Chavez v. Orange Board of Education, et. als., Docket Number ESX-L-451-17

Client: Orange Board of Education

Brief Attorney:  Jessica M. Anderson, Esq.

Plaintiff, a 17 year old senior at Orange High School, left school without permission in the early afternoon to go skateboarding and was injured when he hit a defect in the roadway.  Plaintiff’s claimed injuries included a skull fracture, cerebral hemorrhage which resulted in a crainiotomy and crainioplasty, memory loss, cognitive and neurologic dysfunction, and acute respiratory failure.

We filed a motion for summary judgment arguing that pursuant to Pico and Ogborne, Plaintiff cannot invoke liability under both dangerous condition liability pursuant to N.J.S.A. 59:4-2 and the ordinary negligence standard in N.J.S.A. 59:2-2.  We further argued that Plaintiff’s claim that Defendant allowed Plaintiff to leave school property is not viable because Defendant is immune for failure to enforce the law pursuant to N.J.S.A. 59:2-4, for its exercise of discretion when determining whether and how to apply resources pursuant to N.J.S.A. 59:2-3(d), for injury caused by an escaping person pursuant to N.J.S.A. 59:5-2(b)(2), and even if Defendant was not immune, Plaintiff could not prove the elements of a dangerous condition or negligence because Plaintiff was not exercising due care, Defendant did not have a duty or prevent Plaintiff from leaving school property because he was over the age of 16 and our compulsory education statute limits the age in which a child must attend school to the ages between six and sixteen, and no reasonable jury could conclude that Defendant’s alleged negligence proximately caused the accident.

Plaintiff agreed that dangerous condition liability pursuant to N.J.S.A. 59:4-2 applied, and not the ordinary negligence standard in N.J.S.A. 59:2-2.  However, Plaintiff argued that the immunities did not apply because he was not making an argument that Defendant failed to enforce the truancy laws, but rather was arguing that Defendant failed to adequately follow its own procedures and protocols – i.e. failing to notify Plaintiff’s parents that he was cutting school;  discretionary immunity did not apply because his liability expert outlined the duty imposed on Defendant; and that N.J.S.A. 59:5-2(b)(2) only applies to escaped prisoner or persons under police arrest or police custody.  Plaintiff further argued that the manner in which security was run at the school created a dangerous condition because students would cut class and leave school via the trailer area; Plaintiff’s failure to exercise due care is a question for the jury; and that Defendant proximately caused his accident because they knew students were cutting school by leaving through the trailer area and failed to stop them.

We filed a reply brief arguing that the immunities do apply because failing to enforce truancy laws or failing to notify Plaintiff’s parents that he was cutting school bears no material difference; the duty outlined by Plaintiff’s expert is immaterial as the court must first determined whether an immunity applies before engaging in a liability analysis; and that our courts have held that N.J.S.A. 59:5-2(b)(2) should receive a board interpretation in view of the clear legislative objective of immunity and as such has been applied to public entities beyond police departments.  See Tice v. Cramer, 254 N.J. Super. 641, 648 (App. Div. 1992).  Defendant further argued that Plaintiff has not asserted a viable theory because there is no indication that there was a physical defect in the trailers themselves, Levin v. County of Salem, 133 N.J. 35, 44 (1993); the term “due care” has been interpreted to mean objective, not subjective, due care and Plaintiff has failed to prove that element; and the exclusive proximate cause of this accident was Plaintiff’s poor decision to skateboard down a dangerously steep hill, without a helmet or any protective gear, even after being repeatedly warned by his friend not to, not the condition of the trailers.

The Court agreed with Defendant’s argument and granted summary judgment finding that discretionary immunity applied, that there wasn’t a physical defect in the trailers themselves, and that Defendant’s property was not a proximate cause of Plaintiff’s accident.


N.P., o/b/o M.B v. Oaklyn Borough Board of Education, (OAL DKT. NO. EDS 10187-18)

Client: Oaklyn Borough Board of Education

Venue: New Jersey State Office of Administrative Law

Brief Attorney: Robert A. Muccilli, Esq.

