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When “The Easy Way Out” Isn’t So Easy – Beware of Litigation from Non-Tenured Teachers Who Are Non-Renewed

As a practitioner who has spent most of his legal career as a school board attorney serving as general or labor counsel to boards of education, I address a trend that seems to be on the rise – litigation brought for employment discrimination in the wake of a non-tenured teacher being non-renewed at the conclusion of the teacher’s annual employment contract.

In the world of school law, a “non-renewal” is distinct from a “termination,” “discharge,” or “firing” in both the legal and practical sense.  The latter tend to occur upon notice, and, in the public school context, almost always with cause.  A “non-renewal,” however, can be with or without cause.  All non-tenured teachers are entitled to written notice by May 15 each year about whether they will be renewed or not for the next succeeding school year.  N.J.S.A. 18A:27-10.  If a teacher is non-renewed, he or she has a right to request a written statement of reasons and appear before the Board of Education for an informal hearing known as a Donaldson hearing, the purpose of which is to attempt to convince the Board to offer reemployment notwithstanding the Superintendent’s failure to recommend renewal.  The case law of the Commissioner of Education has, for decades, made it absolutely clear that a non-tenured teacher can be non-renewed for any reason or no reason at all, so long as it is not a reason that would be “arbitrary, capricious, or unreasonable,” such as, for example, discrimination or unlawful retaliation.

Indeed, the ability of the school district to sever ties with a teacher through this quick and relatively painless process is precisely what delineates the difference in legal rights between a tenured teacher and a non-tenured teacher.  Once a teacher fulfills the statutory requirements and obtains tenure, the process for removal becomes significantly more difficult.  Tenured teachers are legally entitled to new contracts each year, and they can only be removed upon the filing of tenure charges and a statement of evidence with the Board of Education, which are then referred for Board approval, followed by a “sufficiency determination” on the charges from the Commissioner.  Only if the charges are deemed sufficient to warrant removal is the matter then referred for an expedited arbitration hearing by one of 50 arbitrators who are maintained on a panel by the Commissioner for hearing such tenure cases.  Grounds for appeal are extremely limited.  As a result, tenure charges tend to be filed in only the most serious cases of employee misconduct or inability, or in cases of documented inefficiency.

This distinction between tenured employees and non-tenured employees has led to an interesting, and somewhat paradoxical, phenomenon when it comes to the types of employment litigation brought against local school districts, in general, and in terms of which employees are likely to bring it, in particular.  To put it bluntly, a school district is far more likely to be sued in court under a statutory cause of action with fee-shifting by a non-tenured teacher who was non-renewed than by a tenured teacher who was subject to tenure charges.

By way of example, recently, I successfully defended a case against a charter school brought under the New Jersey Law Against Discrimination (“NJLAD”).  The plaintiff was a teacher/learning specialist who was employed for just over a semester and a few months before she was granted an extended medical leave of absence, followed by a maternity leave, under the Family Medical Leave Act (“FMLA”).  The employee had significant performance and disciplinary issues since beginning her employment the previous January and working the second semester of her first school year.  Just two months into the new school year, she unexpectedly went out on disability leave in October due to a high-risk pregnancy.  The following May, the employee was non-renewed by reason of her performance issues.  She never requested a statement of reasons or a Donaldson hearing.

The employee brought disparate treatment theory claims under the NJLAD, alleging that her non-renewal was based on gender, pregnancy, and disability discrimination.  Her performance evaluations had been mediocre at best.  Within the first two months of her employment, the charter school had found her classroom management skills to be so poor that it assigned her a teacher-mentor to coach her and “reset” her classroom culture, which had become toxic.  The teacher had initially shown some promise, but soon, these performance issues caused her supervisors to reconsider promoting her.  She had been absent from her classroom without explanation.  Her fellow teachers indicated she was warehousing difficult students in the back of their rooms with “time-outs” nearly every day.

After almost 2 years of discovery painstakingly documenting the performance deficiencies, the case was ultimately dismissed and summary judgment was granted in favor of the charter school, with the trial judge finding (1) that the Plaintiff failed to set forth sufficient evidence from which a reasonable jury could conclude she had satisfied the prima facie elements of discriminatory intent, or that she was performing the functions of her position at a level that met the school’s legitimate expectations; and (2) that the charter school had numerous legitimate, non-discriminatory reasons for non-renewing her employment, including below proficient evaluation scores, improper use of “time-outs,” and poor classroom management skills.

