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Supreme Court Found Question of Fact as to Whether Police Officer Entitled to Qualified Immunity for Shooting of Plaintiff

The plaintiff Bryheim Jamar Baskin claimed that a justifiable police chase ended in an unjustifiable police shooting due to the use of excessive force in violation of the Federal Constitution.  The issue decided by the New Jersey Supreme Court in Baskin v. Martinez, 243 N.J. 112 (2020) was whether the defendant Detective Rafael Martinez, who chased and eventually shot Baskin, was entitled to qualified immunity and, hence, a dismissal of the lawsuit on a summary judgment basis.

Certain facts were undisputed.  The police chased 20 year old Baskin after he crashed his car into an unmarked car occupied by Detective Martinez.  Baskin fled on foot with a handgun, which he discarded out of Martinez’s sight.  Thereafter, Baskin found himself trapped in a walled yard with no way to escape.  It is at that point, that the facts become disputed.

According to Baskin and an eyewitness, Baskin put his hands up above his head and turned toward the pursuing police officer with his palms open and no weapon.  He claims that he made no gesture that he was reaching for a weapon and that he posed no threat.  Baskin and the eyewitness state that Baskin’s hands were in the air in a sign of surrender when Detective Martinez shot him in the abdomen, causing serious and permanent injuries.

On the other hand, Detective Martinez asserts that when Baskin finally came into sight, he turned and pointed in the detective’s direction with an object that looked like a gun.  Detective Martinez claimed that he feared for his life and, only at that time, did he discharge his weapon.  There was no handgun found where Baskin fell.  There were two cell phones located nearby.

Based upon these facts, the trial court granted Detective Martinez qualified immunity and dismissed Baskin’s §1983 action.  A split three judge Appellate Division panel reversed and reinstated the case.  Due to the dissent in the Appellate Division, the issue of whether Detective Martinez was entitled to qualified immunity came to the Supreme Court as an appeal as of right.

The Supreme Court did affirm the Appellate Division majority, but it was a split decision of a 4-3 vote.  Regardless, the Supreme Court affirmed the Appellate Division, finding in favor of the plaintiff on a summary judgment basis.

The Court noted that it must accept as true the testimony of Baskin and the independent eyewitness, who both stated that Baskin’s hands were above his head, in an act of surrender when Detective Martinez shot him.  Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force.  The use of deadly force is prohibited against a non-threatening and surrendering suspect.  Hence, the Supreme Court concluded that Detective Martinez was not entitled to qualified immunity on a summary judgment basis.

The Court discussed what was needed to establish qualified immunity, which is as follows:

1.Whether the evidence, viewed in the light most favorable to the plaintiff, establishes that the official violated the plaintiff’s constitutional or statutory rights; and

2.Whether the right allegedly violated was “clearly established” at the time of the officer’s actions.  A right would be clearly established “if it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Further, the Court pointed out that under the qualified immunity case law, the Court is required not only to view the evidence in the light most favorable to the plaintiff but also to draw all reasonable inferences in his favor that are supported by the summary judgment record.  Based upon the facts, the Court cannot give credence to Detective Martinez’s account of the last moments of his encounter with Baskin and cannot resolve the disputed issues of material fact as would a jury.  The Court must accept as true the testimony of Baskin and the eyewitness that, as Detective Martinez “rounded the corner of the house, Baskin was standing with his open and empty hands above his head – not reaching for a weapon or making a threatening gesture.”

Under the law, it is clear that every police officer would understand that “it is not objectively reasonable to shoot a person suspected of committing a crime after he has placed his empty hands above his head in an act of surrender.”  The law is also clear that a suspect’s conduct leading up to his attempt to surrender cannot alone justify using deadly force against the suspect when his hands are above his head in an act of submission and he no longer poses a threat.  While the facts may be disputed as to whether Baskin’s hands were empty and up in the air, for qualified immunity purposes, the Court must consider the totality of the circumstances through the perspective of an objectively reasonable police officer on the scene.  The Court must also accept Baskin’s version of these events that are in dispute and draw all reasonable inferences in his favor.

The Court noted its understanding that police officers often must make split second decisions in highly volatile situations and does not minimize the challenges of dangers facing a police officer engaged in pursuit of a suspect who is observed carrying a gun.  The Court accepted that Detective Martinez had a legitimate and obvious basis to be concerned for his safety.  Had Baskin turned toward him with a gun in his hand, Detective Martinez would likely have had an objectively reasonable basis to use deadly force to protect himself.  The Court stated that “the justification for use of deadly force at one point and a dangerous encounter does not give an officer the right to shoot a suspect when the use of deadly force can no longer be justified.”

Detective Martinez testified that when he rounded the corner, he saw Baskin turning toward him pointing an object that appeared to be a gun.  However the facts were sharply disputed as to whether that occurred and whether Baskin pointed anything at him, even if it turned out just to be a cell phone.

Because of the conflicting accounts of what occurred at the time of the shooting and other disputes of material fact, the Supreme Court found that this issue must be submitted to a jury for resolution of the facts.  At that point, the trial court can determine the merits of the application for qualified immunity.  After the jury makes its fact findings, Detective Martinez will be able to renew his qualified immunity application if there is a basis to do so.  Hence, the Supreme Court affirmed the judgment of the Appellate Division and remanded the case back to the trial 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.

Defendant-Operator With Right-of-Way Wins Dismissal

Not every intersection accident is a ‘he said/she said’ toss up for the jury to decide.

