NEW JERSEY LAWYER

DAILY BRIEFING      02/03/2005


News Briefs

LEGISLATION WOULD LEGALIZE MEDICAL MARIJUANA
A bill that would protect people with debilitating medical conditions from arrest and prosecution for using medical marijuana is under review by the state Senate’s Health, Human Services and Senior Citizens Committee. The Union County Democrat who introduced S-2200 last month, Sen. Nicholas P. Scutari, said as municipal prosecutor in Linden, he’s aware of the detrimental effects of recreational marijuana. Nevertheless, “as a lawmaker, I want to see seriously ill people given every option for treatment and pain relief,” he said. The legislation has been crafted to protect against abuses, Scutari emphasized. Those under 18 would need written parental consent. And marijuana use would be banned on school buses, public transportation or school grounds, at correctional facilities, public parks, beaches or recreation centers. 2-2-05

ANY CRIMINAL JUDGE MAY HANDLE GAMBLING CASES
Any criminal division judge now may be assigned gambling cases, including sentencing, according to a directive to assignment judges from the Administrative Office of the Courts. The instruction supersedes a 1965 directive that assigned such cases to a specific judge within a vicinage, based on the goal of achieving uniformity in sentencing. The Judicial Council, after reviewing the earlier procedure, concluded that recent standardization of the criminal division and strong supervisory role played by the criminal presiding judge means gambling cases now could be handled within regular Criminal Part procedures. The Supreme Court concurred. Questions or comments regarding Directive 1-05 may be directed to the AOC’s Criminal Practice Division at (609) 292-4638. 2-2-05

D-DAY NEAR FOR PENNSY’S COMBO LAW CLERK-PRACTITIONERS
Unlike New Jersey, where practicing law during a judicial clerkship is a no-no, Pennsylvania has career law clerks who split their time between clerking for a state judge and representing clients. But in December, that state’s Supreme Court had unwelcome news for such lawyers, issuing an order that bars them from appearing as counsel before judges in the same division or section of the court where their boss sits. State law had required only that law clerks not appear before the judge for whom they work. The high court insisted no specific incidents or complaints prompted the order. Instead, it was intended to reassure the public that “this is a system not based on favoritism but based on the facts and the law involved,” said Chief Justice Ralph J. Cappy. The change is expected to prompt some long-term clerks to abandon their day job for the more lucrative practice of law. The directive won’t take effect until Sept. 1 to give judges time to recruit replacements. 2-2-05

STUDY CONFIRMS RISKS OF DRIVING WHILE TALKING
A study in the quarterly journal Human Factors confirms the reaction time of cell phone users is dramatically slowed, increasing traffic congestion and the risk of accidents. “If you put a 20-year-old driver behind the wheel with a cell phone, their reaction times are the same as a 70-year-old driver who is not using a cell phone,” said University of Utah psychology professor David Strayer. According to the journal publisher, Human Factors and Ergonomics Society, cell phone distraction causes 2,600 deaths and 330,000 injuries annually in the United States. The study found drivers on cell phones are 18 percent slower to react to brake lights and then take 17 percent longer to regain their speed. Strayer and his colleagues previously found that drivers on cell phones are less skilled than drunken drivers with blood alcohol levels over 0.08. 2-2-05

DOUBLE EXPOSURE…OR DOUBLE DIPPING?
A federal lawsuit on silica exposure may have brought to light what many companies defending against claims of injuries from asbestos or silica exposure have long contended: They are victims of fraud. The Claims Resolution Management Corp., a trust that processes asbestos-related claims, ran the names of 8,629 plaintiffs in the Texas silica case through its database and discovered 5,174 of them already filed asbestos claims. Such evidence likely will bolster the push by companies for greater protection from silica-related lawsuits, while labor advocates argue blocking such suits would harm those with legitimate cases. Lawyers defending the companies note silicosis deaths have decreased from 500 in 1980 to fewer than 200 in 1999 — yet the number of suits claiming harm from silicosis has risen dramatically. The Corpus Christi case has about 10,000 such claimants. 2-2-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, FEBRUARY 2, 2005:
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, FEBRUARY 2, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, FEBRUARY 3, 2005.


APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
GORMAN v. WATERS & BUGBEE, INC.
Appellate Division, A-2550-03T1, approved for publication February 2, 2005. (15 pages). Facts-on-Call Order No. 92292

By revising N.J.S.A. 34:15-64(c) in 1979, the Legislature created a bright-line two-part rule that an employer’s voluntary tender of permanent disability must be made at a reasonable time before any hearing and within 26 weeks of one of the statute’s enumerated events for the employer to reduce the amount that it must contribute toward the employee’s attorney’s fees.

