0

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.

0

Employee Disclosure of COVID-19 Vaccinations

With more and more businesses taking the first steps to reopen as the pandemic begins to wane, I have been getting this question from more and more of my clients: Can we ask our employees to provide proof that they have been vaccinated against COVID-19?  The answer is that an employer may indeed ask that question and make that inquiry, but employers must be careful regarding how far they probe into that question.

The Equal Employment Opportunity Commission (“EEOC”) has taken the position that asking someone whether they are fully vaccinated does not result in the disclosure of an employee’s medical information, so asking such a question is fair game for an employer. In the EEOC’s view, just asking the question is not a medical exam because there could be many reasons (other than, for example, employee health issues) that may be why an employee has not been vaccinated. Where you as an employer will need to be cautious is when you start asking questions beyond the vaccination proof issue, such as why the employee is not vaccinated.  There you might be treading too close to asking improper questions about an employee’s medical status. If you find yourself in that territory, you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act’s (ADA) (or Title VII’s, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.” That can be a difficult standard to meet, so employers who wish to venture into this area would be wise to (1) strictly limit their inquiry exclusively to whether or not the employee is fully vaccinated; and (2) requesting proof of that vaccination, say asking for a copy of the vaccination card itself. That way you avoid getting into these medical issue topics, and you the employer would then keep any proof information you obtained from the employee confidential like you would with any other private information received on an employee.

As things continue to evolve, we expect to receive more guidance from the EEOC on what employers can do as part of their reopening efforts, and as that happens, we will provide further legal updates to assist employers in those reopening efforts.

 


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.

0

Under New Jersey Law, City Has No Liability For Plaintiff’s Injury Due To Fall On Snow In Street

In March 2015, plaintiff Donell Prince left his rooming house where he lived and noticed that there was snow on the common walkways of the rooming house property and the adjoining public sidewalks.  Plaintiff decided to walk in the street because snow had been plowed from the street into the sidewalks.  He fell and landed on his backside and side of his body.  One of the issues in Prince v. City of Englewood, 2021 N.J. Super. Unpub. LEXIS 247 (App. Div. February 12, 2021) was whether the City of Englewood could be liable for plaintiff’s fall on the public street because of snow conditions.

Plaintiff alleged that Englewood was negligent in failing to remove the snow from the public sidewalks and streets and this negligence caused him to fall and suffer injuries.  At the trial court level, Englewood successfully filed a motion for summary judgment, obtaining a dismissal of the lawsuit as to it.  This appeal ensued.

The Appellate Division pointed out that the well settled case law under the New Jersey Supreme Court case of Miehl v. Darpino gives public entities in the State absolute immunity for all snow removal activities.  As the Supreme Court later stated in Bligen v. Jersey City Housing Authority, “[t]he common law immunity was based primarily on the limitless liability that could be imposed on an entity, such as a state, county, municipality, or turnpike authority, that had the responsibility to clean up numerous streets and roads.”  Subsequent case law, after the Tort Claims Act was enacted, held that the Tort Claims Act did not change the common law snow removal immunity available to a public entity.

Thus, the Appellate Division found that summary judgment was properly granted in favor of the City of Englewood.  Plaintiff’s allegation was that he slipped and fell on a public street because of snow conditions.  The Court held that “because Englewood enjoys immunity from liability for its snow removal activities, it cannot be held liable for plaintiff’s alleged injuries.”  Thus, the trial court’s decision, granting summary judgment as to the defendant Englewood was affirmed by the Appellate Division.

 


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.

0

New Jersey Issues Employer Vaccine Guidelines

With the increased availability of COVID-19 vaccines in New Jersey, the state Department of Health (“DOH”) recently issued Guidelines allowing employers to mandate COVID-19 vaccinations for its employees. Nonetheless, even in the face of such state Guidelines, employers should still proceed cautiously in implementing such vaccine mandates for employees given the mere emergency use authorization granted to the currently available COVID-19 vaccines under federal law.