The First Department recently held that summary judgment dismissal was properly granted to the defendants, vehicle owner and operator, in an intersection accident where plaintiff’s vehicle was controlled by a stop sign, in the case of Yahaira Lugo v. Daytona Auto Sales, Inc., et al, 123 N.Y.S.3d 496, 2020 N.Y. Slip Op. 03199 (1st Dep’t 2020).  The defendants’ evidence established that the cause of the accident was the negligence of the driver of plaintiff’s vehicle, who failed to obey a stop sign in violation of New York’s Vehicle and Traffic Law Sect. 1142, which statute mandates that the driver of a vehicle approaching a stop sign shall stop and yield the right of way to any vehicle which has entered the intersection from another roadway or which is approaching so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.

In affirming the order granting dismissal, the court in Lugo cited to its prior decision in Namisnak v. Martin, 244 A.D.2d 258, 260, 664 N.Y.S.2d 435 (1st Dep’t 1997) for its reasoning that defendants, with the right-of-way at the intersection where the collision occurred were “entitled to anticipate that other vehicles will obey the traffic laws that require them to yield”.  Id.

The Lugo Court rejected plaintiff’s contention that the defendants’ vehicle may have been driving over the posted speed limit as being insufficient to raise a triable issue of fact as to comparative negligence, since there is no evidence it could have contributed to the accident.  Lugo, 123 N.Y.S.3d 496.

Established precedent is that a “presumption of negligence” arises from a failure to yield the right of way at a stop sign, and that bare speculation that another driver was “going fast” is not enough to overcome the presumption of negligence or to create and issue of fact for trial.  Murchison v. Incognoli, 5 A.D.3d 271, 773 N.Y.S.2d 299 (1st Dep’t 2004).  In another similar stop sign case, one driver’s statement that he may have been driving “five miles over the posted speed limit of 30 miles per hour” was insufficient to raise an issue of fact as to comparative negligence since there is no evidence that it could have contributed to the collision.  Martinez v. Cofer, 128 A.D.3d 421, 8 N.Y.S.3d 212 (1st Dep’t 2015).

The cases highlight how following the rules of the road, and obeying stop signs in particular, can lead to favorable rulings and victory in court.

A Trivial Defect Remains a Jury Question

Two recent trial court decisions highlight Pennsylvania’s premises liability law regarding trivial defects. Kreitzer v. Madison Acquisitions, LLC, PICS Case No. 20-0425 (C.P. Lawrence April 9, 2020) and Jenkins v. Krenitsky’s Supermarket Corp., PICS Case No. 20-0424 (C.P. Lackawanna April 15, 2020) both involved defendant-property owners who moved for summary judgment arguing lack of notice and that any alleged defect was trivial thereby negating liability. In Kreitzer, the plaintiff fell due to an uneven sidewalk. The alleged defect was a one and a half inch change in elevation in the sidewalk. In Jenkins, the plaintiff fell in a pothole near the entrance of a supermarket. The plaintiff described the pothole as approximately two feet long and deep enough that both of her feet could be in the hole.

Both motions were similar in that both defendants argued there was no actual or constructive notice of any alleged defect. Additionally, both argued that any alleged defect was so trivial as to not warrant liability. In Kreitzer, the plaintiff argued that there was construction underway around the area of the fall that should have placed the defendant on notice of the change in elevation of the sidewalk. In Jenkins, the plaintiff argued that potholes do not form overnight and that it was right by the entrance so its existence should have been known through reasonable care. Interestingly, the defendant in Jenkins admitted that they had no policy to inspect the parking lot for defects and no regular inspections were conducted. In both cases, the defendants’ motions were denied as the courts found factual issues in each case for a jury to decide liability.

In Pennsylvania, “a sidewalk defect may be so trivial that a court must hold, as a matter of law, that the property owner was not negligent in allowing its existence.” Shaw v. Thomas Jefferson University Hospital, 80 A.3d 540, 542 (Pa. Cmwlth. 2013).  In Shaw, the plaintiff fell due to an uneven sidewalk in front of Thomas Jefferson University Hospital in Center City, Philadelphia. The change in elevation between sidewalk segments was allegedly between two and two and a half inches. The Commonwealth Court of Pennsylvania reversed the trial’s court granting of summary judgment to the hospital as it found the question whether the sidewalk defect was trivial was for a jury. Ultimately, there is no bright-line rule to determine what would constitute “trivial” to impose liability. “Each case presents a unique set of circumstances that must be evaluated on an independent basis.” Id. at 545.

In both Kreitzer and Jenkins, the trial courts held that neither circumstance could be decided at the summary judgment stage and must be submitted to a jury. Specifically, in Jenkins the court held that the defect was not obviously trivial due to its size since the plaintiff was able to place both feet in the pothole, but held that the ultimate question was still a matter for a jury.

The Pennsylvania courts have not created a hardline rule in determining what is considered trivial. There is no hardline rule regarding size, length, or depth of a defect that would absolve a property owner of liability. It may be impossible for the courts to establish any hardline rules regarding the size of a defect to be considered trivial for summary judgment purposes due to all circumstances of an incident that must be considered. Regardless, a property owner still should have proper policies and procedures in place for inspections of its property to show evidence that reasonable care was used.

