October 2005, No.1

October 2005, Vol. VII, No. 1

Take me out to the ballgame, but what if I get hurt while buying a hot dog? For those of you said that I am out of luck because of the "limited duty" of care owed by stadium owners and operators, think again. Most of you are probably thinking that the holding in Schneider v. American Hockey & Ice Skating Center, Inc., 342 N.J. Super. 527 (App. Div. 2001), would make such a claim very difficult. Remember, in that case the Appellate Division held that there is a two-part limited duty of care test, which requires (1) that the owner or operator provide protected seating for spectators who may expect to want such protection, and (2) the owner or operator must provide such protection for spectators who are in the most dangerous section of the arena. However, in Maisonave v Newark Bears Professional Baseball Club, Inc., 185 N.J. 70 (2005), the Supreme Court ruled that when fans leave their seats and go to other areas of stadiums, they are in a state of "heightened vulnerability," and that therefore, the owners and operators owe a reasonable duty of care to protect spectators. The Supreme Court concluded that the business invitee rule applies to these situations. In a concurrence, Justice Wallace argued that traditional negligence principles should apply to all aspects of stadiums and that the limited duty rule for stadiums should be abolished. Justice Rivera-Soto dissented from what he called the majority's hybrid duty of care. We believe that the majority's opinion reaches a fair compromise for injuries in vulnerable areas of stadiums. More importantly, the Justices' views on torts are becoming quite clear. Justice Rivera-Soto seeks to limit the exposure of businesses whereas Justice Wallace seeks to require businesses to take reasonable measures to protect patrons. Other Justices are also showing their true colors, but that is for another day.

Rule Change. For those of you who have form affidavits of non-military service to obtain a judgment by default, be advised that R. 1:5-7 has been amended. Unless the affidavit contains facts admissible in evidence, the affidavit must include a statement from the Department of Defense that the defendant is not in the military. Do not fret as the Department of Defense makes this quite easy with its website. Go to dmdc.osd.mil/scra/owa/home, and type in the social security number and birth date, if that information is known, of the defaulting party, and the Department of Defense will provide a written statement. Extra work, but not a big deal.

Is a chiropractor's certification permitted under AICRA? Yes. In Afram v. Heller, N.J. Super. (App. Div. 2005), the Appellate Division held that a chiropractor qualifies as a physician under N.J.S.A. 39:6A-8a, which mandates that a plaintiff who has an insurance policy with the verbal threshold must provide the defendant with a physician's certification stating that the plaintiff's injuries meet one of the six permitted categories. In reaching its decision, the Appellate Division settled the inconsistent views of the Law Division on this issue. Chiropractors provide medical treatment, and often times, they are the first line of care for injured people. Thus, this opinion clarifies that chiropractors can sign the certification.

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@epsteinbeirne.com

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