Published Appellate Court Opinions

This medical negligence case arises from a 2011 surgery that defendant Dr. David Nenna performed on plaintiff to remove surgical hardware from a prior surgery. Four years later plaintiff discovered defendant left three washers in his leg.Due to medical concerns, however, plaintiff who is a paraplegic, was unable to have a second surgery to remove the hardware.

Plaintiff did not claim any physical pain or limitation as a result of the retained washers. Rather, plaintiff sought to recover damages only for the emotional distress caused by knowing surgical washers were in his leg that could not be removed. In support of his claim for damages, he provided a certification briefly describing his mental anguish, as to which he would testify at trial. The trial judge granted defendant's motion for summary judgment finding plaintiff had failed to establish emotional distress damages because he did not provide supporting medical or expert proof.

The court held that emotional distress damages ordinarily must be supported by medical or expert proof. Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 235-36 (App. Div. 2014). There are two exceptions to this general rule. The first exception is for cases involving intentional torts such as racial or sexual discrimination. Where a tortfeasor's conduct is willful, the Court has explained "the victim may recover all natural consequences of that wrongful conduct, including emotional distress and mental anguish damages . . . ." Tarr v. Ciasulli,181 N.J. 70, 82 (2003).

The second exception are cases in which "[t]he nature of [the] particular harm mitigates against the reason for an enhanced standard of proof in the first instance – the elimination of spurious claims." Innes, 435 N.J. Super. at 236. For example, medical or expert proof has not been required when plaintiffs have suffered from malicious use of process, Baglini v. Lauletta, 338 N.J. Super. 282, 307 (App. Div. 2001), wrongful birth arising from inadequate genetic counselling, Geler v. Akawie, 358 N.J. Super. 437, 457 (App. Div. 2003), and where a funeral home failed to ensure that orthodox ritual requirements were met. Menorah Chapels at Millburn v. Needle, 386 N.J. Super. 100, 116 (App. Div. 2006).

In this criminal appeal involving a high speed vehicular pursuit of a fleeing suspect, the court affirmed the trial court's decision to preclude defendant from using the Attorney General's Guidelines on Vehicular Pursuit of a Fleeing Suspect as substantive evidence on the issue of causation in the aggravated assault while eluding arrest charge under N.J.S.A. 2C:12-1(b)(c). The court agreed with the trial court that the jury might confuse deviation from the Guidelines with causation and its prejudicial value outweighed its probative value.

The Guidelines were properly permitted to be utilized by defendant during cross-examination for the limited purpose of impeachment.

After only physically inspected the properties and examining the assessment records and tax map, plaintiffs purchased tax sale certificates on vacant lots in Brick Township. They paid accruing taxes and bided their time until entitled to commence foreclosure actions. Once their foreclosure actions were underway, plaintiffs finally obtained title searches and learned the properties were encumbered by a conservation easement, which rendered the properties undevelopable. That discovery prompted plaintiffs to commence these actions, seeking rescission of their tax sale certificate purchases and reimbursement of taxes paid. The chancery judge granted summary judgment in favor of Brick Township, and in distinguishing Twp. of Middletown v. Simon, 193 N.J. 228 (2008), the court affirmed because, unlike Middletown's conduct there, Brick Township's tax assessor was as much in the dark about the conservation easement as plaintiffs and, unlike Middletown, the township took no active steps to deprive plaintiffs of the value of their investments.

After disposition of a lengthy and hotly-contested matrimonial action, a dispute arose about the lien of one of defendant's former attorneys and whether it required payment of the attorney's fees from an escrow account holding the net proceeds of a sale of marital property. With one minor exception, the trial judge ruled against the attorney.

