April 2008, No. 3

April 2008, Vol. VI, No. 3

What Must a Party Show to Vacate a Default Entered at Mandatory Arbitration? Pursuant to 4:21a-4(f), a party must show both good cause AND a meritorious defense. See SWH Funding Corp. v. Walden Printing Co., Inc., 399 N.J. Super. 1 (App. Div. 2008). In SWH, the Appellate Division found that the defendant's illness was good cause for not attending an arbitration and for not determining the outcome of the arbitration. However, the defendant failed to assert a meritorious defense in its motions papers, which mandated that its motion to vacate be denied. The moral to the story is you gotta read the fine print. When in doubt, read the rules twice!

Is an Affidavit of Merit Required for a Claim Against a Midwife? For those of you who said yes because an Affidavit of Merit is required for claims against nurses and doctors, you are wrong. In Saunders v. Capital Health Systems, 398 N.J. Super. 500 (App. Div. 2008), the Appellate Division held that a midwife is not a "licensed person" within the meaning of the Affidavit of Merit Statute. Right reading of the statute and right result.

Can a Hospital Have a Complaint Dismissed When a Plaintiff Fails to File an Affidavit Merit When the Court Did Not Conduct a Case Management Conference? No. In Saunders v. Capital Health Systems, 398 N.J. Super. 500 (App. Div. 2008), the Appellate Division ruled that under Ferreira v. Rancocas Orthopaedic Assocs., 178 N.J. 144 (2003), trial courts are required to hold a case management conference within 90 days of the filing of an answer in medical malpractice cases. Thus, the panel concluded the plaintiff's inadvertent failure to serve and file an affidavit of merit would have been avoided had the trial court held the mandatory case management conference. The Appellate Division nailed this one, and avoided an unnecessary legal malpractice case against the attorneys for the plaintiff.

Can an Attorney Ask a Jury to Increase Punitive Damages to Deter Others From Conduct Similar to that of the Defendant? For those of you who said sure you can, you will want to reconsider your answer. In Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 2008 N.J. LEXIS 222, the Supremes affirmed the Appellate Division's ruling that general deterrence is not a factor to be considered when a jury determines the amount of punitive damages to be provided to a prevailing plaintiff. Instead, a jury is to consider only specific deterrence. Interestingly, the Supremes added that the jury may consider the financial condition of the defendant at the time of the wrongful conduct because incertain situations, the financial condition of the defendant at the time of judgment may be zero, i.e., defendant is a company that is sold.

Does a Hockey Arena Have a Duty to Advise Spectators of the Risk of Injury If They Sit Outside the Area Required to Have Safe Seating? The Supremes had a tough time with this one, and in a 4-3 opinion by Justice Rivera-Soto, they answered no. See Sciarrotta v. Global Spectrum, 2008 N.J. LEXIS 314. In Sciarrotta, the plaintiff was the mother of a girl singing the national anthem, and her seat was above the plexiglass and outside the seated area that had netting. During warm-ups, the players were shooting multiple pucks at the net, one went into the crowd, and hit and injured her. This case involves the "limited duty" rule – sporting venues have a duty to provided protected seating for spectators who may reasonably desire same and must provide protection in the most dangerous areas. See Maisonave v. Newark Bears, 185 N.J. 70 (2005); Schneider v. American Hockey & Ice Skating Ctr, Inc. 342 N.J. Super. 527 (App. Div. 2001). In reversing the Appellate Division, the Supremes concluded that the limited-duty rule applies to warm-ups as well as games, and that the rule does not require venues to warn spectators about objects leaving the playing field. The Supremes reasoned that warm-ups are an integral part of the game, and that it would not create different duties based on the number of pucks on the ice. Justice Long, joined by Justices Albin and Wallace, authored a dissent stating that the venue should have posted a sign warning of the dangers of pucks leaving the ice during warm- ups so that the plaintiff could have made an informed decision about where she sat. We must agree with the dissent as the majority opinion fails to consider who is in the best position to protect against an injury – the venue. Here, the cost of a sign is so small in comparison to the potential risk of injury that the venue must bear the cost of the plaintiff's injury. In addition, this case highlights that not all people who attend games are aware of the inherent dangers of attending the event, and therefore, the venue should have been held liable. Finally, this opinion further demonstrates Justice Rivera-Soto's political philosophy of limiting plaintiffs' avenues for recovery and for promoting the interests of businesses.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil- related story, please contact me at (201) 918-3560 or e-mail mjepstein@theepsteinlawfirm.com.

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