Justia Injury Law Opinion SummariesArticles Posted in Supreme Court of New Jersey
Keim v. Above All Termite & Pest Control
Above All Termite & Pest Control ("Above All") employed Henry Keim as a salaried pest-control technician and provided him with an employer authorized vehicle for work use. Above All’s policy limited the quantity of supplies technicians could keep in their authorized vehicles overnight. When technicians needed to replenish supplies, Above All authorized them to drive their vehicles to Above All’s shop instead of driving directly to a worksite, to retrieve whatever they required, and then to go from the shop to the scheduled sites. On the morning of the accident, Keim clocked in, received his schedule, and concluded that his vehicle lacked sufficient supplies. On his way to the shop for supplies, Keim sustained injuries in a car accident. The Judge of Compensation dismissed Keim’s claim petition with prejudice, concluding that Keim was merely commuting to work when he sustained injuries. The Appellate Division applied the “authorized vehicle rule” and reversed the dismissal order. The New Jersey Supreme Court concurred with the appellate court, finding Keim was “in the course of employment” under the “authorized vehicle rule” at the time of the accident because Above All authorized a vehicle for him to operate and his operation of that identified vehicle was for business expressly authorized by Above All. View "Keim v. Above All Termite & Pest Control" on Justia Law
C.V. v. Waterford Township Board of Education
For five months when C.V. was a pre-kindergarten student in the Waterford Township School District, she was repeatedly sexually assaulted by Alfred Dean, the seventy-six-year-old bus aide who was supposed to be ensuring her safety. C.V.’s parents only discovered the abuse when C.V. came home without her underwear one day. C.V. and her parents sued the Waterford Township Board of Education and Waterford Township School District (collectively, Waterford) alleging, among other things, discrimination in a “place of public accommodation” “on account of . . . sex” in violation of the New Jersey Law Against Discrimination (LAD). The trial court granted summary judgment in favor of Waterford and dismissed plaintiffs’ LAD claims. The court found plaintiffs could not, as a matter of law, prove to a jury that Dean’s conduct occurred because of C.V.’s sex, or that it would not have occurred but for C.V.’s sex. According to the trial court, “the but for element can’t be satisfied . . . where you have a compulsive sexual predator, a pedophile,” especially one who testified at his deposition “that he is a compulsive sexual abuser of children, boys and girls.” The Appellate Division affirmed, concluding that the LAD did not apply “to a sexual predator’s assault of a student on a school bus where there is no evidence his actions were based solely on the victim’s status as a member of a protected group.” The New Jersey Supreme Court reversed the Appellate Division’s judgment because it conflicted with Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993) and L.W. v. Toms River Regional Schools Board of Education, 189 N.J. 381 (2007). The Court reiterated that under Lehman, sexual touching of areas of the body linked to sexuality happens, by definition, because of sex. The Court affirmed the denial of plaintiffs’ motion to amend their complaint and to obtain certain records, and we remand for further proceedings consistent with this opinion. View "C.V. v. Waterford Township Board of Education" on Justia Law
Conforti v. County of Ocean, et al.
In summer 2010, plaintiff Carol Conforti obtained a restraining order against her husband. On September 8, he was arrested for violating the restraining order by returning to the marital home to see his son. Conforti was taken to the OCJ, where he was evaluated by a staff member of Correctional Health Services (CHS). A CHS staff member wrote on the “Intake Receiving and Screening” form that Conforti reported: (1) drinking half a gallon of vodka each day; (2) major surgery that left him with rods and screws in his back; (3) feeling “hopeless or helpless”; and (4) the “[r]ecent significant loss” of his marriage. A physician prescribed him one extra mattress and medicine for back pain and alcohol dependence, and instructed that he not be assigned work or a top bunk. After 27 days, Conforti was released. Just over a week later, Conforti was arrested for again returning to the marital home to see his son. He arrived at OCJ on October 13, 2010. A document from Conforti’s file acknowledged his previous incarceration and history of binge drinking but stated he had “[n]o current mental health issues/concerns” and was cleared for OCJ’s general population. On October 16, he requested medical attention for back pain. On October 20, Conforti wrote a suicide note to his parents, closed the door to his cell, covered the cell door window with a sheet, and hung himself. During discover, plaintiff submitted an expert report who opined that defendants the County of Ocean and the Ocean County Jail acted negligently by failing to adequately train and supervise OCJ staff to prevent inmate suicide. The County defendants moved for summary judgment on immunity grounds under the New Jersey Tort Claims Act (TCA). A jury found defendant negligent and apportioned liability 60% against the County and 40% against Correctional Health Services (CHS). Defendants moved for JNOV, reasserting their medical-facility-immunity argument. The New Jersey Supreme Court found no reversible error in the trial court’s refusal to dismiss plaintiff’s negligence count at the summary judgment stage, and no error in refusing to overturn the jury’s verdict after trial. View "Conforti v. County of Ocean, et al." on Justia Law
Hrymoc v. Ethicon, Inc.
