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Monday, December 26, 2011

Summary judgment denied in ski accident DANIEL ANGLAND and DANIEL WHEELER, CO-ADMINISTRATORS OF THE ESTATE OF ROBERT E. ANGLAND, and CHARLES JOHN

Summary judgment denied in ski accident

DANIEL ANGLAND and DANIEL

WHEELER, CO-ADMINISTRATORS

OF THE ESTATE OF ROBERT E.

ANGLAND, and CHARLES

JOHNSON, IV, ADMINISTRATOR

OF THE ESTATE OF NANCY

ANGLAND, v. MOUNTAIN CREEK RESORT, INC.,

a New Jersey Corporation,

and WILLIAM TUCKER BROWNLEE,

Defendant-Appellant.

MOUNTAIN CREEK RESORT, INC.,

Third-Party Plaintiff/

Respondent,

v.

WILLIAM TUCKER BROWNLEE,

Third-Party Defendant.

___________________________________________________

October 7, 2011


Argued May 31, 2011 – Decided

Before Judges A.A. Rodríguez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0474-08.

John Burke argued the cause for appellant (Burke & Potenza, attorneys; Mr. Burke, of counsel and on the brief).

Phillip C. Wiskow argued the cause for respondents the Administrators of the Estate of Robert E. Angland and Nancy Angland (Gelman, Gelman, Wiskow & McCarthy, attorneys; Mr. Wiskow, of counsel and on the brief).

Hueston McNulty, attorneys for respondent Mountain Creek Resort, Inc. (Samuel J. McNulty and John F. Gaffney, of counsel and on the brief).

PER CURIAM

William Tucker Brownlee moved for leave to appeal from the August 31, 2010 interlocutory order denying his motion for summary judgment against plaintiffs, the Administrators of the Estate of Robert E. Angland and Nancy Angland, and Mountain Creek Resort, Inc. (Mountain Creek). We initially denied the motion. Angland v. Mountain Creek, et al., No. M-403-10 (App. Div. October 14, 2010). However, the Supreme Court granted leave to appeal and summarily remanded to us to consider the merits on February 15, 2011.

These are the facts presented to the summary judgment judge. On Friday, January 19, 2007, shortly before noon, plaintiff's decedent, Robert Angland, suffered injuries resulting in his death while skiing at a ski area operated by defendant Mountain Creek. The facts are sharply disputed. However, all parties agree that just before the accident, defendant William Tucker Brownlee was snowboarding at Mountain Creek on the same slope as decedent. Brownlee and Angland made contact.

Besides these two points, the parties' versions of the facts diverge. According to Brownlee, as he was snowboarding on the far right side of the trail, an unidentified skier wearing a brown puffy jacket came from his left and cut directly in front of him. In order to avoid the unidentified skier, Brownlee turned quickly to his left. In doing so, Brownlee's snowboard and the decedent's skis became entangled. The two men collided, fell, and slid downhill. Decedent ultimately impacted a concrete bridge headfirst. He died as a result. Brownlee stopped sliding. He stood up and went to Angland's assistance. The ski patrol arrived and took decedent for medical assistance.

According to plaintiffs, there were almost no skiers on the trail at the time of the collision between Brownlee and decedent. Plaintiffs allege that Brownlee's "phantom skier" scenario is impeached by other evidence. Brownlee's version is that the phantom skier went in front of him and to his left. At Brownlee's deposition, he testified the phantom skier was at "eleven o'clock" to his position, and that the phantom skier cut to his right and decreased his speed. As a result, Brownlee cut to his left. Before Brownlee's snowboard went over one of decedent's skis and under the other, Brownlee acknowledged that he was out of control.

Immediately after the accident, Greg Pack, Vice President and Managing Director of Mountain Creek, skied over to Brownlee, who was approximately fifteen feet from Angland and the bridge. According to Pack, less than one minute after the accident, Brownlee stated that he was cut-off and involved in a collision.

Within thirty minutes of the accident, Brownlee told his close high school friend, Keith Eilerstan, who accompanied him to Mountain Creek that day, that a lady fell in front of him, and as a result, he steered off to his right and collided with decedent. Brownlee also gave a written statement to Mountain Creek's ski patrol and spoke to the Vernon Police Department on the day of the accident.

In not one of Brownlee's statements to Pack, Eilerstan, Mountain Creek's ski patrol or the Vernon police on the day of the accident did he identify the phantom skier by way of age, sex or clothing.

In a written statement, and in certified answers to interrogatories provided months later, Brownlee indicated that decedent fell and slid down the hill after the collision. Yet, he testified at his deposition soon after that he did not see decedent fall or slide.

Plaintiffs also note that Mountain Creek's accident reconstruction expert has prepared a report stating that the collision between Brownlee and Angland most likely occurred approximately one hundred feet from the bridge. It is also likely that Angland's multiple facial fractures were caused by the collision between the two men, as opposed to by contact with the bridge.

Plaintiffs' liability expert, Irving S. Scher, Ph.D., a Biomechanical Engineer, has opined that Brownlee violated the standard of care set by N.J.S.A. 5:13-1 to -11 (Ski Act), the New Jersey statute that defines the duties involved in skiing. Specifically, N.J.S.A. 5:13-4 provides the duties of a skier. According to the report, the deviation from the statutory standard occurred when Brownlee failed to keep a proper lookout, made a panic stop, and turned to his left in front of decedent.

Plaintiffs sued Mountain Creek and Brownlee. After a period of discovery, Mountain Creek and Brownlee moved for summary judgment. Judge William J. McGovern, III, denied Brownlee's motion for summary judgment, and granted Mountain Creek's motion. In a written opinion, dated August 31, 2010, the judge concluded that, in viewing the facts in the light most favorable to Brownlee, as required by Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), Mountain Creek was entitled to summary judgment on the issue of the Ski Act providing a standard of care. The judge acknowledged that the purpose of the Ski Act was announced by the Legislature in N.J.S.A. 5:13-1(b). This section of the Ski Act provides that "the purpose of this law is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers." N.J.S.A. 5:13-1(b). The judge noted that the Supreme Court has recognized that the Ski Act completely replaces the common law with respect to the activities and persons it covers.

[T]he analysis of liability under the Ski Statute and the analysis under the common law of negligence have significant parallels.

That fact, coupled with the Legislature's statements of intent, lead us to conclude that where the Ski Statute properly applies, the Legislature intended completely to displace the common law with regard to the statutorily defined parties. The Ski Statute was intended to "clearly define[] the responsibility of ski area operators." N.J.S.A. 5:13-1(b). The legislative committee statement stated as a primary concern the uncertainty over operator liability following Vermont's Sunday[[1]] case. That interest would have been poorly served had the Ski Statute merely supplemented the common law. By codifying, as modified, fundamental principles of negligence as they apply to skiers and ski-area operators, the Legislature provided certainty by occupying the entire field.

[Brett v. Great Am. Recreation, 144 N.J. 479, 502 (1996) (internal citations omitted).]

On appeal, Brownlee contends that the judge "committed error in holding that New Jersey's ski statute sets forth the standard of care applicable to claims between skiers." We disagree and concur with Judge McGovern that this argument is without merit. We concur with the judge's analysis and note that although the main legislative intent was to define the responsibilities of skier and ski area operations towards each other, the Legislature also intended to create a standard of conduct for skiers towards other skiers. N.J.S.A. 5:13-4 provides in pertinent part:

Duties of skiers

a. Skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.

b. No skier shall:

....

(4) Knowingly engage in any act or activity by his skiing or frolicking which injures other skiers while such other skiers are either descending any trail, or standing or congregating in a reasonable manner, and due diligence shall be exercised in order to avoid hitting, colliding with or injuring any other skier or invitee.

....

d. A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier's ability to negotiate.

