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Vol. 3 No. 102 DECISIONS RELEASED JUNE 1, 1995 STATE COURT CASES AUTOMOBILES 05-3-5741 State v. Lawrence Myrick, et al., Law Div. (11 pp.) Since a license plate is mounted on the outside front and rear of a motor vehicle and therefore subject to public view, there can be no reasonable expectation of privacy concerning the license number and a random computer check of the number does not violate any constitutional rights, and drugs seized when vehicle was stopped because the license plate did not match the vehicle need not be suppressed. [Approved for publication June 1, 1995.] [Available online in N.J. Full-Text Decisions.] CIVIL PROCEDURE 07-2-5742 Harry Willis v. State, Dept. of Human Svcs., et al., App. Div. (8 pp.) Where plaintiff’s case was dismissed for failure to answer interrogatories, but the dismissal was not with prejudice, and plaintiff could have routinely moved to reinstate it, but did not do so until six months later, and, even then, his filing was not in compliance with the court rules and did not supply full answers, his motion to reinstate the complaint was properly denied. CONTRACTS — EXPERT WITNESSES 11-2-5743 Estate of Florence Houseman, et al. v. William A. March, D.P.M., P.A., et al., App. Div. (17 pp.) In a case where a doctor, who prepared a report to plaintiff’s counsel on whether plaintiff’s podiatrist had committed malpractice, but then later refused to be deposed or testify at trial, and was sued for breach of contract, since the evidence produced at trial establishes that there was no meeting of the minds and the doctor never agreed to be an expert witness and only thought he was acting as a consultant, summary judgment in the doctor’s favor was proper. CORPORATIONS 12-4-5744 In Re: Prudential Insurance Co. Derivative Litigation, Chancery Div. (35 pp.) In derivative claims for the benefit of the insurance company on charges that the director and executives breached fiduciary duties, since plaintiffs had not made a demand first upon the board of directors, and have not set forth with particularity the reasons why such demand is excused, their actions are dismissed. [Approved for publication June 1, 1995.] [Available online in N.J. Full-Text Decisions.] EVIDENCE — SLIP AND FALL 19-2-5745 Deborah Chytrak v. Letterex Communications, Inc., et al., App. Div. (11 pp.) In a matter where plaintiff fell on allegedly unplowed snow on defendants’ sidewalk, to the extent that the defendants sought to use their snowplowing bill to document when a snowfall occurred, the bill would constitute inadmissible hearsay, and, in addition, the snowplowing contract was for the parking lot, not the sidewalk, and was therefore not relevant, so the trial judge properly excluded the bill from evidence. 19-2-5746 Sandrea Hawkins v. 248 Haynes St. Assoc., Inc., t/a Howard Johnson’s Motor Lodge, et al., App. Div. (22 pp.) Where plaintiff fell on a patch of oil and sand at defendant’s motel, and defendant’s original position was that plaintiff did not fall on oil and sand as she claimed, but then, before trial, attempted to introduce a new defense noting that it had removed the oily condition earlier, the trial judge did not abuse his discretion by barring the testimony of the expert, his report and the new defense, since they were disclosed so close to the trial and were of so little value to a proper liability finding. INSURANCE — ALCOHOLIC BEVERAGES 23-2-5747 State Farm Mut. Auto. Ins. v. Licensed Beverage Ins. Exchange, App. Div. (7 pp.) N.J.S.A. 6A-9.1 permits an insurer to recover personal injury protection benefits (paid to its insured) from the tavern that served alcoholic beverages to the insured and is therefore responsible as a “tortfeasor” under the statute for the injuries suffered by the insured. INSURANCE — VERBAL THRESHOLD 23-2-5748 Dale A. Smith v. Brounell & Kramer, et al., App. Div. (4 pp.) Although there was ample support for the trial judge’s conclusion that plaintiff failed to show objective evidence of injury under types 6, 7 and 8 of the verbal threshold statute, where plaintiff furniture mover was out of work for a period significantly longer than 90 days after the accident on the advice of his physician, received disability benefits from his workers’ compensation carrier, and was not able to participate in sports, the plaintiff showed evidence of type 9 injury, and the judge erred in granting summary judgment to the defendants. NEGLIGENCE — CAUSATION 