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Monday, February 23, 2015



We granted plaintiff Telma Moraes' motion for leave to file 
 an interlocutory appeal from the Law Division orders that denied her motion to consolidate her two personal injury actions and her motion for reconsideration, both unopposed. The trial court denied plaintiff's consolidation motion on a record that disclosed no significant or complex liability issue in either action, overlooked that trying the actions separately could result in inconsistent verdicts, and provided no appropriate explanation for the decision. Explaining and applying the abuse of discretion standard, we concluded that the trial court misapplied its discretion, and we reversed and remanded to the trial court to consolidate the cases for discovery and trial. 


Before the trial to terminate defendant's parental rights, defendant informed the court that a maternal ancestor was part Cherokee and a paternal one was "half Indian." Despite this knowledge, the DCPP failed to notify any of the three recognized Cherokee tribes or the Bureau of Indian Affairs of the pending guardianship proceeding, as required under the Indian Child Welfare Act, 25 U.S.C.A. §§ 1901-1963. Under the Act, a tribe has the right to intervene in a parental rights termination proceeding if any child involved is a member of its tribe, as tribes have an interest in its minor members that is deemed to be on parity with that of their parents. Tribes have exclusive authority to determine who its members are. A judgment terminating parental rights is vulnerable to being set aside if a tribe was not given notice and one of its minor members was involved. 
The court proceeded with the guardianship trial and terminated defendant's parental rights. While we agreed with the trial court that termination of the mother's parental rights was warranted, nevertheless we were compelled to remand the matter so that notice could be issued to the Cherokee tribes and the Bureau of Indian Affairs. If no tribe responds to the notice or if the pertinent tribes determine the child is not one of its members, the judgment terminating parental rights shall be deemed affirmed. Otherwise, the judgment has to be vacated. 

Augustine W. Badiali v. New Jersey Manufacturer’s Insurance Group (A-48-1

Augustine W. Badiali v. New Jersey Manufacturer’s Insurance Group (A-48-12; 071931) 

NJM’s rejection of the arbitration award in plaintiff’s UM action was “fairly debatable,” thereby barring plaintiff from recovering counsel fees and other consequential damages under a theory of bad faith. 

Kwabena Wadeer v. New Jersey Manufacturers Insurance Company (A-54-12;

 Kwabena Wadeer v. New Jersey Manufacturers Insurance Company (A-54-12; 072010) 

Plaintiff’s bad faith claim is barred in this action under the principle of res judicata because it was raised, fairly litigated, and determined by the trial court in the first instance. 

Ilda Aguas v. State of New Jersey (A-35-13

 Ilda Aguas v. State of New Jersey (A-35-13; 072467) 
For claims alleging vicarious liability for supervisory sexual harassment under Restatement § 219(2)(d), the Court adopts as the governing standard the test set forth by the United States Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). The employer in a hostile work environment sexual harassment case may assert as an affirmative defense that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” provided that the employer has not taken an adverse tangible employment action against the plaintiff employee. 

Friday, February 20, 2015

Emancipation of Children and Termination of Child Support in NJ

Termination of Child Support upon Emancipation in New Jersey

By Kenneth Vercammen, Esq.

Child support is usually paid through a wage withholding garnishment at the parents job. Child support orders and wage withholding continue forever against you until a Superior Court Judge signs a Formal Court Order terminating or modifying support. It is not sufficient for you to simply wait for a child to finish school. Many Divorce decrees and Property Settlement Agreements state that child support will end upon emancipation. For example, the term "emancipation" is sometimes defined as follows: (i) The completion of the childs formal education on a matriculated basis, whether it be graduation from a four year undergraduate school or high school, it being understood that so long as the child is diligently pursuing his formal education through a four year undergraduate college education and obtaining passing grades the child shall not be considered emancipated. (ii) Upon the completion of any of the aforesaid segments of the childs education, and upon the failure to commence the next segment of his education, or upon leaving school, the child shall be deemed emancipated unless failure to continue on with his education has resulted from injury or illness or some other cause beyond the childs control. (iii) The marriage of the child. (iv) Entry into the military or armed forces by the child.

