Governor Christie Names 14 to Fill New Jersey Court Vacancies

On Monday, Governor Christie named 14 individuals to fill vacancies on the New Jersey Superior Court.  Seven are being renominated, seven are new nominees.  Here is the list:

Judge of SUPERIOR COURT
Nominate for appointment J. Randall Corman (Sayreville, Middlesex)
Nominate for appointment Arnold L. Natali Jr. (Little Silver, Monmouth)
Nominate for appointment Joseph W. Oxley (Red Bank, Monmouth)
Nominate for appointment Katie A. Gummer (Rumson, Monmouth)
Nominate for appointment Angela White Dalton (Howell, Monmouth)
Nominate for appointment Peter A. Bogaard (Chester, Morris)
Nominate for appointment Daniel R. Lindemann (Wayne, Passaic)

Nominate for reappointment Sherry A. Hutchins-Henderson (West Orange, Essex)
Nominate for reappointment Arthur Bergman (East Brunswick, Middlesex)
Nominate for reappointment Robert J. Mega (Clark, Union)
Nominate for reappointment Bonnie J. Mizdol (Paramus, Bergen)
Nominate for reappointment Kenneth J. Slomienski (Wallington, Bergen)
Nominate for appointment Mara E. Zazzali-Hogan (Shrewsbury, Monmouth)
Nominate for appointment Bradford M. Bury (Watchung, Somerset)
Nominate for appointment Donald J. Stein (Haddon Heights, Camden)
Nominate for appointment Nesle A. Rodriguez (Jersey City, Hudson)
Nominate for appointment Christopher D. Rafano (South River, Middlesex)
Nominate for appointment Linda E. Mallozzi (Union, Union)
Nominate for appointment James P. Wilson (Roselle, Union)

NJ Court Rules Defendant Must Produce Video of Accident Before Taking Deposition of Plaintiff in Personal Injury Action

A New Jersey Law Division Court addressed the issue “Whether or not a defendant, in the context of a personal injury action, must produce a copy of video surveillance of the accident at issue in the lawsuit prior to the deposition of the plaintiff.”

On May 6, 2009, the plaintiffs Valerie and James Herrick were allegedly struck by a motor vehicle and injured while walking across a valet service road adjacent to the Trump Taj Mahal Casino in Atlantic City, NJ.  At the time of the incident, the motor vehicle, owned by Thomas Megonigle, was being operated by the defendant Adrian Wilson, an employee at defendant Trump Taj Mahal Casino.  The event was captured on security cameras owned by the Taj Mahal.

The plaintiff served supplemental interrogatories and a Notice to Produce requesting that the videotape of the incident be produced.  The defendants refused to produce the videotape.  The plaintiffs filed a motion to strike the answer and suppress the defenses of the defendant for failing to provide the video footage.  In opposition to the motion, the defendants asserted that the plaintiffs’ review of the videotape prior to the taking of their depositions would preclude the defendants from obtaining the plaintiffs’ independent recollection of the accident.

The plaintiffs countered that New Jersey Form C Uniform Interrogatories requires each defendant in a personal injury case to attach copies of any photographs and videotapes relative to the subject matter of the complaint.  Further, the Court Rules require that “every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered.”  The court found that the videotape was clearly discoverable pursuant to R. 4:10-2.  The defendants did not dispute the videotape was relevant but sought to postpone production of the tape based on the case of Jenkins v. Rainner, 69 N.J. 50 (1976).  Jenkins concerned a case of post-accident surveillance of the plaintiff taken two years after the incident and after the plaintiff was deposed.  The New Jersey Supreme Court held that video surveillance had to be produced by the defendant but only after the plaintiff was deposed again.

In Herrick, the court found that holding in Jenkins was not controlling.  The court noted a fundamental difference between video surveillance prepared during the course of litigation for the purpose of impeachment and routine surveillance conducted in the normal course of business.  The court also noted that if the defendant were permitted to withhold the video, it would open up a floodgate of motion practice as parties would routinely refuse to produce all evidence that would be more beneficial to produce after depositions are conducted.

Lastly, the court did find some merit to the defendant’s argument that if the video was produced prior to plaintiff’s deposition, then the plaintiff’s unfettered independent recollection would be forever tainted.  However, the court noted the same argument could be advanced with respect to a limitless list of frequently produced discovery including police reports, witness statements, party admissions, e-mails, etc.  The court then ordered that the videotape be produced prior to the deposition.

NJ Appellate Division Holds Commercial Tenant In Shopping Center Is Not Responsible To Maintain An Area In the Parking Lot In Which the Landlord Is Contractually Obligated To Maintain.

The Appellate Division has held in Kandrac v. Marrazzo’s Market at Robbinsville (A-6081-10T3) that a commercial tenant in a multi-tenant shopping center does not owe a duty to its patrons to maintain an area of the parking lot that the landlord is contractually obligated to maintain. The Court found that while the determination as to whether a duty exists remains a fact-sensitive inquiry, commercial tenants not in exclusive occupancy of a shopping center have no common law duty to maintain a parking lot shared with other tenants.

In this case, the plaintiff, Arlene Kandrac, tripped and fell in the parking lot at The Shoppes at Foxmoor, a 36-store shopping center owned by Foxmoor Associates. The fall occurred after she left defendant Marrazzo’s store and walked across the roadway separating the shops from the parking area. She subsequently filed suit against the landowner and the store, alleging their negligence resulted in her injuries.

Marrazzo’s lease provides “the [landlord] covenants and agrees that it shall maintain the common areas of the shopping center in good operating condition and repair . . . “

The Site Manager for the landlord testified that his responsibilities included “overseeing the maintenance of the shopping center, cleaning and maintenance.”  It was his understanding that the tenant did not have any responsibility to maintain the parking lot.  A shopping center maintenance worker, who worked at the shop five days a week, testified that he inspected the parking lot each day to search for potholes.  The owner of Marrazzo’s testified that his store manager’s duties included inspecting the parking area for safety issues.  If an issue was discovered, they were to notify the landlord.

Marrazzo’s motion for summary judgment was granted by the trial court, which found that as a commercial tenant in a multi-tenant facility, the store owed no duty of care to its invitee for an injury that occurred in the shopping center’s common area. On appeal, the plaintiff argued that Marrazzo’s had a duty to provide safe passage to and from its store.

The Court acknowledged the expansion of a duty on commercial landowners to provide patrons with safe ingress and egress, which includes maintaining the condition of a parking lot and the area between an owned establishment and a parking area. The Appellate Division also noted that case law extended this duty to commercial lessees who were exclusive occupants of a facility. However, in affirming the trial court’s grant of summary judgment to Marrazzo’s, the court refused to extend liability to commercial tenants in a multi-tenant shopping center when those tenants do not have control over common areas, or an obligation, contractual or otherwise, to maintain such areas.

According to the Court, the policy reasons for expanding the duty of a commercial landowner set forth in Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981), when applied in this case, did not warrant further expansion to commercial tenants. Likewise, while stating that contractual provisions in a lease requiring a landlord to maintain common areas will not necessarily relieve a commercial tenant of all duties to its customers regarding ingress and egress, the assignment of maintenance responsibilities significantly impact the ability of a tenant, such as Marrazzo’s, to address conditions in common areas. Finally, the Court explained that innocent victims would not be left without redress, as it was clear in this case that the commercial landowner was liable for any negligence in maintaining the parking lot where the plaintiff fell.

– Thomas M. Reardon III