Opinion Summaries

In this long-running dispute between Verizon New Jersey, Inc., inheritor of New Jersey Bell Telephone Company's local exchange service telephone network, and the Borough of Hopewell, the court affirms Judge Menyuk's 2012 decision on summary judgment finding N.J.S.A. 54:4-1's 51% market-share calculation must be performed annually, and that an annual market-share calculation, as applied to Verizon, does not violate the State and federal equal protection guarantees, the State prohibition of special legislation or the Uniformity Clause, as well as Judge Brennan's 2019 decision following trial that Verizon is subject to the tax imposed for tax year 2009 because it provided dial tone and access to 51% of the Hopewell Local Telephone Exchange in 2008.  The published version of this opinion omits discussion of whether the 51% test of N.J.S.A. 54:4-1 is to be applied annually as well as Verizon's constitutional challenges to the statute.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Accurso’s opinion. The Court concurs with the Appellate Division “that ‘local telephone exchange’ as used in N.J.S.A. 54:4-1 means a local telephone network within a defined geographical area as depicted on Verizon’s tariff exchange maps.”
___ N.J. Super. at ___ (slip op. at 52).

LOCAL GOVERNMENTS, FINANCE.  LOCAL GOVERNMENTS, ADMINISTRATIVE BOARDS. ADMINISTRATION & PROCEDURE, ASSESSMENTS. STATE & LOCAL TAXES, REAL PROPERTY TAXES. LOCAL GOVERNMENTS, CLAIMS BY & AGAINST. LEGISLATION, INTERPRETATION. HEARINGS, EVIDENCE.  AMENDMENT OF PLEADINGS, RELATION BACK.  

Tax Court: Town of Morristown v. Morris County Board of Taxation; Docket No. 005100-2024, opinion by Novin, J.T.C., decided July 24, 2024.  For plaintiff – Emil H. Philibosian and Shaun S. Peterson (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys); for defendant - Michelline Capistrano Foster, Deputy Attorney General (Matthew J. Platkin, Attorney General of New Jersey, attorney).

Defendant argued, under motion for summary judgment, that because plaintiff failed to object to defendant’s 2024 preliminary Morris County equalization table at the county hearing, under N.J.S.A. 54:3-18, plaintiff was precluded from challenging defendant’s 2024 final Morris County equalization table before the Tax Court under N.J.S.A. 54:51A-4a.  Defendant also argued that plaintiff’s challenge to the 2024 final Morris County equalization table was untimely filed under R. 8:4-2(a)(1), and that plaintiff cannot demonstrate defendant’s adoption of the 2024 final Morris County equalization table was arbitrary and capricious.  Therefore, defendant sought dismissal of plaintiff’s complaint with prejudice.
  
Holding: The court found the statutory language under N.J.S.A. 54:51A-4a and N.J.S.A. 54:51A-5b, permitting a taxing district or taxpayer to challenge a final county equalization table, to be clear and unambiguous.  Our Legislature required: (i) the filing of a timely a complaint in the Tax Court; (ii) the complaint must be served on the county board of taxation and on the chief executive officer and the clerk of the Board of Chosen Freeholders and on the clerk of every taxing district in the county; (iii) the complaint shall not suspend the apportionment of moneys or collection of taxes in the county; (iv) the Tax Court hearing shall be conducted in the county; (v) five days’ advance written notice of the hearing must be given by mail to the governing body of each taxing district in the county; and (vi) the hearing shall be conducted and a decision rendered on or before September 10, annually.  The court concluded that the Legislature did not impose any requirement that a taxing district object to a preliminary county equalization table, as a prerequisite to challenging a final county equalization table before the Tax Court.  In addition, the court determined that plaintiff’s complaint was timely filed, under R. 8:4-2(a)(1).  Finally, the court discerned that whether the adoption of the 2024 final Morris County equalization table is arbitrary and capricious, or whether the table is unreasonable, incorrect, or plainly unjust, and impresses upon plaintiff a substantially excessive share of the county tax burden, is a disputed material fact.  Accordingly, the court denied defendant’s motion for summary judgment.

