A New Jersey Appellate Division Court holds that the plaintiffs were precluded from utilizing a Social Security Administration disability determination in a personal injury action

November 6, 2013

On October 28, 2005, the plaintiff was involved in a rear-end motor vehicle accident.  The defendant Zimmer was stopped behind the plaintiff.  The defendant DeRosa, driving a van, struck the rear of the Zimmer, pushing Zimmer’s vehicle into the rear of the plaintiff’s vehicle.  The police responded and the plaintiff advised that she was OK and drove away from the scene.  Later, the plaintiff felt sore and went to the emergency room.

 About four months after the accident, the plaintiff began treatment with a chiropractor for back and neck pain.  The plaintiff was referred to Dr. Kaul, a specialist in interventional pain and minimally invasive spine surgery.  Dr. Kaul found the plaintiff had bilateral L5-S1 radiculopathy and tears in discs at L4-5 and L5-S1.  The plaintiff underwent lumbar steroid injections. Eventually, Dr. Kaul recommended spinal fusion therapy; however, the plaintiff declined.

  At trial, the plaintiff testified that she did not return to work as a seamstress because of pain and inability to perform her job functions.

 The defense produced an orthopedic surgeon who testified that the plaintiff was 5’5” and weighed over 300 lbs.  He found no objective evidence of injuries from the accident and that the plaintiff’s back problems were common in overweight individuals.  A radiologist testified that he had reviewed the MRI films and found they showed no evidence of herniated discs or annular tears, but did show age related disc degeneration.

 On June 24, 2007, the Social Security Administration (SSA) issued a four-page Notice of Award finding that the plaintiff became disabled on October 28, 2005.  Prior to trial, defense counsel filed an in limine motion seeking to preclude the plaintiff from introducing any evidence or testimony pertaining to the SSA disability determination.  The plaintiff argued that the determination creates a rebuttable presumption that the plaintiff was disabled and unable to work as a consequence of the accident.  The plaintiff also argued they should be able to cross-examine the defendant’s orthopedic expert with the SSA findings.  The trial court precluded the use of the SSA determination.

 It should be noted that during closing arguments, defense counsel stressed that there was no medical testimony that the plaintiff was unable to work.  Plaintiff’s counsel objected and the court found the defense counsel had “opened the door.”  The jury was then advised that the plaintiff was determined to be disabled by SSA.  The jury returned a unanimous verdict finding the plaintiff did not sustain an injury as a proximate result of the accident of October 28, 2005.

 On appeal, the court first observed that they were not faced with the concepts of res judicata or collateral estoppel since the defendant was neither a party nor in privity with a party to the proceedings before the SSA.

 The Appellate Court also noted that the SSA determination was hearsay.  The court found that the only hearsay exception that may apply to the case was the public records exception under NJRE 803(c)(8).  This evidentiary rule notes, “ (A) that a statement contained in a writing made by a public official of an act done by the official or an act, condition or event observed by the official if it was within the scope of the official’s duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement.”

In rendering its decision, the court looked to Phillips v. Erie Lackawanna RR Co., 107 N.J. Super. 590 (App. Div. 1969), wherein the Appellate Division held the factual conclusions of the hearing examiner of the Public Utility Commission respecting the hazards posed by a particular grade crossing and the Board’s decision directing installation of protective lights and bells was hearsay and not admissible.  The Phillips’ court noted that it is “clearly the intent of the drafters not to allow in evidence conclusionary material resulting from official investigations embodied in statements or reports of the official or agency involved.”  The court also noted that under various Federal Districts and Circuits, the consensus is to favor the view that legal conclusions are not admissible as findings of fact under the Rule.

 The Appellate Court also noted that the cornerstone of the public records exception is trustworthiness.  In this case, a court must be cautious about the use of an administrative determination that may be predicated upon a different, more lenient standard.  Thus the court found that NJRE 803(c)(8) does not authorize the admission of an SSA Determination of Disability as a hearsay exception.

