NEW JERSEY

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A. STATUTES OF LIMITATIONS

A cause of action for personal injuries must be brought within two years after the cause of action accrues.⁽¹⁾ New Jersey courts apply a rather liberal "discovery rule." The discovery rule tolls the limitations period where a plaintiff was not, and reasonably could not have been, aware of the underlying factual basis for a cause of action.⁽²⁾

An action for libel or slander must be commenced within one (1) year after the publication of the alleged libel or slander.⁽³⁾ A cause of action under the New Jersey Wrongful Death Act must be commenced within two (2) years after the death of the decedent.⁽⁴⁾ If the personal injury/survival action of the plaintiff's decedent is time-barred because no claim was instituted for personal injuries within two years of the accident, a wrongful death action may still be maintained if it is brought within two years of the death of the decedent.⁽⁵⁾ The statute of limitations for tortious interference with contractual rights, tortious interference with prospective economic advantage, and professional malpractice is six (6) years.⁽⁶⁾

A cause of action for breach of contract for the sale of goods or breach of warranty is four (4) years and accrues at the time the product is delivered.⁽⁷⁾ A cause of action for breach of contract (other than for the sale of goods), property damage, or any action that is not subject to another limitations period must be brought within six (6) years.⁽⁸⁾ Claims for injuries arising from improvements to real property have a ten (10) year statute of limitations.⁽⁹⁾

Pursuant to the New Jersey Tort Claims Act, a claim against a governmental entity or employee of the state or local government for personal injuries must be presented to the sovereign within ninety (90) days after accrual of the cause of action.⁽¹⁰⁾ A claimant must wait six (6) months from the date notice of claim is received before filing suit, but is barred from recovering if the claimant does not bring suit within two (2) years since the accrual of the claim.⁽¹¹⁾

B. TORT REFORM

On June 29, 1995, Governor Whitman signed into law a package of five tort reform bills:

1. The Joint-And-Several Liability Act was modified to provide that the recovering party may recover the full amount of the damages from any party who is sixty percent (60%) or more responsible, but only the percentage of the damages directly attributable to the negligence or fault of a party less than sixty percent (60%) responsible.⁽¹²⁾
2. The Retail-Sellers' Liability Act, as amended, provides that, in a products liability action against a product seller, the product seller, after exercising due diligence, may file an affidavit certifying the correct identity of the manufacturer.⁽¹³⁾ Upon the filing of the affidavit, the product seller is relieved of all strict liability claims against him.⁽¹⁴⁾
3. The Punitive Damages Act establishes standards with regard to the awarding of punitive damages in civil cases.⁽¹⁵⁾ It also places a cap on the amount of punitive damages recoverable.⁽¹⁶⁾ The cap is set at "five times the liability of the defendant for compensatory damages or $350,000, whichever is greater."⁽¹⁷⁾
4. The Health-Care Providers' Liability Bill limits the liability of a health care provider, under the New Jersey Products Liability Act, for the harm allegedly caused by a medical device that was manufactured or designed in a defective manner, where the health care provider did not design or control the design of the device and did not know, or could not have known, of the defect.⁽¹⁸⁾
5. The Affidavit of Merit Bill requires that, in any professional malpractice or negligence action, the plaintiff must provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.⁽¹⁹⁾

C. "NO FAULT" LIMITATIONS

Under the New Jersey Automobile Reparation Reform Act, insureds must chose between two types of coverage regarding the right to seek recovery of noneconomic losses resulting from automobile-related injuries.⁽²⁰⁾ The first, the "verbal threshold," allows recovery for noneconomic losses resulting only from those personal injuries that fit into one of nine specified categories.⁽²¹⁾ The alternative option is the traditional tort option, which allows unrestricted recovery of noneconomic damages, but at a higher premium.⁽²²⁾ An insured who makes no election is deemed to have chosen the verbal threshold.⁽²³⁾

The court will make the determination of whether the injury meets the verbal threshold definition when no disputed factual issues are present.⁽²⁴⁾ Once a court determines that evidence bearing on a plaintiff's injuries could, if believed by the factfinder, satisfy the statutory verbal-threshold requirement, any disputed issues regarding the nature and extent of those injuries must be decided by the jury.⁽²⁵⁾ The plaintiff must show a material dispute of fact by credible, objective medical evidence.⁽²⁶⁾

D. THE STANDARD FOR NEGLIGENCE

The elements necessary for a cause of action in negligence are as follows: (1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach.⁽²⁷⁾

