BARBARA S. EBERT v. BRIAR KNOLL CONDOMINIUM ASSOCIATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5932-04T15932-04T1

BARBARA S. EBERT,

Plaintiff-Appellant,

v.

BRIAR KNOLL CONDOMINIUM ASSOCIATION,

Defendant-Respondent.

____________________________________

 

Argued October 3, 2006 - Decided November 20, 2006

Before Judges S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-82-04.

Mendel White argued the cause for appellant.

George A. Amacker argued the cause for respondent (David B. Wright & Associates, attorneys; Anthony P. Castellani, on the brief).

PER CURIAM

Plaintiff Barbara S. Ebert appeals from a summary judgment in favor of defendant Briar Knoll Condominium Association (the Association) dismissing Ebert's complaint. The motion judge concluded that Ebert failed to establish a prima facie case apportioning damages between those allegedly caused by the Association and those allegedly caused by various unrelated defendants in a federal court action brought by Ebert. Plaintiff contends that her injuries were unitary and, as a consequence, it was the Association that had the burden of proving apportionment. We affirm.

Ebert is the owner of a condominium unit at Briar Knoll Condominium, a sixty-eight unit development in the Township of Dover. Ebert's relationship with the Association and its management company has been acrimonious for some time. On or shortly after March 30, 2001, Ebert filed an action in lieu of prerogative writ in the Chancery Division against the Township of Dover and the Association, alleging violations of the approved site plan for Briar Knoll Condominium respecting handicapped parking spaces, which Ebert is entitled to use. She also alleged dangerous and defective conditions in the sidewalks, curbs, and roof. Ebert sought equitable and monetary relief.

Shortly after the prerogative-writ action was filed, Ebert began a civil rights action in the United States District Court for the District of New Jersey. Ebert was a member of the Toms River Fire Companies #1 and #2, which are supervised by Dover Township Fire District #1. In her April 25, 2001, complaint against all three entities as well as several individuals connected with them, Ebert alleged sex-based discrimination and a hostile work environment. She alleged that the discrimination began on December 30, 1998, and ended on March 6, 2001, when she was expelled from the fire companies. She also alleged that the federal-action defendants retaliated after she filed a complaint with the Equal Employment Opportunity Commission. Ebert sought "monetary compensatory damages, punitive damages, costs of suit and attorney'[s] fees."

Ebert moved to amend her prerogative-writ complaint on February 6, 2002, to allege personal injuries. At that time she provided the Association's attorney with a January 15, 2002, letter from her treating physician, Dr. Brad Hinkle. Dr. Hinkle's treatment began on May 23, 2001, two and a half months after the end of the alleged discrimination by the federal-action defendants. Dr. Hinkle opined that the stress Ebert was experiencing was a result of the events at the Briar Knoll Condominium:

Ms. Ebert has been under my care for post traumatic stress disorder, non-insulin dependent diabetes mellitus, osteoporosis, gastroesophageal reflux disorder, asthmatic bronchitis, degenerative joint disease, lumbar spinal stenosis and anxiety. She has been having problems with her neighbors in the condominium complex, and this has caused her an undue amount of stress. She has had to call the police several times and is presently trying to resolve these problems with the neighbors directly, with the landlord and with the Board of Directors of the apartment complex.

The above-mentioned problems with her neighbors have caused Ms. Ebert to have severe nervousness, sweating, near fainting spells, chest pain, palpitations, indigestion, poor appetite, heartburn, hair loss, muscle spasms of the neck and low back, fluctuating blood sugar levels and exacerbation of asthma symptoms.

Plaintiff was granted leave to amend her prerogative-writ complaint on February 26, 2002. She added a third count in which she alleged that the actions of the Association proximately caused plaintiff to sustain personal injury.

There was no allegation in the original discrimination complaint of any personal injury resulting from the alleged acts of discrimination. Nevertheless, plaintiff obtained a July 30, 2002, report from Dr. Hinkle, in which he opined that the stress she was experiencing was a result of the alleged acts of discrimination. The report in pertinent part follows:

I have been treating plaintiff since May 23, 2001 for arthritis, asthma, hypertension, non-insulin dependent diabetes mellitus, post traumatic stress disorder, generalized anxiety disorder, thoracic spinal stenosis, gastroesophageal reflux disorder, menopausal syndrome, psoriasis and osteoporosis.

