DEBORAH MARINO, ET AL. VS. ABEX CORPORATION, ET AL. (L-0836-10, MIDDLESEX COUNTY (A-1523-19)

 DEBORAH MARINO, ET AL. VS. ABEX CORPORATION, ET AL. (L-0836-10, MIDDLESEX COUNTY AND STATEWIDE) (A-1523-19)

The court considered defendant Ford Motor Company's (Ford) appeal from a final judgment awarding plaintiff Deborah Marino, Executrix for the Estate of Anita Creutzberger, (decedent) damages for decedent's death from peritoneal mesothelioma. Ford contended that the trial court erred in ruling that Ford violated a consent order and in implementing sanctions.

Decedent's husband and son worked at several Ford car dealerships where brake dust would spread and cover them. They brought dust home on their clothing where it was laundered by decedent. Decedent's estate sued Ford alleging decedent was exposed to asbestos from Ford brakes and that this exposure caused her mesothelioma. Among other allegations, the estate asserted that Ford negligently violated its duty to protect dealership workers and their families by failing to provide them with the same warnings and guidance for handling its asbestos products that it provided to its own employees.

The parties resolved a discovery dispute with a consent order. Ford agreed to search for Ford training materials that referred to asbestos or handling asbestos products and to produce any responsive documents and a corporate witness having knowledge of facts relating to Ford's training.

During the deposition of this designated witness, the employee denied any knowledge of relevant training manuals and any recent testimony regarding the same. Plaintiff's counsel confronted the employee with a 1974 Ford training manual, which the employee admitted he had seen and then confirmed he had been questioned about in another case a few months earlier.

The trial court, upon plaintiff's motion, sanctioned Ford by: (1) directing verdict to plaintiff on the issues of duty and breach; and (2) ordering that the jury be advised that Ford violated a court order and withheld evidence, so duty and breach of duty had been resolved against them. The court subsequently concluded that the sanctions order necessarily included a directed verdict on general, but not specific, causation. Ford appealed.

This court's review found little support for Ford's claims that it acted in good faith in responding to plaintiff's discovery requests and did not violate the consent order. The trial court's sanctions directly corresponded to the violation. The trial court's subsequent inclusion of a directed verdict on general causation flowed from the fact that a duty to warn only exists when the product is dangerous. Ford presented experts to opine against specific causation of decedent's mesothelioma, but these experts also discussed general causation, mooting Ford's argument that it was prejudiced by the order's directed verdict for general causation.

The court discerned no abuse of the trial court's discretion to impose sanctions for violating the consent order and affirmed.

M.A.P. VS. E.B.A. (FD-09-0282-21, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1057-21)

 M.A.P. VS. E.B.A. (FD-09-0282-21, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1057-21)

In this appeal, the court considered whether two of the seven subsections of New Jersey's Uniform Interstate Family Support Act's long arm statute permitted exertion of personal jurisdiction over a nonresident alleged to have fathered a child through a sexual relationship with a New Jersey resident that occurred in New York. The court held that the out-of-state act that allegedly caused conception, even though coupled with the nonresident's knowledge that plaintiff was a New Jersey resident, could not be the nonresident's "act" under N.J.S.A. 2A:4-30.129(a)(5), which authorizes personal jurisdiction when "the child resides in this State as a result of the [nonresident's] acts or directives." The court also found unavailing N.J.S.A. 2A:4-30.129(a)(7), which allows for the exertion of personal jurisdiction whenever commensurate with due process, because the nonresident defendant lacked sufficient contacts with this State. As a matter of first impression, the court also held that the policies underlying N.J.R.E. 408 precluded consideration in the jurisdictional analysis of a letter sent to plaintiff by defendant's New Jersey lawyer proposing an amicable resolution.

Library worker hit by town snowplow entitled to workers comp

 Diane S. Lapsley v. Township of Sparta (A-68/69-20) (085422) Argued November 8, 2021 -- Decided January 18, 2022 FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal, defendants Township of Sparta, Paul Austin, and Sparta Department of Public Works (collectively, defendants) challenge a denial of workers’ compensation benefits to plaintiff Diane Lapsley under the Workers’ Compensation Act.

