New Jersey Personal Injury Law Review

Transcription

1 Garden State CLE presents: New Jersey Personal Injury Law Review Lesson Plan

2 Table of Contents Talmadge v. Burn, 446 NJ Super. 413 (App. Div. 2016) Steinberg v. Sahara Sam s, 226 NJ 344 (2016) Cuevas v. Wentworth Group, 228 NJ 480 (2016) Berkowitz v. Soper, 443 NJ Super. 391 (App. Div. 2016) Cho v. Trinitas, 443 NJ Super 461 (App. Div. 2015) Rivera v. McCray, 445 NJ Super. 315 (App. Div. 2016) Troupe v. Burlington Coat, 443 NJ Super. 596 (App. Div. 2016) Walker v. Costco, 445 NJ Super. 111 (App. Div. 2016) Sackman v. NJM, 445 NJ Super. 278 (App. Div. 2016) Krzykalski v. Tindall, NJ Super (App. Div. 2016)

3 Talmadge v. Burn, 446 NJ Super. 413 (App. Div. 2016) Workers comp lien in auto accident cases When an employee suffers an automobile accident while in the course of employment, workers' compensation is the primary source of satisfaction of the employee's medical bills, as provided by the collateral source rule, N.J.S.A. 39:6A 6, which relieves the PIP carrier from the obligation of making payments for expenses incurred by the insured which are covered by workers' compensation benefits.. Where only workers' compensation benefits and PIP benefits are available, the primary burden is placed on workers' compensation as a matter of legislative policy by way of the collateral source rule of N.J.S.A. 39:6A 6. In instances where an employee, as a result of a work related automobile accident injury, also has a claim for recovery against a third party, the Legislature overcame the possible inequity of double recovery by including section 40, which requires an injured employee to refund paid workers' compensation benefits once recovery is obtained from the tortfeasor, thereby avoiding duplication of the workers' compensation benefits by the tort recovery. The statute clearly permits an employee who received workers' compensation benefits to seek recovery against the third-party for those benefits, including paid medical expenses. The statute also expressly entitles the workers' compensation carrier to repayment of all benefits paid to the employee. [I]f repayment of the workers' compensation carrier from the third-party recovery were not required, the workers' compensation exclusion would result in a double recovery to the plaintiff in contravention of clear legislative policy against duplication of awards.

4 Steinberg v. Sahara Sam s, 226 NJ 344 (2016) Liability Waiver and The Safety Act Though the Safety Act does not give rise to a private cause of action or set forth a tort-liability scheme, it does articulate legislative and regulatory standards of conduct intended to protect members of the public who patronize amusement parks, and, as such, violations of those standards may be considered as evidence of negligence, or even gross negligence, in a common-law cause of action. The issue is not whether Sahara Sam's failed to exercise reasonable care in any one instance. Rather, it is whether viewing the entire tableau in the light most favorable to plaintiff, a fact-finder could conclude that by not implementing the safety features in the 2008 operator's manual and not giving plaintiff the necessary safety instructions, Sahara Sam's failed to exercise slight care or diligence or demonstrated an extreme departure from the standard of reasonable care. Viewed in that light, we hold that a rational fact-finder could conclude that the proximate cause of plaintiff's injuries was the gross negligence of Sahara Sam's.

5 Steinberg v. Sahara Sam s, 226 NJ 344 (2016) Gross negligence - construed The New Jersey Civil Model Jury Charge defines gross negligence as an act or omission, which is more than ordinary negligence, but less than willful or intentional misconduct. Gross negligence refers to a person's conduct where an act or failure to act creates an unreasonable risk of harm to another because of the person's failure to exercise slight care or diligence. We endorse the definition of gross negligence found in our Civil Model Jury Charge and reject the trial court's and appellate panel majority's description of gross negligence as the equivalent of willful conduct. We recognize that gross negligence has been subject to varying definitions and find understandable the error of the trial and appellate courts. 13 To be clear, reckless and willful conduct are degrees of civil culpability greater than gross negligence. Reckless conduct is the conscious disregard... to a known or obvious risk of harm to another whereas [w]illful misconduct implies an intentional deviation from a clear duty owed to another. In sum, negligence, gross negligence, recklessness, and willful conduct fall on a spectrum, and the difference between negligence and gross negligence is a matter of degree.

