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Under New Jersey Law, City Has No Liability For Plaintiff’s Injury Due To Fall On Snow In Street

In March 2015, plaintiff Donell Prince left his rooming house where he lived and noticed that there was snow on the common walkways of the rooming house property and the adjoining public sidewalks.  Plaintiff decided to walk in the street because snow had been plowed from the street into the sidewalks.  He fell and landed on his backside and side of his body.  One of the issues in Prince v. City of Englewood, 2021 N.J. Super. Unpub. LEXIS 247 (App. Div. February 12, 2021) was whether the City of Englewood could be liable for plaintiff’s fall on the public street because of snow conditions.

Plaintiff alleged that Englewood was negligent in failing to remove the snow from the public sidewalks and streets and this negligence caused him to fall and suffer injuries.  At the trial court level, Englewood successfully filed a motion for summary judgment, obtaining a dismissal of the lawsuit as to it.  This appeal ensued.

The Appellate Division pointed out that the well settled case law under the New Jersey Supreme Court case of Miehl v. Darpino gives public entities in the State absolute immunity for all snow removal activities.  As the Supreme Court later stated in Bligen v. Jersey City Housing Authority, “[t]he common law immunity was based primarily on the limitless liability that could be imposed on an entity, such as a state, county, municipality, or turnpike authority, that had the responsibility to clean up numerous streets and roads.”  Subsequent case law, after the Tort Claims Act was enacted, held that the Tort Claims Act did not change the common law snow removal immunity available to a public entity.

Thus, the Appellate Division found that summary judgment was properly granted in favor of the City of Englewood.  Plaintiff’s allegation was that he slipped and fell on a public street because of snow conditions.  The Court held that “because Englewood enjoys immunity from liability for its snow removal activities, it cannot be held liable for plaintiff’s alleged injuries.”  Thus, the trial court’s decision, granting summary judgment as to the defendant Englewood was affirmed by the Appellate Division.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Borough Found Not Liable For Slip And Fall Injury Due To Alleged Depression In Grassy Area Of Municipal Park

Plaintiff Suzanne Pagonis tripped and fell while walking across a grassy field at the Crestwood Lake Club, which was a recreational lake swimming complex owned by defendant Borough of Allendale and encompassed a municipal park, Crestwood Park.  Her daughter had participated earlier in the day in a softball tournament at the Club’s facilities.  Plaintiff fell while crossing a grassy field on the way back to her car to retrieve lunch for her children.  The issue in Pagonis v. Borough of Allendale, 2021 N.J. Super. Unpub. LEXIS 462 (App. Div. March 22, 2021) was whether the Borough was immune from liability for such accident under Tort Claim Act defenses.

Plaintiff and the other tournament families were advised that they could not use the beach and facilities reserved for members that were closest to the main entrance parking lot.  Rather, they had to use only the “west beach,” which was roughly across the lake from the member’s beach and the Club’s concession stand and access that beach through another entrance.  Plaintiff arrived with her children and ultimately ended up parking in a grassy area near the north end of the lake where other cars were parked.  With her family, she walked across a grassy field to the west beach.  Sometime later, she arrived at the concession stand to purchase some food.   Because of the long line, she decided to return to her car, retrieve lunch for her children and go back to the west beach.  As she crossed the grassy field and was about three-quarters of the way to the west beach, she tripped and fell.

Plaintiff claims that her right foot dropped into a deep hole, causing her fall and resulting injuries.  She alleged that the deep hole was a dangerous condition on public property and that the Borough negligently failed to maintain, supervise, control, and repair the open fields around the lake.  She also alleged that Allendale was responsible for controlling the parking lots and directing pedestrian traffic at the Club.  She claimed that the Borough failed to exercise reasonable care because it directed her to an area without safe access to the west beach and failed to supervise access to the west beach.

Allendale filed a summary judgment motion based upon immunities under the Tort Claims Act and the Landowner’s Liability Act.  The motion judge granted summary judgment to Allendale finding that the motion record failed to demonstrate that the hole that allegedly caused plaintiff’s fall or their lack of a pathway to the beach was a dangerous condition on public property.  The judge also rejected plaintiff’s claim that Allendale’s employees were negligent in supervising access to the west beach.  Further, the judge found that the Borough also had immunity under the Landowner’s Liability Act.

This appeal ensued and plaintiff argued that the summary judgment order should be reversed as to the Borough.

