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

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

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

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

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

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

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

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

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

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

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

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

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

 


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

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Pregnancy Discrimination Explained

In a recent New Jersey Appellate Division case, Delanoy v. Township of Ocean, No. A-2899-17T4 (App. Div. January 3, 2020), our state appellate court issued a significant new decision that explains what an employer’s legal obligations are to eliminate discrimination against (and provide reasonable accommodations to) its pregnant employees. This is the first published court opinion addressing these important legal issues for employers.

Back in 2013, the New Jersey Legislature amended the New Jersey Law Against Discrimination (“LAD”) through passage of the New Jersey Pregnant Workers Fairness Act (“PWFA”).  The PWFA revised the LAD to expressly prohibit pregnancy-based discrimination in employment while imposing other legal requirements upon employers regarding how pregnant employees could be treated in the workplace. Among those other important legal requirements, the PWFA obligates employers, subject to an undue hardship exception, to afford reasonable accommodations in the workplace to pregnant women, when requested, and also to not penalize women due to their status of being pregnant.

The Plaintiff in Delanoy was employed as a police officer. When she became pregnant with her second child, she informed her supervisor that at the direction of her doctor she needed to be taken off her patrol duties and receive some sort of light duty position during the period of her pregnancy. As a result of her request, the employee was placed into a light duty non-patrol position pursuant to a “Maternity Assignment Standard Operating Procedure” that was a previously adopted policy by the employer. That policy enabled pregnant workers to work a different maternity job assignment, but in exchange for the modified assignment, the pregnant officer had to use all of her accrued paid leave time off (e.g. vacation, personal and holiday time) before going on that different work assignment. The police department employer also had a separate light duty assignment policy for non-pregnant injured officers who also needed a different temporary job assignment. Unlike the maternity reassignment policy, this light duty policy gave the police chief the authority to waive the condition of utilizing accrued leave time as a prerequisite for receiving the light duty assignment.

Plaintiff filed suit against her employer claiming that the maternity reassignment policy discriminated against pregnant employees since it was less favorable than the separate light duty non-pregnancy policy, which made provision for the waiver of the required exhaustion of paid leave time. Because of this disparity, the Plaintiff argued that the policy on its face discriminated against pregnant employees in violation of the PWFA because such employees were penalized in requesting an accommodation by losing their paid leave time as a condition for receiving the requested accommodation.  Reversing the trial court’s determination of no discrimination, the Appellate Division agreed with the Plaintiff that the maternity assignment policy discriminated against pregnant workers because unlike non-pregnant workers who could seek an exception to the paid leave use requirement under the light duty policy, the maternity reassignment policy allowed for no such exemption. In light of this finding, the court declared the policy to be illegal on its face and enjoined its further enforcement moving forward by the employer.

In light of the court’s ruling in Delanoy, employers need to familiarize themselves with the unique obligations owed to pregnant workers who may need a workplace accommodation under the PWFA.  Not only does that law prohibit discrimination against pregnant workers, but it also affords those employees with the opportunity to receive an accommodation because of their physical condition.

Hence, to assist employers in understanding that accommodation duty, the PWFA cites various examples of possible required accommodations, which could include “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedule, and temporary transfers to less strenuous or hazardous work….”  Of course, this accommodation duty is subject to application of an undue hardship exception, and the law likewise lays out various considerations for making that determination as well (i.e. size of employer, size of work facility, size of company budget, etc.).

In sum, the PWFA significantly changed the legal landscape for employers as it relates to its pregnant workforce, so employers must be ever cognizant of the law’s requirements and ensure that workplace policies do not treat non-pregnant workers better than pregnant workers, or punish such employees due to their condition, especially those policies and practices that impact upon available accommodations that an employer may be willing to make for its general workforce.

 


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.

