Tree Falls in the Car, Court Hears It: New Jersey Appellate Division Affirms Tort Immunity for Public Entities

The Superior Court of New Jersey, Appellate Division, affirmed an order from the Law Division in Essex County which granted summary judgment in favor of the City of Newark and the County of Passaic. See Russi v. City of Newark, No. A-1064-20, 2022 N.J. Super. LEXIS 20, at *9 (Super. Ct. App. Div. Feb. 17, 2022). The lower court had granted the public entities’ motions for summary judgment on the basis that both parties were entitled to immunity under the Landowner’s Liability Act, from which Plaintiff sought to appeal.

On December 3, 2016, Plaintiff was driving down a road owned by the County of Passaic, when suddenly a fallen tree branch pierced his windshield. Plaintiff filed suit against the County of Passaic and the City of Newark. Discovery revealed that the branch was from a tree located in the Pequannock Watershed, which is a wooded watershed owned by the City of Newark, but preserved through a deed of conservation by the New Jersey Department of Environmental Protection. The County owned the road and was responsible the road and a twenty-five foot right-of-way, which extended from its centerline to each side of the roadway. Unfortunately for Plaintiff, the tree’s base stood several yards away from the County’s right of way.

Following discovery, the City and County were both granted summary judgment at the trial level. The lower court found that the City was entitled to immunity under the Landowner’s Liability Act (LLA); the unimproved property immunity under N.J.S.A. 59:4-8; and common law immunity. The judge concluded that the road in question was a public pathway or easement under the LLA, and the Plaintiff was not engaged in any recreational activity at the time of the accident.

Plaintiff, on appeal, contended that the lower court improperly granted summary judgment against the County, and they were liable under N.J.S.A. 59:4-2 of Tort Claims Act, an immunity where a public entity may be liable for a reasonably foreseeable risk of injury, from a dangerous condition on their property. Here, the Appellate Court was aware that both sides agreed that the tree in question was not located on County property, however Plaintiff argued that the County controlled the property where the tree fell by occasionally picking up fallen limbs that fell into the right of way, and the County established “possessory control” by treating the tree as its own. The Court rejected this argument and cited to their holding in Farias v. Twp. of Westfield, 297 N.J. Super. 395, 403, 688 A.2d 151 (App. Div. 1997), maintaining that such occasional actions, on their own, are insufficient as a matter of law to establish control.

Plaintiff’s subsequent argument was that the City was not entitled to the benefits of the LLA’s immunity and asserted that the City’s conduct fell under the one of exceptions for either (1) willful failure to warn against the condition of the tree; (2) negligent conduct to Plaintiff while he was engaged in sport or recreational activity on the premises for consideration; or (3) grossly negligent conduct in maintaining the easement. The Appellate Court disagreed, pointing to the trial court’s record that Plaintiff clearly was not using the road for recreational activities, nor did he pay to use the road. Further, the Appellate Court had no proof that the City knew that the tree was dangerous, as there were no complaints made to them regarding the specific tree. The Appellate Division affirmed the summary judgment rulings in favor of the County and City.

New York Amends Comprehensive Insurance Disclosure Act

New York Governor, Kathy Hochul, signed into law amendments to the Comprehensive Insurance Disclosure Act (“the Act”) originally effective on January 1, 2022. The amendments reduce the burden that the initial bill placed on insurers and defendants by lessening the disclosure requirements.

Under the new requirements, disclosure of insurance policies must be produced within 90 days of filing an Answer, and if plaintiff provides written consent, a defendant need only provide a copy of the Declaration page, rather than proof of the existence and contents of any insurance agreement. Plaintiffs are permitted to withdraw consent at any time and then defendant must disclose the entire contents of the insurance agreements that relate to the matter being litigated. Defendant must also disclose the name and email address of the individual assigned to adjusting the claim, and Third-Party administrators no longer need to disclose the person at the insurance company that they report to. Moreover, while defendants must disclose their policy limits after taking into account erosion and other offsets, defendants are no longer required to disclose information on other lawsuits that have eroded the policy or attorneys who have been provided payments. Defendants must make reasonable efforts to provide updated information to the parties to whom this information has been provided. Updated information must be provided at the filing of the note of issue, when entering into formal settlement negotiations, at mediations, when the case is called for trial, and for sixty days after any settlement or entry of final judgment. Additionally, disclosure of policy limits will not constitute an admission that an alleged injury or damage is covered by the policy.

