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TORT CLAIMS ACT STIFLES GIRL’S $1.5M AWARD NEWARK, N.J. — The New Jersey girl who won $1.5 million from a jury because her basketball coach acted like a foul-mouthed meanie encountered something just as rugged Thursday: the Tort Claims Act. Superior Court Judge Paulette Sapp-Peterson, finding that Jennifer Besler failed to satisfy the act’s ban on damages for pain and suffering when the injuries aren’t permanent, nullified the March 24 jury award and directed a verdict for the West Windsor-Plainsboro school district. The Mercer County jury awarded the money after hearing four months of evidence that Besler suffered from an eating disorder and stopped getting her period because of emotional distress caused by Daniel Hussong, her high school basketball coach in 1995 and 1996. Besides berating and belittling Besler and using the f-word liberally in tirades against her and the team, Hussong created intense stress at the beginning of her senior season by insisting she lose 10 pounds, the plaintiff’s evidence suggested. Sapp-Peterson said in a written opinion, however, that doctors who testified on Besler’s behalf failed to provide objective evidence that the plaintiff had an eating disorder. And while the subjective testimony by Besler, her parents and friends might have been good enough to establish damages in a civil rights or discrimination case, it failed to establish a permanent loss of bodily function required for common law claims against public bodies protected by the tort claims statute. The judge also threw out the finding that the district was liable for intentional infliction of emotional distress, saying there were minimal signs of damage in the years following her basketball ordeal. — New Jersey Law Journal CHRISTIAN GROUP SUES FOR BREACH OF DUTY ATLANTA — A long-simmering rift within the Southern Christian Leadership Conference landed in court last week when the Atlanta-based civil rights organization filed suit against the Rev. Joseph Lowery, who led the organization for two decades. In addition to allegations against Lowery, the suit accuses an affiliated organization led by Lowery’s wife, Evelyn Lowery, of fraud. The dispute between the SCLC board of directors and its women’s division, called SCLC/Women’s Organizational Movement for Equality Now Inc., centers around the status of the women’s group as a separate incorporated entity that nonetheless uses the SCLC’s name — as well as the likeness of the organization’s first president, the Rev. Dr. Martin Luther King Jr. — in its fund raising. The actions of the women’s organization constitute a “fraud” and a “tort” under which damages may be collected, lawyers for the SCLC wrote in the complaint. The SCLC board is asking for an accounting of “sums collected” by the women’s group where the SCLC’s name and emblem have been used in fund raising. Thus far, the women’s group has provided no information. In addition, the suit says Lowery “consciously and intentionally” breached his fiduciary duties while president of the SCLC by entering into a lease agreement in October 1994. In that agreement, the women’s division rented office space owned by the SCLC for $1 a year. The lease was executed by Lowery without the authorization of the SCLC board, the suit says. The SCLC board wants to rescind the lease and hold Lowery and the women’s organization liable for punitive as well as general and nominal damages. Southern Christian Leadership Conference v. S.C.L.C./Women’s Organizational Movement for Equality Now, 2004CV84186. This is the second time the SCLC has filed suit against Lowery and the women’s division in Fulton County Superior Court. In September, the SCLC made similar allegations against its former president and the women’s division but dismissed the case three weeks later. — Fulton County Daily Report FEDERAL JUDGE KEEPS N.Y.’S GUN SUIT ALIVE NEW YORK — A federal judge on Monday declined to dismiss New York City’s public nuisance suit against gun manufacturers, saying the city could pursue the suit despite the recent failure of an identical claim brought by the state attorney general. The ruling from Eastern District Judge Jack Weinstein decided an issue of law that had not been addressed in New York: whether a city is barred from bringing a suit on behalf of its citizens when its parent state has already sued under the same cause of action. “In light of the respect for local autonomy embodied in New York law, precluding the city from bringing a suit aimed at redressing the problem of gun-related violence would interfere with its authority to promote the safety and well-being of its inhabitants,” Judge Weinstein wrote in City of New York v. Beretta U.S.A. Corp., 00 CV 3641. “Barring the city from litigating its public nuisance claim would also interfere with the proper delineation of authority between the corporation counsel and the attorney general.” The city’s suit is identical to two others against manufacturers that have recently failed, one before Weinstein and another in state court. — New York Law Journal

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