The court recognized that N.J.S.A. 2A:13-5 permits the attachment of an attorney's lien, as relevant here, only to an "award" or "judgment" entered in the client's favor. Because the trial judge awarded all marital assets to plaintiff, the lien could not attach to the escrow fund that was part of the award to plaintiff. And, even if it did, the court held that the lien only gave the attorney an opportunity to assert his claim; ultimately, the trial judge was required to ascertain which of the competitors to the fund had the more equitable interest. In this case, plaintiff – having been victimized by defendant's contumacious conduct and unwillingness to honor his support obligations – had the greater equitable right to the fund than defendant's former attorney.

In Ciluffo v. Middlesex General Hospital, the court adopted a framework for trial courts to follow when a plaintiff settles a negligence claim with the original tortfeasor and proceeds to trial against medical professionals whose subsequent negligent treatment resulted in additional injuries and damages. 146 N.J. Super. 476 (App. Div. 1977). To avoid a windfall to the plaintiff, the court explained that after a plaintiff settled her claim with the first of successive independent tortfeasors, the medical defendants were entitled to a full pro tanto credit for the settlement amount if that amount exceeded the total "provable damages" suffered by the plaintiff as determined by a jury; the medical defendants would receive a partial credit against any verdict if the settlement amount exceeded the difference between the total provable damages minus the amount of damages the jury apportioned to the malpractice. Id. at 482–83.

In this case, plaintiff's decedent suffered a fractured ankle resulting from a fall at a restaurant. She came under the care of medical defendants, who performed surgery on the fracture five days later. Plaintiff's decedent allegedly suffered additional injuries, and subsequently died from a pulmonary embolism, allegedly the result of defendants' medical malpractice.

While discovery was ongoing, plaintiff settled her claim with the restaurant for $1.15 million. The medical defendants moved for a declaration entitling them to the Ciluffo pro tanto settlement credit, and the motion judge entered orders to that effect.

The court granted plaintiff leave to appeal and reversed. After examining caselaw developments in the years since Ciluffo was decided, including enactment of the Comparative Negligence Act, the court concluded that awarding pro tanto settlement credits is a vestige of the common law without support in our current jurisprudence.

At issue on this appeal is the validity of an arbitration provision contained within a purported agreement between a consumer and a solar energy company. Plaintiff consumer acknowledges she memorialized her understanding of the overall agreement by affixing her signature to the signature line of an otherwise blank iPad screen, displayed to her by defendant salesperson. Plaintiff maintains, however, that she did not check any boxes on the iPad screen that would otherwise indicate her assent to arbitration.

Relying on our Supreme Court's then-recent decision in Goffe v. Foulke Management Corporation, 238 N.J. 191 (2019), the trial judge granted defendants' motion to compel arbitration and stay plaintiff's Law Division action. In doing so, the trial judge determined the arbitrator must decide threshold issues concerning the overall validity of the parties' purported written agreement, which contained the arbitration provision.

The court disagrees, concluding there exist questions of fact concerning the mutuality of assent to the arbitration provision, which is necessary to bind both parties to arbitration, thereby distinguishing this matter from Goffe. Because it is unclear from the record whether plaintiff agreed to arbitrate disputes under the agreement, the court vacates the trial court's order and remands for a plenary hearing for the judge to first make that threshold determination.

This appeal requires the court to decide whether the terms of a negotiated plea agreement waived the prosecutor's requirement to move for imposition of parole supervision for life (PSL) under N.J.S.A. 2C:43-6.4. By leave granted, the State appealed from a Law Division order that granted defendant's amended petition for post-conviction relief (PCR), as further amended by the PCR court sua sponte to a motion for reduction of sentence.

The PCR court concluded the trial court's imposition of PSL – in the absence of a motion by the prosecutor as required under the PSL statute – constituted an illegal sentence. This court, however, determined the sentence was not illegal, but remanded for the trial court to consider whether PSL should have been imposed.