Lapsley was employed by the Township as a librarian for the Sparta Public Library. The library is in a municipal complex with athletic fields, offices, and three common-use parking lots. The Township owns and maintains the parking lots, which are open to Township employees and the general public alike. The Township did not direct employees to park in the parking lots, assign parking spaces for employees, or require permit or paid parking. Nor did the Township restrict employees’ manner of traveling between the parking lots and the library.

On February 3, 2014, Lapsley’s husband arrived at the library to drive Lapsley home. As they walked from the library to the car through the parking lot, they were suddenly struck by a snowplow owned by the Township and operated by Paul Austin, a Township employee. As a result, Lapsley suffered injuries to her leg requiring multiple surgeries and leaving her permanently disfigured. Lapsley filed a complaint against defendants in the Law Division and, later, a claim for workers’ compensation benefits against the Township in the Division of Workers’ Compensation.

The Division found that Lapsley’s injuries arose out of and in the course of her employment and were therefore compensable under the Workers’ Compensation Act. Lapsley appealed, and the Appellate Division reversed, finding Lapsley’s injuries were not compensable under the Act. 466 N.J. Super. 160, 173 (App. Div. 2021). The Court granted defendants’ petitions for certification. 246 N.J. 448 (2021); 246 N.J. 450 (2021).

HELD: Lapsley’s injuries arose out of and in the course of her employment because the parking lot where she was injured was owned and maintained by the Township, adjacent to her place of work, and used by Township employees to park. Lapsley was therefore entitled to benefits under the Workers’ Compensation Act.

1

1. The Workers’ Compensation Act is humane social legislation that has always been construed and applied in light of its broad remedial objective. The Act authorizes workers’ compensation benefits to an employee injured in an “accident arising out of and in the course of his employment.” See N.J.S.A. 34:15-1. Aside from certain limited exceptions, the Act is the exclusive remedy for an employee who suffers a work-related injury. In determining whether an accident arises “out of and in the course of employment,” New Jersey courts apply the premises rule established by the Legislature in the 1979 amendments to the Act: “[e]mployment 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 Legislature used the phrase “excluding areas not under the control of the employer” in its definition of employment because it intended to include areas controlled by the employer within the definition. (pp. 9-10)

2. To determine whether an injury is compensable, “[t]he 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.” Kristiansen v. Morgan, 153 N.J. 298, 316-17 (1998). The meaning of “control” under the Act is more expansive than under formal property concepts. “[C]ontrol exists when the employer owns, maintains, or has exclusive use of the property.” Id. at 317. And “when compensability of an accident depends on control of the employer, that test is satisfied if the employer has the right of control; it is not necessary to establish that the employer actually exercised that right.” Brower v. ICT Grp., 164 N.J. 367, 372-73 (2000). The Court reviews examples from case law. (pp. 10-12)

3. Applying the premises rule here, the Court finds that Lapsley is entitled to compensation under the Act. The site of the accident was the parking lot adjacent to the library where Lapsley’s husband had parked; Lapsley stepped off the library curb directly into the parking lot before being injured there. The Township controlled that parking lot through its ownership and maintenance. See Kristiansen, 153 N.J. at 317. The parties do not dispute the Township’s ownership or maintenance. The Township’s plowing of the parking lot of snow when the accident occurred visibly demonstrated the Township’s exercise of control over the lot. See Brower, 164 N.J. at 372-73. Also, the Township would have been aware that a library employee would park in the lot directly abutting the library. This construction is consistent with the Act’s broad remedial objective.
(pp. 12-13)

IN THE MATTER OF THE APPLICATION OF THE TOWNSHIP OF BORDENTOWN, ETC. (L-1579-15, BURLINGTON COUNTY AND STATEWIDE) (A-0357-20)

 IN THE MATTER OF THE APPLICATION OF THE TOWNSHIP OF BORDENTOWN, ETC. (L-1579-15, BURLINGTON COUNTY AND STATEWIDE) (A-0357-20)

This court addressed whether an amended agreement between the Township of Bordentown and the Fair Share Housing Center satisfied the Township's Third Round obligations under Mount Laurel. This court held the trial court correctly found the amended agreement sets forth a plan that provides a realistic opportunity for the Township to meet its Mount Laurel obligations. We also reiterated that performing work for developers in other Mount Laurelcases does not in-and-of-itself create a conflict of interest for the special master appointed by the trial judge.

