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Vol. 4 No. 137 – JULY 18, 1996 STATE COURT CASES ATTORNEY/CLIENT Now on Counsel Connect 04-1-9629 Nathan Conklin, et al. v. Hannoch Weisman, et al., App. Div. (36 pp.) In this legal malpractice case, because a jury charge on proximate cause could have confused the jury and led to an unjust result, a new trial is required, and the retrial must include the issue of defendants negligence but not the plaintiffs comparative negligence. For legal malpractice cases in which inadequate or inaccurate advice is alleged as a concurrent cause of harm, usual principles of negligence apply, including foreseeability. Because the traditional jury charge on proximate cause as a continuous sequence is unsuitable for legal malpractice cases in which there are concurrent, independent causes of harm, the jury must be instructed to determine whether the negligence was a substantial factor in bringing about the ultimate harm. EDUCATION — ENTIRE CONTROVERSY DOCTRINE Now on Counsel Connect 16-2-9630 Bd. of Educ. of the Twp. of Neptune v. Neptune Twp. Educ. Ass’n, et al., App. Div. (11 pp.) (1) Constitutional issue raised by plaintiff is not barred under the entire controversy doctrine, since the issue was raised by the board in an earlier proceeding before the Public Employment Relations Commission, but was not considered or adjudicated by that agency. (2) There was no gift of public funds in payment over of employee voluntary deductions before related paychecks were issued, and the process was merely a detail in the administration of the employees compensation package. (3) Since public funds may be validly used to achieve a variety of public purposes by a variety of means, there can be no constitutional bar against the reasonable use of public funds to provide benefits of public employment. [Approved for publication Jul. 18, 1996.] ENVIRONMENT — INSURANCE 17-2-9631 U.S. Bronze Powders Inc. v. Commerce and Industry Ins. Co., et al., App. Div. (8 pp.) Judge properly granted summary judgment to insurers in coverage action for cleanup costs based on pollution exclusions in policies. INSURANCE — MEDICAL MALPRACTICE — EMOTIONAL DISTRESS DAMAGES Now on Council Connect 23-2-9632 Princeton Ins. Co. v. Prasert Chunmuang, M.D., et al., App. Div. (22 pp. — includes dissent) Gynecologist s medical malpractice carrier must pay compensatory damages for the emotional distress sustained by victim of doctor’s sexual assault, which occurred during the course of a gynecological examination. [Approved for publication July 18, 1996.] LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-2-9633 Jeanette Tuminaro v. Educ. Testing Serv., etc., App. Div. (10 pp.) Since plaintiff failed to raise a genuine issue of material fact that the nondiscriminatory reason for plaintiff s termination stated by the employer — her lack of proficiency with the required technologies — was a pretext, her age discrimination wrongful termination case was properly dismissed. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION — RETALIATION 25-2-9634 Zaheer Hassan v. AT&T Bell Laboratories, etc., et al., App. Div. (13 pp.) Although plaintiff marshaled sufficient evidence to suggest a causal link between his discharge and his filing of several discrimination claims, since he failed to refute the employer s proffered reason for termination — the plaintiff s insubordination — his retaliatory discharge and racial discrimination claims were properly dismissed. LABOR AND EMPLOYMENT — WRONGFUL TERMINATION 25-2-9635 Frank R. McHugh, et al. v. Parker-Hannifin Corp., etc., App. Div. (5 pp.) Judge correctly held that manager’s oral representation made by manager — that no one would lose their job as a result of facilities consolidation — neither represented company policy nor was a valid enforceable oral promise, and plaintiffs wrongful termination suit was properly dismissed. NEGLIGENCE — AUTOMOBILES 31-2-9636 Kenneth W. Alcott, et al. v. Joanne P. Lynch, App. Div. (7 pp.) The admission of hearsay statements by unidentified witnesses to car accident was error and a new trial is required, since the judge made no findings to support his conclusion that the statements qualified as excited utterances. NEGLIGENCE — HOSPITALS Now on Counsel Connect 31-1-9637 Kejoo Ahn, etc., et al. v. Dr. Chung Kim, et al., Supreme Ct. (27 pp.) In discussing the liability of a private psychiatric hospital and members of its staff for the disappearance of a patient from an open ward, the court finds that both the wrongful death and survival actions must be retried, except as to one doctor. In addition, plaintiff s claim for emotional distress was properly dismissed. On retrial, plaintiff is entitled to rely on the statutory presumption of death or refer to the court order declaring patient s death to prove any element of her cause of action, including the death itself. NEGLIGENCE — POLICE Now on Counsel Connect 31-2-9638 William Vallejo, etc. v. Rahway Police Dept., et al., App. Div. (16 pp.) In