PANAGIOTI L. GIANNAKOPOULOS VS. MID STATE MALL, ET AL. A-1955-13T2

PANAGIOTI L. GIANNAKOPOULOS VS. MID STATE MALL, ET AL. 

A-1955-13T2 

Plaintiff suffered serious injuries, including brain damage and paraplegia, after an automobile turning left out of a mall parking lot collided with his motorcycle. Plaintiff filed a timely complaint against the mall and an untimely complaint against the engineering firm that designed the mall. Construing Rule 1:13-7(a), we find that the trial court erred in reconsidering a prior judge's order reinstating plaintiff's complaint against the mall, which had been administratively dismissed for lack of prosecution. We also find the trial court erred in granting summary judgment in favor of the engineering firm. 

We conclude that the good cause standard of Rule 1:13-7(a) applies here, rather than the exceptional circumstances standard. We also find that, before departing from the first judge's order tolling the statute of limitations under N.J.S.A. 2A:14-21, the trial court should have held a N.J.R.E. 104 hearing on plaintiff's claim that he was either incapacitated contemporaneously with the accident or became incapacitated shortly thereafter due to the accident. 

HILL INTERNATIONAL, INC. VS. ATLANTIC CITY BOARD OF EDUCATION COBRA CONSTRUCTION COMPANY, INC. VS. ATLANTIC CITY BOARD OF EDUCATION A-4139-13T3

HILL INTERNATIONAL, INC. VS. ATLANTIC CITY BOARD 

OF EDUCATION 

COBRA CONSTRUCTION COMPANY, INC. VS. ATLANTIC CITY 

BOARD OF EDUCATION 

A-4139-13T3 

When a professional in one of the categories listed in N.J.S.A. 2A:53A-26 has been sued for malpractice or negligence, a supporting affidavit of merit ("AOM") is required from a "like-licensed" professional. This "like-licensed" requirement applies even where the functions of one profession may overlap with those of another profession. However, such an AOM is not required for claims (1) solely involving matters of common knowledge; (2) based on a defendant's conduct outside the scope of his or her professional duties; (3) of intentional wrongdoing; or (4) based exclusively on theories of vicarious liability or agency. 

Applying these principles here, we reverse the trial court's interlocutory order permitting a licensed engineer to issue an AOM against defendant architects regarding alleged negligence in design and construction contract administration. Even though there is some overlap between these two professions, the statute requires an AOM from a like-licensed architect. We remand to allow plaintiff to obtain such an affidavit. 

ESSEX COUNTY CORRECTIONS OFFICERS PBA LOCAL 382 VS. COUNTY OF ESSEX, ET AL. A-4309-12T2

ESSEX COUNTY CORRECTIONS OFFICERS PBA LOCAL 382 

VS. COUNTY OF ESSEX, ET AL. 

A-4309-12T2 

This is an appeal from a summary action pursuant to Rule 4:67 in which plaintiffs allege that Essex County has unlawfully "privatized" its jail operations. We hold that Essex County can lawfully contract for rehabilitative and similar treatment services for county jail inmates at two privately owned and operated inmate facilities, Delaney Hall and Logan Hall. Without express Legislative authority, however, the county cannot lawfully delegate to private entities its core governmental function of confining and "keeping" county inmates who are not in need of such services. 

Plaintiffs did not prove the unlawfulness of the five-year, $129-million-plus contract for the operation of Delaney and Logan Halls. Although plaintiffs initiated the request that the litigation proceed as a summary action, the importance of the issue and the likelihood of similar future contracts warrants a remand to permit further proceedings as a plenary case. 

D.A. VS. R.C. A-4030-12T2

D.A. VS. R.C. 

A-4030-12T2 

In this custody and parenting time case, we reverse the custody order entered by the Family Part and remand for the judge to refer this matter to mediation as required under Rule 5:8-1. The informality that permeated all of the court's interactions with the parties and their respective attorneys precluded the court from adjudicating this hotly disputed custody case, and ultimately undermined the solemnity and decorum necessary for effective courtroom management. 

The Family Part judge did not interview the fourteen-year-old boy at the center of this custody dispute, despite allegations that: (1) the custodial parent used excessive corporal punishment and a confrontational parenting style as a means of disciplining the child; and (2) the non-custodial parent regularly exposed the child to domestic violence. Under Rule 5:8-6 and N.J.S.A. 9:2-4(c), the judge had a duty to interview this teenage boy, or place on the record the reasons for his decision not to interview him. 

Finally, the judge entered a final custody order awarding residential custody of this fourteen-year-old boy to each parent on a 50/50 basis, without placing on the record the factual findings and conclusions of law explaining how this decision was in the best interest of this child or how he resolved the conflicting material factual assertions made by the parties in their respective certifications without conducting a plenary hearing, as required by N.J.S.A. 9:2-4(f) and Rule 1:7-4(a). 

C.J.R., ET AL. VS. G.A., ET AL. A-2771-13T3

C.J.R., ET AL. VS. G.A., ET AL. 

A-2771-13T3 

In this case of first impression, we address the standards of tort liability to apply when a plaintiff minor is injured by another minor during the course of a youth sports activity. We adopt a "double-layered" analysis that combines the relevant principles separately pertaining to adult sporting activities and to the injurious conduct of minors. 

In particular, we hold that the court must consider: (1) whether the opposing player's injurious conduct would be actionable if it were committed by an adult, based on sufficient proof of the defendant's intent or recklessness as required by the Supreme Court's case law; and, if so, (2) whether it would be reasonable in the particular youth sports setting to expect a minor of the same age and characteristics as defendant to refrain from the injurious physical contact. 