Recent Appellate Division Opinion Regarding Strict Liability

The Appellate Division on June 8, 2020 rendered an interesting as yet unpublished Opinion related to strict liability and exceptions thereto.  The matter is Goldhagen v. Pasmowitz, No. A-3430-18T4, 2020 WL 3041414 (App. Div. June 8, 2020).

Plaintiff Bonay Goldhagen appealed an Order granting Defendant Susan Pasmowitz’s Motion for Summary Judgment and denying her Cross-Motion for Summary Judgment on liability. The Appellate Division affirmed.

Factually, in July of 2015, Defendant Pasmowitz boarded “Louie,” an approximately 120-pound Rottweiler mix, and a second, smaller dog at a “dog hotel.”  Plaintiff was employed as a dog groomer and kennel assistant at the dog hotel. Significantly, Plaintiff had twenty (20) years of experience in the business, and was therefore indisputably aware that dogs can and do bite.

Further, Defendant specifically informed Plaintiff that Louie had previously bitten her own son. Indeed, Defendant alleged that when she advised Plaintiff that Louie was a very strong dog, and thus Plaintiff should “trust” him, as the dog was going to “throw his weight around,” Plaintiff dismissively responded that she knew how to handle dogs.

Defendant also noted on the kennel’s intake form that Louie must “eat separately from (her other dog)” and also must be “muzzle[d] for nail clippings.”

However, Defendant did not advise Plaintiff that Louie had bitten Defendant herself on the face, requiring Defendant to receive about thirty stitches, four (4) years earlier when Defendant removed a tick from his ear.  Plaintiff would rely heavily on this omission.

Thereafter, on the very first day of the dogs’ boarding, Plaintiff was feeding the two dogs together when she was bitten by Louie.

Plaintiff filed suit, and upon completion of discovery, Defendant moved for Summary Judgment and Plaintiff crossed-moved for Partial Summary Judgment on liability.

The Law Division Judge entered an Order and oral decision granting Defendant Summary Judgment and denying Plaintiff’s Cross-Motion.

The Judge relied primarily on Reynolds v. Lancaster Cty. Prison, 325 N.J. Super. 298, 323-44 (App. Div. 1999) where the Appellate Division had limited the absolute liability of dog owners under N.J.S.A. 4:19-16, by holding that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner for a dog bite unless the dog owner “purposefully or negligently conceal[ed] a particular known hazard from the” independent contractor.

The Law Division Judge noted that while Defendant did not tell Plaintiff of the severe bite that she herself had sustained from her dog, this was far outweighed by the fact that Plaintiff was an experienced dog handler, and as such knew dogs sometimes bite; that Plaintiff knew the specific dog had previously bitten a child and needed muzzling for nail clipping; and that Plaintiff had seen co-workers previously bitten by dogs.

Thus, the Judge found that this was insufficient to create a genuine issue of material fact to defeat Defendant’s Motion. Rather, the Court found that Plaintiff had possessed adequate information provided by the Defendant regarding Louie’s specific history.

Notably, the Judge found that “the quality or consequences … of the dog bite” was not relevant or a material inquiry in this instance to defeat the Summary Judgment Motion.

The Judge held that as Plaintiff was a long-time professional in this industry, she should have taken necessary precautionary measures to safely address the needs of a dog, as well as her own.

Plaintiff appealed, arguing any assumption of risk and comparative negligence did not apply under N.J.S.A. 4:19-16 and she was entitled to Partial Summary Judgment on liability under the statute.

N.J.S.A. 4:19-16 states, in relevant part:

“The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.”

To recover under [the statute], a Plaintiff must prove that the Defendant owned the dog, that the dog bit the Plaintiff, and that the Plaintiff was in a public place or lawfully on the owner’s property.” DeRobertis v. Randazzo, 94 N.J. 144, 158 (1983). “Satisfaction of the elements of the statute imposes strict liability … for damages sustained by [the] Plaintiff.” Pingaro v. Rossi, 322 N.J. Super. 494, 503 (App. Div. 1999).

However, in Reynolds, recognizing an exception to the imposition of strict liability, the Appellate Division held that:

“[w]hen a dog owner turns his dog over to an independent contractor who has agreed to care for the dog, the owner is not liable under the dog-bite statute when the dog bites the independent contractor unless the owner knew, or had reason to know, the dog was vicious and withheld that information. Similarly, under the doctrine of primary assumption of the risk, as described in Emmons v. Stevane, 77 N.J.L. 570, 573-74 (E. & A. 1908)], it would appear that an owner would not be liable under the statute to an independent contractor who undertakes the care of a domestic animal with knowledge that it is particularly dangerous.

325 N.J. Super. at 324.

The Appellate Division held that the principles articulated in Reynolds applied to this case.  The Plaintiff in Reynolds had worked for a guard dog company as a dog handler and he was seriously injured when one of the company’s dogs attacked him. Id. at 306. Of course, in general, a landowner has the duty to “use reasonable care to protect independent contractors [from] ‘known or reasonably discoverable dangers.’” Id. at 321-22.  The Court was persuaded by case law from other states regarding veterinarians, and held that “a veterinarian has all of the characteristics of an independent contractor” and “the owner [of a dog] is not liable under the dog-bite statute when the dog bites the independent contractor unless the owner knew, or had reason to know, the dog was vicious and withheld that information.” Id. at 324.

