Court Rulings

By: Erika Vasant, Law Clerk
Editor: Betsy G. Ramos, Esq.

In July of 2017, plaintiff Ann Samolyk injured herself when she jumped in a canal in an effort to save her neighbor defendant’s dog from drowning. In doing so, she alleged that she sustained neurological and cognitive injuries when rescuing the dog. The issue in the New Jersey Supreme Court case of Samolyk v. Berthe, 2022 N.J. LEXIS 515 (June 13, 2022),was whether or not the Court should expand the parameters of the rescue doctrine to allow recovery for damages sustained when rescuing a dog, as opposed to the traditional endangered human life.

The parties’ homes were stationed near a canal that bordered the shore community. The evening the injury occurred, Ann claimed to have heard someone call for help to rescue their dog that had fallen into the canal. Eventually, the dog was removed from the canal by the defendants’ son, but Ann was found lying unconscious. Ann’s husband, John Samolyk, filed a civil action against the defendants for negligently letting their dog to fall into the canal, prompting his wife to jump in and save the dog from drowning.

This case was first heard by the Law Division judge who agreed with the defendants’ main argument that there were no New Jersey courts that applied the rescue doctrine to property. Likewise, the judge emphasized his lack of authority to dictate what measure of property is justified in risking a human life.

The Appellate Division also addressed the same issue in another case, and came to the same conclusion. However, the opinion did note how the Restatement (Second) of Torts § 472 (Am. Law Inst. 1965) extended the rescue doctrine to property.

Plaintiffs argued that the Supreme Court of New Jersey should adopt this view for the case at hand. In opposition, defendants reiterated that the Restatement was the minority viewpoint, and that New Jersey courts have solely applied the rescue doctrine to endangered human life, not property.

In this appeal, the Supreme Court of New Jersey addressed the expansion of the rescue doctrine to property. In its reasoning, the Court first referenced Judge Cardozo’s general description of the rescue doctrine from Wagner where he stated: “…The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.” Wagner v. International R. Co., 232 N.Y. 176, 180 (N.Y. 1991). The court went on to acknowledge that the rescue doctrine may also be applied in a two-party situation, in addition to three parties. In other similar cases heard by this court, it was stressed that the point of the rescue doctrine was to provide recovery to an injured party as a result of another party negligently placing themselves in danger. Provenzo v. Sam, 23 N.Y.2d 256, 260 (N.Y. 1968).

Furthermore, the Court noted how the rescue doctrine is centered on the basic tort concepts of duty and foreseeability. As the Second Restatement explains, an actor is liable “where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so.” (quoting Restatement (Second) of Torts § 445 cmt. d) (Am. Law Inst. 1965).

Ultimately, the Supreme Court of New Jersey declined to expand the rescue doctrine to provide damages for any injuries received during the rescuing of property. The Court instead adopted the majority view, but added to the rationale by clarifying that the doctrine may extend to damages for injuries sustained if the rescuer was acting to save human life, and coincidentally saved the property. Had the plaintiff jumped in the canal to save a child’s life for example, and unintentionally ended up saving the dog’s life, then any injuries sustained in doing so would be recoverable.

Essentially, the Court reasoned that extending the same concern for human life to property would violate public policy. Specifically, the Court qualified their reasoning through Justice Cardozo’s description of how all human life is equally precious, but the same calculation cannot be applied to subjective pieces of property.

Plaintiff, a Rutgers Police Department Officer, was injured on July 12, 2018 when attacked by an individual attempting to be restrained by City of Newark Police officers.  Plaintiff alleges to have suffered serious injuries and was determined to be permanently disabled and unable to perform her duties as a Rutgers Police Officer.  In Peart v. University Hospital of Newark, 2022 N.J. Super. Unpub. LEXIS 854 (App. Div. May 19, 2022), the issue was whether the plaintiff had satisfied the notice requirements of the Tort Claims Act so as to be able to pursue her negligence claim against the public entity defendants.

This incident started when certain City of Newark Police Officers responded to a call for service for the individual who ultimately attacked plaintiff.  Police were familiar with the individual from a prior incident in which he drove erratically in Newark and attempted to evade arrest.  The officers placed the individual in restraints and transported him to the Crisis Emergency Room at University Hospital.  When the individual arrived at the emergency room, it is alleged that the police officers removed his restraints before the doctor could evaluate him. 

