NEW JERSEY LAWYER

DAILY BRIEFING      02/24/2006


News Briefs

NEW STATE BAR TRUSTEE SEATS DESIGNATED
The New Jersey State Bar Association board of trustees has decided that of the two new at-large seats created by a recent change in the bylaws, one will go to a lawyer over age 70 and the other to a member of the gay, lesbian, bisexual and transgender community. The three existing seats are designated for a black, a Hispanic and an Asian-American. Trustee terms usually are for two years, but to maintain a balance in numbers on the board, a coin toss will determine which of the two will begin with a two-year term and which with one year. Ellen O’Connell, chairwoman of the nominating committee, said letters of intent are due March 13. “We hope to get this process done quickly so the new members can join the board at the annual meeting in Atlantic City in May,” she said. 2-23-06

APPEALS COURT SPLITS ON THREAT TO PRISON GUARD’S FAMILY
By a 2-1 vote, the Appellate Division has ruled a corrections officer who suffered post-traumatic stress disorder after an inmate made serious threats against him and his family backed up by specific knowledge of the family was not entitled to accidental disability benefits. The dissent by Judge Harvey Weissbard in the unpublished case Guadagno v. Board of Trustees, Police & Firemen’s Retirement System sets up a possible Supreme Court review. The per curiam opinion by Judges Michael Winkelstein and Marie E. Lihotz affirmed the board’s decision that even specific threats should be expected by corrections officers as a routine part of the job. Weissbard said the board “completely ignored the unique, personal nature of this particular threat.” (A full text of Guadagno, Facts-on-Call Order No. 19279, can be ordered from NJL Online or by calling 800-670-3370.) 2-23-06

REVAMPED ETHICS PANEL SEATED
The revamped panel responsible for ensuring that state employees follow ethics rules is in place and for the first time its majority is citizens rather than government officials. Gov. Jon S. Corzine chose a former attorney general, a prominent attorney, a Seton Hall Law School professor and a former legislator with a long history of pressing ethics reforms. They will serve on the State Ethics Commission with three top state officials. The chairwoman is Paula Ann Franzese, professor at Seton Hall University School of Law. She will join John J. Farmer Jr., a former attorney general and now a partner at Kirkpatrick & Lockhart, Nicholson and Graham in Newark; Karol Corbin Walker, a partner at St. John & Wayne in Newark and a former president of the New Jersey State Bar Association; former Sen. Bill Schluter; Personnel Commissioner Rolando Torres Jr.; acting Labor Commissioner David Socolow; and Motor Vehicle Commission Chief Administrator Sharon Harrington. Before the law was changed recently, the ethics panel was comprised entirely of cabinet members or their designees. 2-23-06

GLOUCESTER CLERK’S OFFICE SUED OVER PHOTOCOPY FEES
Despite a state Appellate Division decision last year that Burlington and Camden counties were overcharging for self-service photocopies of public records, the Gloucester County Clerk’s Office has been charging the public 50 cents per page for copies made on its machines. Ernest Bozzi, a developer from Eastampton, has sued the county over it, alleging the self-service fee exceeds the actual cost and the county essentially is making an illegal profit. Under the Open Public Records Act, public agencies can charge 75 cents per page for the first 10 pages, 50 cents per page for the next 10 and 25 cents for each additional page. Sander Friedman of Marlton, the lawyer who filed the suit on Bozzi’s behalf, also filed the complaints that resulted in the appeals court opinion that copies should be based on actual costs. As a result, the copying fees in Camden dropped from $1 per page to 19 cents and in Burlington from 50 cents to a dime. 2-23-06

COURT RECORDS ACCESS TO BE REVIEWED
The New Jersey Supreme Court has established a committee to recommend updating its rule governing public access to court records. Chief Justice Deborah T. Poritz assigned Justice Barry T. Albin to chair the 20-member Supreme Court Committee on Public Access to Court Records. “The committee should start with a presumption of openness of court records,” said Poritz. “The goal is to balance the judiciary’s obligations to keep our processes transparent and open to the public with our obligations to safeguard legitimate privacy interests.” Court spokeswoman Winnie Comfort said the review of Rule 1:38 is aimed at ensuring access to information as the judicial branch moves more information online, yet the court is mindful that personal information that could be used in identity theft may be available. She said establishing this committee is a logical next step after the court issued uniform statewide procedures for handling public requests for court records. The uniform procedures were announced in November. “That was strictly procedural. This is more substantive,” she added. 2-23-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, FEBRUARY 23, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, FEBRUARY 23, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, FEBRUARY 24, 2006.


