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Appeal from the Circuit Court of St. Clair County; the Hon.
Thomas P. O'Donnell, Judge, presiding.
Defendants, Elder Cadillac and General Motors Corporation, appeal from the judgment of the circuit court of St. Clair County, entered on a jury verdict, awarding plaintiff, Michael W. Falkenbury, $125,000 in this products liability action. Defendants appeal, alleging, inter alia, that, as a matter of law, the product in question was not unreasonably dangerous.
On June 16, 1977, plaintiff, a dental technologist, purchased a new Cadillac Coupe de Ville from Elder Cadillac, located in Belleville, Illinois, which had optional equipment including spoked wire wheel covers. A wire wheel cover consists of a disc proper with an outer row of long spokes and an inner row of shorter spokes. The spokes, positioned in the front of the wheel cover, crisscross and fit into slots along the circumference of the disc proper. In the center of the disc there is a hole, several inches in diameter, over which a center crest piece bearing the Cadillac emblem is placed. On the back of the wheel cover there is a flat, round retainer disc plate which has a hole corresponding to the hole on the disc proper. There are five bolts on the wheel cover which secure the crest piece and the retainer disc.
In the three weeks following the purchase of the automobile, plaintiff noticed several minor problems, including a noise in the left rear wheel which he described as a "clicking" sound. On July 6, 1977, plaintiff brought the automobile to Elder to have warranty service performed and detailed a list of problems, including the noise in the left rear wheel.
Carl Newson, service manager at Elder, testifying as a section 60 witness, stated that, in response to the complaint concerning the left rear wheel, the exhaust system was aligned and a "general tightening" was performed. Newson further testified that there was no procedure for tightening the spokes on the wire wheel cover. On direct examination, Newson stated that plaintiff never complained to him concerning the wire wheel covers on his automobile.
Plaintiff testified that, when he picked up his car after having service performed, the mechanic indicated that the problems had been solved; however, the noise emanating from the left rear wheel persisted. Plaintiff further testified that he took the car in for repairs again and was informed that the service department would order a repair kit for the spoked wire wheel covers. Plaintiff telephoned Elder on several occasions, but was told the repair kit was not in stock. Newson did not recall any conversations with plaintiff concerning a wire wheel cover repair kit or the ordering of such.
On August 18, 1977, plaintiff, because of the persistent noise in the left rear wheel, endeavored to fix the wheel himself. After first removing the wheel cover from the car, plaintiff loosened the five bolts and removed the centerpiece which bears the Cadillac emblem. This created a hole that goes all the way through the wheel. Plaintiff looked inside the wheel, saw two spokes out of their holes, reached in and pushed them into their respective slots along the circumference of the disc proper. Plaintiff testified that at this point "my hand slipped or something slipped here and my hand went down into the side of that disc." This incident caused plaintiff to cut his hand, which is the complained of injury in the instant case. The cut was approximately 1 1/2 inches long and 1/4 inch deep, running from the base of the thumb toward the back of the hand.
Plaintiff filed this strict liability action for personal injuries suffered to his hand and wrist. In his second amended complaint, plaintiff alleged that the wire wheel cover was unreasonably dangerous in one or more of the following ways:
"(a) It contained in and around the access area sharp and protruding edges;
(b) Protruding edges around the access area were not dulled, blunted, guarded or otherwise protected;
(c) No warning accompanied said product to warn of hazard involved;
(d) No instructions were provided with respect to the care, maintenance or use of said product."
Plaintiff further alleged that as a "direct and proximate result of the foregoing unreasonably dangerous and/or defective conditions," he suffered personal injuries to his right hand, and the tendons and nerves therein, that he was unable to engage in his usual professional duties to the extent he could prior to the occurrence, and that this caused him economic damage.
Dr. Dale Rosenberg, a plastic surgeon and the treating physician, testified as to the nature of plaintiff's injury. Rosenberg testified that the cut caused tendon and nerve damage and to cause such injuries the cut would have to be down to the bone on the wrist. Rosenberg further testified that he was informed plaintiff had suffered the injury from being cut on a hubcap and was of the opinion that such a laceration could have been caused by a sharp metal edge. Plaintiff's wrist was placed in a plaster cast for approximately four weeks. Plaintiff testified that after the cast was removed he experienced numbness in his thumb and a loss of dexterity that persists to the present. Plaintiff further testified that a scar developed over the area of the cut and there was a "swelling or knot" which is sensitive to the touch.
Three expert witnesses testified as to the nature and characteristics of the wire wheel cover in question.
Derwyn Severy, president of Severy, Inc., a firm involved in the evaluation of products liability cases and research in the automotive industry, testified by evidence deposition. Severy testified that the wire wheel cover is a combination of defective design and defective manufacturing. Upon disassembling the wheel, Severy noticed that the inner spokes did not receive an interlock as intended by the designer and it was apparent that the manufacturing process did not adhere to design intent. Severy observed a further defect in the stamping, particularly of the discs, which caused a sharp surface to prevail which could cause serious laceration. Severy described the disc as having a "razor-like quality." On cross-examination, Severy stated that the wheel cover had to be disassembled, with five bolts removed, before the "lacerative edge" is exposed. Severy concluded that, in his opinion, the wheel with a disc having this "lacerative edge" is an unreasonably dangerous condition and that it is reasonably foreseeable that if the spokes on a wire wheel became loose the owner might attempt to adjust or fix them. Severy further concluded that the method used by plaintiff, reaching through the center of the wheel, while not being the "learned approach" was the most "direct approach" and, absent any instructions or published procedure, was the reasonably foreseeable method to be utilized.
H. Boulter Kelsey, an independent consultant and part-time engineering professor at Washington University in St. Louis, Missouri, testified at trial. Kelsey examined the wire wheel on two occasions and disassembled it the latter time. Kelsey testified that upon inspection he noticed that some of the outer spokes on the wheel were "loose and rattling" because they did not fit tightly into the outer diameter of the rim. Kelsey detected an "extremely sharp" edge and a raised burr on the edge of the hole caused by residual metal from the parent metal remaining as a result of the punching operation. Kelsey described the punching operation used to create the hole as follows:
"Well, the material is placed in a machine which has a die and above that die is a punch. The die contains a hole and the punch domes down through the hole and to produce that hole, the punch is lowered through the material and into the hole which provides a shearing action around the punch at the edge of the hole in the die."
Kelsey further testified that, in his opinion, the existence of this very sharp edge constitutes an unreasonably dangerous condition, it is reasonably foreseeable that an owner of an automobile who heard a rattling in the wire wheels would attempt to fix it and that the likelihood of the owner doing so would be enhanced by the failure of the service department to remedy the problem. Kelsey delineated four methods that could be used to avoid the sharp edge made by the stamping procedure utilized.
Robert J. Smith, an automotive engineer who has been employed by General Motors for 31 years, testified at trial. Smith examined the wire wheel cover in question and stated that it is not in the same condition as it was when it was installed, specifically detecting that two of the spokes were bent so that they were in contact with other spokes. Smith testified that, in his opinion, "there is no surface on the cover [wire wheel cover] that is unreasonably dangerous from the standpoint of normal customer usage of the part." Smith further testified that upon removal of the retainer disc during disassembly of the wire wheel cover, a typical sharp edge was evident which results when a steel part is stamped by a punch press and that any metal edge created in this manner will leave a slight burr. Smith noted that the only time the sharp edge would be exposed is if the five bolts were removed and the cover taken off. Smith stated that the metal edge in question is sufficiently sharp to cut human flesh, tendons and nerves.
At the close of all the evidence, defendants made a motion for directed verdict which was denied. On January 9, 1981, the jury returned a verdict in favor of plaintiff and against defendants in the sum of $125,000. On February 6, 1981, defendants filed a post-trial motion for judgment in accordance with the motion for directed verdict, judgment notwithstanding the verdict or in the alternative, a motion for new trial. The motions were denied, judgment was entered on the verdict, and defendants took this appeal.
Defendants assert that the trial court erred in denying the motions for directed verdict and for judgment notwithstanding the verdict in that, as a matter of law, the product was not unreasonably dangerous when used in a reasonably foreseeable manner and for the purpose for which it was intended. Plaintiff argues that whether a product is unreasonably dangerous and used in a reasonably foreseeable manner are questions of fact for the jury and that, under the evidence introduced in the instant case, defendants are not entitled to a judgment under the Pedrick standard. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) Thus, the issue before us on appeal is whether the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendants that no contrary verdict based on this evidence could stand under the theory advanced by plaintiff.
• 1 We note at the outset that plaintiff has proceeded under the theory of strict liability in tort and in order to recover under that theory, plaintiff must prove that the injury "resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control." (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, 188.) The Illinois Supreme Court in Suvada cited, with approval, section 402A of the Restatement (Second) of Torts involving the strict liability of the seller of products for physical harm caused to the user or consumer.
