Connecticut Supreme Court Holds That Police's Use of "Soft Car" Does Not Fall Under Immunity Protection

Plaintiff in this matter sought damages from the City of Hartford and one of its police officers, in connection with injuries the plaintiff sustained when the plaintiff’s motorcycle was hit from behind by an unmarked police vehicle. Daley v. Kashmanian, 344 Conn. 464 (2022).  The vehicle known as a “soft car” lacked flashing or revolving lights and was indiscernible from a civilian vehicle.  The officer was instructed to surveil a number of motorcycles and “quads” in the area who were suspected of speeding and causing havoc on the city’s residents with the use of the “soft car”.  Plaintiff at trial sought indemnification for his injuries from the City as to the officer’s actions in violating Connecticut traffic laws.  The City asserted that plaintiff was not entitled to recovery under the governmental immunity statute.

The trial court returned a verdict in favor of the plaintiff, but the governmental immunity claim was to be later decided by the judge. The Court ultimately set aside the verdict, as it found in favor of the City in that the officer’s actions fell under the “discretion acts” protected by the governmental immunity statute.  The Appellate Court affirmed the trial court, and the plaintiff appealed to the Supreme Court.

The Connecticut Supreme Court after hearing both sides held that the Appellate Court incorrectly concluded that the defendants in this matter were entitled to governmental immunity in connection with the plaintiff’s negligence claim, as the State’s motor vehicle statutes setting forth the rules of the road imposed numerous “ministerial duties” that the officer violated in the operation of his motor vehicle.

The Court examined extensively the statute’s legislative history, and found that negligence in the operation of motor vehicles was not intended to be shielded by governmental immunity.  It further examined more contemporaneous cases that a municipality is liable for its employee’s negligent operation of an emergency vehicle engaged in a high-speed police pursuit and rejecting any claim for blanket immunity in such circumstances.

The Court found that although the decision to use a “soft car” to surveil the plaintiff was discretionary, once that decision was made, the officer had a ministerial duty and was legally bound to comply with the rules of the road, unless he was operating his vehicle as an emergency vehicle within the meaning of the Connecticut Statute, which the officer, at trial, conceded he was not.

The Court then remanded the matter back to the trial court with instruction to reverse the trial court’s decision to set aside the verdict and to reinstate the jury’s verdict rendering judgment for the plaintiff as to indemnification from the City. 

You Can’t Just Say No: Fighting Causality Requires an Explanation in NY Workers’ Compensation

In Matter of B&W Electrical Contractors (WCB # 9980 1481, Jan. 29, 1998), the New York Workers’ Compensation Board (WCB) recently amended a 1998 claim to include aggravated hypertension as the carrier was unable to provide a credible opinion asserting why the claim was unrelated and was only able to provide additional possible explanations for the claimant’s hypertension.

1998: The Claim Begins

In 1998 the claim was established for injuries to claimant's head, neck, back, knees, and pelvis. In 2014, the claim was amended to include chronic pain syndrome, depression, and post-traumatic stress disorder.

2021: Claimant Raises Hypertension Issues

In 2010, the claimant’s treating physician noted that his blood pressure was elevated and in 2012, he stated that claimant had non-causally related hypertension which was “well controlled.” In a January 2021 report, the claimant's treating nurse practitioner, NP Laing, diagnosed hypertensive disorder which was “[n]ot well controlled due to his extreme anxiety and dealing with workers comp.” In April 2021, the WCLJ found prima facie medical evidence for “aggravation of hypertension” based on NP Laing's January report. The claim was amended to include consequential anxiety in July 2021.

The carrier utilized a consultant, Dr. Wein, who conducted a records review and issued a report in August 2021, concluding that the claimant's hypertension was unrelated to this claim. Depositions of the doctors were then directed on the issue of causal relationship.

NP Laing testified that the anxiety that the claimant “has been dealing with has caused a fluctuation with his blood pressure” and that his hypertension was the result of his workers' compensation accident.

Dr. Wein testified that he was unable to find causal relationship between the claimant's hypertension and his work injury as the medical records periodically indicated that claimant suffered from hypertension. Dr. Wein testified that claimant “most likely does have hypertension” but “there are many causes of high blood pressure, including heart disease itself, anxiety, stress, lifestyle.”

