A Warning to Appellate Lawyers From Judge Fuentes

Walters v. YMCA, 437 N.J. Super. 111 (App. Div. 2014).  This decision by Judge Fuentes, issued today, reverses a grant of summary judgment in favor of the YMCA in what Judge Fuentes called a “garden variety slip and fall case.”  Plaintiff had slipped on a step and fallen while walking to use the YMCA’s indoor pool.  He asserted that the stair tread had been negligently maintained.  Relying on a broad “hold harmless” provision in plaintiff’s membership agreement, which stated that the YMCA “will not be responsible for any personal injuries or losses sustained by me while on YMWCA premises or as a result of a YMWCA sponsored activities [sic],” the YMCA obtained summary judgment in the Law Division.  That court believed that the Supreme Court’s opinion in Stelluti v. Casapenn Enterprises, Inc., 203 N.J. 286 (2010), controlled the case.  Stelluti, however, upheld a hold harmless on facts that involved an injury from “inherently risky,” strenuous activities at a health club.  Here, in contrast, plaintiff’s injury from the allegedly negligently maintained step “was not caused by or related to an inherently risky physical fitness activity,” but “could have occurred in any business setting.”  Judge Fuentes concluded that the hold harmless in this case was unenforceable as against public policy, since it allowed the YMCA to “shield itself from all civil liability, based on a one-sided contractual arrangement that offers no countervailing or redeeming societal value.”  Accordingly, the panel reversed the summary judgment in favor of the YMCA.

But that did not end the opinion.  Judge Fuentes felt compelled to note “appellant’s counsel’s complete disregard of Rule 2:6-2(a)(4),” which requires that a brief contain a concise statement of the material facts, “in the form of a narrative chronological summary incorporating all pertinent evidence ….”  This plaintiff’s Statement of Facts consisted of a single sentence saying that plaintiff slipped and fell due to a defective stair riser, followed by a reference to three appendix pages that contained surgical records and a picture of a scar on plaintiff’s knee.  Judge Fuentes observed that all judges have been lawyers for at least ten years before taking the bench and sympathized with the burdens on lawyers.  But that did not excuse compliance with the Court Rules:

“No matter how long we have held this Constitutional office, none of us ever forget how hard we worked when we practiced law, the emotional toll our career exacted on us personally and on our loved ones, and the economic pressure involved in managing the business side of a law office.  However, both lawyers and judges have a common obligation to discharge the respective obligations of our office, ever mindful of our ethical duty to uphold the highest possible standards of the legal profession.  The kind of shoddy work presented by appellant’s counsel here diminishes our profession and must be condemned as unacceptable in the strongest possible terms.”  The panel considered imposing a monetary sanction but decided not to do that, “hoping the strongly worded message we deliver here will produce the same deterrent effect.”

There was a time, in the 1970’s and 1980’s, when the Appellate Division fairly often issued opinions that criticized, or even sanctioned, counsel who did not comply with the appellate Court Rules.  Judge Fuentes cited one such opinion, Miraph Enterprises, Inc. v. Bd. of Alco. Bev., Paterson, 150 N.J. Super. 504 (App. Div. 1977) (sanctioning counsel $100 for violating Rule 2:6-2), in his opinion today.  See also In re Tenure Hearing of Cowan, 224 N.J. Super. 737 (App. Div. 1988) (warning of sanctions or dismissal for violating Rule 2:6-2, where party filed a brief twice as long as permitted by Rule); Hayling v. Hayling, 197 N.J. Super. 484 (App. Div. 1984) (affirming decision below where appellant’s brief did not comply with Rule 2:6-2); Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282 (App. Div. 1984) (dismissing appeal for numerous violations of the appellate rules regarding both briefs and appendices).  It has been awhile since such opinions were issued with any regularity.  This opinion serves notice, however, if notice were needed, that the Appellate Division will not countenance violations of the appellate rules, and that sanctions may be imposed on those who violate those rules after having been warned by this decision.