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Friday, June 29, 2007

Brian Scott Owens, Sr. v. Gerald Feigin, M.D.

06-21-07 A-1074-06T5

We held that the notice requirements of the Tort Claims Act
do not apply to a claim based on the Civil Rights Act of 2004.
N.J.S.A. 10:6-2.

Chubb Custom Insurance Company v. The Prudential Insurance Company of America

06-20-07 A-4125-05T1

A "Service of Suit" clause in a commercial insurance policy
is not a forum selection cause and does not preclude the insurer
from filing first in the jurisdiction in which the insurer

Leslie Conrad v. Michelle & John, Inc., d/b/a Nipper's Pub

06-19-07 A-1131-05T5

This appeal concerns the propriety of the trial court's
order dismissing with prejudice a dram shop cause of action, as
a sanction for plaintiff's failure to produce her expert at a
court-ordered N.J.R.E. 104 hearing. The trial court also
granted defendant's summary judgment motion, finding that there
were no material facts in dispute, thus entitling defendant to a
judgment in its favor as a matter of law.

We reversed. We held that, absent a bona fide and timely
in limine application by defendant seeking to bar plaintiff's
expert testimony, the trial court had no basis to order
plaintiff's expert to respond to an N.J.R.E. 104 hearing to
determine the scientific validity of his opinions. The trial
court also erred in imposing the ultimate sanction of dismissal
with prejudice, before first exhausting lesser sanctions.
Finally, we concluded that there are sufficient material issues
of fact in dispute, giving plaintiff the right to present her
case to a jury. An eyewitness's recantation of a crucial part
of his testimony presents a fundamental jury issue.

Patricia Liguori v. Elie M. Elmann, M.D.

6-25-07 (A-52-06)

The trial judge’s instruction to the jury on the appropriate
standard of care applicable to Dr. Hunter, though not entirely
in keeping with the Model Jury Charge, nonetheless did not
result in error; the Court is satisfied that the jury concluded
that Hunter’s actions were reasonable in light of all of the
facts relating to the emergency he confronted; the Court finds
no error in the trial court’s dismissal of the fraud claim or in
the Appellate Division’s analysis of plaintiffs’ argument on
appeal; and, because the change in the expert’s opinion,
although significant, was one which brought his opinion into
alignment with plaintiffs’ expert, the Court does not perceive,
in these circumstances, any prejudice to plaintiffs.

Fairway Dodge, LLC v. Decker Dodge, Inc.

6-19-07 (A-47-06)

The evidence presented failed to establish that either Bibbo or
Decker acted purposefully or knowingly in any conduct
that violated the Computer Related Offenses Act. In addition,
the trial court should have permitted defendants to call fact
witnesses who would have testified that they were not solicited
by defendants –relevant testimony on the issue of damages.

In re Lead Paint Litigation

6-15-07 (A-73-05)

Plaintiffs cannot state a cognizable claim consistent with the
well-recognized parameters of the common-law tort of public
nuisance. To find otherwise would be directly contrary to
legislative pronouncements governing both lead paint abatement
programs and products liability claims

Joseph Jerkins v. Board of Education of Pleasantville Public Schools

6-14-07 (A-49-06)

Schools have a duty to exercise reasonable care for supervising
students’ safety at dismissal. That duty requires school
districts to adopt and comply with a reasonable dismissal
supervision policy, provide adequate notice of that policy to
parents and guardians, and comply with parents’ reasonable
requests regarding dismissal.

Monday, June 18, 2007

Rena Brenman, et al. v. Michael Demello, et al.

5-30-07 (A-13-06)

The admissibility of any relevant photographs rests on whether
the photograph fairly and accurately depicts what it purports to
represent, an evidentiary decision that properly lies in the
trial court’s discretion. The Court rejects a per se rule that
requires expert testimony as a foundation for the admissibility
of a photograph of vehicle damage when the photograph is sued to
show a correlation between the damage to the vehicle and the
cause or extent of injuries claimed by an occupant of the struck

Totaro, Duffy, Cannova and Company, L.L.C. v. Lane, Middleton & Company, L.L.C.

