Construction of Monopile Factories in Paulsboro, New Jersey

In anticipation of the proposed offshore wind turbine network in New Jersey, the Mayor of Paulsboro, NJ recently reported that two steel plants to fabricate monopiles are under construction and expected to be completed before the end of 2022. The port-based facility is expected to employ more than 500 people.

The fabrication facility is planned to have four buildings in operation in an area of the port terminal. The South Jersey Port Authority recently filed with the N.J. Department of Environmental Protection for three permits necessary to commence work on the third and fourth buildings.

Capehart Scatchard is ready to assist any company interested locating, purchasing, opening and operating an office, warehouse or and/or manufacturing facility in New Jersey to become part of the expanding offshore wind industry.


Providing Legal Counsel To New York State Funeral Homes Facing Liability – A Brief Overview Of Relevant Issues

Death is one of life’s greatest uncertainties and is often accompanied by fear, discomfort and existentialism. Societal reluctance to discuss death in an open and honest manner often carries real costs by leaving families and friends of the deceased ill-prepared for the untimely deaths of loved ones. In a time of uncertainty and emotional taxation, families spending thousands of dollars on funeral arrangements expect perfection and flawless delivery of contracted funeral services. While errors by funeral homes and service providers in executing these arrangements do happen and can often be resolved with transparent communication, larger mistakes, such as burial of the wrong body, or burial in an incorrect manner, can land funeral service providers in civil lawsuits potentially carrying disastrous consequences. The State of New York has developed a large body of law addressing these civil claims asserted against funeral homes and this law probes a funeral service provider’s conduct in its disposition of the remains of the deceased.

New York recognizes, among other claims, a specific cause of action to recover for funeral home negligence by way of Right of Sepulcher. Generally, common law Right of Sepulcher protects the next of kin’s right to bury the deceased. This common law right was seminally articulated in Rugova v. City of New York where the Court noted that it is the next of kin’s absolute right “to the immediate possession of a decedent’s body for preservation and burial.” The right’s parameters were further articulated in Melfi v. Mount Sinai Hosp., where the Court explained that if a “person unlawfully interferes with that right or improperly deals with the decedent’s body,” damages are awarded against that person “as compensation to the next of kin” for the emotional injury that resulted from their inability to conduct a proper burial.”

The Right of Sepulcher is recognized in New York’s common law, but the State legislature also codified the right under the New York Public Health Law Article 42 (hereafter “NYPHL 42”).  A plaintiff can assert claims under both the common law and NYPHL 42 versions of the right when interference with right to a proper burial occurs. NYPHL 42 deals with cadavers and consists of multiple chapters and subsections discussing these issues.  New York’s Courts have recognized a cause of action under NYPHL 4200 for interference with right to immediate possession of decedent’s body and specifically provides:

Except in the cases in which a right to dissect it is expressly conferred by law, every body of a deceased person, within this state, shall be decently buried or incinerated within a reasonable time after death…The provisions of this section shall not impair the right to carry the body of a deceased person through this state, or to remove from this state the body of a person who has died within it, for the purpose of burying the same elsewhere.

New York Courts have broadly interpreted the issues surrounding this right, and have awarded compensation in the past for violations of the same. The New York judiciary has historically favored plaintiffs in hearing these claims. New York Courts have essentially created a “deluxe package” of the property right in a deceased’s body and disposition, which was first recognized in the case of Larson v. Chase. Over the years, New York Courts have assigned property value in corpses to be protected, allowed for recovery for emotional distress even absent money damages, expanded the right to include body parts and organs and imposed a duty to notify. This “deluxe package” only increased the duties and penalties on hospitals and those who handle the dead.

Typically, practitioners asserting claims on behalf of a deceased’s next of kin in New York Courts will file a civil complaint against a funeral home or funeral service to accuse the entity of negligence, breach of contract, or breach of some other kind of duty. The decision to assert a separate count citing the Right of Sepulcher is a strategic one and some attorneys choose to raise the Right of Sepulcher for the first time in a dispositive motion. As discussed in more detail below, it is of the utmost importance for a plaintiff’s attorney to prove that the funeral service provider failed to act in good faith in carrying out the disposition of the deceased’s remains. The Right of Sepulcher is especially concerned with the lack of good faith conduct and will find for a plaintiff when the same is present.

Given the strength of the Right of Sepulcher and the New York judiciary’s tendency to favor Plaintiffs, it should be noted that the right is not absolute. NYPHL 42 also provides for statutory defenses that New York practitioners defending funeral homes and funeral service providers should seek to invoke. NYPHL 4201 concerns “disposition of remains, responsibility therefore.”  Article 42, Title 7 concerning cemetery and funeral home liability, provides a shield for funeral home liability for:

actions taken reasonably and in good faith to carry out the written directions of a decedent as stated in a will or in a written instrument executed pursuant to this section [and] actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person:

(a) is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section; or (b) that he or she has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section.

This statutory defense places a great deal of emphasis on having the right person control the disposition of the deceased’s remains. For many funeral homes and service providers, this issue of control is a nonfactor as control is not for the funeral service provider to decide and is normally left to the next of kin or to the deceased in preparing a last will and testament. To be afforded this protection, a funeral home must first prove that it took actions in good faith to carry out the directions of a member of the estate who represented that he or she is entitled to control of the disposition of decedent’s remains. The other component of the statute requires the funeral home to request and receive a written statement that such person is either the designated agent of the decedent (designated in a will or written instrument executed pursuant to this section); or that person has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section shown above.