Accordingly, the Appellate Division held that like the dog handler in Reynolds, Plaintiff was an independent contractor who “agree[d] to care for a dog.” Ibid. She was “aware of the risk that any dog, regardless of its previous nature, might bite while being” cared for. Ibid. And as the Motion Judge determined, even though Defendant did not tell Plaintiff that Louie had bitten her, there was no dispute that Plaintiff was made aware of several crucial facts, including Louie’s aggressive nature; that he had bitten Defendant’s son; that he had to be muzzled during nail clippings; and that he should not be fed with Otis – “the latter being the precise situation when Plaintiff was bitten.”

Accordingly, the Appellate Division concluded that, based on the evidence presented, a reasonable factfinder could only reach one conclusion: that Plaintiff had sufficient warning that Louie might bite her while she was caring for him. Thus, as there was no genuine issue of material fact, as a matter of law, Defendant was entitled to Summary Judgment.

While the fact pattern of this matter is of course extreme, this opinion is an important reminder that there can be exceptions even in situations where the general rule is that of strict liability.  Similarly, the arguments in this matter as to dog groomers and veterinarians could easily be analogized to any number of other backgrounds with which a given Plaintiff may present.  Therefore, consideration should be given to an analysis of exactly what knowledge a given Plaintiff possessed, along with any information provided to that Plaintiff by the Defendant, before assuming that strict liability applies.

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Police Officers Found Not to Be Immunized in Alleged Failure to Render Assistance to Injured Plaintiff at Motor Vehicle Accident Scene

Two Jersey City Police Officers were dispatched to a motor vehicle accident in Jersey City at 2:26 am involving the truck of the decedent Hiram Gonzalez (“Gonzalez”), which he advised them had spun out of control. After responding to the accident, Gonzalez was left at the scene of the accident by the officers after he turned down the offer of a ride and, instead, allegedly advised them that he would wait for his brother to give him a ride. The facts were in dispute as to whether they should have known he was intoxicated at the time. At about 3:42 am, he was struck and killed while walking in the middle of the roadway. The issue in Estate of Gonzalez v. City of Jersey City, 2020 N.J. Super. Unpub. LEXIS 689 (App. Div. April 17, 2020), was whether the officers and the City were immune from tort liability for his fatal accident.

Both officers denied noting any signs that Gonzalez was intoxicated. Based upon an autopsy performed, Gonzalez’s blood alcohol level was a .215. Plaintiff’s toxicology expert opined that Gonzalez’s blood alcohol level when he encountered the officers was a .20, which was 2 ½ times higher than the legal limit for driving.

At the trial court level, the defendants filed for a summary judgment based upon various Tort Claims Act immunities, including N.J.S.A. 59:3-(2)(a), absolute immunity for injuries resulting from the exercise of judgment or discretion. The plaintiff argued that the officers’ acts were ministerial and, under N.J.S.A. 59:2-3 and N.J.S.A. 59:3-2, the officers were not immunized for the negligent performance of a ministerial act.

The trial court judge granted the defendants’ summary judgment motion. He found that the officers had conducted their duties in good faith and that they had no duty to remove Gonzalez from the highway. They offered to give him a ride and secured a ride with a family member before leaving him behind the guardrail. The judge found that the defendants’ actions were immunized under N.J.S.A 59:3-3 (good faith enforcement of laws). He also found that there was no statutory duty to take Gonzalez to a treatment facility because he had no outward signs of intoxication.

The plaintiff appealed, arguing that an officer may be liable for the negligent performance of his or her ministerial act and, therefore, the officers were not immune from liability under the Tort Claims Act. Further, plaintiff argued that the court erred in finding the “officers had the discretion to abandon an intoxicated victim of a motor vehicle accident on a dark, rainy highway bridge.”

The Appellate Division disagreed with the trial court’s ruling and reversed. The Court noted that police offers have a duty to respond to accident scenes and render assistance. In responding to this motor vehicle accident, the Court found that the officers were performing a ministerial duty and would be subject to liability for the negligent performance of this duty. The police do not enjoy immunity for negligent performance of ministerial duties.

The Appellate Division found that there were factual issues that must be resolved by a jury as to whether the officers were negligent. There was conflicting factual evidence as to Gonzalez’s behavior, his conversations with the officers, the circumstances of the inoperability of his car, the officers’ version of their exchange with the dispatcher (as to why they left him at the scene),  and the assessment the area where he was left. The Court ruled that these issues could not be made on a summary judgment record. Thus, the Appellate Division reversed and remanded the matter back to the trial court.

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NJ Supreme Court Order Extending and Tolling Court Deadlines Due to COVID-19 Pandemic

On Friday, March 27, 2020, the New Jersey Supreme Court issued an omnibus order addressing the suspension of court proceedings, extension of deadlines and tolling time periods (including the time to file Notices of Tort Claims). The Court had been issuing almost daily orders but this order addressed the extension of those time periods based upon the current restrictions on movement and activity recommended by NJ DOH and CDC, as well as the Governor’s Order 107. The major effect of this order is to continue the stay of all jury trials, restart arbitration hearings on a virtual basis on April 27, 2020, require depositions to be conducted on a virtual basis, extend discovery deadlines for 6 weeks from March 16, 2020 to April 26, 2020, and toll the statute of limitations during this 6 week time period as well.

