaintiff’s motion to amend the complaint to name additional defendants and remand to state court, finding the proposed Amended Complaint fails to state a valid claim for relief under federal pleading standards. The Court first observed that the only fact alleged by the proposed Amended Complaint is that Robert Knighton is a plant manager at a location of significance to the claims. The proposed Amended Complaint makes no plausible claims against Knighton. Guided by Hensgens v. Deere & Co., the Court considered several factors to determine if plaintiff’s motions to amend and remand consistent with Rules 15(a) and 20 under the FRCP. Rule 15(a) provides that leave to amend “should be freely given when justice so requires,” and Rule 20 permits joinder of proper parties. The first factor inquires to plaintiff’s purpose for the proposed amendment. Since the Court found the proposed amendment alleges no specific facts to support any claims against Knighton, the only possible purpose for the proposed amendment is to destroy diversity. The second inquiry asks whether plaintiff’s proposed amendment is a disguised attempt to delay proceedings insofar as to destroy diversity. Considering plaintiff’s request was filed two months after the Court denied the motion to remand, such conduct strongly suggested an attempt to avoid federal jurisdiction. The third factor inquires whether plaintiff will be severely prejudiced if denied leave to file an amendment that fails to state a valid claim for relief under federal pleading standards. Since defendant would also be liable under respondent superior if Knighton was found liable, plaintiff would not be unduly prejudiced. Accordingly, under 28 U.S.C. § 1447(e), the Court may properly exercise its discretion to deny plaintiff’s motion to amend.
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INSURANCE COMPANY EMAIL ADDRESSES ON THE NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE WEBSITE
The New Jersey Department of Banking and Insurance (DOBI), issued an Order on September 15, 2021 effective immediately, requiring all private passenger automobile insurers to “provide an e-mail address to the Department at which they will receive requests for policy limit disclosures by September 22, 2021”. The DOIB will then publish on its website the email address of each insurer, for the purpose of receiving requests for policy limit disclosures pursuant to a July 22, 2021 Act, P.L. 2021, c.177 of the New Jersey Legislature.
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The revised Model Civil Jury Charges, effective September 2021 were revised to reflect recent and relevant court decisions.
Model Civil Jury Charges 5.10B Foreseeability (as Affecting Negligence); 6.13 Proximate Cause (Foreseeability of Specific Harm); 6.14 Proximate Cause (Intervening/Superseding Cause), the revisions include the case of S.H. v. K&H Transp., Inc., 465 N.J. Super. 201 (App. Div. 2020). In the S.H. case, the Appellate Division reversed the Trial Court’s summary judgment in favor of the bus company as the Appellate Division concluded that the foreseeability analysis and intervening/superseding cause analysis of plaintiff’s sexual assault as a result of not being dropped off where instructed was impacted by the extent of the minor plaintiff’s mental disability, creating issues of fact that could not be disposed of by way of summary judgment.
Model Civil Jury Charge 5.10C Undertaking Voluntarily Assumed now includes reference to Diaz v. Reynoso, No. A-1285-20 (App. Div. June 1, 2021) in the Cases section. Here the Appellate Division held that a volunteer who willingly allows a visibly intoxicated person to resume driving, can face civil liability for the ensuing motor vehicle collision caused by that drunk driver.
Model Civil Jury Charge 5.20F Duty Owed – Condition of Premises was revised so that the Title accurately reflects the content and Ellis v. Hilton United Methodist Church, 455 N.J.Super. 33 (App. Div. 2018) was added in the footnotes for the proposition that a vacant property (non-commercial) owed no duty absent evidence of prior commercial use.
Model Civil Jury Charge 5.40C Failure to Warn/Instruct, was revised to include Whelan v. Armstrong Int’l, Inc., 242 N.J. 311 (2020) for the proposition that manufacturers and distributors are subject to strict liability for failure to warn (including for asbestos) if the elements set forth in the opinion are met.
Model Civil Jury Charge 8.11A Damages Charges (General Non-Auto Medical Expenses), was revised to include a comment to the Note to Judge section with additional clarification as this charge relates to the Collateral Source Rule, the jury’s consideration of medical expenses with deduction for duplicate benefits.
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As always, if you have any questions regarding any of the cases in this issue of Case Alerts, or if HKMP can be of service to you, then please contact us at info@hkmpp.com or 973-912-5222.
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Attorney Advertising Disclaimer: This publication is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship in a particular matter. |
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