Background
In 2015, NJ American Water (NJAW) purchased property on Lake Street in the Borough of Haddonfield. Among the features of that property was a large black oak tree. In May 2020, plaintiff Brenda Zadjeika contacted Haddonfield’s public works superintendent to report her concerns about the tree’s condition. The superintendent informed her that the Borough bore no responsibility for trees on private property. Approximately one month later, during a derecho storm in June 2020, the black oak fell from NJAW’s property and struck a pin oak tree located on the curb adjacent to plaintiff’s home. Both trees then collapsed onto her residence, forcing plaintiff and her daughter to relocate.
In April 2021, plaintiff filed suit against NJAW for negligence and negligence per se, and against the Borough of Haddonfield and the Haddonfield Shade Tree Commission (HSTC) under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The motion judge granted summary judgment to the Haddonfield defendants in February 2023, finding the Borough immune from liability under multiple TCA provisions and that plaintiff had failed to establish a permanent loss of bodily function sufficient to support pain and suffering damages. The remaining claims against NJAW proceeded to a six-day jury trial in 2024. The jury returned a verdict of $173,000, awarding $48,000 for dwelling property damages, $50,000 for loss of use, and $75,000 for quality of life and pain and suffering, but awarded nothing for personal property damages. Following the verdict, the trial court denied plaintiff’s motions for additur and a new trial, and entered an amended judgment of $186,298.73. Plaintiff appealed on multiple grounds; NJAW cross-appealed the admission of certain lay witness testimony.
The Court’s Holding
The Appellate Division affirmed on all issues. As a threshold matter, the court addressed the scope of plaintiff’s appeal in light of her acceptance of payment on the judgment. Applying the voluntary acceptance doctrine from Tassie v. Tassie and Adolph Gottscho, Inc. v. Am. Marking Corp., the court held that plaintiff was precluded from raising issues that could invalidate or reduce the existing damages awards, but that she could pursue arguments that might increase her total recovery or reinstate additional theories of liability. The court then rejected each of plaintiff’s substantive claims in turn.
On the evidentiary issues, the court found no plain error in the trial court’s admission of testimony about plaintiff’s insurance coverage, noting that plaintiff herself had introduced the subject at trial and thereby opened the door to cross-examination on that topic. The court likewise found no error in permitting defendant’s tree expert to testify about PSE&G’s role in managing the black oak tree’s canopy near electrical lines, as plaintiff failed to object at trial. The court rejected plaintiff’s contention that the trial court should have instructed the jury on negligence per se based on a Haddonfield municipal ordinance, explaining that negligence per se in New Jersey is limited to violations of statutes or regulations, not local codes. The court also upheld the trial court’s refusal to charge the jury on the highly destructive agency doctrine, because plaintiff had not pled that theory against NJAW. On the denial of additur and new trial, the court deferred to the trial court’s assessment and found that the jury’s decision not to award personal property damages was not a manifest denial of justice given the state of the evidentiary record. NJAW’s cross-appeal regarding the two lay witnesses was also rejected, as both witnesses had been deposed by defense counsel four months before trial.
Key Takeaways
- A plaintiff who voluntarily accepts payment on a jury verdict is estopped from pursuing arguments on appeal that could invalidate or reduce the very damages already collected, under the voluntary-acceptance doctrine; only arguments that could increase the total award or expand the theories of liability remain viable.
- Negligence per se in New Jersey is confined to violations of state statutes or administrative regulations — a municipal property maintenance ordinance will not support a per se charge even if the defendant clearly violated its terms, making it essential to identify the proper statutory basis before trial.
- A plaintiff who introduces evidence of her own insurance coverage and proceeds during trial opens the door to opposing counsel’s cross-examination on those topics; failing to object contemporaneously limits appellate review to the deferential plain error standard.
Why It Matters
This decision offers several practical lessons for New Jersey personal injury practitioners. Defense counsel should be alert to the possibility of raising the voluntary-acceptance doctrine when a plaintiff cashes in a judgment and then seeks to broaden the scope of an appeal. Conversely, plaintiffs’ counsel must think carefully about whether accepting a judgment payment forecloses legitimate appellate arguments that could have yielded a greater recovery.
The court’s clear restatement of the negligence per se rule — limiting it to state statutes and regulations and excluding municipal ordinances — is a reminder to both sides to scrutinize the precise source of any alleged regulatory violation before anchoring a trial strategy to a per se theory. The decision also underscores the strategic risks of opening the door to otherwise inadmissible evidence: once plaintiff voluntarily testified about her insurance proceeds, the Appellate Division saw no prejudice in defendant’s cross-examination on the same subject.