New Jersey Supreme Court Adopts Employer Defense to Harassment Claims

By Ralph R. Smith, 3rd, Esq.

In one of the most highly anticipated decisions of the court’s term, the New Jersey Supreme Court recently gave employers what for years has been hoped to be an affirmative defense to harassment claims based upon the preventive measures adopted by employers to eradicate harassment in the workplace.  In Aguas v. State of New Jersey, A-35-13 (2015), the New Jersey Supreme Court finally adopted the same federal defense to vicarious liability harassment claims brought under the New Jersey Law Against Discrimination (“LAD”) as currently applies to federal Title VII law.

At issue in Aquas was whether the past preventive policies and investigatory actions taken by the state employer after being notified of certain allegations of sexual harassment against a pair of plaintiff’s supervisors acted as a bar to plaintiff’s suit for damages.  The employer argued that, in situations where vicarious liability is alleged under the NJLAD and the employee has suffered no tangible workplace action, employers should be able to take advantage of the defense set forth by the United States Supreme Court in the cases of Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) that applies to harassment claims brought under Title VII.  Under what has come to be known as the Faragher defense, where an employee unreasonably has failed to take advantage of any provided corrective or preventative opportunities made available by the employer to avoid possible harm, an employer can avoid vicarious liability on a hostile work environment claim if it exercised reasonable care to prevent and promptly correct the sexually harassing conduct.  In Aguas, the state employer regularly conducted training of employees regarding its anti-harassment workplace policies and, similarly, when plaintiff raised her harassment issues, she was advised to use the available employer investigatory policies but failed to utilize such procedures.  Moreover, even after plaintiff failed to pursue formal charges, the employer nonetheless still investigated the allegations and ultimately determined that there was no merit.

In a 5-2 decision, the Court adopted the Faragher affirmative defense to harassment claims that are premised upon vicarious liability theories under the NJLAD.  The Court found that such a defense provided a fair and practical framework for evaluating claims of supervisor sexual harassment.  Adoption of the defense likewise was determined to further the LAD’s express goal of eradicating discrimination and harassment in the workplace by providing encouragement to employers to adopt preventative measures to take advantage of a possible defense to liability.

If you are an employer who does not have an anti-harassment policy, or who has failed in the past to do anything to educate and train your employees about anti-harassment issues, now is the time to become more proactive to ensure that your company has the ability to potentially avail itself of the Faragher defense currently made applicable to NJLAD vicarious liability claims.   Not only will such preventive measures provide a possible defense to liability, if needed, they will also hopefully foster the kind of harassment free workplace that eliminates the risk of such vicarious liability claims in the first place.

Township Found Not Liable For Fall on Residential Driveway Apron Due to Snow Removal Immunity

By: Betsy G. Ramos

Plaintiff Rosa Nappi slipped and fell outside the defendant Gregory Kohl’s residence on his driveway apron. She sued Kohl and the Town of Secaucus, where the Kohl property was located, for her personal injuries. In Nappi v. Town of Secaucus, 2015 N.J. Super. Unpub. LEXIS 64 (App. Div. January 12, 2015), the plaintiff claimed that both the homeowner Kohl and the Town should be liable for her injuries. The issue on appeal for the Town was whether it was entitled to snow removal immunity and whether it could be liable for a driveway that it allegedly owned or controlled.

It was undisputed that the Town plowed the snow and that it inadvertently plowed the snow into Kohl’s driveway apron. The Town’s unofficial snow removal policy was to avoid plowing snow onto sidewalks and driveway aprons but the Town admitted that there have been incidents where snow from plows might have been accidentally pushed onto sidewalks and driveway aprons. The Town administrator pointed out, that in an urban environment, sometimes this plowing is an unfortunate consequence.

The plaintiff also retained an engineering expert who opined that the driveway’s apron was a 26% slope, which is greater than the 12 ½% slope permitted by New Jersey’s building code. Both defendants denied constructing the driveway and it was unknown when it was constructed or what standards would have been in effect at that time.

The Town was granted summary judgment based upon the well recognized common law snow removal immunity enunciated in the case of Miehl v. Darpino, 53 N.J. 49 (1968). The plaintiff appealed, claiming that the Town was not entitled to this immunity and it should be liable because it owned or controlled the driveway apron.

The Appellate Division found that the trial court properly granted the Town summary judgment based upon snow removal immunity. This immunity was not abrogated by the Tort Claims Act.

