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Vol. 4, No. 235 — December 11, 1996 STATE COURT CASES FAMILY LAW — DOMESTIC VIOLENCE 20-2-0734 N.V. v. J.V., App. Div. (8 pp.) The record amply supports both the judge’s findings of a repetitive pattern of domestic violence on defendant’s part and his findings that defendant’s “newly discovered” evidence — greeting cards sent by plaintiff to defendant — would not have resulted in a different conclusion, therefore the judge properly denied defendant a rehearing based on the alleged new evidence and the entry of the final domestic violence restraining order is affirmed. INSURANCE — SPOILATION OF EVIDENCE 23-2-0735 Forgash v. Enterprise Rent-A-Car, et al., App. Div. (6 pp.) The automobile involved in plaintiff’s accident had been totaled and could not be preserved indefinitely because of mounting expense, and since plaintiff had at least 55 days within which to accomplish the expert inspection, and failed to do so, that failure cannot be attributed to any unreasonable act of the defendants, and plaintiffs’ claim for spoilation of evidence was properly dismissed. INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-0736 Progressive Casualty Ins. Co. v. Brightstone Waterproofing, Inc., et al., App. Div. (4 pp.) In case where van was stolen, and driver was injured while attempting to grab the door of the fleeing vehicle, driver was “occupying” the vehicle under the terms of the van’s insurance policy because he was “getting in” or “on” the van at the time of the injury, and he therefore qualifies as an insured under the policy. The van also qualifies as an uninsured motor vehicle under N.J.S.A. 17:28-1.1(e)(2)(c) and the policy language. [Approved for publication Dec. 11, 1996.] INSURANCE — VERBAL THRESHOLD 23-2-0737 Revero v. Anderson, App. Div. (5 pp.) Mere reference to spasm in medical report does not automatically vault plaintiff’s soft-tissue injuries over the verbal threshold, and since the doctor did not relate the spasm to the accident, nor did plaintiff’s other doctor relate the significance of his finding of plaintiff’s knee “clicking,” summary judgment was properly granted to defense. JURISDICTION 24-9-0738 State v. Garcia, Municipal Ct. (22 pp.) Although defendant’s moving violations occurred on a part of a bridge fairly characterized as being in Pennsylvania, and the stop during which the summonses were issued occurred beyond the bridge in Pennsylvania, N.J.S.A. 52:28-33, construed together with N.J.S.A. 52:28-25 and N.J.S.A. 2B:12-16(a), provides a firm basis for the exercise of jurisdiction in N.J. [Approved for publication Dec. 4, 1996.] LABOR AND EMPLOYMENT 25-2-0739 Lombardo, et al. v. Pathmark Stores, Inc., etc., App. Div. (16 pp.) Grocery store could have terminated plaintiff’s employment for any reason because his employment was at-will, but even under company policy, the store had reason to terminate plaintiff’s employment, who was found at his own bar during store working hours with company property he had taken without permission; therefore, dismissal of wrongful termination case is affirmed. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0740 Besthorne v. Bd. of Review, et al., App. Div. (4 pp.) Since record reveals certain contradictions within the testimony of each of the witnesses, the court cannot substitute its judgment of credibility for that of the fact finder, and will not overturn decision denying unemployment benefits to claimant. PARENT/CHILD 28-2-0741 IMO the Guardianship of J.M.F.M., a Minor, App. Div. (16 pp.) The record was replete with evidence that mother’s own psychiatric problems caused emotional injury to child, notwithstanding that mother loved the child and that there had been no physical abuse, and, in light of the potential for the mother to cause further injury, the court properly terminated mother’s parental rights. PHYSICIAN/PATIENT 29-2-0742 Ricci v. Gooberman, M.D., et al., App. Div. (11 pp.) The trial judge erred in failing to instruct the jury as required by the holding in Scafidi, supra, and a retrial on the issue of apportionment and the amount of damages is required by reason of that error. 29-2-0743 Dubman v. Loguda, M.D., App. Div. (10 pp.) Contract and warranty claims against plastic surgeon were properly dismissed since (1) on the facts of the case, even if plastic surgeon defendant said to plaintiff, “I can fix that” (referring to facial defect), the statement cannot reasonably be understood to be a contract to produce a specific result, or an express promise that the surgery will be a success, and (2) the contract and warranty claims were subsumed by the informed consent claim, and by finding that the plaintiff gave informed consent, the jury found that plaintiff was fully informed of the risks that the surgery might not be successful. CRIMINAL LAW AND PROCEDURE 14-1-0744 State v. Grey, Supreme Ct. (55 pp. — includes concurring and dissenting opinion) The unusual circumstances in the sequence and delivery of the instructions to the jury led the jury to predicate its conviction of