The Appellate Division noted that, under the Tort Claims Act, a public entity is immune from tort liability unless there is a specific statutory provision that makes it answerable for a negligent act or omission.  For a public entity to be found liable for a condition of property, “a plaintiff must establish the existence of a dangerous condition, that the condition proximately caused the injury, that it created a reasonably foreseeable risk of the kind of injury which was incurred, that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity’s conduct was palpably unreasonable.”  (N.J.S.A. 59:4-2).

Here, the police officer who responded to the plaintiff’s fall looked around and did not see any hole that the plaintiff might have stepped in and fallen.  One of the responding police officers took photographs, which did not show anything other than the general area of plaintiff’s fall.  Allendale’s Director of Operations testified in a deposition that the grassy areas was mowed by DPW workers two times per week in the summer.  He walked the grassy area once per week but was unaware of any complaints or prior accidents in the area.  Further, although plaintiff’s answers to interrogatories claim she fell in a “deep hole,” her fiancé described it as one caused by a vehicle’s tire.

The Appellate Division noted that, even assuming arguendo, the tire impression, undescribed as to its depth could be considered a dangerous condition, plaintiff was nonetheless required to prove the condition was caused by a public employee’s negligence or that Allendale had actual or constructive notice of the condition.  Although plaintiff contended that the hole was caused by a depression made by DPW vehicles or other vehicles operated by Allendale, the only support for this proposition was a photograph of the scene on the day of plaintiff’s fall.  This photograph portrayed a field of grass but did not demonstrate deep depressions in the earth caused by vehicles’ tires.

Additionally, the Court noted that there was no evidence demonstrating that Allendale was on actual notice of a dangerous declivity through prior observations or complaints.  Finally, the Court found that the plaintiff did not demonstrate that Allendale should have been charged with constructive notice of a dangerous condition.

Plaintiff’s alternative argument that Allendale negligently permitted its employees to direct attendees to an area that required them to walk on the grassy field after parking their cars also failed.  The Court held that “if there was no liability for the condition of the field, directing attendees to that area could not be an independent negligent act by a public employee.”

Thus, the Appellate Division upheld the order granting summary judgment to the Borough of Allendale. The Court found that it did not need to consider whether the immunity provided under the Landowner’s Liability Act applied because it found that the motion judge properly granted Allendale’s summary judgment under the provisions of the Tort Claim Act’s requirements of proof under N.J.S.A. 59:4-2 (liability for dangerous condition on public property).

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Third-Party Complaint Against Municipality Barred Due To Defendant’s Failure To Timely File A Notice Of Tort Claim

Plaintiff Eartha Butler claims that, on March 18, 2018, she suffered injuries after tripping and falling on a sidewalk adjacent to the defendant Badr’s Jersey City private school (“Badr”).  Badr was unaware of plaintiff’s claim until seven months after the accident.  At that time, it served a notice of tort claim upon Jersey City.  The issue in Butler v. Badr School, 2021 N.J. Super. Unpub. LEXIS 216 (App. Div. Feb. 9, 2021) was whether Badr could pursue a third-party complaint for indemnification and contribution against the City of Jersey City.

The plaintiff Butler did not assert a claim against the City. Plaintiff filed a complaint against Badr and other defendants on May 10, 2019, more than one year after the fall. Badr filed an answer and a third-party complaint asserting indemnification and contribution claims against the City.  Thereafter, the City moved to dismiss the third-party complaint.  It argued that Badr failed to timely serve a notice of tort claim in accordance with the Tort Claims Act requirements.  Badr cross-moved for an order deeming its October 31, 2018 notice of tort claim timely or, in the alternative, for leave to file a late notice of tort claim.

At the trial court level, the court granted the City’s motion to dismiss the third-party complaint. The court found that the March 8, 2018 date was the accrual date for the claim subject to the Tort Claim Act’s requirements.  It relied upon the Supreme Court’s decision in Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017).  It concluded that Badr’s notice of tort claim was untimely because it was not served within ninety days of the accrual of plaintiff’s claim.  The court also denied Badr’s cross-motion, in the alternative, for leave to serve a late notice of tort claim because the cross-motion was filed more than one year after the March 18, 2018 accrual date of plaintiff’s claim under the Tort Claims Act.  Thus, the trial court entered an order granting the City’s motion to dismiss Badr’s third-party complaint and also denied Badr’s cross-motion.  Badr appealed both of these orders to the Appellate Division.

