NEW JERSEY LAWYER

DAILY BRIEFING      07/07/2005


News Briefs

PRE-INDICTMENT BACKLOG LINGERS ABOVE 50 PERCENT
Courts are making only minimal progress in reducing the backlog of criminal cases awaiting presentment to grand juries, according to the Administrative Office of the Courts. For the first 11 months of the current court year, 51 percent of the cases statewide were backlogged 60 days or beyond the time for presentment prescribed by best practices regulations, down from 53 percent for the same period a year ago. Individual county backlog rates of 60 days or more range from highs of 66 percent in Mercer County and 65 percent in Essex to a low of 5 percent in Somerset. 7-6-05

WOMEN, MINORITIES NOT GETTING BIG SLICE OF STATE PIE
Fewer than 2 percent of state contracts are awarded to minorities or women, according to a report from the Secretary of State. The state is awaiting the results of another study due later this summer to legally justify an affirmative action policy that previously had set aside 10 percent of contracts for women and minorities. The program was terminated as part of a lawsuit settlement in 2003. 7-6-05

DIOCESE TO PAY $120 MILLION IN SEX ABUSE CASE
In what’s being called the largest settlement of a church abuse scandal, the Roman Catholic Diocese of Covington, Ky., has agreed to pay $120 million to hundreds of victims of child-molesting priests and other employees. The diocese will pay $40 million and its insurers the remainder to settle a class action filed in 2003. Additional class members have until Nov. 10 to file claims. 7-6-05

BEER MAKER ERRED IN FILMING EMPLOYEES SMOKING POT
The King of Beers isn’t even a prince when it comes to employee surveillance. The 8th U.S. Circuit Court of Appeals has found that beer maker Anheuser-Busch committed an unfair labor practice when it installed cameras to monitor workers without specifying such practices in its collective bargaining agreement with the union. The brewer may have to reinstate some workers it fired after the cameras filmed them smoking marijuana. 7-6-05

SELF-PORTRAIT LEADS TO ARREST
A German thief essentially signed his own arrest warrant after photographing himself at the crime scene and leaving the pictures behind. Police in the town Neumuenster found the photos, which could have only been taken by the thief, a 17-year-old whom they recognized from previous offenses. “The evidence was fairly compelling so we had to admit it,” a police spokesman said. 7-6-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JULY 6, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JULY 6, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, JULY 7, 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
LAND USE
BRAVIAK v. PLANNING BOARD OF THE BOROUGH OF MANASQUAN
Appellate Division, A-7088-03T1, July 5, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18187

Order affirming the resolution of the defendant Planning Board that approved with conditions the minor subdivision and bulk variances sought by the defendant owner of a beachfront lot affirmed; the owner sought to subdivide the lot, which contained two homes, into two lots and to replace one of the homes with a new home; contrary to the plaintiff objectors’ arguments on appeal, (1) the record supported the grant of a variance for the rear yard, (2) the basement was not a principal use and thus did not qualify as an additional story that increased the height of the new home beyond the zoning ordinance’s 2.5-story height limit, (3) in the absence of an ascertainable standard in the zoning ordinance, the Planning Board’s acceptance of measurements of the new home’s height from the boardwalk, from sea level, or from the beach grade was not arbitrary, and (4) the grant of bulk variances was supported by the record.

LAW AGAINST DISCRIMINATION
LONERGAN v. SCOTCH PLAINS POLICE DEPARTMENT
Appellate Division, A-4296-03T2, July 5, 2005, not approved for publication. (50 pages). Facts-on-Call Order No. 18188

Summary judgment for the defendant police department, the defendant municipality, the defendant police chief, and the defendant police captain in the plaintiff police officers’ employment discrimination action affirmed in part and reversed in part; the trial court mistakenly granted summary judgment on the claim by the plaintiffs, who were white, that the captain, who was African-American, had created a hostile work environment when he accused them of racism in connection with their motor vehicle stop of four African-American youths because the captain’s statements and actions (1) could be viewed by a jury as “more than offensive or crude” and (2) could be understood “as being infused with a divisive ‘black against white’ view of the workplace that a jury would be entitled to conclude was ‘severe’ ” under the Law Against Discrimination; summary judgment on the plaintiffs’ claim that the chief was an “aider or abettor” also was improper; however, summary judgment was properly granted on one plaintiff’s claim of handicap discrimination based on his alcoholism, on three plaintiffs’ claims for retaliation, and on the plaintiffs’ claims for infliction of emotional distress.

HUSBAND AND WIFE
WEAVER v. WEAVER
Appellate Division, A-1449-03T5, July 5, 2005, not approved for publication. (42 pages). Facts-on-Call Order No. 18186

Final judgment of divorce awarding permanent alimony to the defendant ex-wife and equitably distributing the former marital home affirmed in part, reversed in part, and remanded; after a bench trial, the trial court awarded the alimony and distributed the marital home to the ex-wife; the plaintiff ex-husband elected to receive his $155,532 equitable share of the marital home subject to the accrual of interest that was payable upon the sale of the property; no time limit was set for the sale, and the trial court did not provide any security for the ex-husband’s defined interest in the property; the record did not support either the “traditional rationale” for a permanent alimony award or the amount of the award, and remand was needed for proper consideration of the guidelines set forth in Cox v. Cox; the trial court’s method of distribution was faulty, and remand was needed for entry of a judgment that fixed the ex-husband’s equitable interest in the marital home at one-half of the net equity in the property at the time of its sale, minus credits to the ex-wife and the allocation of repairs under Daly v. Daly; the trial court on remand also must consider whether the parties should retain joint title in the marital home and must set a date for the sale of the marital home.

FROM THE FEDERAL COURTS
MEDICAL MALPRACTICE
LOVE v. RANCOCAS HOSPITAL
U.S. District Court (DNJ), Civil Action No. 01-5456, June 29, 2005. By Irenas, Senior U.S.D.J. (21 pages). Facts-on-Call Order No. 92565

In a medical malpractice action, the District Court denied the defendant hospital’s motion for summary judgment as to the plaintiff’s claim that alleged a violation of the federal Emergency Medical Treatment and Assisted Labor Act but granted the motion as to the plaintiff’s “direct” negligence claim, which alleged that the hospital failed to adequately train and supervise its staff. The plaintiff received treatment for syncope, falling, and high blood pressure at the hospital’s emergency department, but she was found two days later to have suffered a stroke. In the absence of Third Circuit precedent and in light of a split among the Circuit Courts, the District Court concluded that EMTALA applies to all patients, regardless of whether they are indigent or uninsured. The District Court (1) denied the motion on the EMTALA claim because the plaintiff had raised a genuine issue of material fact as to whether the hospital had violated EMTALA by releasing her before her medical condition was stabilized but (2) granted the motion on the “direct” negligence claim because the District Court was unable to identify a factual basis for a claim based on the hospital’s failure to train its personnel, its appointment of unqualified or unskilled health care providers, or its failure to establish appropriate procedures for operating the emergency department.


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