author: Seidman, J. A. D.

text:
    PATRICIA A. STEWARD, PLAINTIFF-APPELLANT, v. BOROUGH OF MAGNOLIA, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted April 21, 1975
    Decided May 28, 1975.

      Before Judges Leonard, Seidman and Bischoff.

      Messrs. Jubanyik, Jubanyik & Varbalow, attorneys for appellant (Mr. Richard J. Jubanyik, of counsel).

      Messrs. Webb and McDermott, attorneys for respondent (Mr. John P. Mc Gee, of counsel).
   The opinion of the court was delivered by

Seidman, J. A. D.

This is an appeal from an order granting summary judgment in favor of defendant municipality and dismissing plaintiff’s personal injury, negligence action.

The facts are essentially uncontroverted. Plaintiff’s husband, a part-time police officer employed by the Borough of Magnolia, was on duty March 12, 1913. He went home for dinner, as he was permitted to do, and was about to return to work when his wife called his attention to “something wrong” with his service revolver. As he withdrew the weapon from its holster it discharged, the bullet striking plaintiff in the face and causing a serious injury.

Plaintiff filed a complaint against the borough seeking damages for the injuries she sustained. She alleged that “[djefendant BOROUGH of MAGNOLIA was negligent in its trainings, instruction, supply of equipment and otherwise generally negligent in its own right, and further that it is subject to vicarious liability due to the negligence of the said Raymond J. Steward..” Defendant’s answer denied negligence, charged plaintiff with contributory negligence, and claimed immunity from liability by reason of the Tort Claims Act (N. J. 8. A. 59 :1-1 el seq.).

The trial judge held on the motion for summary judgment that since interspousal immunity existed, the municipality could not be liable under the Tort Claims Act. He did not deal in his oral opinion with the allegations of direct negligence on the part of the borough.

We should comment at the outset on the manner in which the trial judge’s apparent oversight with respect to the latter issue was brought to our attention. Plaintiff’s counsel “represented” in his brief that the trial judge met subsequently in chambers with both counsel and indicated that he intended to dismiss the allegations of direct negligence because the plaintiff failed to produce an affidavit from an expert in opposition to the defendant’s motion for summary judgment. While we have no reason to doubt the accuracy of the representation, which is not disputed by opposing counsel, reference should not be made to matters outside the record. The attorneys could have stipulated to what occurred after the determination of the motion. Or, preferably, the trial judge should have been requested to supplement his opinion for the record, either orally or in writing, in view of the requirement on a motion for summary judgment that the court find the facts and state its conclusions. B. 4:46-2.

Plaintiff contends on appeal that (1) she should not be barred from recovery because of the interspousal immunity concept, (2) the application of the doctrine violates the equal protection clause of the 14th Amendment, and (3) summary' judgment was erroneously entered on her direct negligence claim since the pleadings and interrogatories presented genuine issues of material fact.

The equal protection argument, advanced for the first time on appeal, is rejected. We are not bound to consider constitutional questions not raised below. Roberts Elec., Inc., v. Foundations & Excavations, Inc., 5 N. J. 426, 429 (1950); Mancuso v. Rothenberg, 67 N. J. Super. 248, 257 (App. Div. 1961).

As for the interspousal immunity issue, we are urged to “take the next step hinted at” in Immer v. Risko, 56 N. J. 482 (1970), and abolish immunity for negligently inflicted injuries in nonmotor vehicle situations. This is beyond our power.

We have seen in recent years a steady retreat from common law immunities from liability. In the area of personal torts arising out of the negligent operation of automobiles, the rule of interspousal immunity was abandoned in Immer v. Risko, supra, but the court left to future decisions the question of what other claims should be entertained 56 N. J. at 495. The current state of the law on the subject is thoroughly reviewed in Small v. Rockfeld, 66 N. J. 231 (1974). Speaking for the majority of the court, Justice Jacobs said therein, albeit as dictum, that

* * * [t]he reasoning and tenor of Justice Proctor’s opinion in. Immer leaves no room whatever for doubt that he, along with the colleagues who joined him, considered the interspousal immunity to have been effectively terminated in our State in situations, such as the one at hand, that are unconcerned with any marital relationship privilege or simple domestic negligence. [At 241]

Thus, despite the substantial erosion of interspousal immunity, there are clearly some areas in which the doctrine is still viable. Paraphrasing what was said in Pearce v. N. J. Highway Authority, 122 N. J. Super. 342, 345 (App. Div. 1973), it has not yet been declared dead, and we are not privileged “to administer the coup de grace.” Further reconsideration of the doctrine is a matter for the Supreme Court alone. Franco v. Davis, 51 N. J. 237, 238 (1968).

Plaintiff submits, however, that this case involves a situation that is unconcerned with a marital relationship privilege or simple domestic negligence, the two surviving' categories mentioned by Justice Jacobs. She seeks to differentiate the facts involved herein from the marital relationship privilege, ■which, she contends, encompasses the area of libel and slander, or from what she considers “household negligence,” as where a husband trips on a vacuum cleaner left by his wife on the stairs. We need not determine whether plaintiff correctly construes the cited passage in Small, supra, nor do we deem it necessary at this time to stake out the boundaries of what remains of interspousal immunity. This is so because, in our view, immunity, if it exists here, would not in any event bar per se the respondeat superior claim asserted against defendant municipality.

The law has long been settled in this State that immunity for a tort committed by one spouse against the person of the other does not extend to the tortfeasor’s employer, when the wrongful act is done in the course of the employer’s business. Hudson v. Gas Consumers’ Ass’n, 123 N. J. L. 252, 254-255 (E. & A. 1939). The right to sue the employer in such circumstances is an independent, primary right and not subordinate to or dependent upon the right to sue the employee. Id. at 254. See also Clement v. Atlantic Casualty Ins. Co., 13 N. J. 439, 445 (1953). The rationale appears in Hule v. Hule Motor Sales, 34 N. J. 537 (1961) :

* * * [A] husband’s negligent injury of his wife constitutes a wrong, and the barrier to an action by her against him is solely an immunity personal to him. This distinction between the existence of a wrong and the husband’s private immunity from suit was repeated in Koplik, supra. [Koplik v. C. P. Trucking Corp.] where the court said (27 N. J. [1] at p. 7) “our statute simply disables or incapacitates the spouse possessing the cause of action from suing the tortfeasor mate.” The employer, the Hudson opinion continued, is liable because “The master is liable for the servant’s act as though for his own,” citing the maxim, “He who acts through another acts by himself” (123 N. J. L., at pp. 254-255). Thus, the employer is directly chargeable as if he were the immediate actor and may not escape because his employee happened to be the husband of the victim. [at 539]

See also, Long v. Landy, 35 N. J. 44, 50 (1961); Radelicki v. Travis, 39 N. J. Super. 263, 265-266 (App. Div. 1956).

Nonetheless, defendant seemingly finds in the Tort Claims Act a legislative purpose to free public entities from vicarious tort liability in those situations where the employee is protected by interspousal immunity from the consequences of his tortious conduct. Particularly, defendant relies on N. J. 8. A. 59:2-2(b), which provides that

* * * [a] public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable. [Emphasis supplied]

The argument advanced is that this wording evinces an intent to limit, not to create, new areas of liability. We are exhorted to refrain from extending Immer so as “to create a cause of action that the Tort Claims Act expressly precludes." We disagree with defendant’s interpretation of the statute.

Subparagraph (a) of N. J. 8. A. 59:2-2 states that a public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under the circumstances. This sets forth the established doctrine of respondeat superior and specifically adopts the general concept of vicarious liability of governmental units expressed in McAndrew v. Mularchuk, 33 N. J. 172, 190-196 (1960). See Comment (1972) appended to N. J. 8. A. 59 :2-2. Since interspousal immunity did not theretofore inure to the benefit of the employer of a tortfeasor spouse, the above provision of the Tort Claims Act does not create a liability where one did not exist before, nor does such liability, as defendant contends, come about through an extension of Immer.

Defendant argues further, however, that irrespective of the foregoing, the public employee here is not liable for the injury to his wife; consequently, the borough is likewise not liable under subparagraph (b) of N. J. 8. A. 59:2-2. We disagree. We do not construe this portion of the statute to extend vicariously to the public entity the interspousal immunity of its employee.

