New Jersey Law Journal

VOL. 217 NO. 9 MONDAY, SEPTEMBER 1, 2014 TORT LAW Court Returns to Time-Honored Topic Of Proximate Cause in Med-Mal What happens when the conduct of both the physician and the patient tion was said to have been made worse by both her own aggravates a preexisting condition? conduct and the conduct of her physician. Ultimately, By William A. Krais and duties owed to third parties either the physician or the the Supreme Court set forth Pamela Kaplan by public employees, are dif- patient aggravates that exist- a road map for addressing ficult to overcome. Finally, ing condition. Charging a proximate causation in such uring the past year, the New Jersey Supreme DCourt issued relatively few decisions addressing torts and personal injury issues. Krais is a principal with Those few decisions, how- Porzio, Bromberg & Newman in Morristown, ever, returned to such time- N.J., representing honored topics as proximate individuals in medical cause in medical malprac- malpractice and serious tice cases, the extent of the personal injury cases in duty owed under the Tort both New Jersey and Claims Act and the defini- New York. Kaplan is an tion of pecuniary damages associate at the firm, under the Wrongful Death specializing in the de- Act. Additional tort cases fense of product liability, toxic tort and general were argued this spring, with liability matters. decisions expected soon. It is, of course, difficult to discern a pattern from just a handful of opinions, particu- larly from a court burdened by efforts to judicially expand jury in cases like these can cases. Along the way, the judicial vacancies and occu- the Wrongful Death Act will be challenging. Sometimes, court reminded trial judges pied by temporarily assigned be viewed with a critical eye. however, the conduct of both that jury charges must be tai- justices. That said, certain the physician and the patient lored to the facts of a particu- messages came across. For aggravates the patient’s pre- lar case, especially in com- example, jury charges should Medical Malpractice: existing condition. Crafting a plicated matters where the relate to the facts and legal Preexisting Condition Jury jury charge in those cases can parties have offered compet- theories presented in a par- Charge be overwhelming. ing and alternative theories of ticular case, and not simply Such was the situation liability. restate the model charge. In Frequently, a patient facing the Supreme Court In Komlodi, a physician addition, protections afforded presents to a physician in Komlodi v. Picciano, 217 prescribed a Duragesic patch under the Tort Claims Act, with an existing condition. N.J. 387 (2014), where the for back pain to a patient especially relating to the Occasionally, the conduct of plaintiff’s preexisting condi- known to abuse drugs and

Reprinted with permission from the SEPTEMBER 1, 2014 edition of New Jersey Law Journal. © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. 217 N.J.L.J. 699 N.J. SUPREME COURT YEAR IN REVIEW, SEPTEMBER 1, 2014 2 TORT LAW alcohol. The Duragesic patch, which is the lost chance of recovery. Model Jury Division reversed, holding that both the applied to the skin, releases the powerful Charge 5.50E, commonly referred to as Scafidi preexisting condition charge and pain medication Fentanyl over the course the Scafidi charge, is meant to incorporate the superseding/intervening cause charge of 72 hours. The medication released by these issues. were inappropriate. Specifically, the court the patch is the equivalent of 80 Percocets, Additionally, in order to account for observed that the defendant was not enti- and is only intended to be used in cases the role that the plaintiff played in her tled to a Scafidi charge because she did of severe pain, where other forms of own injury, the trial court charged the not identify a pre-existing condition and medication are ineffective. The physician jury on superseding/intervening causa- its normal consequences. In addition, the contended that the patient’s alcohol and tion and avoidable consequences. The court found that the superseding/interven- drug abuse played a role in the prescrip- court did not, however, charge the jury ing cause charge should not have been tion of this particular medication, as the on comparative negligence, stating that given along with the foreseeability charge, patch was seen as the safest route to pain the superseding/intervening and avoidable because, if the plaintiff’s act was foresee- relief for a known drug abuser. However, consequences charges properly accounted able to the physician, then it could not instead of using the patch as directed, the for the plaintiff’s potential role in her own have been a superseding or intervening patient orally ingested it, which resulted injury. cause. At this point, the defense appealed. in severe and permanent brain damage due Comparative negligence applies when The Supreme Court affirmed, modi- to a Fentanyl overdose. the plaintiff’s own negligence occurs fied the Appellate Division’s ruling, and The woman’s mother, her daughter’s before or concurrent with the defendant’s remanded for a new trial. In doing so, the guardian, sued the physician, alleging