Court Finds that Asking for Help in Dangerous Situation Creates a Duty of Care

March 16, 2011

The Appellate Division has reversed a trial court’s dismissal of a lawsuit arising out of an individual who was fatally shot while investigating a robbery. In this case, Cosme Novaly, a friend and neighbor of defendant Jean Robert Vertus, was shot in front of Vertus Financial Services by a robber leaving the premises. Vertus operated his business in Irvington which he noted that “in Irvington you have to be scared for your life.” Additionally, three-year before the shooting of Novaly, Vertus had been robbed and stabbed while walking to work.

On the date of the incident, Vertus had finished doing business with his client, Naitil Desir. As Desir began to walk downstairs to exit the building, Vertus saw her step back. Vertus “knew something was wrong” and left by a side door. He initially went to a downstairs neighbor to call 911. However, no one was home. He then sought help from Novaly and his roommate Mr. St. Louis. Vertus was friendly with Novaly and considered him “like family.” Vertus told Novaly that “something” was going on, but did not ask him to call 911. Novaly called Vertus’ office, by the line was busy. Accordingly, Novaly and St. Louis left Vertus in their apartment and went to see what was happening at the office. Vertus did not tell Novaly that he thought that there may be a robbery in progress, but did tell them that he saw his client act like something was going on.

While in the apartment, Vertus heard a gunshot and dialed 911. When he heard the police sirens, Vertus left the apartment and walked towards his business where he saw Novaly lying on his back suffering form a gunshot wound. Novaly died twenty-four days later. The parties to the lawsuit agreed that three robbers entered the business, assaulted several clients, shot Desir (who subsequently died), demanded money and shot Novaly on the sidewalk outside the business.

Novaly’s estate than filed a lawsuit against Vertus and his business. The estate argued that Vertus owed a duty to Novaly as despite thinking he was being robbed, he asked Novaly to lend assistance knowing that asking for assistance exposed Novaly to risk of injury. Initially, the trial court dismissed Novaly’s claim finding that Vertus owed no duty of care to Novaly. On Appeal, the Appellate Division reversed finding that “we hold that one who has reason to believe that an intruder on his premises poses a danger to others owes a duty of reasonable care to a friend whom he brings to the danger by a request for assistance.”

The Court noted that “the facts in this case support the imposition of a duty of reasonable care based on Vertus’ conduct that he knew or should have known would bring Novaly to the danger that caused his injury and death.” Further, the court held that “because of Vertus’ affirmative conduct, there is nothing unfair about imposing a duty of reasonable care toward an untrained and unsuspecting neighbor nor is it contrary to the purpose of determining conduct that exposes other to an unreasonable risk of bodily injury.”

Interestingly, Desir also filed suit against Vertus and his company. However, that matter was tried to a jury who rejected Desir’s claim and returned a verdict for Vertus and his company.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Appellate Division Rules that Expert Cannot be Sued Over Opinion Expressed in Legal Malpractice Case

March 14, 2011

The New Jersey Appellate Division has held that a legal malpractice claim can not be maintained against an expert who served in an unsuccessful malpractice action against another lawyer. In this matter, Malcolm Blum served as the attorney for Paramus Jewelers, which was owned by Yeghoutiel Rabbani, George Fahmy and Burhan Aras. Under their operating agreement, a right of first refusal was given to the business in the event that another owner sought to sell his interest in the business. In 2001 Aras sold his interest to Fahmy without first advising Rabbani. A lawsuit was then filed by Rabbani against Fahmy and Aras. During the litigation, Rabbani obtained an expert report from Michael Ambrosio who opined that Blum had committed legal malpractice. Ambrosio found that Blum’s representation of Paramus Jewelers and Fahmy violated ethics rules, constituted a breach of his duty owed to the company and committed legal malpractice. Blum was subsequently sued. In February 2008, summary judgment was entered dismissing the malpractice claim brought against Blum.