In November 2021, the WCLJ amended the claim to include consequential hypertension. Special Funds requested administrative review.

On review, the Workers’ Compensation Board (WCB) found that Dr. Wein failed to explain why the claimant's causally related anxiety did not contribute to his hypertension. Therefore, the WCB found Dr. Wein’s opinion to be less credible than that of NP Laing, and in doing so they noted that NP Laing examined the claimant and Dr. Wein did not. The WCB found that the claimant has experienced hypertension for many years, at least since 2010, and that it is clear that claimant's causally related anxiety at the very least exacerbated and worsened that condition.

Takeaway

In workers’ compensation, denying causal relationship requires an explanation. Merely pointing out other possible causes does not rebut causality. Further, carriers should always obtain an in-person examination, when possible, rather than a records review, as the WCB took that into account in evaluating the credibility of the doctors.

The Importance of Policy Language

The New Jersey Supreme Court, in a unanimous ruling, overturned a lower court ruling and upheld an insurance company’s denial of coverage based a policy exclusion. See Norman International, Inc. v. Admiral Insurance Company, No. 086155 (N.J. Aug. 11, 2022). At issue was policy language that included an exclusion that provides the insurer will not provide coverage for any liability in certain specifically identified counties in New York. Richfield sought action against its insurer to defend and indemnify it in a personal injury action for monetary damages. The Law Division granted summary judgment in favor of the insurer, which the Appellate Division reversed. The Supreme Court overturned the Appellate Division, providing that the insurer had no duty to defend.

Richfield Window Coverings (“Richfield”) sells window covering products, including blinds, and also provides retailers with machines to cut the blinds to meet specifications of the retailers’ customers. Colleen Lorito, an employee of a Home Depot store, located in Nassau County, New York, was injured while operating a blinds cutting machine provided to Home Depot by Richfield. The employee, after suffering injury, filed suit in Nassau County against Richfield seeking recovery against its liability insurer, Admiral Insurance Company (“Admiral”). Admiral cited the policy exclusion language as defense which provided that the policy will not apply to bodily injury, property damage, or personal and advertising injury, allegedly arising out of, or related to, caused by, contributed to by, or in any way connected with operations or activities performed by or on behalf of any insured in several countries (including Nassau).

The New Jersey Appellate Division concluded that the exclusion did not apply as there was no “causal relationship” between Richfield’s activities involving the blind cutting machine and the causes of action raised in the complaint. The New Jersey Supreme Court reversed, concluding that Richfield’s activities constituted a sufficient basis to trigger the policy’s language excluding certain New York countries from coverage. What is significant is the Supreme Court’s rejection of the Appellate Division’s decision, and an erroneous duty to defend. The Supreme Court provided that, going forward, “in similar situations, courts should indicate when an issue requires consideration of facts beyond the complaint.” Thus, now an insurer may look to extrinsic evidence to determine whether they have a duty to defend, overturning the precedent created by Burd. The Court in Norman explains that if an extrinsic fact is relevant to the insurer’s determining coverage, and a duty to defend, but not related to determining an issue in the underlying action, then the insurer may use such facts to decide if it is obligated to defend.

The Court in Norman presents two important lessons: Policy language will be broadly construed in favor of the insurer and an insurer may look to extrinsic evidence in their determination of whether they have a duty to defend irrespective of whether a causal relationship exits.

Direct Action Statute Subject to Arbitration Clauses in New Jersey

Recently, in Crystal Point Condominium Association, Inc. v. Kinsale Insurance Company, A-76-20, the New Jersey Supreme Court held the plain language of the Direct Action Statute, N.J.S.A. 17:28-2, allows an injured party to file claims under this statute, and that claims pursuant to the terms of the policy are derivative, thus, in this case, subject to arbitration clauses within the policy.

