When Does Claim For Unlawful Harvesting Of Body Parts Occur ? NJ Supreme Court Decides.

In Memorial Properties v. Zurich American Ins. Co. , the New Jersey Supreme Court held that 2 insurance companies that issued policies to a cemetary are not obligated to cover claims for the illegal harvesting of  human remains sent to the cemetary for cremation. Seven lawsuits were filed against the cemetary by family members of decedents alleging emotional distress when they learned of the unlawful harvesting of tissue and organs from loved ones prior to being sent for cremation.

Zurich denied coverage on the ground that the occurrences were outside the policy period. Another carrier relied on an “improper handling ” exclusion. For purposes of determining coverage , the Supreme Court held that the relevant occurrence took place in 2006 which was outside Zurich’s policy period, when the decedent’s families learned of the unlawful harvesting, not in 2003 when the harvesting took place.  The Supreme Court affirmed trial and appellate court decisions that neither policy was required to defend or indemnify the cemetary .

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Employee Going To Work In Privately Owned Vehicle May Be Within Scope Of Employment.

In Laird v. Whager, the New Jersey Appellate Division in applying the “going and coming” rule reversed the trial court’s grant of summary judgment to the employer, Securitas, for a fatal accident caused by its employee, Whager.

Under the doctrine of respondeat superior, an employer may be held liable for the actions of an employee who at the time of the occurence ” was acting within the scope of his or her employment”. Generally , however, respondeat superior does not extend to employee conduct occuring when the employee is traveling to and from work in his or her own vehicle.

Here, the court found that per Securitas instructions,  the Securitas employee arrived at a location in close proximity to the job site at 8 pm where he waited until “dusk” before proceeding to the job site and beginning his security work, the employee’s services were billed starting at 8 pm , and the employee was required to bring a vehicle to the job site for shelter in the event of bad weather.

The Appellate Division noted that New Jersey recognizes 3 ” dual purpose ” exceptions to the going and coming rule, including where the employer requires the employee to drive his or her personal vehicle to work to be used for work related tasks. The court found genuine issues of fact, reversed summary judgment to the employer and remanded the case for trial.

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Is Getting The Right Panel Key to Appeal In NY’s First Department ?

In New York’s Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant’s side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court.

On appeal, the defendant did not challenge the Supreme Court’s finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff’s comparative negligence, precluding summary judgment.

In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma.

After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one’s negligence may have been a substantial factor in causing the injury, whether one party’s negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable.


Thank you for Gabe Darwick for this post.

No Immunity For Utility’s Negligent Placement Of Pole

In Seals v. County of Morris , the New Jersey Supreme Court held that Jersey Central Power & Light was not immune from liability for its negligent placement of an electrical pole. The Court held that if a government entity directed the utility where to place the pole, then N.J.S.A. 48:3-17.1 conferred immunity on the utility. However, where there is no governmental dictate or order , as in Seals, ordinary negligence standards apply and utility companies that place their poles without considering whether they are in dangerous locations can be held liable for resulting injuries.

In Seals , the utility pole had been at its location , an old stagecoach route, since approximately 1937. The location had been the site of several prior accidents and the pole had previously been replaced three times.


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NJ School District Settles Student Bullying Suit For $4.2M

The Ramsey , N.J. School District has entered into a $4.2 million settlement with a student who was permanently paralyzed from the waist down after being punched in the stomach by a known bully at his middle school. The settlement is believed to be the largest yet from a lawsuit predicated on a school district’s failure to comply with anti-bullying laws. The student, Sawyer Rosenstein, had previously sent emails to school officials pleading for help and indicating that the bullying incidents had been increasing. It was also alleged that the school district made little or no  effort to comply with the anti-bullying laws prior to the attack and that Rosenstein’s attacker had a history of assaults.


NJ Plaintiff Gets Court Blessing To Continue Lawsuit Against Church.

In New Jersey, the general rule is that non-commercial entities do not owe a duty of care to a pedestrian injured as a result of the condition of abutting sidewalks.  With respect to religious, charitable or other nonprofit organization, the court looks to the nature of the use of the property, and its “capacity to generate income” in a determination of whether the property is commercial or residential.

