Litigating Claims Against Public EntitiesLinda Wong and Amelia Taylor
ASSOCIATION OF TRIAL LAWYERS OF AMERICA
Litigating Claims Against Public Entities
I. The New Jersy Tort Claims Act
No discussion of litigating claims against the public entity would be complete without a discussion of the New Jersey Tort Claims Act. The New Jersey Tort Claims Act (“TCA”), N.J. Stat. Ann § 59:1-1 et seq., applies to tort actions against public entities or their employees. The term “Public entity” includes the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State. N.J.S.A. 59:1-3.
§ 59:1-2 of the New Jersey Tort Claims Act provides in pertinent part,
“ it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein”.
II. Notice Provisions
The TCA requires that persons who have claims against public entities and their employees must, within 90 days of accrual of such claims, provide the public entities and employees with notice of the name and address of the claimant, date, place and circumstances of the occurrence or transaction giving rise to the claim asserted, a general description of the injury, damage or loss incurred, the name of the public entities or employees causing the injury, damage or loss and the amount of damages claimed. See, N.J. Stat. Ann. § 59:8-3 through 8. Failure to satisfy the notice requirement of the TCA is an absolute bar to recovery against a public entity or its employees. Id.
- Statutory Claims
The notice provision of the Tort Claims Act does not apply to statutory claims, such as those brought under New Jersey’s Conscientious Employee Protection Act and New Jersey’s Law Against Discrimination. Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003)(CEPA); Costello v. City of Brigantine, 2001 U.S. Dist. LEXIS 8687 (D.N.J. 2001)(CEPA); Fuchilla v. Layman, 109 N.J. 319, 337, cert. denied, 488 U.S. 826 (1988) (the notice provisions of the Tort Claims Act do not apply to claims of discrimination under either 42 U.S.C. §1983 or the New Jersey Law Against Discrimination); Abbamont v. Piscataway Township Board of Education, 138 N.J. 405, 425-32 (1994) (CEPA is not subject to Tort Claims Act and may impose punitive damages against a governmental entity); Green v. Jersey City Board of Education, 177 N.J. 434 (2003) (public entities are subject to punitive damages under CEPA).
- Common law Claims
In addition to statutory claims, Plaintiffs may have common law claims, such as intentional tort claims for defamation, intentional interference with prospective economic advantage, intentional infliction of emotional distress, and malicious prosecution.
Prior to the Supreme Court’s decision in Velez, two different panels of the court had taken opposite views of the question over whether failure to file a timely notice bars recovery against a public employee for intentional tort claims. See, Velez v. City of Jersey City, 358 N.J. Super. 224, 239-240 (App. Div. 2003) (public employee accused of assault and battery is not entitled to the protection of the notice of claim provisions of the Tort Claims Act), certif. granted, 17 N.J. 224 (2003); Bonitis v. New Jersey Inst. Of Tech., 363 N.. Super. 505 (App. Div. 2003) (failure to meet the notice of claim requirements of the Act bars recovery against the individual employee charged with an intentional tort as well as the public entity).
In Velez, the Court held that a plaintiff must give a public entity written notice pursuant to the Tort Claims Act, N.J.S.A. 59:8-8, prior to filing a common law intentional tort action against a public employee. However, because this was a case of first impression and the Appellate Division had issued conflicting opinions on this matter, the Supreme Court applied its decision prospectively to all similar causes of action that accrued after the date of the Velez opinion. Thus, for claims that accrued prior to the June 29, 2004 date of the Velez decision, a Notice of Tort Claim is not required. See, Ortiz v. Ocean County Prosecutor’s Office, 2005 U.S. Dist. LEXIS 29274 (D.N.J. 2005)(reaffirming that under Velez, causes of action alleging intentional torts by public employees accruing after July 29, 2004 are required to comply with the notice of claim provisions. Causes of action alleging intentional torts against public employees that accrued prior to June 29, 2004, however, are not required to adhere to the notice of claim provisions.).
- Immunity Under the Tort Claims Act
The Tort Claims Act provides for protection of a public employee from liability for injury “resulting from the exercise of judgment or discretion vested in him.” (N.J.S.A. 59:3-2(a)). A public official’s good faith exercise of judgment and discretion in the performance of his duties has been accorded limited immunity by the courts of this State. Burke v. Deiner 97 N.J. 465, 472-473 (1984); Visidor Corporation v. Borough of Cliffside Park 48 N.J. 214, 221 (1966).
This protection is circumscribed, however; public employees may not act in complete disregard for the rights of others. There is a public employee immunity exception found in N.J.S.A. 59:3-14. Subsection (a) states: “[N]othing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment, or constituted a crime, actual fraud, actual malice or willfull misconduct.” See also, Burke v. Deiner supra, at 472-473.