In showing that it acted in good faith in carrying out the instructions the deceased’s designated agent, a funeral home or service provider must establish a fine detailed timeline of events in conducting the disposition. Funeral service providers should be aware that these types of claims function as an examination of their compliance with the statutory requirements under NYPHL 4201. In defending against Right of Sepulcher claims, a timeline showing compliance with NYPHL 4201 and to the designated agent’s instructions by way of the deceased may be the difference in funeral service providers avoiding liability for alleged mistakes.


The New Jersey Appellate Division Revisits the “Relation Back Doctrine”

On March 9, 2022, the New Jersey Appellate Division had occasion to address, reaffirm and further clarify New Jersey’s “Relation Back Doctrine.”  In the unpublished opinion Segal v. Recovery at the Crossroads v. Gitelis, 2022 WL 701907, the Appellate Division applied the Relation Back Doctrine to a counterclaim filed well past the applicable statute of limitations that the Court found to be germane to the timely filed Complaint.

Third-Party Defendant Michael Gitelis (hereafter “Gitelis”) was admitted to the Recovery at Crossroads facility after showing signs of violent and erratic behavior. However, on or about December 6, 2017, he signed his against medical advice (hereafter “AMA”) discharge from the facility. After becoming agitated and threatening self-harm, Gitelis left the Crossroads facility by stealing an employee’s vehicle. Local police were alerted and eventually found Gitelis walking along the side of a local road and requesting a “second chance” for treatment at Recovery at Crossroads. He was once again admitted.

Thereafter, Gitelis continued to engage in threatening behavior and demanded he be discharged a second time. As the Appellate Division noted, upon Gitelis’ second discharge:

it should have been abundantly clear that he required a police escort lest he pose a danger to himself and/or others. No police nor law enforcement were contacted[,] despite Mr. Gitelis … displaying threatening behavior towards other people, and a lawful duty to do so was required by the New Jersey Duty to Warn Law, and/or be involuntarily committed as required by law.

Gitelis would go on to steal yet another vehicle and “went on a rampaging crime spree, during which he attacked and seriously injured [Plaintiff Segal] in an attempt to rob her on December 7, 2017, while in Brooklyn, New York.” Plaintiff was reportedly seriously and permanently injured as a result of the attack by Gitelis.

Plaintiff, Eileen Segal, filed her Complaint stemming from these December 7, 2017 events on December 3, 2019, only four days before the expiration of the Statute of Limitations on her claims. The Complaint named Recovery at the Crossroads, Behavioral Crossroads Recovery, LLC, Behavioral Crossroads, LLC and Deena Lefkovits (hereafter “Crossroads Defendants”) as Defendants, but omitted naming Gitelis among the Defendants. Instead, Plaintiff merely alleged that Gitelis was admitted as a patient at the Crossroads facility on or about December 4, 2017 until he was discharged pursuant to signing his AMA for a second time on December 7, 2017.

On April 24, 2020, the Crossroads Defendants were granted leave to file a Third-Party Complaint against Gitelis, which was filed on May 1, 2020. After the Court dismissed the Third-Party complaint for lack of prosecution, the Court signed a Consent Order on March 19, 2021, reinstating the Third-Party Complaint and permitting Gitelis to file an Answer.

On April 1, 2021, Gitelis filed his Answer to the Third-Party Complaint, setting forth eleven separate defenses and a counterclaim against the Crossroads Defendants. The allegations in the counterclaim “closely mirrored the allegations set forth in Plaintiff’s complaint, alleging that the [Crossroads Defendants] failed to screen Gitelis for mental illness and involuntary commitment, resulting in his discharge at a time when he was a danger to himself and to others.” Gitelis also alleged that the Crossroad Defendants “violated the standard of care for facilities … trained to evaluate and treat mental health issues as well as substance abuse issues” and as a result, the Crossroad defendants “caused injury to [Gitelis] and others.”

After the Crossroads Defendants filed their Answer to Gitelis’ counterclaim, they promptly filed a Motion for Summary Judgment, asserting that the counterclaim was barred by the statute of limitations. Gitelis opposed the motion, asserting that his counterclaim was timely in the context of the litigation pursuant to the “relation back” principles set forth in New Jersey Court Rule 4:9-3.

The Trial Court denied the Motion for Summary Judgment and listed several factors leading to its decision. Among its reasons for denying the Motion, the Court noted:

(1) plaintiff’s original complaint was timely filed; (2) plaintiff’s complaint alleged that the Crossroad defendants failed to screen Gitelis for mental illness and involuntary commitment, leading to his discharge and the subsequent injury of plaintiff; (3) the counterclaim pled by Gitelis ‘relates back [to] the claims of the original complaint as both arise from the same conduct and occurrences’; and (4) because the counterclaim ‘relates back’ to the date of plaintiff’s complaint, it is not barred by the statute of limitations.

