E.S., ETC. VS. BRUNSWICK INVESTMENT LIMITED PARTNERSHIP, ET AL. (L-0727-17, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3372-18)

 E.S., ETC. VS. BRUNSWICK INVESTMENT LIMITED PARTNERSHIP, ET AL. (L-0727-17, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-3372-18)

Plaintiff appealed the grant of summary judgment to her landlord. Plaintiff alleged that defendant's maintenance man, a fellow tenant of plaintiff, sexually assaulted her minor children. Plaintiff's complaint stated several causes of action, but the only two preserved for appeal were that defendant was directly negligent pursuant to Restatement (Second) of Agency, section 219(2)(b), and vicariously liable for the sexual assaults, pursuant to section 219(2)(d), which both provide exceptions to the general rule that an employer is not liable for the acts of its employee outside the scope of his or her employment.

The court affirmed the grant of summary judgment, noting that our courts have applied both of those sections of the Restatement Second in limited circumstances to serve the purposes of remedial legislation, like the LAD, CEPA and the Child Sexual Abuse Act, but not in similar factual circumstances. Additionally, the court examined the significant revisions made to both these sections of the Restatement Second by the Restatement (Third) of Agencyand examined decisions from other jurisdictions that discussed these sections of the Restatements.

JENNIFER BUDDY VS. JONATHAN E. KNAPP

 JENNIFER BUDDY VS. JONATHAN E. KNAPP ET AL. CORRINE BUDDY ET AL. VS. JONATHAN E. KNAPP ET AL. DAMIEN CONNEEN VS. STATE OF NEW JERSEY ET AL. (L-1037-16, L-1046-16, and L-1049-16, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED) (A-4339-18/A-4344-18/A-4492-18)

These appeals arise from two motor vehicle accidents that occurred about a year apart in approximately the same location under similar circumstances. In both instances, a driver traveling westbound on Route 322 in Folsom Borough made an illegal left turn in the direction of one of two driveway entrances to a WaWa convenience store and struck a motorcycle traveling eastbound on the highway. In the first accident, the motorcycle driver was killed and his wife, who was a passenger, seriously injured. In the second accident, the motorcycle driver was seriously injured. The injured parties and the estate of the decedent filed suits against the entity that owns the convenience store and the State, which owns the highway and the land on which the store's driveway entrances are situated, alleging a number of claims sounding in negligence.

The court held that the commercial landowner who operates the convenience store did not owe a duty of care to plaintiffs to prevent drivers on the adjoining State highway from making an illegal left turn into the store's parking lot entrances. In addition, the court declined plaintiffs' invitation to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed by driving over two sets of solid yellow lines to cross two lanes of opposing traffic on a highway with a fifty-five-mile-per-hour speed limit to enter a store parking lot. The court noted a nearby jug handle provided westbound drivers a safe alternative to access the store's parking lot through an intersection controlled by a traffic light.

The court also concluded the State is entitled to immunity for all claims asserted against it under three provisions of the Tort Claims Act: (1) law enforcement immunity, N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations with respect to the design of the parking lot driveway entrances; (2) licensing immunity, N.J.S.A. 59:2-5, for any permitting decision, or alleged absence thereof, related to the construction and maintenance of the driveway entrances; and (3) inspection immunity, N.J.S.A. 59:2-6, for any alleged failure to inspect the driveway entrances during two highway improvement projects after their construction. In addition, the court found the statutory exception to immunity for dangerous conditions of public property did not apply because the driveway entrances, which were in the State's right-of-way, were not dangerous conditions and use of the driveway entrances with due care did not create a reasonably foreseeable risk of the injuries suffered by plaintiffs, which were caused by the illegal activity of the drivers who struck their motorcycles.

