Articles Posted in Injury Law

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Plaintiff Lamar Williams worked and owned a car in Alaska. In February 2010, he arranged through his employer to have the car shipped to New Jersey by defendant American Auto Logistics. After the car arrived, Williams visited the American Auto Logistics facility in New Jersey to pick it up. Williams inspected the car, found no apparent damage, and drove away. On leaving the facility, however, he heard swishing noises in the back of the car. He found water in the trunk and returned to the facility, where defendant's employees removed the accumulated water and offered a small amount of money for water damage. Williams rejected the offer. Williams sought out a mechanic who estimated the repairs would cost more than $10,000. He called American Auto Logistics and offered to settle for less than that amount, but the company rejected the offer and refused to pay anything for the damage. American Auto Logistics followed up by sending Williams a letter that disclaimed any responsibility and claimed the car was not damaged during shipping. Williams was twice denied his right to a jury trial by a trial court in the Special Civil Part. On both occasions, the trial court relied on Rule 4:25-7, prescribing certain pre-trial procedures, and sanctioned Williams for failure to comply by denying his right to a jury. In this appeal, the issue before the New Jersey Supreme Court was whether a litigant could lose his constitutionally protected right to a jury trial as a sanction for failure to comply with procedural rules. The case also presented a question about the court rules applicable to the Superior Court's Law Division, Special Civil Part. The Court held trial courts could not deprive civil litigants of their constitutionally protected right to a jury trial as a sanction for failure to comply with a procedural rule. The Court further instructed that Rule 4:25-7 did not apply to proceedings in the Special Civil Part. View "Williams v. American Auto Logistics" on Justia Law

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Plaintiff Sofia Torres alleged that she was seriously injured in a rear-end collision between her car and a garbage truck owned by defendant Suburban Disposal, Inc., and operated by defendant Javier Pabon. Plaintiff alleged that, as a result of defendants negligent maintenance of the truck s taillights, she was unaware that the truck was ahead of her. She contended that Pabon drove negligently, causing the collision. Defendants denied plaintiff's allegations and asserted that plaintiff's own negligence caused the accident. The case was tried before a jury, which found both parties negligent but allocated fifty-five percent of the fault to defendants, and awarded a substantial verdict. The Appellate Division affirmed the trial court's judgment. The New Jersey Supreme Court found too many errors at trial, reversed and remanded for a new trial. First, the trial court improperly directed the jury to consider drawing an adverse inference against defendants from Pabon s failure to testify after plaintiff presented Pabon's deposition testimony to the jury. Second, the trial court permitted plaintiff to read to the jury requests for admissions, served by plaintiff immediately before trial, which improperly sought defendants admissions to medical opinions offered by one of their expert witnesses. Third, the trial court erroneously issued a second "Clawans" charge, again authorizing the jury to draw an adverse inference against defendants because they decided not to call their expert as a witness. Fourth, the trial court made significant errors in its jury instruction regarding the duty of a driver to maintain a safe distance behind another driver. Finally, notwithstanding plaintiff's testimony before the jury that she had significant medical bills and lacked the resources to pay them, the trial court failed to instruct the jury that plaintiff was not entitled to medical expenses as an element of damages, in accordance with N.J.S.A. 39:6A-12. View "Torres v. Pabon" on Justia Law

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Defendant Sean Stoddard, D.P.M. practiced podiatry at a clinic with offices in Toms River and Lakewood. In 2007, he applied to the Rhode Island Medical Malpractice Joint Underwriting Association (RIJUA) for medical malpractice liability insurance. Among other representations, the application indicated that at least fifty-one percent of Dr. Stoddard's practice was generated in Rhode Island; that answer was false. Dr. Stoddard submitted renewal applications from 2008 through 2011, each of which stated that at least fifty-one percent of Dr. Stoddard's practice was generated in Rhode Island. Dr. Stoddard performed three surgeries on plaintiff Thomas DeMarco, a New Jersey resident. In October 2011, DeMarco and his wife filed a medical malpractice complaint in New Jersey alleging that Dr. Stoddard negligently performed the third surgery. Dr. Stoddard forwarded the complaint to the RIJUA, which responded with a reservation of rights letter stating that the RIJUA only provided coverage for physicians who maintained fifty-one percent of their professional time and efforts in Rhode Island. The Appellate Division granted the RIJUA s motion for leave to appeal, and affirmed the trial court order. The panel determined that New Jersey law should have applied, and concluded that innocent third parties should be protected for a claim arising before rescission. The panel concluded that the RIJUA owed a duty to indemnify Dr. Stoddard up to $1 million, the amount of medical malpractice liability insurance that a physician licensed to practice medicine and performing medical services in New Jersey was required to maintain. The New Jersey Supreme Court reversed after review of the appellate court record, finding that RIJUA owed neither a duty to defend nor a duty to indemnify Dr. Stoddard, who misrepresented that a portion of his practice was generated in Rhode Island, which was a fact that formed the basis of his eligibility for insurance. View "DeMarco v. Stoddard" on Justia Law