In this products liability matter involving “pelvic mesh” medical devices, the New Jersey Supreme Court considered whether defendant C.R. Bard, Inc., was denied a fair trial by the trial court’s determination that defendant could not present 510(k) clearance evidence -- evidence that, pursuant to 21 U.S.C. § 360c, the devices were allowed to be marketed without premarket clinical trials -- to counter the product liability claims brought by plaintiffs Mary and Thomas Walsh McGinnis. North Carolina surgeon Dr. Elizabeth Barbee implanted Bard’s “Align TO” and “Avaulta Solo” pelvic mesh devices. In the months following surgery, McGinnis had to undergo numerous invasive surgeries to remove the mesh and repair internal damage, with limited success. In 2011, plaintiffs filed suit against defendant Bard under North Carolina law. Counsel agreed that the substantive issues would be tried under the law of North Carolina but that the issue of damages would be tried under New Jersey law. Plaintiffs moved in limine to bar defendant from presenting any evidence of the devices’ 510(k) clearance to the jury. The trial court found the 510(k) evidence inadmissible. The Appellate Division reversed, holding that the exclusion of any 510(k) evidence deprived defendant of a fair trial on the issue of negligence. The Supreme Court agreed that 510(k) evidence was generally inadmissible because the 510(k) clearance process solely determines substantial equivalency, and not safety and efficacy. However, in a products liability claim premised on the reasonableness of a manufacturer’s conduct in not performing clinical trials or studies, the Court held evidence of 510(k) clearance had significant probative value under N.J.R.E. 401 that was not substantially outweighed by the risk of prejudice and potential juror confusion under N.J.R.E. 403. Therefore, under the specific facts and circumstances of this case, the Supreme Court affirmed the Appellate Division and remanded for a new trial. The Court disagreed with the Appellate Division’s decision regarding the scope and admissibility of 510(k) evidence and a Rule 104 hearing. To this, the Supreme Court believed the scope and admissibility of 510(k) evidence should be resolved at the hearing on a motion in limine, which was how the issue was and, presumably, would be raised. View "Hrymoc v. Ethicon, Inc." on Justia Law
DiFiore v. Pezic; Deleon v. The Achilles Foot & Ankle Group; Remache-Robalino v. Boulos
In three personal injury actions, the defendants required the plaintiffs to submit to a defense medical examination (DME). Plaintiffs, who had alleged cognitive limitations, psychological impairments, or language barriers, sought to record the examinations or to be accompanied by a third-party observer (TPO) at the examination. After various trial court rulings, the Appellate Division consolidated the cases for purposes of its opinion, and remanded all three for reconsideration in light of its six-part holding. The New Jersey Supreme Court affirmed the Appellate Division’s core holding that trial courts determine on a case-by-case basis what conditions, if any, to place on a DME -- including who may attend and whether it may be recorded -- with no absolute prohibitions or entitlements. The Court further affirmed that video recording, in addition to audio recording, should be included in the range of options; that the parties shall enter into a protective order when a defense expert is concerned about the disclosure of proprietary information; that when third-party observation is permitted, the trial court shall impose reasonable conditions to prevent any disruption of or interference with the exam; and that, if a foreign or sign language interpreter is needed, a neutral interpreter shall be selected by the parties or, failing agreement, by the court. The Court departed from the Appellate Division only in declining to place the burden on the plaintiff to show special reasons why third-party observation or recording should be permitted in each case. Instead, once the defendant issues notice to the plaintiff of a Rule 4:19 exam, the plaintiff should inform the defendant if they seek to bring a neutral observer or unobtrusively record the examination. If the defendant objects, the two sides should meet and confer to attempt to reach agreement. If agreement is impossible, the defendant may move for a protective order under Rule 4:10-3 seeking to prevent the exam from being recorded, or to prevent a neutral third-party observer from attending. View "DiFiore v. Pezic; Deleon v. The Achilles Foot & Ankle Group; Remache-Robalino v. Boulos" on Justia Law
Pantano v. New York Shipping Association
