NEW JERSEY LAWYER

DAILY BRIEFING      06/24/2005


News Briefs

LET’S MAKE A DEAL
Unlike most states, New Jersey judges aren’t elected, but the appointment of jurists here still may well involve hardball political trades or deals. The latest apparently is the agreement reached by Essex County state senators with acting Gov. Richard J. Codey to end the stalemate that has existed more than a year over whether acting Essex County Prosecutor Paula T. Dow should get that job permanently. The Essex senators won’t block her nomination in exchange for what they said was Codey’s agreement to give a Superior Court judgeship to Siobhan A. Teare, a former chief assistant Essex County prosecutor who some senators had wanted as prosecutor there. While both Dow and Teare are said to be well-qualified, their movement up the ladder offers the public another glimpse into how tradeoffs for top judicial and law enforcement positions remain very much a part of New Jersey’s political landscape. 6-23-05

ENVIRONMENTAL WATCHDOG OPENS TRENTON WHISTLEBLOWER OFFICE
A national environmental and government ethics watchdog group has set up shop in Trenton hoping to help Department of Environmental Protection employees blow the whistle on questionable policies or operations in the agency. The newest office of the Public Employees for Environmental Responsibility is headed by Bill Wolfe, a policy adviser at DEP from 2002 to 2004 and former policy director for the New Jersey Sierra Club. Wolfe said the office intends to give employees of DEP and other state and local government agencies “a completely safe channel to communicate” with the public. Washington-based PEER has similar field offices in Alaska, California, Colorado, Florida, Maine, Texas and Washington state. 6-23-05

NEW TWIST ON AN OPEN-DOOR POLICY AT CAMDEN COUNTY JAIL
Some guards at the Camden County Correctional Facility face administrative hearings over the revelation that for several years a door between the jail’s men’s and women’s facilities was left open, allowing inmates to engage in sex. Warden Eric Taylor has said the guards involved face possible suspensions up to 30 days, but charges won’t be filed against inmates. The sex was consensual and there is no indication the guards accepted bribes or participated in sex, according to county officials. The affairs ended March 11, when a guard alerted officials after seeing female inmates walk through the open door to the men’s area. The door has since been welded shut. 6-23-05

CAMDEN BAR ASSOCIATION MAY RETURN TO OLD HOMETOWN
A week after relocating to new offices in Cherry Hill, the Camden County Bar Association isn’t giving up the idea of returning to Camden, which had been its home since its inception in 1881. Executive Director Laurence B. Pelletier said the association could someday move into space in an expansion under construction at Rutgers Law School there. He said discussions had been ongoing with the law school, but the association was forced to move because its lease was about to expire and the law school expansion is still under way. The new lease runs until 2008. 6-23-05

BIDDERS BYPASS MASTER ARTISTS FOR WORK BY CHIMP
Bidders offered more than $25,000 for artwork by a chimpanzee while passing on work by Andy Warhol and Renoir at an auction this week. “We had no idea what these things were worth,” a director at the art gallery auction site in London said about the paintings by Congo the chimp. 6-23-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JUNE 23, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JUNE 23, 2005:

DRUNK DRIVING
STATE v. CUMMINGS
New Jersey Supreme Court, A-65, June 23, 2005. (20 pages). Facts-on-Call Order No. 92537

Because a Breathalyzer refusal case is a quasi-criminal matter, the constitutionally required burden of proof in such a case is proof beyond a reasonable doubt. This decision shall have “pipeline retroactivity” effect.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JUNE 24, 2005.



APPROVED FOR PUBLICATION
CIVIL PROCEDURE
LOPEZ v. COLOMBO
Appellate Division, A-6823-03T1, approved for publication June 23, 2005. (5 pages). Facts-on-Call Order No. 92538

Denial of the plaintiff’s motion to restore his personal-injury complaint for failure to satisfy the requirements of Rule 4:50-2 was error because Rule 4:50 applies only to final judgments and orders, not to the interlocutory dismissal without prejudice in this case.

DEFAMATION
CHURCHILL v. STATE OF NEW JERSEY
Appellate Division, A-4808-03T5, approved for publication June 23, 2005. (19 pages). Facts-on-Call Order No. 92539

In defamation actions, Internet publications are to be treated similarly to other forms of mass publication and thus are subject to the single-publication rule.

LAND USE
TOWNSHIP OF NORTH BRUNSWICK v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BRUNSWICK
Appellate Division, A-6494-03T3, approved for publication June 23, 2005. (12 pages). Facts-on-Call Order No. 92540

When the grant of a zoning variance substantially alters the municipality’s zoning plan, the zoning board of adjustment may be found to have usurped the municipal governing body’s zoning power with regard to a relatively small portion of the relevant zone.

NOT APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
ELEMAN v. TOP JOB PERSONNEL, INC.
Appellate Division, A-417-04T2, June 23, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18142

Dismissal of the workers’ compensation claim of the petitioner truck mechanic for failure to sustain his burden of proof about whether his injuries arose out of and in the course of his employment reversed and remanded; the petitioner was injured when a train struck his automobile as he left the parking lot of a company that the respondent employer had sent him to; the Appellate Division was unable to determine which arguments and law the judge of compensation had found persuasive and controlling, and the judge also appeared to have “misstated” the uncontroverted facts; on remand, in addition to making findings of fact and conclusions of law, the judge also must determine whether the petitioner’s injuries are compensable due to the “special hazards” posed by his route to and from his job.

