Capehart Scatchard Welcomes New Family Law Associate

Capehart Scatchard is pleased to announce that Vania Fider, Esq. recently joined the Firm’s Family Law Department in its Mt. Laurel office.

Ms. Fider, a Mount Laurel resident, focuses her practice in all aspects of family law, including divorce, post judgment motions, custody and visitation, child support, alimony and simple adoption matters.

Ms. Fider received her law degree from Thomas M. Cooley Law School and her B.S. degree in Biology from the University of Tennessee at Chattanooga.  She is a member of the National Filipino American Lawyers Association, Asian Pacific American Lawyers Association of New Jersey and the Filipino American Association of Central New Jersey.  Ms. Fider is admitted to practice law in New Jersey, New York, Tennessee and Florida.

Public Entity Defeats Lawsuit Seeking Attorney’s Fees in OPRA Case

By:  Sanmathi (Sanu) Dev, Esq.

On April 24, 2017, the New Jersey Superior Court, Camden County, denied a plaintiff’s request for attorney’s fees under the Open Public Records Act (“OPRA”) in the case Grieco v. Borough of Haddon Heights. The Court determined that the public entity inadvertently omitted a record in response to the plaintiff’s OPRA request and that she made no attempt to cooperate with the agency to acquire the missing document prior to initiating a formal lawsuit.

Heather Grieco submitted an OPRA request to the Borough of Haddon Heights (“Borough”) seeking notices to newspapers for all council meetings from November 1, 2014 to April 1, 2015. Within the seven-day deadline imposed by OPRA, the Borough provided documents responsive to Grieco’s request, which included records relating to council meetings held in 2015. However, the Borough did not include proof of publication for the meetings held in 2014.

Two weeks after the Borough’s initial response, Ms. Grieco filed suit in the New Jersey Superior Court alleging violations of OPRA and seeking attorney’s fees. Upon receipt of the lawsuit, the Borough became aware for the first time that it had omitted one of the documents requested by Ms. Grieco. Within three days of learning of this omission, the Borough provided the missing document.

In OPRA cases, if the Court finds that the government entity violated the statute, then the requestor is generally considered a prevailing party entitled to attorney’s fees. The Court considers whether the lawsuit was a catalyst in causing the public body to comply with the law. In addition, the Court applies a fact-sensitive inquiry in evaluating the government agency’s reasonableness and motivations behind such conduct.

In this case, the Court determined that the Borough inadvertently omitted one responsive document to Ms. Grieco’s OPRA request and only became aware of the omission upon service of the lawsuit. The Court found it significant that almost immediately after the Borough discovered the error, it provided the missing document. Further, the Court determined that the Borough did not act with malice or ill will, as the error was caused by a change in personnel handling the response to the OPRA request. Specifically, the Borough employee who initially started processing the response transferred the task to another employee because the former employee suddenly needed to attend to a critically ill spouse.

Further, the Court considered that Ms. Grieco made no attempt to obtain the missing document from the Borough after receiving the initial records and instead resorted to litigation. The Court explained that the cooperative spirit of OPRA requires some sort of follow up communication by the requestor to the public entity to notify it of a mistake.

Fortunately for the Borough, its good faith efforts to comply with OPRA precluded the requestor from obtaining attorney’s fees through litigation.

City and Board of Education Found Immune from Liability for School Child Struck by Car Crossing Road Near School

Eight year old plaintiff Bryce Patrick was crossing the street on his way to his elementary school when he was struck by a car. He was a block away from his school when the accident occurred. In the published decision of Patrick v. City of Elizabeth, 2017 N.J. Super. LEXIS 53 (App. Div. April 24, 2017), his parents, as his guardians ad litem, sued for his injuries, contending that the area was a dangerous condition and, because it was near a school zone, it should have had additional signage to prevent this accident.

Plaintiff claimed in this lawsuit that there were other accidents at this intersection and that both of the defendants were negligent due to the inadequate signage to warn motorists of the presence of children. However, there was one sign “Watch for Children,” posted on the street where the cars were driving.

The City argued that the plaintiff failed to prove the area was a dangerous condition or that it had actual or constructive notice of any such condition, both requirements to prevail on a claim under the Tort Claims Act. Further, the City argued that it had immunity for the failure to provide ordinary traffic signs under the Act’s immunity provision, N.J.S.A. 59:4-5.

As for the Board of Education (“BOE”), it argued that it did not own, control, or maintain the roadway on which the incident occurred, nor was it responsible for the placement of traffic signs. The plaintiff contended that the BOE should be liable because it was responsible for school property and claimed that the BOE must ensure that the public road outside the school was likewise safe.

The trial court agreed with the defendants’ arguments and dismissed as to both defendants. This appeal ensued.