The Trial Court also found that genuine issues of material fact existed regarding Gitelis’ counterclaim and that a rational fact finder could resolve this matter in his favor. The Crossroads Defendants were then granted leave to file an interlocutory appeal.

On appeal, the Crossroads Defendants argued that the Trial Judge erred in denying their Motion for Summary Judgment, asserting that the “Relation Back Doctrine” did not apply because Gitelis’ counterclaim was affirmative in nature, and therefore was not a “germane” counterclaim. As such, Crossroads Defendants concluded that the two year Statute of Limitations bars Gitelis’ counterclaim. The Appellate Division disagreed, indicating that:

Rule 4:7-1 provides that, ‘a pleading may state as a counterclaim any claim against the opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.’

Comments to Rule 4:7-1 provide support for the motion judge’s decision by stating:

Although this rule does not expressly so state, ordinarily a germane counterclaim will not be barred by the statute of limitations if the complaint itself is timely. A germane counterclaim is conceptually akin to an amended pleading that states a claim or defense arising out of the same conduct, transaction, or occurrence as the original claim, and R. 4:9-3 expressly provides for relation back in that situation. The only difference is the identity of the party raising the germane claim, and it would seem to make little functional difference whether a party amends his own pleading to add a germane claim or if the adverse party responds with a germane claim. The policy of the statute of limitations is no more offended in one case than the other.

See Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:7- 1 (2022).

Thus, the Appellate Division held that for a germane counterclaim to “relate back” to the filing of the original Complaint, “the following conditions must be met: (1) the original complaint must have been timely filed; and (2) the counterclaim must ‘arise out of the same conduct, transaction, or occurrence as the original claim.’” See also R. 4:7-1, at cmt. 4; R. 4:9-3.

The Appellate Division explained that in Molnar v. Hedden, 260 N.J. Super. 133 (App. Div. 1992), rev’d on other grounds, Molnar v. Hedden, 138 N.J. 96 (1994), in an opinion by Judge Pressler, the filing of a germane counterclaim is permitted after the expiration of the statute of limitations under the “relation-back” doctrine.  Id. at 140. Judge Pressler opined that:

the ‘relation back’ doctrine could permit the filing of a counterclaim after the expiration of the statute of limitations:

Application of our well-settled and liberal jurisprudence dictates that a counterclaim arising out of the same transaction as pleaded by the complaint and therefore meeting the test of R. 4:9-3 – that is to say, a litigation component embraced by the entire controversy doctrine – is eligible for the relation back principle of the rule and consequently for protection from the limitations bar.

However, after the Supreme Court reversed Molnar on other grounds, this left in question whether a germane counterclaim “relates back” to the original complaint when that counterclaim was filed outside the applicable limitations period. Molnar, 138 N.J. at 105. The Supreme Court in Molnar specified that “Because we find nothing to which defendant’s amendment can relate back, we save such a determination for a case that provides the proper factual support.”

Therefore, the Appellate Division in Segal was satisfied that this case provided the proper factual support found lacking by the Supreme Court in Molnar. Plaintiff’s timely-filed Complaint remained pending when Gitelis filed his first responsive pleading asserting his counterclaim. Gitelis’ counterclaim was clearly “germane” to the claims set forth in Plaintiff’s Complaint, where she asserted causes of action arising out of “the failure of the Crossroads Defendants to respond appropriately to the dangerous and threatening behavior exhibited by Gitelis during his two stays at their facility, including the failure to notify the police after Gitelis’ second departure from their facility.”

Satisfied that it could now affirm the New Jersey Supreme Court’s reasoning in Molnar with the proper factual background in place, the Appellate Division found that Gitelis’ counterclaim was germane to Plaintiff’s Complaint and applied the relation back doctrine accordingly. Thus, this unpublished opinion will be useful precedent in articulating the factors which a party must establish in order to invoke the “Relation Back Doctrine.”


PA Judge Cuts Plaintiff’s Damages From $7,000,000 To $250,000 Following SEPTA’s Successful Post-Trial Motion

In October 2017, a Southeastern Pennsylvania Transportation Authority (SEPTA) bus struck Hayley Freilich as she was walking within the crosswalk at the intersection of Broad Street and Vine Street in Philadelphia, Pennsylvania. The collision would cause Freilich to suffer permanent bodily injuries necessitating extensive medical treatment.  Nearly five year after the collision and subsequent lawsuit filed against SEPTA, Freilich’s cause of action continues on as her originally stipulated damages of approximately $7 million dollars has been reduced to a mere $250,000 despite SEPTA’s admission of negligence.

The original dispute in Freilich v. Se. Pa. Transp. Auth. concerned whether or not SEPTA was negligent in causing Freilich’s injuries. In a stipulated verdict, the parties reached an agreement whereby SEPTA admitted that its driver was negligent in causing Plaintiff’s injuries and the parties stipulated to award Freilich $7,000,000.

However, following the award, SEPTA filed a post-trial motion to mold the verdict, citing the Sovereign Immunity Act (hereafter “the Act”). The Act provides for limitations on liability for “Commonwealth parties” when those parties have acted in a negligent manner. Notably, the Act provides that liability may be imposed on the Commonwealth and the defense of sovereign immunity is inapplicable to claims for damages caused by:

The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, motor vehicle’ means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

42 Pa. C.S.A. § 8522(b)(1)

The Act further provides that while liability may be imposed on the Commonwealth for the negligence of one of its motor vehicle operators, a plaintiff’s recovery against that Commonwealth party will be limited. 42 Pa. C.S.A. § 8528(b) specifically mandates that “damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $ 250,000 in favor of any plaintiff or $ 1,000,000 in the aggregate.” Id.