Whether a duty exists is a question of law to be decided by a court.⁽²⁸⁾ Ordinarily, on the other hand, whether there is a breach of the duty, foreseeability and proximate cause are issues "peculiarly within the competence of a jury."⁽²⁹⁾ The determination of whether a duty exists involves weighing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care or avoid the risk and the fairness and public policy interest in the proposed solution.⁽³⁰⁾ A major consideration, however, is the foreseeability of the risk of injury.⁽³¹⁾

A person is required to act as a reasonably prudent person to avoid causing foreseeable harm to others.⁽³²⁾ One who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities.⁽³³⁾

When a risk of harm was posed by a third person, the plaintiff may be required to prove that the defendant was in position to know or have reason to know, from past experience, that the third person was likely to endanger the safety of another.⁽³⁴⁾

The required standard of care for a minor is that of a reasonable person of like age, intelligence and experience under like circumstances.⁽³⁵⁾ Among those circumstances is the nature of the activity in which the minor is engaged.⁽³⁶⁾ A child less than seven years old is rebuttably presumed to be incapable of negligence,⁽³⁷⁾ however, the issue may not be submitted to the jury unless there is evidence of training and experience from which the jury could infer that the child was capable of understanding and avoiding the danger involved in the circumstances of the case.⁽³⁸⁾

E. CAUSATION

To constitute actionable negligence, there must be proof of injury or damage resulting from the disregard or violation of a duty.⁽³⁹⁾ The plaintiff must show that the resulting injury probably would not have occurred 'but for' the negligent conduct of the defendant.⁽⁴⁰⁾ When there are concurrent causes of harm, the plaintiff must also prove that defendant's conduct was the proximate cause of the plaintiff's injury.⁽⁴¹⁾ Proximate cause has been defined "as being any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred."⁽⁴²⁾ A tortfeasor will be held answerable if its negligent conduct was a substantial factor in bringing about the injuries, even where there are other intervening causes that were foreseeable or were normal incidents of the risk.⁽⁴³⁾

F. CONTRIBUTORY NEGLIGENCE, COMPARATIVE NEGLIGENCE AND ASSUMPTION OF RISK

The contributory negligence of the claimant bars recovery only if the claimant's negligence exceeds that of the person against whom recovery is sought.⁽⁴⁴⁾

The Comparative Negligence Act provides that the plaintiff may recover damages in any case where his negligence is less than or equal to the combined negligence of multiple defendants, i.e. the aggregate approach to comparative negligence.⁽⁴⁵⁾ The act requires that any damages sustained by the plaintiff must be diminished by the percentage of negligence attributable to the plaintiff.⁽⁴⁶⁾ The plaintiff may recover the full amount of the damages from any party who is sixty percent (60%) or more responsible but only the percentage of the damages directly attributable to the negligence or fault of a party less than sixty percent (60%) responsible.⁽⁴⁷⁾ In order to apportion liability, the factfinder should compare the fault of all parties whose negligence was a proximate cause of the plaintiff's injuries.⁽⁴⁸⁾

When the plaintiff has knowledge of a risk, or facts sufficient to put a reasonably prudent person on notice of risk, the plaintiff must exercise the degree of care that the risk requires, or be subject to the defense of assumption of the risk.⁽⁴⁹⁾ The terminology of assumption of the risk is used to distinguish between two types of comparative fault defenses, but is not used when instructing a jury.⁽⁵⁰⁾

G. RES IPSA LOQUITUR AND INHERENTLY DANGEROUS ACTIVITIES

1. Res ipsa loquitur

   Res ipsa loquitur, which in Latin means "the thing speaks for itself," is not a theory of liability, but is an evidentiary rule that governs the adequacy of evidence in some negligence cases. ⁽⁵¹⁾ The doctrine of res ipsa loquitur is a method of circumstantially proving the existence of negligence.⁽⁵²⁾ It does not, however, shift the burden of persuasion to the defendant; rather, it requires the defendant to provide an explanation.⁽⁵³⁾

   Specifically, the doctrine permits an inference of defendant's want of due care when the following three conditions have been met: 1) the accident which produced a person's injury was one that ordinarily does not happen unless someone was negligent; 2) the instrumentality or agent that caused the accident was under the exclusive control of the defendant; and 3) the circumstances indicated that the event was not caused or contributed to by any act or neglect on the part of the injured person.⁽⁵⁴⁾

