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Appellate Division Affirms OPMA Does Not Require BOE to Discuss Proposed Employment Action Prior to Voting

On May 17, 2019, the New Jersey Appellate Division in Centrella v. Prospect Park Board of Education issued an unpublished decision confirming that, under the Open Public Meetings Act (“OPMA”), a public entity is not required to discuss a proposed employment action prior to actually voting on that action. This case involved a former Prospect Park Board of Education (“Board”) employee’s appeal under the OPMA in which she alleged that the Board improperly eliminated her position of speech language specialist and terminated her tenured position when the Board did not discuss the proposed action at the same meeting in which it voted to take that action.

The proposed termination of Plaintiff’s position was listed on the Board’s publicly available agenda, which also explained the reasons for the recommended action, including reasons of economy. In preparation of the Board’s June 17, 2017 meeting, Plaintiff received a Rice notice, to which she responded that she wished to have her employment discussed at the public portion of the meeting rather than privately in executive session. Without discussion, the Board voted to approve the resolution involving Plaintiff, along with fourteen other employment resolutions. A call for discussion amongst Board members was made, to which Board members had no comments.

Relying on Kean Federation of Teachers, the Appellate Division affirmed the trial court’s dismissal of Plaintiff’s complaint. In rejecting Plaintiff’s arguments, the Appellate Division confirmed that OPMA does not mandate that a public entity engage in any particular level of discussion at a public meeting. Instead, OPMA gives a public employee the right to require the public entity to conduct its discussion, if any, in public rather than in executive session. While Plaintiff requested that her employment be discussed in public session, she could not compel the Board to have a discussion prior to its voting on her employment.

 


Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA.

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Contractor Who Missed 90 Day Deadline for Serving A Notice of Tort Claim by Two Days Barred by Court To Pursue Tort Claim Against Municipality

Plaintiff Lakeside Construction (“Lakeside”) was a contractor who was hired to perform various site improvements at a school located in the Township of Sparta.  Those site improvements included the installation of an underground pipe to connect the new school building to the municipal water main.  Several weeks after a person who allegedly identified himself as a Township Inspector came out and inspected the pipe, the Township’s Director of Utilities sent a letter to Lakeside that it had impermissibly installed the pipe without authorization and without an inspector present.  Lakeside was forced to incur the expense to install a duplicate pipe and served a Tort Claims Act notice upon the Township, claiming damages for this expense.  The issue in Lakeside Construction v. Township of Sparta, 2019 N.J. Super. Unpub. LEXIS 1062 (App. Div. May 9, 2019) was the accrual date for Lakeside’s claim, as well as whether missing the 90 day Tort Claims Act notice deadline by two days would bar Lakeside from pursuing its tort claims.

Lakeside claimed that a person who identified himself as a Township Inspector had come out on November 10, 2016 and observed the installation of the first section of pipe. The alleged inspector left the site and Lakeside workers completed installing the pipe that day.  It was thereafter on December 29, 2016 that Mr. Spaldi, the Township’s Director of Utilities, advised Lakeside that it had impermissibly installed the pipe.  He sent Lakeside an e-mail, informing it that the water service for the project was not accepted and that water supplied to the project would not be authorized.  While Lakeside disagreed with Mr. Spaldi’s finding that the pipe had not been inspected, they were forced to install a duplicate water line parallel to the one they had already installed because it was under time pressure to complete the overall project for the school so that it would receive a Certificate of Occupancy and the building could be opened promptly.  Thus, according to Lakeside, it incurred expenses in the amount of $50,409 in installing the duplicate pipe.

Thereafter, it sued the Township, alleging negligent supervision by the Township and the Water Utility in hiring, retaining and supervising the Township’s Director of Utilities Spaldi and another Township Official by the name of Michael Sportelli.  The complaint also alleged negligent failure to train, negligence in carrying out ministerial functions, and tortious interference.

