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Tort Claims Act Protects Borough from Liability for a Pedestrian’s Trip and Fall in a Pothole

Plaintiff Galina Benimovich tripped and fell in a pothole located in the street in front of her daughter’s residence in Montvale’s residential Hickory Hill neighborhood, causing her to fracture her wrist and sue the Borough in Benimovich v. Borough of Montvale, 2026 N.J. Super. Unpub. LEXIS 23 (App. Div. Jan. 7, 2026). That area of Hickory Hill lacked sidewalks, causing all pedestrians to use the street. Montvale’s records showed that multiple complaints and repairs had been made of similar potholes in Hickory Hill, but those records showed no similar complaints or reports of any roadway defects in 2021, about the time of the plaintiff’s fall, in the location of the plaintiff’s fall. Montvale expressly prioritized larger, more serious potholes they considered an “emergency,” typically three to four inches deep that “can take out a tire or a bicycle or be considered a tripping hazard.” The pothole was an inch-and-a-half deep, about three feet long, and about a foot wide. The plaintiff’s engineer determined a pothole of one-quarter of an inch deep presented a tripping hazard, and that this pothole far exceeded that standard, particularly where pedestrians were anticipated to pass due to the lack of sidewalks.

Montvale filed for summary judgment pursuant to the Tort Claims Act, N.J.S.A. 59:4-1-1, et seq. (TCA), claiming the plaintiff could not establish the pothole in question was a dangerous condition, actual or constructive notice of the pothole in which she fell, or that Montvale’s failure to respond to the danger posed by the pothole was “palpably unreasonable.” The trial court agreed, specifically finding that the plaintiff failed to establish Montvale’s notice of “this particular pothole.” As a result, the plaintiff appealed.

On appeal, the plaintiff emphasized prior New Jersey TCA case law that established a three-fourths inch depression in a roadway was sufficient to constitute a dangerous condition. Further, the potholes in Hickory Hill were a known, recurring problem, as Montvale’s own records established, giving the Borough constructive notice of the dangerous condition. Finally, the plaintiff stated that Montvale’s failure to fix this pothole was palpably unreasonable due to knowing potholes would occur regularly in Hickory Hill and failing to properly keep records to record and address those dangers. The Appellate Division disagreed on all counts.

In finding the pothole was not a dangerous condition, the Court focused its attention on the Hickory Hill street as a roadway which, though used by pedestrians, was still principally constructed for vehicular traffic, and any defect on it could not be “viewed in a vacuum.” They reasoned that municipalities should not be compelled to retrofit or redesign roadways to accommodate pedestrians simply due to the absence of sidewalks and the resulting foreseeability of pedestrian traffic. Besides, since roadways are reasonably expected to have potholes, just because there are potholes in a roadway does not create an inherently dangerous condition.

Further, the Court underscored the fact that the plaintiff presented no evidence that Montvale knew of this pothole as a result of their lengthy history of complaints and repairs in the area. The Court pointed to the TCA, which requires the plaintiff to prove Montvale had actual or construction notice of the particular pothole in which the plaintiff fell, as shown by testimony or past records of complaints of that condition, not general knowledge of the problem in the area or past repairs.  

Finally, in finding that Montvale’s failure to act did not meet the palpably unreasonable standard, the Court found the record lacked evidence that Montvale’s “actions were so lacking in justification and patently unacceptable under any circumstances.” Despite the plaintiff’s position that the roadway was in regular disrepair, and the Borough knew, the Court found the plaintiff did not show the egregious neglect required under the palpably unreasonable standard, but that Montvale met the standard by prioritizing the use of their limited public resources on potholes they considered more hazardous and in more urgent need of attention than potholes such as this one.

Defense Win: Court Rejects Hostile Work Environment Claim Based on a Single Slur

Determining what constitutes a “hostile work environment” is rarely straightforward. If a coworker makes a single offensive comment based on an employee’s membership in a protected class, and the employee is deeply offended, does that rise to the level of a hostile work environment? What about two comments? Three? As attorneys often say, it depends.

Summary of the Case:

In the case Charles v. County of Lycoming, Pennsylvania et al., No. 4:21-CV-00883 (M.D. Pa. Dec. 31, 2025), the U.S. District Court for the Middle District of Pennsylvania addressed this question and concluded that a single offensive remark, standing alone, was not enough.

