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Vol. 4, No. 221 — November 19, 1996 STATE COURT CASES CIVIL PROCEDURE — CONTEMPT 07-2-0573 Wilson, Elser, et al. v. M.L.; In the Matter of Ralph Lubash, Esq., et al., App. Div. (6 pp.) (1) The Law Division perceptively reasoned that former employee’s action seeking aid of litigant’s rights sought punitive relief, not remedial, and correctly dismissed the action. (2) The court also perceives no sound basis to reverse the Law Division’s refusal to hold law firm in contempt (of protective order sealing employee’s psychiatric records) for seeking dismissal of former employee’s workers’ compensation claim for neuropsychiatric injury based upon the employee’s refusal to waive his privilege not to disclose his psychiatric history. CONTRACTS — INDEMNIFICATION — CHARITABLE IMMUNITIES 11-2-0574 Dai v. Community Medical Ctr., etc., et al., App. Div. (18 pp.) In case where woman was injured when automatic doors at medical center struck her, and sued medical center and company which installed the door, the trial court erred in holding that the Charitable Immunity Act, N.J.S.A. 2A:53A-8, applied to the contractual indemnification agreement action between the installer and the medical center and limited the medical center’s liability to $10,000, since the act was not intended to apply to contracts. [Approved for publication Nov. 19, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0575 Cottrell v. Bd. of Review, et al., App. Div. (8 pp.) Order of repayment must be reversed pending remand, as good cause has been shown to reopen proceeding to examine the issue of employee’s disqualification by reason of theft, which has never been resolved below, despite extensive procedural history. 25-2-0576 Burger v. Swift & Co., Inc., et al., App. Div. (5 pp.) Worker was properly held disqualified for benefits — and not merely disqualified for four weeks as she contends — since, although her prior position had been eliminated, the employer was in the process of finding new accounts for her in another position which would have meant no substantial change in her working conditions, salary or work hours, and she chose not to wait until the accounts were found, but quit. NEGLIGENCE — SIDEWALKS — TREE ROOTS 31-2-0577 Lorenzo, et al. v. City of Burlington, etc., et al., App. Div. (7 pp.) In a case where tree roots had raised sidewalk on which plaintiff tripped and fell, summary judgment was properly granted to (1) homeowner, since there was no evidence that he had planted the tree, and (2) housing development corporation, since there was no evidence that the sidewalk was in its defective condition when the county housing authority owned the property, however, (3) since the present record does not meet the test of showing that the city proved, with the certainty required by Brill, that some pre-requisite to liability under the Tort Claims Act was missing, the grant of summary judgment as to the city is reversed and remanded. PHYSICIAN/PATIENT 29-2-0578 Hofstrom, et al. v. Share, et al., App. Div. (12 pp.) The trial court committed reversible error in refusing to give the plaintiff’s requested instruction to the jury to ignore defendant’s allegation that plaintiff in this medical malpractice case had been contributorily negligent since defendant had made this a major defense theme in the trial. [Approved for publication Nov. 19, 1996.] WRONGFUL DEATH — TRAINS 40-2-0579 Lopez, etc., et al. v. N.J. Transit, et al., App. Div. (11 pp.) Wrongful death action — for death of minor on railroad tracks fails against the railroad since (1) the cause of the accident was not the condition of the tracks, but the danger of unauthorized use of those tracks for private recreational activity, (2) liability for a dangerous condition of public property is not dependent on the age of the user, as urged by the plaintiffs, and (3) the attractive nuisance doctrine is inapplicable to a public entity. The case fails against the City because the accident did not occur on its property, and, further attractive nuisance does not apply to public entities. The action fails against the engineer since, at most, the engineer knew that trespassing occurred occasionally in the area, and there is no case which would require, in such circumstances, a reduction of speed or the sounding of a warning whistle simply because of a possibility someone might be on the tracks. [Approved for publication Nov. 19, 1996.] CRIMINAL LAW AND PROCEDURE 14-2-0580 State v. Cook, App. Div. (16 pp.) The trial judge’s erroneous accomplice instruction compromises defendant’s right to a fair trial and a reversal of the conviction for knowing and purposeful murder on that basis is in order [Decided Nov. 19, 1996. Approved for publication May 8, 1997] FEDERAL COURT CASES CIVIL PROCEDURE — REMAND 07-7-0581 249 Johnson Avenue Corp. v. General Star Indemnity Co., U.S. Dist. Ct. (9 pp.) (1) Plaintiff made a good faith effort to comply with R. 12N and section 1447c and the motion for remand is timely, notwithstanding that plaintiff mailed the cover letter to the wrong deputy clerk. (2) Where defendant’s attorney, partially retained in the action, had requested and received the complaint by fax, the time for removal began, notwithstanding that the defendant did not get the complaint until later, and therefore the removal was untimely. [Filed Nov. 7, 1996.] CIVIL RIGHTS 46-7-0582 Silva v. Marriott Hotel, et al., U.S. Dist. Ct. (7 pp.) Plaintiff’s allegations that employees of hotel violated his constitutional rights in taking down his license plate number and alerting the police that plaintiff was intoxicated, resulting in his being stopped and detained, do not have the requisite level of state involvement to support a section 1983 action and are dismissed. The administration of breath tests by police do not constitute unreasonable search and seizure under the Fourth Amendment, nor did compelling the test violate plaintiff’s Fifth Amendment rights. Short detainment by police failed to constitute cruel and unusual punishment, and claims are all dismissed. [Filed Nov. 4, 1996.] DEBTOR/CREDITOR — FEDERAL CREDIT REPORTING ACT 15-7-0583 Daley v. Haddonfield Lumber Inc., et al., U.S. Dist. Ct. (13 pp.) Examining the relationship between “permissible purposes” and allegations of “false pretenses” in terms of obtaining consumer credit information under the Federal Credit Reporting Act, the court finds no genuine issues of material fact, and, since defendants violated the FCRA by willfully accessing consumer information about plaintiff under false pretenses, plaintiff’s motion for judgment is granted. [Filed Nov. 7, 1996.][For publication.] Additional opinion approved for publication: 27-2-0406 Lanzi, et al. v. North [Decided Oct. 30, 1996, Approved for publication Nov. 12, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … A Florham Park insurance company has sued 800 people for staging more than 120 car accidents over a 14-month period as part of a $10 million auto-insurance fraud ring, and a Morristown judge has ruled that the case will go to trial as one consolidated action. See page 6 of the Nov. 18 Law Journal.

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