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Neither Wawa, Nor The State Held Liable For Accidents That Occurred Due To Drivers Making An Illegal Left Turn Into A Wawa Driveway

In a published decision, the Appellate Division considered appeals from two cases involving motor vehicle accidents that occurred about one year apart at about the same location under similar circumstances.  In both cases, a driver traveling westbound on Route 322 in Folsom, New Jersey made an illegal left turn in the direction of one of two driveway entrances to a Wawa and struck a motorcycle traveling eastbound on the highway.  The issue in Buddy v. Knapp, 2021 N.J. Super. LEXIS 111 (App. Div. Aug. 17, 2021) was whether Wawa, as the operator of the convenience store in which the motor vehicles were attempting to turn, and the State of New Jersey, which owned the highway and the land on which the driveway entrances were situated could be found negligent for these two motor vehicle accidents.

In the first accident, the motorcycle driver was killed and his wife, a passenger, was seriously injured.  In the second accident, the motorcycle driver was seriously injured.  In both cases, the injured parties and the Estate of the decedent sued the Wawa, as the owner of the store, and the State of New Jersey, as the owner of the highway and land on which the store’s driveway entrances were situated.

Wawa owned and operated the convenience store on Route 322, also known as the Black Horse Pike, in Folsom at the intersection of Cains Mill Road.  That intersection was controlled by a traffic light.  At the location of the store, Route 322 is a four lane State highway, with two eastbound and two westbound lanes which are separated by two sets of solid double yellow lines.

The store was located on the eastbound side of the highway and was east of the intersection.  The store had two driveway entrances into its lot on the eastbound side of the highway.  It was illegal for the westbound vehicles to make a left turn and cross the double yellow lines and the eastbound lanes to access Wawa’s driveways.

On the other side of the highway, a vehicle traveling westbound would encounter the entrance to a jug handle.  That jug handle would allow vehicles to access the Cains Mill Road intersection with Route 322 and, when the light permitted, to cross Route 322, turn eastbound on the highway, where a few car lengths from the intersection, the driver could access the Wawa driveway entrances.  At the time of the collision, there was a sign on the westbound side of Route 322, east of the Wawa and near the entrance to the jug handle stating, “ALL TURNS FROM RIGHT LANE.”  This sign was intended to prevent left turns across the highway at and before the intersection with Cains Mill Road.

The Wawa driveway entrances were constructed years ago and were in the State’s right of way.  They were considered to have been constructed in accordance with DOT regulations.  Wawa was not authorized to modify the driveway entrances or place any signage regulating traffic unless it had permission from the State.

In both of these cases, a motor vehicle driver attempted to make an illegal left turn from the westbound lanes of the highway into one of the Wawa driveway entrances.  In both occasions, as they were crossing the eastbound lanes, they crashed into a motorcycle, traveling eastbound, causing the collision and the resulting fatality and/or injuries of the motorcycle occupants.

The plaintiffs sued both Wawa and the State as defendants. The claim against Wawa was that it was negligent in creating unsafe driveway entrances to its parking lot and in failing to maintain the premises in the safe condition for its invitees.  Further, the plaintiffs claimed that Wawa knew or should have known that its driveway entrances attracted illegal left turns from Route 322 and it should have redesigned its parking lot entrances to discourage left turns, notify the State of the dangerous conditions and/or warned its customers of the dangers of making an illegal left turn from the westbound lanes of the highway.

As for the State, the plaintiffs allege that it was negligent in creating an unsafe condition by failing to properly maintain the roadway in a safe condition and “to exercise proper control, supervision, maintenance, repair, and general safe keeping of the roadway, despite the fact that it knew or should have known that a dangerous condition existed in the roadway and in its right-of-way.”

At the trial court level, the court granted summary judgment to both defendants.  It rejected plaintiffs’ argument that Wawa violated a duty of care to plaintiffs.  It found that the acts of the drivers of the motor vehicles, which were the causes of the accidents, and the collisions, happened in the eastbound lanes of Route 322 and not on Wawa’s property.  It noted the longstanding precedent “that a commercial landowner has no duty to regulate or control the conditions of property it does not own.”  Thus, the court found that Wawa did not owe a duty to plaintiffs related to the accidents.

Further, the court noted that, in limited circumstances, a commercial landowner’s duty to protect its invitees could extend beyond its premises for activities for which it directly benefits.  It was reasonable to conclude that Wawa could have received an economic benefit for drivers accessing its parking lot by making an illegal left turn from the highway, but the court concluded “that westbound drivers were provided a safe path to enter the parking lot through the jug handle, relieving Wawa of any duty to take steps to prevent illegal left turns into its driveway entrances.”  Further, the court found that even if the driveway entrances were dangerous conditions of State property, Wawa had no legal duty to report these conditions to governmental entities who would have the authority to remedy them.