Your attorney can draft the appropriate Motion to terminate child support if the child is emancipated. You will need to provide your attorney with relevant papers including a copy of the Final Judgment for Divorce, any other Child Support Orders, copy of birth certificate if available, proof of graduation from school or working full time, etc. Sometimes the child support recipient, usually the mother, will sign a Consent Order which your attorney can file without the need for a formal Motion. However, generally a Formal written Notice of Motion must be filed in the County Superior Court where the child support Order was entered. The requirements of the Motion are detailed and must include the correct filing fees. Child support does not end merely if the child reaches 18 and graduates high school. Most child support Order continue child support if the child is in college full time. However, dont give up. In the unreported Appellate Division decision of Kozak v Kozak __ NJ Super. __ (App. Div. decided January 9, 2003) the court reduced child support during the period of time the child resided at the college campus. The judge properly determined it was appropriate to calculate child support only for the period of time the child was not residing at college.
2053 Woodbridge Ave.
Edison, NJ 08817

Saturday, February 14, 2015

City and residential homeowner not liable for snow driveway apron fall down ROSA NAPPI, Plaintiff-Appellant, v. TOWN OF SECAUCUS and GREGORY KOHL

City and residential homeowner not liable for snow driveway apron fall down
ROSA NAPPI, Plaintiff-Appellant,
TOWN OF SECAUCUS and GREGORY KOHL Defendants-Respondents.
DOCKET NO. A-1996-13T1
Submitted January 6, 2015
January 12, 2015
Before Judges Yannotti, Fasciale and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-524-12.
Christopher P. Gargano argued the cause for appellant.
Robert J. Gallop argued the cause for respondent Town of Secaucus (O'Toole Fernandez Weiner Van Lieu L.L.C., attorneys; Mr. Gallop, on the brief).
John J. Gorssi, III argued the cause for respondent Gregory Kohl (Carey & Grossi, attorneys; Ashley A. Harris, on the brief).
        Plaintiff appeals from a December 6, 2013 order granting summary judgment to the Town of Secaucus (the "Town") and
Page 2
Gregory Kohl (collectively referred to as "defendants"). We affirm.
        Plaintiff fractured her leg after she slipped and fell outside Kohl's residence on an area that connects his driveway to the street (the "driveway apron"). Plaintiff filed a complaint alleging that the Town negligently plowed snow onto the driveway apron, causing her to slip and fall. Plaintiff also alleged that Kohl, as the homeowner, improperly maintained a dangerously-angled driveway apron.
        It is undisputed that the Town plowed snow and that Kohl removed snow from the driveway apron on the day plaintiff fell. Although the Town's unofficial snow removal policy is to avoid plowing snow onto sidewalks and driveway aprons, the Town Administrator indicated that there have been incidents where snow from plows might have been "accidentally" pushed onto sidewalks and driveway aprons. He pointed out, however, "that unfortunately[,] when plowing snow in an urban environment, that's a consequence . . . because there's no place for the snow to go . . . ."
        The Town has an ordinance requiring homeowners to clear snow from the sidewalks abutting their property. Kohl, plaintiff, and plaintiff's husband stated that the Town has previously pushed snow back onto driveway aprons after
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homeowners have cleared them, like here. Their statements corroborated the Town Administrator's acknowledgment that sometimes snow, as ordinarily expected from the dangers flowing from a snowstorm, is plowed onto driveway aprons because the snow has no place else to go.
        Plaintiff also retained an engineering expert who opined that (1) the driveway apron's slope was twenty-six percent, which is greater than the twelve-and-a-half percent slope allowed under New Jersey's purported current Building Code; and (2) the driveway apron did not have a "surface textured broom finish." Defendants denied constructing the driveway apron and sidewalk. Plaintiff's engineer could not determine when the driveway apron was designed and constructed or whether the driveway apron complied with the construction standards in effect at that time. Plaintiff "think[s] it can be inferred" that the sidewalk and driveway apron were constructed on or around 1920, when Kohl's house was built.
        Defendants moved for summary judgment and the judge held oral argument. The judge viewed the facts in a light most favorable to plaintiff and determined that the Town could not be liable as a matter of law because of the well-recognized common-law snow removal immunity enunciated in Miehl v. Darpino, 53 N.J. 49, 54 (1968). The judge also found that Kohl was not
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liable pursuant to Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 159 (1981).
        On appeal, plaintiff argues that the judge erred in granting summary judgment to defendants because (1) the Town was not entitled to snow removal immunity; (2) the Town owned or controlled the driveway apron; (3) Kohl was liable for the dangerous condition created by his predecessor in title; and (4) Kohl should have known that there was a dangerous condition.
        We conclude that plaintiff's arguments "are without sufficient merit to warrant discussion in a written opinion[,]" R. 2:11-3(e)(1)(E), and affirm substantially for the reasons expressed by the judge in her comprehensive oral opinion. We add the following remarks.
        Summary judgment may be granted when, considering the evidence before the court on the motion in a light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). When reviewing an order granting summary judgment, we apply the same standards that the trial court applied when ruling on the motion. Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div.), certif. denied, 216 N.J. 86 (2013).
Page 5
        The judge properly granted the Town's motion for summary judgment. It is well-established that a municipality has common-law immunity for suits related to snow removal. Miehlsupra, 53 N.J. at 54 (holding that snow removal is one type of government act "which should not give rise to tort liability" (citation and internal quotation marks omitted)). This is because "[t]he unusual traveling conditions following a snowfall are obvious to the public" and "[t]he public benefit arising from snow removal far outweighs any slight, private detriment which could accompany such a municipal act." Ibid.
        The immunity established in Miehl was not abrogated by the Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 412 (1988). The Court in Rochinsky recognized, however, that a municipality may not be immune under Miehl if the "public entity's snow-removal activities might result in hazardous conditions different in character from the dangers ordinarily expected from a snowstorm." Id. at 416. The creation of such conditions "would necessarily involve palpably unreasonably conduct by a public entity that was separate and distinct from its snow-removal functions." Ibid. (citing N.J.S.A. 59:4-4). The Court has defined "palpably unreasonable" to mean "behavior that is
Page 6
patently unacceptable under any given circumstance" such that "no prudent person would approve of its course of action or inaction."Polzo v. Cty. of Essex, 209 N.J. 51, 75-76 (2012) (internal citations and quotation marks omitted).
        The judge properly concluded that there are no facts showing that the Town's "conduct of plowing snow onto the driveway apron while clearing the street [was] extreme or different in character from the dangers ordinarily expected from a snow storm or even palpably unreasonable under the Rochinsky analysis." See id. at 75 n. 12 (finding that "[a]lthough ordinarily the question of whether a public entity acted in a palpably unreasonable manner is a matter for the jury, in appropriate circumstances, the issue is ripe for a court to decide on summary judgment"). The Town cleared snow from the main roadways and although it had an informal policy to avoid clearing snow onto driveways and sidewalks, having snow end up in those locations is an unavoidable consequence of plowing snow within "dangers ordinarily expected from a snowstorm." Rochinskysupra, 110 N.J. at 416. The Town's ordinance requiring homeowners to clear snow from walkways and driveways abutting their property also indicates that the Town took additional steps to mitigate the dangers from snowfall and snow removal.
Page 7
        Plaintiff's contention that summary judgment was inappropriate because the Town owned or controlled the driveway apron and sidewalk, and was therefore liable for its alleged unsafe condition, is unpersuasive.
        The TCA "provides protection for public entities involved in tort claims" and "[g]enerally, immunity prevails over liability to the extent that immunity has become the rule and liability is the exception." Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 490 (2014). The TCA declares that a public entity can be liable for an injury caused by a condition of its property only if:
[T]he plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