The Appellate Division pointed out that none of the prior accidents at this intersection revealed any similar accident reported in this area. Also, there was no evidence of prior complaints to the City as to this area, nor were there any proofs presented to conclude “that defendants were palpably unreasonable in not placing additional signage in the area around the school, apart from the children crossing sign that was further down the street closer to the school.” The Appellate Division ruled that the type of signage and where to place the signage was within the discretion of the City and it is immunized under N.J.S.A. 59:2-3(a)(immunity to public entities for the exercise of judgment or discretion vested in the entity.)

The Appellate Division also found that the City had immunity under N.J.S.A. 59:4-5, which provides that a public entity is not liable for an injury caused by the failure to provide ordinary traffic signs. The Court rejected the plaintiff’s argument that a sign near a school zone should be considered to be other than an “ordinary” traffic sign.

As for the BOE, while the plaintiff conceded that the BOE did not own, control, or maintain the roadway, the plaintiff nevertheless argued that the BOE had a duty to maintain the area in a safe and suitable condition for use so that the children traversing the area could do so safely. However, the Appellate Division pointed out that to impose liability under the Tort Claims Act, there must be ownership of public property. Because it is undisputed that the BOE did not own the roadway where the accident occurred, it cannot be held liable for property that is owned by another entity that contains an allegedly dangerous condition.

The Appellate Division also rejected the plaintiff’s argument that the BOE should be required to ensure that the City installed property school area signage. There were no proofs presented that the BOE was responsible to install signage and, regardless, the Court ruled that the BOE would be similarly immune under N.J.S.A. 59:4-5 for the failure to install an ordinary traffic sign.

Hence, the Appellate Division affirmed the trial court’s decision to dismiss as to both defendants.

Capehart Scatchard Partner Named Chair of the 1st Inaugural Gloucester County March of Dimes 5k Run for Babies

Capehart Scatchard is pleased to announce that Vincent T. Cieslik, Esq. has been named Chair of the 1st Inaugural March of Dimes 5K Run for Babies which will take place on Sunday, April 30, 2017 at 10:00 a.m. on the campus of Rowan University in Glassboro, New Jersey.  Mr. Cieslik has taken on the role to raise awareness and important funding to help babies born prematurely or with birth defects.

“Premature birth is the leading cause of newborn death in this country. As a community, that is simply unacceptable and it needs to change, and change needs to start now with our actions and our efforts,” said Cieslik.  This is a great chance to get out and run, to support a great cause like the March of Dimes, and to help give our babies a fighting chance!  The March of Dimes funds cutting edge technology at Intra-disciplinary research centers, including one located at the University of Pennsylvania.

Runners can register to run online at http://runforbabies.marchofdimes.org.  Online registration closes on April 26, 2017 but runners can register the day of the event.  Registration opens at 9 a.m. in the Football Stadium Parking Lot, Lot C at the corner of Carpenter and Bowe Boulevards.

Mr. Cieslik, a Gloucester Township New Jersey resident, handles high risk litigation for insured and self-insured companies, and represents individuals and companies in sophisticated real estate and banking matters.

Workers’ Compensation Attorney Addresses School Personnel Administrators

Capehart Scatchard Shareholder, Stephen T. Fannon, Esq., recently spoke in Trenton, New Jersey at a meeting of the New Jersey Association of School Personnel Administrators.

Mr. Fannon presented various workers’ compensation case scenarios to the audience to generate a discussion on the issues contained in the scenarios. Additionally, he gave an update on recent New Jersey workers’ compensation case law and offered suggestions on how to prevent workers’ compensation fraud.

Mr. Fannon, a Marlton resident and Executive Committee Member for the firm, has been with the firm for 37 years and concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation defense.

Capehart Scatchard Attorney Addresses HRA of Southern New Jersey

Capehart Scatchard Shareholder, John H. Geaney, Esq., spoke in Vineland, New Jersey at a recent meeting of the Human Resource Association of Southern New Jersey.

Mr. Geaney’s presentation was titled, “Cost Savings and Recent Cases in NJ Workers’ Comp and the Interaction Among Workers’ Comp, ADA and FMLA.”   In his presentation, Mr. Geaney addressed how to control workers’ comp costs and how workers’ comp claims can lead to ADA and FMLA lawsuits.

A seasoned workers’ compensation practitioner for over 30 years, Mr. Geaney, a Moorestown resident, is the author of Geaney’s New Jersey Workers’ Compensation Manual and A Guide to Employment Issues Under the ADA & FMLA distributed by the New Jersey Institute for Continuing Legal Education.  Mr. Geaney concentrates his practice in the representation of employers in workers’ compensation defense matters, the Americans with Disabilities Act, and the Family and Medical Leave Act.

Recent Win: Emenegilda Vargas vs. Costco

Client: Liberty Mutual and Costco

Trial attorney:  Ana-Eliza T. Bauersachs, Esq.
Brief attorney: Katherine H. Geist, Esq.