5-24-07 (A-14-06)

Totaro is entitled to compensatory damages for the loss of
compliance work resulting from the breach of the nonsolicitation
agreement. The loss of compliance work was a foreseeable consequence of Lane’s breach. The record supports only the trial court’s conclusion that each of the clients would have remained a client of plaintiff’s in the first year following Lane’s departure. Therefore, damages should be based

Melissa Phillips v. John Gelpke

5-17-06 (A-1-06)

Melissa Phillips’ case did not require expert proof about her
recall of the earlier sexual abuse as a condition of its
submission to the jury. Melissa’s ability to recall
the events went to the weight to be accorded her testimony, not
its admissibility.

Thompson v. City of Atlantic City, et al.

5-16-07 (A-44-06)

Atlantic City’s settlement with its own mayor was so infected
with conflicts of interest that it is void as a matter of state
law. Because the City’s unlawful agreement with Lorenzo
Langford and William Marsh is a nullity, the monies disbursed to
both must be returned to the municipal coffers. Any further
relief sought by Langford and Marsh, such as reinstating the
civil rights suit, must be pursued in federal court.

First Union National Bank v. Penn Salem Marina, Inc.

5-10-07 (A-11-06)

When there is an action on a note followed by an action to
foreclose on the security, the trial court in the second action
should be bound by the judgment entered in the first action to
the extent the same categories of damages are claimed in the
second as in the first. In this instance, issue preclusion
requires that both judgments contain the same amounts for those
categories of damages that cover the same period of time.

Ginger Pacifico v. James Paul Pacifico

4-18-07 (A-61-06)

The doctrine of contra proferentem (which provides that when a
contract term is ambiguous, a court is required to adopt the
meaning that is most favorable to the non-drafting party) should
not have been applied in this case.

Toll Brothers, Inc. v. Township of West Windsor

4-3-07 (A-48-06)

Rule 1:4-8(f) requires a court that hears an application for
frivolous litigation sanctions against a party to assess whether
it is practicable to comply with the rule’s safe harbor

Robert Rowe v. Hoffman-LaRoche, Inc.

3-29-07 (A-19-06)

Michigan law applies to the failure-to-warn claim brought by a
Michigan resident alleging injuries in Michigan involving an FDA-approved prescription drug prescribed and used in Michigan. Michigan’s interest in promoting the availability of affordable prescription medications to its citizens outweighs New Jersey’s interest in deterring New Jersey corporations from providing inadequate warnings.

R.M. v. Supreme Court of New Jersey

3-26-07 (A-35-06)

Because the trial court did not explain how or why it arrived at
the amount of counsel fees awarded, this Court cannot ascertain
whether the appropriate methodology was used to determine the
award. For that reason, the trial court’s order is vacated and
the matter is remanded for disposition of R.M.’s counsel fees

Maria Soto v. Lisa Scaringelli and James Scaringelli

3-21-07 (A-17-06)

No rational fact-finder would find that plaintiff’s scar or
surgically implanted plate and screw constituted disfigurement
of scarring sufficiently “significant” to justify vaulting the
limitation on lawsuit threshold of New Jersey’s Automobile
Insurance Cost Reduction Act of 1998 (AICRA), thus overriding
AICRA’s exemption from liability.

Harry Ruiz v. Angel Mero

3-13-07 (A-28/29-06)

N.J.S.A. 2A:62A-21 abolished the firefighter’s rule. First
responders may recover damages from a property owner for any
injury sustained when answering an emergency.

Robert Wayne Tarus v. Borough of Pine Hill, et al.

3-7-07 (A-93-05)

There is a common law right to videotape a municipal council
meeting subject to reasonable restrictions. The Borough and its
Mayor violated that right by imposing arbitrary and unreasonable
restrictions that prevented Tarus from videotaping the Council
meetings in question.

Liberty Surplus Insurance Corporation, Inc. v. Nowell Amoroso, P.A., et al.

2-28-07 (A-91-05)

The question whether an insured had “knowledge of any
circumstance, act, error or omission that could result in a
professional liability claim” is subjective in nature.
Nevertheless, there was no genuine issue of material fact
requiring submission of the issue to a fact-finder, and thus
summary judgment denying insurance coverage was properly
granted, because the insured knew at the time it completed the
application for insurance that one trial court and two Appellate
Division decisions indicated that it had missed the statute of
limitations in filing a complaint.