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Plaintiffs James Jarrell and his wife filed a complaint against Dr. Kaul and the Market Street Surgical Center (MSSC). On summary judgment, the court found that there was no cause of action against Dr. Kaul for deceit, misrepresentation, lack of informed consent, or battery based on his failure to maintain insurance. The trial court also dismissed plaintiffs’ claims against MSSC because they lacked an expert who would testify that MSSC deviated from accepted standards of medical care by failing to properly ascertain Dr. Kaul’s credentials and by permitting an uninsured physician to perform spinal procedures in its facility. Trial proceeded against Dr. Kaul limited to the issue of medical negligence, and the jury found that Dr. Kaul negligently performed the spinal fusion, which proximately caused James Jarrell’s injury. Dr. Kaul appealed and plaintiffs cross-appealed. The Appellate Division affirmed the summary judgment orders, the jury verdict, and the damages award. The panel held that the trial court properly dismissed all claims against Dr. Kaul based on his lack of insurance because N.J.S.A.45:9-19.17 did not provide a private cause of action for injured parties. For the same reasons, the panel concluded that N.J.S.A.45:19-17(b), did not permit a direct action by a patient against a surgical center that permitted an uninsured or underinsured physician to use its facilities. The Supreme Court denied Dr. Kaul’s petition for certification, but granted plaintiffs cross-petition. Although it was undisputed that Dr. Kaul was uninsured for the procedure he performed on Jarrell, the Supreme Court affirmed the dismissal of Jarrell’s direct claim against the physician for his failure to maintain insurance. The statute imposing the medical malpractice liability insurance requirement did not expressly authorize a direct action against a noncompliant physician and neither the language nor the purpose of the statute supported such a claim. Although a reasonably prudent patient may consider a physician’s compliance with the statutorily imposed liability insurance requirement material information, lack of compliance or failure to disclose compliance does not necessarily provide the predicate for an informed consent claim. The Court reversed and remanded plaintiffs’ claim against MSSC, holding that a cause of action for negligent hiring could be asserted against a facility that granted privileges to physicians for its continuing duty to ensure that those physicians had and maintained the required medical malpractice liability insurance or have posted a suitable letter of credit that conformed with the statutory requirement. View "Jarrell v. Kaul" on Justia Law

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In a series of decisions arising from personal injuries sustained by business invitees on the premises of businesses whose operations involve customer self-service, the New Jersey Supreme Court has recognized a principle known as “mode of operation.” This appeal arose from a slip-and-fall accident that occurred at a Kentucky Fried Chicken restaurant in Cherry Hill. On the evening of her accident, plaintiff Janice Prioleau and her adult son and daughter, Richard Prioleau and Adriana Prioleau, were on a trip from their home in Delaware to New Jersey. Plaintiff and her children recalled that the weather that evening was rainy; plaintiff stated that there was a torrential storm. Plaintiff and her children decided to stop at the Kentucky Fried Chicken restaurant to have dinner. Plaintiff testified that, because of the heavy rain outside, she and her children tracked water into the restaurant. As she approached the restroom, plaintiff slipped and fell, landing on her buttocks and hands. According to plaintiff, the floor near the restroom felt greasy and wet. She stated that there were no mats or warning signs in the area where she fell. Plaintiff s children agreed with her that the floor near the restroom at the restaurant was slippery and greasy. Plaintiff’s testimony established that she had not yet ordered or purchased her dinner when her accident occurred. Instead, by her own account, plaintiff fell immediately after entering the restaurant. She asserted a negligence claim and specifically alleged that defendants failed to exercise reasonable care by failing to provide plaintiff, an invitee, with a safe place to traverse the premises. The jury found defendants negligent, without identifying the theory of negligence on which its verdict was based, and concluded that defendants’ negligence was a proximate cause of plaintiff’s accident. Defendants appealed the trial court’s judgment. A divided Appellate Division panel affirmed the trial court’s denial of defendant’s motion for a directed verdict. The majority reasoned that the unifying factor in case law recognizing the “mode-of-operation” doctrine was the negligence [that] resulted from the business’s method of operation, which was designed to allow patrons to directly handle merchandise or products without intervention from business employees, and entailed an expectation of customer carelessness. Finding no reversible error in the Appellate Division’s judgment, the Supreme Court affirmed. View "Prioleau v. Kentucky Fried Chicken, Inc." on Justia Law