[N.J.S.A. 59:4-2.]
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        A public entity has actual notice of a dangerous condition "if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3a. A public entity has constructive notice "only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3b. A public entity is not liable "for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." N.J.S.A. 59:4-2.
        Here, it is undisputed that the area where plaintiff slipped and fell was in the Town's right-of-way. Plaintiff presents no facts, however, that a Town employee constructed the driveway apron or that the Town had actual or constructive notice of the purported improper slope of the driveway apron. Plaintiff admits that it is indeterminable when the driveway apron and sidewalk were constructed, who performed the construction work, and whether the construction met the construction standards in effect at the time of its installation.
Page 9
        Plaintiff also raises no genuine issue of fact to show that the Town engaged in any action which was palpably unreasonable. Viewing the facts in a light most favorable to plaintiff, even if the driveway apron was built at a steeper grade than present standards allow, this is not generally "a high priority, even if the [municipality] were on notice of its presence" because of "limited public resources." Polzosupra, 209 N.J. 51 at 77-78 (finding an uneven road shoulder was not a high priority in the context of public demands); see alsoN.J.S.A. 59:2-3d (providing public entity immunity "for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources . . . unless a court concludes that the determination of the public entity was palpably unreasonable").
        The judge properly granted summary judgment to Kohl. It is well-established that a residential property owner has no duty to maintain the sidewalk that borders the premises, and will not be liable unless the owner creates or exacerbates a dangerous sidewalk condition. Stewartsupra, 87 N.J. at 159 (confining the duty to maintain the sidewalks to "owners of commercial property"); see alsoLechejko v. City of Hoboken, 207 N.J. 191, 195, 210 (2011) (reaffirming Stewart and noting that
Page 10
"[r]esidential homeowners can safely rely on the fact that they will not be liable unless they create or exacerbate a dangerous sidewalk condition"). Thus, a residential landowner can only be liable for "'the negligent construction or repair of the sidewalk by himself [or herself] or by a specified predecessor in title . . . .'" Stewartsupra, 87 N.J. at 153 (quoting Yanhko v. Fane, 70 N.J. 528, 532 (1976)).
        Here, the undisputed facts show that Kohl did not construct the driveway apron or sidewalk, he does not know who constructed it, and he has not modified or done any work to the sidewalk which might have exacerbated a dangerous sidewalk condition. Even accepting plaintiff's assertion that it can be inferred that some predecessor in title constructed the sidewalk, which we must do, such an assumption still fails to answer which predecessor in title created the condition so as to give notice to the homeowner. See id. at 156 (stating that the proofs necessary to establish a prima facie case, including when the sidewalk was constructed and the proper standard, can be "extremely elusive").
        We reject plaintiff's remaining contention that summary judgment in favor of Kohl was precluded under our Supreme
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        The Court in Brown held that when a commercial building's wooden stairwell collapsed eleven months after the defendant took possession of the building, the jury could be appropriately charged on the doctrine of res ipsa locquitur. Id. at 295. Under those circumstances, the Court determined there could be "an inference that some negligent act on the part of defendant contributed to the happening of the accident . . . and that this inference could be drawn from the accidental occurrence itself." Ibid.
        Brown is inapplicable to this case. Kohl is a residential homeowner and has immunity from suit under the holdings in Stewart and Lechejko. And, unlike the defendant in Brown, who knew the builder and took possession of the defective stairwell, the facts are undisputed that Kohl does not know who constructed the driveway apron or when it was built. Therefore, Kohl could not have determined if there was a defect in the driveway based upon inspection because it is impossible to determine whether the driveway was constructed to the proper standard at the time of its installation.

