Municipal Engineer Immune from Negligence Claim Under the Tort Claims Act

By: Betsy G. Ramos, Esq.

Plaintiff Bezr Homes, Inc. sued the engineering firm of Remington & Vernick and its engineer Kenneth Ressler (“the Remington defendants”) alleging negligence due to the failure to file for a township extension of a permit with the DEP for construction of a water main to provide water services to a proposed development. The permit application was not submitted timely by the township and the DEP denied it. Ultimately, the plaintiff’s prospective purchaser terminated the contract for sale, depriving the plaintiff of the $7.5 million sale price. In BEZR Homes, L.L.C. v. Twp. of E. Greenwich, 2014 N.J. Super. Unpub. LEXIS 2503 (App. Div. Oct. 21, 2014), the Remington defendants argued that they should be considered public employees under the Tort Claims Act (“TCA”) and immune under the TCA.

The Remington defendants filed a motion for summary judgment based upon the plaintiffs’ failure to file the lawsuit within the two years statute of limitations as required under the TCA. The trial judge granted the motion and the plaintiff appealed.

The plaintiff contended that the Remington defendants were independent contractors, not public employees, to which the TCA’s time limits do not apply. The TCA makes it clear that only public employees are covered by the Act and not independent contractors.

Municipal engineers are appointed by statute for a period of 3 years. The Township appointed first Ressler and then Remington itself to the position of municipal engineer.

The Appellate Division examined the Remington defendants’ status based upon the application of the control test and the relative nature of the work test. The court pointed out that, for a professional, the appropriate test would be the relative nature of the work test because employers do not control how professionals perform their services.

After applying all of the elements of the relative nature of the work test, the Appellate Division concluded that the Remington defendants satisfied this test and qualified as public employees under the TCA. Because the plaintiff did not claim that the Remington defendants performed any duties other than as a municipal engineer for the township, the complaint was barred based upon the plaintiff’s failure to sue them for more than 2 years following accrual of the claim.

New Jersey Appeal Court Reaffirms Legal Importance of Workplace Anti-Harassment Measures

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

In Dunkley v. S. Caraluzzo Petroleum Company, 2014 NJ Super. LEXIS 130 (App. Div. 2014), the New Jersey Superior Court-Appellate Division recently reiterated the importance of employer sponsored anti-harassment policies and training in defending against employee allegations of wrongful harassment under the state’s antidiscrimination laws.

The plaintiff in Dunkley was an African American who formerly worked as a company truck driver.  During his initial days of employment, his trainer made repeated race-based comments around the employee, including references to the Klu Klux Klan and other racially offensive comments that were disconcerting enough that the employee took a day off from work.  When the company inquired about the reason for the employee’s absence, the employee advised of the racially based remarks of his trainer. Upon the employee’s return to work, he was reassigned to a new trainer.

After returning, the employee claimed that other employees shunned him because his trainer had been changed based upon his reports about his racial harassment.  The plaintiff also maintained that he was in constant fear of possible retaliation from the former trainer who had mentioned previously that he had ties to a violent local motorcycle gang.  After a work place oil spill occurred that plaintiff attributed to his being uncomfortable and worried about possible reprisals against him at work, he resigned his employment, and thereafter sued claiming that he was exposed to a racially hostile work environment and had been constructively discharged from employment.

The appellate court upheld the dismissal of plaintiff’s claims, finding that the employer could not be held vicariously liable for the harassing actions of the trainer because it had taken affirmative steps to prevent harassment claims in its workplace.  Along with having a circulated policy prohibiting all forms of harassment in the workplace, the defendant also had a detailed complaint procedure for bringing allegations of harassment to the company’s attention.  It likewise had mandatory anti-harassment training sessions for all company employees.  In light of the company’s extensive adopted measures to prevent workplace harassment, and the prompt and corrective actions undertaken after plaintiff raised concerns about the actions of his first trainer to management’s attention, the company effectively shielded itself from any potential liability under state law for plaintiff’s workplace harassment claim.

As this case illustrates, one of the most fundamental ways to guard against liability for workplace harassment claims is to have detailed anti-harassment procedures that warn of the dangers of harassment and implement procedures to enable a company to address immediately any claims of workplace harassment.   Companies that regularly train employees on such policies on a recurring basis, and utilize such policies when necessary to address allegations of harassment, place themselves in the best position to defend themselves against harassment claims.  Therefore, if your agency or company has not done so recently, update your anti-harassment policies and conduct company/agency training as soon as possible to refresh your staff about the evils of harassment and the steps available to employees to address such concerns in your workplace.

John Geaney and Stephen Fannon Address Orthopedics Conference

john-geaneystephen-fannonMt. Laurel, NJ – – Capehart Scatchard Executive Committee Member, John H. Geaney, Esq. and Shareholder, Stephen T. Fannon, Esq., recently spoke at the Tri-County Orthopedics annual conference in Morristown, NJ.  Mr. Geaney spoke on the topic of “An Update on Workers’ Comp Legal Issues and Fraud.” In his presentation, Mr. Fannon participated in a panel discussion on “The Aging Laborer” and discussed issues and solutions for treating elderly workers.

Ralph Smith, 3rd Speaks at NBI Seminar

Ralph R. Smith, 3rdMt. Laurel, NJ – – Capehart Scatchard Shareholder, Ralph R. Smith, 3rd was a faculty member at a National Business Institute (NBI) Employment Law seminar held on October 14, 2014 in Atlantic City, NJ and on October 15, 2014 in Cherry Hill, NJ.

Mr. Smith first spoke at a session, titled Drafting Must-Have Policies for Today’s Handbooks.  His presentation covered the importance of having an employee handbook and provided drafting tips for safeguarding against liability.  His second session, titled Avoiding Wage and Hour Violations, provided an overview of relevant state and federal wage and hour laws and included a case law update.

Michelle Duffield and Ana Eliza Bauersachs Address South Jersey Claims Association

michelle-duffieldAna-Eliza T. BauersachsMt. Laurel, NJ – – Capehart Scatchard attorneys Michelle L. Duffield, Esq. and Ana Eliza T. Bauersachs, Esq. recently addressed the South Jersey Claims Association at their monthly continuing education class.

The attorneys presented  a “Workers’ Compensation Case Update” and “Employer’s Liability” discussion.  Their presentation covered recent developments in workers’ compensation case law and employer liability under New Jersey’s workers’ compensation law.

Yasmeen S. Khaleel Elected as President of Asian Indian Professionals, Inc.

yasmeen-khaleelMt. Laurel, NJ – – Capehart Scatchard Shareholder, Yasmeen S. Khaleel was recently elected as incoming President of Asian Indian Professionals, Inc. (AIP).  The mission of AIP is to bring together physicians and other professionals of Asian Indian origin in the Greater Philadelphia area.

AIP recently held its 30th Annual Dinner Dance Music Evening and Scholarship Distribution Event at the Indian Cultural Center in Marlton, New Jersey.  The highlight of the evening was the awarding of $30,000 in scholarships to local students of Indian descent.