If it were a tenured teacher, such a case could never have occurred.  The tenure arbitration process would have decided threshold legal issues, such as whether the employee was performing her functions in a manner that met with the school’s legitimate expectations, or whether there were adequate non-discriminatory reasons to terminate the employee in the very first instance.  Knowing this, the school district would have taken great pains to ensure significant documentation of the employee’s misconduct or inefficiency long before undertaking to bring tenure charges.  In this case, the evidence was there in the minds of the teacher’s colleagues and supervisors, but it was not documented.  The oversight was a simple one, oft-repeated in the world of public education.  Sometimes, the feeling that a school district can non-renew any non-tenured teacher painlessly and without consequences is so well-known it can lead to a false sense of security.  Things that would have been documented in uncomfortable meetings, letters of reprimand, or “evaluative memoranda” in the personnel file fail to be documented.

The takeaway for public school employers:  Any time you are considering non-renewing a non-tenured employee who is a member of a protected class, or who has complained of the employer’s practices or policies, recognize that the district is potentially vulnerable to litigation under the NJLAD, the Conscientious Employee Protection Act (“CEPA”), or other statutory remedies, and document, document, document. . . .  If the employee has done something serious enough to warrant termination, discuss the situation with legal counsel and consider terminating rather than non-renewing them, even though it risks a labor arbitration over whether the termination was “for just cause.”  Better to have an arbitrator cheaply decide a termination case than to find the school district enmeshed for years in sticky employment litigation in Superior Court with a hungry Plaintiff’s attorney trying to leverage fee-shifting to the tune of hundreds of thousands.  Sometimes, the “easy way out” isn’t always….

 


For over ten years, Cameron R. Morgan has served the public school districts of the State of New Jersey in the specialized area of school law, representing boards of education in all aspects of their legal needs, with a focus on general counsel services, civil litigation, special education, administrative law, collective negotiations, labor and employment, and appellate practice.  He has served as Board Solicitor to dozens of school districts, guiding district administrators through the diverse range of issues affecting the public schools, from personnel matters, tenure cases, and the range of issues that frequently arise at public board meetings, to student disciplinary matters, residency disputes, and homelessness issues, to complex matters involving the budgetary process or First Amendment rights.

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First Aid Squad Responders Found to Be Immune from Liability for Injury Allegedly Caused by Negligent Transport of Patient

Plaintiff Rose Bengel was allegedly injured as a result of medical assistance provided by defendant Holiday City at Berkeley First Aid Squad, Inc. (“the Squad”). The Squad had responded to a 9-1-1 call for medical assistance and transported her to the hospital. The issue in Bengel v. Holiday City at Berkeley First Aid Squad Inc., 2020 N.J. Super. Unpub. LEXIS 2374 (App. Div. Dec. 11, 2020) was whether the defendant Squad and its first responder members were immune from liability pursuant to statute.

In response to a 9-1-1 call, the Squad arrived at the Bengels’ home to assist Rose Bengel (“Rose”), then 86 years old. The Squad members were advised by her home health aide that she had been wheezing and had pink eye since recently arriving home from a nursing home. Rose was non-ambulatory, being confined to a wheelchair from muscular dystrophy for decades. They had to lift her from her wheelchair to a stretcher to transport her to the hospital.

The plaintiff alleges that the Squad members negligently injured Rose in the process of lifting her, causing her to suffer a rotator cuff tear in her left shoulder. Due to her age, surgery was not recommended and it was contended that Rose’s use of her left hand and arm became more limited after this incident.

The Squad disputed that they caused any injury to Rose in the process of transferring her to the stretcher. They claim that they gently lifted her from her wheelchair, wrapping their arms around her abdomen and feet and sat her on the stretcher.

The Squad moved for summary judgment, arguing that they had statutory immunity against claims of negligence. The Plaintiff argued that the statutory immunity did not apply because it was not an emergent situation and the Squad failed to demonstrate their actions were in good faith.

The trial court judge granted the Squad and its member responders a summary judgment dismissal. He noted that the Squad was one of the 4 volunteer first aid squads in Berkeley Township and its members were first responders certified to provide Basic Lift Support Services. The judge applied the statutes, N.J.S.A. 2A:53A-13, N.J.S.A. 2A:53A-13.1, and N.J.S.A. 26:2K-29, which “immunized volunteer rescue squads and members from civil liability when providing emergency public first aid or intermediate life support services in good faith.”

