NEW JERSEY LAWYER

DAILY BRIEFING      04/19/2005


News Briefs

HARVEY RANKS WITH OPRAH, BUT NOT IN BURLINGTON COUNTY
While Attorney General Peter C. Harvey’s office comes under attack for its continuing efforts to block the release of audiotapes stemming from a political corruption investigation in Burlington County, he’s being hailed as one of the “Most Influential Black Americans” in the May edition of Ebony magazine. In a radio interview, Harvey said he doesn’t deserve to be on the list that includes Oprah Winfrey and Condoleeza Rice. John Gural, mayor of Palmyra in Burlington County, apparently agrees. He’s accused Harvey of trying to make the Burlington investigation “go away” when the AG’s office released just relatively few of the 320 hours of secretly taped comments by Camden County Democratic party leader George E. Norcross III. Harvey’s office has been battling a court order to release the tapes in which Norcross is heard boasting about his political muscle and ability to get things done in South Jersey. 4-18-05

JURY SAYS JURY DUTY DIDN’T PROMPT FIRING AT LAW FIRM
It’s embarrassing when a former law firm employee claims she was fired for serving jury duty, but should the firm settle the woman’s suit? The situation arose when a former office manager for a Philadelphia area law firm made that claim. But she now has lost her suit after the law firm hung tough and declined to settle. In Sheeran v. Kubert Himmelstein & Associates, a Philadelphia Common Pleas Court jury voted 10-2 for the firm, which contended it fired Julia Sheeran for reasons unrelated to her jury duty. Sheeran claimed that when she was first chosen to serve on a jury in 2001, her boss, attorney Bernard Kubert, told her to request a recusal; she refused to do so and was subsequently fired. Sheeran, seeking back pay, or emotional distress damages and punitive damages, had demanded $350,000 to settle, and the firm did not respond, according to defense attorney Clifford Cohn of Cohn & Associates. 04-18-05

LAW FIRM WAGES WAR ON THE HOURLY BILLING SACRED COW
Hourly billing is coming under attack in the press by, of all sources, a law firm. Out to boost its practice of tailoring fees for specific services to business clients, the Chicago office of Richmond, Va.-based McGuireWoods has put together an anti-hourly billing campaign in key publications in the Midwest. One ad features a pudgy, balding man in a business suit, leaning back in a chair, blowing bubbles from a bottle, with the caption, “Law firms that charge strictly by the hour are about to have their bubbles burst.” 4-18-05

CHANGE COMING FOR PERSONAL COMPUTER USERS
Get ready for changes in how your computer functions. Microsoft Corp. has begun marketing a new operating system to replace Windows, the underlying system in the vast majority of personal computers and business servers. Although technically dubbed an enhancement of Windows, the new Longhorn system overhauls several features important to lawyers and other professionals, such as improved networking capabilities, expanded ability to organize desktop items and, as Microsoft promises, reduced need to reboot. The company is demonstrating the system to the press this week and plans to release its first market version by July. 4-18-05

MONKEYING AROUND WITH SMOKES
Have you heard this one about Charley the chimpanzee hooked on cigarettes? Really. The word is that while he may be one smart chimpanzee, he’s not into reading the health warnings on the smokes. Now, officials at the Bloemfontein Zoo in Johannesburg, South Africa, say Charley, their star attraction, is showing signs of nicotine addition after picking up and puffing cigarettes thrown into his cage by visitors. “He even acts like a naughty schoolboy by hiding the cigarette when staff approach the area,” said spokesman Daryl Barnes about the zoo’s failed attempts to get Charley to go cold turkey. 4-18-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, APRIL 18, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, APRIL 18, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, APRIL 19, 2005.


APPROVED FOR PUBLICATION
NEGLIGENCE
MARCINKIEWICZ v. MARRERO
Appellate Division, A-4415-03T5, approved for publication April 18, 2005. (10 pages). Facts-on-Call Order No. 92420

Where the plaintiff mother and the defendant father had joint legal custody of their son until he was emancipated when he was 17 years old, where the son lived with his mother until he was 15 when residential custody was transferred to the father, and where the son died from the effects of years of alcohol consumption at age 19 while living with his father, there was no basis (1) to impose liability in favor of a chronic drinker or in favor of a person making a derivative claim for the failure to limit the drinker’s freedom of action where legally he was an adult or (2) to impose liability on one parent in favor of the other for the consequences of acts committed by their eventually emancipated child with regard to his own well-being where the parents stood in legally equivalent positions.

COMMERCIAL TRANSACTIONS
LOR-MAR/TOTO, INC. v. 1ST CONSTITUTION BANK
Appellate Division, A-6139-03T2, approved for publication April 18, 2005. (24 pages). Facts-on-Call Order No. 92421

A bank is strictly liable under N.J.S.A. 12A:4-401 to charge its customer’s account only for “properly payable” items. Because the forged checks in this case were not authorized under §12A:4-401, summary judgment for the customer in its action against the bank was proper.