6 Cuevas v. Wentworth Group, 228 NJ 480 (2016) Remittitur He reconsidered The preeminent role that the jury plays in our civil justice system calls for judicial restraint in exercising the power to reduce a jury's damages award. A court should not grant a remittitur except in the unusual case in which the jury's award is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience. In He v. Miller, 207 N.J. 230, 24 A.3d 251 (2011), this Court restated familiar principles that animate our remittitur jurisprudence. The He Court expressed that a jury verdict is presumed to be correct and entitled to substantial deference, that the trial record underlying a remittitur motion must be viewed in the light most favorable to the plaintiff, and that the judge does not sit as a decisive juror and should not overturn a damages award falling within a wide acceptable range a range that accounts for the fact that different juries might return very different awards even in the same case. At issue in this case are not those fundamental principles governing remittitur jurisprudence, but rather how those principles found expression in the He decision. The He Court held that a trial judge could rely on both his personal knowledge of verdicts as a practicing attorney and jurist and comparable verdicts presented by the parties in deciding a remittitur motion.

7 Although this Court's pre-he decisions may have opened the door to a judge's reliance on personal knowledge of other verdicts and on purportedly comparable verdicts presented by the parties in deciding whether to remit a pain-and-suffering damages award, we now conclude that such an approach is not sound in principle or workable in practice. A judge's personal knowledge of verdicts from experiences as a private practitioner or jurist is information outside the record and is not subject to the typical scrutiny evidence receives in the adversarial process. The cohort of cases within a judge's personal knowledge may not be statistically relevant and the reliability of the judge's knowledge cannot be easily tested. A judge therefore should not rely on personal knowledge of other verdicts. The standard is not whether a damages award shocks the judge's personal conscience, but whether it shocks the judicial conscience. We also disapprove of the comparative-verdict methodology that allows parties to present supposedly comparable verdicts based on case summaries. The singular facts and particular plaintiffs in different cases that lead to varying awards of damages are not easily susceptible to comparison. That is especially so because the information about other seemingly similar verdicts is very limited. A true comparative analysis would require a statistically satisfactory cohort of cases and detailed information about each case and each plaintiff. That information is unlikely to be available, and therefore any meaningful comparative approach would be impracticable to implement.

8 With those constraints in mind, remittitur remains a judicial remedy to correct a grossly disproportionate damages award, which, if left intact, would constitute a miscarriage of justice. In this case, the trial court denied a remittitur motion to reduce the jury's award of emotional-distress damages to two victims of workplace discrimination. The trial judge did not rely on personal knowledge of other verdicts or comparable verdicts presented by the parties in deciding the remittitur motion but rather on the record before her.

9 Berkowitz v. Soper, 443 NJ Super. 391 (App. Div. 2016) Remittitur - Adjournments The jury began deliberating at 9:46 a.m. and reported its verdict at 11:22 a.m., awarding plaintiff $2,000,000 in compensatory damages for pain and suffering. The trial court denied defendant's motions for a new trial and for remittitur. The court also granted plaintiff's motion for counsel fees and costs, pursuant to Rule 4:58 2, based on defendant's failure to accept an Offer of Judgment filed by plaintiff on April 21, 2014, pursuant to Rule 4:58 1, indicating his willingness to accept a judgment against defendant for $30,000. In this appeal, defendant argues the trial judge committed multiple reversible errors in the course of deciding a series of evidential issues that arose during the trial, but primarily during plaintiff's direct testimony. Defendant also argues she was particularly prejudiced by the trial judge's refusal to adjourn the trial date to accommodate a serious and unforeseen medical emergency that caused her to be hospitalized two business days before the scheduled trial date. This medical condition prevented her from appearing at trial or arranging to present her testimony via a de bene esse deposition. Independent of these issues, defendant argues the trial judge erred when he denied her motion for a new trial or to remit the jury verdict. Defendant argues the amount of compensatory damages awarded by the jury under these circumstances is shockingly excessive, against the weight of the evidence presented at trial, and constitutes a clear miscarriage of justice.

