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New York Court of Appeals Finds that Plaintiffs Moving for Partial Summary Judgment on Liability are not Required to Prove the Absence of their Own Comparative Negligence

Plaintiff Carlos Rodriguez, a garage utility worker for the New York City Department of Sanitation, was standing between a parked car and a rack of tires when a sanitation truck, which was trying to back into a garage, crashed into the front of the parked car, propelling it into plaintiff and pinning him up against the tires.  The plaintiff sued the City of New York for negligence and moved for partial summary judgment on liability.  The Supreme Court denied plaintiff’s motion and the First Department of the Appellate Division affirmed, finding that plaintiff had failed to make a prima facie showing that he was free of comparative negligence.  The question in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), was whether plaintiffs moving for partial summary judgment in a comparative negligence action must establish the absence of their own comparative negligence.

The Court of Appeals answered this question in the negative: “To be entitled to partial summary judgment[,] a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault.”  Rodriguez, 31 N.Y.3d at 315, 324-25.  In so holding, the Court of Appeals recognized that under New York’s comparative negligence statute, a plaintiff’s culpable conduct “shall not bar recovery” because it “is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence”; rather, such conduct only serves to diminish “the amount of damages otherwise recoverable.”  Id. at 317-19.  The Court also noted that since a plaintiff’s culpable conduct is an affirmative defense to be pleaded and proved by the party asserting it, a rule requiring plaintiffs to disprove their culpability would flip the burden of proof and would thus be inconsistent with the plain language of the comparative negligence statute.  See id. at 318.  The Court found that such an outcome would not be consistent with the legislative history of the comparative negligence statute, which indicated that the law was designed to bring “New York law into conformity with the majority rule and represent[ed] the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff.”  Id. at 321.

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Appellate Division Reverses Order Denying Motion to Dismiss NJCRA Claims against New Jersey DEP Employees on the Basis of Qualified Immunity

In the recent precedential opinion of Radiation Data, Inc. v. N.J. Dep’t of Envtl. Prot., 2018 N.J. Super. LEXIS 149 (App. Div. Nov. 2, 2018), the Appellate Division highlighted the importance of resolving a public employee’s assertion of qualified immunity on a motion to dismiss for failure to state a claim that was filed under the New Jersey Civil Rights Act.  In doing so, the Appellate Division sent a clear message to lower courts that a perceived need for discovery is not an excuse for dodging the pure legal question of whether a right is “clearly established,” and that courts must remember that qualified immunity is not just a defense to liability but is also an immunity from suit, including the burdens attendant to litigation.

Radiation Data, Inc. (“RDI”) filed a claim under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c), against several employees of the New Jersey Department of Environmental Protection (“NJDEP”) for allegedly violating RDI’s constitutional rights as administrative enforcement litigation proceeded in the Office of Administrative Law.  Beyond claiming that NJDEP did not pursue enforcement actions against other radon companies for the same kinds of violations, RDI alleged that several NJDEP employees refused to respond to RDI’s telephone calls and emails regarding business and compliance matters, channeled communications between the adverse parties through counsel, prohibited RDI from hand-delivering a license renewal form to the NJDEP’s offices, made several threatening remarks to or about RDI, refused to meet with an RDI representative, and uttered an anti-Semitic slur about the President of RDI.  The issues in this precedential opinion were: (1) whether RDI’s substantive due process claim against the NJDEP employees should have been dismissed on the basis of qualified immunity; and (2) whether RDI’s equal protection claim against the NJDEP employees should have been dismissed on the basis of qualified immunity.  The trial court, on a motion to dismiss pursuant to Rule 4:6-2(e), answered both questions in the negative, so the NJDEP employees appealed.

On leave to appeal granted, the Appellate Division found that the trial court “misapplied principles of qualified immunity from suit” in denying the NJDEP employees’ motion to dismiss.  The trial court essentially held that consideration of qualified immunity had to wait until summary judgment.  But the Appellate Division wrote that “the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense . . . so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings.”  Indeed, “unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”  Thus, since “qualified immunity is not simply immunity from a final judgment, but is immunity from suit,” and since “[t]he claims of constitutional deprivation [we]re ripe . . . for dismissal on immunity grounds,” the Appellate Division “discern[ed] no need to withhold immunity-based dismissal, pending discovery.”