In November 2013, plaintiff Philip Pantano, a mechanic employed by Container Services of New Jersey (CSNJ), was injured at work while attempting to move a heavy piece of industrial equipment. Lawrence Giamella, who was also working on the site that day, tried to help plaintiff move the equipment with a forklift; plaintiff’s foot was crushed in the process. Plaintiff collected workers’ compensation benefits from his employer, CSNJ. He and his wife also brought a personal injury action against numerous defendants, including Marine Transport, Inc. (MT). MT and CSNJ were related companies owned by the same person. The core of the parties’ dispute concerned which entity or entities employed Giamella at the time of the accident: MT, CSNJ, or both. The trial court granted summary judgment in favor of CSNJ because of the statutory bar established by N.J.S.A. 34:15-8. MT also moved for summary judgment, arguing that it was not Giamella’s employer and was therefore not vicariously liable for his negligence. Although Giamella was on MT’s payroll, MT raised the affirmative defense that he was a “borrowed servant” or “special employee” working for CSNJ at the time of the accident, applying the multi-factor test set forth in Galvao v. G.R. Robert Construction Co., 179 N.J. 462 (2004). The pretrial judge denied MT’s motion. At the close of plaintiff’s case, MT moved for judgment pursuant to Rule 4:40-1, founded on the same borrowed-employee theory it had raised earlier in its summary judgment motion. The trial judge did not rule on the motion, reserving judgment for after the jury verdict. The jury awarded plaintiff damages for pain and suffering, lost wages, and loss of consortium. Pursuant to an agreement reached by counsel, the jury was asked to presume that MT was vicariously liable and was not asked to resolve the borrowed-employee question. Instead, counsel assented to have the court resolve the borrowed-employee argument through the mechanism of MT’s yet-to-be-decided Rule 4:40-1 motion. The trial judge vacated the verdict and awarded judgment to MT, concluding that Giamella was a borrowed employee working for CSNJ when the accident occurred. The Appellate Division reversed, vacated the directed verdict, and reinstated the jury verdict in plaintiff’s favor. Finding no reversible error in the appellate court's judgment, the New Jersey Supreme Court affirmed. View "Pantano v. New York Shipping Association" on Justia Law
W.S. v. Hildreth
W.S. alleged that a teacher at Myron L. Powell Elementary School, defendant Derek Hildreth, sexually assaulted him during the 1996-1997 school year when plaintiff was in sixth grade. Both parties agree that plaintiff’s claim accrued in 2016, when W.S. was about thirty years old. In January 2017, W.S. moved for leave to file a late notice of tort claim. The trial court denied W.S.’s motion without prejudice to W.S.’s refiling it to comply with the requirements of N.J.S.A. 59:8-9 within ninety days of the accrual of his cause of action. W.S. never refiled the motion or appealed the motion order. On December 1, 2019, several amendments to the Child Sexual Abuse Act (CSAA), Charitable Immunity Act (CIA), and Tort Claims Act (TCA) went into effect. In January 2020, W.S. sued defendants, Hildreth, and others, alleging violations of the CSAA and the New Jersey Law Against Discrimination (LAD), as well as several common law claims. Defendants moved to dismiss the complaint for failure to file a TCA notice of claim within ninety days. The motion judge denied the motion, holding that the 2019 amendments applied to W.S.’s complaint and W.S. was therefore not required by the TCA to file a notice of claim. The Appellate Division affirmed. The New Jersey Supreme Court affirmed the Appellate Division, finding that the plain meaning of the relevant statutes dictated that child sexual abuse survivors who file a CSAA complaint against a public entity after December 1, 2019 -- even if their cause of action accrued much earlier -- need not file a TCA notice of claim before filing suit. View "W.S. v. Hildreth" on Justia Law
Holm v. Purdy
This action was brought by plaintiff Nancy Holm, administratrix of the estate of her husband, Christopher Friedauer, who died in 2015 after falling at his workplace, Holmdel Nurseries, LLC. As a longtime employee of the family-owned business, Christopher had been covered by workers’ compensation insurance, but he was no longer covered after he became a member of the LLC in 2012. Plaintiff claimed that defendant Daniel Purdy, who served as the insurance broker for Holmdel Nurseries from 2002 to 2015, failed to provide to the LLC the notice mandated by N.J.S.A. 34:15-36, and that Christopher was unaware that he no longer had workers’ compensation coverage in his new role as an LLC member. She alleged that as a result of defendant’s negligence and breach of fiduciary duty, Friedauer’s dependents were deprived of a workers’ compensation death benefit to which they would have been entitled under N.J.S.A. 34:15-13 had he been covered by workers’ compensation insurance at the time of his death. Defendant asserted that Friedauer’s father, Robert Friedauer, the LLC’s managing member for insurance issues, instructed