Morley v. Dir., Div. of Taxation

Morley v. Dir., Div. of Taxation

       The parties cross-moved for summary judgment in the action filed by plaintiff to challenge the imposition of estate tax on the award obtained in a survival action brought by plaintiff on behalf of decedent's estate. Decedent died in an explosion caused when utility workers performing maintenance on underground electrical lines in front of decedent's home accidentally struck as gas line. 

         Specifically, plaintiff sought to challenge the division's valuation of the award to be included in the estate for taxation purposes.

         Under the estate tax statute, the amount taxable to the estate was equivalent to the value of the asset as of the date of the decedent's death. Plaintiff argued that the amount of the survival claim should be equal to the value of the claim on the day of decedent's passing. Plaintiff presented an expert valuation report that opined that the value of the survival claim on the date of decedent's death was $2,690,600.

         However, the division argued that the amount includable for estate tax purposes was the total net proceeds recovered by the estate. Plaintiff had settled decedent's survival claim for a net recovery of over $6.7 million. In support of its argument, the division cited inheritance tax regulations, which required any sums recovered under the New Jersey Death Act to be included in the value of a decedent's estate.

         The court agreed with the division's arguments and granted summary judgment in its favor. The court ruled that both the estate tax statute and the transfer inheritance tax statute should be read in pari materia because both statutes concerned the same subject matter -- namely, the taxable value of a decedent's estate. The court agreed with the division that the transfer inheritance tax statute defined the date of death value of a survival claim as the amount recovered by the estate in the survival claim. 

         The court therefore ruled that the net proceeds recovered by plaintiff in settlement of decedent's survival claim should be included in the value of decedent's estate for estate tax purposes.

Source NJJL June 21, 2021 at 12:00 AM

 

NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS 

________________________________________ MICHAEL J. MORLEY , III, : EXECUTOR OF ESTATE OF : LINDA A. CERRITELLI, : 

Plaintiff, : 

v. : DIRECTOR, DIVISION OF TAXATION, :

Defendant. : _______________________________________ : 

Decided: June 7, 2021 

TAX COURT OF NEW JERSEY DOCKET NO. 007443-2020 

Francis P. Maneri argued the cause for plaintiff
(Francis P. Maneri, Kristen L. Behrens, and Sarah Gremminger, on the brief; Dilworth Paxson, LLP, attorney). 

Heather Lynn Anderson for defendant
(Gurbir S. Grewal, Attorney General of New Jersey, attorney). 

SUNDAR, P.J.T.C.
This opinion decides the parties’ respective summary judgment motions as to the amount 

includible in the above captioned estate for purposes of the New Jersey Estate Tax laws regarding plaintiff’s survival claim action litigation. Under New Jersey law, a decedent’s wrongful death provides two separate causes of action: one on behalf of the beneficiaries (a wrongful death claim action) under N.J.S.A. 2A:31-1 to -6, and one on behalf of the estate (a survival claim action) under N.J.S.A. 2A:15-3. The parties agree that the wrongful death claim action is not includible in the decedent’s gross estate, whereas the survival claim action is an asset of the decedent and includible in the estate. Therefore, the former is not subject to the New Jersey estate tax, but the latter is so subject. 

* 

Approved for Publication In the New Jersey Tax Court Reports 

New Jersey’s precedent has consistently held that under the New Jersey Estate Tax statute, N.J.S.A. 54:38-1 to -16, the amount includible in, and taxed to, a decedent’s estate is the “value” of an asset as of the decedent’s date of death. This standard is the same under the New Jersey Transfer Inheritance Tax statute, N.J.S.A. 54:34-1 to 37-8 which unlike the estate tax, imposes the tax on the beneficiaries. Per plaintiff, therefore, the amount includible for estate tax purposes is the date of death value of the decedent’s interest in her survival claim action, which, as opined by a third-party appraiser, is $2,690,600. Per defendant, the amount includible is $6,709,231.08, the net proceeds received by the decedent’s estate from settlement of the survival claim action, because the plain language of N.J.A.C. 18:26-5.3(a), a Transfer Inheritance Tax regulation, requires that “any sum recovered under the New Jersey Death Act representing damages sustained by a decedent between the date of injury and date of decedent’s death” must be “included in the decedent’s estate.” 

The court finds that the Estate Tax and Transfer Inheritance Tax statutes can and should be read in pari materia because both laws address the same subject: the corpus or the taxable estate of a decedent, and because assets includible in the estate for estate tax purposes are those which are transferred to a beneficiary for inheritance tax purposes. The Legislature has, under the Transfer Inheritance Tax statute, determined that the taxable date-of-death value of a survival claim action is the amount actually recovered for such claim. Consequently, the amounts includible in the decedent’s gross estate is the amount recovered by the estate (here, through settlement) for the survival claim action pursuant to N.J.A.C. 18:26-5.3. Therefore, the court grants defendant’s cross-motion for summary judgment and denies plaintiff’s motion for summary judgment. 

2 

FACTS AND PROCEDURAL HISTORY 

Decedent, a New Jersey resident, died testate on March 4, 2014 from a natural gas explosion which occurred when a utility company struck a gas line while performing underground electrical work in front of her home. 