With this statutory precedent governing in Pennsylvania, in March of 2022, Judge Crumlish, the post-trial motion judge, granted SEPTA’s motion to mold the verdict and reduced Freilich’s damages to $250,000 in accordance with 42 Pa. C.S.A. § 8528(b). Despite agreeing that the reduction was a “profound economic inequality,” Judge Crumlish explained he had a “prescribed role” based on the Act and was without judicial discretion. He noted that unless and until the Pennsylvania Supreme Court accepted the case and reached a different conclusion, he was bound by precedent.

It has long been argued that Pennsylvania’s statutory damages cap for Commonwealth parties is too low and does not provide adequate redress for the negligence of Commonwealth actors. In fact, in Zauflik v. Pennsbury School District, the Pennsylvania Supreme Court invited the State legislature to review the Act and consider raising the statutory limits on damages. Again, in 2019, the Supreme Court extended this invitation following its decision in Grove v. Port Authority of Allegheny County. There, the Court recognized the difficulties presented by the $250,000 damages limit and its tendency to be inequitable and bordering on unconstitutional in some cases where damages should vastly exceed $250,000.

In an effort to increase the $250,000 limit, Freilich’s counsel sought certiorari in 2018 from the State Supreme Court, but the Court declined to grant the petition. Freilich’s counsel recently appealed to the State Supreme Court aiming to increase the current limit prescribed for all cases of this nature. Freilich’s counsel feels as though her case is the exact situation that the Pennsylvania Supreme Court in Grove feared and that her Constitutional rights have been violated leaving her without proper redress in the wake of steep medical bills and attorneys fees. For now, Freilich and all similarly situated plaintiffs can only wait patiently for the State legislature to accept the Pennsylvania Supreme Court’s invitation to act and raise the limit of statutory damages.


N.J. Supreme Court Rules that OPRA Requires Disclosure of Settlement Agreements with Public Employees

Co-Written by: Becky Batista, Law Clerk.

On March 7, 2022, the New Jersey Supreme Court reversed a decision by the Appellate Division in Libertarians and Transparent Government v. Cumberland County and determined that a settlement agreement between a former corrections officer and his employer, Defendant Cumberland County (“County”) is subject to disclosure under the Open Public Records Act (“OPRA”).

Plaintiff sought a settlement agreement wherein the former County corrections officer admitted to “improper fraternization” with two female inmates and bringing contraband into the jail. Plaintiff requested this agreement and specific information about the officer’s separation of employment pursuant to OPRA. The County rejected the request, claiming it was exempt from disclosure as a personnel record. In lieu of the actual settlement agreement, the County provided Plaintiff with the reason for the officer’s separation of employment in writing. The reason given was inaccurate, which prompted Plaintiff to file suit in Superior Court. The trial court agreed with Plaintiff and ordered the release of the settlement agreement with redactions.  The Appellate Division reversed.

The New Jersey Supreme Court overturned the Appellate Division and agreed with Plaintiff. The Court required disclosure of the settlement agreement with appropriate redactions. OPRA grants the public access to government records unless it is exempt from disclosure under the statute. The Court reasoned that redactions must be made to parts of a document that are exempt from public access before disclosing a government record. Under section 10 of OPRA, most personnel records are exempt, but the statute provides three exemptions to consider. Here, the Court focused on the first exemption, which expressly states that “an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be government record.”

The Court recognized that part of the settlement agreement that Plaintiff sought contains information covered by section 10’s first exemption and noted that records which contain details specified in section 10’s first exemption must be made available after appropriate redactions. The Court stated, “Without access to actual documents in cases like this, the public can be left with incomplete or incorrect information. . . . [A]ccess to public records fosters transparency, accountability and candor.”

Public employers must be mindful of this ruling, as they cannot withhold the entirety of a settlement agreement entered with one of their employees.


Minor’s Parent’s Portee Claim Against Public Entity Tolled For The Duration Of The Minor’s Tolling Period

On November 15, 2019, plaintiff Angela Tennant and her minor son, Micah Dunmore, were attending a high school football game when an individual fired a gun into the stands, striking and injuring Micah.  Angela was a witness to the events and, tragically, Micah died from his injuries five days later.  Ninety-one days after the shooting and eighty-six days after Micah’s death, his Estate, his mother Angela and other family members sent a notice of tort claims to the defendant Board of Education, asserting wrongful death and survivor claims.  Additionally, the minor’s mother, Angela, asserted a claim for negligent infliction of emotional distress under Portee v. Jaffee for her injuries allegedly suffered in witnessing the shooting of her son.  The issue in the published Appellate Division Estate of Dunmore case (2022 N.J. Super. LEXIS 7 (App. Div. Jan. 20, 2022)) was whether the tort claims notices were timely filed.

