Posted on Tue, May 07, 2013 @ 01:47 PM
A state appeals court on Monday vacated a $7.4 million judgment for a pedestrian hit by a driver who had been drinking at a pool party at an apartment complex.
The judges, in Lau v. Seabring Associates, A-3864-10, found the trial court had given erroneous charges to the jury on social host liability and respondeat superior.
Henry Lau, now 69, was walking his dog in the early morning on Dec. 27, 2006, when hit by drunken driver David Figueroa, who had been drinking during an after-hours pool party at the Excelsior, a Hackensack apartment complex owned by Seabring.
Figueroa's blood-alcohol concentration was .192 percent, far in excess of the legal limit of .08. He pleaded guilty to third-degree assault by auto and fourth-degree leaving the scene of an accident, and was sentenced to five years' probation and 180 hours of community service.
Lau, a cardiologist at Hackensack University Medical Center, broke both legs, his pelvis, back and several ribs. He was unable to return to work.
A Bergen County jury awarded Lau $5 million and his wife $350,000 per quod. It also awarded Lau $1.73 million, under a stipulation by the parties, for lost future wages, and the verdict was molded to include $365,000 for past and future medical expenses.
The jury apportioned 55 percent of liability to Seabring, 25 percent to Figueroa and 20 percent to Gabriel Ortiz, an Excelsior front-desk concierge who let the party-goers enter the building, left the door to the pool unlocked and permitted consumption of alcohol despite a no-drinking policy at the pool.
Figueroa settled for $15,000 before trial and Ortiz defaulted.
A judgment for the entire $7.4 million in damages, minus the $15,000 settlement paid by Figueroa, plus $1.2 million in pre-judgment interest, was entered against Seabring under the joint and several liability statute.
Seabring's 55 percent share, and its respondeat superior liability for Ortiz's 20 percent share, placed it over the 60 percent threshold for full liability under the statute, according to Lau's attorney.
On appeal, Seabring argued that Superior Court Judge Alexander Carver III wrongly submitted the questions of respondeat superior liability and social host liability to the jury and gave erroneous instructions on the issues.
In their per curiam decision, Appellate Division Judges Susan Reisner, Harris and Margaret Hayden said the factual picture was "insufficient to present the jury with a viable dispute regarding vicarious liability based on respondeat superior."
The decision by Ortiz, a member of the security staff, to admit trespassers was clearly outside the scope of his employment as it "directly undermined the security of the building that Ortiz was hired to provide," the panel said.
The judges further held the "record does not warrant the inclusion of a stand-alone charge on a social host theory of liability because Seabring was not a social host. It was an employer."
Figueroa was only 20 at the time of the party and liability for providing alcohol for people under 21 is governed by traditional negligence principles under common law, not social host liability, the panel said.
In addition, the pool party was not sponsored or condoned by Seabring, and there was no evidence it provided the alcohol, the panel said.
Seabring asked the appeals court to find that an accumulation of errors required a new trial on liability and allocation of fault.
Again the panel sided with the company, finding that Carver "improperly fused" respondeat superior and social host liability, and jurors were never asked to consider the differences between vicarious and primary liability.
The panel said it had "no confidence" that the jury properly evaluated the actors' liability and assigned appropriate percentages of fault.
"When viewed under the totality of the circumstances, the material surplusage of issues presented, the trial court's overlapping instructions, and the unnecessarily narrow-focused verdict summary form combined to create a misleading deliberative environment, fully capable of engendering an unjust result," it said.
The appeals court ordered a new trial on liability and apportionment of blame. But that is now moot as the plaintiff will receive $5 million under a high-low agreement with defendant Seabring Associates while the appeal was pending, according to his lawyer, Rosemarie Arnold, who heads a firm in Fort Lee.
Arnold says she disagrees with the ruling but her client would have prevailed if the case had been retried solely on a negligent supervision theory of liability against Seabring. "The evidence was in abundance that they negligently supervised" Ortiz, she says.
As for the high-low settlement, "no one likes to lose, but when the booby prize is north of $5 million, it's not that bad," she says.
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Posted on Mon, Apr 29, 2013 @ 12:02 PM
Defense lawyers say they expect to file more suppression motions as a result of a recent, favorable U.S. Supreme Court ruling on drunken driving.
The court, in Missouri v. McNeely, No. 11-1425, held on April 17 that as a general rule, police must obtain a search warrant or consent in order to extract blood from a driver to test for alcohol.
Previously, the fact that the passage of time would cause a drop in blood-alcohol levels was deemed a sufficient exigency to justify an exception to the Fourth Amendment warrant requirement for searches.