....

g. No person on foot or on any type of sliding device shall knowingly operate said device so as to cause injury to himself or others, whether such injury results from a collision with another person or with an object.

[Ibid. (emphasis added).]

Moreover, N.J.S.A. 5:13-5 provides:

Assumption of risk of skier

A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions. Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.

[Ibid.; L.1979, c. 29, § 5, eff. Feb.22, 1979.]

Brownlee also contends that "there is no evidence that Brownlee breached the heightened standard of care." There are material facts in dispute regarding Brownlee's conduct. Disputes exist as to the presence of a phantom skier, and as to how and where decedent was injured. These factual disputes must be decided by the jury and summary judgment is precluded. Brill supra, 142 N.J. at 537.

Affirmed.



[1] Sunday v. Stratton Corp., 390 A.2d 398 (Vt. 1978).

DR. ENRICO BONDI, ETC. VS. CITIGROUP, INC., ET AL. A-2654-08T2

DR. ENRICO BONDI, ETC. VS. CITIGROUP, INC., ET AL.           A-2654-08T2 
     We affirm the order granting summary judgment in favor of Citibank that dismissed all of plaintiff's claims, except the claim that Citibank employees aided and abetted looting of corporate funds by senior corporate officers at a multi-national corporation that failed in December 2003.  In doing so, we held that the trial judge properly applied the in pari delicto affirmative defense asserted by Citibank to defeat most of plaintiff's claims.  Following trial, the jury returned a verdict in favor of Citibank on the looting claim. 
     We also affirmed a series of other pre-trial, trial, and post-trial rulings and affirmed the $431,318,824.84 judgment in favor of defendant-counterclaimant Citibank.  12-22-11  

IN THE MATTER OF DANIEL RODRIGUEZ // IN THE MATTER OF DOUGLAS TUBBY A-2616-10T1/A-2706-10T1

IN THE MATTER OF DANIEL RODRIGUEZ // IN THE MATTER OF           DOUGLAS TUBBY 
          A-2616-10T1/A-2706-10T1 
     Corrections officers, who are defendants in a civil action filed by an inmate, appeal from denials of legal representation pursuant to N.J.S.A. 59:10A-2.  The Attorney General relied on disciplinary charges against the officers that had been 
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withdrawn and did not consider discipline that the inmate received because his disruptive conduct gave the officers reason to believe he posed a threat of imminent assault. 
     Applying Prado v. State, 186 N.J. 413 (2006), we reverse because the denials are predicated upon findings of probable willful misconduct and actual malice that lack support in the record and are inconsistent with controlling legal principles.  12-20-11  

THE SALT & LIGHT COMPANY, INC., ET AL. VS. WILLINGBORO TOWNSHIP ZONING BOARD OF ADJUSTMENT A-3393-10T1

THE SALT & LIGHT COMPANY, INC., ET AL. VS. WILLINGBORO           TOWNSHIP ZONING BOARD OF ADJUSTMENT 

A-3393-10T1

     Although the duplex for occupancy by two homeless families that plaintiff-charitable organization proposed to construct would be an inherently beneficial use, the board of adjustment did not abuse its discretion in determining that the public benefit to be derived from this use was outweighed by the detrimental effect upon the integrity of the zoning plan that would result from construction of a two-family residence in an area zoned exclusively for single-family residences.  12-19-11  

K.L. VS. EVESHAM TOWNSHIP BOARD OF EDUCATION A-1771-10T3

 K.L. VS. EVESHAM TOWNSHIP BOARD OF EDUCATION           A-1771-10T3 
     The Open Public Records Act and the common law right of access to public records did not require disclosure at this time of notes kept by school personnel regarding incidents involving plaintiff's children because the notes were privileged under the attorney work product doctrine.  The recently-enacted Anti- Bullying Bill of Rights Act, L. 2010, c. 122, N.J.S.A. 18A:37- 13.1 to -32, did not apply to plaintiff's request or the school district's record-keeping obligations. 
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Plaintiff's OPRA lawsuit was the catalyst for disclosure of one document, and so, plaintiff was entitled to partial reimbursement of his attorney's fees.  The document was not disclosed only pursuant to the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, which does not have a fee-shifting provision.  12-12-11 

DANIEL SCHULMANN, ET AL. VS. DIRECTOR, NEW JERSEY DIVISION, NEW JERSEY DIVISION OF TAXATION A-2089-10T3

DANIEL SCHULMANN, ET AL. VS. DIRECTOR, NEW JERSEY           DIVISION, NEW JERSEY DIVISION OF TAXATION           A-2089-10T3 

The taxpayer used his personal funds to pay commissions owed by two S corporations. He and his wife then deducted the commission expenses from the S corporation income that they reported on their personal income tax returns. Affirming the reported opinion of the Tax Court, we held that the taxpayer could not disregard the corporate form by taking personal deductions for paying corporate obligations. The attempted deductions also violated the rule against "cross-netting" of losses, as set forth in N.J.S.A. 54A:5-2. 12-06-11

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ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION AND RESOURCE GROUP, ET AL. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION("NJDEP"),

ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION AND RESOURCE GROUP, ET AL. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION("NJDEP"), BOB MARTIN, ET AL. A-1603-10T2

     On this appeal challenging the validity of the Comprehensive Black Bear Management Policy (CBBMP) adopted by respondent New Jersey Department of Environmental Protection, we conclude that while there may be disagreements as to available data and its interpretation, under our standard of review we defer to agency findings that are based on sufficient evidence in the record.  We further conclude that the agency findings here meet that standard.  Most important, we determine that appellants have failed to demonstrate that respondents acted arbitrarily or capriciously or in bad faith.  We further find that appellants have failed to demonstrate any procedural deficiencies supporting invalidation of the CBBMP.  Accordingly, we affirm.  12-01-11 

NEW PROVIDENCE APARTMENTS CO., L.L.C. VS. MAYOR AND COUNCIL OF BOROUGH OF NEW PROVIDENCE, ET AL. A-2924-10T4

 NEW PROVIDENCE APARTMENTS CO., L.L.C. VS. MAYOR AND           COUNCIL OF BOROUGH OF NEW PROVIDENCE, ET AL.           A-2924-10T4 
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A municipal ordinance that imposes a $100 annual fee per apartment unit for sewer service upon owners of apartment houses, but does not impose this fee upon owners of single- family houses, complies with the statutory mandate that sewer fees shall be "uniform and equitable for the same types and classes of use and service" and the equal protection guarantees of the United States and New Jersey Constitutions, because the fee is reasonable designed to reduce the gross disparity in the contributions to the costs of sewer service derived from real estate taxes paid by apartment owners and owners of single- family houses.  12-01-11 

MICHAEL C. SENISCH VS. JAMES CARLINO, ET AL. A-6218-09T3

MICHAEL C. SENISCH VS. JAMES CARLINO, ET AL.           A-6218-09T3 
     Pursuant to the 2005 "Health Care Professional Responsibility and Reporting Enhancement Act" (colloquially called the "Cullen Act"), N.J.S.A. 26:2H-12.2c, and also pursuant to prior case law establishing a qualified immunity for truthful job references by a former employer, defendants could not be held liable in a civil lawsuit for responding to a reference request with negative information from the personnel file of plaintiff, a physician's assistant.  Defendants were not required to include in the reference plaintiff's version of the circumstances of his termination since the settlement of a prior CEPA and LAD lawsuit he brought did not include an admission of wrongdoing by defendant former employer.  12-01-11  

Michael McDade, et al. v. Rodolfo Siazon, et al. (067086; A-59-10)

Michael McDade, et al. v. Rodolfo Siazon, et al.           (067086; A-59-10) 
          In asserting a claim against the Egg Harbor Township           Municipal Utilities Authority (MUA) under the New           Jersey Tort Claims Act, plaintiff Michael McDade did           not comply with the statutory ninety-day notice of           claim requirement, N.J.S.A. 59:8-8(a), or seek relief           from that requirement by filing a notice of motion for           leave to file a late notice of claim, N.J.S.A. 59:8-9.           Because the discovery rules does not obviate the need           to comply with the statutory notice requirements, the           defendant MUA is entitled to summary judgment.  12-22-11  