As for the State, the trial court concluded that the State was “absolutely immune from liability pursuant to N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations, and N.J.S.A. 59:2-5 for permitting decisions concerning the driveway entrances, and N.J.S.A. 59:2-6 for its failure to inspect the driveway entrances.”  The court found that the placement of the driveways did not constitute a dangerous condition because if drivers exercise due care, the subject accidents would not be reasonably foreseeable.  The court noted that Route 322 was divided by a double solid yellow line prohibiting left hand turns into the subject driveways.  Further, the court found that illegally crossing the highway to make the left hand turn was not exercising due care.

This appeal ensued.  First, the Appellate Division addressed the claim against Wawa.  The court agreed that Wawa did not owe a duty to plaintiffs because their injuries did not occur on Wawa’s premises.  The drivers of the motor vehicles that collided with plaintiff’s motorcycles were in the eastbound lanes of Route 322.  Although they were headed in the direction of an entrance to the Wawa parking lot, they initiated their illegal left turns on State property and caused injuries to plaintiffs before reaching Wawa’s property.

With respect to the argument that a premises owner may owe a duty of care for an injury off premises, if the source of the injury was a dangerous condition on the premises, the Court also rejected that argument.  The Appellate Division found that Wawa did not have a duty of care to prevent the illegal acts of the two motor vehicle drivers on State property.  It neither owned nor had control over the eastbound lanes of Route 322, where the other drivers attempted to execute their illegal turns and collided with the plaintiffs’ motorcycles.  Further, the Appellate Division noted that the driveway entrances, which plaintiffs allege to be a dangerous condition, were not on Wawa’s premises.  Rather, they were situated in the State’s right-of-way and were subject to its sole control.

The Appellate Division also rejected the argument that Wawa had a duty to change its parking lot design or report to the State the need to alter or close the driveway entrances.  That would “amount to an expansion of a duty to all commercial landowners along a State highway to prevent motor vehicle violations by potential customers and ameliorate the effects of those violations.”

Further, the Appellate Division rejected the argument that Wawa breached its duty to warm its customers of the dangers of making an illegal left turn from the westbound lanes of the highway.  The Court noted that it was not clear how such a warning would be delivered to drivers who had not yet reached the store.  Further, the Appellate Division declined “to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed by driving over two sets of solid yellow lines to cross the two lanes of opposing traffic on a highway with a 55 mile-per-hour speed limit.”

Next, the Appellate Division turned towards the plaintiffs’ claim against the State of New Jersey. It considered the statutory immunities in the Tort Claims Act that were addressed by the trial court.  First, there was N.J.S.A. 59:2-4 in which “a public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.”  The plaintiffs had alleged that it was the State’s alleged inaction in enforcing its regulations related to access violations from public roadways by failing to close the Wawa driveway entrances or otherwise preventing motorists from making illegal left turns to access the parking lot which caused the accident.  The plaintiffs’ claim related to the State’s alleged omissions, rather than an affirmative act.  Thus, the Appellate Division agreed with the trial court’s conclusion that enforcement immunity under N.J.S.A. 59:2-4 applied.  Thus, the State cannot be held liable for damages for its alleged failure to apply existing or past regulatory requirements to Wawa’s driveway entrances.

The Appellate Division also agreed that the State was not subject to liability for this alleged dangerous condition because a dangerous condition is defined as “a condition of property that causes a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it would be used.”  Here, the trial court had concluded that the absence of due care by the two motor vehicle drivers when using the driveway entrances was determinative of whether the dangerous condition exception applies.  As the Supreme Court pointed out in the prior decision of Garrison v. Township of Middletown, if a public entity’s property is dangerous only when used without due care, the property is not in a “dangerous condition.”  Whether a member of the public acted with due care on public property would depend upon whether the property was used in a reasonably foreseeable manner.

The Appellate Division supported the trial court’s conclusion that the driveway entrances did not post a substantial risk of injury when used with due care in a matter in which it was reasonably foreseeable that it would be used.  The driveway entrances were not intended to be used for illegal left turns by westbound drivers on Route 322.  The Court pointed out that “[b]reaking the law by crossing two sets of yellow lines to cross two lanes of opposing highway traffic to access the driveway entrances is not the exercise of due care.”  The Appellate Division noted this risk of danger created by such a highly dangerous maneuver was “objectively unreasonable and inconsistent with the intended use of the driveway entrances, which are designed to permit eastbound motorists to enter the Wawa parking lot.”

Hence, the Appellate Division affirmed these summary judgment orders granted by the trial court to the State and to Wawa.  The Appellate Division recognized the “tragic nature” of these accidents caused by “law-breaking drivers,” but it noted that it could “discern no legal basis to impose liability on the defendants.”

 


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 30 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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Biden’s Vaccination Mandate

In my practice, I am already receiving multiple questions about President Biden’s September 9, 2021 directive requiring that companies with 100 or more employees mandate vaccinations for all work staff or alternatively conduct weekly COVID-19 testing.  Many of my employer clients want to know more about these requirements, in particular, whether they should already be mandating vaccinations or conducting employee testing pursuant to the President’s directive. The answer that I have given to my clients so far is no, nothing is yet required, because we still have no idea what the exact details of those vaccination/testing requirements will be.