(38 pages)
 

The six members of the Court who participated in this appeal unanimously agree that the standard set forth in in McKelvey, 173 N.J. at 51, applies in this case. The Court thus readopts that standard, with two refinements to accord with recent United States Supreme Court precedent, as set forth in Section III.C. of Justice Patterson’s concurring opinion. See infra. at ___ (slip op. at 26-32). The members of the Court are equally divided as to whether discovery is required in this case. As a result, the judgment of the Appellate Division, which affirmed the trial court’s dismissal of the case on summary judgment without discovery, is affirmed

The court reverses the denial of a motion to suppress drug evidence discovered by a detective following a dog sniff after an admitted pretext stop.  Although not questioning the detective's good faith or impugning the trial court's finding that he was a credible witness, the court finds neither is enough to justify this stop.  "The suspicion necessary to justify a stop must not only be reasonable, but also particularized."  State v. Scriven, 226 N.J. 20, 37 (2016).  The detective failed to offer facts sufficient, as a matter of law, to allow the court to determine he possessed a reasonable articulable suspicion that Boone failed to maintain his lane "as nearly as practicable."  N.J.S.A. 39:88(b).  See State v. Woodruff, 403 N.J. Super. 620, 627-28 (Law Div. 2008).  We do not reach defendant's argument that the automobile exception did not apply because the circumstances giving rise to probable cause were not spontaneous and unforeseeable as required under State v. Witt, 223 N.J. 409, 447-48 (2015).  See State v. Smart, 253 N.J. 156, 171 (2023).      

The Commission acted arbitrarily, capriciously, and unreasonably for failing to credit the Department of Corrections’ view that the sustained charges against the officer undermined prison security and touched directly at the heart of his ability to obey the protocols pertaining to his employment at a correctional facility. The Commission’s decision to impose a six-month sanction is disproportionate to the serious and highly concerning offenses found in this record.

        This appeal presents a question of first impression regarding when the State may be compelled to provide field and health reports of narcotics detection canines in accordance with the Supreme Court's holding in Florida v. Harris, 568 U.S. 237 (2013).  Defendant was indicted with second-degree unlawful possession of a weapon, fourth-degree possession of hollow nose bullets, third-degree possession of a controlled dangerous substance, and second-degree certain persons not to have a weapon.  The Law Division denied defendant's motion to compel the State to provide discovery of records related to a narcotics detection canine used to conduct a sniff of the vehicle and whose positive alert gave the basis for probable cause to conduct a full search.

         Upon granting leave to appeal, the court concludes that under Harris, the canine's field and health records are not per se irrelevant to reliability and probable cause determinations and therefore, the trial court should have first heard the State's motion challenging the expert before denying the defendant's motion for discovery. 

         Because the records may be deemed relevant by the trial court, the court reverses and remands for consideration of the State's motion to bar defendant's expert using the Daubert[1] standard adopted by our Supreme Court for criminal cases in State v. Olenowski, 253 N.J. 133, 151 (2023).

[1]  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The central issue in these back-to-back appeals, which have been consolidated for the purpose of issuing a single opinion, is whether municipalities have an implied contractual (seller-consumer) relationship with residents to whom they distribute metered potable water.  The answer to that question determines whether plaintiffs may sue defendants under a breach-of-contract theory on the grounds that the water supplied to them contains a high level of contaminants. 

Plaintiffs rely on older cases holding there was a contractual relationship between residents and their towns with respect to water service.  Defendants rely on more recent cases recognizing a different type of relationship between municipal water distributors and residents—one that is not based on principles of contract law.

The court concludes that under the current governance framework for public water systems, potable water is a public resource owned by the people and held in trust for them.  Under that paradigm, defendant municipalities distribute water to their residents for a governmental purpose.  They are not tantamount to private companies that sell water for profit.  The fact they charge residents for the costs incurred for providing this governmental service —which varies based on the amount of water a resident receives—does not automatically create a contractual relationship.    

The court also concludes that for all practical purposes, the theory of liability in plaintiffs' complaints, while carefully drafted to employ the terminology of contract law, is indistinguishable from a warranty of fitness cause of action explicitly precluded under a provision of the Tort Claims Act, N.J.S.A. 59:9-2(b).  Stated another way, using the label of a contract dispute to describe the cause of action does not change its essential character or transform the relationship between municipal water distributors and residents into a contractual one.  The court thus concludes there is no foundation upon which contractual damages may be claimed against defendant municipalities.

The court affirmed the trial court's dismissal of plaintiff's personal injury action under the Landowners Liability Act (LLA), N.J.S.A. 2A:42A-2 to -10.  Plaintiff fell while rollerblading in a park owned and maintained by the County of Bergen.  The County of Bergen argued entitlement to immunity under the LLA. 

The court, focusing on "the dominant character of the land" where plaintiff fell rather than the land uses surrounding the park, agreed with the trial court's conclusion that the park constituted a "premises" under the LLA.  Therefore, the County of Bergen was entitled to immunity absent "willful or malicious failure to guard, or to warn against a dangerous condition."

Given the dwindling available open space in this State, the LLA reflects an important public policy of encouraging large land areas, consisting of natural outdoor expanses, where the general public may participate in sport and recreational activities free of charge.  Premises under the LLA may consist of large tracts of rural or semi-rural lands or "lands having similar characteristics," such as the park owned by the County of Bergen.     

