Defendants City and Police Officers Awarded Fifty Thousand Dollars As Sanction against Plaintiff for Filing Frivolous Lawsuit

By Betsy G. Ramos, Esq.

Although our court rules and statutory law permit the award of attorney’s fees against a plaintiff and plaintiff’s counsel for the filing of a frivolous lawsuit, it is not often that the court will actually award fees. However, in Sherifi v. City of Atlantic City, 2015 N.J. Super. Unpub. LEXIS 2552 (App. Div. Nov. 2, 2015), the trial court awarded fees of $50,000 as a sanction against plaintiff and his counsel for pursuing frivolous litigation.

Plaintiff’s claim arose from an incident at a supermarket after he attempted to return an item he bought. The evidence established that the supermarket security physically removed him from the store and assaulted him.

In dispute was what occurred afterwards. The plaintiff claims, after he was escorted out by store security, he noticed 2 Atlantic City police officers in the parking lot. One of them was pointing something like a gun at him and he felt two instant punches. One was the weapon that felt like an electrical shock and the other was a blow near the eyes.

According to the officers, plaintiff was already injured when they arrived on the scene. One officer noticed plaintiff’s face was red and asked if he had been punched. Plaintiff denied being hit and explained that he had fallen. Both officers described plaintiff’s behavior at the scene as uncontrollable and crazy and testified that he talked about spaceships and aliens sent to abduct him, saying the government had implanted electrodes and tracking devices in him.

The plaintiff was transported to the hospital and it was determined that he had sustained multiple fractures of the bones surrounding his eye. Although he told hospital staff that his injuries were caused by being struck by electricity, the experts determined that the fractures were caused by a blunt object, possibly a fist.

Plaintiff filed a complaint against the police officers with the City’s internal affairs department. He alleged that one of the officers aimed a stun gun or some other weapon at him and fired some type of projectile, which hit him in the face and knocked him to the ground. The officers, however, denied having a Taser and denied assaulting him. The IA complaint was determined to be unfounded.

Thereafter, the plaintiff filed his civil suit, suing the supermarket, the City, and the officers. He alleged that the City was negligent in its training and supervision of the officers and had a policy of coercing and intimidating suspects by means of excessive force and unlawful arrest and detention.

Shortly after the City answered the complaint, the officers’ attorney sent the plaintiff’s counsel a letter accusing the complaint of being frivolous and demanding that he withdraw it pursuant to Rule 1:4-8. About a year later, the City’s attorney sent a similar letter. The plaintiff’s counsel refused both demands because of ongoing discovery and factual issues relevant to the plaintiff’s claim.

The action was tried over the course of 11 days. At the close of plaintiff’s case, the court granted the City’s motion for a directed verdict. However, the judge denied the officers’ similar application. The jury awarded a verdict in the plaintiff’s favor, finding that he was a victim of assault and battery for which the supermarket was entirely at fault and awarded him $200,000.

Thereafter, the City defendants filed a motion for frivolous litigation sanctions. The judge awarded fees of $22,264 and $27,680 to the City and to the officers, respectively. The judge found that had the plaintiff’s counsel conducted even a cursory review of the facts, he would have recognized that the plaintiff had no valid claim against the City or its officers. He ordered the fee to be split between plaintiff and plaintiff’s counsel. The judge placed a lien against the settlement for the plaintiff’s half and entered a judgment against the plaintiff’s counsel for the other half.

Upon appeal filed by the plaintiff’s counsel, the Appellate Division found that there was no legal or factual support for plaintiff’s counsel to have continued to pursue the claims against the City or the officers once he received the demand for their withdrawal. Pre-trial discovery and deposition testimony all supported that the officers did nothing but provide assistance and did not carry Tasers or stun guns. Further, the medical experts supported the conclusion that the plaintiff’s eye injury was caused by being punched in the eye, an event that occurred before the police arrived.

As for the City, there was no factual support of any policy instructing its officers to let stores handle unruly customers until police were absolutely necessary. The City denied it and the plaintiff was unable to produce any evidence to the contrary. The plaintiff’s attorney should have known the claims were unsupported by law and fact and, therefore, were frivolous.

Thus, the Appellate Davison found that because the plaintiff’ attorney refused to withdraw these unsupported claims, he breached his obligation. Accordingly, he was subject to sanctions under Rule 1:4-8 and it upheld the fee award entered against the plaintiff’s counsel.

The take away from this case is that, while it is difficult to obtain a fee award for a frivolous lawsuit, especially in an excessive force case, if the claim is frivolous, an appropriate letter under the rule should be sent to preserve the claim. Thereafter, if there is a dismissal, the public entity may be able to successfully pursue sanctions.

Access to Personnel Files in Pennsylvania and New Jersey

By Laurel B. Peltzman, Esq.

You have just terminated your most problematic and least productive employee. The employee leaves the premises immediately after his termination but then returns a few hours later with a request. He wants to review his personnel file. As an employer that terminated this employee just a few short hours ago, are you required by law to allow the former employee to review his personnel file? It depends.

In the recently decided case of Thomas Jefferson University Hospitals v. Pennsylvania Department of Labor and Industry, Bureau of Labor Law Compliance, No. 2275 C.D. 2014 (Pa. Commw. Ct. Jan. 6, 2016), a Pennsylvania court interpreted a specific provision of the Pennsylvania Personnel Files Act and found that it provides  recently terminated employees with the right to review their personnel files.