In the Matter of Ty Hyderally, an Attorney at Law (D-134-10; 068701)

In the Matter of Ty Hyderally, an Attorney at Law           (D-134-10; 068701) 
          There is no clear and convincing evidence that           Hyderally either intentionally included the New Jersey           Supreme Court Certified Attorney seal or approved its           continued presence on his website, so there is no           basis on which to find that his conduct constituted           "dishonesty, fraud, deceit or misrepresentation," in           violation of RPC  8.4 (c), and the ethics complaint           should be dismissed.  Attorneys are responsible for           monitoring the content of all communications with the           public, including their websites, so henceforth,           attorneys who are not authorized to display the           Certified Attorney seal on their websites or in other           communication but do so, will be subject to           appropriate discipline.  12-20-11  

Mark Tannen v. Wendy Tannen (A-53-10; 066951)

Mark Tannen v. Wendy Tannen (A-53-10; 066951) 
          The judgment of the Appellate Division is affirmed           substantially for the reasons expressed in Judge           Messano’s opinion.  12-8-11   

Sunday, December 11, 2011

DANIEL SCHULMANN, ET AL. VS. DIRECTOR, NEW JERSEY DIVISION, NEW JERSEY DIVISION OF TAXATION A-2089-10T3

DANIEL SCHULMANN, ET AL. VS. DIRECTOR, NEW JERSEY

DIVISION, NEW JERSEY DIVISION OF TAXATION

A-2089-10T3

The taxpayer used his personal funds to pay commissions

owed by two S corporations. He and his wife then deducted the

commission expenses from the S corporation income that they

reported on their personal income tax returns. Affirming the

reported opinion of the Tax Court, we held that the taxpayer

could not disregard the corporate form by taking personal

deductions for paying corporate obligations. The attempted

deductions also violated the rule against "cross-netting" of

losses, as set forth in N.J.S.A. 54A:5-2. 12-06-11

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-5962-08T3

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF

CORRECTIONS

A-5962-08T3

An inmate at the Adult Diagnostic Treatment Center (ADTC)

challenged the authority of the Commissioner of the Department

of Corrections to transfer inmates to the ADTC who do not meet

the qualifications for confinement at the ADTC set forth in the

Sexual Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, more

specifically the provisions of N.J.S.A. 2C:47-3. We concluded

that the very specific provisions of the SOA, as explored at

length by the Supreme Court in In re Civil Commitment of W.X.C.,

204 N.J. 179, 196-99 (2010), cert. denied, ___ U.S. ___, 131 S.

Ct. 1702, 179 L. Ed. 2d 635 (2011), significantly limit the

Commissioner's otherwise broad discretion to assign inmates to

available institutions under N.J.S.A. 30:4-91.2, and that only

sex offenders who meet each of the three criteria set forth in

the SOA can be confined at the ADTC. Those criteria are: (1)

the offender's conduct was characterized by a pattern of

repetitive, compulsive behavior, (2) the offender is amenable to

sex offender treatment, and (3) the offender is willing to

participate in such treatment. 12-02-11

ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION AND RESOURCE GROUP, ET AL. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION("NJDEP"),

ANIMAL PROTECTION LEAGUE OF NEW JERSEY, THE BEAR EDUCATION

AND RESOURCE GROUP, ET AL. VS. NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION("NJDEP"), BOB MARTIN, ET AL.

A-1603-10T2

On this appeal challenging the validity of the

Comprehensive Black Bear Management Policy (CBBMP) adopted by

respondent New Jersey Department of Environmental Protection, we

conclude that while there may be disagreements as to available

data and its interpretation, under our standard of review we

defer to agency findings that are based on sufficient evidence

in the record. We further conclude that the agency findings

here meet that standard. Most important, we determine that

appellants have failed to demonstrate that respondents acted

arbitrarily or capriciously or in bad faith. We further find

that appellants have failed to demonstrate any procedural

deficiencies supporting invalidation of the CBBMP. Accordingly,

we affirm. 12-01-11

NEW PROVIDENCE APARTMENTS CO., L.L.C. VS. MAYOR AND COUNCIL OF BOROUGH OF NEW PROVIDENCE, ET AL. A-2924-10T4

NEW PROVIDENCE APARTMENTS CO., L.L.C. VS. MAYOR AND

COUNCIL OF BOROUGH OF NEW PROVIDENCE, ET AL.

A-2924-10T4

A municipal ordinance that imposes a $100 annual fee per

apartment unit for sewer service upon owners of apartment

houses, but does not impose this fee upon owners of singlefamily

houses, complies with the statutory mandate that sewer

fees shall be "uniform and equitable for the same types and

classes of use and service" and the equal protection guarantees

of the United States and New Jersey Constitutions, because the

fee is reasonable designed to reduce the gross disparity in the

contributions to the costs of sewer service derived from real

estate taxes paid by apartment owners and owners of singlefamily

houses. 12-01-11

MICHAEL C. SENISCH VS. JAMES CARLINO, ET AL. A-6218-09T3

MICHAEL C. SENISCH VS. JAMES CARLINO, ET AL.

A-6218-09T3

Pursuant to the 2005 "Health Care Professional

Responsibility and Reporting Enhancement Act" (colloquially

called the "Cullen Act"), N.J.S.A. 26:2H-12.2c, and also

pursuant to prior case law establishing a qualified immunity for

truthful job references by a former employer, defendants could

not be held liable in a civil lawsuit for responding to a

reference request with negative information from the personnel

file of plaintiff, a physician's assistant. Defendants were not

required to include in the reference plaintiff's version of the

circumstances of his termination since the settlement of a prior

CEPA and LAD lawsuit he brought did not include an admission of

wrongdoing by defendant former employer. 12-01-11

NEWARK MORNING LEDGER CO., PUBLISHER OF THE STARLEDGER VS. NEW JERSEY SPORTS & EXPOSITION AUTHORITY A-1810-10T1

NEWARK MORNING LEDGER CO., PUBLISHER OF THE STARLEDGER

VS. NEW JERSEY SPORTS & EXPOSITION AUTHORITY

A-1810-10T1

We are asked to examine the scope of certain exemptions

from the disclosure requirements set forth in the Open Public

Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We conclude

disclosure of the terms of the licensing agreements for use of

the IZOD Center, a state-owned facility, is mandated by OPRA.

The redacted terms relating to the use of the arena do not fall

within the scope of "trade secrets" or "proprietary commercial

or financial information" as used in N.J.S.A. 47:1A-1.1.

Further, disclosure of the details regarding the licensing fees

and other remunerative arrangements would not afford an

advantage to other venues competing for bookings because they

are widely known among those involved in this branch of the

entertainment industry, defeating defendant's claims of

confidentiality. 11-30-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V. T.I., IN THE MATTER OF THE GUARDIANSHIP OF S.L.M. A-2850-10T3

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES V.

T.I., IN THE MATTER OF THE GUARDIANSHIP OF S.L.M.