The Appellate Division noted that the Tort Claims Act defines a circumstance as to when a plaintiff may bring tort claims against any public entity.  The Act requires that a plaintiff asserting tort claims against a public entity must first serve the entity with a notice of claim within ninety days of the accrual of the claim.  Under the Jones case, the New Jersey Supreme Court made it clear that this notice of tort claim requirement applies to not only the plaintiff’s tort claims, but a defendant’s crossclaims and any third-party tort claims against a public entity.

Badr’s October 31, 2018 notice of tort claim was received by the City on November 5, 2018, which was more than seven months after plaintiff fell and was injured on a city sidewalk.  Badr claimed that its notice of tort claim was timely because it did not know, and had no reason to know about plaintiff’s fall and injuries or that it had a potential claim for indemnification and contribution against the City, until it received plaintiff’s counsel’s October 18, 2018 letter from plaintiff’s counsel, presumably advising of the accident.

Badr relied upon the discovery rule, claiming that the court erred by failing to deem its notice of tort claim timely and by dismissing its third-party complaint against the City.  Badr argued that it filed a notice within days of discovering, and first having any reason to discover, its possible claims for contribution and indemnification against the City.

The Appellate Division found that the trial court correctly rejected Badr’s argument because it was inconsistent with, and contradicted by, the Court’s holding in the Jones case.  In Jones, neither the defendant nor the plaintiffs filed a notice of tort claim with the public entity within ninety days of the accident.  Plaintiff had filed a complaint more than a year following the accident, but did not assert a claim against the public entity.  The Supreme Court found that the notice of claim requirement applied to both a plaintiff’s claim and a defendant’s crossclaim or third-party claim against a public entity.  Also, under Jones, the Court “explained that a defendant who fails to serve a timely notice of crossclaim for contribution or indemnification …. is not without a remedy at trial.”  A defendant may seek an allocation of fault against a public entity under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law and obtain “a fair apportionment of damages as among joint defendants in accordance with the factfinder’s allocation of fault.”

Applying the Jones holding, the Appellate Division found that Badr’s notice of tort claim was not timely filed because it did not file a notice within ninety days of the accrual of plaintiff’s cause of action.  Badr also failed to move for leave to file a late notice of tort claim within one year of the accrual of plaintiff’s claim and, as a result, the trial court had no authority to grant Badr’s motion to file a late notice.  In the Jones case, the Supreme Court held that where a defendant fails to serve a timely notice of tort claim on a public entity and is not granted to leave to file a late notice, the Tort Claims Act bars that defendant’s crossclaim or third-party claim.

In summary, the Appellate Division affirmed the court’s orders dismissing Badr’s third-party complaint against the City and denying Badr’s motion for leave to file a late notice of claim and to deem the October 31, 2018 notice of tort claim timely.  However, the Appellate Division did note that Badr “shall be entitled to request that the jury allocate fault based on the alleged negligence of the City” as permitted by the Court in the Jones case.

The interesting part of this case is that even though the defendant knew of the claim within the one year time period and failed to timely seek leave to file a late notice of tort claim, the Appellate Division found that, nevertheless, although the third-party complaint was barred, the defendant was still entitled to request that the jury allocate fault based upon the alleged negligence of the public entity.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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New Jersey Supreme Court Orders Virtual Jury Trials to Proceed

After receiving numerous public comments, on January 7, 2021, the New Jersey Supreme Court has ordered that virtual jury trials are to proceed, starting on February 1, 2021. They will be implemented in a two phase approach in a limited number of vicinages on a voluntary basis starting February 1, 2021 and on a mandatory basis statewide starting on April 5, 2021.

The rationale appears to be able to move cases to a resolution. Without facing a trial, often parties are not realistic in trying to resolve their case. No doubt many cases will settle to avoid a virtual jury trial.

The Court noted that “countless civil litigants whose trials have been indefinitely delayed during the pandemic have not been able to resolve important disputes” and that the courts and attorneys have developed expertise in participating in virtual proceedings. Further, with training and support from the Judiciary, New Jersey residents have been able to serve as jurors in hybrid trials and grand jury panels, using their own technology or technology provided by the courts.

Hence, the Supreme Court entered an order that, during the duration of the COVID-19 pandemic, all civil jury trials will be conducted in a virtual format. In the first phase, consent to proceed remotely will be required. Phase 1 will include a limited number of vicinages: Atlantic/Cape May; Cumberland/Gloucester/Salem; Monmouth; Passaic; and Union. Phase 2 will start on or after April 5, 2021 and virtual civil jury trials will expand to all counties and no consent will be required. Phase 2 will continue as long as necessary based on the COVID-19 pandemic.