Under McNeely, however, the drop in levels may support an exigency finding in a particular case but does not do so categorically.
The issue must be decided case by case, based on the totality of the circumstances, including the evanescent nature of blood-alcohol levels and the resultant loss of evidence as time passes, the court said.
New Jersey courts have allowed police to require blood testing so long as it is not performed forcibly or against physical resistance.
Blood-alcohol levels are typically based on Alcotest breath samples, with police resorting to extraction of blood where the Alcotest cannot be used — for example, when the driver has been injured, has bad asthma or for some other reason cannot provide a sample.
DWI defense lawyers are grappling with questions raised by McNeely, including whether it will be applied retroactively, which the court did not address.
Jeffrey Gold of Cherry Hill, a past president of the State Bar Association's Municipal Court Practice Committee, says nothing in the case indicates it will not be retroactive.
It is not a new rule, just an interpretation of the warrant requirement, and thus, should be applied retroactively, in his view.
Gold estimates that 5 percent of his DWI cases involve blood tests, and he will move to suppress based on McNeely in all of them.
Hammonton solo Robert Pinizzotto says at any given time, he has one to five blood-draw cases.
He wonders whether the courts will allow only pipeline retroactivity, limited to pending charges, or complete retroactivity, which would allow DWI conviction challenges.
Another issue raised by McNeely is the warning police will likely have to give in seeking consent to a blood test, similar to when they seek consent to search a vehicle.
Pinizzotto also sees a potential impact on urine tests of drivers suspected of drug use, usually done without a warrant, by consent. If those drivers must also be warned, consent might be harder to come by, he thinks.
Defense lawyer Peter Lederman of Lomurro Davison Eastman & Munoz in Freehold points to additional aspects of McNeely he likes: the credence given to National Highway Traffic Safety Administration standards regarding sobriety, which New Jersey judges do not share, and language recognizing that the interest in preventing DWI does not trump the Fourth Amendment.
Jon-Henry Barr, head of the municipal prosecutors' association, calls the reaction to the ruling "much ado about nothing."
"I am confident that the New Jersey Attorney General's Office will issue some type of guidelines now to assure that consent is obtained in a proper way before blood is drawn," says Barr, who heads a firm in Clark.
"In the event a suspected drunk driver does not consent, there will be an appropriate procedure to quickly and probably telephonically obtain a warrant," he adds.
Within 24 hours of the McNeely holding, he received an email about the case from the Union County Prosecutor's Office — Barr is a prosecutor in two Union County municipalities, Clark and Kenilworth — stating that police should be advised that the need for a blood-test warrant will be evaluated on a totality-of-the-circumstances standard.
Barr, who says roughly 5 percent to 10 percent of DWIs he prosecutes involve blood tests, acknowledges that police have a problem due to McNeely and will need a consent form to draw blood with appropriate warning language and a procedure for obtaining a warrant if consent is not given.
In his experience, police are reluctant to obtain warrants because of the inconvenience. He says the process can be made easier by allowing telephonic warrants. Superior Court judges can already issue them and McNeely has increased the pressure to allow municipal courts to do so as well, he says.
The Supreme Court Municipal Court Practice Committee report released on Feb. 1 mentioned the possibility but held it for future consideration.
The committee said it did not want to contradict the report of the Supreme Court Special Committee on Telephonic and Electronic Search Warrants, which recommended against municipal judges issuing telephonic warrants.
But it also noted that the warrant committee report said if warrant requests increased to the point where Superior Court judges could not handle the volume, certain municipal judges might need to be enlisted.
More than 35,000 driving while intoxicated (DWI) cases were resolved in New Jersey from July 2011 through June 2012, the most recent fiscal year for which statistics are available.
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Posted on Sun, Apr 14, 2013 @ 10:55 AM
Warrantless Search Legal Where Suspect Answers Door With Joint
Smoking pot while answering one's front door, then tossing the evidence when seeing it's the police, creates probable cause to search under the plain-view and exigent-circumstances doctrines, the state Supreme Court says.
The justices reversed an Appellate Division ruling that suppressed drug evidence found in the warrantless search in State v. Walker, A-49-11.
They stressed it was the defendant's own guilty behavior that gave the police authority. "We do not suggest that, had no one come to the door, the mere smell of marijuana would have justified a forced entry into defendant's home," the court said.
