PorzioAppealLaw

Equine Facility Operators Granted Broad Protection From Personal Injury Lawsuits

The New Jersey Legislature created the Equine Activities Liability Act, N.J.S.A. 5:15-1 to –12 (“Equine Act”), to protect and support equine activities in the State because of their importance to New Jersey’s economy and its open space preservation efforts.  To achieve that purpose, the Equine Act limits claims by participants in equine activities and precludes recovery for injuries resulting from any statutorily defined inherent risk of such activities.  Although affording operators of equine facilities broad protection from lawsuits, the Equine Act also contains a number of exceptions under which an operator may be held liable for a participant’s injury.  In Hubner v. Spring Valley Equestrian Center, ___ N.J. ___ (2010), the New Jersey Supreme Court examined the Equine Act and held that it barred the plaintiff’s claim because her injuries were caused by an inherent risk of equine activities.

Just Because Your Pants Feel Tighter Doesn't Mean You Have a Valid Claim

Some cases involve groundbreaking constitutional issues that require a great deal of analysis and explanation.  Some cases do not.  Instead, a headline can provide nearly all the information you need to know.  Franulovic v. The Coca Cola Co., No. 09-3068 (3d Cir. August 10, 2010), the subject of this post, is such a case.  However, it is necessary to outline a few details of this recent Third Circuit case to put the above headline in the proper context. 

Lawyers Behaving Badly: Offering Free/Reduced Legal Services for Sexual Favors

One issue that the New Jersey Supreme Court frequently has to deal with is (unfortunately) attorney misconduct and ethical violations.  The Court had to consider what level of punishment to impose upon an attorney who offered clients, and the female relatives of clients, legal services in exchange for sexual favors in In re Witherspoon, ___ N.J. ___ (2010).  The Court decided that a suspension of one year, along with sensitivity training, was appropriate, but a vigorous dissent authored by Justice LaVecchia argued that the attorney should have been disbarred.

Oral Argument in the Family Part

New Jersey Court Rule 5:5-4(a), which governs actions in the Family Part of the Chancery Division, provides in pertinent part that “the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine and discovery matters.”  Obviously, the Rule vests discretion in the trial court as to whether to conduct oral argument, even on substantive motions, but the Rule has historically been interpreted in a manner that strongly favored oral argument.  In the published opinion Palombi v. Palombi, ____ N.J. Super. _____ (App. Div. 2010), the Appellate Division did not retreat from that interpretation but nonetheless upheld the trial judge’s decision to rule on six post-judgment orders without holding oral argument.

An Interesting Case

Sometimes we write about groundbreaking New Jersey Supreme Court or Third Circuit cases.  Other times we write about issues we find fascinating, like interlocutory appeals.  And then other times we like to write about a case that does not seem to be especially significant - to people other than the litigants and the court, of course - but simply addresses several interesting issues.  The type of case that can be easily overlooked because it does not create new law or involve controversial public issues.  Fernicola v. Pheasant Run At Barnegat, No. A-2027-08T1 (App. Div. July 2, 2010), is such a case.

More Interlocutory Appeals

As regular readers know, we like to track interlocutory appeals so that we can identify the types of issues that the Appellate Division will consider prior to final judgment.  Today, we are reporting on two such cases.  The first case involved the trial court’s vacation of a jury verdict, and the second involved whether the plaintiff’s attorney should be disqualified based on an alleged conflict of interest. 

Failed Efforts to Correct a Mistaken Judgment

Marina District Development Co. v. Sevilla, No. A-0392-09T3 (App. Div. July 15, 2010), is instructive because it highlights an improper attempt to correct a mistaken judgment.  After the defendant defaulted, the plaintiff submitted proof of amount due of $2,500, and the trial court entered a default judgment in that amount plus interest and costs.  That judgment was docketed on November 26, 2008, and on April 23, 2009, a writ of execution was issued.

In July 2009, the plaintiff realized that the amount owed was $3,000, not $2,500.  Upon realizing that mistake, the plaintiff filed a motion under Rule 1:6-2 to amend the judgment.  The certification that was submitted in support of the motion outlined the mistake but did not identify any arguments or cite to any authority for the requested relief.  The trial court denied the motion, as it concluded that it was not timely filed under Rule 4:49-2, which provides in pertinent part that “a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it.” 

Informal Waiver of Jury Trial

Actions in the Special Civil Part are governed by a different set of rules than those that control civil actions in the Law and Chancery Divisions of the New Jersey Superior Court.  The differences include, but are not limited to, jurisdictional amounts, the nature and scope of discovery, and motion practice.  In Asher v. Alma-GPNJ, LLC, No. A-0148-09T1 (App. Div. July 15, 2010), the Appellate Division examined the rule that controls the right to a jury trial in the Special Civil Part.

Another Step in Slip and Fall Jurisprudence

In Valentin v. Toys “R” Us, Inc., No. A-3326-07T3 (App. Div. July 15, 2010), the plaintiff and her husband were in a Toys “R” Us in Cherry Hill.  The plaintiff was headed toward an aisle that had car seats when she slipped and fell on what she described as a jelly-like substance.  A store employee came to her assistance, cleaned up the substance, and called an ambulance and the police.  The responding police officer prepared a report that indicated that the store employee told him that the plaintiff fell on a liquid substance that was spread out over several aisles of the store.  It looked like water but was oily when touched.  The police report also noted that no liquid products were sold in the area of the store where the plaintiff fell. 

The plaintiff and her husband sued Toys “R” Us, alleging negligence.  The trial court granted summary judgment to the defendant.  The court determined that the burden-shifting line of “supermarket” slip and fall cases did not apply because those principles had not been utilized in a non-supermarket setting.  The judge also found that Toys “R” Us could not be held liable because the liquid on which the plaintiff slipped was not a Toys “R” Us product because it only sold toys. 

Attorneys' Fees Are Not An Element of Consequential Damages in a Breach of Contract Case

New Jersey follows the American Rule, whereby each party – regardless of who prevailed – is responsible for its own attorneys’ fees and costs.  New Jersey Court Rule 4:42-9 provides a number of exceptions to that general rule, and courts also will award attorneys’ fees when called for by a contract between the parties.  Recently, the Appellate Division had the opportunity to re-examine the American Rule and emphasize its limited nature.