In announcing its Guidelines allowing for mandatory vaccinations, the state DOH adopted in large part the Guidelines previously outlined by the Equal Employment Opportunity Commission (“EEOC”) regarding COVID-19 employer vaccination mandates. The state DOH also announced three exceptions to this vaccine mandate rule:

  1. The employee has a disability that would prevent them from getting the vaccine.
  2. The employee’s doctor advised them not to get the vaccine while pregnant or breastfeeding
  3. The employee has sincerely held religious beliefs, practices or observances that would prevent them from being inoculated.

If the employee can prove such exceptions, the employer must provide a reasonable accommodation, per the state DOH’s Guidelines. Moreover, on the other hand, employers can avoid providing an accommodation to an employee where doing so imposes an undue burden on the employer’s operations.

Some other important aspects of the state DOL Guidelines:

  1. Employers generally may request medical documentation to confirm a disability.
  2. Employers may request medical documentation to confirm that an employee who is pregnant or breastfeeding was advised by their doctor to seek such accommodation.
  3. Employers must ensure that all information about an employee’s disability is kept confidential.
  4. If a sincerely held religious belief, practice, or observance precludes an employee from getting a COVID-19 vaccine, however, an employer generally may not question the employee’s sincerity. The exception to this requirement is if the employer has an “objective basis” of fact for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee’s request.
  5. Safety also can be considered in evaluating whether a potential accommodation would be reasonable. In this regard, an employer must base its decisions regarding any potential safety hazard on objective, scientific evidence and not on unfounded assumptions or stereotypes.

Where an employer must provide a reasonable accommodation, such a measure may include:

  1. Allowing the employee to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public.
  2. Providing the employee with personal protective equipment that sufficiently mitigates the employee’s risk of COVID-19 transmission and exposure.

Whether these Guidelines will result in an increased number of employer mandated vaccination programs is difficult to predict. So far, most employers have decided against mandating employee vaccinations because the vaccines have only been approved for emergency use and are not fully authorized and licensed vaccines.

Even with this New Jersey Guidelines directive, the Federal Food and Drug Law’s requirement that no one can be forced to take a vaccine that is only approved for emergency use still exists as a limitation and raises a possible legal risk for employers. Granted, its application in these situations raise novel issues. And, we do not have a definitive answer in the context of emergency use vaccines. Nevertheless, it presents enough of a concern that employers should proceed cautiously in mandating employee vaccines even with the recent state DOH Guidelines.

In that regard, here is one very real and significant legal risk for employers in New Jersey. Let’s say you as an employer want to mandate the vaccination, and one of your employees refuses to take it and they do not fall into one of the stated exceptions. Now, let’s also assume that you as the employer plan to take some type of adverse employment action against the employee-maybe you decide to fire them or put them on a forced unpaid leave of absence. That employee could potentially bring suit and claim that the refusal to get vaccinated constituted a form of whistleblowing and violates the New Jersey CEPA law, with the public policy cited to support the claim being the federal food and drug law. That is one risk that the employer faces in mandating COVID vaccinations when the vaccine is still authorized just for emergency use. This is an important reason why most employers have opted instead to recommend vaccination, with many also offering incentives to promote greater employee response. This later way of obtaining the wanted result of greater employee vaccinations in the workplace is the far safer approach to this issue rather than employer mandates.

No doubt, we can expect this situation on employee vaccinations to continue to evolve, and employers will likely receive further federal and state guidance on how best to proceed as the desire to return to some normalcy in the workplace continues to develop.

 


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.

0

LAD Arbitration Limitation Struck Down By Federal Court

In 2019, when the New Jersey Law Against Discrimination (“LAD”) was amended at the height of the “Me Too” movement, one change made was adding a provision that precluded an employer from requiring an employee to waive their right under the LAD to a jury trial.  Most employment law practitioners understood that this provision was designed to prevent employers from requiring that all work-related disputes be resolved through arbitration, which is expressly allowed under federal law, specifically the Federal Arbitration Act (“FAA”). The FAA requires enforcement of all such arbitration agreements, and expressly favors the use of arbitration to resolve legal disputes. It was expected that at some point this provision of the LAD would be struck down as unenforceable because no state law can conflict with the requirements of federal law, which is supreme under our constitutional system of government. That decision finally came down from a United States District Court judge here in New Jersey last week in N.J. Civil Justice Inst. v. Grewal, No. 19-17518, 2021 U.S. Dist. LEXIS 57437 (D.N.J. Mar. 25, 2021).