The plaintiff, Ruth Charles, is Asian and had been employed as a clerk in the Lycoming County District Attorney’s Office since 2013. On April 6, 2020, a coworker made a comment that included the racial slur “chinks.” The remark was loud enough for Charles and another employee to hear. Both employees reported the incident to a supervisor. Charles reported the incident by e-mail stating: “I am Asian and that word is one of the most racist/demeaning words you could use towards an Asian person. I understand it’s not about me, but it was very inappropriate to hear.”

The supervisor reported the incident to Human Resources and the District Attorney and met with both Charles and the coworker who made the comment. After that meeting, there were no further reports of racially offensive remarks in the workplace.

Later that month, on April 30, an assistant district attorney sent an email to the District Attorney identifying four instances in which Charles failed to perform tasks and acted inappropriately. On May 1, the assistant district attorney reported additional performance issues related to Charles. Also on May 1, Charles’ supervisor sent an email to the District Attorney describing Charles as extremely hostile during a meeting and noted her use of inappropriate language. A paralegal separately documented concerns about Charles’ work performance via email. Specifically, that Charles was sending her work to be completed elsewhere and was questioning her responsibilities. That same day, Charles was informed that her employment was terminated due to insubordination.

Charles subsequently filed suit, alleging violations of Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act (“PHRA”). She claimed she was subjected to a race-based hostile work environment and that her termination was the result of discrimination and retaliation for complaining about the racial slur.

The Court dismissed Charles’ hostile work environment claim, finding that she failed to establish that she was subjected to harassment that was severe or pervasive, which is a required element of such claims. While the court acknowledged that a single incident can be sufficient to create a hostile work environment in rare cases, it emphasized that the incident must be “extreme enough to amount to a change in the terms and conditions of employment.” In this case, there was no evidence that the comment interfered with Charles’ work performance or injected ongoing hostility into the workplace. As the court summarized, this was “the unfortunate case of an isolated offensive comment over an employee’s seven years of employment that does not rise to the level of creating a hostile work environment.”

Charles’ discrimination and retaliation claims also failed. The court found no evidence that her termination occurred under circumstances giving rise to an inference of discrimination or that it was retaliatory in nature. The employer articulated legitimate, non-discriminatory reasons for her termination, namely, repeated incidents of insubordination, and Charles failed to show those reasons were pretextual.

Key Takeaways for Employers:

While offensive language has no place in the workplace, it is a rare and extreme case in which a single incident, without more, will rise to the level of a hostile work environment under Title VII or similar state laws.

Recent Legislation Impacting New Jersey Workers’ Compensation

Two bills have already been signed this year by Governor Phil Murphy, which will have some impact on workers’ compensation. The first, S-3772, deals with board and lodging provided by employers.  Under N.J.S.A. 34:15-37, the law provided until 2026 that board and lodging “when furnished by the employer as part of the wages shall be included and valued at $25.00 per week.”   This legislation was passed in 1945, but the $25 amount has not been amended in 80 years.

Under the new amendment to N.J.S.A. 34:15-37 signed by Governor Murphy, board and lodging when provided by employers as part of wages shall be at market value at the time of injury.  One exception is noted in the amendment. “If, however, the claimant continues to receive board or lodging during a period of total temporary disability, (sic), the value of the board or lodging shall not be included in the calculation of the workers’ compensation rate for purposes of temporary total disability.”

Cases are rare where an employer provides board and lodging as part of wages or a contract of hire. When this does occur, the use of market value rather than $25 per week will amount to a significant increase in the average weekly wage of the employee.  This is the intention behind the legislation.

Another bill relevant to workers’ compensation practitioners was signed by Governor Murphy on January 14, 2026, namely S-2373.  This legislation provides employment protections for paid first responders who have been diagnosed with post-traumatic stress disorder (PTSD).  This bill is not workers’ compensation legislation because Judges of Compensation do not have the power to order reinstatement of employees to work.  Where workers’ compensation law comes into play, however, is the requirement that the diagnosis of PTSD be based on work exposure or work injury.  The law provides:

An employer shall not discharge, harass, or otherwise discriminate or retaliate or threaten to discharge, harass, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions, duties or privileges of employment on the basis that the employee took or requested any leave related to a qualifying diagnosis of post-traumatic stress disorder.

The law further provides that following a period of leave for PTSD, “an employer shall reinstate an employee whose fitness to return to work has been documented by a mental health professional to the position and duties held by the employee prior to the leave.”