a negligence case brought against police where intoxicated plaintiff attempted to hang himself while in police custody, surviving but suffering severe brain damage, (1) the judge erred in limiting the jury s consideration of the existence of special circumstances to a detainee in a state of helpless intoxication, (2) the order dismissing negligence claim against police officer for failing to timely report plaintiff s suicide threat to his superiors is reversed, (3) as is the dismissal of the negligence claim against defendant s municipal employer on the theory of respondeat superior. [Approved for publication July 18, 1996.] REAL ESTATE 34-2-9639 Scott Naegele, et al. v. Robert Wilent, et al., App. Div. (10 pp.) Home buyers are not bound by a contract that their predecessors in title made with termite company, and therefore judge erred in ordering them — pursuant to the contract terms — to arbitrate some of their claims against the termite company. TORTS — DEFAMATION 36-2-9640 Donald E. Dutton v. First Trenton Indem. Co., et al. v. City Line Ins. Inc., App. Div. (24 pp.) Insurer s letter to the governor about its former agent was defamatory, since the insurer failed to set forth sufficient facts to justify its statements insinuating that the agent was engaged in dishonest conduct, and the self-defense and legislative privileges urged by the insurer are not applicable, therefore summary judgment dismissing agent s defamation claim is reversed. TORTS — MALICIOUS PROSECUTION 36-2-9641 Manuel R. Romero v. Borough of Sayreville, etc., et al., App. Div. (10 pp.) Since the issue of probable cause for plaintiff s arrest was actually litigated and decided against him in his federal malicious prosecution claim, and this issue is an essential element of plaintiff s state claim for malicious prosecution, his state claim was properly dismissed on the basis of res judicata. CRIMINAL LAW AND PROCEDURE — ASSAULT Now on Counsel Connect 14-2-9642 State v. Juan Carlos Villar, App. Div. (14 pp.) In her assault instructions, (1) although the judge instructed the jury on lesser offenses, she did so improperly, tainting the conviction on count one — for second-degree aggravated assault — and requiring reversal. (2) The conviction on count three — for third-degree possession of a weapon for an unlawful purpose — cannot stand as a matter of law and is also reversed. (3) Count two — negligent simple assault with a deadly weapon — will stand and matter is remanded for sentencing on that count alone. [Approved for publication Jul. 18, 1996.] CRIMINAL LAW AND PROCEDURE — CIVIL FORFEITURE Now on Counsel Connect 14-2-9643 State v. $3,000 in U.S. Currency, et al., App. Div. (9 pp.) In two related civil forfeiture proceedings arising out of the arrest and conviction of claimant on drug trafficking charges, (1) the second judge erred in holding the forfeiture action barred by double jeopardy principles, (2) claimant must be afforded a reasonable opportunity to demonstrate his contention that the property sought to be forfeited represents neither the proceeds of illegal activity nor was used in connection with or to facilitate that activity, and (3) claimant also is entitled to resist the forfeiture on the ground of excessiveness of fine in contravention of the Eighth Amendment of the Constitution. [Approved for publication Jul. 18, 1996.] FEDERAL COURT CASES ATTORNEYS — CONFLICTS OF INTEREST 04-7-9644 Carlyle Towers Condominium Ass’n Inc., et al. v. Crossland Sav., FSB, et al., U.S. Dist. Ct. (26 pp.) Neither RPC 1.7 nor RPC 1.9 mandates disqualification of plaintiffs counsel under the facts of this case where plaintiffs counsel found itself representing a subsidiary corporation in one matter, while suing the subsidiary s parent in unrelated litigation, as a result of a complex series of mergers and acquisitions which occurred after this suit was initiated, although the firm needs to withdraw as counsel for one of the clients. [Filed July 1, 1996.] CONSUMER PROTECTION — REMAND 09-7-9645 Jody Eisenman, etc. v. Continental Airlines Inc., U.S. Dist. Ct. (33 pp.) In a class-action suit alleging that airline defendant collected unauthorized taxes from ticket holders, plaintiffs motion to remand is granted, since all of the claims — conversion, unjust enrichment, consumer fraud and breach of fiduciary duty — arise under state law. [Filed Jun. 27, 1996.] INSURANCE 23-7-9646 Connecticut Indem. Co. v. Dwayne A. Burnett, et al., U.S. Dist. Ct. (8 pp.) Where plaintiff leased a tractor with a driver to a common carrier, the driver’s operation of the tractor at the time of the accident constituted a use in the business of the common carrier within the meaning of the non-trucking use policy, and insurer is granted summary judgment in this coverage action, since it need not provide liability coverage, because of a specific exclusion under the non-trucking use agreement. [Filed June 28, 1996.] A Daily Reporter of New Jersey Court Decisions

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