The U.S. Chamber of Commerce, the New Jersey Civil Justice Institute, and members of those groups such as Comcast Corp. and PricewaterhouseCoopers LLP all sued in New Jersey Federal Court to stop enforcement of Section 12.7 of the LAD that ostensibly was intended to protect the right of employees to have LAD claims heard by a jury. Arguing that this provision was a direct assault on arbitration rights protected under the FAA, the foregoing groups sought to preclude enforcement of Section 12.7.  Noting that similar provisions have already been struck down under California and New York law for violating the FAA, and was similarly invalidated by a lower New Jersey state court, the Federal Court here likewise concluded that Section 12.7 could not be enforced to the extent that it would prevent employers from utilizing arbitration agreements to resolve workplace disputes under the LAD.  In its decision, the Court specifically rejected an argument that Section 12.7 had no bearing on arbitration rights because no mention is made of arbitration anywhere in that section.  The Court ultimately rejected this argument, because Section 12.7 prohibits the waiver of the right to a jury trial, which is the “primary characteristic” of arbitration. Thus, the lack of any mention of arbitration did not preclude the Court’s ruling that enjoins further enforcement of Section 12.7.

With more and more employers utilizing arbitration agreements, this ruling is an important decision in reaffirming the right of employers to continue to use arbitration agreements, even in light of Section 12.7.  Now, it is clear that Section 12.7 does not pose any impediment to the continuation of the use of arbitration agreements relating to employee LAD claims, and for other similar types of work-related disputes.

While this seems to temporarily resolve the issue, there is a chance that the matter will be appealed. We will keep a close eye on the progress of the case.

 


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.

0

Borough Found Not Liable For Slip And Fall Injury Due To Alleged Depression In Grassy Area Of Municipal Park

Plaintiff Suzanne Pagonis tripped and fell while walking across a grassy field at the Crestwood Lake Club, which was a recreational lake swimming complex owned by defendant Borough of Allendale and encompassed a municipal park, Crestwood Park.  Her daughter had participated earlier in the day in a softball tournament at the Club’s facilities.  Plaintiff fell while crossing a grassy field on the way back to her car to retrieve lunch for her children.  The issue in Pagonis v. Borough of Allendale, 2021 N.J. Super. Unpub. LEXIS 462 (App. Div. March 22, 2021) was whether the Borough was immune from liability for such accident under Tort Claim Act defenses.

Plaintiff and the other tournament families were advised that they could not use the beach and facilities reserved for members that were closest to the main entrance parking lot.  Rather, they had to use only the “west beach,” which was roughly across the lake from the member’s beach and the Club’s concession stand and access that beach through another entrance.  Plaintiff arrived with her children and ultimately ended up parking in a grassy area near the north end of the lake where other cars were parked.  With her family, she walked across a grassy field to the west beach.  Sometime later, she arrived at the concession stand to purchase some food.   Because of the long line, she decided to return to her car, retrieve lunch for her children and go back to the west beach.  As she crossed the grassy field and was about three-quarters of the way to the west beach, she tripped and fell.

Plaintiff claims that her right foot dropped into a deep hole, causing her fall and resulting injuries.  She alleged that the deep hole was a dangerous condition on public property and that the Borough negligently failed to maintain, supervise, control, and repair the open fields around the lake.  She also alleged that Allendale was responsible for controlling the parking lots and directing pedestrian traffic at the Club.  She claimed that the Borough failed to exercise reasonable care because it directed her to an area without safe access to the west beach and failed to supervise access to the west beach.

Allendale filed a summary judgment motion based upon immunities under the Tort Claims Act and the Landowner’s Liability Act.  The motion judge granted summary judgment to Allendale finding that the motion record failed to demonstrate that the hole that allegedly caused plaintiff’s fall or their lack of a pathway to the beach was a dangerous condition on public property.  The judge also rejected plaintiff’s claim that Allendale’s employees were negligent in supervising access to the west beach.  Further, the judge found that the Borough also had immunity under the Landowner’s Liability Act.

This appeal ensued and plaintiff argued that the summary judgment order should be reversed as to the Borough.