N. J. 8. A. 59:2 — 2 should be read together with N. J. S. A. 59:3-1, which provides as follows:

a. Except as otherwise provided by this act, a public employee is liable for injury caused by his act or omission to the same extent as a private person.
b. The liability of a public employee established by this act is subject to any immunity of a public employee provided by law and is subject to any defenses that would be available to the public employee if he were a private person. [Emphasis supplied]

This section incorporates existing case law that public employees are generally liable for injury caused by their acts or omissions to the same extent as private persons, unless granted immunity. Florio v. Jersey City, 101 N. J. L. 535, 542 (E. & A. 1925); Kisielewski v. State, 68 N. J. Super. 258, 262 (App. Div. 1961), certif. den. 36 N. J. 144 (1961); Gilday v. Hauchwit, 91 N. J. Super. 233, 242 (App. Div. 1966), mod. 48 N. J. 557 (1967); Harris v. State, 118 N. J. Super. 384, 390 (App. Div. 1972); Logan v. No. Brunswick Tp., 129 N. J. Super. 105, 110 (App. Div. 1974). Immunity has been accorded where the public employee acts in a discretionary, rather than ministerial, fashion. Cashen v. Spann, 125 N. J. Super. 386, 401 (App. Div. 1973), mod. on other grounds, 66 N. J. 541 (1975). See also, Bedrock Foundations, Inc. v. Geo. H. Brewster & Son, Inc., 31 N. J. 124 (1959). The Tort Claims Act lists the various types of discretionary activities for which a public employee is not liable (N. J. S. A. 59:3-2), and also immunizes such employee from the consequences of other specified acts or conduct : e. g., acting in good faith in the execution or enforcement of any law (N. J. S. A. 59:3-3); acting under the apparent authority of an invalid law (N. J. 8. A. 59:3-4); failing to inspect or negligently inspecting property (N. J. S. A. 59:3-7). See also, N. J. S. A. 59:4^-l et' seq.; 59:5-1 et seq., and 59:6-l et seq.

There is no doubt that the term “immunity” as used in N. J. 8. A. 59:3-l(b) relates only to those exemptions from liability for particular kinds of conduct or activities as were previously given to public employees by case law or as are now found in the Tort Claims Act. It clearly does not encompass any immunity available to the employee for a reason other than his public employment, such as an interfamilial relationship.

True, the liability of a public employee is also subject to any defenses that would be available to him if he were a private person. But, while we are aware of the statutory provision that a public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable, we do not understand this to mean that an employer can escape responsibility for the tortious act of its employee, done within the scope of his employment, merely because the injured person happens to be the spouse of the employee and is thus unable to pursue the cause of action she would have but for interspousal immunity. In the context of the Tort Claims Act we think the defenses referred to in N. J. 8. A. 59:3-l(b) are those that would also be available to the public entity with respect to its vicarious liability, such as, for example, contributory negligence, release and the statute of limitations.

To clothe the public entity vicariously with its employee’s purely personal immunity could lead to anomalous and incongruous results. Since, as we noted hereinabove, the Tort Claims Act explicitly imposes upon the public entity the same respondeat superior liability as if it were a private individual (subparagraph (a) of N. J. 8. A. 59:2-2), it should follow as a matter of course under existing law that the public entity may be sued where the injured person is the spouse of the public employee, even though the latter may not. Otherwise, subparagraph (b) would necessarily have to be construed as an exception to the preceding provision, and we find nothing in the statute or in any of the explanatory comments which supports that conclusion.

134 N.J.Super. — 21

Moreover, if this construction were to be adopted, the disfavored doctrine of interspousal immunity would expand to embrace public entities, a benefit not enjoyed by private employers. Thus, where a police patrol car knocks down and injures a pedestrian who happens to be the wife of the police officer driving the vehicle, she may sue the municipal employer (and also, of course, her husband). But where, as in this case, the officer’s revolver is discharged by reason of his alleged negligence, his injured wife may not sue the municipality simply because her husband is immune from suit. We cannot believe the Legislature intended that result.

We hold, therefore, that under the Tort Claims Act a public entity may be liable for injury resulting from an act or omission of its employee within the scope of the employment, notwithstanding that a suit against the employee may be barred by reason of interspousal immunity.

We turn next to the allegations of direct negligence against the borough which are detailed in plaintiffs answers to interrogatories propounded by defendant. She claims that the borough was negligent

* * * in allowing Raymond Steward to have a gun; failing to give Raymond Steward adequate training in the use and handling of firearms; failing to inspect the firearms; failing to supply Raymond Steward with a holster with a safety strap; failure to maintain a program of continuing inspections and the retraining of firearms and the use thereof; and in general with negligent lsic] and exposing members of the public (including Plaintiff) to a firearm in the hands of one inadequately trained and inadequately equipped.

Defendant contends that these allegations involve' matters of discretion for which the public entity has immunity; that there are no guidelines or standards for the training of police personnel in the use of firearms, and that the nature and extent of such training is left to the sound discretion of the municipality.

Our courts have universally regarded loaded firearms as dangerous instruments and have prescribed an elevated degree of-reasonable care and caution to be exercised in their use. Davis v. Hellwig, 21 N. J. 4-12, 415 (1956); Wimberly v. Paterson, 75 N. J. Super. 584, 596 (App. Div. 1962). See also, Ambrose v. Cyphers, 29 N. J. 138, 146 (1959). The mandatory duty of a public entity to give its police officers adequate training in the use of firearms is clearly stated in McAndrew v. Mularchuk, supra:

Municipal entities must take cognizance of tlie hazard of sidearms. That knowledge casts an obligation on them when they arm or sanction the arming of reserve patrolmen for active police duty. The obligation is to use care commensurate with the risk to see to it that such persons are adequately trained or experienced in the proper handling and use of the weapons they are to carry. If the official in general authority in the police department sends or permits a reserve officer to go out on police duty without such training or experience, his action is one of negligent commission — of active wrongdoing —, and if an injury results from an unjustified (see, State v. Williams, 29 N. J. 27 (1959)) or negligent shooting by that officer in the course of performance of his duty, which is chargeable to the lack of training or experience, the municipality is liable. [33 N. J. at 184]

The trial judge here made no findings of fact on this issue when he granted the motion for summary judgment,, although we are told one reason, at least, was plaintiff’s failure to produce an affidavit from an expert in opposition tc the motion.

It is fundamental that a motion for summary judgment should be granted only if the pleadings, depositions and admissions on file show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 73-75 (1954). The moving papers and pleadings are considered most favorably for the party opposing the motion and all doubts are resolved against the movant. Ruvolo v. American Cas Co., 39 N. J. 490, 499 (1963). It is the movant’s burden to exclude any reasonable doubt as to the existence of a genuine issue of material fact. United Advertising Corp. v. Metuchen, 35 N. J. 193, 196 (1961).

Our review of the record in the light of these principles satisfies us that summary judgment should not have been granted. The issue before us is not whether plaintiff can ultimately prevail; it is simply whether there are allegations in the answers to interrogatories which, if supported at trial by credible and competent evidence, would present jury issues as to defendant’s negligence. Defendant has not demonstrated that such a showing is impossible, nor that such proofs, if presented, would as a matter of law still not establish a cause of action Cf. Bonnett v. State, 126 N. J. Super. 239, 244-245 (App. Div. 1974). Snell v. Murray, 121 N. J. Super. 215 (App. Div. 1972), is distinguishable on its facts.

Reversed and remanded for a-plenary trial.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SUPERMARKETS OIL CO., INC., PETITIONER-RESPONDENT, v. TOWNSHIP OF MANALAPAN, RESPONDENT-APPELLANT. SUPERMARKETS OIL COMPANY, INC., PETITIONER-APPELLANT, v. TOWNSHIP OF FREEHOLD, RESPONDENT-RESPONDENT. SUPERMARKETS OIL CO., INC., PETITIONER-APPELLANT, v. TOWNSHIP OF MANALAPAN, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted May 20, 1975
    Decided June 3, 1975.

      Before Judges Harpery, Crahay and Wood.

      Mr. Marvin E. Schaefer, attorney for appellant-respondent Township of Manalapan.

      Messrs. Wilentz, Goldman & Spitzer, attorneys for respondent-appellant Supermarkets Oil Company, Inc. (Mr. Harold A. Kushin of counsel; Mr. Thomas L. Weisenbeck on the brief).

      Mr. John A. Kaye, attorney for respondent Township of Freehold (Mr. Duane O. Davison on the brief).
   Per Curiam.

Supermarkets Oil Co. is the owner of a tract of land with a total area of 1.89 acres, which is composed of three lots, lying partly in the Township, of Manalapan and partly in the Township of Freehold, both municipalities in Monmouth County. Upon the land there is a gasoline service station. Each municipality assessed and levied taxes for the year 1973 on part of the land and the improvements thereon. Supermarkets, contending that a significant portion of the land and improvements was thus subjected to double taxation, appealed to the Monmouth County Board of Taxation, which denied relief. Supermarkets then appealed to the Division of Tax Appeals from the assessments by both townships. The Division consolidated these appeals and, after a full hearing, entered judgment determining the location of the boundary line between the two municipalities upon the land in question, and thus the portion of the land and improvements to be assessed by each municipality, and determining the amount of such assessments. From this judgment three appeals were taken.

In A-3641-73 Manalapan seeks reversal of the judgment on the grounds that the Division lacked jurisdiction to d¿termine the boundary line between the municipalities and that its determination of the location of that line and the assessments consequent on that determination were erroneous.

In A-3761-73 Supermarkets asserts error in the assessment valuation of land determined to be taxable by Manalapan.

