eNotes: Liability – March 2022 – New Jersey

NEW JERSEY CASE SUMMARIES

Labega v. Joshi
New Jersey Superior Court, Appellate Division
No. A-3402-20, ___ N.J. Super. ___

Decided: February 3, 2022

With regard to certain negligence per se and breach of contract claims in medical malpractice cases, the Superior Court of New Jersey, Appellate Division has held that these theories of recovery are not available against medical providers, in addition to or in lieu of professional negligence claims.

Background

Plaintiff Shawn Labega sought emergency treatment at Defendant JFK Medical Center for persistent aching pain in his ankle. Defendants noted that the nailbeds of two of Plaintiff’s toes were cyanotic and that his toes were cool to the touch. After an x-ray revealed no fracture, Plaintiff was diagnosed with an ankle sprain and discharged. Plaintiff returned to the ER several days later, when a vascular workup revealed a right popliteal occlusion. Thereafter, Plaintiff underwent a below-knee amputation, since his blood flow could not be restored.

Plaintiff filed a medical malpractice action against the Defendants. As part of his claims, Plaintiff argued that hospital policies and certain contracts between the Defendants governed patient care and therefore, as a patient, Plaintiff was an intended third-party beneficiary of those contracts. Plaintiff alleged that Defendants breached those contracts and as a result caused his injuries. Defendants moved for summary judgment on Plaintiff’s breach of contract and negligence per se claims arising from Defendants’ alleged breach of their contractual obligations and their hospital policies. Defendants argued that such claims were not cognizable under New Jersey law. The Superior Court of New Jersey, Law Division, denied the Motion, finding that it was not uncommon for those theories to be pursued in medical malpractice cases. On appeal, the Appellate Division reversed.

Holding

The Appellate Division permitted Defendants leave to file and pursue an interlocutory appeal of the Law Division’s denial of the Defendants’ Motions for partial summary judgment. The Appellate Division held that breach of contract claims in medical malpractice cases were generally only appropriate where a patient had a “special agreement” with a medical provider. The Court ruled that Plaintiff’s contract and negligence per se claims failed as a matter of law, because Plaintiff had not pled the existence of such an agreement.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

Russi v. City of Newark
New Jersey Superior Court, Appellate Division
No. A-1064-20, ___ N.J. Super. ____

Decided: February 18, 2022

With regard to alleged liability for a tree limb falling on a car, injuring its driver, in the context of Tort Claims Act and Landowner’s Liability Act immunity defenses, the Superior Court of New Jersey, Appellate Division held that both Acts applied to immunize the County which owned and operated the road where Plaintiff was driving and the City which owned the land where the tree was located.

Background

Plaintiff Marc Russi was injured when a tree limb fell through the windshield of his car. The tree was located in a natural resource area owned by Defendant, City of Newark. The road Plaintiff was traveling on was owned by Defendant, Passaic County. The County was responsible for maintaining the road and a 25-foot right of way extending out to each side from the centerline of the roadway. Defendants, Nelson Tree Service and Nelson Tree Company, were alleged to have been contracted to perform such services concerning road-side tree maintenance. Following discovery, the County and City moved for summary judgment.

The Superior Court of New Jersey, Law Division, initially granted summary judgment to the County as the tree was not located on property owned by the County. The Law Division ultimately granted summary judgment to the City as well, holding that it was entitled to immunity under the Landowner’s Liability Act, unimproved public property immunity, and common law immunity.

Holding

On appeal, Plaintiff argued that the City and County were liable under the Tort Claims Act and that none of the immunities cited by the Trial Court were applicable. The Appellate Division rejected these arguments from Plaintiff and affirmed the Law Division rulings. The Appellate Division observed that there was no evidence that the County controlled the property where the tree was located or that it assumed responsibility for trees outside the County’s right-of-way. The Appellate Division further ruled that the Landowner’s Liability Act clearly did apply to immunize the City, since the road where Plaintiff was injured was a public pathway.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

Checchio v. Evermore Fitness, LLC
New Jersey Superior Court, Appellate Division
No. A-3461-20, ___ N.J. Super. ____

Decided: February 16, 2022

There were two new Appellate Division cases recently published (this and the following summarized case); both of which outline New Jersey’s appellate level view of arbitration agreements. The first, Checchio v. Evermore makes clear the Court’s desire to protect the right to a jury trial, as against an agreement to arbitrate, particularly where minors are concerned.

