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Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Wednesday, April 30, 2014

JO ANN SESSNER VS. MERCK SHARP & DOHME CORP. A-4977-11T3

JO ANN SESSNER VS. MERCK SHARP & DOHME CORP. 
A-4977-11T3 
We were on the eve of filing a comprehensive opinion on the many issues raised in a voluminous record on appeal when counsel advised the matter had settled. Upon further inquiry, we learned the parties reached a settlement months ago. Despite our discretion to file an opinion when notified at such a late hour, we have withdrawn our opinion on the merits. We dismiss the appeal with the emphatic reminder that counsel must advise this court in a far more timely manner of a settlement or serious settlement discussions so that scarce judicial resources are not needlessly wasted. 04/23/14 

ELBERT HUGHES V. A.W. CHESTERTON CO., ET AL./ MICHAEL GREEVER VS. A.W. CHESTERTON CO., ET AL./ GREGORY FAYER VS. A.W. CHESTERTON CO., ET AL./ ANGELO MYSTRENA, ET AL. VS. A.W. CHESTERTON CO

ELBERT HUGHES V. A.W. CHESTERTON CO., ET AL./ MICHAEL GREEVER VS. A.W. CHESTERTON CO., ET AL./ GREGORY FAYER VS. A.W. CHESTERTON CO., ET AL./ ANGELO MYSTRENA, ET AL. VS. A.W. CHESTERTON CO., ET AL. 
A-0778/779/4912/4913-11T2 (CONSOLIDATED) 
Plaintiffs in these consolidated cases alleged they contracted asbestos-related diseases as a result of their exposure to asbestos contained in component parts of pumps manufactured by defendant. We consider whether a manufacturer has a duty to warn that component parts, which will be regularly replaced as part of routine maintenance, contain asbestos. Under the facts of this case, we find it would be reasonable, practical and feasible to impose such a duty here. However, we also reject plaintiffs' argument 

that causation may be proved by proximity to defendant's product in the absence of proof they were exposed to an asbestos-containing product manufactured or sold by defendant and, therefore, conclude plaintiffs failed to make a prima facie showing of causation

L.A. v. D.Y.F.S.whether defendants breached the duty, imposed by N.J.S.A. 9:6-8.10, to report suspected child abuse whenever a person forms a reasonable belief that a child has been subjected to child abuse.


L.A. v. D.Y.F.S. (A-55/56-12)  
Argued January 6, 2014 -- Decided April 23, 2014 
LaVECCHIA, J., writing for a unanimous Court. 
The issue in this appeal is whether defendants breached the duty, imposed by N.J.S.A. 9:6-8.10, to report suspected child abuse whenever a person forms a reasonable belief that a child has been subjected to child abuse. 
On January 13, 2001, at about 8:00 p.m., two-year-old S.A. was brought to the emergency room of the Jersey Shore University Medical Center (JSMC) by two men who identified themselves as her relatives. They informed the triage nurse that they had been called to S.A.’s home by S.A.’s stepmother because S.A. was vomiting and unable to walk. The nurse noted that S.A. was lethargic and weak, and that she had an unusual odor on her breath. S.A. was examined by Dr. Daniel Yu, M.D., a board-certified Emergency Medicine specialist who was then an attending physician in JSMC’s Emergency Department. Dr. Yu noted that S.A.’s mouth smelled of “cologne” and “chemical alcohol.” Dr. Yu conducted a full examination of S.A. and performed a thorough set of diagnostic tests. Dr. Yu treated S.A. with an intravenous saline drip to prevent dehydration. The blood test results revealed that S.A. had a blood alcohol concentration of 0.035 percent. 
S.A.’s father, K.L., arrived at the hospital around 8:30 p.m. He presented JSMC staff with a bottle of cologne and stayed with S.A. while she was at JSMC. Dr. Yu noted that the cologne had a similar odor to S.A.’s breath and diagnosed S.A. with accidental cologne ingestion. Dr. Yu did not record information about the cologne and did not inquire as to how S.A. had come to consume it. Neither Dr. Yu nor any of the JSMC staff noted any signs that S.A. had been abused or neglected, and the Division of Youth and Family Services (DYFS)1 was not contacted. Subsequent to S.A.’s treatment at JSMC, S.A. received medical treatment at another physician’s office for a chemical burn on her foot. No reports were made to DYFS in connection with that incident. Reports, however, were filed in connection with two other incidents, one in March and the other in April, 2001. Those incidents resulted in findings of abuse and neglect by DYFS case workers. The April 2001 incident, which included multiple burns and numerous bruises, led to the removal of S.A. from K.L.’s care and the placement of S.A. with L.A., who adopted her in April 2006. 
1 DYFS is now known as the Division of Child Protection and Permanency. For ease of reference, the Court refers to the agency as DYFS throughout this opinion. 
In April 2007, L.A. filed the instant complaint individually and on behalf of S.A. against several parties, including Dr. Yu and JSMC. The complaint alleged that Dr. Yu had committed medical malpractice and had breached the standard of care set forth in N.J.S.A. 9:6-8.10 by failing to notify DYFS after treating S.A. for accidental cologne ingestion. With the exception of Dr. Yu and JSMC, all defendants settled out of court. Dr. Yu and JSMC filed motions for summary judgment. On August 13, 2010, the trial court granted summary judgment in favor of defendants, holding that no reasonable jury could find that Dr. Yu had reasonable cause to believe that child abuse had been committed against S.A. L.A.’s motion for reconsideration was denied. 
The Appellate Division reversed and remanded the matter for trial. The appellate panel concluded that summary judgment was inappropriate because “a reasonable jury could find that a probable inference from the information available to Dr. Yu at the time of treatment was that [S.A.’s] condition was the result of ‘reckless’ or ‘grossly or wantonly negligent’ conduct or inaction on the part of her parent or guardian.” L.A. ex rel. S.A. v. N.J. Div. of Youth & Family Servs., 429 N.J. Super. 48, 60 (App. Div. 2012). The Supreme Court granted the petitions for certification filed by Dr. Yu and JSMC. 213 N.J. 535 (2013).