While all civil cases will be eligible for virtual civil jury trials, to the extent possible, each county will begin with cases involving a single plaintiff, a single defendant, a limited number of issues in dispute, and a modest number of live witnesses. Jury selection will be entirely virtual. Empaneled jurors will participate remotely with tablets provided by the court unless they can demonstrate that they are able to use their own technology.

At the pretrial conference with the judge, all aspects of the virtual process will be covered, including whether the judge, attorneys, and parties will be present in the courtroom or whether any or all of them will participate remotely. The judges and attorneys may agree to a hybrid format with the judge, attorneys, and witnesses participating from the courtroom.

The first virtual civil jury trials will be recorded and may be used for purposes of attorney and juror training for future virtual jury trials.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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First Aid Squad Responders Found to Be Immune from Liability for Injury Allegedly Caused by Negligent Transport of Patient

Plaintiff Rose Bengel was allegedly injured as a result of medical assistance provided by defendant Holiday City at Berkeley First Aid Squad, Inc. (“the Squad”). The Squad had responded to a 9-1-1 call for medical assistance and transported her to the hospital. The issue in Bengel v. Holiday City at Berkeley First Aid Squad Inc., 2020 N.J. Super. Unpub. LEXIS 2374 (App. Div. Dec. 11, 2020) was whether the defendant Squad and its first responder members were immune from liability pursuant to statute.

In response to a 9-1-1 call, the Squad arrived at the Bengels’ home to assist Rose Bengel (“Rose”), then 86 years old. The Squad members were advised by her home health aide that she had been wheezing and had pink eye since recently arriving home from a nursing home. Rose was non-ambulatory, being confined to a wheelchair from muscular dystrophy for decades. They had to lift her from her wheelchair to a stretcher to transport her to the hospital.

The plaintiff alleges that the Squad members negligently injured Rose in the process of lifting her, causing her to suffer a rotator cuff tear in her left shoulder. Due to her age, surgery was not recommended and it was contended that Rose’s use of her left hand and arm became more limited after this incident.

The Squad disputed that they caused any injury to Rose in the process of transferring her to the stretcher. They claim that they gently lifted her from her wheelchair, wrapping their arms around her abdomen and feet and sat her on the stretcher.

The Squad moved for summary judgment, arguing that they had statutory immunity against claims of negligence. The Plaintiff argued that the statutory immunity did not apply because it was not an emergent situation and the Squad failed to demonstrate their actions were in good faith.

The trial court judge granted the Squad and its member responders a summary judgment dismissal. He noted that the Squad was one of the 4 volunteer first aid squads in Berkeley Township and its members were first responders certified to provide Basic Lift Support Services. The judge applied the statutes, N.J.S.A. 2A:53A-13, N.J.S.A. 2A:53A-13.1, and N.J.S.A. 26:2K-29, which “immunized volunteer rescue squads and members from civil liability when providing emergency public first aid or intermediate life support services in good faith.”

The judge found that the Squad members were engaged in public first aid rescue services as they were responding to a 9-1-1 medical emergency call. Although Rose’s condition may not have been life threatening, that did not make the call “non-emergent.” Further, the judge held that there was no evidence that any such injury suffered by Rose was with intent or bad faith of the Squad members.

The plaintiff appealed this summary judgment dismissal to the Appellate Division. The appeals court agreed with the trial judge that the Squad and its members who transported plaintiff qualified for statutory immunity from civil liability. More than negligent conduct would need to be proven to find that the Squad members failed to act in “good faith” or acted in a “willful or wanton” manner.

Thus, even if the Squad members were negligent in lifting Rose and caused her shoulder injury, the Appellate Division found that such actions did not strip the Squad and its members from their statutory immunity. Finding that, at worst, the Squad members were negligent, the Court upheld the trial court’s order granting summary judgment to the Squad and its members.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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DOT Contractor Entitled to Tort Claims Act Immunity as Defense in Personal Injury Action

Plaintiff Robert Koehler was injured while driving near an overpass on Route 3 in Rutherford, New Jersey when the boom of a bucket truck, which was in tow, struck the overpass, flew off, hit the roof of Plaintiff’s vehicle and entered the sunroof, causing his injury. The overpass was located in a construction zone. The issue in Koehler v. Smith, 2020 N.J. Super. Unpub. LEXIS 1855 (App. Div. Oct. 1, 2020) was whether the DOT’s general contractor, defendant Creamer Sanzari, was entitled to Tort Claims Act immunity for this accident.

