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Daily Decision Service Alert: Vol. 21, No. 189 - September 27, 2012
New Jersey Law Journal
STATE COURT CASES
AUTOMOBILES ACCIDENT LIABILTY CIVIL PROCEDURE
05-2-7788 Reed-Montijo v. Rodriguez, App. Div. (per curiam) (13 pp.) In this action arising out of two different motor vehicle accidents in which plaintiff was involved, extended discovery, failed arbitration, and a separate complaint against one of the defendants arising out of the same accident, the panel reverses the dismissal of plaintiff's complaint, finding that the court had other options other than dismissal after plaintiff's counsel's failures to attend two trial dates. The panel affirms the trial court's grant of an extension of discovery finding that the record supports the judge's exercise of discretion under the Rivera criteria, where defendants were still awaiting plaintiff's medical records, the delay in receiving them was outside defendants' control, and careful review of all medical records was essential.
11-2-7789 Ameritemps Inc. v. Hainesport Industrial Railroad, App. Div. (per curiam) (12 pp.) Plaintiff , which supplies temporary staff to its clients, appeals from a final judgment in favor of defendant, dismissing its complaint for money due on a contract between them. The panel reverses and remands, finding that the judge's determination that plaintiff breached the contract by not securing insurance and not taking care of the taxes for three people that defendant had employed on a cash basis and then sent to plaintiff to be employed by it and assigned back to defendant is not supported by the record since defendant, and the workers, asked plaintiff to employ them as independent contractors and as such they were not entitled to workers' compensation and were not subject to tax withholding. The matter is remanded for consideration of defendant's accord and satisfaction defense and the issue of plaintiff's damages if defendant does not prevail on that defense.[Filed September 26, 2012]
31-2-7790 D.T. v. Hunterdon Medical Center, App. Div. (per curiam) (38 pp.) Fourteen-year-old D.T. performed volunteer work at defendant Hunterdon Medical Center (HMC). D.T. and J.H., a nineteen-year-old employee, began a flirtatious relationship; then engaged in a sexual relationship. J.H. was arrested, indicted and pled guilty to one count of second degree sexual assault. D.T. and her parents filed a complaint against J.H. and HMC in which they asserted twelve causes of action, including negligent hiring, supervision and retention of J.H.; sexual abuse; common law assault; common law battery; negligent infliction of emotional distress; and intentional infliction of emotional distress. Generally, plaintiffs alleged that HMC had a non-delegable duty to protect its minor volunteers from the actions of adult employees. Here, the appellate panel affirms the order granting summary judgment in favor of HMC, declining to recognize the duty plaintiffs seek to impose on HMC. Further, HMC was not responsible for shelter, food, recreation, support, or the like so as to find a special relationship, or to find HMC was in loco parentis relationship with D.T.
NEGLIGENCE MEDICAL MALPRACTICE
31-2-7791 Evans v. Meadowlands Hospital, App. Div. (Vena, J.S.C.) (21 pp.) In this medical malpractice action, after plaintiff fell and suffered a dislocated knee, she was transported to Meadowlands Hospital. Plaintiff was treated by Dr. Reimer, an emergency room physician. Meadowlands called its on-call orthopedist, Dr. DiPaolo, but were unable to reach him for an hour and a half. Once reached, Dr. DiPaolo stated that he could not be at the hospital within an hour. Dr. Romero, a radiologist, advised that plaintiff should be transferred to Jersey City Medical Center for a CT angiogram, which revealed an occlusion of an artery of the left leg. Ultimately, an above-the-knee amputation was required. Plaintiff asserted claims of direct negligence against the various doctors, and indirect vicarious liability claims against the hospitals. The jury reached a verdict in favor of plaintiff for $5.59 million, and apportioned liability of 68% to Dr. DiPaolo, 22% to Dr. Reimer, and 10% to Dr. Romero. Here, Meadowlands motion to amend the post-trial judgment is denied with respect to vicarious liability for Dr. Reimer, and granted with respect to Dr. DiPaolo. Meadowlands is liable to plaintiff for the actions of Dr. Reimer up to the $250,000 charitable immunity cap, notwithstanding the high-low agreement entered into between Dr. Reimer and Meadowlands. Meadowlands is not vicariously liable for the actions of Dr. DiPaolo, who is an independent contractor.