The parents of a special education student brought a due process petition against the Oaklyn Borough Board of Education seeking, among other things, compensatory education related to allegations that Oaklyn failed to implement certain elements of a Section 504 plan for the student.  Oaklyn made an application that the petition should be dismissed for failure of the parent to sufficiently set forth the facts and proposed remedy in the petition.  Oaklyn prevailed by obtaining an order from the Office of Administrative Law dismissing the petition for failure of the parent to sufficiently allow Oaklyn and the tribunal the ability to understand the nature of the dispute.


M.F. and W.W. o/b/o A.F. v. Collingswood Borough Board of Education, (OAL DKT. NO. EDS 13180-18)

Client: Collingswood Borough Board of Education

Venue: New Jersey State Office of Administrative Law

Brief Attorney: Robert A. Muccilli, Esq.

The parents of a special education student who transferred into the Collingswood School District brought an emergent relief application seeking an order that Collingswood maintain an out-of-district placement at the New Grange School which was the placement contained in an IEP developed by the student’s prior school district.  Collingwood opposed the placement at New Grange and proposed within 30 days of the student’s transfer an alternative placement located in-district.  The Collingswood School District prevailed in obtaining a decision from the Office of Administrative Law denying the parent’s application for emergent relief.


Heather Deitch v. Camden County Educational Services Commission, (OAL DKT. NO. EDU 11837-18)

Client: Camden County Educational Services Commission

Venue: New Jersey State Office of Administrative Law

Brief Attorney: Robert A. Muccilli, Esq.

Heather Deitch alleged that the Camden County Educational Services Commission violated her tenure and seniority rights when it chose not to interview and appoint her to a teacher/media specialist position that was the subject of a shared services agreement between the Commission and the Berlin Borough School District.  The Commission prevailed in obtaining a Commissioner of Education decision dismissing the petition of appeal against it.


Southampton Board of Education v. Southampton Township Education Association, (PERC DKT. NO. C-2018-269)

Client: Southampton Board of Education

Venue: State of New Jersey Public Employment Relations Commission

Brief Attorney: Robert A. Muccilli, Esq.

The Education Association charged that the Board of Education failed to negotiate regarding the scheduling of teacher work days prior to September 1, 2019 and failed to negotiate regarding the impact of establishment of a school calendar that called for teachers to report to work prior to September 1st. The Education Association sought interim restraints against the Board. The Southampton Board prevailed in obtaining an order from the Commission’s Designee denying the Association’s application for interim relief.


McNeil v. Township of Ewing et al.

Client: NIP Management Services, LLC,
Claims Administrator for the Garden State Municipal Joint Insurance Fund

Court:  Mercer County Superior Court

Trial Attorney:  Christopher J. Carlson, Esq.

Plaintiff brought a claim alleging a variety of very serious injuries to several parts of her body which she attributed to a minor motor vehicle accident where a police officer in the course of his employment lightly struck the rear of the vehicle in which Plaintiff was a passenger.  Similar bodily injury claims asserted on behalf of her two children were dismissed via a Motion for Summary Judgment relying upon the Tort Claims Act, but Plaintiff’s claim was permitted to proceed to trial.  Liability was accordingly stipulated, with the issue of damages to be decided by the jury.

After thorough cross-examination of Plaintiff which called into question her version of the accident and what allegedly happened to her body within the vehicle, and thus her credibility, the jury was shown vehicle “damage” photographs and heard the testimony of the vehicle owner, who acknowledged that the vehicle was never repaired after the accident.  Thereafter, the defense relied upon the report and testimony of an accident reconstructionist and a biomechanist, arguing that- contrary to her testimony- the minimal impact would not have subjected Plaintiff’s body to forces severe enough to cause her significant and permanent injury, which Plaintiff was required to prove in order to prevail under the Tort Claims Act, applicable to this matter given the status of Defendants as a municipal entity.

Thorough cross-examination of Plaintiff’s medical expert, combined with credible testimony from the defense medical expert, presented the jury with evidence that many of Plaintiff’s alleged injuries were at least to some extent pre-existing, and completed the presentation of a defense that comprehensively refuted each aspect of Plaintiff’s claim.

The jury accordingly returned a verdict for our clients, finding that Plaintiff’s alleged injuries attributable to the accident did not satisfy the Tort Claims Act.


