NEW JERSEY LAWYER

DAILY BRIEFING      03/08/2005


News Briefs

MAXIMUM LOCAL FINES COULD GET STEEPER AGAIN
A bill before the legislature would raise fines for violating municipal ordinances for the second time in four years, in effect nearly doubling the $1,250 limit set in 2001 for a first offense to $2,000. As with the previous increase, municipalities aren’t required to impose the higher fines, but have the option to do so. The sponsor of the legislation, A-3732, Assemblyman Patrick J. Diegnan Jr. (D-Middlesex), is municipal attorney for South Plainfield and Milltown. The measure, introduced in January, is up for a vote Thursday in the Assembly’s Housing and Local Government Committee. 3-7-05

THIRD CIRCUIT HOLDS RETAILER NOT LIABLE FOR GUNSHOT INJURY
Refusing to “engage in a redundant analysis,” the 3rd U.S. Circuit Court of Appeals, in a two-page per curiam opinion, upheld U.S. District Judge Franklin S. Van Antwerpen of the Eastern District of Pennsylvania who rejected a negligence suit by a Wal-Mart employee who claimed the store should have prevented an attack on her by her estranged husband. Marsha Midgette claimed the Wal-Mart store in Pottstown, Pa., knew her estranged husband, Bryan, had physically abused her and that she was under a protective order. She alleged the store was negligent in not protecting her from her husband and engaged in “negligent entrustment” by selling the bullets he used to shoot her in the head before turning the gun on himself and committing suicide. The appellate court said Van Antwerpen “carefully and thoroughly” explained his reasons in ruling Midgette v. Wal-Mart was fatally flawed because even if the store had refused to sell the bullets, “Bryan very likely would have succeeded in shooting his wife.” 3-7-05

OHIO RESIDENTS MAY NEED AUCTION LICENSE TO SELL ON EBAY
Effective May 2, Ohio residents who sell merchandise online must obtain a state auction license. That’s a tall order because in addition to costing $200 and requiring a $50,000 bond, the license requires a one-year apprenticeship, a stint at auction school, and passing written and oral exams. State Sen. Larry Mumper, primary sponsor of the legislation signed into law Feb. 1, told the Cleveland Plain Dealer it was never meant to apply to those selling items over eBay. While vowing changes, Mumper isn’t certain exactly who would ultimately be exempt. The license requirement “certainly will not apply to the casual seller on eBay,” he said, but noted, “If someone buys and sells on eBay on a regular basis as a type of business, then there is a need for regulation.” 3-7-05

NO DUTY TO NON-EMPLOYEES, SAYS GEORGIA SUPREME COURT: CSX TRANSPORTATION HAD
no duty of care to family members who allegedly were exposed to asbestos fibers on their fathers’ and husbands’ work clothes, the Georgia Supreme Court has ruled in CSX Transportation Inc. v. Leverett. Four families had sued the company, alleging the exposure caused relatives to develop asbestos-related illnesses. “The common-law duty to provide employees with a safe workplace ‘has not been extended to encompass individuals … who are neither ‘employees’ nor ‘employed’ at the worksite,” said the Georgia court, which quoted the 2004 New York Appellate Division case Widera v. Ettco. 3-7-05

TONGUE STUD BREATH-TEST CHALLENGE FAILS
The presence of a tongue stud while administering a DWI breath test doesn’t invalidate the test, the Indiana Supreme Court has ruled. Brenna Guy, 23, was wearing a stainless steel tongue stud when an Indianapolis police officer stopped her after observing her driving on the wrong side of the street in downtown Indianapolis in 2001. She failed three field sobriety tests before the breath test was administered. It showed a blood alcohol level of 0.11 percent, exceeding the state’s standard of 0.08. Charged with drunken driving, Guy appealed, citing a state law prohibiting any “foreign substance” being placed in a person’s mouth 20 minutes prior to the test. Ruling against Guy, the court said she did not place the stud in her mouth during the pre-test period, noting that law was meant to discourage items such as chewing tobacco or cigarettes. Justice Theodore Boehm wrote that “studs, dentures, etc., are not ‘foreign’ if ordinarily found in a person’s mouth.” 3-7-05



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, MONDAY, MARCH 7, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, MARCH 7, 2005.

THE SUPREME COURT has announced that it will release an opinion in MOON v. WARREN HAVEN NURSING HOME, A-23, on March 8, 2005. The issue on appeal in Moon addresses whether a trial court ruling that allows the late filing of a notice of claim under the Tort Claims Act is subject to an appeal as of right or is interlocutory.



APPROVED FOR PUBLICATION
DAMAGES
PAVLOVA v. MINT MANAGEMENT CORP.
Appellate Division, A-6156-03T3, approved for publication March 7, 2005. (16 pages). Facts-on-Call Order No. 92333

In an action arising from the decedent’s death following a fire at the defendant landlord’s housing complex, there was no prima facie case for the award of punitive damages (1) because, although there had been previous incidents on the property, neither of the two minor fires had originated in the same manner as this case, (2) because the plaintiff’s complaint did not allege actual malice or willful conduct, and (3) because there was no evidence that the defendant was aware of the likelihood of serious and imminent harm by virtue of the placement of a towel rack close to a wall-mounted electric heater.