Biden’s directive will not become effective until the Occupational Safety and Health Administration (“OSHA”), through its emergency rulemaking authority, issues an actual rule(s) that outlines the scope of the expected federal mandate and provides greater details on what will be required of employers with regards to both vaccinations and testing. Already, there have been murmurs of possible legal challenges to whatever rule is issued.

Through its emergency rulemaking powers, OSHA may issue rules and regulations to eradicate workplace safety risks.  The expectation is that OSHA will ultimately ground its rulemaking here on this issue on the claim that unvaccinated workers pose safety risks to others around them in the workplace. As followers of this blog know, vaccination mandates by employers have long been recognized as a legally valid exercise of employer authority, subject of course to possible health and religious related exemptions. We expect that similar exception requirements will be recognized under whatever emergency rule OSHA issues. We also expect that more details will be supplied about the scope of any required testing requirements once we have OSHA’s rule. While the legality of vaccination mandates by employers is well settled, legal experts differ as to whether OSHA, through its emergency powers, has the legal authority to impose vaccination mandates on employees through their employers. This difference of opinion has generated much of the discussions about the possibility of legal challenges to stop the enforcement of any vaccination rule issued by OSHA.

So, my best advice at this time is to stay tuned. Once we get the final emergency rule(s) from OSHA, there will be greater clarity on both the exact requirements the federal agency is imposing, as well as when employers will be expected to comply, assuming, of course, that no anticipated legal challenges succeed in disrupting or delaying implementation and enforcement.

 


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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Plaintiff’s Failure To Serve Public Entity At Correct Place Of Business With Timely Notice Of Tort Claim Bars Plaintiff’s Personal Injury Claim

The plaintiff Lyndsey Patton was walking in or near the intersection of Union Avenue and West Side Avenue in Jersey City when she was struck by a vehicle owned by defendant Jersey City Municipal Utilities Authority (“JCMUA”).  The accident occurred on June 30, 2019.  On or about September 10, 2019, the plaintiff’s attorney sent a notice of tort claim addressed to JCMUA, but sent it to City Hall on Grove Street instead of JCMUA’s place of business on Route 440 in Jersey City.  Plaintiff later successfully obtained leave from the trial court to file a late notice of claim on JMCUA, which determination was appealed.  The issue on appeal in Patton v. Wiley, 2021 N.J. Super. Unpub. LEXIS 1400 (App. Div. July 7, 2021) was whether the plaintiff had demonstrated the “extraordinary circumstances” under the Tort Claims Act to allow a late filing of a notice of claim.

Pursuant to N.J.S.A. 59:8-8, a party pursuing a cause of action against a public entity under the Tort Claims Act must file a notice of claim within ninety days of accrual of the claim or else be forever barred from recovering from the public entity.  However, a court may exercise the discretion permitted by N.J.S.A. 59:8-9 to allow a late filing “provided that the public entity or a public employee has not been substantially prejudiced” by the delay and also provided that the plaintiff presents “sufficient reasons constituting extraordinary circumstances” for the failure to comply with this statutory requirement.

The question faced by the Appellate Division was whether the plaintiff had met the extraordinary circumstances standard to justify the late filing of the notice of tort claim.  There was no question that plaintiff failed to file a notice of tort claim on JCMUA within the ninety days.  The plaintiff delivered a notice of claim within the required time but to the wrong address.

The Appellate Division noted that there was no mystery as early as the date of the accident that the vehicle was owned by JCMUA and driven by one of its employees and also there was no mystery about the location of JCMUA’s place of business which was included in the police report and was also otherwise readily available through a simple internet search.  The Court held that the plaintiff’s failure to serve the notice of claim on JCMUA at the right location “was a product of attorney neglect or inadvertence” which did not meet the extraordinary circumstances threshold as required by the statute to allow the filing of a late notice of tort claim.

The plaintiff argued that there was little doubt that JCMUA was aware of the event because, in early September 2019, within ninety days of the action’s accrual, plaintiff’s counsel communicated with Qual-Lynx, the administrator who adjusts claims made against JCMUA. The plaintiff’s counsel also advised and served Qual-Lynx with a claim for no fault benefits because plaintiff did not own an automobile and was not otherwise covered by auto insurance.

The Court noted that this submission to Qual-Lynx, however, made no mention of a personal injury claim to be asserted against JCMUA or its employee, and it cannot seriously be argued that a notice or communications with a public entity’s adjuster or insurer about a related claim constitutes the notice required by N.J.S.A. 59:8-8.”  (emphasis added). Moreover, the Appellate Division noted that the Qual-Lynx representative certified in the opposition to plaintiff’s motion for leave to file a late notice of claim “that he told plaintiff’s attorney during their September 6, 2019 telephone call that plaintiff needed to serve a notice of tort claim directly on JCMUA.”  As of that date, there was still time left to serve a notice of tort claim on JCUMA within the ninety day time period.

