Opinion Summaries

Plaintiff is a certified radon measurement and mitigation business regulated by the Department of Environmental Protection ("DEP") and the largest radon measurement business in the State. While the DEP was pursuing a regulatory enforcement action against the company, the company filed suit against the DEP and several DEP officials in the Law Division, alleging improper conduct and violations of its constitutional, statutory, and common-law rights.

Defendant moved to dismiss the company's constitutional and civil rights claims, asserting their alleged conduct was shielded under principles of qualified immunity. The trial court partially denied the immunity motion and ordered the parties to proceed with discovery.

The panel concludes the trial court misapplied principles of qualified immunity and should have dismissed the corresponding counts of the complaint. The DEP did not violate "clearly established" equal protection and due process rights by pursuing a regulatory enforcement action against the company, and by directing that communications between the company and the agency be channeled through their respective attorneys while the contentious administrative litigation was ongoing. Among other things, the panel notes that a regulatory agency must retain the discretion to interact with private parties in a manner it deems most efficient and effective, so long as it responds to outside inquires within a reasonable time and in a reasonable manner. Discovery on these claims was unnecessary, as defendants have qualified immunity from suit, not just a final judgment. The matter is remanded to adjudicate other open counts of the complaint.

In a separate unpublished opinion issued today, the panel affirmed in part the findings of the DEP Commissioner and the two administrative law judges that the company committed various regulatory violations, and reversed and remanded those findings in part.

In this appeal, a now-evicted tenant of a residential apartment, which he sublet to another, argued that only the subtenant, whose conduct generated the tenancy action, could be evicted. In affirming a judgment of possession, the court rejected the tenant's strained interpretation of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1(c), and conclude that a wrongful act of one permits the eviction of all occupants.

We affirm defendant's judgment of conviction for fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant claimed his guilty plea lacked an adequate factual basis and he demonstrated a colorable claim of innocence. We hold the trial court properly reviewed defendant's claims using the factors set forth in State v. Slater, 198 N.J. 145 (2009), and not a de novo standard of review. We conclude the trial court did not abuse its discretion in making these findings and that there was an adequate factual basis for the guilty plea.

Dissent and opinion filed.

The judgment of the Appellate Division is reversed substantially for the reasons expressed in Judge Espinosa’s dissenting opinion. Defendant’s guilty plea is vacated and the matter is remanded to the trial court for further proceedings.

Although the court affirmed the termination of parental rights of these parents, who executed an identified surrender and were removed to Peru, their country of origin, the court emphasized the need to put on the record all matters in child protective services litigation resulting in an order, even when the parties present consent to the order. Notice should also be provided to biological parents when the Division of Child Protection and Permanency seeks to vacate an identified surrender and seek termination of parental rights.

The court granted defendant’s objection to a levy on a bank account as to the part of the funds deposited from child support. Child support is exempt from levy because those funds belong to the child rather than the judgment-debtor parent. The court granted plaintiff’s motion to turn over funds as to the non-exempt funds.

The issue in the opinion is whether an individual who expects to named as a defendant in a law suit cognizable in the State of New Jersey may file a petition pursuant to Rule 4:11-1 for pre-suit discovery. The court ultimately determined the rule allows both defendants and plaintiffs to obtain pre-suit discovery in limited circumstances. The opinion further addresses a recurring issue with respect to the propriety of utilizing Rule 4:11-1 to obtain discovery to investigate facts relevant to a potential claim prior to a law suit being filed. In the court’s view, this rule is often improperly utilized and misunderstood. The court attempts to provide some insight as to the proper circumstances under which a party may properly file a petition as contemplated by the rule. Rule 4:11-1 is routinely misunderstood because the plain language of the rule does not alert attorneys that the rule may only be utilized in those limited circumstances when there exists a genuine risk that testimony could be lost or evidence destroyed before the suit can be filed.

Plaintiff obtained a temporary restraining order against defendant under the Prevention of Domestic Violence Act based upon a “dating relationship” and allegations of simple assault and harassment by offensive touching. At the final hearing, plaintiff testified she engaged in a long-term consensual, but secret and sporadic intimate relationship with defendant which, in her words, involved “consensual rough sex.” Defendant disputed the existence of a dating relationship. The court held (1) plaintiff qualified as “victim of domestic violence” under the PVDA based upon her long-term but secret intimate relationship with defendant (2) defendant was entitled to assert the defense of consent to the allegations of bodily injury and offensive touching; and (3) plaintiff did not prove a final restraining order was “necessary” as she conceded defendant only visited her when invited to her home for “rough sex.”