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Plaintiff and her husband resided in a home at the Villas at Cranbury Brook, a common-interest community, in the Township of Plainsboro. The homeowners at the Villas take title only to their dwelling units; all other areas, including the sidewalks and walkways, are common area property owned by the homeowners association and the recreation association. Homeowners are charged monthly assessments for the maintenance of the common areas, which pay for services such as snow and ice removal from the sidewalks. Although the Villas is not a gated community, the general public does not have an easement to use the sidewalks. In December 2008, a snowstorm with freezing rain led to the accumulation of approximately one-and-a-half inches of ice on the sidewalks and streets of the Villas. At the request of the homeowners association, a landscape contractor salted the roadways, but the association did not request that the common sidewalks and walkways also be cleared. Two days later, additional freezing rain accumulated. The landscape contractor did not apply any salt to the roadways or sidewalks that day. That afternoon, plaintiff and her husband walked through the Villas to a food market; on their way back to their home, plaintiff slipped and fell on ice on a common-area sidewalk within the community, injuring her wrist and shoulder on ice on a common-area sidewalk within the community, injuring her wrist and shoulder. Plaintiff sued the developer of the community, the management company, the homeowners association, and the landscape contractor to recover for the personal injuries that she sustained. The trial court granted summary judgment to the homeowners association and the management company, and dismissed plaintiff's complaint. The trial court concluded that the private sidewalks in the community were the functional equivalent of the public sidewalk for which the Court conferred immunity. The Appellate Division affirmed that determination in an unpublished decision. In this appeal, the issue this case presented for the Supreme Court's review was whether sidewalk immunity applied in "Luchejko v. City of Hoboken," (207 N.J. 191 (2011)), in the context of injuries that occurred on a public sidewalk adjoining a residential condominium community, was applicable to claims for personal injuries sustained on a private sidewalk owned and controlled by a homeowners association of a common-interest community. After review, the Supreme Court reversed: immunity did not apply based on the facts of this case. "Here, the by-laws of the homeowners association spell out the association's duty to manage and maintain the community s common areas, including sidewalks. This association also has a statutory obligation to manage the common elements of which the sidewalks are a part. . . .the limited immunity given to a qualified common interest community under N.J.S.A. 2A:62A-13 is a legislative acknowledgement that common-law tort liability extends to the private areas of such a community." View "Qian v. Toll Brothers Inc." on Justia Law

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This case arose out of the tragic death of Myroslava Kotsovska, who was fatally injured when defendant Saul Liebman, for whom decedent worked as a caretaker, inadvertently struck her with his car. Petitioner Olena Kotsovska, as administratrix of the decedent's estate, filed a wrongful death action against Liebman. Liebman did not dispute that decedent's injuries were the result of his negligence. Instead, Liebman argued that, because decedent was his employee, petitioner could recover only under the Workers Compensation Act. At trial, the judge instructed the jury that it would need to decide by a preponderance of the evidence whether decedent was an employee or an independent contractor and explained the factors that it should consider in reaching that conclusion. The judge also informed the jury that it should give whatever weight it deemed appropriate to the facts. The jury returned a verdict in favor of petitioner, found that decedent was an independent contractor and awarded decedent's estate a total of $525,000 in damages. Defendant appealed, and the Appellate Division reversed. Relying on the New Jersey Supreme Court's decisions in "Kristiansen v. Morgan," (153 N.J.298 (1998)), and "Wunschel v. City of Jersey City," (96 N.J.651 (1984)), the panel concluded that the Division had primary jurisdiction over the dispute regarding decedent's employment status. The panel rejected defendant's challenges to the damages award, reversed the judgment on liability only, and remanded the matter to the Division for a determination of decedent's employment status. The Supreme Court addressed the issue of whether the Compensation Act divested the Superior Court of jurisdiction to adjudicate the decedent's employment status once defendant raised an exclusive remedy provision of the Act as an affirmative defense. Further, the Court addressed whether the jury charge was deficient enough to require reversal. After review, the Supreme Court concluded that the Superior Court had concurrent jurisdiction to resolve the dispute based on the dispute over the decedent's employment status. Further, the Court could not conclude that the jury instruction given confused or otherwise mislead the jury. Consequently, the Court reversed the Appellant Division and reinstated the jury's verdict. View "Estate of Kotsovska v. Liebman" on Justia Law