Sometime in 2015, plaintiff filed a wrongful death claim action and a survival claim action lawsuit in the New Jersey Superior Court, as executor of decedent’s estate. See N.J.S.A. 2A:31- 4; 2A:15-3. These are two separate causes of action arising from the same triggering event, the death of the decedent, however the beneficiaries of the wrongful death claim action are the decedent’s survivors whereas the beneficiaries of the survival claim action are the estate and creditors of the decedent. See Soden v. Trenton & Mercer County Traction Corp., 101 N.J.L. 393, 398 (E & A 1925) (in a wrongful death action, the “recovery goes, not to the estate of the deceased person, but to certain designated persons or next of kin” and the recovery amount “is not liable to the debts of the deceased, nor is it subject to disposition by will”); Alfone v. Sarno, 87 N.J. 99, 107-08 (1981) (“[u]nlike an action for wrongful death, the survival action inheres in the estate and is therefore subject to devise and the claims of creditors”); Smith v. Whitaker, 160 N.J. 221, 231 (1999).1 

1 In 1848, our Legislature enacted “the Wrongful Death Act, now codified as N.J.S.A. 2A:31-1 to -6” and in 1855 enacted “the Survivor’s Act, now codified as N.J.S.A. 2A:15-3.” Smith, 160 N.J. at 231 (citations omitted). While “both types of actions arise from” the death of the plaintiff “they serve different purposes and are designed to provide a remedy to different parties.” Ibid. The Wrongful Death Act is to “compensate survivors for the pecuniary losses they suffer” due to another’s “tortious conduct.” Ibid. The Survivor’s Act permits “a decedent’s representatives the right to bring an action for trespass to person or property in the same manner as if the decedent had been living.” Id. at 233 (citations omitted). See also Alfone, 89 N.J. at 108, n.4 (“The survival action . . . seeks to compensate the estate for the pain and suffering of the deceased and the loss of earnings by him prior to his death” and permits claim “for “funeral and burial expenses,” while “[h]ospital, medical and funeral expenses may alternatively be sought in a death action” under N.J.S.A. 2A:31-5). 

The lawsuit eventually settled on November 30, 2017 for $20,000,000. The Superior Court entered an Order Directing Disbursement of Funds whereby the settlement proceeds be first offset by counsel fees and expenses, and the balance $13,418,462.15 be distributed 50% towards the wrongful death claim action ($6,709,231.08 payable to Michael Morley) and 50% towards the survival claim action ($6,709,231.08 payable 50% to Michael Morley and 25% each to his two sons in a settlement trust, but after deduction for all estate taxes and expenses). The estate received $6,709,231.08 on December 5, 2017. 

In August 2015, the estate filed a New Jersey estate tax return which did not reference the value of the survival claim action.2 After the settlement proceeds were received, plaintiff filed an amended estate tax return on January 25, 2018 to include receipt of the survival claim action proceeds in the decedent’s gross estate. Plaintiff also paid the consequent estate tax of $720,933. 

On August 7, 2019, plaintiff filed a second amended estate tax return to change the includible amount of the survival claim action to $2,690,600 as being its “value” as of the decedent’s date of death. The valuation was based on the conclusion of a third-party appraiser, Management Planning, Inc., which produced a report in this regard. The report outlined the methodology, assumptions, and data used to support the appraiser’s value conclusion. Based on this valuation, plaintiff requested an estate tax refund of $484,504. 

By letter of September 6, 2019, defendant (Taxation) denied the refund claim. It rejected the proffered valuation report because it determined that “tax is on the sum actually received.” The valuation report “reflect[ed] a potential reward” which, per Taxation, “does not apply.” 

Plaintiff timely protested this denial to Taxation’s Conference and Appeals branch contending that under N.J.A.C. 18:26-8.8 (titled “Valuation”), “the operative valuation date” for 

2 Counsel for plaintiff in this matter was not involved in the preparation and filing of this return. 4 

New Jersey’s estate tax was the decedent’s date of death, therefore, valuation of any estate asset must only be as of this date. This was, plaintiff contended, in conformance with the federal estate tax law (citing Treas. Reg. §20.2031-1(b) which provides that the value of property includible in the estate is its fair market value at the time of decedent’s death). 

By final determination letter dated February 28, 2020, Taxation upheld its refund denial relying upon N.J.A.C. 18:26-5.3(a). It noted that “a survival action claim is includible but, any sum recovered under the New Jersey Death Act as compensation for wrongful death of a decedent is not includible in the decedent’s estate.” Such inclusion, it further noted, is in conformance with the federal estate tax law that “wrongful death proceeds are not includible in the decedent’s gross estate . . . because the wrongful death action cannot exist until the decedent has died,” however, “to the extent that any recoverable damages are for the pain and suffering of the decedent, the value thereof is includible in the gross estate.” (citing Rev. Rul. 75-127, 1975-1 C.B. 297). Taxation concluded “to the extent that any recoverable damages are for the pain and suffering of the decedent, the value thereof is includible in the gross estate.”
ANALYSIS
(1) Appropriateness of Summary Judgment 

Summary judgment will 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.” R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Here, the parties agree that the survival claim action is an asset of the estate and must be included in the gross estate for New Jersey’s estate tax purposes. The sole issue is the amount 

to be included, the resolution of which entails pure statutory interpretation. Therefore, summary judgment is an appropriate method to dispose the matter.
(2) Assets Includible in Gross Estate for New Jersey Estate Tax Purposes 

In Rev. Rul. 75-127, 1975-1 C.B. 297, the Internal Revenue Service (IRS) explained whether and what is includible in an estate vis-à-vis a wrongful death action as follows: 

At common law, no recovery was available for damages resulting from a wrongful act after the death of the injured party. Any cause of action for personal injury abated at the death of the injured party. To abrogate this rule, the various states have enacted what are commonly called “wrongful death acts.” Generally, these acts take one of two forms: “death acts” or “survival acts.” “Death acts” include the type discussed in Rev. Rul. 54-19, 1954-1 C.B. 179, (involving New Jersey law) where the statute creates a new cause of action, after the death of the injured party, for the benefit of certain beneficiaries. Under a “survival act,” the cause of action for personal injury resulting in death survives the victim’s death and passes to his personal representative to be pursued as an asset of the probate estate. 

