To establish a cause of action for negligence, a plaintiff must prove the defendant owed a duty of care, the defendant breached that duty, and injury was proximately caused by the breach.
Slip and Fall
A plaintiff has a cause of action against a commercial property owner for injuries sustained on a deteriorated sidewalk abutting that commercial property when that owner negligently fails to maintain the sidewalk in reasonably good condition. For the protection of its patrons, every commercial establishment must maintain its premises, including means of ingress and egress, in reasonably safe condition. And, although the paved sidewalks fronting a commercial establishment are primarily for the use of the public generally, their condition is so beneficially related to the operation of the business that they have the unrestricted legal duty of maintaining them in good repair.
If the property is owned for investment or business purposes, the property is classified as commercial and public sidewalk liability applies. Such is the case where the property is a non-owner-occupied two-family house that was leased to separate tenants.
A property will not be considered commercial if it is predominantly owner-occupied. In balancing the relevant factors, the key issue in determining whether a property is commercial is its capacity to generate income.
When considering the rule governing non-profits, we looked at the use of the property.
A landowner who has no duty to clear a sidewalk of snow and ice but who voluntarily undertakes the task of doing so will be liable if through his negligence a new element of danger or hazard, other than one caused by natural forces, is added to the safe use of the sidewalk by a pedestrian; i.e., the property owner is only liable if, in clearing the sidewalk, he increases the natural hazard by introducing some new element of danger. Plaintiff has to make a showing that defendants introduced a new hazard or danger on the sidewalk in their snow removal activities.
Res Ipsa Loquitur
It is ordinarily a plaintiff’s burden to prove negligence, and negligence is never presumed. However, if the doctrine of res ipsa loquitur (translated from Latin as the maxim “the thing speaks for itself”) applies, the fact-finder is permitted to infer negligence in certain circumstances, effectively reducing the plaintiff’s burden of persuasion, but not shifting the burden of proof.
Once applicable, the doctrine of res ipsa loquitur creates an allowable inference of the defendant’s want of due care where
(a) the occurrence itself ordinarily bespeaks negligence;
(b) the instrumentality was within the defendant’s exclusive control; and
(c) there is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.
Cases involving common knowledge are those whose facts allow an ordinary juror, without any additional testimony on the subject, to recognize that an event does not usually happen except through negligence. Similar to res ipsa loquitur, matters asserting situations that fall within the common knowledge of jurors, are those where the very act bespeaks negligence. Common examples include a surgeon who leaves a sponge inside the patient or a dentist who pulls the wrong tooth. Anyone would easily recognize these acts as negligent conduct.
Although as a general rule of tort law, liability must be based on personal fault, the doctrine of respondeat superior recognizes a vicarious liability principle pursuant to which a master will be held liable in certain cases for the wrongful acts of his servants or employees.
Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment. To establish a master’s liability for the acts of his servant, a plaintiff must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment. The focus of whether a master-servant relationship exists, more recently referred to as the employer-employee relationship, turns on the nature of the relationship between both parties.
The relationship of master and servant is not capable of an exact definition and must be determined in the light of the totality of the facts surrounding the relationship. Ordinarily where a person engages a contractor, who conducts an independent business by means of his own employees he is not liable for the negligent acts of the contractor in the performance of the contract.
In determining whether agency exists, the standard is:
(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of facts, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
(3) Such other factors as may be reasonably considered in determining whether the entity for which the services are being performed controls, or has the right to control, the entity performing the services.
Although each factor should be considered based on the totality of the circumstances, the primary and oftentimes determinative factor considered by courts is whether the employer exercised control over the individual in question. Control is determined where the employer has the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done.
In New Jersey, control can be established where the employer has either “broad control” or “on-spot control.” “Broad control” exists where the employer has such a broad influence over the entire project that the court may infer the employer’s right to control the employee. Some factors to consider when determining “broad control” are the method of payment, which party furnishes equipment, and whether the employer has right of termination.
On the other hand, “on-spot control” refers to the employer’s actual control over the employee’s day to day work, such as directing the individual’s activities while working, providing a supervisory role or having responsibility for an employee’s safety.
Because this determination often involves the complex application of numerous factors, there is no consistent definition of what is meant by the notion of ‘control.’ As a result, circumstances will often arise where two employers could potentially be subject to vicarious liability, because both have exerted control over the employee. Therefore, the status of employer is not exclusive and where two employers exert some level of control over an employee, both would be subject to vicarious liability under the doctrine of respondeat superior.
Ordinarily, a principal is not liable for the negligent acts of its independent contractor. However, a principal may be liable for such acts if it:
1) retains control over the manner and means of the work to be performed;
2) hires an incompetent contractor; or
3) the work involved constitutes a nuisance per se.
To determine whether a principal is liable on this basis, the trier of fact must consider various factors, including the extent of control the principal may exercise over the details of the work; whether the contractor is engaged in a distinct occupation or business; the skill required in the particular occupation; and whether or not the work is a part of the principal’s regular business.
Affidavit Of Merit
The Affidavit of Merit Act (Act) requires a plaintiff suing a licensed professional for professional malpractice to submit an affidavit of merit, from a licensed professional in the same field, certifying that the defendant-professional deviated from the applicable standard of care. In any action for damages for personal injuries resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the work that is the subject of the complaint fell outside acceptable professional or occupational standards. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit, upon a finding of good cause.
If a plaintiff fails to file the affidavit of merit within 120 days, plaintiff’s complaint will be dismissed with prejudice unless extraordinary circumstances prevented a timely filing.
It is not the responsibility of a defendant to remind a plaintiff that an affidavit of merit is required. Instead, the responsibility for complying with the affidavit of merit statute lies squarely with a plaintiff.
Assignment of Claims
A tort claim cannot be assigned prior to judgment.
The decision whether to grant punitive damages is within the discretion of the fact finder. The Punitive Damages Act (PDA), provides, in relevant part:
a. Punitive damages may be awarded to the plaintiff only if the plaintiff proves, by clear and convincing evidence, that the harm suffered was the result of the defendant’s acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions. . . .
b. In determining whether punitive damages are to be awarded, the trier of fact shall consider all relevant evidence, including but not limited to, the following:
(1) The likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct;
(2) The defendant’s awareness of [sic] reckless disregard of the likelihood that the serious harm at issue would arise from the defendant’s conduct;
(3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and
(4) The duration of the conduct or any concealment of it by the defendant.
“Actual malice” has been defined as follows: There must be an intentional wrongdoing in the sense of an evil minded act or an act accompanied by a wanton and willful disregard of the rights of another. The key to the right to punitive damages is the wrongfulness of the intentional act. The requirement of willfulness or wantonness may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to the consequences.
The PDA requires the trier of fact to determine the quantum of the award based on a consideration of all relevant evidence, including:
(1) All relevant evidence relating to the factors [taken into consideration in determining whether to award punitive damages] . . . ;
(2) The profitability of the misconduct to the defendant;
(3) When the misconduct was terminated; and
(4) The financial condition of the defendant.
Additionally, judges are bound by the principle that punitive damages bear some reasonable relation to the injury inflicted and the cause of the injury. As a rule, a claim for punitive damages may lie only where there is a valid underlying cause of action. An award of punitive damages must be specific as to a defendant and mandates that each defendant is liable only for the amount of the award made against that defendant. The PDA limits punitive damages to five times the liability of that defendant for compensatory damages or $350,000, whichever is greater.
For the calculation of punitive damages, a defendant’s financial condition should be measured at the time of the wrongful conduct.
To discuss your specific situation, please call me, Paul G. Kostro, Esq., to schedule an appointment: 908-232-6500 or Paul@Kostro.com
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