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Court Denies Plaintiff’s Motion for Leave to File Late Notice of Tort Claim Despite Plaintiff’s Medical Issues

On September 26, 2017, Plaintiff Antoinette Marra tripped and fell on the property of defendant Hopatcong Senior Center and Borough of Hopatcong.  She suffered a broken arm and fractured hip, which necessitated hip replacement surgery, among other injuries.  The issue in Marra v. Hopatcong Senior Center, 2019 N.J. Super. Unpub. LEXIS 1685 (App. Div. July 26, 2019), was whether the plaintiff’s injuries constituted “extraordinary circumstances,” justifying the filing of a late notice of tort claim.

Following the plaintiff’s surgery, she was transferred to a nursing home where she spent two months recovering.  Thereafter, she was discharged and began in home care.

Plaintiff did not seek legal counsel until March 2018.  She was unaware of the 90 day time period for which to file a notice of tort claim.  On May 18, 2018, she filed a personal injury complaint and a motion for leave to file a late notice of tort claim.  This motion was filed 4½ months after the deadline for a timely filing of her tort claims notice.  In her motion, she alleged that she suffered from various medical conditions, constituting exceptional circumstances, and argued that those conditions warranted an acceptance of her late notice of claim.

The defendants opposed her motion and cross-moved to dismiss the plaintiff’s complaint.  However, the trial court denied the cross-motion and granted plaintiff’s motion, permitting the filing of the late notice of tort claim.  The trial court judge found that the plaintiff suffered numerous health issues after her hip replacement surgery which precluded her from timely pursuing her personal injury claims against the defendants.  Further, he found that the plaintiff was so incapacitated that she was unable to file a notice within 90 days.

The judge noted that she was diagnosed with major depressive disorder and was bedridden at all times except for when she was in physical therapy.  She had difficulty keeping food down and could not complete basic tasks of personal hygiene.  She also had cataract surgery within a few days of the end of the 90 day time period and remained confined to her home for an extended period of time.  She was expected to need home nursing care for a further 8 weeks or more.  In summary, the trial court held that these limitations were sufficient to qualify as “extraordinary circumstances.”

The defendants appealed this finding and argued that plaintiff’s medical issues were not so severe or debilitating so as to preclude her from filing a timely notice of tort claim.  Because she had failed to demonstrate extraordinary circumstances, the defendants contend that her complaint should have been dismissed.

The Appellate Division noted that the Tort Claims Act imposes strict requirements upon litigants seeking to file claims against public entities, including filing a notice of claim no later than the 90th day after accrual of the cause of action.  If a plaintiff misses the 90 day deadline, a notice of tort claim may be filed up to one year after the claim but only if “extraordinary circumstances” excuse the delay and the public entity would not be “substantially prejudiced.”

The Appellate Division noted that in reviewing the extraordinary circumstances requirement based upon a plaintiff’s medical condition, the courts look to the severity of the medical condition and the consequential impact from the plaintiff’s ability to pursue the claim.

Here, the Court found that the plaintiff did not demonstrate that her medical issues were so “severe, debilitating, or uncommon” that she was unable to contact an attorney to pursue her claims.  The Appellate Division noted that the plaintiff’s certification described her recovery from her injuries and her depressed mental state during her recovery.  However, nowhere in the record was there any medical evidence from a physician that she was “physically or mentally unable to contact an attorney to file a timely notice of claim.”  Further, upon her discharge from the nursing home, she still had 30 days within which to file a timely notice of claim.  The Court stated that there was no evidence in the record that the plaintiff was bedridden after she was discharged from her nursing home.  Even though she required assistance with her activities of daily living, the Appellate Division held that such assistance did not constitute a medical condition so severe and debilitating so as to impact her ability to pursue her personal injury claims.

The Court noted that requiring assistance with grooming and eating are common after surgery.  Her depression during her extended recovery period was not uncommon and she was treated for depression.  Further, the Appellate Division found that the plaintiff had “ample opportunity” after her discharge from the nursing home to seek assistance from others to pursue her personal injury claims in a timely manner.

With respect to her being on multiple pain medications, the Court stated that there was no evidence in the record that these medications compromised her cognitive ability.  Specifically, the Court found that “the general descriptions offered by plaintiff of her post-injury pain, need for assistance with activities of daily living, and resulting depression are insufficient to qualify as extraordinary medical conditions allowing a late filing of a notice of claim.”

The Appellate Division emphasized that the record was devoid of any medical opinion that she suffered from a severe or debilitating medical condition that precluded her ability to seek counsel on a timely basis.  Rather, the record provided by plaintiff contained “self-serving and subjective statements of plaintiff’s pain and depression.”  The Appellate Division noted that the trial judge mistakenly assumed facts regarding the plaintiff’s condition due to the lack of medical or psychological treatment records.

