Dog (Bite) Days Of Summer, Part II: Home Inspector Bitten While Inspecting Home Can’t Sue Realtor

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Beware of the dog (pd)Last week, I wrote about an exception to the strict liability normally imposed on dog owners under New Jersey's dog bite statute. (A short time before that, I wrote about yet another exception to strict liability under the dog bite statute, so the exceptions are obviously more interesting than the rule.) This post is about a different dog bite case, Ward v. Ochoa, with a similar result even though it was not decided under the dog bite statute. Ward involved a home inspector who was attacked and severely injured while performing a home inspection. She sued the dog owners (who eventually settled) along with the real estate agency and real estate agent who were selling the house. Like the dog groomer in last week's post, however, the home inspector's claims were dismissed.

Continue reading “Dog (Bite) Days Of Summer, Part II: Home Inspector Bitten While Inspecting Home Can’t Sue Realtor”

Take It Outside: Club Not Responsible For Injuries When Fight Spilled Into Parking Lot

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Roadhouse (pd)You don't need to be James Dalton to know that bar fights are scary. (If you don't know who James Dalton is, however, you do need to go watch Road House.) Bar fights can also create legal problems for bar owners. For example, do bar owners have a duty to keep their patrons safe from harm caused by fights? In Lloyd v. Underpass Enterprises, Inc. t/a The Harem, the Appellate Division dealt with this issue in the context of a somewhat unusual situation — a fight between two people that started in the club but ended up outside the club, and injured an individual who was not one of the combatants.

In Lloyd, plaintiff was playing "poker tournament style" in a hotel room with some co-workers, including Cecil George. After the game, they decided to visit a gentleman's club. George invited a friend, who had not been at the poker game, to join them at the club. About an hour after arriving, plaintiff saw George fighting with someone who "may have been" the friend George invited to the club. The club's bouncers broke up the fight, "escorted George and the other combatant outside to the parking lot," and then waited near the club's entrance. Plaintiff followed them out. The Appellate Division described what happened next:

[Plaintiff] was standing near George when he saw the other combatant rushing quickly, looking "menacing and  coming  at  [them] with  intent." [Plaintiff] stepped in between George and the person  rushing at them to "put  [him]self  as  a  barrier  between  [the other combatant] and [George]." [Plaintiff] stated  "[e]verything  happened  quickly." He awoke four days later in the hospital, having sustained a serious head injury.

Plaintiff sued the club. The club moved for summary judgment, and the trial court granted its motion. Plaintiff appealed, but the Appellate Division affirmed the trial court's decision.

Continue reading “Take It Outside: Club Not Responsible For Injuries When Fight Spilled Into Parking Lot”

In New Jersey, You Can Now Disapprove A Real Estate Contract By Email Or Fax (But Not Telegram)

     by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Telepgraph (pd)Anyone who has bought or sold real estate in New Jersey is familiar with "attorney review." When you buy or sell a house, you sign a contract that is almost always prepared by a broker. The contract must contain a standard provision stating that the buyer and seller have the right to have an attorney review the contract. This "attorney review" period lasts three days. The contract becomes legally binding if, at the end of that three-day period, neither the buyer's nor the seller's attorney disapproves of the contract. If either side disapproves, their attorney must notify the other side's broker by certified mail, telegram, or personal service. In Conley v. Guerrero, a case that seems to be a case study in the concept of raising form over substance, the New Jersey Supreme Court updated this requirement to allow the notice of disapproval to also be sent by fax or email. (Those of you still using telegrams may be out of luck, however, because this no longer appears to be an appropriate method of service for the notice of disapproval.) 

In Conley, plaintiffs signed a form contract to purchase a condominium unit from sellers. It contained the standard "attorney review" provision. After signing the contract, but during the attorney review period, sellers received competing offers to purchase the property and eventually entered into a new contract to sell it to a new buyer for a higher price. Sellers' attorney sent a disapproval of plaintiffs' contract to both plaintiffs' counsel and the broker (who was a duel agent represented both plaintiffs and seller) during the attorney-review period. He sent the notice via email, which plaintiffs' counsel and the agent acknowledged receiving within the attorney review period. Nonetheless, plaintiffs claimed that the sellers were bound by the contract and had to sell to his clients because the disapproval was not sent in the proscribed manner — by certified mail, telegram, or hand delivery.

Plaintiffs sued, seeking specific performance. Both sides moved for summary judgment. The Chancery Division granted defendants' motion and dismissed the complaint. The Chancery Division held that, while seller did not comply with the method-of-delivery requirements set forth in the contract, this breach was only "minor" because plaintiffs' counsel acknowledged receiving the notice within the attorney review period. Therefore, the Chancery Division held that the "underlying justification for the attorney review clause" — to protect parties against being bound by broker-prepared contracts without the opportunity to review them with their attorneys — was accomplished.

Continue reading “In New Jersey, You Can Now Disapprove A Real Estate Contract By Email Or Fax (But Not Telegram)”

Not So Breaking News: Residential Homeowners Still Not Liable If You Slip On Their Sidewalks

Sidewalk (pd)It seems like every week the Appellate Division issues a decision confirming, yet again, that residential property owners are not liable for slip-and-fall accidents that occur on their sidewalks. I have blogged about some of these cases here, here, here, and here. Apparently some plaintiffs have had enough, however, as the opening sentence in the Appellate Division's recent decision in Corry v. Barbieri makes clear:

In appealing the dismissal of their complaint, plaintiffs argue that "the time has come to abandon the unenlightened standard" that insulates residential landowners from liability for injuries caused by abutting sidewalks.