conduct. In such cases, the jury considers court first ruled that the Scafidi charge that the physician failed to protect a whether the plaintiff was also negligent was inappropriate under the circumstanc- known drug and alcohol abuser from self- and, if so, compares the extent of the es. In the typical Scafidi-type case, the injurious behavior. The plaintiff claimed plaintiff’s negligence with the defendant’s progression of the preexisting condition that the defendant’s prescription of the negligence. If the jury finds that the will occur regardless of the plaintiff’s Duragesic patch failed to account for the plaintiff’s negligence exceeds 50 percent, conduct. The defense is obligated to iden- risk that the plaintiff would abuse the nar- then the plaintiff is barred from recovery. tify the preexisting condition and offer cotics she had been prescribed. The phy- Superseding/intervening acts are unfore- proof that the condition contributed to the sician countered that she chose the best seeable acts that break the “chain of plaintiff’s outcome. The defense did not option from among several bad options, causation” linking the defendant’s wrong- do that here. In addition, by following the and if she had done nothing, the plain- ful conduct and the plaintiff’s injury. defense argument that the plaintiff’s own tiff likely would have continued using Cowan v. Doering, 111 N.J. 451, 465 conduct increased the risk of harm, the drugs that she had procured on her own (1988). The doctrine of avoidable conse- trial court blurred the distinction between to relieve her pain. The result, according quences applies when the plaintiff’s own the preexisting condition charge and the to the defense, would have been the same negligence occurs after the defendant’s charges relating to superseding/interven- with or without the prescription of the conduct. It is not a defense to liability, ing cause and avoidable consequences, Duragesic patch. but may mitigate damages. The Supreme because the preexisting charge does not At the conclusion of the case, the Court previously cautioned that compara- account for the plaintiff’s own conduct. trial judge charged the jury regarding tive negligence does not apply when either Finally, the trial court failed to reference causation with the “preexisting disease or the doctrine of avoidable consequences or the specific facts of the case in its Scafidi condition” charge pursuant to Scafidi v. preexisting condition applies. Ostrowski charge, contrary to the instructions that Seiler, 119 N.J. 93 (1990). When a patient v. Azzara, 111 N.J. 429, 441 (1988). An accompany Model Jury Charge (Civil) is treated for a preexisting condition and a important distinction between the doc- 5.50E. 217 N.J. at 413-17. physician’s negligence is alleged to have trine of preexisting condition and the The court next decided that the worsened that condition, the jury must doctrines of comparative fault, avoidable superseding/intervening cause charge decide whether the negligent treatment consequences and superseding/interven- was appropriate. The jury would have to increased the risk of harm posed by the ing cause is that preexisting condition determine whether the patient’s improper preexisting condition and, if so, whether does not involve the patient’s fault. ingestion of the Duragesic patch, given the increased risk was a substantial fac- The jury in Komlodi returned a her long history of illicit drug use, was tor in causing the ultimate harm. If the defense verdict, finding that, while the foreseeable to the defendant. If so, then plaintiff satisfies her burden as to these physician deviated from accepted stan- the physician may be liable for prescrib- first two elements, then the burden shifts dards of medical care, and that deviation ing the patch to a patient with such a his- to the defendant to prove which damages increased the risk of harm from the plain- tory. If not, then the physician may avoid are attributable to the preexisting condi- tiff’s preexisting condition, the increased responsibility for the plaintiff’s harm. tion, as opposed to the physician’s negli- risk was not a “substantial factor” in However, the court noted, the trial court gence. The harm caused by the aggrava- causing the plaintiff’s injury. The plaintiff failed to “mold its instructions to the facts tion of the pre-existing condition due to appealed. of this case.” 217 N.J. at 420. The court the physician’s negligence is the value of In a split decision, the Appellate continued: “Juries must know how the 3 N.J. SUPREME COURT YEAR IN REVIEW, SEPTEMBER 1, 2014 217 N.J.L.J. 699 TORT LAW legal instructions are to be applied to the hours. features or characteristics of the property, complex factual scenarios before them, In Robinson, the plaintiff was walk- not to activities conducted on the property. and the instructions must be clear and ing from her home to a nearby diner on Therefore, the Tort Claims Act did not understandable.” In this case, the court a Saturday. In doing so, the plaintiff cut provide the basis for a claim. Second, the held, “[t]he jury charge failed to give the through the property of a neighboring trial court noted that the principal neither jury the guidance it needed to sort through school, which was closed at the time. The owned, controlled, nor harbored the dog the complex issues….” 