Tort Claims Act Plan or Design Immunity Upheld Based Upon Plan of Other Public Body

By: Betsy G. Ramos, Esq.

Public entities are statutorily immune from bodily injury claims if they can prove that the injury was caused by the plan or design of public property which was approved by the governing body of the public entity. The Tort Claims Act also provides for plan and design immunity to public entities for these types of claims if “some other body” approves the plan or design. In Kain v. Gloucester City, 2014 N.J. Super. LEXIS (App. Div. July 21, 2014), the Appellate Division had to decide whether the Coast Guard falls within the term of  “some other body” under the statute.

Plaintiff Michael Kain was a parent/chaperone for his son’s Boy Scout troop when they participated in a free educational sail by the defendant Gloucester City Sail at the Gloucester City pier. Plaintiff was injured when he stepped into an opening between the edge of the pier and its wooden bumpers as he was helping the last boy into the schooner.

This pier had been purchased by the Coast Guard in the 1940s and renovated by it at that time. Due to the design of the renovations, there was an opening between the edges of the pier and the wooden bumpers. In 1991, the Coast Guard deeded the pier to Gloucester City.

The plaintiff sued Gloucester City based upon a premises liability claim. Summary judgment was granted to Gloucester City (“the City”) based upon the design or plan immunity of the Tort Claims Act (“the TCA”).

On appeal, the plaintiff argued that summary judgment was erroneously granted because, among other reasons, the TCA did not apply to the City because the pier was designed by the Coast Guard, which was not a public entity under the TCA. The Appellate Division, however, upheld the summary judgment order.

To utilize a design or plan immunity defense, the public entity must demonstrate that the condition that allegedly caused the injury was an approved feature of the plan or design. It was undisputed in this case that the Coast Guard considered the need for the pier to be a stable dock when it reconstructed the pier and the bulkhead. Thus, it was part of a design approved by the Coast Guard.

However, the plaintiff argued that the TCA immunity is limited to a public entity or public employee. The Appellate Division disagreed with this argument and noted that the statute does not so limit the approving authority. The TCA design immunity also extends to “some other body.”

The term “some other body” is not defined within the TCA. The Appellate Division found that this term referred to an alternative approving authority and was designed to apply to entities that do not fall within the definition of “public entity,” yet perform the type of governmental function covered by the design immunity. In this case, the appeals court held that the Coast Guard qualified as “some other body.”

The plaintiff next argued that, even if the immunity did apply to the Coast Guard as an approving authority, the City cannot “inherit” the design immunity from the Coast Guard and it was lost because the pier was designed for military use and the City repurposed it for civilian and recreational use. Again, the Appellate Division disagreed with the plaintiff’s argument.

Once effective, an immunity is perpetual. It cannot be lost if later knowledge shows a design or plan to be dangerous or later circumstances render it dangerous. Here, the court found that once the immunity attached , it remained unaltered by the later change in use.

This case points out the broad scope of the design or plan immunity defense under the TCA. Not only can the design or plan of the defendant public entity be considered, but if the design or plan was approved by another public entity or “some other body,” such design or plan may be used to immunize the defendant public entity from a premises liability claim.

Public Employee Has First Amendment Right to Refuse Flu Shot

By: Ralph R. Smith, 3rd, Esq.

The New Jersey Appellate Division recently handed down a significant decision regarding a public employee’s First Amendment right to freedom of expression.

In Valent v. Board of Review, 436 N.J. Super. 41 (App. Div. 2014), the Appellate Division reversed a Department of Labor- Board of Review decision that denied Appellant unemployment compensation benefits from her former employer, Hackettstown Community Hospital, based upon a finding of workplace misconduct.  The workplace misconduct stemmed from the employee’s refusal to receive a flu shot as mandated by hospital policy.  The vaccine was mandatory absent a documented medical or religious exemption.  Those claiming an exemption had to sign a declination form, provide a letter from a spiritual leader or doctor, and were required to wear a face mask for the entire flu season.  The policy provided that failure to comply “will result in progressive discipline up to and including termination.”

