Jan 15, 2021

January 2021 Client Litigation Alert

By Brian R. Lehrer, Esq.

A. Torts – Res Ipsa Loquitur

In a case involving an injury sustained as a result of an elevator, the Appellate Division recently held that plaintiff’s own negligence barred the application of res ipsa loquitur and declined the invitation to extend the doctrine to void this prong. Pannucci v. Edgewood Park Senior Housing, et al. – N.J. Super. – (App. Div. 2020).

Plaintiff, Kathleen Pannucci, was injured while boarding an elevator in her apartment building. She sued her landlord, its manager and the company that serviced the elevator.

Her suit was dismissed on summary judgment for lack of proof of negligence. The Appellate Division affirmed holding that res ipsa loquitur – “the thing speaks for itself” – did not apply to create an inference of negligence.

To employ the res ipsa loquitur doctrine, a plaintiff must show three things: first the accident was one that ordinarily bespeaks negligence; second the defendant exclusively controlled a thing that caused the injury; and third the injury did not result from plaintiff’s own voluntary act or neglect. See generally, McDaid v. Aztec W. Condo, 234 N.J. 130 (2018).

The incident occurred when plaintiff was entering the elevator with her dog. The elevator doors had already closed six inches when her right arm, which was holding the leash, extended into the cab and continued to close striking her left arm. The trial Court had granted summary judgment by finding, among other things, that plaintiff had failed to meet the doctrine’s third requirement – one could reasonably infer that plaintiff negligently caused her own injuries by keeping her dog on such a long leash and forcibly stopping the elevator doors. Citing out-of-state law, plaintiff argued that this third prong should be jettisoned from the doctrine because it is contrary to the competing doctrine of comparative fault. The Appellate Division inclined plaintiff’s invitation.

The Appellate Division noted that it is not within its ambit to disturb settled precedent absent a signal from the Supreme Court.

Additionally, the Court addressed the exclusive control prong of the test. It noted that a landlord may not delegate its duty to exercise reasonable care for its tenant’s safety, even if it contracts for the maintenance of an elevator and that a group approach to res ipsa loquitur is supportable in cases where two parties share responsibility for a dangerous activity.

B.                 Arbitration – Limits of Arbitrator’s Powers

In a case involving an arbitration agreement, the Appellate Division recently held that an arbitrator could not decide the validity of a purchase agreement until the trial Court resolved issues of fact pertaining to the formation of the arbitration provision and determined the parties agreed to arbitrate their claims. Knight v. Vivint Solar, et al., - N.J. Super. – (App. Div. 2020).

            Plaintiff, Melissa Knight, filed a Complaint against the defendants alleging violations of statutory and common law fraud against defendants, Vivint Solar Developer and its sales person Phillip Chamberlain. Defendants thereafter moved to compel arbitration and stay the action. The trial Court granted defendants’ motion but the Appellate division reversed. Plaintiff and defendant entered into a Residential Solar Power Purchase Agreement (RSPPA) which contains an arbitration provision.

            Under Section 2 of the Federal Arbitration Act (FAA), states may regulate arbitration agreements under general contract principles. Arbitration clauses may be invalidated on grounds existing at law or equity that call for the revocation of any contract. An arbitration agreement must be the produce of mutual assent. 

            The Court concluded that there existed questions of fact concerning the mutuality of assent to the arbitration provision. The Court noted that plaintiff claimed she had not signed it and there was a dispute between the parties as to whether the text in the contract had even been shown to plaintiff. The Court held that the arbitrator could not decide the validity of the RSPPA unless and until the trial Court resolved the issues of fact pertaining to the formation of the arbitration provision and determined the parties agreed to arbitrate their claims. Absent that agreement, the arbitrator was not empowered to determine plaintiff’s issues concerning the formation and execution of the RSPPA.

C.                 Torts – Allocation of Damages

In a case involving a claim for negligence against successive tortfeasors, the Appellate Division recently held that a non-settling defendant is entitled to a pro rata credit for the responsibility of the settling defendant, not a pro tanto credit. Glassman v. Fridel, et al, - N.J. Super. – (App. Div. 2020). The Court noted that in the context of successive torts, the law seeks to achieve the legislative objective of comparative responsibility by requiring juries to apportion damages between successive events and to apportion fault among the parties responsible for each event. 

            In Glassman, Jennifer Glassman fell at a restaurant and fractured her ankle. She received treatment for the injury and ultimately underwent surgery which resulted in her death from a pulmonary embolism. A settlement in the amount of $1.15 million was reached with the restaurant and the medical defendants sought a declaration that they would be entitled to a pro tanto (dollar for dollar) credit against any potential damage award a jury might render. The Appellate Division held that the medical defendants would only be entitled to a pro rata credit for the harm caused by the restaurant, as opposed to a pro tanto credit.

            The Appellate Division recognized important differences between joint tortfeasors and successive tortfeasors. In the case of successive tortfeasors, there is no joint and several liability but while the first tortfeasor is responsible for all damages that naturally and proximately flow from the initial tort, the first tortfeasor may seek indemnification from any successive tortfeasors which inflict a subsequent injury on the plaintiff.

            Essentially, the Appellate Division endorsed the concept that in cases involving successive tortfeasors, the end goal is that no tortfeasor should pay for damages it did not cause. Importantly, the distinction between joint and successive tortfeasors does not require a successive tortfeasor to establish the negligence of the initial tortfeasor in order to seek a pro rata apportionment of damages between the two events. This is an important distinction from a settling joint tortfeasor whose negligence must be established in order for the non-settling tortfeasor to obtain an apportionment under the Comparative Negligence Act. See N.J.S.A. 2A:15-5.1 et. seq.

D.                Damages: Emotional Distress

In a case involving allegations of medical malpractice, the Appellate Division recently held that plaintiff could not establish emotional distress damages as a matter of law and thus upheld the dismissal of his case. Clark v. Nenna, et al., - N.J. Super. – (App. Div. 2020).

Plaintiff, Francis Ross Clark, filed suit after a surgeon left washers behind in the bone of his leg after completing surgery. Four years after the surgery, plaintiff learned of the retained washers when he underwent an x-ray of his leg related to other medical concerns.

Plaintiff filed a Complaint alleging medical malpractice. He acknowledged that he was seeking damages related only to emotional distress. The defendant was granted summary judgment and the Appellate Division affirmed. 

The Appellate Division held that a claim for negligent infliction of emotional distress requires severe or genuine and substantial emotional distress. Ordinarily, medical or expert proof is required to establish emotional distress damages.

The Court noted two exceptions to the rule: intentional torts such as racial or sexual discrimination; and cases involving “special circumstances” such as emotional distress from malicious use of process, wrongful birth arising from inadequate genetic counseling and where a funeral home failed to ensure that orthodox ritual requirements were met.

Under most circumstances, a plaintiff is required to support his claim for emotional distress damages, as a matter of law, with medical or expert proof. As plaintiff did not do so in this case, the Appellate Division upheld the dismissal.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client


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