Thursday, February 12, 2015

$2.4 Million verdict upheld for car accident. Mickens v Misdom

$2.4 Million verdict upheld for car accident. Mickens v Misdom JESSE L. MICKENS, JR.,  Plaintiff-Respondent,  v.  TIMOTHY S. MISDOM and CITY OF ELIZABETH,  Defendants-Appellants. 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4050-10.
The opinion of the court was delivered by


Plaintiff Jesse L. Mickens, Jr., was injured on January 8, 2010, when his automobile was struck by a pick-up truck owned by defendant City of Elizabeth and operated by defendant Timothy Misdom. The parties stipulated defendants' liability and, at the trial's conclusion, the jury found a permanent injury, as necessitated by N.J.S.A. 59:9-2(d), and awarded plaintiff $2,400,000 in damages for his disability, impairment, loss of enjoyment of life, and pain and suffering. The trial judge later denied defendants' motion for a new trial or remittitur, and defendants now appeal, arguing, among other things, the award was so grossly excessive as to demonstrate a miscarriage of justice. In deferring to the jury's assessment of the evidence and the trial judge's "feel of the case," we affirm the judge's determination that, although high, the verdict was not shocking to "the judicial conscience," let alone the judge's own conscience derived from his experiences as a trial judge and practicing attorney.

In examining the issues presented, we first briefly consider the evidence regarding the nature of the accident, plaintiff's injuries, and their impact on his life.
The jury heard that plaintiff was forty years of age when the accident occurred. Plaintiff was sitting in his parked vehicle when, as he "leaned over as though to retrieve something from the floor of the front passenger seat," he felt an impact caused by defendants' pick-up truck, which had backed into and moved plaintiff's vehicle ten to fifteen feet from its former stopped position. The trial judge noted in his thorough written decision, which memorialized the denial of defendants' new trial motion, that photographs admitted in evidence did not reveal "severe damage" to either plaintiff's vehicle or defendants' truck, although the photographs depicted "visible damage to [plaintiff's] vehicle['s] rear end." When the police arrived, plaintiff declined medical attention but later went to an emergency room because of lower back pain. He was released the same day.
Plaintiff consulted with a chiropractor a few days later. Treatment provided no relief, and the chiropractor ordered an MRI study, which was conducted on March 1, 2010, and which revealed a herniated disc at L4-5. Plaintiff consulted a physician for pain management, and a neurosurgeon soon recommended disc-removal surgery, which was performed on August 5, 2010. According to the trial judge's written decision, plaintiff testified "that the surgery helped somewhat," but "he lives with persistent back pain and discomfort[.]" Plaintiff also testified that: he is employed as "a warehouse worker which [] involve[s] lifting and moving boxes around"; he missed four weeks of work, but returned to work because he could not afford to miss any additional time; at the end of each work day "his back bothers him significantly, and he cannot do the things he used to do around the house or the things he did recreationally"; and he "can do very little except rest on evenings and weekends so he can try to keep working to support" his wife and child. By the time of trial, three years had elapsed from the date of the surgery with no change in plaintiff's daily pain, discomfort and limitations.
Plaintiff's wife, chiropractor and neurosurgeon also testified, the latter opining that accidents causing even "minor physical damage," as suggested by the photographs of plaintiff's vehicle, are not necessarily indicative of the extent of an occupant's injuries; he concluded that plaintiff sustained a permanent injury as a result of the collision. As described by the trial judge, the neurosurgeon testified that "immediately following the impact the herniated disc may not have been full blown at that time, but [] the impact caused the physical injury that evolved to the complete herniation depicted on the MRI less than 60 days post impact."
Defendants called a biomechanical engineer who testified that the herniated disc did not result from the collision, which he viewed as minor.1 The engineer was not a physician and lacked the expertise to make a medical diagnosis. Moreover, as the trial judge noted, the engineer "conceded on cross-examination that studies he relied upon to support his opinion [about the impact] did not involve individuals who were stretched over to the side as [plaintiff] was in this collision," and the engineer conceded "different body types will respond differently to trauma."
In addition, defendants elicited testimony from an orthopedic surgeon, who recognized plaintiff had a herniated disc and sustained a permanent injury. This expert also testified that the surgery was necessary and plaintiff will have problems with which he will have to live. Although the expert testified it was "unlikely" the herniated disc resulted from the collision in question, he could not otherwise account for how it occurred and acknowledged plaintiff had no history of prior back injuries.

