NEW JERSEY LAWYER

DAILY BRIEFING      04/01/2005


News Briefs

POSSIBLE CHANT FROM RUTGERS LAW SCHOOLS — ‘WE’RE NO. 72!’
No one pays attention to the U.S. News & World Report annual law school rankings, right? Well, maybe a little. Or a lot. And in case you’re checking, of 174 schools ranked for 2005 in the latest issue, Rutgers-Camden and Rutgers-Newark share the 72nd spot. The state’s third law school, Seton Hall, came in 89th. The three schools have been ranked between 50 and 100 for years. Last year, Rutgers-Camden again ranked 72nd and Rutgers-Newark was one notch higher, while Seton Hall ranked 92nd. This past October, a directive from the Administrative Office of the Courts said New Jersey judges shouldn’t participate in the rankings process. Hey, maybe if the AOC made participation mandatory, the law schools here would score better. The top schools in 2005? Yale, Harvard, Stanford, Columbia, NYU, Chicago, Michigan, Penn, Virginia and, tied for 10th, Duke and Northwestern. Now, if only Princeton had a law school: It was tied with Harvard as the nation’s best university. 3-31-05

NJ BAR EXAM GETS SOME FINE-TUNING AND COMPUTER EXPERIMENT
The New Jersey Supreme Court has increased the weight to be given to the Multistate Bar Examination (MBE) portion of the state’s lawyer admissions test. From now on, the MBE will count for half, rather than 35 percent, of the final grade. The MBE is more reliable than the essays, experts say. Neither the court nor the Board of Bar Examiners believes the change will significantly impact the pass rate. In another move, the court has approved a pilot program to allow up to 200 candidates to use their own laptop computers — outfitted with special software to guard against cheating — on the essay part of the exam. The pilot will be evaluated after the upcoming July and February tests. 3-31-05

ALL RISE FOR THE RE-OPENING OF THE ESSEX COURTHOUSE
What was once new, then old, is new again. The old Essex County Courthouse in Newark, completed in 1906, is officially open for business, specifically civil trials. The historic structure was designed by architect Cass Gilbert, who designed the U.S. Supreme Court, and is lavishly decorated with murals, stained glass and marble statues. In 1970, the vicinage moved from the building on Martin Luther King Boulevard into larger quarters on West Market Street. Restoration of the century-old building included repairing most of the building’s artwork and adding hundreds of pieces of period furniture. It was the result of more than 20 years of dedicated efforts on the part of several organizations and individuals, among them the Essex County Bar Association and attorney Paul G. Nittoly. The refurbished building has 11 courtrooms, judges chambers, staff offices, arbitration offices, a civil records room, a café, and a lawyers’ lounge and reading room. A grand opening ceremony Thursday was attended by representatives of the New Jersey Supreme Court, U.S. District Court, Essex court, the bar and county government. The first case will be heard Monday. 3-31-05

PUBLIC SANCTIONS AGAINST NATION’S ATTORNEYS INCREASE
The total 3,725 lawyers nationwide who were publicly sanctioned for ethics violations in 2003 was up 8.3 percent from 3,439 the year before, according to a new report from the American Bar Association. The picture in New Jersey was more positive. Here, 193 lawyers were sanctioned in 2003, compared to 269 the previous year, a 28 percent decrease. When it comes to the number of complaints filed, there was a reversal in form. Complaints were down nationally from 120,863 in 2002 to 119,863 in 2003; in New Jersey they rose from 1,472 in 2002 to 1,703. 3-31-05

PAROLEE ARRESTS REQUIRE REASONABLE CAUSE
Prison parolees can sue police for violating their civil rights if the officers stop them without reasonable suspicion — even if parole agreements allow warrantless searches, the 9th U.S. Circuit Court of Appeals has ruled. In affirming a lower court, the appeals panel said police must have reasonable suspicion that parolees are in violation of their release or had committed crimes prior to an arrest or search. 3-31-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MARCH 31, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MARCH 31, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, APRIL 1, 2005.


APPROVED FOR PUBLICATION
INSURANCE
JOHNSON v. BRADDY
Appellate Division, A-6173-03T2, approved for publication March 31, 2005. (11 pages). Facts-on-Call Order No. 92385

The holder of an insurance policy issued by an insolvent insurer and with policy limits in excess of $300,000 is personally liable for any judgment in excess of the New Jersey Property-Liability Insurance Guaranty Association’s $300,000 maximum liability.

ATTORNEYS
PRADO v. STATE OF NEW JERSEY
Appellate Division, A-6273-03T1, approved for publication March 31, 2005. (19 pages). Facts-on-Call Order No. 92386

A trial court in which an action against a State employee is pending has jurisdiction to review the Attorney General’s denial of the employee’s request for representation. The Attorney General is required to provide representation to a State employee only if there is no realistic possibility that any judgment against the employee would warrant a finding that the act upon which liability was based was outside the scope of employment or involved actual fraud, actual malice, or willful misconduct.