In A-3 745-73 Supermarkets contends that if the Division’s judgment in A-3641-73 should be reversed as a result of Manalapan’s appeal, then the judgment permitting Freehold to tax the same area should be reversed since real estate may not be taxed by more than one municipality.

We consolidate these appeals on our own motion and affirm the judgment of the Division of Tax Appeals substantially for the reasons expressed in the opinion of Judge Doherty. While we are not prepared to rule that the Division has legal authority to settle boundary disputes generally between municipalities, we agree with the Division that as a part of its obligation to determine the correctness of assessed valuations placed on real property by municipalities it necessarily has the power and the duty, in cases where more than one municipality seeks to assess the same premises, to determine what portion of the premises lies within each municipality and so may be assessed by it. The location of the municipal boundary on the land in question is thus a matter of fact which the Division may and must determine.

The judgment of the Division of Tax Appeals, having ample support in the evidence in the record, is accordingly affirmed.

      Indeed, Judge Doherty’s opinion concedes that the Division does not have such plenary authority. Our statutes provide for two possible methods of procedure for the resolution of municipal boundary disputes: either by action commenced by one of the disputing municipalities (N. J. S. A. 40:43-67) or by action instituted by the county board of chosen freeholders (N. J. 8. A. 40:18-14). Resolution of boundary disputes between private owners is governed by N. J. 8. A. 2A:28-1 et seq.


author: Rosenberg, J. S. C.

text:
    ERIC HOLLINGER, FRANK HOLLINGER, MONIKA HOLLINGER, HEIDE HOLLINGER, INFANTS BY THEIR GUARDIAN AD LITEM FRANK HOLLINGER, FRANK HOLLINGER, INDIVIDUALLY, AND GISELA HOLLINGER AND FRANK HOLLINGER, HER HUSBAND, PLAINTIFFS, v. SHOPPERS PARADISE OF NEW JERSEY, INC., JOHN WINDISH TRADING AS WINDISH PORK STORE, AND DUBUQUE PACKING COMPANY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 24, 1975
    Supplemental Opinion May 13, 1975,

      Mr. James D. Opfer, Jr. for plaintiffs (Messrs. Cohn & Lifland, attorneys).

      Mr. Thomas J. Osborne, Jr. for defendant Shoppers Paradise of Yew Jersey, Inc. (Messrs. Vaccaro, Osborne & Cur-ran, attorneys).

      Mr. Arnold L. Stadtmauer for defendant John Windish trading as Windish Pork Store (Messrs. Celentano & Stadtmauer, attorneys).

      Mr. Peter S. Fatuto for defendant Dubuque Packing Co.
   Rosenberg, J. S. C.

This matter involves various claims for damages suffered by plaintiffs when they allegedly contracted trichinosis from pork sold by defendant Shoppers Paradise of Yew Jersey, Inc. Trial was held on March 18 to 24, 1975. At the close of plaintiffs’ case Shoppers Paradise moved for involuntary dismissal of the claims against it under B. 4:37-2(b), upon which motion the court reserved decision. At the conclusion of its ease Shoppers Paradise renewed its application for involuntary dismissal and defendants Windish and Dubuque Packing Co. moved under B. 4:37-2(c) to dismiss the claims for contribution asserted against them by Shoppers Paradise. After argument all motions for dismissal were granted. An order of dismissal as to all defendants encompassing these rulings was entered on April 7, 1975. Plaintiffs appeal this order in a notice of appeal served April 28, 1975. This supplemental opinion is filed in response to that notice pursuant to B. 2:5-l(b) to aid the appellate court in its determinations.

The principal facts of this case do not appear to be in dispute. On October 9, 1971 Mrs. Hollinger purchased a raw pork roast, which was sliced into a quantity of pork chops, at the Shoppers Paradise store located at Route 46 in Fairfield, New Jersey. Some of these chops were prepared by Mrs. Hollinger and consumed by her, her husband and their four children on October 10, 1971. Within sometime thereafter (the precise period is unclear) all the family members experienced some muscle pain, nausea and diarrhea; in the case of Mrs. Hollinger the symptoms were aggravated and included chest pains, heavy perspiration, skin rash and swelling of various parts of the body. This led to her hospitalization, where it was determined that she suffered from a parasitic infection diagnosed as trichinosis. Both Mr. Hollinger and the children were tested for this condition, with the results indicating no trace of the disease in Mr. Hollinger but mild cases in the children; at present, with the exception of muscle pain in one of the children, there is no indication of either the symptoms of the illness or the presence of trichinae parasites in Mr. Hollinger or the children. Although her condition has improved, Mrs. Hollinger still complains of muscle aches, chest pains, headaches and a spotting of the skin. Blood tests indicate that she continues to suffer from trichinosis.

An understanding of the nature and characteristics of the disease is helpful in analyzing the issues raised in this case. Under Evid. B. 9(2) (e) the court takes judicial notice of facts contained in two United States Department of Agriculture (U.S.D.A.) publications: “Pacts About Trichinosis,” Agriculture Research Bulletin ARS 91-72 (April 1969), and “Trichinosis,” Leaflet Ho. 428, U.S.D.A. (revised September 1968). The disease is caused by parasitic worms called trichinae (Trichinella spiralis) and may infect humans eating raw or under-cooked pork in which the parasite is encysted. On ingestion of contaminated meat the parasites travel into the intestinal tract where they reproduce and move through the bloodstream to invade the voluntary muscles, growing and eventually becoming encysted therein. When the parasites reach the intestines they may cause upset stomach, vomiting, diarrhea and other symptoms of intestinal disorder. During the period of migration and encystment the host may have muscular pain, rising fever, headaches and prostration. When the larvae reach the muscles, swelling of the face and other parts of the body, sore eyes, hemorrhaging under the skin, sore throat, headache, fever and difficulty in breathing commonly are experienced. After encystment these symptoms gradually may disappear although, muscle stiffness can linger in severe cases. Most patients suffering from the disease recover with proper treatment.

Stringent control over the feeding of hogs and meat inspection procedures which assure that pork used in products customarily eaten without further cooking has been treated so as to kill trichinae have helped reduce the extent of the disease from an estimated incidence of about 16% of the population during the 1930’s and early 1940’s to approximately 4 to 5% in recent years. Despite these gains in disease control, there is no completely effective method for detecting trichinae in raw pork. As a result the U.S.D.A. does not require inspection of unprocessed meat sold for human consumption. However, it is a known scientific fact that heating raw pork above a temperature of 137° will destroy the parasite and render the meat safe to eat. Thorough cooking is the only means of insuring that raw pork is completely free of trichinae.

It is against this background that defendant’s motion for involuntary dismissal is considered. B. 4:37-2(b) provides that dismissal should be granted if “upon the facts and upon the law the plaintiff has shown no right to relief.” Although the court is bound to accept as true all evidence of the party opposing the motion and give him the benefit of all legitimate inferences to be deduced therefrom, Dolson v. Anastasia, 55 N. J. 2, 5 (1969), the fact remains that plaintiff must make out a sufficient case upon the law as well as the facts to get to the jury. As the following discussion indicates, it is the opinion of this court that the Hollingers have failed to establish their right to relief as a matter of law and the motion of Shoppers Paradise for dismissal therefore is properly granted.

The first three counts of the amended complaint reflect the grounds upon which plaintiffs seek to predicate liability. Count one appears to rely upon a theory of strict liability in tort, alleging that Shoppers Paradise is liable for damages resulting from the sale of impure and unwholesome meat; count two asserts that Shoppers Paradise breached warranties of fitness of the product sold; count three sounds in negligence and recites that the defendant carelessly put into the stream of commerce meat which caused plaintiffs injury. The single operative element underlying all these theories of recovery is that the defendant improperly sold a food product which resulted in plaintiffs’ illness.

Considering first the third count of the complaint, a review of the evidence indicates that plaintiffs have failed tó supply proof of negligence sufficient to overcome defendant’s motion. In contrast to recovery under a strict liability or breach of warranty theory, where it is unnecessary to prove acts of negligence on the part of the producer or seller of goods, Santor v. A. & M. Karagheusian, Inc., 44 N. J. 52, 66 (1965), recovery for negligence requires an affirmative showing that defendant deviated from accepted standards of conduct in its actions or failure to act. Sanzari v. Rosenfeld, 34 N. J. 128, 134 (1961); McKinley v. Slenderella Sys. of Camden, N. J., Inc., 63 N. J. Super. 571, 579 (App. Div. 1960). The record is bare of evidence which directly or by inference shows that Shoppers Paradise employees did anything which they should not have done or failed to do something which they should have done in handling the meat purchased by Mrs. Hollinger. Since there is no method for detecting the presence of trichinae in raw pork, failure to so detect the parasite cannot comprise chargeable negligence. Absent even a scintilla of evidence upon which a finding of negligence can be based, count three of the complaint should not reach the jury. R. 4:37-2(b); Dolson v. Anastasia, supra, 55 N. J. at 5.

