• NEW JERSEY CASE SUMMARIES
  • May 9, 2018 | Authors: Mark R. Sander; Paraskevoula Mamounas; Michael J. Bishop
  • Law Firms: Thomas, Thomas & Hafer LLP - Marlton Office; Thomas, Thomas & Hafer LLP - Allentown Office
  • Krzykalski v. Tindall

    New Jersey Supreme Court

    No. A-55 September Term 2016, 078744

    Decided: April 17, 2018

    Jury could apportion fault between Defendant and John Doe, because the parties had acknowledged John Doe's role in the accident, Plaintiff's insurer was aware of the litigation, and Plaintiff had notice that the Defendant was asserting that John Doe was the cause of the accident.

    Background

    Plaintiff appealed from the Appellate Division's order affirming the jury verdict finding Defendant and a John Doe Defendant negligent for a motor vehicle accident and apportioning fault between them. Defendant's car was behind Plaintiff's vehicle with both making left turns, when another vehicle to the right of both cars unexpectedly cut off the left-turn lane. Although Plaintiff was able to stop his vehicle, Defendant rear-ended Plaintiff's vehicle. Plaintiff suffered serious injuries and filed an uninsured motorist claim with his insurer. Plaintiff also sued Defendant and the driver of the other vehicle as a John Doe fictitious party. Defendant asserted third-party negligence as a defense and cross-claimed for indemnity and contribution from any Co-Defendants. At trial, the Trial Court included John Doe on the verdict sheet over Plaintiff's objection, and the Trial Judge instructed the jury to apportion fault between Defendant and John Doe, if they found both negligent. The jury returned a verdict f
    inding Defendant three percent negligent and John Doe 97 percent negligent. The Appellate Division affirmed, ruling that an alleged tortfeasor does not need to be an identified party for his or her negligence to be determined by the jury.

    Holding

    The Supreme Court affirmed, first noting that the Comparative Negligence Act and Joint Tortfeasors Contribution Law required juries to allocate negligence among tortfeasors based on the evidence, including those tortfeasors who settled, if the plaintiff had notice that remaining defendants wanted liability so apportioned. The Court also noted that plaintiffs could sue "John Does" whose identities were unknown, and found that judgments apportioning liability to John Does had been affirmed, previously. The Court ruled that the jury in this case could apportion fault between Defendant and John Doe, because the parties had acknowledged John Doe's role in the accident, Plaintiff's insurer was aware of the litigation, and Plaintiff had notice that the Defendant was asserting that John Doe was the cause of the accident.

    Kurc v. All Star One

    New Jersey Superior Court, Appellate Division

    2018 N.J. Super. Unpub. Lexis 915

    Decided: April 19, 2018

    The absence of evidence of actual or constructive notice is fatal to a Plaintiff’s claims of premises liability.

    Background

    Plaintiff Kurc accompanied her granddaughter to cheerleading practice at Defendant All Star One's facility in Egg Harbor Township. At deposition, Plaintiff testified she entered the front of the building, and walked to the rear seating/viewing area along a walkway designated for non-athletes. After viewing her granddaughter's practice, Plaintiff walked toward the front to meet her waiting granddaughter on the same walkway near the rear reception area. She encountered a young child athlete sitting on a separate moveable mat on the walkway, blocking her path. To pass the seated child, Plaintiff stepped off the walkway and onto the spring mat used for cheerleading. While up on the cheerleading mat, Plaintiff saw some young girls approaching, so she turned around to step off the mat, which was raised about four inches. The mat moved out from underneath Plaintiff, causing her to fall and injure her wrist. Defendants moved for summary judgment on the grounds that Plaintiff failed to offer any proofs establishing Defendants’ were negligent. The Trial Court granted summary judgment, and Plaintiff appealed.

    Holding

    The Appellate Court affirmed reasoning that Plaintiff failed to prove that the Defendants had actual or constructive knowledge of the dangerous condition that caused the accident, i.e., a child blocking the walkway. There was no evidence that Defendants, or any of their employees, saw the child sitting on the on the walkway, heard complaints about the child's presence there, or had any knowledge that the child was blocking the walkway. Analyzing whether Defendants had constructive notice, the Court noted the record was devoid of evidence to support constructive notice. Plaintiff simply suggests because she fell near the rear reception desk, the receptionist had constructive knowledge of the child on the walkway and, thus, a duty to move the child. However, Plaintiff proffered no evidence showing the receptionist knew or should have known before Plaintiff's fall about the child’s position. Moreover, there was no evidence about how long the child was there, and, thus, the amount of time Defendant had to discove
    r and remedy the situation. Concluding its analysis of notice, the Appellate Court cited Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243, 78 A.3d 584 (N.J. Super. Ct. App. Div. 2013), “[t]he absence of evidence of ‘actual or constructive notice . . . is fatal to plaintiff's claims of premises liability.’”

    Pak v. NJ Fitness Factory, Inc.

    New Jersey Superior Court, Appellate Division

    No. A-5084-16T2

    Decided: April 19, 2018

    Superior Court reverses entry of summary judgment on the basis that the waiver form did not exculpate fitness club from liability.

    Background

    Plaintiff Pak participated in an exercise class at NJ Fitness Factory. She was required to sign an acknowledgement of liability waiver form. The waiver form was limited to the exercise class and did not address Pak exercising at her own risk or exculpating the Fitness Factory for injuries sustained while engaging in strenuous activity. The Fitness Factory had a policy of keeping treadmills running after use. Pak unknowingly stepped onto a running treadmill and sustained injuries.

    The Trial Court granted summary judgment concluding that the exculpatory clause in the waiver form barred Pak’s claims. On appeal, Pak argued that the waiver form was unenforceable because it did not contain language that she agreed to engage in strenuous activities at her own risk, and that the waiver form did not attempt to exculpate the Fitness Factory for injuries caused from the use of fitness equipment.

    Holding

    The Superior Court reversed the grant of summary judgment. The Court held that Pak did not engage in any activity involving an inherent risk of injury. Pak followed the instructor’s direction and unknowingly stepped onto a running treadmill. The Court noted that the Trial Court erroneously relied upon a similar case exculpating a fitness center where the plaintiff was involved in strenuous activity and injured herself while riding a spin bike. The Court noted Pak was injured while engaged in non-strenuous activity.