Richard Marconi v. United Airlines, No. A-000110-18T4

Client: United Airlines

Trial Counsel: Prudence M. Higbee, Esq. 

The petitioner, a New Jersey resident who works for the respondent as an aircraft mechanic at the Philadelphia International Airport in Pennsylvania, filed two claim petitions. Claim Petition 2016-31488 alleges that on January 31, 2015 the petitioner injured his left hip while changing brakes, tires and helping a co-employee with an engine job. The respondent admitted this claim but alleged that it made full payment of benefits to petitioner under Pennsylvania workers’ compensation law. Claim Petition 2016-31489 alleges that petitioner’s repetitive duties as an aircraft mechanic working for respondent during the period commencing from January 1, 1986 through the present caused injury to his left hip. Respondent denied compensability of this claim leaving petitioner to his proofs.

Respondent filed a Motion to Dismiss both claims for Lack of Jurisdiction arguing that although petitioner is a New Jersey resident the injuries alleged in the Claim Petitions occurred in Pennsylvania where the contract of hire was also executed. Of note, the New Jersey’s Workers’ Compensation Act does not have an extra-territoriality jurisdiction provision and instead requires consideration of the particular facts of a case.

In finding for the respondent the trial judge noted six possible grounds for asserting applicability of a particular state’s compensation act: 1) place where the injury occurred; 2) place of making the contract; 3) place where the employment relation exists or is carried out; 4) place where the industry is localized; 5) place where the employee resides; or 6) place whose statutes the parties expressly adopted by contract.

The trial judge found that the petitioner’s contact with New Jersey in performing his job are not material in nature, nor is there any connection to the injury. Although the Newark, New Jersey Airport is a “hub” with vastly more mechanics than Philadelphia, the petitioner only called there for advice and at most “once every couple of months.” The petitioner could not recall ever working in the Newark, New Jersey airport and he never picked up any parts in Newark.

After reviewing those factors the trial judge ultimately noted that the alleged injuries occurred at the petitioner’s place of employment in Pennsylvania where the contract of hire was also signed. The Judge noted that the localization of the industry noted in prong four has never been found to confer jurisdiction on a respondent. After acknowledging a present dispute among the Appellate Division panels, the trial judge found that although the petitioner did reside within New Jersey that residency alone is insufficient in conferring jurisdiction. The petitioner has subsequently filed an appeal of the trial judge’s findings. That appeal is presently pending before the New Jersey Superior Court Appellate Division.



Emily Manuel v. St. Barnabas Health, No. A-000270-18

Client: St. Barnabas Health

Trial Counsel: Christina M. Adinolfi Shea, Esq. 

Capehart Scatchard recently prevailed at trial in the matter of Emily Manuel v. St. Barnabas.  In that case the court bifurcated the trial to first address whether the injury sustained by the petitioner was due to an accident that arose out of the course and scope of her employment at St. Barnabas.  The facts of the case were largely undisputed.  On the evening of December 30, 2015 the petitioner was employed by the respondent as an emergency room nurse.  The petitioner drove to work and parked at one of two adjacent lots across the street from the hospital where she worked.  The two lots were owned by a private company and hospital employees had money taken out of their paychecks for the privilege of parking in the private lots.  The petitioner chose to park in the lot and was provided a sticker to place on her vehicle.  The sticker was provided by the hospital.  There was a designated walkway and the lot had a sign posted indicating that parking was for hospital employees only.  The petitioner testified that the majority of nurses parked in the two lots and the company who owned the lots provided shuttles from the hospital to the lots.

On the evening in question, after completing her shift, the petitioner left the hospital, walked off the property towards the private lots and began to cross the street to the lots within a crosswalk when she was hit by an oncoming car.

A member of the security team testified on respondent’s behalf that approximately half of the employees used the lots in questions, however, other places employees could park included metered parking, a visitor’s lot and a light rail system that services the hospital.  He testified that the hospital leases spots in these lots directly from the parking lot owner with money being recouped out of the employees’ paychecks. He further testified that the hospital exercise no control over the lots and performed no maintenance or snow removal. Despite provisions in the contract concerning use of the lot by unauthorized vehicles and maintenance of the lot by the employer, the hospital never undertook any of these functions.  However, the petitioner contended the existence of these functions in the lease allowed the respondent to control the lots, but they chose not to do so.

