Appellate Division Affirms OPMA Does Not Require BOE to Discuss Proposed Employment Action Prior to Voting

On May 17, 2019, the New Jersey Appellate Division in Centrella v. Prospect Park Board of Education issued an unpublished decision confirming that, under the Open Public Meetings Act (“OPMA”), a public entity is not required to discuss a proposed employment action prior to actually voting on that action. This case involved a former Prospect Park Board of Education (“Board”) employee’s appeal under the OPMA in which she alleged that the Board improperly eliminated her position of speech language specialist and terminated her tenured position when the Board did not discuss the proposed action at the same meeting in which it voted to take that action.

The proposed termination of Plaintiff’s position was listed on the Board’s publicly available agenda, which also explained the reasons for the recommended action, including reasons of economy. In preparation of the Board’s June 17, 2017 meeting, Plaintiff received a Rice notice, to which she responded that she wished to have her employment discussed at the public portion of the meeting rather than privately in executive session. Without discussion, the Board voted to approve the resolution involving Plaintiff, along with fourteen other employment resolutions. A call for discussion amongst Board members was made, to which Board members had no comments.

Relying on Kean Federation of Teachers, the Appellate Division affirmed the trial court’s dismissal of Plaintiff’s complaint. In rejecting Plaintiff’s arguments, the Appellate Division confirmed that OPMA does not mandate that a public entity engage in any particular level of discussion at a public meeting. Instead, OPMA gives a public employee the right to require the public entity to conduct its discussion, if any, in public rather than in executive session. While Plaintiff requested that her employment be discussed in public session, she could not compel the Board to have a discussion prior to its voting on her employment.


Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA.


Contractor Who Missed 90 Day Deadline for Serving A Notice of Tort Claim by Two Days Barred by Court To Pursue Tort Claim Against Municipality

Plaintiff Lakeside Construction (“Lakeside”) was a contractor who was hired to perform various site improvements at a school located in the Township of Sparta.  Those site improvements included the installation of an underground pipe to connect the new school building to the municipal water main.  Several weeks after a person who allegedly identified himself as a Township Inspector came out and inspected the pipe, the Township’s Director of Utilities sent a letter to Lakeside that it had impermissibly installed the pipe without authorization and without an inspector present.  Lakeside was forced to incur the expense to install a duplicate pipe and served a Tort Claims Act notice upon the Township, claiming damages for this expense.  The issue in Lakeside Construction v. Township of Sparta, 2019 N.J. Super. Unpub. LEXIS 1062 (App. Div. May 9, 2019) was the accrual date for Lakeside’s claim, as well as whether missing the 90 day Tort Claims Act notice deadline by two days would bar Lakeside from pursuing its tort claims.

Lakeside claimed that a person who identified himself as a Township Inspector had come out on November 10, 2016 and observed the installation of the first section of pipe. The alleged inspector left the site and Lakeside workers completed installing the pipe that day.  It was thereafter on December 29, 2016 that Mr. Spaldi, the Township’s Director of Utilities, advised Lakeside that it had impermissibly installed the pipe.  He sent Lakeside an e-mail, informing it that the water service for the project was not accepted and that water supplied to the project would not be authorized.  While Lakeside disagreed with Mr. Spaldi’s finding that the pipe had not been inspected, they were forced to install a duplicate water line parallel to the one they had already installed because it was under time pressure to complete the overall project for the school so that it would receive a Certificate of Occupancy and the building could be opened promptly.  Thus, according to Lakeside, it incurred expenses in the amount of $50,409 in installing the duplicate pipe.

Thereafter, it sued the Township, alleging negligent supervision by the Township and the Water Utility in hiring, retaining and supervising the Township’s Director of Utilities Spaldi and another Township Official by the name of Michael Sportelli.  The complaint also alleged negligent failure to train, negligence in carrying out ministerial functions, and tortious interference.