Two Newark policemen came to Rashad Walker's Riverview Court apartment, part of a public housing complex, on a tip from a confidential informant that he was selling drugs. They could smell marijuana smoke. One officer was dressed in plain clothes in order to attempt to make a purchase. When Walker opened the door and saw the second officer's badge, he threw the joint into his living room and attempted to shut the door. The officers gained entry. In plain view, they found 22.4 grams of marijuana, 27 packets of heroin, 4.2 grams of cocaine, a scale and a razor.
After Essex County Superior Court Judge Stephen Bernstein denied his motion to suppress, Walker pleaded guilty to multiple drug offenses but preserved his right to appeal the motion denial. The Appellate Division reversed.
At the Supreme Court, the state relied heavily on the reliability of the informant, who had provided valuable tips on at least 10 prior occasions.
The court said that was not enough to justify a warrantless search, but Walker's actions were.
"Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant's apartment, subsequent events, created by defendant's own actions, established probable cause and exigent circumstances which justified an entry into defendant's apartment," wrote Judge Ariel Rodriguez for the court.
"Clearly, defendant must have been aware that the officers knew he was committing an offense," Rodriguez said. And once he threw the joint back into the living room and tried to shut the door, the officers "were compelled to act to prevent defendant from disposing of the marijuana cigarette, or eluding the officers."
Judge Mary Catherine Cuff did not participate in the otherwise unanimous decision.
Assistant Deputy Public Defender Amira Scurato, Walker's attorney on the appeal, says the ruling, being limited to its facts, "doesn't change the overall landscape regarding privacy in one's own house," she says.
New Jersey Law Journal 4/10/13
Posted on Wed, Mar 20, 2013 @ 03:06 PM
COURT TO DECIDE IF SEAT BELT LAPSE CAN SUPPORT A CRIMINAL CONVICTION
The New Jersey Supreme Court has agreed to decide whether violation of the 1984 law that made seat belt wearing mandatory can support a criminal conviction under another statute.
To be reviewed is an appeals court holding that not wearing a seat belt can be a predicate offense for N.J.S.A. 2C:40-18, which criminalizes "knowingly violat[ing] a law intended to protect the public health and safety" through reckless conduct that injures another.
That statute seems to have been invoked sparingly, if at all, since its 1997 enactment. There are no reported cases.
But in State v. Lenihan, A-4667-10, the Appellate Division found the statute's language gives no indication the Legislature would object to how it is being applied in this case, where the unbelted driver's passenger was killed.
On Aug. 10, 2007, Kirby Lenihan, then 18, lost control of her car on Route 519 in Hampton Township and crashed into a guard rail. She was seriously injured and her passenger, K.G., 16, was killed. Neither was wearing a seat belt.
Police found cans of aerosol dust remover and carpet deodorizer in the car and suspected Lenihan and K.G. were "huffing" — inhaling the propellants to get high. At the hospital, a sample of Lenihan's blood contained 1,1-Difluoroethane, a compound contained in the dust remover.
Police issued summonses charging Lenihan with her own, and K.G.'s failure to wear a seatbelt, driving while intoxicated and reckless driving.
A grand jury indicted Lenihan with second-degree vehicular homicide and second-degree violation of 2C:40-18.
Sussex County Superior Court Judge N. Peter Conforti denied her motion to dismiss the latter count.
Lenihan and the state then reached a plea agreement downgrading the charges to recklessly causing serious bodily injury and third-degree violation of a public safety law. She was sentenced to three years' probation and 180 days in jail.
The plea agreement reserved Lenihan's right to appeal the denial of her dismissal motion.
She argued on appeal, as she had to Conforti, that the 1984 Passenger Automobile Seat Belt Usage Act, N.J.S.A. 39:3-76.2f, was not intended to protect the "public health and safety" within the meaning of 2C:40-18.
But Judges Carmen Messano, John Kennedy and Michael Guadagno found that the seat belt law's legislative history showed otherwise.
Lenihan's lawyer, Gary Kraemer of Daggett, Kramer & Gjelsvik in Sparta, intends to argue that "public health and safety" refers to misconduct impacting a large number of people — such as an architect whose violation of construction codes causes a building collapse with multiple fatalities,.
Under the Appellate Division's interpretation, he says, anyone whose dog runs loose and bites a neighbor, thereby violating a local leash law, might come under criminal prosecution.
The state "grabs an unreasonably wide discretion for the prosecutor to be able to elevate all kinds of what would be very minor offenses into indictable offenses," Kraemer says.
First Assistant Sussex County Prosecutor Gregory Mueller, who prosecuted the case at the trial and appeals levels, says the case is significant for its potential to rein in unsafe behavior.
The Appellate Division ruling is a "real deterrent" for operators who drive recklessly with a minor who is not wearing a seatbelt," Mueller says.