While plaintiff thereafter did forward a notice of tort claim, it was sent to City Hall, not JCMUA’s place of business on Route 440.  The Appellate Division noted that this was not a situation where the claimant or her representatives might have been confused about the identity of the public entity that caused the injury.  She knew at the scene of the accident that the driver worked for the JCMUA and, further, in corresponding with Qual-Lynx within the ninety day time period, the plaintiff’s then attorney referred to Qual-Lynx’s insured as “Jersey City MUA.”

The Appellate Division noted that JCMUA was “aware of and had already conducted an investigation into the accident but, in light of the absence of a timely notice of claim, JCMUA had no reason to know plaintiff intended to make a personal injury claim against it.”  Based upon these facts and circumstances, the Court found that the plaintiff’s failure to serve the notice of tort claim was the product of attorney inadvertence.  Counsel was or should have been aware of the identity of the public entity that was involved in the accident, as well as the correct address for the JCMUA.

Finally, the Appellate Division found that “[w]hile it may be viewed as a displeasing result because it seems JCMUA was aware of the accident and aware Qual-Lynx had been in communication with plaintiff about her no fault benefits claim, there is no question the Legislature intended – when it amended N.J.S.A. 59:8-9 – to require a showing of ‘extraordinary circumstances’ to set a high bar for relief.”

The Appellate Division noted that the Supreme Court had clearly established that attorney negligence or inadvertence did not constitute “extraordinary” within the meaning of N.J.S.A. 59:8-9.  Hence, the Court found that it was “constrained” to conclude the judge mistakenly exercised his discretion in allowing plaintiff to file a late notice of tort claim.  Accordingly, the Appellate Division reversed the trial court’s ruling in permitting the late notice of tort claim to be filed against the JCMUA.  Thus, the end result was that the claim against the JCMUA for this accident was barred.

 


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 30 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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The Legality of COVID-19 Employee Vaccinations Mandates

With the Pfizer COVID-19 Vaccine recently receiving full Food and Drug Administration (“FDA”) approval, the question on many employer’s minds is whether legally employers can now mandate employee vaccinations for COVID-19 as a condition of employment.  Even before this recent approval of the Pfizer Vaccine, many employers had already decided to require vaccinations (or alternatively frequent employee COVID-19 testing) even when vaccinations were only approved for emergency use. The emergency use status of the available vaccines made some employers think twice about issuing such a mandate, but with the approval of the Pfizer Vaccine for full use, this likely will now be a game changer and more employers will seek to issue such mandates. In just the last few days, we have already seen some high profile companies implementing mandatory vaccination programs, i.e. Disney, as well as state and local governments, including here in New Jersey.

As I indicated in earlier articles presented here in this blog, vaccine mandates have long been viewed as legal, provided employers made possible exceptions for employees with disabilities that precluded vaccination or for those with religious objections to such vaccinations. COVID-19 vaccination mandates have also recently withstood legal challenges as well in the last few months even with the vaccines having only emergency use approval.  Thus, so long as employers provide the type of exemptions noted above, an employer today may implement a mandatory COVID-19 vaccination program for employees.

If you plan to implement such a mandatory vaccination program, here are some important considerations that should be followed.

First, you should clearly advise employees of the nature of the program and outline the specific consequences that could follow for those who refuse to meet those requirements. The policy should also include language that indicates that exceptions from the requirement will be considered for the foregoing health and religious reasons. Importantly, you need to train your employees on how to handle such exemption requests, and what is legally (or not legally) allowed to be sought during the necessary interactive process while considering the exemption request. Beware in particular of religion-based exemption requests.  For example, there are various restrictions on when you as an employer should ask for information verifying the bona-fide nature of the posited religious belief.  Also, be aware that thanks to the internet today, employees for a fee can actually obtain certifications from various “ministry” religious organization websites that are supplying documentary support for vaccination exception requests (and even mask exemptions on religion grounds). I have seen some of those certifications already used with several of my clients to support a religious exemption to COVID-19 safety protocols, so make sure you proceed with caution anytime you are presented with a religious-based COVID-19 vaccination exemption request. Finally, whether you grant or deny a requested exemption, document the process and the reasons why the particular decision was made.

As more and more employers decide to implement vaccine mandates, we expect to see additional legal challenges filed. We will continue to keep you updated on all possible developments affecting this issue.

 


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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Highlights of New Jersey Rules and Regulations Relating to Adult-Use Cannabis

By:  Sheila M. Mints, Esq. and Alana M. Hans-Cohen, Esq.