10 We agree with defendant's arguments and reverse. We conclude the trial judge abused his discretion in denying defendant's request to adjourn the trial without considering or applying the standards codified by the Supreme Court in Rule 4:36 3(b). The record further shows: (1) plaintiff and his counsel made multiple comments to the jury concerning plaintiff's need for surgery, despite a lack of any expert testimony to support this medical conclusion; (2) plaintiff testified about having suicidal ideations connected to the injuries he allegedly sustained in this accident, without expert testimony to support any psychiatric or psychological *397 harm; and (3) plaintiff and his wife both made comments as part of their direct testimony that specifically and improperly referred to the quantum or adequacy of a potential monetary damage award. The cumulative effect of these errors had the capacity to inflame the jury's passion thereby depriving defendant of her right to a fair trial. Finally, reviewing the totality of the evidence presented at trial in the light most favorable to plaintiff, the jury's award of $2,000,000 in compensatory damages shocks our collective judicial conscience because it is grossly disproportionate to the injuries plaintiff sustained as a proximate cause of this automobile accident. A new trial as to both liability and damages is the only way to counteract this clear miscarriage of justice.

11 Cho v. Trinitas, 443 NJ Super 461 (App. Div. 2015) Late motions in limine In Klier v. Sordoni Skanska Construction Co., 337 N.J.Super. 76, 766 A.2d 761 (App.Div.2001), we held the plaintiffs were denied due process of law when a trial court sua sponte conducted a summary procedure on the day of trial and dismissed their complaint. This medical malpractice case presents an unfortunately more common variation of the scenario in which a litigant's case is dismissed on the day of trial. Although labeled a motion in limine, the motions filed by defendant, on the day before jury selection sought the dismissal of the complaint in its entirety, an admitted violation of the rule governing summary judgment motions. We now hold that the trial court's consideration of these motions and dismissal of the complaint against Defendant deprived plaintiffs of their right to due process of law. he fact that this misuse of the motion in limine occurs sufficiently often to win our notice, despite our repeated cautions against such practice, leads us to conclude it necessary to state clearly what a motion in limine is not. It is not a summary judgment motion that happens to be filed on the eve of trial. When granting a motion will result in the dismissal of a plaintiff's case or the suppression of a defendant's defenses, the motion is subject to Rule 4:46, the rule that governs summary judgment motions.

12 Rivera v. McCray, 445 NJ Super. 315 (App. Div. 2016) Step-downs in coverage On July 5, 2011, defendant Elmer F. McCray rear-ended plaintiff Vanessa Rivera while she operated a vehicle owned by her mother, Janet Torres White, who was insured by NJM. Rivera was separately insured under a special policy issued by National Continental Insurance Company.Rivera alleged she sustained significant and permanent personal injuries. Rivera settled her negligence claim against McCray for his policy's liability limit of $15,000. Rivera then sought recourse to $85,000 of the $100,000 of UIM coverage available under her mother's policy. Rivera's special policy provided no UIM coverage whatsoever. NJM denied Rivera's claim based on a step-down provision. The provision applies to an insured who is not a named insured under the NJM policy, but is a named insured under another policy providing similar coverage that is less than the NJM policy's UIM liability limit. The provision states that the maximum liability limit for such an insured shall step down to the liability limit under any insurance providing coverage to that insured as a named insured.