217 N.J. at 420. school principal was not on the school that attacked the plaintiff, distinguishing Finally, the Supreme Court agreed property at the time. As the plaintiff this situation from Benjamin v. Corcoran, that the trial court appropriately charged walked across the school property, an 268 N.J. Super. 517 (App. Div. 1993). In the jury as to the doctrine of avoidable unleashed dog came upon the property, Benjamin, a dangerous dog bit a young consequences. However, that charge, too, attacked and bit her. The dog’s owner girl on the grounds of a public facil- failed to account for the “special circum- lived next to the school. ity. The dog was owned by the facility’s stances of this case,” specifically, “how About a week prior to this inci- superintendent, who was also on notice plaintiff acted in light of her drug and dent, the school principal received a letter of the dog’s dangerous characteristics. In alcohol addiction,” and “whether, and to advising him that this dog was unleashed Benjamin, therefore, the defendant was what degree, the plaintiff had the capacity and had attacked others on school prop- under a duty to prevent further injuries to to act responsibly to care for herself in erty. While the principal did not contact anyone who lawfully entered the grounds light of her health or mental condition.” the police or animal control in response to of the public facility. Those same factors, 217 N.J. at 420-21. The court then recom- this letter, he had notified animal control however, were not present in the Robinson mended a lengthy charge that set forth the concerning other instances of unleashed case. parties’ contentions, the relevant facts and or unattended dogs on school property. The plaintiff appealed the grant the appropriate legal standard. On those prior occasions, animal control of summary judgment. The Appellate In ordering a new trial, one may argue responded to the calls. Division reversed, finding that the prin- that the Supreme Court simply reiter- The plaintiff sued the school prin- cipal had a duty “to address a known ated principles previously stated in cases cipal, the school board (alleging that danger from the dog to people who come such as Scafidi, Ostrowski and Cowan. In the board was vicariously liable for the onto the property.” 217 N.J. at 205. The another respect, however, the court made conduct of the principal) and the owner court drew no distinction between the clear its preference for jury charges that of the dog (claiming that the dog’s owner principal’s obligation to address the pres- are specifically tailored to the facts of the was strictly liable for its dangerous con- ence of a stray dog on the school premises case. The charges are not to be given in a duct). The plaintiff claimed first that the during the school day, and an obligation to vacuum, or provide a sterile recitation of principal was responsible for the safety of protect those who come onto the property the relevant legal principles. Instead, “the others while they are on school property. at other times. As a result, the Appellate jury charge must explain the parties’ legal The plaintiff also claimed that because Division concluded that a jury could find theories and the proofs in relation to the the principal knew this dog had been that the principal “had a duty to contact governing law.” 217 N.J. at 423. In simi- unleashed on school property and attacked the police or the animal control officer to larly complex matters, therefore, the trial others previously, he was obligated to take request that the dog be removed because judge must “tailor the legal theories and steps to prevent against attacks by the dog of its dangerous propensity to escape and facts to [relevant] law” when charging a as part of his supervisory responsibilities attack people on or near the school prop- jury. 217 N.J. at 417. of the property. The plaintiff contended erty, and that his failure to do so was a that if the school principal had taken cor- proximate cause of plaintiff’s injury.” 217 Tort Claims Act: Duty Owed by Public rective measures when he learned about N.J. at 206. Employee to a Third Party the dangerous, unleashed dog on the Thereafter, the defendant petitioned school property, this incident would have the Supreme Court for certification, Usually, the scope of a school prin- been avoided. Thus, the plaintiff alleged and the court reversed. In doing so, the cipal’s duty to protect others is clearly that the principal breached his duty, even Supreme Court considered two issues: delineated. It is obvious, for example, that to a third party such as the plaintiff. first, whether the plaintiff’s harm was a principal has the duty to protect stu- The principal moved for summary foreseeable to the principal, and second, dents in the school during school hours. judgment, arguing that he owed no duty to whether recognition of a duty comports How far that duty extends, however, is the plaintiff, a trespasser on school prop- with considerations of fairness and public open to interpretation, especially when erty at a point