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Grubbs v. Knoll4/15/2005
s that the negligent defendants were responsible for protecting the plaintiffs from the very harms that they suffered. See Waldron v. Johnson, 368 N.J. Super. 348, 352 (App. Div.) (limiting plaintiff's recovery against Monmouth Mall under Comparative Negligence Act for violent assault at Mall's ATM machine where the attack "was not so foreseeable nor did it bear such a close causal connection to the Mall's slow response to the melee that it should justify imposing upon the Mall the entire responsibility for plaintiff's injuries"), certif. denied, 182 N.J. 139 (2004); Martin v. Prime Hospitality Corp., 345 N.J. Super. 278, 292 (App. Div. 2001) (plaintiff's sexual assault in hotel was "neither sufficiently foreseeable nor sufficiently related to [defendant hotel's] alleged fault to justify imposing responsibility on [hotel] for all of plaintiff's injuries").
In contrast, we have not found any instances where legal malpractice cases were held to warrant an exception from the Comparative Negligence Act's apportionment of fault under Blazovic. Nor does the Supreme Court's decision in Conklin v. Hannoch Weisman, P.C., supra, relied upon by the Knolls, compel a different outcome. There, the Court held that a jury in a legal malpractice case should not be permitted to consider the plaintiff's conduct as contributory negligence: "In a long series of cases, we have explained that when the duty of the professional encompasses the protection of the client or patient from self-inflicted harm, the infliction of that harm is not to be regarded as contributory negligence on the part of the client." 145 N.J. at 412 (citing Cowan v. Doering, 111 N.J. 451, 468 (1988)).
The fact that a plaintiff's contributory negligence may not be considered does not rule out an apportionment of fault among tortfeasors under the Comparative Negligence Act under the possible exception discussed in Blazovic. Indeed, the Conklin Court acknowledged that legal malpractice can be one of a number of concurrent causes of harm to a plaintiff. Conklin, supra, 145 N.J. at 420 ("there can be any number of intervening causes between the initial wrongful act and the final injurious consequence"). Thus, the Court adopted the "substantial factor" test where "inadequate or inaccurate [legal] advice is alleged as a concurrent cause of harm," meaning that a jury should be instructed to determine whether the lawyer's negligence was "a substantial factor in bringing about the ultimate harm." Id. at 422. Parenthetically, the jury was so instructed here.
The Knolls also argue that they are entitled to unallocated counsel fees from Chapman based upon the "tort of another" theory discussed in In re Niles, 176 N.J. 282 (2003). Niles arose out of litigation to remove a trustee who breached his fiduciary duties and to restore trust assets wrongfully obtained by that trustee through his exercise of undue influence over the wealthy, mentally ill, elderly woman who had created the trusts.
Id. at 286. One of several issues addressed by the Court was whether counsel fees could be assessed against the defalcating trustee for the fees incurred by the estate for legal representation of third parties (beneficiaries under the estate and the guardian ad litem) who were required to be named as interested parties and participate in the litigation against the trustee. Ibid.
In deciding whether to impose such fees against the trustee, the Supreme Court considered whether an exception to the "American Rule," "which prohibits recovery of counsel fees by the prevailing party against the losing party," was warranted under the "special circumstances" of the case. Id. at 294. One such exception is that "' plaintiff has the right to recover
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