The issue in this opinion is whether defense counsel can question plaintiff about whether or not the airbags deployed in his vehicle at the time of the accident in the context of an automobile negligence case. The questioning by defense counsel is a common line of inquiry in automobile negligence cases and is often the subject of in limine motions and/or objections at the time of trial. The court ultimately determined the question was improper. The court determined that whether or not the airbags deployed is not relevant in the absence of expert testimony because it does not, without more information, tend to prove or disprove an issue in the case. In the absence of expert testimony, the jury would not know the amount of force needed to trigger the specific airbag contained in the subject vehicle. Moreover, without an expert providing an explanation as to how an airbag system functions, a jury would not know the location of the airbag sensors on the subject vehicle. Accordingly, a jury would not be able to understand why an airbag system did, or did not activate, in a particular accident.

The issue in the opinion is whether it is appropriate in an automobile negligence case to utilize a modified version of Model Jury Charge (Civil) §5.34, “Photographic Accidents in Motor Vehicle Accidents,” when there is testimony regarding the damage to both of the motor vehicles involved in the subject accident, but no photographs were entered into evidence. In most automobile negligence cases, either the plaintiff or defendant produces photographs of the vehicles from the accident and requests the jury instruction set forth in Model Jury Charge (Civil) §5.34, “Photographic Accidents in Motor Vehicle Accidents.” This charge is commonly referred to as a Brenman charge because it is derived from our Supreme Court’s decision in Brenman v. Demello, 191 N.J. 18 (2006). The court ultimately permitted the charge to be given having determined the importance of the charge is not so much based on the existence of photographs in a particular case, but rather how a jury should evaluate motor vehicle damage in relation to the alleged injuries. In short, that evidence of vehicle damage is in the form of testimony rather than photographs should not govern whether the charge is given.

Plaintiff suffered injuries while a forty-year-old man struck a piñata at a birthday party. The judge charged both Model Jury Charges (Civil), 5.20F(4), "Social Guest – Defined and General Duty Owed" (rev. Dec. 2014) (the Model Charge), and Exception (2) to the Model Charge. That exception states that "[i]n cases where the host is conducting some 'activity' on the premises at the time of [the] guest’s presence, [the host] is under an obligation to exercise reasonable care for the protection of [the] guest." This court held that when a plaintiff sustains an injury resulting solely from an "activity" on the host's property – as opposed to an injury caused by a combination of that activity and a physical dangerous condition on the property – then the judge should only charge Exception (2).

The panel addresses the strip search statute, N.J.S.A. 2A:161A-1 to -10, which affords certain protections to persons who are arrested or detained for non-indictable offenses, and whether the Attorney General Guidelines for strip searches extend those protections to persons arrested or detained for crimes.

The panel concludes that neither the legislative history nor the plain terms of the statute authorized the Attorney General to promulgate Guidelines to extend the statute's protections to persons detained or arrested for crimes. The panel further concludes that the strip search was justified here by probable cause and reasonable exigent circumstances, thereby satisfying the Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution.

The panel affirms the trial court's order denying defendant's motion to suppress five bricks of heroin seized from defendant's groin area pursuant to a strip search following defendant's arrest for indictable drug offenses.

The panel reverses the trial court's summary judgment dismissal of plaintiff L.E.'s complaint that she was sexually assaulted in a high school bathroom during class hours as a result of the negligent supervision of defendant school board and its employees. The court holds that negligent supervision is distinct from a claimed failure to provide police protection services, or to enforce laws, for which the Tort Claims Act provides immunity, under N.J.S.A. 59:5-4, N.J.S.A. 59:3-5, and N.J.S.A. 59:2-4. Therefore, the trial court erred in relying on the Act in dismissing the complaint. Noting that the duty to supervise students during school hours on school property is well-established, the panel concludes that a jury could reasonably find that defendants violated the duty under the facts presented; and, despite the students' independent acts, the negligent supervision was a proximate cause of L.E.'s injuries.

Plaintiff filed a complaint that alleged five notices of intention to foreclose served on him by defendant BAC Home Loans Servicing, LP. (BAC) violated the Fair Foreclosure Act. He asserted that BAC – the alleged servicer of loans made in 2007 when plaintiff purchased his residence – neglected to include the name and address of the lender. Although no foreclosure action followed on the heels of these notices, plaintiff claims these FFA violations – not actionable on their own – may form the basis of a claim under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). Consequently, he argues that the trial judge erred in dismissing the complaint by applying the litigation privilege and by holding that the alleged FFA violation cannot support a TCCWNA claim. The court rejected the application of the litigation privilege but because the legal grounds upon which the latter determination was based have shifted since the trial judge's decision and the perfection of this appeal, see Spade v. Select Comfort Corp., 232 N.J. 504 (2018), the court vacated the order of dismissal and remanded to allow for an amended pleading expressing the true nature of his damage claim.

Where, as occurred here, decedent and her spouse transferred property to a trust, retained life interests in the property, and directed the trustee to transfer the property to a relative upon the death of decedent or her spouse, whichever is the last to occur, the Division of Taxation did not err by imposing an inheritance transfer tax on the full value of the property because decedent and her spouse held the property as tenants by the entirety, and the transfer was intended to take effect "at or after" decedent's death. N.J.S.A. 54:34-1(c).

