No Expert Needed When Party’s Attempt To Fix Clogged Tub “Bespeaks Negligence”

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

Although I have been a homeowner for a number of years and like to think that I am reasonably handy, my knowledge of plumbing  is probably more informed by Mario Brothers than anything else. As the saying goes, I know just enough about the subject to be dangerous, so I generally try to avoid it. One of the parties in a recent Appellate Division decision, Sayat Nova, LLC v. Koestner, probably would have been better served heading this advice, as the Appellate Division held that no expert was needed to show that it acted negligently when it broke a pipe in a clogged tub that caused flooding in a restaurant several floors down.

In Sayat Nova, plaintiff operated a restaurant in defendant's building. After water from a third-floor apartment came flooding like a "waterfall" out of the ceiling and into the restaurant, plaintiff sued. The incident that precipitated the lawsuit was not the first time that the restaurant flooded. Four times in the previous three years, water entered the restaurant from the same general area in the ceiling. Each incident "involved more water and more damage than the previous incident." Each time plaintiff notified defendant, but never received a response. On one prior occasion, after receiving no response from defendant, plaintiff hired contractors at his own expense to repair the damage. Plaintiff was never compensated for these expenses or any losses caused by the prior incidents. 

In the incident that led to the complaint, water came into plaintiff's restaurant from the ceiling above a different area of the restaurant than in prior incidents. Moments after plaintiff noticed the intrusion, the building's superintendent entered the restaurant with a man plaintiff did not know. Neither man was a licensed plumber. The superintendent told plaintiff: "By mistake we broke the pipe . . . We try to fix the fixture, and the guy by mistake break the pipe." He was apparently referring to a pipe in a third-floor apartment with a "hair-clogged tub." After the incident, defendant called a licensed plumber to fix the problem, but the damage caused plaintiff to have to close his restaurant several days for repairs.

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This Is The Landlord-Tenant Equivalent Of Accusing Your Spouse Of Stealing The Covers

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

Cold (pd)And, incidentally, it ends the same way. (At least the same way it always ends for me.) No. You are wrong. Your spouse did not steal the covers.

In Loiacano v. Salemne, defendants stopped paying rent to their landlord. The landlord sued to evict them for non-payment. Defendants responded by requesting a "Marini hearing." In New Jersey, tenants are almost never allowed to withhold rent from their landlords. But, in Marini v. Ireland, the New Jersey Supreme Court recognized an exception to this rule. If a landlord refuses to make repairs that are necessary to keep the property habitable, then the tenant can make the repairs and withhold an amount from their monthly rent that is equal to the costs of the repairs. If a tenant does this and is then sued for non-payment, the court conducts a "Marini hearing" to determine whether the tenant was justified in doing so. 

What made Loiacano unique was that defendants were not claiming that the landlord did anything wrong or failed to make any repairs. Instead, they claimed that they withheld "two months' rent on the basis that their downstairs neighbor was manipulating the heat in their apartment." It wasn't even the downstairs neighbor herself who was allegedly doing this. Instead, it was her boyfriend, "identified only as 'Ray.'" Defendants, who had a "contentious relationship" with Ray, alleged that he would "manipulate[] the heat [in the first-floor apartment] so that there would be no heat in defendants' second floor apartment." 

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Dismissal With Prejudice Too Harsh A Remedy For Expert’s Unavailability

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

Gavel (pd)There is often tension between a court's need to effectively manage its docket and the overriding objective that a lawsuit be resolved on its merits and not because a party (or its counsel) misses a deadline. Courts establish deadlines. If they are ignored, can the court — as a sanction, and in the interest of managing its docket — dismiss the lawsuit with prejudice? According to the Appellate Division in a recent unpublished decision, Trezza v. Lambert-Wooley, the answer to this question is "no," unless the noncompliance was purposeful and no lesser remedy was available to the court. 

In Trezza,plaintiffs sued defendants for medical malpractice. Three years after the lawsuit was filed, the court set a peremptory trial date. This was rescheduled when the court did not reach the case on the trial date. The trial did not take place on the rescheduled date or a subsequent rescheduled date, both times because defendant's designated trial counsel was unavailable. Thereafter, the Presiding Judge issued a sua sponte order scheduling trial for approximately four months later and setting forth "specific and stringent terms as to the course and conduct of the case relative to trial." The order mandated that: (1) the trial date would not be adjourned to accommodate the parties' or counsels' personal or professional schedules; (2) counsel was required  to monitor the schedules of their parties, witnesses, and experts, and if one or more were not going to be available on the trial date, arrange for a de bene esse deposition ahead of trial; and (3) if designated trial counsel was not available on the trial date, alternate counsel would have to be found, whether or not from the same firm.