Here, plaintiff, a twelve-year-old child playing in a recreational youth lacrosse game, was injured upon being struck on the forearm by an opposing player who was eleven years old. Plaintiff stresses that the manner in which the defendant struck him violated the rules of the game. Regardless of whether the conduct would be actionable if it were committed by an adult, we conclude that the conduct did not rise to the level of intentional or reckless behavior that could support liability of an eleven-year-old child in this youth sports setting. We therefore affirm the trial court's summary judgment order entered in favor of the defendant-minor. 

Tomikia Davis v. Abbas Husain, M.D. (A-34-13

Tomikia Davis v. Abbas Husain, M.D. (A-34-13 

Post-verdict discussions between the court and discharged jurors are prohibited unless those discussions are part of a hearing ordered on good cause shown pursuant to Rule 1:16-1. 

2.11 WRONGFUL DISCHARGE IN VIOLATION OF A CLEAR MANDATE OF PUBLIC POLICY model jury charge

2.11            WRONGFUL DISCHARGE IN VIOLATION OF A CLEAR MANDATE OF PUBLIC POLICY[1]  (Approved 3/91; Revised 7/10)

         Plaintiff has alleged that he/she was wrongfully discharged from his/her position in violation of public policy. I charge you that the policy of ________________ is a clear mandate of public policy2; you must decide whether plaintiff was discharged:

                                [choose appropriate option below:]

         (1)     in violation of that policy; or

         (2)     for exercising rights protected by that policy; or

         (3)     for declining to perform an act or acts which require a violation of that policy;

         [or] whether, as defendant states, plaintiff was not discharged for a reason related to that policy.

[choose appropriate corresponding option below:]

         (1)     In order to establish that plaintiff was discharged in violation of a public policy, you must find by a preponderance of the evidence that plaintiff’s discharge violated the [state the public policy].  If plaintiff does not prove this, you need not consider whether plaintiff’s discharge was wrongful.  If plaintiff does prove that his/her discharge violated the [public policy], then you must consider whether3 a determinative factor for his/her discharge was a violation of the [public policy], and not some other reason such as _______________________, which defendant has asserted.

         (2 or 3)       In order to establish that plaintiff was discharged for exercising rights under [public policy] or for declining to perform an act or acts which require a violation of the [public policy], you must find that plaintiff has proved by a preponderance of the evidence that he/she:

         a.       had a reasonable basis for believing defendant engaged in a violation of the [state the public policy];⁴ and

         b.      brought the alleged violation of the [state the public policy] to the attention of an appropriate governmental outside authority or took other action reasonably calculated to prevent the objectionable conduct.⁵

         Plaintiff must prove that he/she sufficiently expressed his/her disagreement with defendant’s [state the conduct alleged to be in violation of public policy] to support the conclusion that his/her discharge violates the mandate of public policy and is unlawful.  That is to say, a complaint to an outside agency or a direct complaint to senior corporate management will ordinarily be sufficient.  On the other hand, a complaint to an immediate supervisor or passing remarks to co-workers generally will not.⁶

[charge the following in every case]

         It is the plaintiff’s obligation to prove, by a preponderance of the evidence, that his/her [describe the alleged adverse action in question, such as demotion, firing, etc.] violated a clear mandate of public policy.^{7, 8}  In this regard, I remind you that plaintiff was a so-called “at will” employee, that is he/she did not have a contract of employment.  In New Jersey, such an employee can be discharged at the wish of the employer for any reason or for no reason.  He/she could be discharged for a false cause, or for no cause at all, provided only that the reason the employer discharged the employee did not violate any clear mandate of public policy.  A person fired unfairly, but not fired in violation of a specific public policy, does not have a cause of action for wrongful discharge in violation of public policy.

---

    1 This charge is to be given only if a claim is asserted under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). 

     2 Whether there is a clear mandate of public policy prohibiting the conduct is a question for the trial judge.  Warthen v. Toms River Community Hospital, 199 N.J. Super. 18, 25 (App. Div. 1985).

     3 Erickson v. Marsh & McLennan, 117 N.J. 539, 560, 561 (1990).  This seems tautological, but that is what the opinion says.

    ⁴ Pierce v. Ortho Pharmaceutical Corp., supra, at 72. 

   ⁵ Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 111 (2008).

   ⁶ Tartaglia v. UBS PaineWebber Inc., supra, at 109.

   ⁷ Tartaglia v. UBS PaineWebber Inc., supra, at 112.

   ⁸ Although the New Jersey Supreme Court and Appellate Division have held that plaintiffs bringing claims under the New Jersey Law Against Discrimination (LAD), New Jersey Conscientious Employee Protection Act (CEPA), and New Jersey Family Leave Act (FLA) need only prove that the unlawful motive was a determinative factor in the adverse employment decision rather than the sole motivating factor, see, e.g., Bergen Commercial Bank v. Sisler, 157 N.J. 188, 207 (1999) (so holding with regard to LAD), Donofry v. Autotote Systems, Inc., 350 N.J. Super. 276, 293 (App. Div. 2001) (so holding with regard to CEPA), and DePalma v. Building Inspection Underwriters, 350 N.J. Super. 195, 214 (App. Div. 2002) (so holding with regard to FLA), no reported New Jersey state or federal court decisions appear to have addressed that issue with regard to New Jersey common-law wrongful discharge claims.