The judge found that the Squad members were engaged in public first aid rescue services as they were responding to a 9-1-1 medical emergency call. Although Rose’s condition may not have been life threatening, that did not make the call “non-emergent.” Further, the judge held that there was no evidence that any such injury suffered by Rose was with intent or bad faith of the Squad members.

The plaintiff appealed this summary judgment dismissal to the Appellate Division. The appeals court agreed with the trial judge that the Squad and its members who transported plaintiff qualified for statutory immunity from civil liability. More than negligent conduct would need to be proven to find that the Squad members failed to act in “good faith” or acted in a “willful or wanton” manner.

Thus, even if the Squad members were negligent in lifting Rose and caused her shoulder injury, the Appellate Division found that such actions did not strip the Squad and its members from their statutory immunity. Finding that, at worst, the Squad members were negligent, the Court upheld the trial court’s order granting summary judgment to the Squad and its members.

 


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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Adult Use Cannabis to be Legal on January 1, 2021. What Happens Now?

On November 3, 2020, the voters of New Jersey approved a referendum legalizing adult/recreational cannabis on January 1st. The NJ Legislature passed S21/A21 yesterday which describes the initial regulatory structure for adult use cannabis licenses, state and municipal taxes on legal marijuana and employer and employee protections in maintaining a drug free work place, among others.  The bill is expected to be signed by Governor Murphy next week.

The bill does not include dates for license applications for adult use cannabis business but does explain how the licensing process will work and memorializes the commitment to preference in the award of applications to minority and women owned businesses.

The bill increases the number of cultivation licenses to 37 from 24 and establishes six classes of licensed cannabis businesses: cultivator, manufacturer, wholesaler, distributor, retailer and delivery.  This creates new opportunities for those who are interested in the cannabis business but do not wish to open a dispensary or cultivation facility.

Some of the key takeaways from the bill are attached.

Capehart and Scatchard’s Cannabis Department is available to assist those who wish to apply for a license or have interest in other ways they can get involved in this new area of business in New Jersey.

Please contact Sheila M. Mints, Esq. at 856-840-4945.

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Jury Trials Again Suspended in New Jersey But May Restart on a Virtual Basis

Not surprisingly, due to the COVID-19 surge of cases, the New Jersey Supreme Court has once again suspended jury trials. They had resumed earlier in the fall on a limited basis as a hybrid with virtual jury selection and socially distanced trials. However, with this second wave of new COVID-19 cases, the Court deemed it unsafe to conduct any new in person jury trials. Hence, by order of November 16, 2020, any new in person jury trials are suspended pending further order.

After the court sent out the notice suspending jury trials in New Jersey, on 11/25/20, the court sent out a notice to the bar, which would mandate all cases to be eligible for an entirely virtual jury trial. Having the pleasure of participating in zoom depositions for the past 6 months, conducting trials virtually would present a myriad of problems. The presentation of evidence, securing witness testimony at trial, internet connectivity problems, and the use of evidence for impeachment purposes would be just some of the challenges in a virtual jury trial.

We can only hope that enough members of the bar object so that the court changes this proposal from mandatory to voluntary participation. The goal of the court is to move cases off its docket. While that it is understandable, it should not be done at the expense of adequate representation at trial. I have suggested the increased use of settlement conferences and mediations as an alternative path to resolve cases and move cases off the court’s docket.

We will keep you posted as to whether this proposal is implemented and/or modified before implementation by the court.

 


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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COVID-19 and the Holidays

With the holiday season now upon us, there are growing concerns about how the COVID-19 pandemic could worsen because of the expected social gathering activities associated with the holiday season, and how that could impact New Jersey workplaces. The Centers for Disease Control (“CDC”) has already issued directives that persons should not travel during the holiday season, and that they should likewise keep their gatherings small (ideally limited to their own households), and where possible, keep them outside to maintain good social distancing. In light of the CDC’s directive, I have gotten several questions from clients about what employers can do to ensure that their employees follow such directives and engage in safe behavior during the upcoming holidays. The answer to those questions will likely surprise you.

Believe it or not, even in a place like New Jersey which is very pro-employee, employers can actually demand that their employees refrain from travelling during the holiday season, and likewise minimize their social contacts and holiday gatherings, even when such conduct is happening outside of working hours. Why? Because of the public health crisis caused by COVID-19, employers have a right (and some would say a legal duty) to safeguard their workplaces, and in light of the CDC directive against holiday travel, employers can mandate no employee travel and likewise require that employee family and other related social gatherings also adhere to CDC recommendations. Employers have been given a great deal of latitude during this public health emergency in taking steps to protect the workplace, and requiring employees to adhere to the recent CDC directives fall within the scope of that discretionary authority.