This matter arose, as a result of the Estate filing a motion seeking a declaratory judgment that the tort claims notice was timely filed.  The Board conceded that the wrongful death claims did not accrue until Micah died on November 20, 2019.  Thus, the tort claims notice filed by the Estate and the family members as beneficiaries of the Estate was timely filed.

However, the issue was whether the tort claims notice for Angela’s emotional distress claim under Portee was timely filed.  At the trial court level, the judge deemed Angela’s claim timely filed, indicating that the tort claims notice of February 14, 2020 was filed within ninety days or within three months of the date of the accrual of the cause of action.  The Board appealed that decision, pointing out that Angela’s tort claim was filed actually ninety-one days after the shooting.

The Appellate Division found that the tort claims notice was timely filed, but for different reasons than expressed by the trial court.  First, the Appellate Division noted that the 90 day deadline to file a tort claims act notice under N.J.S.A. 59:8-8 is not equivalent to three months.  The ninety day deadline is specific under the statute and “[t]here is no doubt that when the Legislature said ninety days it meant ninety days and not three months.”

Angela’s Portee claim accrued on the day of the shooting.  Hence, the Board argued that filing her tort claims notice ninety-one days after the shooting meant it was filed late.

In response, Angela argued that because Micah’s time to file a notice of tort claim and complaint was tolled under N.J.S.A. 59:8-8, the time to file her Portee claim should also be tolled for the same period of time.  She relied on the tolling period accorded to a parent’s claim under the statute of limitations provision in N.J.S.A. 2A:14-2.1.

The Appellate Division noted that the time to file a negligence action is governed by the two year statute of limitations set forth in N.J.S.A. 2A:14-2.  However, N.J.S.A. 2A:14-2.1 permits an exception for a parent filing a claim for damages suffered by him because of an injury to a minor child.  In such a situation, the statute extends the time period of a parent to file a claim to the same period of time as provided by law in the case of a minor child so injured. This statutory provision preserves the parent’s claim until the child brings their claim.

Here, the wrongful death claims of the minor did not accrue until Micah died on November 20, 2019.  Thus, his Estate had ninety days from November 20, 2019 to file a tort claims notice and two years from that same date to file a lawsuit.

Thus, under the statute of limitations provision in N.J.S.A. 2A:14-2.1, the time for Angela to file her own lawsuit for her individual claims of emotional distress (under Portee) was also tolled until the Estate instituted suit.

The Court noted, however, that N.J.S.A. 59:8-8 was silent as to whether Angela’s ninety day deadline to file a tort claims notice for her Portee claim, arising from her witnessing of the shooting and injury to Micah, was also tolled.

Under prior case law, it had been established that the “savings provision” under N.J.S.A. 59:8-8 tolls the requirement for a minor to file a tort claims notice until ninety days after the minor’s 18th birthday.  The Appellate Division noted that there was no precedent squarely on point stating N.J.S.A. 59:8-8 also permits the tolling of a parent’s Portee claim.

The Court found that if a parent’s Portee claim arising out of their child’s injury was not also tolled, “it would result in the absurd situation that the parent’s cause of action would likely be brought before a judge and a jury for trial, perhaps years or decades before the child’s lawsuit was initiated.”  The Appellate Division noted that this result would run “contrary to the principles underlying the entire controversy doctrine and promoting judicial economy.”

Thus, the Appellate Division found that the time to file a notice of tort claim must also be consistent concerning a parent and a child.  The Court held that if a minor’s time to file a notice is tolled under N.J.S.A. 59:8-8 and a parent’s time to file a lawsuit regarding their claims is tolled as long as the child’s claim is tolled, “then the time for a parent to file a tort claims notice must also be tolled.”  In considering the two pertinent statutes, the Appellate Division concluded that “the tolling of a notice of tort claim must also be extended for a parent’s Portee claim to promote uniformity and predictability.”

Finally, the Appellate Division noted that Micah’s time to file a notice of tort claim was tolled until he died on November 20, 2019.  Thus, his mother Angela’s emotional distress Portee claim was also tolled until that date.  She filed a notice of tort claim eighty-six days later, which meant that her notice was timely filed under N.J.S.A. 59:8-8 and, hence, she would be permitted to pursue her claim.


Court Finds City Not Liable For Plaintiff’s Injury Suffered From Stepping Into Pothole

Plaintiff Giani Petty broke her ankle when she stepped into a pothole on a residential street in Newark.  The plaintiff sued the City of Newark for her injuries suffered as a result of the fall. The issue in Petty v. City of Newark, 2021 N.J. Super. Unpub. LEXIS 3122 (App. Div. Dec. 20, 2021) was whether the City was immune under the allocation of resources defense found in the Tort Claims Act.

In defending the case, the City relied upon the immunity found in N.J.S.A. 59:2-3(d) “which affords discretion to municipalities to allocate limited resources – in this instance, the resources available to identify and repair potholes.”  The trial court found that this immunity did apply and further it found that the plaintiff “did not demonstrate that the City’s failure to repair the pothole she stepped in was palpably unreasonable.”