The overpass was not marked with a low clearance sign before the accident and the plaintiff claimed that the defendant general contractor (“GC”) should be liable for his accident when the truck hit the overpass. The defendant, however, claimed that it was entitled to Tort Claims Act traffic sign immunity and design plan immunity.

On the trial court level, the defendant GC filed a motion for summary judgment, which was granted. While the trial court judge concluded that the defendant was not entitled to design plan immunity, he held that the defendant was entitled to traffic sign immunity and granted the defendant’s motion for summary judgment.

Upon appeal, the Appellate Division noted that the plaintiff’s expert admitted in deposition testimony that it was the design engineer’s responsibility to ascertain that the project’s plans and specifications were correct and that there was an issue whether the contractor was authorized to affix a low clearance sign to the bridge and that the requisite signs should have been addressed before the project began. The Court also stated that “[t]here was no dispute that the traffic control patterns were designed by the DOT and its engineers, and defendant carried out those patterns according to the plans and specifications.”

The contract setting forth the duties of traffic control as to the GC did not relate to permanent conditions such as the overhead height at issue and the lack of signage. The overhead height was not being altered as part of this project. The milling and paving being performed by the defendant underneath the bridge would not have changed the clearance.

The Appellate Division affirmed the trial court’s order granting summary judgment. The Court found that the defendant GC had no duty to affix signage at this overpass or to address the traffic flow at this location. Thus, the GC was entitled to summary judgment regardless of whether it enjoyed traffic sign immunity under the Tort Claims Act.

The Court also rejected the plaintiff’s argument that this situation was an “emergency” and found inapplicable the case law in which “a public entity may be held liable for its failure to provide emergency signals when the dangerous condition is temporary.” The Appellate Division agreed with the trial court judge that “the Ridge Road overpass’s lack of clearance signage is not the type of sudden and unanticipated situation that would impose liability on a public entity, and as such, the judge correctly determined defendant was entitled to traffic sign immunity.”

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Supreme Court Found Question of Fact as to Whether Police Officer Entitled to Qualified Immunity for Shooting of Plaintiff

The plaintiff Bryheim Jamar Baskin claimed that a justifiable police chase ended in an unjustifiable police shooting due to the use of excessive force in violation of the Federal Constitution.  The issue decided by the New Jersey Supreme Court in Baskin v. Martinez, 243 N.J. 112 (2020) was whether the defendant Detective Rafael Martinez, who chased and eventually shot Baskin, was entitled to qualified immunity and, hence, a dismissal of the lawsuit on a summary judgment basis.

Certain facts were undisputed.  The police chased 20 year old Baskin after he crashed his car into an unmarked car occupied by Detective Martinez.  Baskin fled on foot with a handgun, which he discarded out of Martinez’s sight.  Thereafter, Baskin found himself trapped in a walled yard with no way to escape.  It is at that point, that the facts become disputed.

According to Baskin and an eyewitness, Baskin put his hands up above his head and turned toward the pursuing police officer with his palms open and no weapon.  He claims that he made no gesture that he was reaching for a weapon and that he posed no threat.  Baskin and the eyewitness state that Baskin’s hands were in the air in a sign of surrender when Detective Martinez shot him in the abdomen, causing serious and permanent injuries.

On the other hand, Detective Martinez asserts that when Baskin finally came into sight, he turned and pointed in the detective’s direction with an object that looked like a gun.  Detective Martinez claimed that he feared for his life and, only at that time, did he discharge his weapon.  There was no handgun found where Baskin fell.  There were two cell phones located nearby.

Based upon these facts, the trial court granted Detective Martinez qualified immunity and dismissed Baskin’s §1983 action.  A split three judge Appellate Division panel reversed and reinstated the case.  Due to the dissent in the Appellate Division, the issue of whether Detective Martinez was entitled to qualified immunity came to the Supreme Court as an appeal as of right.

The Supreme Court did affirm the Appellate Division majority, but it was a split decision of a 4-3 vote.  Regardless, the Supreme Court affirmed the Appellate Division, finding in favor of the plaintiff on a summary judgment basis.

The Court noted that it must accept as true the testimony of Baskin and the independent eyewitness, who both stated that Baskin’s hands were above his head, in an act of surrender when Detective Martinez shot him.  Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force.  The use of deadly force is prohibited against a non-threatening and surrendering suspect.  Hence, the Supreme Court concluded that Detective Martinez was not entitled to qualified immunity on a summary judgment basis.