BANKING
MERCHANTS EXPRESS MONEY ORDER CO. v. SUN NATIONAL BANK
Appellate Division, A-3158-03T3, approved for publication February 2, 2005. (14 pages). Facts-on-Call Order No. 92293

Under a provision of the Money Transmitters Act, N.J.S.A. 17:15C-18f, funds received by a retail seller of money orders and thereafter commingled with other receipts retain a trust nature while commingled in the retail seller’s bank accounts until the proceeds are paid to the money order company, and the retail seller’s bank cannot seize those funds to satisfy the retail seller’s obligations to the bank.

GUN CONTROL
IN RE APPEAL OF THE DENIAL OF SPORTSMAN’S RENDEZVOUS RETAIL FIREARMS DEALER’S LICENSE
Appellate Division, A-156-03T2, approved for publication February 2, 2005. (25 pages). Facts-on-Call Order No. 92291

The failure to account for three firearms, even if attributable to sloppy bookkeeping rather than black market sales, is sufficient evidence of “any danger to the public safety and welfare” within the meaning of N.J.S.A. 2C:58-2 to justify the denial of the renewal of a New Jersey retail firearms dealer’s license.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
DYNES v. TOZZO
Appellate Division, A-3574-03T3, February 2, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17577

Judgment of no cause of action for the defendant in an automobile negligence action after the jury found that the plaintiff had suffered no damages from the defendant’s negligence affirmed; the plaintiff sustained a bruised left knee when her vehicle was rear-ended by the defendant’s, but she did not seek medical attention for it until nearly eight months after the accident; the plaintiff’s expert attributed her knee injury to the accident, but the defendant’s expert disagreed; contrary to the plaintiff’s argument on appeal, the jury verdict did not constitute a miscarriage of justice because it was reasonably based on the evidence, which supported the findings that the plaintiff’s head, neck, and shoulder injuries were minor and therefore noncompensable and that her knee injury was not attributable to the accident.

TORT CLAIMS ACT
JOHNSON v. TOWNSHIP OF HAMILTON
Appellate Division, A-3696-03T5, February 2, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17575

Summary judgment for the defendant Township in an action alleging that the Township was liable under the Tort Claims Act for a dangerous condition of its property affirmed; the plaintiff waited to join a basketball game that was being played on an outdoor public court, and he was injured when he fell on a two-inch stone during the game; although he claimed in discovery that the court was “all broken up” and uneven, the plaintiff had noticed nothing untoward about the court before his fall, the game had been played for some time before the plaintiff joined it, and there was no evidence of prior injuries or complaints about the court; summary judgment was proper because there was no evidence in the record from which a reasonable juror could conclude that the Township had actual or constructive notice of a dangerous condition on the court that caused the plaintiff’s accident.

HUSBAND AND WIFE
LaBRECQUE v. TEREFENKO
Appellate Division, A-5726-02T3, February 2, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17578

Post-divorce-judgment order terminating alimony and modifying child support affirmed for the reasons stated by the Family Part, but the provision requiring the plaintiff ex-wife to reimburse the defendant ex-husband for $16,022.09 in excess child support reversed and remanded; the defendant won $144,000 after taxes in the lottery, but the judge did not consider those winnings in ordering the reimbursement; remand to delete the reimbursement provision was required because the defendant had made voluntary payments after he won the lottery and because the plaintiff should not have been penalized for the defendant’s decision to share his winnings with the children.

ENTIRE CONTROVERSY
TRONI v. SALZANO
Appellate Division, A-6352-03T2, February 2, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17576

Dismissal of the plaintiff employee’s second suit to recover money from the defendant employer affirmed; after the employer terminated the plaintiff, the plaintiff sued to recover the salary he was owed; that first suit settled for $1,200, and the plaintiff accepted the employer’s check in that amount; the plaintiff then filed a second suit to recover $3,000 in commissions that he had not claimed in the first suit; a default judgment was entered against the employer and the defendant corporate officer; the trial court granted the defendants’ motion to set aside the default judgment, dismissed the plaintiff’s second complaint, and denied the plaintiff’s two motions for reconsideration; dismissal was proper because the filing of the second complaint “clearly violated” the entire controversy doctrine.


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