In appealing the $2,400,000 judgment entered in plaintiff's favor and the order denying their motion for a new trial or remittitur, defendants argue:



We find insufficient merit in Points I and III to warrant further discussion in a written opinion.  R. 2:11-3(e)(1)(E).2 We also reject Point II for the reasons that follow.

The legal principles that guide consideration of the quantum of a jury award were recently thoroughly examined by our Supreme Court. Although these principles are easily restated, their application – as the Court observed in He v. Miller207 N.J. 230, 235 (2011) – presents "profound difficulties that our trial courts and appellate tribunals continue to encounter as they seek to understand and apply the concepts surrounding remittitur." The matter at hand presents an interesting counterpoint to the result ultimately3 reached in He v. Miller.
We first turn to the legal principles outlined in He v. Miller:
The power of remittitur is not to be exercised lightly . . . because we repose enormous faith in the ability of juries to equate damages with dollars to "make the plaintiff whole, so far as money can do." We rely on juries to perform that task while recognizing that "[a]ssigning a monetary value to pain-and-suffering compensation is difficult because that kind of harm is 'not gauged by any established graduated scale.'" But a jury's authority is not unbounded and we have explained that "[o]ur role in assessing a jury verdict for excessiveness is to assure that compensatory damages awarded to a plaintiff 'encompass no more than the amount that will make the plaintiff whole[.]'"

[207 N.J. at 248-49 (citations omitted).]