Aleice Jeter v. Sam’s Club (085880) (Union County & Statewide) (A-2-21

 Aleice Jeter v. Sam’s Club (085880) (Union County & Statewide) (A-2-21; 085880)

The mode of operation rule does not apply to the sale of grapes in closed clamshell containers. Selling grapes in this manner does not create a reasonably foreseeable risk that grapes will fall to the ground in the process of ordinary customer handling. The Court stresses that dispositive motions should not be made or decided on the eve of trial, without providing the parties with a reasonable opportunity to present their cases through testimony and argument.

IN THE MATTER OF MICKEY YOUNG, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) (A-0400-20)

 IN THE MATTER OF MICKEY YOUNG, ETC. (NEW JERSEY CIVIL SERVICE COMMISSION) (A-0400-20)

The sole issue raised in this administrative appeal is whether an appointing authority may unilaterally reduce a sanction from major to minor discipline after the employee is served with a Final Notice of Disciplinary Action (FNDA). Because the Civil Service Act and accompanying regulations generally permit an employee to appeal only major disciplinary actions, the reduction in sanction divests the Civil Service Commission of jurisdiction to hear the employee's appeal from an adverse administrative decision.

The court reviewed the statutory and regulatory schemes and rejected the employee's argument that the governing provisions prohibit the appointing authority from reducing the penalty after an FNDA has been issued. The court also found unavailing the employee's contention that the reduction in penalty and resulting divestiture of the Commission's jurisdiction violated his right to due process. In doing so, the court distinguished the present matter – involving a reduction in penalty – from its prior decision in Hammond v. Monmouth County. Sheriff's Department, 317 N.J. Super. 199 (App. Div. 1999), which held an appointing authority may not add charges to the FNDA.

Because the court determined no provision of the Act or accompanying regulations proscribed the appointing authority's inherent discretion to reduce a penalty after an FNDA has been issued to a Civil Service employee, the court concluded the Commission properly upheld the Administrative Law Judge's initial decision, dismissing the employee's complaint on summary decision for lack of subject matter jurisdiction.

DENTAL HEALTH ASSOCIATES SOUTH JERSEY, PA, ET AL. VS. RRI GIBBSBORO, LLC, ET AL. (L-3993-20, CAMDEN COUNTY AND STATEWIDE) (A-0320-21)

 DENTAL HEALTH ASSOCIATES SOUTH JERSEY, PA, ET AL. VS. RRI GIBBSBORO, LLC, ET AL. (L-3993-20, CAMDEN COUNTY AND STATEWIDE) (A-0320-21)

The court holds an attorney cannot be disqualified for a conflict of interest pursuant to RPC 1.9 and RPC 1.10(b) based solely on the content of the initial pleadings where the factual basis for the alleged conflict of interest is contested. The two-pronged analysis required by City of Atlantic City v. Trupos, 201 N.J. 447, 467 (2010) mandates a factfinding before a court can conclude disqualification is required because an attorney represented a former client in a substantially related matter.

MATHEW T. SULLIVAN VS. BOARD OF REVIEW, ET AL. (BOARD OF REVIEW, DEPARTMENT OF LABOR) (A-1664-20)

 MATHEW T. SULLIVAN VS. BOARD OF REVIEW, ET AL. (BOARD OF REVIEW, DEPARTMENT OF LABOR) (A-1664-20)

The court affirms the Board of Review (Board) decision, which denied a re-hearing after the Appeals Tribunal and agreed with the Division of Unemployment and Temporary Disability Insurance (Division) decision to seek repayment of unemployment benefits improperly awarded to petitioner.