Unfortunately for plaintiffs in Corry, notwithstanding their pleas, the Appellate Division was not willing to change the law on residential landowner liability.

The facts in Corry were unfortunate but not uncommon. Plaintiff was walking with her family on the sidewalk in front of defendant's home when she tripped over a "raised and severely broken portion of the sidewalk." The fall caused her to suffer "a severe rotator cuff injury." She sued, defendants moved for summary judgment, the trial court granted the motion, she appealed.

Continue reading “Not So Breaking News: Residential Homeowners Still Not Liable If You Slip On Their Sidewalks”

Of Parking Spots and Snow Blowers

Snow blower (pd)One of the things I like about the law, and litigation in particular, is the "just when you think you've seen it all . . . " aspect of it. In a recent decision, Sevinc v. Fulton House, the Appellate Division resolved a dispute that reminds us that we have not seen it all, and probably never will. At its core, the case was about the alleged breach of a contract between plaintiff and defendant. What made it interesting was the subject matter of the alleged breach — plaintiff accused defendant, a residential co-op corporation, of improperly appropriating a portion of his parking space and using it to store a snow blower.

In Sevinc, plaintiff purchased both a unit in the co-op and a parking space in the co-op's parking lot. The lease for the parking space did not describe the space's size, shape, or dimensions, but the size and shape were depicted on the architectural plans that the co-op included in its Public Offering Statement. There was no standard sizes for the parking spaces in the co-op's lot, and some spaces, including plaintiff's space, were larger than others because of where they were situated in the irregularly shaped lot. The size of his space was important to plaintiff because he was a limousine driver and needed extra room to park his Lincoln Town Car.

For almost two years, plaintiff parked in his space without incident. One day in the spring of 2011, however, he pulled in and found that a "metal box" had been placed in the left front corner of his space. A few days later, he saw the building's superintendent installing metal strips to hold the box in place. The superintendent told plaintiff that the co-op was relocating a snow blower to the front of his space and that the metal box would be used to store gas cans for the snowblower. Shortly thereafter, the co-op had white and yellow lines painted on the left side of his space, "all the way from the rear of his space to the front, where the snow blower and gas can container were now located." The newly-configured space was ten-feet wide, the same size as other spaces in the lot but one-third smaller than plaintiff's original space. Plaintiff's car still fit in the space, but pulling in and out was more difficult. 

 

Continue reading “Of Parking Spots and Snow Blowers”

Jarndyce v. Jarndyce — Obsure Reference, Appropriate Reference, Both?

by:  Peter J. Gallagher (@pjsgallagher)

In the first paragraph of an Appellate Division decision handed down earlier this week, In The Matter of the Estate of Harry Sable, the court noted that the tortured procedural history of the case had not yet "achieved the status of the fictional [case of] Jarndyce v. Jarndyce described in Charles Dickens' Bleak House." I have always felt that Charles Dickens was one of those authors that people claim to love because they think they should love him, even though many have never read him, or at least not since they had to read him in High School. I do not claim to love Charles Dickens or claim to have read him so I did not get the Appellate Division's reference and assumed — naturally — that if I didn't get it then it must be an obscure reference.

Apparently, I was wrong.

It turns out that Bleak House is a common reference for courts in New Jersey and elsewhere that is almost always cited for the exact proposition that it was used by the Appellate Division. For the ignorant (like me), Bleak House:

concerns the fate of a large inheritance. The case has dragged on for many generations before the action of the novel, so that, when it is resolved late in the narrative, legal costs have devoured the whole estate. Dickens used it to attack the chancery court system as being near totally worthless, as any "honourable man among its [Chancery's] practitioners" says, "Suffer any wrong that can be done you rather than come here!" Jardyce v. Jardyce was

(Thank you Wikipedia.)

 

Continue reading “Jarndyce v. Jarndyce — Obsure Reference, Appropriate Reference, Both?”

Appellate Division Holds That Buyer Can Sue Seller’s Broker For Failing To Relay Offer To Seller

by: Peter J. Gallagher (@pjsgallagher)

In a decision issued earlier this week, the Appellate Division reinstated a lawsuit against a real estate broker who failed to relay an offer from the buyer to its client, the seller. If you are thinking, as I was, "of course the court would do this, why wouldn't you be able to sue" then read on because the facts of the case make the trial court's decision to dismiss the complaint even more unbelievable. (Of course, at this point in the case, all we have are plaintiff’s allegations, which the court had to assume were true for purposes of evaluating the trial court’s decision on the motion to dismiss.)

In D'Agastino v. Gesher LLC, plaintiff wanted to buy a home in Jackson, New Jersey. The home, which had been foreclosed, was owned by the lender and was being offered for sale at $184,900. Plaintiff instructed his broker to contact the seller's broker and make an offer of $150,000. After receiving no response, plaintiff's broker faxed a written offer to the seller's broker, sent a confirming email to the broker, and eventually tried to contact the seller directly to confirm that the offer was received. None of these efforts were successful.

Seller's broker eventually responded and told plaintiff that the seller had lowered its price to $129,000 and suggested that plaintiff lower its bid. Plaintiff's broker said this "sounded fishy" and advised plaintiff not to lower the bid. Plaintiff took his broker's advice.

 

Continue reading “Appellate Division Holds That Buyer Can Sue Seller’s Broker For Failing To Relay Offer To Seller”