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Vol. 2, No. 71 DECISIONS ISSUED APRIL 25, 1994 AUTOMOBILES – NEGLIGENCE 05-2-3125 Grace Harmon v. Leisure Time Tours and Manuel Favata, App. Div. (5 pp.) Where plaintiff was injured when a window on defendant’s bus shattered, showering plaintiff with glass, which caused a small wound on her cheek and supposedly later caused a TMJ jaw problem, trial court properly held that res ipsa loquitur did not apply, since the cause of the broken window could have been a thrown stone, a defect in the glass, or other problems. INSURANCE – AUTOMOBILES 23-2-3126 Allstate Ins. Co., A Servicing Carrier for the N.J.A. F.I.U.A. v. Marvin Bradshaw, App. Div. (9 pp.) Where defendant’s back was injured when, while sitting in his parked vehicle it was struck by a “hit-and-run” phantom vehicle, arbitrators properly awarded defendant money for meeting verbal-threshold criteria, since defendant’s back injuries seriously affected his life. 23-2-3127 Ronald Buchichio, et al. v. Nesly Beauharnais and Allstate Ins. Co., App. Div. (5 pp.) Where plaintiff’s wife was killed when riding defendant’s motorcycle, trial court correctly determined that decedent’s automobile policy had been properly canceled before the accident, since Allstate complied with all necessary statutory provisions when notifying decedent about policy cancellation. 23-2-3128 Elva Moreno v. Blane Greenfield and Hillary Greenfield, App. Div. (12 pp.) Where plaintiff suffered from headaches, neck and back pain which radiated into her right leg from injuries sustained in an automobile accident, trial court erred in dismissing plaintiff’s complaint for not meeting verbal-threshold criteria, since (1) evidence clearly demonstrated that plaintiff’s back problems were caused by the automobile accident, and (2) back injuries seriously affected her life, she could no longer go dancing on weekends or work-out because of the pain. LABOR AND EMPLOYMENT 25-2-3129 Richard Fullbrook v. Paul’s Trucking Corp, et al. and “John Doe”, App. Div. (8 pp.) Where plaintiff was injured when he fell through pallet as he was inspecting a trailer-load of bananas at work, trial court properly denied defendant’s motion for a judgment n.o.v., since there was sufficient evidence for jury to find that by not inspecting the pallets defendant breached its duty to exercise reasonable care while the plaintiff/business invitee was in the trailer. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3130 Felisha Mickens v. Kenneth A. Kappy, M.D., App. Div. (9 pp.) Where plaintiff infant suffered from birth defects supposedly resulting from lack of oxygen flow to the brain after amniocentesis performed by defendant doctor, trial court properly found that defendant doctor was not negligent, since evidence clearly supported finding that doctor had followed recognized procedure for carrying out test. PUBLIC EMPLOYEES 33-2-3131 PBA Local v. Township of North Brunswick, App. Div. (11 pp.) Where police officer’s on-the-job injury caused him to miss work days, arbitrator erred in awarding police officer overtime for doctor’s visits during work hours, since in rendering award arbitrator failed to follow guidelines for public sector arbitration set forth in N.J.S.A. 2A:24-8(d) and N.J.S.A. 2A:24-8(a). WORKERS’ COMPENSATION 39-2-3132 Layda O. Nunez v. Silver Line Building Prods., App. Div. (6 pp.) Where plaintiff’s hand was injured when it got caught in a plastic-tailings grinding machine, workers’ compensation judge erred in dismissing plaintiff’s complaint, since there was sufficient evidence to support fact that plaintiff’s hand was injured in the grinding machine. CRIMINAL LAW AND PROCEDURE 14-2-3133 State v. Marco Anthony DiGiovanni, App. Div. (8 pp.) Where defendant was convicted of knowing and purposeful murder, trial court properly denied defendant’s petition for post- conviction relief in which he claimed that he did not make a voluntary and knowing waiver of his right to counsel, since defendant previously had raised this same issue on appeal and it was decided against defendant; and once an issue has been decided it may not be relitigated. 14-2-3134 State v. Calvin Felder, App. Div. (12 pp.) Where defendant was convicted of second-degree robbery, and during defendant’s cross-examination prosecutor asked defendant what he said to police officers after he came out of hiding place, trial court properly held that improper questioning did not necessitate a mistrial, since court’s detailed curative instruction removed any harm the questioning may have caused. 14-2-3135 State v. Shawn Jackson, App. Div. (33 pp. incl. dissent) Where defendant during a bench trial was convicted of knowing or purposeful murder, trial court erred in not finding that defendant had invoked his right to remain silent which was not heeded, since defendant was questioned by second investigator after telling the first investigator during questioning “…that he wasn’t going to tell anything that happened because of personal reasons,” which is a clear statement that he had invoked his right to remain silent.

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