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Vol. 3 No. 245 Decisions Released Dec. 28, 1995 STATE COURT CASES ATTORNEY/CLIENT — FEES 04-2-7441 Rose Gerszberg, etc. v. Jacuzzi Whirlpool Bath, et al., App. Div. (9 pp.) A recovery by executrix in her representative capacity — in a wrongful death/products liability action for decedent’s fatal heart attack after bathing in hot tub — was a Death Act recovery, subject to equitable division among those entitled to benefit under N.J.S.A. 2A:31-4, and was not a “settlement without trial on behalf of any of decedent’s children,” and the judge’s distribution of the proceeds was within the statutory parameters and is affirmed. [Approved for Publication Dec. 27, 1995. Available online in NJ Full-Text Decisions.] GOVERNMENT — BIDS 21-2-7442 In the Matter of the Hearing on the Bid Rejection of Textar Painting Corp., etc., App. Div. (9 pp.) Decision of state Department of Transportation to reject low bid for bridge painting contract is reversed, since the procedural defect in a power of attorney attached to the bid bond was not material, and the department had the power under public bidding laws to accept the immediately proffered cure after bids were opened to make the bid conforming. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-2-7443 John D. Cline v. Alden Leeds Inc., et al., App. Div. (5 pp.) The court affirms the res judicata dismissal of tractor-trailer driver’s Law Division action — claiming he was fired without just cause because of racial discrimination — since the arbitrator below made detailed findings rejecting driver’s claims and concluding that driver had knowingly violated employer’s orders with respect to the use of certain roads and tunnels, and driver never appealed the arbitration award. PRODUCT LIABILITY 32-2-7444 Marie Coates, et al. v. R.H. Macy & Co. Inc., et al., App. Div. (13 pp.) In a case involving injuries sustained when father took his son’s wheelchair on a store escalator, where it became stuck, whether or not the jury’s answers to interrogatories were technically consistent, the jury’s intention was clear that neither the negligence of the store nor the escalator manufacturer were the proximate cause of the plaintiffs’ injuries, and verdict of no cause is affirmed. PUBLIC EMPLOYEES 33-2-7445 Homer Credle III v. Marlboro Psychiatric Hosp., App. Div. (6 pp.) Decision of Merit System Board that evaluated truck driver’s compliance with an earlier settlement agreement as “substantial,” and sufficient to order his reinstatement is affirmed, but that part of the order denying him back pay for the time lost for the period while his compliance with the settlement agreement was in dispute is reversed. FEDERAL COURT CASES CONTRACTS — ANTITRUST 11-7-7446 AT&T Corp. v. Am. Teletronics Long Distance Inc., U.S. Dist. Ct. (12 pp.) Where plaintiff filed suit against defendant to collect on unpaid invoices for contractually provided long-distance services, and defendant counterclaims, alleging antitrust violations, (1) that part of counterclaim alleging violation of Robinson-Patman Anti-Discrimination Act is dismissed, since long-distance telecommunication services are not a “commodity” under the act, however (2) since liberal pleading standards govern civil antitrust suits, AT&T’s motion for a more definite statement as to other counts is denied, since the court is satisfied that the causes of action are properly pled. TORTS — TORT CLAIMS ACT 36-8-7447 Roman Kowalsky v. Long Beach Twp., et al.; Gary S. Petrillo, etc., et al. v. Borough of Surf City, etc., et al., Third Cir. (16 pp.) Since, under the New Jersey Tort Claims Act, the defendant municipal entities and employees are entitled to immunity from liability for damages arising from tragic injuries suffered by plaintiffs while they were swimming at state beaches, summary judgment was properly granted to defendants by the district court. [Available online in 3rd Circuit - Appellate Court.]

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