2. Inherently Dangerous Activity

   The "abnormally-dangerous-activity" doctrine imposes strict liability, despite the social utility of the activity, on those who, for their own benefit, introduce an extraordinary risk of harm into the community.⁽⁵⁵⁾ New Jersey follows the six factors set forth in the Restatement (Second) of Torts, Section 520, to determine whether an activity is abnormally dangerous.⁽⁵⁶⁾

H. NEGLIGENCE PER SE

A determination that a party violated a statutory duty of care is not conclusive on the issue of negligence unless the statute specifically incorporates the common-law standard of care.⁽⁵⁷⁾ The violation of a legislated standard of conduct may, however, be regarded as evidence of negligence if the plaintiff was a member of the class for whose benefit the standard was established.⁽⁵⁸⁾

I. JOINT AND SEVERAL LIABILITY

Under the Comparative Negligence Act, a party may seek recovery of the entire verdict from any party who is found to be sixty percent (60%) or more responsible for the total damages.⁽⁵⁹⁾ A defendant will be required to pay only his proportionate share of the verdict if he is found to be less than sixty percent (60%) at fault.⁽⁶⁰⁾ Any party who is compelled to pay more than his percentage share may seek contribution from the other joint tortfeasors.⁽⁶¹⁾

The New Jersey Joint Tortfeasors Contribution Act applies to two or more persons who are jointly or severally liable in tort for the same injury to person or property.⁽⁶²⁾ The Joint Tortfeasors Contribution Act does not recognize a claim for contribution against a joint tortfeasor unless the plaintiff recovers an actual judgment.⁽⁶³⁾ A nonsettling defendant does not have a viable crossclaim against a settling defendant,⁽⁶⁴⁾ but is entitled to a credit reflecting the settler's fair share of the amount of the verdict.⁽⁶⁵⁾ The defendant is not entitled to a credit, however, if the plaintiff settles with a party who is found not to be a tortfeasor.⁽⁶⁶⁾

J. INDEMNITY

A person who, without personal fault, becomes subject to tort liability for the unauthorized and wrongful conduct of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability.⁽⁶⁷⁾ Indemnity arises from contract, express or implied.⁽⁶⁸⁾ If there is no express contractual indemnity agreement, a party may recover from another under implied indemnity if the indemnitee's negligence is merely "constructive" or "vicarious."⁽⁶⁹⁾ The party being held vicariously or secondarily liable must show that they are completely without fault in order to succeed with an indemnity claim.⁽⁷⁰⁾

K. BAR OF WORKERS' COMPENSATION STATUTE

By statute, employers are generally immune from suit by an injured employee.⁽⁷¹⁾ Employees may file common-law tort claims against an employer under the "intentional wrong" exception to the Workers' Compensation exclusivity rule.⁽⁷²⁾ The dual capacity doctrine, where an employer may be liable to his employee if the employer holds a second capacity that imposes a duty independent from the employment relationship, has not found favor in New Jersey.⁽⁷³⁾ The statute does not preclude an employer from assuming a contractual duty to indemnify a third party through an express agreement. To be entitled to indemnification, the third party must be without fault.⁽⁷⁴⁾

L. PREMISES LIABILITY

At common law, the courts defined the extent of a landowner's tort liability toward a party injured due to a dangerous condition on the property based on the status of the injured party as a business invitee, licensee, or trespasser. ⁽⁷⁵⁾ An owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for the commercial or business purposes of the owner.⁽⁷⁶⁾ An owner owes a duty to an invitee to make reasonable inspection of his premises to discover hazardous conditions and must take reasonable steps to correct defects or give a sufficient warning to invitees.⁽⁷⁷⁾ A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owner's benefit.⁽⁷⁸⁾ An owner is only required to warn social guests or licensees of dangerous conditions actually known to the host and unknown to the guest.⁽⁷⁹⁾ The owner owes a minimal degree of care to a trespasser and need only warn trespassers of known artificial conditions that pose a risk of death or serious bodily harm.⁽⁸⁰⁾

New Jersey follows Section 339 of the Restatement of Torts, known as the infant-trespasser rule, which imposes liability on a possessor of land for bodily injury sustained by an infant trespasser where: (1) the infant's trespass was foreseeable; (2) an artificial condition existed on defendant's property; and (3) the condition posed an unreasonable risk of death or serious bodily injury.⁽⁸¹⁾

