HKMP E-Letter

March 2021
NO-CAUSE JURY VERDICT FOR HKMP CLIENT AFFIRMED ON APPEAL
The New Jersey Appellate Division recently affirmed a no-cause jury verdict obtained by HKMP partner Janet L. Poletto and associate Robert E. Blanton, Jr. Plaintiff sustained injuries when she allegedly tripped and fell over a wire near a desk at HKMP’s client facility. Five months later, she was involved in a motor vehicle accident while being transported from medical treatment for injuries allegedly sustained during the fall. HKMP obtained a no-cause jury verdict. Plaintiffs appealed arguing the voir dire process had not strictly complied with Administrative Directive #4-07 in the number of open-ended questions that were asked and by refusing to ask follow-up questions.

The Appellate Division issued a per curiam opinion affirming the verdict for HKMP’s client. Plaintiffs never objected at trial to the voir dire process either contemporaneously or after the verdict. The jurors were asked the two open-ended questions requested in plaintiffs’ pretrial exchange and seven special voir dire questions tailored to the case rendering plaintiffs “somewhat complicit” in the procedure employed by the trial court. Further, the trial judge had in fact conducted follow-up questioning allowing counsel to make informed decisions whether to exercise preemptory challenges, heard counsel at side-bar, and plaintiffs failed to make a record during the jury selection process of any objections or denial of challenges for cause to be cognizable on appeal. The Appellate Division noted that a trial judge is vested with a residual amount of discretion in implementing the jury selection process under the Directives; which discretion was appropriately exercised. The court applied a plain error standard of review and, in doing so, determined that the jury selection process conducted by the trial judge was sufficiently comprehensive so as to insure that the jury empaneled was neither unfair or biased.  
COURT FINDS NO DUTY OF BAILEE TO SECURE VEHICLE POST-ACCIDENT
In a set of facts worthy of a law school exam, N.J. Superior Court Judge Mary Costello, J.S.C., granted summary judgment in favor of an HKMP client, finding that a permissive user of a vehicle was not responsible for a fire that occurred after a motor vehicle accident. 

Plaintiff was a real estate flipper remodeling a house. He called his unemployed brother-in-law, HKMP's client, to ask him to make a lunch run. The brother-in-law indicated that he did not have a car. Plaintiff offered his van for the trip. HKMP's client, who lived two blocks away walked over with his son, took the keys and left for a nearby restaurant. 

While driving, the brother-in-law lost control of the van and collided with a parked car. Both he and the son were injured and taken to a local hospital by ambulance. Hearing the commotion, plaintiff walked down and saw his brother-in-law and nephew being loaded in the ambulance. Plaintiff approached the police and identified himself as the owner of the vehicle. After the police and fire department released the scene and vehicle, plaintiff had a tow truck take the vehicle back to his rental property. No sooner did the tow truck unhook the van than it burst into flames. The fire spread to the adjacent house and caused significant damage. 

Plaintiff sued his brother-in-law alleging that the automobile accident was the proximate cause of the house fire. In moving for summary judgment, HKMP partner Paul Daly acknowledged that defendant was at fault for the automobile accident. However, Daly argued that defendant's duty of care for the vehicle ended when the vehicle was released back to plaintiff's custody. As defendant was in an ambulance, on his way to a hospital, when plaintiff determined where to store the vehicle, fundamental notions of fairness would prevent defendant from being responsible for an incident that occurred after the vehicle was removed from the scene of the accident. 

Judge Costello accepted the defense argument and dismissed the claim on a motion for summary judgment.  
HKMP OBTAINS EARLY SUMMARY JUDGMENT
IN NY PREMISES LIABILITY & NEGLIGENT SUPERVISION CASE
HKMP attorney Eric J. Koplowitz obtained summary judgment on behalf of one of the firm’s clients, a not-for-profit company which provides services to underprivileged youths. The plaintiff was a student who was injured when he slipped and fell in a bathroom while attending an afterschool program. HKMP moved for summary judgment early in the case, before any depositions were held. HKMP established its client did not operate the afterschool program at the school where the accident occurred and had no other relationship to the accident location. Despite arguments that the motion should be denied because it was premature due to the lack of discovery completed, the court granted the motion. HKMP’s aggressive plan to move for summary judgment early saved its client considerable defense costs.
HKMP OBTAINS SUMMARY JUDGMENT IN PREMISES LIABILITY CASE AT MEDICAL FACILITY
HKMP attorneys, Janet L. Poletto, Robert E. Blanton, Jr., and Mallory S. Kuschan obtained summary judgment on behalf of one of the firm’s clients, a rehabilitation hospital. Plaintiff was a visitor who fell in the hallway of the facility after visiting her mother. After the fall, she identified a few drops of liquid in a portion of the hallway. HKMP elicited deposition testimony that her clothes and footwear were not wet after the fall and that she did not believe she had walked through the liquid. A security guard was present in the area and testified plaintiff did not walk through the liquid. Thus, HKMP moved for summary arguing plaintiff could not establish the liquid caused her fall. Plaintiff opposed summary judgment arguing that a jury could still infer that the liquid caused her fall. N.J. Superior Court Judge Walter F. Skrod, J.S.C. accepted the defense argument and granted summary judgment.

Plaintiff moved for reconsideration and submitted a certification that she believed the liquid caused her fall and that while she did not walk through the liquid, she “may” had stepped on a drop of it. Judge Skrod considered the additional certification but refused to vacate summary judgment for HKMP’s client as plaintiff’s additional certification was merely speculative.
As always, if you have any questions regarding any of the cases in this E-Letter, or if HKMP can be of service to you, then please contact us at info@hkmpp.com or 973-912-5222.
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