The defendants filed a Motion to Dismiss the Complaint, arguing that the Tort Claims Notice that Lakeside had served was not served within the 90 day time period prescribed by N.J.S.A. 59:8-8.  The defendants asserted that any cause of action for negligence accrued on December 29, 2016, the date of Mr. Spaldi’s e-mail advising that the pipe installation was unauthorized.  With that accrual date, notice of any tort claim had to be served on the Township no later than March 29, 2017.  However, the notice was not served until March 31, 2017, the 92nd day after the December 29, 2016 email.

Lakeside opposed the dismissal motion, arguing that its claims did not accrue until mid-January 2017 when it incurred the expense of installing the duplicate pipe.  Further, Lakeside argued that the Township’s ongoing refusal to change its position about the legitimacy of the original November 26 installation amounted to a continuing tort, which it claimed would defer the time of accrual.

At the trial court level, the Judge granted the defendants’ motion, finding that the injury to Lakeside first manifested itself when it received the notice from Mr. Spaldi that its original installation was unacceptable.  Lakeside’s subsequent expenditures on the duplicate pipe did not delay the accrual date.  Further, the judge rejected Lakeside’s theory of a continuing tort.

Upon appeal, Lakeside continued to argue that the accrual did not occur until mid-January 2017 and, hence, its Tort Claims Act notice was timely served.  It also argued, in the alternative, the theory of continuing tort, alleging that the defendants’ persisting refusal to retract the December 29 e-mail represented an ongoing form of negligence by inaction.

The Appellate Division agreed with the trial court that Lakeside’s tort based claims against the Township and its officials did accrue on December 29, 2016, the date of the Spaldi e-mail.  Lakeside’s complaint characterized the e-mail as a wrongful tortious act, one based upon a false belief that a Township Official had not inspected the original pipe connection when it was installed in November 2016.

The Appellate Division also agreed with the trial court that the accrual of the claim was not delayed until the expenditure of funds by Lakeside to install a replacement pipe in mid-January 2017.  It pointed to the Supreme Court decision of Beauchamp v. Amedio, in which the Court held that the date of accrual of a personal injury claim arising from an accident is the date when the accident occurred and when the initial harm was inflicted, even though the plaintiff’s bodily injuries were eventually discovered to be permanent.  The duty to provide notice was triggered by the occurrence of the injury, although the full extent of an injury or loss may not be known.

The Appellate Division found that the trial court correctly applied these principles in determining that the injury to Lakeside was first sustained when the Township declared on December 29, 2016 that the original pipeline installed was unauthorized and thus unusable.  The fact that Lakewood incurred additional expenses in January 2017 when it had to install the duplicate pipeline did not alter the December 29 accrual date.  The January 2017 construction expenses only increased the extent of Lakeside’s damages.

The Appellate Division also rejected Lakeside’s contention that there was a continuing tort as a basis to defer the accrual date.  The Court found that there was no tolling.  The fact that the governmental defendants did not correct the problem does not render the tort continuing.

Further, the Court found that although Lakeside missed the 90 day notice deadline by only 2 days, strict enforcement of the Tort Claims Act was required.  The Court recognized that there are strong public policies underlying the notice provisions of the Tort Claims Act.

Hence, the Appellate Division found that Lakeside had not presented a sufficient legal justification to set aside the trial court’s ruling.  Accordingly, the Appellate Division affirmed the dismissal of the lawsuit based upon Lakeside’s failure to timely file the Notice of Tort Claim within the 90 day deadline as set forth in the Tort Claims Act.

 


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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Immunities Available to Public Entities for Personal Injuries Caused by Snow or Ice

Public entities enjoy immunities not available to private individuals or businesses with respect to injuries caused by accidents due to snow or ice. The two main immunities would be the weather immunity found in the Tort Claims Act, N.J.S.A. 59:4-7, and the common law snow removal activities immunity. Additionally, in the recent case of Ferranti v. City of Elizabeth, 2019 N.J. Super. Unpub. LEXIS 1172 (App. Div. May 22, 2019), the Appellate Division applied the allocation of resources defense, N.J.S.A. 59:2-3(d), to the plaintiff’s claim against the County of Union for a fall that occurred in the courthouse parking lot due to unshoveled snow.

