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VOL. 3, NO. 8 DECISIONS RELEASED JANUARY 12, 1995 CIVIL PROCEDURE – AUTOMOBILES – NEGLIGENCE 07-2-4707 Marion Stebbins, et al. v. Daniel D. Robbins, et al., App. Div. (14 pp.) Where jitney bus driver and passengers were injured when the bus was struck by a van which ran a red light, and the accident spawned four lawsuits, trial court properly did not dismiss the driver’s lawsuit under the entire controversy doctrine, since the doctrine should not apply in all instances of multiple claims arising out of single motor vehicle accident. [Available online in N.J. Full-Text Decisions.] ENVIRONMENT 17-2-4708 In the Matter of Distribution of Escrow Account Derived from Emergency Redirection of Solid Waste from Bergen County, App. Div. (19 pp.) DEPE properly denied garbage hauler’s application for reimbursement for increased disposal costs, since the hauler did not show increased incremental costs beyond its normal operating expenses. ENVIRONMENT – LAND USE 17-2-4709 M. Alfieri Co. Inc. v. State of New Jersey, DEPE, Supreme Ct. (14 pp.) Where developer that had obtained final subdivision approval did not seek exemption from sewer moratorium, and later applied for an exemption from the Freshwater Wetlands Protection Act, Appellate Court held that site plan and subdivision approvals granted under the Municipal Planning Act do not exempt projects from the Freshwater Wetlands Protection Act.[Available online in N.J. Full-Text Decisions.] FAMILY LAW 20-4-4710 In re A.B., Ch. Div. (12 pp.) Where an officer questioned a juvenile, who was in the Juvenile Intensive Supervision Program, about a white powdery substance without reading the juvenile his rights, trial court held that the juvenile did not have to be read his rights since it was a noncustodial questioning, and as a JISP member he waived any constitutional protection. [Available online in N.J. Full-Text Decisions.] GOVERNMENT – NEGLIGENCE 21-2-4711 Ann Breckenridge, et al. v. Union County Arts Ctr., App. Div. (4 pp.) Where plaintiff fractured her ankle in a slip-and-fall accident after attending a show at a county theater, trial court properly dismissed the complaint under the charitable immunity act, since she was a beneficiary of the theater. INSURANCE – AUTOMOBILES – NEGLIGENCE 23-2-4712 George Novak v. Market Transition Facility of New Jersey, App. Div. (3 pp.) Where plaintiff suffered a severe head injury in a car accident, trial court properly held that all plaintiff’s unpaid medical bills, except those for time spent at a rehabilitation center, were compensable PIP benefits, since all the trial witnesses concluded that the rehabilitative treatment could not help the patient within any degree of medical certainty. NEGLIGENCE 31-2-4713 Cidalina O. Carvalho, et al. v. Toll Bros. and Developers and Bergman Hatton Engineering Assocs., et al., App. Div. (20 pp.) Where worker was crushed to death when a trench in which he was working collapsed, trial court erred in holding that the engineer, who had no contractual duty to inspect for safety hazards, had no duty to take reasonable action to prevent the injury when he had actual knowledge of the trench’s dangerous condition, since as a professional with actual knowledge of the danger he should not stand by idly.[Available online in N.J. Full-Text Decisions.] LAND USE 26-2-4714 Bobbicare, Inc. v. The Zoning Bd. of Adjustment of the Township of Piscataway, App. Div. (5 pp.) Where child-care center owner wanted to subdivide its lot to build two homes on land zoned for educational use, board properly denied application, since the town’s needs will be advanced by preserving land for possible expansion of the facility. 26-2-4715 NYNEX Mobile Communications Co. v. Bd. of Adjustment of the Borough of Little Silver, App. Div. (5 pp.) Where company applied for variance to operate and construct a mobile communications tower, board erred in denying the application, since the tower was an inherently beneficial use, which met the special reasons prong of N.J.S.A. 40:55D-70d. NEGLIGENCE 31-2-4716 Samuel Shahid, et al. v. John Childs, et al., App. Div. (4 pp.) Where hospital released child’s body to the wrong funeral home, which then buried the body, trial court properly dismissed the complaint, since the parents’ distress was not sufficiently palpable or enduring to impose liability and monetary damages. CRIMINAL LAW AND PROCEDURE 14-2-4717 State v. Tommie C. Alston, App. Div. (11 pp.) Where arresting officer, pursuant to a legal stop, asked passengers to get out of the car so that it could be impounded, and then noticed an open brown paper bag containing viles, trial court erred in suppressing the evidence, since the officer’s instructions to exit the vehicle were valid, and the drugs were in plain view. 14-2-4718 State v. Carmen A. Betancourt, App. Div. (8 pp.) Where defendant was convicted of cocaine possession, trial court properly did not grant a mistrial due to admission of testimony that had not been provided to her in discovery, since the judge’s curative jury instruction removed any prejudice. 14-2-4719 State v. Robert Desire, App. Div. (5 pp.) Where defendant pled guilty to cocaine possession after officers on a narcotics detail at a train station surrounded him and patted him down, trial judge erred in denying a suppression motion, since the defendant displayed no furtive movements or nervousness to give the officers reasonable suspicion. 14-2-4720 State v. Anthony Raymond Maloney, App. Div. (9 pp.) Where defendant was convicted of second-degree aggravated assault, trial court properly allowed the jury to hear the testimony of two men with whom defendant discussed the assault in order to determine defendant’s culpability, since the testimony was sufficient evidence for the jury to conclude that defendant attempted to cause serious bodily injury. 14-2-4721 State v. Thomas Rozmerski, App. Div. (5 pp.) Where defendant pled guilty to fourth-degree theft by knowingly receiving stolen property, trial court properly denied suppression motion, since the property, a sander, was properly seized pursuant to the “plain view” exception. 14-2-4722 State v. David John Talmadge, App. Div. (10 pp.) Where defendant was convicted of second-degree aggravated assault, trial court erred in limiting its charge on accomplice liability to the model jury charge, since the charge failed to focus on the defendant’s own actions, intent and state of mind. OPINIONS APPROVED FOR PUBLICATION: 23-2-4662 Gen. Accident Ins. Co. v. State of N.J. DEP, et al. (Jan. 5, 1995); 36-2-4659 Taylor Mills, et al v. J. Daunoras Constr. Co., et al. (Jan. 5, 1995); 23-2-4663 Medical Inter Ins. Exch. of New Jersey (Jan. 5, 1995); 04-2- 4689 Riki Dinter, et al. v. Sears. Roebuck & Co. and Bertram Siegel, et al. (Jan. 10, 1995); State v. David Luna (Jan. 10, 1995); David Bahrle, et al. v. Exxon Corp., et al. (Jan. 9, 1995); James Cox v. Betty Simon, et al. (Jan. 5, 1995). [All available online in N.J. Full-Text Decisions.]

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