31-2-5749 Walt’s Bus Service, Inc., et al. v. Thomas Tocco Sr., et al., App. Div. (11 pp.) In a case alleging that defendants negligently constructed plaintiffs’ garage, which subsequently collapsed in a windstorm, causing damages, the trial judge did not enter the province of the jury when he made the determination, as a matter of law, that the plaintiffs’ proofs failed to establish that the damages were caused by anything but the force of the wind, and jury’s no cause verdict is affirmed. WORKERS’ COMPENSATION 39-2-5750 Clifford Morgan v. Mobil Chemical Co., App. Div. (7 pp.) Determination of compensation judge that petitioner should be awarded total permanent disability arising from chronic obstructive pulmonary disease is supported by the record, and since the judge observed that the medical experts could not quantify the percentage of such disability attributable to occupational exposure and that attributable to petitioner’s smoking habit, the judge did not err in failing to apportion responsibility. 39-1-5751 John Fiore v. Consolidated Freightways, Supreme Ct. (37 pp.) An employee claiming an occupational heart disease must show that the disease is due in a material degree to causes or conditions that both characterize the employee’s occupation and substantially contribute to the disease’s development, and since the record does not reflect consideration of these issues, the matter is remanded. [Available online in N.J. Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE — VENUE 14-3-5752 State v. Corey Pittman, Law Div. (6 pp.) Although the victims of the defendant’s alleged crimes were sheriff’s officers, it must be presumed that sheriff’s officers will carry out their sworn duties, and it cannot be said that defendant cannot receive a fair trial merely because the court system employs co-workers of his victims; therefore defendant’s venue-change request is denied. [Approved for publication June 1, 1995.] [Available online in N.J. Full-Text Decisions.] *** ADDITIONAL STATE COURT OPINION APPROVED FOR PUBLICATION: 33-2-2831 F. William Mitchell v. City of Somers Point, et al. [Decided March 14, 1994 - Approved for publication May 30, 1995.] [Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES COMMERCIAL TRANSACTIONS — EVIDENCE 08-7-5753 Florida Video Systems, Inc., et al. v. Sony Corp. of America, et al., U.S. Dist. Ct. (12 pp.) In a case where video company alleged that Sony breached its duty of good faith and fair dealing and tortiously interfered with video company’s prospective economic advantage by reducing its credit line, Sony’s motion to exclude evidence concerning its decision to reduce the plaintiff’s credit line is denied, since the court must determine whether such a decision was as a result of a legitimate business decision or bad faith. CORRECTIONS — CIVIL RIGHTS 13-7-5754 Al-Tariq Jacobs v. Robert E. Stephens, et al., U.S. Dist. Ct. (11 pp.) In a case where an inmate alleged civil rights and due process violations at a prison disciplinary hearing, the evidence shows that the procedures followed did not violate the inmate’s constitutional rights, and, despite any technical infirmities, the hearing officer’s conduct was objectively reasonable and he is, therefore, shielded from damages by the doctrine of qualified immunity. LABOR AND EMPLOYMENT — CIVIL RIGHTS 25-7-5755 Chase v. NJIT, U.S. Dist. Ct. (21 pp.) Where a tenured black associate professor was denied a promotion to full professor and filed suit against his employer alleging race discrimination, while the professor established a prima facie case of discrimination, defendant was able to rebut the presumption of discrimination by showing an objective and legitimate reason for not promoting plaintiff: that he had not published enough scholarly material to show sustained leadership in his field. TORTS — FEDERAL TORT CLAIMS ACT 36-7-5756 Eastman v. United States, et al., U.S. Dist. Ct. (17 pp.) In a case where plaintiff fell and injured himself at a U.S. Post Office, and brought his action under the federal tort claims act, summary judgment is granted to the United States since plaintiff failed to comply with the FTCA’s administrative requirements since he brought suit more than six months after the denial of the claim by the postal service attorney, and even if the complaint was timely, it did not name the correct party, nor was it served properly. A Daily Reporter of N.J. State and Federal Decisions

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