Premise
Liability – Exception to commercial landowner’s non-delegable
duty to ensure its property is safe for invitees
A commercial landowner
has a non-delegable duty to ensure that the property is safe for
use by invitees of the landowner’s commercial tenant.
However, the New
Jersey Superior Court, Appellate Division, published two cases indicating
that there is an exception to a commercial landowner’s non-delegable
duty in this regard if the landowner provides exclusive control of
the property to its commercial tenant. See Milacci v. Mato Realty
Co., Inc., 217 N.J. Super. 297, 301 (App. Div. 1987), and McBride
v. Port Authority of New York & New Jersey, 295 N.J. Super.
521, 525-526 (App. Div. 1996).
In Milacci,
the Appellate Division held that the owner of a building that was
leased to the State was not liable for plaintiff’s personal
injuries sustained at the building, because the owner’s lessee,
the State, had exclusive control over the premises. 217 N.J. Super.
at 301. Plaintiff Milacci alleged that she slipped and fell on an
accumulation of sand and dirt on the floor of the State unemployment
office located in the building. Id. at 299. To support the proposition
that the State was in exclusive control of the premises, the Appellate
Division considered the fact that the State had entered into its
own contract with a third party, B. Anderson Custodial Services,
to perform custodial services at the site. Id. at 302.
In the McBride case,
the court held that a commercial landlord was not liable for injury
to a commercial tenant’s employee that was allegedly injured
on the leased premises since the commercial lease placed responsibility
for maintenance and repair of the leased premises solely upon the
tenant. 295 N.J. Super. at 522. Plaintiff McBride was injured when
the vehicle he was operating on his employer’s loading dock
struck a hole, causing him to fall to the ground and sustain injury. Id .
at 524.
The Appellate Division
in McBride set forth an analysis of the evolution of the
case law regarding the duties of commercial landowners. The court
specifically states that:
“While
some states have imposed a general tort duty of reasonable care
upon landlords which may not be avoided by lease provisions, (citation
omitted), our Supreme Court has not yet accepted that concept,
and plaintiff has not contended in the court below or in this court
that is should be incorporated into our common law. Furthermore,
in Milacci v. Mato Realty Co., Inc., we expressly rejected the
opportunity to so hold.” McBride, 295 N.J.
Super. at 526.
The McBride court
went on to hold that the terms of the lease between plaintiff’s
employer and the Port Authority were unambiguous with regard to the
responsibility for maintenance and repair of the loading dock, the
site of the accident. Id. 523.
The New Jersey Supreme Court has
not considered this issue. Consequently, the Appellate Division’s
holding in Milacci is still good law, and sets forth an
exception to the general principle that a commercial landowner
has a non-delegable duty to protect invitees from danger. Faust,
Goetz, Schenker & Blee currently represents commercial landowners
throughout the State of New Jersey. Where appropriate the above
argument is asserted by our office in the defense of cases where
the tenant of the commercial landlord assumed all maintenance responsibilities
for the property from our clients pursuant to a commercial lease.
Most recently we have been successful in moving for summary judgment
based on this argument.
Elevator Litigation – Need
for an expert
It is well settled
law in the State of New Jersey that it is recommended that plaintiffs
obtain an expert in order to establish that a complex instrumentality
was negligently maintained. See Jimenez v. GNOC Corp.
286 N.J. Super 533 (App. Div. 1996). The need for an expert in
complex instrumentality cases stems from New Jersey law that res
ipsa loquitur is inapplicable where the injured party fails to
exclude other possible causes of injury. See Gore v. Otis Elevator Co.,
335 N.J. Super. 296, 302 (App. Div. 2000).
Recently, in Huszar
v. Greate Bay Hotel and Casino, 375 N.J. Super 463 (App. Div.
2005), an Appellate Division court held that an elevator is a complex
instrumentality and a plaintiff needs to present expert testimony
in order to support his claim. In Huszar, the plaintiff’s
counsel failed to obtain an elevator expert during the discovery
period and relied on the theory of res ipsa loquitur. The Appellate
Division affirmed the trial court’s decision to dismiss this
matter because plaintiff’s counsel failed to obtain an elevator
expert and incorrectly relied on the doctrine of res ipsa loquitur.
The doctrine of
res ipsa loquitur is a method of circumstantially proving the existence
of negligence. It permits an inference of negligence without direct
evidence where three elements are established: (1) the event does
not normally happen in the absence of negligence, (2) the instrument
of harm was exclusively within the defendant's control, and (3) there
is no indication that the plaintiff caused her own injury. Where
applicable, res ipsa loquitur allows a plaintiff to establish a prima
facie case and to withstand a motion to dismiss for lack of direct
proof of negligence. Res ipsa loquitur does not shift the burden
of proof to the defendant, but only the burden of producing evidence.
See Knight v. Essex Plaza, 377 N.J. Super. 562 (App. Div.
2005).