The rule enunciated in section 402A "applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer" and the product "must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Restatement (Second) of Torts, section 402A, comment i, at 352 (1965).) There is no concise definition as to what constitutes an unreasonably dangerous condition. (Burke v. Illinois Power Co. (1978), 57 Ill. App.3d 498, 373 N.E.2d 1354.) The court in Burke went on to note that "[s]ince the classification of a product as unreasonably dangerous is dependent on a variety of circumstances, it naturally falls upon a jury in most instances to make the determination as a matter of fact." (57 Ill. App.3d 498, 511, 373 N.E.2d 1354, 1367.) We further recognize that in order for a strict liability case to go to the jury, the evidence must give rise to a "reasonable inference" that the condition was an unreasonably dangerous one. Rockett v. Chevrolet Motor Division, General Motors Corp. (1975), 31 Ill. App.3d 217, 334 N.E.2d 764.
• 2 In the instant case it is undisputed that the disc on which plaintiff incurred his injury was sharp enough to cause the injury in question. Of course, there are many sharp edges on the various parts of an automobile that could not reasonably be classified as unreasonably dangerous considering their location and the unlikelihood that someone not a mechanic would come in contact with them. Whether a product can be classified as unreasonably dangerous depends in large part on its intended or foreseeable use. (Winnett v. Winnett (1974), 57 Ill.2d 7, 310 N.E.2d 1.) Whether plaintiff cut his hand on the wire wheel cover in question or the extent of his injuries are not at issue before this court, these facts are uncontroverted; rather, in our view, the real inquiry involves whether plaintiff was acting in a reasonably foreseeable manner in attempting to repair the wheel cover himself and whether the method he utilized was reasonably foreseeable.
• 3 Strict liability in tort will only be imposed when a product is unreasonably dangerous when used in a reasonably foreseeable manner. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill.2d 339, 247 N.E.2d 401; Winnett v. Winnett (1974), 57 Ill.2d 7, 310 N.E.2d 1; Illinois Pattern Jury Instructions, Civil, No. 400.06 and comment (2d ed. 1971).) The liability of a manufacturer extends only to situations in which a product is being used for its intended purpose or in a manner for which it is reasonably foreseeable that it may be used. In Winnett, the Illinois Supreme Court went on to note:
"A foreseeability test, however, is not intended to bring within the scope of the defendant's liability every injury that might possibly occur. * * * Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur." 57 Ill.2d 7, 12-13, 310 N.E.2d 1, 4-5.
In the instant case the expert witnesses had different opinions as to whether plaintiff's injury occurred in a reasonably foreseeable manner. Severy and Kelsey testified that if spokes on a wire wheel become loose, the owner might attempt to fix them himself, and Kelsey further testified that the likelihood of the owner doing so would be enhanced by the failure of the service department to remedy the problem. Severy concluded that the method used by plaintiff was not the "learned approach" but was the direct and foreseeable method to be utilized. On the other hand, Smith, noting that the sharp metal edge would only be exposed if the five bolts were removed and the cover taken off, testified that the wheel cover was not unreasonably dangerous for "normal customer usage."
We have some reservations concerning the probative value of some of the "expert" testimony adduced in the instant case as it merely stated the obvious about ordinary human behavior. We cannot say that the admission of such evidence was prejudicial to defendants.
• 4, 5 In Illinois, an expert is permitted to express his opinion on ultimate issues in a case on the theory that because the trier of fact is not required to accept the opinion of the expert, the admission of such evidence does not usurp the province of the jury. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill.2d 118, 273 N.E.2d 809; Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App.3d 971, 326 N.E.2d 74.) "The conflicting testimony of expert witnesses normally raises an issue uniquely determinable by the trier of fact, who is in a better position to review the pertinent exhibits and assess the credibility of the witnesses." (St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App.3d 165, 179, 298 N.E.2d 289, 299. See also Anderson v. Hyster Co. (1977), 56 Ill. App.3d 41, 371 N.E.2d 279.) Further, questions of foreseeability are ordinarily for the jury to resolve. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill.2d 339, 247 N.E.2d 401.) Whenever there is doubt as to the foreseeability of a particular use, whether the maker should have anticipated such use is an issue of fact. Kuziw v. Lake Engineering Co. (7th Cir. 1978), 586 F.2d 33, citing 2 J. Dooley, Modern Tort Law sec. 32.79 (1977).
• 6 In light of the foregoing and after careful review of the record, we find that there was sufficient evidence to submit the case to the jury and, therefore, the trial court did not err in denying defendants' motions for directed verdict and for judgment notwithstanding the verdict. As stated, questions of foreseeability, as well as whether a product is unreasonably dangerous, are ordinarily for the jury to decide. Further, in the instant case we have the conflicting testimony of expert witnesses which raises issues of fact. As to the issue of foreseeability, we have the prior attempts of plaintiff to have the problem remedied by Elder's service department and the existence of the spoke repair kit, which could be purchased by any Cadillac owner, as proof that such problems were foreseen. We cannot say, as a matter of law, that the sharp edge on the disc is not an unreasonably dangerous condition when used in a reasonably foreseeable manner.
Defendants cite Tibbets v. Ford Motor Co. (1976), 4 Mass. App. 738, 358 N.E.2d 460, as a factually similar case which supports their position. In Tibbetts, the plaintiff injured his fingers while attempting to remove a wheel cover from his automobile. In partially denying defendant's motion for directed verdict, the trial court allowed four counts in this negligence action to go to the jury. The jury imposed liability against defendant for "negligent failure to inspect and test the wheel cover." On appeal, the appellate court reversed the trial court, holding that defendant's motion for directed verdict should have been allowed. While we recognize that Tibbetts, like the instant case, involved an injury incurred as a result of contact with a wheel cover, we note initially that Tibbetts was a negligence action and, in the instant case, plaintiff proceeded under the theory of strict liability in tort. Further, the court in Tibbetts expressly stated that that case did not involve a wheel cover slot with hidden sharp edges that could seriously injure someone merely inserting his hand. For the reasons stated, we find Tibbetts distinguishable from the instant case.
Defendants also assert that the trial court erred in denying their alternative motion for new trial in that the cumulative effect of certain trial errors deprived defendants of a fair trial. Without detailing defendants' specific contentions, we note that we agree with plaintiff that, considering the length of the trial and the nature of the litigation, the trial was remarkably free of error and well tried on both sides. We have reviewed the alleged errors and find none to be prejudicial as to deprive defendants of a fair trial.
• 7, 8 One matter deserves mention. Defendants complain of testimony concerning other alleged defects in the construction of the wheel covers and the admissibility of a spoke repair kit and a service bulletin that made reference to the repair kit. This evidence was admissible, not as proof of additional defects, but simply to show that the spokes did in fact rattle, that being the reason the plaintiff undertook to repair the wheel cover. The availability of the spoke repair kit was relevant to the question of defendants' knowledge that it was reasonably foreseeable that the spokes might become loosened and that the repair of the wheel cover might be undertaken by an owner.
For the foregoing reasons, the judgment of the circuit court of St. Clair County, entered on the jury verdict, is affirmed.
HARRISON, J., concurs.
JUSTICE WELCH, dissenting:
The majority employs many often-used rules of law, derived from section 402A of the Restatement (Second) of Torts. I cannot take issue with this language, as it has become a well-established part of the rhetoric of strict products liability. But in applying these generalities to the facts of this case, the majority has reached a result which, in effect, substitutes the foreseeability of the accident for the unreasonably dangerous nature of the product as the outer limit of liability. Because this is an unprecedented and unrealistic expansion of the law of products liability, I must dissent from the decision of the majority.
In its opinion, the majority notes that the plaintiff must show that the product was unreasonably dangerous when used in a reasonably foreseeable manner. To me, this involves two inquiries: first, was the plaintiff using the product in a reasonably foreseeable manner, and second, was the product unreasonably dangerous for that use. In this case, the majority confines itself to the first of these questions when it states that "the real inquiry involves whether plaintiff was acting in a reasonably foreseeable manner in attempting to repair the wheel cover himself and whether the method he utilized was reasonably foreseeable." (109 Ill. App.3d 11, 17, 440 N.E.2d 180, 185.) It answers both foreseeability questions in the affirmative, and thus finds liability.
I, too, agree that it was foreseeable that the plaintiff would work on the wheel cover. In fact, there are virtually no automotive repairs which I cannot imagine some consumer, somewhere, attempting at home. It is common knowledge that, in addition to spoke kits, other parts are available individually from dealers and independent suppliers. An entire car can be built, rebuilt or repaired with these parts, and in these times it is foreseeable that more people will decide to undertake these tasks themselves. Yet, it is the logical conclusion to the reasoning of the majority that if someone is cut while performing home auto repairs, of whatever sort, then he can recover from the manufacturer of the car.