Petitioner voluntarily left employment in October 2019, before the onset of the COVID-19 pandemic. Petitioner filed for and was awarded unemployment benefits for eight weeks, beginning in April 2020. In July 2020, the Division notified petitioner that he was not eligible for unemployment benefits under N.J.S.A. 43:21-5 because he did not leave for good cause attributable to work and his circumstances did not meet the criteria the under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 15 U.S.C. §§ 9001 to 9141. Thus, he was ineligible for Pandemic Unemployment Assistance (PUA) benefits. The Division imposed the refund for petitioner to repay the improper unemployment benefits.

Petitioner appealed, and the Appeal Tribunal affirmed that petitioner was disqualified for such unemployment benefits. The Board agreed. Petitioner brought this appeal, arguing that because the Division erroneously gave petitioner the funds, it is estopped from seeking a refund.

The court agreed after considering the CARES Act's expansion of benefits under the PUA, petitioner was not eligible for benefits during the relevant time period. The Division is required to seek repayment from individuals who are ineligible for unemployment benefits, and petitioner did not show that he was in fact eligible, and the Board's decision was not administered arbitrarily, capriciously, or unreasonably. Further, the State is not estopped from seeking repayment because petitioner did not show a manifest injustice by the Division's decision to seek the required repayments it erroneously awarded.

GRANDVUE MANOR, LLC VS. CORNERSTONE CONTRACTING CORP., ET AL. (L-1602-20, BERGEN COUNTY AND STATEWIDE) (A-3702-20)

 GRANDVUE MANOR, LLC VS. CORNERSTONE CONTRACTING CORP., ET AL. (L-1602-20, BERGEN COUNTY AND STATEWIDE) (A-3702-20)

The court affirmed an order dismissing plaintiff's complaint and compelling arbitration under a construction Agreement to build a home in New York.

Plaintiff entered into the Agreement with defendant, a construction company headquartered in Connecticut. The Agreement contained a choice of law provision to govern by the law of the place where the project was located, excluding that jurisdiction's choice of law rules, and a provision providing that, if the parties selected arbitration as the method of binding dispute resolution, then the Federal Arbitration Act (FAA) would govern. Thus, the parties selected the law of New York, the place of the project, and the FAA to govern the Agreement.

Plaintiff sued defendants in New Jersey alleging defendants had not achieved substantial completion of the project, breached the contract and the implied covenant of good faith and fair dealing, committed fraud and negligent misrepresentation, breached New York lien law, breached their fiduciary duties, committed conversion, unjustly enriched themselves, and violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -224, and the New Jersey Racketeer Influenced Corrupt Organization Act (RICO), N.J.S.A. 2C:41-1 to -6.2.

The trial court delivered an oral opinion dismissing the complaint for the matter to be submitted to arbitration. The court concluded that, under New Jersey law, the arbitration provision is clear and unambiguous as to the requirement that the parties submit to arbitration and as to the parties' waiver of their right to a jury trial. The court noted that the litigants are sophisticated parties that freely entered into the Agreement to build a house for over $10 million.

The court considered whether the law of New Jersey or New York applied to the enforceability and construction of the arbitration provision. Here, the parties clearly and unambiguously chose New York law, where the project was located. Thus, the law of New York applied.

The court then concluded a New York court would likely enforce the arbitration provision as it was less broad than those the New York Court of Appeals upheld in Singer v. Jefferies & Co., 575 N.E.2d 98, 99-101 (1991), Atlas Drywall Corp. v. Dist. Council of New York City & Vicinity of United Bhd. of Carpenters & Joiners, 177 A.D.2d 612, 612-14 (2d Dept. 1991), and Nationwide Gen. Ins. Co. v. Invs. Ins. Co. of Am., 332 N.E.2d 333, 335 (1975). Moreover, Congress and the New Jersey Legislature have declared policies favoring arbitration. Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85 (2002). Here, the court discerned no error in the order compelling arbitration because the arbitration provision is clear and unambiguous in waiving the right to a jury trial and covers the alleged disputes.

