December 2005, No. 1

December 2005, Vol. VIII, No. 1

Happy Holidays and A Healthy New Year. I would like to wish everyone who reads this column (and even those who do not) a very happy holiday season and a healthy and happy new year. May the new year and holiday season be joyous for all!! On a different note, I apologize for the lack of an update last month, but I was on trial and a tad busy. Now, let's talk some CIVIL LAW.

Does a plaintiff's expert in a verbal threshold case have to conduct a comparative analysis of a plaintiff's prior injuries? For those of you who said yes because of Polk v. Daconceiao, 268 N.J. Super. 568 (App. Div. 1993), you are wrong. In a major decision, the Appellate Division recently held that Polk was decided pre-AICRA, and that the Supreme Court's decisions in DiProspero and Serrano eliminated the pre-AICRA standards for the verbal threshold. See Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005). As a result, the panel concluded that the comparative analysis required under Polk was no longer required, and that a plaintiff is required to prove only that he sustained a permanent injury from the accident. Two other panels have reviewed this issue: one agrees with Davidson (Hardison v. King, 381 N.J. Super. 129 (App. Div. 2005)), but the other does not (Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005)). In Davidson, the plaintiff permanently injured her back in a rear-end collision, but also had sustained temporary injuries in the past. However, the plaintiff was not claiming an aggravation to a pre-existing injury. Therefore, the panel found that she had no obligation to apportion the injuries. This opinion makes perfect sense as the requirement for a comparative analysis places an undue burden on a plaintiff, especially one who is not claiming an aggravation to an underlying injury. If the defense claims that a plaintiff's injuries are related to a pre-existing injury, it should be the defense's burden to prove that theory as it is akin to an affirmative defense. Stay tuned as the Supremes will be looking at this issue.

Does res ipsa apply to an automatic door that closes unexpectedly and injures a person? In reversing the Appellate Division, the Supreme Court said yes. See Jerista v. Murray, 185 N.J. 175 (2005). In Jerista, the plaintiff entered a supermarket through an automatic door that swung back and hit her causing significant injuries. The Supreme Court found that the plaintiff satisfied her elements of a prima facie case: (1) the occurrence bespeaks negligence; (2) the instrumentality was within the defendant's exclusive control; and (3) no evidence exists to show that injury was caused by plaintiff's own act. The Supreme Court then explained that to trigger res ipsa, a plaintiff does not have to explain all possibilities, but merely has to demonstrate that it is more probable than not that the defendant's negligence caused the accident. Ultimately, if res ipsa applies, the jury is entitled to infer that the defendant was negligent. Also, be advised that the Supreme Court found that expert testimony is not required in these circumstances because the accident bespeaks negligence. This opinion is sound legal reasoning and eliminates an unnecessary burden on plaintiffs in obvious situations of negligence.

Does landscape irrigation fall under home improvements and the consumer fraud act? Not so easy. For those of you who said of course not, they would be wrong. In Artistic Lawn & Landscape v. Smith, 381 N.J. Super. 74 (Law Div. 2005), a homeowner and an irrigation contractor entered into a contract for the installation of a sprinkler system, but the contractor's work did not comply with the contract. First, landscape irrigation requires that a contractor obtain a certification pursuant to N.J.S.A. 45:5AA-3. Who knew? Second, the Consumer Fraud Act (CFA) applies to home improvement contracts, and thus, the contractor's installation of a system that differed from the one that was in the contract violated the CFA and the regulations. Interestingly, the homeowner could not show any damages except for the invoice from the contractor. The court found that a contractor who fails to obtain the certificate commits a per se violation of the CFA, and therefore, the homeowner was entitled to a refund of any moneys paid to the contractor. The refund was not trebled because it was not an "ascertainable loss" under the CFA. Attorney fees were imposed because they are independent of the trebling. Three cheers for the trial court – every part of the decision was a home run!

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 [email protected].

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