How does the employee satisfy the requirement that the PTSD condition arose from work?  The law permits two methods.  First, the diagnosis may be “memorialized in an order of a judge of the Division of Workers’ Compensation concerning the employer and employee and the traumatic injury or exposure which makes up the basis for the claim, upon motion or after a plenary trial or by stipulation of the employer or employee.”

The second way, and probably more common way, will occur after “an examination of the employee by a mental health professional who reports the diagnosis of post-traumatic stress disorder…”  The mental health practitioner must give an opinion that this diagnosis arose from the employee witnessing or experiencing a traumatic event arising from work.  Alternatively, the mental health practitioner may determine that the diagnosis is “due to vicarious trauma experienced by the employee as a result of the performance of regular or assigned duties of the employee.”  The term “vicarious trauma” is not defined in the legislation but is commonly used to mean a situation where the psychological impact stems from learning or hearing about traumatic experiences of others.

This new law does not abrogate the right of a public employer to discharge any employee who it determines to be unfit for duty. However, when a mental health practitioner opines that a first responder can return to work following a leave related to PTSD, this law provides the first responder with job protection.

Employer Social Media Searches-Beware Of What You Wish For!

Thanks to the internet, employers have access to more and more information about their employees and prospective employees than ever before. And most employers love that so much information is now available to them to guide their hiring practices.

Recently, I have gotten multiple questions from clients asking whether it is a smart thing for them to incorporate social media searches into the scope of their usual background checks on employees and prospective employees. My repeated advice is that employers must proceed with caution in this area that, for a variety of reasons, is fraught with the potential for legal peril.

Initially, if planning to look at social media sites, employers must be aware that New Jersey has a law which prohibits employers from demanding from employees or prospective employees that they supply their passwords so that the employer/prospective employer can access password protected private social media areas. While such private social media areas are protected and off limits, publically accessible information on the internet is not, and the law says that employers/prospective employers can consider what is publically accessible in areas where password access is unnecessary. But, as discussed below, there are looming legal dangers lurking even in those publically accessible areas of the world wide-web.

Moreover, employers who do any sort of a background check on employees and /or prospective employees must also ensure that they comply with the Federal Fair Credit Reporting Act (“FCRA”).  Under the FCRA, an employer seeking to do a background check on an employee/prospective employment candidate must meet certain consent and disclosure requirements if the employer will be using an outside consumer reporting agency to conduct the search. Thus, if the employer uses an outside company to conduct the social media search, then compliance with the written consent and disclosure obligations of the FCRA will need to be followed. The outside consumer reporting agency will typically supply those necessary forms for the employer’s use to give to an employee/prospective employee before the search occurs, but I would recommend that a quick legal review of the paperwork be done by counsel to make sure the supplied documents are compliant with the FCRA.

Alternatively, if an employer plans to do a search of social media sites itself, it need not meet the requirements of the FCRA.

Nevertheless, whether utilizing either of the above referenced methods, doing searches of an employee/candidate’s social media sites can place an employer in a precarious situation.  For one thing, there is a lot of maliciously planted information about persons on the internet so the searcher must be very careful in sifting through what is truthful (and what is not truthful) information about a candidate.  Moreover, sometimes, the employer will learn things about a candidate on the internet that it is legally prohibited from knowing during the interview process, and this could lead to unexpected trouble for the employer.

For example, under the law, you cannot ask prospective employment candidates whether they either have a disability, or to disclose their age. By searching social media sites, the prospective employer can, even if not explicitly seeking such information, unwittingly gain knowledge of such prohibited information that should legally have no bearing on the hiring decision. The danger in that scenario lies in the following: if the prospective employee is ultimately denied employment, and learns that the employer found out things about him/her by doing a social media search that reveals legally off limits information like the above, the prospective employee might conclude that consideration of the prohibited information led to the adverse employment decision, even when it did not, and now the employer is embroiled in an unwanted failure to hire lawsuit. No employer would want to find itself in that type of situation ever.

Similarly, here is another common example of an employer web search that could also cause unexpected legal problems. While legally it might be appropriate for the employer to search for current and past civil law cases involving the candidate in a public area of the internet, if the employer decides to not hire the candidate because of a previous lawsuit filed under, say the New Jersey Law Against Discrimination (“NJLAD”), the employer now could be sued for retaliation for withholding a job offer because the prospective employee exercised a protected right to file suit under the NJLAD. Again, another unwanted (and unexpected) situation for an employer.