The IRS concluded that it 

will no longer take the position under . . . the law of any State having a wrongful death statute . . . that the value of wrongful death proceeds is includible in the decedent’s gross estate. However, where it can be established that such proceeds represent damages to which the decedent had become entitled during his lifetime (such as for pain and suffering and medical expenses) rather than damages for his premature death, the value of these amounts will be includible in the decedent’s gross estate. 

[Ibid.]
The cross-referenced revenue ruling addressing New Jersey law stated that the “[a]mounts 

receivable in settlement of claims under the New Jersey ‘Death by Wrongful Act’ statute . . . are not includible in the decedent’s gross estate for Federal estate tax purposes” because the statute created the cause of action and determined “distribution of the proceeds of the recovery.” Rev. Rul. 54-19, 1954-1 C.B. 179 (emphasis added). This means that “the decedent had no right of 

action or interest in the proceeds at the time of his death,” therefore, “nothing ‘passed’ from the decedent to the beneficiaries.” Ibid. Cf. Alfone, 87 N.J. at 108 (“The survival action merely perpetuat[es] the right of action which the deceased himself would have had, to redress his own injuries, but for his death.”) (citation and internal quotation marks omitted). 

Here, the parties agree that the wrongful death claim action is not includible in the decedent’s gross estate. They also agree that the survival claim action is an asset of the estate and is includible in the decedent’ gross estate for New Jersey estate tax purposes.
(3) Amounts Includible for New Jersey Estate Tax Purposes 

The Estate Tax statute, N.J.S.A. 54:38-1 to 38-16, imposes an “estate or transfer tax” upon the “transfer of” the estate of any New Jersey resident which would have been subject to the federal estate tax in effect on December 31, 2001. N.J.S.A. 54:38-1(a)(2)(i). This means that if the estate was subject to federal estate tax as of December 31, 2001, then it would be taxed by New Jersey also. The tax is imposed upon and paid by the estate of the decedent. See N.J.S.A. 54:38-11 (estate tax “shall be paid out of the same funds as those from which federal estate taxes are payable”). The tax is “due at the date of death of the decedent.” N.J.S.A. 54:38-5.3 

There are no specific provisions in the estate tax statute explicating the computation or methodology as to the amount of the assets includible in an estate. Nor is there any specific statutory provision addressing a survival claim action. Plaintiff is correct that precedent requires inclusion of an asset’s fair market value as of the date of death in a decedent’s gross estate. See Estate of Warshaw v. Dir., Div. of Taxation, 27 N.J. Tax 287, 292 (App. Div. 2013) (value of gross estate is the value of “all property in the estate at the time of death,” and such value is determined under a willing buyer-willing seller test) (citing Internal Revenue Code (I.R.C.) §2036; Treas. Reg. 

3 There is no New Jersey estate tax for estates of decedents dying on or after January 1, 2018. 7

§20.2031-1(b)4). In Estate of Warshaw, the court agreed with Taxation that the reported value of the asset (an Individual Retirement Account or IRA) at the time of the decedent’s death cannot be changed even if it was later found to be worthless being part of Madoff’s Ponzi scheme because “events subsequent to death are not considered in fixing fair market value of a decedent’s gross estate.” 27 N.J. Tax at 292 (citation omitted). Rather, “[b]ecause property is valued as of the date of death, the only relevant facts are those that this hypothetical buyer and seller could reasonably have been expected to know at that time.” Ibid. (citation omitted). 

In contrast, the State’s Transfer Inheritance Tax statutes, N.J.S.A. 54:34-1 to 37-8, address these issues. See N.J.S.A. 54:34-1(a) (tax is imposed upon the “transfer of property, real or personal, of the value of $500.00 or over, or of any interest therein or income therefrom, in trust or otherwise, to or for the use of any transferee, distributee or beneficiary”); N.J.S.A. 54:34-5 (transfer inheritance tax “shall be computed upon the clear market value of the property transferred”). This tax is in addition to the estate tax but is imposed upon certain classes of beneficiaries or transferees of the decedent. See N.J.S.A. 54:38-1(a); N.J.A.C. 18:26-3.1(a).5 

As to damages received from wrongful death actions, the Transfer Inheritance Tax statute provides that the tax is normally “due and payable at the death” of the decedent, “but with respect to any sum recovered as compensation for death of a person caused by a wrongful act, neglect or 

4 I.R.C. §2031(a) provides that “[t]he value of the gross estate of the decedent shall be determined by including. . . the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated.” Treas. Reg. §20.2031-1(b) provides that “every item of property includible in a decedent’s gross estate” is valued at “its fair market value at the time of the decedent’s death” unless the estate selects an alternate valuation. The fair market value is “the price at which 

5 Thus, the same event (death) can trigger two separate taxes: an estate tax imposed on the estate and a transfer inheritance tax imposed upon the transferees or beneficiaries (with a credit for inheritance tax paid, see N.J.S.A. 54:38-1(c)). 

the property would change hands between a willing buyer and a willing seller, 

neither being under any compulsion to buy or to sell and both having reasonable knowledge of 

relevant facts.” Ibid. 

8 

default, whether by award of damages or settlement of compromise, taxes thereon shall be due and payable on the date of said award or settlement.” See N.J.S.A. 54:35-1 (titled “Date when tax due”). This exception was included by L. 1978, c. 172, which was titled as an Act “providing for the date on which certain property is includible in the estate of a decedent for transfer inheritance tax purposes, and amending sections 54:35-1, 54:35-3 and 54:35-4 of the Revised Statutes.”6 The Sponsor’s Statement to Senate No. 348 notes that “[t]his bill redefines the date on which certain property is includible as a decedents estate for transfer inheritance tax purposes.” See also Sen. Rev., Fin. and Approp. Comm. Statement to Senate, No. 348 (Jan 26, 1978) (law amended “with respect to sums recovered under the Death By Wrongful Act Statute” so that “taxes shall become due and payable on the date of the award of damages or settlement of compromise, rather than the date of death of the decedent”). 