A-2850-10T3

In this appeal from an order terminating parental rights,

we are asked to consider the definition of "feasible" under the

Kinship Legal Guardianship (KLG) statute, N.J.S.A. 3B:12A-1 to -

7. We conclude that, when a caregiver in a case brought by the

Division of Youth and Family Services (DYFS) unequivocally

asserts a desire to adopt, the finding required for a KLG that

"adoption of the child is neither feasible nor likely" cannot be

met. 11-28-11

IN THE MATTER OF THE NOVEMBER 2, 2010, ELECTION FOR THE OFFICE OF MAYOR IN THE BOROUGH OF SOUTH AMBOY, MIDDLESEX COUNTY, NEW JERSEY A-2499-10T1

IN THE MATTER OF THE NOVEMBER 2, 2010, ELECTION FOR

THE OFFICE OF MAYOR IN THE BOROUGH OF SOUTH AMBOY,

MIDDLESEX COUNTY, NEW JERSEY

A-2499-10T1

This case considers an election contest pursuant to

N.J.S.A. 19:29-1 and addresses, among other things, issues of

domicile and late amendments to petitions under N.J.S.A. 19:29-

5. Further, we address the requirements for voter registration

when applying for driver's license renewal at the Division of

Motor Vehicles under N.J.S.A. 19:31-6(b) and N.J.S.A. 39:2-3.2.

We hold that citizens who are accorded a voter registration

opportunity when obtaining or renewing a driver's license must

complete the voter registration application in order to become a

registered voter. 11-23-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. I.S. IN THE MATTER OF N.S. AND S.S. A-5793-09T3

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS.

I.S.

IN THE MATTER OF N.S. AND S.S.

A-5793-09T3

We clarify our earlier decision in New Jersey Division of

Youth and Family Services v. I.S., 422 N.J. Super. 52 (App. Div.

2011). We state that our reference to the trial judge's

finding, based upon clear and convincing evidence, that I.S. was

unable to care for her daughters, was illustrative of the

quality of proof presented rather than our alteration of the

preponderance of the evidence standard of proof governing abuse

or neglect proceedings under Title 9.

We also clarify that proceedings under Title 30 are

governed by the preponderance of the evidence standard of proof,

except where the Division seeks an order terminating parental

rights. In such cases, the Division is required to prove that

termination is in the best interests of the child by clear and

convincing evidence. 11-23-11

Saturday, November 19, 2011

KANE PROPERTIES, L.L.C. VS. CITY OF HOBOKKEN, ET AL. A-3903-10T4

KANE PROPERTIES, L.L.C. VS. CITY OF HOBOKKEN, ET AL.

A-3903-10T4 11-16-11

Plaintiff, a developer, obtained variance relief from the

Hoboken Board of Adjustment, but that relief was largely

overturned on the objector's appeal to the Hoboken City Council.

Shortly after the Board issued its decision granting the

variances, the objector's attorney became the Hoboken

Corporation Counsel. Despite having recused himself, the

attorney participated, albeit to a limited extent, in the appeal

proceedings before the Council. On the facts presented, we held

that even that limited degree of participation tainted the

Council's decision, requiring a remand to the Council and

reconsideration of the appeal ab initio.

ROCKAWAY SHOPRITE ASSOCIATES, INC. VS. CITY OF LINDEN AND COUNCIL OF THE CITY OF LINDEN, ET AL. A-1345-10T4

ROCKAWAY SHOPRITE ASSOCIATES, INC. VS. CITY OF LINDEN

AND COUNCIL OF THE CITY OF LINDEN, ET AL.

A-1345-10T4 11-14-11

A public notice of a rezoning ordinance purporting to

effect a substantial alteration in the character of a district

by creating entirely new zones with different uses, that merely

advises the zoning is being amended as to properties identified

by common name and lot and block number, is legally deficient

under N.J.S.A. 40:49-2.1 because it fails to apprise the

interested public of what exactly is being proposed.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. D.P. AND O.B. IN THE MATTER OF V.B. A-4087-10T4

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS.

D.P. AND O.B. IN THE MATTER OF V.B.

A-4087-10T4 11-03-11

We reviewed resource parents' appeal of an order denying

their motion to intervene in a best interests hearing, which

considered whether to remove the twenty-month old child from the

resource home, her primary home since birth, or to place her

with a relative. On appeal, the resource parents assert the

trial court erroneously denied intervention, disregarding their

status as "indispensible parties" and their standing as the

child's "psychological parents."

We affirmed, concluding the right to notice of proceedings

and to inform the court granted to resource parents by the

Legislature in N.J.S.A. 9:6-8.19a, does not impart a legal

interest or an expectation to engage experts, demand discovery,

appear in the action, or cross-examine witnesses. We are

convinced the limited and temporary character of foster care

remains the legislative policy of this State. The trial court

fully abided all statutory provisions governing a resource

parent's participation in litigation involving a child entrusted

to their care by the Division, granting the resource parents all

process they were due.

Thursday, October 27, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. H.P AND V.P. IN THE MATTER OF H.P., JR., A.P. AND A.P. A-0642-10T1

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. H.P AND V.P.

IN THE MATTER OF H.P., JR., A.P. AND A.P. A-0642-10T1

Defendant appealed from an order that concluded he had abused or neglected his three children. The finding was rendered by the judge's consideration only of testimony taken at a hearing conducted the day the complaint was filed, at a time when defendant was present but not represented by counsel.

The court held that defendant's claim that the record considered when the finding of abuse/neglect was made was inadequate because he was not represented when the testimony was taken lacked merit because defendant was represented when he consented to the judge's reliance on that earlier testimony. The court reversed and remanded, however, because the judge made a finding of abuse/neglect by using the clear and convincing standard without providing defendant advance notice of that standard's use. In addition, the judge's findings consisted only of a summary of the testimony followed by a conclusion parroting the requirements of N.J.S.A. 9:6-8.21 without credibility determinations or an analysis of what the judge found had actually occurred. Absent greater clarity regarding this and other factual circumstances, the court was unable to conclude that the evidence was sufficient to meet the applicable preponderance standard even though the judge felt the higher clear and convincing burden had been met. 10-27-11

SUSAN D'ALESSANDRO VS. NORMAN & JUDITH HARTZEL, ET AL. A-3736-09T3

SUSAN D'ALESSANDRO VS. NORMAN & JUDITH HARTZEL, ET AL. A-3736-09T3

We granted summary judgment dismissal of plaintiff's negligence suit against the owner of short-term vacation rental property where plaintiff failed to offer expert proof that the condition of which she complained was dangerous or involved an unreasonable risk of physical harm to visitors, and where, in any event, the record indisputably demonstrated she knew or had reason to know of the claimed risk involved and, conversely, defendant had no reason to expect that plaintiff would not discover the obvious condition. 10-27-11

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. J.C. IN THE MATTER OF E.C. A-1269-10T4

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES VS. J.C. IN THE MATTER OF E.C.

A-1269-10T4

Although we determined the appeal by defendant mother was moot, we reviewed the procedural requirements attached to protective services litigation proceeding pursuant to N.J.S.A. 30:4C-12, following the Division's dismissal of an action under Title Nine alleging abuse and neglect. 10-26-11

Saturday, October 22, 2011

PRINCETON HEALTHCARE SYSTEM VS. NETSMART NEW YORK INC. A-3533-10T4

PRINCETON HEALTHCARE SYSTEM VS. NETSMART NEW YORK INC. A-3533-10T4

A negotiated contract between corporations for the installation and implementation of a complex computer software system does not constitute a contract for the "sale of merchandise" that can provide the basis for a claim under the Consumer Fraud Act. 10-21-11

MINDY JACOBSON, ET AL. VS. UNITED STATES OF AMERICA ET AL. A-1605-10T1

MINDY JACOBSON, ET AL. VS. UNITED STATES OF AMERICA ET AL.

A-1605-10T1

We hold that the United States enjoys sovereign immunity from liability for damages arising from the Social Security Administration's failure to withhold disability benefits payments pursuant to a state child support garnishment order.