There is an exception to the application of this immunity if the public entity’s snow removal activities might result in hazardous conditions different in character from the dangers ordinarily expected from the snowstorm. The creation of such conditions would necessarily involve palpably unreasonable conduct by a public entity that was separate and distinct from its snow removal functions.

The appeals court agreed with the trial court that the Town’s conduct in plowing the snow onto the driveway apron while clearing the street was not of such extreme or different in character from dangers ordinarily expected from a snow storm or palpably unreasonable conduct. Having snow end up on driveways and sidewalks is an unavoidable consequence of plowing snow. Further, the Town’s ordinance requiring homeowners to clear snow from walkways and driveways abutting their property also indicates that the Town took additional steps to mitigate the dangers from snowfall and snow removal.

The Appellate Division also found the plaintiff’s argument unpersuasive that the Town should be liable because it owned or controlled the driveway. There were no facts that the Town constructed the driveway apron or that it had actual or constructive notice of the purported improper slope of the apron.

Thus, the appeals court found that summary judgment was properly granted to the Town.

Sunbather’s Personal Injury Claim Barred Under the New Jersey Tort Claims Act

By Jessica M. Anderson, Esq.

In order to be considered a permanent disfigurement under N.J.S.A. 59:9-2(d), a scar must impair or injure the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, deforming her in some manner.  Further, in the application of that standard, the New Jersey Supreme Court has explained that a “number of factors should be considered, including appearance, coloration, existence and size of the scar, as well as, shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.”  This is an objective standard, meaning that the scar must be “objectively significantly disfiguring.”  In addition, a disfigurement must be “substantial” to satisfy the verbal threshold requirement under N.J.S.A. 59:9-2(d).

In the recent unpublished Appellate decision Ana Garcia v. New Jersey Transit, 2014 N.J. Super. Unpub. LEXIS 1004 (App. Div., May 2, 2014) an oncoming New Jersey Transit bus struck Plaintiff while she was crossing the street, causing her to hit her head on the pavement.  Upon impact, Plaintiff’s eyeglasses broke and cut into her face.  As a result, Plaintiff received a scar on her forehead, near the left side of her right eyebrow that looked like a cross.  Plaintiff testified at her deposition that she was “embarrassed” by the scar.  After the accident, Plaintiff moved to Florida and spent a substantial portion of her time in the sun, which gave her a tan that obscured her scar.

Following oral argument, the motion judge granted summary judgment, finding that Plaintiff failed to satisfy the Tort Claims Act injury threshold.  On appeal the Appellate Division affirmed, holding that the injury did not constitute “significant scarring, that materially affects her appearance, in some way.”  The Appellate Division was satisfied that Plaintiff failed to demonstrate objective evidence of a qualifying injury that is permanent and substantial loss of a bodily function.

This holding is particularly interesting because the Appellate Division based their decision largely on the fact that Plaintiff’s tan diminished the appearance of her scar.  The Appellate Division found that this was evidence that the facial condition is not an objectively significant disfigurement for purposes of the Tort Claims Act. Also, the motion judge viewed the photograph of Plaintiff’s face taken at deposition before her time in Florida and based his decision on a comparison of that photograph with Plaintiff’s physical appearance five months later and at a distance of three feet.

N.J Supreme Court Settles Dispute Regarding Application of Statute of Limitations for Claims for Contribution under The Spill Act

By John K. Fiorilla, Esq.

On January 26 of this year, the New Jersey Supreme Court resolved a critical dispute as to whether or not the general six year statute of limitations applies in actions by private parties for contribution under the State’s Spill Act.

Justice Jaynee LaVecchia writing for a unanimous court in Morristown Associates v. Grant Oil Co. 2015 N.J. LEXIS 50 (2015) found that there is NO statute of limitations applicable to private contribution claims under the New Jersey Spill Compensation and Control Act (N.J.S.A 58:10-23.11).  The Court overturned an Appellate Division decision which had applied a six year statute of limitations.

The court found that though there were defenses specifically mentioned in the Spill Act that an alleged contributor to the pollution could make in defense of such an action (an act or omission caused solely by war, sabotage, or God or a combination thereof) that the legislature had not included a statute of limitation as a specific defense to a Spill Act contribution claim.  The court said that prior to the Appellate Division decision they were overturning, that there was a decades long understanding that no limitations period restricts contribution claims against responsible parties and that that understanding should not be disturbed.

This decision means that if you are required to clean up property that you sold or previously owned you cannot use the defense that the party seeking contribution waited more than six years to bring a contribution action.  On the other hand, it also means that you may seek contribution for such a cleanup from previous owners or occupiers who may be responsible for the pollution you are tasked to clean up without a concern that more than six years have passed since the pollution took place.

