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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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Jury Trials Again Suspended in New Jersey But May Restart on a Virtual Basis

Not surprisingly, due to the COVID-19 surge of cases, the New Jersey Supreme Court has once again suspended jury trials. They had resumed earlier in the fall on a limited basis as a hybrid with virtual jury selection and socially distanced trials. However, with this second wave of new COVID-19 cases, the Court deemed it unsafe to conduct any new in person jury trials. Hence, by order of November 16, 2020, any new in person jury trials are suspended pending further order.

After the court sent out the notice suspending jury trials in New Jersey, on 11/25/20, the court sent out a notice to the bar, which would mandate all cases to be eligible for an entirely virtual jury trial. Having the pleasure of participating in zoom depositions for the past 6 months, conducting trials virtually would present a myriad of problems. The presentation of evidence, securing witness testimony at trial, internet connectivity problems, and the use of evidence for impeachment purposes would be just some of the challenges in a virtual jury trial.

We can only hope that enough members of the bar object so that the court changes this proposal from mandatory to voluntary participation. The goal of the court is to move cases off its docket. While that it is understandable, it should not be done at the expense of adequate representation at trial. I have suggested the increased use of settlement conferences and mediations as an alternative path to resolve cases and move cases off the court’s docket.

We will keep you posted as to whether this proposal is implemented and/or modified before implementation by the 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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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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NJ Supreme Court Order Extending and Tolling Court Deadlines Due to COVID-19 Pandemic

On Friday, March 27, 2020, the New Jersey Supreme Court issued an omnibus order addressing the suspension of court proceedings, extension of deadlines and tolling time periods (including the time to file Notices of Tort Claims). The Court had been issuing almost daily orders but this order addressed the extension of those time periods based upon the current restrictions on movement and activity recommended by NJ DOH and CDC, as well as the Governor’s Order 107. The major effect of this order is to continue the stay of all jury trials, restart arbitration hearings on a virtual basis on April 27, 2020, require depositions to be conducted on a virtual basis, extend discovery deadlines for 6 weeks from March 16, 2020 to April 26, 2020, and toll the statute of limitations during this 6 week time period as well.

Per this Order, the Court placed into effect and/or renewed the following provision:

  • No new civil jury trials will be conducted until further notice.
  • Time for completion of discovery and time for filing motions for summary judgment are relaxed to permit the extension of discovery deadlines through April 26, 2020.
  • Time for issuance of summons is extended from 15 days to within 60 days of the Track Assignment Notice for notices issued from March 16 through April 26, 2020.
  • Time frame for service of valid and timely Notices of Tort Claim will be tolled from March 16 through April 26, 2020.
  • Time periods for discovery (including interrogatories, inspection of documents and property, IMEs, and requests for admission) will be extended from March 16 through April 26, 2020.
  • In computation of time for discovery end dates, the period of March 16 through April 26, 2020 shall be excluded due to exceptional circumstances.
  • Special Civil Part and Small Claims trial calendars are suspended through April 26, 2020.
  • The requirement to submit courtesy copies of motion papers, not exceeding 35 pages, to the trial court judge is suspended.
  • Civil arbitrations scheduled from March 16 to April 26, 2020 have or will be postponed and rescheduled.
  • Effective April 27, 2020, Civil Arbitrations will resume with participation in any session to be via video and/or telephone conference and initiated by an arbitrator or panelist.
  • The arbitration rules are relaxed to permit an extension of timeframes and authorize arbitration hearings to be conducted in a location other than the courthouse.
  • Through April 26, 2020, depositions should be conducted remotely using necessary and available video technology and court reporters may administer and accept oaths remotely.
  • To the extent practicable, all court matters including hearings, conferences, and arguments will be conducted by video or phone conferencing and in-person appearances will be permitted only in emergent situations.
  • All depositions and appearances for any doctors, nurses, or healthcare professionals involved in responding to the COVID-19 public health emergency are suspended through April 26, 2020 unless requested by the health profession or that are for matters related to COVID-19.
  • For computation of time periods under the Rules of Court and under any statute of limitations for matters in all courts, for purposes of filing deadlines, the additional time of March 28 through April 26, 2020 shall be deemed the same as a legal holiday. (The Court previously designated the time period of March 16, 2020 to March 27, 2020 to constitute a legal holiday.)
  • Electronic signatures are now permitted on all original filings temporarily during this crisis.

