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Vol. 2, No. 26 DECISIONS RELEASED FEBRUARY 15, 1994 GOVERNMENT – CONTRACTS 21-2-2620 Joseph B. Decker v. Bally’s Grand Hotel Casino, et al., App. Div. (7 pp.) Where plaintiff sued several casinos and the casino commission for breach of express and implied contract for removing the progressive slot machines from the casino floor and reducing a jackpot in a progressive slot machine as allowed by regulation, trial court properly dismissed plaintiff’s contract action for failure to state a claim upon which relief could be granted. INSURANCE – AUTOMOBILES 23-2-2621 Lester Witherspoon and Diamond Witherspoon v. Daniel J. Braithwaite and Fidelcor Services, Inc., App. Div. (5 pp.) Where plaintiff’s back was injured in an automobile accident, plaintiff failed to satisfy the verbal threshold, since report of plaintiff’s treating physician indicated that after back treatment was completed, the range of motion in plaintiff’s back was normal and plaintiff suffered no back pain. 23-2-2622 Wilfred Campbell III v. New Jersey Automobile Full Insurance Underwriting Association (JUA) and Travelers Insurance Co., et al., App. Div. (15 pp.) Where a bicycle rider — a Pennsylvania resident who was not covered by any automobile insurance — was struck by defendant in Philadelphia while operating a van that he had stolen in Pennsylvania from a New Jersey resident, trial court properly dismissed the bicycle rider’s complaint against the JUA, since the JUA had paid the bicycle rider’s PIP benefits and was not required to provide liability coverage because the van had been stolen. LAND USE 26-2-2623 Nancy Fisher v. Kenneth Yates and Dorothy Yates, et al., App. Div. (15 pp.) Where plaintiff instituted two causes of action — the first against the defendant landowners individually and the second against the landowners’ corporate entity under different legal theories — to enforce plaintiff’s right to use a sand road allowed by an easement agreement as the only access to plaintiff’s property, where the landowners had reserved the right to relocate the sand road if a new road provided the same type of “quality that presently exists” for entrance and exit, trial court properly (1) held that the new road to plaintiff’s property, through a development, provided the same access and (2) dismissed plaintiff’s second complaint under the entire- controversy doctrine. MUNICIPAL LAW – TORTS 30-3-2624 George Braun and Marcelyn Braun v. The Township of Mantua v. Toby J. Reid and Katharine D. Reid, et al., Law Div. (16 pp.) In a suit filed by two landowners — whose property lines ended at the middle of an asphalt road running over a dam which collapsed, destroying the public right-of-way that had been maintained by Mantua Township — to have the dam and public roadway next to their property repaired by the township, trial court held that Mantua Township was not responsible for rebuilding the dam and roadway, since state courts will not interfere in governmental decisions affecting road construction when the public body operates within its statutory authority. [Approved for publication on Feb. 14, 1994.] NEGLIGENCE 31-2-2625 Cindy Dudley v. Bone’s Auto Sales, Inc., App. Div. (4 pp.) Where co-defendant driver injured plaintiff while operating his dirt bike and co-defendant had paid for the motorbike purchased by his uncle, manager of defendant business and the uncle, a professional motorcycle and race-car driver, had taught co-defendant to operate the motorbike, trial court properly granted defendant dealership’s motion for summary judgment, since plaintiff’s counsel did not submit adequate evidence to support the negligent-entrustment theory. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-2626 Jessica Stigliano, et al., v. Connaught Laboratories, et al., App. Div. (7 pp.) Where child began to suffer from a seizure disorder six hours after receiving a DPT vaccine, trial court erred in granting child’s attorney’s request to exclude the child’s treating physicians’ unsolicited opinions that the DPT vaccine did not cause the seizures, since the defendants are entitled to the doctors’ testimony as to causation, as well as diagnoses and prognoses. PRODUCT LIABILITY 32-2-2627 Patrick McNulty and Judith McNulty v. Snapper Power Equipment, et al., v. J & A Mowers Co., et al.,App. Div. (5 pp.) Where three of plaintiff’s fingers were severed by an exposed power blade when he jumped off a riding mower which tipped when he operated it down an 18.5 degree slope, trial court’s denial of lawn mower manufacturer’s new-trial motion did not constitute a manifest denial of justice, since there was credible expert evidence to permit a jury to believe that a moderate-cost slope warning was within the state of the art and could readily be adapted to a riding mower. CRIMINAL LAW AND PROCEDURE 14-2-2628 State v. Raymond Albert, App. Div. (5 pp.) Where neighbor demanded that defendant return wood — which defendant took that was stacked in front of the neighbor’s house after the township had cut down a tree at the curb — and defendant stated that he would return the wood if the neighbor would pick it up, which the neighbor refused to do, defendant’s conviction on theft of movable property was erroneous, since the defendant’s actions did not constitute a criminal or civil offense because the logs left at the curb were the township’s property which the township had been abandoned. 14-2-2629 State v. Yesid Castro, App. Div. (4 pp.) Where police officer pursuant to an authorized automobile stop (1) asked the defendant and car passenger where they were going and both in broken English gave the officer different accounts and (2) following verbal permission and written consent searched the vehicle and found a brick of supposed cocaine, trial court properly denied defendant’s motion to suppress the evidence based on defendants’ contention that he did not freely consent to the search because of the alleged language barrier, since the state police search-consent form that the defendant and the passenger signed was in Spanish. 14-2-2630 State v. Maximillian Duque, App. Div. (5 pp.) Where the defendant, among other things, was convicted of possession of marijuana with the intent to dispense or distribute while within 1,000 feet of school property and defendant claimed that he merely attempted to purchase the drug, trial judge erred in instructing the jury to find the defendant guilty of at least possession and that the defendant’s conduct had occurred within 1,000 feet of school property, since the judge by giving these instructions had relieved the state of its burden of proving these elements. 14-2-2631 State v. Kevin Ingram, App. Div. (5 pp.) Where defense counsel raised an objection during jury selection that the prosecutor had excused potential jurors based upon race and the defense counsel did not again raise the objection at the completion of jury selection as suggested by the trial judge after the first objection because the trial judge said then that there was not a prima facie showing of discrimination, trial court properly upheld the exclusions, since the defense counsel provided other legitimate reasons that were not racially related for the exclusions. 14-2-2632 State v. Kenneth Kardanow, App. Div. (9 pp.) Where, while polling the jury, trial judge asked a juror “Was that your verdict?”and defense counsel objected to the use of the past tense, trial judge properly polled the jury, since even if the judge’s use of the past tense instead of the present tense hurt the defendant, it was harmless error. 14-2-2633 State v. Omar Armando Machore, App. Div. (5 pp.) Despite trial judge’s jury instructions on disregarding certain summation statements of prosecutor — for example, that the defendant’s testimony about fabricating his statements to the police was unbelievable since he had been convicted three times before of the crime charged, possession of a CDS with intent to distribute — defendant was denied a fair trial, since the prosecutor had tried to convince the jury to infer guilt. 14-2-2634 State v. Elizabeth O’Loughlin, App. Div. (33 pp. incl. dissent) Where after being involved in an automobile accident defendant driver was taken to a hospital and, among other things, (1) was questioned by police in a hospital examining room without Miranda warnings and (2) told that she could only leave the hospital via police-arranged transportation, trial court erred in holding that this was not a custodial interrogation and not suppressing defendant’s statements, since her detention and questioning by police officers was different from the temporary post-traffic accident detention.

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