In light of these important policies, the Court reiterated the familiar test that a trial judge should not disturb a jury award unless "'so disproportionate to the injury and resulting disability as to shock the conscience.'"  Id. at 249 (quoting Baxter v. Fairmont Food Co.74 N.J. 588, 604 (1977)).
These principles continue to guide our courts but they represent only a starting point in answering the difficult question about when a verdict is "so disproportionate" or "shock[ing] [of] the conscience" as to warrant a trial judge's intervention because no two plaintiffs and no two juries are the same. A trial judge must begin "with the presumption that [the] verdict is correct" and "view the evidence in the light most favorable to plaintiff in evaluating whether remittitur is appropriate." Id. at 249; see also Johnson v. Scaccetti192 N.J. 256, 281 (2007); Baxtersupra, 74 N.J. at 598. In addition, the trial judge must be mindful that the task "is not to bring a generous, but manifestly supportable, verdict down into a range more to [the judge's] liking," but only "to reduce a verdict that is 'shocking' and award in its place 'the highest figure that could be supported by the evidence.'"  He v. Millersupra, 207 N.J. at 250 (quoting Fertile v. St. Michael's Med. Ctr.169 N.J. 481, 500 (2001)).
When concluding a verdict is excessive, a trial judge must explain how that conclusion and the remitted amount were derived from the record. Ibid.Fertilesupra, 169 N.J. at 501. In this regard, the Supreme Court has endorsed a trial judge's consideration of "other verdicts" while cautioning "that in doing so '[the trial judge] must give a factual analysis of how the award is different or similar to others to which it is compared.'"  He v. Millersupra, 207 N.J. at 251 (quoting Johnsonsupra, 192 N.J. at 281).
The Court in He v. Miller also expounded on the role played by appellate courts in reviewing a remittitur order.  Ibid.The Court emphasized that "the jury is the bedrock of our system of justice," ibid., but that the trial judge has the limited power to intervene when comparable verdicts and the judge's own "feel of the case" – because "trial judges see much that juries do not" – move "[t]he court's own informed conscience" to the belief that the verdict is disproportionate and shocking.  Id. at 254. Consequently, the Court emphasized that appellate panels "must . . . recognize that their mere disagreement" with the judge's evaluation "will not suffice," and they "must" instead "pay deference to the trial court's 'feel of the case.'" Id. at 255 (quoting Johnsonsupra, 192 N.J. at 282).
Interesting is the difference of opinion as to the application of the trial judge's "feel of the case" and the judge's subjective, personal experiences found in the majority and dissenting opinions in He v. Miller. Justice Albin, whose dissenting opinion was joined by the Chief Justice, observed that the majority had "exalt[ed] the trial judge's 'feel of the case' above the jury's duty to decide for itself the quantum of damages . . . [and] undermines" the obligation of appellate courts "to review remittitur motions . . . on the objective evidence of record." Id. at 267 (dissenting opinion). And, with respect to the use of "subjective, personal experiences," the Court's dissenting members referred to Chief Justice Hughes's opinion in Baxter in observing that "however much trial and appellate judges are affected by their subjective prejudices and predispositions and life experiences, those 'individualized propensities of mind' must somehow be merged into 'an amalgam of common judicial experience related to the doing of justice,'" and they must "'resist the natural temptation to substitute their judgment for that of the jury.'"  Id. at 268 (quoting Baxtersupra, 74 N.J. at 596-97). In a nutshell, it is not the trial judge's conscience but a collective "judicial conscience" that guides a trial judge's examination of a jury's damage award.
This, however, was a minority view, and the majority opinion makes clear that the trial judge's experience – in He v. Miller, the trial judge had been on the bench "for only a few months" but was an experienced practitioner of twenty-two years, id. at 256 (majority opinion) – outweighed the many more decades of collective experience of the appellate judges who objectively reviewed the remittitur order. That is, the majority determined that the trial judge's subjective view that he "had never encountered a like" verdict for such a case – which included the judge's identification of two other trials over which he had presided since being appointed to the bench within the year – was entitled to "significant" weight, ibid., and apparently the greater experience of three appellate judges entitled to little or no weight. Thus, the trial judge's decision in He v. Miller – that the case was more akin to "a spectrum of jury awards . . . rang[ing] between $40,000.00 and $200,000.00," 207 N.J. at 243 – was dispositive4 apparently because he presided over the trial, even though the judge's past experiences cannot possibly be what our courts have long referred to as a trial judge's "feel of the case."5 The utilization of the trial judge's past personal experiences and subjective views is quite problematic, not only because judges differ,6 and not only because no two similar experiences are quite the same,7 but also because the process of using these personal experiences defies greatly valued attributes of our judicial system, namely, a party's right to discovery and the right to confront and cross-examine information used to adjudicate the dispute. Because of He v. Miller, a judge may simply rely on past experiences without permitting the parties the right to inquire further or test the sufficiency or accuracy of those experiences. In that way, the process was transformed from an objective to a subjective examination. This interesting problem essentially boils down to Justice Albin's criticism in his dissent when, in referring to Johnsonsupra, 192 N.J. at 281, he emphasized that "[i]t is not the [trial] judge's personal conscience but the judicial consciencethat controls."  He v. Millersupra, 207 N.J. at 269 (dissenting opinion) (emphasis added).8
In any event, the He v. Miller majority opinion is that which guides our disposition of this appeal, and we view that decision as commanding deference to the trial judge's "subjective, personal experiences." With this as the framework to which we are bound, we turn to the trial judge's decision, although we first examine what traditionally constituted the judge's "feel of the case" before considering his subjective view and personal past experiences.

In describing his "feel of [this] case," the judge described the considerable educational background of the jury, his view that the jurors were not "rustic[s] in the style of Norman Rockwell," citing DeHanes v. Rothman158 N.J. 90, 99 (1999), and that there were no "slackers" on the jury. He also referred to plaintiff as the personification of the "perfect" or "ideal" plaintiff in that he "dressed respectfully," was "always prompt and quietly courteous," was "in obvious discomfort, but he made efforts not to display that discomfort," and "testified with dignity, humility and modesty." The judge found plaintiff's testimony to be "understated and straightforward"; "[i]n terms of his credibility and general appeal," the judge "categorize[d] him in the 99th percentile." The judge also noted that plaintiff did not appear to be "in any way exaggerating the impact this injury has had on his life," and he "responded to excellent cross-examination forthrightly and honestly," concluding it was "not at all a surprise that the jury accepted the testimony of this extraordinarily credible witness." Accordingly, the judge determined "there was a potential for a very sizable plaintiff's verdict" once the jury determined – as it obviously did – that the so-called "low-impact" collision caused the herniated disc.
These observations certainly fall into the "feel of the case" rubric to which our appellate courts have always deferred. Based on these observations, and others set forth in the judge's thorough opinion, he recognized the verdict was "high" and "perhaps at the far end of the bell[-]shaped curve used in statistical analysis" but "not shock[ing] [to] the judicial conscience." If the analysis were to stop here, we would merely state our agreement that the verdict is very high and near the point of being disproportionately high, but we cannot conclude – in light of our requirement to defer to both the jury's view of the evidence and the judge's feel of the case – that it is shocking to the judicial conscience. Indeed, this analysis alone is sufficient to compel our affirmance.
Even though the above discussion compels our conclusion, we add the following comments regarding the judge's disclosure of his "subjective, personal experiences" that also supported his denial of the new trial motion. Considering the license provided by the majority opinion in He v. Miller, the trial judge provided the following information:
I have been sitting as a civil trial judge for the last year, during which I have presided over [forty-one] trials. [Twelve] of those cases settled after jury selection. [Nineteen] were defense verdicts, and only [eight] verdicts awarded damages to a plaintiff. Some of the plaintiff verdicts involved extremely modest damage awards. There were also two mistrials. . . .