 

Yesterday, the Cannabis Regulatory Commission issued long-awaited initial regulations on legalization of adult use cannabis in New Jersey.  Here are some of the highlights of the application process:

  1. The application will be printed in the NJ Register, which is published twice a month, and layout timelines for the application process and all details regarding the application. No date was provided for publication.
  1. There will be a rolling application process for “Priority Applicants.” This means anytime a priority applicant submits their application, they will immediately jump to the front of the line for review.
  2.   Priority Applicants are:
    1. Social Equity Businesses, owned by people who have lived in economically disadvantaged areas of the state or who have past convictions for cannabis offenses;
    2. Diversely Owned Businesses, which are minority-owned, woman-owned, or disabled veteran-owned and certified as such
    3. Impact Zone Businesses, which are located in an Impact Zone, owned by people from Impact Zones, or employ residents of Impact Zones. Impact zones are municipalities with a large population, high unemployment rate, or high numbers of crime or arrests for marijuana.
  3. Priority Applicants will be prioritized in the licensure process so that their applications are reviewed before other applicants –regardless of when they apply. 
  4. Microbusinesses, which are limited to 10 employees and 2,500 square feet, will also be prioritized and, if successful, allowed to apply to expand their business in accordance with consumer demand.
  5. There are no caps on the number of licenses to be awarded EXCEPT that a 37 Cultivator License cap will be in place for the first twenty four (24) months.  This cap does not apply to microbusiness cultivators.
  6. Municipalities can impose caps on the number of cannabis business allowed.
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New Jersey Supreme Court Holds that Multiple Documents Cannot be Used to Establish Compliance with the Notice Requirements of the Tort Claims Act

By: Sean P. Dugan, Law Clerk

On June 13, 2017, Plaintiff H.C. Equities served the County of Union and Union County Improvement Authority a “Notice of Tort Claim” for “damages arising from tortious interference with contract … conspiracy, defamation and trade libel.” The claim arose out of a contract dispute where the County of Union stopped making rental payments on the lease with H.C. Equities due to alleged neglect of the property after an electrical fire. The lease was not paid from July 26, 2012 to April 1, 2018, totaling $14,846,790.16 in withheld rent. The issue decided by the New Jersey Supreme Court in H.C. Equities, LP v. County of Union, 2021 N.J. LEXIS 735 (July 19, 2021) was whether H.C. Equities properly complied with the New Jersey Tort Claims Act’s notice of claim provisions in attempting to assert tort claims against these public entities.

H.C. Equities had filed a previous lawsuit in 2013, but had it dismissed without prejudice due to settlement negotiations. In October 2015, the Authority hired a real estate consultant, Colliers International, which produced an initial report on January 20, 2017. Colliers identified “substantial disadvantages” in the building in the report and recommended that the County leave the building. H.C. Equities obtained a copy of the report, which prompted the company to send the County and Authority a letter on February 22, 2017. The letter stated that H.C. Equities believed the report was written in bad faith and wanted it to be withdrawn from consideration.

H.C. Equities sent a second letter to both the County and the Authority on March 8, 2017, in which H.C. Equities’ counsel wrote that his client would reinstate its multimillion dollar claims against the County and the Authority if the report was not withdrawn. On March 9, 2017, another law firm sent a letter to County Counsel stating that H.C. Equities would be filing a civil action “in connection with the settlement agreement or its attempted frustration.” Nothing indicated that this letter was ever sent to the Authority.

H.C. Equities filed this action against the County on April 13, 2018, claiming, “Breach of lease … breach of the implied covenant of good faith and fair dealing, conspiracy and promissory estoppel.” As for the Authority, it asserted claims for trade libel, defamation, and conspiracy.

The Authority moved to have all claims asserted against it dismissed because H.C. Equities failed to provide a timely notice of tort claims. On October 30, 2018, H.C. Equities cross-moved “for retroactive extensions of time for filing of its Notice under the Tort Claims Act.” The motion contended that H.C. Equities’ cause of action did not accrue when it obtained the Colliers report because the County and the Authority committed a continuing tort. The County also moved to dismiss H.C. Equities’ conspiracy and promissory estoppel claims and H.C. Equities cross-moved for an extension of time to file a late notice of tort claim.

The Tort Claims Act requires the notice of a tort claim include, “(a)the name and post office address of the claimant … (c) the date, place or and other circumstances of the occurrence or transaction which gave rise to the claim asserted; (d) A general description of the injury, damage or loss incurred … (e) the name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and (f) the amount claimed …” The Act also requires the filing of a notice claim to be filed within 90 days after the accrual of the cause of action. However, the Act allows a claimant who missed the deadline to file a late notice within one year after the accrual of the claim, if the public entity would not be substantially prejudiced.

At the trial court level, the court held that H.C. Equities’ claims accrued no later than March 8, 2017. Under the Torts Claims Act, H.C. Equities was required to serve its tort claims notice no later than June 6, 2017, so its June 13, 2017 torts claims notice was filed too late. The March 8, 2017 accrual date also meant that H.C. Equities’ time for a motion for leave to file a late notice of claim expired on March 8, 2018. But H.C. Equities’ cross-motion was filed far later on April 18, 2019.