HELD: Based on the record before the Court, the circumstances surrounding S.A.’s presentation at the hospital were insufficient to give rise to a finding that defendants behaved unreasonably in failing to report an incident of suspected child abuse, as required under N.J.S.A. 9:6-8.10. 
1. To support her medical malpractice claim, plaintiff must establish: “(1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury.” Gardner v. Pawliw, 150 N.J. 359, 375 (1997). In this case, the applicable standard of care is provided by N.J.S.A. 9:6-8.10, which requires that “[a]ny person having reasonable cause to believe that a child has been subjected to child abuse . . . shall report the same immediately to [DYFS].” When statutory language “clearly reveals the meaning of the statute, the court’s sole function is to enforce the statute in accordance with those terms.” McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001). However, “[i]f the plain language of a statute is ambiguous or open to more than one plausible meaning,” the court may look to sources of extrinsic evidence such as legislative history for assistance in determining legislative intent.” State v. Marquez, 202 N.J. 485, 500 (2010).  
2. On its face, N.J.S.A. 9:6-8.10 clearly indicates that the reporting requirement is applicable to all persons. The statute also states plainly that the reporting requirement is only triggered by a “reasonable cause to believe” that child abuse has been committed. As a standard, “reasonable cause to believe,” as well as its derivatives “reasonable belief,” “cause to believe,” and “reason to believe,” have been employed in a variety of contexts. The common judicial application given to a “reasonable cause” standard in multiple settings must have been familiar to the Legislature when it used “reasonable cause to believe” as its standard for imposing a duty to report suspected child abuse. Based on a plain language reading of the statute, the Court perceives that the Legislature intended that “reasonable cause to believe” that a child has been subjected to child abuse requires a reasonable belief based on the facts and circumstances known to the person on the scene. ( 
3. When the Legislature first enacted a statute providing for mandatory reporting of child abuse, that statute applied only to physicians and hospitals. In amending Title 9 in 1971, the Legislature studied and created a new requirement for reporting to child welfare authorities. The originally proposed bill mandated reporting by certain individuals, including household members and medical personnel, while providing that anyone else “may report suspicion or knowledge of child abuse.” Governor Cahill conditionally vetoed the proposed bill, amending it to make the reporting requirement mandatory as to all persons and to change the standard from “suspicion or knowledge” to “reasonable cause to believe.” The “reasonable cause to believe” standard, intended to be understood on its face and applicable to all persons, including physicians, imposes a requirement that is subject to the test for objective reasonableness. The statutory duty to report child abuse requires a reasonable belief based on the facts and circumstances known to the person on the scene. The judgment and actions of the person on the scene must survive the test of objective reasonableness. 
4. Based on the record before the Court, the circumstances surrounding S.A.’s presentation at the hospital were insufficient to give rise to a finding that Dr. Yu behaved unreasonably in failing to report an incident of suspected child abuse. There was no evidence of intentional behavior by S.A.’s parents or legal guardians in connection with what Dr. Yu reasonably perceived to be an accidental ingestion of cologne. Moreover, the Court cannot ignore the fact that the liquid two-year-old S.A. ingested was a common item found in many homes, and not an inherently dangerous item that no reasonable adult would allow in any accessible proximity to a child of such tender age. The idea that a toddler might find a way to get her hands on a common cosmetic or toiletry item is not equivalent to grossly negligent or reckless behavior on the part of a parent. Later tragic events in the life of this child cannot cloud the analysis when considering the objective reasonableness of Dr. Yu’s first and only interaction with two-year-old S.A. Viewing the facts objectively and as presented to Dr. Yu, the Court concludes that he did not breach the reporting obligation in N.J.S.A. 9:6-8.10 in respect of S.A.’s emergency room visit and treatment for apparent accidental cologne ingestion. (pp. 26-30) 
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for reinstatement of its judgment dismissing this action against defendants. 
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and FERNANDEZ-VINA; and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. 