NOT APPROVED FOR PUBLICATION
DAMAGES
JOHNSON v. BANKS
Appellate Division, A-4045-03T1, April 18, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17844

Remittitur and denial of the defendant oral surgeon’s motion for a new trial in a personal injury action affirmed; the 57-year-old plaintiff patient fell while she was under anesthesia and was waiting for X-rays after undergoing oral surgery; the plaintiff suffered an inoperable herniated disc, a laceration with a keloid scar, and the aggravation of her pre-existing asymptomatic degenerative arthritis; the jury awarded the plaintiff $750,000 and awarded the plaintiff’s husband $50,000 for loss of consortium; the remittitur reduced the plaintiff’s award to $300,000 and reduced the husband’s award to $25,000; the trial court properly reduced the verdict to the highest figure that could be supported by the evidence and properly denied the defendant’s motion for a new trial based on the record.

TORT CLAIMS ACT
REMON v. ACEVEDO
Appellate Division, A-5889-03T3, April 18, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17841

Order that denied the State’s motion for summary judgment on Tort Claims Act grounds and that permitted the plaintiff to file a late notice of tort claim reversed; the plaintiff alleged that he was injured in a January 6, 2003 motor vehicle accident with a van driven by the defendant State employee; the police officer’s report stated that the van had a license plate number that began with “SG,” was owned by “Treasury Dept. of,” and was “self-insured”; the plaintiff filed a complaint against the defendant in September 2003, the Attorney General filed an answer on the defendant’s behalf on March 25, 2004, and the State moved for summary judgment on April 1; the plaintiff should have filed a notice of claim within the time required by N.J.S.A. 59:8-8 and -9 because he had sufficient information to place him on notice that the defendant was a State employee who was operating a State vehicle; moreover, the plaintiff did not establish “extraordinary circumstances” to justify an extension of time to file the notice of claim.

CHARITABLE IMMUNITY
BRATTON v. FAIRLEIGH DICKINSON UNIVERSITY
Appellate Division, A-7077-03T2, April 18, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17842

Summary judgment for the defendant university and denial of the plaintiffs’ motion to amend their complaint affirmed in a negligence action arising from the death of the plaintiff’s daughter when she was strangled in her dormitory room by her boyfriend, who was not a student at the university but was staying in her room; the university moved for summary judgment based on charitable immunity, and the plaintiffs cross-moved to amend their complaint to add claims of gross negligence, willful and wanton misconduct, and intentional misconduct, which are bases of fault argued as exclusions from charitable immunity; the plaintiffs did not dispute that their negligence claim was barred by charitable immunity; the trial court properly concluded that gross negligence also was excluded by charitable immunity and that the allegations in the complaint, the history of the case, and the factual assertions did not support a finding of willful or wanton misconduct or an intentional tort.

INSURANCE
NATIONAL CONTINENTAL/PROGRESSIVE CASUALTY INSURANCE CO. v. ALLSTATE INSURANCE CO.
Appellate Division, A-6327-03T3, April 18, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17843

Arbitration award to the defendant insurer of $1,843.42, which was half of what it had paid in PIP benefits, affirmed; the injured driver was insured under a policy issued by the plaintiff insurer and also was an insured under his wife’s policy issued by the defendant; the insurers agreed to arbitrate and specifically agreed in writing that the decision was “final and binding without the right of rehearing or appeal, as to the claim or suit arbitrated”; even assuming that the arbitrator had made a legal error, which did not appear to be the case because the plaintiff failed to present the appropriate defense evidence, the alleged error was not reviewable in court.

DOMESTIC VIOLENCE
ALMASRI v. MITCHELL
Appellate Division, A-6848-03T1, April 18, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17839

Final domestic violence restraining order against the defendant husband affirmed; the parties were involved in a divorce action when the domestic violence trial occurred, and the defendant did not appear, even though he had been notified of the trial date; the plaintiff wife testified that the defendant called her 15 to 20 times per day, told her at least once that she was “fucking dead,” and drove around her house, which made her fear that he might kill her; the defendant had committed previous acts of domestic violence in 1999 and 2003; there was sufficient credible evidence in the record to support the trial court’s finding of harassment under N.J.S.A. 2C:33-4 and the issuance of the restraining order.

DRUNK DRIVING
STATE v. MANZ
Appellate Division, A-5356-03T5, April 18, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17840

Convictions of driving while intoxicated and disregarding marked lanes affirmed; two Breathalyzer tests indicated that the defendant’s blood alcohol content was .10 percent; the defendant’s expert testified at an N.J.R.E. 104 hearing about a possible problem with the purge phase of the Breathalyzer’s operation, but on cross-examination he was unable to provide concrete evidence of either a procedural mistake or an operational error during the tests; the Law Division’s finding that the officer who administered the tests properly performed the individual steps of the test was supported by the record, and there was no reason to disturb the conclusion that the tests were properly admitted into evidence; the testimony of the defendant’s expert was “no more than speculation” and was not sufficient to undermine the reliability of two identical test results.


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