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VOL. 2, NO. 200 DECISIONS RELEASED NOVEMBER 15, 1994 ATTORNEY/CLIENT 04-2-4314 L.T. Vincenti, Esq. v. Brian McManus and Doris McManus, App. Div. (8 pp.) Where attorney sued a client and his mother for fees on grounds that she guarantied her son’s fees, trial court properly (1) dismissed the complaint, since there was no writing to document the mother’s guaranty, and (2) awarded the mother damages under the Frivolous Litigation Act, because the attorney sued the mother to harass her into paying his fees. AUTOMOBILES – NEGLIGENCE – ALCOHOLIC BEVERAGES 06-2-4315 Glenn W. Rush v. Viewoak Corp. and New Jersey Transit Rail Operations, Inc., App. Div. (6 pp.) Where a New Jersey Transit truck driver was injured when the truck collided with a school bus, trial court properly denied plaintiff’s counsel’s request to introduce evidence that the bus driver had alcohol on his breath, since there was no showing that the bus driver was unfit to drive. CIVIL PROCEDURE – PRODUCT LIABILITY 07-2-4316 Elmer Magno v. Rosemary Magno v. Abbott Lab., App. Div. (10 pp.) Where plaintiffs sued company for alleged defective manufacture of a glass vial, trial court erred in dismissing the complaint on grounds that plaintiffs failed to show that the product was defective, since plaintiffs’ experts reports showed that the vial was defective. DEBTOR/CREDITOR 15-2-4317 Resolution Trust Corp. v. Van Houten Constr. Co., et al. and the State of New Jersey, App. Div. (4 pp.) Where company, which had defaulted on loan, claimed as one of its defenses that bank orally promised to make further loans to finance house building, trial court properly rejected company’s claims, since as required by 12 U.S.C.A. 1823(e), the company could not produce any written record supporting its claims. ENVIRONMENT 17-2-4318 Ray O’Neil Buick, Inc. v. Judith Doyle, Anthony DeBellis, et al., App. Div. (6 pp.) Where land owner sued two predecessor land owners to pay for cleanup of contamination from gasoline leak, trial court erred in requiring second of the two prior owners and a lessee to indemnify current land owner by paying attorney’s fees and costs, since there was no finding that the property was damaged by the first land owner; thus, there was no triggering event and no concurrent duty to indemnify. INSURANCE – AUTOMOBILES 23-2-4319 Debra Baird v. Alfred P. Boris, III, App. Div. (6 pp.) Where bank teller injured her neck and back in an automobile accident, trial court erred in dismissing the complaint for failure to meet the verbal threshold, since she was forced to leave her job because she could not stand for long periods of time. 23-2-4320 Selective Ins. Co. v. Jean Lucas, App. Div. (4 pp.) In an automobile negligence suit, trial court erred in not applying the version of N.J.S.A. 29:6A-4.3c in effect at the time of the accident permitting an insurer reimbursement “for costs actually incurred in the institution and prosecution of the claim[s],” not to exceed 10 percent of the amount of the setoff. LABOR AND EMPLOYMENT 25-2-4321 Walter W. Smock v. Rutgers, the State University, et al., App. Div. (10 pp.) Where professor sued Rutgers for wrongful termination on grounds of age discrimination, trial court properly dismissed the claim, since the professor did not conduct enough research to qualify for tenure. LAND USE 26-2-4322 Joseph Villari and SJ Villari Livestock v. The Zoning Bd. of Deptford and Deptford Township, App. Div. (13 pp.) Where land owner sought a permit to repair a fence�to resume pig farming on less than 50 acres of land in violation of zoning laws–on grounds that pig farming was a nonconforming use, board properly denied the application, since land owner abandoned the use of the property for raising pigs. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-4323 Richard C. Hampp, et al. v. Union Hosp., et al., App. Div. (10 pp.) Where patient’s estate sued hospital for malpractice after the patient died from a pulmonary embolism, trial judge properly did not instruct the jury on (1) the sudden emergency doctrine, since a nurse leaving the patient on the toilet to stop a roommate from pulling out her IV was not a clear emergency and (2) res ipsa loquitur, since the nurses conduct did not “bespeak of negligence.” PRODUCT LIABILITY 32-1-4324 Edith Becker v. Baron Bros., et al., Supreme Ct. (30 pp.) Where auto mechanic, who died of cancer, sued manufacturers and distributors of asbestos brake linings for failure to warn of hazards, trial judge erred in instructing the jury that all products containing asbestos without hazard warnings are defective as a matter of law, since the jury was not given the opportunity to determine whether the asbestos product was dangerous, thereby making the court’s application of the risk-utility analysis premature. TORTS – GOVERNMENT 36-2-4325 Robert Bailey v. The City of Plainfield, et al., App. Div. (6 pp.) Where truck driver sued a city for injuries sustained when an 11-foot truck he was driving struck a 10-foot overpass with inadequate clearance markings, trial court properly directed a verdict for the city, since there was no evidence that driver had previously relied on the clearance sign. 36-2-4326 Carmen Burgos v. Hartz Mountain Indus., Inc., et al., App. Div. (13 pp.) Where pedestrian sued commercial lessee for injuries sustained in a fall, trial court erred in dismissing the complaint on grounds that pedestrian could not prove that the lessee installed the metal plate on which she fell, since a lessee is responsible for a hazardous condition which is created by a third party, if the lessee fails to correct the hazard. CRIMINAL LAW AND PROCEDURE 14-2-4327 State v. Kevin D. Ardister, App. Div. (8 pp.) Where during a lawful auto stop, police searched defendant’s car with his permission and found cocaine in a bag in the trunk, trial court properly denied defendant’s suppression motion, since defendant consented to the car’s search and because defendant and co-defendants did not claim the bag, it was abandoned. 14-2-4328 State v. Michael S. Keating, App. Div. (9 pp.) Where defendant, who was indicted for bribery and misconduct in office, moved to suppress evidence of investigators questioning him on grounds that he did not know the conversation was being recorded and was not read his rights, trial court erred in granting the motion, since it was non-custodial questioning. 14-2-4329 State v. Barry Miller, App. Div. (9 pp.) Where defendant, who pled guilty to armed robbery in state court while serving a federal sentence, claimed that the Interstate Agreement on Detainers anti-shuttling provision was violated because he was not sentenced before he was returned to federal prison, trial court properly denied a motion for post-conviction relief, since under Carchman v. Nash, 453 U.S. 716 (1985), the provision does not apply to cases following disposition by plea or verdict. 14-2-4330 State v. Edwin Soto, App. Div. (10 pp.) Where defendant was convicted of armed robbery, trial judge’s failure to charge the jury on identification evidence did not constitute plain error in light of the acuity of the victims’ identification testimony.

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