The underlying suit arises from alleged construction and/or structural defects of a building in Jersey City, New Jersey. The building was managed by plaintiff, Crystal Point Condominium Association, Inc. (“Crystal Point”). Crystal Point, in-turn, filed an action against Nacamuli Associates, LLC and Hawke Inspections and Testing, LLC, however, these entities were insolvent. Thus, Crystal Point obtained default judgments against these entities. Crystal Point then pursued claims against Kinsale Insurance, who issued professional liability policies to Nacamuli Associates, LLC and Hawke Inspections and Testing, LLC, under the Direct Action Statute, N.J.S.A. 17:28-2. Kinsale Insurance argued against this action stating the Direct Action Statute was not satisfied as there was no proof of the insolvency or bankruptcy of Nacamuli Associates, LLC and Hawke Inspections and Testing, LLC. In the alternative, Kinsale Insurance moved to compel arbitration in compliance with the insurance policy which stated, ““[a]ll disputes over coverage or any rights afforded under this Policy . . . shall be submitted to binding Arbitration.”  The trial court ruled the Direct Action Statute was inapplicable for Crystal Point’s claims. The Appellate Court reversed the trial court decision and specifically noted the claims were not to be resolved via arbitration. The New Jersey Supreme Court granted review.

The Direct Action Statute, N.J.S.A. 17:28-2 allows a claimant to pursue an insurer if: (1) coverage for claims “against loss or damage resulting from accident to or injury suffered by an employee or other person and for which the person insured is liable”; or (2) coverage for claims “against loss or damage to property caused by animals or by any vehicle drawn, propelled or operated by any motive power, and for which loss or damage the person insured is liable.” However, in order to recover under this statute, the claimant must show: (1) first, injured parties have no rights under the policy until “execution against the insured is returned unsatisfied . . . because of the insolvency or bankruptcy” of the person insured; (2) second, any claim brought under the Direct Action Statute is a claim “under the terms of the policy.”

The New Jersey Supreme Court focused the analysis on the Legislative Intent of the statute and looked to the plain language which allows claims “against loss or damage resulting from accident to or injury suffered by an employee or other person and for which the person insured is liable.” The Direct Action Statute also provides, “a judgment creditor’s claim against the insolvent or bankrupt judgment debtor to be a claim ‘under the terms of the policy for the amount of the judgment in the action not exceeding the amount of the policy’; thus the claims are derivative and the claimant essentially “steps into the shoes of the assured” under the policy.  

From a defense perspective, it is beneficial for an insurance carrier to ensure the terms of the policy contain arbitration clauses to resolve claims.

Jumping Out of Arbitration

The Superior Court of New Jersey, Appellate Division, reversed an order from the Law Division in Ocean County which dismissed a minor Plaintiff’s personal injury complaint and compelled his claims to arbitration. See Matullo v. Skyzone Trampoline Park, 472 N.J. Super. 220, 276 A.3d 178 (Super. Ct. App. Div. 2022). The lower court had granted a motion to dismiss the Plaintiff’s complaint and compel arbitration filed by Defendant Skyzone Trampoline Park on the basis that the young Plaintiff defrauded Defendant by misrepresenting his age in a signed participation agreement to enter the park, purporting that he was an adult to be able to jump on their trampolines. The trial court held that Plaintiff misrepresented that he was nineteen years old, that the trampoline gym reasonably relied on his misrepresentation, and Plaintiff received and retained the benefits of their agreement, namely getting the opportunity to enter the park where he would inevitably injure himself.

On November 10, 2017, Plaintiff was a fifteen-year-old minor when he entered the Sky Zone Trampoline Park in Lakewood, New Jersey. Plaintiff was presented with a participant release and assumption of risk contract. One agreement term included an arbitration provision, stating that the patron was waiving their right to bring a lawsuit against the park and that any claims arising out of access to or use must be resolved using arbitration. Plaintiff signed the agreement improperly by first signing his name under the section asserting that he was a patron bringing a child with him and had the authority to execute it on their behalf. After signing that provision, he also signed a section towards the bottom, asserting that he was at least eighteen years old. In each section, he listed different dates of birth next to his signature, each being on either side of eighteen years old. Sky Zone employees did not catch this error on the agreement when processing the Plaintiff to jump at the facility that day.

Sky Zone was able to dismiss the suit at the trial level on the basis that Plaintiff had deceived them into allowing him to jump in the park by asserting he was eighteen. Plaintiff, on appeal, contended that the lower court did not fully consider case law holding that a minor can elect to avoid a contract, and the estoppel exception to that right should not apply to this arbitration provision. Under the law, a minor can generally disaffirm a contract entered prior to them reaching the age of majority, but an exception to this rule applies if the minor fraudulently misrepresented their age to another party, who reasonably relied on it, and allowed the minor to receive and retain the benefits of the agreement. See La Rosa v. Nichols, 92 N.J.L. 375, 379 (1918).