The AOM plaintiff submitted complied with N.J.S.A. 2A:53A-27. First, an AOM does not need to specify that the affiant reviewed medical records. Second, a doctor to whom the affidavit attributed negligence is the agent of a named defendant and is identified in the AOM as one of the John or Jane Doe defendants included in the complaint. The Court stresses the importance of the Ferreira conference in professional negligence actions.

Class action waivers in consumer contracts are not per se contrary to public policy, but they may be unenforceable if found to be unconscionable or to violate other tenets of state contract law. In this case, because plaintiffs clearly and unambiguously waived their right to maintain a class action and the lease contract is not unconscionable as a matter of law, it is enforceable.

Defendant insurance company appeals from an order granting partial summary judgment to plaintiff policy holder finding a duty to defend and indemnify.  The trial court found that defendant had unreasonably withheld consent to settle in the underlying actions and was precluded by the Supreme Court's holding in Fireman's Fund Insurance Co. v. Security Ins. Co. of Hartford, 72 N.J 63 (1976), from declining coverage pursuant to the policy's capacity exclusion.

The court first concluded that on the undisputed facts in the record, defendant's conduct was not unreasonable, and that the facts were distinguishable from Fireman's Fund.  After engaging in de novo review of the record, including the policy, the court concluded the capacity exclusion applied to bar coverage.  

The court reverses defendant's driving while intoxicated (DWI) conviction because it was based on evidence obtained by a police officer following his unlawful entry into defendant's garage.  The court remands for the Law Division judge to determine whether defendant's careless driving conviction can be sustained based on information learned before the officer unlawfully crossed the threshold of defendant's home.

The court addresses the circumstances in which a police officer may enter a suspect's residence in connection with a drunk or careless driving investigation.  The court holds that while police have the authority to perform various "community caretaking" functions—such as determining whether a suspected drunk driver needs medical attention—they may not make a warrantless entry into a suspect's home to execute an investigative detention without consent or exigent circumstances.    The court holds this rule applies to defendant's garage. 

The court also holds this was not a fleeting or de minimus entry.  The officer entered the garage to execute an investigative detention, that is, to seize defendant.  The court stresses that even the brief entry of the home to effectuate the seizure of a resident is a significant constitutional intrusion.  The court ultimately concludes the State failed to prove by a preponderance of the evidence the officer lawfully entered the garage to render emergency aid under the exigent circumstances exception. 

In this appeal, the court held individuals convicted of a disorderly persons or petty disorderly persons offense are not categorically excluded from Recovery Court under Track Two based on the classification of their conviction.  The court first found the matter justiciable despite the defendant's death and then rejected the rationale that Recovery Court is available only to those convicted of a "crime," which disorderly persons and petty disorderly persons offenses are not under our Criminal Code.

Under N.J.S.A. 2C:7-13(b)(2), a Megan’s Law registrant is entitled to an evidentiary hearing if the registrant demonstrates that there exists a 
genuine issue of material fact about whether the registrant’s conduct is characterized by a pattern of repetitive and compulsive behavior. The 
State may rely on an earlier psychological report that had been prepared pursuant to N.J.S.A. 2C:47-3, but the independent findings by a  Megan’s Law judge as to compulsivity and repetitiveness must be based on clear and convincing evidence.

Because J.A. was adjudicated delinquent and not convicted of a sex offense, he is required to satisfy the public safety prong of subsection (f), not the offense-free prong. See In re Registrant R.H., ___ N.J. ___, ___ (2024) (slip op. at 3). Based on the reasoning of R.H. and the trial court’s finding that J.A. does not pose a safety threat, he is eligible for termination of his Megan’s Law obligations under subsection (f). The Court does not reach arguments about the constitutionality of N.J.S.A.2C:7-2(f) as applied to juveniles.

Based on the plain language the Legislature used in crafting N.J.S.A. 2C:7-2(f), the requirement to remain offense-free for fifteen years 
applies to juveniles who are prosecuted as adults and convicted of a listed sex offense, or released from a correctional facility, but not to those who are adjudicated delinquent in the family court. Consistent with the law’s text, however, all registrants including juveniles must satisfy the second requirement -- the public safety requirement -- to be eligible to terminate their obligations under Megan’s Law. Here, the offense-free prong does not apply to R.H. and T.L. because they were adjudicated delinquent, and not convicted, of a sex offense. The Court therefore remands each matter to the appropriate trial court to determine whether there is clear and convincing evidence that R.H. and T.L. satisfy the public safety prong.

