Walters v. YMCA, ___ N.J. Super. ___ (App. Div. 2014).  This decision by Judge Fuentes, issued today, reverses a grant of summary judgment in favor of the YMCA in what Judge Fuentes called a “garden variety slip and fall case.”  Plaintiff had slipped on a step and fallen while walking to use the YMCA’s indoor pool.  He asserted that the stair tread had been negligently maintained.  Relying on a broad “hold harmless” provision in plaintiff’s membership agreement, which stated that the YMCA “will not be responsible for any personal injuries or losses sustained by me while on YMWCA premises or as a result of a YMWCA sponsored activities [sic],” the YMCA obtained summary judgment in the Law Division.  That court believed that the Supreme Court’s opinion in Stelluti v. Casapenn Enterprises, Inc., 203 N.J. 286 (2010), controlled the case.  Stelluti, however, upheld a hold harmless on facts that involved an injury from “inherently risky,” strenuous activities at a health club.  Here, in contrast, plaintiff’s injury from the allegedly negligently maintained step “was not caused by or related to an inherently risky physical fitness activity,” but “could have occurred in any business setting.”  Judge Fuentes concluded that the hold harmless in this case was unenforceable as against public policy, since it allowed the YMCA to ”shield itself from all civil liability, based on a one-sided contractual arrangement that offers no countervailing or redeeming societal value.”  Accordingly, the panel reversed the summary judgment in favor of the YMCA. read more

Dwyer v. Cappell, ___ F.3d ___ (3d Cir. 2014).  Andrew Dwyer is a lawyer who handles plaintiffs’ employment law litigation.  Evidently, some judges have said favorable things about him in opinions that awarded him fees under the New Jersey Law Against Discrimination, which provides for fee-shifting in favor of successful plaintiffs.  Dwyer posted some of those positive comments on his law firm’s website.  One of those judges learned that his comment about Dwyer had been posted and asked that it be taken down.  The judge was concerned that his remark might be seen as a “blanket endorsement” of Dwyer by the judge.  Dwyer declined to remove the quote from the website. read more

This is another guest post by my colleague at Lite DePalma Greenberg, LLC, Jeffrey A. Shooman: read more

In September 2013, the Morris County Bar Association presented a seminar titled “Building the Trial Record and Arguing it on Appeal.”  The panelists were Justice Patterson, Judges Sabatino, Stern, and Axelrad, and me.  The MCBA got such a favorable response to that presentation that they have invited back the same group of panelists for another program, titled “New Jersey Appellate Practice:  Tips From the Bench and Bar.”  That will take place on September 10, 2014 from 5:30-8:30 P.M. at the Westin Governor Morris in Morristown. A flyer for the seminar gives you all the details about registration.  If it were not enough of an enticement that you will hear from a sitting Supreme Court Justice, a sitting Appellate Division judge, and two retired Appellate Division judges, one of whom served temporarily on the Supreme Court, a cocktail hour and buffet dinner are also included.  read more

State v. Carreon, ___ N.J. Super. ___ (App. Div. 2014).  Courts often say that statutes are “inartfully drafted,” or the like.  This opinion that Judge Accurso issued today, however, goes further.  In addressing the penalty provisions of N.J.S.A. 39:3-10, which deals with driving without a license, Judge Accurso stated that the statute might be subject to two dramatically different interpretations, each of which she found “plainly reasonable.”  But Judge Accurso went on to say that the two interpretations “have an Escher-like quality in that viewing the statute from the perspective of one of them makes it hard to readily admit the plausibility of the other.”  (For the uninitiated, M.C. Escher was a Dutch graphic artist (1898-1972) who was famous for, among other things, drawings and other art that portrayed physically impossible structures that dizzied the viewer who tried to fathom them.  Some examples, and detail aobut Escher himself, can be found here).  read more

Chief Justice Rabner announced last Friday that Judge Mary Gibbons Whipple is being temporarily elevated to the Appellate Division.  She will serve on Part G from September 15 through November 23, 2014. read more

On August 8, 1989, the Supreme Court decided Decker v. Princeton Packet, 116 N.J. 418 (1989), one of the leading cases in New Jersey on defamation and infliction of emotional distress.  The Princeton Packet had published an obituary stating that Marcy Goldberg Decker had died suddenly at age 31.  The brief obituary included some other facts about Ms. Decker, all of which were true.  What was not true, however, was that she had died.  A few days later, in its next issue (the Packet appeared on Tuesday and Friday of each week, not daily), the Packet published a retraction, stating that “The Packet erroneously reported in Friday’s edition that Marcy Decker of Princeton died Feb. 11.  The obituary was false.  The Packet regrets the error and any inconvenience this may have caused Ms. Decker and her family.” read more

Borough of Merchantville v. Malik & Son, LLC, ___ N.J. ___ (2014).  In this eminent domain case, the Appellate Division held that, in taking a piece of property by condemnation, the Borough of Merchantville was obligated by the Eminent Domain Act, N.J.S.A. 20:3-1 to -50, to negotiate in good faith as to a purchase of that property only with the property’s record owner.  That opinion, written by Judge Axelrad and reported at 429 N.J. Super. 118 (App. Div. 2013), is discussed here.  The Appellate Division rejected the argument of a mortgage holder that had obtained a final judgment of foreclosure for that property that the Borough was obligated to negotiate in good faith with the mortgage holder.  The mortgage holder’s petition for certification was granted.  This morning, however, the Supreme Court affirmed the Appellate Division’s decision.  Judge Cuff wrote the Court’s unanimous opinion.  read more