This same law also enacted N.J.S.A. 54:35-4.1, which provides that as to “any sum recovered as compensation for death of a person caused by a wrongful act, neglect or default, interest shall accrue at the rates and in the manner provided . . . if the [transfer inheritance] tax is not paid within 30 days of the receipt of an award or settlement therefor.” The law was to “remove an inequity” which was that “persons entitled to the amount recovered under the” wrongful death statute had “not only to pay inheritance tax but also pay interest on the tax on a decedent’s estate when that estate was settled after the” time to file an inheritance tax return post-death had expired. Sen. Rev., Fin. and Approp. Comm. Statement to Senate, No. 348. 

Taxation promulgated an inheritance tax regulation on inclusion in the decedent’s estate, sums “recovered under the New Jersey Death Act” as follows: 

6 The enacted law deleted the proposed law’s reference to “N.J.S.A. 2A:31-1 et seq.” and the phrase “wrongful death of a decedent.” See Senate No. 348 (Second Official Reprint). 

 

(a) Moneys recovered under New Jersey Death Act (N.J.S.A. 2A:31-1 et seq.). Any sum recovered under the New Jersey Death Act representing damages sustained by a decedent between the date of injury and date of decedent’s death (such as the expenses of care, nursing, medical attendance, hospital, and other charges incident to the injury), including loss of earnings and pain and suffering are to be included in the decedent’s estate. 

1. Where an action is instituted under the New Jersey Death Act and terminates through settlement by a compromise payment without designating the amount to be paid under each count, the amount so recovered is first applied toward the payment of funeral expenses, the expenses of care, nursing, medical attendance, hospital, and other proper charges incident to the injury and is fully includible in the estate of the decedent. 

[N.J.A.C. 18:26-5.3(a).] 7
Taxation also provided that other than the above, no other amounts recovered are taxable. See 

N.J.A.C. 18:26-6.6 (“[a]ny sum recovered under sections 1, 2, 3, and 4 of the New Jersey Death Act (N.J.S.A. 2A:31-1 et seq.) as compensation for the wrongful death of a decedent is not subject to” inheritance tax “except as provided in N.J.A.C. 18:26-5.3(a)”). 

Plaintiff contends that the law is “well settled” that an estate is to be valued at the death of the decedent, see Estate of Warshaw, therefore, it is the “value” of the survival claim action as of decedent’s death that is includible in the estate, which here is $2,690,600, as per the third-party appraiser’s opinion. Plaintiff maintains that Taxation’s resort to N.J.A.C. 18:26-5.3(a) to tax the actual amount of the net damages received is arbitrary and capricious since it is contrary to estate tax law, and that the regulation is inapplicable since it pertains to the transfer inheritance tax. 

7 The authority for this regulation is stated to be N.J.S.A. 54:34-1a, the inheritance tax statute. See Supplement to Title 18 (March 31, 1972). In the 1972 version of the regulation, subsection (a) simply introduced the asset and thus read: “(a) Moneys recovered under New Jersey Death Act (N.J.S.A. 2A:31-1 et seq.).” Subparagraph 1 was what is now contained in subsection (a) except for the word “decedent’s” and without the ellipses. Paragraph 2 was what is now contained in paragraph 1. 

10 

Taxation agrees that under the estate tax law, what is includible in an estate, and thus subject to estate tax, is the value of an asset as of the date of the decedent’s death. However, it claims, Estate of Warshaw is inapplicable because in a survival claim action the decedent has no interest as of the date of death, whereas in the cited case, the decedent had such interest in the IRA. Taxation also argues that the precedent on including an asset’s date-of-death value does not apply here since the survival claim action is a “different” type of an asset. This “different” asset is addressed in N.J.A.C. 18:26-5.3(a) which plainly states that the “sum recovered” is includible in the estate, which Taxation contends can only mean that amounts actually received are included and taxed regardless of when received. 

The court initially dismisses as illogical Taxation’s argument that Estate of Warshaw is inapplicable. In its final determination, Taxation stated that “a survival act claim is includible” in the decedent’s estate. This means Taxation agreed that the survival claim action is property of the estate, and that the decedent had an interest in the same as of the date of her death. To now argue to the contrary should then vitiate Taxation’s final determination and require a refund of the entire amount of estate tax paid by plaintiff. Instead, Taxation filed a cross-motion for summary judgment seeking affirmance of its refund denial. 

As to the substantive contention of when and how much are includible in an estate where the asset is a survival claim action, there are no estate (or transfer inheritance) tax cases on this issue in New Jersey. The IRS’ revenue rulings state what is and what is not includible in gross estate. However, they do not analyze or reconcile their conclusions with our transfer inheritance tax regulations or law (which is entirely reasonable because inheritance taxes are a matter of pure state law). Therefore, they are do not assist in resolving the instant inquiry. 

It is appropriate to apply the State’s Transfer Inheritance Tax statute to determine the inclusion amount of a survival action claim for estate tax purposes. Both the New Jersey Estate tax laws and the New Jersey Transfer Inheritance Tax address the same subject for purposes of imposing the respective taxes: the corpus or estate of a decedent. Bothe are “transfer” taxes, i.e., the tax is due to, and upon the transfer of an asset of, the decedent’s death. See e.g. Jiwungkul v. Dir., Div. of Taxation, 30 N.J. Tax 70, 75 (Tax 2016) (the “[t]ransfer inheritance tax and the estate tax are separate assessments occasioned by a person’s death,” with the former being a tax upon “succession to property transferred . . . through a will or by intestacy” and the latter being a tax on the “transfer of the estate . . . which would have been subject to” a federal estate tax), aff’d, 450 N.J. Super. 257 (App. Div. 2017). The assets comprising the taxable estate and subject to estate tax, are also those which pass to beneficiaries (designated by a will or intestacy laws) for transfer inheritance tax purposes. 