In Thomas Jefferson University Hospitals, a week after her termination from employment with Thomas Jefferson University Hospitals (TJUH), Elizabetth Haubrich made a request to inspect her personnel file. TJUH refused to provide her access because Haubrich was no longer employed by TJUH. Haubrich filed a complaint with the Department of Labor and Industry (the “Department”) and the Department directed TJUH to allow Haubrich to review her file. TJUH did not comply and petitioned the Commonwealth Court for review of the Department’s directive.

Under the Pennsylvania Personnel Files Act, “an employer shall, at reasonable times, upon the request of an employee, permit that employee to review his or her own personnel files used to determine his own qualifications for employment, promotion, additional compensation, termination or disciplinary action.” The Act defines an employee as “any person currently employed, laid off with re-employment rights or on leave of absence…” TJUH argued before the Court that Haubrich did not fit the definition of “employee” as provided for in the Act.

The Court began its analysis by reviewing the definition of the word “current” in the dictionary, which is defined as “presently elapsing, occurring in or existing at the present time, or most recent.” The Court ultimately opined that because Haubrich was terminated one week before she made her request to review her file, she qualified as a “presently elapsing employee” or most recent employee, falling within the definition of “current employee” in Act. The Court found that because the Act explicitly allows someone to inspect his/her personnel file to determine the basis for his/her termination from employment, it only makes sense that a recently terminated employee has the right to review his/her file.

In contrast to Pennsylvania, New Jersey does not have any specific laws regarding an employee’s right to review a personnel file. Although there is no specific requirement that employees be allowed to review their personnel file in New Jersey, if an employee makes his/her request in order to prove that the employer has been discriminating against him/her and the employee is found to have been fired for making the request, the employer may be considered to have illegally retaliated against the employee. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988) (holding that Plaintiff can pursue a claim of retaliation alleging that she was terminated because she requested to review her personnel file in order to find documents to support her gender discrimination claim).  Another factor that employers must consider is that refusing an employee’s request to review a personnel file may lead to unnecessary and expensive litigation because an employee may feel like the employer is hiding something (potential unlawful activity).  By providing access to employees, the employer can present an impression of transparency making it less likely that an employee will bring suit.

So what does this mean? If you are an employer in Pennsylvania, your actions regarding current and former employees’ requests to review personnel files are specifically governed by law. If a current employee or recently terminated employee requests to review his/her personnel file, you must allow him/her to do so.  If you are an employer in New Jersey, there is no specific law governing an employee or former employee’s access to his/her personnel file, so an employer must analyze each request on an individual basis to determine the best response.

Assumption of the Risk Is Alive and Well in Pennsylvania Snow Cases

By Gina M. Zippilli, Esq.

With the winter months now upon us, it is not surprising that snow cases are “mounting,” and defense attorneys are again put to the task of refuting plaintiffs’ allegations that business owners; snow removal companies; and any other entity a plaintiff can find, failed to properly keep a sidewalk and/or parking lot safe for travel after a snow storm.  At least in Pennsylvania, the defense has received a long overdue application of common sense to these cases as courts in Pennsylvania are starting to find that plaintiffs are responsible for their own actions in these situations.

Denzel v. Federal Cleaning Contractors, 2015 Pa. Dist. & County Lexis 154 (October 22, 2015) illustrates this point.  In Denzel, plaintiff alleged that on February 12, while walking to and from different stores, she slipped and fell on snow and ice on the sidewalk.  As plaintiffs often do in these situations, every possible entity was named as a defendant – the owners of the shopping center where plaintiff fell; the store that sat on the abutting sidewalk; the property manager; and, of course, the snow removal company.

Notably, three days prior to her fall, Pennsylvania got hit with a massive snowstorm that resulted in no less than 17 inches of snow accumulation.   At the time of Plaintiff’s fall, the snow removal company had laborers working at the scene – workers who plaintiff saw removing snow just prior to the incident.  Patches of ice were also seen by plaintiff in and around the area where she ultimately slipped and plaintiff even admitted that she unsuccessfully attempted to bypass the snow and ice.  Ignoring all of these factors, but mainly the expected effects of the aftermath of a blizzard, plaintiff argued that the shopping center, and its agents, had a duty to keep the areas safe for invitees because the shopping center chose to open its businesses after the blizzard.  This argument fell on deaf ears as the court granted summary judgment in favor of all defendants based on plaintiff assuming the risk.  Indeed, the court concluded: Defendants owed a duty to plaintiff to exercise reasonable care to protect her from conditions on the land that were known or discoverable to them.  Plaintiff, however, assumed the risk of her injury when she knowingly and voluntarily walked over the patches of snow and ice.

While a broader common sense doctrine can be applied, namely you can expect to slip and fall on ice and/or snow after any snow storm regardless of whether you actually see snow or ice, at least for now some courts are holding plaintiffs responsible for essentially poor decision making.

Anne Hammill-Pasqua Voted Chairperson of Toms River Board

anne-hammill-pasquaMt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Shareholder, Anne Hammill-Pasqua, Esq. has been voted Chairperson of the Toms River Zoning Board of Adjustment.  She resides in Toms River with her husband, Dino, and daughter, Sophia.

Ms. Hammill-Pasqua is a lifelong resident of Toms River and a graduate of Toms River High School North. She earned her Bachelor of Arts at The College of New Jersey and her Juris Doctor at Seton Hall School of Law in 2000.  She is a member of the Ocean County College 100 Women Campaign.

Ms. Hammill-Pasqua, a member of Capehart Scatchard’s Workers’ Compensation Department, concentrates her practice in the representation of employers, self-insured companies, and insurance carriers in workers’ compensation defense matters.  She is Certified by the Supreme Court of New Jersey as a Workers’ Compensation Law Attorney.