Published Appellate Court Opinions

The court holds that the Mayor of the City of Newark has the authority, as a managerial prerogative, to mandate that all City employees be fully vaccinated against COVID-19. Nine unions representing City employees filed unfair labor practice charges against the City with the Public Employment Relations Commission (PERC) and requested an injunction to prevent the implementation of the mandate before the City negotiated with the unions. A Director of PERC issued an order granting in part and denying in part the unions' request for preliminary injunctive relief.

On leave granted, the court affirms the portion of the PERC order that held that the Mayor has a managerial prerogative to issue the mandate but vacates the portion of PERC's order that imposed restraints on the City or required any negotiations concerning the implementation, timing, or enforcement of the City's vaccination mandate.

Plaintiff Morgan Dennehy appeals from a February 18, 2020 order denying her motion for reconsideration of a previous order granting summary judgment to defendants East Windsor Regional Board of Education, Hightstown High School, James W. Peto, Todd M. Peto, and Dezarae Fillmyer. Plaintiff was a student at Hightstown High School and a member of the field hockey team. On September 9, 2015, the field hockey team was waiting for its scheduled practice on Hightstown High School's turf field to begin and was conducting drills in the "D-zone," an area between the recently renovated turf field and the track. Some members of the team were participating in the drills while others watched. A twenty-foot-tall ball-stopper is located at each end of the turf field and separates the "D-zone" from the turf field. While the field hockey team was practicing drills in the "D-zone," the boys soccer team was practicing on the turf field and plaintiff observed several soccer balls vault the ball stopper. After the team concluded its drills, plaintiff asked defendant Coach Fillmyer if she could take a shot on goal. Defendant agreed because plaintiff rarely had the opportunity to shoot on goal. Plaintiff left the area directly behind the ball stopper and, after she finished shooting, she was struck in the back of the neck by an errant soccer ball that went over the ball stopper. Plaintiff was later taken to the hospital and was diagnosed with a concussion. Plaintiff filed suit alleging that defendants were negligent and negligent in hiring, retaining, training, and supervision of employees.

On appeal, plaintiff argues that the motion judge erroneously applied the heightened recklessness standard set forth in Crawn v. Campo, 136 N.J. 494 (1994). After reviewing the applicable case law, the court concluded that the motion judge erred in applying the heightened recklessness standard from Crawn. In this case, defendant Fillmyer was not a co-participant who directly injured plaintiff and, therefore, Crawn does not apply.

The court also determined that Rosania v. Carmona, 308 N.J. Super. 365 (App. Div. 1998) does not apply to this case. In Rosania, a martial arts instructor participated in a sparring match with a student and kicked the student in the head causing his retina to detach. The martial arts dojo had a written rule that prohibited targeting of the head. The Rosania panel determined that if the jury found the risks inherent in the karate match were materially increased by an instructor beyond those reasonably anticipated by the dojo rules, it should have been charged on the ordinary duty owed to business invitees rather than the heightened recklessness standard for competitive contact sports. The court declined to apply Rosania in this case for two reasons: first, defendant Fillmyer was not a co-participant; and second, the Rosania panel's decision was informed by cases decided by the New York Court of Appeals which contemplated a different heightened standard. The court concluded that because defendant in this case is a public employee, her duties, responsibilities, and immunities are clearly established in the New Jersey Tort Claims Act N.J.S.A. 59:1-1 to 12-3, and thus defendant is liable to the same extent as a private person for her negligence and the ordinary negligence standard should govern this case.

Defendant Centurion Companies, Inc. subcontracted demolition work it agreed to perform for Alfred Sanzari Construction to plaintiff JHC Industrial Services, Inc. JHC did the work and Sanzari paid Centurion for it. Centurion, however, did not pay JHC in full, prompting this action under the Prompt Payment Act. Although JHC completely prevailed after two years of litigation and trial, the judge refused its application for $104,670.51 in fees pursuant to N.J.S.A. 2A:30A-2(f), awarding it only $16,375.73. The judge reasoned it could not "[u]nder Rendine . . . grant over $100,000 in fees on a judgment that could not have exceeded $30,500."