in time when the school policy. With regard to foreseeability, the accounting for New Jersey’s Tort Claims was closed and the principal was not even court noted both that the principal was not Act, N.J.S.A. 59:1-1, et seq. In Robinson there. The trial court granted the princi- in a position to exercise control over the v. Vivirito, 217 N.J. 199 (2014), the New pal’s motion, holding first that N.J.S.A. dog and his inability “to monitor conduct Jersey Supreme Court considered whether 59:4-2, which permits liability of a public on or near school grounds” after hours. that duty extends to a third party who is entity for a dangerous condition on a pub- These factors “foreclosed [the principal’s] injured on school property after school lic property, refers only to the physical ability to undertake any action to protect 217 N.J.L.J. 699 N.J. SUPREME COURT YEAR IN REVIEW, SEPTEMBER 1, 2014 4 TORT LAW anyone who traversed school grounds and party that caused the decedent’s death, expectancy tables, the decedent probably his ability to appreciate the foreseeability just as the decedent could do had he or she would have survived until 2009 or 2010, of any harm” to the plaintiff. 217 N.J. at survived. In such cases, however, the sur- and if he had, the estate’s tax liability 213. vivors’ recovery is limited to their pecuni- would have been much less or none at all. In addition, the court found that pub- ary injuries, or economic losses caused Therefore, the decedent’s premature death lic policy did not impose a duty here, by the decedent’s premature death. Such led to the estate sustaining significant because there was no relationship between pecuniary injuries take various forms. For economic losses. Specifically, the differ- the plaintiff and the school. The plaintiff example, survivors may claim lost income ence between the estate’s tax liability at was not a student, nor was she invited because the decedent is no longer alive the time of death, and the tax liability, if onto the property. She was, the court and able to work and contribute financial- any, at various points in the future, the noted, “a trespasser.” While the risk of ly to the survivors. The survivors may also plaintiffs claimed, constituted pecuniary attack by a dangerous, unattended dog is claim that the decedent is no longer able injuries to which they were entitled under significant, the legislature addressed that to provide services, society, companion- the Wrongful Death Act. risk by imposing strict liability against ship, guidance and advice to them. Such The trial court rejected this claim and dog owners for harm caused by their dogs. nonmonetary losses are frequently valued granted the defendants’ motion to dismiss See N.J.S.A. 4:19-16. The legislature rec- by economists retained in a litigation, and and for summary judgment. The Appellate ognized that a dog’s owner is in the best converted into a dollar figure. Division reversed, holding that the estate position to minimize risk of harm. As a The plaintiffs in Beim v. Hulfish, 216 taxes constitute pecuniary injuries under result, the court acknowledged that a duty N.J. 484 (2014), sought to expand the defi- the act. The Supreme Court granted the of care should not be imposed on someone nition of pecuniary injuries. They claimed defendants’ petition for certification. such as the school principal who had no that losses to the estate in the form of The court reviewed the language and control over the dog’s actions at the time estate taxes that were greater when the policy underpinning the Wrongful Death of the attack. decedent died, due to the defendants’ neg- Act. The act permits a cause of action Under the facts present in Robinson, ligence, than they would have been even a provided the decedent would have had therefore, the court refused to impose a year later, constituted pecuniary damages. the basis for a claim had he survived. duty of care on the principal. “Absent Whether the Wrongful Death Act “autho- N.J.S.A. 2A:31-1. Put another way, “if some ability to control the behavior and rizes claims for damages in the form of the deceased could not have recovered location of the dog,” the court concluded, estate taxes paid by the decedent’s estate,” [had he survived], his beneficiaries may “imposition of a duty of care does not the Supreme Court noted, was an issue of not recover.” 216 N.J. at 499 (quoting foster the public interest. Rather, it ren- first impression. 216 N.J. at 489. Graf v. Taggert, 43 N.J. 303, 306 (1964)). ders the school defendants an insurer of In 2008, John Kellogg, then 97 years The court also noted that the act limits the the negligent behavior of others, which old, was a passenger in a car driven by decedent’s heirs to recovering only the is contrary to the purpose of the [Tort one defendant who collided with a car “pecuniary injuries resulting from such Claims Act].” 