This Tort Claims Act case arises from a now-deceased plaintiff's bicycle accident on a two-lane public road that straddled two municipalities.  The accident occurred on a stretch of the road that was chronically pitted with potholes, apparently due to drainage and freezing problems.  According to the deposition testimony of a local public safety director, potholes at that location had to be patched and re-patched "hundreds" of times in the five years before the accident.  Several citizens periodically reported the road's poor condition before the accident.  The road had no full-sized shoulders or designated bike lanes.

Plaintiff swerved his bicycle to avoid a passing truck, and lost control and fell when his tires hit the potholes.  Plaintiff's engineering expert opines that incorrect methods had been used to patch the road.  The expert further has opined that the persisting uneven surfaces were dangerous, not only for bicycles but also for motorcycles.

This opinion clarifies and extends the principles of Polzo v. County of Essex, 196 N.J. 569 (2008) ("Polzo I") and Polzo v. County of Essex, 209 N.J. 51 (2012) ("Polzo II"), concerning roadway surface conditions that endanger the safety of bicyclists on public roads.  In a fact pattern involving a bicycle accident on a road's potholed shoulder, the Court held in Polzo II that the public entity defendant had no duty to maintain the shoulder to an extent safe for bicyclists.  Id. at 70-75.  The Court distinguished that no-duty-to-bicyclists situation from a roadway condition that also happens to be unsafe for motorized vehicles.  Ibid.

This court applies the rationale of Polzo II here to this bicycle accident that occurred in a vehicular lane, and to a record with an unrebutted expert opinion that the road surface was unsafe for both motorcycles and bicycles.  The court concludes a public entity that is palpably unreasonable in failing to correct such a known dangerous road condition may be liable to a bicyclist who is injured because of that danger.  In doing so, the court recognizes that a plaintiff operating a two-wheeled vehicle must use due care when confronting a visibly hazardous potholed surface.  These principles are consistent with New Jersey Department of Transportation regulations concerning the safety of roadway surfaces.

Viewing this record in a light most favorable to plaintiff, the court vacates summary judgment in favor of the two municipal defendants that maintained and patched the road.  In the unpublished portion of this opinion, the court addresses other discrete matters.

Plaintiff hospitals brought action challenging the charity care program that requires them to provide care to all patients regardless of their ability to pay, while also prohibiting them from billing patients who qualify for charity care under the statute.  The trial court dismissed certain hospitals' claims for failure to exhaust administrative remedies.  As to the remaining claims, the trial court found that the regulations do not affect a constitutional taking under either a per se or Penn Central analysis. 

On de novo review, the court first addressed the ripeness issue.  It held that plaintiffs raised facial challenges to charity care and therefore had properly raised their claims in the first instance with the trial court.  Therefore, the court considered all plaintiff hospitals' constitutional takings claims.  Next, the court held that plaintiffs failed to show either a per se or regulatory taking violative of the Fifth and Fourteenth Amendments of the United States Constitution as well as Article I, Paragraph 20 of the New Jersey Constitution.  As a result, the court affirmed the trial court's order granting summary judgment on the merits, but did so on different grounds, entering summary judgment against all plaintiffs, including those previously dismissed for failure to exhaust administrative remedies.    

Plaintiff's decedent succumbed to the COVID-19 virus in May 2020.  The Estate claims the decedent's death was a result of defendants' "negligent, grossly negligent, careless and reckless actions and omissions" in discharging his wife, from whom he allegedly contracted the disease, from defendant long-term care facility in April 2020, while the result of her PCR test was pending.  Defendants notified the decedent's wife, their patient, and the decedent of the patient's positive test upon defendants' receipt of the result two days after her discharge.  The decedent tested positive for the virus shortly thereafter.  Defendants' patient survived her bout with the virus; the decedent tragically did not.

The court reverses the denial of defendant health providers' motions to dismiss plaintiff's medical negligence, wrongful death and survival claim, finding, contrary to plaintiff's assertion, that there is no well-established common law rule in New Jersey that a "physician has the duty to warn third persons against possible exposure to contagious or infectious diseases," and that plaintiff has not otherwise pled any recognizable derivative duty defendants owed to the decedent.

Although orders granting Rule 4:6-2 motions are ordinarily entered without prejudice, the Legislature's decision in the New Jersey COVID-19 Immunity Statute, L. 2020, c. 18, to temporarily limit the scope of whatever duty we might recognize defendants owed their patient and, derivatively, the decedent, to one of simply avoiding gross negligence during the height of the COVID-19 pandemic leaves plaintiff unable to state a claim on the facts alleged.  It is not possible for a reasonable jury to find defendants were not simply negligent, but grossly negligent or reckless in discharging the decedent's wife to his care in April 2020, before knowing the result of her pending PCR test.