Within minutes of the restraints’ removal, this individual became violent and was perceived to be a threat by University Hospital staff.  The behavioral crisis response team was summoned and a call was made for police assistance.  Plaintiff and two officers arrived on the scene.  This individual attacked the officers and beat plaintiff about her head and body, causing her injury.  The individual was ultimately charged with aggravated assault for the attack on the officers.

On October 6, 2018, plaintiff filed a notice of tort claim with the City of Newark.  It alleged that plaintiff’s injuries were caused by the negligent acts and/or admissions of defendants.  Later that month, the City sent plaintiff a deficiency notice stating that the City adopted its own notice of claim form and plaintiff must complete and return it with additional information and documents.

According to the record, the plaintiff attempted to gather additional facts regarding the claim and sought records, reports, communications and other documents from the City of Newark pursuant to OPRA.  Plaintiff made numerous OPRA requests with the City for the next year and she never returned or responded to the City’s deficiency notice with its specialized notice of claim form.

On July 9, 2020, the plaintiff filed a complaint against the defendants University Hospital of Newark, University Hospital Emergency Services, City of Newark, and City of Newark Police Department.  She alleged negligence, gross negligence and violations of the New Jersey Civil Rights Act.

Thereafter, the City filed a motion to dismiss the complaint based upon failure to state a claim upon which relief can be granted and also that plaintiff should be denied the opportunity to file a late notice of tort claim.  Plaintiff then filed an amended complaint, clarifying that the City was vicariously liable for its officers’ alleged violation of plaintiff’s rights under the NJCRA. 

The trial court judge entered an order denying the City’s motion.  The judge ruled that the plaintiff’s notice of claim and supplemental notice which included an e-mailed OPRA request containing details of the attack, substantially complied with the Tort Claims Act.  Further, the judge declined to issue declaratory relief that the plaintiff is not entitled to file a late notice of tort claim.

The City filed a motion for leave to appeal to the Appellate Division, which was granted and stayed the trial court proceedings while the appeal was pending.  On appeal, the City argued that the plaintiff’s tort claims should have been dismissed for failing to serve the supplemental information requested in the City’s specialized claim form, as well as the motion judge should have declared that plaintiff is not entitled to file a late notice of claim.

The Appellate Division disagreed with the City’s argument that the judge abused his discretion by determining that plaintiff’s notice of claim substantially complied with the Tort Claims Act.  To the contrary, the Appellate Division affirmed the trial court’s finding of substantial compliance.

Under the New Jersey Tort Claims Act, for a plaintiff to pursue a claim for a personal injury, the Tort Claims Act requires that prior to filing a complaint, a claimant must provide notice of claim to a public entity within ninety days of the claims accrual (N.J.S.A. 59:8-8(a)).  The purpose of the notice is to allow the public entity at least six months to review and the opportunity to settle a meritorious claim, to provide the public entity with prompt notification of the claim to be able to adequately investigate the facts and prepare a defense, to afford the public entity a chance to correct the conditions or practices which give rise to the claim and inform the State in advance as to the indebtedness or liability that it may be expected to meet.

Under N.J.S.A. 59:8-4, the notice of claim must provide only six items to include the following:

• The name and address of the claimant;
• The address to which the person presenting the claim desires notices to be sent;
• The date, place and other circumstances of the occurrence which gives rise to the claim;
• A general description of the injury, damage or loss incurred;
• The names of the public entity, employee or employees causing the injury, damage or loss;
• The amount claimed, including the estimated amount of any injury, damage, or loss.

In this case, the plaintiff’s initial notice of claim sent on October 6, 2018 was timely but did not meet all of these requirements.  This initial notice of claim failed to identify the individual and provide sufficient facts to alert the City of its liability.

The Appellate Division noted that the doctrine of substantial compliance within the Tort Claims Act served “the purpose of alleviating the hardship and unjust consequences which attend technical defects of otherwise valid claims.”

Under the case law: “substantial compliance means that the notice has been given in a way, which though technically defective, substantially satisfies the purpose for which notices of claims are required.”  To be able to satisfy this standard, the plaintiff must be able to show the lack of prejudice to the defending party, the steps taken to comply with the statute involved, a general compliance with the purpose of the statute, a reasonable notice of the plaintiff’s claim, and a reasonable explanation why there was not strict compliance with the statute.

