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New Jersey’s statute of repose protects real estate contractors from suits more than 10 years after the work crews leave. But nowadays, when much of the work is done at a factory and hauled onto the site, is the manufacturer entitled to the same protection? That’s what the Supreme Court is mulling in Dziewiecki v. Bakula, A-33/34, a swimming-pool injury case argued last Monday. Janusz Dziewiecki, a 36-year-old guest at a Labor Day party in 1997, dove from the edge of an in-ground pool and hit its angled sides. He suffered severe spinal cord injuries and is now a quadriplegic. He sued his hosts, Wieslaw and Elizabeth Bakula, for negligence and asserted products liability and breach of warranty claims against the pool’s retailer, Grobels Inc., and its manufacturer, Fox Pools Inc. But the pool had been put in by a previous homeowner in 1972. It was sold by Fox Pools as a kit, containing galvanized steel walls, a vinyl liner, braces for behind the steel walls and other components. Grobels transported the pool kit from York, Pa., to the site, excavated the hole, installed the pool, poured a concrete apron around it and installed a perimeter fence. A Mercer County judge granted summary judgment to Fox Pools and Grobels under N.J.S.A. 2A:14-1.1, which says that no cause of action for injury from an unsafe condition of improvement to real property can arise more than 10 years after construction is completed. But last June, the Appellate Division reversed summary judgment for Fox Pools, finding that the case could survive as a failure-to-warn product liability suit if the pool is considered as a product, not as an improvement to real estate. The appellate judges cited earlier holdings that a seller or installer of a mass-produced product incorporated into a real-property improvement – but who is not involved in the design, planning and construction of the improvement itself – is not protected by the statute of repose. “We conclude that products liability principles apply to the manufacturer and/or seller of a defective product, even when the product is used to improve real property,” wrote Judge Ariel Rodriguez for a unanimous panel in Dziewiecki v. Bakula, 361 N.J. Super. 90 (2003). “We also conclude that the SOR applies only to the party constructing or erecting an improvement to real property and only with respect to work on the improvement itself.” Thus, Grobels, which did all the installation, was protected. Nevertheless, the lawyer for Fox Pools told the justices that the Appellate Division’s ruling was all wet. “This was contrary to the clear intention of the Legislature,” said Gerard Quinn, a partner at Cooper, Levenson, April, Niedelman & Wagenheim in Atlantic City. Quinn argued, in essence, that the prefabrication of the pool was exactly as though Fox Pools had constructed it on the site. “They made a pool kit,” said Quinn. “That is exactly the sort of design to be covered by the statute of repose.” Grobel’s attorney, Bernard Campbell Jr. of Trenton’s Destribats, Campbell, DeSantis & Magee, agreed. “This was clearly an improvement to real property,” he argued. Dziewiecki’s attorney, Bernard Hvozdovic Jr. of Lynch Martin in North Brunswick, argued not only for affirmance of the Appellate Division ruling but also for extending it to Grobels. Since Grobels purchased the pool kit from Fox Pools, he said, it is part of the chain of distribution and subject to product liability standards. The case against the Bakulas settled out of court. Hearing Loss – After a Bergen County jury found Adam Fermin guilty of third-degree burglary, a routine poll of jurors disclosed that one of them had a hearing impairment. Juror 13, a “soft-spoken” elderly woman, said she had difficulty understanding or hearing the trial judge’s questions. Fermin’s lawyer moved for a mistrial, arguing that the juror may not have been able to hear all the evidence, including exculpatory evidence. But Superior Court Judge Donald Venezia questioned the juror at sidebar and determined otherwise. He sentenced Fermin to 120 days in jail plus two years on probation. Last Monday, Assistant Deputy Public Defender Lon Taylor argued that Venezia was too quick to apply a Band-Aid to a fatal problem. “There should be a bright-line standard – that when a juror reveals a defect, that calls for an immediate mistrial,” argued Taylor in State v. Fermin, A-40-03. Justice James Zazzali noted that the juror said she had been able to hear the testimony – save for some mumbling on the part of some witnesses, and that she had been able to take part in the give-and-take during deliberations. “I gave them my opinions, they gave me theirs,” Zazzali quoted her as saying. But Taylor said there was clear evidence that she had trouble hearing everything that was said, including possibly Venezia’s instructions regarding the proofs needed to reach a verdict of guilty on the burglary charge. “This is a per se cause for reversal,” Taylor said. Assistant Bergen County Prosecutor Melanie Ozuna Silletti said she was satisfied from the record that Juror 13 “clearly heard” all the relevant testimony and that any perceived hearing problems did not preclude her from participating in the debate in the jury room. Thus Fermin was not deprived of his right to a fair trial. What’s New in De Novo – A lawyer representing a man convicted of drunken driving asked the Court on Monday to determine whether a Superior Court judge, in a trial de novo, should be able to overturn a municipal judge’s findings that are grounded in direct observation of the credibility of witnesses. Sadegh Kashi was driving on the New Jersey Turnpike on March 24, 2001, when he swerved and struck an overheated car sitting on the shoulder, causing about $30,000 in damages. He was charged with drunken driving and reckless driving. A municipal court judge convicted him of drunken driving based on the Breathalyzer test but rejected observations by the trooper and by the other car’s driver that Kashi appeared to be intoxicated. Kashi’s lawyer, Trenton solo practitioner Timothy Boney, requested a trial de novo, hoping to have the Breathalyzer evidence thrown out on the grounds that the trooper did not operate the machine properly. To Boney’s surprise, the Middlesex County Superior Court judge instead overturned the rejection of the observation evidence. On appeal in State v. Kashi, A-25-03, Boney told the justices that since the municipal court judge had the advantage of actually listening to the observation evidence and judging it on its merits, the Superior Court judge shouldn’t have the unbridled right to overturn him. “I’m asking the Court to rule that when there is a finding of fact in municipal court . . . that decision is precluded from review by the Law Division in a trial de novo,” said Boney. “It’s gotten to the point where the defendant doesn’t get a fair shake,” he said, adding that while a defendant may win at least one portion of the trial, he then has to fight admissibility of evidence again on appeal. Middlesex County Assistant Prosecutor Simon Rosenbach told the Court there was no reason to overturn the Superior Court judge’s determination. Rosenbach said Law Division judges have been engaging in this practice for four decades without experiencing any problems. “Is there any good reason to change what we’ve done for 40 years? No.” he said. “In trials de novo, the Law Division makes findings of fact completely anew. There is no reason to change that practice.”

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