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Plaintiff Rolando Fernandes and his boss, Mario Freitas (Mario), were installing a sewer pipe on a residential construction site. The wall of the trench in which Fernandes was working collapsed, burying him up to his chest. Mario promptly extricated plaintiff and later drove him home. Fernandes was seriously injured and has not worked since that day. Fernandes filed a complaint against the general contractor, DAR Development Corp. and DAR Construction, Inc. (collectively DAR or defendant), seeking compensatory damages. At trial, the court rejected defendant s request to charge comparative negligence. The jury returned a verdict in favor of plaintiff. In resisting defendant s request to charge Fernandes' negligence, plaintiff argued according to controlling New Jersey case law, a worker's negligence should not have been submitted to the jury in negligence claims by an injured worker against third parties, such as a general contractor. He also argued that the record provided no evidential support for a comparative negligence charge. The Appellate Division affirmed the decision by the trial court refusing to submit the issue of plaintiff's negligence to the jury. In doing so, the appellate panel invoked not only the leading authority on negligence claims by injured workers arising from workplace accidents against third parties, but also authority governing workplace accidents involving unsafe or defectively designed equipment. After review of the Appellate Division's decision, the Supreme Court concluded that in negligence claims by injured workers against third parties, such as a general contractor, there was no sound reason to depart from settled precedent that an employee's negligence may be submitted to the jury when evidence has been adduced that the injured employee unreasonably confronted a known risk and had no meaningful choice in the manner in which he completed that task. The Court also determined, like the Appellate Division, that in this case the evidence produced at trial provided no basis to submit the issue of Fernandes' negligence to the jury. View "Fernandes v. DAR Development Corp." on Justia Law

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In 2009, plaintiff attended a free eye screening conducted by the New Jersey Commission for the Blind and Visually Impaired at the Jersey Shore Family Health Center. Plaintiff slipped and fell on the tile floor. As a result, plaintiff allegedly sustained injuries, including a torn ligament in her ankle, and herniated and bulging discs in her back. The Family Health Center was a nonprofit charitable clinic in the Meridian Health hospitals system. It was located in a separate building next to the Jersey Shore University Medical Center. The issue this case presented on appeal to the Supreme Court was whether the Family Health Center was entitled to charitable immunity pursuant to N.J.S.A.2A:53A-7, or the limited liability afforded to nonprofit entities organized exclusively for hospital purposes pursuant to N.J.S.A.2A:53A-8. After review, the Court concluded that site of plaintiff's fall was part of a nonprofit health care corporation organized exclusively for hospital purposes. Defendants, therefore, were not entitled to absolute immunity, but rather are entitled to the limitation of damages afforded to nonprofit institutions organized exclusively for hospital purposes. View "Kuchera v. Jersey Shore Family Health" on Justia Law

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The tragic accident that gave rise to this litigation occurred during the evening of August 9, 2008 in Willingboro Township. The accident occurred as the driver of the automobile Noah Pierre was turning left at an intersection controlled by a stop sign. Among the defendants named in plaintiffs' wrongful death and survival actions were the owner and lessee of a property located on a corner of the intersection where the accident occurred. Plaintiffs alleged that these defendants negligently maintained overgrown shrubbery on their property, blocking Pierre's view of oncoming traffic at the intersection. Pierre testified that shrubbery on the property initially obscured her view when she was stopped at the stop sign at the intersection, but that she edged forward, starting and stopping four times until her view of oncoming traffic was unimpeded. A passenger in Pierre's vehicle corroborated Pierre's testimony that when she turned left, she had an unobstructed view of approaching traffic. The record contained no testimony to the contrary. However, an engineering expert retained by plaintiffs opined that the overgrown shrubbery on the property next to the intersection was a proximate cause of the fatal collision. He acknowledged Pierre's testimony that she stopped four times before proceeding and that the shrubbery on the adjoining property did not obstruct her view, but contended that Pierre's account of the accident was mistaken. The trial court granted defendants motion to strike the expert's testimony as a net opinion lacking support in the record. The court then granted defendants motion for summary judgment dismissing plaintiffs' claims against the property owner and lessee. The Appellate Division vacated the trial court's order barring the expert's report and reversed the grant of summary judgment, holding that the expert's conclusion was sufficiently grounded in the record and that plaintiffs could elicit the expert's opinion disputing Pierre's testimony in the form of a hypothetical question at trial. Given the uncontradicted testimony of Pierre and her passenger that Pierre's view of oncoming traffic was unimpeded by the shrubbery on defendants property when she made her left turn, the Supreme Court held that the trial court properly barred the causation opinion of plaintiffs' expert and granted summary judgment. The expert's opinion that the defendant property owner and defendant lessee both had a duty to maintain the landscaping on their property so that it did not obstruct the view of drivers was properly substantiated and was therefore admissible under the New Jersey Rules of Evidence. However, his opinion on the issue of causation was a net opinion that was not only unsupported by the factual evidence, but directly contradicted that evidence. View "Townsend v. Pierre" on Justia Law