Although there is no longer a potential time bar to contribution claims, parties still need to understand that the Spill Act imposes timeframes for cleanup which must be met. In addition the longer a party waits to make a contribution claim the more likely it is that such claim is no longer viable because the responsible party may no longer be able to be found or is no longer a viable business concern.

It should also be noted that prospective purchasers and future tenants should still conduct their due diligence appropriately to remain eligible for innocent purchaser status.

These issues also arise in eminent domain actions by the State, Municipalities or other condemning authorities including railroads.  Should a condemning authority take property and find that it is in need of cleanup under the Spill Act, it may under Housing Auth v. Suydam Investors LLC, 177 N.J. 2 (2003) withhold from the amount of fair market value set aside for the property owner an amount required to clean the property.  The property owner however has the right to seek contribution for such cleanup costs against prior owners, tenant or others who may be responsible for the pollution.  The contribution sought will not be subject to a statute of limitations defense.

Liability Expert Not Needed for Supermarket Restocking Procedures

By Gina M. Zippilli, Esq.

Who among us is not familiar with the shucking of corn at our local grocery store during the summer months?   In Marvin v. Wegmans Food Markets, Inc., this seasonal ritual turned into a lawsuit after plaintiff fell over a restocking cart that was apparently left behind him, without his knowledge.  2015 N.J. Super. Unpub. LEXIS 168 (App. Div., Jan. 29, 2015).

The facts in Marvin are simple.  It was Fourth of July weekend and Wegmans was packed.  Plaintiff was at the corn bin in the produce section.  While selecting corn, a Wegmans’ employee was loading corn from wooden crates and placing them in the same bin.  The restocking cart, which the employee used to transfer the crates to the corn bin, was behind plaintiff.  Plaintiff placed his corn in a bag, turned around and fell over the restocking cart, which plaintiff claimed to have only seen after he fell.

Plaintiff brought an action against Wegmans for negligence, specifically for the negligent placement of the cart and for failing to warn of its presence.  Wegmans moved for summary judgment and argued that a liability expert was needed to establish the requisite standard of care.  The trial court agreed.   The appellate division reversed, holding that the reasonableness of the employee’s decision to place the restocking cart immediately behind the plaintiff, without first alerting him to its presence, fell within the “common sense experience of the average juror.”  In other words, no expert was needed.

While exceptions to most rules exist, a plaintiff in your average run-of-the-mill slip and fall is not required to establish the applicable standard of care because a layperson’s common knowledge is sufficient to permit a jury to determine whether the particular duty has been breached.  In those cases, it is sufficient for a plaintiff to simply show what the defendant did, or failed to do, and the surrounding circumstances.  In the end, common sense obviates the need for expert testimony.

One must not forget, though, to apply common sense equally across the board.  If plaintiff saw the employee emptying the corn from the wooden crates into the corn bin, then how did plaintiff believe the wooden crates got there in the first place?  After all, who among us is not familiar with the restocking carts?  If the restocking cart was not directly in front of plaintiff, then surely it was somewhere close.  That issue, however, is for another day.

Five Associates Became New Partners, Three Partners Promoted To One Level Below Full Equity Partner

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that five attorneys were admitted as new partners to the 138 year old law firm.  The new partners at Capehart Scatchard are:

Michelle L. Duffield – Workers’ Compensation Department

Kali A. Hira – Litigation Department

Scott M. Russ – Litigation Department

Christina M. Adinolfi SheaWorkers’ Compensation Department

Gina M. Zippilli – Litigation Department

In addition, three existing Capehart Scatchard partners were elevated to a level just below full equity partners.  They are:

Evan H.C. Crook – Regulatory and Government Affairs Department

Michelle L. Corea – Litigation Department

Nikitas Moustakas – Business and Health Care Departments

Firm Donates to Abby’s Catsicle Team for Polar Bear Plunge

On Sunday, February 1, 2015, over 3,000 people gathered on Rehoboth Beach, standing before the frigid waves of the Atlantic Ocean while they awaited their icy dip in its waters. The air temperature that morning was 41 degrees, and the water temperature was a near-freezing 37 degrees. The annual event raises money for Special Olympics Delaware, and this years’ event raised a record $780,000.

Among the participants was the “Abby’s Catsicles” team, comprised of Abby Galiardo and her family. The firm sponsored Abby’s Catsicles team, donating $100 in support of Abby and the Special Olympics Delaware. Capehart Scatchard wishes Abby and all the athletes the best of luck at the upcoming Summer Games in June.