The Law Division granted summary judgment in favor of plaintiff, who sued individually and on behalf of her minor daughter, for whom child support was awarded, ordering the federal government to pay them compensatory damages, pre- judgment interest, and counsel fees and costs. We reverse and hold that plaintiff's claim is barred by sovereign immunity under 42 U.S.C.A. § 659. 10-18-11

LORRAINE GORMLEY VS. LATANY WOOD-EL, ET AL. A-3894-09T3

LORRAINE GORMLEY VS. LATANY WOOD-EL, ET AL. A-3894-09T3

Defendants appeal the interlocutory order denying their summary judgment motion seeking, on the basis of qualified immunity, dismissal of plaintiff's civil rights complaint. Plaintiff, an attorney, claimed defendants violated her substantive due process right under the Fourteenth Amendmentwhen they created and imposed serious risks of harm to her as she met with her client, a mental patient confined at Ancora. Plaintiff's client physically attacked her during the course of that meeting. The motion judge ruled whether defendants are entitled to qualified immunity is a question of fact for the trier of fact. We reversed, holding that the determination of whether defendants are entitled to qualified immunity is a question of law for the court.

We additionally held that the facts, as alleged, established a prima facie case of a state-created danger theory of liability under the Fourteenth Amendment, but nonetheless

concluded the right plaintiff

10-17-11

defendants were entitled to qualified immunity because asserted was not clearly established at the time was attacked. 10-18-11

REGINA BASKETT, ET AL. VS. KWOKLEUNG CHEUNG A-0755-10T4

REGINA BASKETT, ET AL. VS. KWOKLEUNG CHEUNG A-0755-10T4

In this appeal we address the 2008 amendments to Rule 1:13- 7. We hold that in single-defendant cases the standard for reinstatement of a complaint is good cause. In multi-defendant cases, reinstatement within ninety days of the prior dismissal is permitted on a showing of good cause, but thereafter a party must demonstrate exceptional circumstances to reinstate a complaint. Because this case involves only a single defendant, the standard is good cause, which we conclude was adequately demonstrated by the motion record in the Law Division.

STATE OF NEW JERSEY, ET AL. VS. CORRECTIONAL MEDICAL SERVICES, INC., ET AL. A-5575-09T2

STATE OF NEW JERSEY, ET AL. VS. CORRECTIONAL MEDICAL SERVICES, INC., ET AL.

A-5575-09T2

We conclude that the New Jersey False Claims Act, N.J.S.A. 1A:32C-1 to -15 and N.J.S.A. 2A32C-17 to -18, is not retroactively applicable to conduct prior to the Act's effective date, which was March 13, 2008. 10-11-11

ESTATE OF ALVINA TAYLOR VS. DIRECTOR, DIVISION OF TAXATION A-3501-09T3

ESTATE OF ALVINA TAYLOR VS. DIRECTOR, DIVISION OF TAXATION

A-3501-09T3

In this appeal, we affirm the decision of the Tax Court, published at 25 N.J. Tax 398 (Tax 2010), granting the Director, Division of Taxation, summary judgment dismissing the Estate's complaint with prejudice and denying an inheritance tax refund. In doing so, we agree with the Director's and Tax Court'sdecision that the three-year limitation on requesting inheritance tax overpayment refunds, set by N.J.S.A. 54:35-10, is enforceable; and the Square Corners Doctrine did not apply to the facts of this case so as to preclude application of N.J.S.A. 54:35-10. 10-6-11

ADVANCE HOUSING, INC., ET AL. VS. TOWNSHIP OF TEANECK, ET AL. A-0728-09T3

ADVANCE HOUSING, INC., ET AL. VS. TOWNSHIP OF TEANECK, ET AL.

A-0728-09T3

We reversed the Tax Court's denial of real property tax exemptions to charitable organizations which provide housing and supportive services to individuals with psychiatric disabilities. In interpreting N.J.S.A. 54:4-3.6, we determine that the motion judge erred in denying the exemptions on the basis that supportive services were also provided to residents of other housing and that the absence of a requirement that residents receive supportive services was not determinative when there was no issue of fact that all residents in fact participated in the services offered, which were integral to their ability to live independently in the housing provided. 10-4-11

MIDLAND FUNDING, LLC VS. ROSA GIAMBANCO A-1651-09T3

MIDLAND FUNDING, LLC VS. ROSA GIAMBANCO A-1651-09T3

In this appeal, we review a consent judgment in which the judgment-creditor waived notice under Rule 4:59-1(d) in the event of default upon the conditions of settlement incorporated into the consent judgment. The Law Division judge found certain provisions of the consent judgment contrary to public policy and struck the contrary provisions before otherwise approving the consent judgment.

We held that such consent judgments are not contrary to public policy, provided the judgment-debtor's waiver of notice under Rule 4:59-1(d) is knowing and informed. Because the proposed consent judgment was deficient in that it failed to advise the judgment-debtor of the nature and consequences of the waiver, we concluded the Law Division judge properly rejected the order as proposed. We additionally held where a court rejects the terms of a consent judgment, it may not, absent concurrence by all parties, strike the offending provisions and then approve the consent judgment as modified by the court. Rather, we concluded the court must return the matter to its pre-settlement status. 10-3-11

JERALD D. ALBRECHT VS. CORRECTIONAL MEDICAL SERVICES, ET AL. A-0605-10T4

JERALD D. ALBRECHT VS. CORRECTIONAL MEDICAL SERVICES, ET AL.

A-0605-10T4

We hold that the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 only applies to health care facilities that have been duly "licensed as" such by the Department of Health and Senior Services. N.J.S.A. 2A:53A-26(j). Additionally, where a question is raised about the status of a defendant in a malpractice action as a licensed person or health care facility and demands production of a license, the person or entity seeking a dismissal for failure to provide an affidavit of merit pursuant to N.J.S.A. 2A:53A-29 must submit competent evidential proof of its licensure. Finally, we reject the claim of Correctional Medical Services that Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416 N.J. Super. 1, 26-27 (App. Div. 2010), and Nagim v. N.J. Dep't of Transit, 369 N.J. Super. 103, 109 (Law Div. 2003), should be extended to it because it has not established that it is a professional corporation whose shareholders are all licensed professionals. 09-30-11

SAMUEL TORTORICE, ET AL. VS. LYNNE VANARTSDALEN A-4260-09T1

SAMUEL TORTORICE, ET AL. VS. LYNNE VANARTSDALEN A-4260-09T1

This visitation dispute arises between plaintiffs, the child's paternal grandparents, and defendant, the child's maternal grandmother. Because a fit parent has a fundamental right to autonomy in child-rearing decisions, a grandparent who seeks a visitation order must show that visitation is necessary to avoid harm to the child. Defendant argues that because she is the child's "psychological parent," she enjoys the same right to autonomy and consequently, plaintiffs must satisfy an avoidance of harm standard before a visitation order may be entered. We hold that the status of "psychological parent" does not afford defendant such constitutionally mandated autonomy, that a best interest analysis applies to this dispute, and affirm the order granting visitation to plaintiffs. 09-30-11

ELIZABETH TYMCZYSZYN VS. COLUMBUS GARDENS, ET AL. A-3544-09T4

ELIZABETH TYMCZYSZYN VS. COLUMBUS GARDENS, ET AL. A-3544-09T4

Plaintiff slipped on ice and fell on the sidewalk abutting a multi-unit residential property owned and operated by the Hoboken Housing Authority. The trial court granted summary judgment to the Housing Authority. We reverse because plaintiff presented sufficient evidence to survive summary judgment under N.J.S.A. 59:4-2(a), establishing that the manner in which theHousing Authority removed snow and ice from the area in question could have created the dangerous condition that caused plaintiff's injury. In the alternative we find that, under N.J.S.A. 59:4-2(b), the Housing Authority was constructively on notice of the dangerous condition.