PUBLIC EMPLOYEES CIVIL SERVICE COMMISSION
33-2-7792 I/M/O Grant, App. Div. (per curiam) (9 pp.) Petitioner appeals the final administrative decision of the Civil Service Commission denying her request for reconsideration of its decision upholding the validity of a promotional examination which resulted in her having to vacate the supervisory position to which she had been provisionally appoint and return to her permanent position with an associated pay cut. The panel affirms, finding no error in the final agency action that warrants intervention where the commission thoroughly considered the facts and arguments of law raised by petitioner and its decision was neither arbitrary, capricious or unreasonable. The panel notes that petitioner presented no evidence to prove her claim that the test was subjective or gender-biased and the failure of an agency to give a timely civil service test does not vest a provisional appointee with the right to obtain a permanent appointment absent a showing of negligence or intentional misconduct. [Filed September 26, 2012]
PUBLIC EMPLOYEES POLICE TRAINING COMMISSION
33-2-7793 DiMaria v. New Jesrey Dep't of Corrections Training Academy, App. Div. (per curiam) (11 pp.) Petitioner appeals from the final administrative action of the Police Training Commission sustaining his dismissal from the Department of Corrections Training Academy after a positive drug test result, which he claims was the result of his inadvertently drinking coca de mate tea. The panel affirms, finding that the agency decision was reasonably reached based on sufficient credible evidence in the record. The panel adds that it rejects DiMaria's attack on the ALJ's factual finding that the positive drug test was not caused by the ingestion of the tea, noting that it must defer to the ALJ's findings because they are clearly influenced by the ALJ's ability to hear and see the witnesses and that there is more than enough support in the record, including several inconsistencies in the testimony of DiMaria and his mother for the ALJ's finding that they were not credible. [Filed September 26, 2012]
TORTS DEFAMATION INTERNET
36-2-7794 Somerset Development LLC v. Cleaner Lakewood, App. Div. (per curiam) (11 pp.) In this action seeking damages and injunctive relief, filed after plaintiffs learned that defendants had posted statements on a website blog hosted by Google Inc., plaintiffs appeal the trial court order quashing a subpoena served on Google seeking production of data leading to the identification of defendants and the denial of their cross-motion seeking to compel defense counsel to disclose the identities of the anonymous defendants counsel represents. The panel affirms, finding that the trial judge correctly found that while plaintiffs took every possible step to provide notice to the anonymous defendants and sufficiently set forth the statements purportedly made by each poster that allegedly constituted actionable speech, plaintiffs have not established a prima facie cause of action because the statements primarily reflect the opinions of the authors and are at best rhetorical hyperbole on matters of public concern involving a public figure. Because the offending publications are not actionable, plaintiffs are not entitled to the identity of the anonymous defendants. [Filed September 26, 2012]
36-2-7795 S.P. v. Newark Police Department, App. Div. (Axelrad, P.J.A.D.) (36 pp.) We granted leave to the City to appeal denial of a motion for summary judgment seeking to dismiss the complaint of a sexual assault victim for damages based on its police officers' earlier failure to arrest and remove the assailant pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-21. We address the interplay of the Tort Claims Act and the PDVA. We affirm the trial court's conclusion that the victim and attacker, boarders in a rooming house, can be considered "household members" under the PDVA. However, we reverse the denial of summary judgment, holding the PDVA does not expressly create an exception to the immunity provisions of the TCA such that the failure of police to arrest the attacker subjects the public entity to liability for subsequent damages to the victim, where the officers determined she was not a victim of domestic violence and exhibited no visible injuries. [Approved for publication.]
39-2-7796 Allison v. L&J Contracting Company, Inc., App. Div. (per curiam) (17 pp.) L&J Contracting Company, Inc. (L&J) appeals from an order entered by the Division of Workers' Compensation, dismissing a claim by petitioner Jason Allison against Baumgardner Floor Covering, and a judgment entered by the Division against L&J on Allison's claim. Allison injured his lumbar spine while working for L&J, and thereafter, filed a claim petition against L&J, seeking compensation benefits. Allison later joined Baumgardner, a subsequent employer, asserting he suffered injuries in two accidents while working for Baumgardner. The appellate panel finds the evidence established that Allison's disability was the result of the earlier accident while working for L & J, which had progressively worsened over time. The evidence supported the judge's finding that Allison did not suffer any subsequent injury which materially contributed to his disability. Accordingly, there was no basis in the evidence to support an apportionment of responsibility to Baumgardner. The panel also affirms the order for judgment against L&J, finding that Allison had a thirty-five percent permanent partial total disability and awarding him compensation benefits and costs.
CRIMINAL LAW AND PROCEDURE
14-2-7797 State v. Callaway, App. Div. (per curiam) (61 pp.) Defendants Ronald Callaway, David Callaway and Floyd Tally were found guilty of conspiracy, criminal coercion, and invasion of privacy; Ronald and Tally were also found guilty of another invasion of privacy offense. The charges arose out of their attempts to discredit a former political ally. They appeal their convictions and sentences. The panel affirms the convictions but remands for entry of an amended judgment of conviction for each defendant reflecting merger of the conspiracy convictions with the substantive offense due to the improper "fracturing" of a single conspiracy by the state. It also remands for entry of an amended judgment of conviction for Ronald and Tally to reflect the vacation of the consecutive terms imposed on each for the invasion of privacy count. It also holds that the mid-trial decision to permit Tally to proceed with hybrid representation should have been preceded with a more penetrating inquiry of him but that the error does not rise to the level of plain error.
