STATE COURT CASES
 
CONTRACTS
11-2-0274 JB Pool Management, L.L.C. v. Four Seasons at Smithville Homeowners Association Inc., App. Div. (Sabatino, J.A.D.) (32 pp.) This case arises out of a one-year contract in which appellant, a pool management company, agreed to supply a condominium association with lifeguards and maintenance services for the association’s indoor pool. During the term of that contract, a mold infestation was discovered in the pool facilities, prompting government officials to order the pool closed for more than seven months while the mold was remediated. The pool company sued the association for breach of contract, seeking to recover four months of service fees that the association had not paid while the pool was closed. Over the pool company’s objection, the trial court charged the jury that the association’s obligation to pay the monthly fees during the period when the pool was closed could be excused under the doctrine of frustration of purpose, see Restatement (Second) of Contracts § 265 (1981), a theory that the association had not raised in its affirmative defenses. Having received that instruction, the jury found the association was not liable for the four months of disputed fees. In this case of first impression, we hold that the doctrine of frustration of purpose generally should be pleaded as an affirmative defense by litigants seeking to invoke it. Because the frustration doctrine was not raised here by the association before trial, and instead was identified, sua sponte, by the trial judge during the charge conference as a more suitable alternative to a proposed charge of impossibility of performance, we reverse the final judgment dismissing the breach-of-contract claim. To rectify apparent prejudice to the pool company arising from the late notice, we remand for additional discovery focused on that defense, followed by a new trial. Given the inapplicability of the frustration doctrine where the parties have allocated the risk of supervening event, we further direct the trial court to re-examine its finding that the “underlying purpose of [the] contract was conditioned upon the pool being open for use.” The court must consider explicitly if its finding about the parties’ intentions can be reconciled with the contract’s provision that “[t]here will be no reduction in charges of the contract amount for any closing.” [Decided June 13, 2013.]
 
CRIMINAL LAW — DISCOVERY
14-1-0283 State v. Scoles, Sup. Ct. (LaVecchia, J.) (33 pp.) The court establishes a template for courts to strike a proper balance between a defendant’s right to pretrial discovery and the public’s interest in protecting child pornography victims from the risk of unnecessary harm arising from the dissemination of child pornography images in the prosecution of criminal trials. Before a court grants defense counsel’s request for discovery of copies of alleged child pornography for viewing in their office, counsel must demonstrate their ability and willingness to abide by stringent conditions of control. In this case, the protective order is set aside, and the trial court must reconsider the defendant’s discovery request in light of the court’s opinion. [Decided June 13, 2013.]
 
14-2-0282 State v. Cohen, App. Div. (per curiam) (30 pp.) This appeal requires us to balance the competing interests of a criminal defendant who seeks discovery of materials that go to the essence of the underlying charged offenses, with the public interest in prohibiting the dissemination of the same materials — contraband child pornography. The trial judge fashioned a protective order that, by its terms, provided for defendant’s discovery of the relevant materials but established strict guidelines that limited access and use of the materials. We conclude that while the state’s concerns focus on the possibility of misuse of the materials, the judge’s order recognizes these concerns and establishes procedures to minimize such eventuality. Accordingly, we conclude that defendant is entitled to discovery under the terms of the protective order and affirm. [Decided July 2, 2009.]
 
FAMILY LAW
20-1-0259 DYFS v. I.S., Sup. Ct. (LaVecchia, J.) (48 pp.) Where abuse or neglect is not found, a trial court cannot maintain jurisdiction under Title 9 and must dismiss that portion of the complaint. Title 30 provides alternative means for providing services to children in need and does not require the division to meet the same burden as that imposed in proceedings under Title 9. Although FM custody proceedings should occur separately from child-protection proceedings, consolidation is permitted when the individual circumstances of the case require it and no harm results. [Decided June 12, 2013.] [Digested at page 41.]
 
FAMILY LAW — PARENTAL RIGHTS
20-2-0237 New Jersey Division of Youth and Family Services v. H.R. and N.B., App. Div. (Ashrafi, J.A.D.) (25 pp.) In this termination of parental rights appeal, where the biological parents are drug addicts and the prospective adoptive mother is the 6-year-old child’s maternal aunt, the Family Part must correct inaccurate information DYFS gave to the aunt that kinship legal guardianship is not available for a child less than 12 years old. The Family Part must then determine whether the caretaker parents still wish to adopt rather than agree to kinship legal guardianship, and it must re-evaluate whether an alternative to termination of parental rights is available. [Decided June 10, 2013.] [Digested at page 44.]
 