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Neither Township, nor County Found Liable for Fatal Pedestrian Accident Due to Plaintiff’s Failure to Prove Roadway in a Dangerous Condition

Plaintiff’s Decedent Amelia Cius was crossing the roadway at 9:30 pm when she was fatally struck by a car on Whitehorse-Mercerville Road. The driver of the car explained that he did not see the decedent because she was wearing dark clothing. She was not in the crosswalk while crossing the road. The issue in Deravil v. Pantaleone, 2019 N.J. Super. Unpub. LEXIS 2252 (App. Div. Nov. 1, 2019) was whether the Township and the County could be held responsible for the accident on the basis that the roadway was in a dangerous condition.

The area where the decedent was struck lacked functioning street lights. Also, the plaintiff alleged that the trees and utility poles obstructed the view of the road for both pedestrians and drivers.

The sidewalk on the eastern side of Whitehorse-Mercerville Road abruptly terminated at the point of impact. The plaintiff’s counsel speculated that the decedent entered the roadway because the sidewalk ended. However, plaintiff’s complaint alleged that she was attempting to cross the road when she was struck by an oncoming car.

In a summary judgment motion, the Township and the County both argued that they were not liable under the Tort Claims Act. The Township contended that it did not own or control the roadway. The County argued that the roadway was not in a dangerous condition. Both argued that the decedent “failed to exercise due care in crossing the road.”

The trial judge granted summary judgment, relying on the Supreme Court’s case of Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., in which the Court determined that the purpose of the road “was to facilitate vehicular travel and plaintiff presented no evidence suggesting the road was unsafe for that purpose.” Further, the judge found that there was no evidence that the road was unsafe for pedestrians if used “in a normal and foreseeable manner by crossing at designated crosswalks.” The decedent’s failure to use the designated crosswalks was unreasonable.

The Appellate Division agreed with the trial court judge that summary judgment was warranted as to the two public entities. It noted that the plaintiff presented no evidence that the roadway itself was dangerous. The Court stated that “[t]he termination of the sidewalk, inadequate street lighting, or the location of trees and utility poles were not physical characteristics attendant to the road.” To determine whether a dangerous condition of public property exists under the Tort Claims Act, one must examine “the physical condition of the property itself and not to the activities on the property.”

The Appellate Division also noted that the driver of the car was using the road as intended at the time of the accident. The decedent’s use of the road, however, was “so objectively unreasonable” that the condition of the roadway itself could not have caused the injury. The decedent, wearing dark clothing, was walking across a four lane roadway at night. The Court found that the decedent’s conduct “was indicative of a lack of due care, precluding a finding of any actionable dangerous condition to impose liability on the Township or the County.”  Thus, the Appellate Division affirmed the dismissal of the Complaint as to both public entities.

 


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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New Jersey Bans Hair Discrimination

On December 19, 2019, New Jersey Governor Phil Murphy signed into law a bill which now makes it illegal to discriminate based upon hairstyles associated with race. The law, known as the “Create a Respectful and Open Workplace for Natural Hair Act” or “CROWN” for short, amends the New Jersey Law Against Discrimination (“LAD”)’s prohibitions to now bar discrimination based upon “traits historically associated with race,” including hair texture and “protective hairstyles,” defined under the law as styles such as dreadlocks, braids and twists. According to the Senate Judiciary Statement reporting favorably on the bill: “The change is intended to remove any confusion or ambiguity over the scope of the LAD and its applicability to race discrimination predicated on such traits.” With its passage, New Jersey becomes the third state in the country (along with California and New York) to ban such discrimination. The law was passed on the one year anniversary of a high school wrestling incident where a New Jersey African American student could not wrestle in a match unless his dreadlocks were either covered or cut.

In light of this new law, which takes effect immediately, employers should review their workplace personal appearance policies to ensure that their policies withstand legal scrutiny under these new requirements. One critical question left unanswered by the new act is whether restrictions can continue to be placed upon hair style or hair length for safety reasons, say when an employee works around heavy machinery or around food in the food industry. It therefore remains to be seen whether such previously acceptable limitations on hairstyles and length will still be permitted under the new law.

 


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.