The majority attempts to disclaim these obvious results of its decision by stating that "there are many sharp edges on the various parts of an automobile that could not reasonably be classified as unreasonably dangerous considering their location and the unlikelihood that someone not a mechanic would come in contact with them." (109 Ill. App.3d 11, 17, 440 N.E.2d 180, 185.) But this so-called limitation of the holding is actually no limitation at all. If foreseeability is the boundary of liability, then, as I have noted above, virtually any car-repair injury, being reasonably foreseeable, is actionable. If the location of the sharp edge is the test, then what about a sharp edge near the carburetor? Behind the dashboard? In the distributor? Under the valve covers? The majority provides no reason that a sharp edge in these locations, all of which are common trouble spots, would not give rise to the manufacturer's liability, while an injury received after the removal and disassembly of the wheel cover, is actionable. I fail to detect any obvious difference between the former locations and the latter, nor does the majority suggest any.
The flaw with the majority's opinion is that it unsuccessfully attempts to confine its result to "foreseeable" repairs, whatever they may be, while ignoring the very limitation which section 402A itself places on liability — namely, that the product be unreasonably dangerous. Whether a product may be considered to be unreasonably dangerous is a question of policy, involving such factors as
"(1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger, particularly for established products, (6) the avoidability of injury by care in use of the product, including the effect of instructions or warnings, and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive." (63 Am.Jur.2d, Products Liability sec. 132 (1972).)
In finding liability because the plaintiff's repairs were reasonably foreseeable, the majority has stopped short of discussing these issues and thus fails to meet the policy objections which the appellants raise to challenge the judgment against them. Moreover, by analyzing only the plaintiff's conduct, the majority also departs from the fundamental tenet of products liability law that the focus in such a case should be on the product itself. Kerns v. Engelke (1979), 76 Ill.2d 154, 390 N.E.2d 859.
Simply stated, the broad question posed by this case is what standard of performance is to be demanded from an auto manufacturer. The plaintiff's complaint alleged that his Cadillac was defective because the edges were sharp in the area under the center disc of the wheel cover, because no warning was provided to protect the consumer from that hazard, and because no instructions were given. If, as the majority holds, these defects are actionable, then a car is reasonably safe only if virtually every potentially sharp edge is trimmed with jewelry-like precision, if the car is bedecked with warning stickers for each sharp edge which could remain, and if a service manual is provided to the buyer. I cannot believe that a car which falls short of these standards is "unreasonably dangerous." An examination of the relevant case law reveals more realistic guidelines.
Most of the reported decisions in which a plaintiff has recovered damages for a defective automobile have involved the inability of the car to serve its primary function — transportation. Engine, transmission, brake, and steering failure are typical subjects of these cases. (Annot., 78 A.L.R.2d 460 (1961); R.M. Goodman, Automobile Design Liability (1970, Supps. 1971-1977, 1981).) Such a defect is not presented here. Instead, we are faced with a cutting surface which injured the plaintiff only when he acted to repair his car on his own.
It has been held that a plaintiff who is cut on a sharp edge in the passenger compartment of a car may recover damages for his injuries. (Ford Motor Co. v. Zahn (8th Cir. 1959), 265 F.2d 729 (passenger thrown into jagged edge on ashtray in 1956 Ford).) In certain situations, it has been held that one who collides with a sharp edge on the exterior of a car is also entitled to recover damages. (Compare Green v. Volkswagen of America, Inc. (6th Cir. 1973), 485 F.2d 430 (girl's finger severed in body vent of parked 1956 microbus while she was playing ball in its vicinity), and Passwaters v. General Motors Corp. (8th Cir. 1972), 454 F.2d 1270 (motorcyclist cut on decorative flippers on wheel cover during collision with 1964 Buick), with Schneider v. Chrysler Motors Corp. (8th Cir. 1968), 401 F.2d 549 (car owner cut on wing vent window of 1960 Valiant while trying to look into car in dark garage to see if keys were in it), Hatch v. Ford Motor Co. (1958), 163 Cal.App.2d 393, 329 P.2d 605 (child walked into radiator ornament on 1939 Ford), Kahn v. Chrysler Corp. (S.D. Tex. 1963), 221 F. Supp. 677 (child rode bicycle into tailfin of 1957 Dodge).) Similarly, plaintiffs who have been cut while performing what can best be described as "routine maintenance" have established the liability of the manufacturer. (Kikis v. Ford Motor Co. (Fla. App. 1980), 386 So.2d 306, rev'd (Fla. 1981), 401 So.2d 1341, on remand (Fla. App. 1981), 405 So.2d 1061 (owner cut on hole of wheel cover while removing it to change tire); Vlahovich v. Betts Machine Co. (1970), 45 Ill.2d 506, 260 N.E.2d 230 (truck driver cut by plastic lens of clearance light which shattered while he was changing a bulb). See also Pouncey v. Ford Motor Co. (5th Cir. 1972), 464 F.2d 957 (car owner cut by blade which broke off from radiator fan while owner was adding anti-freeze to car).) Also, I might add that the plaintiff in Tibbetts v. Ford Motor Co. (1976), 4 Mass. App. 738, 358 N.E.2d 460, was attempting to perform such routine maintenance when he was injured, namely, changing a tire. However, he sought to remove the wheel cover by inserting his bare hand into the decorative slots of the cover and pulling it, instead of trying to pry the cover loose. (Compare Kikis v. Ford Motor Co.) Tibbetts should properly be thought of as an example of a misused product. That case is not distinguishable from the present case, as the majority claims, because it was a negligence action, since the court specifically answered the question of whether the wheel cover was defective, which is a prerequisite to proving a case either in negligence or in strict liability.
All of the cases discussed above limit liability to those plaintiffs who were automobile passengers, those who collided with the automobiles, and those who were performing routine maintenance such as changing tires, light bulbs and filters or adding vital fluids. It is reasonable to expect a manufacturer to trim those edges which could come in contact with someone engaging in these common activities. But to require that all surfaces between the center crest piece and the retaining disc of the wheel cover be completely safe for human contact would effectively require all surfaces anywhere in the car to be machined to perfection.
Nor does Elliott v. General Motors Corp. (7th Cir. 1961), 296 F.2d 125, justify such a result. There, the plaintiff was a mechanic who was employed to replace the piston rings on a Chevrolet. While he lay on his back underneath the car with his hand extended through an opening in a splash shield under the front end of the car, removing fan pulley bolts and loosening connecting rod bolts with a socket wrench, his hand slipped from the wrench, throwing his right wrist against a sharp edge on the shield. Although replacing the piston rings is certainly not routine maintenance, this case is of no assistance to the plaintiff, because the opening in the shield was designed specifically to permit mechanics to gain access to the engine compartment. There is no proof that the opening under the wheel cover of the plaintiff's Cadillac was intended to provide any sort of access for repair work, despite the plaintiff's reference in his complaint to this space as an "access area." In fact, the only way that the sharp edge could be exposed was for the plaintiff to remove the wheel cover and then remove the five bolts in the wheel cover in order to disassemble it.
The majority's decision to hold the defendants liable for failure to correct a sharp edge in an opening underneath the center crest piece of the wheel cover means that auto manufacturers must trim all possibly sharp edges, of glass, plastic, or metal, wherever they are located, so as to make the car as safe as a child's toy. Such a standard of perfection in workmanship, while a commendable goal, cannot be the test of whether a product is unreasonably dangerous. Instead, consideration of the relevant policy issues and cases discussed above shows that a sharp edge on a car is not unreasonably dangerous unless it is likely to come in contact with a passenger, with someone who collides with the vehicle, or with someone who performs routine maintenance on the car. Such an edge would also be unreasonably dangerous if it were on a part designed as an access area. (Elliott.) Since none of these descriptions applies to the metal edge in question, there can be no reasonable inference that the automobile was unreasonably dangerous (Rockett v. Chevrolet Motor Division, General Motors Corp. (1975), 31 Ill. App.3d 217, 334 N.E.2d 764), and therefore the court erred in submitting this case to the jury.
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New Jersey Superior Court, Appellate Division
Decided: March 6, 1973.
Labrecque, Kolovsky and Matthews. The opinion of the court was delivered by Labrecque, P.J.A.D.
[123 NJSuper Page 42]
The Commissioner of the Department of Institutions and Agencies (Commissioner) gave notice of his intention to promulgate a rule governing payments to county welfare boards for eligibility investigations pursuant to the Medical Assistance and Health Services Act (Medicaid Act), N.J.S.A. 30:4D-1 et seq. Objections to the proposed rule were received and a hearing was held before the Acting Commissioner of the Department, in which those objecting to the proposed rule participated. On January 21, 1972 the Acting Commissioner filed his decision in which he concluded that the proposed rule complied with the letter and intent of the applicable statutes and should be adopted. It was formally adopted on February 2, 1972 as N.J.A.C. 10:49-1.1. The present appeal by the Essex County Welfare Board (Board) followed.