It should be noted that Shoppers Paradise appears to be in technical violation of our criminal statutes in sale of the pork chops. N. J. S. A. 2A:108-1 provides: '

Any person who sells or offers or exposes for sale, the flesh of any animal that has died otherwise than by slaughter, or has been slaughtered while diseased, or any contagious or unwholesome flesh or sells or offers or exposes for sale unwholesome food, drink or liquor, is guilty of a misdemeanor.

Normally, violation of a penal statute may be adduced as evidence of negligence in a civil suit. Horbal v. McNeil, 66 N. J. 99, 103-104 (1974); Ellis v. Caprice, 96 N. J. Super. 539, 553 (App. Div. 1967), certif. den. 50 N. J. 409 (1967) ; Mattero v. Silverman, 71 N. J. Super. 1, 9 (App. Div. 1961), certif. den. 36 N. J. 305 (1962); Rizzolo v. Pub. Serv. Coord. Transport, 111 N. J. L. 107, 111 (E. & A. 1933). For this rale to apply in the instant case it is necessary to define raw trichinous pork as an “unwholesome food.” Although there are no reported cases construing the statute or defining its terms, a majority of jurisdictions hold that raw trichinous pork is not unwholesome within the meaning of pure food statutes. Zorger v. Hillman’s, 287 Ill. App. 357, 4 V. E. 2d 900 (App. Ct. 1936); Cheli v. Cudahy Bros. Co., 267 Mich. 690, 255 N. W. 414 (Sup. Ct. 1934); Dressier v. Merkel, Inc., 247 App. Div. 300, 284 N. Y. S. 697 (App. Div. 1936), aff'd 272 N. Y. 574, 4 N. E. 2d 744 (Ct. App. 1936); Schneider v. Suhrmann, 8 Utah 2d 35, 327 P. 2d 822 (Sup. Ct. 1958); cf. Leonardi v. A. Habermann Provision Co., 143 Ohio St. 623, 56 N. E. 2d 232 (Sup. Ct. 1944) ; see also Frumer & Friedman, Products Liability, § 24.04- (2) (c) (1974); Annotation, “Liability of manufacturer or seller for injury caused by food or food product sold,” 77 A. L. R. 2d 7, §§ 10(a), 28 (1961). This view recognizes the fact that raw pork is sold for eating only after proper cooking and that the potentially unwholesome condition is completely removed by such preparation; it takes into account both the protective intent of the statute and the unique character of raw pork. For this reason it is held that raw trichinous pork is not “unwholesome food” as the term is used in N. J. S. A. 2A:108-1. Shoppers Paradise thus did not sell “unwholesome food” and is not in violation of the statute.

Counts one and two pose more difficult problems. As noted above, recovery for neither strict liability nor breach of implied warranty of merchantability requires proof of negligence by the defendant. Liability is established if the evidence shows that the product was not reasonably fit for the ordinary purposes for which it was sold and such defect proximately caused injury to the ultimate consumer. Santor v. A. & M. Karagheusian, Inc., supra, 44 N. J. at 66-67; Corbin v. Camden Coca-Cola Bottling Co., 60 N. J. 425, 4-31 (1972); Scanlon v. General Motors Corp., 65 N. J. 582, 591 (1974). It seems clear that these principles are applicable to- the retail sale of food products. Simon v. Graham Bakery, 17 N. J. 525 (1955); Newmark v. Gimbel's Inc., 54 N. J. 585, 594 (1969); see also N. J. S. A. 12A:2-314(1); Sofman v. Denham Food Service, Inc., 37 N. J. 304 (1962). Thus, in the instant case, if plaintiffs show that the pork was not reasonably fit for eating when it was sold and that the defect therein caused their injuries, they may recover by reason of either breach of warranty or strict liability theories, which are considered together for purposes of analysis. Newmark v. Gimbel’s, Inc., supra, 54 N. J. at 595.

Two reasonable inferences which could be drawn from the sale of the pork chops to Mrs. Hollinger and the subsequent illness of her and her family are that the meat was unfit for consumption and that this unfitness proximately caused plaintiffs’ injuries. However, to infer that the product was unfit upon reviewing the consequences of its use is not to say that it was not reasonably fit at the time of sale for its ordinary and intended purpose. Raw pork is a unique product in that it may contain an inherent defect (trichinae) which is undetectable by the seller but curable through preparation by the consumer. The fact that there is a danger of illness as a consequence of eating uncooked or underdone pork is a matter of common knowledge which courts in other jurisdictions have recognized and of which this court takes notice. Evid. R. 9(2)(d); Silverman v. Swift & Co., 141 Conn. 450, 107 A. 2d 277 (Sup. Ct. Err. 1954); Meyer v. Greenwood., 125 Ind. App. 288, 124 N. E. 2d 870 (App. Ct. 1955); Adams v. Scheib, 408 Pa. 452, 184 A. 2d 700 (Sup. Ct. 1962). It follows that the ordinary and intended purpose for raw pork is consumption after proper cooking by the consumer and that if the chops in question were reasonably fit at the time of sale for such use Shoppers Paradise may avoid a finding of strict liability or breach of warranty.

On direct examination Mrs. Hollinger was asked how she cooked the pork chops served on October 10, 1971. Her testimony indicates the method and degree oí preparation:

Q. Now, will yon tell me exactly in what manner yon prepared the pork chops for that day. Explain exactly what you did on Sunday with regard to those pork chops * * *
A. * * * I salted, peppered them put garlic on. And I prepared them and I fried them in a cast-iron skillet * * * 1 had four pork chops at one time in the skillet which fitted on the bottom, and they were browned on one side. I turned them over, browned the other side for 15 minutes, 10 to 15 minutes approximately, each side. I took them out and then I browned the other three, did the same thing, browned them on both sides * * * in oil * * then I browned some diced onions. When they were brown, I added the pork chops back into the skillet and added water to cover the pork chops and put a cover on and boiled them for an hour and ten minutes.
* * >:** $$$$<#
Q. What kind of stove do you have?
A. Gas stove.
Q. Gas. How would you describe how the flame was on the stove that day?
A. It was medium.
Q. Was the water bubbling?
A. Yes, it was boiling.
Q. Did the water boil over?
A. No.
Q. Now, at the end of this hour and ten minute period, you say you took the — what did you say? At the end of the hour and ten minutes, what did you do with the pork chops?
A. I tested them first with the fork and they were very nice and tender, and I removed them from the heat and I served them.
Q. When you say you tested them with the fork, what did you do with the fork?
A. I stuck the fork in it and they were beautifully, perfectly cooked because I made pork chops many times before.
Q. When you say “beautifully, perfectly cooked” what was tbe color inside?
A. It was a gray, whatever, or browned. It was browned. It was brownish, whatever —
Q. Well, was there —
* * * * * * * *
A. Well, the pork chops fell apart. This is how soft they were. How can I — they were browned and I had gravy over it so they wore — the pork chops were brown from frying them and with the gravy — with the gravy over it, with the fried onions, so it makes it brownish.

It is apparent that if plaintiffs contracted trichinosis from the pork chops despite this seemingly thorough cooking, all the meat was not exposed to the minimum temperature of 137° E. necessary to destroy the trichinae. This necessarily leads to the question of whether the pork in fact was properly cooked by Mrs. Hollinger before consumption which, in turn, depends on how the term “properly cooked” is defined. A question of first impression in New Jersey, its resolution determines whether Shoppers Paradise might 'be held liable for sale of a product not reasonably fit for its ordinary and intended purpose.

Although our courts have not previously dealt with this problem, courts in other jurisdictions have considered situations similar to the one posed here. In Holt v. Mann, 294 Mass. 21, 200 N. E. 403 (Sup. Jud. Ct. 1936), plaintiff contracted trichinosis from eating ham. The court determined that whether the meat was properly cooked was a jury question and the standard to which the consumer should be held is one of “ordinary household cooking.” 294 Mass. at 24, 200 N. E. at 405. It went on to express its reasoning:

* * * It is true according to the evidence, that trichinae are killed by exposure to heat of one hundred thirty-seven degrees Fahrenheit. But in ordinary household cooking it is not easy to be sure that every part of a ham will be heated to so high a degree. It could have been found that the ham was cooked as thoroughly as could be expected in a family, but without killing trichinae with which it was infested. The ham could have been found not “reasonably fit” for the purpose for which it was bought. [294 Mass, at 24, 200 N. B. at 405]

This approach was reaffirmed in Massachusetts in Arena v. John P. Squire Co., 321 Mass. 423, 73 N. E. 2d 836 (Sup. Jud. Ct. 1947), and adopted in Connecticut, Silverman v. Swift & Co., supra, 141 Conn. 450, 107 A. 2d 277; Indiana, Meyer v. Greenwood, supra, 125 Ind. App. 288, 124 N. E. 2d 870; Maryland, Vaccarino v. Cozzubo, 181 Md. 614, 31 A. 2d 316 (1943); and Pennsylvania, Adams v. Schieb, supra, 408 Pa. 452, 184 A. 2d 700.