The primary issue before the court was whether the facts set forth fall within the purview of the Supreme Court decision Hersh v. County of Morris, or if they are distinguishable. In Hersh the Supreme Court found that the garage used by employees was not part of the premises of the employer, and significantly, the employer did not control the garage.  It was neither owned nor maintained by the employer.  “The employer derived no direct business interest from paying for employees to park in the garage.  Most importantly, the accident occurred on a public street not under the control of the employer.  In walking a few blocks from the garage to her workplace, Hersh did not assume any special or additional hazard.”  The Hersh Court went on to state the following: When the legislature amended the Workers’ Compensation Act and added the phrase “excluding areas not under the control by the employer.” N.J.S.A. 34:5-36 intended to clarify that employers are liable for more than “just the four walls of an office or plant”, but the plain language of the act reveals it is not intended to expand the employer’s liability to publically owned areas not under direct control of the employer.

Applying the principles from Hersh the judge of compensation first concluded that the lot was not owned or maintained by the employer and although the lease agreement allowed the employer to exercise limited control of the parking garage, the garage owners actually exercised daily control and management of the garage. Second, the petitioner was injured on a public street not within the control of the respondent where the petitioner was directed not to cross.  Third, the respondent provided an alternate means to get to the garage, namely a shuttle bus, however, the petitioner chose not to use it, but to walk to the garage.

Based upon the aforementioned reasons the trial court found the injuries sustained by the petitioner did not arise out of or in the course of her employment with the respondent.  The petitioner has now filed an appeal of the trial judge’s decision. The appeal is presently pending before the New Jersey Superior Court’s Appellate Division.


Malone v. Pennsauken Board of Education, No. A-3181-16T1, 2018 N.J. Super. Unpub. LEXIS 1559 (App. Div. June 29, 2018)

Client: Pennsauken Board of Education

Appeal argued by: Adam M. Segal, Esq. 

In Malone v. Pennsauken Board of Education, A-3181-16T1 (App Div June 29, 2018), the Superior Court of New Jersey Appellate Division reversed the decision of a workers’ compensation judge finding compensability in an occupational exposure case.

Patrick Malone started working for the Pennsauken Board of Education in 2007 as a custodian. At trial he testified that he would sweep floors, take out the trash, clean the blackboards and desktops, remove gum and shoe marks from floors and clean toilets, floors and walls. He also testified that in the summer he would remove furniture and filing cabinets and put them in the hallway so that classrooms could be cleaned. He said he did a lot of kneeling, stooping, and squatting, but he never said how frequently he did any of these tasks. He had been doing this work for many years with other employers. By 2012 he began to experience constant pain in both knees and was diagnosed with osteoarthritis in both knees. He subsequently had both knees replaced.

Malone filed an occupational claim petition against the Pennsauken Board of Education, alleging that his work duties aggravated his preexisting but asymptomatic osteoarthritis, requiring bilateral knee replacements. The Board of Education denied the claim.

At trial, petitioner produced Dr. Ralph Cataldo, an anesthesiologist, as his expert. Dr. Cataldo said that he found objective findings consisting of surgical scars from the knee replacements and some swelling about both knees. He said that in his opinion the work duties aggravated petitioner’s preexisting osteoarthritis because petitioner was asymptomatic in 2007 and was symptomatic after performing work duties. He estimated 70% permanent partial disability in each leg.

Respondent produced Dr. Francis Meeteer, a family and occupational medicine physician, who testified that petitioner’s osteoarthritis condition was chronic, progressive and degenerative and due to the natural aging process, not to work.

The Judge of Compensation found Dr. Cataldo to be more credible and awarded petitioner 55% permanent partial disability credit 20% for prior disability plus one year of temporary disability benefits for the year petitioner was out of work because of his knees. The permanency award came to $109,214. Petitioner returned to work for the Board of Education.

Respondent appealed and argued that Dr. Cataldo’s opinion was a net opinion, meaning that he never provided any medical basis to support his opinion on causation. The Appellate Division agreed, noting that there was minimal evidence in this case.

