Premises liability – real estate brokers

The Appellate Division considered in Reyes, et al. v. Egner, et al., etc .,(decided January 8, 2009) whether the lessors of a beach house had a duty to correct or warn about what are claimed to be dangerous conditions of their property, presenting hazards that allegedly were not reasonably apparent to a short-term tenant and her guests. The tenant’s elderly father, who had been vacationing at the house, was injured when he lost his balance while stepping onto an outside wooden platform. The platform was adjacent to the sliding glass door leading from the master bedroom to a rear deck. There was no handrail available to help plaintiff regain his balance, despite building code provisions that appear to mandate one. He and his wife thereafter filed a personal-injury action against the lessors and the real estate broker that had facilitated the two-week lease. Because the trial court erroneously required plaintiffs to prove that the lessors had actively or fraudulently concealed the allegedly dangerous conditions, the court vacated summary judgment entered in the lessors’ favor. The case involved a short-term rental, a context in which a lessee often has only a limited opportunity to discover hazardous conditions on the premises. However, the court affirmed the grant of summary judgment to the real estate broker, declining to extend liability to the broker in this short-term rental context beyond the limits expressed in Hopkins v. Fox Lazo Realtors, 132 N.J. 426 (1993).

Exposure to perfume held "not compensable" injury

In Sexton v. County of Cumberland, decided January 9, 2009, the Appellate Division upheld a denial of benefits from a Petitioner who alleged that her pre-existing respiratory illness (COPD) was aggravated by a co-worker spraying perfume into the air of the workplace. The workers’ compensation judge found that such aggravation was not compensable because it did not arise out of the employment but instead arose out of a “personal proclivity” of the petitioner. The Appellate Division reversed his conclusion, finding that such an aggravation was compensable under N.J.S.A. 34:15-7 because it did arise out of this employment.

Insurance carrier forced to disclose computerized claims-adjustment process

A federal judge in Camden has handed down what appears to be the first federal court ruling to allow an insured to inspect a carrier’s computerized claims-adjustment process. U.S. Magistrate Judge Joel Schneider directed Allstate to produce “the data, pricing and software Allstate used between 2000-2004 to adjust property losses in New Jersey,” along with passwords, keys and activation codes needed to access and use it. The disclosure was ordered in Opperman v. Allstate New Jersey Insurance Co., a suit by a couple over Allstate’s handling of their claim for damage to their home in a 2004 fire. The Oppermans allege Allstate omitted and underpriced many items and they could not find a reputable builder willing to do the repairs at Allstate’s price. The Oppermans sued Allstate on behalf of a class of similarly situated individuals making claims under Allstate policies. Although Allstate and its software licensing company opposed the inspection of its claims adjustment software, Judge Schneider said the plaintiffs’ need for access outweighs the potential harm from disclosure of trade secrets. It is unknown whether Allstate intends to appeal the ruling.

This case will no doubt be cited by plaintiffs’ attorneys in New Jersey (most likely with success) to gain access to claims processing software and related tools from insurance carriers.

Will the real 'UIM' defendant please stand up?

The New Jersey Supreme Court last Monday was asked to explode the legal fiction in UIM cases that the driver who caused the accident, not the plaintiff’s auto insurance carrier who declined coverage, is the defendant. The plaintiff in Bardis v. First Trenton Ins. Co., was injured in a parking lot collision with an underinsured driver. First Trenton paid PIP benefits, but declined UIM coverage. When the plaintiff sued, he requested a jury instruction that First Trenton be the named defendant, which was refused. The jury found that the other driver’s negligence did not cause the accident, thereby extinguishing the UIM claim. The Appellate Division affirmed and the Supreme Court subsequently agreed to review the case. It is the Plaintiff’s argument that had the jury known of the PIP benefit payments, it could have concluded that the carrier agreed the injuries were caused by the other driver’s negligence. At argument, the Justices seemed to be concerned about the possibility that if insurers feel the payment of PIP benefits might lead to subsequent UIM liability, they will have “second thoughts.” This suggests the Court may affirm the Appellate Division. However, given the Court’s general penchant for ruling against carriers, the decision could go either way. In any event, the decision will have important implications for auto carriers doing business in New Jersey, and we will provide and update upon receiving the opinion.