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Municipality Found Not Liable For Pedestrian Accident Due To Tort Claims Act Sign Immunity

Plaintiff, Alexander Ferris, at age 13 was injured when struck by a car driven by defendant Aida Blanco-Alquacil as he crossed the road in the crosswalk at an intersection in the Borough of Middlesex.  His parents filed a lawsuit, alleging negligence by the defendant driver, as well as the Borough of Middlesex, claiming that the intersection was a dangerous condition and it lacked adequate signage.  The issue in Ferris v. Blanco-Alquacil, 2019 N.J. Super. Unpub. LEXIS 2125 (App. Div. October 17, 2019) was whether the Borough would be liable for failure to install an upright crosswalk sign at the intersection.

The Borough had obtained a summary judgment in its favor, arguing that the intersection was not a dangerous condition under the New Jersey Tort Claims Act.  It obtained an expert report that the crosswalk and intersection were not a dangerous condition because the crosswalk was clearly marked with a street light above.  The plaintiff had opposed that motion, arguing that the intersection did not have an upright crosswalk sign, as did the crosswalks on the same road and intersections before and after.

In granting Middlesex’s Motion for Summary Judgment, the trial court judge determined that the lack of the sign could not have been a proximate cause of the accident.  In the defendant’s deposition, the defendant acknowledged that she would “slow down” and be “more careful” upon seeing an upright crosswalk sign.  She was familiar with this intersection, driving this road twice per day and going slowly, because there are many businesses in the area and a lot of people walk there.  She saw the crosswalk lines at the subject intersection.  Hence, the trial court judge found that the fact that there was no upright sign is moot because the defendant testified she was aware of the crosswalk and looked for pedestrians.

Upon appeal, the plaintiff argued that there was a genuine dispute whether the absence of an upright crosswalk sign at the intersection could have been a proximate cause of the accident.  In opposition, Middlesex disputed this argument and also added that the Tort Claims Act sign immunity defense, N.J.S.A. 59:4-5, applied to bar the claim against it. This provision specifically immunizes the public entity “for an injury caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices.”  While the sign immunity defense had not been specifically raised below, the Appellate Division did consider it upon appeal.

The plaintiff acknowledged that the intersection and crosswalk where the accident occurred did not inherently pose “a substantial risk of injury” when “used with due care.”  Plaintiff acknowledged that the crosswalk was appropriately marked and visible to approaching drivers.  Nevertheless, the plaintiff argued that “a reasonable fact finder could conclude the presence of upright crosswalk signs at other adjacent intersections on the road transform this intersection, which lacked a sign, into a dangerous condition under the TCA.”

The plaintiff argued that the Civalier by Civalier v. Estate of Trancucci case applied.  In the Civalier case, there was a missing stop sign due to vandalism, which was an apparent recurring problem in a municipality.  One of the drivers knew there was a stop sign that regulated the intersection and assumed that he had the right of way.  The other driver, however, proceeded into the intersection, resulting in a horrible accident, causing three fatalities and two injuries.

In Ferris, the Appellate Division found that there was nothing in the motion record demonstrating that this intersection in question ever had an upright crosswalk sign and, further, the record was clear that the defendant never relied upon the previous presence of the sign in driving down the road on the night of the accident.  The Appellate Division found that “in the absence of any proof that Middlesex ever placed an upright crosswalk sign at this particular intersection, this case is similar to numerous other cases applying the sign immunity of N.J.S.A. 59:4-5 to defeat a plaintiff’s claim of a dangerous condition of public property.”

The Court further found Middlesex’s decision to place signs at other intersections could not overcome the sign immunity defense, which immunized Middlesex’s discretionary decision not to post an above-ground crosswalk sign at the intersection in question.  The Appellate Division held that without other proof that the crosswalk and intersection formed a dangerous condition, it was appropriate for a trial court to grant summary judgment.  Thus, the Court affirmed the trial court’s order granting summary judgment in favor of the Borough of Middlesex.

 


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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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.