The Court discussed what was needed to establish qualified immunity, which is as follows:

1.Whether the evidence, viewed in the light most favorable to the plaintiff, establishes that the official violated the plaintiff’s constitutional or statutory rights; and

2.Whether the right allegedly violated was “clearly established” at the time of the officer’s actions.  A right would be clearly established “if it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Further, the Court pointed out that under the qualified immunity case law, the Court is required not only to view the evidence in the light most favorable to the plaintiff but also to draw all reasonable inferences in his favor that are supported by the summary judgment record.  Based upon the facts, the Court cannot give credence to Detective Martinez’s account of the last moments of his encounter with Baskin and cannot resolve the disputed issues of material fact as would a jury.  The Court must accept as true the testimony of Baskin and the eyewitness that, as Detective Martinez “rounded the corner of the house, Baskin was standing with his open and empty hands above his head – not reaching for a weapon or making a threatening gesture.”

Under the law, it is clear that every police officer would understand that “it is not objectively reasonable to shoot a person suspected of committing a crime after he has placed his empty hands above his head in an act of surrender.”  The law is also clear that a suspect’s conduct leading up to his attempt to surrender cannot alone justify using deadly force against the suspect when his hands are above his head in an act of submission and he no longer poses a threat.  While the facts may be disputed as to whether Baskin’s hands were empty and up in the air, for qualified immunity purposes, the Court must consider the totality of the circumstances through the perspective of an objectively reasonable police officer on the scene.  The Court must also accept Baskin’s version of these events that are in dispute and draw all reasonable inferences in his favor.

The Court noted its understanding that police officers often must make split second decisions in highly volatile situations and does not minimize the challenges of dangers facing a police officer engaged in pursuit of a suspect who is observed carrying a gun.  The Court accepted that Detective Martinez had a legitimate and obvious basis to be concerned for his safety.  Had Baskin turned toward him with a gun in his hand, Detective Martinez would likely have had an objectively reasonable basis to use deadly force to protect himself.  The Court stated that “the justification for use of deadly force at one point and a dangerous encounter does not give an officer the right to shoot a suspect when the use of deadly force can no longer be justified.”

Detective Martinez testified that when he rounded the corner, he saw Baskin turning toward him pointing an object that appeared to be a gun.  However the facts were sharply disputed as to whether that occurred and whether Baskin pointed anything at him, even if it turned out just to be a cell phone.

Because of the conflicting accounts of what occurred at the time of the shooting and other disputes of material fact, the Supreme Court found that this issue must be submitted to a jury for resolution of the facts.  At that point, the trial court can determine the merits of the application for qualified immunity.  After the jury makes its fact findings, Detective Martinez will be able to renew his qualified immunity application if there is a basis to do so.  Hence, the Supreme Court affirmed the judgment of the Appellate Division and remanded the case back to the trial court.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Neither County, Nor Board Of Education Held Liable For A Student Injured In Gym Class

Plaintiff Cora Kerton, on behalf of J.R., her minor daughter, filed suit against the County of Hudson and the Board of Education for the Hudson County Schools of Technology, as well as the superintendent and principal of the school, due to an injury that her daughter suffered in gym class.  Her daughter suffered an injury to her foot while participating as a student in her gym class at County Prep, a high school in the school district.  In Kerton v. Hudson County, 2020 N.J. Super. Unpub. LEXIS 962 (App. Div. May 20, 2020), the issue was whether the plaintiff needed an expert to establish the standard of care owed by the defendants in supervising the gym class.

On the day of the accident, the plaintiff was a sophomore at County Prep.  The principal was responsible for creating the school’s master calendar which included the class periods.  The school had one gymnasium.  In 2014, two gym classes and one fitness class typically used the gymnasium during a single class period.  Each gym teacher ordinarily provided instruction to that teacher’s class.  However, at certain times, all three classes were brought together for joint instruction.  Joint instruction occurred at least once per week.

On the day of the accident, the three classes were brought together for other exercises.  One teacher instructed the students to begin interval running, which required transitioning from walking to running and back to walking.  The minor J.R. stated that she had transitioned from walking to running when she approached students who were still walking.  She attempted to go around them when she fell.  She claims certain students were using cell phones at the time.  At the time that she fell, the teacher was in the gym teacher’s office.

Due to the fall, she suffered a displaced fracture of the fifth metatarsal base and avulsion fracture to the tip of the fibular malleolus in her right ankle.  She needed surgery to repair the fracture of her foot and stabilize the ankle.  She underwent a second surgery to have one the screws removed that had been used to repair the fracture.