The Appellate Division focused on the Plaintiff’s two asserted dates of birth on the agreement and held that a reasonable person reviewing that agreement would not have relied on such conflicting representations, and there would be obvious questions about a nineteen-year-old being the legal guardian of a fifteen-year-old who both share the same name and birthday. The Appellate Division reversed the lower court, holding that the arbitration provision was unenforceable here while reinstating the complaint and taking the claims out of arbitration.

Written releases are a routine part of many activities people enjoy that carry risk. Do not feel rushed when reviewing the terms on your own before you sign, because sometimes you will only become aware of an arbitration provision or a term limiting your recovery when it’s read to you in court above your own, assenting, signature. On the other side, if you require patrons to sign these agreements at your business, please ensure that they are reviewed for proper execution prior to allowing a patron to receive the benefits of your business.

Saving Someone's Dog Doesn't Entitle Recovery Under the Rescue Doctrine

The New Jersey Supreme Court recently declined to expand the rescue doctrine to include injuries sustained to protecting another’s property, such as someone else’s pet. Samolyk v. Berthe, 2022 N.J. LEXIS 515, (June 13, 2022).  The common law rescue doctrine has applied in situations where the rescuer sues the rescued victim who is either completely, or partially, at fault for creating the peril that invited the rescue, i.e. where the rescuer is injured when trying to rescue another person. See Saltsman v. Corazo, 317 N.J. Super. 237, 248 (App. Div. 1998) (quoting Burns v. Mkt. Transition Facility, 281 N.J. Super. 304, 310 (App. Div. 1995)).

In Samolyk, the Court was required to determine whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ pet dog. Id. at *2. After saving the life of the defendant’s pet dog, plaintiff was found floating unconscious, sustaining neurological and cognitive injuries. Id. Moreover, the plaintiff specifically alleged that the defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into [a] canal. Id. Plaintiff claimed that the defendants invited the rescue because their dog was in peril and the plaintiff would not have jumped but for the dog needing rescue. Id. at *4.

Although the Court acknowledged that the Restatement Second of Torts extends the rescue doctrine to property of another, and provides that, “it is not contributory negligence for a plaintiff to expose himself to danger in an effort to save [them]selves or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts reasonably in the course of it. See Restatement Second of Torts § 472. Additionally, the Court went on to mention that the Second Restatement further provides a plaintiff may run a greater risk to [their] own personal safety in a reasonable effort to save the life of a third person than he could run in order to save the animate or inanimate chattels of his neighbor or even of himself. Id. at *5. Although the Court also acknowledged that a majority of sister states have extended the rescue doctrine to cover another individual’s property, the Court ultimately declined to follow and to expand the rescue doctrine. Id. at *9.

In review of whether the rescue doctrine extends to include those who voluntarily choose to expose themselves to significant danger in an effort to safeguard the property of another, specifically here, a dog, the Court emphasized that the rescue doctrine permits recovery for damages and injuries sustained in situations in which an individual had acted to shield human life. Id. at *12. Without discrediting any strong emotional attachments we may have towards our dogs, cats, and other domesticated animals, or any significance to our family heirlooms, the Court reasoned that any attempt to reform the application of the rescue doctrine to include the protection of property, must emanate from the instinct to protect human life. Id. at *12-13.

Conclusively, the Court affirmed the Appellate Division decision to dismiss plaintiff’s Complaint as plaintiff’s decision to jump into the canal to save the dog’s life does not give rise to a recognizable claim under the rescue doctrine. Id. at *13. Additionally, the Court, in detail, reasoned that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and may give rise to a cause of action under the rescue doctrine, such as a neighbor who reports a fire in a nearby house to the proper authorities, then attempts to squelch the fire based on a reasonable, good faith belief that children or other vulnerable inhabitants may be in immediate danger, then under those circumstances, the neighbor may have basis to invoke the rescue doctrine to recover damages for injuries. Id. at *15.