In some instances, the New Jersey courts have moved away from the common-law analysis of landowner liability and not relied exclusively on the status of the injured party. Rather, the courts have analyzed the actual relationship between the parties under the surrounding circumstances to determine whether the imposition of a duty on the landowner is 'fair and just.'⁽⁸²⁾

Business owners and landowners have a duty to protect patrons and tenants from foreseeable criminal acts of third parties occurring on their premises.⁽⁸³⁾ However, to establish whether a criminal act was foreseeable to the landowner, New Jersey has rejected the prior similar incident rule in favor of the totality of circumstances rule.⁽⁸⁴⁾

M. LIQUOR LIABILITY

1. Dram Shop

   The New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, provides the exclusive civil remedy for personal injury or property damage resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server.⁽⁸⁵⁾ To recover, the plaintiff must prove: 1) negligent service as defined in N.J. Stat. Ann. § 2A:22A-5(b);⁽⁸⁶⁾ 2) a nexus between the negligent service and the injury; and 3) that the type of injury was a foreseeable consequence of the negligent service.⁽⁸⁷⁾ The jury is to apportion fault between the patron and the tavern based on the extent to which each party's negligence contributed to plaintiff's injuries.⁽⁸⁸⁾ Violation of the statute does not amount to negligence per se.⁽⁸⁹⁾

2. Social Host

   New Jersey also provides a statutory remedy for damages against a social host for an accident involving a vehicle caused by a guest to whom the host serves alcohol when the host knows the guest is intoxicated.⁽⁹⁰⁾

N. ECONOMIC LOSS

Economic loss damages are recoverable despite lack of physical damages if suffered by individuals whom defendant knows or has reason to know are likely to suffer.⁽⁹¹⁾ However, a consumer cannot maintain a cause of action sounding in negligence to recover damages solely for the economic loss resulting from a defect in a product.⁽⁹²⁾

O. FRAUD AND MISREPRESENTATION

The New Jersey Rules of Civil Procedure require that allegations of fraud or misrepresentation be pleaded with particularity.⁽⁹³⁾

Elements of common-law fraud are: (1) material misrepresentation of presently existing or past fact; (2) knowledge or belief by defendant of its falsity; (3) intention that other person rely on representation; (4) reasonable reliance thereon by other person; and (5) resulting damages.⁽⁹⁴⁾

When suing for rescission of a contract, rather than damages, because of a breach of a material term of an agreement, the plaintiff needs to establish only equitable fraud, not legal fraud.⁽⁹⁵⁾ In order to prove equitable fraud, a plaintiff must demonstrate a material misrepresentation made with the intent that it be relied on, coupled with actual detrimental reliance.⁽⁹⁶⁾ Elements of scienter, that is, knowledge and intention to obtain an undue advantage therefrom, are not essential to prove equitable fraud.⁽⁹⁷⁾

A cause of action for negligent misrepresentation exists when: 1) a party negligently provides false information; 2) the aggrieved party is a reasonably foreseeable recipient of the representation for its proper business purpose; 3) the aggrieved party relies on the misrepresentation; and 4) the misrepresentation is the proximate cause of the aggrieved party's damages.⁽⁹⁸⁾ Damages for negligent misrepresentation are limited to recovery for actual loss due to reliance on misstatements.⁽⁹⁹⁾

P. CONSUMER FRAUD STATUTE

The New Jersey legislature intended to create "one of the strongest consumer protection laws in the nation," when it amended the Consumer Fraud Act, which makes commercial practices that have the capacity to mislead unlawful.⁽¹⁰⁰⁾ The act provides the Attorney General with the power to investigate consumer-fraud complaints and promulgate rules and regulations to enforce the act.⁽¹⁰¹⁾ The act also provides for a private cause of action, with an award of treble damages, attorneys' fees and costs.⁽¹⁰²⁾ Under the act, the consumer need not show reliance on the defendant's misrepresentation.⁽¹⁰³⁾

The six-year statute of limitations applies to claims based on the Consumer Fraud Act.⁽¹⁰⁴⁾

Q. PUNITIVE DAMAGES

Punitive damages are controlled by the Punitive Damages Act, which limits a defendant's liability for punitive damages.⁽¹⁰⁵⁾ A defendant cannot be liable for more than five times the amount of compensatory damages or $350,000, whichever is greater.⁽¹⁰⁶⁾ The act requires that punitive damages be specifically pleaded in the complaint.⁽¹⁰⁷⁾ In order to recover punitive damages, the plaintiff must prove, by clear and convincing evidence, actual malice or a wanton and willful disregard of persons who foreseeably might be harmed.⁽¹⁰⁸⁾ If requested by the defendant, a case involving punitive damages must be bifurcated, with compensatory damages being determined in the first stage and punitive damages, if warranted, determined in the second stage.⁽¹⁰⁹⁾