The Appellate Division noted that, under the Tort Claims Act, a public entity is immune from tort liability unless there is a specific statutory provision that makes it answerable for a negligent act or omission.  For a public entity to be found liable for a condition of property, “a plaintiff must establish the existence of a dangerous condition, that the condition proximately caused the injury, that it created a reasonably foreseeable risk of the kind of injury which was incurred, that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity’s conduct was palpably unreasonable.”  (N.J.S.A. 59:4-2).

Here, the police officer who responded to the plaintiff’s fall looked around and did not see any hole that the plaintiff might have stepped in and fallen.  One of the responding police officers took photographs, which did not show anything other than the general area of plaintiff’s fall.  Allendale’s Director of Operations testified in a deposition that the grassy areas was mowed by DPW workers two times per week in the summer.  He walked the grassy area once per week but was unaware of any complaints or prior accidents in the area.  Further, although plaintiff’s answers to interrogatories claim she fell in a “deep hole,” her fiancé described it as one caused by a vehicle’s tire.

The Appellate Division noted that, even assuming arguendo, the tire impression, undescribed as to its depth could be considered a dangerous condition, plaintiff was nonetheless required to prove the condition was caused by a public employee’s negligence or that Allendale had actual or constructive notice of the condition.  Although plaintiff contended that the hole was caused by a depression made by DPW vehicles or other vehicles operated by Allendale, the only support for this proposition was a photograph of the scene on the day of plaintiff’s fall.  This photograph portrayed a field of grass but did not demonstrate deep depressions in the earth caused by vehicles’ tires.

Additionally, the Court noted that there was no evidence demonstrating that Allendale was on actual notice of a dangerous declivity through prior observations or complaints.  Finally, the Court found that the plaintiff did not demonstrate that Allendale should have been charged with constructive notice of a dangerous condition.

Plaintiff’s alternative argument that Allendale negligently permitted its employees to direct attendees to an area that required them to walk on the grassy field after parking their cars also failed.  The Court held that “if there was no liability for the condition of the field, directing attendees to that area could not be an independent negligent act by a public employee.”

Thus, the Appellate Division upheld the order granting summary judgment to the Borough of Allendale. The Court found that it did not need to consider whether the immunity provided under the Landowner’s Liability Act applied because it found that the motion judge properly granted Allendale’s summary judgment under the provisions of the Tort Claim Act’s requirements of proof under N.J.S.A. 59:4-2 (liability for dangerous condition on public property).

 


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.

0

Legal Marijuana and New Jersey Employee Rights

On February 22, 2021, Governor Murphy finally signed three bills into law that effectively lay the ground work for legalized use of recreational marijuana in New Jersey.  While it could be some time before widespread legalized marijuana is available for purchase as the state establishes the needed infrastructure for the sale of the drug through state licensed dispensaries, I have fielded a number of questions already from employers regarding how far they must accommodate employee use of recreational marijuana. The reality is that employees will have wider protections under the new use law, and though those protections are not absolute, most employers now will have to come to grips with the new reality that marijuana use after work hours will no longer be grounds to automatically discipline an employee.

The new law expressly bars an employer from firing or refusing to hire a person who uses marijuana in their free time. Nonetheless, employers who have “reasonable suspicion” that a worker is “high” during work hours may still drug test such an employee and ultimately fire or discipline them if the test result is positive. Moreover, if you happen to be a Federal contractor who is subject to drug free workplace requirements, you will have more latitude even under this new legal scheme in imposing restrictions for recreational marijuana use since failing to prevent drug use in your workforce could place in jeopardy your continuing contractor status.

The law further specifically allows an employer to do random, regular or pre-employment screening, but in doing so, it must include a “scientifically reliable” test of blood, urine or saliva, paired with a physical evaluation to determine if the employee is currently impaired, as well as a physical examination by an employee who undergoes training to spot marijuana impairment. What that training will require for such employer observers will likely be crafted as part of the expected regulatory framework to be implemented by the state. So stay tuned for additional developments on this topic.

Finally, a frustrating reality with which employers will now need to grasp even more is that, when it comes to marijuana, there is no widely-used and accepted physical drug tests for marijuana that can detect real time intoxication absent proof of immediate drug use and impairment. Instead, the current test merely reveals the presence of marijuana in the body, which can linger sometimes days or weeks after a person last consumed the drug. This could further limit the circumstances where corrective actions can be taken against an employee for recreational marijuana use.

