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Sunday, June 10, 2018

BRIAN J. RICE VS. CHRISTINA M. MILLER, ET AL. (L-0451-14,

Tried to a jury, this negligence case arose out of a motor vehicle accident in which the defendant driver struck plaintiff, a pedestrian, as he was attempting to walk one February evening across an eight-lane state highway. Plaintiff alleged defendant was not using her headlights and had failed to observe him in the road until it was too late for her to stop. Defendant asserted that plaintiff unreasonably failed to use a nearby crosswalk located up to about 150 feet from where he crossed. The jury found plaintiff was 75% at fault and defendant was 25%, producing a judgment in defendant's favor pursuant to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. On appeal, plaintiff argues, among other things, the trial court issued inappropriate jury instructions concerning the traffic laws and should have taken judicial notice concerning the asserted legality of his attempted crossing. Plaintiff further argues the court erred in allowing, over objection, an investigating police officer, who had not witnessed the accident, to render lay opinion testimony estimating the speed of defendant's car under what is known as the "Searle formula." The trial court properly charged the jury in this setting with both N.J.S.A. 39:4-33, which directs that "[a]t intersections where traffic is directed by a police officer or traffic signal, no pedestrian shall enter upon or cross the highway at a point other than a crosswalk," and N.J.S.A. 39:4-34, which provides that, in the absence of a traffic signal or police officer directing traffic, a pedestrian shall cross "where not prohibited, at right angles to the roadway." The question of whether plaintiff was obligated to use the crosswalk was a fact-dependent jury issue, turning on the actual proximity of the crosswalk, the lighting conditions, and whether it was too dangerous to reach from plaintiff's location. The matter was unsuitable for judicial notice under N.J.R.E. 201. The investigating police officer was not designated in discovery as a defense expert and had denied at his deposition having expert status. Given the esoteric nature of the Searle formula, the officer's testimony was inadmissible under the guise of the lay opinion rule, N.J.R.E. 701, but this error was harmless.

WILLIAM QUAIL, ETC. VS. SHOP-RITE SUPERMARKETS, INC., ET AL. (L-0606-14

Plaintiff in this wrongful death and survival action principally appeals from the trial court's ruling to exclude from evidence at trial a Certificate of Death that was issued following an examination by the county deputy medical examiner. On the date of the accident, decedent and plaintiff were shopping at defendant's supermarket. Decedent was using a motorized cart. As she went down a narrow aisle, her cart's basket caught on a cash register station, causing the station to fall on her. The accident injured her leg. Decedent stated she was fine and went home, but four days later she was taken to the hospital with complications. She died the following morning.After a deputy medical examiner inspected decedent's body, a Certificate of Death was issued. The Certificate stated that the manner of her death was an "accident" and that the cause of death was "complications of blunt trauma of [the] right lower extremity." The examiner's associated report reiterated these conclusions in more detail. The panel holds that the State Medical Examiner Act, N.J.S.A. 52:17B-92, despite its broad language, does not provide an absolute right to a civil plaintiff to admit the full contents of the Certificate of Death. The hearsay opinions within the Certificate were properly excluded by the trial court under N.J.R.E. 808, the net opinion doctrine, and pertinent case law. Further, the hearsay exception for vital statistics, N.J.R.E. 803(c)(9), does not require admission of the examiner's opinions.

Gerardo Martinez v. Board of Trustees, Police and Firemen’s Retirement System (078823) (Statewide) (A-83-16

Mount has proven, under requirements established in case law construing N.J.S.A. 43:16A-7(1), that he experienced a terrifying or horror-inducing event and that the event was undesigned and unexpected. The Court remands to the Appellate Division panel to decide Mount’s claim that his mental disability was a direct result of that incident. Martinez has not demonstrated that the incident that caused his disability was undesigned and unexpected and therefore is not entitled to accidental disability benefits pursuant to N.J.S.A. 43:16A-7.

Sunday, June 3, 2018

R.A. FEUER VS. MERCK & CO., INC. (C-000042-16, UNION COUNTY AND STATEWIDE) (A-1262-16T3)

This appeal involves the scope of a shareholder's right to inspect a corporation's records under N.J.S.A. 14A:5-28 and the common law. Plaintiff, a Merck & Co., Inc. shareholder, appeals from the dismissal of his complaint seeking various Merck corporate records. The panel affirms. It concludes that plaintiff's demand exceeds the scope of "books and records of account, minutes, and record of shareholders," which the court was empowered to permit him to inspect under N.J.S.A. 14A:5-28(4). Plaintiff also misreads a 1988 amendment to the statute, which allows a court to limit a shareholder's inspection, rather than expand it as plaintiff contends. Finally, plaintiff misplaces reliance on the common law. To the extent N.J.S.A. 14A:5-28 does not abrogate residual common law rights of inspection, plaintiff's demand exceeds inspection previously allowed under the common law.

VALERIE GIARUSSO VS. WILLIAM G. GIARUSSO, SR. IN THE MATTER OF CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, PC (FM-02-1561-08,

The petitioning law firm made application against its former client in the Family Part seeking an award of attorney's fees and costs for post-judgment services rendered to the client to enforce alimony arrears, child support arrears, and equitable distribution owed to her by her ex-husband. The law firm also sought Imposition of a charging lien and entry of a judgment by the Family Part. The court holds the petitioning law firm was not entitled to a charging lien for unpaid services rendered post-judgment to enforce previously awarded relief obtained through the efforts of prior counsel.The court further holds that the petitioning law firm could obtain judgment in the Family Part against its former client for the reasonable amount of unpaid fees without filing a separate action in the Law Division. The court remanded the issue of the reasonableness of the fees sought by law firm to the Family Part for the development of a reviewable record.

Monday, May 28, 2018

TIMOTHY ELLIS VS. HILTON UNITED METHODIST CHURCH, ET AL. (L-6083-15, ESSEX COUNTY AND STATEWIDE) (A-0793-16T3)

In this appeal, the court was asked to determine whether sidewalk liability applies to an owner of a vacant church because in Gray v. Caldwell Wood Products, Inc., 425 N.J. Super. 496 (App. Div. 2012), we imposed liability on the owner of a vacant, boarded-up building that had been used for commercial purposes. For the reasons that follow, we hold that a vacant church maintains its status as a noncommercial property, not subject to a commercial property's sidewalk liability. We reject any reading of Gray that imposes liability on owners of vacant residential or noncommercial properties that have not been put to any commercial use.

E&H STEEL CORPORATION VS. PSEG FOSSIL, LLC, ETC. (L-0516-11, HUDSON COUNTY AND STATEWIDE) (A-1600-15T1)

The New Jersey Rules of Evidence and supporting case law do not require that lay testimony and even lay opinion testimony, although based on scientific, technical or even specialized knowledge, automatically triggers the need for the designation of the witness providing that testimony as an expert. The fact that a person with personal knowledge of facts relevant to a dispute may also qualify as an expert in the particular field associated with those facts does not convert his or testimony into expert testimony under N.J.R.E. 702 and 703.