L.W. v. Toms River Regional Schools Board of Education

2-21-07 (A-111-05)

The New Jersey Law Against Discrimination recognizes a cause of
action against a school district for student-on-student
affectional or sexual orientation harassment. A school district
is liable for such harassment when the school district knew or
should have known of the harassment but failed to take actions
reasonably calculated to end the mistreatment and offensive

Reinaldo Carmona v. Resorts International Hotel, Inc.

2-21-07 (A-83-05)

In a case alleging retaliation under the LAD, plaintiff bears
the burden of proving that his complaint was made reasonably and
in good faith. When an employer defends against a claim that an
employee’s discharge was the product of retaliation, an
investigative report prepared by the employer that purports to
demonstrate a non-retaliatory purpose for the employee’s
termination is not hearsay and is admissible.

Rochelle Hodges, et al. v. Feinstein, Raiss, Kelin & Booker, L.L.C.

1-31-07 (A-113-05)

Based on the Act’s broad statutory language, a law firm that
regularly files summary dispossess actions for nonpayment of
rent is a “debt collector” under the Federal Debt Collection
Practices Act.

Davidson v. Slater

1-30-07 (A-84-05)

Plaintiff was under no obligation under the Automobile Insurance
Cost Reduction Act (AICRA) to produce, as part of her prima
facie presentation in this non-aggravation cause of action, a
comparative analysis in order to satisfy the verbal threshold
proof requirements. As between defendant’s medical proofs and
those presented by plaintiff, the trial court was obliged to
determine whether a genuine issue of proximate cause had been
presented. As to the issue of permanency, the matter is
remanded for further explication of this record by the Appellate
Division in light of the proof requirements for objective
medical evidence of permanency.

John Wiese and Elizabeth Wiese v. Jamir D. Dedhia, et al.

12-13-06 (A-92-05)

All costs as a result of the rejection of an offer of
settlement, including those incurred in Appellate Division and
Supreme Court proceedings, fall within the scope of Rule 4:58-2.

In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697

12-8-06 (A-98-05)

If the scope of an attorney’s engagement by a governmental
entity is limited and not plenary, that attorney and his or her
law firm are not per se prohibited from representing private
clients before the governmental entity or one of the boards or
agencies of that governmental entity (including the municipal
court), and the provisions of R.P.C. 1.8(k) shall govern all
instances in which the attorney or law firm seeks to undertake
such representation

Charles Beseler Company v. O’Gorman & Young, Inc., et al.

12-4-06 (A-75-05)

The C.5. exclusion of New Jersey Manufacturer’s Workers’
Compensation and Employers Liability Insurance Policy does not
apply to the type of conduct alleged in this case – an
unintended injury caused by an intentional wrong.

New Jersey Manufacturers Insurance Company v. Delta Plastics Corporation, et al.

12-4-06 (A-87-05)

For the reasons set forth in Beseler v. O’Gorman & Young, Inc.,
also decided today, the Court affirms the judgment of the
Appellate Division. The C.5. exclusion of New Jersey
Manufacturer’s Workers’ Compensation and Employers Liability
Insurance Policy does not apply to the type of conduct alleged
in this case – an unintended injury caused by an intentional

Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc. et al.

10-25-06 (A-68-05)

Denying committed same-sex couples the financial and social
benefits and privileges given to their married heterosexual
counterparts bears no substantial relationship to a legitimate
governmental purpose. The Court holds that under the equal
protection guarantee of Article I, Paragraph 1 of the New Jersey
Constitution, committed same-sex couples must be afforded on
equal terms the same rights and benefits enjoyed by opposite-sex
couples under the civil marriage statutes. The name to be given
to the statutory scheme that provides full rights and benefits
to same-sex couples, whether marriage or some other term, is a
matter left to the democratic process.

Victor Dziuba and Alexandra Dziuba, husband and wife v. Scott J. Fletcher, et al.

10-12-06 (A-90-05)

Judgment of the Appellate Division is affirmed substantially for
the reasons expressed in Judge Weissbard’s written opinion.
N.J.S.A. 39:6A-4.5a does not preclude an injured uninsured
motorist from recovering non-economic damages under a
defendant’s policy of automobile insurance when the uninsured
motorist was not operating his uninsured vehicle at the time of
the accident involving defendant’s car.