Accordingly, in light of the passage of this statutory framework that paves the way for legal marijuana use, employers need to start reviewing their drug testing policies and bring them into compliance with the new standards for testing for marijuana use. Furthermore, once training standards are established, employers will need to designate corporate observers and ensure that they receive the requisite training to detect marijuana impairment.  The sooner employers start to address such issues, the better it will be in dealing with this changed legal landscape involving recreational marijuana use.

 


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.

0

Third-Party Complaint Against Municipality Barred Due To Defendant’s Failure To Timely File A Notice Of Tort Claim

Plaintiff Eartha Butler claims that, on March 18, 2018, she suffered injuries after tripping and falling on a sidewalk adjacent to the defendant Badr’s Jersey City private school (“Badr”).  Badr was unaware of plaintiff’s claim until seven months after the accident.  At that time, it served a notice of tort claim upon Jersey City.  The issue in Butler v. Badr School, 2021 N.J. Super. Unpub. LEXIS 216 (App. Div. Feb. 9, 2021) was whether Badr could pursue a third-party complaint for indemnification and contribution against the City of Jersey City.

The plaintiff Butler did not assert a claim against the City. Plaintiff filed a complaint against Badr and other defendants on May 10, 2019, more than one year after the fall. Badr filed an answer and a third-party complaint asserting indemnification and contribution claims against the City.  Thereafter, the City moved to dismiss the third-party complaint.  It argued that Badr failed to timely serve a notice of tort claim in accordance with the Tort Claims Act requirements.  Badr cross-moved for an order deeming its October 31, 2018 notice of tort claim timely or, in the alternative, for leave to file a late notice of tort claim.

At the trial court level, the court granted the City’s motion to dismiss the third-party complaint. The court found that the March 8, 2018 date was the accrual date for the claim subject to the Tort Claim Act’s requirements.  It relied upon the Supreme Court’s decision in Jones v. Morey’s Pier, Inc., 230 N.J. 142 (2017).  It concluded that Badr’s notice of tort claim was untimely because it was not served within ninety days of the accrual of plaintiff’s claim.  The court also denied Badr’s cross-motion, in the alternative, for leave to serve a late notice of tort claim because the cross-motion was filed more than one year after the March 18, 2018 accrual date of plaintiff’s claim under the Tort Claims Act.  Thus, the trial court entered an order granting the City’s motion to dismiss Badr’s third-party complaint and also denied Badr’s cross-motion.  Badr appealed both of these orders to the Appellate Division.

The Appellate Division noted that the Tort Claims Act defines a circumstance as to when a plaintiff may bring tort claims against any public entity.  The Act requires that a plaintiff asserting tort claims against a public entity must first serve the entity with a notice of claim within ninety days of the accrual of the claim.  Under the Jones case, the New Jersey Supreme Court made it clear that this notice of tort claim requirement applies to not only the plaintiff’s tort claims, but a defendant’s crossclaims and any third-party tort claims against a public entity.

Badr’s October 31, 2018 notice of tort claim was received by the City on November 5, 2018, which was more than seven months after plaintiff fell and was injured on a city sidewalk.  Badr claimed that its notice of tort claim was timely because it did not know, and had no reason to know about plaintiff’s fall and injuries or that it had a potential claim for indemnification and contribution against the City, until it received plaintiff’s counsel’s October 18, 2018 letter from plaintiff’s counsel, presumably advising of the accident.

Badr relied upon the discovery rule, claiming that the court erred by failing to deem its notice of tort claim timely and by dismissing its third-party complaint against the City.  Badr argued that it filed a notice within days of discovering, and first having any reason to discover, its possible claims for contribution and indemnification against the City.