Tuesday, April 22, 2014

IN THE MATTER OF THE GRANT OF A CHARTER TO THE MERIT PREPARATORY CHARTER SCHOOL OF NEWARK AND IN THE MATTER OF THE GRANT OF A CHARTER TO THE NEWARK PREPARATORY CHARTER SCHOOL A-0019-12T2


IN THE MATTER OF THE GRANT OF A CHARTER TO THE MERIT PREPARATORY CHARTER SCHOOL OF NEWARK AND IN THE MATTER OF THE GRANT OF A CHARTER TO THE NEWARK PREPARATORY CHARTER SCHOOL
A-0019-12T2
The Commissioner of Education did not exceed his authority pursuant to The Charter School Program Act of 1995, N.J.S.A. 18A:36A-1 to -18, when he granted charters to two schools that use a "blended" teaching methodology that combines in-person, face-to-face teaching and online instruction by means of internet materials. 04/09/14 

SALVATORE LOPRESTI AND MARGARET LOPRESTI VS. WELLS FARGOBANK,N.A. A-1356-12T3


SALVATORE LOPRESTI AND MARGARET LOPRESTI VS. WELLS FARGOBANK,N.A.
A-1356-12T3
We hold that the proscription against a prepayment penalty in the New Jersey Prepayment Law, N.J.S.A. 46:10B-1 to -11.1, does not apply to commercial loans even when personally guaranteed by the individual owners of the business to which the loan was made, and secured by a mortgage on their primary residence. 04/08/14  

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. L.W. AND R.W. IN THE MATTER OF I.W. AND K.W. A-3001-12T3


NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. L.W. AND R.W. IN THE MATTER OF I.W. AND K.W.  A-3001-12T3
We reverse a finding of neglect after a mother came to the Division of Child Protection and Permanency office seeking housing for her two young children. We determine that the judge's finding of "unbelievably poor planning" was not sufficient for a finding of neglect. Parents of young children who become desperate for housing should be encouraged to seek a temporary safe placement for the children from the Division.  4/07/14 

04/07/14 PETER INNES, ET AL. VS. MADELINE MARZANO- LESNEVICH, ESQ., ET AL. VS. MITCHELL A. LIEBOWITZ, ESQ., ET AL. A-0387-11T1

04/07/14 PETER INNES, ET AL. VS. MADELINE MARZANO- LESNEVICH, ESQ., ET AL. VS. MITCHELL A. LIEBOWITZ, ESQ., ET AL.
A-0387-11T1

Plaintiff, individually and on behalf of his daughter, sued defendants, a law firm and one of its principals,
page1image17032 page1image17192 page1image18952

alleging emotional distress damages as a result of defendants' breach of their professional responsibility. The complaint centered on a pre-divorce agreement, executed by the parties and their attorneys, that required plaintiff's ex-wife's then attorney to hold the daughter's passport in trust. Defendants, as successor counsel, with full knowledge of the agreement and without notice to anyone, gave the passport to the child's mother, who used it to remove the child to Spain, where she remains in the custody of her maternal grandparents. Plaintiff's ex-wife was criminally prosecuted and at the time of trial was incarcerated in New Jersey. Plaintiff has essentially been denied any contact with the child in the ensuing years. See Innes v. Carrascosa, 391 N.J. Super. 453 (App. Div.), certif. denied, 192 N.J. 73 (2007).
The jury found that, even though they were not clients, defendants breached the professional duty they owed to plaintiffs. It awarded damages to both father and daughter, and the judge included an award of counsel fees to both as part of the final judgment.
We affirmed the judgment as to plaintiff-father, but vacated the judgment as to his daughter. We discuss the duty owed by an attorney to a third-party in certain circumstances, the availability of emotional distress damages in an action sounding in legal malpractice, the necessary elements of proof in such an action and the propriety of an award of counsel fees to non-clients in such circumstances. 