In this case, on October 23, 2018, five days beyond the statutory 90 day period, the City’s counsel had sent the deficiency notice to plaintiff’s counsel requesting that the plaintiff complete and return the City’s adopted notice of claim form.  It is undisputed that this form was never returned. 

However, on December 7, 2018, plaintiff’s counsel sent an e-mail containing an OPRA request to the City Clerk, in which he asked for government records relating to the “crime perpetrated by the individual.”  Further, the e-mail provided a copy of the Rutgers Police Department Incident Report and alleged that the individual had been transported to University Hospital by members of the Newark Police Department.  The Incident Report included a narrative from Officer Clifford, who responded to the Emergency Crisis and witnessed the individual’s attack on plaintiff. 

The Appellate Division found that the plaintiff’s initial Notice of Tort Claim, along with the e-mailed OPRA request and attached police report gave “some indication of the asserted basis” of the City’s liability in compliance with N.J.S.A. 59:8-4(c).  This e-mailed OPRA request identified the individual who attacked plaintiff and provided sufficient details to allow the City to investigate the claim.

Further, the Appellate Division noted that plaintiff attempted to provide all possible information of the City by making numerous OPRA requests, many of which the City did not answer for several months.  The City had not demonstrated prejudice because of plaintiff’s supplemental notice.  The Court found that the incident was serious and the City had ample opportunity to conduct its own investigation, as plaintiff’s supplemental notice provided the specific circumstances on the individual’s attack.

Thus, the Appellate Division found that in keeping with the Tort Claim Act’s goals, “plaintiff’s initial Notice of Claim and Supplemental Notice enabled the City to properly evaluate its liability and potential exposure and, if it chooses to engage in settlement negotiations prior to the commencement of suit.”  Hence, the Appellate Division found that the trial court judge did not abuse his discretion in ruling that the plaintiff’s notice “substantially complied” with the Tort Claim Act’s notice requirement.

The Appellate Division also rejected the City’s argument that the plaintiff’s notice of claim was deficient because he failed to return the City’s specialized notice of claim form.  The Court rejected that argument because the plaintiff’s notice need not be supplied in a public entity’s specialized notice of claim form so long as a claimant provides the information requested, which plaintiff did so in her supplemental notice.  Further, the Appellate Division noted that the plaintiff’s failure to return the form can be attributed to her numerous unanswered OPRA request of the City.  The information that she provided in her initial and supplemental notice was all that she could obtain despite diligent effort.  Thus, the Appellate Division ruled that under the circumstances, “plaintiff’s failure to return the form is excusable and does not preclude finding substantial compliance.”

Because the Appellate Division found that plaintiff substantially complied with the notice requirements of the Tort Claims Act, it did not address the City’s request for declaratory relief that plaintiff was not entitled to leave to file late notice of claim.  Hence, the Appellate Division affirmed the trial court’s ruling, denying the City’s request to dismiss the complaint.

Plaintiff Shirley Broadnax suffered injuries when she slipped and fell on clear liquid on the floor at a supermarket owned by the defendant AJS Supermarkets. The trial judge had granted summary judgment to the defendant on the basis that the Plaintiff failed to show that the defendant had actual or constructive notice of the “dangerous condition.” The issue upon appeal in Broadnax v. AJS Supermarkets, LLC, 2021 N.J. Super. Unpub. LEXIS 2605 (App. Div. Nov. 5, 2021) was whether there could be constructive notice of the condition due to an employee walking by the spill just before the plaintiff’s accident.

The store had a video of the accident. It showed that about one minute before plaintiff fell, a bottle of liquid fell from another exiting customer’s shopping cart, spilling clear liquid on the floor. The customer, unaware of the incident, left the store. Within a minute after the spill, two other customers also exited near the spill, apparently unaware of the liquid on the floor. Then a store employee also walked near the spill “but either chose to ignore it or did not notice it before leaving the area. Seconds later, plaintiff slipped on the liquid and fell.”

The Appellate Division found that this video was sufficient proof to present a question of fact to the jury to decide whether the employee should have seen the liquid and then followed the store policy to secure the area. There was no deposition testimony or certification from the employee as to what he saw prior to the plaintiff’s fall. The Court did not agree with the trial judge who determined from viewing the video footage that “it was unreasonable to conclude the employee should have seen the spilled material in the circumstances.” Rather, the Appellate Division ruled that this issue was a question for the jury to decide. Thus, the summary judgment order dismissing the complaint was reversed for the case to proceed to trial.