The Appellate Division found that the trial court correctly rejected Badr’s argument because it was inconsistent with, and contradicted by, the Court’s holding in the Jones case.  In Jones, neither the defendant nor the plaintiffs filed a notice of tort claim with the public entity within ninety days of the accident.  Plaintiff had filed a complaint more than a year following the accident, but did not assert a claim against the public entity.  The Supreme Court found that the notice of claim requirement applied to both a plaintiff’s claim and a defendant’s crossclaim or third-party claim against a public entity.  Also, under Jones, the Court “explained that a defendant who fails to serve a timely notice of crossclaim for contribution or indemnification …. is not without a remedy at trial.”  A defendant may seek an allocation of fault against a public entity under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law and obtain “a fair apportionment of damages as among joint defendants in accordance with the factfinder’s allocation of fault.”

Applying the Jones holding, the Appellate Division found that Badr’s notice of tort claim was not timely filed because it did not file a notice within ninety days of the accrual of plaintiff’s cause of action.  Badr also failed to move for leave to file a late notice of tort claim within one year of the accrual of plaintiff’s claim and, as a result, the trial court had no authority to grant Badr’s motion to file a late notice.  In the Jones case, the Supreme Court held that where a defendant fails to serve a timely notice of tort claim on a public entity and is not granted to leave to file a late notice, the Tort Claims Act bars that defendant’s crossclaim or third-party claim.

In summary, the Appellate Division affirmed the court’s orders dismissing Badr’s third-party complaint against the City and denying Badr’s motion for leave to file a late notice of claim and to deem the October 31, 2018 notice of tort claim timely.  However, the Appellate Division did note that Badr “shall be entitled to request that the jury allocate fault based on the alleged negligence of the City” as permitted by the Court in the Jones case.

The interesting part of this case is that even though the defendant knew of the claim within the one year time period and failed to timely seek leave to file a late notice of tort claim, the Appellate Division found that, nevertheless, although the third-party complaint was barred, the defendant was still entitled to request that the jury allocate fault based upon the alleged negligence of the public entity.

 


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.

0

When “The Easy Way Out” Isn’t So Easy – Beware of Litigation from Non-Tenured Teachers Who Are Non-Renewed

As a practitioner who has spent most of his legal career as a school board attorney serving as general or labor counsel to boards of education, I address a trend that seems to be on the rise – litigation brought for employment discrimination in the wake of a non-tenured teacher being non-renewed at the conclusion of the teacher’s annual employment contract.

In the world of school law, a “non-renewal” is distinct from a “termination,” “discharge,” or “firing” in both the legal and practical sense.  The latter tend to occur upon notice, and, in the public school context, almost always with cause.  A “non-renewal,” however, can be with or without cause.  All non-tenured teachers are entitled to written notice by May 15 each year about whether they will be renewed or not for the next succeeding school year.  N.J.S.A. 18A:27-10.  If a teacher is non-renewed, he or she has a right to request a written statement of reasons and appear before the Board of Education for an informal hearing known as a Donaldson hearing, the purpose of which is to attempt to convince the Board to offer reemployment notwithstanding the Superintendent’s failure to recommend renewal.  The case law of the Commissioner of Education has, for decades, made it absolutely clear that a non-tenured teacher can be non-renewed for any reason or no reason at all, so long as it is not a reason that would be “arbitrary, capricious, or unreasonable,” such as, for example, discrimination or unlawful retaliation.

Indeed, the ability of the school district to sever ties with a teacher through this quick and relatively painless process is precisely what delineates the difference in legal rights between a tenured teacher and a non-tenured teacher.  Once a teacher fulfills the statutory requirements and obtains tenure, the process for removal becomes significantly more difficult.  Tenured teachers are legally entitled to new contracts each year, and they can only be removed upon the filing of tenure charges and a statement of evidence with the Board of Education, which are then referred for Board approval, followed by a “sufficiency determination” on the charges from the Commissioner.  Only if the charges are deemed sufficient to warrant removal is the matter then referred for an expedited arbitration hearing by one of 50 arbitrators who are maintained on a panel by the Commissioner for hearing such tenure cases.  Grounds for appeal are extremely limited.  As a result, tenure charges tend to be filed in only the most serious cases of employee misconduct or inability, or in cases of documented inefficiency.

This distinction between tenured employees and non-tenured employees has led to an interesting, and somewhat paradoxical, phenomenon when it comes to the types of employment litigation brought against local school districts, in general, and in terms of which employees are likely to bring it, in particular.  To put it bluntly, a school district is far more likely to be sued in court under a statutory cause of action with fee-shifting by a non-tenured teacher who was non-renewed than by a tenured teacher who was subject to tenure charges.

