ARBUS, MAYBRUCH & GOODE, LLC VS. DANIEL COHEN, ET AL.

 In this appeal from summary judgment in a breach of contract action, defendants argue plaintiff law firm violated rules of professional conduct by failing to disclose in its retainer agreement the unit of incremental billing – one tenth of an hour – it would utilize during the course of representation.  Plaintiff and defendants entered two retainer agreements, both of which disclosed a required initial deposit, the hourly rates of each attorney at the firm, and which party was responsible for certain administrative costs. 

Plaintiff represented defendants for more than two years pursuant to the parties' retainer agreements, sending monthly and bimonthly invoices throughout the duration demonstrating work billed in increments of one-tenth of an hour.  When defendants refused to remain current with outstanding fees, plaintiff ceased representation and instituted the breach of contract action. The trial court granted summary judgment.  Defendants urged reversal on appeal.

The court affirmed summary judgment as properly granted, and held the retainer agreement was lawful and ethical where, among other things, it sufficiently apprised the clients of the express terms of the agreement in accordance with RPC 1.5(b), and the parties' course of conduct for two years demonstrated assent to those terms.

WILLIAM PACE, ET AL. VS. HAMILTON COVE, ET AL.

   Plaintiffs are tenants at a luxury apartment building complex.  They claim they were defrauded by defendant landlords' knowingly false promises in its advertisements, brochures, and oral statements to prospective tenants that the apartment complex would have "elevated, 24/7 security" and that security personnel would be stationed 24/7 at a podium near each building's entrance.  Plaintiffs allege they relied on these representations in deciding to lease the apartments at the rent level charged. 

          Upon moving into the apartments, plaintiffs learned that the apartment complex's security cameras did not function, and security personnel were only stationed at the front of the building from approximately 11:00 a.m. to 5:00 p.m. on weekdays, with shorter hours on weekends, as opposed to being present 24/7, and at times were present during those hours when performing other assigned tasks. 

          The lease contained a three-day attorney review clause and had several addendums, including a waiver of the right to file a class action against the landlord.  The lease did not contain an arbitration agreement. 

          Plaintiffs filed a class action complaint alleging common law fraud and violations of the New Jersey Consumer Fraud Act against their landlord.  Prior to discovery or class certification, defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, to strike plaintiffs' class action allegations.  Defendants argued the class action waiver in plaintiffs' lease agreements were clear and unambiguous and the lease was not a contract of adhesion.  Plaintiffs argued the lease was a contract of adhesion, the class waiver was unconscionable, and the caselaw upholding class action waivers were inapplicable because the contracts in those cases included an arbitration provision.  The trial court denied the motion in its entirety.  Defendants' motion for leave to appeal that interlocutory ruling was granted. 

          The court affirmed the denial of defendants' motion, holding that a waiver of the right to maintain a class action is unenforceable absent an arbitration agreement.  Noting that the class action waiver dismantled or disabled important procedures provided in our Part IV rules, and that the public policy of this state favors a class action where numerous claims involve a common nucleus of facts, the court adopts a bright-line rule that in the absence of an arbitration agreement, class action waivers are unenforceable as a matter of law and public policy. 

Pothole outside of cross walk could be tripping hazard here Little v. City of Atl. City

 Little v. City of Atl. City Pothole outside of cross walk could be tripping hazard here

      City filed an interlocutory appeal from order denying its motion for summary judgment in plaintiff's personal injury action. Plaintiff and cousin went to Atlantic City to celebrate a birthday, cousin parked car on street and plaintiff crossed street eight feet from crosswalk, stepped into a pothole, fell and hit her head and hit her head a second time as she struggled to get up. Nearby off-duty police officer stopped traffic and assisted plaintiff. Plaintiff's complaint asserted negligence for the creation, inspection, maintenance of a trip hazard. City argued plaintiff failed to provide sufficient proof of a dangerous condition under the Tort Claims Act. 

      Trial court noted the pothole was only seven or eight feet from the crosswalk, was of a significant size, was in a highly trafficked and commercial locale and found a reasonable jury could find plaintiff used due care and denied summary judgment. Defendant argued plaintiff presented no material facts to show she used due care. Court found the pothole was an undisputedly dangerous condition, plaintiff's use of the property was foreseeable and fact that plaintiff was outside the crosswalk did not preclude a finding that she used due care.

 source  https://www.law.com/njlawjournal/almID/1634758604NJA246620/

A-2466-20 

10-20-2021 

 

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PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. 

