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Vol. 3 No. 104 – JUNE 5, 1995 STATE COURT CASES ADMINISTRATIVE LAW — EMPLOYMENT — HANDICAPS 01-2-5775 In the Matter of the Repeal of N.J.A.C. 19:53, et al., App. Div. (16 pp.) The Casino Control Commission mistakenly exercised its interpretative and regulatory authority when it removed handicapped persons from the scope of its previously inclusive equal opportunity and affirmative action requirements, and, since the decision was arbitrary, unreasonable and without sufficient basis, the matter is remanded for the promulgation of new regulations. [Approved for publication June 5, 1995.] ADMINISTRATIVE LAW — RACING 01-2-5776 Francis Campitelli v. N.J. Racing Commission, App. Div. (3 pp.) Where thoroughbred horse tested positive for caffeine, its trainer was properly suspended for thirty days under the “strict liability of the trainer” rule, since administrative law judge, as the trier of fact and judge of credibility, could reject trainer’s evidence attempting to show that the urine sample was contaminated. INSURANCE — VERBAL THRESHOLD 23-2-5777 Teresa Procopio, et al. v. Joseph Sanfilippo, App. Div. (5 pp.) Summary judgment in favor of the defense was proper since there was a paucity of findings and reasons to justify plaintiff’s claims of disability or serious injury other than her chiropractor’s statement, four years after the accident, without any medical explanation or justification, that plaintiff should not have worked for six months after the accident. LAND USE 26-2-5778 Kimberly Park Assoc., Inc. v. Planning Bd. of Rochelle Park Twp., App. Div. (5 pp.) In a case where plaintiff applied to defendant for site plan approval and related variances for a Mt. Laurel project, and alleged that same was automatically approved since defendant did not act on the application 120 days after it was complete, plaintiff’s argument fails and its lawsuit is dismissed, since plaintiff discussed scheduling of a hearing and appeared and participated at that hearing after the 120-day period had expired, effectively providing its consent to extend the period. NEGLIGENCE — BLOOD BANKS 31-2-5779 William Snyder, et al. v. American Assoc. of Blood Banks, App. Div. (29 pp.) Where jury found the American Association of Blood Banks negligent in not having recommended surrogate testing for AIDS to its institutional members prior to 1984, and where plaintiff contracted AIDS from contaminated blood at one of those member facilities, jury verdict is affirmed since, (1) while some of the activities of the AABB may be charitable and educational, those are not its exclusive purposes, and, therefore the statutory charitable immunity does not shield it against claims of ordinary negligence and (2) considering the nature and degree of risk and the public policy concerns implicit in blood-banking, AABB is reasonably chargeable with a duty of care owed to those recipients whose life and health depend on the prudence of its actions. [Approved for publication June 5,1995.] WRONGFUL DEATH — ASBESTOS — DAMAGES 40-2-5780 Pauline Ripa, Executrix, et al. v. Owens-Corning Fiberglas Corp., et al., App. Div. (41 pp.) (1) With respect to compensatory damages, where the parties had stipulated in settlement with one defendant that that defendant would be 40% responsible for liability, there was only 60% liability left to allocate, and the judge erred in not molding the verdict against the two remaining defendants around the stipulation. (2) With respect to punitive damages, where certain documents representing independent analysis of the defendant’s asbestos product Kaylo, from the time it was originally produced in the 1940′s through the 1950′s were admitted without a proper foundation or a proper jury charge, this constituted error that had a potentially harmful effect on the quantum of punitive damages, necessitating a new trial on that issue. [Approved for publication June 5, 1995.] 40-2-5781 Robert Schiavo, et al. v. GAF Corp., et al., App. Div. (13 pp.) (1) Trial court’s inquiry to three jurors, who overheard another punitive damage award against same defendant in an unrelated mesothelioma death case, was adequate and the award, which was significantly lower than the overheard award, did not reveal any evidence of taint. (2) The “Day-in-the-Life” video of deceased plaintiff was a relevant aid to the jury as it could “uniquely demonstrate the nature and extent of” decedent’s injuries. [Approved for publication June 5, 1995.] CRIMINAL LAW AND PROCEDURE 14-2-5782 State v. David Holmgren, et al., App. Div. (5 pp.) Although the inability of a driver to produce driving credentials raises a reasonable suspicion that the vehicle might be stolen, it does not constitute probable cause, and the inability to produce such papers did not authorize the police officer to search defendant’s duffel bag without his consent, and therefore drugs found in the bag should have been suppressed. [Approved for publication June 5, 1995.] 14-1-5783 State v. Jose Luis Reyes, Supreme Ct. (32 pp.) The trial court’s jury charge on diminished capacity may have been flawed, but, because the quantum of evidence presented by the defendant on diminished capacity was not sufficient to prove that he suffered from a mental disease or defect that impaired his cognitive capacity to act knowingly and purposely, it was harmless error. FEDERAL COURT CASES NEGLIGENCE 31-7-5784 Robin Straley, et al. v. United States of America, et al., U.S. Dist. Ct. (55 pp.) Where a garbage collector and the truck driver had consumed beer and then collector was injured when he fell off the back of the garbage truck while it was backing up and while the driver trying to negotiate the truck around a postal truck, (1) There was insufficient evidence to establish that either the collector or the driver of the garbage truck was actually impaired as a result of the beer consumption, and therefore the probative value of evidence of beer consumption is substantially outweighed by the danger of unfair prejudice. (2) The garbage collector’s “use” of the garbage truck constituted the use of industrial machinery in the workplace and the defendants are not entitled to an “open and obvious danger” or comparative negligence defense. (3) Although defendants cannot use comparative negligence of the driver in apportioning liability among them, they may argue that such negligence was the supervening cause of the collector’s injuries. A

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