The value of Surveillance Video in a bench trial

Of what value is video surveillance? The answer to that question is “as much value as the Judge places on it.”

Video surveillance is often relied upon by the defense in New Jersey Workers’ Compensation cases to either challenge credibility or to demonstrate that a claimant is not as disabled as he appears from his own testimony or his doctor’s examination. A recent case (Gross v. Neptune) has been relied upon by plaintiff’s attorneys to limit the introduction of videotape evidence in contested workers’ compensation trials in New Jersey.

In Lance v. City of Camden Police the claimant alleged a closed-head injury resulted in “post-concussion syndrome” leaving him unable to perform his duties as a Camden Police Officer. The claimant’s treating doctor, (Dr. Richard Sadwin) testified that although objective testing of the claimant (EEGs, MRIs, and CT Scans) was normal, based on psychological testing and clinical observation the claimant was unable to return to work as a Police Officer.

The City of Camden countered with the testimony of Dr. Dhiraj Panda who opined that the claimant had “no residual neurological’ impairment.

The case was tried.

On the last trial day, the respondent City of Camden introduced a video into evidence. The video was one hour long and showed the claimant installing an air-conditioner unit, driving a truck, operating a high-lift/boom lift, climbing a tree, and operating a backhoe, all while “totally disabled” according to his testifying doctor (Dr. Sadwin).

The Judge of Compensation viewed the video and then immediately read a pre-written decision, finding the claimant totally disabled due to the head injury. The videotape evidence was mentioned in the oral decision, but the Judge stated that the video “does not show any activity involving the use of the brain.”

The employer appealed the decision, arguing that the Judge of Compensation denied the City of Camden its due process rights by ignoring video-tape evidence and refusing read the employer’s trial brief.

The appellate court found that the Judge of Compensation handled the case “expeditiously” and should have reviewed the trial brief of the employer’s counsel. However, the appellate panel also stated that the failure of the Judge to read the brief was not a reversible error “clearly capable of producing an unjust result” (quoting R. 2:10-2). The Appellate court also found that the Judge’s reading of a decision that was written before the Judge ever saw the videotape evidence was acceptable because the Judge referred to the video in his oral decision and “simply did not find the video persuasive enough to negate the inference that [the claimant] was incapable of returning to work.”

In reviewing the Appellate decision, it is striking that the claimant was not cross-examined with the video evidence – that is, his testimony as to his working ability was not challenged by the video showing him clearly capable of operating heavy machinery and perform various types of work. The surveillance video in this case would have had impeachment value to attack the credibility of the claimant. In light of the fact that the medical diagnosis was based on subjective “observation” and psychological testing, a direct challenge to the credibility of the claimant may have been more fruitful in challenging the nature and degree of permanent disability in this case. Instead, defense counsel appears to have waited until all testimony was concluded before the video was introduced, which severely limits the impact of such evidence (for example, it could have been sued to cross-examine the petitioner’s testifying doctors, etc.).

Case: John J. Lance v. City of Camden Police Department, A-6606-06T3 (App. Div. decided October 17, 2008)(Judges Winkelstein & Fuentes, unpublished as of blog date).

Seasonal Hires down in NJ

New Jersey workers’ compensation law makes no distinction between seasonal employees and 50-year veterans in regards to entitlement to compensation for work-related injuries. Seasonal employee have the same rights and protections under our laws as do ‘permanent’ employees.

Seasonal workers hired by nation’s retailers in November 2006: 427,000

Seasonal workers hired by nation’s retailers in November 2007: 458,000

Seasonal workers hired by nation’s retailers in November 2008: 217,200

Source: ‘The Record,’ B-1, December 9, 2008.

FAQ: Is there a minimum number of weeks worked to receive WC benefits pay or is a seasonal employee entitled to compensation if he gets hurt on day one?

Answer: If an employee is hurt in the first minute he “punches in” he is entitled to exactly the same medical, wage replacement, and permanent disability benefits as if he had worked for the employer for 50 years.

Defending Employers