 Lastly, the court highlighted that the SSA Disability Determination is of dubious probative value in a personal injury action.  The lack of a meaningful adversarial process with respect to the cause, existence and extent of the plaintiff’s alleged disability renders the SSA conclusions on that issue unreliable.  Conversely, the court noted that the defendant may suffer real and significant prejudice from the admission of the SSA Disability Determination.  The jury may inappropriately give weight, based on the fact that SSA is a government agency, to its conclusions that the plaintiff suffered a disability.

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Appellate Division Holds That Expert Is Not Permitted To Provide Opinion With Regard To Proximate Cause

November 1, 2013

            The Appellate Division has held that an expert witness cannot provide an opinion with regard to proximate cause.  In rendering its decision, the Court noted that “proximate cause is a factual issue, to be resolved by the jury after appropriate instruction by the trial court.”

            At issue in Wilkey v. Mayer was a motor vehicle accident involving the defendant striking the plaintiff as she was crossing a street with her car.  In order to prove her case, plaintiff retained the services of an accident reconstruction expert.  At the time of trial, plaintiff sought to offer this expert to explain to the jury how the accident happened.  In his report, and in his testimony, the expert opined that the defendant had an unobstructed view of the plaintiff for 300 feet before impact.  He further opined that if the defendant had seen the plaintiff at a distance of 300 feet, she would have had sufficient time to apply her brakes and avoid striking the plaintiff.

            Prior to offering this testimony to the jury, a Rule 104 hearing was held.  The defendant objected to the expert’s conclusions on the basis of them being net opinions.  Specifically, the defendant contended that the expert had not considered all evidence produced in discovery which would challenge his ultimate opinions.

            The trial court ruled that the expert could not testify that the defendant failed to use due caution.  However, over the defendant’s objection, the court ruled that the expert could give an opinion on proximate causation and the defendant could challenge the opinion on cross examination.  Accordingly, the expert was allowed to testify that “the defendant’s actions by failing to make observations of plaintiff crossing the roadway during clear daylight conditions, was the proximate cause of the accident.”  The expert then repeated on cross examination on two occasions that the defendant’s failure to observe the plaintiff was the proximate cause of the accident.  In an attempt to rebut this testimony, the defendant than attempted to question the expert on whether there could be more than one proximate cause of an accident.  Despite the trial court’s ruling that the defendant could challenge the expert’s ultimate opinions, the court would not allow that line of questioning, ruling “that’s a question of law for the Court.  I’ll define proximate cause to the jury at a later time.  The expert’s definition of proximate cause will not help this jury.”

            During jury deliberations a question regarding proximate cause arose.  The parties agreed to give the jury the Model Charge for proximate cause.  Subsequently, the jury returned a unanimous verdict that the defendant was negligent and awarded $600,000 in damages.  The defendant than appealed.

            In reviewing this case, the Court noted that “it is the court’s function, not that of an expert, to interpret the law” and the concept of proximate cause is of “legal significance.”  It is the responsibility of the trial judge, “where the question of ‘proximate cause’ is involved, to explain to the jury in simple terms what the law means by that expression and to illustrate the application of its legal principles to the facts to the particular case which he is trying.”

            The court found that in this case, plaintiff’s expert usurped the function of both the court and the jury when he repeatedly testified that the defendant’s conduct was the proximate cause of the accident.  While the expert was qualified to reconstruct things such as the defendant’s rate of speed, plaintiff pace and path of travel across the roadway and sight lines, “nothing in his background gave him any special ability to apply legal concepts of proximate cause and comparative negligence to the facts that he had reconstructed.”

            In vacating the liability finding, the court found that the trial court committed error by permitting the expert to express an opinion with regard to proximate cause.  This was further exacerbated by the court refusing to allow the defendant to cross examine the expert on whether the plaintiff’s actions could be a proximate cause of the accident.

            Due to this error, the Appellate Division reserved and remanded the matter for a new trial on liability.  The damage award was not disturbed as the defendant did not challenge same in its appeal.


NJ Supreme Courts Rules — Put Your Settlement Agreements in Writing

October 18, 2013

 

  WILLINGBORO MALL, LTD. v. 240/242 FRANKLIN AVENUE LLC (A-62-11) (069082)

The New Jersey Supreme Court has held that “if the parties to mediation reach an agreement to resolve their dispute, the terms of that settlement must be reduced to writing and signed by the parties before the mediation comes to a close.”

