May 2007, No.4

May 2007, Vol. V, No. 4

What Constitutes Good Cause to Extend Discovery Before the Expiration of the Discovery End Date? Not much. In Leitner v. Toms River Regional Schools, 392 N.J. Super. 80 (App. Div. 2007), the Appellate Division stated that the standard of "good cause shown" for motions to extend discovery under R. 4:24-1c is flexible. In Leitner, the trial court denied plaintiffs' application to extend discovery so that they could take depositions, and later dismissed the case because plaintiffs could not adequately oppose defendants' motion for summary judgment. The Appellate Division reversed, and found that Best Practices was not designed to reduce the backlog. To the contrary, the panel asserted that Best Practices is a method for trial courts to manage discovery so that realistic dates for arbitration and trial can be set. In Leitner, the Appellate Division concluded that in the absence of a fixed trial or arbitration date, the standard of good cause to extend discovery is not high. Finally, the Appellate Division stated that the prejudice to plaintiffs was obvious, and that trial courts must consider the prejudice to the parties when examining motions to extend discovery. This opinion hits the nail on the head as it alleviates unnecessary pressure from the trial bar and judges. The case also provides trial courts with the ability to focus on managing cases to reach justice as opposed to moving cases based on an arbitrary time line.

Does the Limited Duty Rule of Maisonave Apply to Pre-game Warmups? Yes with a twist. See Sciarrotta v. Global Spectrum, 2007 N.J. Super. LEXIS 127 (App. Div. 2007). For those of you who forgot, arena owners are required to provide "sufficient protected seating to those who would seek it on an ordinary basis and to provide screening in the most dangerous area of the stands." Maisonave v. Newark Bears Prof. Baseball Club, 185 N.J. 70 (2005). In Sciarrotta, the plaintiff, while seated in the seventh row, was injured at a hockey arena during warmups before the game began. The Appellate Division reversed the trial court's grant of summary judgment because it concluded that this area of the law is fact-sensitive and because warmups are different than the game, especially in the number of pucks used. Therefore, the panel determined that genuine issues of material fact existed whether the owner of the arena took necessary precautions to protect spectators or to warn them of the dangers during warmups. This decision correctly clarifies the Maisonave decision because it delves deeply into the factual circumstances of the case. As shown in this case, not all cases are alike, and the issue of protection must be judged on each individual case.

Does a Settlement of an Underlying Action Preclude a Plaintiff from Pursuing a Legal Malpractice Case? Think twice before answering because the answer is not yes because of Puder v. Buechel, 183 N.J. 428 (2005). In Puder, a matrimonial case, the Supremes ruled that a plaintiff who stated on the record that the settlement agreement was fair could not then sue her attorney for legal malpractice. However, the Appellate Division recently ruled that a settlement acts as a bar to a subsequent legal malpractice only if the plaintiff states that the settlement is fair and satisfactory. See Prospect Rehab. Servs. Inc. v. Squitieri, 2007 N.J. Super. LEXIS 110 (App. Div. 2007). In Squitieri, the plaintiff settled her underlying claims in an effort to mitigate her damages and to avoid receiving nothing or less than full value because of potentially devastating procedural problems. This case properly clarifies the law established in Puder, which sought to uphold the public policy of enforcing fair settlements, and permits plaintiffs to pursue valid legal malpractice cases when they are not satisfied with their settlements and settle solely to make the best of a bad situation.

Strange But True: Lois South lived with her daughter Amy South and grandson. Amy South had a relationship and child with Greg North who was a constant presence in the Souths' apartment. A Domestic Violence issue arose whether Greg North was a member of the household, and the case was captioned South v. North, 304 N.J. Super. 104 (Ch. Div. 1997). Thanks to Arthur Rose of Rose & DeFuccio for identifying this case. Keep them coming.

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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