August 2008, No. 5

August 2008, Vol. VI, No. 5

When Can a Party Obtain an Award for Punitive Damages in a Probate Case? If and only if a party exercises undue influence over a testator AND if equitable remedies are inadequate. See In re Stockdale, 192 N.J. 518 (2008). In essence, the Supremes limited the availability of punitive damages to situations where a tort exists, a party depletes or reduces an estate's assets, and the damage cannot be repaired by equitable remedies, e.g., surcharges on an executor. In re Stockdale, a lawyer and doctor persuaded an elderly testator who was in the hospital for a hip fracture to name them executor and beneficiary and also deprived her of her home. To make matters worse, the lawyer named his doctor-friend and long-time client as the beneficiary and also permitted the testator to sell the doctor her house for basically no money because as the sole beneficiary, the doctor would get the proceeds anyway. The case has been remanded to determine whether there should be a compensatory damages award and a punitive damages award. As an aside, the lawyer's conduct is certain to lead to an ethics complaint. Shame on the doctor and lawyer.

Does the Verbal Threshold for a Public Entity Apply to Intentional or Willful Misconduct Claims? No. In Toto v. Ensuar, 192 N.J. 595 (2008), the Supremes ruled that N.J.S.A. 59:9-2d, the verbal threshold in the Torts Claim Act, does not apply to cases of willful misconduct, and thus, the plaintiff could seek any and all damages from the alleged misconduct. In Toto, the plaintiff alleged that two police officers falsely arrested and imprisoned him, and a jury concluded that one officer committed willful misconduct. The long and short of it is that a person who sustains injuries from a public entity's or officer's willful misconduct is entitled to recover for any and all pain suffering without limitation from the verbal threshold (permanent loss of a body function that is substantial).

What is the Threshold for a Religion-Based Hostile Work Environment Claim? For those of you saying, huh? I am with you because the answer is and should be the same for a hostile work environment claim based on gender or race. See Cutler v. Dorn, 2008 N.J. LEXIS 895 (2008). This case has been called the "Dirty Jew Case," and was previously reviewed in this column when the Appellate Division remarkably concluded that the evidence of discrimination was not severe or pervasive, and reversed the trial court's denial of the defendants' motion for judgment n.o.v. The allegations were that co-workers made derogatory and insulting comments about Jews, dirty Jews, and other demeaning comments about Jewish people. The Supremes first concluded that the prima facie case for a religion-based hostile work environment is the same as any hostile work environment case, i.e., "whether a reasonable person of plaintiff's religion or ancestry would consider the [conduct] . . . to be sufficiently severe or pervasive to alter the conditions of employment and create a hostile work environment." Then, the Supremes held that the conduct violated that the severe or pervasive test, and therefore, reinstated the jury's verdict. As stated in the past, the Appellate Division's decision was incorrect, and fortunately, the Supremes prevented the sky from falling by reversing the Appellate Division's decision. Three cheers for the High Court.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil-related story, please contact me at 201-918-3560, (f) (201) 845-5973, or e-mail [email protected].

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