“First, there was no evidence concerning how often and to what extent Malone engaged in the various physical activities about which he testified to perform his job duties. Simply to identify the tasks he performed and that they entailed “a lot” of kneeling, stooping, and squatting fails to impart any reliable information about how arduous and physically demanding Malone’s job actually was.”

The Appellate Court added that the medical evidence was also deficient. “Second, the only objective medical evidence Cataldo identified were the surgical scar and the swelling he found around each knee. Neither form of evidence indicates – and Cataldo did not explain – how Malone’s job duties aggravated the underlying osteoarthritic condition.”

The Court said that the record is devoid of the necessary objective medical evidence to establish a causal connection between Malone’s bilateral knee condition and his work duties.

For these reasons, the Appellate Division reversed the award and ruled in favor of the Board of Education. The Court did not remand the case for further findings.


Munch v. Atlantic Health System, No. A-1265-16T1, 2017 N.J. Super. Unpub. LEXIS 3153 (App. Div. December 21, 2017)

Client: Atlantic Health System

Appeal argued by: John W. Pszwaro, Esq. 

In Munch v. Atlantic Health System, A-1265-16T1 (App. Div. December 21, 2017) the Appellate Davison held that a Judge of Compensation cannot order a respondent to pay temporary disability benefits without the filing of a Motion for Temporary Benefits.

Petitioner, Dana Munch, worked as a paramedic for Atlantic Health System (AHS) and witnessed the death of a child during the course of her employment on October 12, 2014. She received authorized treatment and temporary disability benefits from November 14, 2014 to January 14, 2015. She then returned to work.

On June 18, 2015 petitioner had a hand injury at work and received temporary disability benefits from June 22, 2015 through April 21, 2016. During this period of time she began treating with Dr. Nayak, a psychologist, for a psychiatric reaction to the October 12, 2014 incident noted above. Dr. Nayak treated petitioner from January 2016 through June 2016.

A key fact in this case is that petitioner failed to return to work in June 2016 and was therefore terminated.

On August 16, 2016, petitioner filed a claim petition for psychiatric injuries related to the incident on October 12, 2014. AHS accepted the case as compensable. Petitioner did not request temporary disability benefits, nor did she file a motion for temporary disability benefits.

The first listing of the case occurred on November 2, 2016. Counsel for petitioner presented the Judge of Compensation with a report from Dr. Nayak, the psychologist, dated October 28, 2016. The doctor said that petitioner suffered from post traumatic stress disorder related to the October 12, 2014 incident. He added, “Ms. Munch has not been able to return to work for the duration of time that I have been treating her since January 18, 2016. Furthermore, I believe within a reasonable degree of probability based on my expertise as a clinical psychologist that in Ms. Munch’s current psychological state she will not be able to return to her old job as a paramedic at the present time.”

After reading this letter, the Judge of Compensation indicated that he was inclined to enter an order for payment of temporary disability benefits. Capehart Scatchard represented AHS and argued that there had been no motion filed and no request for temporary disability benefits from petitioner. Further, defense counsel argued that petitioner had no job and therefore no wage loss to replace. Moreover, counsel argued that Dr. Nayak failed to explain why petitioner was able to return to work after the October 12, 2014 incident up until June 2015 when she injured her hand but now could not work.

The Judge of Compensation allowed oral arguments on the issue of temporary disability benefits at the same first court listing but denied a request by AHS for a three week adjournment.   The Judge then entered an order for temporary disability benefits without requiring a motion for medical and temporary disability benefits to be filed. AHS appealed.

The Appellate Division reviewed the administrative rules that require a motion to be filed for an order to be entered for temporary disability benefits. The Court said, “Petitioner did not undertake any of the steps pursuant to N.J.A.C. 12:235-3.2 to support an award of temporary disability benefits. Thus, Atlantic had no opportunity to respond to or oppose an award of benefits.”

The Court added,

“The Workers’ Compensation judge did not afford Atlantic an opportunity to challenge the legal or factual basis for awarding benefits to petitioner despite Atlantic’s request for a brief adjournment to submit such opposition. Moreover, there were no depositions, sworn statement, or documentary evidence (other than Dr. Nayak’s letter) submitted in support of petitioner’s claim.”

The court then cited the basic principle in law regarding due process. “In accordance with due process principles, the opportunity to be heard, ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.’”  Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986).

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