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In a recent New Jersey Appellate Division case, Delanoy v. Township of Ocean, No. A-2899-17T4 (App. Div. January 3, 2020), our state appellate court issued a significant new decision that explains what an employer’s legal obligations are to eliminate discrimination against (and provide reasonable accommodations to) its pregnant employees. This is the first published court opinion addressing these important legal issues for employers.

Back in 2013, the New Jersey Legislature amended the New Jersey Law Against Discrimination (“LAD”) through passage of the New Jersey Pregnant Workers Fairness Act (“PWFA”).  The PWFA revised the LAD to expressly prohibit pregnancy-based discrimination in employment while imposing other legal requirements upon employers regarding how pregnant employees could be treated in the workplace. Among those other important legal requirements, the PWFA obligates employers, subject to an undue hardship exception, to afford reasonable accommodations in the workplace to pregnant women, when requested, and also to not penalize women due to their status of being pregnant.

The Plaintiff in Delanoy was employed as a police officer. When she became pregnant with her second child, she informed her supervisor that at the direction of her doctor she needed to be taken off her patrol duties and receive some sort of light duty position during the period of her pregnancy. As a result of her request, the employee was placed into a light duty non-patrol position pursuant to a “Maternity Assignment Standard Operating Procedure” that was a previously adopted policy by the employer. That policy enabled pregnant workers to work a different maternity job assignment, but in exchange for the modified assignment, the pregnant officer had to use all of her accrued paid leave time off (e.g. vacation, personal and holiday time) before going on that different work assignment. The police department employer also had a separate light duty assignment policy for non-pregnant injured officers who also needed a different temporary job assignment. Unlike the maternity reassignment policy, this light duty policy gave the police chief the authority to waive the condition of utilizing accrued leave time as a prerequisite for receiving the light duty assignment.

Plaintiff filed suit against her employer claiming that the maternity reassignment policy discriminated against pregnant employees since it was less favorable than the separate light duty non-pregnancy policy, which made provision for the waiver of the required exhaustion of paid leave time. Because of this disparity, the Plaintiff argued that the policy on its face discriminated against pregnant employees in violation of the PWFA because such employees were penalized in requesting an accommodation by losing their paid leave time as a condition for receiving the requested accommodation.  Reversing the trial court’s determination of no discrimination, the Appellate Division agreed with the Plaintiff that the maternity assignment policy discriminated against pregnant workers because unlike non-pregnant workers who could seek an exception to the paid leave use requirement under the light duty policy, the maternity reassignment policy allowed for no such exemption. In light of this finding, the court declared the policy to be illegal on its face and enjoined its further enforcement moving forward by the employer.

In light of the court’s ruling in Delanoy, employers need to familiarize themselves with the unique obligations owed to pregnant workers who may need a workplace accommodation under the PWFA.  Not only does that law prohibit discrimination against pregnant workers, but it also affords those employees with the opportunity to receive an accommodation because of their physical condition.

Hence, to assist employers in understanding that accommodation duty, the PWFA cites various examples of possible required accommodations, which could include “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedule, and temporary transfers to less strenuous or hazardous work….”  Of course, this accommodation duty is subject to application of an undue hardship exception, and the law likewise lays out various considerations for making that determination as well (i.e. size of employer, size of work facility, size of company budget, etc.).

In sum, the PWFA significantly changed the legal landscape for employers as it relates to its pregnant workforce, so employers must be ever cognizant of the law’s requirements and ensure that workplace policies do not treat non-pregnant workers better than pregnant workers, or punish such employees due to their condition, especially those policies and practices that impact upon available accommodations that an employer may be willing to make for its general workforce.

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.

Plaintiff’s Decedent Amelia Cius was crossing the roadway at 9:30 pm when she was fatally struck by a car on Whitehorse-Mercerville Road. The driver of the car explained that he did not see the decedent because she was wearing dark clothing. She was not in the crosswalk while crossing the road. The issue in Deravil v. Pantaleone, 2019 N.J. Super. Unpub. LEXIS 2252 (App. Div. Nov. 1, 2019) was whether the Township and the County could be held responsible for the accident on the basis that the roadway was in a dangerous condition.