13 This appeal requires us to interpret an underinsured motorist (UIM) coverage step-down provision in a personal automobile insurance policy, issued by defendant New Jersey Re Insurance Company (NJM) 2. The issue presented is whether a special *317 policy, see N.J.S.A. 39:6A 3.3, which provides no UIM coverage at all, provides similar coverage so as to trigger the step-down provision and reduce UIM coverage to zero. Based on the plain language of the NJM policy and wellestablished principles of insurance contract interpretation, we conclude it does not. We therefore reverse the trial court's order dismissing plaintiff's claim to UIM coverage under the NJM policy. We conclude that the special policy does not provide similar coverage because it provides no UIM coverage whatsoever. The special policy, authorized by N.J.S.A. 39:6B 1(c), and described in N.J.S.A. 39:6A 3.3, is available only to certain Medicaid recipients of limited income. By law, a special policy shall not provide... underinsured motorist coverage. N.J.S.A. 39:6A 3.3(c). The policy, sold to Rivera for $360 a year, provides only limited first-party benefits for emergency medical expenses, and a death benefit.. It was designed to provide a mechanism for drivers of severely limited economic means to comply with the compulsory insurance law, instead of driving uninsured.

14 Troupe v. Burlington Coat Factory, 443 NJ Super. 596 (App. Div. 2016) Mode of operation: I slipped on a berry and I can t get up! [Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015)] Under New Jersey law, [b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation.. The duty of due care to a business invitee includes an affirmative duty to inspect the premises and requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe. Owners of premises are generally not liable for injuries caused by defects of which they had no actual or constructive *602 notice and no reasonable opportunity to discover. Ibid. For that reason, [o]rdinarily an injured plaintiff... must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. A defendant has constructive notice when the condition existed for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent. Constructive notice can be inferred in various ways. The characteristics of the dangerous condition giving rise to the slip and fall.

15 In this case, Troupe encourages us to expand the mode-ofoperation rule beyond the narrow circumstances to which it has been held to apply, claiming it should apply where the mode of operation has to do with the store's cleaning schedule because it was foreseeable that food items would be brought into the children's department and then dropped on the floor by parents or children. We decline to do so because this misconstrues the rule. To begin with, the mode-of-operation rule is a special application of foreseeability principles because of the risks posed by self-service and not a general rule of premises liability. When the rule applies, it relieves the plaintiff of the burden of proving actual or constructive notice of the dangerous condition. It gives rise to an inference of negligence, shifting the burden of production to the defendant, who may avoid liability if it shows that it did all that a reasonably prudent man would do in the light of the risk of injury the operation entailed. However, the mode-ofoperation doctrine has never been expanded beyond the selfservice setting, in which customers independently handle merchandise without the assistance of employees or may come into direct contact with product displays, shelving, packaging, and other aspects of the facility that may present a risk. The Court observed that what is important is a nexus between self-service components of the defendant's business and a risk of injury in the area where the accident occurred.

16 Walker v. Costco, 445 NJ Super. 111 (App. Div. 2016) Mode of operation: I slipped on banana cream pie and I can t get up! Mode-of-operation liability principles have long been recognized in our state, in factual contexts where a dangerous condition of the premises has been shown to arise from a defendant's decision to provide goods to customers through self-service methods. As Chief Justice Weintraub observed fifty years, a case in which a supermarket customer shopping in the vegetable section slipped and fell when she stepped on a string bean on the floor: When greens are sold from open bins on a self-service basis, there is a likelihood that some will fall or be dropped to the floor. If the [defendant] operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator's vigilance must be commensurate with that risk.

17 As the Chief Justice further noted in Wollerman, if the dangerous condition on the floor was the result of another patron's conduct in dropping the string bean, since [that] patron's carelessness is to be anticipated in this self-service operation, [the] defendant [retail store] is liable, even without notice of the bean's presence on the floor. The effect of a modeof-operation theory of liability in self-service situations where there is a reasonable factual basis in the evidence to support that theory is to relieve a plaintiff of having to prove the usual element of actual or constructive notice of a hazard, which otherwise is necessary for an ordinary claim of negligence. Such circumstances give rise to a rebuttable inference that the defendant is negligent, and obviates the need for the plaintiff to prove actual or constructive notice.