 

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Plaintiff’s Failure to Serve Correct Public Entity with Tort Claims Act Notice Barred Personal Injury Claim

Plaintiff Geoffrey Jones was injured on October 13, 2016 when he stepped into hole next to a storm grate on a street in Jersey City. On November 1, 2016, he served a notice of tort claim upon Jersey City, Hudson County, and the State of New Jersey. In Jones v. City of Jersey City and Jersey City Municipal Utilities Authority, 2020 N.J. Super. Unpub. LEXIS 344 (App. Div. Feb. 18, 2020), the issue on appeal was whether the defendant Jersey City Municipal Utilities Authority (“Authority”) should have been granted summary judgment because of the plaintiff’s failure to serve defendant with a notice of tort claim or file a motion to seek leave to file a late notice of tort claim.

After serving the notices of tort claim on the other public entities, both the State and the County responded by advising the plaintiff that they did not own or control the area where the plaintiff fell and, hence, were not liable for his injuries. Jersey City responded that it had no prior notice of any problems or defects at the loss location and denied the claim.

The plaintiff filed a complaint against Jersey City, Hudson County, and the State on May 23, 2018. In its answer, Jersey City certified that an additional party should be joined (the Authority) and that defendant Authority is a separate and autonomous agency. Also, in answers to interrogatories, Jersey City stated that defendant Authority may have made repairs to the hole or broken pavement next to the storm water/grate where plaintiff alleges he fell.

Despite Jersey City’s disclosure of the defendant Authority’s potential liability, plaintiff never sought to serve defendant with a tort claims notice, nor did he file a motion to seek leave to file a late notice of claim. Instead, plaintiff filed an amended complaint on October 4, 2018, adding defendant Authority to the lawsuit.

Defendant Authority filed a motion to dismiss on the basis of plaintiff’s failure to comply with the notice requirements of the Tort Claims Act. Plaintiff opposed the motion, contending that he had “substantially complied” with the notice requirement. He argued that the Authority was “an entity under the Jersey City umbrella” and, therefore, notice to Jersey City satisfied plaintiff’s notice requirement to the defendant Authority.

The trial court judge denied the Authority’s motion to dismiss. The judge found that plaintiff made a “reasonable good faith attempt” to give defendant timely notice and that plaintiff only learned of the Authority’s involvement a year and half after Jersey City was given proper notice.

The Appellate Division disagreed with the trial court’s decision. It found that the plaintiff was not entitled to simply amend his complaint to name defendant without first serving defendant with a notice of tort claim or filing a motion to serve a late notice.

The Court noted that the Tort Claims Act requires that notice of a tort claim be served within 90 days of the claim’s accrual. The discovery rule may apply, tolling the date of the accrual, if the victim is either unaware that he has been injured or does not know the third party is responsible. If the tort claim notice is not served within the 90 day period, permission to file a late notice of tort claim must be sought by motion, regardless of whether the date of accrual is established based upon the date on injury or through the application of the discovery rule.

The Appellate Division noted that the filing of an amended complaint would not be a substitute for the notice required by the statute. Here, the Court found that the plaintiff never complied with any of the Tort Claims Act’s notice requirements as to defendant Authority.

Further, the Appellate Division held that Plaintiff’s reliance on its service of notice to Jersey City was “misplaced.” The Jersey City Municipal Utilities Authority is a separate public entity from Jersey City. Plaintiff’s service of his tort claim notice upon Jersey City, the wrong public entity, does not absolve the plaintiff of his obligation to promptly identify the proper public entity and serve a timely notice of tort claim.

The plaintiff failed to show that he took any action after his fall to establish which public entities were responsible at any time prior to receiving Jersey City’s answers to interrogatories. Because plaintiff failed to file a motion to seek leave to file a late notice of tort claim, the motion judge “could not determine whether plaintiff established extraordinary circumstances warranting the service of a late notice of tort claim.”

Thus, the Appellate Division reversed the trial court’s order and remanded for an order to be entered granting defendant Authority’s motion to dismiss plaintiff’s 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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Plaintiff’s Written Injury Report of Pothole on City’s 311 Online Reporting System Found to be in Substantial Compliance of Tort Claims Act Notice Requirement

Plaintiff Eileen Martinez fell into a pothole on a Hoboken street on March 20, 2018, injuring her foot. On that same date, she messaged the City’s 311 online reporting system, identifying herself by her username and notified the City of the time, location, cause, nature and extent of her injury. Two days after receiving plaintiff’s message, the City sent an acknowledgment email to plaintiff and assigned a tracking number. The issue in Martinez v. City of Hoboken, 2019 N.J. Super. Unpub. LEXIS 2580 (App. Div. December 16, 2019), was whether plaintiff’s 311 online written notice substantially complied with the 90 day notice requirement under the Tort Claims Act.