Taxation’s regulations recognize the interdependence between the two transfer taxes. The definitional section, Subchapter 1 of Chapter 26 of Title 18, is titled as applying to both estate and inheritance taxes and specifies that the regulatory reference to the “Act” or “Law” or “Tax Act” means “Chapters 33 through 38 of Title 54.” See N.J.A.C 18:26-1.1. Thus, for instance, the definition of the term “estate and property” (the “interest of the testator” which passes to a specific person, ibid.), or “gross estate” (“the value as of the date of a decedent’s death of all property wherever situated, which is included in the decedent’s estate for inheritance tax purposes,” ibid.), applies to both taxes. So does the defined term “[m]arket value--date determined” (the “value of property as of the date of death of the transferor, whether or not the transfer was made during the lifetime of the transferor.” Ibid.). 

The court therefore finds that the Estate Tax statute and the Transfer Inheritance Tax statute can and should be read in pari materia as to what and how much is includible in a decedent’s estate. See Milltown Indus. Sites v. Borough of Milltown, 12 N.J. Tax 581, 585 (Tax 1992) (“statutes relating to the same or similar subject matter – statutes in pari materia – are to be construed together”) (citation and internal quotation marks omitted), aff’d, 15 N.J. Tax 144 (App. Div. 1993); Richard’s Auto City, Inc. v. Dir., Div. of Taxation, 140 N.J. 523, 540 (1995) (statutes are in pari materia when they have “the same purpose or object”) (citations omitted). See also Estate of Dieleman v. Dep’t. of Revenue, 222 N.W.2d 459, 461 (Iowa 1974) (holding that estate tax and inheritance tax statute “should be construed in pari materia” in determining whether a claim for wrongful death is an asset of the estate, i.e., whether the decedent had an interest in such claim on his death). 

Here, the transfer inheritance tax laws dictate what is included in the estate (“any sum recovered as compensation for death of a person caused by a wrongful act, neglect or default, whether by award of damages or settlement of compromise”), and when (date of recovery of the “award or settlement”). N.J.S.A. 54:35-1; N.J.A.C. 18:26-5.3(a). The regulations also indicate what is not taxable, and therefore, what is not includible in an estate. N.J.A.C. 18:26-5.3; 18:26- 6.6.8 Therefore, construing the statutes in pari materia, the court finds that the legislative intent 

8 While N.J.S.A. 18:26-5.3 (a) cites to “N.J.S.A. 2A:31-1 et seq.” as the “New Jersey Death Act,” the includible amounts pertain to damages “sustained between the date of injury and date of decedent’s death . . . including loss of earnings and pain and suffering.” These are damages allowable in a survival action claim. See Smith, 160 N.J. at 234, 236 (“The Survivor’s Act was intended to” provide a remedy “to the estates of those who” suffered “injuries causing death . . . by allowing the decedent’s estate to recover any loss to the decedent that accrued between injury and death,” and the “the primary damages recoverable in a survival action sounding in tort are for the decedent’s pain and suffering between the time of injury and death”) (internal citation and quotationalso Senate No. 348, supra, n.6.  

was to include in the decedent’s estate, the sums recovered pursuant to the survival claim action, whether the recovery resulted from a trial or a settlement. 

Thus, the sums actually recovered by the decedent’s estate in the survival claim action represents the value of that claim, which here is $6,709,231.08. Although received or recovered later, this amount is deemed to be the value of the survival action claim as of the decedent’s date of death. The legislative changes implemented by L. 1978, c. 172, while noting that it was as to the “date on which certain property is includible in the estate of a decedent for transfer inheritance tax purposes,” sought to address the inequity as to timing of the payment of the tax so that “taxes shall become due and payable on the date of the award of damages or settlement of compromise, rather than the date of death of the decedent.” Even if some ambiguity exists whether this law addresses the timing of the tax payment or the date on which an asset is to be valued, it is resolved by the unambiguous intent that (1) the “property” to be included in the decedent’s estate are the “sums recovered under the Death By Wrongful Act Statute,” and (2) the date such “property” is includible in the estate (and therefore subject to tax) is “the date of the award of damages or settlement” and not the date of death. Sen. Rev. Fin. and Approp. Comm. Statement to Senate, No. 348. 

It would be counterintuitive to maintain that the same asset (survival claim action) is to be included in the same estate (decedent’s) but argue that the tax base, i.e., amount subject to tax, should be different for each type of tax: for the estate tax, it should be an amount based on an appraiser’s value conclusion (what is the asset’s alleged market value as of the date of death), but for transfer inheritance tax purposes it is the amount recovered under N.J.A.C. 18:26-5.3. Construing the Estate Tax and Transfer Inheritance Tax statues in pari materia will avoid this absurdity. The court’s conclusion does not sidestep the ruling in Estate of Warshaw because there 

the asset at issue was not a survival action claim and the case did not involve applicability of the Transfer Inheritance Tax laws. 

