Mt. Laurel, NJ – – Several attorneys from Capehart Scatchard, including Sanu Dev, Grant Henderson, Christopher M. Emerich, Karen E. Gibson, Andrea L. Schlafer, and Daniel P. Robinson, participated on April 25, 2015 in the CASA Kids Superhero 5K Run. The event was held to raise money for the Mercer and Burlington Counties affiliate board of CASA (Court Appointed Special Advocates) for children. CASA is an independent, non-profit organization committed to speaking up for the best interests of abused and neglected children.
The plaintiff Danny Caicedo was severely injured when the bicycle he was riding was struck by a police cruiser operated by defendant Officer Fabian Caicedo while on duty with the defendant Newark police department. The officer had arrested an individual for a disorderly persons offense and was transporting him to police headquarters for processing when he struck plaintiff’s bicycle. In Caicedo v. Caicedo, 2015 N.J. Super. LEXIS 40 (App. Div. Mar. 17, 2015), the officer claimed he should be entitled to good faith immunity under the Tort Claims Act (“Act”) section, N.J.S.A. 59:3-3.
On appeal, the Appellate Division had to decide whether the defendants were exempt from liability under this statute on the basis that “a public employee is not liable if he acts in good faith in the execution or enforcement of law.” While this was a close call, the appeals court found that the defendants were not immune from liability where the police officer had effectuated an arrest and was transporting the prisoner under non-emergent circumstances.
The collision occurred immediately following the plaintiff’s eighth grade graduation. The plaintiff was riding his bike home with three of his friends. There is a dispute as to whether he was weaving back and forth across the street. However, the plaintiff admitted that he was struck by the cruiser when he decided to cross, not at a crosswalk, on a busy street in Newark.
The officer contended that he should be entitled to immunity under the Act because he was enforcing the law when the collision occurred in that he had not completed the suspect’s arrest. The plaintiff argued that this immunity should not apply because the courts have not applied it in ministerial situations for police, such as patrolling the streets or transporting prisoners. Plaintiff contended that this immunity attached only when the police are acting under heightened circumstances such as responding to a crime, accident, or emergency in progress, or when they are called upon to make split-second decisions.
The Appellate Division pointed out that, if it followed the defendants’ argument, this statutory provision would immunize all police activities. The appeals court did not believe the Legislature intended this provision to be construed so broadly.
Had the officer been responding to a crime scene, to an accident call with unknown injuries or some other situation that required his immediate attention, this immunity would apply. It would also apply if he was transporting a prisoner that required immediate medical attention, was unruly, or otherwise constituted a dangerous presence. Here the record showed none of these circumstances.
Thus, the Appellate Division found that this good faith immunity did not apply to this accident. The officer was to be held to the same standard as an ordinary citizen operating his or her own motor vehicle on the roadways of the State. Accordingly, it upheld the verdict entered against the defendants.
In a recent case, the New Jersey Supreme Court was tasked with determining whether or not a school board employee is entitled to indemnification for attorney’s fees and costs under N.J.S.A. 18A:16-6 when the fees and costs are incurred in a civil suit arising from the same allegations contained in a criminal indictment that has already been dismissed. L.A. was employed by the Trenton Board of Education (the “Board”) as an elementary school security guard. During the course of the workday, L.A. allegedly had unlawful sexual contact with two minors, N.F. and K.O. The Institutional Abuse Investigation Unit (IAIU) of the Department of Children and Families conducted an investigation and found that the claims of inappropriate sexual contact were substantiated.
Thereafter, a grand jury returned two separate indictments against L.A., one arose out of the alleged behavior concerning N.F. and one arose out of the alleged behavior concerning K.O. In order to resolve both indictments, L.A. entered into a plea agreement wherein he pled guilty to one count of second-degree endangering the welfare of N.F. in exchange for the dismissal of the remaining charges in the N.F. indictment and dismissal of the K.O. indictment in its entirety. During the plea agreement proceedings, L.A. admitted that he had “engaged in conversation of a sexual nature with two females, both of whom were minors and under [his] supervision.”
Subsequently, a civil action was brought against L.A. on behalf of K.O. alleging that L.A. sexually assaulted K.O. and that the Board negligently hired L.A. The Board did not pay for L.A.’s legal counsel for the civil action and L.A. received legal counsel under a private insurance policy of the New Jersey Education Association. The civil suit was ultimately settled without an admission of wrongdoing by any party.