Submitted October 7, 2021 

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0723-18. 

Daniel J. Gallagher, attorney for appellant. 

Westmoreland Vesper & Quattrone, PA, attorneys for respondent (R.C. Westmoreland, on the brief). 

Before Judges Alvarez and Mitterhoff. 

PER CURIAM 

This case is before us on defendant City of Atlantic City's interlocutory appeal from a February 8, 2021 order denying its motion for summary judgment against plaintiff Michelle Little. Defendant argues that the motion judge erred in denying its motion for summary judgment and rejecting defendant's argument that plaintiff used city property without due care as a matter of law. We affirm, substantially for the reasons set forth in Judge James P. Savio's well-reasoned opinion. We add only the following brief remarks. 

We discern the following facts from the record. On the night of April 9, 2016, plaintiff and her cousin went to Atlantic City to celebrate her birthday. They arrived shortly before 11:30 p.m. and plaintiff's cousin parked their car along Pacific Avenue. The weather was clear, and it had not rained prior to their arrival. 

Plaintiff and her cousin walked along Pacific Avenue on their way to the Claridge Hotel. At the intersection of Pacific and Ohio Avenue, plaintiff crossed Pacific Avenue before her cousin. Plaintiff did not use the crosswalk at the intersection, instead crossing about seven to ten feet away from the crosswalk. Plaintiff saw that the crosswalk, was unobstructed at the time she crossed. As she crossed the street, she stepped into a pothole with her left foot and fell forward and hit her head on the curb. The pothole was approximately five inches  deep, four to six inches wide, about three or four feet long, and located along the edge of the concrete gutter between the cement gutter and the asphalt of Pacific Ave. She did not see the pothole prior to falling. Plaintiff tried to get up and "get loose" from the pothole, but fell and hit her head once more. Plaintiff struggled to free herself from the pothole. A nearby off-duty police officer got out of her marked police car and stopped oncoming traffic for plaintiff's safety. On her third attempt to free herself, plaintiff was able to "break loose and get on to the curb." 

Once on the curb, the police officer recommended plaintiff go to the hospital. Plaintiff went to the nearby AtlantiCare Regional Medical Center for evaluation and left the hospital around 1:00-1:30 a.m. The following day, plaintiff drove home to Maryland. She sought follow-up medical care at Fort Washington Hospital and was diagnosed with a fractured nose and a fractured left cheek bone. 

On April 5, 2018, plaintiff filed a complaint against defendant alleging: 1) negligence of defendant city; and 2) negligence of defendants-responsible party for creation, inspection, and maintenance of the "subject trip hazard hole[.]" Defendant filed an answer on May 31, 2018. 

On May 24, 2019, the court granted plaintiff's motion to extend discovery. On October 25, 2019, the court granted an order to include the Casino Redevelopment Agency and Pierson Construction, who performed road repairs several years earlier as defendants. 

On April 9, 2020, defendant filed for summary judgment, arguing plaintiff had not provided sufficient proof of a dangerous condition under the New Jersey Tort Claims Act (TCA). N.J.S.A. 59:4-1 to -10. The judge denied one motion on July 17, 2020, and provided a statement of reasons in a written opinion on July 22, 2020. 

On January 7, 2021, defendant filed a second motion for summary judgment. On February 8, 2021, the court denied the second motion in an oral opinion. 

Judge Savio considered several factors in analyzing the "dangerous condition" element of premises liability under N.J.S.A. 59:4-1(a). First, he noted the pothole was located only seven to eight feet away from the crosswalk, as opposed to being farther away towards the middle of the block. He further noted the pothole's were a significant size: 

[the pothole] looks to me to be about four to six inches wide and it's running along the concrete a distance of probably three or four feet. This is not a two inch declivity . . . on a side street or a little pothole on Pacific 

Avenue. To me, at least, looking at the photographs, this is a significant area of deformity. 

