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Monday, May 29, 2017

DCPP VS. J.E.C. I/M/O THE GUARDIANSHIP OF C.I.B. A-2565-15T2


 DCPP VS. J.E.C. I/M/O THE GUARDIANSHIP OF C.I.B. 
A-2565-15T2 
As a matter of first impression, the court concludes that the special evidentiary provision codified at N.J.S.A. 9:6-8.46(a)(4), allowing the admission of corroborated hearsay statements by children, applies only in abuse or neglect cases litigated under Title 9, and does not extend to guardianship cases litigated under Title 30 that seek the termination of a parent's rights. 
Despite indicia of contrary customs, the court concludes that the plain meaning of N.J.S.A. 9:6-8.46(a)(4) confines its application to "hearings under this act," i.e. Title 9 proceedings. In addition, the court's statutory construction is supported by the legislative history and the significant differences between Title 9 cases and Title 30 termination cases with respect to, among other things, the comparative stakes involved for a defendant and the higher burden of proof required to justify the permanent termination of a parent's rights. 

The Legislature remains free to amend Title 30 to extend this special hearsay exception to termination cases, upon considering 

Oxford Realty Group Cedar v. Travelers Excess and Surplus Lines Company (A-85-15

Oxford Realty Group Cedar v. Travelers Excess and 
Surplus Lines Company (A-85-15; 077617) 

Although the Policy assigns debris removal a coverage sublimit, it does not constitute a self-contained policy provision outside the application of the $1,000,000 flood limit. Because the terms of the Policy are not ambiguous, the Court need not address contentions about contra proferentem or the doctrine of reasonable expectations. 

Wednesday, May 17, 2017

DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.L.G. A-1746-13T2


DIVISION OF CHILD PROTECTION AND PERMANENCY VS. J.L.G.
          A-1746-13T2(NEWLY PUBLISHED OPINION FOR MAY 17, 2017)
In this Title 9 matter, Y.A., the mother of a seven-year old child, viciously beat the child with her hand, fist, and a metal spatula, inflicting significant physical injuries that were evident and painful to the child several days later and required medical intervention. Defendant J.L.G. admitted he was present when Y.A. beat the child with her hand. He did not intercede to stop the beating; rather, he walked away into the next room to keep the child he had with Y.A. from seeing the beating continue and told Y.A. to stop hitting the child because she could get in trouble. Defendant did not report the abuse.
The trial court found that Y.A. abused or neglected the child within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b) by unreasonably inflicting excessive corporal punishment. Y.A. did not appeal. The trial court also found that defendant abused or neglected the child within the meaning of N.J.S.A. 9:6- 8.21(c)(4)(b) by failing to provide the child with proper supervision by unreasonably allowing the infliction of excessive corporal punishment by the child's mother. We affirmed. 

B.C. VS. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY A-4805-15T4


B.C. VS. NEW JERSEY DIVISION OF CHILD PROTECTION AND
          PERMANENCY
A-4805-15T4
In the context of a grandparent visitation appeal, the court discusses the interplay between the FN abuse and neglect docket and the FD non-dissolution docket. The court reverses the dismissal of the FD grandparent visitation complaint and directs that it be heard in conjunction with the ongoing FN neglect matter by the same judge. The court also directs reconsideration of the judge's FN order banning contact between the grandfather and the children in light of the preference expressed by the mother, who has legal custody of three of the four children. 

BRIAN HEJDA VS. BELL CONTAINER CORPORATION A-3502-14T1

BRIAN HEJDA VS. BELL CONTAINER CORPORATION
          A-3502-14T1
In Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016), our Supreme Court applied principles the United States Supreme Court clarified in Hawaiian Airlines v. Norris, 512 U.S. 246 114 S.
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Ct. 2239, 129 L. Ed. 2d 203 (1994), to conclude that an employee's state whistleblower claim was not pre-empted by § 301 of the Labor Management and Relations Act (LMRA), 29 U.S.C.A. 185(a). This appeal presents the question whether an employee- union member's disability discrimination claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and retaliatory discharge claim under the Workers' Compensation Law (WCL), N.J.S.A. 34:15-1 to -128.5, are pre-empted by § 301. We conclude the claims as asserted are not pre-empted because they do not require interpretation of any provision of the collective bargaining agreement between the union and employer. 

