$______ RECOVERY - PREMISES LIABILITY - FALL DOWN - PLAINTIFF SLIPS AND FALLS AT BAR - DOMINANT ELBOW FRACTURE - SURGERY - PLAINTIFF THEN DEVELOPS CELLULITIS - NO INCOME CLAIMS.

• Pages: 4-4

Attorney for plaintiff: Everett F. Simpson, Attorney at

Law in Audubon, NJ. Attorney for defendant driver:

Robert R. Nicodemo, III of Law Offices of Nicodemo

& Connell in Haddonfield, NJ. Attorney for defendant

State of New Jersey: Joseph Neal, Deputy Attorney

General of State of New Jersey in Trenton, NJ.

COMMENTARY

In the course of discovery in this case, the defendant driver filed a mo-

tion to bring in the plaintiff’s father as a third-party defendant, argu-

ing that he negligently failed to safely cross the road with the minor

plaintiffandcausedthesubjectaccidentbynotholdingtheboy’shand

and by allowing him to enter the roadway when it was not safe to

cross.

The plaintiff filed a motion for summary judgment to dismiss the fa-

ther from the case asserting that the plaintiff’s father was immune

from liability in this instance due to parental immunity based on case

law. The plaintiff cited Foldi v. Jeffries, 93 N.J. 533, 551 (1983) and

Buono v. Scalia, 179 N.J. 131, 145 (2004). The plaintiff also main-

tained that there was no evidence to pierce parental immunity that

the parent’s actions or omissions were willful, wanton and reckless.

The plaintiff pointed to evidence such as the police report, expert and

eyewitnesstestimonythattherewasnothing to suggest that the plain-

tiff’s father had an indifference to the consequences or intentionally

didordid not do anything that resulted in the minor plaintiff’s injury.

The expert’s report indicated that the pedestrian signal boxes were

not properly accessible to pedestrians and that the traffic lights only

provided a fraction of the time needed for any pedestrian to cross the

widespan. Nothing in the expert’s report suggested that the plaintiff’s

father did or did not do anything that led to his injury. Likewise, the

minor plaintiff’s testimony is that he and his father were in the cross-

walk and only began to cross when the light indicated it was safe to

cross but that the “walk” signal did not allow enough time to get

across and the plaintiff’s father attempted to stop traffic to make it

safe for the plaintiff to cross but the defendant driver passed the

stopped vehicle and struck the plaintiff. The plaintiff’s testimony pro-

vided no evidence of negligence by his father and, in fact, indicated

thathisfather attempted to mitigate the presenting danger by waving

his hands and trying to get vehicles to stop. No other eyewitness testi-

mony supported an argument that the plaintiff’s father had acted

without regard for the safety of his son.

The plaintiff requested that the father be dismissed from the case as a

defendant. The defendant driver filed a cross-motion for summary

judgment arguing that the act of a parent negligently walking a child

across a street was not protected by parental immunity. The defen-

dant cited Mancinelli v. Crosby, 247 N.J. Super. 456 (App. Div. 1991).

The defendant argued that the plaintiff’s father attempted to cross

Route 73 with his son against the traffic light. The defendant main-

tained that the plaintiff’s father allowed his son to attempt to enter

and cross the northbound lanes of the roadway when the light was al-

ready green for oncoming vehicles and, not only allowed this action,

but allowed the child to dart out into the roadway directly in front of

the defendant’s vehicle.

Further, the defendant pointed to witness testimony that the plain-

tiff’sfather was not holding the plaintiff’s hand and that neither party

was in the crosswalk. The defendant also noted numerous statements

by witnesses who described thinking the situation was extremely dan-

gerous, that the minor plaintiff was 8 to 10 feet away from his father,

and that they questioned why the father was allowing the plaintiff to

proceed ahead without him and against the traffic light.

The court granted the plaintiff’s motion as to parental immunity and

dismissedtheplaintiff’s father from the case. The case proceeded only

as to the defendant driver.

$525,000 RECOVERY – PREMISES LIABILITY – FALL DOWN – PLAINTIFF SLIPS AND

FALLS AT BAR – DOMINANT ELBOW FRACTURE – SURGERY – PLAINTIFF THEN

DEVELOPS CELLULITIS – NO INCOME CLAIMS.

Bergen County, NJ

In this action for premises liability, the plaintiff,

who was at the defendant bar for a celebration of

his 40th birthday, contended that he slipped and

fell on a wet floor near the bar sustaining serious

injury. There was no evidence that the plaintiff

was inebriated. The plaintiff brought the action

under a $1,000,000 general liability policy. The

defendant denied that it was negligent and

contended that the cause of the incident was the

failure of the plaintiff to be more careful.

The plaintiff asserted that the fall occurred in an area

where bartenders retrieved drinks from the bar and

that it was highly likely that an employee caused the

condition. The plaintiff asserted that he suffered a

fracture of the right, dominant elbow and required an

ORIF. The plaintiff maintained that cellulitis developed

after the surgery and that the plaintiff required anti in-

flammatory medication and antibiotics.

The plaintiff contended that he will permanently suffer

extensive pain and limitations. The defendant main-

tained that the plaintiff made a good recovery.

The plaintiff made no income claims.

The case settled prior to trial for $525,000.

REFERENCE

Strasser vs. Sea Shell Club Inc. Docket no. BER-L-2461-

18, 12-08-21.

Attorney for plaintiff: Michael J. Epstein of The

Epstein Law Firm, PA in Rochelle Park, NJ.

4FEATURED CASES

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