As these examples therefore show, any employer doing social media searches must do them carefully to avoid the possibility of this kind of unwanted legal peril. If an employer still wants to do social media searches despite knowledge of the above risks, here are some recommended guidelines.

First, access social media sites only after the candidate is interviewed and only if truly interested in that candidate.  Second, the employer must be consistent in conducting such searches-if you do it for one candidate, they have to be done for all candidates. Inconsistent and selective use of searches could otherwise give rise to discrimination claims.  Third, document what is considered (and by implication what was not considered.)  Fourth, the employer must verify the information obtained before using it, especially where the information comes from a third party site as opposed to the candidate’s own site. Finally, the search function itself should be centralized and performed as an integrated part of the overall background check.  In this regard, HR is the best positioned in the company to oversee such search activities. Furthermore, just as critically important, there should likewise be no searches conducted independently by hiring managers or anyone else so the employer has centralized control over the process.

Following the above guidelines should help in controlling the potential problems that could arise from the use of social media search efforts.  But, in the end, and as counterintuitive as it may seem, the most legally effective way of avoiding unwanted problems in this area may actually be fighting the employer’s pressing urge to want to  learn too much about a potential employee/prospective employee’s background.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

Supreme Court Determines Standard of Care of Negligence Claim Asserted by Student Against Coach

Plaintiff Morgan Dennehy, a 17 year old high school senior, filed a lawsuit against her hockey team coach, defendant Dezarae Fillmyer, when struck by a stray soccer ball during practice.  The issue in Dennehy v. East Windsor Regional Board of Education, 2022 N.J. LEXIS 978 (October 26, 2022) was whether the coach’s acts and omissions would be governed by a simple negligence standard or the heightened standard of recklessness (a more difficult standard to prove).

Plaintiff Dennehy was a member of Hightstown High School’s Girls’ field hockey team coached by defendant Fillmyer.  On the day of the accident, the afternoon sport’s practices were arranged so that the field hockey team’s practice would begin when the boys’ soccer team’s use of the turf field ended.  Coach Fillmyer instructed the offensive players on her field hockey team to begin warming up in “the D-zone,” which was an area between the continuous athletic fields and the turf fields.

A few years earlier, a 20 foot high ball stopper net had been installed at the ends of the turf field to prevent ball interference in other areas.  During the field hockey team warmup, at least two soccer balls from the soccer practice landed within the D-zone near the field hockey players.  Plaintiff played the position of goalie and had not been participating in the informal activities in the D-zone.  She asked her coach if she could take a shot on goal and the coach approved.  As Plaintiff was taking a shot, another errant soccer ball cleared the ball stopper and struck the base of her skull, allegedly causing her injuries.

Plaintiff sued Fillmyer, the Board of Education, the school, its athletic director and others. She claimed that her injuries resulted through, among other basis, defendants’ alleged failures to supervise and provide appropriate safeguards and post suitable warnings of potentially dangerous conditions.

After discovery was completed the defendants filed for summary judgment.  Plaintiff argued in opposition that defendants owed her a duty of reasonable supervisory care.  The trial judge found that the plaintiff was required to show that defendants’ acts or omissions rose at least to the degree of recklessness, as described in prior Supreme Court cases.  The trial court judge applied this heightened standard and determined that the allegations could not support a claim of intentional or reckless conduct.

The plaintiff filed an appeal, challenging only the judge’s determination that a recklessness standard applied to her coach’s alleged acts and omissions.  The Appellate Division reversed, finding that the prior recklessness standard was inapplicable because the coach was not a co-participant. It held that a simple negligence standard applied because plaintiff’s claim was that Coach Fillmyer failed to properly supervise and oversee the participants of the sport assigned to her for instruction.

The matter was further appealed to the Supreme Court, which granted certification. The Supreme Court agreed with the plaintiff and the Appellate Division.  It rejected the defendant Fillmyer’s contention that she was entitled to the application of a recklessness standard (which would be a more difficult standard to meet to pursue a claim for injuries).  Instead, the Supreme Court agreed with the plaintiff’s argument that her claims should be governed by a simple negligence standard.