The Appellate Division agreed with the trial court that “the City’s decision to repair potholes within limits of its budgetary allocation for street maintenance was not palpably unreasonable.”  The City was able to present evidence that the Mayor and council approved an annual budget that allocated resources for street maintenance.  Additionally, the discovery included the deposition of the Supervisor of street repairs who explained the process by which the City identified potholes and prioritized repair efforts using available resources.  The City’s asphalt crew and Supervisor exercised their discretion by submitting daily pothole repair reports that detailed their plan each day to identify and fix potholes.

The Appellate Division noted that the Tort Claims Act provides immunity to a public entity which “is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a Court concludes that the determination of the public entity was palpably unreasonable.”

Here, the Court noted that the City did exercise its discretion in choosing which potholes to fix on a given day from “the large universe of potholes” that form on its streets.  The Appellate Division noted that there was nothing in the record which supported the plaintiff’s argument that the City’s exercise of discretion was palpably unreasonable for failing to fix this particular pothole that the plaintiff stepped in.

As an example, the record did not show that the City received complaints regarding that specific pothole.  The Appellate Division noted that the City’s efforts to “prioritize the remediation of potholes” was not perfect but it was not so “palpably unreasonable” as to defeat its entitlement to tort claims immunity under N.J.S.A. 59:2-3(d).   Thus, the Appellate Division agreed that the City enjoyed immunity under this statutory provision and affirmed the dismissal of the plaintiff’s complaint.


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 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.


5 New Year’s Resolutions For Your Workplace In 2022

With 2022 around the corner, employers are presented with a wonderful opportunity to review internal policies/procedures and hopefully help avoid future workplace legal problems.  Here are five suggested New Year’s Workplace Resolutions for 2022.

  1. When was the last time your employee handbook was reviewed and updated? Policies and procedures need to be revised periodically to keep current with ongoing changes in the law, especially in a place like New Jersey, where it is frequently the case that new laws and decisions impose new legal requirements. Therefore, 2022 presents a great opportunity for employers to review handbook polices and bring them up to speed with any recent legal changes that impact your workplace, or to reflect changes in your workplace because of adjusting to doing business in a pandemic, i.e. work from home policies. Alternatively, if you do not have one yet, the upcoming new year provides a wonderful chance for your workplace to reap the benefit of having all relevant workplace policies stored in one collective document. Relatedly, when was the last time you conducted anti-harassment training for your workforce? While the pandemic has made this harder to do, virtual trainings are a great way to continue to meet all mandated employee training requirements.
  2. When was the last time your job descriptions were reviewed and updated? Job descriptions are very important, especially in gauging compliance with mandated accommodation requirements for persons with disabilities under both federal and state discrimination laws.  Ask yourself: do your job descriptions accurately reflect what an employee actually does in his/her job today?  Because courts often rely on how an employer defines the essential job functions of an employment position in assessing disability discrimination and failure to accommodate issues, it is important that employers maintain updated job descriptions so there will be a point of reference if any issues arise as to what the essential functions of a job position are for accommodation purposes. Moreover, just like employee handbooks, if you do not have job descriptions today, the beginning of the upcoming year is a good time to commence preparing them.
  3. Are your employee leave policies up to date? It is important under both federal and state leave laws that leave policies are accurate and current. One of the most effective ways of meeting this requirement is having updated leave policies in an employee handbook, so use the beginning of next year to check that such policies are accurate and up to date.
  4. When was the last time you conducted an audit of your payroll practices? One of the chief concerns to examine here is ensuring that all your employees are properly classified as exempt versus non-exempt employees for purposes of their proper compensation under federal and state wage and hour laws. It is always a good idea for an employer to do a quick review of employment classifications each year in case changes need to be made based upon any modifications in employee job responsibilities.
  5. Are you properly performing background checks on current and prospective employees? Remember, there are strict requirements concerning how such background checks are conducted under not only the Fair Credit Reporting Act but also under relevant federal employment discrimination laws such as Title VII. Several years ago, the Equal Employment Opportunity Commission issued a detailed compliance guidance on how the results of a background check can be utilized in assessing a person’s suitability for employment, and New Jersey also passed its own restrictions, i.e. Ban the Box rules, so it is important that all background check policies meet these requirements.
  6. And here is a bonus suggestion for you. Mandatory COVID vaccination requirements are still in flux. The OSHA rule for companies with 100 employees is no longer stayed, and the agency has advised that it will start investigating employers for compliance on January 10, 2022. (Public federal contractor and health care mandates are still subject to court orders barring enforcement of such standards to some degree.)  This means that employers need to start taking steps to meet the requirements of the OSHA mandate-by either collecting proof of employee vaccinations or ensuring weekly testing for employees. Remember also that disability and possible religious exemptions are potentially available to vaccination requirements and employers need to understand how to address such issues.

In sum, the upcoming new year provides a wonderful opportunity for employers to proactively evaluate internal policies and procedures to make 2022 a legally problem free year in your workplace.

A Happy and Healthy New Year to All and please continue to stay safe!!


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.


Amended NJLAD Offers Greater Protections to Older Workers

On October 5, 2021, Governor Phil Murphy signed a new law that greatly expands the protections afforded to older workers under the New Jersey Law Against Discrimination (“NJLAD”) These Amendments took effect immediately, meaning older workers are now already afforded these enhanced protections against workplace discrimination. As a result, employers today must promptly reevaluate both their hiring practices and any policies requiring that older workers retire when they reach a prescribed age.