The Court now reverses in all those cases in which the Appellate Division reinstated plaintiffs’ actions against Roche. New Jersey has the most significant interests, given the consolidation of the 532 cases for MCL purposes. New Jersey’s interest in consistent, fair, and reliable outcomes cannot be achieved by applying a diverse quilt of laws to so many cases that share common issues of fact. Plaintiffs have not overcome the PLA’s presumption of adequacy for medication warnings approved by the FDA. As a matter of law, the warnings provided physicians with adequate information to warn their patients of the risks of IBD.

In this medical malpractice action, plaintiffs claimed the board certified defendant doctors deviated from the standard of care in their specialties of pediatrics and pediatric critical care. The trial court barred the testimony of plaintiffs' expert, finding he did not satisfy the requirements of the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42. More particularly, the trial court found that although the expert was board certified in pediatrics and pediatric critical care, he was not qualified to testify under the Act because, at the time of the alleged malpractice, he did not spend a majority of his professional time in either active clinical practice in the specialties, as required by N.J.S.A. 2A:53A-41(a)(2)(a), or instructing students in the specialties as required by N.J.S.A. 2A:53A-41(a)(2)(b).

The court reverses and holds the expert satisfied the Act's qualification requirements. The court determined the evidence established the expert practiced in the same specialties as the defendant doctors, and thereby met the requirements of N.J.S.A. 2A:53A-41(a). The court further concluded that where the alleged malpractice occurred during the practice in a specialty recognized by the American Board of Medical Specialties and a defendant doctor is board certified in the specialty, the plaintiffs' expert must also satisfy either the requirements of N.J.S.A. 2A:53A-41(a)(1) or N.J.S.A. 2A:53A-41(a)(2). The court found the trial court erred by finding the expert was required to satisfy the requirements of either N.J.S.A. 2A:53A-41(a)(2)(a) or (b) where the evidence otherwise established the expert was credentialed at a hospital to treat patients for the condition at the time of the alleged malpractice, and thereby satisfied the requirements of N.J.S.A. 2A:53A-41(a)(1).

In this employment case, plaintiff asserted claims for violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and intentional infliction of emotional distress. The trial court granted defendants' motion to dismiss the complaint, finding plaintiff was obligated to litigate her claims in arbitration pursuant to an agreement she executed when she was hired. The agreement also included a punitive damages waiver, which the trial court determined was enforceable.

The court affirmed the order dismissing the complaint, finding the agreement satisfied the requirements established in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014), and therefore plaintiff was obligated to prosecute her claims in arbitration. The court, however, modified the order, holding the punitive damages waiver is unenforceable because it violates the public policy underlying the LAD. The court further concluded the waiver should be severed from the agreement, and directed that the matter proceed to arbitration with plaintiff able to pursue her punitive damages claim.

This appeal involves the warrantless, nonconsensual search of children's school records for the name of their father, defendant J.S.G., who was the owner of a vehicle linked to two burglaries. Defendant filed a motion to suppress his name, arguing the police obtained it in violation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. § 1232g, and its corresponding regulation, 34 C.F.R. § 99, and the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-19, and its corresponding regulations, N.J.A.C. 6A:32-7.1 to -7.8, governing the disclosure of student educational records.

We affirmed the denial of defendant's motion, finding FERPA did not create an enforceable right or provide for suppression as set forth in Gonzalez Univ. v. Doe, 536 U.S. 273 (2002). By analogy, we relied on State v. Evers, 175 N.J. 355 (2003), involving the Federal Electronic Communications Privacy Act (ECPA), to conclude that FERPA, like the ECPA, does not confer a reasonable expectation of privacy under the Fourth Amendment in student records.

We considered the NJPRA and its corresponding regulations, which permit school officials to provide directory information, including a student's name, to law enforcement, and which require school official to provide such information at the request of law enforcement. We also determined that like FERPA, the NJPRA merely provides administrative remedies for violations and does not permit a private right of action or suppression. We also ruled that the NJPRA does not create a reasonable expectation of privacy in student records under Article I, paragraph 7 of the New Jersey Constitution.

Finally, we followed federal law, which holds that a defendant's identity resulting from an unlawful search is not subject to the exclusionary rule.

This case involves the father's attempt to relocate the children to another State over the mother's objection. He relocated anyway without obtaining an order permitting the move. This court held that N.J.S.A. 9:2-2 required him to obtain an order permitting the removal before the actual relocation. On the mother's later motion, the judge ordered the father to return the children. In upholding the judge's refusal to do a best interests analysis on the mother's motion, this court concluded that the time for the judge to determine whether plaintiff had established "cause" for the removal of the children would have been before the relocation occurred, and that the father had the ultimate burden of proof.