The Court explained that the recklessness standard did not apply because Fillmyer was not actively participating in the recreational activity at issue.  Rather, her conduct was “her choice of the location of the impromptu workout prior to the scheduled practice and her failure to supervise her players as they waited their turn on the turf field.”

Defendant Fillmyer argued that the recklessness standard should be extended to apply to the acts and omissions of instructors and coaches like herself regardless of the circumstances.  The Supreme Court limited its holding to defendant Fillmyer under the allegations presented by plaintiff.  The Supreme Court stated that “we leave for another time the fixing of appropriate standards to govern the myriad ways in which the multi-faceted roles played by coaches and instructors may cause an injury to a participant.”

The Supreme Court noted that the essence of plaintiff’s theory of liability was that Fillmyer chose the wrong place and an unpropitious time to commence practice.  The Court noted that “parents have the right to expect that teachers and coaches will exercise reasonable care when in charge of their children and that courts will not immunize a teacher’s negligence by imposing a higher standard of care.”

The Supreme Court, however, did not intimate that a factfinder should find Fillmyer was negligent.  It merely held that the recklessness standard did not apply under the circumstances. Hence, the Supreme Court substantially agreed with the Appellate Division’s decision and upheld the reversal of the entry of summary judgment in Fillmyer’s favor.

Third Circuit Finds That Statute Of Limitations Period On Civil Rights Claim Arising From Wrongful Conviction Did Not Begin Until Conviction Was Vacated

The plaintiff Yasmine Coello was convicted of harassment in 2007.  Over a decade later, she was successful in having her conviction vacated.  Within two years later, she filed a civil rights action to recover for various abuses she alleged to have suffered during her criminal proceedings.  The issue in Coello v. DiLeo, 43 F.4th 346 (3d Cir. 2022) was whether the plaintiff timely filed her civil rights lawsuit.

This case had many twists and turns, stemming from a private citizen complaint filed by Shirley Messina in January 2007 in Municipal Court.  She accused plaintiff Coello, who at the time was dating Messina’s former boyfriend with whom Messina had a child, of harassment.  At that time, Coello appeared in court, pled not guilty and the charge was dismissed.

However, for some unknown reason, in February 2007, private attorney Kathleen Estabrooks submitted an affidavit to the municipal Judge Louis DiLeo requesting that she be appointed to prosecute Messina’s complaint against Coello.  Her application was granted, despite the fact that the prosecution did not involve a cross-complaint.  Her affidavit failed to mention that she was also representing Messina in custody and other civil actions against Coello’s boyfriend, circumstances that could clearly bear on Estabrooks ability to prosecute Coello’s case impartially.

Without recording any findings as to the need for a private prosecutor or the suitability of Estabrooks for the role, Judge DiLeo approved her to serve as acting prosecutor.  The matter proceeded to a bench trial.  There were other irregularities, including Judge DiLeo having Coello removed from the court room while the prosecution witnesses testified and then examining Coello himself when she took the stand in her own defense.  Ultimately, he found her guilty on the harassment charge and sentenced her to 30 days in jail but suspended that sentence on the condition that she attend 26 weeks of anger-management counseling.

In the next year, a post-trial hearing was held.  At the hearing, Judge DiLeo noted that he recently received a letter from Estabrooks stating that her client, Ms. Messina had been forced to file another complaint against Ms. Coello for assault.  She asked whether Ms. Coello had completed her anger management course as sentenced by the judge.  Coello attended that hearing without counsel.  Estabrooks also attended but entered her appearance as private counsel for Messina.  There was no municipal prosecutor present.  Instead, Judge DiLeo allegedly assumed that role without inquiring into Coello’s lack of representation.

Coello explained at that time that she had a few weeks of anger management remaining but was having trouble scheduling it due to her new job.  Estabrooks urged DiLeo to send Coello to jail and he agreed, reinstating her thirty day jail term.  He did not address any aggravating or mitigating factors.  Instead, she was immediately incarcerated.

While in jail, Coello hired an attorney who moved for reconsideration.  DiLeo did not schedule argument until 14 days into her jail sentence.  The facts were unclear whether that argument ever took place but Coello was released from jail after having been incarcerated for 18 days.

Nine years later, in November 2016, Coello filed a counseled application for post-conviction relief in New Jersey state court.  She asked for her harassment conviction to be vacated, arguing that the underlying proceedings were subject to a host of legal errors.  The State did not oppose Coello’s application having by that time being familiar with allegations of judicial misconduct lodged against Judge DiLeo.  With no objection from the State, the Court granted Coello’s application for post-conviction relief and vacated her conviction.