Appellate raises two points as follows: (1) "The reimbursement for investigating and determining eligibility provisions of N.J.A.C. 10:49-1.1 violate the intent of the medical assistance program (N.J.S.A. 30:4D-1 et seq.) and therefore were beyond the power of the Department of Institutions and Agencies to promulgate"; (2) "The regulation in question conflicts with 42 U.S.C.A. Section 1396(a)(2) [1396a(a)(2)] and therefore is void." We find them to be without merit.
Pursuant to Title XIX of the Social Security Act, which enabled the states to take advantage of partial federal funding of a state administered medical assistance program, 42 U.S.C.A. § 1396 et seq. , the New Jersey Legislature enacted the act setting up Medicaid, L. 1968 c. 413, N.J.S.A. 30:4D-1 et seq. The intent of the act was stated to be:
It is the intent of the Legislature to make statutory provision which will enable the State of New Jersey to provide medical assistance, insofar as practicable, on behalf of persons whose resources are determined to be inadequate to enable them to secure quality medical care at their own expense, and to enable the State, within the limits of funds available for any fiscal year for such purposes, to obtain all benefits for medical assistance provided by the Federal Social Security
[123 NJSuper Page 43]
Act as it now reads or as it may hereafter be amended, or by any other Federal act now in effect or which may hereafter be enacted. [ N.J.S.A. 30:4D-2]
The Department of Institutions and Agencies was designated as the single state agency to administer the act. N.J.S.A. 30:4D-3 and 5.
Title XIX makes appropriations available to those states which submit and have approved by the Secretary of Health, Education and Welfare plans for medical assistance which meet federal standards. 42 U.S.C.A. § 1396. One requirement is that the state plan include as persons eligible for medical assistance those who are recipients of aid under the federally established "categorical assistance" programs, i.e. , (1) old age assistance, 42 U.S.C.A. § 301 et seq.; (2) assistance for the permanently and totally disabled, 42 U.S.C.A. § 1351 et seq.; (3) assistance for the blind, 42 U.S.C.A. § 1201 et seq. , and (4) assistance for dependent children, 42 U.S.C.A. § 601 et seq. In compliance therewith, the New Jersey Medicaid Act includes in the definition of a "qualified applicant" for Medicaid a resident of the State who it is determined needs medical care and services as provided under the act, and who is a recipient of old age assistance, N.J.S.A. 44:7-1 et seq. , assistance for the permanently and totally disabled, N.J.S.A. 44:7-38 et seq. , assistance for the blind, N.J.S.A. 44:7-43 et seq. , or assistance for dependent children, N.J.S.A. 44:10-1 et seq., N.J.S.A. 30:4D-3(f).
The federal act also requires that the state medical assistance plan:
[P]rovide for financial participation by the State equal to not less than 40 per centum of the non-Federal share of the expenditures under the plan with respect to which payments under section 1396b of this title are authorized by this subchapter; and, effective July 1, 1969, provide for financial participation by the State equal to all of such non-Federal share or provide for distribution of funds from Federal or State sources, for carrying out the State plan, on an equalization or other basis which will assure that the lack of adequate funds from local sources will not result in lowering the amount, duration,
[123 NJSuper Page 44]
scope, or quality of care and services available under the plan. [42 U.S.C.A. § 1396a(a)(2)]
To the extent here pertinent part (b) of section 1396 of 42 U.S.C.A. provides for payment by the Federal Government of at least 50% of the cost of actual medical assistance and 75% of the cost of administration, leaving to the state the burden of paying 50% (or less) of the cost of actual health care and 25% of the cost of administration. The New Jersey Medicaid plan provides that state funds be utilized to pay all non-federal costs. As approved on December 31, 1969 the plan provides, in pertinent part:
Under general policies established by the State Board of Control the commissioner is authorized and empowered to issue, or to cause to be issued through the Division of Medical Assistance and Health Services all necessary rules and regulations and administrative orders, and to do or cause to be done all other acts and things necessary to secure for the State of New Jersey the maximum Federal participation that is available with respect to a program of medical assistance, consistent with fiscal responsibility and within the limits of funds available for any fiscal year, and to the extent authorized by the medical assistance program plan; to adopt fee schedules with regard to medical assistance benefits and otherwise to accomplish the purposes of this act, including specifically the following:
n. To contract with and to pay the appropriate county welfare boards for investigating and determining whether applicants for benefits under this act are eligible therefor under the standards prescribed by the department. [ N.J.S.A. 30:4D-7(n)]
It was in response to inquiries as to the extent of the reimbursement to be made to county welfare boards for eligibility investigations that the Commissioner promulgated the rule here involved. Although there was some uncertainty as to the exact wording of the rule as finally promulgated, it was agreed, subsequent to oral argument, that the rule provides as follows:
The Division of Medical Assistance and Health Services shall represent the Commissioner for purposes of contracting with and paying county welfare boards for investigating and determining whether
[123 NJSuper Page 45]
applicants for benefits under the Health Services Program are eligible therefor, however, payment to county welfare boards for investigations is limited to payments for investigations made solely and exclusively for the purpose of determining eligibility for medical assistance under the Medical Assistance and Health Services Act.
Investigations by county welfare boards for purposes other than described herein are outside the purview of N.J.S.A. 30:4D-7n [30:4D-7, subd. n], and consequently not reimbursable under the Medical Assistance and Health Services Act. [Emphasis added]
In rendering his decision upholding the rule the Acting Commissioner held:
Medical assistance provided to individuals under the Health Services Program is merely incidental to and a benefit of one's eligibility as a "categorical assistance" recipient. No application for medical assistance need be made where the applicant applies for a county grant. The investigation made by the county welfare board is made pursuant to already established procedures under applicable welfare legislation and is appropriately funded. Any payment by the Title XIX (Medicaid) agency for this type of work function would not only be a violation of HEW Regulations but would clearly be outside the purview of Chapter 413. The New Jersey Legislature has promulgated legislation under which county welfare boards have established procedures relating to eligibility determinations for categorical assistance programs. Chapter 413 cannot be construed to require payment to county welfare boards from the Title XIX dollars for services which are already required to be performed by the welfare boards pursuant to other applicable legislation. Clearly, therefore, only where the county is acting as agent for the Title XIX agency solely and is not engaged in work activity already required to be performed pursuant to other law can reimbursement be made. Any other interpretation such as proposed by the opponents to the proposed regulation would, I believe, create a subsidy to the counties for work already required, and be clearly contrary to the intent and letter of State and Federal law.
Public welfare in New Jersey is administered through various avenues, the best known of which are the categorical assistance programs referred to above. With respect to an application by a client for a categorical assistance grant, the county welfare board is charged with determining his eligibility for such aid. The overall cost of this program, including both assistance expenditures and administrative overhead, is shared jointly by the federal, state and county
[123 NJSuper Page 46]
governments. In the case of Medicaid, as noted, such costs are shared only by the federal and state governments. While the Commissioner is given power to contract with county welfare boards for investigating and determining whether applicants for benefits under Medicaid are eligible therefor under the standards prescribed by the Department, no formal contract has yet been entered into, and the rule in question would appear to govern the type of services for which payments are to be made to welfare boards in connection with administration of the Medicaid program.
Appellant cites no case, and we know of none, in which a rule similar to the present one has been invalidated. We are, of course, mindful that the Commissioner's action is entitled to the benefit of the customary rebuttable presumption of validity and regularity afforded to administrative regulations generally. Motyka v. McCorkle , 58 N.J. 165, 181 (1971).
As we read appellant's point one, its main challenge to the rule under review is predicated upon the contention that since subsection (n) requires the State to reimburse county welfare boards through the Medicaid program for eligibility investigations, and since Medicaid benefits flow from eligibility for categorical assistance, the cost of any investigation to determine eligibility for categorical assistance should be assumed by Medicaid. We disagree. To the extent here pertinent subsection (n) mandates only that the Commissioner pay for investigating and determining whether applicants for benefits "under this act are eligible therefor under the standards prescribed by the department." Categorical assistance recipients are automatically eligible for benefits under the act. N.J.S.A. 30:4D-3(f)(1). In a given case, the additional issue of whether an eligible applicant is in need of medical care and services, N.J.S.A. 30:4D-3(f), under the standards prescribed by the Department, may or may not require for its resolution an investigation and determination for which the statute calls for payment by Medicaid.
[123 NJSuper Page 47]
The nub of appellant's argument centers upon a group of Medicaid recipients, alleged to number about 1,000, who, although found to be eligible for categorical assistance, receive only a nominal monthly allowance of $9 to $13 for clothing or other incidentals. It is suggested that for the most part these applications are prompted by the desire of the client to qualify for Medicaid. We find no cause to differentiate between a client receiving full categorical assistance and one receiving only partial assistance. In each case the grant made is in accordance with the client's determined needs. Neither type of assistance may be granted without the requisite investigation and determination of eligibility. Such action would be required whether or not the client also intended to seek Medicaid benefits; it is prescribed under Title 44 legislation which preceded Medicaid and is separately and adequately funded. See East Orange v. McCorkle , 99 N.J. Super. 36, 41-43 (App. Div. 1968). Whether or not an applicant for categorical assistance is seeking a Medicaid grant, the investigation to determine his eligibility for such assistance is not the responsibility of Medicaid. Funds allocated to that program may not be thus diverted. To hold otherwise would be to relieve the counties of payment of their fair share of the cost of categorical assistance.