The weather immunity defense is found in N.J.S.A. 59:4-7. It provides: “Neither a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions.” Note that this defense is only applicable to injuries that occur on roadways and would not apply to an injury resulting from the use of a sidewalk or parking lot. However, plaintiffs may be able to avoid the application of this defense if they are able to show that there were factors other than simply snow or ice that caused the accident injuring the plaintiff, such as road construction or the condition of a bridge surface.

The common law snow removal activities immunity recognized by the New Jersey Supreme Court in Miehl v. Darpino, 53 N.J. 49 (1968) has been found to have survived the passage of the Tort Claims Act. It is an additional defense available to public entities for snow/ice related injuries. In Miehl, the plaintiff was injured as a result of how the City of Hammonton plowed the snow. The Supreme Court found that the municipality had governmental immunity available for this injury that occurred due its snow removal activities.

More recently, in the Ferranti case, the plaintiff, a judiciary employee, fell while leaving the courthouse, after the court had closed early due to a snow emergency. The County was responsible to clear the snow from its lot and followed a protocol in which the pedestrian areas closest to the entryways are manually cleared first, followed by sidewalks and walkways. The parking area and driveways remain unplowed until no vehicles remained. The plaintiff fell in the driveway, which had not yet been reached by the County workers.

The trial court judge found that the County’s snow removal procedures and priorities were not palpably unreasonable and were the product of discretionary decision making. The County was dismissed out by summary judgment.

The Appellate Division upheld that decision. The Court found that the County’s decision in its methodology of snow clearing was not “palpably unreasonable” under N.J.S.A. 59:4-2. Further, the Court found that the decision “to plow the driveway and parking lot only after shoveling snow from pedestrian areas is patently discretionary, a fixing of priorities circumscribed by a limited budget.” Hence, the Appellate Division held that the allocation of resources immunity defense in N.J.S.A 59:2-3(d) was applicable.

Pursuant to this provision, discretionary activities are immune as follows: “A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.” In Ferranti, the Court stated that “[t]he [County’s] decision of where to plow first is clearly discretionary and not palpably unreasonable.” Thus, the County was found immune from liability as to the plaintiff’s 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 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 Supreme Court Rules on Significant Unemployment Insurance Eligibility Question

In the course of the employer counseling work that I do in my labor and employment practice, clients ask a lot of questions regarding New Jersey’s Unemployment Compensation Law, especially about the grounds that are available to an employer to challenge employee eligibility for unemployment benefits.

One of the most common grounds for employer challenges is that the employer voluntarily left his/her employment without good cause for doing so. The New Jersey Supreme Court issued an interesting decision in McClain v. Bd. of Review, 2019 N.J. LEXIS 538 (2019) regarding that question which presented a novel twist: what happens to eligibility when an employee resigns his/her former employment to take a new job, but that job opportunity is thereafter lost through no fault of the resigning employee?

The New Jersey Supreme Court took up the foregoing issue because two different appellate panels when faced with that question reached divergent conclusions.  In the McClain case, the appeals panel held that there was no disqualification of benefits because the job offer that was presented to McClain that prompted her resignation was rescinded through no fault of McClain.  In the second case, Blake v. Bd. of Review, another appeals panel ruled to the contrary, declaring that, to be eligible for unemployment benefits, the employee had to actually begin working for the new employer before losing the job.  Since that did not happen because the job in that case was also rescinded pre-employment commencement, there was no eligibility for benefits.