A little under two years later, Coello filed the within federal civil rights action in the District Court of New Jersey, naming multiple defendants including Estabrooks, her law firm, Judge DiLeo, Linden’s former mayor, its former prosecutor and the City of Linden.  She filed claims under §1983 and alleged a Sixth Amendment claim that certain Linden defendants violated her rights to counsel, to confront witnesses, and to a fair trial.  She also alleged a number of other constitutional violations.

The Estabrooks and Linden defendants each moved to dismiss the lawsuit, arguing that certain of the defendants were entitled to immunity, the claims were legally deficient and they were time barred.  The District Court considered only the timeliness argument against the Linden defendants. It found that Coello believed that she was wrongfully sentenced in January 2008 and that she had a complete and present cause of action for which she could have filed suit and obtained relief at that time.  Because she did not file suit until 2020, the District Court concluded that her claims against these defendants were untimely, dismissing all claims against the Linden defendants.

Upon appeal, the Third Circuit noted that a §1983 claim, like any other civil cause of action, must be filed within a certain time frame.  This time frame is called the statute of limitations and its purpose is to prevent plaintiffs from “reviving claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.”  The Court pointed out that a claim not filed within the applicable limitations, would generally be dismissed as untimely.  In this case, the plaintiff had two years to file this lawsuit.  The issue is when her two year deadline began to run.

The Court analyzed this time period under tort law.  The tort claim that most closely resembled this type of matter would be the common law tort of malicious prosecution.  A key element of a malicious prosecution claim is that the plaintiff “cannot recover unless and until the underlying criminal proceedings terminate in his or her favor.”  Similarly, when one is suing for an alleged unconstitutional conviction or imprisonment, the “plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, are called into question by a federal court’s issuance of a writ of habeas corpus.”

Here, the Third Circuit pointed out that the favorable determination requirement was met on February 26, 2018 when the state court vacated Plaintiff’s criminal conviction.  She brought this lawsuit within two years of that date.  Hence, her §1983 claims were timely filed.  While Coello may have known she was wronged by the Linden defendants’ alleged misconduct at the time of her criminal prosecution, her current claims, all of which attack the validity of those state proceedings, did not exist until her harassment conviction was vacated.  Accordingly, the Third Circuit reversed the District Court decision, dismissing the claim as to the Linden defendants, and remanded it back for the District Court to consider the other arguments made by the Linden defendants in support of their motion to dismiss.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Plaintiff’s Failure To Serve Public Entity At Correct Place Of Business With Timely Notice Of Tort Claim Bars Plaintiff’s Personal Injury Claim

The plaintiff Lyndsey Patton was walking in or near the intersection of Union Avenue and West Side Avenue in Jersey City when she was struck by a vehicle owned by defendant Jersey City Municipal Utilities Authority (“JCMUA”).  The accident occurred on June 30, 2019.  On or about September 10, 2019, the plaintiff’s attorney sent a notice of tort claim addressed to JCMUA, but sent it to City Hall on Grove Street instead of JCMUA’s place of business on Route 440 in Jersey City.  Plaintiff later successfully obtained leave from the trial court to file a late notice of claim on JMCUA, which determination was appealed.  The issue on appeal in Patton v. Wiley, 2021 N.J. Super. Unpub. LEXIS 1400 (App. Div. July 7, 2021) was whether the plaintiff had demonstrated the “extraordinary circumstances” under the Tort Claims Act to allow a late filing of a notice of claim.

Pursuant to N.J.S.A. 59:8-8, a party pursuing a cause of action against a public entity under the Tort Claims Act must file a notice of claim within ninety days of accrual of the claim or else be forever barred from recovering from the public entity.  However, a court may exercise the discretion permitted by N.J.S.A. 59:8-9 to allow a late filing “provided that the public entity or a public employee has not been substantially prejudiced” by the delay and also provided that the plaintiff presents “sufficient reasons constituting extraordinary circumstances” for the failure to comply with this statutory requirement.

The question faced by the Appellate Division was whether the plaintiff had met the extraordinary circumstances standard to justify the late filing of the notice of tort claim.  There was no question that plaintiff failed to file a notice of tort claim on JCMUA within the ninety days.  The plaintiff delivered a notice of claim within the required time but to the wrong address.