Per this Order, the Court placed into effect and/or renewed the following provision:

  • No new civil jury trials will be conducted until further notice.
  • Time for completion of discovery and time for filing motions for summary judgment are relaxed to permit the extension of discovery deadlines through April 26, 2020.
  • Time for issuance of summons is extended from 15 days to within 60 days of the Track Assignment Notice for notices issued from March 16 through April 26, 2020.
  • Time frame for service of valid and timely Notices of Tort Claim will be tolled from March 16 through April 26, 2020.
  • Time periods for discovery (including interrogatories, inspection of documents and property, IMEs, and requests for admission) will be extended from March 16 through April 26, 2020.
  • In computation of time for discovery end dates, the period of March 16 through April 26, 2020 shall be excluded due to exceptional circumstances.
  • Special Civil Part and Small Claims trial calendars are suspended through April 26, 2020.
  • The requirement to submit courtesy copies of motion papers, not exceeding 35 pages, to the trial court judge is suspended.
  • Civil arbitrations scheduled from March 16 to April 26, 2020 have or will be postponed and rescheduled.
  • Effective April 27, 2020, Civil Arbitrations will resume with participation in any session to be via video and/or telephone conference and initiated by an arbitrator or panelist.
  • The arbitration rules are relaxed to permit an extension of timeframes and authorize arbitration hearings to be conducted in a location other than the courthouse.
  • Through April 26, 2020, depositions should be conducted remotely using necessary and available video technology and court reporters may administer and accept oaths remotely.
  • To the extent practicable, all court matters including hearings, conferences, and arguments will be conducted by video or phone conferencing and in-person appearances will be permitted only in emergent situations.
  • All depositions and appearances for any doctors, nurses, or healthcare professionals involved in responding to the COVID-19 public health emergency are suspended through April 26, 2020 unless requested by the health profession or that are for matters related to COVID-19.
  • For computation of time periods under the Rules of Court and under any statute of limitations for matters in all courts, for purposes of filing deadlines, the additional time of March 28 through April 26, 2020 shall be deemed the same as a legal holiday. (The Court previously designated the time period of March 16, 2020 to March 27, 2020 to constitute a legal holiday.)
  • Electronic signatures are now permitted on all original filings temporarily during this crisis.

 

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Questions And Answers On Coronavirus And New Jersey Workers’ Comp

Many clients have been calling and writing me with an array of scenarios in recent weeks regarding the relationship between absences from coronavirus and workers’ compensation in New Jersey. Here is a small sample of some of the questions that I have received:

  • Question 1: What happens when an employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion? Must the employer pay workers’ compensation benefits?
  • Answer: No, because there is no indication in this scenario of an injury or work-related illness generating the decision to send the employees home. The action is preventative in nature but not based on any specific work-related exposure.
  • Question 2: What if an employer advises an employee that he or she must be quarantined because the employee may have been exposed to someone at work who has the coronavirus?
  • Answer: This absence is definitely covered by workers’ compensation because both the employer and the employee are concerned about a possible work exposure that could lead to serious illness. Even if it turns out that the employee does not have the virus, the quarantine period would be covered under workers’ compensation. The situation is similar to one in which an employee may have suffered a high level of lead exposure and is taken out of work for monitoring by his or her physician. After a number of weeks the physician indicates that there is no need to treat any illness. That medical conclusion certainly negates a permanency award but temporary disability benefits would still be owed.
  • Question 3: What if the State shuts down a company for a 30-day period and the company has to send everyone home for that period of time with no home work available. Does the employer owe workers’ compensation benefits?
  • Answer: This is treated the same as question number one: there is no work injury to an employee so this is not workers’ compensation.
  • Question 4: Consider a scenario where an employee is out on temporary disability benefits for a work-related leg injury in January 2020. The company then closes down for a month in March due to federal and state guidelines in response to the coronavirus and asks whether temporary disability benefits can be stopped? On the one hand, the employer might argue that this employee would not have been working anyway given the closure of the company and should therefore not receive temporary disability benefits. On the other hand, the employee would argue that he or she is still actively treating and is not yet at MMI. The employee would further argue that the closure of the office had nothing to do with the conduct of the injured worker. Should the employer stop temporary disability benefits in this situation?
  • Answer: This would not be advisable. There is a line of cases beginning with Cunningham v. Atlantic States which held that an employee who has a workers’ compensation claim and who is fired for reasons other than the injury is not entitled to temporary disability benefits unless the employee can prove that he or she would have been working in another job but for the work injury. This practitioner does not believe the Cunningham line of cases applies to a situation like a temporary layoff due to a national crisis such as the coronavirus. It is highly likely that every Judge of Compensation would require the continued payment of temporary disability benefits until the injured employee should reach maximal medical improvement.
  • Question 5: What if an employee becomes worried that he has symptoms similar to that of the coronavirus and refuses to come to work? He quarantines himself for 14 days out of concern for his safety and that of fellow employees. No one at work has the virus and it is unclear where the employee may have been exposed, if there was exposure at all. Does this generate an obligation to pay workers’ compensation?
  • Answer: No, this is not workers’ compensation because there is no proof of a work-related illness. Whether or not it turns out that the employee has the coronavirus, but there must be some proof under N.J.S.A. 34:15-31 that the illness is work related.
  • Question 6: Along the lines above, suppose the employer finds out that the HR Director’s son just returned from Italy, where the number of deaths from coronavirus have now topped those in China. The employer advises the HR Director that she must quarantine for 14 days. Are workers’ compensation benefits due?
  • Answer: No, because once again there is no proof of a work related illness. The HR Director’s son may have been exposed in Italy and she may be at risk now, but that has nothing to do with work.
  • Question 7: What if two police officers alternate use of a patrol vehicle. On Monday, Officer Tynan is driving the vehicle alone and begins to experience symptoms of coronavirus later that evening, unknown to Officer Aiello, who then drives the vehicle on Tuesday alone. Later in the evening Officer Aiello finds out that Officer Tynan just entered quarantine for suspected coronavirus. Officer Aiello sees her primary care physician who recommends a quarantine period for her. Officer Aiello files a first report of injury based on potential exposure to the virus in the patrol vehicle when she drove it. Is Officer Aiello entitled to payment of temporary disability benefits?
  • Answer: In all likelihood, yes she is probably entitled since scientific studies have demonstrated that the virus can survive on certain surfaces for more than 24 hours. Since there is potential work exposure from driving the patrol car, Officer Aiello’s absence from work would be found by the judge to arise from her employment.
  • Question 8: Suppose a hospital floor nurse has been working for the past month with patients who have been tested for possible coronavirus.  So far all the tests have been negative.  The nurse is diagnosed with coronavirus herself, becomes seriously ill and is hospitalized.  She files for workers’ compensation benefits for her lost time and medical bills.  Is she entitled to workers’ compensation benefits?
  • Answer:  This question focuses on the Thomas P. Canzanella Twenty First Century First Responders Protection Act, which became law on July 8, 2019.  The law creates a presumption of compensability for those public safety workers who are subjected to a potential exposure, including airborne exposures, to a serious communicable disease.  The definition of a public safety worker includes police, fire, emergency squad personnel and many other categories of first responders, including “any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident.”  Based on this law, the nurse would almost certainly receive workers’ compensation benefits unless the employer could somehow rebut the presumption by showing perhaps that a close family member had the virus.  It is important to note that It doesn’t matter that the nurse cannot identify a specific person at work whom she cared for who was proven to have the virus. 
  • Question 9: Given that tens of thousands of employees are now working from home in New Jersey due to state and federal guidelines, what if an employee gets injured at home and files a workers’ compensation claim?
  • Answer:  Case law in New Jersey is fairly sparse on home injuries, but it is clear that courts recognize certain home injuries as compensable when an employee is approved to work at home.  At this very moment, perhaps a majority of New Jersey workers have been approved to work at home during this crisis.  As with any other workers’ compensation claim, the employee has to show that the injury occurred during the course of employment and arose from the employment.  For example, if a teacher is teaching students at home online and reaches for a textbook, only to fall and fracture his arm, that would be a compensable injury, just as it would be in school.  But if the teacher went out to get the mail and slipped on the driveway, fracturing his arm, the employer would properly deny that claim as not arising from work.  Each case will be fact sensitive. Employers should designate the area where employees are approved to work, be it a home office or some other location.

