Opinion Summaries

The court determines a settlement agreement between defendant Cumberland County and a former County employee resolving a preliminary notice of disciplinary action (PNDA) against the employee is not a government record under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but instead is a personnel record exempt from disclosure under section 10 of the statute, N.J.S.A. 47:1A-10. The court rejects the argument of plaintiff Libertarians for Transparent Government that the settlement agreement was properly released in redacted form as not supported by the language of section 10 or the history of excluding personnel and pension records from public access contained in Executive Orders 9 (Hughes), 11 (Byrne) and 21 (McGreevey).

The court reverses the trial court order that released the redacted settlement agreement and remands for the court to consider whether Libertarians is entitled to the agreement, either in whole or in part, under the common law right of access to public records, see Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 520 (App. Div. 2004).

This case examines the scope of Rule 3:11, which requires law enforcement to make a detailed record of an out-of-court identification. The court focused on an unusual live identification event that took place almost two years after the robbery and two weeks before trial. The prosecutor asked the robbery victim to come to the courthouse and sit in a hallway while defendant and other jail inmates were led past her. This event was not electronically recorded and no verbatim account was made of the dialogue between the victim and prosecutor's office representatives who accompanied her. Defendant argued this event corrupted the victim's memory, rendering her subsequent in-court identification inadmissible.

The State did not seek to introduce evidence of the hallway event at trial and characterized it as "trial prep." The court nonetheless concluded it was an out-of-court "identification procedure conducted by a law enforcement officer" within the meaning of Rule 3:11(a) and therefore should have been recorded. The court remanded for the trial court to make detailed findings concerning whether the hallway procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

In this insurance coverage case, the court interprets a policy provision that excludes damage claims "arising out of any act of 'assault' or 'battery' committed by any person," including claims "arising out of . . . any act or omission in connection with the prevention or suppression of such 'assault' or 'battery.'" The court concludes that the exclusion barred an insured tavern's demand for a defense and indemnification arising out of one patron's fatal shooting of another. Specifically, the exclusion encompassed claims by the estate of the deceased patron that the tavern negligently hired, trained, and retained staff, and negligently failed to maintain a place free of reasonably foreseeable criminal activity. Those claims related to acts or omissions in connection with preventing the assault or battery of the victim. In reaching its conclusion, the court distinguished L.C.S., Inc. v. Lexington Insurance Co., 371 N.J. Super. 482 (App. Div. 2004).

The Ordinance is sustained subject to the Court’s further modifications to comply with current legislative enactments. The Court concludes that state law permits the creation by ordinance of this civilian board with its overall beneficial oversight purpose. The Court holds that this review board can investigate citizen complaints alleging police misconduct, and those investigations may result in recommendations to the Public Safety Director for the pursuit of discipline against a police officer. In addition, the review board may conduct its oversight function by reviewing the overall operation of the police force, including the performance of its IA function in its totality or its pattern of conduct, and provide the called-for periodic reports to the officials and entities as prescribed by municipal ordinance. However, to the extent some investigatory powers that the City wishes to confer on its oversight board conflict with existing state law, the Court modifies the Appellate Division’s judgment. The board cannot exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department’s IA unit. An investigation by the IA unit is a function carefully regulated by law, and such an investigation must operate under the statutory supervision of the police chief and comply with procedures established by Newark’s Public Safety Director and the mandatory guidelines established by the Attorney General. Concurrent investigations would interfere with the police chief’s statutory responsibility over the IA function, and the review board’s separate investigatory proceedings would be in conflict with specific requirements imposed on IA investigations and their results. The Court also invalidates the conferral of subpoena power on this review board.

This interlocutory appeal concerns the appropriate procedures under the current statute, N.J.S.A. 2A:4A-26.1, for evaluating whether a juvenile charged with a very serious offense should be waived to the Criminal Part and prosecuted as an adult.

On leave granted, the juvenile in this case, defendant Z.S., appeals the Family Part judge's order sustaining a prosecutor's decision to waive him to the Criminal Part to face a jury trial for committing first-degree aggravated sexual assault upon a minor.

The court vacates the trial judge's order because of several critical deficiencies in the processes that resulted in Z.S.'s waiver. Among other things, the prosecutor's written statement of reasons in support of waiver was incomplete, conclusory, and utilized obsolete 2000 guidelines that do not track the controlling factors under the revised 2016 waiver statute.