After the matter was settled, L.A. filed a verified petition against the Commissioner of Education seeking reimbursement for attorneys’ fees and costs incurred in defending against K.O.’s civil suit. Under N.J.S.A. 18A:16-6, a board of education employee will be indemnified for attorney’s fees and costs incurred in defending civil actions arising out of an act or omission that took place in the course and scope of employment duties. This statute requires that the underlying civil suit be related to conduct falling within the employment duties of the school board employee.
L.A’s verified petition was transferred to the Office of Administrative Law and the Court granted a motion for summary decision on behalf of L.A. and awarded L.A. attorneys’ fees pursuant to N.J.S.A. 18A:16-6. The Administrative Law Judge (“ALJ”) found that the Board had not met its burden of establishing that L.A.’s conduct fell outside of the performance of his duties as an elementary school security guard because the Board did not prove that K.O.’s allegations of abuse had occurred. The Commissioner adopted the ALJ’s decision. The Board appealed and the Appellate Division reversed. The Appellate Division held that N.J.S.A. 18A:16-6 required L.A. to establish that the outcome of the criminal indictment was in his favor before he would be entitled for indemnification regarding the civil suit. L.A. then filed for Certification with the Supreme Court.
The Supreme Court granted Certification and held that the matter was decided prematurely when the ALJ granted summary decision. The ALJ should have heard testimony and determined by the preponderance of the evidence whether L.A. was acting within the scope of the duties of his employment. The Court explained that when the ALJ decided that L.A. was acting within the scope of his employment responsibilities because L.A. had not been found guilty to have committed a crime against K.O., the ALJ failed to consider the factual overlap between the offenses alleged in the N.F. criminal matter, which L.A. admitted to, and the offenses alleged in the K.O. indictment. Moreover, the ALJ failed to consider L.A.’s admission during his plea hearing that he spoke inappropriately to K.O. and failed to consider evidence in the IAIU report substantiating K.O.’s allegations. Summary decision was inappropriate and the matter was remanded to the Commissioner for an evidentiary hearing.
Although the final outcome of L.A.’s specific case is uncertain, this is a positive case for New Jersey boards of education. If a board employee is involved in a criminal case and a companion civil case, the fact that the criminal case is settled does not automatically lead to reimbursement of attorneys’ fees and costs for the board employee in the civil suit.
Mt. Laurel, NJ – Capehart Scatchard is pleased to announce that Andrew C. Rimol has joined the firm as a member of the Government Affairs Department in the firm’s Trenton office.
A resident of Medford, New Jersey, Mr. Rimol focuses his practice on governmental, administrative/regulatory, and complex litigation matters. He represents governmental and private entities, as well as individuals, with respect to laws governing employment, civil service and municipal matters.
Mr. Rimol received his law degree from Widener University School of Law in Wilmington, Delaware, graduating cum laude in 2007, and his B.S. degree in Criminological Studies from The College of New Jersey. Upon graduation from law school, Mr. Rimol served as a law clerk to the Honorable Evan H.C. Crook, in the New Jersey Superior Court, Burlington County Vicinage, and is certified by the New Jersey Administrative Office of the Courts in Mediation and Conciliation.
Mt. Laurel, NJ – – Capehart Scatchard Shareholder Betsy G. Ramos, Esq. was a guest on a recent segment of Coffee Talk, hosted by Charlene Chamberlain and Barbara Freire. The show was taped on March 27, 2015 at the Radio Visions Network Studio in Maple Shade and is available for viewing at http://www.radiovisionnetwork.com/morning-coffee-1.html.
In the segment, Ms. Ramos, an estate litigator, discussed the necessity of estate planning. Her interview covered why you may be at risk if you do not plan wisely and why litigation may result if you are not pro-active in your estate planning.
Certified by the Supreme Court of New Jersey as a Civil Trial Attorney, Ms. Ramos, a Mansfield resident, is a member of the firm’s executive committee and a Shareholder and Co-Chair of Capehart Scatchard’s Litigation Department in its Mt. Laurel office. She is a seasoned litigator with over 25 years of experience handling diverse matters and concentrates her practice in business litigation, estate litigation, tort defense, employment litigation, insurance coverage, and general litigation.
Ms. Gibson, a Medford resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.
Ms. Gibson received her law degree from Widener University School of Law and her B.S. degree in Business Management from Rutgers University in Camden Upon law school graduation, Ms. Gibson worked as a law clerk to the Honorable Timothy W. Chell, in the New Jersey Superior Court, Gloucester County Vicinage.