So, in light of the above, are you telling me that as an employer, I could actually discipline or even fire an employee who fails to follow the CDC recommendations? My answer: absolutely.  Most employees in New Jersey are at will, meaning that an employee can be fired for any reason, or no reason at all, so long as it is not an illegal reason. There is no legal prohibition in New Jersey that would prevent an employer from firing or disciplining an employee who refuses to adhere to an employer directive that an employee not travel during the holidays and/or minimize their family gatherings in light of the concerns raised by the CDC. Some states like Colorado and California have laws that prevent employers from firing employees for doing lawfully allowable things outside of work hours, but New Jersey has no such law. Thus, if an employer wants to mandate that its employees follow what the CDC has mandated about travel and social gatherings during this holiday season, employers in New Jersey are free to impose such requirements, and may issue appropriate discipline if employees fail to follow such requirements.

So, employers here in New Jersey have one more tool to use in protecting the workplace while the COVID-19 pandemic continues to wreak havoc on day to day life.

I wish everyone a safe and happy holiday season.

 


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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DACA’s Uncertain Future Following Recent United States Supreme Court Decision

In Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 207 L. Ed. 2d 353 (2020) the United Supreme Court held that the Department of Homeland Security’s decision to rescind Deferred Action for Childhood Arrivals (DACA) violated the Administrative Procedure Act as arbitrary and capricious.  However, the case did not rule on the specific merits of DACA, but instead focused on DHS’s decision to rescind DACA as applied to the Administrative Procedure Act.  The case also left open the possibility that the government could issue a new rescission with better rationale.

By way of review, DACA is an immigration relief program implemented via executive order on June 15, 2012 by President Barack Obama.  It provides certain unauthorized or undocumented immigrants who arrive to the United States under the age of sixteen two modes of relief:  (1) It allows those individuals the right to apply for a two-year forbearance of removal; and (2) It allows those who are granted relief under DACA to apply for work authorization and various federal benefits.

On September 5, 2017, the Attorney General issued a letter advising DHS to rescind DACA.  As noted in Regents, Acting DHS Secretary Duke issued a memorandum rescinding the policy.

In its holding in Regents, the Court noted that Acting Secretary Duke’s rescission memorandum failed to provide a reasoned analysis on the need to rescind the entirety of DACA, including the two-year forbearance and the provision providing for work authorization and federal benefits.

Specifically, the Court acknowledged that Acting Secretary Duke’s rescission memorandum was bound by the Attorney General’s determination that DACA was illegal.  However, the Attorney General’s letter also concluded that the legal defects in DACA mirrored those defects seen in a related policy – also issued by way of executive order – known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which had been previously challenged and rescinded.

In determining the rationale for the legality of DACA, the Court took note of the Fifth Circuit’s opinion on DAPA, which held that DAPA violated the Immigration and Nationality Act (INA) because it unlawfully extended eligibility for benefits to a class of undocumented immigrants in the INA.  Importantly, the Fifth Circuit distinguished the benefits provision of DAPA with the two-year forbearance provision.  In contrast, Acting Secretary Duke’s rescission memorandum rescinded the entirety of DACA without comment on the legality of the two-year forbearance provision.

The Court also noted that Acting Secretary Duke failed to address whether there was a legitimate reliance on the initial DACA memorandum.  As to DHS Secretary Nielson’s subsequent memorandum, issued nine months later, the Court held the memorandum was a post-hoc rationalization and should not be relied upon by DHS.  The Court noted that a new decision is required before DHS could consider any new reasoning.

The decision in Regents is significant in that it blocks the current rescission memorandum.  However, the decision did not outright claim that the rescission of DACA was unlawful, but instead noted that DHS did not provide adequate reasoning to rescind DACA in its entirety, and was not allowed to consider Secretary Nielson’s reasoning subsequent to the rescission.   This leaves DHS open to implement a new rescission of all or part of DACA with more robust reasoning.  While the Court’s holding seems to indicate that the two-year forbearance provision of DACA should be upheld, it allows DHS to rescind both the benefits and forbearance portions if it can provide adequate justification to do so.