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Municipality Found Not Liable For Fall Due to Uneven Sidewalk

Plaintiff Allan Suarez sued Ridgefield Park for damages resulting from injuries he suffered when he claims to have tripped on an uneven portion of a sidewalk across the street from his home.  Ridgefield Park successfully obtained a summary judgment dismissal on the trial court level pursuant to the Tort Claims Act immunities.  In Suarez v. Gallagher, 2019 N.J. Super. Unpub. LEXIS 2003 (App. Div. September 30, 2019), the plaintiff appealed the summary judgment ruling, arguing that he had satisfied the Tort Claims Act requirements so as to be able to pursue the claim against Ridgefield Park.

In the appeal, plaintiff argued that he had satisfied the Act’s notice requirements, that the sidewalk constituted a dangerous condition, and Ridgefield Park’s failure to ameliorate the condition was palpably unreasonable.  The Appellate Division rejected all of these arguments.  First, the Appellate Division addressed the dangerous condition contention.  The Court noted that the sidewalk slabs were alleged to be uneven, with one protruding one and a half inches above the other.  The Appellate Division stated that “uneven sidewalk slabs do not necessarily constitute dangerous conditions as defined by the Act.”  It pointed out that a defect is not a dangerous condition merely because it exists and that an alleged defect must be more than “minor, trivial or insignificant.”  The Court found that a declivity of one or one and a half inches in a sidewalk is a commonplace defect and does not meet the Act’s definition of a dangerous condition.

Second, the Court found that the plaintiff also failed to show that Ridgefield Park had actual or constructive notice of the alleged defect, as required by the Act.  The plaintiff had presented no evidence to suggest that Ridgefield Park received any complaints about the sidewalk.  Instead, the evidence demonstrated that “neither plaintiff, who lived across the street, nor plaintiff’s neighbor whose property abutted the allegedly defective sidewalk, ever uttered a complaint about the sidewalk.”  Further, the Appellate Division rejected the argument that because Ridgefield Park has a shade tree commission and would fix defects when brought to its attention provided a basis for finding it possessed constructive notice of any sidewalk defects that were not brought to its attention.

Thus, the Appellate Division affirmed the trial court’s grant of summary judgment, dismissing the law suit against Ridgefield Park.

 


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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It’s Abuse (FMLA) I Tell You!

Since the Federal Family and Medical Leave Act (“FMLA”) was passed back in 1993, employers have frequently worried about one overarching issue: FMLA abuse and fraud.  Just recently I had a client ask: what can an employer do when it suspects that an employee is lying about the need for FMLA leave? I tell employers to fear not, and not fret, because there are in fact legal tools available to them to weed out FMLA fraud.

Under the FMLA, before an employee can get FMLA leave, the employee must obtain supporting medical information from a health care provider to justify the need for leave.  Typically, employers receive a signed medical health certification form from the health care provider, which is a form prescribed for such use by the US Department of Labor. This is the first place to look to detect fraud. Closely scrutinize the form to determine whether the health care provider actually provides support for the medical diagnosis for which the employee is seeking leave. Where there are discrepancies between what the health care provider indicates and what you are being told by the employee, the employer should follow what the health care provider notes in the form rather than what the employee is telling you. This way, the employer can weed out any misinformation being provided by the employee to justify a leave.

The second-place on the form that should be evaluated is the nature of the leave that the health care provider is prescribing for the employee. Look to see exactly how much time the health care provider believes the employee needs to be out of work, and when, especially if intermittent leave is sought by an employee. For example, where the employer finds that the employee is spending more time out of work on intermittent leave than what the health care provider has indicated is necessary on the form, this is a telltale sign of possible abuse. So, what can the employer do in such circumstance? For one thing, the employer can ask for a recertification form from that physician/health care provider if the pattern of use is different from what was previously prescribed. FMLA regulations provide this tool to the employer to control possible abuse by alerting the health care provider that the employee is using the leave in a way which is different than what was originally recommended and prescribed.