OSEPH CHERILUS, ET AL. VS. FEDERAL EXPRESS, ET AL. A-1285-12T2

OSEPH CHERILUS, ET AL. VS. FEDERAL EXPRESS, ET AL.
A-1285-12T2
Claims against the designer/manufacturer of a torklift (air cargo lift), specially designed for a Federal Express facility and affixed to the loading dock, were correctly dismissed as barred by the ten-year statute of repose, N.J.S.A. 2A:14-1.1(a). Also, plaintiffs could not effectively assign their tort claims against the designer/manufacturer to the settling defendant. And the settling defendant did not preserve its right to seek contribution under the Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-3, when it settled with plaintiffs and filed a stipulation of dismissal rather than allow a "money judgment" to be entered in favor of plaintiffs. 04/02/14 J

H.S.P. VS. J.K. A-1121-12T1


H.S.P. VS. J.K.   A-1121-12T1
A petitioner asking the Family Part to make the findings in 8 U.S.C.A. § 1101(a)(27)(J) to enable a juvenile to apply for special immigrant juvenile status must show that reunification is viable with neither of the juvenile's parents due to abuse, neglect, or abandonment. It is insufficient to show only that one parent abused, neglected, or abandoned the juvenile.
The mother, who raised the juvenile, did not willfully neglect him merely because she was financially unable to provide better care. The mother did not abandon the juvenile, given that she arranged for him to enter the United States to live with a relative, and remains in contact with him. By contrast, the father, whose whereabouts are unknown, willfully abandoned the juvenile, because he left the family before the juvenile was born, never met the teenaged juvenile, and provided no support.
Because one parent had not abused, neglected, or abandoned the juvenile, the Family Part did not err in declining to find whether it was in the juvenile's best interest to be returned to his home country. 03/27/14  

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCYVS. C.W. I/M/O I.N.W. A-0542-12T4


NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCYVS. C.W. I/M/O I.N.W.   A-0542-12T4
We address the requisite procedures Family Part judges must follow to protect a defendant's due process rights when a child's testimony is sought in a protective services action. We hold that in any proceeding filed pursuant to N.J.S.A. 9:6-8.21(c), when a defendant objects to utilizing an alternative to the child's in-court testimony, the judge must adhere to the statutory procedures outlined in N.J.S.A. 2A:84A-32.4, prior to allowing in camera testimony of a child-witness. 03/27/14 

HESS CORPORATION V. ENI PETROLEUM US, LLC A-3464-12T4

HESS CORPORATION V. ENI PETROLEUM US, LLC
          A-3464-12T4
 In this appeal, we address the issue of whether defendant could raise a force majeure defense to plaintiff's breach of contract claim in a case where defendant's production of natural gas was disrupted by a leak in an underwater pipeline used to bring the gas to shore from defendant's offshore production point. The parties' contract provided that defendant was required to provide a specific quantity of natural gas to plaintiff at a specific location for a specific price. However, the contract did not specify where defendant would obtain the gas to fulfill its obligation. Although defendant's own production of gas was disrupted by the leak in the pipeline, gas was still available from other sources to enable defendant to meet the requirements of the contract. Under those circumstances, we affirmed the decision of the trial court that the leak in the pipeline defendant used for the gas it produced did not constitute a force majeure event under the contract and was not grounds for excusing defendant's failure to perform the clear terms of its agreement with plaintiff. 03/26/14  

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. K.N. AND K.E. I/M/O T.E., A MINOR A-4847-12T1


NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. K.N. AND K.E. I/M/O T.E., A MINOR A-4847-12T1
By our leave, the Division of Child Placement and Permanency (the Division) appeals from an order that required the return of a child to the home of his "maternal grandmother as a paid resource parent." We reversed that part of the order that required the Division to recognize the grandmother as a "paid resource parent," concluding that the Legislature has reserved issues as to licensure of a resource parent to the Division, in the reasonable, non- arbitrary exercise of its discretion.
However, we also concluded that the Division failed to provide notice to the judge of its removal of the child, something it was required to do beforehand by its own regulations. We further concluded that the judge, not the Division, had the authority to place the child based upon a determination of the child's best interests, even if the placement was with a relative who either did not qualify for a license or did not seek one.
We nevertheless reversed the order and remanded the matter for further proceedings because the judge failed to appreciate all the statutory criteria that should guide his consideration of the Division's opposition to a particular placement. We also clarified that under N.J.S.A. 30:4C- 26.8(d)(9), the disqualification of a license to a resource home based upon a "conviction" for "domestic violence" means the entry of a final restraining order under the PDVA, even though those proceedings are civil in nature. 03/20/14 