These are just some of the many questions that readers have posed in recent weeks. We invite any and all scenarios from interested readers.

The post Questions And Answers On Coronavirus And New Jersey Workers’ Comp appeared first on NJ Workers' Comp Blog.

Hemp in New Jersey – It’s Legal!

Now removed from the 2018 Farm Bill’s federal controlled substances list, beginning this year (2020) hemp can be treated like any other agricultural commodity in New Jersey. The Garden State is one of the first three states to have its hemp program approved by the United States Department of Agriculture (USDA).  Now the New Jersey Department of Agriculture (NJDA) can start accepting applications.

Here is what you need to know:

1) There are two types of licenses:

a) Grower (Producer) = a business or person who is authorized by the NJDA to cultivate hemp

b) Processor/Handler

i) Processor = Includes, but is not limited to, entities acquiring raw hemp materials and processing them into products.

ii) Handler = Those who possess or store a hemp plant on premises owned, operated, or controlled by a hemp producer for any period of time or in a vehicle for any period of time other than during the actual transport of the plant between premises owned, operated, or controlled by hemp producers or persons or entities authorized to produce hemp pursuant to any federal and state law or rule adopted pursuant thereto. Examples of “handlers” include, but are not limited to, seed cleaners, analytical labs, traders, harvesting entities, brokers, and other service providers.

2) Fees:

The Program establishes a schedule of fees to be paid based upon whether the hemp producer will be growing, processing, or handling hemp. Growers will pay an annual $300 plus $15 per acre fee, handlers will pay a $450 annual fee, and processors will pay an annual fee for each type of hemp component they process. For example, a hemp producer who processes grain ($450) and CBD extract ($1,000) will pay a $1,450 annual fee. Growers are permitted to process and handle their own hemp without paying additional fees. However, once a grower processes or handles hemp from at least one (1) separate hemp producer, the grower must pay applicable processor and handler fees.

3) The NJDA has the following restrictions

a) N.J.A.C. 2:25-2.2 – requires a site modification fee any time a growing site is altered or added to an existing license. This is necessary, so that the Department can submit accurate records to the USDA, which must be kept apprised of the status of all hemp producers and have accurate legal descriptions of all land being used to produce hemp.

b) N.J.A.C. 2:25-2.2 – prohibits public access to hemp, such as hemp mazes or any other recreational activity. The Department deems these measures necessary to prevent members of the public from having unauthorized access to plants and seeds that could be used to cultivate hemp in violation of this chapter.

c) N.J.A.C. 2:25-3.2 – allows the Department to prohibit any hemp, seeds, plantlets, or propagules for any reason. If the Department determines that any particular strain or source for hemp is unreliable, it may be prohibited in order to protect the integrity of the program. Hemp farmers will suffer financial losses for every non-compliant field they must destroy, so it is more efficient to prevent non-compliant hemp from being planted to begin with. If non-compliant hemp is processed into foodstuffs, it could result in State or nationwide recalls.