LINDEN DEMOCRATIC COMMITTEE, ET AL. VS. CITY OF LINDEN, ET AL. (C-000019-19, UNION COUNTY AND STATEWIDE) (A-1759-19)

 LINDEN DEMOCRATIC COMMITTEE, ET AL. VS. CITY OF LINDEN, ET AL. (C-000019-19, UNION COUNTY AND STATEWIDE) (A-1759-19)

The Municipal Vacancy Law, N.J.S.A. 40A:16-1 to -23 (the Vacancy Law), sets out the procedure for filling vacancies in the office of mayor and members of a municipal council. Here, when a vacancy was created in a ward council seat, the remaining members of the city council resolved pursuant to N.J.S.A. 40A:16-5(b) not to fill the vacancy on an interim basis. The local party committee, however, relying on N.J.S.A. 40A:16-11, forwarded three nominees to the council, which refused to appoint any of them and retained the vacancy.

Plaintiffs, the nominee of the party committee and the committee, filed a complaint seeking to seat the nominee as ward councilperson and also alleging the council's refusal to seat the nominee violated the New Jersey Civil Rights Act (NJCRA). The trial judge found in plaintiffs' favor, ordered the nominee seated as ward council person, found a violation of the NJCRA, and awarded counsel fees and costs to plaintiffs.

The court reversed, construing the Vacancy Law as initially enacted in 1979, along with later amendments in 1980 and 1990, as providing the governing body with discretion to fill the vacancy on an interim basis or leave the seat vacant until the next general election.

DCPP VS. D.H., T.W., J.K., JR., AND K.M., IN THE MATTER OF THE GUARDIANSHIP OF D.H., T.G., AND J.W. (FG-16-0048-19, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) (A-1774-19/A-1857-20)

 DCPP VS. D.H., T.W., J.K., JR., AND K.M., IN THE MATTER OF THE GUARDIANSHIP OF D.H., T.G., AND J.W. (FG-16-0048-19, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) (A-1774-19/A-1857-20)

The court holds that a parent's status as a recreational marijuana user cannot suffice as the sole or primary reason to terminate that parent's rights under Title 30, unless the Division of Child Protection and Permanency proves with competent, case-specific evidence that the marijuana usage endangers the child or children.

This approach aligns with existing Title 30 case law, the recently adopted constitutional amendment partially decriminalizing non-medicinal marijuana usage, N.J. Const. art. IV, § 7, ¶ 13, and related implementing statutes, as well as child welfare cases from other states.

In this case, the parents each admitted they had used marijuana on several occasions while caring for their preschool child, and the Division presented unrebutted expert testimony explaining the risks of harm associated with that conduct. Beyond that, the trial judge had substantial other evidence to further support his finding that all four prongs for termination under N.J.S.A. 30:4C-15.1(a) had been proven by clear and convincing evidence. Hence, the judgment is affirmed.

Bonay Goldhagen v. Susan Pasmowitz (084668)

 Bonay Goldhagen v. Susan Pasmowitz (084668) (Atlantic County & Statewide) (A-17-20; 084668)

The Dog Bite Statute’s strict liability standard applies to the claim of an independent contractor who agrees to care for a dog. The statute’s plain language reveals no legislative intent to recognize an exception to strict liability under the Dog Bite Statute for any category of injured plaintiffs. See N.J.S.A. 4:19-16. However, the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, applies to plaintiff’s strict liability claim, and plaintiff’s status as a professional experienced in the care of dogs is relevant to an allocation of fault. Genuine issues of material fact warrant the denial of plaintiff’s motion for partial summary judgment on her common-law claims.

Estate of Hiram A. Gonzalez v. The City of Jersey City

 Estate of Hiram A. Gonzalez v. The City of Jersey City (084381) (Hudson County & Statewide) (A-19-20; 084381)

The immunities from liability provided by the Good Samaritan Act, N.J.S.A. 26:2B-16, and most TCA provisions invoked by defendants do not apply here. Defendants’ actions may be entitled to qualified immunity under certain TCA provisions on which defendants rely, however, if the involved officers’ actions were discretionary, rather than ministerial, in nature. In this instance, because of a factual dispute, that determination is for the jury to make upon remand.