Injured while boarding an elevator, plaintiff relied on res ipsa loquitur to establish her prima facie case against the elevator's owner, manager and servicer. To apply the doctrine, plaintiff had to show: 1) the accident was one that "ordinarily bespeaks negligence"; 2) the defendant exclusively controlled the instrumentality that caused the accident; and 3) the injury did not result from the plaintiff's own voluntary act or neglect. Because plaintiff could not satisfy the third prong, her suit was dismissed on summary judgment. On appeal, she asks the court to follow out-of-state authority and discard the third prong as a matter of law, contending it defeats the purpose of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. The court declines to do so, and affirms summary judgment, because it is not free to undo settled Supreme Court precedent absent an indication the Court would endorse the change; and the rule regarding plaintiff contribution retains some vitality, notwithstanding adoption of comparative responsibility.

In these eight appeals, appellants argued that the Department of Health made numerous errors in its selection of entities to operate Alternative Treatment Centers to grow, process, and dispense marijuana as part of the State's Medicinal Marijuana Program. They complained about, among other things, the Department's selection process, including the criteria used, the manner in which applications were scored, and the overall sufficiency and explanation of the final agency decisions; they specifically contended that the Department should at least have engaged in an interim process by which disappointed applicants could question or challenge the scores received prior to the issuance of final agency decisions that left it to the court to act as a clearing house for all such challenges. In agreeing the scoring system produced arbitrary results that have gone unexplained, the court vacated the final agency decisions and remanded for further proceedings.

These consolidated appeals ask the court to determine whether the Middlesex County Prosecutor's Office (Prosecutor's Office) can condition defendants' admissions into the pretrial intervention program (PTI) applications, N.J.S.A. 2C:43-12, on service of jail time after they were released on their own recognizance.

In accordance with plea agreements, defendants pled guilty to amended charges of third-degree criminal mischief, N.J.S.A. 2C:17-3, and they were each sentenced to a four-year term of noncustodial probation. Pursuing rights preserved in their plea agreements, defendants sought to overturn the denials of their PTI applications with appeals to the trial judge, claiming the Prosecutor's Office abused its discretion by proposing that they serve jail time to gain admission. The trial judge rejected defendants' requests without addressing the impact of the jail time proposals.

We reverse. The Prosecutor's Office abused its discretion by tainting the PTI application process through unsuccessfully seeking to have defendants agree to serve jail time to gain admission. Although imposing the condition of jail time for PTI admission was not expressly permitted or prohibited by the governing statute, court rule, or guidelines in effect at the time, we conclude it was illegal to do so because vesting such authority to the Prosecutor's Office would afford it powers contrary to the Legislature's intent in creating PTI. The trial court shall therefore enter orders vacating defendants' guilty pleas and admit them into PTI.

Rule 3:26-2(c)(2) governs a defendant's motion to relax conditions of his or her pre-trial release under the Criminal Justice Reform Act. The Rule empowers the trial court to recalibrate a releasee's conditions upon a showing of "a material change in circumstance." The court holds that pre-trial discovery that has reduced the "weight of the evidence" against the defendant may constitute such changed circumstances. So may a defendant's compliance with restrictive conditions over an extended period, if such compliance coincides with another material change demonstrating that the defendant's pre-trial behavior may be adequately managed by less restrictive means than initially imposed. Because the trial court here did not review defendant's motion to relax his release conditions under Rule 3:26-2(c)(2), the court granted defendant's motion for leave to appeal, reversed the trial court's order denying relief, and remanded for reconsideration.

In this multi-vehicle accident case involving a dump truck, the court concludes that New Jersey law requires a commercial motor carrier to provide a minimum insurance coverage amount of $750,000 when engaged in interstate or intrastate commerce, as prescribed by N.J.S.A. 39:5B-32 and N.J.A.C. 13:60-2.1. Here, the individual driving the dump truck was an employee of defendant trucking company and responsible for the accident but was not listed as a covered driver on the policy. However, he was a permissive user and therefore, the commercial insurance policy issued to the trucking company required a minimum coverage amount of $750,000 and the step-down provision in the insured's combined single limit policy is not triggered. The trial court's order granting summary judgment and capping the tortfeasor's exposure at $35,000 is reversed.

