 |
 |
 |
 |
 |
 |
 |
 |
 |
SUMMER 2004 ISSUE
NEW AND NOTEWORTHY * Joseph B. O'Toole, Jr. recently joined our firm as an associate. Mr. O'Toole has several years of experience as a defense trial attorney. He joins the firm's Defense and General Litigation groups. * Ralph Lamparello was a featured speaker at the 2004 Labor Law Forum co-sponsored by the Labor & Employment Law Section of the NJ State Bar Association and the Institute for Continuing Legal Education. This was the fifth annual forum for State of NJ attorneys addressing the latest developments in employment law. * At the March meeting of the Hudson-Bergen Inn of Transactional Counsel, Robert Kaye co-presented a program analyzing various aspects of a commercial lease. He also participated in mock lease negotiations. * Cindy Vogelman participated in a mock trial as part of Law Day activities on May 3, 2004, at the Brennan Courthouse in Jersey City. Ms. Vogelman represented the hypothetical defendant in a slip and fall case. The jurors consisted of high school students from Ferris High School in Jersey City, who returned a unanimous verdict in favor of Ms. Vogelmans's client. * On May 10, 2004, Tom Kobin, John Shahdanian and Ralph Lamparello participated in The Women's Fund of New Jersey's Annual Golf Outing held at Fox Hollow Country Club. Our firm has been a contributing sponsor of this event for the past several years. The Women's Fund of New Jersey is a non-profit organization that raises and distributes money to member groups dedicated to improving the lives of women by, among other things, working against violence and discrimination, rape crisis counseling and breast cancer education. * Ralph Lamparello appeared on Court TV on May 5, 2004, providing legal commentary in the matter of GA v. Turner, a murder case in which a wife is accused of poisoning her husband with anti-freeze. On March 18 and 31, and April 20, 2004, Mr. Lamparello also provided legal commentary in the matter of New Jersey v. Jayson Williams on the program Open Court. * On May 17, 2004, in honor of the 50th anniversary of the court ruling in Brown v. Board of Education, which ended segregation in public schools, Julien Neals spoke to students at Union City high schools, Union Hill and Emerson, about Brown and its impact 50 years later. * Joel Leyner, Peter Bariso and Ralph Lamparello attended and participated in the Annual Meeting of the New Jersey State Bar Association in Atlantic City, New Jersey on May 19th and 20th. Mr. Leyner was also a featured panelist in a seminar entitled "Settlement of Commercial Cases -- Papering the Deal." CASENOTESNJ Supreme Court Rules on Parental Immunity* John Mallon won a favorable ruling from the New Jersey Supreme Court, expanding the immunity of parents from liability for their children's conduct, even when the parents may be negligent in supervising their children. Mr. Mallon represented the Scalia family who was insured by New Jersey Manufacturers Insurance Company. This case arose when the Scalia's 5-year-old boy accidentally struck a 16-month-old girl while riding his bike at a block party. The injured girl and her father sued the boy and his parents (our clients). In a case of first impression, the Supreme Court extended parental immunity to claims by third parties. The court said that unless there is evidence that a parent acted "willfully, wantonly or recklessly," parents are immune from liability for their parental decision-making. * On March 9, 2004, Hudson County Superior Court Judge John A. McLaughlin dismissed plaintiff's complaint against the Township of North Bergen in the matter of Edward Scannavino v. Township of North Bergen, et al. Plaintiff claimed his constitutional rights were violated. The Court found the Township was not liable and the complaint failed to identify any factual allegations giving rise to a claim against North Bergen. John Shahdanian II, assisted by Amy DePaul, represented the Township of North Bergen. * On the first day of trial, in the Superior Court of New Jersey, Steven Menaker settled the negligence claim of an 85 year old client who was pushed and seriously injured by a fellow resident at an assisted living facility. The case was complicated by dementia of both the client and other resident and by their inability to testify. The settlement was for $675,000. The Hudson County Superior Court granted a Motion to suppress evidence seized without a warrant. Mitzy Galis-Menendez filed the Motion on behalf of a defendant charged with various weapons offenses, arguing the weapons were seized as a result of an unlawful motor vehicle stop and subsequent unlawful arrest which violated defendant's Fourth Amendment rights. * On April 28, 2004, Judge Lourdes Santiago of the Superior Court, Law Division, Hudson County, granted a Motion to dismiss a declaratory judgment action filed against the Township of North Bergen. The Court held that plaintiff, a developer, had failed to exhaust its administrative remedies before filing its lawsuit against the Township. Cindy Vogelman represented the Township. * Joel Leyner, assisted by Tom Morrone, settled a products liability case in April for $150,000 as trial was about to begin in the Superior Court of New Jersey, Monmouth County. Our client sustained a fractured ankle when she fell while demonstrating a "Bunny Hop" on her son's scooter. The handle disengaged when a retention button was inadvertently depressed due to a claimed defective design. * The Appellate Division recently dismissed an appeal filed by a Union City teacher against the Union City Board of Education. The teacher's complaint was dismissed for lack of merit following her dismissal for chronic and excessive absenteeism. The Court concluded that the respondent failed to show a meritorious defense and denied her motion to reconsider dismissal of her appeal. Mitzy Galis-Menendez represented the Board. * John Lago represented a driver insured by Allstate Insurance Company in an auto negligence case in a three day trial in Bergen County Superior Court. Plaintiff alleged he suffered a lumbar disc fracture and cervical herniations. The jury found plaintiff did not sustain a fracture or permanent