Because the plaintiff failed to demonstrate extraordinary circumstances, the Appellate Division reversed the trial court judge’s order allowing plaintiff to file a late notice of tort claim.  Hence, the Court remanded the matter back for the trial court judge to enter an order granting defendant’s motion and dismissing 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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New Jersey’s Groundbreaking New Wage Anti-Theft Law

In the past, employees who believed that they were not properly paid in line with minimum wage and overtime pay requirements under New Jersey’s wage payment law could either bring a lawsuit in state court or file an administrative claim with the New Jersey Department of Labor to recoup unpaid wages. Many politicians and leading legal activists have dubbed an employer’s failure to properly pay employees owed wages as “wage theft,” and vociferously campaigned for stricter enforcement laws to benefit employees in their quest to fight such “wage theft.”  On August 6, 2019, new legislation was passed, giving employees here in New Jersey new legal tools to fight against this claimed “wage theft,” and then some.

On that date, New Jersey’s Acting Governor Sheila Oliver signed a new anti “wage theft” law that drastically expands the fines, penalties, and damages to be imposed for violations of the state’s wage payment law, and similarly extends the statute of limitations for bringing such claims from two to six-years. The new law takes effect immediately. These changes are groundbreaking and require employers to take prompt actions to audit payroll practices to ensure that these significant new legal requirements are not applied adversely against your company.

Expanded Civil and Criminal Penalties

One of the most important changes made by the new law is the availability of liquidated damages for wage payment violations. Violators are now required to pay the wages owed to the employee plus liquidated damages equal to 200% of the wages owed. Liquidated damages can be avoided, however, for a first time violation if the employer can show that (a) the violation was an inadvertent error made in good faith, (b) the employer had reasonable grounds for believing that the payroll action taken was not a violation of wage and hour requirements, and (c) the employer acknowledges the violation and pays the wages owed within 30 days of the notice of violation. In addition to the possible awarding of liquidated damages, the new law also sets fines of $500 and 20% of the owed wages for a first offense. Fines increase to $1,000 and 20% of the owed wages for each subsequent offense. Additional administrative penalties up to $250 for a first violation and $500 for each subsequent violation can likewise be assessed by the New Jersey Department of Labor and Workforce Development.

In addition to employer civil fines, penalties, and civil damages, the law similarly allows for the imposition of criminal penalties. Significantly, any corporate officer or employee responsible for the wage payment violation commits a disorderly person’s offense. A first violation comes with a fine of $500 to $1,000 or jail time of 10 to 90 days, or both a fine and jail. For subsequent violations, the fines can range from $1,000 to $2,000 and jail time could be imposed from 10 to 100 days. Thus, the law expressly allows for the simultaneous imposition of both a fine and jail time. Employers who violate the bill three or more times are deemed to be guilty of a new third-degree crime of “pattern of wage nonpayment.” Also, in a first in wage collection matters, employees who bring suit can now recover both reasonable attorneys’ fees and costs against the offending employer in having to file a wage collection claim.

The law likewise opens the door for expanded New Jersey Department of Labor and Workforce Development wage and hour payment audits. Under the law, employers may be made subject to a wage payment audit as an alternative to, or in addition to, any of the above referenced sanctions. If that audit ultimately reveals additional violations, the employer and corporate employees involved in the wage payment violation may likewise be subject to additional fines, penalties, damages, and jail time, as well as additional audits. The New Jersey Department of Labor and Workforce Development is also similarly granted the express authority to issue a stop work order or permanently revoke an employer’s operating licenses for repeat violations.

Strict Anti-Retaliation Protection

Along with its expanded civil and criminal penalties, the act also contains very strict anti-retaliation protections for employees who file wage claim complaints. In a drastic change from prior law, it will now be presumed that retaliation has occurred if an adverse action is taken against an employee within 90 days of the filing of a wage complaint. Retaliation against an employee who files a wage payment complaint also subjects a corporate employer to a disorderly person’s criminal offense and the potential imposition of employer fines in the range of $100 to $1,000, plus payment of wages lost as a result of the retaliation and liquidated damages of 200% of the wages lost.

In addition, if an employee is discharged in retaliation for filing a wage payment complaint, the employer is required to offer reinstatement, unless prohibited by law, along with all lost wages as a result of that discharge, which likewise is a quite radical change in how the law operated previously.