APPROVED FOR PUBLICATION
HUSBAND AND WIFE
McDONALD v. ESTATE OF MAVETY
Appellate Division, A-1005-04T1, approved for publication February 23, 2006. (23 pages). Facts-on-Call Order No. 92862

The plaintiff failed to establish cohabitation to support her palimony claim where, during a 10-year relationship, the decedent chose to live alone in several residences while the plaintiff and the child of the relationship lived nearby in a separate residence that the decedent owned, even though the plaintiff and the decedent spent time together at the residences and traveled together on occasion. Clear and convincing proof of the plaintiff’s claim was required under the Dead Man’s Statute, N.J.S.A. 2A:81-2.

EMPLOYMENT LAW
D’ANNUNZIO v. PRUDENTIAL INSURANCE CO. OF AMERICA
Appellate Division, A-2544-04T1, approved for publication February 23, 2006. (38 pages). Facts-on-Call Order No. 92863

The definition of “employee” in the Conscientious Employee Protection Act turns on whether a person’s services are controlled and directed by the employer and not on whether a person is an independent contractor. Therefore, a person who might be an independent contractor under the common law might also be an employee under CEPA.

ADMINISTRATIVE LAW
R & R MARKETING, L.L.C. v. JIM BEAM BRANDS CO.
Appellate Division, A-260-04T2, approved for publication February 23, 2006. (33 pages). Facts-on-Call Order No. 92864

To be a “nationally advertised brand” under the alcoholic beverage wholesaler anti-discrimination statute, N.J.S.A. 33:1-93.6, the brand must be popular or widely known, must be sought after, and must have had some form of national promotion.

NOT APPROVED FOR PUBLICATION
INSURANCE
CHINOBU SAITO v. PREFERRED MUTUAL INSURANCE CO.
Appellate Division, A-6726-04T1, February 23, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19276

Dismissal of the plaintiff insured’s complaint seeking reimbursement of $9,425.08 in defense costs from the defendant insurer reversed and remanded; the insured owned a building, had an interest in a corporation, and rented part of the building to the corporation for use as a restaurant; a patron tripped and fell while leaving the restaurant and sued “Chinobu Saito d/b/a World Sushi”; the insured incurred the defense costs in the resulting personal injury action after the insurer denied coverage; the insurer asserted that its policy excluded claims for accidents that arose from business pursuits and that the insured had been sued in his corporate capacity but not individually; however, the personal injury complaint was filed against the insured individually as well as the corporation, and the insurer was obligated to provide a defense in light of the policy’s “broad coverage language” for bodily injury that results from an occurrence on the insured premises; the insurer’s reliance on the “business” exclusion in the policy was misplaced because the insured “was not personally engaged in a business.”

NEGLIGENCE
LONCOSKY v. CAPITAL HEALTH SYSTEM AT FULD
Appellate Division, A-3583-04T1, February 23, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19277

Summary judgment for the defendant hospital in a personal injury action reversed; a nurse taped the plaintiff’s left arm to a table in preparation for a nuclear stress test; when the nurse released the plaintiff’s arm, his elbow was cut and blood was “all over” the nurse’s blouse; the plaintiff invoked res ipsa loquitur to establish a prima facie negligence case, but the trial court relied on the Appellate Division’s decision in Jerista v. Murray and held that an expert was necessary to establish res ipsa; reversal was required because the Supreme Court has overruled the Appellate Division decision in Jerista; “most probably,” neither the nuclear stress test machine nor the table caused the laceration of the plaintiff’s elbow in the absence of negligence by the defendant, and an expert was not needed because the jury could “readily deduce” what happened on its own.