FEDERAL COURT CASES
43-7-7798 Kisby Lees Mechanical LLC v. Pinnacle Insulation, Dist. Ct. (Simandle, U.S.D.J.) (27 pp.) Kisby hired defendant as an insulation subcontractor. Pinnacle filed suit seeking damages relating to unpaid contracts on 13 projects. Pinnacle voluntarily dismissed the action without prejudice to pursue claims in arbitration. In the name of efficiency and fairness, the parties agreed to arbitrate only whether the parties had created a pay-if-paid or a pay-when-paid contract. The arbiter found that the parties' contract contained a pay-if-paid clause. Kisby filed an action to confirm the award in which Pinnacle filed a counterclaim for breach of contract, unjust enrichment and promissory estoppel. Kisby now moves to dismiss the counterclaim, on the basis of res judicata, the entire controversy doctrine and the doctrine of arbitration and award. The court converted the motion into a motion for summary judgment. Finding that there is a dispute of fact whether Kisby's unconfirmed arbitration award was of limited scope and whether the fact that a factfinder could conclude it was of limited scope limited the preclusive effect of the unconfirmed award in this matter, the court denies plaintiff's converted motion. [Filed September 24, 2012]
LABOR AND EMPLOYMENT COLLECTIVE BARGAINING AGREEMENTS
25-7-7799 New Jersey Regional Council Of Carpenters v. Jayeff Construction Corporation, Third Circuit (Aldisert, U.S.C.J.) (9 pp.) The New Jersey Regional Council of Carpenters, the New Jersey Carpenters Funds and the Trustees thereof (the Funds) appeal an order of the District Court for the District of New Jersey, which denied the Funds motion to confirm an arbitration award and granted Appellees motion to vacate the award. Appellants contend that the District Court erred by usurping the role of the arbitrator by interpreting the terms of the collective bargaining agreement (CBA). Appellee, however, is not challenging the validity of the CBA or the meaning of any of its provisions. Rather, the issue is whether the parties entered into a contract to arbitrate. Therefore, the courtnot the arbitratorhas the power to adjudicate the issue. The circuit panel concludes the District Court did not err in vacating the award after finding that Appellees conduct did not indicate an intent to be bound by the CBA. Nor did the District Court err in holding that Appellee was not bound by the CBA through its execution of remittance reports. The remittance forms, alone, are not enough to bind a non-signatory employer to a CBA. The panel affirms the District Courts order. [Filed September 12, 2012]
LABOR AND EMPLOYMENT EMPLOYEE BENEFITS
25-7-7800 Raymond v. Barry Callebaut, U.S.A., LLC, Dist. Ct. (Bumb, U.S.D.J.) (4 pp.) Plaintiff claims that Defendants improperly denied her benefits from her 401(k) account. Defendants move for dismissal of Plaintiffs Amended Complaint. In a prior written Opinion, the Court noted that, based on its reading of the Amended Complaint, Plaintiffs claim accrued in 1997, when she was put on notice of it through an Internal Revenue Service (IRS) notice, and was time barred, based on the applicable six year statute of limitations. However, because of the lack of clarity in the Amended Complaint, the Court gave the Plaintiff a final opportunity to provide: (1) a clear recitation of the nature of her claims; and (2) factual allegations sufficient to render those claims plausible. Plaintiff submitted an Affidavit in Support of Amended Complaint. The Affidavit validates the Courts prior analysis. First, the Affidavit does not dispute the Courts reading of Plaintiffs Amended Complaint that led it to conclude Plaintiff was on notice of her claim in 1997 by virtue of the IRS notice. Second, the Affidavit confirms that Plaintiffs claim is based on an allegedly improper liquidation of her 401(k) account in 1997. Because 401(k) benefit recipients must use diligence to safeguard their rights, Plaintiff should have known in 1997 that her 401(k) account had been emptied and, by extension, of the claim she asserts here. Plaintiffs claim accrued in 1997 and is time barred. Amendment would be futile and the Court dismisses Plaintiffs complaint with prejudice. [Filed September 14, 2012]
36-7-7801 Summers v. United States Of America, Dist. Ct. (Irenas, U.S.D.J.) (11 pp.) This is a personal injury negligence suit brought pursuant to the Federal Tort Claims Act. Plaintiff fell from a ladder permanently affixed to the side of building located at the Fort Dix, New Jersey military base. The complaint contains three counts: negligence, premises liability, and a loss of consortium claim. Both plaintiffs and defendants experts applied lateral force to the ladder, and recorded vastly different results. Both experts stood by their original conclusions with regard to the extent of the ladders capability for deflection. The Court, acting as factfinder, decided how much the ladder moved. Finding Plaintiffs experts calculations inconsistent with the damage to the ladder, the Court concludes Plaintiff has not established by a preponderance of the evidence that the ladder moved more than three-sixteenths of an inch. Plaintiffs testimony is inconsistent with the ladders limited potential lateral deflection that resulted from the disengaged brackets and bend in the bottom of the ladder. The Court concludes that Defendant was not negligent, and enters judgment in its favor. [Filed September 14, 2012]