VI. TCA Verbal Threshold
The verbal threshold provision of the New Jersey Tort Claims Act , N.J. Stat. § 59:9-2 (d) states that, “No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $ 3,600.00.”
The Tort Claims Act restricts the right for pain and suffering damages except in cases of “ …permanent loss of a bodily function, permanent disfigurement or dismemberment …”. N.J.S.A. 59:9-2(d)
Several court decisions have expounded upon the statutory threshold. The requirements include a showing of (i) objective medical evidence of a permanent injury and (ii) a substantial loss. Gerber v. Springfield Board of Education 328 N.J. Super. 24, 35 (App. Div. 2000). See also, Brooks v. Odom, 150 N.J. 395, 403 (1997)(to satisfy the “permanent loss of a bodily function” requirement under the TCA a plaintiff must present (1) objective medical evidence of her permanent injuries; and (2) evidence that injuries are substantial. Id. at 35).
Where aggravating circumstances exist, the plaintiff’s symptoms can be found to be permanent “even without residual physical injury.” See, Collins v. Union County, 150 N.J. 407 (1997). In Collins, the Plaintiff was raped by a corrections officer, while he was incarcerated. He testified that he suffered frequent nightmares, flashbacks, difficulty in sleeping, sudden outbursts of crying, screaming in his sleep, a severe loss of self-esteem, and an inability to trust others. The plaintiff’s treating psychologist also testified that the plaintiff suffered from a post-traumatic stress disorder and that there was a very high probability that the injury was permanent.
- Circumstances Under Which Public Employees Are Not Exonereated
A. Outrageous Conduct
N.J.S.A. 59:3-14 provides that:
- Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
- Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
The 1972 Task Force Comment on this statute explained how limited a public employee’s defenses under the TCA truly are:
It is the intent of this provision that a public employee guilty of outrageous conduct cannot avail himself of the limitations as to liability and damages contained in this act.
This 1972 Task Force Commentary contained in N.J.S.A. 59:3-14 represents a clear and unambiguous expression of legislative intent that a public employee should be deprived of any benefits such as TCA limitations on liability and damages for their “outrageous” conduct.
Courts have found such “outrageous” conduct, thereby removing the TCA defenses from public employees, in a multitude of circumstances, including claims for (1) assault and battery, Velez, supra; (2) malicious prosecution, James v. Price, 602 F. Supp. 843 (D. N. J. 1985); (3) knowing violation of drug prescription regulations, Taglieri v. Moss, 367 N.J. Super. 184 (App. Div. 2004); (4) false arrest, DelaCruz v. Borough of Hillsdale, 365 N.J. Super. 127 (App. Div. 2004); and (5) torts based on reckless conduct, Jobes v. Evangelista, 2004 WL 1170507 (App. Div. 2004) and Alston v. City of Camden, 168 N.J. 170 (2001).
In Velez, the Appellate Division relied upon both the statutory language of N.J.S.A. 59:3-14 and the legislative intent as set forth in the 1972 Task Force Comment, and rejected the defendant’s argument that the plaintiff’s claims should be dismissed because the plaintiff did not comply with the notice provisions set forth in N.J.S.A. 59:8-3. The Appellate Division in Velez determined that the legislative intent of the TCA is to preclude those guilty of outrageous conduct from availing themselves of TCA defenses that would permit them to act with impunity.
The question of whether Defendants’ actions constituted “outrageous” conduct is a question for the jury. See generally, Marley v. Borough of Palmyra, 193 N.J. Super. 271, 295 (App. Div. 2000)(holding that the issue of whether the public employee defendants’ conduct was outside the scope of the employment, thereby depriving the defendants of any TCA benefits or immunities, is a question to be submitted to the jury).
B. Willful Misconduct
N.J.S.A. 59:3-14 provides:
a. Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
b. Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
“Willful misconduct” has been defined as falling somewhere between simple negligence and the intentional infliction of harm. Alston v. City of Camden, 168 N.J. 170, 185 (2001). For example, the Supreme Court of New Jersey in Fielder v. Stonack, 141 N.J. 101, 123-127 (1995), defined “willful misconduct” as a knowing failure to follow specific orders. In Fielder, the court stated that “willful misconduct is ordinarily limited to a knowing violation of a specific command by a superior, or a standing order …” Id. at 125 (Emphasis added).