In finding that McClain and Blake was eligible for benefits, the New Jersey Supreme Court focused on a part of the unemployment compensation law that made employees eligible for benefits where the employee worked for a substantial period of time with one employer and then left for an equal or better opportunity with another employer but was later terminated shortly after starting that employment.  While noting that both appeals panels presented plausible interpretations of the foregoing part of the unemployment compensation law, the Court ultimately viewed the McClain’s panel’s decision as more appropriate because it was in line with the remedial purposes of the law, which required a liberal analysis in favor of benefit eligibility. That decision was likewise more consistent with the reason for including the foregoing provision in the unemployment compensation law, which namely was to allow for benefit eligibility where employment was lost due to no fault of the employee.

The McClain decision shows that, while not every employer challenge to an unemployment compensation petition will succeed, it nevertheless can be a worthwhile endeavor because the law includes a number of grounds where eligibility for benefits can be denied. That can work to the benefit of the former employer to ensure that wrongful credits for the payment are not taken against their employer unemployment compensation account rating.

 


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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School Board Found Not Liable for Injury that Occurred Due to Fall from Slope in Property

Plaintiff Patricia Eak stumbled while walking down a slope at Central Regional High School to watch her son play baseball on the junior varsity field. As a result, she fell and broke her ankle. In Eak v. Central Regional School District, 2019 N.J. Super. Unpub. LEXIS 685 (App. Div. March 26, 2019), the issue was whether the unimproved grassy slope of the field could constitute a dangerous condition under the Tort Claims Act.

Plaintiff arrived at the school, parked in an adjacent lot to the field, crossing the parking lot and a driveway. Next, she stepped over a curb, onto a grassy downward slope, and began walking toward the bleachers on the third-base side. As she walked down the slope, the plaintiff stumbled and broke her ankle.

The plaintiff filed suit against the school and the Board of Education for her injuries. At the trial court level, the defendants filed a motion for summary judgment, which was granted. This appeal ensued with the plaintiff claiming that it should have been a jury question whether the property was a “dangerous condition” under the Tort Claims Act. The Appellate Division agreed with the trial court and affirmed the order granting summary judgment.

The Court noted that the grassy area where plaintiff fell was an unimproved condition of the school’s property. As such, the immunity under N.J.S.A 59:4-8 would apply. Pursuant to that provision: “[n]either a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property….” Under Troth v. State, 117 N.J. 258, 269-70 (1989), the New Jersey Supreme Court held that public property is improved “when there has been substantial physical modification of the property from its natural state, and when the physical change creates hazards that did not previously exist and that require management by the public entity”.

While the playing fields and some of the surrounding areas had been improved through the addition of steps and walkways to the fields, the Court found that no similar changes to the grounds between the parking lot and the junior varsity field had been made. Making improvements elsewhere did not transform the unimproved area into an improved area.

Plaintiff was injured on a slope which was a natural part of the school’s landscape. Hence, the Appellate Division found that no liability attached to the defendants for this unimproved portion of its property.

The plaintiff also argued that the slope constituted a dangerous condition under N.J.S.A. 59:4-2.  To establish liability via this provision, the plaintiff must show that a public employee either created the dangerous condition or had actual or constructive notice of the condition in time to have taken measures to protect against the dangerous condition. Further, the plaintiff must show that any steps taken by the public entity to protect against the dangerous condition were palpably unreasonable.

While the plaintiff did provide an expert report, the expert did not opine that the condition of the property was dangerous, only that it could have been made safer. Further, while the expert made reference to standards for accessible design enacted pursuant to the ADA, claiming that the degree of incline was improper, the Court noted that the plaintiff did not claim to be disabled and the expert did not assert that the degree of the incline was dangerous.

The Appellate Division pointed out that it was being asked to consider unimproved, not improved property, and the “open and obvious” gentle slope leading to this ballfield was not dangerous. Even if there was some notice to the school district of the alleged dangerous propensity, “it cannot be said that defendants’ failure to do anything to change the contour of the property or install steps or railings was palpably unreasonable.”

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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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Court Dismisses Pothole Case against County

Plaintiff Luz Cruz (“Cruz”) tripped and fell in a pothole when crossing River Avenue in Camden, New Jersey. She broke her fifth metatarsal of her left foot and sued the County of Camden for her injuries. In Cruz v. Camden County, 2019 N.J. Super. Unpub. LEXIS 385 (App. Div. Feb. 19, 2019), one of the issues was whether the County had prior notice of the pothole.