The area where the decedent was struck lacked functioning street lights. Also, the plaintiff alleged that the trees and utility poles obstructed the view of the road for both pedestrians and drivers.

The sidewalk on the eastern side of Whitehorse-Mercerville Road abruptly terminated at the point of impact. The plaintiff’s counsel speculated that the decedent entered the roadway because the sidewalk ended. However, plaintiff’s complaint alleged that she was attempting to cross the road when she was struck by an oncoming car.

In a summary judgment motion, the Township and the County both argued that they were not liable under the Tort Claims Act. The Township contended that it did not own or control the roadway. The County argued that the roadway was not in a dangerous condition. Both argued that the decedent “failed to exercise due care in crossing the road.”

The trial judge granted summary judgment, relying on the Supreme Court’s case of Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., in which the Court determined that the purpose of the road “was to facilitate vehicular travel and plaintiff presented no evidence suggesting the road was unsafe for that purpose.” Further, the judge found that there was no evidence that the road was unsafe for pedestrians if used “in a normal and foreseeable manner by crossing at designated crosswalks.” The decedent’s failure to use the designated crosswalks was unreasonable.

The Appellate Division agreed with the trial court judge that summary judgment was warranted as to the two public entities. It noted that the plaintiff presented no evidence that the roadway itself was dangerous. The Court stated that “[t]he termination of the sidewalk, inadequate street lighting, or the location of trees and utility poles were not physical characteristics attendant to the road.” To determine whether a dangerous condition of public property exists under the Tort Claims Act, one must examine “the physical condition of the property itself and not to the activities on the property.”

The Appellate Division also noted that the driver of the car was using the road as intended at the time of the accident. The decedent’s use of the road, however, was “so objectively unreasonable” that the condition of the roadway itself could not have caused the injury. The decedent, wearing dark clothing, was walking across a four lane roadway at night. The Court found that the decedent’s conduct “was indicative of a lack of due care, precluding a finding of any actionable dangerous condition to impose liability on the Township or the County.”  Thus, the Appellate Division affirmed the dismissal of the Complaint as to both public entities.

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.

Plaintiff, Alexander Ferris, at age 13 was injured when struck by a car driven by defendant Aida Blanco-Alquacil as he crossed the road in the crosswalk at an intersection in the Borough of Middlesex.  His parents filed a lawsuit, alleging negligence by the defendant driver, as well as the Borough of Middlesex, claiming that the intersection was a dangerous condition and it lacked adequate signage.  The issue in Ferris v. Blanco-Alquacil, 2019 N.J. Super. Unpub. LEXIS 2125 (App. Div. October 17, 2019) was whether the Borough would be liable for failure to install an upright crosswalk sign at the intersection.

The Borough had obtained a summary judgment in its favor, arguing that the intersection was not a dangerous condition under the New Jersey Tort Claims Act.  It obtained an expert report that the crosswalk and intersection were not a dangerous condition because the crosswalk was clearly marked with a street light above.  The plaintiff had opposed that motion, arguing that the intersection did not have an upright crosswalk sign, as did the crosswalks on the same road and intersections before and after.

In granting Middlesex’s Motion for Summary Judgment, the trial court judge determined that the lack of the sign could not have been a proximate cause of the accident.  In the defendant’s deposition, the defendant acknowledged that she would “slow down” and be “more careful” upon seeing an upright crosswalk sign.  She was familiar with this intersection, driving this road twice per day and going slowly, because there are many businesses in the area and a lot of people walk there.  She saw the crosswalk lines at the subject intersection.  Hence, the trial court judge found that the fact that there was no upright sign is moot because the defendant testified she was aware of the crosswalk and looked for pedestrians.

Upon appeal, the plaintiff argued that there was a genuine dispute whether the absence of an upright crosswalk sign at the intersection could have been a proximate cause of the accident.  In opposition, Middlesex disputed this argument and also added that the Tort Claims Act sign immunity defense, N.J.S.A. 59:4-5, applied to bar the claim against it. This provision specifically immunizes the public entity “for an injury caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices.”  While the sign immunity defense had not been specifically raised below, the Appellate Division did consider it upon appeal.