In fact, on July 28, 2020 Acting DHS Secretary Wolf issued a memorandum to DHS’s U.S Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS), directing the agencies to reject all initial DACA requests submitted by applicants who have never before received DACA, and limit the forbearance period to one year.  The memorandum also noted that advance parole for travel outside the United States should only be granted for urgent humanitarian reasons or significant public benefit.  This benefit is entirely discretionary on the part of the agencies.

USCIS then issued its own update, affirming that all new DACA requests will be rejected, that all subsequent renewals will be limited to one year, and that all requests received more than 150 days before the specific applicant’s expiration of DACA will be rejected (they advised that any requests be filed between 150 and 120 days before the applicant’s current grant of DACA expires).  USCIS also echoed DHS’s provision regarding advance parole for travel outside the United States.

It is important to note that Acting Secretary Wolf’s memorandum is preliminary in nature, pending his full reconsideration of DACA, and again leaves open the possibility that DACA will be rescinded either in whole or in part in the future.  Included in the memorandum were several reasons that could warrant the full rescission of DACA.  These are as follows: (1) Congress has had sufficient time to consider affording permanent status or relief to DACA recipients, has not taken such action, and may be spurned to take such action if DACA were rescinded; (2) Setting out a list of detailed criteria and maintaining a formal process for discretionary non-enforcement may inhibit individualized consideration; (3) In allowing for deferred action, DHS may be “sending mixed messages” concerning their ability to consistently enforce immigration laws; and (4) Retaining a deferred action provision would hamper DHS’s efforts discourage unlawful immigration involving children.

Regardless of the justifications of the July 28, 2020 memorandum, DACA’s future is still uncertain.  The decision in Regents leaves open the possibility of a full or partial rescission, and DHS has already closed the door on new applications for those not already receiving deferred action.  DACA’s forbearance period has also been cut in half, meaning that applicants will need to go through the application process again every year.  Until this issue is addressed by Congress, the ability for over 800,000 recipients to remain in this country is equally uncertain.

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Bostock v. Clayton County and the Further Protection it Provides New Jersey Employees

On June 15, 2020, the Supreme Court of the United States held that in Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 2017 L. Ed. 2d (2020), an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The majority opinion was authored by Justice Neil Gorsuch, a dissenting opinion was authored by Justice Samuel Alito, which Justice Clarence Thomas joined, and a separate dissenting opinion was authored by Justice Brett Kavanaugh.

Gerald Bostock, a gay man, began working for Clayton County, Georgia as a child welfare services coordinator in 2003. Fast forward a decade to 2013, Bostock began participating in a gay recreational softball league. Bostock received criticism for his participation in this league, including hateful remarks about Bostock’s sexual orientation during a meeting where Bostock’s supervisor was present. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed and shortly thereafter Bostock was terminated for “conduct unbecoming of its employees.” In addition to Bostock, two other cases were at play. One in which a man was fired for mentioning he was gay and the other where a transgender woman now wished to live and work as a woman. They were both consolidated under this decision and after years of battling through our court system, Gerald Bostock reached the Supreme Court in what would result in one of the most impactful decisions thus far in our country’s history.

Without having to delve into various dictionaries or biology text books from the past centuries defining the term “sex”, the opinion boiled down to this:

“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

In other words, since females would not be fired for being attracted to men, then why could men be fired for being attracted to men? In the same vein, if somebody was born a male and then transitioned at some point to being female or vice versa, neither alone would be discriminated against for simply being male or female, rather they are discriminated against for the transition. What both of these hypotheticals have in common, and how the majority sees it, is that they hinge on simply being male or female. The Court held that gender plays the main role in each scenario no matter whether you’re gay, born male then transitioned, born female then transitioned, especially as sex is protected under the Civil Rights Act of 1964. This decision has an obvious impact on the various states who yet have protections for gay/transgender employees. However, how does this decision impact those states that already had these protections, including our beloved state of New Jersey?

In 1991, New Jersey amended the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1, to bar employers from discriminating against their employees for being gay or lesbian. Years later in 2006, New Jersey once more amended LAD to bar employers from discriminating against their employees for their gender expression.