Cruz and her friend drove a U-Haul truck to pick up a couch in an apartment on River Avenue, a County owned road. They parked the truck across the street from the apartment. They did not see a pothole while walking to the apartment. As they were carrying the couch to the truck, Cruz stepped into the pothole in the middle of the road and fell. About two months after the accident, plaintiff’s expert measured the pothole as about 18 inches in length, 6 inches wide, and 3 inches deep.

The County had no prior notice of this pothole’s existence. The County’s Department of Public Works (“DPW”) employees are tasked with looking for potholes and repair them upon their discovery. In addition, the County has a dedicated phone line and email address for complaints as to potholes or other road problems. Also, police, fire, and public safety personnel will report road problems. However, no complaints had been called in as to this particular pothole or on this block of River Avenue in the 10 years before the accident.

As for constructive notice, plaintiff was unable to establish how long the pothole had been present. Cruz had been there the year before at the same address and did not notice the pothole. Plaintiff retained an expert who did not determine or estimate when the pothole had formed.

The County filed a motion for summary judgment, arguing that the plaintiff had failed to show that the County had actual or constructive notice of the pothole, as required under the Tort Claims Act to prove a claim against a public entity for a dangerous condition. The trial court agreed and granted the motion, finding that the plaintiff was unable to prove any time frame for the pothole or that the pothole was “of such an obvious nature that the public entity, in exercise of due care, should have discovered the condition and its dangerous character.”

The plaintiff appealed to the Appellate Division, arguing that the County had actual or constructive notice of the pothole and failed to repair it and that the County’s failure to maintain a major County road was palpably unreasonable. The Appellate Division rejected these arguments and upheld the trial court’s decision.

The Appellate Division noted that public entity liability is restricted under the Tort Claims Act. For liability to attach for an injury caused by a dangerous condition, a plaintiff must establish that a public entity “had actual or constructive notice of the dangerous condition” in “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The Court agreed with the trial court that there was no actual notice. The question was whether the plaintiff had proven that the County had constructive notice of the pothole. To prove constructive notice, the plaintiff must establish “that the condition existed for such time that the [County], in exercising due care, should have discovered the condition and its dangerous condition.” The Appellate Division found that was no evidence of how long the pothole existed before the accident. Hence, the plaintiff could not prove constructive notice either. Without such notice, the Court found that the plaintiff’s claim fails.

The Appellate Division also found that the County’s inaction in repairing River Avenue was not palpably unreasonable. The plaintiff failed to show that it was not palpably unreasonable for the County to fail to fix a pothole that was harmless for a vehicle to pass over to prevent a pedestrian to trip over in a portion of the road that was not a designated crosswalk.

This case is illustrative of the difficulty that plaintiffs face in pursuing pothole claims against public entities. Because potholes can pop up in a day, depending on weather conditions, unless the public entity has actual notice of the pothole, it can be very difficult for a plaintiff to prove constructive notice.

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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 Governor Signs New Minimum Wage Law

One of Governor Murphy’s key electoral platforms during his gubernatorial campaign was his goal to increase New Jersey’s minimum wage.  That electoral promise became a reality just a few short weeks ago. On February 4, 2019, Governor Murphy officially signed into law the New Jersey Minimum Wage Bill. The law will ultimately increase the minimum wage rate in New Jersey from $8.85 (currently) to at least $15.00 by 2024. The wage increase progression will be as follows:

  • At least $10/hour by July 1st, 2019
  • At least $11/hour by January 1st, 2020
  • At least $12/hour by January 1st, 2021
  • At least $13/hour by January 1st, 2022
  • At least $14/hour by January 1st, 2023
  • At least $15/hour by January 1st, 2024