Plaintiff Angela Lash tripped over a curb while stepping onto a sidewalk at defendants’ car wash.  As a result, she broke her leg.  The issue in Lash v. Ultimate Hand Car Wash and Detail Center, LLC and Carpel Rt. 46 Associates, LLC, 2021 N.J. Super. Unpub LEXIS 2601 (App. Div. November 5, 2021), was whether the jury’s verdict should have been overturned because it was against the weight of the evidence.

The plaintiff had driven her car to defendants’ car wash.  After she left her car, she told the attendant the services she needed.  The attendant gave her an order slip and plaintiff then walked along a line of orange traffic cones toward the car wash’s shop’s office.  Plaintiff had to step onto a sidewalk, which was framed by a bright yellow curb.  As she was attempting to step onto the sidewalk, she broke her left leg.

Plaintiff gave inconsistent accounts of her fall to the police officer, to the paramedics, and then later to her physical therapist’s office.  She told the police officer that she might have missed the ledge of the sidewalk with her left foot.  She told the paramedics that she stepped on the curb and then slipped.  In a questionnaire she completed for the physical therapist office, she again stated that she slipped.  She did not claim in any of these statements that she fell because she stepped on an uneven surface on the curb, or into a crack or hole in the curb. 

At trial, however, she testified that she stepped onto the uneven surface of the curb with her right leg and she presented photographs of the accident scene that showed a crack on the side of the curb.  Plaintiff had an expert, a professional engineer, who testified at trial that “there was a pretty substantial crack” in the vicinity of where she fell.

The defendants presented testimony at trial that plaintiff had her cell phone out as she began walking toward the office door.  Also, the defendants’ owner testified that he inspected the area around the car wash on a weekly basis and painted the curb with safety yellow paint two or three times a year to highlight the existence of the curb so that people would be aware of it.  Further, the owner testified that the Township never cited his business for any municipal code violations.  He did not consider the curb a slipping hazard or a tripping hazard.

The jury unanimously found that the defendants were not negligent in maintaining their business premises and the court entered a judgment in the defendants’ favor.  Thereafter, the plaintiff filed a motion for a new trial, arguing that the jury’s verdict was against the weight of the evidence.  The trial court denied that motion. It was that order that was appealed to the Appellate Division.

In denying the plaintiff’s motion for a new trial, the trial court judge found that there was considerable support in the record for the jury to have concluded that defendants met their duty of reasonable care in maintaining their property, as well as warning their invitees of any conditions that required the customers’ attention.  Further, he noted that the jury was “free to disagree” with the plaintiff’s expert.  The court noted that “viewing the bright yellow – painted curb in the photos could just as readily suggest to any reasonable person that the yellow paint enhanced and highlighted the unevenness of the curb’s imperfections which stood out as a non-painted darker area even to the naked eye many feet away.”  Further, the trial court judge noted that plaintiff’s testimony was not consistent with her prior statements which differed in how and where she fell.

In considering this appeal, the Appellate Division stated that “we recognize the fundamental principle that jury trials are a bedrock part of our system of civil justice and the factfinding functions of a jury deserve a high degree of respect in judicial deference.”  Further, the Court noted that “a jury verdict is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.” 

The Appellate Division further noted that in their review of a trial judge’s decision on a motion for a new trial, the Court will view the evidence in a light most favorable to the party opposing the new trial motion.  Further, “substantial deference must be given to the trial judge, who observed the same witnesses as the jurors, and who developed a feel of the case.”

After applying all these principles, the Appellate Division held that there was “no basis to disturb the trial judge’s denial of plaintiff’s motion for a new trial.”  The Court pointed out that the jury was free to reject both the plaintiff and her expert’s claim that defendants were negligent in maintaining the curb.  Further, the Appellate Division noted that the crack was clearly visible in plaintiff’s photos and “the jurors were therefore able to judge for themselves whether defendants exercised reasonable care by painting the curb bright yellow and inspecting the area on a weekly basis.”  Finally, the Appellate Division pointed out that the plaintiff was not even sure that she stepped on or into the crack in the curb because of her different accounts of how the accident happened. 

Accordingly, the Court was unable to conclude that the jury verdict resulted in a miscarriage of justice and affirmed the trial court’s decision, upholding the jury verdict.

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 (10^th 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 (9^th 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.

By: Sean P. Dugan, Law Clerk

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

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

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

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

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

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

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

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

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

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

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

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