NEW JERSEY LAWYER

DAILY BRIEFING      04/18/2005


News Briefs

JUDICIARY TO GO BEFORE SENATE BUDGET COMMITTEE
On Wednesday, it will be the judiciary’s turn to go before the Senate Budget Committee to discuss spending requirements for the courts for the fiscal year that begins July 1. The administration of acting Gov. Richard J. Codey has proposed spending for the court system of $554 million. That’s a $1.7 million increase over the current fiscal year. The extra money would go to the popular drug court program. Once the judiciary is finished with the Senate committee, it will move over to the Assembly's budget committee. That hearing is scheduled for May 19. 4-15-05

DEFENSE ATTORNEYS WARY OF NEW BREATH-TEST UNIT
Alcotest, the high-technology replacement for Breathalyzer blood-alcohol content tests, is being implemented at police departments statewide over the next 20 months, much to the dismay of defense attorneys. DWI specialists complain the Attorney General’s Office hasn’t provided them adequate training on the new device, and question whether a Camden County Superior Court ruling that the unit’s results are scientifically reliable will stand up in other vicinages. The device is in use at all municipal police departments in Middlesex County and about one-third of municipalities in Camden and Morris counties. A full story is in the April 18 issue of New Jersey Lawyer. 4-15-05

LETHAL INJECTIONS CAN BE AGONIZING, STUDY SAYS
A study of blood samples taken from 49 executed prisoners in five states has claimed that nearly half of them were inadequately sedated and may have been conscious during their executions. Publishing their findings in the British medical journal, The Lance, researchers said improper sedation could mean a slow, agonizing death. Texas and Virginia did not submit blood samples for the study but researchers reviewed their execution methods and reported that officials in those states weren’t adequately trained to administer anesthesia. The researchers called for a moratorium on lethal injections. In New Jersey, lethal injection is the official means of execution but it’s yet to be applied. Executions are stalled while the state overhauls its procedures, having been ordered to do so by an appellate court. 4-15-05

I LEFT THE CAR KEYS IN MY OTHER PANTS
It’s one thing to have an embarrassing note in your pants when someone else is going through the pockets; it’s another when that note is a confession to a crime and it’s found by the jurors in your trial. A South Carolina man is appealing his rape conviction for just such a misplacement. During the trial of Stanley Bradley, Prosecutor David Pascoe didn’t enter a confession into evidence because he couldn’t find it. As it turned out, when the jury went into the deliberation room, some evidence went with them, including — you guessed it — the accused’s pants. It was only after the guilty verdict that a juror mentioned the confession to a member of the prosecution team, who told the judge. Pascoe said the whole thing seemed fishy and possibly a ploy by the defense to throw a monkey wrench into the proceedings. On the other hand, he said, if the judge grants a new trial, the confession, properly admitted, would certainly support the case against Bradley. That is if the confession doesn’t wind up in the laundry. 4-15-05

RISKING A SPELL, FEDERAL APPEALS COURT RULES AGAINST WITCH
Cynthia Simpson, a resident of Chesterfield County, Va., wanted to get on the list of religious leaders the county Board of Supervisors uses to pick someone to offer the opening prayer at its meetings. Asked what religion she was, Simpson replied she was a witch. More formally, that’s the Reclaiming Tradition of Wicca. She also is a member of a local group known as the Broom Riders Association. In Simpson v. Chesterfield County Board of Supervisors, the 4th U.S. Circuit Court of Appeals was having none of it. The court said the board's policy regarding invocations was OK because it did not advance one faith over others. The court said the board already had sufficient inclusiveness of faiths to show it was not favoring one particular faith. At any rate, one might call this a witch’s brouhaha. 4-15-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, APRIL 15, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, APRIL 15, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, APRIL 18, 2005.


APPROVED FOR PUBLICATION
INSURANCE
SCHAEFER v. ALLSTATE NEW JERSEY INSURANCE CO.
Appellate Division, A-5757-03T1, A-6668-03T5, and A-4478-03T3, approved for publication April 15, 2005. (17 pages). Facts-on-Call Order No. 92417

The medical expense benefits that must be paid to a person injured while a passenger on a bus are the sole responsibility of the insurer of the bus company, even if the injured passenger is insured under an automobile policy that provides personal injury protection benefits.

ATTORNEYS
GRUBBS v. KNOLL
Appellate Division, A-6831-01T1, approved for publication April 15, 2005. (41 pages). Facts-on-Call Order No. 92418

In an action arising from the purchase of property that was not suited for its intended purpose due to wetlands restrictions, (1) the cost of an application for attorney’s fees and costs must be borne by the defendant where the application was necessitated by the defendant’s failure to settle, (2) the $7,500 jury verdict against the defendant attorney required that his responsibility for attorney’s fees and expenses mirror the liability percentage, (3) the trial court did not abuse its discretion by refusing to impose monetary sanctions in lieu of any fee award against a third-party defendant no longer in the case, (4) the trial court did not err by declining to charge the jury on the defendant buyers’ duty to mitigate damages where the attorney’s proofs were insufficient to require a charge on mitigation, (5) expanding the fee-shifting doctrine in attorney negligence cases by holding an attorney jointly and severally liable for all compensatory damages is not warranted, and (6) granting an enhancement of an attorney’s fees award in a legal malpractice action would exceed the Appellate Division’s authority.