NEW JERSEY REALTY CONCEPTS, LLC, ET AL. VS. JOHN MAVROUDIS, ET AL. A-2013-12T1


NEW JERSEY REALTY CONCEPTS, LLC, ET AL. VS. JOHN
          MAVROUDIS, ET AL.
A-2013-12T1
The Chancery Division's appointment of a special fiscal agent as the managing agent for a corporation does not place the property of the corporation in custodia legis. Appointment of a receiver would have placed the property in custodia legis, but the appointment of a special fiscal agent occurs with fewer procedural safeguards, endows the agent with more circumscribed powers, and provides less protection. Accordingly, rents due to the corporation could be reached by execution of a creditor's Law Division judgment against the corporation, and could be levied upon by the Sheriff.
A corporation's interest in rents from a property it owns with another corporation as tenants in common may be levied upon by a creditor of the corporation.  03/19/14  

NATALIE BELLINO VS. VERIZON WIRELESS A-1132-12T4


NATALIE BELLINO VS. VERIZON WIRELESS
          A-1132-12T4
In this case we consider the essential elements required by the Workers' Compensation Act's anti-fraud provision, N.J.S.A. 34:15-57.4, to negate a claimant's eligibility for benefits under the Act. In particular, we address the state of mind that a respondent must prove to disqualify a claimant who has made misstatements about his or her medical history when applying for benefits. We uphold the workers' compensation judge's decision finding respondent did not prove the necessary elements under the anti-fraud provision as it did not prove that claimant had the intent to make false statements for the purpose of obtaining benefits. 3/19/14  