The plaintiff acknowledged that the intersection and crosswalk where the accident occurred did not inherently pose “a substantial risk of injury” when “used with due care.”  Plaintiff acknowledged that the crosswalk was appropriately marked and visible to approaching drivers.  Nevertheless, the plaintiff argued that “a reasonable fact finder could conclude the presence of upright crosswalk signs at other adjacent intersections on the road transform this intersection, which lacked a sign, into a dangerous condition under the TCA.”

The plaintiff argued that the Civalier by Civalier v. Estate of Trancucci case applied.  In the Civalier case, there was a missing stop sign due to vandalism, which was an apparent recurring problem in a municipality.  One of the drivers knew there was a stop sign that regulated the intersection and assumed that he had the right of way.  The other driver, however, proceeded into the intersection, resulting in a horrible accident, causing three fatalities and two injuries.

In Ferris, the Appellate Division found that there was nothing in the motion record demonstrating that this intersection in question ever had an upright crosswalk sign and, further, the record was clear that the defendant never relied upon the previous presence of the sign in driving down the road on the night of the accident.  The Appellate Division found that “in the absence of any proof that Middlesex ever placed an upright crosswalk sign at this particular intersection, this case is similar to numerous other cases applying the sign immunity of N.J.S.A. 59:4-5 to defeat a plaintiff’s claim of a dangerous condition of public property.”

The Court further found Middlesex’s decision to place signs at other intersections could not overcome the sign immunity defense, which immunized Middlesex’s discretionary decision not to post an above-ground crosswalk sign at the intersection in question.  The Appellate Division held that without other proof that the crosswalk and intersection formed a dangerous condition, it was appropriate for a trial court to grant summary judgment.  Thus, the Court affirmed the trial court’s order granting summary judgment in favor of the Borough of Middlesex.

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.

Plaintiff Allan Suarez sued Ridgefield Park for damages resulting from injuries he suffered when he claims to have tripped on an uneven portion of a sidewalk across the street from his home.  Ridgefield Park successfully obtained a summary judgment dismissal on the trial court level pursuant to the Tort Claims Act immunities.  In Suarez v. Gallagher, 2019 N.J. Super. Unpub. LEXIS 2003 (App. Div. September 30, 2019), the plaintiff appealed the summary judgment ruling, arguing that he had satisfied the Tort Claims Act requirements so as to be able to pursue the claim against Ridgefield Park.

In the appeal, plaintiff argued that he had satisfied the Act’s notice requirements, that the sidewalk constituted a dangerous condition, and Ridgefield Park’s failure to ameliorate the condition was palpably unreasonable.  The Appellate Division rejected all of these arguments.  First, the Appellate Division addressed the dangerous condition contention.  The Court noted that the sidewalk slabs were alleged to be uneven, with one protruding one and a half inches above the other.  The Appellate Division stated that “uneven sidewalk slabs do not necessarily constitute dangerous conditions as defined by the Act.”  It pointed out that a defect is not a dangerous condition merely because it exists and that an alleged defect must be more than “minor, trivial or insignificant.”  The Court found that a declivity of one or one and a half inches in a sidewalk is a commonplace defect and does not meet the Act’s definition of a dangerous condition.

Second, the Court found that the plaintiff also failed to show that Ridgefield Park had actual or constructive notice of the alleged defect, as required by the Act.  The plaintiff had presented no evidence to suggest that Ridgefield Park received any complaints about the sidewalk.  Instead, the evidence demonstrated that “neither plaintiff, who lived across the street, nor plaintiff’s neighbor whose property abutted the allegedly defective sidewalk, ever uttered a complaint about the sidewalk.”  Further, the Appellate Division rejected the argument that because Ridgefield Park has a shade tree commission and would fix defects when brought to its attention provided a basis for finding it possessed constructive notice of any sidewalk defects that were not brought to its attention.

Thus, the Appellate Division affirmed the trial court’s grant of summary judgment, dismissing the law suit against Ridgefield Park.