Background

In this case, the Trial Court denied a Motion to dismiss Plaintiffs’ Complaint in favor of arbitration, which had been filed by the Defendants, Evermore Fitness, LLC, d/b/a Sky Zone South Plainfield (Sky Zone), Sky Zone Franchise Group, Sky Zone LLC, Circustrix Holdings, LLC, Circustrix, LLC (Defendants). The Appellate Division of the Superior Court of New Jersey affirmed, finding that the minor Plaintiff’s friend’s mother did not have apparent authority to sign a release for her, despite the fact that her own mother had signed the same release previously, on five separate occasions.

Plaintiff Olivia Checchio, then 14-years-old, went to Defendants’ indoor trampoline park with four of her friends and one of her friends’ mother, Gina Valenti. At the park, Valenti signed a release agreement that included an arbitration clause, under which the signing adult waived jury trial and agreed for the Plaintiff to arbitrate any claim. After Plaintiff was injured at the park, her mother, Lisa Checchio, filed suit on behalf of Olivia and herself (Plaintiffs). Defendants moved to enforce the arbitration agreement. After ruling in Defendants’ favor, the Trial Court granted reconsideration, finding that there was no evidence Lisa had given actual authority to Valenti to sign the agreement.

Holding

On appeal, the Appellate Division affirmed the Trial Court’s Order and rejected the Defendants’ argument that Lisa’s execution of waivers on five prior occasions demonstrated a pattern of conduct sufficient to find that Valenti had actual and apparent authority to sign the agreement on behalf of Plaintiff. The Appellate Division noted that there was no evidence that Plaintiff’s mother expressly authorized Valenti to waive Plaintiff’s rights on the day she was injured.

In light of this Checchio decision, it is virtually impossible to conceive of a circumstance where a minor could be held to an agreement to arbitrate, unless the parent or legal guardian signs for the child. Parks, pools, playgrounds, etc. will have to require that a parent or legal guardian accompany the child to enter their property, if the validity of a prior release or agreement to arbitrate is desired.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

Antonucci v. Curvature Newco, Inc.
New Jersey Superior Court, Appellate Division
No. A-1983-20, ___ N.J. Super. ____

Decided February 16, 2022

This second case concerning arbitration agreements, Antonucci v. Curvature Newco, makes clear that the Federal Arbitration Act does preempt New Jersey’s Law Against Discrimination’s preclusion of arbitration agreements.

Background

In this case, Gilbert Antonucci was hired as a field engineer by a company that later merged with Defendant Curvature Newco, Inc. After the merger, Defendant sent Plaintiff an electronic copy of the company’s employee handbook. The handbook contained an arbitration agreement in a separate appendix. Although the appendix included a signature line, the arbitration agreement also stated that consent would be deemed to have been agreed to, if the employee continued employment. Plaintiff did not sign the arbitration agreement, but did click on an “I Accept” checkbox indicating he had received and reviewed the handbook. He did not quit. After Plaintiff was later fired, he filed a discrimination and wrongful termination claim against defendants, under the New Jersey Law Against Discrimination (LAD). Defendants moved to dismiss the action and compel arbitration.

The Trial Court granted the Motion, ruling that Plaintiff had agreed to the arbitration agreement by acknowledging that he had reviewed the documents, which indicated that voluntarily continuing in employment would constitute acceptance of the arbitration agreement.

Holding

On appeal, Plaintiff argued that the Trial Court erred in finding that he had agreed to arbitrate and in ruling that LAD’s prohibition on arbitration of discrimination claims had been preempted by the Federal Arbitration Act (FAA). The Appellate Division substantially affirmed. It held that the arbitration agreement was enforceable because Plaintiff acknowledged that he reviewed the agreement, which advised that continued employment would constitute acceptance of the agreement. The Appellate Division further found that the FAA preempted the provision of the NJLAD that barred arbitration of discrimination claims. The case was remanded for an order staying the case pending arbitration.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.