R. WRONGFUL DEATH AND SURVIVORSHIP ACTIONS

When an injured person dies as a result of an accident, his cause of action for injuries passes to his estate under the Survival Act.⁽¹¹⁰⁾ The estate may recover any loss to the decedent that accrued between injury and death that the decedent would have been able to recover if he were living.⁽¹¹¹⁾

A new and separate cause of action for wrongful death arises in favor of a limited group of beneficiaries defined by the Wrongful Death Statute⁽¹¹²⁾ to compensate them for the pecuniary injuries resulting from the death, together with the hospital, medical and funeral expenses incurred for the deceased.⁽¹¹³⁾ Pecuniary loss is measured by the decedent's earnings, loss of service, including companionship and advice, having a pecuniary value that the decedent, had he or she lived, might have rendered.⁽¹¹⁴⁾

Edward A. Greenberg, Esquire
Marie H. Kramer, Esquire
DALLER GREENBERG & DIETRICH, LLP
Three Greentree Centre
7001 Lincoln Drive West
Suite 203
Marlton, NJ 08053
TELEPHONE: (856) 797-8555
FACSIMILE: (856) 797-8655
egreenberg@dallergreenberg.com (Email)
dallergreenberg.com (Website)

ENDNOTES - NEW JERSEY

1. N.J. Stat. Ann. § 2A:14-2. (1987).

2. See, e.g., Baird v. American Medical Optics, 155 N.J. 54, 713 A.2d 1019 (1998); Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979).

3. N.J. Stat. Ann. § 2A:14-3. (1987)

4. N.J. Stat. Ann. § 2A:31-3 (1987); Negron v. Llarena , 156 N.J. 296, 716 A.2d 1158 (1998).

5. N.J. Stat. Ann. § 2A:31-3; Silverman v. Lathrop, 168 N.J. Super. 333, 403 A.2d 18 (App. Div. (1979).

6. Fraser v. Bovino, 317 N.J. Super. 23, 721 A.2d 20 (App. Div. 1998).

7. N.J. Stat. Ann. § 12A:2-725 (1962); Deluxe Sales and Service, Inc. v. Hyundai Engineering & Const. Co., Ltd., 254 N.J. Super. 370, 603 A.2d 552 (App. Div. 1992); Biocraft Laboratories, Inc. v. USM Corp., 163 N.J. Super. 570, 395 A.2d 521 (App. Div. 1978).

8. N.J. Stat. Ann. § 2A:14-1-2. (1987)

9. N.J. Stat. Ann. § 2A:14-1.1 (2000 Supp.); Rosenberg v. North Bergen, 61 N.J. 190, 199, 293 A.2d 662 (1972).

10. N.J. Stat. Ann. § 59:8-8. (2000 Supp.)

11. Id.

12. N.J. Stat. Ann. §§ 2A:15-5.2 -5.3. (1987 and 2000 Supp.)

13. N.J. Stat. Ann. §§ 2A:58C-8 -9. (2000 Supp.)

14. Id.

15. N.J. Stat. Ann. §§ 2A:15-5.9-5.17. (2000 Supp.)

16. Id.

17. N.J. Stat. Ann. §§ 2A:15-5.14b. (2000 Supp.)

18. N.J. Stat. Ann. §§ 2A:58C-10 -11. (2000 Supp.)

19. N.J. Stat. Ann. §§ 2A:53A-27. (2000 Supp.)

20. N.J. Stat. Ann. §§ 39:6A-1; 39:6A-8. (1990)

21. N.J. Stat. Ann. § 39:6A-8(a) restricts the recovery of noneconomic losses to the following nine types of injuries: death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

22. N.J. Stat. Ann. § 39:6A-8(b). (1990)

23. N.J. Stat. Ann. § 39:6A-8.1(b) (1990); Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992).

24. Oswin, 129 N.J. 290; Fitzberald v. Wright, 155 N.J. Super. 494, 382 A.2d 1162 (App. Div. 1978).

25. Oswin, 129 N.J. 290.

26. Id.

27. Weinberg v. Dinger, 106 N.J. 469, 524 A.2d 366 (1987); Endre v. Arnold, 300 N.J. Super. 136, 692 A.2d 97 (App. Div. 1997); Anderson v. Sammy Redd and Assoc., 278 N.J. Super. 50, 650 A.2d 376 (App. Div. 1994), cert. denied, 139 N.J. 441, 655 A.2d 444 (1995).