The defendants filed a Motion to Dismiss the Complaint, arguing that the Tort Claims Notice that Lakeside had served was not served within the 90 day time period prescribed by N.J.S.A. 59:8-8.  The defendants asserted that any cause of action for negligence accrued on December 29, 2016, the date of Mr. Spaldi’s e-mail advising that the pipe installation was unauthorized.  With that accrual date, notice of any tort claim had to be served on the Township no later than March 29, 2017.  However, the notice was not served until March 31, 2017, the 92nd day after the December 29, 2016 email.

Lakeside opposed the dismissal motion, arguing that its claims did not accrue until mid-January 2017 when it incurred the expense of installing the duplicate pipe.  Further, Lakeside argued that the Township’s ongoing refusal to change its position about the legitimacy of the original November 26 installation amounted to a continuing tort, which it claimed would defer the time of accrual.

At the trial court level, the Judge granted the defendants’ motion, finding that the injury to Lakeside first manifested itself when it received the notice from Mr. Spaldi that its original installation was unacceptable.  Lakeside’s subsequent expenditures on the duplicate pipe did not delay the accrual date.  Further, the judge rejected Lakeside’s theory of a continuing tort.

Upon appeal, Lakeside continued to argue that the accrual did not occur until mid-January 2017 and, hence, its Tort Claims Act notice was timely served.  It also argued, in the alternative, the theory of continuing tort, alleging that the defendants’ persisting refusal to retract the December 29 e-mail represented an ongoing form of negligence by inaction.

The Appellate Division agreed with the trial court that Lakeside’s tort based claims against the Township and its officials did accrue on December 29, 2016, the date of the Spaldi e-mail.  Lakeside’s complaint characterized the e-mail as a wrongful tortious act, one based upon a false belief that a Township Official had not inspected the original pipe connection when it was installed in November 2016.

The Appellate Division also agreed with the trial court that the accrual of the claim was not delayed until the expenditure of funds by Lakeside to install a replacement pipe in mid-January 2017.  It pointed to the Supreme Court decision of Beauchamp v. Amedio, in which the Court held that the date of accrual of a personal injury claim arising from an accident is the date when the accident occurred and when the initial harm was inflicted, even though the plaintiff’s bodily injuries were eventually discovered to be permanent.  The duty to provide notice was triggered by the occurrence of the injury, although the full extent of an injury or loss may not be known.

The Appellate Division found that the trial court correctly applied these principles in determining that the injury to Lakeside was first sustained when the Township declared on December 29, 2016 that the original pipeline installed was unauthorized and thus unusable.  The fact that Lakewood incurred additional expenses in January 2017 when it had to install the duplicate pipeline did not alter the December 29 accrual date.  The January 2017 construction expenses only increased the extent of Lakeside’s damages.

The Appellate Division also rejected Lakeside’s contention that there was a continuing tort as a basis to defer the accrual date.  The Court found that there was no tolling.  The fact that the governmental defendants did not correct the problem does not render the tort continuing.

Further, the Court found that although Lakeside missed the 90 day notice deadline by only 2 days, strict enforcement of the Tort Claims Act was required.  The Court recognized that there are strong public policies underlying the notice provisions of the Tort Claims Act.

Hence, the Appellate Division found that Lakeside had not presented a sufficient legal justification to set aside the trial court’s ruling.  Accordingly, the Appellate Division affirmed the dismissal of the lawsuit based upon Lakeside’s failure to timely file the Notice of Tort Claim within the 90 day deadline as set forth in the Tort Claims Act.


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.


Important Appellate Division Reported Opinion Regarding Disclosure of Investigatory Materials Under The Work Product Doctrine

The Appellate Division on June 6, 2019 rendered a reported Opinion on the issue of when disclosure of materials prepared or collected prior to the institution of litigation is required.  The matter is Paladino v. Auletto Enterprises, Inc. t/a Auletto Caterers, 2019 WL 2375475.