217 N.J. at 215. driven by another defendant. Kellogg was death.” N.J.S.A. 2A:31-5. Pecuniary dam- While the court’s conclusion is seriously injured and hospitalized. After ages include the economic contributions phrased narrowly (“we hold that the school he was discharged from the hospital to a of which the heirs have been deprived by principal had no duty of care to [the plain- rehabilitation center, he developed com- virtue of the decedent’s death. “An award tiff] under the facts of this case”), one can plications, was readmitted to the hospital, of damages in a wrongful death action easily envision how school authorities, and died soon after. is…a replacement for that which decedent and other public employees, may rely on After Kellogg died, the co-executors would likely have provided and no more. this decision to limit their duty to protect of his estate filed the appropriate estate The amount of recovery is based upon third parties unaffiliated with the school, tax returns. Under the law as it existed in the contributions, reduced to monetary its activities or its property, during off 2008, the estate paid nearly $1.2 million terms, which the decedent might reason- hours. This may impact, for example, in federal estate taxes. Thereafter, the ably have been expected to make to his or those who are injured using a school’s plaintiffs filed suit against the drivers on her survivors.” 216 N.J. at 501 (quoting athletic facilities or while congregating on behalf of the decedent’s estate, seeking Smith v. Whitaker, 160 N.J. 221, 231-32 school property after hours. damages under the Wrongful Death Act. (1999)). The contributions that constitute In the meantime, Congress amended pecuniary damages include future finan- Wrongful Death Act: Estate Tax Liability as the federal estate tax laws. Under the cial contributions the decedent was likely a Pecuniary Injury amended tax laws, had Kellogg lived until to make to his heirs, as well as the “lost 2009, the estate would have owed less than ‘value’ of services such as companion- In a wrongful death case, the dece- half the amount of taxes it paid in 2008. If ship and care…and the loss of advice, dent’s survivors may bring a claim under Kellogg lived until 2010 or thereafter, the guidance and counsel.” 216 N.J. at 502 the Wrongful Death Act. N.J.S.A. 2A:31- estate would have owed no federal estate (quoting Johnson v. Dobrosky, 187 N.J. 1 to 2A:31-6. The act allows the survivors taxes. The plaintiffs argued that had it not 594, 609 (2006), citing Green v. Bittner, to bring a negligence claim against the been for the car accident, based on the life 85 N.J. 1 (1980)). 5 N.J. SUPREME COURT YEAR IN REVIEW, SEPTEMBER 1, 2014 217 N.J.L.J. 699 TORT LAW

Compared to these categories of eco- to note in their inspections that there was witness must be peculiarly within one par- nomic losses, the court observed that no sprinkler system in the storage closet ty’s control, such that the other party would plaintiffs’ proposed estate tax damages underneath the stairwell where the plain- not be able to call him or her if desired. are “starkly different.” 216 N.J. at 505. tiff’s suite was located. While National Second, the witness must be available, both There is no relationship to the federal Fire Protection Association (NFPA) regu- practically and physically. Third, the court estate taxes and “the financial support or lations established standards for inspect- must consider whether the testimony will the services that a decedent would have ing and maintaining sprinkler systems, elicit relevant and critical facts at issue. provided to his or her heirs had he or she those regulations did not explicitly require Fourth, the court must decide whether the survived.” The court further noted that that there be a sprinkler in the storage testimony appears to be superior to other “plaintiffs’ damages theory is premised closet. The plaintiff, however, presented testimony on the fact at issue. not on the contributions that [the dece- testimony that the standard of care in the According to the Appellate Division, dent’s] heirs would have enjoyed during industry, in fact, required a sprinkler in the the instruction on the adverse inference his continued lifetime, but on the tax storage closet. was in error, because, while the witnesses benefits that they would have achieved as The trial court granted summary judg- were available physically and practically, a result of his deferred death.” 216 N.J. ment to the defendants, finding that their and their testimony likely would have at 505. This, the court held, counters the compliance with the NFPA regulations elicited relevant facts at issue, the other legislature’s intent and the ample case law was sufficient to show that they had not two factors were not present. Therefore, upon which damages in wrongful death acted negligently. The plaintiff appealed, the Appellate Division held that the trial cases have been based. and the Appellate Division reversed, court should not have given the adverse While the Supreme Court has not explaining that compliance with safety inference charge. In giving the charge, the shied away from an expanding the regulations alone is not dispositive on court noted that the defendant’s case was Wrongful Death Act (see, e.g., Green v. the issue of negligence, and the standard palpably harmed because the instruction Bittner, 85 N.J. 1), the court’s clear man- should be one of reasonable care, which gave authority to the plaintiff’s argument date in Beim is that such losses must be is a fact