We are likewise convinced that the regulation in question does not conflict with 42 U.S.C.A. § 1396a(a)(2). While that section requires that the medical assistance plan be completely funded, the New Jersey plan provides that state funds will be utilized to pay all of the non-federal costs incurred. What we have already said with reference to the asserted conflict between the regulation and N.J.S.A. 30:4D-7 likewise applies to this contention.
Our conclusion in this regard is not to be construed as holding that where a single investigation of a welfare client is conducted for the purpose of determining both his eligibility for categorical assistance and for Medicaid, the latter program should not bear the cost of such portion of
[123 NJSuper Page 48]
the investigation as is required to be made to determine if the client is in need of the services furnished by Medicaid. It is conceded by the Attorney General in his brief that "If appellant has legitimately incurred expenses not connected with eligibility determinations, which expenses are solely attributable to the administration of the Medicaid program and would not exist in the absence thereof, appellant should submit substantiated requests for reimbursement to the Division. These requests will be reviewed and considered * * *."
By reason of the foregoing, appellant's attack on regulation N.J.A.C. 10:49-1.1 must be rejected and the Commissioner's action in adopting it is affirmed.
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- Product Description
DetailsYves black tripod table lamp base makes a dramatic statement light with its streamlined tapered legs made from powder coated metal.
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Cheesy Pasta Primavera
Total Time
Prep 0 mins
Cook 0 mins
Ingredients Nutrition
- 4 cups fusilli or 4 cups rotini pasta, uncooked (corkscrew pasta)
- 2 tablespoons butter
- 2 medium carrots, thinly sliced
- 1 clove garlic, chopped
- 1 small onion, chopped
- 1 small zucchini, unpeeled, coarsely chopped
- 1 cup fresh mushrooms, quartered
- 3 tablespoons all-purpose flour
- 2 cups milk
- 3⁄4 cup low-fat cheddar cheese, grated
- 1 teaspoon mustard
- salt & pepper, freshly ground
- Cook pasta according to package directions. Drain.
- Meanwhile, in large saucepan over medium heat melt butter. Saute carrots in butter 3 minutes.
- Add garlic, onion, zucchini and mushrooms. Cook until tender.
- Stir in flour. Gradually stir in milk, whisking until smooth.
- Cook, stirring constantly, until mixture boils and thickens.
- Remove from heat. Stir in Cheddar cheese, dry mustard, salt and pepper to taste. Stir in cooked pasta.
- Serve immediately.
Most Helpful
Yummy and cheesy! I used Velveeta instead of cheddar, green onion instead of white onion and cornstarch instead of flour. Next time I make this I'm using zucchini, broccoli and cauliflower! This is a versatile pasta that can be adjusted to suit your taste buds!
This was good. I used rotini and ended up putting yellow squash and carrots in as the only veggies. I had the zucchini but accidentally sliced up the squash instead so decided to just go with it! Didn't have the garlic (just ran out!) or the onions and wouldn't have used the mushrooms if I had them anyway. Also, used regular cheese rather than the low-fat. So, despite all my modifications I did enjoy this meal! My kids of course ate the pasta and not the vegetables, but I would think that there are children out there who would eat their veggies if it were mixed with cheese sauce and noodles. And for those kids this would be a very nice recipe indeed!
I really, really liked this, but DH did not, but he doesn't like anything creamy. I made a few changes: realized at the last minute that I didn't have any milk, so I used 1 cup heavy cream, 1 cup water; used a splash of regular mustard as I could not find my dry mustard; could not find my fresh garlic, so I sprinkled garlic powder. Sounds like I made a lot of changes, but I really did not. I thought it was a tasty way to get myself to eat veggies (I hate veggies!)


text:
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When developing hybrid mobile solutions one of the major challenges every developer faces is to handle the device fragmentation. There are an overwhelming number of devices out there, that it is sometimes impossible to cater to all of them and to provide a uniform user experience through a single hybrid mobile solution. Continue reading
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Recently in one of our applications, we noticed sluggish response times and crashes of a real-time SVG graph. This issue happened only when the graph was running in the background in an inactive tab of the browser window and then when brought back to front after a considerable amount of time.
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July 3, 2008
ROBERT J. TRIFFIN, PLAINTIFF-APPELLANT,v.WAL-MART STORES, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, DC 905-07.
Argued May 12, 2008
Before Judges Stern, Collester and C.L. Miniman.
Plaintiff appeals from an order of September 4, 2007, which granted summary judgment to defendant Wal-Mart Stores, Inc., and an order of September 25, 2007, denying reconsideration. The Special Civil Part held that plaintiff's opposition to summary judgment was untimely and, on reconsideration, that plaintiff "failed to meet [his] burden" to show "that the Court erred or overlooked something in [its] prior decision." We can find no statement of reasons for the original order granting summary judgment, apparently because it was marked "unopposed."*fn1
The answer to the summary judgment motion was filed on a date later than that noted in a "status report" letter from WalMart's counsel to the court, dated July 19, 2007, which stated "absent settlement, Plaintiff will file opposition to the Motion for Summary Judgment on or before August 3, 2007." Plaintiff states he understood that he had until August 8, 2007, to respond and he met that deadline. The judge relied on the defendant's letter of July 19, 2007, notwithstanding that the motion was originally made returnable on August 17, 2007. See R. 6:3-3(b)(1) (referring to R. 1:6-2(d)).
We need not pursue the issue, in any event, as summary judgment presents a question of law, and there are no reasons given for the original grant of the motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We cannot simply affirm the disposition on procedural grounds, even if we were otherwise inclined to do so, because no statement of reasons or opinion accompanied the grant of summary judgment. See R. 1:7-4.
It is undisputed that plaintiff purchased the subject dishonored checks drawn on Wal-Mart's account with J.P. Morgan Chase Bank. In his first amended complaint, plaintiff alleged with respect of each of the nine checks:
1. As evidenced by an assignment agreement attached hereto as Exhibit "A", plaintiff Triffin purchased from the assignor identified in Exhibit "A", all of assignor's rights in a dishonored check, Exhibit "B", that the defendants respectively drew and cashed with assignor.
2. As evidenced by the back of the attached dishonored check, on the date identified thereon the defendant payee endorsed the referenced check, and in exchange for such endorsement, assignor gave value by cashing the referenced check for said defendant payee.
3. At the time assignor cashed the referenced check, assignor had no knowledge of any defenses or claims by any party to the referenced check, and thereby, assignor became a holder in due course of the referenced dishonored check as provided by N.J.S.A. 12A:3-302.
4. Pursuant to the controlling decision of the Appellate Division of the Superior Court of New Jersey in Triffin v. CIGNA Insurance Company, 297 N.J. Super. 199 (App. Div. 1997), plaintiff has the legal status of a holder in due course in this action.
5. Pursuant to N.J.S.A. 12A:3-414, the defendant drawer of the underlying dishonored check is deemed to have contracted with all who gave value for its referenced check; upon dishonor of its attached check that the defendant drawer would pay the amount of the referenced item to a party with the legal status of a holder in due course.
6. Pursuant to N.J.S.A. 12A:4-403, [and as explained in Official Comment Seven thereto], the defendant drawer's dishonor by "stop payment" is not a cognizable legal defense against a party such as plaintiff who has the legal status of a holder in due course.
Triffin contends that Triffin v. Cigna Ins. Co., 297 N.J. Super. 199 (App. Div. 1997), and Triffin v. Somerset Valley Bank, 343 N.J. Super. 73 (App. Div. 2001), establish that claims, including those under N.J.S.A. 12A:3-414, are freely assignable by a holder in due course even if taken by the assignee with knowledge of the dishonor. He further argues that "there is a material dispute as to Wal-Mart's claim [] that it did not issue the reference checks," thereby precluding summary judgment.
Triffin v. TD Banknorth N.A., 190 N.J. 326 (2007), dealt with assignability of dishonored checks and held the assignee could not enforce the midnight deadline against payor banks. Defendant asserts Triffin has no standing to the rights of the assignor of dishonored checks and that the checks were not issued by defendant and therefore not negotiable instruments.
Defendant insists the TD Banknorth opinion applies because plaintiff took the checks with knowledge of their dishonor.*fn2
Defendant also asserts it is not responsible because it never issued nor authorized the checks. Plaintiff counters that TD Banknorth is distinguishable because it related only to rights of assignees to claims under N.J.S.A. 12A:4-302, and does not overrule the Cigna and Somerset Valley Bank opinions.