In addition, the prosecutor failed to explain in writing in advance of the waiver hearing why the extensive mitigating psychological evidence marshalled by the defense, documenting Z.S.'s intellectual disabilities and mental health issues, was inconsequential.

The trial judge also misapplied his discretion by declining to adjourn the waiver hearing at defense counsel's request, with the State's acquiescence, after she had been released from the hospital for pneumonia only two days earlier and was still feeling ill and having difficulty breathing.

Because of these grave procedural shortcomings, the court remands this matter for a renewed waiver hearing. The opinion also offers guidance on how best to proceed in such waiver matters under the revised 2016 statute.

Pfizer’s Agreement and related communications informed Skuse that if she remained a Pfizer employee more than sixty days from her receipt of that Agreement, she was deemed to assent to it. Those communications clearly and unmistakably explained the rights that Skuse would waive by agreeing to arbitration, thus complying with waiver-of-rights case law, and Pfizer’s delivery of the Agreement by e-mail did not warrant its invalidation. Pfizer’s use of the word “acknowledge” was appropriate in the circumstances of this case, given the terms of Pfizer’s arbitration policy and other expressions of assent that immediately preceded that request. Pfizer should not have labeled its communication explaining its arbitration agreement a “training module” or training “activity,” but that is not a basis to invalidate the Agreement. The Agreement was valid and binding, and the Court concurs with the trial court’s decision to enforce it.

The health insurance premium contribution rates paid by the Association’s members were preempted by statute and therefore non-negotiable. PERC’s construction of Chapter 78 comports with the statute’s language and the Legislature’s stated objective to achieve a long-term solution to a fiscal crisis.

The court considers whether interest on a jury award of compensation for the condemnation of property by the Commissioner, Department of Transportation (Commissioner), is subject to the fixed six percent per annum interest rate established in N.J.S.A. 27:7-22. The court held that N.J.S.A. 27:7-22, which applies only when property is condemned by the Commissioner, was impliedly repealed by the subsequently enacted N.J.S.A. 20:3-50. That provision of the Eminent Domain Act of 1971 established uniform standards for the condemnation of property by all State entities. Because of the implied repeal of N.J.S.A. 27:7-22, interest on an award of compensation for the condemnation of property by the Commissioner must be determined in accordance with N.J.S.A. 20:3-32. That statute vests in the trial court broad discretion to establish an interest rate based on evidentiary submissions. This discretion includes the authority to determine when the rate of interest should be simple or compound.

The court considers, on leave granted, the denial of defendant Our Lady of Lourdes Medical Center, Inc.'s motion to dismiss the complaint filed in the name of plaintiff Carolyn Repko ten months after her death and granting the motion of her estate to amend the complaint to substitute itself as plaintiff after the running of the statute of limitations. Because a complaint by a dead person is a nullity, leaving nothing for an amended complaint to "relate back" to under Rule 4:9-3, the court reverses the denial of Lourdes' motion and remands for entry of an order dismissing the complaint with prejudice

Tax Court: Glenpointe Associates, Glenpointe Associates II, LLC, and Glenpointe Associates III v. Township of Teaneck; Docket Nos. 004987-2007; 004989-2007; 004982-2007; 004984-2007; 004989-2007; 004992-2007;002967-2008; 002975-2008; 002977-2008; 002982-2008; 002987-2008; 001623-2009; 001638-2009; 001639-2009; 001640-2009; 001642-2009; 017684-2009;002077-2010; 002080-2010; 003183-2010; 003198-2010; 003207-2010;020410-2010; Opinion by Andresini, P.J.T.C., decided August 11, 2020.For plaintiff - Carl A. Rizzo (Cole Schotz P.C., attorneys); for defendant - Kenneth A. Porro and Edna J. Jordan (Chasan Lamparello Mallon & Cappuzzo, P.C., attorneys).

Held: In the valuation of an office complex portion of the subject property with exceptional quality, amenities, and location, the court concluded that the leases contained in the subject office are the best metric for determining economic rent. The court further found that plaintiff taxpayers’ claims that the subject leases must be adjusted to reflect alleged above market leasing commissions while simultaneously taking an expense for the commission is not a valid appraisal practice supported by any accepted source or methodology. Furthermore, adjustments made to comparable leases from the subject market must be grounded in cognizable data and may not be applied in an arbitrary fashion, though when stripped of arbitrary adjustments the comparable leases may still be of probative value in determining economic rent. Additionally, the use of outlier capitalization rates without adequate justification or support on the record renders those figures unreliable to the court in determining the fair market value of the subject.