Monday, April 21, 2014

Cheryl Hersh v. County of Morris


 Cheryl Hersh v. County of Morris (A-59-12; 071433)
          Because the County did not control the garage where
          Hersh parked, the route of ingress and egress from the
          parking garage to her office, or the public street
          where she was injured, and did not expose her to any
          special or additional hazards, Hershs injury occurred
          outside the employers premises and therefore is not
          compensable under the WorkersCompensation Act.
4-1-14   In this appeal, the Court considers whether a plaintiff injured while crossing a public street as she walked from a private garage, where she had employer-paid parking, to her office a few blocks away is entitled to workers’ compensation benefits under the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -142.
Plaintiff, Cheryl Hersh, was employed by defendant, County of Morris (“County”). Although Hersh did not have sufficient seniority to park in a county-owned lot located adjacent to her building, the County also rented approximately sixty-five parking spaces for its employees in the Cattano Garage, a private parking garage containing several hundred parking spaces located approximately two blocks from Hersh’s office. The County granted Hersh permission to park in one of the rented spots, gave her a scan card so she could enter the garage, and instructed her to park on the third level. She was not assigned a particular parking space. On January 29, 2010, Hersh parked her car on the third level of the Cattano Garage, exited the garage, and was struck by a motor vehicle while crossing a public street between the Cattano Garage and her office. Hersh suffered significant injuries.
Hersh filed for workers’ compensation benefits pursuant the Workers’ Compensation Act. The judge of compensation concluded that Hersh’s injuries were compensable under the Act. Relying on Livingstone v. Abraham & Strauss, Inc., 111 N.J. 89 (1989), the judge found that parking lots provided or designated for employee use are part of the employer’s premises for purposes of workers’ compensation. Therefore, the judge found that Hersh’s accident occurred during the course of her employment because it happened after she had arrived at her employer-controlled lot. The Appellate Division affirmed. The panel agreed that the case was controlled by the principles of Livingstoneand held that, although the garage and the sidewalk en route to Hersh’s building were not part of the workplace in the property sense, the County exercised control over those areas by designating the third floor of the garage for use by employees. The panel determined that the County’s control extended the workplace premises to the garage and public streets. The Court granted defendant’s petition for certification. 213 N.J. 536 (2013).
HELD: Because the County did not control the garage where Hersh parked, the route of ingress and egress from the parking garage to her office, or the public street where she was injured, and did not expose her to any special or additional hazards, Hersh’s injury occurred outside of the employer’s premises and therefore is not compensable under the Workers’ Compensation Act.
1. Injuries “arising out of and in the course of employment” are compensable under the Workers’ Compensation Act. N.J.S.A. 34:15-7. Prior to 1979, workers’ compensation jurisprudence included the “going and coming rule,” which prevented awarding workers’ compensation benefits for accidental injuries that occurred during routine travel to or from the employee’s place of work. Due to many exceptions to the going and coming rule, allowing for countless awards of workers’ compensation benefits, in 1979, the Legislature amended the Act to make the definition of “employment” more restrictive. Those amendments, which define when employment begins and ends, replaced the “going and coming rule” with the “premises rule.” N.J.S.A. 34:15-36 provides: “Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer.” N.J.S.A. 34:15-36. The phrase “excluding areas not under the control of the employer” was intended to make clear that the premises rule can entail “more than the four walls of an office or plant.” Kristiansen v. Morgan, 153 N.J. 298, 316 (1997). “The pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred.” Id. at 316-17 (citing Livingstone, 111 N.J. at 96). (pp. 8-11)
2. In Livingstone, the employer, a mall tenant, directed its employees to park in the far end of the mall-owned parking lot to ensure that its customers would be able to use the closer spaces. 111 N.J. at 91. An employee was injured while walking toward the building after she parked her car in the lot. Id. at 90-91. The Court determined that the employee’s injuries arose out of and in the course of employment, and therefore were compensable under the Act, because the employer’s directive telling employees where they must park exposed its employees to an added hazard in order for the employer to gain a business benefit. Id. at 104-06. The Court clarified its Livingstone holding in Novis v. Rosenbluth Travel, 138 N.J. 92 (1994). In Novis, while walking from her car to her place of employment, an employee slipped on the sidewalk connecting a parking lot to the sole entrance of the office building in which her employer was a tenant. Id. at 94. The Court found the employee’s injuries non-compensable, stating that the employer “simply shared the lot with the other tenants, a circumstance vastly different from the specific facts that influenced [the] holding in Livingstone.” Id. at 96. The Court held that because the facts were insufficient to establish any exercise of control by the employer over the lot or the ingress and egress route, the employee had not yet commenced her employment at the time of the accident. Ibid. The Court has also focused on ingress and egress routes to the place of employment in other workers’ compensation cases. In Ramos v. M & F Fashions, Inc., 154 N.J. 583, 593-94 (1998), the Court concluded that an employer was responsible for an employee’s injuries which occurred when he fell down an elevator shaft regularly used by the employees to access the employer’s fourth-floor business. Similarly, in Brower v. ICT Group, 164 N.J. 367, 373-74 (2000), the Court found that a stairwell in the rear of the building accessing the employer’s second-floor place of employment was part of the employer’s premises. (pp. 12-16)
3. The Appellate Division has also grappled with the degree of control or direction an employer exercised to decide whether benefits are available. In Cannuscio v. Claridge Hotel, 319 N.J. Super. 342, 353-54 (App. Div. 1999), a woman assaulted on a public sidewalk after picking up her paycheck was not entitled to compensation because the event occurred on a public sidewalk, “not in the area of or leading to a designated employee parking lot,” and the sidewalk was an area where the employer had no control. In Serrano v. Apple Container, 236 N.J. Super. 216, 220-21 (App. Div. 1989), an employee who had left his employer’s parking lot and was taking a shortcut through an adjacent parking lot to gain access to a public roadway when injured, was neither acting in the course of his employment nor injured on the premises of his employer. By contrast, in Ehrlich v. Strawbridge & Clothier, 260 N.J. Super. 89, 92 (App. Div. 1992), although the staircase and adjacent sidewalk where the employee was injured were not part of the employer’s premises in a property sense, the injuries were compensable because the employer controlled the areas by instructing the employees which route to use to enter and exit the employer’s establishment. InBradley v. State, 344 N.J. Super. 568, 583 (App. Div. 2001), injuries sustained by employees after arriving at a parking lot were compensable even though the lot was not owned by the employer because the employer required its employees to follow a specific ingress and egress route from the parking lot to the building. These cases support the principle that public places that are not under the control of the employer are not considered part of the employer’s premises for purposes of workers’ compensation benefits, even if employees use the route for ingress or egress to the place of employment, except in those instances where the employer controls the route. (pp. 16-18)
4. Applying the principles of these cases to the appeal here, the County did not own, maintain, or control the Cattano Garage. It only rented a small portion of the lot and did not derive a direct business interest from paying for employees to park there. The County also did not control the public street where the accident occurred and did not dictate which path Hersh had to take to arrive at her place of employment. In walking a few blocks from the Cattano Garage to her workplace, Hersh did not assume any special or additional hazards. Unlike the limited routes to the places of employment in BrowerRamos, or Ehrlich, Hersh’s route to work was used by the public, similar to the route to the building in Novis. Even though the “premises rule” is not limited to the four walls of an office or plant, the concept of “employer control” to determine the compensability of an employee’s injury is limited, and depends on the situs of the accident and the degree of employer’s control of the property. In the circumstances of this case, an employee who is injured on a public street, not controlled by the employer, is not entitled to compensation under the Workers’ Compensation Act. (pp. 18-20)