Second, Judge Savio emphasized the pothole's highly trafficked and commercial locale: 

[i]t's a commercial district. Whether the door to the casino parking lot is there, it's a commercial district. Bally is there, Claridge is there. The hospital is nearby. I think the library is a couple blocks away from there, but it's still in the general area. There are restaurants in that area. There are gold, silver shops in that area. This is not a . . . residential side street. This is a major street, and if we look at the streets that run north to south, Ohio Avenue is one of the major streets in Atlantic City, as well, that run north to south. 

Judge Savio ultimately concluded, "giving the plaintiff the benefit of all the facts and all of the inferences that flow from the facts," that a person crossing Pacific Avenue could foreseeably do so outside of the crosswalk; and that a reasonable jury could find plaintiff used the property with due care. As a result, the question of whether plaintiff used the property with due care should be left to a jury and he denied defendant's motion for summary judgment. 

On February 22, 2021, defendant unsuccessfully moved for reconsideration. Defendant filed a motion for leave to file an interlocutory appeal, which the Appellate Division granted on May 6, 2021. 

We review a motion judge's grant or denial of summary judgment de novo, applying the same standard as the motion judge. Conley v. Guerrero, 228 N.J. 339, 346 (2017). The court will accept the non-movant's version of the facts and draw all inferences in favor of plaintiff. See Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). 

Defendant argues plaintiff "has presented no substantial or material facts which could demonstrate she used the property with due care." The TCA provides that, for a public entity to incur liability from a condition of public property, a "dangerous condition" must be present "that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." SeeN.J.S.A. 59:4-1(a); see also Garrison v. Twp. of Middletown, 154 N.J. 282, 286-87 (1998); Polzo v. Cnty. of Essex, 209 N.J. 51, 72 (2012). The question is generally reserved for the fact finder. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001).  However, the court must first assess whether a reasonable jury could conclude the property was in a dangerous condition based on plaintiff's evidence. Id. at 124. Potholes have qualified as a dangerous condition under the TCA. See, e.g., Whaley v. Cnty. of Hudson, 146 N.J.Super. 76 (Law Div. 1976). 

Once a defect in the property has been identified, courts must determine whether an objectively reasonable person would face a substantial risk of injury when using the property with due care. Garrison, 154 N.J. at 292. In Vincitore, the New Jersey Supreme Court interpreted Garrison as prescribing a three-part analysis: 

The first consideration is whether the property poses a danger to the general public when used in the normal, foreseeable manner. The second is whether the nature of the plaintiff's activity is "so objectively unreasonable" that the condition of the property cannot reasonably be said to have caused the injury. The answers to those two questions determine whether a plaintiff's claim satisfies the Act's "due care" requirement. The third involves review of the manner in which the specific plaintiff engaged in the specific activity. That conduct is only relevant to proximate causation . . . and comparative fault. 

[Vincitore, 169 N.J. at 126 (quoting, Garrison, 154 N.J. at 292).] 

Here, the pothole is undisputedly a dangerous condition. The question is whether plaintiff's use of the property was foreseeable. 

The motion judge noted the size of the pothole and the seven to ten feet distance from the pothole to the crosswalk. The judge further noted that plaintiff's fall occurred in a busy commercial area surrounded by casinos, hotels, and restaurants. He explained that a jury could consider the fact that plaintiff was walking outside of the crosswalk, but that in "giving the plaintiff the benefit of all of the facts and all the inferences that flow from the facts" it is foreseeable that a person crossing Pacific Avenue would walk outside of the crosswalk. We agree with the motion judge's analysis and therefore discern no error. 

Defendant also argues plaintiff did not use the property with due care as a matter of law. Specifically, defendant relies heavily on the fact that plaintiff crossed Pacific Avenue outside of the crosswalk, violating N.J.S.A. 39:4-33.

N.J.S.A. 39:4-33 provides: "[a]t intersections where traffic is directed by a police officer or traffic signal, no pedestrian shall enter upon or cross the highway at a point other than a crosswalk. Pedestrians shall move, whenever practicable, upon the right half of crosswalks."

A plaintiff uses property with due care when: 1) the condition of the property poses a danger to the general public when used in a reasonable and foreseeable manner; and 2) when the plaintiff's conduct is not "so unreasonable" that the property cannot reasonably be said to have caused the injury. Vincitore,  169 N.J. at 126. The parties rely primarily on the New Jersey Supreme Court's ruling in Garrison.

The parties also cite to an unreported case of this court and an unreported case from the District of New Jersey. Rule 1:36-3 prohibits citation to "appellate opinions not approved for publication."