Blum’s malpractice carrier refused to provide coverage. As such, Blum retained the law firm of Reilly, Supple and Wischusen to represent him in the malpractice lawsuit. After obtaining summary judgment, the total fee for legal services rendered totaled $102,000. A fee dispute occurred and Reilly filed suit against Blum to recover their fees. Blum in turn filed a third party complaint against Ambrosio alleging legal malpractice.

Blum’s third party complaint alleged that Ambrosio’s opinions in the underlying action “were negligently prepared and constituted malpractice.” Ambrosio moved to dismiss the third party complaint. In his opinion dismissing the third party complaint, Judge Wertheimer (the trial judge) noted that “the questions presented are whether [Blum] has a cause of action for malpractice against an attorney who served as an expert witness for his opponent, and whether [Blum’s] daughter, an attorney, can provide the affidavit of merit for this case.” Judge Wertheimer found that the litigation privilege barred Blum’s cause of action against Ambrosio and dismissed the third party complaint.

Ambrosio then filed an application for monetary sanctions against Blum (he alleged that his defense costs totaled $25,000). Blum filed a cross application for reconsideration of the court’s dismissal of his third party complaint. Judge Wertheimer denied Ambrosio’s application for sanctions and Blum’s request for reconsideration.

The Appellate Division found that “in addition to the litigation privilege, which clearly bars Blum’s claim against Ambrosio, Ambrosio did not owe a duty to Blum in the underlying litigation.” It further noted that “attorneys may be held to owe a duty to ‘non-clients when the attorneys know, or should know, that non-clients will rely on the attorneys’ representations and the non-clients are not too remote from the attorneys to be entitled to protection.'” Accordingly, the Appellate Division upheld the dismissal of Blum’s action and the trial court’s refusal to grant Ambrosio’s request for sanctions.

Interestingly, the Appellate Division did not reach the issue of whether the Affidavit of Merit was valid. The Affidavit of Merit statute provides that the expert issuing the Affidavit certify that they have no financial interest in the matter they are offering an opinion. In this case, Jennifer Blum issued the Affidavit of Merit. She is not only the daughter of Blum, but a member of the same firm.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Federal Court Holds that Jet Ski Rental Agreement Does Not Provide Indemnification for Riders Own Injuries

March 8, 2011

Recently, Judge Joseph Irenas of the United States District Court, Camden, held that a jet ski rental agreement did not provide indemnification to the rental company for injuries suffered by the jet skier rider. Instead, the court found that indemnification was only available to the rental company for injuries caused by the jet skier to others.

In this matter, Anthony Dinneno (13 years old) and George Djukanovic (18 years old) were guests of their friends, the Hughes family, on a trip to Wildwood, New Jersey. On August 30, 2007, the group went to Lucky Fin Water Sports to rent a jet ski. Dinneno was to ride as a passenger (due to the fact he was a minor) and Djukanovic was to operate the jet ski. As Dinneno’s parents were not present, Robert Hughes, the father of Dinneno’s friends, signed the rental agreement as the “parent/guardian or responsible party” for Dinneno. The rental agreement provided, in relative part, as follows:

NOW THEREFORE, in consideration of the permission extended to me by Lucky Fin Water Sports, LLC, through its officers, and agents to take such a trip or trips, I do hereby for myself, my heirs, executors, and administrators, remise, release and further discharge Lucky Fin Water Sports, LLC,…from all claims demands, actions, or causes of action on account of my death or on account of any injury to me which may occur from any cause during the trip or trips or continuation thereof, as well as any operations incident to such trip or trips.

The undersigned further agrees they shall indemnify and save harmless Lucky Fin Water Sports, LLC,…against all loss, cost or damage on account of any injury to persons or property occurring or rising out of this lease.

Mr. Hughes went to a restaurant while Dinneno and Djukanovic rode the jet ski. During their time on the jet ski, a collision occurred between the jet ski operated by Djukanovic and a jet ski operated by Mark Roy. As a result of this collision, Dinneno alleges to have sustained injuries. Accordingly, Dinneno’s father brought suit on behalf of his son against Lucky Fin, Roy and Djukanoovic. Lucky Fin in turn filed a third party complaint against Hughes seeking indemnification per the rental agreement he signed. Lucky Fin and Hughes subsequently filed motions for summary judgment motions for a determination with regard to the indemnification issue and liability as to Hughes.