The petitioner filed a Motion for Medical and Temporary Disability Benefits in which she initially only sought treatment for the right shoulder.  Respondent initially opposed the motion as petitioner’s attorney failed to attach any medical documentation in support of the motion.  The petitioner then saw Dr. Becan who recommended treatment for not only the right shoulder but for the back as well.  Therefore, respondent scheduled a need for treatment examination with Dr. Yalamanchili to address the back (a report from Dr. Spagnuola addressing the right shoulder was previously secured.)

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Recent Win: Jessica Parmegiani vs. Cape May County

Client: County of Cape May and Inservco

Trial attorney:  Michael L. Bileci, Esq. 

In Claim Petition No. 2014-14853, petitioner, a CNA, alleged that occupational exposure due to constant and repetitive work from January 7, 2013 until February 14, 2014 caused injury to her lumbar spine.  Respondent denied this claim and petitioner filed a Motion for Medical Treatment.  Trial began before Judge French in Atlantic City with testimony of the petitioner who denied a prior history of lumbar complaints.  Subsequent to the petitioner’s testimony respondent secured prior accident records that included a positive MRI of the lumbar spine and pain management treatment records that included epidural steroid injections. This was directly contrary to what the petitioner claimed during her testimony.  Based upon the prior treatment records directly contradicting the petitioner’s testimony, the judge dismissed the Motion for Medical Treatment and the Claim Petition was subsequently dismissed.

Recent Win: Michael Certain v. Township of Woodbridge

Clients: Central Jersey JIF and Qual-Lynx

Trial attorney:  John Geaney, Esq.
Brief attorney:  Keith Nagy, Esq.

The petitioner sustained a compensable low back in jury on October 29, 2009 lifting garbage cans at work. He treated with Dr. Giordano who discharged petitioner in January 2010 with a final diagnosis of a sprain and strain superimposed on preexisting degenerative disc disease and disc space collapse at L5-S1.  Petitioner argued that the work injury objectively worsened his spine, leading to an MRI done in July 2010 and then three level fusion surgery in 2014.  Petitioner sought 40% partial permanent disability causally related to the work accident.

Trial commenced in this matter.  At trial, respondent proved that petitioner had a prior MRI in July 2009 which appeared to be related to pain while vacuuming in petitioner’s own home.  Respondent argued that the MRI of July 2009 was essentially the same as the MRI of July 2010, which was proof that there was no objective change between petitioner’s spine caused by the work injury of October 29, 2009.  Judge Robert D. Thuring dismissed the case and found petitioner was entitled to no compensation for his fusion surgery.

Recent Win: Jennifer Hernandez v. Hackensack Board of Education

Clients: Inservco/Hoboken Board of Education

Trial and brief attorney: Nicholas A. Dibble, Esq.

Jennifer Hernandez suffered a compensable ankle injury and received a month of authorized ankle treatment.  Thereafter she went to the authorized treating orthopedist and complained of right hip pain.  When right hip treatment was denied the petitioner filed a motion for medical and temporary benefits.  Respondent sent petitioner for a need for treatment evaluation with Dr. Wayne Colizza who diagnosed the petitioner with a torn labrum, but did not causally relate the need for treatment to the compensable work accident.  Instead, Dr. Colizza opined that a subsequent gym injury was the more likely cause of the petitioner’s need for right hip treatment.

Trial ensued in this matter before the Honorable John Gavejian in Hackensack.  Following the petitioner’s testimony, respondent offered the testimony of the nurse case manager to corroborate the findings of Dr. Colizza and the dearth of hip complaints in the authorized medical treatment records.   The nurse case manager testified to receiving a call from the petitioner several weeks after the accident.  During that conversation the petitioner told the nurse she was recently at the gym doing sit ups when she suddenly felt intense pain in her hip as she attempted to stand up from the floor.

Following the testimony of the nurse case manager, the petitioner offered the testimony of Dr. Fred Lee.  Dr. Lee testified that the petitioner initially injured her hip during the work accident and her symptoms subsequently progressed in the ensuing months.  He felt the petitioner would likely need surgery on the right hip.  Trial then continued with the testimony of respondent’s expert, Dr. Wayne Colizza, a board-certified, fellowship-trained orthopedist.  Dr. Colizza testified that the subsequent gym incident was the more likely cause of the petitioner’s condition.  Dr. Colizza felt that given the petitioner’s current complaints and her diagnosis of a torn hip labrum, if she had injured her hip in the original accident, the petitioner would have had immediate hip complaints.  Instead, there was no mention of the hip in any of the authorized treating records until after the subsequent gym accident. Dr. Colizza diagnosed the petitioner with a torn labrum and causally related the need for treatment to the subsequent accident that occurred at the gym while the petitioner was getting up off the floor from doing abdominal exercises.

After reviewing trial briefs from both sides Judge Gavejain dismissed the Motion for Medical and Temporary Benefits and found the petitioner was entitled to no treatment relative to her right hip.

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