The court also finds that although the inheritance tax regulations concerning survival claim actions (N.J.A.C. 18:26-5.3; N.J.A.C. 26-6.6) appear to be promulgated prior to the 1978 amendments to N.J.S.A. 54:35-1 and enactment of 35-4.1, they are not arbitrary, capricious, or unreasonable. Rather, the authority for the regulations arose under the Transfer Inheritance Tax statute, and although the nomenclature differs (alluding to sums recovered under the New Jersey Death Act, N.J.S.A. 2A:31-1et seq.,) their substance accord with the existing well-established law on survival claim actions and their includability in a decedent’s estate. See Smith, 160 N.J. at 231, 234, 236; Rev. Rul. 54-19, 1954-1 C.B. 179. 

In sum, based on the court’s pari materia analysis, the court finds that amounts to be included for New Jersey’s estate tax purposes are the sums actually recovered for a survival claim action, whether by settlement or jury verdict, because this is what the Legislature intended. Such sums are deemed to be the value of the claim as of the decedent’s date of death. Therefore, application of N.J.A.C. 18:26-5.3(a) to require inclusion of the amounts actually recovered for this claim in the decedent’s gross estate for New Jersey estate tax purposes is reasonable and within the intendment of the Legislature.
CONCLUSION 

For the aforementioned reasons, the court denies plaintiff’s summary judgment motion and grants Taxation’s cross-motion for summary judgment.9 

9 Taxation notes that should this court decide in favor of plaintiff, it does not contest plaintiff’s appraiser’s “value” conclusion of the survival claim action. This concession does not mean that the court (1) also accepts plaintiff’s appraiser’s value conclusion, or (2) agrees with plaintiff that survival actions can be credibly subject to valuation under a market-value theory or any other valuation theory. 

 

Lidl Fall Down

 

Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured in an accident and suffer a Serious Injury. Sometimes, store customers are injured in fall downs caused by wet and slippery floors or failure by stores to clean up broken or fallen items. No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The stores are responsible for the maintenance of their premises which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon. It is further the duty of the store to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the store did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury. The following information is taken from the old model jury charges dealing with fall downs by store customers: INVITEE - DEFINED AND GENERAL DUTY OWED An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters by invitation, expressed or implied. The owner (or occupier) of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitees safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover. BUSINESS INVITEE FALL DOWNS: The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation. Notes: (1) Business Invitee: The duty owed to a business invitee is no different than the duty owed to other invitees. (2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly. Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee. Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an intrinsic substance case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendants contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389. It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees. Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above). Cases: Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendants mode of operation). Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated). Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store). Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station). Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div. 1960) (fall over low wire fence separating grass plot from sidewalk). Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div. 1959) (fall over bumper block in parking lot). Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day). Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket, fall over unknown object). Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor). Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant). DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions. Cases: Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton) NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiffs injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiffs injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it. Cases: Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant). Notes: (1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendants mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum). (2) An employees knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963). NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of the particular unsafe condition. Cases: Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto the steps by defendants employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbachs, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966). BURDEN OF GOING FORWARD In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendants employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendants mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendants part. If defendant fails to produce evidence of reasonable care, the jury may infer that the fault was probably his. See also: Bozza, supra, 42 N.J. at 359. Whether or not defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard. DISTRACTION OR FORGETFULNESS OF INVITEE Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiffs attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it. Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person. Note: In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendants duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedents knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner in which he proceeded in the face of that risk. In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employees attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiffs knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence. In Ferrie v. DArc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiffs forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have existed at the time. The following discussion in 2 Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges: Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them a warning adequate to enable them to avoid the harm. A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably. * * * 1. Defendants duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he/she is fully aware of their presence at the time. And if they have no unusual features and are in a place where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * * On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his/her facilities, is told to watch his/her step or step up at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendants negligence. Here again, plaintiffs recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations. In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatements adequate warning rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk. The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessors duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. . . But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb. So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability. 2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances. CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.

PP VS. J.Y., IN THE KINSHIP MATTER OF J.T. (FL-09-0156-10, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1406-19)

 PP VS. J.Y., IN THE KINSHIP MATTER OF J.T. (FL-09-0156-10, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1406-19)

The mother of an infant girl was unable to identify the father, so defendant was not a specified party to the KLG action the Division instituted shortly after his daughter's birth because the mother's disabilities rendered her unable to care for her daughter. Defendant remained incarcerated for the greater part of the first twelve years of her life but, after he learned of the child and established paternity, applied for visitation. By then, the child had been in the care and custody of the KLG guardian. Eventually, the trial court amended the KLG judgment and granted defendant limited contact with his daughter.

After a series of motions relating to that contact, defendant sought visitation and vacation of the KLG judgment. The trial court granted limited contact with the child—then twelve years old—and refused to address the motion to vacate the KLG judgment, concluding res judicata precluded such an application.

We reversed, determining the court erred because res judicata did not bar defendant's application to vacate the judgment rendered in an action to which he was not a party and involved proofs related solely to the mother, not defendant. We recognized the KLG judgment did not abrogate defendant's parental rights.

We reviewed the statutory grounds for vacating a KLG judgment under N.J.S.A. 3B:12A-6(f) and 3B:12-6(g), the procedures that should be followed and the criteria analyzed in determining the child's best interests when a non-party seeks to vacate a KLG judgment.

MICHAEL C. STEELE VS. JANE D. MCDONNELL STEELE (FM-18-0584-16, SOMERSET COUNTY AND STATEWIDE) (A-5172-18)

 MICHAEL C. STEELE VS. JANE D. MCDONNELL STEELE (FM-18-0584-16, SOMERSET COUNTY AND STATEWIDE) (A-5172-18)

Defendant appealed from a declaratory judgment finding the marital agreement (MA) she and her former spouse signed eight months after they married was a valid, enforceable agreement. And, she appealed from the final judgment of divorce (JOD) that incorporated the MA. We conclude the trial court erred by deeming the agreement to be in the nature of an enforceable pre-marital agreement. The parties' mid-marriage agreement was negotiated and executed after they wed, and the inherently coercive circumstances accompanying the making of the agreement here warranted heightened judicial scrutiny to assure it was fair and equitable. Therefore, we reverse the declaratory judgment and that portion of the JOD which enforced the MA, vacate the denial of defendant's counsel fee request, and remand for further proceedings. We identify factors the trial court should consider on remand when assessing whether to enforce the agreement.