28. Wang v. Allstate Ins. Co., 125 N.J. 2, 592 A.2d 527 (1991); Anderson, 278 N.J. Super. 50.

29. Anderson, 278 N.J. Super. 50.

30. Alloway v. Bradless, Inc., 157 N.J. 221, 723 A.2d 960 (1999); Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993); Weinberg, 106 N.J. 469.

31. J.S. v. R.T.H., 155 N.J. 330, 714 A.2d 924 (1998); Carey v. Lovett, 132 N.J. 44, 57, 622 A.2d 1279 (1993); Weinberg, 106 N.J. 469.

32. Weinberg, 106 N.J. 469.

33.Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298 (1992); Levine v. Wiss & Co., 97 N.J. 242, 246, 478 A.2d 397 (1984).

34. J.S., 155 N.J. 330; Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507, 694 A.2d 1017 (1997); Blunt v. Klapproth, 309 N.J. Super. 493, 707 A.2d 1021 (App. Div. 1998), cert. denied, 156 N.J. 387, 718 A.2d 1216 (1998).

35. Goss v. Allen, 70 N.J. 442, 360 A.2d 388 (1976) (citing Restatement, Torts 2d, § 283A at 14 (1965)); Schomp v. Wilkens, 206 N.J. Super. 95, 501 A.2d 1036 (App. Div. 1985); Zuckerbrod v. Burch, 88 N.J. Super. 1, 210 A.2d 425 (App. Div. 1965).

36. Goss, 70 N.J. 442.

37. DeRobertis v. Randazzo, 94 N.J. 144, 462 A.2d 1260 (1983); Bush v. New Jersey & New York Transit Co., Inc., 30 N.J. 345, 153 A.2d 28 (1959); Zuckerbrod, 88 N.J. Super. 1.

38. Bush v. New Jersey & New York Transit Co., Inc., 30 N.J. 345, 153 A.2d 28 (1959).

39. Endre, 300 N.J. Super. 136.

40. Conklin v. Hannoch Weisman, 145 N.J. 395, 678 A.2d 1060 (1996); Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 706 A.2d 1193 (App. Div. 1998), cert. denied, 156 N.J. 386, 718 A.2d 1215 (1998).

41. Id.

42. Conklin, 145 N.J. 395.

43. Conklin, 145 N.J. 395; Rappaport v. Nichols, 31 N.J. 188, 203, 156 A.2d 1 (1959); Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 706 A.2d 1193 (App. Div. 1998), cert. denied, 156 N.J. 386, 718 A.2d 1215 (1998).

44. N.J. Stat. Ann. § 2A:15-5.1-5.4 (1987 and 2000 Supp.); Schwarze v. Mulrooney, 291 N.J. Super. 530, 677 A.2d 1144 (App. Div. 1996).

45. N.J. Stat. Ann. §§ 2A:15-5.1 -5.4. (1987 and 2000 Supp.)

46. N.J. Stat. Ann. § 2A:15-5.1. (1987)

47. N.J. Stat. Ann. §§ 2A:15-5.2 -5.3. (1987 and 2000 Supp.)

48. N.J. Stat. Ann. § 2A:15-5.2 (1987 and 2000 Supp.); Campione v. Soden, 150 N.J. 163, 695 A.2d 1364 (1997).

49. Lewis v. American Cyanamid Co., 155 N.J. 544, 715 A.2d 967 (1998); Del Tufo v. Township of Old Bridge, 147 N.J. 90, 685 A.2d 1287 (1996).

50. Del Tufo, 147 N.J. 90.

51. Myrlak v. Port Auth. of NJ and NJ, 157 N.J. 84, 723 A.2d 45 (1999); Eaton v. Eaton, 119 N.J. 628, 575 A.2d 858 (1990); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288, 471 A.2d 25 (1984).

52. Myrlak, 157 N.J. 84; Tierney v. St. Michael's Medical Center, 214 N.J. Super. 27, 30, 518 A.2d 242 (App. Div.1986), cert. denied, 107 N.J. 114, 526 A.2d 184 (1987).

