March 2008, No. 2

March 2008, Vol. VI, No. 2

Rule Amendments. The Supreme Court Civil Practice Committee has issued proposed amendments to the rules. If you wish to comment on the proposals, you should contact Philip S. Carchman, J.A.D., Administrative Director of the Courts, by April 7, 2008. The amendments of interest are:

R. 4:23-5. If an order of dismissal or suppression without prejudice has been granted because a party has failed to respond to discovery, the party entitled to the discovery may move for a dismissal with prejudice in 60 days rather than 90 days. The Committee found that 90 days were excessive. We agree with this proposal because it provides finality sooner for the party who has not received discovery.
4:24-1. When a pleading is reinstated pursuant to 4:23-5, courts are to extend the discovery end date. This proposal is practical because the party who had the motion to strike or dismiss granted should not be prejudiced by a shorter discovery period.

Can a Manufacturer Be Held Liable for Products Liability When End Users Have the Product Altered? The short answer is no. In Boyle v. Ford Motor Co., 2008 N.J. Super. LEXIS 60 (App. Div. 2008), the plaintiff rear-ended a commercial truck manufactured by Ford. The truck had many different commercial uses, and the final stage manufacturer and/or the end user would install a bumper guard to fit their needs. In Boyle, another defendant installed the bumper guard, which failed to work, the plaintiff's car was crushed, and the plaintiff sustained debilitating brain injuries. The trial court did not charge comparative fault (not sure how that happened), and the jury concluded that Ford manufactured a defective product, and that Ford was 70% liable for the collision and the company that installed the guard was 30% liable. Verdict amount was approximately $27 million. Without discussing the trial court's failure to charge comparative fault for rear-ending a truck, which we believe was plain error, the Appellate Division reversed because Ford's role was consistent with a component-product manufacturer. Therefore, it was not practical or feasible to impose on Ford the responsibility to provide the bumper guard. Given the amount of money at issue, we expect that the Supreme Court will be petitioned to take the case. Whether the Supremes take the case or not, the Appellate Division properly reviewed the law and imposed the responsibility of installing the guard on the right manufacturer.

Does a Tavern Have a Duty to Prevent an Intoxicated Person from Driving When the Tavern Did Not Serve the Person Alcohol? For those of you who said that the Dram Shop Act does not apply because no alcohol was served, you would be wrong. In Bauer v. Nesbitt, 2008 N.J. Super. Lexis 64 (App. Div. 2008), the plaintiff was visibly drunk while sitting with the defendant-driver who was underage and not served at the co-defendant tavern, but also showed visible signs of intoxication. The Appellate Division concluded that summary judgment was not appropriate because a jury question existed on whether the tavern should have called the drunk plaintiff a cab or ensured that a sober person drove him home. The panel also held that the tavern had a duty to prevent the unserved co-defendant from driving from the tavern because he was visibly intoxicated. The latter holding was based on the common law theory of negligent supervision. This case imposes a significant burden on tavern keepers – are they supposed to ask a table who the driver is? Are they supposed to determine how drunk patrons are getting home? The Dram Shop Act states that liability arises for serving patrons, and the lack of serving here poses an inherent inconsistency in the decision.

Practice Reminder: Discovery End Dates: If you need additional time to conduct discovery, R. 4:24-1c permits a party to obtain 60 days by obtaining consent from the opposing party and by contacting the Civil Division Manager by letter or telephone. If you have already used the free 60-day extension, then you must follow R. 4:24-2, which requires a party to file a motion requesting an extension of discovery. The standard of review is good cause so state the reasons why you need additional discovery and attach an order outlining the discovery to be conducted and when it will be conducted. The key is that this motion must be filed before the discovery end date so mark your calendars accordingly. If you miss the deadline, your motion will be considered under the exceptional circumstances standard.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil-related story, please contact me at 201-918-3560, (f) (201) 845-5973, or e-mail mjepstein@theepsteinlawfirm.com.

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