On October 9, 2015, Plaintiff was a guest at a wedding reception held at Defendant’s catering facility when she fell and injured her left knee, lower back, and right ankle while walking down a staircase.  She immediately reported the accident to Defendant, such that Defendant prepared an accident report that same day, and shortly thereafter gave notice to its insurance company. The insurance company promptly retained an investigator.

Two weeks after the accident, on October 22, 2015, a senior claims examiner spoke with Plaintiff, and sent Plaintiff a letter advising that an investigator was looking into the accident. The investigator was instructed to photograph the accident scene and obtain statements from both Plaintiff and representatives of Defendant.

The claims examiner later certified that the intent in retaining the investigator was to “prepare a defense for [Defendant] in the event that [Plaintiff] filed a lawsuit,” and further certified that as the insurer was not disputing coverage, it did not hire the investigator to look into coverage issues.

The investigator arranged to meet with and take a recorded statement from Plaintiff on October 26, 2015. However, on the appointment date, the investigator was contacted by an attorney who advised that he had been retained by Plaintiff, such that the appointment was canceled. The next day, Plaintiff’s recently retained counsel sent a letter of representation to the insurance carrier.

Therefore, on October 26, 2015, the investigator inspected Defendant’s catering facility.  In the process, the investigator took photographs of the scene and prepared a diagram of the area.  The investigator also obtained recorded oral statements from two of Defendant’s employees, and approximately one week later also obtained a recorded oral statement from a third employee.

On December 3, 2015, Plaintiff’s counsel and a photographer visited Defendant’s premises for a documentary inspection. Thereafter, in January 2016, Defendant’s insurance carrier provided Plaintiff’s counsel with a copy of video surveillance that had actually captured Plaintiff falling on the staircase, as well as a copy of the incident report.

Plaintiff and her husband subsequently filed suit and Defendant filed an Answer.  Thereafter, in Answers to Interrogatories, Defendant disclosed that the investigator had taken photographs of the staircase, had prepared a diagram, and had obtained recorded statements from three of Defendant’s employees, none of whom witnessed Plaintiff’s fall. Significantly, asserting that they were protected by the work-product privilege, Defendant did not produce the photographs, diagram, or statements,

Plaintiff filed a Motion to Compel the production of the photographs and the recorded statements by Defendant’s employees, having withdrawn a prior request for the diagram prepared by the investigator,

Without hearing oral argument, the Trial Court granted Plaintiff’s Motion, relying on Pfender v. Torres, 336 N.J. Super. 379 (App. Div. 2001), on the grounds that because the photographs and statements were obtained by the insurance carrier before litigation, the carrier “may have” had interests apart from protecting its insured’s rights.  Defendant sought leave to appeal the Order compelling the production. The Appellate Division initially denied leave, but the Supreme Court granted leave to appeal and remanded the same to the Appellate Division “to consider [it] on the merits.”

In the appeal, Defendant made two arguments. First, it contended that the Court should reject the rationale of Pfender and, instead, adopt the reasoning set forth in Medford v. Duggan, 323 N.J. Super. 127 (App. Div. 1999). Second, Defendant- applying the standard set forth in Medford– urged that the Appellate Division should reverse because Plaintiff did not satisfy the requirements of Rule 4:10-2(c).

 The Court began by noting that the Work Product Doctrine and Rule 4:10-2(c) should be understood as exceptions to New Jersey’s general policy of “encouraging full and open discovery of all relevant information.” 2019 WL 2375475 at Page 2.  In most situations, parties to litigation have the right to discovery of all relevant information concerning the action. See Rule 4:10-2(a).

One of the recognized privileges that is an exception to that general policy is the Work Product Doctrine. See O’Boyle v. Borough of Longport, 218 N.J. 168, 188 (2014). That doctrine was first recognized by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947).

 The Work Product Doctrine is set forth in Rule 4:10-2(c), which states:

“[A] party may obtain discovery of documents, electronically stored information, and tangible things otherwise discoverable under R[ule] 4:10-2(a) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis added.)

