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VOL. 2, NO. 118 DECISIONS RELEASED JUNE 30, 1994 AUTOMOBILES – NEGLIGENCE 05-2-3646 Johanna Loughlin v. Renee and Emanuel Yedwab, App. Div. (16 pp.) Where plaintiff was injured in an automobile accident, trial court properly dismissed plaintiff’s claim for lost future earnings, even though the trial court appeared to incorrectly apply the standard for determining a new trial motion instead of the standard for a judgment notwithstanding the verdict, since (1) the court’s mistake was harmless error, and (2) the plaintiff did not meet the burden of proving her claim. AUTOMOBILES – NEGLIGENCE – GOVERNMENT 05-2-3647 Joanne Eason v. NJAFIUA and Township of Montclair and Regency Ins., Penn. Nat’l Mut. Casualty Ins. Co., et al., App. Div. (18 pp.) Where plaintiff was injured in an automobile accident, when defendant’s vehicle struck her after she failed to stop because of a missing stop sign, trial court erred in dismissing the complaint made under the Tort Claims Act against the town for failure to replace the sign, since the decision was contrary to the state Supreme Court’s holding in Weiss v. New Jersey Transit, 128 N.J. 376 (1992). 05-2-3648 Robin Fielder v. Frederick S. Jenkins, Township of Neptune Police Dep’t, et al., App. Div. (14 pp.) Where plaintiff was injured when her car was struck by a police car speeding through an intersection against the light in pursuit of fleeing automobiles, and the officer did not follow superior’s directives to abandon the chase, trial court properly did not dismiss the claims against the police department, since under the holding in Tice v. Cramer, 113 N.J. 347 (1993), the Tort Claims Act does not apply to situations where the police officer is guilty of willful misconduct. 05-2-3649 Malgorzata Wisniewska Spiegel and Derek Spiegel v. County of Ocean and Township of Lakewood, et al., App. Div. (6 pp.) Where plaintiff passenger was seriously injured when car in which she was riding crashed into a concrete bridge abutment maintained by Ocean County, trial court properly denied the county’s motion to dismiss her complaint, since the county was negligent in not extending the bridge guard rail to the abutment, which stopped two feet before the abutment. EVIDENCE – INSURANCE – AUTOMOBILES 19-3-3650 Anna Tomassini v. Paul Saunders, The Unsatisfied Claim and Judgment Fund Bd, et al., Law Div. (7 pp.) Where Market Transition Fund — which insured defendant driver who struck and injured plaintiff pedestrians — claimed that it did not insure defendant at time of the accident, trial court held that the insurer did not submit sufficient proofs to demonstrate its claim. [Approved for publication June 27, 1994.] FAMILY LAW – JURISDICTION 20-4-3651 Miroslaw Roszkowski v. Grazyna Roszkowski, Ch. Div. (22 pp.) Where father wanted child, who had lived in this state for slightly more than six months, returned to the U.S. after the mother took the child to Poland during divorce proceedings, chancery court held that the Polish court is required to return the child to the U.S., since the four requirements for return of the child of the Hague Convention on the Civil Aspects of International Child Abduction had been met. [Approved for publication june 27, 1994.] INSURANCE – AUTOMOBILES 23-2-3652 Nancy Benton v. Royal Ins. Co., App. Div. (9 pp.) Where plaintiff passenger, who was injured in an automobile accident, wanted to rescind a settlement she reached with her insurer, because two years after the settlement her attorney discovered that the other car driver did have insurance, trial court properly rescinded the settlement based on mutual mistake, since the settlement was based on the uninsured provision of her policy, not the underinsured provision. 23-2-3653 Richard A. Corney v. Sean Santini, App. Div. (4 pp.) Where plaintiff’s back was injured in an automobile accident, trial court erred in dismissing the complaint for failure to meet verbal-threshold criteria when plaintiff’s counsel did not submit any proof regarding lifestyle changes, since the trial court should have continued the motion to permit the supplemental proof. 23-2-3654 Michelle and Stephen Greco v. Niccola Rowland, App Div. (5 pp.) Where plaintiff, who had a miscarriage and soft-tissue injuries after being involved in an automobile accident, saw a psychologist for trauma she suffered from the miscarriage, trial court properly dismissed the complaint for failure to meet verbal-threshold criteria, since plaintiff submitted insufficient proof that (1) the accident caused the miscarriage, or that (2) the accident caused her psychological problems. LABOR AND EMPLOYMENT – CONTRACTS 25-1-3655 Anthony Nicosia v. Wakefern Food Corp., Supreme Ct. (25 pp.)[See companion case no. 3656.] Where employee, who was fired for mishandling merchandise, sued employer for wrongful termination on grounds that termination procedures in employment manual were not followed, trial court properly held that the entire employment manual constituted an implied employment contract, and that the manual disclaimer did not negate any of its enforceable obligations. 25-1-3656 Edward B. Witkowski v. Thomas J. Lipton, Inc., et al., Supreme Ct. (22 pp.)