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VOL. 2, NO. 116 DECISIONS RELEASED JUNE 28, 1994 INSURANCE – AUTOMOBILES 23-2-3625 Prudential Property and Casualty Ins. Co. v. Monmouth County Mun. Joint Ins. Fund, et al., App. Div. (4 pp.) Where personal insurance carrier of an on-duty police officer, who was injured in an automobile accident with an uninsured motorist, requested coverage from town’s self-insurer under N.J.S.A. 17:28-1.1c for prorated coverage, trial court properly held that the Tort Claims Act provided no protection for the self-insurer, and that N.J.S.A. 17:281.1c mandated prorated, not excess, coverage, under the holding in Prudential Property and Casualty Ins. Co. v. Travelers Ins. Co., 264 N.J. Super. 251 (App. Div. 1993). LABOR AND EMPLOYMENT 25-2-3626 Catherine M. Elston v. Bd. of Trustees of Police and Firemen’s Retirement Sys., App. Div. (9 pp.) Where police officer twisted her neck and back as a file drawer fell to the floor, and her migraine headaches increased in intensity and frequency after the accident, administrative law judge properly denied her disability retirement application, since she failed to prove (1) the “traumatic event” element under N.J.S.A. 43:16A-7(1), and (2) total and permanent disability, under N.J.S.A. 43:16A-6. NEGLIGENCE – PRODUCT LIABILITY 31-2-3627 Connie Kitrelle v. Shop Rite, Inc. v. The Clorox Co., App. Div. (19 pp.) Where Clorox bleach spilled onto shopper’s face as she tried to remove the bottle from a tightly packed shelf at defendant store, trial court erred in dismissing claims against the store on grounds that it did not have exclusive control over the stocking of the Clorox bottles on the store shelves, since a factual question did exist about control. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3628 Larry D’Aries & Francis D’Aries v. Jerome M. Schell, D.P.M. & Franklyn Gerard, M.D., App. Div. (17 pp.) Where jury found Dr. Schell — who treated a diabetic patient for a toe infection which became gangrenous and spread, resulting in a below-knee amputation — 40 percent negligent and the patient 60 percent negligent, trial court erred in not instructing the jury that the doctor had the burden of proving the patient’s negligence and then apportioning the harm to the patient caused by his own negligence. 29-1-3629 Sam and Giuditta v. Cooper Hosp. Univ. Med. Ctr., et al., Supreme Ct. (25 pp. incl. dissent and appellate court decision) Where a jury found 100 percent negligent an 85 year-old patient, who fractured her hip after a fall as she tried to get off a stretcher, trial court erred in dismissing the new trial motion, since a health-care professional, whose duties include the exercise of reasonable care to prevent an infirm patient from hurting himself or herself, may not assert contributory negligence as a defense to a claim resulting from the patient’s self-inflicted injuries. 29-2-3630 Tom Spanos v. Matthew J. Marano, Jr., M.D., App. Div. (5 pp.) Where plaintiff’s counsel claimed that the statute of limitations does not begin to run until an expert witness offers a malpractice theory upon which plaintiff may proceed, trial court properly dismissed the complaint for late filing, since the holding in Brizak v. Needle, 239 N.J. Super. 415 (App. Div. 1990) rejected plaintiff’s argument. 29-2-3631 Nancy J. Titus v. James J. Manlandro, D.O and Shore Memorial Hosp. and Richard Mingione, M.D., et al., App. Div. (6 pp.) Where a patient at hospital’s detoxification unit hung himself, trial court properly found doctors and hospital negligent, since the evidence supported the conclusion that the defendants deviated from applicable standards of care. CRIMINAL LAW AND PROCEDURE 14-2-3632 State v. Dominick Jackson, App. Div. (13 pp.) Where defendant was convicted of aggravated manslaughter, trial court erred in not instructing the jury on passion/provocation manslaughter, since it is a lesser-included offense, which was supported by the evidence. 14-2-3633 State v. Raynard Lonon, App. Div. (10 pp.) Where defendant was convicted of fourth-degree aggravated assault and making terroristic threats when he tried to stop a man from repossessing his car who he thought was stealing it, the trial court erred in not instructing the jury on the defense of justifiable use of force in defending personal property, under N.J.S.A. 2C:3-6c, thus the charges were dismissed. 14-2-3634 State v. Yoni Pena, App. Div. (5 pp.) Where defendant was convicted of armed robbery and aggravated assault, trial court properly admitted a witness’s identification testimony, even though it was “weak,” since the jury decides how much weight they will place on the testimony. 14-1-3635 State v. Louis Pulasty, Supreme Ct. (16 pp.) Where former treasurer of State Firemen’s Association pled guilty to theft by deception for embezzling money from the association, and as restitution was required either to assign his pension to the association or pay the probation department, Supreme Court held that his pension was subject to judgment, since once a person actually receives pension benefits, they are no longer protected by ERISA and are subject to judgment. CRIMINAL LAW AND PROCEDURE AND ALCOHOLIC BEVERAGES 14-2-3636 State v. Mary E. Reilly, App. Div. (5 pp.) Where defendant, who was pulled over at a roadblock, was convicted of driving while under the influence because she had a .12 percent blood alcohol level reading after taking a Breathalyzer test in a converted school bus parked at the U.S. Naval Weapons Station, trial court properly did not suppress the Breathalyzer reading, since even though the police had people pull into a Navy lot, the state courts still had jurisdiction.

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