Defendant argued that a conflict exists in precedent concerning the scope of the Work Product Doctrine as discussed in Pfender compared to Medford. Defendant argued that Pfender essentially established a “bright line rule” that material obtained by an insurer before litigation is not protected by the Work Product Doctrine. Defendant urged that Medford established a “case-by-case test,” whereby material prepared by or for an insurer can be protected under the Work Product Doctrine if it was prepared in anticipation of litigation and the party seeking the same cannot establish a substantial need for it.

While the Appellate Division indicated that it did not find Pfender and Medford to be irreconcilable, as Defendant asserted, it did indicate that “the rationale and holding of Pfender needs to be clarified and properly understood as consistent with a case-by-case analysis.”  2019 WL 2375475 at Page 4.

 The Appellate Division thus stated that:

“[W]e clarify that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, as set forth in Rule 4:10-2(c), there is a multi-part, fact-specific test. The first inquiry is whether the materials were prepared or collected in anticipation of litigation or trial by another party or that party’s representative. See R. 4:10-2(c). The representative can be an ‘insurer or agent’ of the party. Ibid. If the materials were prepared in anticipation of litigation or trial, to obtain the materials, there is a two-part standard that must then be satisfied. See ibid. The party seeking the materials must (1) show a substantial need for the discovery; and (2) demonstrate that he or she is unable, without undue hardship, to obtain the substantial equivalent of the materials. Ibid. See also Carbis Sales, Inc., 397 N.J. Super. at 82, 935 A.2d 1236 (first citing Medford, 323 N.J. Super. at 133, 732 A.2d 533; then citing Pfender, 336 N.J. Super. at 391, 765 A.2d 208). Moreover, if such work-product materials are compelled to be produced, “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” R. 4:10-2(c). 2019 WL 2375475 at Page 5.

Significantly, the Court also noted that:

“The scope of the work-product doctrine has other limitations. It has long been established that the doctrine only protects documents or prepared materials; accordingly, it does not protect facts. See Hickman, 329 U.S. at 513, 67 S.Ct. 385; R. 4:10-2(c); O’Boyle, 218 N.J. at 188-89, 94 A.3d 299. Moreover, in considering statements, the doctrine does not protect statements that are prepared in the normal course of business. See Miller v. J.B. Hunt Transp., Inc., 339 N.J. Super. 144, 148, 770 A.2d 1288 (App. Div. 2001) (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 554, 691 A.2d 321 (1997)). Finally, we have previously clarified that the protection of a statement will usually be lost if the person who gave the statement is later called to testify at trial. See Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 100, 599 A.2d 528 (App. Div. 1991). In Dinter, we held that ‘where a fact witness testifies for an adverse party, the factual statement of that witness must be produced on demand for use in cross-examination as a potential tool for impeachment of credibility.’” 2019 WL 2375475 at Page 5.

Accordingly, the Appellate Division in this matter reversed the Order compelling Defendant to produce the photographs and recorded witness statements, and remanded with a specific instruction to the Trial Court to conduct further proceedings and apply a “case-by-case, fact-specific analysis” to determine whether the photographs and witness statements are within the ambit of the Work Product Doctrine.

Thus, this Opinion is a very helpful elaboration by the Appellate Division on exactly under what circumstances materials secured by an insurance company prior to litigation are subject to disclosure. The specific facts of a given case will accordingly determine whether disclosure is required.


Third Circuit Rules That a Prior Stacking Waiver Will Apply To a Newly Added Insured Vehicle

The United States Court of Appeals for Third Circuit recently upheld a Magistrate Judge’s ruling that held that a waiver of stacking uninsured/underinsured (“UM/UIM”) coverages did apply to a vehicle that was added to an insured’s policy after the insured had already signed a stacking waiver.

In Kuhns v. The Travelers Home and Marine Insurance Company, No. 17-3371 (3rd Cir. January 3, 2019) the appellants, Wayne and Shannon Kuhns had an insurance policy with the appellees, The Travelers Home and Marine Insurance Company that covered three of their vehicles. The Kuhnses signed a stacking waiver at the time of obtaining the policy. The Kuhnses then obtained a fourth vehicle a few months later. This vehicle was added to the already existing policy with Travelers. No new stacking waiver was provided to the Kuhnses by Travelers at the time of adding the new vehicle.