This case involves Willingboro Mall, Ltd. (Willingboro), the owner of the Willingboro Mall, selling its property to 240/242 Franklin Avenue LLC (Franklin) in February 2005.  To secure part of Franklin’s obligations, the parties executed a promissory note and mortgage on the property.  Willingboro subsequently filed a mortgage foreclosure action.  Franklin denied that it defaulted on the note.  The court subsequently referred this matter to nonbinding mediation.

 On November 6, 2007, a retired Superior Court Judge conducted the mediation.  Willingboro’s manager and attorney appeared on behalf of the Willingboro.  The mediation was held at the offices of Franklin’s attorney.  The mediator met privately with each side.  At some point, Franklin offered $100,000 to Willingboro in exchange for settlement of all claims and for a discharge of the mortgage.  On behalf of Willingboro, the manager orally accepted the offer in the presence of the mediator who presented the terms of the proposed settlement.  The Manager also affirmed that he gave his attorney authority to enter into the settlement.  The terms of the settlement were not reduced to writing before the conclusion of the mediation.

 On November 9th, Franklin forwarded to the court and Willingboro a letter announcing that the case had been “successfully settled.”  The letter also set forth the terms of the settlement.  On November 20th, Franklin’s attorney sent a separate letter to Willingboro stating he held the $100,000 in his attorney trust account to fund the settlement.  On November 30th, Willingboro’s attorney told Franklin’s attorney that Willingboro rejected the settlement terms.

 In December, Franklin filed a motion to enforce the settlement agreement.  Franklin attached certifications from its attorney and the mediator that revealed communications made between the parties during the mediation.  The mediator averred in his Certification that the parties voluntarily entered into a binding settlement agreement and that the settlement terms were accurately memorialized in Franklin’s letter to the court.

 Willingboro did not give its consent to the filing of either Certification; however, Willingboro did not move to dismiss the motion based on violations of the mediation communication privilege.  Instead, in opposition to the motion, Willingboro requested an evidentiary hearing and the taking of discovery and filed a Certification of its manager who averred that he reluctantly agreed to take part in the mediation and that he was told it was “nonbinding.”

 During discovery taken in connection with the motion to enforce, five witnesses were deposed including the mediator, Willingboro’s manager and Willingboro’s attorney.  After the close of discovery, the Honorable Michael J. Hogan conducted a four day evidentiary hearing.  Judge Hogan found that a binding settlement agreement was reached as a result of the court directed mediation.  The Appellate Division affirmed the trial court’s enforcement of the settlement agreement.

 The New Jersey Supreme Court granted Willingboro’s petition for certification.  Willingboro raised two issues:  1)  Whether R.1:40-4 (i) requires a settlement agreement reached at mediation to be reduced to writing and signed at the time of mediation and 2) whether Willingboro waived the mediation communication privilege.

 R. 1:40-4(i) states “a settlement reached at mediation is not enforceable unless it is reduced to writing at the time of the mediation signed by the parties.”  In this case, the writing memorializing the terms of the settlement was forwarded by Franklin after the mediation and never signed by Willingboro.  Accordingly, Willingboro argued that the purported settlement should not be enforced.  Franklin countered by noting that nothing in R. 1:40-4(i) requires the written settlement agreement resulting from the mediation be created or tendered on the actual day of the mediation.  Willingboro also argued that it did not waive the mediation communication privilege by presenting evidence in opposition to the motion to enforce the oral agreement.  Willingboro noted that the mediation communication privilege had “already been destroyed by Franklin’s disclosures to the court through the mediator certification.”  Thus, Willingboro’s response was simply a defensive measure and should not have been taken as a waiver.

 The Supreme Court noted that R. 1:40-4(d) provides:  “Unless the participants in a mediation agree otherwise or to the extent disclosure is permitted by this rule, no party, mediator or other participant in the mediation may disclose any mediation communication to anyone who is not a participant in the mediation.”  The purpose of the rule is that without assurance of confidentiality, participants will be unwilling to enter into candid and unrestrained communication.  In addition, the New Jersey Mediation Act (N.J.S.A. 2A:23C-1 et. seq.) and the Rules of Evidence (N.J.R.E. 519) confer a privilege on mediation communications.