The scope of the recent amendments is broad, and change the protections already afforded to older employees under the NJLAD in the following significant ways:

  • Repeals Section 11 of the NJLAD which allowed employers to refuse to accept for employment or to promote individuals over 70 years old. The elimination of this provision broadens employment opportunities for older individuals over 70 years of age, and as a practical matter, means that age can no longer be used as a factor in the hiring or promotion process.
  • Amends Section 5 of the NJLAD that limited the remedies applicable when an employee claimed that he/she was unlawfully forced to retire. Before this law, those employees were required to file a complaint with the Attorney General and relief was limited to reinstatement with back pay and interest. The revised provision now makes available all of the remedies provided by “any applicable law,” subjecting employers who engage in such age discrimination to greater risk of legal exposure through these enhanced remedies.
  • Eliminates the statutory provision that permitted government employers to force mandatory retirement at a certain age if the employer could show “that the retirement age bears a manifest relationship to the employment in question.” Now, government employers must continue to provide employment opportunities to older workers as long as the employees can perform their official duties and responsibilities.
  • Repeals Section 4 of the NJLAD which previously stated that “an employee who has attained 70 years of age who is serving under a contract of tenure or similar arrangement providing for tenure at a public or private institution of higher education may, at the option of the institution, be required to retire.” Under this amendment, mandatory retirement policies based on age at higher education institutions are now no longer permitted.

One question that was prominent upon the passage of these amendments   was how this new law would apply to well established mandatory retirement requirements that applied to certain categories of public employees. Significantly, the new law does not change the mandatory requirement age of 70 for State court judges at any level or for police and fire departments.

In light of these recent changes, employers should review all relevant employment policies to ensure that those policies remain consistent with these new legal requirements and do not run afoul of the added protections for older employees under the newly revised NJLAD.


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.


United States Supreme Court Reaffirms the Defense of Qualified Immunity as Applied in Constitutional Excessive Force Cases

The United States Supreme Court has taken two opportunities to reaffirm the use of the defense of qualified immunity as applied to police officers who have been sued for civil rights violations pursuant to 42 U.S.C. § 1983. On October 18, 2021, the Court rendered decisions in City of Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (U.S. Oct. 18, 2021) and Rivas-Villegas v. Cortesluna, 2021 U.S. LEXIS 5311 (U.S. Oct. 18, 2021) in which both claimants alleged that responding officers violated their respective constitutional rights by using excessive force. The issue in both cases was whether the rights that the claimants alleged to have been violated by the officers were “clearly established” such that the officers were given fair notice that their conduct was in violation of 42 U.S.C. § 1983.

The Supreme Court’s analysis in these recent decisions centered on the doctrine of qualified immunity and the doctrine’s protection of officers from civil liability so long as the officers’ conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Court explained that the doctrine of qualified immunity will be applicable to “all but the plainly incompetent or those who knowingly violate the law.” The Court also reiterated that lower courts must not “define clearly established law at too high a level of generality.” A general rule or a rule of law suggested by then-existing precedent will not be sufficiently “clearly established.” Rather, the Supreme Court reasoned that “rule’s contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” While a jurisdiction’s precedent need not be directly on point with the facts of a given situation, the statutory or constitutional question must be beyond debate. As the Court noted, these principals are particularly critical in Fourth Amendment excessive force situations and the Court will decline to follow a jurisdiction’s precedent that does not meet this “clearly established” criteria.

In Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (U.S. Oct. 18, 2021), Officers Josh Girdner, Chase Reed and Brandon Vick responded to a call from a woman claiming that her ex-husband, Dominic Rollice, entered her home’s garage and would not leave. The officers met Rollice at the side door of the garage and spoke to him from a distance. Rollice appeared nervous and when Officer Girdner took a step toward Rollice, Rollice turned and walked toward the back of the garage where his tools had been stored. Officers followed from six feet away, ordering Rollice to stop as he proceeded to pick up a hammer. Rollice held the hammer as if he were going to swing it and the officers drew their guns ordering Rollice to drop the hammer. When Rollice raised the hammer over his head and took a stance as if he were about to throw the hammer or charge the officers, Officer Girdner and Officer Vick fired their weapons and killed Rollice. The incident was captured on body camera footage.

Officers Girdner and Vick, among others, were sued by Rollice’s estate pursuant to 42 U.S.C. § 1983 for an alleged violation of Rollice’s Fourth Amendment rights. The officers filed a motion for summary judgment on the merits of the case, arguing the defense of qualified immunity, which motion the District Court granted by finding that the use of force was reasonable and even if it was not, qualified immunity was applicable.

The Court of Appeals for the Tenth Circuit reversed the District Court’s decision. The Tenth Circuit reasoned that its precedent allows an officer to be held liable for a shooting that is objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring the deadly force. With this situation, the Appeals Court believed that the officers stepping toward Rollice and essentially cornering him in the garage recklessly necessitated the use of deadly force. Further, the Tenth Circuit, relying on Allen v. Muskogee, 119 F. 3d 837 (10th Cir. 1997), found that the officers’ conduct in this case was clearly established as unlawful. In Allen, officers responded to a potential suicide call by rushing toward a parked car, screaming at the suspect and attempting to physically wrestle a gun from his hands.

