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Thursday, October 7, 2021

MORGAN DENNEHY VS. EAST WINDSOR REGIONAL BOARD OF EDUCATION, ET AL. (L-1333-17, MERCER COUNTY AND STATEWIDE) (A-2497-19)

 MORGAN DENNEHY VS. EAST WINDSOR REGIONAL BOARD OF EDUCATION, ET AL. (L-1333-17, MERCER COUNTY AND STATEWIDE) (A-2497-19)

Plaintiff Morgan Dennehy appeals from a February 18, 2020 order denying her motion for reconsideration of a previous order granting summary judgment to defendants East Windsor Regional Board of Education, Hightstown High School, James W. Peto, Todd M. Peto, and Dezarae Fillmyer. Plaintiff was a student at Hightstown High School and a member of the field hockey team. On September 9, 2015, the field hockey team was waiting for its scheduled practice on Hightstown High School's turf field to begin and was conducting drills in the "D-zone," an area between the recently renovated turf field and the track. Some members of the team were participating in the drills while others watched. A twenty-foot-tall ball-stopper is located at each end of the turf field and separates the "D-zone" from the turf field. While the field hockey team was practicing drills in the "D-zone," the boys soccer team was practicing on the turf field and plaintiff observed several soccer balls vault the ball stopper. After the team concluded its drills, plaintiff asked defendant Coach Fillmyer if she could take a shot on goal. Defendant agreed because plaintiff rarely had the opportunity to shoot on goal. Plaintiff left the area directly behind the ball stopper and, after she finished shooting, she was struck in the back of the neck by an errant soccer ball that went over the ball stopper. Plaintiff was later taken to the hospital and was diagnosed with a concussion. Plaintiff filed suit alleging that defendants were negligent and negligent in hiring, retaining, training, and supervision of employees.

On appeal, plaintiff argues that the motion judge erroneously applied the heightened recklessness standard set forth in Crawn v. Campo, 136 N.J. 494 (1994). After reviewing the applicable case law, the court concluded that the motion judge erred in applying the heightened recklessness standard from Crawn. In this case, defendant Fillmyer was not a co-participant who directly injured plaintiff and, therefore, Crawn does not apply.

The court also determined that Rosania v. Carmona, 308 N.J. Super. 365 (App. Div. 1998) does not apply to this case. In Rosania, a martial arts instructor participated in a sparring match with a student and kicked the student in the head causing his retina to detach. The martial arts dojo had a written rule that prohibited targeting of the head. The Rosania panel determined that if the jury found the risks inherent in the karate match were materially increased by an instructor beyond those reasonably anticipated by the dojo rules, it should have been charged on the ordinary duty owed to business invitees rather than the heightened recklessness standard for competitive contact sports. The court declined to apply Rosania in this case for two reasons: first, defendant Fillmyer was not a co-participant; and second, the Rosania panel's decision was informed by cases decided by the New York Court of Appeals which contemplated a different heightened standard. The court concluded that because defendant in this case is a public employee, her duties, responsibilities, and immunities are clearly established in the New Jersey Tort Claims Act N.J.S.A. 59:1-1 to 12-3, and thus defendant is liable to the same extent as a private person for her negligence and the ordinary negligence standard should govern this case.

CITY OF NEWARK VS. NEWARK POLICE SUPERIOR OFFICER'S ASSOCIATION, ET AL. (PUBLIC EMPLOYMENT RELATIONS COMMISSION) (CONSOLIDATED) (A-0146-21

 CITY OF NEWARK VS. NEWARK POLICE SUPERIOR OFFICER'S ASSOCIATION, ET AL. (PUBLIC EMPLOYMENT RELATIONS COMMISSION) (CONSOLIDATED) (A-0146-21/A-0159-21)

The court holds that the Mayor of the City of Newark has the authority, as a managerial prerogative, to mandate that all City employees be fully vaccinated against COVID-19. Nine unions representing City employees filed unfair labor practice charges against the City with the Public Employment Relations Commission (PERC) and requested an injunction to prevent the implementation of the mandate before the City negotiated with the unions. A Director of PERC issued an order granting in part and denying in part the unions' request for preliminary injunctive relief.

On leave granted, the court affirms the portion of the PERC order that held that the Mayor has a managerial prerogative to issue the mandate but vacates the portion of PERC's order that imposed restraints on the City or required any negotiations concerning the implementation, timing, or enforcement of the City's vaccination mandate.

C.R. v. M.T. (083760) (Gloucester County & Statewide) (A-58-19;

 C.R. v. M.T. (083760) (Gloucester County & Statewide) (A-58-19; 083760)

The appropriate standard to determine whether sexual activity was consensual under SASPA is not the prostration of faculties standard, which focuses on the mental state of the defendant, but rather the standard articulated in State in Interest of M.T.S., 129 N.J. 422 (1992), which is applied from the perspective of the alleged victim. The M.T.S. standard requires a showing that sexual activity occurred without the alleged victim’s freely and affirmatively given permission to engage in that activity. The standard for consent for an alleged victim in a SASPA case should be no different than the standard for consent for an alleged victim in a criminal sexual assault case. The Court reverses and remands this matter to the trial court for assessment under the standard articulated in M.T.S.