53. Myrlak, 157 N.J. 84; Eaton, 119 N.J. 628.

54. Eaton, 119 N.J. 628; Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269, 139 A.2d 404 (1958); Bahrle v. Exxon Corp., 279 N.J. Super. 5, 652 A.2d 178 (App. Div. 1995), aff'd, 145 N.J. 144, 678 A.2d 225 (1996).

55. T & E Industries, Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249 (1991).

56. Bahrle, 279 N.J. Super. 5. The factors include: (a) existence of a high degree of risk of some harm to the person, land or chattels of another; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts, § 520 (1976).

57. Eaton, 119 N.J. 628.

58. Alloway, 157 N.J. 221; J.S., 155 N.J. 330.

59. N.J. Stat. Ann. § 2A:15-5.3(a). (1987 and 2000 Supp.)

60. N.J. Stat. Ann. § 2A:15-5.3(c).

61. N.J. Stat. Ann. § 2A:15-5.3(e); N.J. Stat. Ann. § 2A:53A-1 to -3. (1987)

62. N.J. Stat. Ann. §§ 2A:53A-1-3. (1987)

63. N.J. Stat. Ann. § 2A:53A-3 (1987); Gangemi v. National Health Laboratories, Inc., 305 N.J. Super. 97, 701 A.2d 965 (App. Div. 1997).

64. Young v. Latta, 123 N.J. 584, 589 A.2d 1020 (1991); Tefft v. Tefft, 192 N.J. Super. 561, 471 A.2d 790 (App. Div. 1983).

65. Young, 123 N.J. 584; Mort v. Bess, 287 N.J. Super. 423, 671 A.2d 189 (App. Div. 1996), cert. denied, 147 N.J. 577, 688 A.2d 1053 (1997); Tefft, 192 N.J. Super. 561.

66. Young, 123 N.J. 584; Johnson v. American Homestead Mortg. Corp., 306 N.J. Super. 429, 703 A.2d 984 (App. Div. 1997); Tefft, 192 N.J. Super. 561.

67. Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 159 A.2d 97 (1960).

68. George Brewster & Son v. Catalytic Const. Co., 17 N.J. 20, 109 A.2d 805 (1954).

69. Central Motor Parts Corp. v. E.I. duPont deNemours & Co., Inc., 251 N.J. Super. 5, 596 A.2d 759 (App. Div. 1991); Public Service Electric & Gas Co. v. Waldroup, 38 N.J. Super. 419, 119 A.2d 172 (App. Div. 1955).

70. Id.

71. N.J. Stat. Ann. § 34:15-1 (2000)

72. N.J. Stat. Ann. § 34:15-8 (2000); Kristiansen v. Morgan, 153 N.J. 298, 708 A.2d 1173 (1998), modified, 158 N.J. 681, 730 A.2d 1289.

73. DeFigueiredo v. U.S. Metals Refining Co., 235 N.J. Super. 407, 563 A.2d 50 (App. Div. 1989); Doe v. St. Michael's Med. Ctr., 184 N.J. Super. 1, 445 A.2d 40 (App. Div. 1982).

74. Ramos v. Browning Ferris Industries of South Jersey, Inc., 103 N.J 177, 510 A.2d 1152 (1986); Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129, 650 A.2d 808 (App. Div. 1994),aff'd, 143 N.J. 141, 669 A.2d 816 (1994).

75. Hopkins, 132 N.J. 426.

76. Id.

77. Berrios v. UPS, 265 N.J. Super. 436, 627 A.2d 701 (Law Div. 1992).

78. Hopkins, 132 N.J. 426.

79. Endre, 300 N.J. Super. 136; Hopkins, 132 N.J. 426.

80. Hopkins, 132 N.J. 426; Diglio v. Jersey Cent. Power & Light Co., 39 N.J. Super. 140, 144, 120 A.2d 650 (App. Div. 1956).

81. Vega by Muniz v. Piedilato, 154 N.J. 496, 713 A.2d 442 (1998); Mancuso v. Klose, 322 N.J. Super. 289, 730 A.2d 911 (App. Div. 1999).

82. Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 688 A.2d 1018 (1997); Hopkins, 132 N.J. 426.