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.

Plaintiff Barbara Santopietro alleged that she fell on black ice on the roadway in front of her home in the Borough of Union Beach.  Her husband Gabriel asserted that whenever it rained, large pools of stagnant water formed in front of their home, which he reported to the Borough.  The issue in Santopietro v. Borough of Union Beach, 2019 N.J. Super. Unpub. LEXIS 1551 (App. Div. July 8, 2019) was whether the Borough was entitled to common law snow removal immunity and/or weather immunity under the Tort Claims Act to avoid liability for the plaintiff’s fall if the fall occurred due to ice forming from causes other than a snowstorm.

After the plaintiff’s husband complained to the Department of Public Works about the pools of stagnant water that reoccurred on his street after a rainfall, their road was milled by the Borough.  As a result of these efforts, the reoccurring pooling problem was temporarily eliminated.  The milled road then directed water to a sewer grate, which eliminated the ponding.

About two years later, the road was repaved following the installation of a water main and the pooling in front of their home came back.  There was no drain, and according to Gabriel, it would get bigger and bigger, now coming up their driveway and into their front yard.  Plaintiff fell on black ice while walking to her car and suffered injuries that she claims were caused by this “dangerous condition.”

The Borough argued to the trial court that it had common law snow removal immunity and/or weather immunity under the Tort Claims Act.  Pursuant to N.J.S.A. 59:4-7, public entities have immunity “for an injury caused solely by the effect on the use of streets and highways of weather conditions.”  Also, under the Miehl v. Darpino case, the courts recognize immunity for injuries caused by the snow removal activities of public entities.

The Appellate Division, however noted that the weather immunity statute (N.J.S.A. 59:4-7) did not apply in cases where injuries were allegedly caused by a combination of weather and other factors.  Also, the common law snow removal immunity cases consider claims solely based upon negligent snow removal, independent of any other cause.  If there was conduct that was unrelated to the snow removal activity, the court noted that the cause of action could still be maintained despite this common law immunity.

In this case, the Borough contended that it had snowed two or three days before the plaintiff’s accident and the plaintiff did not observe any water on the ground that morning. The plaintiffs produced an expert report as to the improper road re-pavement after the water line installation. The report claimed that the repaving worsened the water accumulation problem in front of the plaintiff’s home and that the municipality failed to address the flooding and draining problem caused by the improper slope, which lead to the icy condition on the roadway and the plaintiff’s fall.

The Borough argued that it appeared that plaintiff slipped and fell on black ice, which was a result of melting and re-freezing after the Borough’s snowplow plowed the roadway a few days prior to her accident.

The plaintiff’s version, however, was that the sheet of ice was as a result of the pooling on the street that was not resolved by the Borough, as opposed to the result of melting and re-freezing.

The Appellate Division agreed with the plaintiffs that the trial court erred when it held that the Borough enjoyed common law snow removal immunity.  The evidence showed a possible cause for the plaintiff’s injuries other than the Borough’s snow removal efforts.  Not only would the Borough not be afforded immunity under the common law but also it would not have immunity under the Tort Claims Act weather immunity defense.

However, there was no evidence on the record that the Borough had any notice of the icy condition prior to the accident. Under the Tort Claims Act, the plaintiffs were required to establish that the road was in a dangerous condition and that the Borough had actual or constructive notice of this condition within a sufficient amount of time to take protective measures.

Even though the plaintiff’s husband may have complained to the Borough’s mayor that there was still water in front of their house after it was re-paved and that a neighbor may have also informed the mayor about the flooding in front of the house, the notices to the Borough were not about the formation of black ice.  Rather, they were about flooding after a rainfall.  The plaintiff did not slip on a large accumulation of frozen water.  Rather, she slipped on a thin coating of black ice.

Hence, the Appellate Division found that these alleged verbal complaints by the plaintiff’s husband and his neighbor did not put the Borough on notice of the condition that caused the plaintiff’s fall.  Therefore, the Appellate Division did find that the Borough was immune after all, based upon the lack of notice, and affirmed the trial court’s grant of summary judgment to the Borough.

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.