[See companion case no. 3655.] Where employee sued employer for wrongful termination, appellate court properly held that trial judge erred in dismissing plaintiff’s complaint, since the termination raised a factual question as to whether the employee could reasonably expect that the employment manual provided job security, as a result creating an implied employment contract, under Woolley v. Hoffman-LaRoche, 94 N.J. 284, modified, 101 N.J. 10 (1985); Court declined to address the applicability in a breach-of-contract claim of the after-acquired evidence doctrine. LAND USE 26-2-3657 Township of Brick and Deuville Beach and Bay Ass’n Inc., and Normandy Beach Improvement Ass’n, App. Div. (8 pp.) Where defendant marina wanted to expand its docks, trial court properly held that a municipality had a right to apply its zoning regulations to the docks, pursuant to the holding in the unreported decision of Anfuso v. Seeley, 243 N.J. Super. 349 (App. Div. 1990). NEGLIGENCE 31-2-3658 Ann Cengeri v. Rahway Hosp., et al., App. Div. (11 pp.) Where plaintiff was injured when she tripped on an unmarked handicapped ramp in a poorly lit hospital parking lot, trial court properly dismissed plaintiff’s complaint on trial day for not obtaining an expert witness to testify about the ramp’s construction, since (1) the knowledge was not within the jurors’ common judgment and experience, and (2) allowing the plaintiff on the trial day to get an expert witness would have delayed the case and cost the parties more money. PARENT/CHILD 28-3-3659 M.A. v. The Estate of A.C., T.A. and G.A., Ch. Div. (14 pp.) Where infant plaintiff sued to establish a parent-child relationship with his deceased biological father, who is survived by three adult children, trial court held that the adult children must submit to DNA blood testing, since the New Jersey Parentage Act, N.J.S.A. 9:17-51(a), does not control in this case, because it proposes the existence of an alleged living father and, although it does not authorize blood testing of siblings and collaterals, it does not prohibit blood testing in unusual situations such as this. [Approved for publication June 27, 1994.] PARENT/CHILD – NEGLIGENCE 28-2-3660 Josephine DeMarco and Mary DeMarco, App. Div. (11 pp. incl. trial opinion) Where daughter sued her mother for injuries she sustained when she jumped out of a car that her mother was driving while taking her to a psychiatric intervention unit, trial court properly held that the mother was shielded by parental immunity, since a decision whether to have a child treated for an emotional problem falls within a parent’s philosophy of child-raising. [Both decisions approved for publication June 27, 1994.] TORTS 36-2-3661 William Grunow v. Moore Enters., et al., App. Div. (12 pp.) Where self-storage unit lessees sued defendants for property damage caused by a water main break that flooded the units, trial court properly dismissed the complaint, since (1) the lease language properly immunized the landlord from liability, and (2) the doctrine of res ipsa loquitur was inapplicable to an underground water main break. WORKERS’ COMPENSATION 39-3-3662 Nicolena DeMarco v. Stephen V. & Mary Lou Bouchard, Law Div. (7 pp.) Where plaintiff babysitter was injured when she tripped on a walkway while leaving defendants’ home after babysitting for the first time, trial court held that (1) the babysitter is not an employee under the Workers’ Compensation Act and (2) she could bring a negligence action against the defendants, since the babysitter was a casual employee under the act. [Approved for publication June 27, 1994.] CRIMINAL LAW AND PROCEDURE 14-3-3663 State v. Peter Arp., Law Div. (7 pp.) Where defendant — who had taken out victim on a date, but after she said she was not interested in him, refused to let her go and sexually abused her as they drove around near the victim’s home — was charged with kidnapping and sexual assault, trial court denied defendant’s motion to dismiss the kidnapping charge, holding that the defendant’s actions constituted a separate crime in addition to sexual assault. [Approved for publication June 27, 1994.] 14-1-3664 State v. Marko Bey, Supreme Ct. (54 pp. incl. dissent and appendix) Supreme Court affirmed defendant’s death sentence since it was not disproportional, when considering both the crime and the defendant, under a pre-amendment Capital Punishment Act analysis, which was invoked because the appeal had been pending eight years before the amendment. 14-2-3665 State v. Robert Cusmano, Richard Najar and Keith Pacciano, and Shannon Dick, App. Div. (32 pp.) Where defendants, who were indicted for second-degree aggravated assault, threatened the victims not to testify at the trial, and through a recording device at victims’ apartment 90 minutes of such conversations were taped, trial court erred in holding that the tapes were inadmissible due to minor gaps or a deletion of a portion of a conversation, since the trial court misinterpreted the holding in State v. Driver, 38 N.J. 255 (1962), and also because of federal precedent. 14-3-3666 State v. Ronald Legette and Demont Selby, Law Div. (5 pp.) Where an officer — who stopped defendants for speeding and asked the passenger to get out of the car to ticket him for not wearing seat belts — saw cocaine in plain view on the floor between the passenger seat and the door, trial court properly denied defendants’ suppression motion, since an officer may lawfully compel a passenger to step out of a car when issuing a summons. 