4) The application must provide the geographical land area on which hemp is going to be cultivated, processed, or handled. The application is tied to a particular building for processing and includes buildings used for processing.

5) Unlike cannabis licenses, at this time the NJDA has not limited the number of licenses they will issue. However, make sure your application is done right as incomplete answers will remove your application from consideration.

6) Upon request by law enforcement, any person transporting hemp or hemp materials shall maintain and prove authorization to engage in the commercial sale of hemp under the NJ hemp program, along with a travel manifest that lists the origin, destination, product description, and date of transport. Third-party carriers are not required to be authorized hemp producers in order to transport hemp.

7) Hemp products may be transported across state lines and exported to foreign countries in a manner that is consistent with federal law and the laws of respective foreign countries under the Agriculture Improvement Act of 2018.

8) Provided the distribution is carried out in accordance with federal and state law, distribution of CBD extract outside of New Jersey is not prohibited if it was grown/processed in New Jersey.

If you are interested in learning more about the hemp application process or submitting an application in New Jersey, please contact me at smints@capehart.com or 856.840.4945.

  • Articles

Plaintiff’s Failure to Serve Correct Public Entity with Tort Claims Act Notice Barred Personal Injury Claim

Plaintiff Geoffrey Jones was injured on October 13, 2016 when he stepped into hole next to a storm grate on a street in Jersey City. On November 1, 2016, he served a notice of tort claim upon Jersey City, Hudson County, and the State of New Jersey. In Jones v. City of Jersey City and Jersey City Municipal Utilities Authority, 2020 N.J. Super. Unpub. LEXIS 344 (App. Div. Feb. 18, 2020), the issue on appeal was whether the defendant Jersey City Municipal Utilities Authority (“Authority”) should have been granted summary judgment because of the plaintiff’s failure to serve defendant with a notice of tort claim or file a motion to seek leave to file a late notice of tort claim.

After serving the notices of tort claim on the other public entities, both the State and the County responded by advising the plaintiff that they did not own or control the area where the plaintiff fell and, hence, were not liable for his injuries. Jersey City responded that it had no prior notice of any problems or defects at the loss location and denied the claim.

The plaintiff filed a complaint against Jersey City, Hudson County, and the State on May 23, 2018. In its answer, Jersey City certified that an additional party should be joined (the Authority) and that defendant Authority is a separate and autonomous agency. Also, in answers to interrogatories, Jersey City stated that defendant Authority may have made repairs to the hole or broken pavement next to the storm water/grate where plaintiff alleges he fell.

Despite Jersey City’s disclosure of the defendant Authority’s potential liability, plaintiff never sought to serve defendant with a tort claims notice, nor did he file a motion to seek leave to file a late notice of claim. Instead, plaintiff filed an amended complaint on October 4, 2018, adding defendant Authority to the lawsuit.

Defendant Authority filed a motion to dismiss on the basis of plaintiff’s failure to comply with the notice requirements of the Tort Claims Act. Plaintiff opposed the motion, contending that he had “substantially complied” with the notice requirement. He argued that the Authority was “an entity under the Jersey City umbrella” and, therefore, notice to Jersey City satisfied plaintiff’s notice requirement to the defendant Authority.

The trial court judge denied the Authority’s motion to dismiss. The judge found that plaintiff made a “reasonable good faith attempt” to give defendant timely notice and that plaintiff only learned of the Authority’s involvement a year and half after Jersey City was given proper notice.

The Appellate Division disagreed with the trial court’s decision. It found that the plaintiff was not entitled to simply amend his complaint to name defendant without first serving defendant with a notice of tort claim or filing a motion to serve a late notice.

The Court noted that the Tort Claims Act requires that notice of a tort claim be served within 90 days of the claim’s accrual. The discovery rule may apply, tolling the date of the accrual, if the victim is either unaware that he has been injured or does not know the third party is responsible. If the tort claim notice is not served within the 90 day period, permission to file a late notice of tort claim must be sought by motion, regardless of whether the date of accrual is established based upon the date on injury or through the application of the discovery rule.

The Appellate Division noted that the filing of an amended complaint would not be a substitute for the notice required by the statute. Here, the Court found that the plaintiff never complied with any of the Tort Claims Act’s notice requirements as to defendant Authority.

Further, the Appellate Division held that Plaintiff’s reliance on its service of notice to Jersey City was “misplaced.” The Jersey City Municipal Utilities Authority is a separate public entity from Jersey City. Plaintiff’s service of his tort claim notice upon Jersey City, the wrong public entity, does not absolve the plaintiff of his obligation to promptly identify the proper public entity and serve a timely notice of tort claim.

The plaintiff failed to show that he took any action after his fall to establish which public entities were responsible at any time prior to receiving Jersey City’s answers to interrogatories. Because plaintiff failed to file a motion to seek leave to file a late notice of tort claim, the motion judge “could not determine whether plaintiff established extraordinary circumstances warranting the service of a late notice of tort claim.”

Thus, the Appellate Division reversed the trial court’s order and remanded for an order to be entered granting defendant Authority’s motion to dismiss plaintiff’s complaint.

