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Diodato v. Camden County Park Commission

Decided: September 24, 1975.

RICHARD DIODATO AND KAREN DIODATO, HIS WIFE, AND KAREN DIODATO, AS GUARDIAN AD LITEM OF MARK DIODATO AND MICHAEL DIODATO, PLAINTIFFS-RESPONDENTS,
v.
CAMDEN COUNTY PARK COMMISSION AND THE COUNTY OF CAMDEN, DEFENDANTS-APPELLANTS



Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

Defendants appeal, pursuant to leave granted, from a denial of their motion for a change of venue.

Plaintiffs are residents of Edison and Middlesex County, New Jersey. Together with coemployees, plaintiff Richard Diodato attended a company picnic in the Cooper River Park. The park is part of the Camden County Park System. While there Richard dived into the Cooper River, struck a submerged object and sustained serious injuries so that he is now a quadriplegic.

Richard Diodato was employed in Bergen County and the coemployees who attended the picnic and who are potential witnesses for him reside in Bergen County.

Plaintiffs instituted this action against defendants Camden County Park Commission and the County of Camden, laying venue in Middlesex County. Defendants timely moved for a change of venue to Camden County, which motion was denied. This appeal followed.

R. 4:3-2(a)(2) provides in pertinent part:

Venue shall be laid by the plaintiff in Superior Court actions as follows:

(2) actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose; * * *.

Defendants contend that the provisions of this rule are mandatory and that it was an abuse of discretion for the Assignment judge in Middlesex County to deny the motion

for a change of venue made pursuant to R. 4:3-3. They rely upon Countrywood Estates v. Donnelly , 42 N.J. Super. 456 (App. Div. 1956); Engel v. Gosper , 71 N.J. Super. 573 (Law Div. 1962).

Plaintiffs, on the other hand, while admitting the venue was laid in violation of the express provisions of R. 4:3-2(a)(2), contend justification for doing so appears from a consideration of (a) the nature of the injuries sustained by plaintiff Richard Diodato which make it inconvenient for him to travel to Camden for trial; (b) potential witnesses and employment records are located in Bergen County, and (c) a treating physician is now associated with the Kim Institute in East Orange.

Plaintiffs also express the opinion, totally unsupported, that they may not get a fair trial in Camden County since the action seeks recovery of damages ...


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