Most notably, the above progression and schedule does not apply to very small businesses, defined as employers with five or fewer employees. Such employers will not have to pay $15.00 an hour to their employees until 2026. Further, the law includes a provision allowing employers to take a “tip credit” against their minimum wage obligations up to a certain level but ultimately the hourly rate earned by the employee must still reach whatever the then mandated minimum wage level is at that time. Obviously, the first compliance date of which employers must be immediately aware is July 1. Prior to that time, employers must take the necessary internal steps of ensuring that all employees are receiving this upgraded minimum wage by that required date.  Thereafter, employers will then need to ready themselves for the next increase happening approximately six (6) months later raising the minimum wage again. With all the graduated changes under the law, employers would be wise to calendar these important dates and proactively ensure that your workplace complies with these new evolving minimum wage requirements.

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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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Under Narrow Circumstances, NJ Supreme Court Permits Filing of Late Notice of Claim When Claimant Identifies Correct Public Entity in Notice of Claim but Serves Wrong Entity

This case involves two fatalities following a multi-vehicle accident. Both Timothy O’Donnell and his 5 year old daughter B.O. were killed. Pamela O’Donnell, Timothy’s widow, retained an attorney who prepared a Tort Claims Act notice and identified the correct public entity in the Tort Claims Act notice but then served it upon the wrong entity. As it turned out, a separate claimant involved in the same accident did file and serve a timely tort claims act notice upon the correct entity. The New Jersey Supreme Court was asked to decide whether these circumstances constituted extraordinary circumstances so as to permit the filing of a late notice of claim.

Timothy O’Donnell was driving westbound on the New Jersey Turnpike with his daughter B.O. in the back seat. As they approached a tollbooth at Interchange 14C, Timothy’s vehicle was rear-ended by a vehicle travelling at a high rate of speed, propelling his vehicle onto the opposite side of the Turnpike and into oncoming traffic. Timothy was struck head on by an ambulance driven by Eliasar Morales, who was injured in the accident. Both Timothy and his daughter were killed.

Timothy’s widow, Pamela O’Donnell, hired counsel who served a notice of tort claim upon the Bureau of Risk Management of the State of New Jersey. The notice identified the New Jersey Turnpike Authority (“NJTA”) as a responsible party and alleged that its actions caused the deaths of Timothy and their daughter. The notice claimed that Timothy’s vehicle would not have been propelled to the other side if the Turnpike had installed safety barriers to separate opposing lanes of traffic. That notice was timely served upon the State but not the NJTA.

Thereafter, O’Donnell’s widow obtained new counsel, who served an amended notice of claim on the NJTA 197 days after the accident. Two days later, she filed suit against the NJTA. The NJTA filed a motion to dismiss the claim based upon the failure to timely file a notice of claim in 90 days, as required pursuant to N.J.S.A. 59:8-8. O’Donnell opposed the motion and filed a cross-motion seeking permission to file a late notice of tort claim, alleging that the NJTA would not suffer substantial prejudice and extraordinary circumstances justified the untimely filing. (N.J.S.A. 59:8-9 permits, upon the discretion of the trial judge, a notice of claim to be filed within one year after the accrual of the claim, if the public entity “has not been substantially prejudiced” and if the claimant can show upon affidavit “sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim” within the 90 day time period.)

The trial judge found that O’Donnell had demonstrated extraordinary circumstances and allowed her to file a late notice of claim. This decision was appealed to the Appellate Division, which reversed. It found that the attorney’s failure to serve the proper entity did not constitute extraordinary circumstances and the State had no obligation to forward the wrongly filed notice to the NJTA.

O’Donnell filed a petition for certification, which the Supreme Court granted. It also permitted O’Donnell to expand the record to include the Morale’s notice of tort claim, which had been timely served upon the NJTA. Morale’s notice provided the details of the accident, as well as the allegation that the NJTA failed to install roadway safety barriers. It also attached the police report as to the incident.