DRUNK DRIVING
STATE v. AGOSTO
Appellate Division, A-3416-04T5, February 23, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19278

Conviction following a trial de novo of driving while intoxicated and careless driving affirmed; shortly after midnight, a police officer saw the defendant’s vehicle drift on Route 1, almost sideswipe a vehicle in another lane, enter a service station that was closed, and drive into an adjacent wooded area; the officer observed that there was an odor of alcohol emanating from the defendant’s vehicle, that his speech was “rambling, argumentative, and slurred,” that he failed to respond to directions, that he had difficulty walking and standing, and that he had bloodshot eyes and a flushed face; contrary to the defendant’s arguments on appeal, (1) the observational evidence was sufficient to support his conviction, (2) the Law Division’s factual findings concerning his intoxication were not unsupported, (3) defense counsel’s “apparent oversight” in failing to finish the cross-examination of the officer did not amount to ineffective assistance of counsel, and (4) the defendant was not entitled to a jury trial.

PERSONAL INJURY
DOERFLEIN v. SIX FLAGS GREAT ADVENTURE
Appellate Division, A-522-04T2, February 22, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19273

Summary judgment for the defendant amusement park in a personal injury and products liability action affirmed; the plaintiff claimed that he was injured at the park when his head was “thrown from side to side” on a ride that was designed, manufactured, and distributed by the defendant corporation; as to the personal injury claims, the Carnival-Amusement Rides Safety Act requires an injured person to file an accident report with the operator within 90 days of the accident as a precondition for filing a personal injury lawsuit unless the person successfully moves to extend the filing period to one year; the plaintiff never filed an accident report; contrary to the plaintiff’s arguments on appeal, the park complied with CARSA’s provisions about posting notices of the reporting requirement, and the filing of his complaint within one year of the accident did not constitute compliance with CARSA; as to the products liability claims, the Appellate Division rejected the plaintiff’s assertions that the corporation was bankrupt and that the park therefore stood in the shoes of the corporation as the seller of the ride.

DOMESTIC VIOLENCE
STEELE v. DUFFY
Appellate Division, A-5848-01T3, February 22, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19274

Final domestic violence restraining order against the defendant ex-boyfriend based on a finding of harassment reversed; the plaintiff ex-girlfriend filed her complaint after the defendant left a note on her doorstep with a Mother’s Day gift and left a “good-bye” note the next day; the trial court did not specify which subsection of the harassment statute the defendant violated; under N.J.S.A. 2C:33-4a, there was no evidence that the “good-bye” note was left for the purpose of harassment; under N.J.S.A. 2C:33-4c, there was no finding or evidence that the defendant’s course of conduct was intended “to alarm or seriously annoy” the plaintiff; the course of conduct that the trial court described as harassing “consisted largely” of phone calls and workplace visits that had ended “well before” the plaintiff sought protection, and the focus of the trial court’s inquiry should have been on the two notes; the record indicated that there was nothing harassing about the notes and thus that there was nothing to support the FRO.

PARENT AND CHILD
WULFF v. CAROBENE
Appellate Division, A-1813-04T2, February 22, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19275

Post-divorce-judgment orders that awarded the defendant mother $12,000 in child support arrears, $1,656 in college expenses, and $2,500 in attorney’s fees affirmed; the mother had sought $17,400 in arrears, $19,812 in college expenses, and $5,970.24 in attorney’s fees; contrary to the mother’s arguments on appeal, the trial court did not err (1) by calculating the total arrears award using the amount of arrears specified in the parties’ 1997 agreement, even though that amount allegedly was based on a mathematical error, (2) by concluding that the plaintiff father was not obligated to pay any part of his daughter’s student loans, (3) by refusing to compel the father to use an inheritance to pay the student loans, and (4) by awarding less than the amount of attorney’s fees that she had requested.


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