Charlotte Robinson v. Frank Vivirito,


Charlotte Robinson v. Frank Vivirito, et al. (A-63-12;
          072407)
          Under the Tort Claims Act, a school principal owes no
          duty of care to a third party who decides to use
          school property after hours for personal purposes and
          is injured by a stray animal that is neither owned nor
          controlled by school personnel. 3-26-14   

In the Matter of the Civil Commitment of R.F.


In the Matter of the Civil Commitment of R.F. (070552)
          The trial Court’s findings in a civil commitment
          hearing under the Sexually Violent Predator Act,
          N.J.S.A. 30:4-27.24 to -27.38, are entitled to
          deference, and a reviewing court may not overturn the
          commitment court’s ruling based upon its determination
          that it would have come to a different conclusion had
          it sat as the trier of fact.  3-19-14   

Manahawkin Convalescent v. Frances O’Neill


 Manahawkin Convalescent v. Frances O’Neill (A-17-12;
          071033)
          Because Manahawkin’s Admission Agreement imposed no
          requirements on O’Neill that contravened the NHA, and
          neither the Admission Agreement nor Manahawkin’s
          complaint gave rise to a cause of action under the CFA
          or the TCCWNA, dismissal of O’Neill’s claims was
          proper.  However, nursing homes and their counsel
          should ensure that each party’s rights and remedies
          are clearly reflected in contracts and communications
          between facilities and individuals who arrange payment
          on a resident’s behalf.  
In this appeal, the Court considers whether a contract between a nursing home and the daughter of one of its residents violated the Nursing Home Act (NHA), N.J.S.A. 30:13-1 to -17, which bars certain nursing homes from requiring third parties to guarantee payment as a condition of admitting or retaining a patient. The Court also considers the contract’s validity under the Consumer Fraud Act (CFA), N.J.S.A.56:8-1 to -20, and the Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18.
Following Hopkins’ death in 2008, and O’Neill’s appointment as executrix of the estate, a dispute arose between O’Neill and Manahawkin regarding an unpaid balance of $878.20. In March 2009, O’Neill received a letter from Manahawkin’s Collection Department stating that she, as the Responsible Party, had “the obligation to pay any debts owed by [Hopkins] to the facility.” The letter explained that failure to pay would result in legal action against O’Neill. In April 2009, Manahawkin filed a complaint in which O’Neill was named as the sole defendant. O’Neill asserted a counterclaim/third party complaint, claiming that the Admission Agreement violated the NHA, CFA, and TCCWNA. In September 2009, Manahawkin abandoned its efforts to claim the balance on Hopkins’ account, and its complaint was dismissed with prejudice.
2 In April 2011, O’Neill reasserted her NHA, CFA, and TCCWNA claims against several third-party defendants. The parties cross-moved for summary judgment, which was granted in defendants’ favor. The trial court concluded that the Admission Agreement did not compel a Responsible Party to assume personal liability for a Medicaid patient’s contractual obligation. It pointed out that O’Neill did not sign the Private Pay Guarantor section and had received the Resident’s Bill of Rights, which explicitly disclaimed any third party guarantee. The court also found that both the collection letter and the complaint, although poorly drafted, sought to compel O’Neill to pay the balance from her mother’s funds. The court held that the NHA and the Admission Agreement constrained Manahawkin from seeking to collect O’Neill’s personal assets as payment for her mother’s care.
O’Neill appealed, and the Appellate Division panel affirmed. Manahawkin Convalescent v. O’Neill, 426 N.J. Super. 143 (App. Div. 2012). The panel noted that federal and state law barred Manahawkin from legally requiring O’Neill to use her personal assets to satisfy her mother’s debts, and concurred that Manahawkin had neither expressly nor implicitly violated the NHA. The panel also found that Manahawkin had not violated the CFA since it had used lawful means to seek payment from O’Neill as the Responsible Party. Although not raised by any party, the panel concluded that nursing homes are exempted from the CFA by virtue of the learned professional exception to the statute. This Court granted O’Neill’s petition for certification. 212 N.J. 430 (2012).