DOMESTIC VIOLENCE
S.C.B. v. V.B.
Appellate Division, A-137-04T1, June 23, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18141

Final domestic violence restraining order against the defendant husband reversed; contrary to the trial court’s finding, the defendant did not commit an act of harassment when he played bongo drums and repeated “you’re evil” to the plaintiff wife because his only purpose in performing those acts was to make her leave the house; although the evidence supported the trial court’s finding that the defendant committed a simple assault while he sought to gain control over business records that the plaintiff intended to remove, the decision to enter the FRO based solely on that assault was contrary to the Domestic Violence Act under Corrente v. Corrente.

DISCOVERY
MARILL v. MUDRY
Appellate Division, A-1470-03T5, June 22, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18139

Orders (1) excluding the videotaped deposition of the plaintiffs’ medical expert in a medical malpractice case, (2) specifying editing changes to the deposition, and (3) granting the defendant doctors’ motion to dismiss affirmed in part, reversed in part, and remanded; as the result of disciplinary charges that were filed against the expert while the case proceeded, he entered into a consent order with the State Board of Medical Examiners that barred him from serving as an expert starting 18 months after entry of the consent order; although the expert’s reports were prepared and his deposition was taken before the deadline, the trial began after the deadline; the deposition was improperly excluded because the defendant doctors should have raised the issue of its use after the deadline “well in advance” of the trial date rather than waiting six months and filing their motion to bar its use three days before the trial date and because the Appellate Division was unable to conclude that the use of the deposition after the deadline would have violated the consent order.

CORPORATIONS
NEW JERSEY CITIZEN ACTION v. FALLON
Appellate Division, A-1414-03T1, June 22, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18140

Judgment and amended judgment against the defendant officer of a dissolved corporation reversed and remanded for the entry of judgment for the defendant; the corporation sold entertainment packages that included tickets to concerts and sporting events, and a default judgment had been entered against it in the plaintiff’s earlier action, which claimed that the packages violated the Consumer Fraud Act; in this action to hold the defendant personally liable for the default judgment, there was merit in the defendant’s arguments (1) that the trial court erred by giving collateral estoppel effect to the default judgment, (2) that the trial court erred by extending the effect of the default judgment to him personally, and (3) that the plaintiff lacked standing under the Act because there was no evidence that it had suffered an “ascertainable loss.”

FROM THE ADMINISTRATIVE AGENCIES
WORKERS’ COMPENSATION
HIRES v. COUNTY OF ATLANTIC
Claim Petition No. 2001-39136, Final Agency Decision: March 14, 2005, released for publication June 6, 2005. By Giovinazzi, J.W.C. (12 pages).

The judge of compensation concluded that the respondent Atlantic City and the respondent Atlantic County were jointly responsible for the payment of workers’ compensation benefits to the petitioner homicide detective. The petitioner was an Atlantic City detective who was assigned to Atlantic County’s major crimes unit in April 1999. He filed a claim petition against Atlantic City that alleged stress and anxiety with physical manifestation that arose from constant exposure to homicide investigations between April 1999 and October 2001. After Atlantic City impleaded Atlantic County, Atlantic City settled with the petitioner with the understanding that a hearing would be held to determine whether Atlantic County was responsible for paying any workers’ compensation benefits as a special employer or whether Atlantic City and Atlantic County were responsible as joint employers. The judge determined that the petitioner was a joint employee of both Atlantic City and Atlantic County (1) where his assignment to the major crimes unit had advanced the interests of both, (2) where the petitioner had been under the simultaneous control of both, and (3) where the petitioner had simultaneously performed closely related services for both.

WORKERS’ COMPENSATION
TEJERAS v. KENNEDY CONCRETE
Claim Petition Nos. 99-28097 and 2002-20675, Final Agency Decision: February 28, 2005 (Transcript of Proceedings), released for publication June 6, 2005. By Butler, J.W.C. (17 pages).

The judge of compensation dismissed the petitioner truck mechanic’s application to modify a prior workers’ compensation award of 10 percent permanent partial total disability that was entered against the respondent first employer in 2000. The judge also assessed an award of 90 percent of permanent total disability on the claim petition against the respondent second employer. The 2000 award arose from a low back injury that the petitioner incurred in July 1998 when he attempted to lift an air compressor. The petitioner worked for the second employer from June 1999 to August 2001, when he was terminated for his inability to work. The claim petition against the second employer alleged that the petitioner’s lumbar spine was injured due to repetitive lifting and bending during his employment. The judge found (1) that the petitioner’s total and permanent disability due to “orthopedic, neurologic, and psychiatric residuals” was “unmistakable” based on the petitioner’s testimony, the judge’s observations of the petitioner, and “most of the medical proofs” and (2) that the petitioner’s total disability was causally related to his occupational duties and exposure with the second employer in light of the opinion of the petitioner’s doctor and the factual evidence that supported it. The judge assessed the petitioner’s total and permanent disability to the second employer’s insurer from June 15, 2001 to June 15, 2002 because there was no credible medical evidence to support apportionment to the second employer’s insurer from June 16, 1999 to June 15, 2001.


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