The significance
of the Huszar case is that simply relying on the theory
of res ipsa loquitur may not be enough to support a claim where a
piece of machinery is involved. Our firm has successfully argued
that in order for a plaintiff to support a claim that involves a
piece of machinery, an expert must be retained. Alternatively, defendants
should consider filing summary judgment motions in cases where a
plaintiff fails to obtain an expert at the conclusion of the discovery
period.
Recently, in an
elevator negligent maintenance case, FGSB successfully moved for
summary judgment where the plaintiff and the co-defendants failed
to obtain an elevator expert report setting forth their theory of
liability against our insured and simply relied on the doctrine of
res ipsa loquitur. FGSB has taken the lead in aggressively defending
all elevator cases and moving for summary judgment in cases in which
plaintiffs fail to obtain an expert report setting forth their theory
of liability and rely only on the doctrine of res ipsa loquitur.
Verbal Threshold Defense
This past Spring, Faust, Goetz, Schenker & Blee
was anxiously awaiting the New Jersey Supreme Court’s decisions
on the future use of the verbal threshold defense in New Jersey
motor vehicle accident litigation. On June 14, 2005, the New Jersey
Supreme Court issued two published opinions that definitively eliminated
the need of an injured party to show that his or her alleged injuries
from a motor vehicle accident caused plaintiff a serious life impact.
See DiProspero
v. Penn, 183 N.J. 477 (N.J. 2005), and Serrano v. Serrano,
183 N.J. 508 (N.J. 2005).
Consequently, under The Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A 39:6A-1.1, et
seq., an injured party selecting the limitation on lawsuit option
in his or her personal automobile policy, or the “verbal threshold”,
need only prove by credible, objective evidence that the injury sustained
falls with one of six statutorily created categories to recover for
non-economic, or “pain and suffering”, damages.
In DiProspero, the Supreme Court held that the plain language
of the AICRA does not contain a serious life impact standard. Id. An
extensive evaluation of the legislative history of the AICRA was performed,
revealing no evidence that the legislature intended to add a second
test for serious life impact. Previously, under the Oswin standard,
the court needed to analyze plaintiff’s claims under two prongs:
(1) serious and permanent injury, and (2) serious life impact. In DiProspero,
the court concluded that plaintiff must only establish a serious and
permanent injury as set forth in the six statutorily created categories.
The Serrano case was decided on the same day as the DiProspero case.
Plaintiff’s case was remanded for consideration under the new
standard. Plaintiff Serrano was twenty-one years old, unemployed,
and a passenger injured in a motor vehicle accident that occurred
while his wife was driving. He alleged acute neck and back strain,
TMJ, and carpal tunnel syndrome.
A July 21, 2005, published decision from the New Jersey Superior
Court, Appellate Division, evaluated plaintiff Juarez’ injuries
under the DiProspero and Serrano standard. In Juarez
v. Salerno, the court found plaintiff Juarez did not provide objective
evidence that the injuries sustained met the statutory standard set
forth in the AICRA. Plaintiff Juarez alleged back sprain/strain, left
sided L5 radiculopathy, post-traumatic stress syndrome with associated
nervousness, fatigue, depression and anxiety, and a right shoulder
contusion.
We expect that the Appellate Division will issue several published
cases in the upcoming months evaluating the limits of the types of
injuries that qualify under the newly created standard set forth in DiProspero and Serrano.
Currently, Faust, Goetz, Schenker & Blee continues to argue the
verbal threshold defense on behalf of our clients in all appropriate
cases. We anticipate testing the limits of the types of injuries
that will now qualify under this new standard throughout all counties
of New Jersey.
Labor Law §240 – Narrowing of claims
of appellate courts
Though originally intended as a “scaffolding” statute,
over the years the New York courts expanded the types of actions that
could be brought within Labor Law §240. It devolved to a point
when almost any injury to an employee on a construction site was subject
to “strict liability” under Labor Law §240.
Most recently, however, the New York Court of Appeals appears to
be significantly narrowing down the types of claims that may be brought
under Labor Law §240. In a recent case in which Faust, Goetz,
Schenker & Blee was instrumental, the Court of Appeals found that
a fall off of a flatbed truck was not an “elevation-related risk” sufficient
to necessitate the extraordinary protections of Labor Law §240.
The Court of Appeals is also moving towards making employees responsible
for their own negligence. In Montgomery, the Court of Appeals
found for the employer when the employee used a bucket to climb up
and down from the elevator housing. The court found that the plaintiff “should
have known” that he needed a ladder. This is a significant departure
from the prior “strict liability” that found an employer
liable for the lack of safety devices.
Furthermore, prior to the recent decision in Cahill, the
only defense an employer had against an employee who refused or negligently
failed to use available safety devices was the “recalcitrant
worker” defense. Historically, this was a very difficult defense
for the employer as the employer had the burden of proving that the
employee refused to obey an immediate, direct order. In Cahill,
the employee was instructed to use safety lines six weeks prior to
the accident. This was sufficient to find the employee was recalcitrant
and dismissed the Labor Law §240 action.
With the movement away from the heavy liability burdens for employers,
it is FGSB's position to vigorously use the complex litigation and
appellate departments to seek dismissal of Labor Law §240 causes
of action prior to settlement negotiations or jury trials.