On the surface it seems that Bostock has no impact on the employees of New Jersey, but in reality many New Jersey employees still remained unprotected from sexual orientation and gender expression discrimination even after the amendments made to LAD. Those who remained unprotected were mainly workers employed in New Jersey by multistate companies. Some of these companies would have their employees sign agreements binding them to the laws of the state where their company is headquartered, or where the “never center” is located as held in Hertz Corp. v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 175 L. Ed. 2d 1029 (2010). These binding agreements can still exist and apply to other areas of law, but now gay and transgender employees have this extra Federal protection of Bostock. Additionally, Bostock now protects federal contractors, who operate in New Jersey and were not covered by LAD.

It is difficult to say how this holding will impact other areas of the law where discrimination based on sex and sexual orientation is prohibited, such as in education, health care, housing, etc., but for now, all employees of our home state of New Jersey may continue to work without fear of being terminated because of who they love or how they identify.

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Legislation to Require Workers’ Comp and PIP to Cover Costs of Medical Marijuana to Be Considered by the Assembly

Legislation requiring the employer, workers’ compensation and PIP insurers to cover the costs of medical marijuana was passed by the NJ Assembly Appropriations Committee on October 26, 2020 and will be considered by the entire Assembly.  Assembly Bill No. 1708, sponsored by Assemblyman John Burzichelli, Assemblyman Herb Conaway and Assemblywoman Joann Downey, requires that “an employer or workers’ compensation insurance carrier or private passenger automobile insurance carrier shall provide coverage for costs associated with the medical use of marijuana.”  If enacted, this legislation will not require that private insurers or governmental health programs like Medicare or Medicaid cover the costs of medical marijuana.

A first step in requiring workers’ comp coverage of the costs of medical marijuana came on January 13, 2020 when the Appellate Division decided the case of Hager v. M&K Construction, 462 N.J. Super. 146 (App. Div.), certif. granted, 241 N.J. 484 (2020). This case required reimbursement of the costs rather than coverage of the costs as set forth in the legislation.  The Hager case is currently on appeal to the New Jersey Supreme Court, which has agreed to hear the case.

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DOT Contractor Entitled to Tort Claims Act Immunity as Defense in Personal Injury Action

Plaintiff Robert Koehler was injured while driving near an overpass on Route 3 in Rutherford, New Jersey when the boom of a bucket truck, which was in tow, struck the overpass, flew off, hit the roof of Plaintiff’s vehicle and entered the sunroof, causing his injury. The overpass was located in a construction zone. The issue in Koehler v. Smith, 2020 N.J. Super. Unpub. LEXIS 1855 (App. Div. Oct. 1, 2020) was whether the DOT’s general contractor, defendant Creamer Sanzari, was entitled to Tort Claims Act immunity for this accident.

The overpass was not marked with a low clearance sign before the accident and the plaintiff claimed that the defendant general contractor (“GC”) should be liable for his accident when the truck hit the overpass. The defendant, however, claimed that it was entitled to Tort Claims Act traffic sign immunity and design plan immunity.

On the trial court level, the defendant GC filed a motion for summary judgment, which was granted. While the trial court judge concluded that the defendant was not entitled to design plan immunity, he held that the defendant was entitled to traffic sign immunity and granted the defendant’s motion for summary judgment.

Upon appeal, the Appellate Division noted that the plaintiff’s expert admitted in deposition testimony that it was the design engineer’s responsibility to ascertain that the project’s plans and specifications were correct and that there was an issue whether the contractor was authorized to affix a low clearance sign to the bridge and that the requisite signs should have been addressed before the project began. The Court also stated that “[t]here was no dispute that the traffic control patterns were designed by the DOT and its engineers, and defendant carried out those patterns according to the plans and specifications.”

The contract setting forth the duties of traffic control as to the GC did not relate to permanent conditions such as the overhead height at issue and the lack of signage. The overhead height was not being altered as part of this project. The milling and paving being performed by the defendant underneath the bridge would not have changed the clearance.

The Appellate Division affirmed the trial court’s order granting summary judgment. The Court found that the defendant GC had no duty to affix signage at this overpass or to address the traffic flow at this location. Thus, the GC was entitled to summary judgment regardless of whether it enjoyed traffic sign immunity under the Tort Claims Act.

The Court also rejected the plaintiff’s argument that this situation was an “emergency” and found inapplicable the case law in which “a public entity may be held liable for its failure to provide emergency signals when the dangerous condition is temporary.” The Appellate Division agreed with the trial court judge that “the Ridge Road overpass’s lack of clearance signage is not the type of sudden and unanticipated situation that would impose liability on a public entity, and as such, the judge correctly determined defendant was entitled to traffic sign immunity.”

 


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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