The Supreme Court found that, in considering the totality of circumstances, that O’Donnell had demonstrated extraordinary circumstances. The Court noted that O’Donnell did not sit on her rights. She did retain counsel who, within the 90 day time period, prepared a proper notice of tort claim. The notice listed the NJTA as the responsible party and alleged that it was NJTA’s failure to install safety barriers to prevent vehicles from crossing into oncoming traffic that caused the deaths of her husband and daughter.

Further, the Court noted that the NJTA did receive a timely notice of claim from Morales, which notice of claim was nearly identical. It provided all of the details of the accident and the same theory of liability. His notice attached the police report, which explicitly listed Timothy and B.O. and indicated they died in the accident.

The Supreme Court analyzed the two tort claims notices together, in combination with the circumstances surrounding this terrible accident, and found that the NJTA was notified of its potential liability within the 90 days of the accident. Utilizing the Morales’ notice, the NJTA was able “to investigate potential claims from the accident, prepare a defense, and formulate a plan to remedy promptly any Turnpike defect.” The Court found that when O’Donnell finally served her amended notice of claim, the NJTA was already aware of its potential liability and was not prejudiced by the untimely filing.

It seemed clear that the Supreme Court was limiting its holding to the “unique facts” presented in this case: that O’Donnell quickly pursued her claims against the NJTA, identifying the NJTA as the correct responsible party but improperly serving the State as opposed to the NJTA; that another claimant from the same accident, Morales, served a timely notice of claim on the NJTA, describing the exact circumstances of the accident and the same theory of liability against the NJTA; and that O’Donnell filed for leave within one year following the accident to file a late notice of claim.

The Supreme Court refers to this matter as a “rare” case, in which the claimant had presented adequate proofs indicating that the totality of facts and circumstances are extraordinary and, hence, the Court found it “consistent with the Tort Claims Act, its legislative history, our precedent, and the interests of justice to allow the claimant to pursue his or her claims against the public entity.” Thus, the Supreme Court reversed the Appellate Davison’s decision and reinstated the O’Donnell’s complaint.

This case can be found at O’Donnell v. New Jersey Turnpike Authority, 2019 N.J. LEXIS 42 (Jan. 14, 2019). Its holding will be of limited application. This was a narrow holding and cannot be construed to carte blanche excuse a plaintiff who names the correct public entity in a tort claims act notice, but serves the wrong entity. It seems that the tipping factor for the Court was that another claimant in the same accident had timely filed a Tort Claims Act notice, giving the NJTA notice of the O’Donnell fatalities. Hence, there was no prejudice to the NJTA in permitting the late notice to be filed.

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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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Third Party Harassment and the Law

Whenever I conduct anti-harassment training for employers, one of the concepts I address is the employer’s obligation to protect employees from sexual and other forms of harassment by third parties who are neither employed by, nor affiliated with, the employer but who are in regular contact with the employer’s employees. Recently, in Hewitt v. BS Transportation of Illinois, No. 18-712, 2019 U.S. Dist. LEXIS 6407 (E.D. Pa. January 10, 2019), a federal judge was unwilling to dismiss a claim filed by an employee against his employer alleging that his employer failed to take effective corrective action to address harassing conduct happening to the employee at the hands of an employee of one of Defendant’s customers.

As I explain during my trainings, even though third parties such as the customer in Hewitt are not technically under the control of the employer, the employer’s duty to provide a workplace free of harassing conduct extends to making sure that visitors, vendors, or other third parties do not engage in harassing conduct against company employees.

In Hewitt, Plaintiff claimed that while loading fuel at a customer’s site during the course of his employment transporting fuel for his employer, a customer’s employee made sexual advances towards him, including grabbing Plaintiff’s buttocks, shoving him into the trailer of his freight car, and asking him if he “liked that?” According to Plaintiff, he demanded that his employer address the issue, but it did not do so adequately because, though advising the customer to address the issue, the harassment nevertheless continued.