The court reverses and remands for reconsideration of the fee award. The Prompt Payment Act is a fee-shifting statute that makes an award of "reasonable costs and attorney fees" mandatory to a prevailing party; the judge erred in reading in a proportionality requirement not included in the statute.

The main issue in this appeal from the trial court's denial of defendant's suppression motion without a testimonial hearing is whether the officer violated defendant's rights when he patted him down a second time, just minutes after the officer patted him down the first time and uncovered no weapons. The court concludes that an officer may conduct a second pat-down when, giving weight to the unproductive first one, the circumstances preceding the second one still give the officer reason to believe the suspect is armed and dangerous. Because there exist issues of fact material to that question, the court reverses the trial court's order and remands for a testimonial hearing.

Defendant Dwayne D. Boston was convicted of third-degree possession of cocaine following a routine traffic stop on his way home from the movies with his wife and children. He contends the police unlawfully asked him, a front-seat passenger in his wife's car, to hand over his State identification card after he told them he did not have a driver's license. The court agrees, and concludes defendant's subsequent arrest on an open traffic warrant was unlawful, and the drugs seized in the ensuing search incident to his arrest should have been excluded at trial.

The court holds in a routine traffic stop where the driver has to be arrested on an open traffic warrant, the officer's asking whether a passenger is a licensed driver is reasonable; but when the passenger claims he does not possess a license, the officer's further demand for identification from the unlicensed passenger in the absence of particularized suspicion is not.

A sprinkler head discharged for no apparent reason at plaintiff's property and flooded two floors. A major tenant immediately cancelled its lease, and plaintiff made claims under an insurance policy issued by defendant. Defendant hired an expert to examine the sprinkler head; he concluded that defendant had no subrogation claim because it could not prove the cause of the discharge.

Plaintiff requested that defendant preserve the sprinkler head for its expert's examination. However, defendant's expert had already disposed of it. Plaintiff retained its own expert, who concluded the cause of the discharge was either a product defect, faulty installation, or faulty maintenance/inspection, but he could not conclude which of those possibilities was more likely. Plaintiff filed suit, alleging intentional and negligent spoliation of evidence. After discovery, the judge granted defendant summary judgment.

The court concluded that plaintiff was not entitled to an "adverse" or "spoliation" inference against defendant, which was not the third-party target defendant. The court also concluded that although other states have adopted modified proximate cause standards to permit a plaintiff to demonstrate a prima facie spoliation case despite the loss of critical evidence, our Court has not addressed the issue. Instead, relying on traditional negligence principles, the court concluded that, given its expert's indefinite conclusions, plaintiff failed to establish a prima facie case of proximately caused injury and damages. The court affirmed the grant of summary judgment.

Plaintiffs, police officers employed by the City of Trenton who were on work-related temporary disability and their police union, appealed the dismissal with prejudice of their declaratory judgment complaint against the State of New Jersey and the denial of their cross-motion to amend the complaint.

Plaintiffs sought relief from the State Health Benefits Program (SHBP), N.J.S.A. 52:14-17.25 to -17.46a., which requires all public employees to contribute to the cost of their health benefits plan based on their "base salary." Plaintiffs argued that cost of their SHBP benefit contributions while disabled should be calculated based on the temporary disability benefits they receive, not their "base salary."

The State moved pursuant to Rule 4:6-2(e) to dismiss the complaint with prejudice based on the plain language of the statute. The plaintiffs' cross-motion to amend the declaratory judgment complaint sought alternate relief, declaring that recipients of temporary disability benefits should not make any contributions to the SHBP while disabled.