The so-called ‘Massachusetts rule’ expressed above has been explicitly rejected in two jurisdictions. Illinois’ courts have held that proper cooking of raw pork means that the meat has been heated to the temperature of 137° F. Zorger v. Hillman’s, supra, 287 Ill. App. 357, 4 N. E. 2d 900; Nicketta v. National Tea Co., 338 Ill. App. 159, 87 N. E. 2d 30 (App. Ct. 1949). Language used by the court in Nicketta is particularly expressive of the Illinois view:

4 * * Plaintiffs allege that the only obligation which exists between a purchaser of fresh pork and a retail seller is that there is an implied warranty that the pork will be fit, wholesome and proper for human consumption after proper cooking. They also allege that they purchased the pork from the defendant; that it was properly cooked; that they ate it; and that they acquired or became infested with trichinosis. They alleged a factual impossibility, a fact irrefutable by a well established scientific rule, of which it was the duty of the trial court to take judicial notice, namely, that a human being cannot acquire trichinosis from eating pork which has been properly cooked. [338 Ill. App. at 168, 87 N. E. 2d at 34]

See also, Golaris v. Jewel Tea Co., 22 F. R. D. 16 (D. C. N. D. Ill. 1958). This same position was endorsed by the Supreme Judicial Court of Maine in Kobeckis v. Budzko, Me., 225 A. 2d 418 (1967) :

The phrases “ordinary domestic cooking,” etc., cited above are no real guide in the cooking of pork and pork products as a premise upon which to found a complaint for breach of implied warranty. As of this date, authoritative sources are uniform in saying that raising the pork or pork product to a temperature of 137° Fahrenheit kills trichinae and “proper” cooking as used in this case means raising the temperature throughout the meat or meat product to a minimum of 137° Fahrenheit. [Me., 225 A. 2d at 424]

A necessary implication to be drawn from this approach is that a consumer who prepares raw pork for consumption and thereafter contracts trichinosis from it has not properly cooked the meat. Since the product thus cannot be shown to be unfit for its ordinary and intended purpose, i. e. eating after proper cooking, recovery for breach of warranty (or strict liability) is impossible. See Frumer & Friedman, supra, § 25.04(2).

It is tbe view of this court that as between these two rules the latter is the more sound. To require proper cooking of raw pork by the consumer to eliminate trichinae and then to hold that such cooking need not in fact make the meat safe is anomalous; if not a “factual impossibility,” as observed in Nicketta, supra, this approach at least invites an illogical result. An even more compelling reason for adopting the minority rule is that it is compatible with the doctrine of strict liability developed by our courts.

Since the landmark case of Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960), New Jersey has been in the forefront of jurisdictions extending protection to consumers by imposing strict liability in tort. The doctrine expressly has been extended to the manufacturer and/or seller of automobiles, Hermingsen, supra; Scanlon v. Gen. Motors Corp., supra, 65 N. J. 582; Moraca v. Ford Motor Co., 66 N. J. 454 (1975); motorcycles, Sabloff v. Yamaha Motor Co., Ltd; 113 N. J. Super. 279 (App. Div. 1971), aff'd 59 N. J. 365 (1971); carpeting, Santor v. A. & M. Karagheusian, Inc., supra, 44 N. J. 52; grinding discs, Jakubowski v. Minn. Mining & Manufacturing, 80 N. J. Super. 184 (App. Div. 1963), rev’d on other grounds, 42 N. J. 177 (1964); mass-produced houses, Schipper v. Levitt & Sons, Inc., 44 N. J. 70 (1965); cafeteria food, Sofman v. Denham Food Service, Inc., supra, 37 N. J. 304; a power punch press, Bexiga v. Havir Mfg. Corp., 60 N. J. 402 (1972); Finnegan v. Havir Mfg. Corp., 60 N. J. 413 (1972); carbonated beverage bottles, Corbin v. Camden Coca-Cola Bottling Co., supra, 60 N. J. 425; permanent hair wave solution, Newmark v. Gimbel’s Inc., supra, 54 N. J. 585; and water meters, Rosenau v. New Brunswick, etc., 51 N. J. 130 (1968); it also applies to lessors of rented motor vehicles and trailers, Cintrone v. Hertz Truck Leasing, etc., 45 N. J. 434 (1965); Ettin v. Ava Truck Leasing, Inc., 53 N. J. 463 (1969). Recovery is based on considerations of policy rather than actionable conduct by the defendant. These considerations are identified in Cintrone, supra:

* * s- Warranties of fitness are regarded by law as an incident of a transaction because one party to the relationship is in a tetter position than the other to Jcnoto and control the condition of the chattel transferred and to distribute the losses which may occur because of a dangerous condition the chattel possesses. These factors make it likely that the party acquiring possession of the article will assume it is in a safe condition for use and therefore refrain from taking precautionary measures himself. 2 Harper & James, Torts, § 28.19 (1956). * * * [45 N. J. at 446; emphasis supplied]

In the case of raw pork the factual premise upon which the first policy consideration rests is not present. Because of the character of the product it is impossible for the seller to detect the presence of the latent defect. In this sense the situation is analogous to that posed by the presence of serum hepatitis in whole blood. In the recent case of Brody v. Overlook Hosp., 127 N. J. Super. 331 (App. Div. 1974), aff’d 66 N. J. 448 (1975), the court was unwilling to impose strict liability upon a blood bank for the death of plaintiff’s decedent cause by a transfusion of blood containing hepatitis. The decision was based largely on the fact that no method existed whereby the blood could be tested for serum hepatitis virus prior to transfusion. Id. at 336. The same result was reached in Jackson v. Muhlenberg Hosp., 96 N. J. Super. 314 (Law Div. 1967), rev’d on other grounds, 53 N. J. 138 (1969), where it was concluded that “The unavoidable presence of hepatitis virus in the blood furnished does not give rise to strict liability for the resultant harm.” Id. at 333 (emphasis supplied). Shoppers Paradise is in much the same position as to the triehinous pork chops as Overlook and Muhlenberg Hospitals were as to the contaminated blood; as in the blood cases the policy justification is not here present upon which strict liability may be predicated.

One significant way in which this case is distinguishable from the blood cases is that here a cure exists for the latent defect in the product. In both Jackson and Brody the court found support for the nonapplication of strict liability in Restatement, Torts 2d, § 402 Á, comment (k), dealing with “unavoidable unsafe products,” which are characterized as “products which, in the present state of human knowledge, are quite incapable of being made safe for their intended use. * * *” The courts endorsed the reasoning of the Restatement in concluding that blood properly prepared and accompanied by proper directions and warnings is not unreasonably dangerous in light of its utility, and the seller therefore “is not to be held to strict liability for unfortunate consequences attending their [sic] use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.” Restatement, supraj Brody v. Overlook, supra, 127 N. J. Super. at 339. Since the presence of trichinae in raw pork can be cured but only by the consumer, the rationale for absolving the helpless seller from strict liability for damages caused by the parasite is even more compelling than in the ease of a product where no cure is known. To put it another way, where the user of the product is contributorily negligent for failing to make the product safe, the seller should not be held to a strict liability standard. Contributory negligence is a good defense to strict liability unless considerations of policy and justice make it inapplicable. Bexiga v. Havir Mfg. Corp., supra, 60 N. J. at 412; Cintrone v. Hertz Truck Leasing, etc., supra, 45 N. J. at 457-459; Ettin v. Ava Truck Leasing, Inc., supra, 53 N. J. at 471-474; Maiorino v. Weco Products Co., 45 N. J. 570 (1965). Here, because of the unique character of raw pork, considerations of policy and justice compel a finding of contributory negligence as a matter of law. Since the inherent danger in uncooked or underdone pork is a fact of common knowledge chargeable to the consumer, he can neither assume that the seller has taken action to cure the defect nor avoid responsibility for failing to take such action himself.

The other policy ground upon which the cases base strict liability is one of “risk distribution” which suggests that the seller should bear the cost of damages arising from the product because he is better able to spread the risks by procuring liability insurance or impleading other potentially culpable parties (manufacturer, wholesaler, distributor, etc.). Such a rationale is arbitrary in that it fails to account for the specific characteristics of the product in question and the relationship between the particular consumer and seller from which the action for strict liability arises. For this reason the “loss spreading” theory has been given relatively little weight when compared to other policy considerations; “it plays ‘only the part of a make weight argument’ * * Magrine v. Krasnica, 94 N. J. Super. 228, 239 (Cty. Ct. 1967); Brody v. Overlook Hosp., supra, 127 N. J. Super. at 341. In light of the more compelling considerations of knowledge and curability of the defect discussed above, the “risk distribution” theory does not provide a sufficient basis upon which to hold the defendant strictly liable.