As reported by the patient, she had many unfortunate incidents of improper behavior directed toward her at her volunteer activity as a fire police officer during the latter part of 1998, 1999 and into 2000. These acts against her caused increased amounts of stress and have caused her illnesses to be exacerbated. . . .

Upon a reasonable degree of medical certainty, these ailments were caused by the actions directed against Ms. Ebert at the Toms River Fire Company. I am still treating her and her symptoms have decreased in severity under my care. However, it is reported by the patient that these activities by the fire personnel continue to this time, and therefore stress and exacerbation have not been resolved.

Thus, although Ebert's association with the federal-action defendants had ostensibly ended on March 6, 2001, before Ebert began treating with Dr. Hinkle, he nonetheless ascribed all of the "exacerbations" he treated to the conduct of the federal-action defendants.

Both the federal and state actions proceeded simultaneously through pretrial discovery, but the Association was unaware of the federal action. Ebert's attorney, who represented her in both actions, did not disclose the federal suit when he certified on August 6, 2002, in a more definite statement of the third count of the prerogative-writ action "that the matter in controversy is not the subject of any other action pending in any other court." In that more definite statement of the third count, Ebert alleged that on June 29, 2000, the Association reconfigured the parking area by eliminating handicapped parking spaces, causing Ebert to suffer stress that exacerbated her physical ailments. Ebert also alleged that the occupants of Unit B-6 from February 2000 to 2001 were parking in handicapped spaces although they were not handicapped and that the Association took no action to prevent them from doing so, causing further injury to her. Ebert also alleged further tortious conduct in 2001 and 2002.

The Association discovered the divergent July 30, 2002, report from Dr. Hinkle by performing a computerized bodily injury index search, which revealed the federal action, and then serving a subpoena on the attorney for the federal-action defendants. The documents were produced to the Association on September 16, 2002, and supplied by the Association to Ebert's attorney on November 14, 2002.

In opposition to the Association's first, unsuccessful motion for summary judgment, Dr. Hinkle signed a certification dated November 20, 2003. In pertinent part, Dr. Hinkle certified:

Ms. Ebert was under stress from the actions of individuals in the volunteer fire company. However, her symptoms were exacerbated by the actions and inactions of the management of the condominium where she lived and lives. Based upon my records, the causative factors of her increased stress and symptoms w[ere] primarily that of the condominium management and her neighbors.

Dr. Hinkle opined that the removal of the handicapped parking spaces exacerbated the conditions with which Ebert was afflicted, as did the failure of the Association to remedy the conduct of Ebert's upstairs neighbors and their dog. He concluded:

[I]t is my opinion based upon a reasonable degree of medical probability that the actions and failure to act upon the part of the management and the Board of Ms. Ebert's condominium were a substantial cause of her increased symptoms and an exacerbation of her conditions that have been stated in paragraph 2 of this Certification.

On December 5, 2003, the third count in the prerogative writ action was severed by the chancery judge and transferred to the Law Division. A January 8, 2004, settlement conference did not result in the resolution of the third count.

Dr. Hinkle was deposed on September 23, 2004. He testified that he diagnosed post-traumatic stress disorder after numerous office visits with plaintiff and hearing her complaints about the harassment that she was getting from the people of the fire company and from the people that were at her apartment complex. Dr. Hinkle confirmed that there were two sets of causative factors related to the post-traumatic stress disorder, harassment at the fire company and harassment at her apartment complex. Asked if he had any way of breaking down how much of the post-traumatic stress disorder was due to harassment at the fire company as opposed to the apartment complex he replied, "No. In fact, I'm not sure of this, but I think that some of the people in her apartment complex may have worked for the fire company." When the question was repeated Dr. Hinkle testified:

No. She stated that she had worked for the volunteer fire company, and she had problems there, and she subsequently left there. But, she was still under a lot of stress at the apartment complex, and felt that this was secondary to some of the spill over from the fire company, that those people were still harassing her at the apartment.