Five days before the scheduled trial date, plaintiff's counsel requested that the trial be carried for four days due to the unavailability of plaintiff's liability expert, which he only learned about a few days prior to the request. Defendants' counsel consented to the request. The judge assigned to the case considered the request but, in light of the Presiding Judge's order, determined that he did not have the authority to grant the adjournment. He sent the parties to the Presiding Judge, who denied the request and directed the parties to proceed to trial. "Predicated upon the terms of the order, the age of the case, and plaintiff's expert's unavailability, the judge [then] dismissed the complaint with prejudice." Plaintiffs appealed.

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You Can’t Cross Examine A Map!

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

Drug free zone (pd)In a case decided earlier last week, State v. Wilson, the New Jersey Supreme Court answered an interesting Constitutional Law question: Whether the admission into evidence of a map showing the designated 500-foot  "drug free zone" around a public park violated an accused's right, under both the U.S. Constitution and New Jersey Constitution, to be "confronted with the witnesses against him." The court held that maps like this do not violate the Confrontation Clause and, if properly authenticated, are admissible. The problem in Wilson, however, was that the map was not properly authenticated as a public record, therefore it was inadmissible hearsay. 

The Sixth Amendment to the U.S. Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The New Jersey Constitution contains an almost identical provision. "The Confrontation Clause affords a procedural guarantee that the reliability of evidence will be tested 'in a particular manner' through the crucible of cross-examination." As interpreted by the U.S. Supreme Court, the Confrontation Clause provides that a "testimonial statement against a defendant by a non-testifying witness is inadmissible . . . unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him or her." The threshold issue, therefore, is whether a statement is "testimonial."

The U.S. Supreme Court has "labored to flesh out what it means for a statement to be 'testimonial.'" It eventually arrived at the "primary purpose" test, which asks whether a statement has the primary purpose of "establishing or proving past events potentially relevant to a later criminal prosecution." If it does, then it is testimonial. If not, then it is not. For example, the U.S. Supreme Court has held that statements made to police to assist them in responding to an "ongoing emergency," rather than to create a record for a future prosecution, are not testimonial. 

The New Jersey Supreme Court has wrestled with this "primary purpose" test as well. For example, in one case, police sent a defendant's blood to a private laboratory after a fatal car crash. Approximately 14 analysts performed a variety of tests on the blood. A supervisor at the lab then wrote a report concluding that the defendant's blood contained traces of cocaine and other drugs and that this "would have caused the defendant to be impaired an unfit to operate a motor vehicle." The State sought to admit the report, or statements from it, into evidence. The court refused, holding that the report was testimonial because its primary purpose was to "serve as a direct accusation against the defendant." Similarly, the court held, in a separate case, that the statements in an autopsy report were testimonial because the autopsy was conducted after a homicide investigation had begun, after the defendant was a suspect, and after he had spoken to police, and because the autopsy was conducted in the presence of the lead State investigator. Thus, the court held, the "primary purpose of the report was to establish facts for later use in the prosecution."

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We’ve Come A Long Way From Orange Slices At Halftime! Court Rejects Lawsuit Over Injury During Youth Soccer Match

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

 

Yellow card (pd)

If you thought that the yellow card that your child got at his or her soccer match (undeserved though I am sure it was) could never land you in court, you were wrong. In G.C. v. New Jersey Youth Soccer, the parents of a child who received a yellow card were sued by the parents of a child who was injured on the play that resulted in the yellow card. Here is how the Appellate Division described the play:

During the last two minutes of a close soccer match, twelve-year old [plaintiff] was dribbling the ball to take a shot at the goal . . . [Defendant] was trying to catch up with him and take the ball away. There was excitement as the game was close and time was running out. [Plaintiff] made a move for the ball, but he didn't have control of himself as he did and managed to catch the plaintiff after the shot went off.

The play resulted in a knee injury to plaintiff and a yellow card being issued to defendant because, according to the referee, he "contacted [plaintiff] in a manner that didn't confirm with normal level of play."

It also resulted in a lawsuit being filed by plaintiff's parents, on his behalf, against a number of parties, including the other child, several individuals, and various soccer clubs and associations. Plaintiff alleged negligence and reckless and intentional conduct on the part of all defendants. After discovery, each defendant moved for, and was granted, summary judgment. Plaintiff only appealed the grant of summary judgment to the other child.

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