PHOENIX PINELANDS CORPORATION, ETC. VS. HARRY DAVIDOFF, ET AL. (C-000246-11, OCEAN COUNTY AND STATEWIDE) (A-2823-16)

 PHOENIX PINELANDS CORPORATION, ETC. VS. HARRY DAVIDOFF, ET AL. (C-000246-11, OCEAN COUNTY AND STATEWIDE) (A-2823-16)

The court reverses the final judgment in this quia timet and ejectment action that divested defendant State of New Jersey of its title to seven parcels of land in the Preservation Area of the Pinelands National Reserve, consisting of over 250 acres, and granted title to those properties to an adjoining landowner, plaintiff Phoenix Pinelands Corporation, operator of a grandfathered sand and gravel mine. The court declares Phoenix's surreptitious, two-decade-long quest to undermine and cloud the State's title to the properties and establish its own competing chains of title — by plotting and resurveying the titles from the original grants from the Council of Proprietors of West Jersey, searching those titles forward, purchasing the fractional interests of the descendants of long-dead record title holders, convincing the tax assessor of Little Egg Harbor to make Phoenix's principal, David Denise, the assessed owner of the State's properties, consolidating the State's lands with Phoenix's sand mine, and having the State's parcels wiped off the tax map — the nefarious acts of a title raider, which should have barred it from any relief in a court of equity.

Having declared Phoenix's attempted annexation of the State's lands as violative of public policy, the court imposes a constructive trust on the "title" Phoenix acquired to one of the State's seven parcels, finding the State equitably entitled to the parcel upon payment to Phoenix of the sum it paid to acquire it, plus simple interest, and further finds Phoenix failed to establish title to any of the State's remaining six parcels under theories of quia timet or ejectment.

Accordingly, the court remands for entry of judgment in recordable form, following the State's tender of payment as described above, declaring Denise and Phoenix have no interest in these State lands and adjudging the State the owner of each parcel in fee simple.

STEPHAN LANZO, III, ET AL. VS. CYPRUS AMAX MINERALS COMPANY, ET AL. (L-7385-16, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5711-17/A-5717-17)

 STEPHAN LANZO, III, ET AL. VS. CYPRUS AMAX MINERALS COMPANY, ET AL. (L-7385-16, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5711-17/A-5717-17)

Plaintiff Stephen Lanzo III filed a complaint alleging he contracted mesothelioma due to his long-term use of talc products that contained asbestos. His spouse asserted a claim for the loss of her husband's services, society, and consortium. The case was tried before a jury, which returned a verdict against defendants Johnson & Johnson Consumer, Inc. (JJCI), and Imerys Talc America, Inc. (Imerys).

We reverse the judgment and remand the matter to the trial court for new, separate trials against JJCI and Imerys. We conclude the trial court erred by permitting plaintiffs' experts to testify that non-asbestiform mineral fragments can cause mesothelioma because the experts' theory was not generally accepted in the scientific community and lacked support in a publication reasonably relied upon by other experts in the field.

We also conclude the trial court did not mistakenly exercise its discretion by providing an adverse inference instruction to the jury based on Imerys' discovery violations and failure to retain relevant evidence. We decided, however, that the trial court erred by failing to sever the claims against JJCI because the adverse inference instruction was unduly prejudicial to JJCI, which had no role in the discovery violations or the spoliation of evidence.

No expert report in PI resulted in Summary Judgement DONELL L. PRINCE, Plaintiff-Appellant, v. CITY OF ENGLEWOOD

 No expert report in PI resulted in Summary Judgement

DONELL L. PRINCE, Plaintiff-Appellant,

v.

CITY OF ENGLEWOOD and PRISCILLA PAJELA,

Defendant-Respondents. _________________________

Submitted December 14, 2020 – Decided February 12, 2021 Before Judges Sabatino and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1679-17.

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.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2959-18

Plaintiff appeals from the summary judgment orders dismissing his claims against defendants. Plaintiff alleged he slipped on snow and fell on the same day while walking on a street in Englewood and on the property owned by defendant Priscilla Pajela, his landlord. We affirm.

Claims against Englewood

On the day of these events in March 2015, as plaintiff left the rooming house where he lived, he noticed there was snow on the common walkways of the rooming house property and the adjoining public sidewalks. Because snow had been plowed from the street onto the sidewalks, plaintiff decided to walk in the street. While doing so, plaintiff stated he fell and landed on his backside and side of his body. He got up, continued on to a store to do his shopping, and walked back to the rooming house. As plaintiff was on the rooming house property, he said his foot "caught on something[] and [he] fell backward on [his] back" and struck his head.

Plaintiff alleged that Englewood, through its agents and employees, was negligent in failing to remove the snow from public sidewalks and streets, and the negligence caused him to fall and sustain injuries. Giving plaintiff all legitimate inferences as we must, Rule 4:46-2(c), we are satisfied the trial court

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A-2959-18

did not err in its grant of summary judgment to Englewood. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

It is well-established law in this state that public entities have absolute immunity for all snow removal activities. Miehl v. Darpino, 53 N.J. 49, 54 (1968). The common law "immunity was based primarily on the limitless liability that could be imposed on an entity, such as a state, county, municipality, or turnpike authority, that had the responsibility to clean up numerous streets and roads." Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 131 (1993); see also Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 414-15 (1988) (holding that the enactment of the Tort Claims Act did not abrogate common law snow removal immunity); Lathers v. Twp. of West Windsor, 308 N.J. Super. 301, 305- 06 (App. Div. 1998) (holding that the municipality had immunity from suit where the plaintiff slipped and fell on a patch of ice on publicly owned sidewalk); Rossi v. Borough of Haddonfield, 297 N.J. Super. 494, 499-500 (App. Div. 1997) (holding the borough enjoyed snow removal immunity where the plaintiff slipped and fell on ice in a municipal parking lot).