The doctor testified that the complaints plaintiff made in this regard were noted in his records on December 19, 2001, about nine months after she had been terminated from the fire company. The doctor also testified that plaintiff developed a number of stress-related medical conditions from which she did not suffer at the time he began treating her, which was shortly after the termination of her work at the fire company. For example, in October 2001, the doctor diagnosed gastroesophageal reflux disorder for which he prescribed medication. He testified that that condition can be caused by a number of conditions, including stress. In addition, in December 2001, Dr. Hinkle diagnosed plaintiff with an anxiety disorder which he attributed to her perception that she was being terrorized. The doctor further testified that plaintiff was having spasms in her lower back secondary to the stress, which was a flare-up of back pain plaintiff had not been experiencing between May and December 2001.

The November 20, 2003, certification supplied by Dr. Hinkle was the subject of examination at his deposition. The following testimony was elicited:

Q. Again, are you able to differentiate between the stress and the symptoms she suffered as a result of the fire company harassment, as opposed to what was going on in her apartment complex?

A. No. It's just that the more recent problems were from the neighbors and from the management of the condominium not doing anything to rectify those problems.

Q. Okay. Well, when you say more recent, what time frame are you talking about?

. . . .

A. [B]etween . . . 2002 and up until November of 2003, her main topics of conversation in the office visits were about the harassment at the apartment complex. I assumed that it was an ongoing thing, still from the fire company people, because I thought there was some cross over there. But, she was no longer working for the fire company, yet she was still being - having a lot of stress because of numerous problems at the apartment complex.

Thereafter, the Association moved for summary judgment, which was granted on April 20, 2005, on the ground that plaintiff had not met her burden of apportioning her injuries between the claims made in the state and federal actions. Reargument was denied on July 26, 2005, and this appeal followed. Dr. Hinkle's two reports, his certification, and his deposition testimony were the predicate for the summary judgment.

The trial judge issued a written opinion on April 19, 2005, in which he noted that Dr. Hinkle stated in his deposition that "he was unable to differentiate between the stress and the symptoms she suffered as a result of the fire company harassment as opposed to what is going on at her apartment complex." Citing Reichert v. Vegholm, 366 N.J. Super. 209 (App. Div. 2004), the judge observed that the general rule requiring an injured person to prove proximately caused damages "does not change when the Plaintiff's injuries or conditions are aggravated by a subsequent accident." The judge rejected Ebert's argument that she suffered a unitary harm that would cause the burden of allocating injuries to shift to defendants. The court noted that O'Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corp. of Am., 361 N.J. Super. 264 (App. Div. 2003), certif. denied sub nom., O'Brien (Newark) Cogeneration, Inc. v. Hawker-Siddeley, Inc., 178 N.J. 452 (2004), applied this concept only where there was a unitary harm caused by concurrent wrongs. Because Ebert did not bring her claims against the federal defendants in the state action, the judge concluded that there were no concurrent defendants who could be held liable to Ebert, so he dismissed her personal injury claims.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) outlined the standard for deciding a summary judgment motion:

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

"If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. On appeal, we apply the same standard as the trial court. Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

As a general rule, a personal-injury plaintiff bears the burden to prove that the defendants' negligence proximately caused the injuries and damages claimed by plaintiff. Paxton v. Misiuk, 34 N.J. 453, 463 (1961); Restatement (Second) of Torts, 433B(1) (1965). Courts in our state have favored "[a]pportionment of damages based on causation." Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 55 (App. Div.) (citations omitted), certif. denied, 165 N.J. 138 (2000). Of course, a defendant is not responsible for pre-existing injuries. O'Brien, supra, 361 N.J. Super. at 274.

[I]n a routine personal injury aggravation claim, we do not shift the burden to defendants and to prevail, plaintiffs must separate those damages caused by a particular defendant's negligence from any prior or post injuries or conditions. Therefore, the routine aggravation of personal injury or condition case represents the normal rule . . . that plaintiffs must prove what damages a particular defendant caused.

[Id. at 274-75 (citations omitted).]