At the trial court level, the defendants all filed a motion for summary judgment.  They argued that the plaintiff failed to establish that at the time she fell, the County Prep gymnasium constituted a dangerous condition of public property under the Tort Claims Act.  They also argued that she failed to show that the defendants breached any duty of care.  Additionally, the County filed a motion, making among other arguments that the plaintiff’s negligence claim failed because she could not establish a standard of care for the teachers at the County Prep without expert testimony.

The trial judge noted that plaintiff was not asserting a claim that the gymnasium itself constituted a dangerous condition of public property.  Rather, plaintiff’s claim was based on the alleged negligence of defendants.  The judge determined that the negligence claim failed as a matter of law because plaintiff did not establish the standard of care owed by “a teacher who was supervising a large class in the middle of the day.”  The judge found that to prove such a standard would require the expertise of someone who had experience in teaching and education and supervising children in class.  He found that the common knowledge doctrine did not relieve the plaintiff of the obligation to present expert testimony.

The plaintiff appealed the ruling, claiming that the judge erred by finding that she needed expert testimony to establish the standard of care for her negligence claims and by refusing to apply the common knowledge doctrine.

The Appellate Division noted that “it is well established that teachers and school administrators in New Jersey have a duty to supervise children in their facilities.”  The Appellate Division also noted that expert testimony is required “when the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the defendant was reasonable.”  Further, the Court stated that “without expert testimony, the jury would have to speculate as to the applicable standard of care.”

The Appellate Division agreed with the trial court judge that the plaintiff was required to present expert testimony to establish the standard of care.  The Court noted that the motion judge correctly decided that “the average juror does not have the required understanding of the manner in which school administrators schedule classes, whether students in gym class should be permitted to use electronic devices while exercising and the level of student supervision required when three gym classes have class in a gymnasium at the same time.”  The Appellate Division agreed that these subject matters are “so esoteric that jurors of common judgment and experience cannot form a valid judgment.”

The Court also agreed with the trial court judge that the common knowledge doctrine did not apply.  The plaintiff had argued that this doctrine applies “when the common knowledge of jurors is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts.”  The Appellate Division, however, agreed that an expert was needed in this case to establish the standard of care for the specific claims asserted in this case.

Accordingly, the Appellate Division affirmed the trial court’s decision.  Because the plaintiff did not have an expert to establish the standard of care, the defendants were entitled to summary judgment, dismissing the lawsuit.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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County Found Not Liable For Trip Over Pipe Due To Plaintiff’s Failure To Prove Notice

Plaintiff Ellen Cavilla tripped over a partially exposed pipe and broke her wrist while fishing in Gaskill Park in April 2015.  She sued Atlantic County for negligence due to her injuries.  The issue in Cavilla v. County of Atlantic, 2020 N.J. Super. Unpub. LEXIS 877 (App. Div. May 11, 2020), was whether a negligence claim could be maintained against the County under the New Jersey Tort Claims Act due to lack of notice of the pipe.

The defendant County claimed that it had no actual or constructive knowledge of the alleged dangerous condition, as required under the Act.  Hence, it moved for summary judgment on the trial court level, which was granted.

To maintain a claim for personal injury under the Tort Claims Act, a plaintiff must demonstrate five elements.  For a public entity to be liable for an injury caused by a condition of its property, the plaintiff must establish: “1) that the property was in a dangerous condition at the time of the injury; 2) that the injury was proximately caused by the dangerous condition; 3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; 4) that the public entity created the dangerous condition or had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition; and 5) that the public entity’s actions were palpably unreasonable.”

In this case, the issue was whether there was proof that the public entity had actual or constructive notice of the dangerous condition.  To prove actual notice, the public entity must have actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  For a public entity to be deemed to have constructive knowledge of a dangerous condition, that occurs “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

Based upon the Appellate Division’s review of the record, the Court found that the plaintiff could not successfully establish a prima facie case of negligence because she had not presented evidence that the County had actual or constructive notice of the location or condition of the pipe.  The plaintiff argued that the photographs of the pipe created a fact question as to the constructive notice issue.  The Appellate Division disagreed with that argument.  The Court noted that these photographs, viewed in the light most favorable to plaintiff, may establish that a dangerous condition existed, but they did not establish that the County had actual or constructive notice of that condition.

The plaintiff argued because the County was “actively” and “regularly” mowing the area, it must have been aware that the pipe was present.  Neither the trial court, nor the Appellate Division found that argument to be persuasive.

The superintendent of Atlantic County Parks provided an Affidavit, indicating that he conducted a diligent search of the Park’s records and found no record of a visitor notifying the Park system of any dangerous condition regarding the pipe.  According to the record, the first time the Park system was notified of this condition was when the County received plaintiff’s present claim.