We need not decide whether TD Banknorth applies to an assignee with knowledge of the dishonor for a claim under N.J.S.A. 12A:3-414 if the check cashing companies from which he purchased the checks were holders in due course. Stated differently, we need not decide if TD Banknorth stands for the proposition that all provisions of the Uniform Commercial Code (UCC) cannot be enforced by an assignee taking with knowledge of the dishonor, or if it dealt only with an issue under N.J.S.A. 12A:4-302 because it dealt with the legislative policy regarding that section which benefits "only the payee, collecting banks, and others who may have received the check before dishonor." TD Banknorth, supra, 190 N.J. at 328-29.*fn3 This is so because there appears to be a dispute as to whether the assignors were holders in due course.
Before resolving whether section 3-414 provides a remedy for the assignees of holders in due course, if they take with knowledge of the dishonor, the dispute of fact regarding whether the check cashing companies from which Triffin obtained these checks were holders in due course must be resolved. Wal-Mart claims that the checks were counterfeits and the front of the checks stated "THIS DOCUMENT CONTAINS A COLORED BACKGROUND ON FACE AND ARTIFICIAL WATERMARK ON BACK -- HOLD AT ANGLE TO VIEW." As the checks did not contain a watermark, Wal-Mart contends that "it was apparent that they were irregular and any holder was on notice to question their authenticity" and so no one could be a holder in due course under N.J.S.A. 12A:3-302(a)(1).*fn4
See N.J.S.A. 12A:3-305(b) (protecting holders in due course from personal defenses of N.J.S.A. 12A:3-305(a)(2) and (3)); N.J. Mortgage & Inv. Corp. v. Berenyi, 140 N.J. Super. 406, 408-09 (App. Div. 1976) ("[r]eal defenses are available against even a holder in due course ...; personal defenses are not available against such a holder"). If such checks were clearly fraudulent, then the check cashing companies would not be holders in due course and all rights assigned to Triffin would be subject to any defense available to Wal-Mart either under the Code or at common law.
We remand for further proceedings consistent with this opinion.
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April 4, 1962
CAROLINE C. ALMOND, ADMINISTRATRIX OF THE ESTATE OF ELINOR HYNES, DECEASED, A MINOR, APPELLANT,v.JOSEPH POLLON AND JOHN BROOMALL.
Per Curiam.
This is a suit by an administratrix to recover damages for the death of a small child who was run over by the defendant, Pollon. The other defendant, Broomall, is charged with responsibility on the theory that he did not stop or park his car in accordance with the pertinent Pennsylvania statutory provisions and that this failure contributed to the accident which resulted in the child's death. The trial judge directed a verdict in favor of the defendant Broomall; the jury returned a verdict in favor of the defendant Pollon. The trial judge not only charged the jury in detail but wrote a memorandum discussing the points in the case and denying the motion for a new trial. There was no error.
The judgment o the district court will be affirmed, 198 F.Supp. 301.
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Ever the artistic humorist, Mark Mulroney makes new album covers for obscure titles, and talks about why record packaging was a superior canvas.
For those in NYC, Mark has a new, unrelated show opening up at Mixed Greens this Thursday (4/30).
The third edition—and corresponding film—from Daniel Arsham's WTF Future Relic series will be released to the public tomorrow (4/28). The goal is to collect all 9.
Jamie xx – Gosh (Official Video)
Revolutions On Air: The Golden Era of New York Radio 1980 – 1988
Psycho Skate (1988)
Barry "Chicken" Deck, Primo Desederio, Diane Desiderio, Mark Gonzales, John Grigley, Tom Groholski, Tony Hawk, Christian Hosoi, Chuck Hults, Marty "Jinx" Jimenez, Bruce Logan, Rodney Mullen, Steve Rocco, and Mark "Gator" Rogowski.


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A lonely and beautiful little girl with a strange friend, a shy, thoughtful young man searching for a purpose in life that will surprise you, and an elderly, sensual woman whose art warns her of the future: these are the spines of the bizarre novelettes featured in this first volume of a series of trilogies. Due to our time pressures and the increasing stress and diversity of modern life, the audiobook listener's appetite for satisfying chunks of "binge listening" is increasing dramatically. These novelettes - or short novels - of 15,000 words each provide the subplots, complications, and wealth of characters and dramatic punch of full-length tomes, but are more digestible and less time consuming. Each, also divided into three convenient parts, is a self-contained, satisfying, piquant slice of fiction with fast-moving scenes, snappy dialogue, and endings with a twist - much in the style of The Twilight Zone. This series, Bright Shadows Series - Novelettes for Busy Folks, is a new brand in riveting fiction.
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Twilight Zone like but even more bizarre
I loved the variety and the underlying strangeness and sense of social anarchy--I especially liked the last short novel because it had spiritualistic overtones and yet a decay of sorts in the main character's spirit--I didn't even guess the ending I was so caught up in the creativity and mesmerizing effect of the plot-line.
I like the complete originality without being over the top. It was quietly weird but not too weird--like it could happen! I also loved its convenient format--three short novels each in three parts--it was handy listening on my exercise bike and I used my dumbbells with my hands and pumped with my feet!
No; he is quite a narrator; I don't believe how one man can do all those varied and nuanced voices--three short novels each with many characters--men and women and even children!
Yes, the end of the middle story, where it dawned on me who this person really was. Many would have guessed this sooner perhaps, I didn't know until the end--it didn't really matter because it was the riveting ride along the way that mattered most.
The structure of this trilogy and the short length of the novelettes make this a commuters and traveler's dream!
- ocdoug
Entertaining read reminscent of the Twilight Zone
This book is a series of 3 novellas, each story about 1 1/2 hours spread across 3 parts. The stories were entertaining with a surprise ending. The story and naration were varied enough to keep me entertained.
I have never listened to a story by R. Manokalas
Sure. I gave the narration only 3 stars because John Bell didn't do a great job of voicing females (at one point in a story I thought I was hearing an early century same-sex releationship). However, John Bell's voice otherwise enhanced the story with a good variety of voices and voice inflection.
I'd love to read a follow-up of this book with a few changes. The novella style is a great way to listen to a story when you're on the road or in a quick project.
The stories in this novella were mysterious and spooky. The narrator's voice, while entertaining, was too cheerful. I would have enjoyed listening to narration with spooky music either in the background or at appropriate points in the stories.
- Tinman


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The Eichmann Show 2015 1080p BluRay x264-SONiDO
And here's the 1080p rip.
Genre: Drama
Synopsis: Dramatisation of the team hoping to televise the trial of Adolf Eichmann, an infamous nazi responsible for the deaths of millions of Jews. It focuses on Leo Hurwitz, a documentary film-maker and Milton Fruchtman, a producer.


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United States District Court, S.D. New York
July 19, 2004.
LARRY WILLIAMS, IBN LEE, SHAWN McCOY, KEVIN THOMPSON, MAURICE CLARKE, Defendants.
Opinion & Order
On May 14, 2004, this Court conducted a hearing in response to
a motion filed by Defendant Larry Williams to suppress evidence
recovered during two searches in South Carolina. Police officer
Shannon Toole, Corporal Jonathan Guiles, police officer Glen
Richard Kufen, and Captain James Bryant Arnold, Jr. testified at
the hearing. Based upon their testimony, which I credit, I find
the following facts:
On December 14, 2001, the Georgetown South Carolina Police
Department received an anonymous tip that an individual named
Rossi Graham was located at an apartment at 1800 Prince Street.
There was an outstanding warrant for Graham's arrest, which had
been issued based on Graham's assault of a pregnant woman with a
hot iron. Graham was also known to have resisted arrest and fled
from police officers in the past.
Based upon this information, four officers were dispatched to
the Prince Street apartment; two officers positioned themselves
at the front door of the apartment, and two officers positioned
themselves at the back door. One of the officers at the front
door, Officer Toole, knocked on the door, and when a voice inside
the apartment asked "Who is it?" he identified himself as a
police officer. The officers then heard the sound of running
footsteps within the apartment, and the officers at the back door
observed the back door open and an individual resembling Graham
"peeked his head out the door very briefly and stuck it back
in[side], and yelled out: Oh, shit." The individual then slammed
the door and locked it.
Believing that this individual was Rossi Graham, the officers
kicked in the back door and proceeded to conduct a security check
of the apartment. The officers detained the three individuals
they found in the apartment, including Defendant Larry Williams,
handcuffed them, and led them into the living room. At this time,
Officer Toole read Mr. Williams his Miranda rights, patted him
down, and recovered some currency and a key to a motel room from
Mr. Williams's pocket.
During the protective sweep, narcotics were seen in plain view, and the individuals in the apartment were ultimately
arrested.*fn1 Mr. Williams gave a statement indicating that
some of the currency recovered from the pocket of his pants
belonged to him, some belonged to his cousin, Antoine Walker, who
was also present at the Prince Street Apartment, and that the
pants he was wearing did not belong to him.