We recognized in O'Brien that the burden of proving apportionment of injuries was sometimes shifted to a knowledgeable defendant who had more expertise or better access to relevant apportionment proofs in order to avoid dismissal of the claims of a completely innocent plaintiff who had clearly suffered some injury clearly caused by defendant. Id. at 275. We also recognized that the apportionment burden was shifted "when innocent plaintiffs suffer a unitary harm caused by concurrent wrongs." Id. at 276. To summarize, we stated that "there are three factors present in the cases that shift the damage apportionment burden to defendants. These factors are plaintiff's innocence, more knowledgeable defendants, and a unitary harm caused by concurrent misconduct." Id. at 278. We found in O'Brien that the plaintiff was entirely innocent, that the defendants were more knowledgeable about the causes of the fire, that the fire destroying O'Brien's plant was a unitary harm, and that it was caused by concurrent misconduct. Id. at 279-80. As a consequence, we shifted the burden of apportionment of damages to the defendants. Id. at 280.

We have recognized that "it has not been easy to determine whether plaintiff or defendant should bear the burden of damage apportionment in specific cases." Reichert, supra, 366 N.J. Super. at 213. Where the defendants are no "more knowledgeable or better positioned to develop aggravation proofs" than the plaintiff, the apportionment burden should not be shifted. Id. at 219.

We also recognized that it is sometimes "difficult to discern a unitary harm" as distinguished from an "'incremental injury.'" Id. at 220-21 (citation omitted). Nevertheless, we found that where Reichert was involved in two accidents about one month apart but suffered the same injuries to the same body parts, the injuries were not unitary but incremental because the injuries from the second accident were superimposed over the injuries from the first accident. Id. at 223. We explained that "unitary injuries are those harms that by their nature are indivisible, such as quadriplegia, lung cancer, and death." Id. at 224.

Applying the foregoing principles to the facts most favorable to Ebert, even if we assume that Ebert is a completely innocent plaintiff, the Association is no more knowledgeable or better-positioned to develop aggravation proofs than Ebert. At best, Ebert and the Association are on an equal footing. In addition, the harm suffered by Ebert was not a unitary harm. Rather, it was a series of discreet incremental harms suffered over a lengthy period of time. Finally, the harms were, by and large, not concurrent. The federal-action defendants discrim-inated against Ebert between December 30, 1998, and March 6, 2001, and the conduct in which the Association allegedly engaged commenced in February 2000 and went through 2002. Although there is an overlap of about one year, that alone will not bring these facts within the scope of any burden-shifting rule.

Although this issue was not addressed directly by either party, we note that Dr. Hinkle did not review any of Ebert's prior medical records and was not her treating physician while the federal-action defendants were discriminating against her. His only knowledge of her condition prior to May 23, 2001, was what Ebert told him. Nor was Dr. Hinkle her treating physician during the first year of the alleged tortious conduct by the Association. He admitted that he was not in a position to render an opinion as to whether or not Ebert suffered any problems as a result of the incidents in June 2000 and, thus, the opinion he expressed in his January 15, 2002, report respecting the handicapped parking spaces was a net opinion bare of any evidential support.

In addition, it was undisputed that Ebert suffered from various pre-existing conditions that were not initially caused by any of the defendants, such as asthma. In a case where there is a claim of aggravation of a pre-existing condition, a plaintiff must separate the damages caused by the tort at issue from any prior injuries or conditions. Blanks v. Murphy, 268 N.J. Super. 152, 161-62 (App. Div. 1993); Goodman v. Fairlawn Garden Assocs., Inc., 253 N.J. Super. 299, 302 (App. Div.), certif. denied, 130 N.J. 7 (1992); Tisdale v. Fields, 183 N.J. Super. 8, 10-11 (App. Div. 1982).

Because Dr. Hinkle did not review Ebert's prior medical records, Ebert was never in a position to meet her burden to apportion her damages between those caused by the Association and the federal-action defendants and those pre-existing conditions that were not a result of any tortious or illegal conduct. O'Brien, supra, 361 N.J. Super. at 274-75 ("[I]n a routine personal injury aggravation claim, we do not shift the burden to defendants and to prevail, plaintiffs must separate those damages caused by a particular defendant's negligence from any prior or [subsequent] injuries or conditions.").

Affirmed.

 

The federal discrimination claims were settled for $50,000 in October 2002, after the July 30, 2002, report from Dr. Hinkle was supplied to counsel for the federal defendants.

The prerogative writ action was resolved by summary judgment dismissing plaintiff's complaint on July 5, 2005. The appeal from that judgment is also pending before us and is awaiting supplementation of the record.

(continued)

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A-5932-04T1

November 20, 2006