HELD: Because Manahawkin’s Admission Agreement imposed no requirements on O’Neill that contravened the NHA, and neither the Admission Agreement nor Manahawkin’s collection complaint gave rise to a cause of action under the CFA or the TCCWNA, dismissal of O’Neill’s claims was proper. However, nursing homes and their counsel should ensure that each party’s rights and remedies are clearly reflected in contracts and communications between facilities and individuals who arrange payment on a resident’s behalf.
1. The Court reviews the trials court’s summary judgment decision de novo, considering whether the evidence, when viewed in the light most favorable to the non-moving party, is sufficient to permit a rational factfinder to find in favor of the non-moving party. The trial court’s factual findings are accorded substantial deference, while legal conclusions are not. Appellate review of a trial court’s interpretation of a contract is de novo.  
2. The NHA complements the federal Nursing Home Reform Act, which, under 42 U.S.C.A. § 1396r(c)(5)(A)(ii), prohibits the requirement of third party guarantees of payment as a condition of admission to, or retention in, a nursing facility. In 1997, the NHA was amended to add similar language under N.J.S.A. 30:13-3.1. O’Neill’s NHA claim is premised on three alleged violations: (1) the Admission Agreement required that she spend her personal funds to pay her mother’s bills; (2) Manahawkin’s collection letter constituted an attempt to coerce her into using her own assets to pay the final bill; and (3) Manahawkin’s complaint improperly sought a remedy against O’Neill in her individual capacity. Reviewing the Admission Agreement as a whole, and considering the parties’ intent, the contract’s terms and purpose, and the surrounding circumstances, the Court concludes that it did not contravene federal law or the NHA. The Admission Agreement complied with the NHA by limiting O’Neill’s obligation to the payment of Hopkins’ bills with Hopkins’ assets. Similarly, although Manahawkin’s collection letter was inartfully drafted, it did not purport to assert rights beyond those authorized by the NHA. The complaint, although lacking in detail and improperly pled, also did not violate the NHA since did not allege that O’Neill was required to use her personal funds to pay Hopkins’ bills. Accordingly, the dismissal of O’Neill’s NHA claim was proper.
3. The broadly-applied CFA was intended to greatly expand protections for New Jersey consumers by combating deceptive and fraudulent practices. A CFA claim requires proof of three elements: (1) unlawful conduct; (2) an ascertainable loss; and (3) a causal relationship between the unlawful conduct and the loss. Conduct constituting an unlawful practice under the CFA requires deceptive, fraudulent or other similar selling or advertising practices. In certain circumstances, an agreement containing an unlawful term may satisfy this element. O’Neill predicated her CFA claim on Manahawkin’s alleged violation of the NHA, as well as its alleged violation of the TCCWNA, which also is premised upon violation of the NHA. Since O’Neill’s CFA claim was tethered to her NHA claim, she cannot prove unlawful conduct. Thus, the claim was properly dismissed, and the Court need not reach the issues of whether Manahawkin’s conduct was exempt from the CFA under the “learned professional” exception or whether O’Neill suffered an ascertainable loss.
4. The TCCWNA was enacted to prevent deceptive practices in consumer contracts by prohibiting the use of illegal terms or warranties. Like her CFA claim, O’Neill’s TCCWNA claim is predicated upon an alleged violation of the NHA’s prohibition on Medicaid or Medicare certified nursing homes requiring third party guarantees of payment as a condition of admission or retention. Although the trial court improperly failed to specifically address O’Neill’s TCCWNA claim in its ruling, its determination that the Admission Agreement did not violate the NHA also resolved the TCCWNA claim. The Appellate Division’s subsequent dismissal of the TCCWNA claim was consistent with Rule 1:7-4. 
5. Although Manahawkin did not violate the NHA, CFA or TCCWNA, its Admission Agreement, collection letter and complaint all failed to adequately set forth the respective rights and duties of the parties. Thus, the Court urges counsel for the nursing home industry to ensure that contracts are prepared, and collection practices are conducted, in a manner that fosters a clear understanding of each party’s rights and remedies under the law. 
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and ALBIN, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE PATTERSON’s opinion.
3-11-14