The Notice of Tort Claim Was Timely Received, but Is It Statutorily Compliant?

By:  Jessica M. Anderson, Esq.

By way of background, under the New Jersey Tort Claims Act, a Plaintiff may not bring suit against a public entity or public employee unless the Plaintiff presented the public entity or public employee with a pre-suit notification of the claim.  N.J.S.A. 59:8-3.

The Tort Claims Act provides for specific procedures by which a claim may be brought against a public entity. N.J.S.A. 59:8-4 sets forth the specific content that must be included in a notice of claim:

A claim shall be presented by the claimant or by a person acting on his behalf and shall include:

  1. The name and post office address of the claimant;

  2. The post-office address to which the person presenting the claim desires notices to be sent;

  3. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;

  4. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;

  5. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and

  6. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.

In order to preserve a claimant’s right to proceed, the notice of claim “must substantially comply with the statutory content requirements.”  Newberry v. Township of Pemberton, 319 N.J. Super. 671, 679, 726 A.2d 321 (App. Div. 1999).  Failure to assert a basis for the public entity’s liability is a clear invitation for the Court to dismiss a Plaintiff’s claim.  Without a basis for liability, the public entity would be unable to promptly investigate the claim which is an essential reason for the notice requirement.  Beauchamp v. Amedio, 164 N.J. 111, at 121-22 (2000).

In Newberry v. Township of Pemberton, Plaintiffs submitted a timely notice of claim to the Township, which stated that another vehicle ran a stop sign at an intersection and struck their vehicle.  319 N.J. Super. 671, 674 (App. Div. 1999).  The Appellate Division affirmed the trial court’s decision dismissing Plaintiffs’ complaint, finding that a timely notice of tort claim which states that there has been a car accident causing injury, but failing to assert any basis for the public entity’s liability for that accident, does not substantially complied with the substantive requirements of N.J.S.A. 59:8-4.  Similarly, in the unpublished decision Aguilar v. Essex County Dep’t of Parks & Rec., Plaintiff served a timely notice of claim alleging that he was injured when his right leg went into a depression in the area of the main exit of a County owned park.  Aguilar v. Essex County Dep’t of Parks & Rec., 2009 N.J. Super. Unpub. LEXIS 1790, at 2-3 (App. Div. July 9, 2009).  However, at Plaintiff’s deposition, Plaintiff testified that he fell in a different area of the park than what was indicated in his notice of tort claim.  Id. at 4.  The Appellate Division affirmed the trial court’s order dismissing Plaintiff’s Complaint finding that Plaintiff’s notice of claim was materially deficient and failed to meet the requirements of N.J.S.A. 59:8-4 because the notice did not accurately identify the place where the alleged fall occurred thus failing to assert a basis for the public entity’s liability that would permit the entity to promptly investigate the claim.  Id. at 11-12.

Failure to assert a basis for the public entity’s liability is only one of numerous arguments that can be made as to why a timely received notice of tort claim is not statutorily compliant.  In order to ensure that the proper defenses are being raised on the public entity’s behalf, the claim should be reviewed to determine that all available defenses are being asserted.

Don’t Let Your Public Entity Client Get Tripped up by a Pothole

By: Jessica M. Anderson, Esq.

By way of background, a public entity is only liable for an injury proximately caused by a condition of its property within the limitations of N.J.S.A. 59:4-2.  To impose liability on a public entity pursuant N.J.S.A. 59:4-2, a Plaintiff must prove the following five elements: (1) a dangerous condition existed at the time of Plaintiff’s injury; (2) Plaintiff’s injuries were proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kinds of injuries that Plaintiff sustained; (4) the public entity created the dangerous condition or had notice of it a sufficient time prior to Plaintiff’s injury to have taken measures to protect against it; and (5) the public entity’s failure to take action to protect against the dangerous condition was palpably unreasonable.  Failure to prove all five elements defeats Plaintiff’s claim.