Other Prominent Legal Changes

The law‘s coverage is quite broad and is not just limited to failure to pay wages. It applies to both the failure to pay compensation and benefits, which includes health benefits, pensions, medical treatment, disability benefits, and workers’ compensation. In addition to the expanded scope of what is covered under the law, an employer’s failure to provide sufficient employee records in response to an employee’s wage claim now results in a rebuttable presumption that the employee worked for the employer for the period of time asserted and for the amount of wages alleged in the employee’s claim.

Moreover, as part of its incredible expansive approach, the new law similarly imposes joint and several liability on both an employer and a labor contractor providing workers to the employer. This liability cannot be waived or contractually shifted from the employer to the labor contractor.

Finally, in what will likely be deemed a quite controversial aspect of the new law, violations and names of violating employers will be made public on a government website.  Employers will also be required to provide new hires and employees with a written copy of a statement of their rights under New Jersey’s wage-and-hour laws, and an explanation of how to file a claim or take other action in the event of an alleged violation, which is one more added responsibility that applies to orienting new employees to a company.

Next Steps for Employers

As the instant summary shows, the legal modifications made by this new law to the wage collection process are game changing and should concern all employers moving forward.  At a minimum, employers must start internally auditing its payroll practices to ensure that employees are being properly paid and are correctly classified to avoid possible overtime payment violations. Thus, in light of this new law, employers must be even more proactive in keeping in step with wage and hour compliance, and obtaining effective legal advice will help employers meet such requirements in this always changing New Jersey legal environment.

 


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.

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New Jersey Restricts Pre-Hiring Consideration of Salary History Information

On July 25, 2019, New Jersey became the latest of a growing number of states that now prevent employers from requesting salary history information about applicants as part of the pre-hiring process.  The new law bars employers from screening a job applicant based upon an applicant’s salary history or requiring that the applicant’s salary history be disclosed or satisfy any minimal or maximum criteria.  As part of the law’s legislative history, several sponsors indicated that this law is designed to help enforce the mandates of the state’s Equal Pay Act that was passed a few years ago.

While employers may not request salary history information, salary information may still be considered if the applicant, without employer prompting or coercion, voluntarily provides such information to the employer.  An applicant’s refusal to voluntarily provide such information cannot be considered in the making of any employment decisions. Moreover, the law also allows employers to request that an applicant provide a written authorization to confirm salary history after an offer of employment that includes an explanation of the overall compensation package has been made to the applicant.

The law does not apply in the following situations: (1) to internal transfers or promotions within an employee’s current employer, or use by the employer of previous knowledge obtained as a consequence of prior employment with the employer; (2) to any actions taken by an employer pursuant to any federal law or regulation that expressly requires the disclosure or verification of salary history for employment purposes, or requires knowledge of salary history to determine an employee’s compensation; (3) to any attempt by an employer to obtain, or verify a job applicant’s disclosure of, non-salary related information when conducting a background check on the job applicant, provided that when requesting information for the background check, the employer shall specify that salary history information is not to be disclosed; and (4) to employer inquiries regarding an applicant’s previous experience with incentive and compensation plans and the terms and conditions of those plans, provided that the employer shall not seek or require the applicant to report information about the amount of earnings of the applicant in connection with those plans, and that the employer shall not make any inquiry regarding the applicant’s previous experience with incentive and commission plans unless the employment opening with the employer includes an incentive for compensation component as part of the total compensation program.

Furthermore, if an employer does business in other states besides New Jersey, an employer may include a question about salary history on a job application, but it must expressly indicate that if the applicant is seeking a position in New Jersey, the applicant need not answer the salary history inquiry.

Any employer who violates the law shall be liable for a civil penalty in an amount not to exceed $1000 for the First Violation, $5000 for the Second Violation, and $10,000 for each subsequent violation. The fine is collectible by the New Jersey Commissioner of Labor and Workforce Development in a summary proceeding pursuant to the New Jersey Penalty Enforcement Law.

Finally, while the new law precludes an employer from requesting salary information from an applicant, an employer is not prohibited from acquiring salary history information that is publicly available, but an employer cannot retain or consider that information when determining salary, benefits, or other compensation of the applicant, unless the applicant voluntarily, without employer prompting or coercion, provides the employer with salary history.

This new law does not go into effect until the first day of the sixth-month next following enactment. Accordingly, employers have until January 1, 2020 to bring its pre–hiring practices in line with these new requirements.  Thus, employers should begin today to revise employment applications, where salary history information is requested, and likewise start to train all persons involved in the pre-hiring process about the prohibition of asking for (and consideration of) salary history information as part of any hiring determinations.

 


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.