Defendant Mell, a wealthy businessman, engaged in sexual relations with B.B. over a period of months when she was fifteen years old. Upon discovery, Mell was arrested and soon convicted of federal and state crimes; he is presently incarcerated in a federal penitentiary. B.B. commenced this action for damages against Mell and others and obtained an order attaching some of Mell's assets. Soon after, Mell sought an order permitting the payment of his attorneys in this civil action from the attached funds; the judge granted that motion and later entered another order fixing the amount of fees to be paid from the fund. The court granted B.B.'s motions for leave to appeal those two orders and reversed, holding that B.B. had a greater priority to the fund even though she has yet to obtain a judgment and that the equities preclude such an invasion of the fund, noting it would be perverse to allow Mell's expenses to be paid from the fund established through valid court procedures for the benefit of his victim.

In this action brought under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, the court was asked to determine whether a parochial school's knowledge of the pregnancy of an unmarried lay teacher, who started as a teacher's aide for toddlers, later taught art, and had no responsibility for religious instruction, can serve as the nondiscriminatory basis for the teacher's termination for violating the school's morals code, where the school never made any effort to determine whether any of its other employees have violated the school's prohibition against "immoral conduct" that is allegedly incorporated into each employees' terms of employment. The court held that knowledge or mere observation of an employee's pregnancy alone is not a permissible basis to detect violations of the school's policy and terminate an employee.

The court determined that real estate auction sales contracts prepared by attorneys, licensed real estate brokers, or salespersons need not contain the three-day attorney review clause mandated by N.J. State Bar Ass'n v. N.J. Ass'n of Realtor Boards, 93 N.J. 470 (1983), as codified in N.J.A.C. 11:5-6.2(g). Here, a blank, pre-printed contract was sent to the highest bidder, defendant, and recommended an attorney review the contract. The court rejected defendant's claim that she was entitled to a return of her $121,000 deposit monies after not being able to secure financing in this cash deal. The liquidated damages provision in the sales contract was validated, and the $121,000 deposit monies, plus interest, were equally divided between plaintiffs/sellers and co-defendant.

The court reverses summary judgment to defendants Orange Board of Education, Sussex County Regional Transportation Cooperative and K&H Transport Inc., the bus company responsible for transporting a seventeen-year-old special needs student to and from an out-of-district, State-approved school for students with disabilities. The trial judge determined the bus company owed no duty to plaintiffs "to protect against the alleged injury" — sexual assault — and that no reasonable person could find the bus company's actions caused plaintiff's injury. The court finds that whether the minor-plaintiff's sexual assault, by young men she encountered after being dropped off unsupervised blocks from the designated bus stop outside her home, was a foreseeable risk of injury to her was impacted by the extent of the minor's disability, and that the trial court erred in resolving that question on disputed facts.

The process for the expungement of a voluntary or involuntary commitment can be found in N.J.S.A. 30:4-80.8 to -80.11. The statutory scheme does not prohibit additional applications if a first petition is unsuccessful. The relevant language in the statute requires a petitioner seeking expungement to present his or her personal history since the hospitalization, as well as his or her present circumstances, and reputation in the community. N.J.S.A. 30:4-80.8; N.J.S.A. 30:4-80.9. Therefore, the court concludes the dismissal of a petition entered after an evidentiary hearing should be designated as "without prejudice."

Following the denial of his motion to suppress physical evidence, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1. Police officers seized the evidence following an investigatory stop of an automobile in which defendant was a passenger. The arresting officer testified he stopped the car because he was advised two black men had robbed a store. The officer used a spotlight mounted to his car to illuminate the interiors of passing vehicles as he traveled to the store. In one car, he observed three black men who did not react to the light. The officer stopped the car based on those observations. The court holds that knowledge of the race and gender of criminal suspects, without more, does not establish a reasonable articulable suspicion that the men in the car had robbed the store. Accordingly, the court reverses defendant's conviction, vacates his sentence, and remands for further proceedings.