In order to satisfy the first element, a claimant must show that there was a dangerous condition, defined as a “condition of property that creates a substantial risk of injury” when the property is used with due care in a reasonably foreseeable manner.  N.J.S.A. 59:4-1a.  Courts interpreting this definition ask whether the condition created a substantial risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner.

In a long line of cases, courts have held that minor imperfections on public travel-ways are not dangerous conditions under the Tort Claims Act because they do not pose a substantial risk of injury to the public.  Courts have so held notwithstanding the fact that the imperfections may directly cause Plaintiffs severe injuries or even death.

For example, in Polyard v. Terry, 160 N.J. Super. 497, 504, 507-08 (App. Div. 1978), aff’d o.b. 79 N.J. 547 (1979), a man drove his car over a three-eighths-inch declivity connecting a highway to a bridge, and then drove over a section of pavement that had comparatively less traction than the rest of the road.  As he drove over these two defective conditions, another car cut him off.  The man lost control of his vehicle, ultimately injuring one plaintiff and killing another.  In a subsequent lawsuit against the State, the Plaintiffs’ theory of the case — backed up by expert testimony at trial — was that the defective conditions of the road contributed to the man’s losing control of his car.  The jury agreed, and found the State thirty percent liable for causing the accident.  The Appellate Division (and the Supreme Court, which adopted the Appellate Division’s reasoning in its entirety) concluded that there was no dangerous condition within the Tort Claims Act notwithstanding that the jury reached a contrary conclusion, and notwithstanding that two defects in the road caused the Plaintiffs’ injury and death.  The Court explained that the Tort Claim Act establishes a threshold level of objective severity to make a defect actionable — defects falling below that threshold are not actionable as a matter of law.  The Court additionally held that a baseline number of defects must be tolerated in public property as being consistent with public expectations.

Another case rejecting the dangerousness of a condition that caused severe injuries is Charney v. City of Wildwood, 732 F. Supp. 2d 448, 452-53 (D.N.J. 2010).  There, a woman, while walking on the Wildwood boardwalk, tripped over a hole that was roughly shaped like a right triangle measuring approximately three and three-eighths inches long and one and one-half inch deep.  Even though the woman sustained multiple fractures, and even though there was evidence that the defendant had repaired adjacent wooden boards as well as the subject board in the past, the Court held that there was no dangerous condition as a matter of law.

Yet another example is Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 641, 643 (D.N.J. 1997) where a bicyclist sustained paralysis when his bicycle struck the property owner’s elevated railroad tracks, thereby launching him head-first over the handlebars and on to the street pavement.  The railroad track was raised between 5/8 and 7/8 of an inch above the roadway.  The court granted summary judgment finding that so slight a differential could not possibly be a dangerous condition creating a substantial risk of injury.  The court found that, that would impose an unfair onerous burden on the County to keep roadways free of even the slightest imperfections.  The court found further that even if one assumed that the small differential was a dangerous condition allowing such a difference could not possibly be found to be palpably unreasonable.

These three cases represent but a few of the many that hold that minor imperfections in public travel-ways are not actionable under the Tort Claims Act even if they do happen to cause substantial injuries.

Res Ipsa Loquitur: the Thing Speaks for Itself… Unless the Thing We’re Speaking of Involves a Public Entity

By:  Jessica M. Anderson, Esq.

Res ipsa loquitur is not available in an action against a public entity grounded upon a dangerous condition of public property.  Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J. Super. 320, 339-40 (App. Div. 2000).  The Tort Claims Act requires proofs beyond those necessary for a res ipsa loquitur inference.

Similarly, the “mode of operation” rule, which permits a rebuttable inference of negligence where a business owner could reasonably anticipate that dangerous conditions would routinely arise from the customary method and manner in which he operates his business, does not apply to a public entity.  Application of that rule would not only broaden the circumstances under which a public entity could be held liable for a dangerous condition beyond those provided by N.J.S.A. 59:4-2 but would also impermissibly shift the burden of proof to the public entity.  Carroll v. New Jersey Transit, 366 N.J. Super. 380, 389-90 (App. Div. 2004).

