MSZW Team Wins Big for Large New Jersey Regional Retail Company

Attorney Paul Jenkins of Mintzer Sarowitz Zeris & Willis’s New Jersey office recently succeeded in defending a premises liability action against a regional mass-merchandising retail company, which had threatened to morph into a survival action.

Case Background

The plaintiff alleged serious injuries as a result of a fall on broken concrete at one of the retailer’s stores in New Jersey. After an extended hospitalization, the plaintiff passed away while the case was in the middle of discovery. Plaintiff’s counsel identified the plaintiff’s heirs and sought to maintain the lawsuit in the name of the estate.

Judicial Process and Outcome

Mintzer Sarowitz Zeris & Willis and counsel for the landlord of the property both filed motions for summary judgment, asking the Court to dismiss the plaintiff’s action with prejudice. The defendants pointed out that at the time of her death the plaintiff had failed to comply with discovery that was essential to their defense. They argued that under the circumstances it would be unfair to allow the lawsuit to proceed.

In addition, the defendants cited caselaw to demonstrate that without the plaintiff’s testimony, the estate could not satisfy the essential elements to prove their claims at trial. Furthermore, defendants  established that plaintiff’s estate failed to comply with New Jersey law in its attempt to maintain the cause of action, such that the Court should deem plaintiff’s Complaint to be  nullified. In fact, there was no evidence presented to the Court that an estate had even been raised.

Superior Court Judge Judith S. Charny agreed with the defendants’  arguments and dismissed the plaintiff’s Complaint with prejudice. No appeal was filed.

Takeaways

The successful outcome in this case can be traced back to a fundamental principle: aggressive discovery creates opportunity. In addition, the Court’s decision serves as a reminder that where unforeseen circumstances jeopardize the live trial testimony of a critical witness, it is essential to preserve the testimony of that witness. The viability of the litigation may depend on it.

Lastly, in the broader context this case shows how failure to comply with testacy and intestacy requirements, which are driven by state law, can have a devastating effect on litigation the decedent had been pursuing at the time of death. Litigation ordinarily cannot proceed in the name of a deceased individual under New Jersey law; an estate representative must substitute in for the decedent. Otherwise the lawsuit is subject to dismissal upon application by the defendant, which is what happened in this case.