The Kuhnses then sought to allow stacking of their UM/UIM coverages since no new stacking waiver was provided. The issue before the Magistrate Judge was whether the stacking waiver applied to the new vehicle that was added to the policy after the Kuhnses already signed a stacking waiver for that policy. The Magistrate Judge held that the waiver did apply and the Appellate Division agreed. Therefore, the Kuhnses do not get the benefit of stacking their UM/UIM coverages.

Stacking insurance is the ability to combine coverages for multiple vehicles under the same policy to provide an insured with greater coverage than that for a single vehicle. For example, an insured may have three vehicles listed under a single policy and each vehicle has $100,000 in UM/UIM benefits. The insured would be entitled to $300,000 in UM/UIM benefits ($100,000 multiplied by three vehicles) if the insured does not waive stacking. However, the insured would only be entitled to coverage under a single vehicle, or $100,000 under this example, if the insured does waive stacking.

The Magistrate Judge based her ruling on Sackett v. Nationwide Mutual Insurance Company, 919 A.2d 194 (Pa. 2007 (“Sackett I”) and Sackett v. Nationwide Mutual Insurance Company, 940 A.2d 329 (Pa. 2007) (“Sackett II”). Sackett II held that a stacking waiver that was signed before the addition of a new vehicle is applicable to the new vehicle if there is a “continuous after-acquired-vehicle clause.” An after-acquired-vehicle clause allows for coverage of an existing policy to extend to a newly added vehicle if the clause is found to be “continuous.”

The Kuhnses’s policy will automatically extend coverage to a new vehicle if the following three conditions are met: 1) The vehicle was acquired during the policy period; 2) the policy holder asks Travelers to insure it within 30 days; 3) no other insurance policy provides coverage for that vehicle. The Magistrate Judge found these conditions made the after-acquired-vehicle clause “continuous,” thereby extending the stacking waiver to the new vehicle.

The Kuhnses did not contend that they signed a valid stacking waiver, but rather contended that the new vehicle was added to the policy via an amended declaration page and not the after-acquired-vehicle clause. Additionally, the Kuhnses argued that, even if the new vehicle was added via the after-acquired-vehicle clause, this clause was not “continuous” as it required three conditions to extend coverage.

The Appellate Division held that the Magistrate Judge was correct in rejecting these arguments as Sackett II had already clearly ruled that this type of after-acquired-vehicle clause is “continuous” despite the conditions. The Appellate Division also held that the Kuhnses’s declaration page argument failed, because vehicles are generally added to policies by the after-acquired-vehicle clause according to the Pennsylvania Insurance Commissioner as opposed to an amended declaration page.

This ruling is significant as it protects an insurer by limiting coverage only to what an insured had elected. An insurer and insured can rely on a valid after-acquired-vehicle clause to quickly add a new vehicle to an insurance policy without the concern that an insured may be entitled to more coverage than the insured elected. Both parties will get the coverage that each had bargained for.


Appellate Division Finds Big Apple Maps Did Not Provide City With Legally Adequate Notice Due to Minor Discrepancy Between Plaintiff’s Testimony and Map’s Sidewalk Defect Description

Typically, in New York City, the Big Apple Pothole and Sidewalk Protection Committee (“Big Apple”)’s maps provide legally sufficient notice to the City of dangerous potholes or sidewalk conditions. See https://www.nystla.org/index.cfm?pg=Pothole for more information. Big Apple was established in 1982 by the New York State Trial Lawyers Association to map the City’s 13,000 miles of sidewalks in New York that were capable of causing personal injury. See https://www.nytimes.com/2009/01/04/nyregion/04pothole.html for more information.

