Justia Injury Law Opinion SummariesArticles Posted in New Jersey Supreme Court
Davis v. Devereux Foundation
Plaintiff Roland Davis had been a resident of the Devereux New Jersey Center (operated by Defendant Devereux Foundation) since shortly before his twelfth birthday. Plaintiff was diagnosed with autism, mental retardation, pervasive developmental disorder and attention deficit hyperactivity disorder, and had a history of combative and aggressive behavior. Plaintiff's mother (as his guardian) filed a complaint alleging breach of a "non-delegable duty" to protect Plaintiff from harm, negligent care and supervision, and vicarious liability after a counselor assaulted Plaintiff. The trial court granted Devereux's motion for summary judgment, finding that to the extent claims were for negligence, they were barred by the Charitable Immunity Act (CIA). The court further concluded that New Jersey law does not compel imposing a "non-delegable duty" upon Devereux. The Appellate Division affirmed in part, also finding no "non-delegable duty," and reversed in part, holding that a reasonable jury could find that the counselor acted in part within the scope of her employment. The issues on appeal to the Supreme Court were: (1) whether to impose upon an institution that cares for developmentally disabled residents a "non-delegable duty" to protect them from harm caused by employees' intentional acts; and (2) whether the employee in this case could be found to have acted within the scope of her employment when she criminally assaulted the resident, thereby subjecting the non-profit facility to liability pursuant to "respondeat superior." The Court reaffirmed the duty of due care imposed upon caregivers with in loco parentis responsibilities to persons with developmental disabilities. However, applying the analysis set forth and developed by prior opinions, the parties' relationship, the nature of the risk, the opportunity and ability to exercise care, and public policy, the Court concluded the circumstances of this case did not justify imposing on caregivers a "non-delegable duty" to protect residents from harm caused by employees' intentional acts. Furthermore, the Court held that no rational factfinder could find that the Devereux counselor's criminal assault on Plaintiff was conducted within the scope of her employment.
Kendall v. Hoffman-LaRoche, Inc.
The issue before the Supreme Court was whether Plaintiff Kaime Kendall's lawsuit against the developers and marketers of the prescription drug Accutane, Hoffman-LaRoche, was barred by a two-year statute of limitations. Plaintiff was first prescribed Accutane in January 1997, when she was twelve years old. By that time, the information provided to physicians began to warn of a possible link between Accutane and irritable bowel syndrome (IBD). The information provided to patients warned to stop taking the drug and consult a doctor if stomach pain, diarrhea and rectal bleeding occurred. In 1998 and 2000, the physician warnings were strengthened with regard to IBD. When Plaintiff was first prescribed Accutane, her doctor did not mention the risk of IBD because he was not aware of it. In 1999 at a period in which Plaintiff had stopped taking Accutane, she was hospitalized for abdominal pain later diagnosed as ulcerative colitis. Plaintiff filed suit against the company in 2005, alleging that Hoffman-LaRoche was liable because the warnings were inadequate. The Company moved to dismiss the lawsuit, asserting that the statute of limitations had expired. The trial court noted that at the time Plaintiff began taking Accutane, warnings focused primarily on preventing pregnancy and suicide. The judged then concluded that by December 2003, Plainitff did not know her ulcerative colitis would be caused by Accutane, and that a reasonable person in her circumstances would not have known either. Hoffman-LaRoche appealed the jury verdict in Plaintiff's favor. Upon review, the Supreme Court concluded that because a reasonable person in Plaintiff's situation would not have known by 2003 of the relationship between Accutane and ulcerative colitis, her lawsuit against the drugmaker was timely.
Rowe v. Mazel Thirty, LLC
Plaintiff, Officer Willie Rowe, was patrolling a particular area as part of the police department’s “Safe Block” initiative. Plaintiff had visited Defendants Mazel Thirty, LLC’s building once before on a similar patrol. As he descended the stairs that led from the sidewalk down to the basement door, grasping the handrail and shining his flashlight, the cement that was covering the steps broke, causing him injuries. Plaintiff’s complaint alleged that Defendants carelessly and negligently supervised, maintained and controlled their premises and failed to adequately warn him of the hazardous conditions. Defendants moved for summary judgment, arguing that plaintiff’s presence was unforeseen and that he was aware of the condition of the steps. Upon review, the Supreme Court concluded that the officer stood in the shoes of a licensee to whom the landowner owed a duty to warn of any dangerous conditions of which the owner knew or had reason to know and of which the officer was reasonably unaware. Because the record presented a genuine issue of material fact regarding the officer’s awareness of the dangerous condition, “the grant of summary judgment was a usurpation of the jury’s function.”
