39 A.3d 208
N.J. Super. Ct. App. Div.2012Background
- Petty's Island in the Delaware River, owned by Citgo, hosts a bald eagle nest monitored for redevelopment; eagles present since 2003.
- Cherokee planned brownfield redevelopment and contracted Cullen's T.C. Management to monitor eagle behavior from 2004, with DEP protocol and coordination claimed.
- Cullen, with Mohin as monitor, conducted 32 hours/week monitoring for ~5 months, logging observations from shore and island access points; a tent near the nest was used for observation.
- In May–June 2004, the nest site was disturbed by monitoring activities, an eaglet was found injured and later died; DEP volunteered observations occurred concurrently.
- DEP filed ENSCA complaints in 2005 against Cherokee, Cullen, TCM, and Mohin alleging harassment of eagles; multiple amended complaints followed.
- Trial court denied an adverse-spoliation-inference motion regarding Mohin's log sheets, and later granted summary judgment to defendants; DEP appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Law of the case applicability | DEP argues law of case required adherence to prior rulings. | Cherokee contends law of the case governs and precludes reconsideration. | Court held law of the case not binding; reconsideration proper given different standards and evidence. |
| Meaning of 'harass' under ENSCA | DEP relies on broader interpretation to include harassment. | Cherokee argues narrower, non-negligent scope should apply. | Harass means an intentional or negligent act causing likelihood of injury by significantly disrupting behavior, aligning with federal guidance. |
| Summary judgment for harass claims against Cullen, TCM, Mohin | DEP asserts genuine issues of material fact exist as to harassment. | Cullen, TCM, Mohin contend no harassment shown. | Genuine issues of material fact exist; summary judgment improper for these defendants. |
| Vicarious liability of Cherokee | DEP argues Cherokee controlled and should be liable for contractor acts. | Cherokee contends no control or competent contractor liability. | Evidence supports potential control and contractor incompetence; summary judgment on vicarious liability reversed. |
| Adverse spoliation inference | DEP seeks adverse inference for missing Mohin log sheets. | Defendants contend no prejudice and logs were not essential. | Spoliation inference denied; no prejudice shown and logs not essential beyond other records. |
Key Cases Cited
- Lombardi v. Masso, 207 N.J. 517 (2011) (law-of-the-case discussion and discretion)
- Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739 (1989) (pleading standards; Rule 4:6-2 analysis)
- In re Estate of Stockdale, 196 N.J. 275 (2008) (non-binding law-of-case considerations)
- State v. Sisler, 177 N.J. 199 (2003) (statutory interpretation and word meaning context)
- In re Stream Encroachment Permit, 402 N.J. Super. 587 (App. Div. 2008) (statutory construction and related standards)
- Majestic Realty Assocs., Inc. v. Toti Contracting Co., Inc., 30 N.J. 425 (1959) (nuisance per se and dangerous activities standard)
- Mavrikidis v. Petullo, 153 N.J. 117 (1998) (principal liability analysis for independent contractors)
- In re Morris County v. Morris Council No. 6, 371 N.J. Super. 246 (App. Div. 2004) (federal guidance on harassment definitions)