Of significance, insurance applications are no longer required to be disclosed, thereby avoiding issues regarding disclosure of proprietary and financial information that may not be relevant to the lawsuit. Further, the requirements under this Act do not apply to No-Fault and PIP actions.

The disclosure requirements under the Act will only apply to lawsuits filed after December 31, 2021. Carriers and defendants do not need to look back to active cases to provide this information but only going forward with the earliest disclosure due April 1, 2022, for any Answers filed on January 1, 2022.

The amendments to the Act significantly change many of the onerous provisions that defendants and insurers were required to disclose, and while not perfect, are a welcome change to from the initial disclosure requirement.

New Jersey Supreme Court Finds Worker's Compensation Compensability in Parking Lot Accident

The New Jersey Supreme Court recently awarded workers compensation benefits to an employee injured in an accident arising in the course of employment, overturning an earlier ruling by an Appellate Court. See Lapsley v. Township of Sparta, 2022 N.J. LEXIS 61 (Jan. 18, 2022). In this case, Plaintiff alleged that she was struck by a snowplow owned by the Township while walking in the parking lot also owned and maintained by the Township, Plaintiff’s employer.

Defendants filed a motion to dismiss arguing that Plaintiff’s claim was barred by the exclusive remedy provision of the Workers’ Compensation Act which was denied by the Law Division. Plaintiff then filed a summary judgment motion arguing that her injuries were not compensable under the Act. Defendants then filed a cross-motion for a stay and transfer of the matter to the Workers’ Compensation Division for a finding as to the compensability under the Act. Plaintiff then filed a claim for workers’ compensation benefits against the Township in the Workers’ Compensation Division. The Division found that the injuries “arose out of and in the course” of Plaintiff’s employment and were compensable under the Workers’ Compensation Act, N.J.S.A. § 34:15-36 and awarded benefits to Plaintiff. Id. at 9.

Plaintiff appealed and the Appellate Division found that Plaintiff’s injuries did not arise “out of and in the course of” employment because the Township exercised no control over Plaintiff’s use of the parking lot. Id. at 6. The Appellate Division relied in part on the Supreme Court’s decision in Novis v. Rosenbluth Travel, 138 N.J. 92 (1994) in considering the degree of control the employer exercised over the employee’s use of the lot. Id. at 9. The Appellate Court found that the Township did not exercise control over the parking lot because Township employees were never instructed on where to park or where to enter/exit the municipal complex. The Appellate Court concluded that a finding of compensability “would be an unwarranted and overbroad expansion” of liability for public employees. Id. at 10.

At the Supreme Court, Defendants challenged the denial of workers’ compensation benefits to Plaintiff and argued that the premises rule looks to the site of the accident and employer’s right to control the parking lot, not the degree of control it actually exercises for purposes of determining compensability. As such, Defendants argued that the Appellate Division’s decision would improperly expand public employers’ exposure to tort liability and employees’ eligibility for workers’ compensation benefits. Id. at 11. Of course, Plaintiff argued that the Township exercised no control of the parking lot and no control over her route to or from the municipal complex. Id.

In determining whether an accident arises “out of and in the course of employment,” the Supreme Court relied on Kriastiansen v. Morgan, 153 N.J. 298, 316 (citing N.J.S.A. 34:15-36) which states, that an injury that occurs “going to or coming from work arises out of and in the course of employment if injury takes place on the employer’s premises.” Id. at 4. Therefore, the fact that an employee finished work and is no longer on the clock does not preclude compensability.

The Supreme Court found that Plaintiff is, entitled to compensation under the Act. The site of the accident was the parking lot adjacent to the library where Plaintiff was employed as Plaintiff stepped off the curb directly into the parking lot. The Township controlled the parking lot through ownership and maintenance and the parties do not dispute the Township’s ownership and maintenance. Furthermore, the Township’s plowing of the lot further demonstrates the Township’s exercise of control over the lot. Id. at 5. The court affirmed the Division of Workers Compensation judgment awarding Plaintiff benefits. 