IN RE N.J.A.C. 12:17-2.1 A-4636-14T3


IN RE N.J.A.C. 12:17-2.1
          A-4636-14T3
This appeal involves a challenge to the validity of a regulation, N.J.A.C. 12:17-2.1, adopted in 2015 by the Department of Labor and Workforce Development. In that regulation, the Department defines, for the first time in codified form, the concept of "simple misconduct" by an employee that can limit his or her eligibility for unemployment benefits under the Unemployment Compensation Act ("the Act"), N.J.S.A. 43:21-1 to -56. The Department's adoption of the regulation attempted to respond to concerns this court expressed in Silver v. Board of Review, 430 N.J. Super. 44 (App. Div. 2013), regarding the need for a codified rule that distinguishes "simple misconduct" from the more stringent intermediate concept of "severe misconduct" as defined by the Legislature in a 2010 amendment to N.J.S.A. 43:21-5(b), or the most extreme category of "gross misconduct" defined in the statute.
The court invalidates the portion of the challenged regulation defining simple misconduct. It does so because the definition illogically and confusingly mixes in concepts of "negligence" with intent-based concepts such as "willful disregard," "evil design," "wrongful intent," and similar states of mind. The regulation is also flawed because it defines "simple misconduct" in certain respects as encompassing employee conduct that is at least as extreme or venal or perhaps more so than "severe misconduct."
Consequently, the Department's final agency action adopting a definition of simple misconduct within N.J.A.C. 12:17-2.1 is reversed as arbitrary and capricious, without prejudice to the Department pursuing the adoption of a substitute regulation that cures these defects and conforms with the overall statutory scheme. 

DCPP VS. R.L.M. AND J.J. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J. A-2849-15T2/


DCPP VS. R.L.M. AND J.J. IN THE MATTER OF THE GUARDIANSHIP OF R.A.J.
          A-2849-15T2/A-3277-15T2
In this termination of parental rights (TPR) case, the father contends he was entitled to a new trial because he was denied his constitutional right of self-representation, which he argued is a corollary to the right to counsel under N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). While the constitutional right to procedural due process gives rise to the right to counsel in TPR cases, there is no corollary right of self-representation, unlike in criminal cases under the Sixth Amendment. Furthermore, any non-constitutional right to proceed pro se under Rule 1:21-1(a) or arguably implied by N.J.S.A. 30:4C-15.4(a) may be relaxed if the court concludes that the parent's pro se efforts would significantly undermine the interests of the child, the State and the court in an accurate result without undue delay. Also, any denial of such non- constitutional right is not a structural error requiring a new trial. Finally, the father did not assert his alleged right of self-representation unequivocally or timely. 

SHAKEEM MALIK HOLMES VS. JERSEY CITY POLICE DEPARTMENT A-1634-15T3


SHAKEEM MALIK HOLMES VS. JERSEY CITY POLICE DEPARTMENT
          A-1634-15T3
Where police officers insulted and threatened an arrestee, the conduct was sufficiently severe that a reasonable transgender person in plaintiff's position would find the environment within the police station to be hostile, threatening and demeaning. Therefore, the trial court erred in granting summary judgment, dismissing plaintiff's Law Against Discrimination complaint alleging "hostile-environment" discrimination in a place of public accommodation. 

ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL. A-4137-14T3

ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL.
          A-4137-14T3
Plaintiff in this personal injury case appeals on several grounds from a no-cause jury verdict. Among other things, plaintiff argues that she was unduly prejudiced by the admission, over her objection, of extensive testimony from a defense medical expert opining that she had magnified her symptoms and her alleged injuries from the accident. The testifying doctor, a neurologist, was not a psychiatrist, psychologist, or other mental health specialist. Plaintiff
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contends that the admission of this expert testimony unfairly impugned her overall credibility and thereby deprived her of a fair trial on both liability and damages.
The appellate panel concludes that the expert's opinions on symptom magnification were improperly admitted, and that plaintiff was sufficiently prejudiced by that ruling to be entitled to a new jury trial on all issues. In doing so, the panel adopts the reasoning of other jurisdictions that have disallowed such expert opinions about symptom magnification, malingering, or other equivalent concepts in civil jury cases, including the Eighth Circuit's seminal opinion in Nichols v. American National Insurance Company, 154 F.3d 875 (8th Cir. 1998).
A qualified expert is not precluded, however, from providing factual testimony recounting observations the expert made about plaintiff's physical movements or responses to testing during an examination, subject to exclusionary arguments under N.J.R.E. 403 that may be asserted on a case-specific basis. Nor is a qualified expert categorically precluded from testifying that a plaintiff's subjective complaints appear to be inconsistent with objective medical test results or findings. In addition, the court does not foreclose the admission of opinion testimony concerning symptom magnification or similar concepts from a qualified expert in a non-jury case, also subject to Rule 403. 