MEDICAL MALPRACTICE
29-2-0277 Flood v. Aluri-Vallabhaneni, App. Div. (Messano. P.J.A.D.) (32 pp.) In this lost-chance, medical-malpractice action, plaintiff, administrator of his daughter’s estate, settled with several defendants, and the claims against others were dismissed. Defendant, a radiologist, continued to assert cross-claims against the settling defendants. Over plaintiff’s objection, the judge adapted form interrogatories supplied by defendant and rejected plaintiff’s request to use the form interrogatories appended to Model Jury Charge (Civil) 5.50E, “Pre-existing Condition — Increased Risk/Loss of Chance — Proximate Cause” (Approved 12/02, Charge Originally Published 2/03, Rev’d 2/04). The interrogatories submitted to the jury essentially followed the form interrogatories previously used and appended to Model Jury Charge (Civil) 5.36E, “Pre-existing Condition — Increased Risk/Loss Chance — Proximate Cause” (4/96). The jury concluded that defendant deviated from the standard of care, and that the deviation increased the risk of harm from decedent’s pre-existing medical condition; however, the jury unanimously found the increased risk was not a substantial factor in causing her death. Plaintiff’s appeal is limited to claims that it was reversible error not to use the current interrogatories. We affirmed the no-cause verdict, finding the interrogatories did not mislead the jury or misstate the law. We also concluded that the current form interrogatories are inconsistent with established precedent and have the potential, in a Scafidi-type medical-malpractice suit, of relieving a plaintiff of proving an essential element of the lessened proximate-cause standard, i.e., that a defendant’s deviation not only increased the risk of harm, but was also a substantial factor in bringing about the ultimate harm. We requested the Model Jury Charge Committee to re-examine the issue, and, in the interim, we disapproved of the continued use of the model interrogatories as currently written. [Decided June 13, 2013.]
 
PUBLIC RECORDS
52-2-0278 Paff v. New Jersey State Firemen’s Association, App. Div. (Ostrer, J.A.D.) (23 pp.) We determine in this appeal that the New Jersey State Firemen’s Association, created pursuant to state law, N.J.S.A. 43:17-41, and the direct recipient of taxes on certain fire insurance premiums, N.J.S.A. 54:18-1 and -2, and N.J.S.A. 17:22-6.59, is an “independent State … instrumentality” and therefore a “public agency,” N.J.S.A. 47:1A-1.1, under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Consequently, the association is subject to OPRA, and the trial court erred in concluding otherwise. We reverse and remand to the trial court to consider plaintiff’s claim for relief under OPRA. [Decided June 13, 2013.]
 
FEDERAL COURT CASE
 
ENVIRONMENTAL LAW — ATTORNEY FEES
17-8-0211 Interfaith Community Organization v. Honeywell International Inc., Third Cir. (Vanaskie, U.S.C.J.) (30 pp.) In these actions filed pursuant to the Resource Conservation and Recovery Act seeking remediation of several contaminated sites along the Hackensack River, in which judgment has been entered in favor of plaintiffs and at issue presently are the attorney fees to be awarded for the continued monitoring of the cleanup effort, the court holds that offers of judgment pursuant to Fed. R. Civ. P. 68 may be made in the context of attorney fee disputes under the fee-shifting provisions of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq. Therefore, the district court’s declaration that the offers of judgment made by Honeywell in this case are null and void and its decision to bar any further offers of judgment are reversed and the previously made offers of judgment are reinstated. The court’s departure from the forum-rate rule in determining the applicable rate for attorney fees is affirmed because review of the issue is barred by collateral estoppel and the court’s decision to use the Legal Services Index to update the Laffey Matrix to determine the rate is affirmed. Its conclusions with respect to the number of hours claimed by counsel are vacated because its findings lack sufficient explanation. Thus, the latest fee awards are remanded for further proceedings. [Filed June 4, 2013.]