Clearly, Plaintiff’s goal was to avoid the more limited benefits under the workers’ compensation statute and to pursue a third-party claim against the co-employee operating the snowplow. However, the employer’s ownership and maintenance of the premises resulted in the unavoidable conclusion that this was indeed a work-related event.

New Jersey Supreme Court Addresses Belated Changes to Fundamental Theory of a Case

The Supreme Court of New Jersey recently addressed whether a premises liability claim under N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act should survive summary judgment after the plaintiffs belatedly altered their factual theory of liability. See Top of Form

Stewart v. N.J. Tpk. Auth., 2022 N.J. LEXIS 117 (Feb. 9, 2022). In Stewart, plaintiffs had been injured when they lost control of their motorcycle while riding over an overpass.

Plaintiffs alleged they lost control of the motorcycle “when they struck a piece of metal in the bridge's expansion joint that jutted out of the roadway (the joint theory).” Id. at *26. Bottom of FormPlaintiffs filed a complaint against defendants, the New Jersey Turnpike Authority and Earle Asphalt, one of the Authority's paving and roadwork contractors. The parties engaged in two years of discovery, including plaintiffs requesting extensions seven times. During oral argument before the trial court on defendants’ joint motion for summary judgment, plaintiffs changed their theory of liability. For the first time, plaintiffs argued that defendants failed to properly pave a portion of roadway on the overpass, leaving a height differential in the pavement which caused them to lose control of the motorcycle (the asphalt theory).  The trial court declined to consider the new asphalt theory and granted summary judgment to defendants. The Appellate Division reversed, finding there existed a genuine issue of material fact based on a motorcyclist who had been riding alongside the plaintiffs and claims to have seen a piece of metal in the roadway.

The Supreme Court of New Jersey reversed the Appellate Division’s judgment and agreed with the trial court that plaintiffs’ new theory should not have been considered given how late it was presented. The Court found that the defendants could not reasonably anticipate that plaintiffs were going to change their theory of liability, since plaintiffs had not mentioned anything regarding the pavement in their complaint or throughout the 757 days of discovery. The Court found that, although parties could revise their theories throughout the litigation process, a change in theory as fundamental and as belated as the one in this case, would have been prejudicial to the defendants.

For the sake of completeness, the Court addressed whether there was a triable issue of material fact with respect to the asphalt theory, finding that there was not. The Court found that the motorcyclist’s testimony that he saw a piece of metal on the roadway may have supported the joint theory, but plaintiffs abandoned that theory and the testimony did not support the new asphalt theory. Furthermore, all of plaintiffs’ discovery disclosures refer “to some sort of metal protrusion rather than anything having to do with how the roadway was paved.” Id. at *23. The Court also found that plaintiffs failed to present any competent evidence showing the photographs show a height differential in the roadway. Accordingly, the Court found that plaintiffs failed to establish the first element of their Tort Claims Act premises liability claim, that the overpass was a dangerous condition.

Stewart teaches us that, although parties could revise their theories of liability, a change in the fundamental theory of the case is prejudicial to defendants. This is especially the case when discovery has been ongoing for a substantial amount of time and discovery has been geared towards a different theory.

Community Association Tort Immunity Saves the Day Again

Recently, our firm successfully obtained a dismissal for a community association in New Jersey by arguing that the association’s tort immunity provision in their bylaws applied to plaintiff’s claims and as such plaintiff’s complaint was barred as a matter of law.

New Jersey law (2A:61A-13) affords community associations the ability to amend their bylaws to provide for tort immunity against claims brought by unit owners that allege bodily injury caused by the association’s negligence. Despite this powerful tool, judges are often reluctant to dismiss a claim prior to any discovery. Even if a judge dismisses the negligence claims, they will often allow the gross negligence claim to survive which would still force the parties to engage in time consuming discovery only for the community association to seek dismissal again once discovery is complete as the burden to prove gross negligence is difficult to meet.

