NEW JERSEY LAWYER

DAILY BRIEFING      05/05/2005


News Briefs

REFUSING TO E-MAIL OR FAX AGENDA VIOLATES OPRA
By refusing to fax or e-mail a board meeting agenda to its local newspaper, the Greater Egg Harbor Regional School District violated the state’s Open Public Records Act, ruled Atlantic County Judge Steven P. Perskie. “When in doubt, make it public,” Perskie said of The Press of Atlantic City v. Greater Egg Harbor Regional School District, in which he ordered the district to reimburse the plaintiff newspaper’s $4,766 legal bill. The Atlantic City newspaper sued after the district refused to send copies of the agenda, saying reporters should get it in person. The district changed its policy on agenda delivery after the suit was filed, according to its solicitor Louis J. Greco, a Somers Point sole practitioner. 5-4-05

KILLER NURSE FIGHTS SUITS, HOSPITALS HEIGHTEN SECURITY
As former nurse and convicted killer Charles Cullen fends off lawsuits from his victims’ survivors, New Jersey’s medical care facilities face a new law requiring them to report all information regarding potentially dangerous activity by health care workers, and allowing them to inform other facilities about disciplinary actions taken against staff members. The law was inspired by Cullen, in prison for the murders and attempted murders of 29 patients at 10 hospitals in New Jersey and Pennsylvania where he worked before 2004. 5-4-05

WHITE-COLLAR PRODUCTION WORKERS ENTITLED TO OVERTIME PAY
A judge in U.S. District Court in Portland, Ore., has ordered Farmers Insurance Group to pay $52.5 million in overtime pay to 1,039 claims adjusters in seven states who say they are “white-collar production workers.” Farmers had argued the adjusters were exempt from overtime laws because they are “administrative employees.” Senior U.S. District Judge Robert E. Jones ruled that under federal and state laws, adjusters who handle real estate and auto damages claims must be paid overtime, but processors of personal injury claims are exempt. After Farmers last September agreed to pay $200 million in overtime to 2,000 workers who sued in California, adjusters in Oregon filed suit and their case was consolidated with similar suits filed in Colorado, Illinois, Washington, Minnesota and New Mexico. 5-4-05

FIRST AMENDMENT DOES NOT SHIELD CATHOLIC DIOCESE IN ABUSE CASES
A Roman Catholic diocese cannot hide behind the First Amendment in a suit alleging it knew of and did nothing to stop a priest who sexually abused children, the Maine Supreme Judicial Court has ruled. The state’s highest court reversed an earlier ruling and allowed Michael Fortin, 32, to sue the Diocese of Portland alleging sexual abuse in the late 1980s by the Rev. Raymond Melville. Earlier this year, a state court judge ordered Melville to pay Fortin $500,000, but dismissed the case against the diocese and a bishop who allegedly knew of the abuse. That ruling was based on a 1997 Supreme Judicial Court decision stating that imposing liability on a diocese would infringe on its relationship with priests. 5-4-05

COURT ADDRESSES SACRED COW ISSUE
The highest court in New Delhi, India, is literally taking on a sacred cow by giving city officials a week to formulate a workable plan for clearing streets of free-roaming cows. The court three years ago ordered the beasts’ removal, but partly because Hindus regard cows as sacred, only about 5,000 of 35,000 have been steered back to their owners or state shelters, where many have died. After the cow situation is cleared, the city and courts can address thousands of free-roaming monkeys. 5-4-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MAY 4, 2005:
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MAY 4, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, MAY 5, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, MAY 4, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
EVANS v. BLACK
Appellate Division, A-5631-03T1, May 4, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17913

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold reversed and remanded for trial; the plaintiff’s complaint alleged that she was injured in motor vehicle accidents on March 21, 2000 and May 8, 2000; the plaintiff presented sufficient evidence to raise a genuine issue of material fact as to whether her left shoulder injury was caused by the March 21 accident rather than the May 8 accident; the two medical reports presented by the plaintiff stated that her injury was caused by the March 21 accident, and neither report asserted that the May 8 accident aggravated the injury; a further comparative analysis of her injury before and after the May 8 accident was not needed in this case; although the evidence might have cast some doubt on the factual basis of the doctors’ opinions, those issues must be resolved by the trier of fact.