In Taglieri v. Moss, 367 N.J. Super. 184, 187 (App. Div. 2004), the court held that a physician’s knowing violation of regulations that controlled prescription drugs constituted “willful misconduct” as contemplated by N.J.S.A. 59:3-14, and therefore the verbal threshold provision of the TCA did not bar claims against the physician. The defendant argued that even if his conduct was “willful” as defined in N.J.S.A. 59:3-14, the verbal threshold barred recovery because the claimant could not establish a “permanent loss of bodily function, permanent disfigurement or dismemberment.” Id. at 195-96. The Appellate Division rejected this argument and stated that, “N.J.S.A. 59:3-14(b) plainly states that “nothing” in this act “shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector” if the employee has committed acts of “willful misconduct.” Thus, N.J.S.A. 59:9-2(d) does not protect [the defendant], and … the verbal threshold [is] inapplicable…” Id. at 197-98. (Emphasis added).
C. Reckless Conduct
“Reckless conduct” also deprives Defendants of any protections under the TCA, specifically its verbal threshold. In Dunlea v. Township of Belleville, 349 N.J. Super. 506, 512, 513 (App. Div. 2002), the Court held that, in order to defeat a claim of good faith immunity, it is sufficient that the plaintiff shows the defendant acted recklessly. (Emphasis added). In addition, in Alston v. City of Camden, 168 N.J. 170, 185 (2001), the Supreme Court of New Jersey articulated that “willful misconduct is the equivalent of reckless disregard for safety, which is more than an absence of good faith.” (Emphasis added).
According to Prosser & Keeton on the Law of Torts, “reckless conduct” is defined as follows:
[A]n actor acts recklessly when he or she intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.
§34 at 212 (5th Ed. 1984).
VIII. Recent Cases Involving Public Entities
Joseph Potente v. County of Hudson, 378 N.J. Super. 40 (2005), cert. granted, 185 N.J. 297 (2005). Prejudgment interest may be awarded in a New Jersey Law Against Discrimination suit against a public entity.
L.W. v. Toms River Regional School District, 381 N.J. Super. 465 (App. Div. 2005). A student can sue a local board of education under the New Jersey Law Against Discrimination for student-to-student harassment based upon a protected characteristic.
Nardello v. Township of Voorhees, 377 N.J. Super. 428 (2005). Many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually may combine to make up a pattern of retaliatory conduct that constitutes an adverse employment action. In Nardello, the Plaintiff, who was employed as a police officer by the Voorhees Township Police Department, was not discharged, suspended or demoted. He was denied permission to obtain firearms instructor training relative to his membership on the SWAT team; coerced to resign as leader and a member of the SWAT team; denied the ability to work on crime prevention programs; and removed from the detective bureau, with his authority to supervise taken away. He was also given demeaning jobs for his rank, such as: removing and installing an alarm in the stairwell; performing maintenance of toilets; performing background investigations; and overseeing a building project.
Klein v. University of Medicine and Dentistry of New Jersey, 377 N.J. Super. 28 (App. Div. 2005). In order to satisfy the first prong of claim under the Conscientious Employee Protection Act (CEPA), a licensed or certified health care professional has to demonstrate a reasonable belief that the employer’s activity, policy, or practice constitutes improper quality of patient care. In order to demonstrate a reasonable belief that the employer’s activity, policy, or practice constitutes improper quality of patient care, the health care professional must demonstrate a reasonable belief that the activity, policy, or practice violates a specific law, rule, regulation or declaratory ruling adopted pursuant to law, or a professional code of ethics. It was not enough to merely allege a reasonable belief that anesthesia assignments were a threat to patient safety.
Yurick v. State of New Jersey, 184 N.J. 70 (2005). A County Prosecutor who was superceded by the Attorney General at the end of his term, and alleged that certain county officials and the state failed to properly budget his office, include him in the budget process and harassed him by, among other things, conducting an investigation into his office, failed to state a claim under the Conscientious Employee Protection Act (CEPA) because the specific facts alleged did not include the type of retaliatory action that was made actionable by CEPA.
Ortiz v. Ocean County Prosecutor’s Office, 2005 U.S. Dist. LEXIS 29274 (D.N.J. 2005). Reaffirming that under Velez, causes of action alleging intentional torts by public employees accruing after July 29, 2004 are required to comply with the notice of claim provisions. Causes of action alleging intentional torts against public employees that accrued prior to June 29, 2004, however, are not required to adhere to the notice of claim provisions.
Kelly v. County of Monmouth, 380 N.J. Super. 552 (App. Div. 2005). The Court held that it was in error to summarily dismiss an employee’s claim against a supervisor for failure to satisfy the verbal threshold requirement of N.J. Stat. Ann. § 59:9-2 where the supervisor allegedly grabbed at a public employee’s genitals. The Court stated that where a public employee engages in willful misconduct or conduct beyond the scope of his employment, the verbal threshold does not apply.
DelaCruz v. Borough of Hillsdale, 183 N.J. 149 (2005). The Tort Claims Act’s verbal threshold applies to common-law false arrest/false imprisonment claims.