With respect to RDI’s equal protection claim, the Appellate Division wrote that it was based on the “class-of-one” theory, which required proof that RDI was both intentionally and irrationally treated differently from others who were similarly situated.  The Appellate Division found that the NJDEP employees were entitled to qualified immunity on the selective enforcement claim because the regulatory action was “multi-dimensional” and because RDI, the largest radon mitigation business in New Jersey, was not similarly situated to other such businesses.  The Appellate Division also found that the NJDEP employees were entitled to qualified immunity on the disparate treatment claim because they had a rational basis to limit and channel RDI’s contacts given “the contentious adversarial context . . . existing while the administrative case was pending.”  Further, the Appellate Division found that “RDI had no ‘clearly established right’ to dictate how [the NJDEP] was to communicate with RDI while the hotly-contested litigation was ongoing.”  Indeed, “[g]overnment must retain the discretion to respond to private parties in a manner it finds most efficient and effective.”

The Appellate Division reached the same conclusion with respect to RDI’s substantive due process claim, which was grounded on an alleged violation of the right “to engage in common occupations of life ‘free from unreasonable governmental interference.’”  While a substantive due process violation is only actionable if the official conduct was “arbitrary, or conscience shocking, in a constitutional sense,” the Appellate Division found that NJDEP’s decisions “to pursue regulatory violations against RDI and to channel communications through counsel as the administrative case became increasingly contentions do not ‘shock the conscience.’”  Thus, “[t]he conduct alleged by RDI did not infringe upon any ‘clearly established’ constitutional rights of RDI.”

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Third Circuit Affirms Dismissal of Excessive Force Claim Because Plaintiff Cannot Identify Police Officer Who Kicked Him

Two police officers from the Riverdale Police Department and three troopers from the New Jersey State Police encountered Plaintiff Emil Jutrowski, who was heavily intoxicated, after he crashed his vehicle along the shoulder of a highway and sustained injury.  While the officers were escorting Jutrowski to an ambulance, he struck one of the troopers who was trying to steady him, so the officers brought him to the ground and tried to put him in handcuffs.  During the ensuing scuffle, one of the officers kicked Jutrowski on the right side of his face, breaking his nose and eye socket.  The issues in the published decision of Jutrowski v. Twp. of Riverdale, 2018 U.S. App. LEXIS 25806 (3d Cir. 2018), were: (1) whether Jutrowski could survive summary judgment on his excessive force claim when he could not identify which of the four officers named in the complaint had kicked him, and (2) whether Jutrowski could survive summary judgment on his civil conspiracy claim based on the officers’ alleged after-the-fact cover-up of the events giving rise to the case.  The District Court answered both questions in the negative and dismissed Jutrowski’s claims with prejudice.

On appeal, the Third Circuit agreed that the officers were entitled to summary judgment on Jutrowski’s excessive force claim.  Relying on the core principle of § 1983 litigation that a plaintiff resisting summary judgment must produce evidence supporting each individual defendant’s personal involvement in the alleged constitutional violation in order to bring that defendant to trial, the Court found that the record was insufficient for any reasonable jury to identify which, if any, of the officers had used excessive force.  Indeed, while Jutrowski had narrowed the potential universe of actors to those that were in his immediate vicinity, he admittedly sought to proceed to trial against at least three officers who were free of liability without ever ascertaining which officer was the perpetrator of the constitutional deprivation.  Like the District Court, the Third Circuit was thus unwilling to have a jury “guess” as to which officer had kicked Jutrowski.

However, the Third Circuit reversed the order granting the officers’ motion for summary judgment on Jutrowski’s after-the-fact civil conspiracy claim, which was not dependent on Jutrowski’s ability to identify the officer who had kicked him.  Jutrowski’s theory was that the officers had conspired with one another to cover up the use of force during the arrest and thus to deprive him of his constitutional right of access to the courts to be heard on his underlying excessive force claim.  The Court found that there were material omissions in contemporaneous police reports from which a jury could infer a conspiracy – namely, the fact that none of the reports mentioned that Jutrowski suffered significant injuries during the course of his arrest.  The Court also pointed to inconsistent accounts of the vantage point of one of the officer’s vehicles, the absence of that officer’s dashcam footage from the record when all of the other officers’ vehicles recorded the encounter, and the fact that several officers acknowledged having discussed the case with each other while they were writing their reports.  Further, the Court relied on Jutrowski’s expert report, which concluded that his injury most likely resulted from a kick or a punch and not from a face-first fall to the ground.  Thus, the Court remanded Jutrowski’s conspiracy claim for further proceedings.