At some point during the events described above, the officers
contacted police headquarters and requested additional
assistance. Captain Arnold responded to the call and, when he
arrived at the Prince Street Apartment, found Larry Williams and
Antoine Walker in handcuffs, sitting on the couch of the living
room and guarded by Officer Toole. John Murrell the individual
whom the officers had originally mistaken as Rossi Graham was
seated at the table in the kitchen, guarded by Corporal Guiles.
Captain Arnold then proceeded to one of the two bedrooms in the
apartment, where he found Officer Phil Volke standing guard and a
powdery substance he identified as crack cocaine on the bed. At
that time, Captain Arnold lifted a corner of the mattress and
recovered a 10 millimeter automatic revolver. At some time after the motel room key was recovered from Mr.
Williams, Officer Kufen was asked to join the investigation into
the Prince Street Apartment. He met with Captain Arnold, who
briefed him on the events at the Prince Street Apartment, and
then, using a telephone number on the hotel key, ascertained that
a motel room in Georgetown, South Carolina had been rented to
Antoine Walker. Officer Kufen then prepared an affidavit for a
search warrant, obtained a search warrant from a magistrate
judge, and executed the warrant with another officer. Crack
cocaine, heroin, and $4,280 in currency were recovered from the
motel room.
Defendant Williams now seeks to suppress evidence seized from
the Prince Street Apartment on the basis that (1) the officers'
warrantless entry into the apartment was unjustified; (2) the pat
down of Mr. Williams exceeded the permissible scope of Terry;
and (3) Captain Arnold's search under the mattress exceeded the
scope of a protective sweep. Mr. Williams also seeks to suppress
his statements to Officer Toole as the fruit of an illegal search
(i.e., the pat down), as well as all evidence seized from the
motel room on the theory that the recovery of the motel room key
and subsequent search of the room were fruits of the officers'
illegal entry into the Prince Street Apartment. Finally, Mr. Williams argues, in the alternative, that the
evidence from the motel room must be suppressed because it was
based on an improper warrant.
I. The Officers' Warrantless Entry of the Prince Street
Apartment Was Justified.
Although an arrest warrant permits an officer to arrest an
individual in his home, an arrest warrant does not permit an
officer to enter the home of a third party to arrest the wanted
individual on the belief that the wanted individual might be a
guest there. Steagald v. United States, 451 U.S. 204 (1981). In
order to effectuate such an arrest, absent exigent circumstances
or consent, the officer must have a search warrant for the third
party's home. Id. Here, the officers had an arrest warrant for
Rossi Graham, but did not have a search warrant to enter the
Prince Street Apartment. However, this fact does not render the
officers' entry into the apartment unlawful because exigent
circumstances justified the entry namely, the officers were in
hot pursuit of an individual whom they reasonably believed to be
Rossi Graham.
In United States v. Santana, 427 U.S. 38 (1976), the Supreme
Court held that when the police have probable cause to arrest a
suspect, and when that suspect is standing in the doorway of her
home, the police are justified in pursuing the suspect into her home when she retreats therein
after the police identify themselves, even if the police do not
have a warrant for the suspect's arrest. The Court found this
arrest justified under the doctrine of "hot pursuit," reasoning
that: "The fact that the pursuit here ended almost as soon as it
began did not render it any the less a `hot pursuit' sufficient
to justify the warrantless entry into Santana's house." Id. at
I find this reasoning applies equally when a suspect for whom
the police have an arrest warrant retreats into the house of a
third party. Although the rights sought to be protected by
requiring officers to obtain a search warrant before arresting an
individual in the home of a third party are the rights of the
third party rather than the rights of the suspect, the doctrine
of "hot pursuit" nonetheless justifies this entry. Indeed, when
holding that law enforcement officials must secure a search
warrant prior to making an arrest entry into third party
premises, the Supreme Court specifically stated that "a
warrantless entry of a home would be justified if the police were
in `hot pursuit' of a fugitive" and cited Santana. Steagald,
451 U.S. at 222. Because the officers' entry into the Prince
Street Apartment after the individual whom they reasonably
believed to be Rossi Graham retreated into the house was justified under the doctrine of hot pursuit,*fn2 the
evidence seized from the Prince Street Apartment that was in
plain view, will not be suppressed.
II. The Evidence Recovered From Mr. Williams's Person is
While patting down a suspect in order to determine whether he
is armed, officers may seize nonthreatening contraband detected
during the protective patdown search so long as the officers'
search stays within the bounds marked by Terry v. Ohio,
392 U.S. 1 (1968). See Minnesota v. Dickerson, 508 U.S. 366, 373
(1993). Here, Mr. Williams argues that because when Officer Toole
conducted a patdown of Mr. Williams and detected an item that he
could not identify, that in removing the item from his pocket
Officer Toole exceeded the bounds of a permissible Terry stop
and thus the item recovered and Mr. Williams's subsequent
statements must be suppressed. In Minnesota v. Dickerson the Supreme Court held that an
officer's continued exploration of a suspect's pocket after he
had already concluded that it contained no weapon exceeded the
bounds of Terry and the recovered item must be suppressed.
Id. at 378. Here, Officer Toole could not determine whether the
item in Mr. Williams's pocket was a weapon, so he removed it from
the pocket. In United States v. Rogers, 129 F.3d 76 (2d Cir.
1997), the Second Circuit found that an officer's continued
manipulation of an item in a suspect's pocket in order to exclude
the possibility that there was a weapon in the pocket was
permissible. Id. at 79 (the officer "manipulated the object for
`a few seconds' to determine what it was, and felt `a hard object
and then a softer object.' At that point, [the officer] was not
yet able to exclude the possibility that there was a weapon in
the pocket, so that the search was still within the bounds of
Because Officer Toole was unable to exclude the possibility
that the unidentified object was a weapon, he was within the
bounds of Terry to remove the item for further
inspection.*fn3 Therefore, neither the currency retrieved from Mr. Williams's pocket nor his subsequent
statements will be suppressed.*fn4
III. The Gun Found Under the Mattress is Not Admissible.
In United States v. Blue, 78 F.3d 56 (2d Cir. 1996), the
Second Circuit held that an officer's search between a mattress
and box spring exceeded the permissible scope of a protective
sweep, when all suspects had been sufficiently restrained, the
area between the mattress and box spring was clearly not within
the "grab area" of any suspect, and when there was no articulable
reason to believe that a person might be hiding between the
mattress and the box spring. "A protective sweep is a quick and
limited search of premises, incident to an arrest and conducted
to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of those places
in which a person might be hiding." Maryland v. Buie,
At the suppression hearing, Captain Arnold testified that it is
his "common practice" to lift the corner of mattresses during a
protective sweep "to make sure that there are no firearms, no weapons there anybody there can get
at." While this practice is certainly advisable if there is a
possibility that any individual could conceivably gain access to
such a firearm, given the circumstances at the Prince Street
Apartment when Captain Arnold lifted the corner of the mattress,
it is clear that Blue requires suppression of the gun that was
recovered. When Captain Arnold conducted his walk through of the
apartment, two suspects were seated on the sofa in the living
room, handcuffed, and guarded by an officer. The third suspect
was seated at a table in the kitchen, also guarded by an
officer.*fn5 Officer Phil Volke was present in the bedroom
where the gun was found, and Captain Arnold's testimony does not
suggest that he believed any additional suspects were at large.
Because the three detained individuals were adequately
restrained, the mattress was not within the grab area of any
detainee (they were in different rooms), and because no facts
were articulated to suggest that the officers suspected someone
was hiding under the mattress (or elsewhere in the apartment),
Captain Arnold's search under the mattress in the bedroom
exceeded the bounds of a permissible protective sweep as
articulated by the Second Circuit in United States v. Blue. Therefore, the gun must be
IV. The Search Warrant for the Motel Room.
Officer Kufen testified that the information he provided in the
affidavit for the search warrant was, at least in part, based on
The fact that much of the information contained in
[an] affidavit [is] not based on . . . first hand
knowledge is not, in and of itself, material to the
viability of that affidavit and the warrant. . . .
The only questions for the Court are whether the
[affiant's] reliance on that informant was
reasonable, and whether the Magistrate was fully
informed of all necessary facts when she made her
finding of probable cause for the issuance of the
search warrant.
Defendant Williams has moved to suppress the evidence seized
from the motel room because Officer Kufen had no first hand
information with respect to the facts he asserted in his
affidavit and the magistrate judge was never given the sources of
the hearsay statements. The Government has referred the Court to
its pre-hearing brief with respect to Mr. Williams's claims of
search warrant deficiencies. However, the Government's
pre-hearing brief does not appear to address this hearsay issue. Therefore, the Government is
directed to submit a supplemental brief on this matter no later
than 15 days from the date of this Opinion.
For the reasons stated above, with the exception of the gun
retrieved from under the mattress, Larry Williams's motion to
suppress evidence from the Prince Street Apartment is DENIED. The
motion to suppress Mr. Williams's statements during the search of
the Prince Street Apartment is DENIED. Mr. Williams's motion to
suppress the gun recovered from the Prince Street Apartment is
GRANTED. The Government is directed to submit further briefing
with respect to Mr. Williams's motion to suppress evidence seized
from the motel room.