 

Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

  • Articles

Plaintiff’s Written Injury Report of Pothole on City’s 311 Online Reporting System Found to be in Substantial Compliance of Tort Claims Act Notice Requirement

Plaintiff Eileen Martinez fell into a pothole on a Hoboken street on March 20, 2018, injuring her foot. On that same date, she messaged the City’s 311 online reporting system, identifying herself by her username and notified the City of the time, location, cause, nature and extent of her injury. Two days after receiving plaintiff’s message, the City sent an acknowledgment email to plaintiff and assigned a tracking number. The issue in Martinez v. City of Hoboken, 2019 N.J. Super. Unpub. LEXIS 2580 (App. Div. December 16, 2019), was whether plaintiff’s 311 online written notice substantially complied with the 90 day notice requirement under the Tort Claims Act.

When plaintiff submitted her 311 online reporting system message, she also attached photographs of her injured foot and the pothole. She did not include her full name and address in the 311 online submission to the City, nor did she sign the message other than to identify her username.

Six months after she fell, plaintiff retained counsel who notified the City of plaintiff’s injury and stated that plaintiff had complied with the Tort Claims Act by submitting the information to the City’s 311 online reporting system on March 20, 2018. Her attorney inquired of the City if it had a specific notice of claim form to proceed with her claim. Counsel specifically asked if the City considered plaintiff’s March 20 notice deficient or noncompliant with the TCA. The City forwarded its official notice of claim form to plaintiff’s counsel for completion but did not advise whether it deemed plaintiff’s March 20 notice deficient or noncompliant with the TCA. Plaintiff’s counsel thereafter submitted the completed official notice of claim form to the City five days after receipt.

Having received no response from the City regarding the acceptance of her notice of claim, in January 2019, plaintiff filed a motion to deem her March 20, 2018 notice sufficient. In the alternative, plaintiff requested permission to file a late notice of tort claim.

The City opposed the motion, contending that it did not receive a tort claim notice from plaintiff until after October 15, 2018, seven months after the accident. Hence, the City argued that it could not have an expert opine about any alleged defect at the time of the accident, as road conditions significantly changed over seven months in the City due to weather, traffic, snow plowing and the passage of time. The City contended it was severely prejudiced by its inability to properly investigate.

The motion judge determined that the plaintiff’s March 20 notice substantially complied with the TCA. The judge found that the text notification on or about the day of the accident contained “sufficient information as to the type of the accident, the location, the alleged cause and the nature of the injuries to substantially comply with the tort claim notice requirements.” On appeal, the defendant City argued that the judge made a mistake in deeming the plaintiff’s March 20, 2018 notice to be in substantial compliance with the requirements of the TCA.

Pursuant to the Tort Claims Act, no person may bring an action against a public entity for a personal injury unless the person presents the public entity with a notice of claim within 90 days after the cause of action accrued. Plaintiff contended that her March 20, 2018 message to the City’s 311 online reporting system filed within 90 days of her injury substantially complied with the TCA.

The Appellate Division stated that the doctrine of substantial compliance is an equitable doctrine intended to “avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute’s underlying purpose.” Further, the Court noted that to warrant application of the doctrine of substantial compliance, the moving party must show: “(1) the lack of prejudice to the defendant party; (2) steps taken to comply with the statute; (3) a general compliance with the purpose of the statute; (4) reasonable notice of the plaintiff’s claim; and (5) a reasonable explanation by the moving party for why there was no strict compliance with the statute.” Here, the Appellate Division found that the City failed to show prejudice and plaintiff provided a reasonable explanation for her lack of strict compliance with the TCA’s notice of claim requirements.

The Court found that the 311 message to the City’s online reporting system included the date and location of the plaintiff’s injury, the injured body part, a photograph of her injury and the pothole, offered to provide additional information and photographs to the city to allow it to investigate her claim and me and her email address. Further, two days later, the City sent a reply to her message and provided tracking numbers under her claim. Thus, during the 90 day time period from the date of her injury, plaintiff believed her 311 message to the City constituted sufficient notice of her claim. The court found that the plaintiff did take steps to comply with the TCA notice of claim and achieve the TCA’s purpose by notifying the City of her injury.

The Appellate Division was satisfied that the plaintiff had provided an acceptable explanation for failure to strictly comply with the notice of claim requirements of the TCA. Further, the Court rejected the City’s argument that it was prejudiced as result of the March 20 notice of claim. While it claimed to have never received this notice, it did respond to plaintiff and assigned a tracking number. Thus, the Court was satisfied that the 311 message was actually received.

Last, although the City claimed prejudice, just a sweeping generalization of prejudice is not enough to satisfy the prejudice requirement. The City was given the exact street location of the pothole that caused the plaintiff’s injury. The Court noted that the City could have inspected the intersection to confirm the condition of the road. There was nothing in the record explaining why under the circumstances, the City was unable to properly investigate any claim of the plaintiff or why it could have not have had an expert opine about any alleged defect at the time of the incident because plaintiff did provide information with the exact location of the pothole on March 20, 2018.

In summary, the Appellate Division found that the motion judge did not abuse her discretion in finding the plaintiff’s 311 message submitted to the City on March 20, 2018 to be in substantial compliance with the TCA’s requirements for notice of claim. Thus, the Appellate Division affirmed the trial court’s decision, finding that this 311 online report sufficient to satisfy the notice requirement of the Tort Claims Act, which will permit the plaintiff’s personal injury claim to proceed.

 

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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