NEW JERSEY LAWYER

DAILY BRIEFING      07/06/2005


News Briefs

SATTELITES WOULD TRACK DOMESTIC VIOLENCE CASES
The applause had barely subsided at the state Assembly’s final legislative approval of a satellite monitoring program for high-risk sex offenders when another bill, A-4396, was introduced calling for the same technology for domestic violence cases. The measure by Assemblywoman Mary Previte (D-Camden) would allow judges to mandate that high-risk domestic violence offenders and their victims wear monitoring devices so police and the victims know when they come too close together. It could be several months before the new bill is even considered. 7-5-05

FALCONE LEAVING APPELLATE FOR MORRIS COUNTY CRIMINAL
It doesn’t happen very often, but an Appellate Division judge asked to return to the trial bench. Six months after joining the Appellate Division, Judge Joseph A. Falcone is being reassigned to Morris County’s criminal division, effective September. He called dealing with appeals “a monastic life,” adding he missed trial work. His reassignment is part of the annual mass movement of judges ordered by Chief Justice Deborah T. Poritz. Falcone, who was elevated to the Appellate Division after serving as assignment judge in Essex County, has spent 19 years on the bench and is a former Passaic County prosecutor. 7-5-05

NEW JUDICIARY LINEUP ON NEW JERSEY LAWYER WEBSITE
Nearly 50 state judges will be changing divisions in September under the annual general assignment order from Chief Justice Deborah T. Poritz. The order appears on New Jersey Lawyer’s website, www.njlnews.com, under Notices to the Bar. 7-5-05

INSPECTOR GENERAL LAW AWAITS CODEY’S SIGNATURE
After final approval from the state Assembly last week, legislation creating the Inspector General’s Office, responsible for auditing state records and keeping an eye on state agencies, is expected to be signed any day by acting Gov. Richard J. Codey. Attorney Mary Jane Cooper, who has been working as inspector general under an executive order Codey signed in January, will continue in that post and already has made a big splash. One of her first moves was to issue a report criticizing spending and management at the state agency charged with building schools in the poorest school districts. 7-5-05

LAW FIRMS PICKY ABOUT NEW HIRES
Don’t be surprised if your firm takes unusually long to fill job openings. New Jersey law firms on average interview candidates four times before extending a job offer, according to a survey by staffing company Robert Half Legal in Menlo Park, Calif. Firms here are most likely to sound the disqualifying gong when a job hopeful displays little knowledge about the firm, is unprepared to discuss career goals or isn’t enthusiastic enough, according to the survey. 7-5-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JULY 5, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JULY 5, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, JULY 6, 2005.


APPROVED FOR PUBLICATION
SETTLEMENTS
COLUMBIA PRESBYTERIAN ANESTHESIOLOGY v. BROCK
Appellate Division, A-317-04T5, approved for publication July 5, 2005. (10 pages). Facts-on-Call Order No. 92566

The Special Civil Part should have viewed the settlement agreement in this collection case with a predisposition in favor of its validity and enforceability because the defendant never alleged that the stipulation of settlement that he had signed was unfair, unreasonable, or unenforceable.

NOT APPROVED FOR PUBLICATION
INSURANCE
OSHEROW v. ORLEANS CONSTRUCTION CORP.
Appellate Division, A-3684-03T3, July 5, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18180

Summary judgment for the defendant insurer of a condominium association in an action arising from the plaintiff son’s development of asthma and allergies attributable to mold affirmed; the plaintiff parents’ condominium was damaged by a storm in February 1994, and the defendant’s claims adjuster inspected the condominium but declined to inspect the attic; after the son’s allergies and asthma were diagnosed in June 1995, “significant” mold and mildew were discovered in the attic; summary judgment for the defendant was appropriate (1) on the plaintiffs’ breach of contract claim because they identified no language in the insurance policy issued by the defendant to the association that obligated the defendant to inspect or to supervise maintenance or repairs and (2) on the plaintiffs’ claim that the adjuster was negligent because he had no duty to perform an inspection for the plaintiffs’ benefit.

INSURANCE
PRESERVER INSURANCE CO. v. P&C EXCAVATING, INC.
Appellate Division, A-4748-03T5, July 1, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18179

Order finding coverage under the third-party liability provisions of a business auto policy issued by the third-party defendant insurer for property damage sustained by a forklift reversed; a construction company hired the defendant/third-party plaintiff excavation company to transport the forklift, which fell off the excavation company’s trailer during transport due to the alleged negligence of the excavation company’s principal; the construction company’s insurer paid property damage benefits to the construction company and brought a subrogation action against the excavation company and the principal; the excavation company and the principal tendered the suit to the third-party defendant, which denied coverage under both the business auto and commercial general liability policies it had issued to the excavation company; as written, neither of the policies offered coverage for the property damage to the forklift, and there was no reason to hold that the terms of the policies should not be enforced.