The trial court granted the Authority’s motion to dismiss based upon H.C. Equities’ failure to timely comply with the notice provisions of the Tort Claims Act. It also dismissed the conspiracy and promissory estoppel claims against the County, leaving the remaining breach of lease, breach of frustration of the settlement agreement, breach of the implied covenant of good faith and fair dealing claims against the County.

The Appellate Division reversed the trial court’s determination, ruling that the three separate letters jointly established compliance with the notice requirements. The Appellate Division reasoned that because the letters were written by H.C. Equities’ counsel to lawyers representing the County and the Authority, the letters met the requirement that the claimant identify itself and the public entities being sued. The Appellate Division also decided that the letters gave sufficient notice because the letter sent on February 22, 2017 stated that the action involved millions of dollars.

The Supreme Court of New Jersey reversed the Appellate Division’s decision, remanding the case back to the to trial court, upholding the dismissal of the tort claims, leaving just the contract claims against the County. The Supreme Court agreed with the trial court’s assessment that the claims accrued no later than March 8, 2017, and thus also agreed the notice and the motion for leave to file for late notice were both late. The Court also looked at the substantial compliance doctrine, which serves to ensure that legitimate claims due to technical defects are not barred, and determined that the letters collectively did not establish substantial compliance.

First, the Supreme Court noted that the Tort Claims Act consistently uses the singular, so, “a ruling that multiple documents can collectively constitute effective notice of a tort claim,” invites confusion.

The Supreme Court also ruled that the Authority was prejudiced because the letters did not alert them to the trade libel, defamation and conspiracy claims that H.C. Equities asserted in the action and the Authority was not sent a copy of the last letter, which was the only letter which stated H.C. Equities’ intention to file a new action. It also ruled that the letters did not give the Authority proper notice because the February 22, 2017 and March 9, 2017 letters did not properly give notice that H.C Equities intended to file a tort claim, and the February 22, 2017 letter did not describe the “injury damage or loss that H.C. Equities allegedly incurred.”

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Plaintiff Quadriplegic Found To Have Sufficient Basis To Justify Filing Of Late Notice Of Tort Claim Against Public Entity

On April 9, 2017, plaintiff Jonathan Jeffrey was involved in a one vehicle motorcycle accident, resulting in complete quadriplegia.  Approximately six months after the accident, he consulted counsel, at which point, he learned that his injuries may have been caused or significantly aggravated by the emergency medical technicians who placed him in the ambulance.  In the published decision of Jeffrey v. State, 2021 N.J. Super. LEXIS 65 (App. Div. May 18, 2021), the plaintiff appealed an order of the Law Division denying his motion for leave to file a late notice of tort claim.

Plaintiff’s injuries resulted in several surgeries, including spinal decompression and fusion surgery. He suffered a complete spinal cord transection at the C6-C7 level of his spinal cord, resulting in complete quadriplegia.

Plaintiff was released from the hospital on April 17, 2017 and transferred to a rehabilitation center for two months.  He continued to receive rehabilitation therapy on an out-patient basis for approximately four more months.

However, plaintiff remained completely disabled and unable to perform rudimentary movements, let alone to work.  He had an inability to voluntarily move the upper and lower parts of his body.

Plaintiff retained counsel on November 15, 2017.  At that time, plaintiff was using a wheelchair for mobility and had minimum movement of his upper body.  His decision to consult counsel was, in large part, due to a collection notice dated October 24, 2017 from the hospital.

Plaintiff filed a certification that the first time that he understood that he had a potential claim against the emergency medical services and/or other persons that provided medical care to him immediately after the April 2017 motorcycle accident was when he consulted counsel.  Thereafter, on March 20, 2018, his counsel filed a motion for leave to file a late tort claims act notice.  The lawyer certified that it was not until September 28, 2017 that she finally received sufficient information from a representative of the hospital to conclude that plaintiff’s permanent disabilities may have been caused by some or all of the medical care and treatment he received at the scene of the accident.  She sent in Tort Claims Act notices to the relevant public entities and thereafter filed a motion to seek leave to file a late notice of tort claim.

Pursuant to the Tort Claims Act, a plaintiff must file a notice of claim within ninety (90) days of its accrual (N.J.S.A. 59:8-8).  The Law Division judge has the discretion to grant a claimant leave to file a notice of claim beyond that ninety (90) day time frame, if he or she provides by Affidavit:

(1)        Extraordinary circumstances for his or her failure to file a timely notice of claim; and

(2)        The public entity or employees involved have not been substantially prejudiced by the plaintiff’s tardiness.

The plaintiff argued to the trial court judge that the gravity of his injuries made it “impossible or impractical to view this delay as a failure to exercise due diligence.”  The defendant argued that the motion judge properly exercised his discretion to find plaintiff did not show extraordinary circumstances to justify relief.