The Appellate Division noted that there was no mystery as early as the date of the accident that the vehicle was owned by JCMUA and driven by one of its employees and also there was no mystery about the location of JCMUA’s place of business which was included in the police report and was also otherwise readily available through a simple internet search.  The Court held that the plaintiff’s failure to serve the notice of claim on JCMUA at the right location “was a product of attorney neglect or inadvertence” which did not meet the extraordinary circumstances threshold as required by the statute to allow the filing of a late notice of tort claim.

The plaintiff argued that there was little doubt that JCMUA was aware of the event because, in early September 2019, within ninety days of the action’s accrual, plaintiff’s counsel communicated with Qual-Lynx, the administrator who adjusts claims made against JCMUA. The plaintiff’s counsel also advised and served Qual-Lynx with a claim for no fault benefits because plaintiff did not own an automobile and was not otherwise covered by auto insurance.

The Court noted that this submission to Qual-Lynx, however, made no mention of a personal injury claim to be asserted against JCMUA or its employee, and “it cannot seriously be argued that a notice or communications with a public entity’s adjuster or insurer about a related claim constitutes the notice required by N.J.S.A. 59:8-8.”  (emphasis added). Moreover, the Appellate Division noted that the Qual-Lynx representative certified in the opposition to plaintiff’s motion for leave to file a late notice of claim “that he told plaintiff’s attorney during their September 6, 2019 telephone call that plaintiff needed to serve a notice of tort claim directly on JCMUA.”  As of that date, there was still time left to serve a notice of tort claim on JCUMA within the ninety day time period.

While plaintiff thereafter did forward a notice of tort claim, it was sent to City Hall, not JCMUA’s place of business on Route 440.  The Appellate Division noted that this was not a situation where the claimant or her representatives might have been confused about the identity of the public entity that caused the injury.  She knew at the scene of the accident that the driver worked for the JCMUA and, further, in corresponding with Qual-Lynx within the ninety day time period, the plaintiff’s then attorney referred to Qual-Lynx’s insured as “Jersey City MUA.”

The Appellate Division noted that JCMUA was “aware of and had already conducted an investigation into the accident but, in light of the absence of a timely notice of claim, JCMUA had no reason to know plaintiff intended to make a personal injury claim against it.”  Based upon these facts and circumstances, the Court found that the plaintiff’s failure to serve the notice of tort claim was the product of attorney inadvertence.  Counsel was or should have been aware of the identity of the public entity that was involved in the accident, as well as the correct address for the JCMUA.

Finally, the Appellate Division found that “[w]hile it may be viewed as a displeasing result because it seems JCMUA was aware of the accident and aware Qual-Lynx had been in communication with plaintiff about her no fault benefits claim, there is no question the Legislature intended – when it amended N.J.S.A. 59:8-9 – to require a showing of ‘extraordinary circumstances’ to set a high bar for relief.”

The Appellate Division noted that the Supreme Court had clearly established that attorney negligence or inadvertence did not constitute “extraordinary” within the meaning of N.J.S.A. 59:8-9.  Hence, the Court found that it was “constrained” to conclude the judge mistakenly exercised his discretion in allowing plaintiff to file a late notice of tort claim.  Accordingly, the Appellate Division reversed the trial court’s ruling in permitting the late notice of tort claim to be filed against the JCMUA.  Thus, the end result was that the claim against the JCMUA for this accident was barred.

 

Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

Plaintiff Quadriplegic Found To Have Sufficient Basis To Justify Filing Of Late Notice Of Tort Claim Against Public Entity

On April 9, 2017, plaintiff Jonathan Jeffrey was involved in a one vehicle motorcycle accident, resulting in complete quadriplegia.  Approximately six months after the accident, he consulted counsel, at which point, he learned that his injuries may have been caused or significantly aggravated by the emergency medical technicians who placed him in the ambulance.  In the published decision of Jeffrey v. State, 2021 N.J. Super. LEXIS 65 (App. Div. May 18, 2021), the plaintiff appealed an order of the Law Division denying his motion for leave to file a late notice of tort claim.

Plaintiff’s injuries resulted in several surgeries, including spinal decompression and fusion surgery. He suffered a complete spinal cord transection at the C6-C7 level of his spinal cord, resulting in complete quadriplegia.