Applying well-established principles of statutory construction, the court held that temporary disability benefits are not "base salary" for purposes of the SHBP. The court also held that the denial of plaintiffs' cross-motion to amend the complaint was not an abuse of discretion where the unambiguous language of the statute rendered the proposed amendment futile.

Plaintiff appealed the grant of summary judgment to her landlord. Plaintiff alleged that defendant's maintenance man, a fellow tenant of plaintiff, sexually assaulted her minor children. Plaintiff's complaint stated several causes of action, but the only two preserved for appeal were that defendant was directly negligent pursuant to Restatement (Second) of Agency, section 219(2)(b), and vicariously liable for the sexual assaults, pursuant to section 219(2)(d), which both provide exceptions to the general rule that an employer is not liable for the acts of its employee outside the scope of his or her employment.

The court affirmed the grant of summary judgment, noting that our courts have applied both of those sections of the Restatement Second in limited circumstances to serve the purposes of remedial legislation, like the LAD, CEPA and the Child Sexual Abuse Act, but not in similar factual circumstances. Additionally, the court examined the significant revisions made to both these sections of the Restatement Second by the Restatement (Third) of Agency and examined decisions from other jurisdictions that discussed these sections of the Restatements.

In these three appeals, the court affirms the trial court's order dismissing without prejudice a six-count indictment against a physician, and her medical assistant and office manager. The State alleged the medical assistant practiced medicine without a license; she and the physician fraudulently billed for the medical assistant's services under the physician's name; and all three individuals conspired to commit this fraud. The trial court did not abuse its discretion because, most significantly, the prosecutor failed to adequately and accurately instruct the grand jury about what a medical assistant may do without encroaching upon the licensed practice of medicine. And, because the law does not clearly draw a line around a medical assistant's scope of allowable activities, prosecuting someone for crossing the line may violate the right to fair warning. The prosecutor also improperly referred to additional evidence that he did not present to the grand jury, and presented a questionable analysis of the amount of money involved in the charged offenses. And the indictment lacked sufficient detail to give defendants a fair opportunity to mount a defense.

Although the trial court had dismissed a previous indictment against defendants, the trial court also appropriately declined to dismiss the second indictment with prejudice, as there was insufficient evidence of prosecutorial vindictiveness.

These appeals arise from two motor vehicle accidents that occurred about a year apart in approximately the same location under similar circumstances. In both instances, a driver traveling westbound on Route 322 in Folsom Borough made an illegal left turn in the direction of one of two driveway entrances to a WaWa convenience store and struck a motorcycle traveling eastbound on the highway. In the first accident, the motorcycle driver was killed and his wife, who was a passenger, seriously injured. In the second accident, the motorcycle driver was seriously injured. The injured parties and the estate of the decedent filed suits against the entity that owns the convenience store and the State, which owns the highway and the land on which the store's driveway entrances are situated, alleging a number of claims sounding in negligence.

The court held that the commercial landowner who operates the convenience store did not owe a duty of care to plaintiffs to prevent drivers on the adjoining State highway from making an illegal left turn into the store's parking lot entrances. In addition, the court declined plaintiffs' invitation to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed by driving over two sets of solid yellow lines to cross two lanes of opposing traffic on a highway with a fifty-five-mile-per-hour speed limit to enter a store parking lot. The court noted a nearby jug handle provided westbound drivers a safe alternative to access the store's parking lot through an intersection controlled by a traffic light.

The court also concluded the State is entitled to immunity for all claims asserted against it under three provisions of the Tort Claims Act: (1) law enforcement immunity, N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations with respect to the design of the parking lot driveway entrances; (2) licensing immunity, N.J.S.A. 59:2-5, for any permitting decision, or alleged absence thereof, related to the construction and maintenance of the driveway entrances; and (3) inspection immunity, N.J.S.A. 59:2-6, for any alleged failure to inspect the driveway entrances during two highway improvement projects after their construction. In addition, the court found the statutory exception to immunity for dangerous conditions of public property did not apply because the driveway entrances, which were in the State's right-of-way, were not dangerous conditions and use of the driveway entrances with due care did not create a reasonably foreseeable risk of the injuries suffered by plaintiffs, which were caused by the illegal activity of the drivers who struck their motorcycles.