In Garrison, the New Jersey Supreme Court determined that a plaintiff who injured himself on a known declivity in a poorly lit and uneven railroad station parking lot while playing touch football acted without due care as a matter of law. Garrison, 154 N.J. at 293. The court emphasized that the TCA requires that a dangerous condition can only be found when a public entity's property is used with due care. Id. at 287. The court explained that "[t]he purpose of the evaluation is to ascertain whether the plaintiff had engaged in an activity that is so objectively unreasonable that liability for resulting injuries may not be attributed to the condition of the property." Id. at 292. 

Here, plaintiff crossed Pacific Avenue outside of the crosswalk in a commercial district in Atlantic City. The fact that she was outside of the crosswalk does not preclude a finding of due care. A plaintiff was unaware of the existence of the defect, unlike the plaintiff in Garrison. The most important inquiry, however, is whether plaintiff's actions were reasonable from a  community perspective. See id at 291 ("A use that is not objectively reasonable from the community perspective is not one 'with due care.'"). 

Anyone who spends time in urban centers in the United States will observe individuals crossing the street outside of the designated crosswalk. Plaintiff did not cross in the middle of the block, but was instead seven to ten feet away from the crosswalk in a commercial district. Even though plaintiff was not supposed to cross in this manner, it is entirely possible that this practice is common enough to be reasonable from a community perspective. A jury should make that call. 

Affirmed. 

A-1067-20 ACCOUNTEKS.NET, INC., ETC. VS. CKR LAW, LLP, ET AL

 Plaintiff information technology firm brought multiple claims against defendants, its former employee and the law firm that hired him as its in-house technology specialist.  Among other claims, plaintiff alleged the former employee breached his non-compete agreement with plaintiff by taking the job with the law firm, a long-term client of plaintiff.  Plaintiff also alleged the law firm tortiously interfered with the non-compete agreement between plaintiff and its former employee.  After a trial, the Chancery Division enforced the non-compete agreement and found the law firm had tortiously interfered with the agreement between plaintiff and its former employee.

The Chancery Division entered judgment against defendants for damages, including awarding of attorney's fees against the law firm as damages for its tortious interference.  Defendants appealed.

On appeal, the court held the Chancery Division properly awarded attorney's fees as damages for the law firm's tortious interference with contractual relations as an exception to the American Rule, pursuant to DiMisa v. Acquaviva, 198 N.J. 547 (2009).

A-1879-21/A-1882-21 MERCK & CO., INC., ET AL. VS. ACE AMERICAN INSURANCE COMPANY, ET AL.

     In 2017, a malware/cyberattack infected Merck's computer and network systems.  Prior to that date, someone had gained access to the computer systems of a Ukrainian company that had developed an accounting software called M.E. Doc used by Merck and other companies in Ukraine.  The malware was delivered into the accounting software.  Ultimately, over 40,000 machines in Merck's network were infected, resulting in "massive disruptions" to Merck's global operations.  The malware spread to at least sixty-four different countries, including Russia.  
     Merck sought coverage for its losses under defendants' "all risks" property insurance policies.  Defendants denied coverage under the "Hostile/Warlike Action" exclusion included in all their policies.  Although defendants conceded the word "warlike" might not be applicable, they asserted the word "hostile" should be read in the broadest possible sense, as meaning "adverse," "showing ill will or a desire to harm," "antagonistic," or "unfriendly."  Defendants contend that any action that "reflects ill will or a desire to harm by the actor" falls within the hostile/warlike action exclusion, as long as the actor was a government or sovereign power.
     The court found the plain language of the exclusion does not support defendants' interpretation.  The exclusion of damages caused by hostile or warlike action by a government or sovereign power in times of war or peace requires the involvement of military action.  The exclusion does not state the policy precluded coverage for damages arising out of a government action motivated by ill will. 
     The court also considered the history of the war exclusion, which has been included in policies for more than a century.  The few applicable cases reaffirm that similar exclusions have never been applied outside the context of a clear war or concerted military action.
     The court concludes the exclusion did not include a cyberattack on a non-military company that provided accounting software for commercial purposes to non-military consumers, regardless of whether the attack was instigated by a private actor or a "government or sovereign power."  Defendants could not assert the exclusion to bar coverage for Merck's losses.