Appellant agreed to wear a face mask but refused to be vaccinated – not on any religious grounds but for “purely secular personal reasons.”  The Appellate Division reversed the finding of the Board of Review that this refusal to be vaccinated constituted improper work place misconduct to justify a partial disqualification from benefits.  The court ruled that the religious based exemption violated the First Amendment rights of employees like Appellant who refused to be vaccinated based upon purely secular and non-religious reasons.  The policy therefore improperly favored religious over non religious beliefs, which is not permitted under the First Amendment.  As a result, Appellant could not be found to have engaged in work place misconduct to disqualify her from receiving unemployment benefits.

The instant case highlights that governmental employers may not prefer religion over non-religion in setting policies because employees still retain their constitutional rights in the workplace.  Therefore, in creating workplace polices, public employers must be sensitive in implementing policies potentially affecting the constitutional rights of their employees.

Nancy J. Johnson Addresses Institute for Professional Development

nancy-j-johnsonMt. Laurel, NJ – – Capehart Scatchard Shareholder, Nancy J. Johnson, Esq. recently spoke at a seminar sponsored by the Institute for Professional Development in New Brunswick, New Jersey.

Ms. Johnson addressed workers’ compensation issues pertaining to local governments and school districts.  Her presentation focused on recent cases decided by the courts on occupational exposure, medical benefits, the premises rule, fraud and techniques to minimize costs.

Amy C. Goldstein Testifies Before Senate Judiciary Committee

amy_goldsteinTrenton, NJ – – On Monday, June 30, 2014, shareholder and Family Law Department Chair Amy C. Goldstein testified at a hearing on alimony reform before the New Jersey State Senate Judiciary Committee. Ms. Goldstein helped draft the legislation which has been approved by the Senate and the Assembly.

Ms. Goldstein addressed the questions and concerns that had been raised by the Committee throughout the session.  In addition, she stated, “The important thing here is that you’re dealing with two competing philosophies…You’re dealing with the principle that every case and every issue in every case should be addressed on its own facts. And, it’s a great principle….but the problem with it is that it leads to wildly unpredictable results. That’s why the representatives of the Alimony Reform Group were saying that they wanted more predictability and they wanted firmer guidelines. Those were the two competing concerns that led to the ultimate bill.”

The bill represents an historic change in alimony law in the State of New Jersey in that it sets guidelines for some cases with respect to the duration of alimony and the ability for alimony payers to retire, and adds statutory factors for Courts to consider when making alimony determinations.

The bill is now on its way to the desk of Governor Chris Christie.

William R. Burns Speaks at National Meeting on Childhood Cancer

William-R-BurnsMt. Laurel, NJ – William R. Burns, Shareholder in the Government Affairs and Regulation Section, spoke on June 25, 2014 at the national meeting of the Coalition Against Childhood Cancer in Washington D.C.

During his presentation, Mr. Burns summarized the Josh Hardy and Judson Shepherd campaigns involving expanded access to unapproved drugs via compassionate use and clinical trials.  He also discussed the need for increased access to experimental drugs through the collaboration and discussion with the FDA, Pharmaceutical companies and the medical community.  Mr. Burns stated, “Pharmaceutical companies have an obligation to their shareholders, doctors have an obligation to their patients, and the FDA has an obligation to safeguard the process.  If we provide financial and regulatory incentives to pharmaceutical companies, expanded access becomes not only a good humanitarian decision, but a good business decision.”

Yasmeen Khaleel Sworn in as President of EFPCSNJ

yasmeen-s-khaleelMt. Laurel, NJ – – Capehart Scatchard Shareholder, Yasmeen S. Khaleel was recently sworn in as President of the Estate & Financial Planning Council of Southern New Jersey (EFPCSNJ).   The swearing in ceremony took place at the Council’s annual Installation and Awards Dinner on June 5, 2014, at Aloft in Mount Laurel.

Also at the dinner, the late Mr. Blaine E. Capehart, the firm’s patriarch who died in 2012,  was posthumously awarded the Founder’s Award.  Members of Mr. Capehart’s family accepted the award on his behalf.  The Founder’s Award is presented to an individual selected by the Council executive board in recognition of distinguished service to the estate and financial planning profession.

The Estate and Financial Planning Council of Southern New Jersey is a professional association of estate and financial planning practitioners in the region. The Council’s objectives include providing a better understanding of those services which members can render to the public, promoting awareness and use of financial planning through education and other means, and promoting member interests through sharing of knowledge and expertise.