The court found that the rental agreement signed by Hughes only obligated Hughes to indemnify Lucky Fin for injuries caused to another individual as a result of Dinneno’s actions. Additionally, the court found that Hughes could not be found negligent for the happening of the accident as he was on land when it occurred. Accordingly, the court granted Hughes’ motion for summary judgment as to liability and denied the motion for summary judgment filed by Lucky Fin, finding that no indemnification was owed by Hughes.

Importantly, the court noted that “the true issue in this case, which neither Lucky Fin, nor Hughes seems to recognize, is whether the release of Lucky Fin, which Hughes signed…is enforceable against Steven Dinneno, the ‘guardian ad litem’ bringing suit” on behalf of his son. As is noted above, the rental agreement signed by Hughes releases Lucky Fin from “all claims, demands, actions or causes of action on account…of any injury to me [Dinneno] which may occur from any cause during the trip.”

Accordingly, this is an issue which will have to be further litigated in this matter. However, New Jersey law is clear in that exculpatory clauses, signed by a minor’s guardian releasing the minor’s potential tort claim is prohibited by public policy. Hojnowski v. Vans Skate Park, 187 NJ 323 (2006). As such, it is likely that the release provision of the rental agreement will be found unenforceable.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


US and Mexico Agree to Trucking Deal

March 4, 2011

The United States and Mexican governments have announced an agreement in principal to end a 20 year ban on Mexican trucks entering the United States.  Under the North American Free Trade Agreement, which went into effect in 1994, Mexican truckers were suppose to be permitted to transport goods into the United States.  However, since the enactment of NAFTA, Congress passed a series of laws to deny Mexican truckers the ability to drive into the United States.  As a result of these laws, NAFTA ruled that Mexico could impose punitive tariffs.  Despite NAFTA making this ruling in the late 1990s, the tariffs were not instituted until 2009.

Under the tentative deal reached by both countries, Mexican trucks will have to meet requirements equal to (and in some cases tougher than) those imposed on American truckers.  One of the more stringent requirements is that Mexican trucks must carry electronic recorders to ensure they only drive between the United States and Mexico and not domestically.  Additionally, the electronic records must track compliance with the United States’ hour of service laws.  Mexican truckers most also speak English and pass drug and safety tests.

It i s hoped that the Department of Transportation will have the proposed agreement available for public notice and comment by April.  Upon completing the comment period, the agreement would be formalized between the nations.  Under the agreement in principal, once the formal agreement is signed, half of the tariffs imposed on the United States will be suspended.  The remainder of the tariffs will be lifted when the first Mexican carrier complies with certification requirements.  It is estimated that $2.4 billion of United States goods would be subjected to the Mexican tariffs annually.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


US Supreme Court Allows Protests of Military Funerals

March 3, 2011

In an 8 to 1 decision, the United States Supreme Court ruled that protests at military funerals constitutes constitutionally protected free speech under the First Amendment. In this matter, the Westboro Baptist Church picketed the funeral of Matthew Snyder, a Marine killed in Iraq. During the protest members of the Westboro Baptist Church held signs such as “Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re Going to Hell.” Matthew’s father filed suit against the church arising out of the protest and subsequent posts regarding Matthew on the church’s website. A jury awarded Snyder $11 million in damages for the intentional infliction of emotional distress and invasion of privacy. The award was reduced to $5 million by the trial court. The Fourth Circuit Court of Appeals then threw out the verdict finding that the church’s speech was protected under the Constitution.

The United States Supreme Court upheld the Fourth Circuit’s decision. However, the Court’s decision was limited to the facts of the case and did not address whether Maryland’s law (passed after Matthew’s funeral), banning all funeral protests violates the First Amendment of the Constitution. The entire decision case be read here.

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.