defendant in 2002 that Holmdel Nurseries did not want to purchase workers’ compensation coverage for its LLC members because of the cost of that coverage. At the close of a jury trial, the trial court granted defendant’s motion for an involuntary dismissal pursuant to Rule 4:37-2(b) and his motion for judgment at trial pursuant to Rule 4:40-1. Informed by the New Jersey Legislature’s expression of public policy in N.J.S.A. 34:15-36, the New Jersey Supreme Court concurred with the Appellate Division that defendant had a duty to advise the LLC members, at the time of the workers’ compensation policy’s purchase or renewal, that an LLC member actively performing services on the LLC’s behalf was eligible for workers’ compensation coverage, but that the LLC must elect to purchase such coverage in order to obtain it. Consistent with N.J.S.A. 34:15-36, however, the Supreme Court held that defendant could not be held liable for breach of that duty unless the damages alleged were caused by defendant’s willful, wanton or grossly negligent act of commission or omission. The Supreme Court disagreed with the trial court’s assessment of the evidence presented by plaintiff on the question of proximate cause. Accordingly, the Court concurred that the trial court erred when it granted defendant’s motion to dismiss and his motion for judgment at trial, and affirmed as modified the Appellate Division’s judgment. The case was thus remanded to the trial court for further proceedings. View "Holm v. Purdy" on Justia Law
Dennehy v. East Windsor Regional Board of Education
In 2015, defendant Dezarae Fillmyer, who coached the Hightstown High School girls’ field hockey team, instructed players to warm up in an area adjacent to the school’s turf field, where the boys’ soccer team was practicing. Plaintiff Morgan Dennehy, a member of the field hockey team, was struck at the base of her skull by an errant soccer ball, allegedly causing the injuries of which she complained in a lawsuit she filed against Fillmyer, the school, and others. The trial court granted summary judgment in favor of defendants, holding that plaintiff was required to show defendants’ acts or omissions rose at least to the degree of recklessness described in Crawn v. Campo, 136 N.J. 494, 507-08 (1994), and Schick v. Ferolito, 167 N.J. 7, 18-20 (2001). The Appellate Division reversed, holding that a simple negligence standard applied. The New Jersey Supreme Court held the coach’s acts and omissions alleged here were governed by a simple negligence standard rather than the heightened standard of recklessness the trial court applied when one participant injures another during a recreational activity. The Appellate Division was affirmed and the matter remanded to the trial court for further proceedings. View "Dennehy v. East Windsor Regional Board of Education" on Justia Law
Rivera v. Valley Hospital, Inc.
Plaintiffs, the heirs and executor of the estate of Viviana Ruscitto, filed complaints seeking compensatory and punitive damages on numerous counts after Ruscitto’s death from leiomyosarcoma, a rare cancer that cannot be reliably diagnosed preoperatively, following the hysterectomy she underwent at defendant Valley Hospital with the use of a power morcellation device. Ruscitto sought treatment for uterine fibroids from defendant Howard Jones, a gynecologic surgeon at the hospital with whom Ruscitto met four times before she underwent surgery. Approximately six months before Ruscitto’s surgery, the FDA issued a Safety Communication discouraging the use of power morcellation. Valley Hospital administrators and Dr. Jones exchanged emails about the continued use of power morcellation. They considered factors including that “without the morcellator these cases would be open instead of laparoscopic, which “increases morbidity”; the fact that “the numbers at Valley” did not support the “1 sarcoma in 350 operations” number suggested by the FDA; and the role of informed consent. A “power morcellation group” was convened to draft an informed consent form. A form was prepared and approved by the legal department but was never implemented or used prior to Ruscitto’s surgery. One month after her surgery, the FDA issued an updated communication explicitly warning against the use of power morcellators in the majority of cases. Valley Hospital then discontinued use of the power morcellation device. Plaintiffs brought claims against several defendants, including Dr. Jones and the Valley Hospital administrators, and defendants sought partial summary judgment dismissing the punitive damages claim. The trial court denied the motions, and the Appellate Division denied leave to appeal. The New Jersey Supreme Court concluded a reasonable jury could not find by clear and convincing evidence that punitive damages were warranted based on the facts of this case, and partial summary should have been granted. View "Rivera v. Valley Hospital, Inc." on Justia Law