By way of example, recently, I successfully defended a case against a charter school brought under the New Jersey Law Against Discrimination (“NJLAD”).  The plaintiff was a teacher/learning specialist who was employed for just over a semester and a few months before she was granted an extended medical leave of absence, followed by a maternity leave, under the Family Medical Leave Act (“FMLA”).  The employee had significant performance and disciplinary issues since beginning her employment the previous January and working the second semester of her first school year.  Just two months into the new school year, she unexpectedly went out on disability leave in October due to a high-risk pregnancy.  The following May, the employee was non-renewed by reason of her performance issues.  She never requested a statement of reasons or a Donaldson hearing.

The employee brought disparate treatment theory claims under the NJLAD, alleging that her non-renewal was based on gender, pregnancy, and disability discrimination.  Her performance evaluations had been mediocre at best.  Within the first two months of her employment, the charter school had found her classroom management skills to be so poor that it assigned her a teacher-mentor to coach her and “reset” her classroom culture, which had become toxic.  The teacher had initially shown some promise, but soon, these performance issues caused her supervisors to reconsider promoting her.  She had been absent from her classroom without explanation.  Her fellow teachers indicated she was warehousing difficult students in the back of their rooms with “time-outs” nearly every day.

After almost 2 years of discovery painstakingly documenting the performance deficiencies, the case was ultimately dismissed and summary judgment was granted in favor of the charter school, with the trial judge finding (1) that the Plaintiff failed to set forth sufficient evidence from which a reasonable jury could conclude she had satisfied the prima facie elements of discriminatory intent, or that she was performing the functions of her position at a level that met the school’s legitimate expectations; and (2) that the charter school had numerous legitimate, non-discriminatory reasons for non-renewing her employment, including below proficient evaluation scores, improper use of “time-outs,” and poor classroom management skills.

If it were a tenured teacher, such a case could never have occurred.  The tenure arbitration process would have decided threshold legal issues, such as whether the employee was performing her functions in a manner that met with the school’s legitimate expectations, or whether there were adequate non-discriminatory reasons to terminate the employee in the very first instance.  Knowing this, the school district would have taken great pains to ensure significant documentation of the employee’s misconduct or inefficiency long before undertaking to bring tenure charges.  In this case, the evidence was there in the minds of the teacher’s colleagues and supervisors, but it was not documented.  The oversight was a simple one, oft-repeated in the world of public education.  Sometimes, the feeling that a school district can non-renew any non-tenured teacher painlessly and without consequences is so well-known it can lead to a false sense of security.  Things that would have been documented in uncomfortable meetings, letters of reprimand, or “evaluative memoranda” in the personnel file fail to be documented.

The takeaway for public school employers:  Any time you are considering non-renewing a non-tenured employee who is a member of a protected class, or who has complained of the employer’s practices or policies, recognize that the district is potentially vulnerable to litigation under the NJLAD, the Conscientious Employee Protection Act (“CEPA”), or other statutory remedies, and document, document, document. . . .  If the employee has done something serious enough to warrant termination, discuss the situation with legal counsel and consider terminating rather than non-renewing them, even though it risks a labor arbitration over whether the termination was “for just cause.”  Better to have an arbitrator cheaply decide a termination case than to find the school district enmeshed for years in sticky employment litigation in Superior Court with a hungry Plaintiff’s attorney trying to leverage fee-shifting to the tune of hundreds of thousands.  Sometimes, the “easy way out” isn’t always….

 


For over ten years, Cameron R. Morgan has served the public school districts of the State of New Jersey in the specialized area of school law, representing boards of education in all aspects of their legal needs, with a focus on general counsel services, civil litigation, special education, administrative law, collective negotiations, labor and employment, and appellate practice.  He has served as Board Solicitor to dozens of school districts, guiding district administrators through the diverse range of issues affecting the public schools, from personnel matters, tenure cases, and the range of issues that frequently arise at public board meetings, to student disciplinary matters, residency disputes, and homelessness issues, to complex matters involving the budgetary process or First Amendment rights.

0

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.

1 2 3 11