Upon appeal, the United States Supreme Court reversed the Tenth Circuit’s decision. The Court did not believe it needed to decide whether the Fourth Amendment was violated or whether the officers recklessly created a situation requiring deadly force. Instead, the Court held that the officers did not violate any clearly established law in the jurisdiction which would put them on notice that their conduct was unlawful. The Court distinguished this case from the facts in Allen in that the officers here engaged in a conversation with Rollice, stayed six feet away from him the entire time and did not yell at him until he picked up the hammer. Based upon these facts, the Court reasoned that Allen did not “clearly establish” the officers’ conduct as reckless or excessive. After dismissing the remainder of the cases relied on by the Tenth Circuit, the Supreme Court held that a reasonable officer could miss the connection between the Allen case and the present case, which led it to reverse the Tenth Circuit. The Supreme Court stressed the importance of jurisdictions defining clearly established law with specificity so that an officer applying the legal doctrine to a factual situation will have sufficient guidance.

Similarly, in Rivas-Villegas v. Cortesluna, 2021 U.S. LEXIS 5311 (U.S. Oct. 18, 2021, Officer Daniel Rivas-Villegas, among other officers, was called to the scene of an incident where a woman and her children were barricaded in a room in fear of claimant, Ramon Cortesluna. The police dispatcher informed Officer Rivas-Villegas that Cortesluna was believed to be using a chainsaw. Officers knocked on the door, announced their presence and demanded Cortesluna to come to the door. Officers demanded that Cortesluna drop his weapon, and he complied by dropping the weapon and following commands to raise his hands and walk toward the officers. One of the officers identified a knife protruding from Cortesluna’s front left pocket, and the officers again demanded that Cortesluna keep his hands raised. When Cortesluna dropped his hands, he was shot twice with a beanbag shotgun and complied with an order to get on the ground. Officer Daniel Rivas-Villegas then straddled Cortesluna, placing his right foot next to Cortesluna’s right side and placing his left knee on Cortesluna’s back for “no more than eight seconds.”

Cortesluna later filed suit against Officer Rivas-Villegas pursuant to 42 U.S.C. § 1983, claiming Officer Rivas-Villegas’ actions constituted excessive force in violation of the Fourth Amendment. The District Court granted Officer Rivas-Villegas’ motion for summary judgment, based on the doctrine of qualified immunity, but the Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit held that Officer Rivas-Villegas was not entitled to qualified immunity because Ninth Circuit precedent “put him on notice that his conduct constituted excessive force.” This holding was only supported by LaLonde v. County of Riverside, 204 F. 3d 947 (9th Cir. 2020) in which police pushed their way into a man’s home following a noise complaint, wrestled him to the ground, pepper sprayed him and dug a knee into his back causing permanent damage. The Ninth Circuit panel reasoned that since both respondent in LaLonde and Cortesluna were lying face down on the ground and not attempting to resist arrest, the officer’s knee in the backs of both men constituted excessive force.

This decision was appealed to the United States Supreme Court, which reversed the Ninth Circuit decision. The Court ruled that even if Ninth Circuit precedent clearly established law concerning excessive force in violation 42 U.S.C. § 1983, the LaLonde decision did not give Officer Rivas-Villegas reasonable notice that his conduct constituted excessive force, making qualified immunity for Officer Rivas-Villegas proper. The Court explained that “qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable official would have understood that what he is doing violates that right.” A right is “clearly established” where it is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.

The Court reasoned that a jurisdiction need not have a case directly on point with the facts of any given situation for a right to be “clearly established,” but the statutory or constitutional question must be beyond debate. Specifically, in cases of alleged Fourth Amendment violations, excessive force will be evaluated by considering the facts and circumstances of the case, the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers and others and whether the suspect is actively resisting arrest or attempting to flee.

Against this background, the Supreme Court reasoned that Cortesluna was required to, and ultimately did not, point to a controlling case in the jurisdiction which would put Officer Rivas-Villegas on notice that his conduct constituted excessive force. The Court stated that the facts of LaLonde were materially distinguishable from the present case in that the LaLonde decision was based on a noise complaint where the suspect was unarmed and generally not considered dangerous or resisting at the time of his apprehension. A knee was deliberately dug into his back despite a lack of resistance and the absence of a weapon. Cortesluna, on the other hand, was a suspect in a potential domestic violence incident in which he was reported to be using a chainsaw and was found armed with a knife. Officer Rivas-Villegas placed his knee on Cortesluna’s back for no more than eight seconds. Thus, in the absence of any similar case that would put Officer Rivas-Villegas on notice that his conduct constituted excessive force, qualified immunity was proper.


Patrick J. Graham, Esq. focuses his practice in litigation through the federal and state courts of New Jersey, with a concentration on creditor’s rights, business collection, tort defense, premises liability and products liability defense, Tort Claims Act defense, construction, estates, employment and professional malpractice. Prior to joining Capehart, Patrick was a Judicial Law Clerk to the Honorable Jean S. Chetney, J.S.C., New Jersey Superior Court, Law Division-Civil Part, Salem. He also served as a Judicial Extern for the Honorable Michael J. Haas, J.A.D., New Jersey Superior Court, Appellate Division, Westmont.

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