Here, summary judgment was properly granted in favor of Englewood. Plaintiff alleged he slipped and fell on a public street because of snow conditions. Because Englewood enjoys immunity from liability for its snow

     

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removal activities, it cannot be held liable for plaintiff's alleged injuries. See Rochinsky, 110 N.J. at 413-14.

Claims against Pajela

Plaintiff alleged in his complaint that Pajela and her employees were negligent in removing snow and ice from the rooming house property and their negligence caused him to slip and fall and suffer injuries.

Plaintiff has an extensive medical history. He was involved in motor vehicle accidents in 1991 and 1995 following which he complained of pain in his neck and back. He treated with a neurologist and a neurosurgeon who prescribed pain medication. He also underwent MRI testing of his neck and back. Plaintiff has received Social Security Disability Insurance since 1997 because of his back injuries. At the time of his fall in March 2015, plaintiff was under the care of a pain management doctor and was taking Percocet to manage his chronic pain.

During his deposition, plaintiff stated: "I never said that my injuries were completely healed or anything like that. I would never say that."

Plaintiff first sought treatment for the injuries he sustained in the March 2015 fall three weeks after the accident, returning to the pain management doctor and neurologist. However, he never produced an expert report to provide

 

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an analysis of his pre-existing injuries and conditions and any injuries that may have been caused by his fall. Nor did he present any evidence to differentiate between the two falls. There was no medical expert to present the jury with an opinion as to whether any of plaintiff's current complaints were causally related to the fall on Pajela's property.

A plaintiff has the burden to prove the elements of a negligence claim "by some competent proof." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (internal quotations and citations omitted). This includes the element of proximate cause. Plaintiff must prove any injuries he sustained were proximately caused by the fall on the rooming house property.

Because of plaintiff's complicated medical history and his ongoing treatment at the time of his fall, he required expert opinion to prove proximate cause. The medical issues presented here are beyond the ken of an average juror. 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 490 (App. Div. 1994) (holding that expert testimony is necessary where proximate causation cannot be established through common knowledge). Plaintiff had preexisting injuries and an earlier fall on the same day. Therefore, he was required to obtain

 

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an expert to opine whether the fall at the rooming house caused a new injury.1 Without an expert report, plaintiff could not sustain his personal injury claims pertaining to the fall.

Plaintiff made additional allegations against Pajela in her capacity as a rooming house operator. He alleged that Pajela and other unknown parties harassed and intimidated plaintiff in an attempt to force him out of the rooming house. Plaintiff alleged that he complained to Pajela in 2013 about drug use by other tenants and cracked heating pipes which caused black mold in the rooming house bathroom. After plaintiff reported his grievances to the Department of Community Affairs in 2013, an inspector evaluated the property and found it was in full compliance with the law.

Plaintiff contended, that after the inspection, Pajela retaliated against plaintiff by drilling holes into the walls and windows of his room to "blow[] drugs . . . [and] other chemical toxins into plaintiff[']s room[.]" Plaintiff alleged Pajela and her agents and employees failed to comply with the Rooming and Boarding Houses Act of 1979, N.J.S.A. 55:13B-1 to -21, and Regulations Governing Rooming and Boarding Houses, N.J.A.C. 5:27-1.1 to -14.1. In

1 Plaintiff advised the trial court during oral argument that he was not pleading an aggravation of any prior injury or condition.

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addition, he contended that Pajela and her employees intentionally harmed him "by way of drugs" and "other chemical irritants," depriving him of a safe living environment. Plaintiff did not produce any expert opinion relating his alleged injuries to Pajela's conduct.

In granting Pajela summary judgment, the trial court stated:

The court find[s] no genuine issue of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). To the extent plaintiff argues that his personal injury claims related to drug use by other boarders at his residence caused him illness and injury, were not dismissed by prior order of the court, the court finds there is no evidence, to include an expert report, medical or otherwise, which would relate the alleged injuries to the actions complained of nor how defendant was liable therefore.

The balance of [the] allegations concerning harassment in 2013 are barred by N.J.S.A. 2A:14-2. Plaintiff's amended complaint was filed in 2018. Allegations regarding incidents alleged to have occurred in 2013 or prior were adjudicated by the Bureau of Rooming and Boarding House Standards, which found [the boarding house] to be in full compliance with the Rooming and Boarding House Act and the Regulations governing Rooming and Boarding Houses.

Plaintiff continues to reside at the boarding house.
Again, in viewing the facts in the light most favorable to plaintiff as the non-movant, we are satisfied he has not demonstrated a genuine issue of material fact to withstand summary judgment. R. 4:46-2. Plaintiff's complaints of

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violations of the Rooming House Act in 2013 were investigated and dismissed by the regulating agency. Moreover, as discussed above, without an expert opinion to connect his allegations of misconduct by Pajela or the other boarders to an alleged injury or illness, plaintiff cannot support his claims.

In light of our de novo determination that the trial court's grant of summary judgment to defendants and the dismissal of all of plaintiff's claims was supported by the record, we need not address plaintiff's remaining contentions regarding the denial of other motions and cross-motions.

Affirmed.

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