New Jersey Division of Child Protection and Permanency v. J.R.-R. and G.R.-R (083807) (Cumberland County & Statewide) (A-56/57-19; 083807)

 New Jersey Division of Child Protection and Permanency v. J.R.-R. and G.R.-R (083807) (Cumberland County & Statewide) (A-56/57-19; 083807)

The Legislature placed on DCPP the burden of proving by a preponderance of the evidence that a parent abused or neglected a child, N.J.S.A. 9:6-8.46(b)(1), and the Judiciary has no commission to exercise equitable powers to alter the statutory burden of proof set forth by the Legislature. The Court disapproves of the Appellate Division cases that have imported the doctrine of conditional res ipsa loquitur from the common law into a comprehensive statutory scheme to relieve DCPP of its burden of proving that a particular parent abused or neglected a child. The Court remands for a new hearing.

Sunday, September 19, 2021

JHC INDUSTRIAL SERVICES, LLC VS. CENTURION COMPANIES, INC., ET AL. (L-7635-17, BERGEN COUNTY AND STATEWIDE) (A-1980-19)

 JHC INDUSTRIAL SERVICES, LLC VS. CENTURION COMPANIES, INC., ET AL. (L-7635-17, BERGEN COUNTY AND STATEWIDE) (A-1980-19)

Defendant Centurion Companies, Inc. subcontracted demolition work it agreed to perform for Alfred Sanzari Construction to plaintiff JHC Industrial Services, Inc. JHC did the work and Sanzari paid Centurion for it. Centurion, however, did not pay JHC in full, prompting this action under the Prompt Payment Act. Although JHC completely prevailed after two years of litigation and trial, the judge refused its application for $104,670.51 in fees pursuant to N.J.S.A. 2A:30A-2(f), awarding it only $16,375.73. The judge reasoned it could not "[u]nder Rendine . . . grant over $100,000 in fees on a judgment that could not have exceeded $30,500."

The court reverses and remands for reconsideration of the fee award. The Prompt Payment Act is a fee-shifting statute that makes an award of "reasonable costs and attorney fees" mandatory to a prevailing party; the judge erred in reading in a proportionality requirement not included in the statute.

Sunday, September 12, 2021

27-35 JACKSON AVENUE, LLC VS. SAMSUNG FIRE & MARINE INSURANCE CO., LTD. (L-6049-17, BERGEN COUNTY AND STATEWIDE) (A-2925-19)

 27-35 JACKSON AVENUE, LLC VS. SAMSUNG FIRE & MARINE INSURANCE CO., LTD. (L-6049-17, BERGEN COUNTY AND STATEWIDE) (A-2925-19)

A sprinkler head discharged for no apparent reason at plaintiff's property and flooded two floors. A major tenant immediately cancelled its lease, and plaintiff made claims under an insurance policy issued by defendant. Defendant hired an expert to examine the sprinkler head; he concluded that defendant had no subrogation claim because it could not prove the cause of the discharge.

Plaintiff requested that defendant preserve the sprinkler head for its expert's examination. However, defendant's expert had already disposed of it. Plaintiff retained its own expert, who concluded the cause of the discharge was either a product defect, faulty installation, or faulty maintenance/inspection, but he could not conclude which of those possibilities was more likely. Plaintiff filed suit, alleging intentional and negligent spoliation of evidence. After discovery, the judge granted defendant summary judgment.

The court concluded that plaintiff was not entitled to an "adverse" or "spoliation" inference against defendant, which was not the third-party target defendant. The court also concluded that although other states have adopted modified proximate cause standards to permit a plaintiff to demonstrate a prima facie spoliation case despite the loss of critical evidence, our Court has not addressed the issue. Instead, relying on traditional negligence principles, the court concluded that, given its expert's indefinite conclusions, plaintiff failed to establish a prima facie case of proximately caused injury and damages. The court affirmed the grant of summary judgment.

Monday, September 6, 2021

FRANK GRILLO, ET AL. VS. STATE OF NEW JERSEY (L-0495-19, MERCER COUNTY AND STATEWIDE), (A-1038-19)

 FRANK GRILLO, ET AL. VS. STATE OF NEW JERSEY (L-0495-19, MERCER COUNTY AND STATEWIDE), (A-1038-19)

Plaintiffs, police officers employed by the City of Trenton who were on work-related temporary disability and their police union, appealed the dismissal with prejudice of their declaratory judgment complaint against the State of New Jersey and the denial of their cross-motion to amend the complaint.

Plaintiffs sought relief from the State Health Benefits Program (SHBP), N.J.S.A. 52:14-17.25 to -17.46a., which requires all public employees to contribute to the cost of their health benefits plan based on their "base salary." Plaintiffs argued that cost of their SHBP benefit contributions while disabled should be calculated based on the temporary disability benefits they receive, not their "base salary."

The State moved pursuant to Rule 4:6-2(e) to dismiss the complaint with prejudice based on the plain language of the statute. The plaintiffs' cross-motion to amend the declaratory judgment complaint sought alternate relief, declaring that recipients of temporary disability benefits should not make any contributions to the SHBP while disabled.

Applying well-established principles of statutory construction, the court held that temporary disability benefits are not "base salary" for purposes of the SHBP. The court also held that the denial of plaintiffs' cross-motion to amend the complaint was not an abuse of discretion where the unambiguous language of the statute rendered the proposed amendment futile.