Applying Bligen v. Jersey City Housing Authority, 131 N.J. 129 (1993), we also hold the Housing Authority is not entitled to invoke the weather condition immunity in N.J.S.A. 59:4-7, or the common law immunity for snow-related activities under Miehl v. Darpino, 53 N.J. 49, 54 (1968). 09-30-11

BERTHA BUENO VS. BOARD OF TRUSTEES, ET AL. A-1690-09T2

BERTHA BUENO VS. BOARD OF TRUSTEES, ET AL. A-1690-09T2

We determined that appellant was entitled to a service retirement allowance retroactive to the effective date she sought a disability retirement allowance because regulation in effect at the time of her initial application did not prohibit her from changing her application pursuant to N.J.A.C. 17:3- 6.3(a) to one for a service retirement allowance while her petition for certification following our affirmance of the denial of a disability retirement allowance was still pending. The Board's practice of limiting such a conversion to the thirty-day period following its denial of a disability retirement allowance constituted a rule under Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 33, 331-32 (1984), that was not promulgated in accordance with the specific rulemaking procedures of the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -15. 09-29-11

LORETTA DEBOARD VS. WYETH, INC., ET AL. DORA BAILEY, ET AL. VS. WYETH, INC., ET AL. A-6230-07T1;A-6251-07T1

LORETTA DEBOARD VS. WYETH, INC., ET AL. DORA BAILEY, ET AL. VS. WYETH, INC., ET AL. A-6230-07T1;A-6251-07T1 (CONSOLIDATED)

We affirm the orders of summary judgment entered Jamie Happas dismissing plaintiff's product liability claims arising from utilization of hormone replacement therapy, relying in our decision on the comprehensive opinion of Judge Happas, which will be published simultaneously. In that opinion, Judge Happas properly declined to extend our reasoning in McDarby v. Merck & Co., Inc., 401 N.J. Super. 10 (App. Div. 2008), appeal dismissed, 200 N.J. 282 (2009), to permit plaintiffs to overcome the presumption of the adequacy of FDA-approved warnings by demonstrating that further testing, if voluntarily undertaken, would have disclosed an increased risk from taking the drugs at issue. 09-29-11

Friday, September 30, 2011

GEORGE C. RILEY VS. NEW JERSEY STATE PAROLE BOARD A-1004-09T1

GEORGE C. RILEY VS. NEW JERSEY STATE PAROLE BOARD A-1004-09T1

Retroactive application of the Sex Offender Monitoring Act to persons who committed sex offenses before its enactment violates the Ex Post Facto Clauses of the United States and New Jersey Constitutions. Dissent by Judge Parrillo. 9-22-11

Monday, September 19, 2011

TADEUSZ JATCZYSZYN VS. MARCAL PAPER MILLS, INC., ET AL. A-0938-09T1


In this product liability action, the trial court granted defendants' summary judgment motion and dismissed plaintiff's case after excluding plaintiff's expert report as a net opinion. We reverse because the deficiency in the expert's report was caused by the trial court's error in denying plaintiff the 450 days of discovery he is entitled to receive under Track III. R. 4:24-1(a).

Initially filed in the Law Division, the case was temporally removed to the United States District Court by one of the named defendants. The federal court thereafter granted plaintiff's motion to remand the case to the Law Division. Under the facts presented here, the Law Division erred by not tolling the running of the discovery period under Track III during the time the case was under the exclusive jurisdiction of the federal court. 9-09-11

DONALD J. TRUMP VS. TIMOTHY L. O'BRIEN, ET AL. A-6141-08T3


We affirm the trial court's order of summary judgment in favor of defendants Timothy L. O'Brien, the author of the book TrumpNation, The Art of Being The Donald, and his publishers, determining that Trump failed to demonstrate by clear and convincing evidence that O'Brien acted with actual malice when he reported that three unnamed sources had estimated Trump's net worth as between $150 million and $250 million, not the $5 to $6 billion that Trump claimed. In doing so, we focus principally on when an inference of actual malice may arise when an allegedly false report is published solely in reliance on confidential sources. 9-07-11

AXA AND EDUARDO KIEFFER VS. HIGH POINT INSURANCE COMPANY TAMESHA BROWN VS. FIRST TRENTON INDEMNITY COMPANY SANDRA KOZUSKO VS. NEW JERSEY MANUFACTURER

In these consolidated appeals, plaintiffs challenge provisions in their respective auto insurance policies excluding coverage for the diminution in the value of their autos damaged as a result of vehicular mishaps. Plaintiffs claim the exclusion provisions are ambiguous, contrary to the reasonable expectations of insureds, unconscionable, and also contrary to public policy.

We conclude the exclusion provisions are specific, plain, and clear, and provide no basis for plaintiffs to reasonably expect that diminution-in-value coverage is included in the policies. Additionally, we hold that exclusion of diminution- in-value coverage is not contrary to public policy. 8-30-11

IN THE MATTER OF SUZANNE HESS A-2408-09T1


This case involved a public employee who appealed from the final decision of the Board of Trustees of the Public Employees' Retirement System, which denied her application for deferred retirement benefits pursuant to N.J.S.A. 43:15A-38. We determined that the Board erred in ruling that appellant'sdeferred retirement benefits were forfeited as a result of her conviction of two counts of assault by auto. We conclude that where the removal from employment for cause is based on charges of misconduct or delinquency not related to the employee's official duties, the public employee is entitled to his or her vested deferred retirement allowance. 8-30-11

CECELIA MAVICA INGRAHAM VS. ORTHO-McNEIL PHARMACEUTICAL, ET AL. A-2216-10T2


Although the employment relationship is a factor to be considered, Taylor v. Metzger, 152 N.J. 490, 511 (1998), the elements of proof on a claim of intentional infliction of emotional distress, in accordance with Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366 (1988), are not altered by the "power dynamics of the workplace." Plaintiff's evidence that defendant supervisor directed her to remove pictures and ballet slippers of her deceased teenage daughter from her cubicle at work, and that she not talk about her daughter to co-workers, did not rise to the level of extreme and outrageous conduct, "to be regarded as atrocious, and utterly intolerable in a civilized community." Also, plaintiff's evidence was not sufficient to prove that the employer acted intentionally or recklessly to cause her emotional distress. 8-25-11

ALFRED HEHRE VS. ROBERT DEMARCO, JR., ET AL A-2812-10T4

Plaintiff was injured in a car accident while being driven to a school-sponsored track meet by a fellow student-athlete. He sued the track coach, Holy Spirit High School, and the Catholic diocese of Camden, claiming these defendants failed to provide him with a safe means of transportation to the school- sponsored event and, under principles of agency, were vicariously liable for the driver's negligence.

By leave granted from the trial court's denial of defendants' motion for summary judgment based on the Charitable Immunity Act, we hold that the exemption to immunity provided in N.J.S.A. 2A:53A-7(c)(2) applies only to a "trustee, director, officer, employee, agent, servant or volunteer" of a charitable entity who causes "damage as the result of the negligent operation of a motor vehicle." By its plain and clear language, N.J.S.A. 2A:53A-7(c)(2) does not vitiate the immunity otherwise granted by the Legislature in N.J.S.A. 2A:53A-7(a) to an associated charitable entity. 8-18-11

DRINKLER BIDDLE & REATH LLP VS. NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF LAW A-2387-09T3


In this appeal, plaintiff Drinker Biddle & Reath LLP sought access to unfiled discovery (the deposition transcripts of three experts) in an environmental lawsuit brought by the New Jersey Department of Environmental Protection against ExxonMobil Corp. pursuant to OPRA. We hold that N.J.S.A. 47:1A-9b exempts unfiled discovery from public disclosure. However, we reverse and remand for the trial court to conduct the appropriate balancing test to determine whether the transcripts are accessible under the common-law right-of-access. 8-18-11

SENTINEL INSURANCE COMPANY, LTD. VS. EARTHWORKS LANDSCAPE CONSTRUCTION, L.L.C., ET AL. A-0748-10T1


This case involved a declaratory judgment action seeking to void a workers' compensation insurance policy on the grounds of misrepresentation. We determined that the Law Division judge did not err in dismissing the complaint without prejudice and transferring the issue to the Division of Workers' Compensation for determination by it in connection with the adjudication of the compensation claim. 8-16-11