Another tool available in a suspected fraud situation is requesting a second opinion so that another health care provider paid by the employer can evaluate whether there is in fact the need at all for the FMLA leave. Where the second opinion differs from the original health care provider’s certification supporting the leave request, the FMLA statute and regulations provide for the obtaining of a third opinion, which is binding on both the employer and employee, and this becomes the final determination on whether leave is authorized. The final health care provider is chosen collectively by both the employee and employer. Clients of mine have used this method to stop potential FMLA fraud/abuse in its tracks where the employer reasonably suspected due to the circumstances presented that the requested leave was not needed by the employee.

Aside from the foregoing mechanisms, employee fraud has also actually been discovered through searches of the Internet and publicly available social media sites of the employee. Where an employer suspects fraud, taking a look on the Internet and conducting searches on the employee, especially on the publically accessible portions of social media site areas such as Facebook, can provide important information corroborating suspicions of fraud. In one reported case, an employee’s FMLA fraud was discovered from pictures posted by the employee on the Internet from a tropical island where the employee was vacationing at a time when he was out on FMLA leave. The employee tried to justify the vacation by arguing that his health care provider prescribed it to deal with the stress condition that prompted the request for FMLA leave, but the court did not buy that argument.

Sometimes, information about FMLA fraud will likewise come from co-employees who will report a violation because they too are upset that the employee is not at work. Similarly, I have had cases where an employee’s own relative reported the fraud in requesting FMLA to the employer so corrective action could be taken. In other extreme situations, private investigators can be used to monitor the daily activities of the employee to see whether the leave is truly needed.

The FMLA is very clear on this issue: fraud is not something that an employer must accept, and utilizing the tools available under the act will enable the employer to ferret out illegitimate requests for leave. Where fraud is discovered, employers have every right to take disciplinary action against the employee, including termination, as the employer did in the case involving the illicit vacation scenario mentioned above. So, if you are facing a situation where fraud is suspected, conduct an investigation, which sometimes will require that the employer directly confront the employee with the allegations. Employers will be amazed at how well you can guard against and remedy FMLA fraud by using the very mechanisms made available under the law and its accompanying regulations for combating such illegitimate practices.

 


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.

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US Department of Labor Announces New Overtime Rules

Just a few years ago, employers were preparing to follow what were to become new overtime rules that were going into effect near the end of the Obama administration.  Those rules were sidetracked by an unexpected court ruling that struck the new rules down and declared them to be unenforceable. Since that time, employers have been waiting on what, if anything, the United States Department of Labor (“USDOL”) would do with this issue with a new administration in power in Washington, D.C. We received that answer this week on September 24, 2019 when the USDOL promulgated new final rules that will apply to overtime eligibility determinations starting in 2020.

The new provisions update the Fair Labor Standards Act’s (FLSA) regulations and minimum salary thresholds needed for executive, administrative, and professional employees to be exempt from overtime. These final rules will go into effect on January 1, 2020.

Here are the changes that are being made by the new rules:

  • The standard salary threshold for classifying an employee as exempt from overtime increases to $684 per week ($35,568 annually), up from $455 per week ($23,660 annually).
  • The minimum salary threshold for the Highly Compensated Employee (HCE) exemption increases to $107,432 annually, up from $100,000.
  • Nondiscretionary bonuses, incentive pay, and commissions, may make up to 10 percent of this standard income threshold, as long as they are paid at least annually.
  • Special salary levels for workers in United States territories and the motion picture industry will be revised.

So, what should employers do while waiting for the new rules to go into effect?  Like many employers did when the overtime rules were expected to change during the Obama administration, employers should conduct an audit of its workforce and determine how these regulations might affect your current payroll practices. It is believed by the USDOL that, due to these new regulations, an additional 1.3 million employees will be now eligible for overtime. Therefore, if you have employees who were classified as exempt because of their meeting the older salary test standard, employers will now need to decide if they want to raise what those employees are being paid to the higher 2020 salary level to maintain the exemption or reclassify those employees as non-exempt moving forward.

 


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.