The Municipal Vacancy Law, N.J.S.A. 40A:16-1 to -23 (the Vacancy Law), sets out the procedure for filling vacancies in the office of mayor and members of a municipal council. Here, when a vacancy was created in a ward council seat, the remaining members of the city council resolved pursuant to N.J.S.A. 40A:16-5(b) not to fill the vacancy on an interim basis. The local party committee, however, relying on N.J.S.A. 40A:16-11, forwarded three nominees to the council, which refused to appoint any of them and retained the vacancy.

Plaintiffs, the nominee of the party committee and the committee, filed a complaint seeking to seat the nominee as ward councilperson and also alleging the council's refusal to seat the nominee violated the New Jersey Civil Rights Act (NJCRA). The trial judge found in plaintiffs' favor, ordered the nominee seated as ward council person, found a violation of the NJCRA, and awarded counsel fees and costs to plaintiffs.

The court reversed, construing the Vacancy Law as initially enacted in 1979, along with later amendments in 1980 and 1990, as providing the governing body with discretion to fill the vacancy on an interim basis or leave the seat vacant until the next general election.

Effective February 1, 2021, the Legislature abolished "medical parole." Instead, the Legislature empowered the courts to grant certain inmates "compassionate release" based on the "medical parole" criteria. To petition for compassionate release, an inmate must present a valid "Certificate of Eligibility for Compassionate Release" from the Department of Corrections, attesting that the inmate suffers from a terminal disease (meaning that the inmate will die within six months) or a permanent physical incapacity (meaning that the inmate is "permanently unable to perform activities of basic daily living", needs "24-hour care," and has a condition that "did not exist at the time of sentencing").

Because F.E.D.'s Certificate of Eligibility was invalid, the court affirms the trial court's denial of his petition. The two requisite medical diagnoses on which the certificate relied did not conclude that F.E.D. was terminally ill or unable to perform activities of basic daily living.

In State v. Hester, 233 N.J. 381 (2018), the Supreme Court held a 2014 amendment to N.J.S.A. 2C:43-6.4(d) that enhanced the penal consequences of a conviction for violating the conditions of community supervision for life (CSL), including by increasing the degree of the crime from a fourth-degree offense to a third-degree offense, constitutes an unconstitutional ex post facto law as applied to individuals who violate the conditions of CSL following the amendment's effective date. In this appeal, the court holds that under the savings statute, N.J.S.A. 1:1-15, an individual who violates the conditions of CSL following the 2014 amendment may be charged with, and convicted of, the fourth-degree offense extant under N.J.S.A. 2C:43-6.4(d) when he or she was sentenced to CSL.

A jury found defendant Andrew Howard-French guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a). The offenses arose from the death of a twenty-three-month-old child who was under defendant's care.

The court holds the trial judge did not abuse his discretion in admitting: defendant's prior bad acts in accordance with N.J.R.E. 404(b)(2); the treating physician's testimony regarding the child's injuries; a non-sanitized statement by an investigating detective accusing defendant of lying during an interrogation of defendant; and the State's forensic pathology expert's testimony regarding the child's cause of death in accordance with N.J.R.E. 705. Defendant's arguments that trial counsel's failure to object to the testimony by the treating physician, the detective, and the expert, lack merit. The admission of the testimony was not plain error clearly capable of producing an unjust result.

The court holds that the trial judge did not err in using the word "flight" in the jury charges as was it taken verbatim from the Model Jury Charges (Criminal), "Endangering Injured Victim (N.J.S.A. 2C:12.12)" (rev. Mar. 14, 2016). The court also concludes the trial judge did not err in failing to sua sponte instruct the jury on the affirmative defense of summoning medical treatment under N.J.S.A. 2C:12-1.2(c) because there was no evidence supporting the charge and, to the contrary, there was sufficient evidence that defendant endangered the injured child by leaving him in defendant's apartment with no other adult present.