IN RE ADOPTION OF HIGHLANDS REGIONAL MASTER PLAN A-1054-08T1


The Highlands Act authorizes the Highlands Council to adopt a transfer of development rights program for the Highlands Region that does not strictly conform with the provisions of the State Transfer of Development Rights Act. 8-15-11

IN RE HIGHLANDS MASTER PLAN, EXECUTIVE ORDER 114, ETC. A-1026-08T1


The Highlands Council was not required to follow the rule- making procedures of the APA in adopting the regional master plan for the Highlands Region. The Council on Affordable Housing violated the APA by adopting a resolution and accompanying "Guidance document" that substantially changed the affordable housing obligations of municipalities in the Highlands Region without complying with the rule-making procedures of the APA. 8-15-11

MARTIN O'BOYLE VS. DISTRICT I ETHICS COMMITTEE, ET AL. A-4599-09T4


Rule 1:20-3(h) provides that in cases where a grievance that was found by the district ethics committee to allege unethical behavior was docketed and dismissed following an investigation, a grievant may appeal that decision to the Disciplinary Review Board. In contrast, Rule 1:20-3(e)(3) allows the secretary of a district ethics committee to decline to docket a grievance against an attorney which the secretary, with the concurrence of a public member, has determined fails to allege conduct violative of the Rules of Professional Conduct. The issue presented in this appeal is whether Rule l:20-3(e)(6), which precludes an appeal of an undocketed grievance, violates a grievant's right to due process or equal protection of the laws. As the plaintiff-grievant fails to assert a viable constitutional basis for his challenge, we affirm the Law Division's dismissal of his complaint. 08-12-11

Sheila Aronberg, etc., et al. v. Wendell Tolbert, et al. (A-9-10; 066414)


When an uninsured motorist’s cause of action is barred by N.J.S.A. 39:6A-4.5(a), an heir has no right of recovery under the Wrongful Death Act, N.J.S.A. 2A:31- 1 to -6.

Blanca Gonzalez v. Wilshire Credit Corporation, et al. (A-99-09; 065564)


The post-foreclosure-judgment agreements in this case constitute a stand-alone extension of credit. In fashioning and collecting on such a loan, a lender or its servicing agent cannot use unconscionable practices in violation of the Consumer Fraud Act.

Debra Ann Lombardi v. Christopher J. Masso, et al. (A-28/29-10; 066488)

Debra Ann Lombardi v. Christopher J. Masso, et al. (A-28/29-10; 066488)

In this case alleging breach of contract and fraud in a real estate transaction, the Appellate Division correctly determined that the trial court’s original summary judgment order dismissing several of the defendants was issued in error, the trial judge was well within his discretion in revisiting and vacating the interlocutory summary judgment order, and the law of the case doctrine did not apply to bar reconsideration under these circumstances.

In the Matter of Gerald M. Saluti, an Attorney at Law (D-70-10; 067548)

In the Matter of Gerald M. Saluti, an Attorney at Law (D-70-10; 067548)

The action of the Supreme Court to suspend Gerald M. Saluti from the practice of law for failure to comply with fee arbitration committee determinations qualifies as an exception to the automatic stay provision of the U.S. Bankruptcy Code and Saluti is suspended from practice pending his compliance.

Fair Share Housing Center, Inc. v. N.J. State League of Municipalities (A-36-10; 066228)


The League of Municipalities is a “public agency” under the Open Public Records Act and must provide access to “government record[s]” that are not subject to an exemption.

Robert Buck v. James R. Henry, M.D. (A-10-10; 065860)


The case is remanded for a Ferreira conference. Buck acted in good faith in filing affidavits of merit from two different medical specialists; and if the conference had been conducted as required and the trial court found deficiencies, Buck would have had additional time to submit an affidavit that conforms to N.J.S.A. 2A:53A-41. In the future, a physician8-8-11

8-1-11

7-28-11

7-28-11

defending against a medical malpractice claim, who admits treating the plaintiff, must include in his answer the medical specialty, if any, in which he was involved when rendering treatment to the plaintiff.

Sunday, August 14, 2011

Slip & Fall due to ice law JUAN GUTIERREZ,

Slip & Fall due to ice law

JUAN GUTIERREZ,

Plaintiff-Appellant,

v.

JEAN M. HUNTINGTON and CLIFFORD

HUNTINGTON,

Defendants/Third-Party

Plaintiffs-Respondents,

v.

JORGE CABRERADUARTE a/k/a

JORGE CABRERA,

Third-Party Defendant.

APPELLATE DIVISION

DOCKET NO. A-0965-10T2

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY


_________________________________________

Submitted July 5, 2011 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No.

L-5068-08.

Flores Sternick Poosikian, attorneys for

appellant (Edwin Flores, of counsel;

Joseph P. Kreoll, on the brief).

Caruso Smith Edell Picini, attorneys for

respondents (Richard D. Picini, of counsel;

Jennifer L. Bocchi, on the brief).

PER CURIAM

August 10, 2011

2 A-0965-10T2

Plaintiff Juan Gutierrez appeals from the order of the Law

Division granting defendants Jean M. and Clifford Huntington's

summary judgment motion and dismissing his personal injury cause

of action. We reverse and remand.

Plaintiff was injured when he slipped on ice and fell onto

the concrete patio abutting a single family house rented by

third-party defendant Jorge Cabrera. At the time of the

accident plaintiff was temporarily residing with Cabrera as his

guest. Plaintiff sued the Huntingtons, alleging that the

accident was caused by snow-covered ice that formed from water

that pooled around a clogged drain in a depressed section of the

patio. This drainage problem was exacerbated by the absence of

roof gutters, which permitted precipitation from the roof to

fall directly onto the patio. Plaintiff submitted a report from

an engineer who opined the conditions of the patio violated a

municipal ordinance that requires all premises to be graded to

prevent the accumulation of stagnant water.

Relying on Patton v. The Texas Co., 13 N.J. Super. 42 (App.

Div.), certif. denied, 7 N.J. 348 (1951), defendants moved for

summary judgment arguing that, as a residential landlord, they

are not liable for injuries sustained by a tenant or a tenant's

guest "unless there has been fraudulent concealment of a latent

defect." Id. at 47. In response, plaintiff urged the court to

3 A-0965-10T2

rely on the standard established in Section 358 of the

Restatement (Second) of Torts (1965), which states:

(1) A lessor of land who conceals or fails

to disclose to his lessee any condition,

whether natural or artificial, which

involves unreasonable risk of physical harm

to persons on the land, is subject to

liability to the lessee and others upon the

land with the consent of the lessee or his

sublessee for physical harm caused by the

condition after the lessee has taken

possession, if

(a) the lessee does not know or have reason

to know of the condition or the risk

involved, and

(b) the lessor knows or has reason to know

of the condition, and realizes or should

realize the risk involved, and has reason to

expect that the lessee will not discover the

condition or realize the risk.

(2) If the lessor actively conceals the

condition, the liability stated in

Subsection (1) continues until the lessee

discovers it and has reasonable opportunity

to take effective precautions against it.

Otherwise the liability continues only until

the vendee has had reasonable opportunity to

discover the condition and to take such

precautions.

Plaintiff relied on Reyes v. Egner, 404 N.J. Super. 433,

448-55 (App. Div. 2009), aff'd by equally divided court on other

grounds, 201 N.J. 417 (2010), in which this court used Section

358 to determine the duty owed by a landlord to short-term

tenants of a vacation home and their guests. The dangerous

condition in Reyes involved an elevated deck and stairs which,

4 A-0965-10T2

given the plaintiff's unfamiliarity with the residence's layout,

caused the plaintiff to fall and injure himself. Id. at 440-41.