18 Sackman v. NJM, 445 NJ Super. 278 (App. Div. 2016) Permanent injury On June 2, 2008, a car driven by Earl Smith rear-ended plaintiff 1 Stuart Sackman's car while it was stopped on Route 22 in Bridgewater Township. Plaintiff claims he sustained permanent injuries on the left side of his body, particularly his left shoulder. Plaintiff settled his claims against Smith and sought underinsured motorist (UIM) compensation from New Jersey Manufacturer Insurance Company (NJM), the carrier that issued his automobile insurance policy. 2 The policy issued by NJM contained a provision pursuant to the Automobile Insurance Cost Reduction Act (AICRA), requiring plaintiff to show he suffered a permanent injury, as defined in N.J.S.A. 39:6A 8(a), in order to recover compensatory damages. Unable to reach a resolution of his UIM claims, plaintiff filed suit against NJM. The matter was tried in the Law Division before a jury over a period of three days in January After deliberating for approximately twenty minutes, the jury returned a unanimous verdict finding plaintiff did not prove, by a preponderance of the evidence, he sustained a permanent injury that was proximately related to the June 2, 2008 accident. The trial court thereafter denied plaintiff's motion for a new trial.

19 Plaintiff now appeals arguing the trial judge erred in denying his motion to preclude the jury from having to find he suffered a permanent injury that is proximately related to the June 2, 2008 accident. Plaintiff claims the evidence presented at trial indisputably *282 established this element of his cause of action as a matter of law. Alternatively, plaintiff argues the brevity of the jury's deliberations is per se indicative of bias and constitutes a clear miscarriage of justice. Finally, in the course of her opening statement to the jury, NJM's counsel referred to the tortfeasor as defendant. Plaintiff argues the court's curative instructions to the jury in response to his counsel objection were insufficient to cure NJM's counsel's misleading characterization of the trial and constitutes reversible error. We reject these arguments and affirm Within its fact-finding role, a jury must determine whether plaintiff has satisfied his statutory burden by a preponderance of the evidence. Here, the trial judge's analysis and ultimate conclusion is amply supported by the evidence presented at trial and properly applied the statutory standard established by the Legislature in AICRA.

20 Plaintiff next argues the fact it took the jury approximately twenty minutes to reach a unanimous verdict finding plaintiff did not prove, by a preponderance of the evidence, he sustained a permanent injury that is proximately related to the June 2, 2008 accident constitutes a per se miscarriage of justice. Plaintiff's appellate brief devotes a total of two and one half pages to this argument. A half of one page contains a verbatim recitation of the Model Civil Jury Charge, through which a trial judge admonishes jurors to decide the case impartially and not permit sympathy, passion, bias, or prejudice, to influence their decision. Model Jury Charge (Civil), 1.12P, No Prejudice, Passion, Bias or Sympathy (2007). Plaintiff does not cite any legal authority to support the extraordinary relief he seeks from this court. Plaintiff merely equates the brevity of the deliberations with a miscarriage of justice. Under these circumstances, plaintiff's argument lacks sufficient merit to warrant any further discussion in a written opinion.

21 Krzykalski v. Tindall, NJ Super (App. Div. 2016) Fictitious party In urging our reliance on statements in our case law that a fictitious party is not a party to a suit, and the statutory direction that the trier of fact determine [t]he extent, in the form of percentage, of each party's negligence, N.J.S.A. 2A: (b) plaintiff contends that the trial judge erred in directing the jury to determine whether John Doe was negligent and, if so, the percentage to which he was responsible. Although it gives the appearance of some syllogistic logic, we do not find this argument persuasive. Consideration of an alleged tortfeasor's negligence and degree of responsibility is not governed by whether that tortfeasor may be said to be a party but turns on whether the other tortfeasor will be affected by the verdictwhen the factfinder is allowed to evaluate the liability of all those potentially responsible. So, although, for example, an employer insulated by workers compensation laws will not have its responsibility apportioned, other tortfeasors, such as those who have sought or obtained the protection of bankruptcy laws, and therefore are no longer answerable in damages, should nevertheless be considered. Because the Comparative Negligence Act would be disserved by exalting the party label in adjudicating responsibility for a plaintiff's claim, we have recognized that a non-settling defendant has a right to have a jury apportion the liability of a settling defendant once it has been proven at trial that the settling defendant was, in fact, negligent. Consequently, we have held that the comparative negligence of a phantom driver, such as John Doe here, should be considered by a jury in a trial brought by an injured party against another tortfeasor.