In the matter recently handled by our firm, plaintiff allegedly tripped and fell on a sidewalk that was maintained by the association. Plaintiff’s complaint alleged that the association was negligent, and plaintiff suffered great bodily harm as a result of their fall. Because the association had the appropriate tort immunity language in their bylaws, and plaintiff was a unit owner, the judge dismissed plaintiff’s complaint in its entirety prior to any discovery. Here, having an experienced community association attorney able to navigate the claim, interpret the relevant governing documents and prepare a motion that left no doubt that plaintiff’s allegations are barred provided a win for our firm, the community association and the association’s insurance carrier.

First-Party Property Concealment or Fraud

There are several forms of insurance fraud that can rescind insurance coverage for insureds’ claims. Generally, we witness such fraud contained in applications for insurance policies, staged accidents, and claims to health care providers rendering treatment to injured policy holders. To combat the rise in insurance fraud cases, insurers’ have implemented concealment or fraud provisions that authorize the insurer to deny coverage for a insurance claims by the insured if the insured intentionally concealed or misrepresented any material fact or circumstances or engaged in fraudulent conduct before or after a claimed loss.

In Yolanda Vargas v. SafePoint Insurance Company, 47 Fla. L. Weekly D171a (Fla. 3rd DCA 2022), Florida’s Third District Court of appeal recently addressed the interpretation of Homeowners’ insurance policy’s containing “Concealment or Fraud” provisions providing for forfeiture of coverage when an insured makes “false statements relating to this insurance.” The insured, YolandaVargas, reported a loss to her First-Party Insurance Carrier, SafePoint Insurance Company, resulting from water damage due to a plumbing leak. Safepoint’s corporate representative testified that SafePoint immediately requested repair invoices from any prior claims and photographs of the pre-loss condition of the property. Vargas failed to provide this information and, instead, submitted a sworn proof of loss with an itemized estimate of her property damage prepared by a public adjuster.

After conducting its own investigation, SafePoint denied coverage and Vargas commenced suit. Safepoint served Vargas with its first set of interrogatories asking Vargas to disclose any previous claim made on the property. Vargas responded by recalling a roof claim made ten years prior. Vargas did not disclose any prior claims involving water damage. In her deposition, Vargas stated that she had not made any prior insurance claims involving a plumbing leak on the property. After receiving these answers, Safepoint added an affirmative defense based on the “Concealment or Fraud” provision of the insurance policy. To support this affirmative defense, Safepoint deposed Christina Crossway, the corporate representative of Citizens Property Insurance Company. Crossway testified that Vargas made a prior claim on the property in 2013 for “a broken water pipe under the kitchen sink” resulting in “water damage to the kitchen cabinets.” The damaged areas listed under this prior claim included many of the same areas in the claim Vargas had submitted to Safepoint.

Safepoint moved for summary judgment based on the “Concealment or Fraud” affirmative defense. The motion asserted that Vargas had violated the concealment or fraud provision in the contract by failing to disclose the previous water leak in her deposition and interrogatory answers and by including damages from the previous claim in her sworn proof of loss. Vargas argued that while Safepoint had submitted evidence of a prior claim, it had submitted no evidence to counter Vargas's statement under oath that she did not recall the prior claim when giving her interrogatory answers and deposition testimony. The trial court granted Safepoint's motion for summary judgment.

The legal question addressed by the Third District Court of Appeal was whether the term “false statement” in this post-loss context means (1) incorrect statement or (2) intentionally incorrect statement as the insurance policy in question failed to define this term. The term “false statement” holds two distinct meanings, the first being “contrary to fact or truth” and latter being “deliberately untrue.” However, while “false” is included in both meanings, the more common usage of the word, certainly in the legal context, carries the connotation of an intentionally deceptive statement. The District Court of Appeal concluded that the term “false statement” in this post-loss context, includes an element of intent to mislead, which, in the case at hand, involves a genuine issue of material fact. The Third District Court of Appeal reversed and remanded trial court’s ruling. 

Policy provisions should be considered in direct and assignee claims when analyzing potential Motions for Summary Judgement, like the Concealment and Fraud provision involved in SafePoint Insurance Company.  Callahan and Fusco will continue to monitor court decisions on this issue.