PUBLIC RECORDS
MAG ENTERTAINMENT, LLC v. DIVISION OF ALCOHOLIC BEVERAGE CONTROL
Appellate Division, A-128-04T5, approved for publication March 7, 2005. (24 pages). Facts-on-Call Order No. 92334

A request under the Open Public Records Act for information to be used in collateral administrative proceedings with the governmental entity that was required to respond to the OPRA request was not proper where the requestor did not request specific identifiable documents but merely requested general information that required the agency’s record custodian to search among its various records and to analyze, correlate, and compile data from those records. Furthermore, the Law Division’s order compelling the deposition of an agency representative in furtherance of document production was beyond the permissible scope of a summary, expedited proceeding, such as an OPRA action, under Rule 4:67-2(a).

EVIDENCE
STATE v. BEHN
Appellate Division, A-2062-03T3, approved for publication March 7, 2005. (36 pages). Facts-on-Call Order No. 92335

The defendant’s murder conviction was reversed based on newly discovered evidence which demonstrated that expert testimony about bullet lead composition analysis was based on an entirely faulty scientific foundation.

NOT APPROVED FOR PUBLICATION
CHARITABLE IMMUNITY
ZAITSEVA v. R & G LANDSCAPING
Appellate Division, A-4717-03T3, March 7, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17700

Summary judgment for the third-party defendant landlord based on charitable immunity reversed; the plaintiff fell in the landlord’s icy parking lot and sued the defendant snow-and-ice-removal contractor which brought a third-party action against the landlord; the landlord operated a federally assisted low-income housing development; the landlord was not entitled to charitable immunity because the record indicated that its express purpose was to serve as a “conduit” for federal funds and that it was not “essentially supported” by charitable contributions; contrary to the landlord’s argument on appeal, its receipt and expenditure of “minimal” funds from private donations was “too inconsequential” to distinguish Parker v. St. Stephen’s Urban Dev. Corp., Inc.

VERBAL THRESHOLD
AVGOUSTI v. PRICE
Appellate Division, A-4640-03T2, March 7, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17701

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold affirmed; the plaintiff was injured in a chain collision with the defendants in February 2001, and she had sustained similar injuries in an automobile accident in January 1995; the plaintiff did not present sufficient objective credible evidence of a serious and permanent injury (1) where X-rays and an MRI indicated that her disc bulging was degenerative, despite her doctor’s statement to the contrary, (2) where the evidence did not support a finding of persistent spasm, (3) where her MRI indicated patellar chrondromalacia but her doctor’s report diagnosed only a “knee sprain/strain with moderate contusions and edema” and did not list her knee injury as part of the plaintiff’s permanent disability, and (4) where the plaintiff did not provide a Polk comparative analysis.

LAND USE
BRINKER v. BRIGANTINE CITY PLANNING BOARD
Appellate Division, A-3498-03T2, March 7, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17703

Law Division order (1) reversing the defendant Planning Board’s denial of variances from lot size and frontage pertaining to the plaintiff’s proposed conditional use and (2) granting the variances reversed and the Board’s decision reinstated; the plaintiff wanted to replace his existing duplex with a larger, more attractive, and energy-efficient duplex, but his property could not accommodate the four conforming parking spaces without using the side-yard setbacks and without building a driveway that extended across the entire front of the property; as to the positive criteria, the plaintiff did not meet the burden under Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment where the Board found that the property could not accommodate the parking problem associated with the conditional use due to its narrow frontage; as to the negative criteria, the Board properly concluded that the plaintiff’s project was not reconcilable with the municipality’s legislative determination that lot sizes and frontage requirements should be imposed on all duplexes.

DRUNK DRIVING
STATE v. GRULLON
Appellate Division, A-3402-02T5, March 7, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17702

Conviction of driving while intoxicated and sentence of 90 days’ imprisonment, 90 days of in-patient rehabilitation, 12 hours in an Intoxicated Driver Resource Center, and a 10-year driver’s license suspension affirmed; the defendant was a third-time offender who was stopped at about 12:30 a.m. after weaving on the Garden State Parkway; the arresting officer smelled alcohol and saw that the defendant’s eyes were bloodshot and that there was an open beer can on the front seat; contrary to the defendant’s arguments on appeal, (1) the Law Division did not err by considering the officer’s Municipal Court testimony, even though that testimony did not occur under oath, (2) there was no basis to overturn the conclusions of the Law Division or the Municipal Court, (3) State v. Hamm foreclosed the defendant’s argument that he was entitled to a jury trial, and (4) his sentence to an IDRC was proper.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.