felony murder on its conviction of conspiracy to commit aggravated arson, which is not permitted, and the felony murder convictions cannot stand. CRIMINAL LAW AND PROCEDURE — MEGAN’S LAW 14-1-0745 IMO Registrant G.B., etc., Supreme Ct. (34 pp. — includes concurring opinion) In limited circumstances, a registrant may introduce expert testimony at the judicial hearing in order to establish the existence of unique aspects of his or her offense or character that render the Scale score assigned under the Registrant Community Notification Law suspect. FEDERAL COURT CASES CIVIL PROCEDURE — ACTIVE PROSECUTION 07-7-0746 Smith v. Eastman Kodak Co., et al., U.S. Dist. Ct. (5 pp.) Although incarcerated plaintiff had his employment discrimination case placed on the inactive list due to his imprisonment, the court, although denying motion to dismiss, grants defendants’ motion insofar as it seeks to return case to active status, since the defendant company is in the process of going through changes which will make discovery difficult if conducted at a later time, and one of the key witnesses is seriously ill. [Filed Nov. 26, 1996.] CONTRACTS — WAREHOUSING — SUBROGATION 11-7-0747 Mori Seiki U.S.A., Inc. v. Intl. Machinery Warehouse, et al. v. Chubb Group, et al., U.S. Dist. Ct. (13 pp.) In a subrogation suit involving damages to plaintiff’s stored goods: (1) Warehouse lessee is entitled to partial summary judgment against plaintiff lessor limiting lessee’s liability in accordance with the written warehousing agreements, since there is no evidence of willful or wanton conduct on lessee’s part; (2) Landlord (owner of warehouse) is entitled to summary judgment against plaintiff since plaintiff has not set forth any facts as to how the landlord’s alleged negligence was a proximate cause of the damages to plaintiff’s stored goods. [Dated Nov. 22, 1996.] LABOR AND EMPLOYMENT 25-7-0748 Burrell, et al. v. The Ryan Co., et al., U.S. Dist. Ct. (35 pp.) (1) Defendants’ claim that employee is barred from pursuing his NJLAD claims because he elected to pursue an EEOC charge to a determination and failed to file suit in federal court will not be decided, but such claims will be stayed until the N.J. Supreme Court issues a ruling in the almost identical factual case of Hernandez v. Region Nine Housing Corp. (2) Summary judgment is granted to defendants on claims of breach of implied contract and breach of implied covenant of good faith and fair dealing, since there was no employment contract. (3) One plaintiff’s claim of discriminatory discharge is dismissed since he has shown no evidence of racial animus on the part of the one person who had the ultimate responsibility for his termination. (4) Summary judgment is denied as to one plaintiff’s claim of hostile work environment, as a prima facie case has been made out. (5) Summary judgment is denied as to defendant company, since there is evidence from which a jury could find that supervisor was aware for some time of the problems with plaintiffs’ superiors and failed to do anything about them. (6) Plaintiffs’ request for punitive damages is stricken. [Filed Nov. 21, 1996.] PRODUCT LIABILITY — TOXIC TORTS — EXPERT TESTIMONY 32-7-0749 Kannankeril v. The Terminix Intl. Co., Ltd. Ptshp., U.S. Dist. Ct. (14 pp.) In a case for injuries allegedly caused by defendant’s spraying of insecticide at plaintiffs’ home, (1) claims of three family members are dismissed because there has been no proffered expert testimony that their injuries were caused by the chemical, (2) since expert’s opinion is devoid of any reliable factual basis, it must be excluded, and since remaining plaintiff provides no other evidence that chemical caused her injuries, defendant is entitled to summary judgment on this claim as well, and (3) since plaintiffs have presented no expert testimony to support their claim of diminution in value of their property, they cannot establish damages and summary judgment is granted on those claims. [Filed Nov. 22, 1996.] CRIMINAL LAW AND PROCEDURE 14-7-0750 U.S.A. v. Gollapudi, U.S. Dist. Ct. (24 pp.) The court makes findings of fact and conclusions of law finding defendant guilty beyond a reasonable doubt of willful failure to collect or truthfully account for and pay over federal withholding taxes and FICA taxes for certain quarters, and for willfully making and subscribing false personal income tax returns for certain tax years. [Filed Nov. 26, 1996.] Correction: In yesterday’s Alert, two words were inadvertently omitted from DDS No. 53-7-0732. The last sentence should read, “…and his motion to dismiss pursuant to Rule 12(b)(6) is denied.” —END— Copyright 1996 by American Lawyer Media, L.P. A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … Can a realtor who repeats to a client false information supplied by a builder be liable for treble damages under New Jersey’s Consumer Fraud Act? An appeals court has said yes. Weichert Realtors is asking the state Supreme Court to overturn that ruling. See page 1 of the Dec. 9 Law Journal.

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