Before serving as a civil trial judge, I was a judge in the family division for three years. Before that I was engaged for [twenty-nine] years as a trial attorney, and for my last [twenty] years as a lawyer I did almost exclusively plaintiff's injury cases. I did try two cases in defense of injury claims, but I believe I had more than 100 civil injury trials as plaintiff's counsel where a jury was selected. I have been asked to do continuing legal education lectures more than [forty] times by various organizations. I have been asked several times by the New Jersey Defense Association to speak at their annual daylong trial seminar. I was [c]ertified by the Supreme Court as a Civil Trial Attorney. I serve on the Supreme Court Committee on the Rules of Evidence and am just now completing my third two-year term on that Committee. I wrote two books for New Jersey lawyers in the injury field. One of [the] books is updated and reissued annually. Researching and writing the annual revision has kept me current with the law and with verdict trends.

The judge also described a case over which he presided that he found had some similarities; that case settled for $2,500,000 prior to the commencement of the jury's deliberations.9 The judge recognized the many differences – including that plaintiff suffered a fractured ankle which, after surgery, caused her "substantial residual pain labeled as complex regional pain syndrome." We have no ability to examine further this purported "comparable" because all we know of it is what is stated in the judge's written decision.
Although a slim majority of the Supreme Court has held that this information is relevant, we conclude that, to the extent it has any bearing, the trial judge's subjective personal experiences – while different from or obviously at odds with those of the original trial judge in He v. Miller10 – support his determination that the verdict was not excessive.

With or without the trial judge's personal experiences and subjective view, we would affirm the order denying a new trial or remittitur because of our obligation to honor the jury's assessment of the evidence and our deference to the trial judge's "feel of the case." In objectively reviewing the evidence and the judge's description of what he observed throughout the trial, we conclude that although very high, this verdict cannot be said to be shocking to the judicial conscience.

1 The engineer relied in part on his belief that plaintiff's vehicle was in neutral at the time of impact – a fact in dispute, since plaintiff testified the vehicle was in gear when the collision occurred. Because the jury undoubtedly found plaintiff credible, as did the trial judge, we will assume the jury also decided this factual question in plaintiff's favor.
2 We agree with the trial judge's comments in denying the post-trial motion as to Point I. The pre-existing-condition jury instruction was necessary because defense counsel had argued the possibility that plaintiff had a pre-existing condition in his opening statement and then cross-examined plaintiff about his days of playing cornerback for Rahway High School as well as his employment history, which included lifting heavy items in a warehouse. We affirm on this point substantially for the reasons set forth by the trial judge in his written opinion. We also reject defendant's Point III not only because the argument that the verdict was against the weight of the evidence was not urged in the post-trial motion and thus not cognizable on appeal, see R. 2:10-1, but also because there was more than sufficient evidence from which the jury could have found the collision caused a substantial permanent injury.
3 Of course, there has yet to be an "ultimate" conclusion in He v. Miller. A jury previously returned a verdict of $1,000,000 for the plaintiff's pain and suffering, but the trial judge determined that any award beyond $200,000 would be excessive and ordered a remittitur to that amount which, if rejected by the plaintiff and her husband, whose per quod claim was also reduced, would result in a new trial. We reversed and reinstated the jury verdict, 411 N.J. Super. 15 (App. Div. 2009), but a closely-divided Supreme Court reversed, concluding we "misappli[ed] . . . settled precedents." 207 236. Thereafter, the plaintiffs rejected the remittitur, and the matter was again tried. This time the jury awarded $500,000 in pain and suffering -- far above what the earlier trial judge had found to be the outermost limit -- and a different trial judge with more than thirty years' experience on the bench rejected the argument that this verdict was excessive, stating, "I wasn't the least bit shocked by the verdict, not in the least"; we affirmed.  He v. Miller, No. A-1599-12 (App. Div. Sept. 2, 2014) (slip op. at 5, 10). A petition for certification is pending in the Supreme Court.
4 Although endorsed by the majority in He v. Miller, the trial judge there – after advising the jury that there was no "yardstick" by which to assess pain and suffering – then used a $200,000 yardstick to measure the jury verdict.