These maps were presented annually to the City of New York Department of Transportation (“DOT”) to provide them with the current status of the various sidewalks in the City. For many years, the Big Apple maps forced the City of New York to pay out millions of dollars in claims for personal injuries sustained on City sidewalks. However, in De Zapata v. City of New York, the Appellate Division of the Supreme Court recently decided that the City did not have the proper notice.

Plaintiff was injured on January 24, 2014 when she fell while walking along a public sidewalk in front of a property located at 96 Hemlock Street, Brooklyn, NY. The Plaintiff filed a Notice of Claim against the City of New York on April 16, 2014, asserting a claim against the City for physical injuries from the hazardous snow and ice that was in the depressed and broken section of the sidewalk.

The City moved to dismiss, arguing that it did not have prior written notice of the alleged icy condition and that, therefore, it lacked constructive notice of any icy condition. In opposition, Plaintiff pointed to her §50-h testimony, General Municipal Law §50-h, photographs, and the map served upon the DOT by Big Apple. Specifically, Plaintiff contended that the Big Apple map constituted prior notice and constructive notice of the defect.

The Administrative Code of the City of New York § 7-201(c), specifically limits the City’s responsibility over municipal streets and sidewalks by allowing for liability only if the City had actual notice of the defect at that location. Katz v. City of New York, 87 N.Y.2d 241, 243. Therefore, the Plaintiff must plead the City had prior written notice of the defect in order to maintain an action against the City. Katz, supra, 87 N.Y.2d at 243. Importantly, “Transitory conditions present on a roadway or walkway such as debris, oil, ice, or sand have been found to constitute potentially dangerous conditions for which prior written notice must be given before liability may be imposed upon a municipality.” Farrell v. City of New York, 49 A.D.3d 806, 807.

With that legal background, the Appellate Division held that the City was entitled to summary judgment and a dismissal of all of Plaintiff’s claims against it. The basis for this decision was that the Big Apple map only indicated that the sidewalk abutting the property located at 96 Hemlock Street, Brooklyn, NY had an “[e]xtended section of raised or uneven sidewalk.” However, the Court held that the true defect, as established throughout the case, was the existence of a “hole,” “ditch,” or “icy condition” that Plaintiff claimed to have caused her fall. Therefore, the Court found that the Big Apple map did not provide adequate notice of the sidewalk’s dangerous condition to the City.


Applications for New Alternative Care Centers to be Issued on July 1, 2019

Ready, Set Go!

On June 3, 2019, Governor Murphy issued an executive order expanding the Medical Marijuana Program in New Jersey.  A total of 108 additional licenses will be issued.  The licenses will be divided among the northern, central and southern regions of New Jersey.

There will be separate licenses for each of cultivation, manufacturing endorsements and dispensaries.  Each region will be allocated 8 licenses for cultivation, 10 for manufacturing and 20 for dispensaries, for a total of 38 licenses per region.

Applications will be issued by the Department of Health on July 1, 2019 and must be submitted to the Department no later than
August 15, 2019.

If you have questions or would like assistance with an application for a license for medical marijuana, please contact Sheila M. Mints, Esq. directly at 856.840.4945 or via email at smints@capehart.com.  


Sheila M. Mints, Esq. specializes in healthcare transactional matters, including shareholder and employment agreements, purchases and sales of medical practices, including ACO and IPO transactions, and practice mergers. Ms. Mints acts as general counsel to many large practices and ambulatory care facilities, assisting with transactional, tax, human resources mattes and negotiation with payors and vendors. Ms. Mints also handles governmental and commercial payor investigations and audits into health care billing and coding practices. An experienced tax lawyer, Ms. Mints represents her clients before the Internal Revenue Service, the federal Tax Court and state taxation departments in a variety of tax matters.