MEGAN’S LAW
IN RE REGISTRANT R.B.
Appellate Division, A-799-04T1, approved for publication April 15, 2005. (29 pages). Facts-on-Call Order No. 92419

A federal conviction under 18 U.S.C. §2251(a) — which prohibits a defendant from enticing or coercing a minor, who is under 18, to engage in sexually explicit conduct for purposes of producing a visual depiction of that conduct and transporting the depiction across state lines — is a conviction for “an offense similar” to New Jersey’s luring statute, N.J.S.A. 2C:13-6, which is an enumerated Megan’s Law offense, and required the appellant to register as a sex offender in New Jersey.

NOT APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
TOPEKA v. BLUE CROSS & BLUE SHIELD OF NEW JERSEY
Appellate Division, A-193-03T5, April 15, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17838

Judge of compensation’s determination that the petitioner employee’s accident during a basketball game at a company-sponsored picnic was compensable under N.J.S.A. 34:15-7 reversed and remanded for reconsideration under Lozano v. Frank DeLuca Constrn.; at the time of the ruling, the judge did not have the benefit of Lozano — which held that, when an employer compels an employee’s participation in a recreational or social activity, the employer renders the activity work-related as a matter of law — and therefore did not rule on the “compulsion” argument presented to the Appellate Division; the Appellate Division rejected the respondent’s argument that the record did not, as a matter of law, support a finding that the petitioner had a reasonable perception of compulsion, but it was not prepared to say that a finding of compulsion was required by the record.

TORT CLAIMS ACT
A.J. v. EAST ORANGE BOARD OF EDUCATION
Appellate Division, A-1898-03T1, April 15, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17837

Jury verdict of $1 million for the infant plaintiff reversed and remanded for a new trial in an action against the defendant Board of Education, the defendant middle school, the defendant teachers, and the defendant school administrators arising from the plaintiff’s sexual assault in school by a fellow student; for the purposes of the Tort Claims Act verbal threshold, the plaintiff presented sufficient evidence of a permanent loss of a bodily function as a result of the sexual assault to submit the issue to the jury; however, the trial court’s jury instruction “did not adequately convey the applicable law and was tantamount to a direction” to return a verdict for the plaintiff; therefore, the jury never found whether the plaintiff’s injuries were permanent and substantial.

TORT CLAIMS ACT
O’KANE v. NEW JERSEY TRANSIT
Appellate Division, A-6616-03T3, April 15, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17834

Summary judgment for the defendant New Jersey Transit in a Tort Claims Act action affirmed substantially for the reasons set forth by the trial court; at around 4 p.m. on Christmas Day in 2000, four persons assaulted the plaintiff while he waited for a train on the platform at the Hammonton station; the station’s video cameras were aimed at the parking lot rather than the platform; the trial court (1) granted summary judgment because public entities are immune from claims for failing to provide police protection, which this case “truly is about,” and (2) also found that it was “just not appropriate” to treat the station, the platform, or the video cameras as either creating or presenting a dangerous condition of property.

PUBLIC EMPLOYEES
CURIAZZA v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
Appellate Division, A-2594-03T2, April 15, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17835

Final decision of the Board of Trustees of the Public Employees’ Retirement System that denied the appellant’s petition for accidental disability retirement benefits but awarded ordinary disability retirement benefits affirmed; the appellant, who worked as a municipal construction official and plumbing and building inspector, fell headfirst down a stairway in the municipal building and suffered a severe ear injury and pain in his lower back and right shoulder; contrary to the appellant’s argument on appeal, the record supported the Board’s denial of accidental disability retirement benefits (1) where no “extreme force” caused the appellant’s fall, (2) where the force of gravity did not cause the appellant’s fall, even though it heightened the fall’s impact, and (3) where the direct cause of the appellant’s fall was the appellant’s “unfortunate slip and stumble.”

DOMESTIC VIOLENCE
YORIO v. YORIO
Appellate Division, A-4005-03T5, April 15, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17836

Final domestic violence restraining order against the defendant husband affirmed; the plaintiff wife testified that the defendant drank heavily at a Super Bowl party that the parties hosted and that, after the guests left, he threw a water pitcher at her, demeaned her, punched a hole in the bedroom door, smashed a DVD player into the door, told her that she was “not going anywhere” when she was leaving, and punched another hole in the door; the trial court properly found that the defendant’s conduct constituted harassment and that he had committed criminal mischief by punching the holes in the door; the Appellate Division “strongly” disagreed with the defendant’s assertion that the plaintiff’s allegations did not rise to the level of domestic violence.

CIVIL PROCEDURE
SKOKOWSKI v. F. CUSANO
Appellate Division, A-5466-03T1, April 14, 2005, not approved for publication. (25 pages). Facts-on-Call Order No. 17833

Orders (1) vacating the $46,000 default judgment against the defendants on the condition that the defendant post a security bond or cash in the amount of $18,250 within 21 days and (2) denying reconsideration and denying the defendants’ request to reduce the security to $5,000 cash affirmed; the trial court did not abuse its discretion (1) by determining that extraordinary circumstances existed that justified its order that placed a condition on the vacation of the default judgment or (2) by denying the motion for reconsideration.


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