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LRC, Inc. About Us


text:
At Riverside, we want you to feel comfortable and at home, ready to step into the presence of God through worship and word.
Services are Sundays at 9 & 11, and we provide free wifi, a cafe, and livestream rooms if you need a quite space to take your newborn child.
See what's going on at Riverside this week and beyond. Check out the video below to learn more!


text:
Brewed Iced Tea With Lemon
Total Time
2hrs 10mins
Prep 2 hrs
Cook 10 mins
My favorite beverage to have in the refrigerator. I make this tea almost daily.
Ingredients Nutrition
- 2 quarts water
- 3 (2 g) bags black tea
- 1⁄2 cup unbleached cane sugar
- 1⁄2 cup lemon juice
- In a teapot or large saucepan heat water until boiling.
- Steep tea bags in water for 2 hours.
- Add lemon juice and sugar to a 2 quart pitcher.
- Pour tea into pitcher and mix thoroughly.
- Set in refrigerator to chill.
Most Helpful
I halved the recipe and used 2 regular sized tea bags for one quart of water. I like the ratio of tea to lemon juice. Not too strong, just right. Thanks! Made for My 3 Chefs event.


text: Hand Of Pod Sam Kelly Buenos Aires Argentine football expert Sam Kelly, with the help of various friends including freelancer Dan Edwards, World Soccer's Joel Richards and a bunch of very knowledgeable real-life Argentines you won't have heard of, guide you through the minefield of one of the world's most competitive and longest-running leagues. We normally get a bit tipsy whilst recording, so quality may vary. Hand Of Pod's tracks Episode 243: The Argentine response to the Chapecoense crash, and some less important stuff by Hand Of Pod published on 2016/12/01 19:40:07 +0000 Episode 242: Teo gonna Teo, River slump and Estudiantes still lead by Hand Of Pod published on 2016/11/24 17:25:25 +0000 Episode 241: We are six! From despair to relief for Argentina, and returning to league action by Hand Of Pod published on 2016/11/18 15:56:55 +0000 Episode 240: Boca finally win away, and previewing Brazil v Argentina by Hand Of Pod published on 2016/11/10 05:58:35 +0000 Episode 239: Estudiantes continue to impress, and River's defence continues to disappoint by Hand Of Pod published on 2016/11/03 20:06:20 +0000 Episode 238: Estudiantes stay top, Newell's end their Central hoodoo and more by Hand Of Pod published on 2016/10/26 16:56:43 +0000 Episode 237: Tearing up the formbook, and yet more AFA nonsense by Hand Of Pod published on 2016/10/20 21:29:57 +0000 Episode 236: What is wrong with Argentina? by Hand Of Pod published on 2016/10/13 17:37:04 +0000 Episode 235: Central hit form, a dull La Plata clásico and upcoming World Cup qualifiers by Hand Of Pod published on 2016/10/05 18:07:30 +0000 Episode 234: Estudiantes maintain their lead, Bauza names his second Argentina squad & more by Hand Of Pod published on 2016/09/29 19:29:03 +0000


text:
TOXIC HOLOCAUST - Chemistry Of Consciousness (Vinyl) (2LP)
Notify me when back in stock
Black vinyl pressing limited to 2029 copies worldwide, Comes with bonus download code for the full album!
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Chemistry of Consciousness is the sound of Discharge on speed, Slayer with a punk rock chip on its shoulder, The Exploited on a Metallica overdose - the perfect marriage of punk angst and metal guitar licks and hooks.
If there's one thing the punks and the heshers will agree on in 2013, its that TOXIC HOLOCAUST's Chemistry of Consciousness is a rager of a record destined to top any worthwhile best of 2013 list.
Cat No: RLS7672121
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Packaging: Double LP
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text:
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Today, I played an intense paintball match, with me and my friends versus my boyfriend and his buddies. When we won, my boyfriend went mental and said he only lost because of "lag". When I pointed out we weren't in a video game, he reacted by firing a paintball straight into my chest. FML
by LagSwitchFTW / 01/25/2013 at 5:19pm / United Kingdom / Health
Today, my boyfriend and I were getting intimate. I grabbed his butt to control his thrusts and got a clump of used toilet paper. FML
by Anonymous / 01/18/2013 at 5:50am / United States / Intimacy
Today, the drummer of my band briefly mentioned something about not being allowed into the United States, just as he left our last practice before our big tour in America. FML
by musicalrose_21 / 01/20/2013 at 7:27am / United Kingdom (West Sussex) / Work
Today, my 8-year-old sister matter-of-factly said that she's going to get married before me if I don't stop wearing track pants. FML
by Kendra_Nine / 01/16/2013 at 1:28pm / Canada (Ontario) / Miscellaneous
Today, I learned my neighbor can access my wireless printer from his house after it started printing off pictures of what I'm assuming is his penis. FML
by itsrathersmall / 01/15/2013 at 4:58pm / United States (North Dakota) / Intimacy
Today, my girlfriend complimented me on my ass. Before I could say thanks, she continued by commenting that she wouldn't mind "breaking it in". FML
by great / 01/25/2013 at 3:36pm / Puerto Rico / Intimacy
Today, after making love to my boyfriend for the first time, he shook my hand and said, "Good job." FML
by Anonymous / 01/27/2013 at 5:44pm / Canada (Saskatchewan) / Intimacy
Today, I got a new girlfriend. Unfortunately, the last girl I asked out just responded to my relationship request on Facebook. It's been 4 hours, and my new girlfriend already thinks I'm cheating on her. FML
by George / 01/15/2013 at 3:53pm / United States (Washington) / Love
Today, I walked into the bathroom only to see my boyfriend sitting on the floor eating ice cream, crying. I'd say I was shocked, but this isn't the first time it's happened. FML
by Anonymous / 01/14/2013 at 3:24am / United States (Montana) / Love
Today, I took an IQ test and ended up scoring above average. Feeling good about myself, I decided to bake some cookies. After 30 minutes of them not doing anything in the oven, I realized I forgot to turn the oven on. FML
by steven / 01/24/2013 at 12:16am / United States (California) / Miscellaneous
Today, I went on a date with a co-worker I've been interested in for some time. The topic of discussion she chose over lunch: how she's living a double-life as an escort in Flint and that she thinks she's picked up an STD from unprotected sex. FML
by SonofDonald / 01/22/2013 at 12:20pm / United States / Love
Today, I got a text from an unknown number saying, "You shouldn't be eating that." I was eating a piece of chocolate, cheating on my diet. FML
by LucidNightmare / 01/27/2013 at 12:38am / United States (Colorado) / Miscellaneous
Today, I was discussing with my husband how it was time I stopped taking birth control so we could have a baby. He looked at me and said sincerely, "We're a little young to be having kids, don't you think?". He's 35 and I'm 32. FML
by StillTooYoung / 01/20/2013 at 8:13am / United States (Kentucky) / Love


text:
The stock of Gores Holdings Inc (NASDAQ:GRSH) reached all time high today, Oct, 17 and still has $17.82 target or 57.00% above today's $11.35 share price. This indicates more upside for the $540.00 million company. This technical setup was reported by Barchart.com. If the $17.82 PT is reached, the company will be worth $307.80M more.
Trading stocks at an all time highs is usually a winning strategy. An all time high points to a stock which has the most positive fundamentals ever. Even thought the pullback rate is high, if correct risk management is utilized, investors can trade very well such events. About 349,674 shares traded hands. Gores Holdings Inc (NASDAQ:GRSH) has risen 14.89% since March 14, 2016 and is uptrending. It has outperformed by 9.28% the S&P500.
Analysts await Gores Holdings Inc (NASDAQ:GRSH) to report earnings on November, 8.
According to Zacks Investment Research, "Gores Holdings, Inc. is a blank check company. The Company was formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination. Gores Holdings, Inc. is based in Beverly Hills, California."
More notable recent Gores Holdings Inc (NASDAQ:GRSH) news were published by: Seekingalpha.com which released: "The Gores Holdings, Inc. Acquisition Of Hostess Is More Expensive Than It Looks" on October 03, 2016, also Businesswire.com with their article: "Hostess Brands, Maker of Twinkies®, Announces Sale Agreement with Gores …" published on July 05, 2016, Businesswire.com published: "Gores Holdings, Inc. Completes $375 Million Initial Public Offering" on August 19, 2015. More interesting news about Gores Holdings Inc (NASDAQ:GRSH) were released by: Businesswire.com and their article: "Gores Holdings, Inc. Announces the Separate Trading of Its Class A Common …" published on October 15, 2015 as well as Seekingalpha.com's news article titled: "Gores Holdings: Delicious Opportunity, Stock Underpriced, Warrants …" with publication date: August 15, 2016.
GRSH Company Profile
Gores Holdings, Inc., incorporated on June 01, 2015, is a blank check company. The Firm was formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses.
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