question for a jury. about the missing witnesses, and created based on the contributions the decedent unfair prejudice against the defendants. would have made while alive, and not the • Adverse inference when a party fails estate’s tax liability associated with his to call a medical expert • Scope of remand for new trial premature death. In Washington v. Perez, an auto acci- In Henebema v. South Jersey dent case, the plaintiff alleged that the Transportation Authority and New Jersey Pending Decisions defendant had negligently operated his bus, State Police, the issues before the Supreme causing the plaintiff’s injuries. The plain- Court include: (1) defining the act of a In addition to the opinions summa- tiff sued the bus driver as well as the bus public entity as either ministerial or dis- rized above, the New Jersey Supreme company. The defense retained two medi- cretionary, thus impacting the standard Court has heard argument in a handful of cal experts whose reports were produced of care; and (2) whether a retrial should other tort/personal injury cases. Decisions during discovery. However, the defense involve both causation and damages, or in those cases are expected soon. Some of did not call either expert to testify at trial. just damages. the more significant matters include the Upon the plaintiff’s request, the trial court The underlying suit involved a series following: instructed the jury that if they found that of auto accidents that occurred during the medical experts were witnesses who poor weather conditions on the Atlantic • Complying with a federal regulation naturally would be expected to testify at City Expressway. As a result of the acci- as setting the appropriate standard of care trial, the jury could draw an adverse infer- dents, the plaintiff lost her leg. She sued In Wayne Davis v. Brickman ence that their testimony would have been the South Jersey Transportation Authority Landscaping, a wrongful death suit result- unfavorable for the defense from the fact and the New Jersey State Police, alleg- ing from a fire in a hotel, the central issue that they were not called to testify. The ing that emergency personnel were not before the court is whether a federal jury returned a verdict for the plaintiff, properly dispatched to the scene of the regulation can serve as the defendant’s awarding damages for pain, suffering and accident, and that state resources were standard of care. economic losses. improperly allocated during this emergent A cigarette ignited the fire in a hotel The defendants appealed, claiming situation. where the plaintiff and her two children that the trial court improperly gave the At trial, the judge instructed the jury were staying, trapping them in their suite. adverse inference charge. The Appellate that the acts of the public entity defen- Tragically, both children died, and the Division agreed, reversed the jury verdict dants were ministerial in nature and, as plaintiff sustained serious injuries. The and remanded for a new trial. In doing a result, pursuant to the New Jersey Tort plaintiff sued numerous parties, including so, the Appellate Division outlined the Claims Act, the standard of care to apply those that had inspected the sprinkler sys- four factors that courts have considered to their conduct was one of ordinary negli- tem, alleging that the defendants violated in deciding whether an adverse inference gence. The jury found that the defendants the industry standard of care by failing charge is appropriate. First, the uncalled were negligent and awarded the plaintiff 217 N.J.L.J. 699 N.J. SUPREME COURT YEAR IN REVIEW, SEPTEMBER 1, 2014 6 TORT LAW over $8 million in damages. The Appellate on the issue of liability alone. Because the issue as to whether the standard of care Division reversed, finding that it was question of damages was separate from should be ordinary negligence or palpably for the jury, not the court, to determine the issue of liability, the court found that unreasonable conduct is separable from whether the acts in question were “min- a new trial on damages was not warranted. all other issues, and, as a result, only this isterial” or “discretionary,” in which case The Supreme Court is considering one narrow question should be presented the standard of care under the Tort Claims whether, during the retrial, issues relat- at retrial. Act would be “palpably unreasonable,” ing to proximate cause and comparative With opinions in these cases still to a much higher burden for the plaintiff to negligence must be re-litigated. At oral come in the Supreme Court’s final weeks meet. The Appellate Division held that by argument, defendant South Jersey Transit of its term, the court’s work in the areas taking the question away from the jury Authority argued that these issues are not of tort and personal injury law remains and instructing only as to ordinary negli- separable from the question of the stan- unfinished. Without question, however, gence, the trial court committed reversible dard of care, and thus must be tried again. these decisions will impact trial strategy error. The Appellate Division remanded The plaintiff, however, stated that the for both plaintiffs and defendants. ■