FAIRFAX FINANCIAL HOLDINGS LIMITED, ET AL. VS. S.A.C. CAPITAL MANAGEMENT, L.L.C., ET AL. A-0963-12T1

FAIRFAX FINANCIAL HOLDINGS LIMITED, ET AL. VS. S.A.C.
          CAPITAL MANAGEMENT, L.L.C., ET AL.
A-0963-12T1
Plaintiff Fairfax Financial Holdings, a Canadian corporation, and plaintiff Crum & Forster Holdings Corp., a New Jersey corporation, commenced this action claiming that defendants New York-based hedge funds, analysts, and others involved in the New York financial market conspired in violation of racketeering laws to disparage plaintiffs so as to drive down their stock values. Some defendants profited from the alleged enterprise's actions by "shorting" plaintiffs' stock and some defendants profited in other indirect ways. After considerable discovery, including the production of millions of pages of documents and the conducting of approximately 150 depositions, all plaintiffs' RICO and common law claims were dismissed by way of summary judgment.
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In affirming in part and reversing in part, the court held, among other things: (1) the RICO claims were properly dismissed because New Jersey choice-of-law rules mandated the application of New York law, which, unlike New Jersey law, does not recognize a private civil RICO cause of action; (2) New Jersey's six-year statute of limitations applied to plaintiffs' disparagement claim rather than a shorter New York limitations period; (3) New York substantive law applied to plaintiffs' disparagement and tortious interference with prospective economic advantage claims and required that plaintiffs demonstrate special damages, which required their identification of lost customers; (4) plaintiffs' identification of 180 lost customers was sufficient to meet New York's special-damages requirement but their expert's attempt to quantify the portion of the market lost to plaintiffs as a result of the alleged disparagement did not meet New York's special-damages standard; and (5) two groups of New York defendants were properly dismissed on personal jurisdiction grounds because, among other things, plaintiffs presented insufficient evidence to support its theory on the assumption such a theory is cognizable of conspiracy-based jurisdiction. 

BRYCE PATRICK, ET AL. VS. CITY OF ELIZABETH, ET AL. A-2792-15T1

BRYCE PATRICK, ET AL. VS. CITY OF ELIZABETH, ET AL.
          A-2792-15T1
We address whether a municipality and board of education can be held to a higher standard of care under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, in these circumstances where the minor plaintiff was struck by a motor vehicle as the child crossed the street in a school zone area. Plaintiff alleged that the area was a dangerous condition, and there was inadequate signage to warn motorists of the presence of children. Plaintiff asserts that the school zone imposes a special burden on defendants.
There was no record of complaints to the municipality regarding this area, and the court is satisfied that the entities were entitled to immunity under N.J.S.A. 59:4-2 as there were insufficient proofs provided as to the existence of a dangerous condition. The decision of what type of signage and where to place it is within the discretion accorded to a municipality and is immunized under N.J.S.A. 59:2-3(a).
Defendants are also accorded immunity under N.J.S.A. 59:4-5, which provides that a public entity is not liable for "an injury caused by the failure to provide ordinary traffic signals, signs, markings or similar devices." (emphasis added).
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Plaintiff argues that a sign in a school zone is not an "ordinary" sign subject to immunity under the statute because school zones require a higher standard of care.
Although N.J.S.A. 59:4-5 does not expressly define the term "ordinary," the court uses the dictionary definition of "regular, usual, normal, common, often reoccurring and not characterized by peculiar or unusual circumstances." Black's Law Dictionary 1249 (4th ed. 1957). Nothing was presented that the roadway in question would not fit within this definition of "ordinary."
In addressing plaintiff's argument that a school zone imposes a special burden on defendants, the court notes that when the Legislature has chosen to impose a higher standard of care in a school zone, it has done so explicitly. The court references examples of increased penalties for driving while intoxicated, see N.J.S.A. 39:4-50, and enhanced charges for distributing or possessing controlled dangerous substances within a school zone, see N.J.S.A. 2C:35-7. There is no such differentiation provided in the TCA, and therefore, no evidence of such a legislative intention. Without such intention, the court declines to carve out an exception for liability under the TCA for signage in a school zone or to denote signs in a school zone as anything but "ordinary." 

KEITH WILLIAMS VS. RAYMOURS FURNITURE CO., INC. A-3450-15T4


KEITH WILLIAMS VS. RAYMOURS FURNITURE CO., INC.
          A-3450-15T4
The Division of Workers' Compensation dismissed the petition of Keith Williams for lack of jurisdiction. The judge of compensation determined that because Williams worked in New York and the accident happened there, there was no reason for New Jersey to assume jurisdiction of Williams' claim. We reverse.
As the facts are undisputed that Williams accepted employment from respondent by telephone from his home in Paterson, thereby establishing New Jersey as the place the contract was created, the law is clear that New Jersey is an appropriate forum for resolution of petitioner's claim petition, certainly in conjunction with his residency here. 