INSURANCE
SOLTYSIK v. NEW JERSEY MANUFACTURERS INSURANCE CO.
Appellate Division, A-2354-03T5, May 4, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17914

Judgment of no cause of action in an action for underinsured motorist benefits after the jury’s $125,000 verdict was adjusted based on the collateral source rule for the $100,000 that the plaintiff had received through the settlement of her previous action and for disability payments that she had received affirmed; the trial court did not err by refusing to excuse for cause all jurors who were or who had been insured by the defendant insurer; there was no precedent to support the plaintiff’s assertion that the “repeated references” by defense counsel to the disability claim of the plaintiff’s husband and to the reliance of the plaintiff and her husband on collateral source income was prejudicial error; the trial court did not err by finding that the detailed physical therapy records for a 10-year period were inadmissible or by refusing to allow the plaintiff to testify about wages paid at the time of trial to hospital pharmacists who were similarly situated in her profession.

INSURANCE
AWAD v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE CO.
Appellate Division, A-2537-03T5, May 4, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17911

Summary judgment for the defendant insurers declaring that their automobile, homeowner’s, and personal liability umbrella policies did not provide coverage for the injuries that the plaintiff sustained in a “road rage” incident affirmed substantially for the reasons expressed by the trial court; the plaintiff was “severely” beaten, kicked, and stomped by the defendant young men; based on the conviction of one of the young men following a jury trial and the conviction of the other young man following a guilty plea, the trial court determined that the acts of the young men were excluded from coverage under the policies because the assault and battery was intentional and because the bodily injuries that the plaintiff incurred were expected or intended; the Appellate Division expressly rejected the plaintiff’s contention that “road rage” should be treated differently than other types of intentional acts.

PREMISES LIABILITY
WARE v. COMMERCE BANCORP
Appellate Division, A-6290-03T3, May 4, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17915

Summary judgment for the defendant bank in an action that arose from the plaintiff’s fall on a sidewalk on the defendant’s premises affirmed; the plaintiff testified at her deposition that she did not see the exact location where she tripped at the time of her fall and that she observed an expansion joint in the sidewalk when she returned to the defendant’s premises two days later; the trial court correctly determined that the defendant was entitled to summary judgment because the evidence was not sufficient to allow a reasonable fact-finder to determine (1) that the plaintiff tripped and fell at the site of the expansion joint, (2) that the expansion joint was raised to the extent that it constituted a dangerous condition, and (3) that the defendant was negligent for allowing the dangerous condition to exist or for failing to provide notice of the danger.

WORKERS' COMPENSATION
TORRES v. WAKEFERN FOOD CORP.
Appellate Division, A-2994-03T2, May 4, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17909

Order of the Division of Workers’ Compensation awarding the plaintiff 15 percent permanent partial disability, orthopedic in nature, affirmed; in the course of his employment, the plaintiff trapped his foot in a fall from an electric cart; contrary to the defendant employer’s appellate argument, the judge of compensation correctly found that the objective medical evidence established that, as a result of the accident, the plaintiff had suffered a post-traumatic crush injury of the foot; as to the “more difficult question” of establishing a material lessening of the plaintiff’s working ability or a substantial interference with other aspects of his life, substantial credible evidence supported the judge’s findings and conclusions, including that the plaintiff no longer could work for the defendant and that he had trouble bearing weight on his foot.

TORT CLAIMS ACT
BATTAGLIA v. SUSSEX COUNTY
Appellate Division, A-6247-01T1, May 4, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17910

Summary judgment for the defendant county officials and agencies in an action alleging that they failed to investigate and prosecute the plaintiff inmate’s complaint in a proper and timely manner affirmed substantially for the reasons expressed by the trial court; the plaintiff filed a complaint against a second inmate that charged third-degree terroristic threats, and the defendant prosecutor downgraded the charges and later dismissed the complaint; the trial court determined that the defendants were entitled to absolute immunity under the Tort Claims Act (1) where the plaintiff had not demon-strated that either the alleged delay in the investigation or the downgrade of the charges constituted “a crime, actual fraud, actual malice, or willful misconduct” and (2) where it was “abundantly clear” that the prosecutor’s discretionary decision to downgrade the chrges was justified and was made in good faith.

EDUCATION
OSBORNE v. BOARD OF EDUCATION OF TOWNSHIP OF LAKEWOOD
Appellate Division, A-4775-03T2, May 4, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17916

Final decision of the State Board of Education, which upheld a summary decision by the Acting Commissioner of Education — finding that the plaintiff resident failed to show that the defendant’s “courtesy busing” policy, applicable to both private and public school students, discriminated by race, gender, and religion — affirmed; among other things, the plaintiff asserted that, due to the alleged control of the Township governing body and school board by Orthodox Jews, the busing policy was designed to discriminate (1) by putting Orthodox Jewish students and other students on separate buses and (2) by segregating Orthodox Jewish boys from girls; contrary to the plaintiff’s appellate arguments, the bus routes are neutral and “do not foster religion”; absent constitutional or statutory breach, the courts cannot interfere with political issues decided by the electorate, “whatever its religious demographics.”


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