INSURANCE
PRESERVER INSURANCE CO. v. P&C EXCAVATING, INC.
Appellate Division, A-4773-03T5, July 1, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18178

Dismissal of the plaintiff insurer’s subrogation claim against the defendant principal of the defendant excavation company and denial of the plaintiff’s motion for reconsideration reversed; the plaintiff’s insured hired the excavation company to transport a forklift, which was secured to a trailer by the principal, and the forklift fell off the trailer during transport; the plaintiff sought reimbursement for the property damage benefits it paid to its insured from the company and from the principal due to his alleged negligence; as to the principal, the motion court reasoned that an employee of a corporation is shielded from liability while performing acts that are within the scope of his employment; the motion court erred because an employee remains liable for his own torts, regardless of whether he was acting within the scope of his employment.

NEGLIGENCE
BADALATO v. ROCCO
Appellate Division, A-6907-03T2, July 5, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18182

Summary judgment for the defendant driver reversed and remanded for further proceedings in an action for injuries sustained by the plaintiff pedestrian when he was struck by the defendant’s vehicle; although it recognized that a driver has “an obligation to avoid any contact with pedestrians,” the motion court concluded that there were no material issues of fact and that the defendant was not negligent because she did not have a duty to make observations “beyond the driven portion of the roadway”; nonetheless, although there was evidence that the plaintiff may have failed to make reasonable observations for oncoming traffic before he attempted to cross the roadway, there also was evidence that tended to show that the defendant failed to exercise reasonable care for the plaintiff’s safety.

PERSONAL INJURY
KIEFFER-BRAY v. LAIDLAW TRANSIT, INC.
Appellate Division, A-3626-03T5, July 5, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18184

Judgment awarding the plaintiff special-needs student $750,000 against the defendant transportation company affirmed as to liability but reversed and remanded for trial as to damages; while riding in a school bus provided by the defendant, the plaintiff was assaulted by other students; although he had minimal physical injuries, the plaintiff presented an expert at the jury trial who testified about the “significant psychological injuries” suffered by the plaintiff; the liability verdict was “sound and supported by the evidence”; a new trial was necessary because the trial court’s erroneous instruction to the jury on the plaintiff’s life expectancy, “in the absence of reasonably probable proof of permanency” of the injury, had a potential to unduly influence the jury as to the size of the verdict.

MUNICIPAL CORPORATIONS
TENAGLIA v. CITY OF WILDWOOD
Appellate Division, A-240-03T1, July 5, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18185

Final decision of the Director of the Division of Alcoholic Beverage Control awarding a plenary retail consumption license for a motel owned by the plaintiffs reversed; after the defendant City passed an ordinance that authorized the issuance of two new hotel/motel plenary retail consumption liquor licenses, the plaintiffs applied for one of the licenses; after receiving no answer on the application within the requisite 45 days, the plaintiffs appealed to the Director; while the administrative matter was pending, the City passed an ordinance calling for the public auction of the two licenses; the Director ordered the City to issue to the plaintiffs one of the licenses; there was no basis for the Director to “penalize” the City for omitting — due to lack of knowledge or to oversight — the bid option from the ordinance that had authorized the two new licenses; there also was no evidence that the City tried to gain or preserve a bargaining or litigation advantage over the plaintiffs.

ENVIRONMENTAL LAW
TOWNSHIP OF DOVER v. CIBA SPECIALTY CHEMICALS
Appellate Division, A-6526-03T3, July 5, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18183

Dismissal of the plaintiff municipality’s claim for relief against the defendant chemical manufacturer under New Jersey’s Environmental Rights Act for alleged leaks that were threatening the municipality’s park reversed and remanded for further proceedings; the trial court agreed with the defendant that jurisdiction relating to the cleanup of its facility was vested in the U.S. District Court under the terms of a 2001 consent order; however, the Appellate Division agreed with the municipality that the landfills in question were excluded from the consent order; where the Department of Environmental Protection agreed with the defendant that the landfills were not leaking, the Appellate Division was “confident” that the trial court would “carefully manage this matter so as to permit a prompt determination of that fundamental question.”

DRUNK DRIVING
STATE v. TEUBER
Appellate Division, A-1299-04T3, July 5, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18181

Convictions of driving while intoxicated, refusing a breath test, driving with an open alcoholic beverage, underage possession or consumption of an alcoholic beverage in a vehicle, reckless driving, and assault by auto affirmed; police officers observed three underage intoxicated persons at the scene of an automobile accident, and the officers claimed that the defendant told them that she had “just hit” another car; in the Municipal Court, the defendant denied driving the car; the Municipal Court determined that the defendant’s version of the accident was not believable, the Law Division gave due regard to that determination, and the Appellate Division was bound by the Law Division’s findings that were based on credibility; there was sufficient evidence to sustain the convictions where the Law Division believed the officers’ testimony; the municipality’s destruction of an audio tape made at the accident scene did not render the officers “unworthy of belief.”


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Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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