Kathleen M. Moynihan v. Edward J. Lynch (085157) (Burlington County & Statewide) (A-64-20;

 Kathleen M. Moynihan v. Edward J. Lynch (085157) (Burlington County & Statewide) (A-64-20; 085157)

The palimony agreement, as written and signed, without the attorney review requirement, is enforceable. That portion of N.J.S.A. 25:1-5(h), which imposes an attorney-review requirement to enforce a palimony agreement, contravenes Article I, Paragraph 1 of the New Jersey Constitution. The parties did not enter an oral palimony agreement.

Libertarians for Transparent Government v. Cumberland County (084956) (Cumberland County & Statewide) (A-34-2

Libertarians for Transparent Government v. Cumberland County (084956) (Cumberland County & Statewide) (A-34-20; 084956)

Most personnel records are confidential under OPRA. But under the law’s plain language, certain items qualify as a government record including a person’s name, title, "date of separation and the reason therefor." N.J.S.A. 47:1A-10. To the extent that information appears in a settlement agreement, the record should be available to the public after appropriate redactions are made.

IN THE MATTER OF THE ADOPTION OF W.S. (FA-01-0058-21)

 

IN THE MATTER OF THE ADOPTION OF W.S. (FA-01-0058-21) In this adoption matter, the court examined whether a minor child, W.S., who was born in Mexico, is considered a "habitual resident" of the United States at the time of her adoption in order to comply with the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (Hague Adoption Convention). Petitioner, S.S., sought to amend a Final Judgment of Adoption that was entered on December 21, 2016, to reflect that the adoption of W.S. was in compliance with the Hague Adoption Convention which will resolve W.S.’s immigration status and allow W.S. to return to the United States. The court’s opinion highlighted the Supreme Court of the United States decision in Monasky v. Taglieri, 140 S. Ct. 719 (2020), which directly addressed the definition of "habitual residence" under the Hague Adoption Convention. In accordance with the new guidance set forth in the Monasky decision, the court concluded that W.S. was a "habitual resident" of the United States, not Mexico, at the time of her adoption on December 21, 2016, and held that the adoption complied with the requirements of the Hague Adoption Convention.
Feb. 18, 2022	IN THE MATTER OF THE ADOPTION OF A CHILD BY G.A.S. (FA-01-0020-21) In this opinion, the court examined the newly enacted legislative changes in the Legal Parentage Act, N.J.S.A. 9:17-69 to -71, which created a streamlined process for same-sex couples to obtain a co-parent adoption. Petitioners G.A.S. and M.A.S., a same-sex couple, sought a Judgment of Adoption pursuant to the streamlined procedures under the Legal Parentage Act and for the Atlantic County Surrogate’s Court to process the family’s adoption complaint without requiring background checks and a home study. The court’s opinion highlighted the New Jersey Supreme Court’s Order issued on May 26, 2020, and the Notice to the Bar issued on June 4, 2020, by the Administrative Office of the Courts, which outlined the streamlined process of establishing the legal parentage of a non-biological parent under the new statute. The Court concluded that Petitioners satisfied all three requirements under N.J.S.A. 9:17-71(b), and the court entered a Judgment of Adoption.
Feb. 15, 2022	J.R. V. A.R. (FD-13-0728-20) This non-dissolution case concerns a question of first impression in New Jersey regarding a threshold inquiry to the application of the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"). Specifically, this case addresses whether accession by the child’s country of habitual residence mandates application of the Convention where the United States has not yet accepted that accession. In early 2020, A.R. and the child left the Philippines—the child’s country of habitual residence—for the United States. J.R. filed an application seeking the child’s return pursuant to the Convention. Although the United States’ status as a Contracting State to the Convention was patent, the Philippines did not accede to the Convention until March 2016. The United States has not accepted that accession. Articles 35 and 38 of the Convention collectively provide that for a non-Contracting State that accedes to the Convention, such "accession will have effect only" where the other country has "declared their acceptance of the accession." Based on the clear, express, and unambiguous language of Articles 35 and 38, analogous federal and state precedent, and scholarly consensus, the court holds that where the United States has not accepted another country’s accession to the Convention in accordance with Articles 35 and 38, the court lacks jurisdiction to enforce the Convention’s prompt return protocols.