For the foregoing reasons it is the opinion of the court that the policies compelling application of strict liability are not applicable in the case of a consumer contracting trichinosis from pork chops. This is consistent with the holding that Mrs. Hollinger failed to properly cook the meat served on October 10, 1971 and leads to the conclusion that plaintiffs have failed to prove as a matter of law that defendant sold a product not reasonably fit for its ordinary and intended purpose. For these reasons the motion of Shoppers Paradise for dismissal of the complaint is granted.

      In their complaint plaintiffs assert claims against defendants Windish and Dubuque Packing Co. for damages allegedly caused from bacon packed by Dubuque and sold to Mr. Hollinger by Windish. These claims were dismissed on motion for summary judgment in an order dated May 17, 1974 and thus were not before the court for trial and therefore are not addressed in this opinion.


author: Italiano, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ARTURO BUSH, DEFENDANT.
    Camden County Court Law Division
    February 21, 1975.

      Mr. Fred L. Solar, Assistant Prosecutor, for the State {Mr. Thomas J. Shusted, Camden County Prosecutor, attorney).

      Mr. Maury K. Cutler for defendant (Messrs. Supnick, Mitnick & Cutler, attorneys).
   Italiano, J. C. C.

Defendant was arrested on August 23, 1973 and charged with violating N. J. S. A. 24:21-20 (a) (3), possession of less than 25 grams of marijuana; and N. J. 8. A. 2A:170-25.1, allowing marijuana plants to grow on his premises. On November 15, 1973 defendant, through his counsel, applied to the Camden Municipal Court for suspension of criminal proceedings pursuant to N. J. 8. A. 24:21-27. The municipal judge’s denial of the motion for conditional discharge was predicated on the belief that it was entirely within the court’s discretion to avail a defendant of the suspension provisions of the statute. Defendant subsequently appealed this denial pursuant to B. 3 :23. The County Court, in an unpublished opinion, held the discretion of a trial judge in such matters is limited to a “determination of whether or not a particular defendant qualified for a conditional discharge.” The county judge found that the municipal judge was exercising his discretion solely on the basis of his feeling that the remedy under the statute was available only to' a special category of offenders (marijuana users), and not to others charged with' disorderly persons violations. The matter was remanded to the municipal court for the findings that are required under N. J. 8. A. 24:21-27(c), and that court was ordered to entertain defendant’s motion in accordance with the statutory requirements. On August 15, 1974 defendant was found not guilty as to the growing charge, but he was again denied a conditional discharge. An appeal to this court ensued.

A trial de novo was held, and at that hearing the following facts were established; defendant is 22 years old; he is married and has a child; he is gainfully employed as a clothing salesman and has been so employed for three years; he has not been previously convicted of any drug-related offenses, and he no longer uses marijuana.

The record of the second municipal court hearing revealed that the latest denial of a conditional discharge was based upon the judge’s conclusion that N. J. S. A. 24:21-27 does not apply to those who are charged with possession of marijuana. The judge equated the phrase “supervisory treatment,” as used in this section, with some form of medical, psychological or residential treatment. The result flowing from this equation was a ruling that in the absence of such programs for marijuana users to correct any dependency on the drug, the Legislature did not intend for first-time marijuana offenders to have the remedy of conditional discharge available to them. Therefore, the issue presented in this case is whether the absence of residential, medical or psychological treatment for marijuana users precludes suspension of proceedings in the case of first-time marijuana offenders.

N. J. 8. A. 24:21-27 in relevant part reads:

Whenever any person who has not previously been convicted of any offense under the provisions of this Act [New Jersey Controlled Dangerous Substances Act] or, subsequent to the effective date of this Act, under any law of the United States, this State or any other State, relating to narcotic drugs, marijuana, or stimulant, depressant or hallucinogenic drugs, is charged with or convieted of any offense under subsections 20 a. (1), (2) and (S), and b., the court, upon notice to the prosecutor and subject to subsection c., may, on motion of the defendant or the court:
(]) Suspend further proceedings and with the consent of such person after reference to the Controlled Dangerous Substance Registry, as established and defined in the Controlled Dangerous Substances Registry Act of 1970, place him under supervisory treatment upon such reasonable terms and conditions as it may require; or
(2) After plea of guilt or finding of guilt, and without entering a judgment of conviction, and with the consent of such person after proper reference to the Controlled Dangerous Substances Registry as established and defined in the Controlled Dangerous Substances Registry Act of 1970, place him on supervisory treatment upon such reasonable terms and conditions as it may require, or as otherwise provided by law.
sis*#*}''*##*#
c. Proceedings under this section shall not be available to any defendant unless the court in its discretion concludes that:
(1) The defendant’s continued presence in the community, or in a civil treatment center or program will not pose a danger to the community; or
(2) that the terms and conditions of supervisory treatment will he adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances which he may manifest. [Emphasis supplied]

Thus, the language of this section expressly states that the suspension provisions are available to any person charged with or convicted of any offense listed in N. J. S. A. 24:21-20(a) (1), (2) and (3) and (b). The latter section sets out the types of offenses and penalties for possession or use of various controlled dangerous substances. The classification of offenses range from high misdemeanors for drugs listed in Schedules I, II, III or IV, N. J. 8. A. 24:21-5 to 31-8, to disorderly persons violations for possession of 25 grams or less of marijuana or five grams or less of hashish. The ostensible reason for the enumeration of offenses in § 20 is to limit the conditional discharges to instances of use and possession and to differentiate them from other types of drug offenses, such as sale and distribution. State v. DiLuzio, 130 N. J. Super. 222 (Law Div. 1974). Since marijuana is specifically enumerated, it would seem manifestly within the contemplation of the Legislature that suspension proceedings be available to those persons charged with its possession or use. Yet, the municipal judge did not interpret the statute to include marijuana due to his understanding of what “supervisory treatment” means. It is this court’s opinion that the municipal judge’s interpretation of the statute is not consistent with the plain language of §§ 20 and 27. In addition, it fails to recognize the aims of the Legislature in enacting the. Controlled Dangerous Substances Act.

The act represented a basic policy change from treating drug users as criminals to an approach which endorsed treatment for and leniency toward drug offenders. This policy change was stated by Governor Cahill in a special message to the Legislature, “Drug Abuse — Problem of the Decade” (April 27, 1970) :

Thirdly, the proposed act takes a first legislative step at recognizing that use of drugs is a social or medical illness. Thus, with respect to persons charged with use or possession of any dangerous drug for the first time, the act confers upon the court new discretionary authority to defer criminal proceedings and to impose a special term of probation.

Section 27 implements this enlightened approach by permitting the first-time drug offender to seek out some sort of rehabilitative treatment designed to cure the peculiar problems which lead one to drug dependency or usage. This course is preferred over traditional criminal sanctions which are ill-suited for rehabilitation of drug users. However, the statute does not dictate what form that rehabilitative treatment must take, other than to provide that there must be reasonable supervision. The inference to be drawn from this is that the Legislature intended the disposition of each case to turn on its own facts, with each individual being treated in the manner most beneficial to him. The sole reference to any specific form of treatment appears in subdivision (b). This provision restricts the maximum period of residential treatment to three years in the event such treatment is deemed necessary by the judge. Contrary to the conclusion reached by the municipal judge, a restrictive provision such as this cannot be construed to require residential treatment. Similarly, the absence of any specific requirement of medical or psychological treatment in the statutory language buttresses the conclusion that the existence of programs of this nature to treat marijuana users is not a sine qua non for availability of conditional discharge.

To properly implement the statute, the court must make a bona fide determination whether an individual satisfies either of the criteria for conditional discharge found in N. J. S. A. 24:21 — 27(c). State v. Pollara, 130 N. J. Super. 119 (App. Div. 1974). The criteria of subsection (c), and those criteria alone, must be applied in reaching a determination of whether proceedings should be suspended for a first offender. If the court finds the individual satisfies one of the criteria, a conditional discharge must be granted. Were this not so, what purpose would be served by listing the criteria? A court may disagree with the legislative intent in providing suspension provisions, but, as the Appellate Division stated in Follara (at 122): "A judge is free to disagree with the policy of a statute but not to refuse to apply it in good faith, unless he finds it unconstitutional * * *” (Emphasis supplied).

When a conditional discharge is granted in the case of marijuana use, supervisory treatment may be provided through programs of the county probation department or by a respected member of the community providing counseling for the offender or by any other reasonable means which will effectuate the Legislature’s goal of rehabilitative guidance. To deny the opportunity for treatment allowed by conditional discharge to the marijuana user, where that person meets the statutory criteria, is to subvert this goal.

Therefore, this court finds defendant meets the criterion of N. J. 8. A. 24:21-27(c) (1) in that he poses no danger to the community, and his motion for conditional discharge is granted.

      Hyland, “Drug Abuse and the State Criminal Justice System: Alternative to Existing Modes of Treatment,” 2 Crim. Justice Q. 167, 177 (1974).


author: Crane, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. BENJAMIN ALLABAND, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1974
    Decided March 5, 1974.

      Before Judges Kolovsky, Fritz and Crane.

      Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for appellant (Mr. Thomas J. Shusted, Camden County Prosecutor, attorney).

      Mr. Steven Zamrin, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley O. Van Ness, Public Defender, attorney).
   The opinion of the court was delivered by

Crane, J. A. D.

This matter is before us pursuant to leave granted to the State to appeal from an interlocutory order of the Law Division granting defendant’s motion to suppress evidence consisting of drugs and paraphernalia which had been seized without a warrant. The trial judge permitted the motion to be made immediately before trial, over objection by the State that the motion was made beyond the time permitted by B. 3 :5-7 (a).

We do not reach the merits because in our view the motion was improvidently entertained.

Defendant’s plea of not guilty was entered on February 15, 1972. Under the provisions of B. 3:5-7(a) defendant had 30 days within which to move for the suppression of evidence. When, on January 16, 1973, the case was called for trial, after having been previously listed for trial several times and adjourned, defense counsel, an attorney from the staff of the Public Defender, moved orally for leave to file a motion to suppress. The reasons given for not having presented a motion earlier were that defendant was interviewed by an investigator who was not a lawyer; that when discovery was received in February 1972 no one read it carefully enough to notice that a motion ought to be made; that the attorney who was handling the case at the time of trial should not be bound by the carelessness of another attorney; that the trial attorney had received the file approximately a week before the trial date, and that defendant should not be prejudiced because there was some negligence in not noticing the issue before trial.

Prior to making his ruling the trial judge commented that “here, we are dealing with a gross delay in bringing this kind of motion”; that he “considers this application to be outrageously out of time,” and that “the court is not impressed that good cause has been shown for the extension of time in this matter.” Nevertheless, upon learning that the Public Defender was willing to file a brief within 48 hours, the judge granted the application, stating its ruling as follows :

Under all these circumstances and providing that the defense counsel supplies a brief in support of her motion to the court, with a copy to the prosecutor, within 48 hours, the motion to suppress will be entertained as soon thereafter as the court can arrange it with counsel. Subject to those conditions, your motion will be entertained, Miss Rosenberg.

It has been suggested that the time limitations of R. 3 :5 — 7 are not to be applied rigidly and that the problems of heavy case loads in the Public Defender’s office are entitled to some consideration. State v. Price, 108 N. J. Super. 272, 278 (Law Div. 1970). R. 3:5-7 (a) permits enlargement of the time period upon a showing of “good cause.” In the instant matter the trial judge correctly concluded that good cause had not been shown. The neglect of an attorney to pursue remedies on behalf of a client has uniformly been held not to constitute “good cause” offered in support of a motion to enlarge time. Packaging Industries Ltd. v. Hayduchok, 94 N. J. Super. 494 (App. Div. 1967), certif. den. 50 N. J. 87 (1967) ; In re Syby, 66 N. J. Super. 460 (App. Div. 1961); Nemeth v. Otis Elevator Co., Inc., 55 N. J. Super. 493 (App. Div. 1959).

Under the circumstances here presented, particularly considering the 11-month delay, the reasons given for it, and the justified finding by the trial judge that good cause for an extension of time did not appear/ the motion to suppress should not have been entertained: enforcement of the time requirements of the rule does not offend due process standards. State v. Raymond, 95 N. J. Super. 175 (App. Div. 1967), certif. den. 52 N. J. 296 (1967); see also, State v. McKnight, 52 N. J. 35, 48 (1968). As was said in State v. Perry, 59 N. J. 383, 387 (1971), “The rule is reasonable and must be met if there is to be order in the judicial process.”

The order' suppressing evidence is reversed and the matter is remanded -to the Law Division for trial.


author: Lynch, J. A. D.

text:
    MICHAEL J. BRESLIN, JR. AND BRESLIN & BRESLIN, ESQS., PLAINTIFFS-RESPONDENTS, v. LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT. JOHN M. ARCADIPONE, PLAINTIFF-RESPONDENT, v. WESTWOOD FORD AND JAMES A. PETERSON, DEFENDANTS-RESPONDENTS, AND CONNECTICUT GENERAL LIFE INSURANCE COMPANY, INTERVENOR-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 28. 1975
    Decided May 13, 1975.

      Before Judges Lynch, Allcorn and Furman.

      Mr. John R. Kingsland argued for appellant Liberty Mutual Insurance Company (Mr. Frank R. Cinquina on the brief) .

      Mr. Frank R. Cinquina argued for intervenor-appellant Connecticut General Life Insurance Company (Messrs. Schwartz and Andolino, attorneys).

      Mr. Paul A. Dykstra argued for respondents Breslin & Breslin and Michael J. Breslin, Jr. (Messrs. Breslin & Breslin, attorneys; Mr. F. Carter Corriston of counsel and on the brief).

      Mr. Marc Isenberg argued for respondent Arcadipone (Mr. Philip C. Geibel, attorney; Mr. Peter Peletz, Jr. of counsel).
   The opinion of the court was delivered by

Lynch, J. A. D.

The ultimate issue in these consolidated appeals is whether attorneys’ fees are deductible from the lien asserted by a disability insurance carrier against a covered employee’s recovery in a third-party action. As will be seen below, our resolution of that issue turns on the resolution of a conflict between New York and New Jersey law.

The trial judge, whose thoughtful opinion is reported at 125 N. J. Super. 320 (Law Div. 1973), succinctly set forth the relevant facts and legal contentions of the parties:

In each instance a New Jersey resident, employed in New York, was injured in an automobile accident in New Jersey. Disability benefits were paid to the employees by their respective New York employers’ insurance carriers. Actions were commenced in New Jersey by the employees against third parties for injuries received in the accidents and resulted in the recovery of amounts in excess of the disability benefits received by the employees from the carriers, plus attorneys’ fees and costs (computed on the whole sum recovered). The carriers in these actions assert subrogation rights under New York law to the full extent of the benefits paid, without allowance for costs or attorneys’ fees incurred by the employees in effecting a recovery.
On their part the employees assert that (1) the enforcement of the New York statutory subrogation claims should be denied in their entirety because the claims conflict with the statutory law and public policy of New Jersey, or (2) at the very least and for similar reasons, the amounts claimed by the carriers are subject to an offset for the pro rata share of costs and attorneys’ fees incurred in effecting the recovery against which the right of subrogation is being claimed, [at 323-324]

The trial judge held that New York law governed the existence vel non of the subrogation rights, but that the insurers’ liens were nevertheless subject, under New Jersey law, to payment of a pro rata share of the attorneys’ fees and expenses incurred by the employees in the third-party actions. The insurers appeal, urging a reversal of the trial judge’s holding solely with regard to attorneys’ fees. Plaintiffs, apparently abandoning their contention below that no subrogation rights are cognizable, argued for an affirmance.

We reverse.

According to the New York disability statute, as interpreted by the courts of that state, the insurer is entitled to recover its full lien without deduction for attorneys’ fees and expenses, provided that the employee’s total third-party recovery, less attorneys’ fees, exceeds the amount of disability benefits paid. McKinney’s Consol. Laws, c. 67, N. Y. Workmen’s Comp. Law, § 227 (1965); Cianciosi v. Merchant’s Mut. Ins. Co., 61 Misc. 2d 867, 307 N. Y. S. 2d 136 (Sup. Ct. 1970).

In contrast, as noted by the trial judge, New Jersey’s temporary disability statute contains no specific provision granting subrogation rights to an insurance carrier in the present context. N. J. 8. A. 43:21-25 at seq. Consequently, the issue of an attorney’s lien superimposed on the insurer’s lien has not arisen in any disability insurance cases in New Jersey. In closely analogous situations, however, our law subjects the subrogation rights of carriers to payment of some share of the attorneys’ fees. Under the New Jersey Workmen’s Compensation Act, for example, the carrier’s statutory right of subrogation is subject to payment of attorneys’ fees and expenses in accordance with certain statutory maxima. N. J. 8. A. 34:15-40(b) and (e) •, Caputo v. Best Foods, 17 N. J. 259, 267 (1955).

And, in the absence of a statute, this court has held that where an insurer’s subrogation rights arise by contract, but the contract is silent as to attorneys’ fees, equitable principles dictate that the insurer pay a proportional share of attorneys’ fees and expenses incurred by the insured in a successful third party action. Klacik v. Kovacs, 111 N. J. Super. 307 (App. Div. 1970).

The conflict of laws between the two states is therefore clear: New Jersey favors contribution to the costs of suit by the insurer where such insurer has benefited from a third-party recovery; New York law precludes such deductions for attorneys’ fees and costs from the liens of disability insurers.