The question before this court was whether the lessor and

the lessee had "reason to know" of a condition that "involves

unreasonable risk of physical harm." Id. at 461-62. Focusing

on the short duration of the rental, we declined to follow

Patton and held the defendant potentially liable. Ibid.

Writing for the panel, Judge Sabatino concluded that, in such

circumstances, the landowner's duties "should be defined

consistent with the precepts of Section 358" of the Restatement.

Ibid.

The short duration of the tenancy, however, was not the

only factor we considered in Reyes. Because the dangerous

condition created by the elevated deck was also a violation of

the construction codes, this factor could be considered by a

jury as "evidential if not conclusive" evidence of the

landlord's breach of the duty owed to the tenants. Id. at 458.

Here, the record shows the motion judge was sympathetic to

plaintiff's argument but considered himself bound by our

decision in Patton, which he viewed as a viable precedent even

after Reyes. The judge noted:

I would not at all be surprised if in the

next case an Appellate Court were to adopt

the full rule of the Restatement (Second)

Section 358. But they had not up to this

5 A-0965-10T2

point and the rule is enunciated and []

Patton and Szeles1 does remain the rule in

this state. They're from . . . the

Appellate Division and this Court is bound

to follow it.

The court heard and decided defendants' summary judgment

motion on September 16, 2010. Approximately eight months

thereafter, we decided Meier v. D'Ambose, 419 N.J. Super. 439

(App. Div. 2011), in which we considered "whether the ownerlandlord

of a single-family residence had a duty to the tenant

to maintain, and thus periodically inspect, the furnace to

prevent a hazardous condition." Id. at 441.

In Meier, decedent's estate and heir sued the landlord for

negligence and wrongful death, alleging the tenant died from

smoke inhalation from a fire that may have been caused by a

defective gas-fired heater located in the crawl space of the

single-family dwelling. Id. at 442. The trial court in Meier

characterized the "deteriorated flue pipe" in the furnace that

1 Szeles v. Vena, 321 N.J. Super. 601 (App. Div.), certif.

denied, 162 N.J. 129 (1999), in which the plaintiff-tenant was

injured when he fell from an exterior staircase where a brick

had come loose. Plaintiff had not noticed the loose brick, and

he had not requested that the landlord repair the steps. Id. at

603-04. Relying on Patton, the panel in Szeles held that "where

plaintiff was in exclusive possession of the premises and the

condition of the brick step was not a condition that was known

to the landlord at the inception of the lease, or brought to the

landlord's attention, there is no basis to impose tort liability

on the landlord." Id. at 608.

6 A-0965-10T2

caused the fire as a "latent defect" because the defendant had

no prior notice of its malfunction. Id. at 445.

Relying on Patton and Szeles, the trial court in Meier

granted the landlord's motion for summary judgment, holding "as

a matter of law that [the] defendant did not have a duty to make

periodic inspections of the furnace to discover any such defects

because [the tenant] was in sole possession of the premises."

Id. at 445-46. We reversed and remanded the matter for trial.

Id. at 446.

We began our premises liability analysis in Meier by

reaffirming the fact-specific, public policy principles

articulated by our Supreme Court in Hopkins v. Fox & Lazo

Realtors, 132 N.J. 426 (1993):

To determine whether the owner of property

had a duty in particular circumstances to

the injured person, a court must examine

such factors as "the relationship of the

parties, the nature of the attendant risk,

the opportunity and ability to exercise

care, and the public interest in the

proposed solution."

[Meier, supra, 419 N.J. Super. at 445,

quoting Hopkins, supra, 132 N.J. at 439.]

From this point, we reviewed the evolutionary trend in premises

liability law defining a landowner's duty consistent with the

precepts of Section 358 of the Restatement (Second) of Torts

7 A-0965-10T2

(1965). Meier, supra, 419 N.J. Super. at 446-47, citing Reyes,

supra, 404 N.J. Super. at 448-55.2

With these principles as our guide, we now return to the

question presented in this appeal. At the time of this

accident, plaintiff had been living as the "guest" of thirdparty

defendant Cabrera for approximately two months. Cabrera

allowed plaintiff to share his home rent-free while plaintiff

searched for his own place to live.

Cabrera was defendants' tenant under a written lease that

began on July 27, 2004, and continued on a month-to-month basis.

The lease contained certain "terms and conditions." Of

relevance here, paragraph 5 required Cabrera to "keep and

maintain the premises in a clean and sanitary condition;"

paragraph 10 "reserves" defendants the right to enter the

premises "for the purpose of inspection, and whenever necessary

to make repairs and alterations." At his deposition, Cabrera

testified that he had a verbal agreement with defendants through

which he was responsible for removing the snow and ice from the

property.

2 We also noted the Supreme Court's decision in Parks v. Rogers,

176 N.J. 491, 499 (2003), in which the Court looked to the

Restatement (Second) of Torts § 342 (1965), to determine a

homeowner's duty to protect an unsuspecting social guest from

dangers on the premises.

8 A-0965-10T2

Here, plaintiff argues defendants have a duty to plaintiff

to maintain the premises they rented to Cabrera, including the

concrete patio abutting the house, free from dangerous

conditions. Plaintiff further argues that defendants' duty in

this respect is independent of and notwithstanding any verbal

agreement they may have had with Cabrera.

The alleged dangerous condition here is twofold. The

first is the defective drain, which permits water to pool and

freeze when the temperatures fall below the freezing point. The

second is the lack of gutters on the roof of the dwelling, which

exacerbates the drainage problem because it allows water to cast

down in the same area. In the opinion of plaintiff's liability

expert, both of these alleged defects are violations of local

municipal laws that set certain minimum standards of maintenance

for this kind of dwelling.

In our view, these are not latent defects. Both of these

defects are structural matters that are within the exclusive

control of the landlord. The structural defects remain the

responsibility of the landlord to remediate when they create a

dangerous condition on the property. These structural defects

do not fall within day-to-day maintenance of the property

properly assumed by the tenant. Although the record suggests

that the clogged drain and absence of gutters was a long9

A-0965-10T2

standing problem, the record does not permit the motion judge to

find that the landlord had notice of the defects at or before

the time of the accident.

We are satisfied that the principles articulated in

Hopkins, Reyes, and Meier constitute the appropriate standard to

determine defendants' duty to plaintiff under these

circumstances. As we held in Meier:

The lessor . . . has a non-delegable duty of

care to third parties to avoid a hazardous

condition of his property. Whatever may be

the terms of a lease and the duties of

lessor and lessee as to each other, the

lessor cannot by virtue of the lease release

himself from potential liability to third

parties. In addition, the lessor benefits

in the long-term from maintaining the

property. He collects rent to fund

maintenance of the property, and he should

have the incentive and means to arrange

inspections to prevent hazardous conditions.

[Meier, supra, 419 N.J. Super. at 450

(internal citation omitted).]

Our standard of review from a trial court's order granting

a defendant summary judgment is plenary. We must independently

determine, without deference to the trial court's ruling,

whether disputed issues of fact exist for determination by a

jury. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.

Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608

(1998). We must "consider whether the competent evidential

materials presented, when viewed in the light most favorable to

10 A-0965-10T2

the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995); R. 4:46-2(c).

Plaintiff's expert's report contains sufficient evidence to

create a jury question as to whether defendants should be held

liable for plaintiff's injuries. By means of any reasonable

inspection, defendant should have discovered how the defective

drain, coupled with the absence of roof gutters, were causing

water to pool in the patio. Under Meier, defendants have a duty

to inspect this property to ensure it is free of these dangerous

conditions. If a jury were to find defendants negligently

failed to inspect and thereafter correct this dangerous

condition on the property, it could then determine whether such

negligence was a proximate cause of plaintiff's injuries and if

so, to what extent plaintiff's own conduct, as compared with

defendants' negligence, caused him to fall.

Reversed and remanded. We do not retain jurisdiction.