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VOL. 2, NO. 132 DECISIONS RELEASED JULY 21, 1994 CIVIL PROCEDURE 07-2-3820 Michael R. D’Alessandro v. New Jersey Insurance Underwriting Association, App. Div. (4 pp.) Trial judge may not, in a jury case, decide disputed facts to determine whether a claim is barred by statute of limitations. EDUCATION – GOVERNMENT 16-2-3821 Winslow Township Bd. of Educ. v. Bd. of Review, App. Div. (8 pp.) Local school district had no authority to reimburse a regional district — from which it withdrew — for the school buildings acquired by law upon withdrawal, even if the result may be inequitable. ENVIRONMENT 17-2-3822 State of New Jersey Dep’t of Envtl. Protection and Energy v. Indus. and Commercial Refuse Removal Serv. Inc., App. Div. (6 pp.) Where DEPE sued transfer-station operator for accepting solid-mixed waste instead of recyclable waste, but submitted specific evidence of the contents of only one delivery to the center, trial court properly rejected DEPE’s proffer of evidence supporting the operator’s alleged acceptance of 78 other loads. FAMILY LAW 20-2-3823 Paul McGee v. Carol McGee, App. Div. (19 pp.) Divorce judgment reversed and remanded where trial judge (1) omitted from his equitable- distribution analysis the 10-year relationship of the parties, most of it before they were married, into which the wife brought significant real estate assets, (2) made no findings that would support an award of “rehabilitative” as opposed to permanent alimony, and (3) in denying counsel fees to wife, failed to address her need, the husband’s ability to pay, and the wife’s good faith vel non in instituting or defending the action. 20-4-3824 Christopher W. Unger, Sr. v. Peggy Ann Unger, Ch. Div. (13 pp.) Where issue in child custody suit was the deleterious effects of the mother’s heavy smoking on the children, chancery court held that the mother remained the primary custodial parent, and both parents were prohibited from smoking in the children’s presence. (Approved for publication July 21, 1994.) INSURANCE – AUTOMOBILES 23-2-3825 Stewart Mrvicin v. Christine J. Aragona, App. Div. (6 pp.) Where plaintiff injured his back in an automobile accident, trial court properly found that he met the verbal-threshold criteria, since he submitted objective medical evidence, and the injury seriously affected his life. JURISDICTION 24-2-3826 Justo Miranda et al. v. Shulim Fridman et al., App. Div. (20 pp.) Despite common-law-remedy savings clause, National Traffic and Motor Vehicle Safety Act of 1966 — authorizing federal government to write and administer motor vehicle safety standards, including crashworthiness — preempts state-damage claims targeting federally approved choices of passenger restraint systems. TORTS 36-2-3827 Isaac Briggs, III v. Campbell Soup Co. and Mayfair Supermarkets, Inc., App. Div. (8 pp.) Where plaintiff suffered from anxiety stress disorder, after ingesting glass and mercury in a can of Campbell’s soup, trial court erred in dismissing plaintiff’s claims of psychological problems on grounds that they were not foreseeable nor proximately caused by the negligence. 36-1-3828 Michael Crawn v. John Campo, Supreme Ct. (26 pp.) The standard of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct; since sports conduct is highly subjective, the standard of care cannot be equated with an average person’s conduct under like circumstances CRIMINAL LAW AND PROCEDURE 14-2-3829 State v. Wayne Brown, App. Div. (7 pp.) Where defendant was convicted of distributing cocaine within 1,000 feet of school property, trial court properly held that the defendant was not prejudiced by receiving late notice that the arresting detective’s testimony would be different than his arrest report, since defense counsel could not indicate how the detective’s credibility could be challenged better than during cross examination. 14-2-3830 State v. Michael Judge, App. Div. (13 pp.) Smelling burnt marijuana in a car passenger compartment during a legal stop established, under the totality of the circumstances, probable cause for experienced police officer to believe crime had been committed. CRIMINAL LAW AND PROCEDURE – ALCOHOLIC BEVERAGES 14-2-3831 State v. Edward S. Mitchell, App. Div. (6 pp.) Where defendant was convicted of driving while intoxicated, trial court properly held that a person’s equal protection rights are not denied when an older, less-accurate Breathalyzer machine is used to measure his blood alcohol content. CRIMINAL LAW AND PROCEDURE – EVIDENCE 14-2-3832 State v. G.H., App. Div. (5 pp.) Where defendant was convicted of sexual assault after an upset victim told her mother and great aunt about the assault, trial court properly let the relatives testify at trial, since the testimony was properly admitted as an excited utterance under N.J.R.E. 803(c)(27).

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