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Posted on Thu, Mar 14, 2013 @ 08:30 AM
COURT IS ASKED TO ORDER STATE TO FIX ALCOTEST DATABASE BUGS
Defense lawyers have lodged another challenge to statewide use of the Alcotest in drunken driving cases, claiming the database of readings established in compliance with a Supreme Court directive is incomplete and corrupt. In motion papers filed Tuesday, Evan Levow of Cherry Hill and Matthew Reisig of Freehold want the Attorney General's Office to show cause why it should not be compelled to redesign the database, established last November. Discrepancies found in a review of data downloaded from a state website ranged from "confusion of data to sanitization of demonstrable error," the lawyers allege.
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Posted on Fri, Mar 08, 2013 @ 11:50 AM
REFUSAL WARNINGS ARE INADEQUATE, REVISION NEEDED, STATE BAR SAYS
The New Jersey State Bar Association is asking for a court-ordered rewrite of the warning police give to suspected drunken drivers about the consequences of refusing to take a breath test. The bar is amicus curiae in State v. O'Driscoll, A-7-12, a case at the state Supreme Court that could have broad implications for thousands of refusal convictions and pending appeals. In its brief filed Jan. 5, the bar says the current standard warning — issued by the Attorney General's Office on July 1 — fails to tell potential refusers that they face mandatory license suspensions, fines, installation of ignition lock devices and attendance at Intoxicated Driver Resource Centers.
For additional information regarding your Drunk Driving, DWI, or DUI questions, please call the office for your free consultation at 800-709-1131 or visit the website www.simonattorneys.com
Posted on Wed, Feb 06, 2013 @ 01:30 PM
BILL AUTHORIZING IGNITION LOCKS FOR FIRST-TIME DWI OFFENDERS ADVANCES
A Senate panel on Monday approved a bill that would make installation of ignition-lock devices, rather than license suspension, the main penalty in most drunken-driving cases. The Senate Judiciary Committee advanced the measure, S-2427, in a 12-0 vote, with one abstention. First-time offenders could continue driving with the mandated devices, which allow the vehicle to start if the operator produces a clean breath sample. Second or subsequent offenders would need a restricted-use license — only allowing work-related or other travel set by a judge — for at least the first year the lock is in place.
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Posted on Tue, Jan 08, 2013 @ 12:30 PM
COURT TO DECIDE IF DWIS COUNT AS PRIORS FOR BREATH-TEST REFUSERS
Nearly two years after the Supreme Court held that prior breath-test refusal convictions cannot be used to ramp up drunken driving penalties, it has agreed to decide if the opposite is true. The justices, in State v. Frye, A-30-12, granted certification on whether prior DWI offenses can be counted to sentence a defendant as a repeat offender on a refusal conviction. Appellate courts have answered yes in a string of decisions — including State v. Clapper, A-2338-11, decided Monday, three days after the grant of certification in Frye. And there are at least two similar cert petitions pending.
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Posted on Thu, Mar 22, 2012 @ 02:57 PM
A municipal judge who fed questions to the prosecutor during an ex parte chat in a drunken-driving case was publicly reprimanded on Feb. 24. The state Supreme Court agreed with the Advisory Committee on Judicial Conduct that Gregory McCloskey undermined confidence in the bench's independence and impartiality by showing a preference for the prosecution and should have disqualified himself. According to the ACJC presentment, McCloskey "directed" the prosecutor — outside the presence of defense counsel — to ask two questions of a witness that were "specifically central to the State's case and specifically critical to the defense theory."
NJLJ 2/28/2012
JUDGE IS REPRIMANDED FOR COACHING PROSECUTOR IN DRUNKEN-DRIVING TRIAL
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Posted on Mon, Feb 13, 2012 @ 12:25 PM
A state appeals court has set out guidelines for judges in dram shop cases where a tavern's defense is that an imbiber's high alcohol tolerance made his drunkenness too hard to detect. The ruling, in Davis v. Barkaszi, A-2345-10, means a new trial for a South Plainfield nightclub found liable for negligently served alcohol to a patron who later got into an accident, injuring his passenger. The defense should have been allowed to use non-expert testimony to counter the plaintiff's expert testimony that Barkaszi's tolerance was about the same as anyone else's, the panel said, citing Panko v. Grimes, 40 N.J. Super. 588 (1956), which held questions of tolerance are for a jury to decide.
EVIDENCE OF PATRON'S ALCOHOL TOLERANCE HELD RELEVANT TO DRAM SHOP LIABILITY
NJLJ 2/10/2012
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