September 2007, No.5

September 2007, Vol. V, No. 5

Welcome Back. We hope that you all enjoyed your summer, and that you are ready for some civil law.

Can Photographs of a Car's Damage Be Admitted into Evidence Without Expert Testimony to Prove Cause or Extent of a Plaintiff's Injuries? Yes. In Brenman v. Demello, 191 N.J. 18 (2007), the Supremes reversed the Appellate Division stating that (1) such photographs were relevant, and that (2) the probative value of such photographs was not substantially outweighed by undue prejudice. Writing for the Supreme Court, Justice Rivera-Soto stated that "a party opposing the admission of photographs of damage to a car remains free to offer expert proofs for the purpose of showing that there is no relationship between the extent of the damage and the cause and severity of the resulting injuries." The Supremes also asserted that in their experience, the force of impact of a car crash has a direct relationship with the injuries sustained in the crash. Near the conclusion of its opinion, the Supremes acknowledged cases outside the "heartland of common knowledge" where "bad" accidents cause "little injury" and "minor accidents" cause "serious injury." As a result of these types of cases, the Supremes suggest that trial courts provide a limiting instruction when photographs of car damage are introduced. Frankly, this opinion is troubling because it makes conclusions of fact without any evidence in the record to support the conclusion. In particular, what is the heartland of common knowledge, and how can the Supremes state that the force of impact has a direct relationship to the injuries to the occupants when there were no studies in the record? The Rules of Court are quite clear regarding what the Supremes may consider when evaluating a case. In addition, why must the party opposing the introduction of the photographs hire an expert to refute them. The party seeking to introduce the photographs bears the burden of demonstrating their admissibility. Thus, the Supremes have misplaced the burden in these cases. Very disappointed in the Supremes for rendering an opinion without facts to support their holding.

Does the Notice Requirement of the Torts Claims Act Apply to Claims under the New Jersey Civil Rights Act? For those of you who said if it does not apply to LAD claims, it cannot apply here, you are correct! See

Owens v. Feigin, 394 N.J. Super. 85 (App. Div. 2007). Three cheers for the Appellate Division for its thoughtful analysis and ruling. If this blurb seems short, we are as surprised as you, but the issue and answer are straightforward.

Do Passengers of a Car that Causes Injury Have a Duty to Assist Victim? For those of you who said no based on the common law that no duty exists for a person to assist another person when he or she did not cause the injury, you would be wrong. In Podias v. Mairs, 394 N.J. Super. 338 (App. Div. 2007), two young men were passengers in a car that struck a motorcycle, and rather than call for assistance, they fled the scene of the accident. Following their departure, another car ran over the motorcyclist. The Appellate Division reversed the trial court finding that the passengers had a duty to not interfere with the motorcyclist's opportunity to obtain assistance and/or to assist and "avoid further harm where the prior innocent conduct has created an unreasonable risk of harm to the plaintiff." This case properly places a duty on the passengers because they were in a situation to assist an injured person and chose to flee the scene of the accident. The Appellate Division properly extended the law in this case.

Are Independent Contractors Covered by CEPA? For those of you said no because an independent contractor does not fall within the ambit of the Conscientious Employee Protection Act, you would be wrong. See D'Annunzio v. Prudential Ins. Co., 192 N.J. 110 (2007). In D'Annunzio, the Supremes held that a reasonable definition of employee in the modern reality of business includes independent contractors. Thus, to ensure that the remedial purpose of CEPA is met, the Supremes concluded that an independent contractor is covered by the statute. We applaud the Supreme Court for their analysis in this case. A ruling to the contrary would allow employers to terminate independent contractors who identify and report improper or illegal conduct without facing any consequences. Such a result would flip CEPA on its head.

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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