Finally, even though the court normally does not entertain ineffective assistance of counsel claims on direct appeal, we address and dismiss defendant's claims because they relate to counsel's failure to object to evidence, which as noted, was properly admitted.

The court holds that a parent's status as a recreational marijuana user cannot suffice as the sole or primary reason to terminate that parent's rights under Title 30, unless the Division of Child Protection and Permanency proves with competent, case-specific evidence that the marijuana usage endangers the child or children.

This approach aligns with existing Title 30 case law, the recently adopted constitutional amendment partially decriminalizing non-medicinal marijuana usage, N.J. Const. art. IV, § 7, ¶ 13, and related implementing statutes, as well as child welfare cases from other states.

In this case, the parents each admitted they had used marijuana on several occasions while caring for their preschool child, and the Division presented unrebutted expert testimony explaining the risks of harm associated with that conduct. Beyond that, the trial judge had substantial other evidence to further support his finding that all four prongs for termination under N.J.S.A. 30:4C-15.1(a) had been proven by clear and convincing evidence. Hence, the judgment is affirmed.

Plaintiff Palisades Insurance Company appeals from a February 28, 2020 order granting defendant Horizon Blue Cross Blue Shield of New Jersey's motion for summary judgment and dismissing its complaint with prejudice. Plaintiff is an automobile insurance company that provides mandatory personal injury protection (PIP) benefits for medical expenses arising out of injuries sustained during car accidents. Pursuant to N.J.S.A. 39:6A-4.3(d), plaintiff allows its customers to designate their health insurer as primary for payment of car-accident-injury-related expenses, which election results in a premium reduction. The insureds named in plaintiff's complaint each elected to have defendant act as the primary payor. Despite the designation, plaintiff received and paid the claims, before they were properly submitted to defendant. On appeal, plaintiff asserts that it has a right to be reimbursed for the medical expenses it voluntarily paid under a theory of subrogation.

After reviewing the provisions of the New Jersey Automobile Reparations Reform Act (No-Fault Act), N.J.S.A. 39:6A-1 to -35, the Coordination of Benefits scheme (COB), N.J.A.C. 11:3-37.1 to -37.14, and case law, the court concluded that no cause of action for subrogation exists to allow a PIP carrier to pursue reimbursement from a health insurer for claims mistakenly paid out of turn. Plaintiff's remedies are to deny the claim upon receipt, recover payments from the medical providers, request that the insureds submit their claims to defendant and pursue an appeal if coverage is denied, or obtain an assignment of rights and pursue the appeals on the insureds' behalf. In addition, when a health carrier is exempt from providing benefits, the COB regulations allow the PIP carrier to recoup the amount of the reduced premium from its insured. None of these remedies were pursued by plaintiff in this case.

The court also concluded that further discovery would be futile, as the sought-after information is not capable of overcoming the legal obstacle faced by defendants: the absence of a legal right of subrogation to recoup payments mistakenly made out of turn.

In these back-to-back appeals, defendant challenged numerous complaint-summonses issued in municipal court by the Jersey City Department of Housing, Economic Development and Commerce for municipal violations involving rental properties owned by various limited liability companies (LLCs) of which defendant was a member. In one appeal, defendant challenged an interlocutory order denying his motion to dismiss twenty-five complaint-summonses issued to him individually and granting the State's cross-motion to amend the complaints to name the LLC that was the record owner instead of him. In the other appeal, defendant challenged the order finding the LLC that was the record owner of the property guilty of violating a municipal ordinance following a trial de novo in the Law Division notwithstanding the fact that the LLC made no appearance through counsel and neither the municipal court nor the trial court inquired on the record to ascertain whether there was a knowing and voluntary waiver before proceeding with the trial.