 The Court noted that there are limited exceptions to the privilege which include a signed writing exception which allows a settlement agreement reduced to writing and adopted by the parties to be admitted into evidence to prove the validity of the agreement.  R.1:40-4(i) provides that “if there is an agreement, it shall be reduced to writing and a copy thereof furnished to each party.”

 The Court noted that the second exception to the mediation communication privilege is waiver.  Pursuant to statute and case law, the waiver must be express.  The Court concluded that the Certifications filed by Franklin’s attorney and the mediator in support of Franklin’s motion to enforce the oral agreement disclosed privilege mediation communications.  Despite the fact that Franklin violated the mediation communication privilege, Willingboro did not timely move to strike or suppress the disclosure of the mediation communications.  Instead, Willingboro proceeded to litigate whether it had in fact entered into a binding oral settlement agreement.  Willingboro breached the mediation communication privilege by appending to its opposition papers the manager’s Certification.  Thus, Willingboro expressly waived the mediation communication privilege in responding to the motion.

 Ultimately, the Court held that settlement agreement was enforceable.  However, in order to avoid these issues in the future, the Court concluded:   “if the parties to mediation reach an agreement to resolve their dispute, the terms of that settlement must be reduced to writing and signed by the parties before the mediation comes to a close.”


Lack of contractual responsibility for maintenance of property does not relieve commercial unit owner from duty of care to plaintiff

February 20, 2013

Despite a developer’s contractual responsibility for maintenance and repair of an area outside a commercial condominium unit, the owner of that unit owes a duty of care to the employee of an independent contractor with regard to a hazardous condition in that same location, according to the Appellate Division’s published decision in Nielsen v. Wal-Mart Store #2171 (A-2790-11T1). The Court balanced  a number of factors in concluding that the lack of ownership or control of the area did not absolve Wal-Mart of liability, including the relationship of the parties, the attendant risks, the nature of the risks and ultimately, fairness to the innocent plaintiff.

The plaintiff, William Nielsen, was injured when he slipped and fell in a shopping plaza in Princeton while in the course of his employment with Ecolab, Inc., which had been hired by Wal-Mart to exterminate pests. He had been instructed by the store to access various entrances from the exterior of the unit owned by Wal-Mart. The perimeter of the store, where plaintiff fell, was owned by the developer, who, pursuant to the master deed, agreed to “supervise, administer, operate, manage, insure, repair, replace and maintain” the common elements. The plaintiff subsequently filed suit against Wal-Mart, and unsuccessfully attempted to amend the complaint to name the developer as a defendant more than two years after the action’s accrual, at which point the statute of limitations had run. At trial, a jury found Wal-Mart 80 percent negligent and awarded plaintiff damages of $400,000. Wal-Mart’s motion for a new trial was denied.

On appeal, Wal-Mart argued that the trial court erred in failing to distinguish between the duty owed by a business owner on and off its premises. The Appellate Division stated that case law supports the imposition of liability beyond the boundaries of a commercial land occupier’s property (i.e. to abutting sidewalks and adjacent public roadways). Likewise, while a lack of ownership or control of an area has relevance in determining the existence of a duty of care, the Court noted it is not dispositive. The Court also indicated that the private contractual arrangement of duties between a commercial unit owner and developer is simply another factor to be considered in the analysis.

 

Ultimately, the Court affirmed the trial judge’s decision based on foreseeability and fairness grounds. Wal-Mart directed the plaintiff to use the unit’s perimeter to perform extermination work, and as such, was aware that its invitees and passersby might foreseeably traverse the area outside the unit. The Court also suggested that, despite no contractual obligation to maintain an area, a business owner, such as Wal-Mart, would be encouraged to alert the responsible entity of a hazardous condition if a duty of care was imposed on that unit owner.


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

January 29, 2013

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.

January 24, 2013

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