March 2009, No. 2

March 2009, Vol. VII, No. 2

Does the Palpably Unreasonable Standard Apply to a Plaintiff Who Is Injured While Attempting to Escape from a Cemetery after a Public Employee Locks Her In? For those of you saying that the public employee's conduct is not a condition of public property, and therefore regular negligence applies to these facts, you are wrong. HUH? I am equally stumped. In Ogborne v. Mercer Cemetery Corp., 197 N.J. 448 (2009), the plaintiff took an afternoon walk through Mercer Cemetery Park in Trenton. A public entity is responsible for closing and opening the cemetery, and the operating hours are 7:30 AM until 4:30 PM. On the day in question, the public employee locked the gates at 12:30 PM without telling anyone and without checking the interior of the cemetery to determine whether anyone was inside despite a policy requiring him to check the interior before locking the gates. After being locked in the cemetery, plaintiff had to climb a wall to escape, and fractured her right leg after jumping off the wall. The trial court concluded that the public entity was vicariously liable for its employee's negligence, and a jury awarded $1.64 million. Both the Appellate Division and the Supremes concluded that the trial court erred by using ordinary negligence rather than the more stringent palpably unreasonable standard pursuant to N.J.S.A. 59:4-2 of the Tort Claims Act. The Supremes reasoned that this case involved a dangerous condition of property. WHAT? The Supremes reached this illogical and unfounded result through the circuitous reasoning of: if the public employee did not lock plaintiff in the cemetery, she would not have had to jump from a wall to escape, and thus, no dangerous condition of property would have existed. Say it ain't so, Justices! The Supremes are not singing harmoniously on this one, and the slope that they created is beyond slippery. Candidly, this opinion defies the Tort Claims Act and common sense, and the Supremes simply missed the boat. Civil Practice Update All the Law That's Fit to Print by Michael J. Epstein Vol. VII, No. 2 March 2009

Can an MRI Film Be Admitted into Evidence When the Physician Has Not Reviewed the Film? For those of you who said yes because of Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), you are right. I thought that the Brun decision was fairly clear that under N.J.R.E. 703, an expert physician cannot testify about an MRI film's results without reading the film himself or herself. However, some courts limited the ruling in Brun to chiropractors, and the decision was not applied uniformly. Thus, in Agha v. Feiner, 2009 N.J. LEXIS 47 (2009), the Supremes put the issue to bed – in order to introduce an MRI film into evidence, a doctor qualified to review MRI films must testify that he or she read the film. In Agha, the plaintiff sought to prove the objective prong of the verbal threshold through his treating physicians who relied only on the MRI report, not the film. Although the doctors were permitted to testify that they relied on the report for their treatment, the MRI itself was not admitted into evidence because it is hearsay. Without the MRI film, the plaintiff had no objective evidence to prove a permanent injury, and thus, he could not vault the verbal threshold. Given Brun, this decision was almost a guarantee, and the Supremes got it right. As you know from reading this column, we previously advised you in a PRACTICE TIP to make sure that your testifying doctor reviews the films before testifying. Now, there is no debate and no excuse for attorneys for both plaintiffs and defendants to make sure that their expert physicians have the MRI films before writing their reports.

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].