5 "Feel of the case" comes from what the judge perceived had occurred in the courtroom during the trial, even at times when the jury was not present.  See He v. Millersupra, 207 N.J. at 254-55 (recognizing that trial judges "see plaintiffs entering and leaving the courtroom each day, observe them when the jury's attention is on another witness or exhibit, and are privy to their interactions and behaviors when the jury is absent from the courtroom during colloquy, conferences, and breaks during proceedings").

6 The He v. Miller majority acknowledged this, stating "all judges come to the bench with different backgrounds, experiences, perceptions, and views," and recognizing that "judges who have gained experience on the bench in similar trials will have a different, and perhaps better, basis on which to determine whether a particular award is beyond the acceptable to such a degree that it calls for remittitur." 207 N.J. at 253.
7 The He v. Miller majority also recognized this.  See 207 N.J. at 253 (observing that "no two plaintiffs are identical and no two cases are identical").

8 Indeed, as noted earlier, the first He v. Miller trial judge, who had been on the bench less than a year, found anything over $200,000 shockingly disproportionate, while the second He v. Miller trial judge, who has been a judge for more than thirty years, found nothing remotely shocking about a $500,000 pain and suffering award in the same case.
9 The trial judge also noted that neither plaintiff nor defendants cited comparable verdicts until defendants submitted their reply brief. Finding a lack of authentication, the judge refused to consider defendants' "anecdotal information." The record on appeal does not disclose the authentication problem. We would note, however, that we are troubled by the use of reports of jury verdicts in the New Jersey Law Journal or other similar publications, or citations to our unpublished opinions, as evidence of comparable jury verdicts. The former are based on hearsay or multiple levels of hearsay. And, in many instances, reports contained in the New Jersey Law Journal's weekly "Verdict Search" section, are one-sided.  Seee.g., 218 N.J.L.J. 1099 (Dec. 22, 2014) (advising that the report of the verdict and the underlying circumstances was "based on information provided by plaintiff's counsel" and "[d]efense counsel declined to contribute"); 218 N.J.L.J. 31 (Oct. 6, 2014) (same); 216 N.J.L.J. 843 (June 23, 2014) (same); 216 N.J.L.J. 275 (Apr. 28, 2014) (same). The use of unpublished opinions, by Rule 1:36-3, are not precedential and "shall [not] be cited by any court"; we assume that the prohibition on citation also limits a court's use of unpublished opinions as a source of comparable verdicts. In any event, defendants have not argued in this appeal that the judge's refusal to consider whatever information was provided to him (this information is not in the record on appeal) was erroneous.
10 We cannot help but observe that the version of "the judicial conscience" applied by the first trial judge in He v. Millerwould undoubtedly have led to the issuance of a remittitur here, and the version applied by the trial judge here would undoubtedly have led to a rejection of a remittitur in He v. Miller. The one difference, however, is that we do not view the trial judge here as having allowed his prior experiences to dominate his view of this verdict as we believe occurred in He v. Miller. Instead, before even discussing his own past experiences and background, the judge described the injuries, the plaintiff's great jury appeal, and his own "feel of the case" as warranting a denial of defendants' post-verdict motion before providing his experiences as further support for his order. As we have said, those observations are sufficient, and they convincingly demonstrate the verdict should be upheld.

Tuesday, February 10, 2015


In Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67 (2012), the Supreme Court held that a plaintiff who unsuccessfully raised retaliation as a defense in an administrative disciplinary proceeding was barred by collateral estoppel from thereafter raising a retaliation claim under the Conscientious Employee Protection Act. We hold that Winters has pipeline retroactivity, and bars plaintiff's retaliation claim brought under N.J.S.A. 10:5-12(d) of the Law Against Discrimination. We rule that plaintiff raised the retaliation defense in his administrative disciplinary proceeding when he testified in response to neutral questions on cross-examination, and that the ALJ necessarily rejected that defense. 
Judge Sabatino has issued a concurring opinion, stating that an employee has no obligation to raise a defense of retaliation in the administrative disciplinary proceeding and that an employee's failure to raise the issue should not have res judicata (claim preclusion) effects. 

Joseph Vanderslice v. Harold Stewart

 Joseph Vanderslice v. Harold Stewart (A-58-13; 073362) 
Defendants’ demand was not filed out of time. Thus, the Appellate Division’s judgment is reversed and the jury’s verdict is reinstated. Because the Court finds 

that defendant’s notice was timely, it does not reach the issue of the standard for expanding the thirty-day time limit under Rule 4:21A-6(b)(1). 

Morristown Associates v. Grant Oil CompanyMorristown Associates v. Grant Oil Company

Morristown Associates v. Grant Oil CompanyMorristown Associates v. Grant Oil Company (A-38-13; 073248) 
The general six-year statute of limitations contained in N.J.S.A. 2A:14-1 does not apply to private claims for contribution made pursuant to the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11f(a)(2)(a).