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Vol. 2, No. 62 DECISIONS ISSUED APRIL 12, 1994 AUTOMOBILES – NEGLIGENCE 05-2-3040 Theresa Rosselli Smith, et al. v. Toyota Motor Corp., et al., App. Div. (5 pp.) Where, after plaintiffs’ car-expert reported that accident was caused by normal car wear and tear, plaintiff had car demolished, trial court erred in dismissing complaint against defendant Sears Roebuck & Co., which had serviced the car, on the basis that defendant could not rebut claim, since neither party was prejudiced by car’s destruction. ENVIRONMENT 17-2-3041 Jacob Acobe, et al., v. Edward Siegel, et al. App. Div. (6 pp.) Where nearby apartment residents sued landfill owner and abutting property owners for personal and property injury caused by chemical and smoke exposure emanating from landfill fires, trial court properly dismissed plaintiffs’complaint against owners and operators for joint and several liability under N.J.S.A. 13:1E-62, since (1) statute was inapplicable as a matter of law because landfill had been closed before the effective date of the statute, and (2) strict liability feature of act was not intended to be applied retroactively. ENVIRONMENT – GOVERNMENT 17-2-3042 Passaic County Utilities Auth. v. DiBella Sanitation Serv., Inc., App. Div. (13 pp.) Where two solid waste collectors were issued summonses for transporting solid waste out of Passaic County to Bergen County transfer station in violation of state DEPE order, trial court holdings properly (1) upheld summonses since companies violated DEPE order, and (2) found that companies had not complied with “Permeira Memo” criteria, since judge’s decision was based on a careful review of the evidence. INSURANCE 23-2-3043 Keith Carroll and Kathy Carroll, et al. v. Philip Boyce and Barbara Boyce, v. Prudential Property and Casualty Ins. Co., App. Div. (9 pp.) Where plaintiff’s baby was injured while defendant insured was watching the baby in her home, trial court properly dismissed defendant’s complaint against insurer, since coverage was excluded under business-pursuits policy exclusion. INSURANCE – AUTOMOBILES 23-2-3044 Carmen Barbosa and Justo Barbosa v. Stanislaw Sliwowski, App. Div. (6 pp.) Where plaintiff’s forehead, spine and left side of chest were injured in an auto accident, trial court erred in dismissing plaintiff’s complaint for failure to meet verbal-threshold criteria, since plaintiff complained of debilitating headaches, pain and disability two years after the accident and the inability to lift her children or participate in sports and dancing. 23-1-3045 Carter Lincoln-Mercury, Inc., Leasing Div. v. Emar Group, Inc., et al., Sup. Ct. (38 pp. incl dissent) Where defendant insurance broker obtained a collision policy for a commercial trucking company that leased a truck from plaintiff lessor, who was named on an insurance certificate as a loss-payee, insurance broker has a duty to the insured (the trucking company), as well as loss-payee (the plaintiff), to place insurance with a financially stable insurance carrier, since (1) a broker has a duty to use reasonable skill, care and diligence in selecting a financially secure insurer, and (2) it is reasonably foreseeable that claimants entitled to collect under policy will be injured if carrier is insolvent and are within zone of harm caused by broker’s negligence. 23-2-3046 Dale Roberts v. David Strevli and Casaundra Walker and Casaundra I. Walker v. David Strevli, App. Div. (14 pp.) Where plaintiff Roberts suffered from back spasms, vertigo, and sleep disorders, and plaintiff Walker had back spasms from injuries, all of which were sustained in an auto accident, trial court (1) erred in dismissing complaint against Roberts, since he could not obtain work as a landscaper nor could he work at home or on his car because he could not bend down and lift heavy objects; and (2) properly dismissed complaint against Walker, since spasms were not evident when she was released from treatment. NEGLIGENCE 31-2-3047 Margaret Louise Rogers v. John Jolley, App. Div. (4 pp.) Where plaintiff was injured when she tripped trying to escape defendant’s dog, which had run out of defendant’s yard through an open gate, trial court erred in dismissing complaint against defendant, since it is reasonably foreseeable that a person walking on a sidewalk would be fearful of a dog; and that a dog allowed to run loose would chase a person that ran in fear. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3048 Jay Weiss v. Jersey Shore Medical Center, et al., and John, Doe, M.D., et al., App. Div. (18 pp.) Where plaintiff, who had been treated for psychiatric problems, was injured when he set fire to his hospital room in an alleged suicide attempt, trial court erred in dismissing complaint against social worker and against treating psychiatrist, since expert testimony (1) established that psychiatrist deviated from applicable standard of care and (2) raised factual question whether social worker had deviated from applicable standard of care. REAL ESTATE 34-02-3049 McBride Agency Inc. v. Anton Sauter and Edith Sauter and George C. Feigner, et al., App. Div. (6 pp.) Where plaintiff/real estate broker sold property owned by defendant Maner Co. to defendants Sauters, trial court during bench trial erred in awarding plaintiff broker money from buyers based on quantum meruit, since real estate broker repeatedly stated that he expected the seller to pay the commission, and real estate broker usually acts as seller’s agent, absent an agreement to the contrary. 34-2-3050 Thomas L. Yager and Joanne W. Yager v. James R. DeSenna and Elinor DeSenna v. Prudential Property and Casualty Co. and Allstate Ins. Co., App. Div. (23 pp.) Where plaintiff home-buyers sued defendant home-sellers about odor that they had noticed inside and outside of home, and health inspection revealed that smell was caused by mold inside walls, caused by leaking sewage system, trial court properly dismissed buyers and sellers third-party complaints against respective insurers, since claims were excluded by policy provisions. CRIMINAL LAW AND PROCEDURE – CONSTITUTIONAL LAW 14-2-3051 State v. Fabrizio Salvatore Bertino, App. Div. (5 pp.) When defendant had been convicted of purposeful or knowing murder of his girlfriend and her son, based on N.J.S.A. 2C:4-2, trial court had properly instructed jury that defendant had the burden by a preponderance of the evidence to show that a mental disease or defect prevented him from being able to form the requisite state of mind, and state had burden to prove every element of the crime, but jury charge clearly violated subsequent ruling in Humanik v. Beyer, 871 F.2d 432 (3d Cir. 1989), where Third Circuit held that statute and jury instructions deprived defendant of due process of law, requiring this case to be reversed and remanded.

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