The Court noted in a footnote that the photographs of the pipe were taken 9-18 months after the accident.  They showed the pipe was at least partially obscured by soil and grass.  While the plaintiff initially maintained that these photographs accurately depicted the condition of the accident scene on the date of her fall, she subsequently provided a second Affidavit in which she claims that the pipe was discernable.  The Court noted that there was an “inherent tension” between her argument that the pipe was sufficiently concealed to constitute a dangerous condition and yet was of such an obvious nature as to put the County on actual or constructive notice of the condition.

The Appellate Division found that plaintiff failed to establish the notice element but also noted that the plaintiff failed to satisfy element number 5, in that she presented no evidence that the County had acted in a palpably unreasonable manner.  There was no proof presented that the County was notified of any condition regarding the pipe until the plaintiff filed the complaint. Hence, the plaintiff had failed to present any evidence from which to conclude that the County acted in a palpably unreasonable manner.

Accordingly, even when viewing the plaintiff’s evidence in the light most favorable to her, the Appellate Division found that she had not established a prima facie case of negligence under the Tort Claims Act.  Thus, the County was entitled to summary judgment.  Accordingly, the Appellate Division affirmed the summary judgment in favor of the County, dismissing the complaint.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Police Officers Found Not to Be Immunized in Alleged Failure to Render Assistance to Injured Plaintiff at Motor Vehicle Accident Scene

Two Jersey City Police Officers were dispatched to a motor vehicle accident in Jersey City at 2:26 am involving the truck of the decedent Hiram Gonzalez (“Gonzalez”), which he advised them had spun out of control. After responding to the accident, Gonzalez was left at the scene of the accident by the officers after he turned down the offer of a ride and, instead, allegedly advised them that he would wait for his brother to give him a ride. The facts were in dispute as to whether they should have known he was intoxicated at the time. At about 3:42 am, he was struck and killed while walking in the middle of the roadway. The issue in Estate of Gonzalez v. City of Jersey City, 2020 N.J. Super. Unpub. LEXIS 689 (App. Div. April 17, 2020), was whether the officers and the City were immune from tort liability for his fatal accident.

Both officers denied noting any signs that Gonzalez was intoxicated. Based upon an autopsy performed, Gonzalez’s blood alcohol level was a .215. Plaintiff’s toxicology expert opined that Gonzalez’s blood alcohol level when he encountered the officers was a .20, which was 2 ½ times higher than the legal limit for driving.

At the trial court level, the defendants filed for a summary judgment based upon various Tort Claims Act immunities, including N.J.S.A. 59:3-(2)(a), absolute immunity for injuries resulting from the exercise of judgment or discretion. The plaintiff argued that the officers’ acts were ministerial and, under N.J.S.A. 59:2-3 and N.J.S.A. 59:3-2, the officers were not immunized for the negligent performance of a ministerial act.

The trial court judge granted the defendants’ summary judgment motion. He found that the officers had conducted their duties in good faith and that they had no duty to remove Gonzalez from the highway. They offered to give him a ride and secured a ride with a family member before leaving him behind the guardrail. The judge found that the defendants’ actions were immunized under N.J.S.A 59:3-3 (good faith enforcement of laws). He also found that there was no statutory duty to take Gonzalez to a treatment facility because he had no outward signs of intoxication.

The plaintiff appealed, arguing that an officer may be liable for the negligent performance of his or her ministerial act and, therefore, the officers were not immune from liability under the Tort Claims Act. Further, plaintiff argued that the court erred in finding the “officers had the discretion to abandon an intoxicated victim of a motor vehicle accident on a dark, rainy highway bridge.”

The Appellate Division disagreed with the trial court’s ruling and reversed. The Court noted that police offers have a duty to respond to accident scenes and render assistance. In responding to this motor vehicle accident, the Court found that the officers were performing a ministerial duty and would be subject to liability for the negligent performance of this duty. The police do not enjoy immunity for negligent performance of ministerial duties.

The Appellate Division found that there were factual issues that must be resolved by a jury as to whether the officers were negligent. There was conflicting factual evidence as to Gonzalez’s behavior, his conversations with the officers, the circumstances of the inoperability of his car, the officers’ version of their exchange with the dispatcher (as to why they left him at the scene),  and the assessment the area where he was left. The Court ruled that these issues could not be made on a summary judgment record. Thus, the Appellate Division reversed and remanded the matter back to the trial court.

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