83. Clohesy, 149 N.J. 496; Gaita v. Laurel Grove Cemetery Co., 323 N.J. Super. 89, 731 A.2d 1245 (Law Div. 1998).

84. Id.

85. N.J. Stat. Ann. § 2A:22A-4. (1987)

86. N.J. Stat. Ann. § 2A:22A- 5(b) (1987): "A licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor."

87. N.J. Stat. Ann. § 2A:22A-5 (1987); Showalter v. Barilari, Inc., 312 N.J. Super. 494, 712 A.2d 244 (App. Div. 1998).

88. N.J. Stat. Ann. § 2A:22A-6 (1987); Steele v. Kerrigan, 148 N.J. 1, 689 A.2d 685 (1997); Lee v. Kiku Restaurant, 127 N.J. 170, 603 A.2d 503 (1992).

89. Fisch v. Bellshot, 135 N.J. 374, 640 A.2d 801 (1994).

90. N.J. Stat. Ann. §§ 2A:15-5.6 & -5.8 (2000 Supp.); Steele, 148 N.J. 1.

91. People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 495 A.2d 107 (1985); Bahrle, 279 N.J. Super. 5.

92. Easling v. Glen-Gery Corp., 804 F. Supp. 585 (D.N.J. 1992); Alloway v. General Marine Indust., L.P., 149 N.J. 620, 695 A.2d 264 (1997); Spring Motors Distributors, 98 N.J. 555; Goldson v. Carver Boat Corp., 309 N.J. Super. 384, 700 A.2d 193 (App. Div. 1998).

93. New Jersey Rule of Court 4:5-8. (2000)

94. Gennari v. Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350 (1997); Bell Atlantic Network Services, Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 730 A.2d 406 (App. Div.), cert. denied, 162 N.J. 130, 741 A.2d 98 (1999).

95. Nolan by Nolan v. Lee Ho, 120 N.J. 465, 577 A.2d 143 (1990); see Stamato & Co. v. Borough of Lodi, 4 N.J. 14, 71 A.2d 336 (1950) (non-breaching party is relieved of its obligations under the agreement because of breach of material term by other party).

96. Jewish Center of Sussex County v. Whale, 86 N.J. 619, 625, 432 A.2d 521 (1981).

97. Id.

98. Karu v. Feldman, 119 N.J. 135, 574 A.2d 420 (1990); Rosenblum v. Adler, 93 N.J. 324, 461 A.2d 138 (1983); Kuhnel v. CNA Ins. Companies, 322 N.J. Super. 568, 731 A.2d 564 (App. Div. 1999).

99. Karu, 119 N.J. 135.

100. N.J. Stat. Ann. § 56:8-2, et seq. (1989); Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454 (1994).

101. N.J. Stat. Ann. § 56:8-3.

102. N.J. Stat. Ann. § 56:8-19; Gennari, 148 N.J. 582; Cox, 138 N.J. 2.

103. Gennari, 148 N.J. 582.

104. N.J. Stat. Ann. § 2A:14-1 (1987); D'Angelo v. Miller Yacht Sales, 261 N.J. Super. 683, 619 A.2d 689 (App. Div. 1993).

105. N.J. Stat. Ann. § 2A:15-5.9 et seq. (2000 Supp.) The Punitive Damages Act applies to all actions filed on or after February 26, 1996.

106. N.J. Stat. Ann. § 2A:15-5.14. (2000 Supp.)

107. N.J. Stat. Ann. § 2A:15-5.11. (2000 Supp.)

108. N.J. Stat. Ann. § 2A:15-5.12 (2000 Supp.). In determining whether punitive damages are to be awarded, the trier of fact must consider all the relevant evidence, including the following: (1) the likelihood at the relevant time that serious harm would arise from the defendant's action; (2) the defendant's awareness of reckless disregard of the likelihood that serious harm would arise from his 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 be the defendant. N.J. Stat. Ann. § 2A:15-5.12.

109. N.J. Stat. Ann. § 2A:15-5.13. (2000 Supp.)

110. N.J. Stat. Ann. § 2A:15-3. (1987 and 2000 Supp.)

111. N.J. Stat. Ann. § 2A:15-3 (1987 and 2000 Supp.); Smith v. Whitaker, 313 N.J. Super. 165, 713 A.2d 20 (App. Div. 1998), aff'd, 160 N.J. 221, 734 A.2d 243 (1998).

112. N.J. Stat. Ann. § 2A:31-4. (1987)

113. N.J. Stat. Ann. §§ 2A:31-1, 4, 5 (1987); Carey, 132 N.J. 44; Smith, 313 N.J. Super. 165.

114. Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980); Thalmon v. Owens-Corning Fiberglass Corp., 290 N.J. Super. 676, 676 A.2d 611 (App. Div. 1996).

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