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Municipality Not Entitled To Weather Or Snow Removal Immunities If Accident Resulted From Other Causes

Plaintiff Barbara Santopietro alleged that she fell on black ice on the roadway in front of her home in the Borough of Union Beach.  Her husband Gabriel asserted that whenever it rained, large pools of stagnant water formed in front of their home, which he reported to the Borough.  The issue in Santopietro v. Borough of Union Beach, 2019 N.J. Super. Unpub. LEXIS 1551 (App. Div. July 8, 2019) was whether the Borough was entitled to common law snow removal immunity and/or weather immunity under the Tort Claims Act to avoid liability for the plaintiff’s fall if the fall occurred due to ice forming from causes other than a snowstorm.

After the plaintiff’s husband complained to the Department of Public Works about the pools of stagnant water that reoccurred on his street after a rainfall, their road was milled by the Borough.  As a result of these efforts, the reoccurring pooling problem was temporarily eliminated.  The milled road then directed water to a sewer grate, which eliminated the ponding.

About two years later, the road was repaved following the installation of a water main and the pooling in front of their home came back.  There was no drain, and according to Gabriel, it would get bigger and bigger, now coming up their driveway and into their front yard.  Plaintiff fell on black ice while walking to her car and suffered injuries that she claims were caused by this “dangerous condition.”

The Borough argued to the trial court that it had common law snow removal immunity and/or weather immunity under the Tort Claims Act.  Pursuant to N.J.S.A. 59:4-7, public entities have immunity “for an injury caused solely by the effect on the use of streets and highways of weather conditions.”  Also, under the Miehl v. Darpino case, the courts recognize immunity for injuries caused by the snow removal activities of public entities.

The Appellate Division, however noted that the weather immunity statute (N.J.S.A. 59:4-7) did not apply in cases where injuries were allegedly caused by a combination of weather and other factors.  Also, the common law snow removal immunity cases consider claims solely based upon negligent snow removal, independent of any other cause.  If there was conduct that was unrelated to the snow removal activity, the court noted that the cause of action could still be maintained despite this common law immunity.

In this case, the Borough contended that it had snowed two or three days before the plaintiff’s accident and the plaintiff did not observe any water on the ground that morning. The plaintiffs produced an expert report as to the improper road re-pavement after the water line installation. The report claimed that the repaving worsened the water accumulation problem in front of the plaintiff’s home and that the municipality failed to address the flooding and draining problem caused by the improper slope, which lead to the icy condition on the roadway and the plaintiff’s fall.

The Borough argued that it appeared that plaintiff slipped and fell on black ice, which was a result of melting and re-freezing after the Borough’s snowplow plowed the roadway a few days prior to her accident.

The plaintiff’s version, however, was that the sheet of ice was as a result of the pooling on the street that was not resolved by the Borough, as opposed to the result of melting and re-freezing.

The Appellate Division agreed with the plaintiffs that the trial court erred when it held that the Borough enjoyed common law snow removal immunity.  The evidence showed a possible cause for the plaintiff’s injuries other than the Borough’s snow removal efforts.  Not only would the Borough not be afforded immunity under the common law but also it would not have immunity under the Tort Claims Act weather immunity defense.

However, there was no evidence on the record that the Borough had any notice of the icy condition prior to the accident. Under the Tort Claims Act, the plaintiffs were required to establish that the road was in a dangerous condition and that the Borough had actual or constructive notice of this condition within a sufficient amount of time to take protective measures.

Even though the plaintiff’s husband may have complained to the Borough’s mayor that there was still water in front of their house after it was re-paved and that a neighbor may have also informed the mayor about the flooding in front of the house, the notices to the Borough were not about the formation of black ice.  Rather, they were about flooding after a rainfall.  The plaintiff did not slip on a large accumulation of frozen water.  Rather, she slipped on a thin coating of black ice.

Hence, the Appellate Division found that these alleged verbal complaints by the plaintiff’s husband and his neighbor did not put the Borough on notice of the condition that caused the plaintiff’s fall.  Therefore, the Appellate Division did find that the Borough was immune after all, based upon the lack of notice, and affirmed the trial court’s grant of summary judgment to the Borough.

 


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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