injury and did not award damages. * Peter Bariso, Jr. successfully argued before the Superior Court of New Jersey, Appellate Division. In the matter of Knight v. Haas, plaintiff sustained disc herniations in the cervical and lumbar areas together with post-traumatic radiculopathy. The appellate court affirmed the trial court's determination that plaintiff's injuries did not have a sufficiently serious impact on her life to carry her claim over the verbal threshold. * Mitzy Galis-Menendez won an appeal on behalf of the County of Hudson in a bail forfeiture case recently. Ms. Galis-Menendez persuaded the trial court that a bonding company should forfeit 90% of its bond for failing to supervise a criminal defendant who failed to appear in court and was charged with various offenses while on bail. The Appellate Division agreed with the County and affirmed the forfeiture. DEVELOPMENT DITCHEDDevelopers bought 12 acres in a hilly, rural area, with plans to build homes on the property. Because surface water pooled on a large central part of the land after heavy rains, the owners channeled the excess water into a roadside ditch. The roadside ditch was connected to a series of waterways that eventually reached a river eight miles away. The developers' plan hit a major snag when they were sued by the United States Army Corps of Engineers. The Corps contended that the roadside ditch was a waterway of the United States that fell under the protection of the Clean Water Act and the jurisdiction of the Corps. With that premise, the developers first needed a permit from the Corps before digging the drainage ditch on their property. While the Corps exercises no control over isolated wetlands, it has jurisdiction over wetlands that are adjacent to navigable waters and their tributaries. In particular, the Clean Water Act requires a permit from the Corps for the discharge of fill material into waters that are in the Corps' jurisdiction. When the contractors piled the excavated dirt on each side of the 1,100 foot-long drainage ditch, this constituted the "discharge" of fill material into wetlands without a permit. A federal court took the side of the Corps in holding that a permit was required. First, the court deferred to the Corps' interpretation of the regulation under which the tract to be developed was regarded as having wetlands. Second, the adjacent roadside ditch was a tributary of navigable waters, even though water from the ditch flowed through several other nonnavigable watercourses before reaching the river and later the Chesapeake Bay. The court accepted the Corps' interpretation of "tributary" as encompassing all of the streams whose water eventually flows into navigable waters. The court required the developers to fill in the drainage ditch on their property and restore their wetlands to their pre-violation condition. It rejected the developers' argument that a more reasonable remedy would have been to allow the ditch to stay by removing the fill to a nonwetlands part of the property. Developers are well advised to carefully evaluate whether any existing ditches or drainage swales are linked to navigable water, however indirectly, before dredging or filling what might appear to be an isolated wetland beyond the jurisdiction of the United States Army Corps of Engineers. FAMILY AND MEDICAL LEAVE ACT UPDATEMargaret worked in a clerical position for a hospital. During the first three years of her employment, she was disciplined several times for unexcused absences, and she risked termination if her absenteeism continued. Then, Margaret slipped and fell while at work, fracturing her elbow and ankle and aggravating an existing wrist condition. Over the next 10-day period, she worked only one complete workday. Margaret missed parts of the remaining workdays because she had medical appointments, or was not feeling well, or both. The hospital, seeing these absences as the straw that broke the camel's back, fired Margaret for excessive absenteeism. Margaret sued her ex-employer, contending that her absences after her fall were protected leave under the federal Family and Medical Leave Act (FMLA). A federal court ruled that the hospital was free to fire Margaret without running afoul of the FMLA. The outcome in Margaret's case turned on a fine distinction about language in the FMLA and a regulation issued under it. The FMLA provides that an eligible employee can take up to 12 workweeks of leave during any 12-month period because of a "serious health condition" that makes the employee unable to perform the functions of the employee's job. After taking such leave, an employee must be reinstated to the position held before the leave. Part of the statute's definition of "serious health condition" is a condition that involves "continuing treatment by a health care provider." That phrase is not defined in the FMLA itself, but a Department of Labor regulation describes it as including "a period of incapacity . . . of more than three consecutive calendar days." Incapacity refers to the inability to work or perform other regular daily activities. Margaret argued to no avail that she had been incapacitated for more than three consecutive calendar days, and that she therefore had taken only protected leave for a "serious health condition." The problem was that she missed work for only a part of all but one of the days in question. The court reasoned that a "calendar day" is commonly understood to mean a whole day, from midnight to midnight. Thus, to be afforded protection under the FMLA, the period of incapacity must last for more than 3 whole days, that is, 72 consecutive hours. In addition to parsing the language from the regulation, the court ruled that the incapacity either extends for over 72 straight hours, or it does not. By contrast, under the interpretation argued for by Margaret, more issues would arise about how much incapacity on a given day is enough for that day to count toward the requirement in the regulation. The court was "loathe to adopt a strained interpretation of a regulatory provision that would result in employers, employees, and courts facing an uncertain and ever-shifting legal landscape." | ||||