This same conflict has arisen between the workmen’s compensation laws of. the two states. In Privetera v. Hill-crest Homes, Inc., 29 N. J. Super. 591 (Law Div. 1954), plaintiff had been injured while at work in New York. He received a workmen’s compensation award from the Workmen’s Compensation Board of New York. It was paid by the compensation carrier in New York. A third-party action was instituted against an alleged tortfeasor in New Jersey and was settled for $3,000. The compensation carrier claimed its entire lien, while plaintiff contended the lien was subject to deduction for expenses and attorneys’ fees as provided in the New Jersey Workmen’s Compensation Act, N. J. 8. A. 34:15-40. The court rejected plaintiff’s argument, saying:

Plaintiff proceeded under the provisions of article 2, section 29 of the Workmen’s Compensation Law of New York, which authorized him to bring the third-party action, and he is, accordingly, bound by all of the provisions of that law — he cannot take advantage of the portion he likes and disregard those portions of which he disapproves.
My conclusion, therefore, is that the New York statute is controlling in the present case, and the New Amsterdam Casualty Company is entitled to receive the draft of $1,123.40 without deduction. The petition to impress an attorney’s lien upon the fund must, necessarily, be dismissed, [at 593]

Thus, even where there was a New Jersey statute providing for payment of attorneys’ fees and costs, New York law to the contrary prevailed. As we have noted above, there is no such comparable New Jersey statute applicable to disability benefits as distinguished from workmen’s compensation benefits.

Privetera was cited with approval in Liberty Mutual Ins. Co. v. Borsari Tank Corp., 248 F. 2d 277 (2 Cir. 1957). In that case Liberty Mutual had paid compensation under Missouri law to the widows of three employees of a Missouri employer who had been killed while working on a New Jersey construction job. Third-party actions, brought in New Jersey by their estates, were settled for a total sum of $82,500. The issue arose as to whether, at the time of the settlement, Liberty was entitled to reimbursement of its full lien, or whether such recovery was subject to a reduction in the amount of a pro rata share of the attorneys’ fees in the third party New Jersey actions. The court said:

Although Liberty Mutual and Borsari filed their statutory notice in the third party actions instituted in the New Jersey State Court, pursuant to New Jersey law, their right to recover on their lien, the amount of their recovery and the conditions attached thereto, are governed 6y the law of the State whose Compensation Act was invoked by the claimants in obtaining their compensation awards. In this case it would be the law of Missouri, [at 282; emphasis supplied]

Wilson v. Faull, 27 N. J. 105 (1958), involved the issue as to whether New Jersey or Pennsylvania law was applicable to the right of an injured employee of a subcontractor to maintain a common law action against a general contractor, the law of the two states differing in that regard. The court applied Pennsylvania law and said:

However, where the injured employee seeks to maintain a common law tort action against his employer in one of two or more states having a legitimate interest in the work-injury, the forum has almost invariably applied the law of the state in which the employer has provided compensation insurance and whose lato granted such employer immunity from common law negligence actions by the employee, and dismissed the suit (citations omitted), * ^ * This choice of law has been made by the state of the forum, whether it was the state of the injury (citations omitted), *■ * * or the state of the contract (citations omitted), * * * or the state of employment relation (citations omitted) * * *. [at 117-118; emphasis supplied]
* * * Fundamental compensation policy dictates that where an employer is required to provide compensation benefits by the law of the state having a legitimate interest in a work-injury, under which the injured employee could claim a compensation remedy against the employer, the state of the forum should recognize the correlative immunity conferred upon suoh an employer by the law of the foreign state, [at 120; emphasis supplied]

All of the reasoning of Privetera, Liberty Mutual Ins. Co. v. Borsari Tank Corp., and Wilson v. Faull, which we consider sound, applies here. Indisputably, the disability policies under which the companies paid the benefits were issued in New York to New York employers. It is that state’s law which creates the carriers’ right of subrogation, regulates the insurance premiums payable and specifies the amount of recovery of the lien. While we recognize the trend away from former “mechanical” formulae in deciding choice-of-law questions (compare Kievit v. Loyal Protect. Life Ins. Co., 34 N. J. 475, 492 (1961), with Buzzone v. Hartford Acc. & Indem. Co., 23 N. J. 447, 452 (1957)), we conclude that, whether we apply a traditional or a more modern choice-of-law test, New York law should govern the deductibility of attorneys’ fees from the carriers’ liens under the circumstances here.

As we have noted above, the trial judge held that New York’s disability benefits law must govern the existence of the right of subrogation. In so holding the court stated:

The place of employment here was New York and the benefits were paid to the injured employees by reason of their New York employment and pursuant to the statutory scheme of that state. While choice of law in this situation is not controlled by the application of mechanistic formulae as such, it is evident that fundamental fairness as well as the need for certainty of result commits our courts to look to the laws of the state pursuant to which the benefits were paid to determine questions affecting the essential rights of the employers, co-employees, as well as insurance carriers. See Stacy v. Greenberg, 9 N. J. 390; Privetera v. Hillcrest Homes, Inc., supra; but see, Wilson v. Faull, 27 N. J. 105 (1958). [at 325 of 125 N. J. Super.]

The court went on to say, however, that “it does not automatically follow that the choice-of-law on the first issue compels us to choose New York law in determining the status of the asserted attorneys’ liens.” Though we agree with this general proposition, we fail to see why the “contacts” recited by the court in accepting application of New York law as to the “existence” of the right of subrogation do not equally postulate that state’s law as governing the extent of that right.

Nor do we agree, as the trial judge said, that an attorney’s lien has such “priority” under New Jersey law as to warrant engravement of a limitation on the subrogation right created under New York auspices. Not every legal principle established in a state rises to the dignity of “public policy.” A mere difference between our law and that of another jurisdiction does not compel the conclusion that the foreign law is offensive to our public policy. Caribe Hilton Hotel v. Toland, 63 N. J. 301, 308 (1973); Zotta v. Otis Elevator Co., 64 N. J. Super. 344, 349 (App. Div. 1960). Eather, “public policy” in conflicts of law doctrine has been said to be “some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” Loucks v. Standard Oil Co., 224 N. Y. 99, 111, 120 N. E. 198, 202 (Ct. App. 1918); see Buzzone v. Hartford Acc. & Ind. Co., supra, 23 N. J. at 458-459. We accept the proposition that it is the law of New Jersey that an attorney shall be paid for the services he renders. We do not conceive that such principle is such a deep-rooted fundamental principle of justice as to be considered “public policy” in the sense that that concept is relevant here. Moreover, the New Jersey policy of compensating attorneys has not been violated here. The attorneys in the instant cases are not, by our decision, denied compensation for services rendered. Our decision concerns only the degree to which the cost of such services should be shared between the carriers and the employee-plaintiffs.

The case of Klacik v. Kovacs, supra, 111 N. J. Super. 307, does not in our view support the application of New Jersey law here. Again, as the trial judge concedes, the subrogation right there arose “as a matter of private insurance contract and not by virtue of the law of a sister state.” 125 N. J. Super, at 327. We consider the distinction to be crucial. The court in that case was not confronted with any choice-of-law issues, but only with a question of local law. In the instant case, however, the issue is not what the local law should be, but rather whether that law, or a conflicting foreign law, should apply. We have concluded that New York law should apply.

Nor do we agree, as plaintiffs argue, that New Jersey’s interest in settlement of litigation warrants rejection of New York’s law that the insurers’ liens are not subject to deductions for attorneys’ fees and costs. We are not persuaded that imposition of such fees and costs will, in the words of the trial court, “remove an .impediment to the settlement of disputes in our courts.” 125.N. J. Super, at 328. We do agree that the cooperation of the subrogee-insurer is frequently a substantial factor in effecting settlements. But that “cooperation” is exemplified by the willingness of the insurer to reduce the amount of its lien. Therefore it may be argued that reduction of the lien by the amount of the attorneys’ fees and costs will give the insurer less leeway to reduce its lien. In that instance the insurer would have less monies available for reduction of its lien and less motivation for cooperation in settlement negotiations.

While the trial court would consider that the renvoi doctrine, rejected by this court in In re Damato, 86 N. J. Super. 107, 115-116 (App. Div. 1965), has been reborn by reason of the revision of the Restatement, Conflict of Laws 2d, § 8 (1971), we disagree. We recognize the revision made in the Restatement of 1971, but we do not consider that it dilutes the soundness of the reasoning of In re Damato in rejecting the doctrine because of its inherent capacity for confusion and unending “circular process.” We consider In re Damato still to be the law of this State.

Lastly, respondents argue that under the Full Faith and Credit Clause the giving of effect to one part of a foreign statute (in this case the “existence” of the statutory lien) does not preclude rejection of other parts (here non deductibility for fees and costs). We accept that proposition. But it does not follow that such other parts should not be accepted where, as here, the interests of the foreign state predominate. Here we hold that New York’s interests are such that choice-of-law principles dictate recognition of all aspects of the insurers’ liens ■ — • the nature, extent of recovery and the condition thereof, and, more particularly, their recovery without deduction for attorneys’ fees and costs in this context.

For the foregoing reasons the judgments below, insofar as they ordered that the companies’ liens were subject to deductions for attorneys’ fees for services rendered in the New Jersey third-party actions, are reversed. The cases are remanded to the trial court for proceedings in accordance with the views herein expressed.