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Municipality Found Not Liable For Bicyclist Who Suffers Injury When Bike Hit Patch Of Loose Gravel In Roadway

Plaintiff Joanne Green was riding her bicycle in the middle of a street located in defendant Borough of Englewood Cliffs.  After making a right hand turn into an intersection, she hit a patch of loose gravel in the middle of the intersection, which caused her to fall off her bike and suffer injuries.   Her claim was that the loose gravel originated from either an inadequate repair of a pothole or other defect on one of the roads that formed the intersection.  The issue in Green v. Borough of Englewood Cliffs, 2019 N.J. Super. Unpub. LEXIS 1571 (App. Div. July 9, 2019) was whether the defendant municipality could be liable for the plaintiff’s injury suffered due to the condition of the roadway.

Englewood Cliffs maintains a total of 37 road miles, including the two roads that form the intersection in which the plaintiff fell.  The superintendent at the DPW testified that he had limited staff to maintain the roads given the workload of the department.  He also testified that he was unaware of any loose gravel or potholes in the intersection before the plaintiff’s fall.

The municipality repaired potholes using both a hot asphalt method and cold patch mix, depending upon the weather.  The DPW superintendent claimed that the gravel discovered in the intersection was not made of material that the municipality used for any purpose.  He opined that the gravel may have fallen from a truck that had been improperly covered.

The plaintiff utilized an expert who photographed the intersection and claimed that it showed deteriorating conditions of the roadway and temporary/improper repairs.  The expert opined that the color of the loose gravel indicated the gravel came from a breakdown of asphalt pavement, which subsequently migrated to the middle of the intersection.  Further, he claimed that there were numerous areas of the road that had been patched with hot mixed asphalt or cold patched asphalt.  Further, he opined that the roadway repair process utilized by the DPW resulted in a dangerous condition at the subject intersection at the time of plaintiff’s fall.

The defendant moved for summary judgment, which was granted by the trial court.  The trial court found that the record did not show that the injury was proximately caused by the dangerous condition but, rather due to the plaintiff’s lack of attention.  Further, the court concluded that there was no merit to plaintiff’s claim that defendant’s actions or omissions with respect to maintaining the subject area of the road were palpably unreasonable.  The plaintiff appealed this decision to the Appellate Division.

To be able to pursue a claim against a public entity for a dangerous condition of public property, based upon the Tort Claims Act, the Appellate Division noted that the plaintiff must prove the following five elements:

    1. A dangerous condition existed on the property at the time of the injury;
    2. The dangerous condition proximately caused the injury;
    3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred either because (a) the dangerous condition was caused by a negligent employee, or, alternatively, (b) the public entity knew or should have known about the condition; and
    4. The entity’s conduct was palpably unreasonable.”

Here, the Court accepted as undisputed that there was gravel in the middle of the intersection and that it caused plaintiff to skid and fall.  Further, for purposes of the motion, it accepted as true the plaintiff’s contention of the gravel in which he skidded was caused by the municipality’s use of materials on the road that easily crumbled, which caused the loose gravel to form and, further, the defendants failed to promptly remove such gravel.  However, the Appellate Division agreed with the trial court that the municipality’s conduct was not palpably unreasonable.

The Court noted that the term palpably unreasonable “implies behavior that is patently unacceptable under any given circumstance.  Further, the court noted that “for a public entity to have acted or failed to act in a matter that is palpably unreasonable, it must be manifest and obvious that no prudent person would approve of its course of action or inaction.”

The Appellate Division here cited back to the Supreme Court’s decision in Polzo.  In Polzo, the Supreme Court observed that, “notwithstanding that roadways are used by bicyclists, roadways generally are built and maintained for cars, trucks and motorcycles, not bicyclists.”  The Appellate Division recognized “that bicyclists do face inherent dangers on roadways, such as potholes, which do not present hazards to the drivers of and the passengers and motor vehicles – the general, intended users of the roadways.”  Further, the Count found that roadways cannot possibly be made or maintained completely risk free for bicyclists.  The Court noted further that not every defect in a highway, even if caused by negligent maintenance, is actionable.

The Appellate Division found that even if the defendant’s actions were the proximate cause of the plaintiff’s injuries, the plaintiff failed to meet her burden of establishing that defendant’s conduct was palpably unreasonable.  The Court found that it was not palpably unreasonable for defendants to fail to remove the gravel at issue here because it was material that a car would harmlessly pass over.  Municipalities do not have a duty to make roadways risk free for bicyclists.  Last, the Court stated that a public entity “in choosing when and what repairs are necessary might reasonably give lesser priority to correct conditions harmless to vehicles.”

Thus, the Court did not need to reach the issue of whether plaintiff’s actions were the proximate cause of her injuries and it affirmed the trial court decision in dismissing the case.

 


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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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.

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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.

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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.

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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.

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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.

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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.

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