The court further concluded that in the valuation of a hotel portion of the subject property, it cannot accept plaintiffs’ expert’s conclusions as valid or credible when the expert relies on lower-end data sets and improper hotel classification as the basis for his valuation conclusions. When relying on competitive hotel sets, an expert must base his conclusions on the correct classification of the subject hotel and rely on adequately comparable sources of hotel data from within that classification. An expert’s reliance on inferior hotel properties in his competitive set cannot be afforded any weight. Further, the court cannot accept capitalization rates based on unsubstantiated theories of risk without support in the record.

Subject to the limits imposed here by the Court, the Bond Act does not violate the Constitution

Neither federal nor state protections against compelled disclosure shield Andrews’s passcodes

A levy was placed on a bank account belonging to defendant judgment-debtor. Defendant objected to the levy on the grounds that the only money in the account was from the part of defendant’s wages that were exempt from a wage garnishment. The question presented is whether a levy can be made on money deposited in a bank account from wages that were previously subject to garnishment. Based on the applicable statutes, the court found that previously garnished wages deposited in a bank account does not exempt the money from levy.

The New Jersey Workers Compensation Act (WCA), N.J.S.A. 34:15-1 to -146, generally prohibits employees from suing their employers for injuries sustained in workplace accidents. This case probes the boundaries of the ]"intentional wrong" exception to that general rule.

Plaintiff suffered serious injury while riding as a passenger on a forklift in defendant's warehouse. It was a common practice at the warehouse for workers to ride on the forklift while another worker drove the forklift. This practice violates workplace safety regulations promulgated by the U.S. Department of Labor Occupational Safety and Health Administration (OSHA).

The court first addressed plaintiff's contention that the WCA does not bar his lawsuit because he was not employed by defendant but rather by an employee leasing agency. The court applied the five-part test announced in Kelly v. Geriatric & Medical Services, Inc., 287 N.J. Super. 567, 571–72 (App. Div. 1996), and determined that plaintiff was a "special employee" of defendant and thus subject to the exclusive remedy of workers compensation.

The court turned next to plaintiff's contention that he is not barred from suing defendant because the company's practice of allowing, if not encouraging, workers to stand on moving forklifts was an intentional wrong, thereby exempting this case from the exclusive remedy of workers' compensation. Plaintiff argued defendant's misconduct constitutes intentional wrong because it occurred repeatedly. The court rejected the argument that violative conduct is an intentional wrong merely because it is an ongoing practice. The court interpreted Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) as narrowing the circumstances when the intentional wrong exemption applies in recognition that reckless or negligent conduct often reflects a "deliberate" business decision by employers to promote speed and efficiency at the expense of workplace safety. The court concluded the intentional wrong exception would significantly erode the legislative preference for the workers' compensation remedy if all a plaintiff must show is that the negligent or reckless conduct was committed repeatedly.

The court surveyed a series of Supreme Court cases that applied the Millison analytical framework and concluded that defendant's violative conduct was not sufficiently egregious to rise to the level of an intentional wrong. The court noted the cases following Millison that found intentional wrong involved violative conduct that was not just committed on multiple occasions but was repeated in the face of efforts by government regulators or others to put a stop to the practice. An employer's wrongful conduct is especially egregious when deception is used to conceal the repetition.

In this case, there were no prior forklift-related accidents or injuries, no prior OSHA citations pertaining to forklift operations, and no prior complaints from workers about unsafe forklift practices. Nor did defendant attempt to conceal its violative practice or otherwise deceive safety investigators. The court thus concluded that plaintiff failed to show his injury was substantially certain to occur and that the circumstances of its infliction were more than a fact of life of industrial employment.

In this appeal, the court affirmed the trial court's granting of counsel fees to a former court-appointed attorney in this guardianship action involving Sally DiNoia. The counsel fee application was opposed by Sussex County counsel. The amount awarded was $43,397.20. The County of Sussex, Division of Social Services, Adult Protective Services (APS) appealed the order.

Appellant filed a verified complaint seeking to declare Sally DiNoia incapacitated and for the appointment of a guardian over her person and property under the Adult Protective Services Act (the Act), N.J.S.A. 52:27D-406 to -425. The matter was highly contentious and Sally's son, John DiNoia, was enjoined from interfering with her care and treatment. An order was entered adjudging Sally an incapacitated person and appointing her daughter as guardian.