JURY INSTRUCTIONS
STATE v. HORNE
Appellate Division, A-4869-02T4, approved for publication March 31, 2005. (19 pages). Facts-on-Call Order No. 92387

The trial court erred by giving the jury a flight instruction which indicated that the defendant’s absence from the trial could be taken as evidence of consciousness of guilt when the defendant’s absence constituted a waiver of his right to appear at trial pursuant to Rule 3:16(b). Furthermore, although the evidence of guilt was sufficient to support the denial of a motion for judgment of acquittal, it was not so compelling that the error in the instruction could be deemed harmless.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
WOODWARD v. DEL RIOS
Appellate Division, A-5162-03T2, March 31, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17788

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for a further summary judgment hearing; during discovery, the 77-year-old plaintiff provided information about the injuries he suffered in the accident, and he submitted a supplemental certification that contained further allegations of injury in response to the defendant’s summary judgment motion; the trial court made an “implicit conclusion” that the allegations in the supplemental certification rendered it a “sham affidavit” that could not be used to raise a material issue of fact to defeat the summary judgment motion, but it did not provide the analysis required by Shelcusky v. Garjulio to support that conclusion; there was no basis to sustain the trial court’s order in the absence of an adequate Shelcusky analysis.

INSURANCE
ALMEIDA v. HARLEYSVILLE INSURANCE CO.
Appellate Division, A-4577-03T5, March 31, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17786

Summary judgment for the defendant insurer on its counterclaim declaring that the plaintiff was not entitled to underinsured motorist benefits affirmed; the plaintiff was an employee who was injured while he was a passenger in a company car operated by a co-employee; the employer’s automobile policy issued by the defendant provided for $1 million in UIM coverage and contained a step-down provision that limited UIM entitlement to the amount provided in the employee’s personal policy; the plaintiff settled with the underlying tortfeasor for the $275,000 policy limit after obtaining a Longworth approval from the defendant, and the plaintiff’s personal policy had UIM limits of $50,000; the trial court properly held that this matter was controlled by Pinto v. N.J. Manufacturers Ins. Co., which held that the step-down provision of an employer’s policy does not require the employer to pay more than what would be payable under the employee’s personal policy.

TORT CLAIMS ACT
BROWN v. TOWNSHIP OF EVESHAM
Appellate Division, A-1597-03T3, March 31, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17787

Summary judgment for the defendant municipality pursuant to the Tort Claims Act in a wrongful death action affirmed; the plaintiffs alleged that the road on which the decedent’s accident occurred was a dangerous condition because there were no “reflectorized fog lines” along the edge of the road, because the tree that the decedent crashed into was six feet from the road, and because there was a three- to four-inch drop from the road to the adjoining area; although the plaintiffs’ expert had testified that the drop from the road would make it more difficult to re-enter the road, there was no evidence that the decedent had tried to re-enter the road; because the trial court had properly concluded that the plaintiffs’ proofs were insufficient to support a finding that the lack of reflectorized lines or the presence of the tree had created a dangerous condition, there was no need to consider whether a fact-finder could determine that the municipality’s failure to correct these conditions was palpably unreasonable.

TORT CLAIMS ACT
DANIEL v. JERSEY CITY BOARD OF EDUCATION
Appellate Division, A-6716-03T2, March 31, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17789

Summary judgment for the defendant school system based on the Tort Claims Act reversed and remanded; when the plaintiff student, who was 11 years old, exited a basement bathroom and tried to pass through a set of heavy metal double doors, he pushed hard on the right door, which hit the outside wall and quickly bounced back to catch his middle finger between the door and the center post; the finger was amputated; the plaintiff’s engineering expert determined that the door was “out of square” and had a broken closing mechanism; the trial court correctly concluded that the plaintiff had satisfied the “dangerous condition” requirement to impose liability on the defendant, but it incorrectly concluded that the plaintiff had not sufficiently demonstrated that the defendant’s failure to repair the door’s defects was “palpably unreasonable” in light of the door’s location and the probability that it was used frequently by schoolchildren and by others.

DOMESTIC VIOLENCE
SISOLAK v. BLEWITT
Appellate Division, A-6785-03T5, March 31, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17785

Final domestic violence restraining order against the defendant affirmed; the plaintiff and the defendant had a dating relationship and had lived together for about six months; the plaintiff alleged that the defendant had called her at about 1 a.m. after they had separated and said that he would kill her if he found out that she was dating someone else; the defendant admitted calling the plaintiff at 1 a.m. but denied making threats or harassing remarks; the trial court found that the defendant had told the plaintiff that he would kill her if he found out that she was dating someone else and that that comment by telephone at 1 a.m. was “likely to cause alarm”; although the trial court did not specifically state that the time of the call and the defendant’s comment demonstrated a purpose to harass, it “implicitly found” that the defendant had acted with a purpose to harass the plaintiff; the trial court’s finding was supported by the record.


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