Plaintiff was released from the hospital on April 17, 2017 and transferred to a rehabilitation center for two months.  He continued to receive rehabilitation therapy on an out-patient basis for approximately four more months.

However, plaintiff remained completely disabled and unable to perform rudimentary movements, let alone to work.  He had an inability to voluntarily move the upper and lower parts of his body.

Plaintiff retained counsel on November 15, 2017.  At that time, plaintiff was using a wheelchair for mobility and had minimum movement of his upper body.  His decision to consult counsel was, in large part, due to a collection notice dated October 24, 2017 from the hospital.

Plaintiff filed a certification that the first time that he understood that he had a potential claim against the emergency medical services and/or other persons that provided medical care to him immediately after the April 2017 motorcycle accident was when he consulted counsel.  Thereafter, on March 20, 2018, his counsel filed a motion for leave to file a late tort claims act notice.  The lawyer certified that it was not until September 28, 2017 that she finally received sufficient information from a representative of the hospital to conclude that plaintiff’s permanent disabilities may have been caused by some or all of the medical care and treatment he received at the scene of the accident.  She sent in Tort Claims Act notices to the relevant public entities and thereafter filed a motion to seek leave to file a late notice of tort claim.

Pursuant to the Tort Claims Act, a plaintiff must file a notice of claim within ninety (90) days of its accrual (N.J.S.A. 59:8-8).  The Law Division judge has the discretion to grant a claimant leave to file a notice of claim beyond that ninety (90) day time frame, if he or she provides by Affidavit:

(1)        Extraordinary circumstances for his or her failure to file a timely notice of claim; and

(2)        The public entity or employees involved have not been substantially prejudiced by the plaintiff’s tardiness.

The plaintiff argued to the trial court judge that the gravity of his injuries made it “impossible or impractical to view this delay as a failure to exercise due diligence.”  The defendant argued that the motion judge properly exercised his discretion to find plaintiff did not show extraordinary circumstances to justify relief.

The Appellate Division concluded that the trial court judge mistakenly exercised his discretionary authority and reversed.  The Court found that the motion judge “failed to duly appreciate the magnitude of plaintiff’s injuries and their life-altering ramifications.”

In the appeal, the plaintiff argued that the Law Division made a mistake in finding that the accrual date was April 9, 2017, the actual date of his accident.  The trial court judge justified his decision in finding that, while it was difficult for the plaintiff to function in his daily life, there was insufficient evidence in the records to show that the plaintiff was not able to file a timely claim due to the severity of his injuries and his medical care.  The court had noted that the plaintiff was released for treatment by in-patient rehab and that there was nothing to indicate that plaintiff through a family member, friend or individual, was prevented from contacting or retaining legal counsel.

The Appellate Division found that the trial court judge “grossly misapprehended the magnitude of plaintiff’s injuries.  Plaintiff was 25 years old at the time of the accident.  In one catastrophic event, he lost complete movement and sensation of his body.”

The Court further pointed out that after completing two months of in-patient rehabilitation, it would “be beyond insensitive to impose a duty on plaintiff to seek legal advice through surrogates composed of family members or friends, during this life-altering adjustment period.”  The Appellate Division concluded that: “we are certain the Legislature did not intend for the judiciary to construe the term ‘accrual’ in N.J.S.A. 59:8-8 in a manner that abandons all vestiges of basic human empathy.”

Accordingly, the Appellate Division held that November 15, 2017 was the accrual date for his claim.  Thus, plaintiff’s motion to seek leave of the court to accept the TCA notice of claim was only thirty-five (35) days beyond the ninety (90) day statutory requirement.

The Appellate Division noted that after plaintiff completed his two month in-patient rehabilitation program, plaintiff was then required to confront and adjust to his physical limitations.  Further, the Court noted that plaintiff’s inherent difficulties associated with shifting from a motorcyclist to a quadriplegic wheelchair user “cannot be viewed as a barrier to deny plaintiff access to our civil courts.”

Thus, the Appellate Division found that the facts were sufficient to constitute “extraordinary circumstances” pursuant to N.J.S.A. 59:8-9 which permits the filing of a late notice of tort claim.  Accordingly, the Appellate Division reversed the trial court’s denial of the plaintiff’s request to file a late notice of tort claims against the public entities that the plaintiff believed may have exacerbated his injuries.

 

Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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

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

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

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

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

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

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

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

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

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

 

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

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