Polzo v. County of Essex
Mathi Kahn-Polzo and other experienced bicyclists were riding downhill on the shoulder of Parsonage Hill Road, which was owned and maintained by Essex County. She rode over a depression on the shoulder, lost control and fell, suffered a catastrophic head injury despite wearing a helmet, and died twenty-six days later. The issue before the Supreme Court was whether the County could be held liable under the New Jersey Tort Claims Act (TCA). Viewing the record in the light most favorable to Plaintiff Donald Polzo, the Supreme Court could not conclude that the County was on constructive notice of a "dangerous condition" on the shoulder of its roadway that "created a reasonably foreseeable risk" of death, or that the failure to correct the depression before the accident was "palpably unreasonable."
Aronberg v. Tolbert
In this case, the Supreme Court was called to determine whether the heirs of an uninsured motorist killed in an automobile accident had a rightful claim under the Wrongful Death Act or whether N.J.S.A. 39:6A-4.5(a) extinguished that claim, as it did the survival action. In 2005, Lawrence Aronberg was driving southbound on the New Jersey Turnpike when a tractor trailer careened into the rear of his car, killing him. The truck was operated by Wendell Tolbert and owned by Fleetwood Taggart (Fleetwood Trucking). On the day of the fatal accident, Aronberg, then thirty-four years old, was an uninsured motorist. Just three weeks earlier, Allstate New Jersey Insurance Company (Allstate) had cancelled Aronbergâs automobile insurance policy because of his failure to keep his premiums current. Plaintiff Sheila Aronberg, as General Administratrix of her sonâs Estate, filed a survivorship and wrongful death action against defendants Tolbert and Fleetwood Trucking. The âSurvivorâs Actâ permits an appointed representative to file any personal cause of action that decedent could have brought had he lived. In contrast, the âWrongful Death Actâ provides to decedentâs heirs a right of recovery for pecuniary damages for their direct losses as a result of their relativeâs death due to the tortious conduct of another. The trial court held that because the decedent did not carry insurance at the time of the accident, his estate could not recoup on its survival claim per N.J.S.A. 39:6A-4.5(a), but could recoup on the wrongful death action. The court found that the Wrongful Death Act granted heirs an independent right of recovery, regardless of the decedentâs failure to procure insurance. The Appellate Division granted defendantsâ motion for leave to appeal and in a split decision affirmed. Upon review, the Supreme Court held when an uninsured motoristâs cause of action is barred by the uninsured motorist statute, an heir has no right of recovery under the Wrongful Death Act.
Buck v. Henry
Under the New Jersey Affidavit of Merit statute, plaintiff in a medical malpractice action must provide an affidavit from an equivalently credentialed physician attesting that there is a reasonable probability that the defendant physicianâs treatment fell outside acceptable professional standards. Plaintiff Robert Buck sued defendant Dr. James Henry, who had diagnosed Buck as suffering from depression and insomnia and prescribed an anti-depressant and a sleep aid. Plaintiff alleged that Dr. Henry failed to properly treat him. In March 2009, Plaintiff provided an affidavit of merit signed by Dr. Larry Kirstein, a licensed psychiatrist, who concluded that Dr. Henryâs treatment fell outside acceptable standards. In April 2009, due to a clerical error, the trial court mistakenly issued an order stating that âall issues involving the Affidavit of Merit statute have been addressedâ and âthere is no needâ for a Ferreira conference. Dr. Henry moved for summary judgment, claiming that the affidavits were not from equivalent specialists. The court found that Dr. Henry was a family-medicine specialist based on his certification and, thus, Plaintiff was required to obtain an affidavit from a specialist in family medicine. The court therefore granted Dr. Henryâs motion and dismissed the case with prejudice. The Appellate Division affirmed. Upon review, the Supreme Court reversed the appellate and trial courts and remanded a Ferreira conference. The Court found Plaintiff acted in good faith in filing affidavits of merit from two different medical specialists; and if the conference had been conducted as required and the trial court found deficiencies, Plaintiff would have had additional time to submit an affidavit that conformed to the merit statute.
Luchejko v. City of Hoboken
The issue on appeal before the Supreme Court is whether a condominium complex is liable in tort for injury sustained by a pedestrian on its abutting sidewalk. "551 Observer Highway" is the site of a 104-unit condominium complex (the Building). Each unit is owned in fee simple by individual residents who have an undivided interest in the common elements. Every unit owner is a member of the Skyline at Hoboken Condominium Association, Inc. (Skyline), and only an owner may be a Skyline member. The Master Deed requires owners to pay an âAnnual Common Expenseâ assessment, which is used for, among other things, maintaining the common elements and paying insurance premiums. According to the Master Deed, âcommon elementsâ included â[a]ll curbs, sidewalks, stoops, hallways, stairwells, porches and patios.â On the morning of February 14, 2006, while walking on the sidewalk abutting the Building, Plaintiff Richard Luchejko slipped on a sheet of ice and was injured. Plaintiff sued Skyline, CM3 (its property manager), the City of Hoboken, and D&D (a snow-clearing services company) alleging negligence for an unsafe sidewalk. All Defendants moved for summary judgment. The trial court granted summary judgment to Skyline, CM3, and Hoboken, but not to D&D. Plaintiff then settled his claim with D&D and unsuccessfully moved for reconsideration of the grant of summary judgment to the remaining Defendants. Upon review of the appellate record, the Supreme Court found that the Appellate Division properly analyzed the facts of this case and concluded that no sidewalk liability attached for the injury to Plaintiff.