In Mohamed v. Iglesia Evangelica Oasis de Salvacion, plaintiff sued the defendant church after she stepped into a depression on the sidewalk abutting the church property.  The church moved for summary judgment and argued that its property was non-commercial, as it was used exclusively for religious purposes.  In opposition, the plaintiff pointed to the deposition testimony of the church’s pastor who stated that the church would receive monetary “donations” for the use of its parking lot and for permitting people to use its basement for parties.  Faced with this evidence, the trial court granted defendant’s motion for summary judgment, finding that the church was not a commercial landowner and therefore not required to maintain the sidewalk under New Jersey law.

On appeal, the Appellate Division reversed and remanded for further proceedings , finding that the trial court should have given the plaintiff the opportunity to conduct discovery on the issue of the nature of the church’s use of the property, including whether the church was only engaged in religious activities or in commercial activities as well.

 Special thanks to Cheryl Fuchs for her contributions to this post.

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NJ Judge’s Defense To Groping Charges-Don’t Try This At Home

An Ocean County judge accused of breaching judicial ethics by inappropriately touching and making sexually suggestive remarks to female probation officers at a holiday party has filed an answer to the charges. While he says he is embarrassed and mortified, he claims that he has no recollection of the incident- but that if it did happen it was the result of drinking too much.


No Proximate Cause Found In Spectator Claim That Unruly Teens Injured Her At NJ Nets Game.

In Novembre v. Snyder High School , New Jersey Sports & Exposition Authority and the NJ Nets, the plaintiff claimed she was injured when one of a group of unruly teens fell on her while she was watching a NJ Nets game. Plaintiff claimed that the group of teens were students from Snyder High School who were loud, obscene and rowdy and appeared to be unsupervised. She also alleged that the arena security made little or no effort to control the group.
Plaintiff also testified that after the incident, she heard a young man from the group say ” why did you push her” and she attempted to have that hearsay statement admitted as an “excited utterance”. The trial court excluded the statement after a hearing.
The matter was tried with the jury finding that both Snyder High School and the Sports & Exposition Authority were negligent , but that neither proximately caused plaintiff’s injuries. Plaintiff appealed and the Appellate Division affirmed both the defense verdict and the exclusion of the hearsay statement. As to the hearsay statement , it found that there was no evidence that the unidentified declarant actually observed or perceived the incident , and no evidence that the statement was made ” under the stress of excitement” therefore, that he exception did not apply.


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NJ App. Div. Interprets Retroactive Period In Claims Made PL Policy And Professional Services In Occurrence CGL Policy- Finds No Coverage For Either.

In Cumberland County Guidance Center ( CCGC) v. Scottsdale Ins. Co. , CCGC sought coverage for allegations of its employees failure to report alleged sexual abuse under a claims made professional liability policy and an occurrence commercial general liability policy, both issued by Scottsdale. The trial court found coverage under the PL policy, and no coverage under the CGL policy. Appeals followed.

The Appellate Division affirmed no coverage under the CGL policy, reversed the finding of coverage  under the PL policy and found that Scottsdale had no duty to defend. The panel rejected the argument that the failure to report sexual abuse was a continuing tort in an attempt to bring the claim within the policy’s retroactive period. It found that the policy clearly stated that there was no coverage for any wrongful act or omission that was committed before the retroactive period.

Additionally, the panel held that the failure to report alleged sexual abuse arose out of the rendering or failure to render professional services , finding a substantial nexus between the context in which the acts were complained of occurred and the professional services performed.

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Mode Of Operation Does Not Apply Just Because Self Service Bins Are Present.

In Cordasco v. Walgreen’s, the New Jersey Appellate Division affirmed an order granting summary judgment to Walgreen’s. Plaintiff claimed that she was walking down an aisle in Walgreen’s and that as she approached the end of the aisle, she slipped and fell on a waxy /crayon like substance on the floor next to 2 self servce bins containing mechandise. She had no idea where the substance on the floor came from, how long it had been there or whether any Walgreen employee knew about it prior to her fall. Plaintiff alleged that she was entitled to an inference of negligence under the mode of operation rule because Walgreen’s was engaged in a self service operation in the area where she fell.

The Appellate Division affirmed summary judgment finding no evidence that the self service bins contained open bags or containers, that the waxy / crayon type material was in the bins for sale or that the substance on the floor came from the bins. It therefore found that the mode of operation rule did not apply and that Plaintiff was required to prove actual or constructive notice which she could not do.


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