When plaintiff submitted her 311 online reporting system message, she also attached photographs of her injured foot and the pothole. She did not include her full name and address in the 311 online submission to the City, nor did she sign the message other than to identify her username.

Six months after she fell, plaintiff retained counsel who notified the City of plaintiff’s injury and stated that plaintiff had complied with the Tort Claims Act by submitting the information to the City’s 311 online reporting system on March 20, 2018. Her attorney inquired of the City if it had a specific notice of claim form to proceed with her claim. Counsel specifically asked if the City considered plaintiff’s March 20 notice deficient or noncompliant with the TCA. The City forwarded its official notice of claim form to plaintiff’s counsel for completion but did not advise whether it deemed plaintiff’s March 20 notice deficient or noncompliant with the TCA. Plaintiff’s counsel thereafter submitted the completed official notice of claim form to the City five days after receipt.

Having received no response from the City regarding the acceptance of her notice of claim, in January 2019, plaintiff filed a motion to deem her March 20, 2018 notice sufficient. In the alternative, plaintiff requested permission to file a late notice of tort claim.

The City opposed the motion, contending that it did not receive a tort claim notice from plaintiff until after October 15, 2018, seven months after the accident. Hence, the City argued that it could not have an expert opine about any alleged defect at the time of the accident, as road conditions significantly changed over seven months in the City due to weather, traffic, snow plowing and the passage of time. The City contended it was severely prejudiced by its inability to properly investigate.

The motion judge determined that the plaintiff’s March 20 notice substantially complied with the TCA. The judge found that the text notification on or about the day of the accident contained “sufficient information as to the type of the accident, the location, the alleged cause and the nature of the injuries to substantially comply with the tort claim notice requirements.” On appeal, the defendant City argued that the judge made a mistake in deeming the plaintiff’s March 20, 2018 notice to be in substantial compliance with the requirements of the TCA.

Pursuant to the Tort Claims Act, no person may bring an action against a public entity for a personal injury unless the person presents the public entity with a notice of claim within 90 days after the cause of action accrued. Plaintiff contended that her March 20, 2018 message to the City’s 311 online reporting system filed within 90 days of her injury substantially complied with the TCA.

The Appellate Division stated that the doctrine of substantial compliance is an equitable doctrine intended to “avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute’s underlying purpose.” Further, the Court noted that to warrant application of the doctrine of substantial compliance, the moving party must show: “(1) the lack of prejudice to the defendant party; (2) steps taken to comply with the statute; (3) a general compliance with the purpose of the statute; (4) reasonable notice of the plaintiff’s claim; and (5) a reasonable explanation by the moving party for why there was no strict compliance with the statute.” Here, the Appellate Division found that the City failed to show prejudice and plaintiff provided a reasonable explanation for her lack of strict compliance with the TCA’s notice of claim requirements.

The Court found that the 311 message to the City’s online reporting system included the date and location of the plaintiff’s injury, the injured body part, a photograph of her injury and the pothole, offered to provide additional information and photographs to the city to allow it to investigate her claim and me and her email address. Further, two days later, the City sent a reply to her message and provided tracking numbers under her claim. Thus, during the 90 day time period from the date of her injury, plaintiff believed her 311 message to the City constituted sufficient notice of her claim. The court found that the plaintiff did take steps to comply with the TCA notice of claim and achieve the TCA’s purpose by notifying the City of her injury.

The Appellate Division was satisfied that the plaintiff had provided an acceptable explanation for failure to strictly comply with the notice of claim requirements of the TCA. Further, the Court rejected the City’s argument that it was prejudiced as result of the March 20 notice of claim. While it claimed to have never received this notice, it did respond to plaintiff and assigned a tracking number. Thus, the Court was satisfied that the 311 message was actually received.

Last, although the City claimed prejudice, just a sweeping generalization of prejudice is not enough to satisfy the prejudice requirement. The City was given the exact street location of the pothole that caused the plaintiff’s injury. The Court noted that the City could have inspected the intersection to confirm the condition of the road. There was nothing in the record explaining why under the circumstances, the City was unable to properly investigate any claim of the plaintiff or why it could have not have had an expert opine about any alleged defect at the time of the incident because plaintiff did provide information with the exact location of the pothole on March 20, 2018.

In summary, the Appellate Division found that the motion judge did not abuse her discretion in finding the plaintiff’s 311 message submitted to the City on March 20, 2018 to be in substantial compliance with the TCA’s requirements for notice of claim. Thus, the Appellate Division affirmed the trial court’s decision, finding that this 311 online report sufficient to satisfy the notice requirement of the Tort Claims Act, which will permit the plaintiff’s personal injury claim to proceed.

 


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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