The court agreed with the trial court that John failed to cooperate with orders of the court and filed numerous applications, which were essentially frivolous, requiring responses from counsel. Additionally, the court determined that APS neglected to perform its statutory duties and failed to conduct a financial investigation and analysis of Sally's assets and debts as required by Rule 4:86-2(b).

Applying a deferential standard of review, the court held that the trial court was authorized to compel APS payment of fees for a court-appointed attorney. The court held, as a matter of law, that the trial court was authorized under Rule 4:86-4(e) and the Act to require APS to pay the fees of the court-appointed attorney for Sally. Further, the court found that whether the trial court erred in requiring APS to pay fees was subject to review under an abuse of discretion standard. Therefore, the court affirmed the decision of the trial court.

The Court concurs in substantial part with the ACJC’s factual findings and holds that clear and convincing evidence supports the ACJC’s determination that respondent committed the Code violations charged. The Court modifies the ACJC’s recommendation that respondent be removed from judicial office, however, and instead imposes on respondent a three-month suspension from judicial duties.

Post Accutane, the court reversed summary judgment granted to defendants regarding plaintiffs' claims that their use of Johnson & Johnson baby powder had a causal connection to their development of ovarian cancer. In re: Accutane, 234 N.J. 340 (2018). The cases were the first two selected to be tried in the talc-based baby powder multi-county litigation.

Applying the analytical structure found in the Federal Judicial Center's Reference Manual on Scientific Evidence (Third Ed. 2011), the court concluded, after detailed consideration of the experts’ lengthy N.J.R.E. 104 hearing testimony and reports, that their methodology was generally recognized in the field and the data upon which they relied was generally accepted for that use in the field. See Accutane, 234 N.J. at 352-53, 390. The experts hypothesized a connection between the migration of talc and inflammation to explain the development of ovarian cancers like plaintiffs’. The trial judge's suppression of their opinions was an abuse of discretion, as he failed to limit his decision to whether their methodology and data were generally accepted and relied upon in the relevant scientific field and instead rejected the merits of the opinions themselves, finding them less credible than those of defendants’ experts

When all factors bearing upon retroactivity are weighed -- whether the rule's purpose "would be furthered by a retroactive application," the State's reliance on the previous rule, and "the effect a retroactive application would have on the administration of justice," State v. Henderson, 208 N.J. 208, 300 (2011) -- pipeline retroactivity is appropriate. Considering the evidence presented in G.E.P.'s case, the admission of CSAAS testimony did not deny him a fair trial, and the Court reverses the Appellate Division's judgment as to him. As to R.P., C.P., and C.K., the CSAAS testimony bolstering the alleged victims' testimony was clearly capable of producing an unjust result, and their convictions were thus properly reversed by the Appellate Division.

The language of the kidnapping statute, along with the case law construing that language, must be read in a sensible manner and not taken to an illogical conclusion. Holding a victim in captivity for a period of four to five hours, while assaulting and sexually abusing her, satisfies the “substantial period” requirement of the kidnapping statute -- even if the length of the confinement is co-extensive with the continuous sexual and physical abuse of the victim. In addition, the Court cannot find that, as a matter of law, the terrifying four-to-five-hour period of C.M.’s confinement was “merely incidental” to the sexual violence committed against her. There is no basis to disturb the jury’s verdict.

In this direct appeal from a judgment of conviction, the court addressed several issues raised by defendant in a longer unpublished opinion affirming defendant's convictions. The two issues of first impression in New Jersey addressed in its published opinion are: (1) whether discharge from probation constitutes "release from confinement" for the purpose of triggering the ten-year time limit under N.J.R.E. 609(b)(1)'s more stringent standard for the admissibility of prior convictions for impeachment purposes; and (2) whether a "no-permit" affidavit prepared by a non-testifying police witness is testimonial and thereby subject to the Confrontation Clause. As to the former, the court held that the plain language of N.J.R.E. 609, coupled with the construction of identical language by the federal courts and sister states, as well as prior interpretation of confinement by New Jersey State courts in related and unrelated contexts, compel the conclusion that probation does not qualify as confinement as required under N.J.R.E. 609(b)(1). As to the latter, the court determined that the "no-permit" affidavit was not testimonial under the primary purpose test, and its admission without the testimony of the affiant who conducted the permit search did not violate the Confrontation Clause. The court reasoned that the affidavit established the absence of an objective fact, rather than detailing the criminal wrongdoing of defendant.