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Vol. 2, No. 77 DECISIONS ISSUED MAY 3, 1994 ALCOHOLIC BEVERAGES – INSURANCE – AUTOMOBILES 47-2-3184 Donna Thomas, et al. v. Rutgers, the State University, et al. and the City of Camden, et al., App. Div. (9 pp.) Where plaintiff passenger was injured when the car in which she was riding struck a utility pole, and the driver was under the influence of alcohol after attending a party thrown by members of several fraternities and sororities, and plaintiff sought to attach host liability to the party hosts, organizations, and Rutgers for the school’s failure to supervise and control student activities, trial court properly dismissed claims against all defendants, since plaintiff could not demonstrate that any of the defendants directly served alcoholic beverages to the driver; the host liability that plaintiff sought to impose has not been recognized by the state Supreme Court. CORRECTIONS 13-2-3185 Donald Allan Stilton v. E. Calvin Neubert, et al., App. Div. (5 pp.) Where plaintiff prisoner was punished after a homemade knife was found in his cell, and he claimed that he had insufficient time to prepare his case and should have undergone a lie-detector test, state Corrections Department erred in not ordering a polygraph test, since there was sufficient evidence to support the plaintiff’s claim that someone had tried to place the knife in his cell. INSURANCE – AUTOMOBILES 23-2-3186 Mariver Garcia v. Abilio Mendes, App. Div. (5 pp.) Where plaintiff injured her back in an automobile accident, trial judge properly dismissed plaintiff’s complaint for failure to meet verbal-threshold criteria, since neither of plaintiff’s physicians stated that plaintiff could no longer participate in sports, and plaintiff’s medical tests showed no permanent injury. LABOR AND EMPLOYMENT 25-2-3187 Colleen A. Hand v. Board of Review, App. Div. (6 pp.) Where plaintiff employee, who had worked for former employer for 11 years, was terminated for cause after she called in sick, but wasn’t informed until several weeks after, when she returned to the job following what she thought was leave related to her brother-in-law’s death, board improperly denied employee’s request for reconsideration, since copy of a letter that employee received from her former employer’s medical insurer indicated that employee was terminated the day before she called in sick. 25-2-3188 Charles E. Shipley v. Mobil Chemical Co., App. Div. (15 pp.) Where plaintiff, who was terminated when defendant Mobil sold the division he worked for to another company, entered into an agreement with Mobil during his job search to confirm that his title was planning manager because plaintiff felt that his actual title did not describe adequately his responsibilities, trial court properly granted Mobil’s summary-judgment motion to dismiss plaintiff’s contract-breach claims because the complaint was filed late, since plaintiff knew that Mobil was not complying with the agreement before the statute of limitations had run. LANDLORD/TENANT – CONTRACTS 27-2-3189 Carmen Di Cioccio, et al. v. New Dutch Lane Corp., Rreef Management Co. and Cushman and Wakefield, App.Div. (7 pp.) Where plaintiff, outside broker of original lease, sued for rental commissions when the landlord and tenant renewed the lease at the end of the original-lease term, trial court properly granted all of the defendants’ summary judgment-motions, dismissing them from the case, since property management terms provided that if the outside broker obtained the lease renewal, commissions would be paid pursuant to a separate agreement between the outside broker and building owner, that was never entered into. PRODUCT LIABILITY 32-2-3190 Christopher Croux, et al. v. Cincinnati Inc., App. Div. (34 pp.) Where four of plaintiff’s fingers were amputated while operating a press brake that defendant designed and manufactured, and jury awarded plaintiff a $1.2 million verdict, trial court properly denied defendant’s motion for a new trial, since (1) plaintiff clearly showed that the injury substantially reduced his ability to earn a living in the future, and (2) the testimony supported the value the jury gave to his lost earnings. TORTS 36-2-3191 Mary George v. First United Presbyterian of Bordertown, et al., App. Div. (3 pp.) Where plaintiff, an elder of defendant church, was injured when she fell on the church stairs, trial court properly dismissed plaintiff’s complaint, since under the charitable immunity statute she was was a beneficiary of the works of the church, and she was not a person “…unconcerned in and unrelated to and outside of the benefactions of such [organization].” [Approved for publication on May 2, 1994.] WORKERS’ COMPENSATION 39-2-3192 Karl Lindstrom v. Airco, Inc., App. Div. (5 pp.) Where defendant suffered a heart attack after loading several 800-pound cylinders filled with liquid helium into a trailer, workers’ compensation properly awarded 45 percent partial-permanent disability, since the finding was supported by credible evidence. CRIMINAL LAW AND PROCEDURE 14-1-3193 State v. Nevel L. Heslop, Sup Ct. (24 pp. incl. dissent) Where defendant husband was convicted of murdering his wife after an argument–and where trial judge before charging jury on the lesser-included murder offenses stated that if it did not find the defendant guilty of purposeful and knowing murder, then it did not have to consider the lesser-included offenses- -Appellate Division properly held that jury instruction was not improper, since the trial judge’s curative instruction overcame any prejudice; when considering purposeful and knowing murder, the jury must consider the heat of passion. 14-2-3194 State v. Dwayne Mann, App. Div. (11 pp.) Where defendant was convicted of purposeful and knowing murder, prosecutor’s statement during summation that discussed the jury’s sworn moral obligation was improper, but did not constitute reversible error, since (1) defense counsel did not object, (2) the judge’s instructions removed any prejudice, and (3) considering the brevity of the prosecutor’s remarks during a lengthy trial. CRIMINAL LAW AND PROCEDURE AND CONSTITUTIONAL LAW 14-2-3195 State v. Carlos Rivera, App. Div. (7 pp.) Where defendant was convicted of third-degree heroin possession, on appeal defendant unsuccessfully alleged that N.J.S.A. 2C:35-9 is unconstitutional, since in State v. Erwin, 242 N.J. Super. 584, 590 (App. Div. 1990), by analogy to N.J.S.A. 2C:11-3(a)(3), the Appellate Division found that the statute did not violate due process; similar issues are now pending before the state Supreme Court in State v. Maldonado, certif. granted, 127 N.J. 564 (1992).

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