Immunities Available to Public Entities for Personal Injuries Caused by Snow or Ice

Public entities enjoy immunities not available to private individuals or businesses with respect to injuries caused by accidents due to snow or ice. The two main immunities would be the weather immunity found in the Tort Claims Act, N.J.S.A. 59:4-7, and the common law snow removal activities immunity. Additionally, in the recent case of Ferranti v. City of Elizabeth, 2019 N.J. Super. Unpub. LEXIS 1172 (App. Div. May 22, 2019), the Appellate Division applied the allocation of resources defense, N.J.S.A. 59:2-3(d), to the plaintiff’s claim against the County of Union for a fall that occurred in the courthouse parking lot due to unshoveled snow.

The weather immunity defense is found in N.J.S.A. 59:4-7. It provides: “Neither a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions.” Note that this defense is only applicable to injuries that occur on roadways and would not apply to an injury resulting from the use of a sidewalk or parking lot. However, plaintiffs may be able to avoid the application of this defense if they are able to show that there were factors other than simply snow or ice that caused the accident injuring the plaintiff, such as road construction or the condition of a bridge surface.

The common law snow removal activities immunity recognized by the New Jersey Supreme Court in Miehl v. Darpino, 53 N.J. 49 (1968) has been found to have survived the passage of the Tort Claims Act. It is an additional defense available to public entities for snow/ice related injuries. In Miehl, the plaintiff was injured as a result of how the City of Hammonton plowed the snow. The Supreme Court found that the municipality had governmental immunity available for this injury that occurred due its snow removal activities.

More recently, in the Ferranti case, the plaintiff, a judiciary employee, fell while leaving the courthouse, after the court had closed early due to a snow emergency. The County was responsible to clear the snow from its lot and followed a protocol in which the pedestrian areas closest to the entryways are manually cleared first, followed by sidewalks and walkways. The parking area and driveways remain unplowed until no vehicles remained. The plaintiff fell in the driveway, which had not yet been reached by the County workers.

The trial court judge found that the County’s snow removal procedures and priorities were not palpably unreasonable and were the product of discretionary decision making. The County was dismissed out by summary judgment.

The Appellate Division upheld that decision. The Court found that the County’s decision in its methodology of snow clearing was not “palpably unreasonable” under N.J.S.A. 59:4-2. Further, the Court found that the decision “to plow the driveway and parking lot only after shoveling snow from pedestrian areas is patently discretionary, a fixing of priorities circumscribed by a limited budget.” Hence, the Appellate Division held that the allocation of resources immunity defense in N.J.S.A 59:2-3(d) was applicable.

Pursuant to this provision, discretionary activities are immune as follows: “A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.” In Ferranti, the Court stated that “[t]he [County’s] decision of where to plow first is clearly discretionary and not palpably unreasonable.” Thus, the County was found immune from liability as to the plaintiff’s injuries.  


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.


New Jersey Supreme Court Rules on Significant Unemployment Insurance Eligibility Question

In the course of the employer counseling work that I do in my labor and employment practice, clients ask a lot of questions regarding New Jersey’s Unemployment Compensation Law, especially about the grounds that are available to an employer to challenge employee eligibility for unemployment benefits.

One of the most common grounds for employer challenges is that the employer voluntarily left his/her employment without good cause for doing so. The New Jersey Supreme Court issued an interesting decision in McClain v. Bd. of Review, 2019 N.J. LEXIS 538 (2019) regarding that question which presented a novel twist: what happens to eligibility when an employee resigns his/her former employment to take a new job, but that job opportunity is thereafter lost through no fault of the resigning employee?

The New Jersey Supreme Court took up the foregoing issue because two different appellate panels when faced with that question reached divergent conclusions.  In the McClain case, the appeals panel held that there was no disqualification of benefits because the job offer that was presented to McClain that prompted her resignation was rescinded through no fault of McClain.  In the second case, Blake v. Bd. of Review, another appeals panel ruled to the contrary, declaring that, to be eligible for unemployment benefits, the employee had to actually begin working for the new employer before losing the job.  Since that did not happen because the job in that case was also rescinded pre-employment commencement, there was no eligibility for benefits.