JACLYN THOMPSON VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND A-5028-14T1

JACLYN THOMPSON VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND
A-5028-14T1
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 34 (2008), held that to obtain accidental disability benefits for a purely mental disability, "[t]he disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person." Following the example of Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14 (2011), the Appellate Division holds the Patterson requirement applies to mental disability arising from incidents involving mental and physical stressors if any physical injury was temporary or minor, despite Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1 (App. Div. 2013).
The majority rules that the incidents triggering petitioner's mental disability did not meet the Patterson requirement and that her diagnosis of PTSD was not dispositive. Judge Ostrer dissents from that ruling.
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The court rules the incidents were undesigned and unexpected given petitioner's lack of training. 

NEW YORK-CONNECTICUT DEVELOPMENT CORP. VS. BLINDS-TO- GO (U.S.) INC. VS. ANTHONY NARDOZZI, ET AL. UNIQUE MECHANICAL SERVICES, LLC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP. COUNTY GLASS & METAL INSTALLERS, INC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP., ET AL. A-5660-14T4 page8image4640 page8image4800


NEW YORK-CONNECTICUT DEVELOPMENT CORP. VS. BLINDS-TO- GO (U.S.) INC. VS. ANTHONY NARDOZZI, ET AL.
UNIQUE MECHANICAL SERVICES, LLC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP.

COUNTY GLASS & METAL INSTALLERS, INC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP., ET AL.
A-5660-14T4

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In this matter arising out of the construction of a building, we address whether a verdict can be sustained where the jury found that plaintiff, New York-Connecticut Development Corp. (NYCT), breached the pertinent contract, but nevertheless, awarded it damages under a quantum meruit theory.
Quantum meruit is a form of quasi-contractual recovery and is "wholly unlike an express or implied-in-fact contract in that it is 'imposed by the law for the purpose of bringing about justice without reference to the intention of the parties.'" St. Barnabas Med. Ctr. v. Cnty. of Essex, 111 N.J. 67, 79 (1988) (citations omitted). It has long been recognized, however, "that the existence of an express contract excludes the awarding of relief regarding the same subject matter based on quantum meruit." Kas Oriental Rugs v. Ellman, 394 N.J. Super. 278, 286 (App. Div. 2007).
Although a party may plead and pursue alternative, and even inconsistent theories, Kas, supra, 394 N.J. Super. at 287, a party is not entitled to recover on inconsistent theories. Ibid. (emphasis added). Once the jury determined that an express contract existed between the parties, it was erroneous for it to be directed to a consideration of quantum meruit. The jury instructions and verdict sheet both misstated the applicable legal principles of contract law. Consequently, we are constrained to reverse and remand for a new trial. 

N.E., AS LEGAL GUARDIAN FOR INFANT J.V. VS. STATE OF NEW JERSEY, ET AL. A-3717-13T2


N.E., AS LEGAL GUARDIAN FOR INFANT J.V. VS. STATE OF
          NEW JERSEY, ET AL.
A-3717-13T2
Plaintiff is the legal guardian of a child who was severely and permanently injured by the criminal acts of his biological father. Plaintiff filed a civil action against the Division and a caseworker, and his supervisor claiming it was vicariously liable for the negligent manner these employees investigated plaintiff's allegations of child abuse and parental unfitness. The trial court rejected the Division’s argument that its employees are entitled to immunity from civil liability under the Tort Claims Act. A jury found the Division 100 percent liable and awarded plaintiff a total of $165,972,503.
In this appeal, this court is required to determine whether the State of New Jersey can be held vicariously liable based on a Division caseworker’s good faith execution of this State’s child protection laws. This court holds the Division caseworkers were entitled to the qualified immunity afforded to public employees who act in good faith in the enforcement or execution of any law under N.J.S.A. 59:3-3 of the Tort Claims Act. An ordinary negligence standard is an insufficient basis to impose civil liability on a public employee involved in the execution of the law. For these reasons, this court reverses the jury's verdict and vacates the final judgment entered against defendants. 

Allstate Insurance Company v. Northfield Medical Center P.C. (A-27-15


Allstate Insurance Company v. Northfield Medical
          Center P.C. (A-27-15; 076069)
          Defendants extensively promoted a professional practice
          structure that a fact-finder could reasonably conclude
          was little more than a sham intended to evade well-
          established prohibitions and restrictions governing
          ownership and control of a medical practice by a non-
          doctor.  In light of the broad anti-fraud liability
          imposed under the IFPA, holding defendants responsible
          for promoting and assisting in the formation of an
          ineligible medical practice was not a novel or
          unanticipated application of the statute.  The trial
          court correctly applied a plain-language understanding
          of “knowing,” and its finding of a knowing violation of
          the IFPA is amply supported in this record.