The Appellate Division concluded that the trial court judge mistakenly exercised his discretionary authority and reversed.  The Court found that the motion judge “failed to duly appreciate the magnitude of plaintiff’s injuries and their life-altering ramifications.”

In the appeal, the plaintiff argued that the Law Division made a mistake in finding that the accrual date was April 9, 2017, the actual date of his accident.  The trial court judge justified his decision in finding that, while it was difficult for the plaintiff to function in his daily life, there was insufficient evidence in the records to show that the plaintiff was not able to file a timely claim due to the severity of his injuries and his medical care.  The court had noted that the plaintiff was released for treatment by in-patient rehab and that there was nothing to indicate that plaintiff through a family member, friend or individual, was prevented from contacting or retaining legal counsel.

The Appellate Division found that the trial court judge “grossly misapprehended the magnitude of plaintiff’s injuries.  Plaintiff was 25 years old at the time of the accident.  In one catastrophic event, he lost complete movement and sensation of his body.”

The Court further pointed out that after completing two months of in-patient rehabilitation, it would “be beyond insensitive to impose a duty on plaintiff to seek legal advice through surrogates composed of family members or friends, during this life-altering adjustment period.”  The Appellate Division concluded that: “we are certain the Legislature did not intend for the judiciary to construe the term ‘accrual’ in N.J.S.A. 59:8-8 in a manner that abandons all vestiges of basic human empathy.”

Accordingly, the Appellate Division held that November 15, 2017 was the accrual date for his claim.  Thus, plaintiff’s motion to seek leave of the court to accept the TCA notice of claim was only thirty-five (35) days beyond the ninety (90) day statutory requirement.

The Appellate Division noted that after plaintiff completed his two month in-patient rehabilitation program, plaintiff was then required to confront and adjust to his physical limitations.  Further, the Court noted that plaintiff’s inherent difficulties associated with shifting from a motorcyclist to a quadriplegic wheelchair user “cannot be viewed as a barrier to deny plaintiff access to our civil courts.”

Thus, the Appellate Division found that the facts were sufficient to constitute “extraordinary circumstances” pursuant to N.J.S.A. 59:8-9 which permits the filing of a late notice of tort claim.  Accordingly, the Appellate Division reversed the trial court’s denial of the plaintiff’s request to file a late notice of tort claims against the public entities that the plaintiff believed may have exacerbated his 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 30 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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Employee Disclosure of COVID-19 Vaccinations

With more and more businesses taking the first steps to reopen as the pandemic begins to wane, I have been getting this question from more and more of my clients: Can we ask our employees to provide proof that they have been vaccinated against COVID-19?  The answer is that an employer may indeed ask that question and make that inquiry, but employers must be careful regarding how far they probe into that question.

The Equal Employment Opportunity Commission (“EEOC”) has taken the position that asking someone whether they are fully vaccinated does not result in the disclosure of an employee’s medical information, so asking such a question is fair game for an employer. In the EEOC’s view, just asking the question is not a medical exam because there could be many reasons (other than, for example, employee health issues) that may be why an employee has not been vaccinated. Where you as an employer will need to be cautious is when you start asking questions beyond the vaccination proof issue, such as why the employee is not vaccinated.  There you might be treading too close to asking improper questions about an employee’s medical status. If you find yourself in that territory, you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act’s (ADA) (or Title VII’s, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.” That can be a difficult standard to meet, so employers who wish to venture into this area would be wise to (1) strictly limit their inquiry exclusively to whether or not the employee is fully vaccinated; and (2) requesting proof of that vaccination, say asking for a copy of the vaccination card itself. That way you avoid getting into these medical issue topics, and you the employer would then keep any proof information you obtained from the employee confidential like you would with any other private information received on an employee.

As things continue to evolve, we expect to receive more guidance from the EEOC on what employers can do as part of their reopening efforts, and as that happens, we will provide further legal updates to assist employers in those reopening efforts.

 


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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Under New Jersey Law, City Has No Liability For Plaintiff’s Injury Due To Fall On Snow In Street

In March 2015, plaintiff Donell Prince left his rooming house where he lived and noticed that there was snow on the common walkways of the rooming house property and the adjoining public sidewalks.  Plaintiff decided to walk in the street because snow had been plowed from the street into the sidewalks.  He fell and landed on his backside and side of his body.  One of the issues in Prince v. City of Englewood, 2021 N.J. Super. Unpub. LEXIS 247 (App. Div. February 12, 2021) was whether the City of Englewood could be liable for plaintiff’s fall on the public street because of snow conditions.

Plaintiff alleged that Englewood was negligent in failing to remove the snow from the public sidewalks and streets and this negligence caused him to fall and suffer injuries.  At the trial court level, Englewood successfully filed a motion for summary judgment, obtaining a dismissal of the lawsuit as to it.  This appeal ensued.