The employer sought to dismiss the harassment allegations lodged against the company by arguing that, because the harassment happened by a non-company employee, there was no liability under the federal Title VII law. The court rejected this argument. While recognizing that the issue was one of first impression in this federal appeal circuit, the district judge nevertheless refused to dismiss the harassment charge because appeal courts in other circuits have in the past allowed such third party complaints, reasoning that where the employer has knowledge of the harassment against the employee, it must do something to investigate and stop it consistent with the requirements of Title VII.

In the current “Me Too” age, employers are wise to understand the full scope of their obligations to prevent harassing conduct towards its employees, and this duty includes addressing employee complaints about harassing conduct of third parties where the conduct detrimentally impacts the working environment for the company employee. Accordingly, with the new year just beginning, it is a prime opportunity for employers to reeducate its workforce through trainings about both the evils of harassment, and on the legal duties imposed upon employers to provide workplaces free of such illegal conduct.

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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 Held Not Liable for Fall over Bench at its Baseball Field

The plaintiff Anthony Victor filed suit against the Borough of Red Bank and its Board of Education after he tripped over the dugout bench that had been moved behind the bleachers of the municipality’s baseball field. The plaintiff had been at the Red Bank Count Basie Field to watch his grandson’s baseball game. The issue in Victor v. Borough of Red Bank, A-1393-17T2 (App. Div. Sept. 27, 2018) was whether the placement of the bench behind the bleachers constituted a dangerous condition of public property so as to impose liability on the defendants.

The bench had been moved between fields to provide players a place to sit during games and practices. The bench was about 21 feet long and was held up by 4 vertical supports which ended in a perpendicular metal bar 2 inches in diameter. Each of the bars extended 15 inches beyond the back of the bench. The bench had been placed behind some metal bleachers on a concrete pad next to one of the fields. While it was not placed in an actual walkway, the defendants did concede that some spectators cut across the pad to reach the batting cages.

The plaintiff was walking behind the bleachers across the pad to reach the batting cages and another field when his right foot tripped on the last support. He did not see the bench’s metal supports as he walked because he was not looking down.

The defendants filed for a summary judgment, contending that the plaintiff did not demonstrate that the property was in a dangerous condition and the placement of the bench was not palpably reasonable. The trial judge concluded that the bench was not a dangerous condition to those who made proper observations and granted the motion to dismiss the case.

Pursuant to the Tort Claims Act, N.J.S.A. 59:4-2, for a public entity to be held liable for a dangerous condition of its property, the plaintiff must establish that the property “was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.” Further, the plaintiff must prove that the dangerous condition was created by an employee of the public entity or that the public entity had actual or constructive notice of the dangerous condition.

Even if a plaintiff is able to prove that there existed a dangerous condition of public property that caused the injury, the statute further provides that no liability would be imposed “upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

The defendants did not dispute that the plaintiff was injured by tripping over the bench. However, they focused on whether the concrete pad, where spectators were known to walk, was in a dangerous condition and, if so, whether the failure to correct it was palpably reasonable. The Appellate Division noted that the statute defined “dangerous condition” as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”        

The Court found that the trial court was correct that the plaintiff failed to establish that the Borough’s placement of the bench behind the bleachers rendered the concrete pad in a dangerous condition to a person who foreseeably would walk behind the bleachers to access the batting cages or one of the other fields. Plaintiff had admitted that there was nothing obscuring his view of either the bench or the bleachers. He tripped over one of the bench supports after walking almost the entire length of the bench.            

Because it found that the plaintiff did not use “due care” in the foreseeable use of the property, the Appellate Division agreed that the property was not in a dangerous condition. Further, it found that the plaintiff had presented no proof that the placement of the bench or the failure to move it was “palpably unreasonable,” which term is defined as “manifest and obvious that no prudent person would approve of its course of action or inaction.” The Court also noted that if this case had been brought against a private owner without statutory immunities, the obvious nature of the bench and its supports would make it difficult for the plaintiff to recover against an owner. Hence, the Appellate Division affirmed the trial court decision, dismissing the case against the defendants.

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