The court reversed and remanded for entry of an order of dismissal without prejudice of the twenty-five complaint-summonses because they were issued to the wrong defendant and therefore fatally defective and both the municipal court and trial court erroneously relied on a Part IV rule governing civil practice to grant the State's cross-motion to amend. The court also reversed the finding of guilt of the LLC and remanded for a new trial because the absence of an appearance through counsel or a clear waiver of such in a quasi-criminal municipal court prosecution constitutes a violation of constitutional dimension requiring reversal.

The court addresses two Criminal Justice Reform Act provisions affecting a detained defendant's speedy trial rights.

First, the Act requires a defendant's release (subject to exceptions and conditions) if trial does not commence after detention of 180 days (not counting excludable time), but the Act directs a court to extend that period upon the return of a superseding indictment. N.J.S.A. 2A:162-22(a)(2)(b)(ii). Here, the trial judge mistakenly added another 180 days to defendant's detention, without considering the differences between the two indictments, and if the prosecutor could have obtained the superseding indictment sooner, as Rule 3:25-4(f) requires. Those two factors require a court to weigh the State's need for an extension against the unfairness to a defendant of granting one. Here, the prosecutor announced nineteen days after the superseding indictment's return that she was ready to proceed to trial. Therefore, an extension beyond nineteen days was unwarranted, because the State did not need more than that to prepare for trial.

Second, the Act requires a defendant's release (subject to conditions) after two years of detention (not counting excludable time attributable only to the defendant) if the prosecutor is not ready to proceed to trial. N.J.S.A. 2A:162-22(a)(2)(a); R. 3:25-4(d). Before the two years elapsed, the prosecutor announced she was ready to proceed to trial and a trial date was set. Then, the Supreme Court suspended criminal jury trials because of COVID-19. Defendant sought release after the two years elapsed during the shutdown, contending the prosecutor could not be ready if the court was not. The trial judge denied release and the court affirms. The two-year limit is measured by the prosecutor's readiness, not the trial court's. Defendant was not entitled to release under the "two-year clock" although, because of the pandemic, no court could conduct the trial the prosecutor was ready to try.

In this appeal the court held that defendant's Fifth Amendment right to counsel was violated during a stationhouse interrogation, reversing the trial court order denying defendant's suppression motion. Detectives at the outset of the interrogation advised defendant of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). During the interrogation, defendant made several references to her need to speak with an attorney. The court held that defendant's statement, "[t]hat's why I feel I might need a lawyer," was sufficient to invoke her right to counsel. A detective then commented, "[w]ell, I mean that's a decision you need to make. . . . But if you didn't do anything [wrong], you certainly don't need to have [an attorney]." Defendant immediately responded that she felt she had not done anything wrong and elected to continue with the interrogation. She eventually made an inculpatory admission.

The court ruled the detective's brief, spontaneous comment undercut the Miranda warnings and impermissibly burdened the Fifth Amendment right to counsel. By suggesting in effect that innocent persons do not need an attorney, the detective implied that a request to terminate the interrogation to speak with counsel would evince a consciousness of guilt, thereby discouraging the assertion of the right to counsel. The court emphasized the State bears the burden to show scrupulous compliance with Miranda, adding that there is no "good faith" exception to the Miranda rule. Rather, the court held, a Miranda violation such as the one that occurred in this case triggers the exclusionary rule whether it was intentional or inadvertent.

In this appeal, we reject the claims of appellants who argued that Governor Murphy lacked the authority to issue Executive Order 128 (EO 128), which permitted New Jersey residential tenants to use their security deposits to pay rent. We conclude the Governor was authorized to enact EO 128 pursuant to emergency powers the Legislature delegated to the Governor under the New Jersey Civil Defense and Disaster Control Act, N.J.S.A. App. A:9-30 to -63. We further conclude that EO 128 does not violate appellants' rights under the New Jersey Constitution.