In the recent unpublished Appellate decision, Chen v. New Jersey Transit, 2014 N.J. Super. Unpub. LEXIS 1480 (App. Div. June 20, 2014), in which this author represented Defendant, Plaintiff suffered an injury to her hand requiring internal fixation surgery when a metal object the size of a softball struck her while she was standing on the platform of the Edison train station. Two witnesses stated that the metal object either fell off or was kicked up by a passing train.  The trial court judge granted summary judgment, finding that Plaintiff could not demonstrate a prima facie case against New Jersey Transit, and failed to prove the elements necessary to establish dangerous condition liability under the New Jersey Tort Claims Act.  Plaintiff appealed, arguing that, as an invitee, Plaintiff vaulted the summary judgment threshold under the doctrine of res ipsa loquitur or the mode of operation doctrine.  The Appellate Division affirmed the trial court’s decision granting summary judgment, holding that res ipsa loquitur and the “mode of operation” rule do not apply to personal injury claims against public entities based upon the existence of an alleged dangerous condition of public property.

The Snowball Effect of the Common Law Snow and Ice Removal Immunity May Be About to Lose Momentum

By Jessica M. Anderson, Esq.

Our Legislature passed the New Jersey Tort Claims Act over forty years ago to replace and reestablish the common law rule immunizing public entities from liability for personal injury.  Although the common law doctrine of sovereign immunity was eroded to some extent by the Tort Claims Act, common law immunity for snow removal survived the enactment of our legislation.

Until roughly fifteen years ago, the majority of published cases applied the common law snow and ice removal immunity to municipalities.  However, in the 1999 Appellate decision Sykes v. Rutgers, 308 N.J. Super. 265 (App. Div. 1998), the Appellate Division held that Rutgers University was immune when a student slipped and fell on an accumulation of ice in the parking lot.  In 2001, the Sports and Exposition Authority was also found immune in the matter, O’Connell v. Sports & Exp. Auth., 337 N.J. Super. 122 (App. Div. 2001), certif. denied, 168 N.J. 293 (2001), where Plaintiff, who was attending a football game at Giants Stadium, fell on accumulated ice near the stadium seats and steps.  In 2006, UMDNJ was found immune in the unpublished decision, Smith v. University of Med. & Dentistry of N.J., 2006 N.J. Super. Unpub. LEXIS 755 (App. Div. January 9, 2006), where Plaintiff slipped and fell on refrozen ice piled next to the elevator entrance.

In the recent unpublished Appellate decision, Stair v. New Jersey Transit Inc., 2015 N.J. Super. Unpub. LEXIS 950 (App. Div. April 24, 2015), in which I successfully represented Defendant, the Appellate Division against extended the common law snow and ice removal immunity by applying it to New Jersey Transit.  In this case, Plaintiff claimed he was injured when he slipped and fell on black ice while walking on the Woodbridge train station platform.  Of significant note were the Appellate Division’s comments emphasizing the importance of the immunity in light of the multitude of claims that could be filed after every snowstorm, the substantial cost of defending such claims, and the obvious risk an individual takes when traveling in winter weather conditions.

Although the common law snow and ice removal immunity has continued to grow in strength over the past forty years, the recent concurring decision by the Honorable Jack Sabatino in Rajohn Mann v. New Jersey Transit Corporation, 2015 N.J. Super. Unpub. LEXIS 2804 (App. Div. December 4, 2015), invites the Supreme Court to reconsider the immunity.  Judge Sabatino discusses at length how absolute immunity might be sufficiently anachronistic in light of the additional safeguards provided by the Tort Claims Act.  He also notes that some other states, such as New York, do not confer absolute immunity upon public entities for negligent snow or ice removal.