In finding that McClain and Blake was eligible for benefits, the New Jersey Supreme Court focused on a part of the unemployment compensation law that made employees eligible for benefits where the employee worked for a substantial period of time with one employer and then left for an equal or better opportunity with another employer but was later terminated shortly after starting that employment.  While noting that both appeals panels presented plausible interpretations of the foregoing part of the unemployment compensation law, the Court ultimately viewed the McClain’s panel’s decision as more appropriate because it was in line with the remedial purposes of the law, which required a liberal analysis in favor of benefit eligibility. That decision was likewise more consistent with the reason for including the foregoing provision in the unemployment compensation law, which namely was to allow for benefit eligibility where employment was lost due to no fault of the employee.

The McClain decision shows that, while not every employer challenge to an unemployment compensation petition will succeed, it nevertheless can be a worthwhile endeavor because the law includes a number of grounds where eligibility for benefits can be denied. That can work to the benefit of the former employer to ensure that wrongful credits for the payment are not taken against their employer unemployment compensation account rating.


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.


School Board Found Not Liable for Injury that Occurred Due to Fall from Slope in Property

Plaintiff Patricia Eak stumbled while walking down a slope at Central Regional High School to watch her son play baseball on the junior varsity field. As a result, she fell and broke her ankle. In Eak v. Central Regional School District, 2019 N.J. Super. Unpub. LEXIS 685 (App. Div. March 26, 2019), the issue was whether the unimproved grassy slope of the field could constitute a dangerous condition under the Tort Claims Act.

Plaintiff arrived at the school, parked in an adjacent lot to the field, crossing the parking lot and a driveway. Next, she stepped over a curb, onto a grassy downward slope, and began walking toward the bleachers on the third-base side. As she walked down the slope, the plaintiff stumbled and broke her ankle.

The plaintiff filed suit against the school and the Board of Education for her injuries. At the trial court level, the defendants filed a motion for summary judgment, which was granted. This appeal ensued with the plaintiff claiming that it should have been a jury question whether the property was a “dangerous condition” under the Tort Claims Act. The Appellate Division agreed with the trial court and affirmed the order granting summary judgment.

The Court noted that the grassy area where plaintiff fell was an unimproved condition of the school’s property. As such, the immunity under N.J.S.A 59:4-8 would apply. Pursuant to that provision: “[n]either a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property….” Under Troth v. State, 117 N.J. 258, 269-70 (1989), the New Jersey Supreme Court held that public property is improved “when there has been substantial physical modification of the property from its natural state, and when the physical change creates hazards that did not previously exist and that require management by the public entity”.

While the playing fields and some of the surrounding areas had been improved through the addition of steps and walkways to the fields, the Court found that no similar changes to the grounds between the parking lot and the junior varsity field had been made. Making improvements elsewhere did not transform the unimproved area into an improved area.

Plaintiff was injured on a slope which was a natural part of the school’s landscape. Hence, the Appellate Division found that no liability attached to the defendants for this unimproved portion of its property.

The plaintiff also argued that the slope constituted a dangerous condition under N.J.S.A. 59:4-2.  To establish liability via this provision, the plaintiff must show that a public employee either created the dangerous condition or had actual or constructive notice of the condition in time to have taken measures to protect against the dangerous condition. Further, the plaintiff must show that any steps taken by the public entity to protect against the dangerous condition were palpably unreasonable.

While the plaintiff did provide an expert report, the expert did not opine that the condition of the property was dangerous, only that it could have been made safer. Further, while the expert made reference to standards for accessible design enacted pursuant to the ADA, claiming that the degree of incline was improper, the Court noted that the plaintiff did not claim to be disabled and the expert did not assert that the degree of the incline was dangerous.

The Appellate Division pointed out that it was being asked to consider unimproved, not improved property, and the “open and obvious” gentle slope leading to this ballfield was not dangerous. Even if there was some notice to the school district of the alleged dangerous propensity, “it cannot be said that defendants’ failure to do anything to change the contour of the property or install steps or railings was palpably unreasonable.”


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.


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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