The Appellate Division pointed out that the well settled case law under the New Jersey Supreme Court case of Miehl v. Darpino gives public entities in the State absolute immunity for all snow removal activities.  As the Supreme Court later stated in Bligen v. Jersey City Housing Authority, “[t]he common law immunity was based primarily on the limitless liability that could be imposed on an entity, such as a state, county, municipality, or turnpike authority, that had the responsibility to clean up numerous streets and roads.”  Subsequent case law, after the Tort Claims Act was enacted, held that the Tort Claims Act did not change the common law snow removal immunity available to a public entity.

Thus, the Appellate Division found that summary judgment was properly granted in favor of the City of Englewood.  Plaintiff’s allegation was that he slipped and fell on a public street because of snow conditions.  The Court held that “because Englewood enjoys immunity from liability for its snow removal activities, it cannot be held liable for plaintiff’s alleged injuries.”  Thus, the trial court’s decision, granting summary judgment as to the defendant Englewood was affirmed by the Appellate Division.

 


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 30 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 Issues Employer Vaccine Guidelines

With the increased availability of COVID-19 vaccines in New Jersey, the state Department of Health (“DOH”) recently issued Guidelines allowing employers to mandate COVID-19 vaccinations for its employees. Nonetheless, even in the face of such state Guidelines, employers should still proceed cautiously in implementing such vaccine mandates for employees given the mere emergency use authorization granted to the currently available COVID-19 vaccines under federal law.

In announcing its Guidelines allowing for mandatory vaccinations, the state DOH adopted in large part the Guidelines previously outlined by the Equal Employment Opportunity Commission (“EEOC”) regarding COVID-19 employer vaccination mandates. The state DOH also announced three exceptions to this vaccine mandate rule:

  1. The employee has a disability that would prevent them from getting the vaccine.
  2. The employee’s doctor advised them not to get the vaccine while pregnant or breastfeeding
  3. The employee has sincerely held religious beliefs, practices or observances that would prevent them from being inoculated.

If the employee can prove such exceptions, the employer must provide a reasonable accommodation, per the state DOH’s Guidelines. Moreover, on the other hand, employers can avoid providing an accommodation to an employee where doing so imposes an undue burden on the employer’s operations.

Some other important aspects of the state DOL Guidelines:

  1. Employers generally may request medical documentation to confirm a disability.
  2. Employers may request medical documentation to confirm that an employee who is pregnant or breastfeeding was advised by their doctor to seek such accommodation.
  3. Employers must ensure that all information about an employee’s disability is kept confidential.
  4. If a sincerely held religious belief, practice, or observance precludes an employee from getting a COVID-19 vaccine, however, an employer generally may not question the employee’s sincerity. The exception to this requirement is if the employer has an “objective basis” of fact for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee’s request.
  5. Safety also can be considered in evaluating whether a potential accommodation would be reasonable. In this regard, an employer must base its decisions regarding any potential safety hazard on objective, scientific evidence and not on unfounded assumptions or stereotypes.

Where an employer must provide a reasonable accommodation, such a measure may include:

  1. Allowing the employee to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public.
  2. Providing the employee with personal protective equipment that sufficiently mitigates the employee’s risk of COVID-19 transmission and exposure.

Whether these Guidelines will result in an increased number of employer mandated vaccination programs is difficult to predict. So far, most employers have decided against mandating employee vaccinations because the vaccines have only been approved for emergency use and are not fully authorized and licensed vaccines.

Even with this New Jersey Guidelines directive, the Federal Food and Drug Law’s requirement that no one can be forced to take a vaccine that is only approved for emergency use still exists as a limitation and raises a possible legal risk for employers. Granted, its application in these situations raise novel issues. And, we do not have a definitive answer in the context of emergency use vaccines. Nevertheless, it presents enough of a concern that employers should proceed cautiously in mandating employee vaccines even with the recent state DOH Guidelines.

In that regard, here is one very real and significant legal risk for employers in New Jersey. Let’s say you as an employer want to mandate the vaccination, and one of your employees refuses to take it and they do not fall into one of the stated exceptions. Now, let’s also assume that you as the employer plan to take some type of adverse employment action against the employee-maybe you decide to fire them or put them on a forced unpaid leave of absence. That employee could potentially bring suit and claim that the refusal to get vaccinated constituted a form of whistleblowing and violates the New Jersey CEPA law, with the public policy cited to support the claim being the federal food and drug law. That is one risk that the employer faces in mandating COVID vaccinations when the vaccine is still authorized just for emergency use. This is an important reason why most employers have opted instead to recommend vaccination, with many also offering incentives to promote greater employee response. This later way of obtaining the wanted result of greater employee vaccinations in the workplace is the far safer approach to this issue rather than employer mandates.

No doubt, we can expect this situation on employee vaccinations to continue to evolve, and employers will likely receive further federal and state guidance on how best to proceed as the desire to return to some normalcy in the workplace continues to develop.

 


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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