Donelson v. DuPont Chambers Works
Defendant DuPont Chambers Works (DuPont) manufactures chemical products, and employed Plaintiff John Seddon for approximately thirty years. In 2002, Mr. Seddon worked as an operator technician in one of DuPont's facilities. Among Mr. Seddon's duties was to ensure the safe operation of equipment and the safe handling of chemicals in the building. Mr. Seddon expressed concern over certain dangerous conditions he saw at the plant. When DuPont did nothing to ameliorate the situation, Mr. Seddon filed an OSHA complaint. From 2003 to 2005, Mr. Seddon alleged that DuPont retaliated against him for making the OSHA complaint by cutting his overtime, reducing his work hours, changing his shifts, and giving him poor performance evaluations. He filed suit against DuPont under the state Conscientious Employee Protection Act (CEPA). A jury returned a verdict in Mr. Seddon's favor and awarded him over $2 million for wages lost as a result of DuPont's actions. The award also included punitive damages and attorney fees. DuPont appealed, and the appellate court reversed and entered judgment in favor of DuPont. The appellate court concluded that Mr. Seddon could not prevail on a lost-wage claim under the CEPA unless he proved "actual or constructive discharge," and vacated the $2 million damages award. On appeal to the Supreme Court, Mr. Seddon challenged the appellate court's holding that he had to prove "lost-wages" under CEPA. Upon consideration of the briefs and the applicable legal authorities, the Supreme Court reversed the appellate court. The Court found that lost wages are recoverable in a CEPA case, even in the absence of a "constructive discharge." The Court reinstated the jury verdict and damages award in favor of Mr. Seddon.
Risko v. Thompson Muller Automotive Group, Inc.
Peter Risko filed a wrongful death action against Defendant Thomson Muller Automotive Group. His wife Camille slipped and fell in the automobile showroom. Mr. Risko alleged that because of this fall, a chain reaction of injuries was set in motion that ultimately ended in her premature death. During his summation, Mr. Risko's attorney cited the Eighth Amendment, stating that "prisoners of war are not supposed to be tortured ... Camille went through torture and defendant has to pay for that." Counsel told the jury to report to the judge if any of them could not find for more than $1 million in damages because they would be "ignoring the law." The trial judge interrupted Plaintiff's counsel, held a sidebar, and stated that he was considering a mistrial because of the outlandish statements. The judge did not ask the attorneys to argue on whether to mistry the case, nor did defense counsel object to continuing the case. The jury returned a verdict against the dealership, and awarded $1.75 million in damages. The dealership then moved for a new trial, arguing that opposing counsel's summation tainted the verdict. The judge acknowledged that he should have given immediate cautionary instructions to the jury. He felt compelled to grant a new trial on all issues. The appellate court reversed the trial court's new trial order. The court noted that the trial court did not strike the offending remarks nor issue a curative instruction to the jury, and defense counsel did not request a mistrial or offer a corrective jury charge "which would be expected if they truly found the summation objectionable." The Supreme Court disagreed with the majority appellate opinion, and reversed its holding pertaining to the damages award. The Court held that a new trial on the damages issue was warranted based on the "cumulative effect of counsel's comments during summation." The Court remanded the case for further proceedings.
Perrelli v. Pastorelle
Plaintiff Denise Perrelli appealed a trial court decision in favor of Defendants Bridget and Paul Pastorelle. Plaintiff believed the last time she sent her car insurance company a check for coverage was in 2005. She believed she had coverage on August 4, 2006, the day she got into an accident with Defendants. Geovanni Velverde, a friend, was driving at the time of the accident. He died of his injuries, and Plaintiff suffered serious injuries. Plaintiff sued Defendants alleging that her injuries were caused by Defendants' negligence. Defendants moved for summary judgment, arguing that as an uninsured motorist, Plaintiff had no right to sue. Upon careful consideration of the arguments and the applicable legal authority, the Supreme Court affirmed the lower court's decision. The Court found that under the state's "No Fault Act," a person injured while a passenger in her on uninsured vehicle was barred from suing for her injuries.