Municipal Engineer Immune from Negligence Claim Under the Tort Claims Act

By: Betsy G. Ramos, Esq.

Plaintiff Bezr Homes, Inc. sued the engineering firm of Remington & Vernick and its engineer Kenneth Ressler (“the Remington defendants”) alleging negligence due to the failure to file for a township extension of a permit with the DEP for construction of a water main to provide water services to a proposed development. The permit application was not submitted timely by the township and the DEP denied it. Ultimately, the plaintiff’s prospective purchaser terminated the contract for sale, depriving the plaintiff of the $7.5 million sale price. In BEZR Homes, L.L.C. v. Twp. of E. Greenwich, 2014 N.J. Super. Unpub. LEXIS 2503 (App. Div. Oct. 21, 2014), the Remington defendants argued that they should be considered public employees under the Tort Claims Act (“TCA”) and immune under the TCA.

The Remington defendants filed a motion for summary judgment based upon the plaintiffs’ failure to file the lawsuit within the two years statute of limitations as required under the TCA. The trial judge granted the motion and the plaintiff appealed.

The plaintiff contended that the Remington defendants were independent contractors, not public employees, to which the TCA’s time limits do not apply. The TCA makes it clear that only public employees are covered by the Act and not independent contractors.

Municipal engineers are appointed by statute for a period of 3 years. The Township appointed first Ressler and then Remington itself to the position of municipal engineer.

The Appellate Division examined the Remington defendants’ status based upon the application of the control test and the relative nature of the work test. The court pointed out that, for a professional, the appropriate test would be the relative nature of the work test because employers do not control how professionals perform their services.

After applying all of the elements of the relative nature of the work test, the Appellate Division concluded that the Remington defendants satisfied this test and qualified as public employees under the TCA. Because the plaintiff did not claim that the Remington defendants performed any duties other than as a municipal engineer for the township, the complaint was barred based upon the plaintiff’s failure to sue them for more than 2 years following accrual of the claim.