14-3-3667 State v. Raul Planes, Law Div. (7 pp.) Where defendant, who was charged with robbery, second and third-degree burglary and attempted theft of movable property, while stealing an automobile told a woman who was walking her dog, “You better keep your mouth shut, or I’ll get you …, ” trial court held that threats made to the woman were sufficient to sustain a robbery charge. [Approved for publication June 27, 1994.] VOL 2, NO. 119 DECISIONS RELEASED JULY 1, 1994 ALCOHOLIC BEVERAGES 47-2-3669 The Grand Victorian Hotel v. Borough Council of the Borough of Spring Lake, App. Div. (7 pp.) Where council denied hotel owners’ liquor license application on grounds that traffic and noise would increase in a residential area, director of the Division of Alcoholic Beverage Control properly granted the application, since he found that the area would not be detrimentally affected. CONDEMNATION 44-2-3670 Nat’l Amusements, Inc. v. N.J. Turnpike Auth., et al., App. Div. (7 pp.) Where plaintiff sued the Turnpike Authority for inverse condemnation for the portion of its land that the plaintiff abandoned because of the turnpike’s plans to condemn the land to widen the turnpike, which were dropped, trial court properly held that the turnpike’s delay in making a decision regarding the land did not affect plaintiff’s beneficial use of its property. DEBTOR/CREDITOR 15-2-3671 ADCO Fin. Mortgage Servs., Inc. v. Carl Botzenhardt and Frances Botzenhardt and Tracy McShaffry, App. Div. (9 pp.) Where plaintiff sought loan payments from defendant daughter, whose father, also a defendant, was the obligor, and earlier father had asked daughter to sign a blank promissory note supposedly using her property as collateral, trial court erred in granting the plaintiff’s summary judgment motion making the daughter personally liable for the loan, since factual issues existed, such as whether the daughter knew that she would be personally liable when she signed the note. FAMILY LAW 20-2-3672 Stephanie Brand Isaacs v. Joseph M. Isaacs, App. Div. (18 pp.) Where during divorce proceeding husband claimed that his wife was not an “innocent spouse” and that she was responsible for marriage tax liabilities, trial judge properly held that the wife was an “innocent spouse,” since the family court does not have to defer to a Tax Court decision that fixes parties’ tax responsibility. LABOR AND EMPLOYMENT 25-2-3673 Murray Weinberg and Anthony Romano v. The Kislak Co., App. Div. (10 pp.) Where managers, who, when they left their positions with defendant employer, sued for override commissions on deals handled by salesmen that were under contract but not yet closed, chancery court erred in awarding them the override commissions, since the managers provided no proofs that they were in any way involved in the commissions. PHYSICIAN/PATIENT – TORTS 29-2-3674 Jonathan Pincus v. Lawrence Wean, M.D., and Alan Kurland, M.D. and Cooper Hosp./Univ. Medical Center, App. Div. (9 pp.) Where a needle flew into medical student’s eye, puncturing his cornea, as he and another medical student tried to give a distressed child an injection, trial judge’s initial refusal to play back tapes of trial testimony dealing with a doctor questioning the student about his experience was not a clear abuse of discretion, since the trial judge indicated that if the jurors still had trouble deliberating, then the tapes would be played back. REAL ESTATE – NEGLIGENCE – CONTRACTS – INSURANCE 34-2-3675 John Tedesco and Marjorie Tedesco v. Charles B. Hembling & Son., App. Div. (38 pp.) Where, while defendant builder’s subcontractors were working on plaintiffs’ home, a backhoe ruptured a gas line causing the house to catch on fire, trial court properly allowed into evidence the fact that the builder had more insurance than the subcontractors to demonstrate that the plaintiffs had relied on the builder’s coverage limits in entering the contract, since the judge’s specific jury instructions removed any prejudice. CRIMINAL LAW AND PROCEDURE 14-2-3676 State v. Wilbert Berry, App. Div. (5 pp.) Where defendant was convicted of aiding and abetting the co-defendant in committing attempted murder, armed robbery and aggravated assaults, for which defendant was also charged, trial court erred in convicting him of aiding and abetting, since he cannot be convicted of aiding and abetting crimes for which he also has been convicted. 14-2-3677 State v. Rodney Brown, App. Div. (7 pp.) Where defendant challenged his conviction on two counts of armed robbery, trial judge erred in speaking to the jurors without counsel and a court reporter present, but reversal was not warranted, since the ex parte communication with the jury, to clarify the meaning of two questions, did not prejudice the defendant. 14-2-3678 State v. David Donnally, App. Div. (6 pp.) Where defendant, who pled guilty to second-degree sexual assault, was under the incorrect impression that he could withdraw his plea on sentencing day, trial court properly did not allow the defendant to withdraw his plea, since the judge explained to him that he could properly withdraw the plea by filing a motion. 14-2-3679 State in the Interest of D.M., App. Div. (4 pp.) Where defendant juvenile, if tried as an adult, would have been convicted of having a paging device as a student on school property without permission, trial court properly affirmed the convictions, since even though the pager had been deactivated he was still guilty, under N.J.S.A. 2C:33-19. EDITOR’S NOTE: The Alert will not be published and orders will not be filled, on Monday, July 4, 1994.

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