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.”


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


Dress Codes and Docking of Pay

When I examine employee handbooks as part of my legal review of such documents, a frequently seen policy involves dress codes and the inclusion of possible employee sanctions for not following such a policy.  Most policies I review inform employees that if they fail to follow the dress code they will be sent home and not be paid for the time it takes them to return to work.  Are such policies legal?  The answer may surprise you.

As such policies apply to non-exempt hourly employees, not paying for the time spent away from work while bringing their attire in line with company policies is indeed a legally appropriate sanction.  Why? Because by their very status, hourly non-exempt employees get paid for only actual time worked.  Thus, if a Company wants to dock the offending employee wages as a sanction for violating a dress code policy, there is no violation of wage and hour laws: the employee simply clocks out and clocks back in when returning in the proper work attire and does not get paid for the time he/she is not working.

On the other hand, for exempt employees, these same rules do not apply.  Exempt employees get paid a weekly or bi-weekly salary, and so long as the employee performs services at any juncture of the work day the employee is entitled to be paid the daily portion of his salary for that day.  So, if the exempt employee is found to have violated a dress code policy after already performing work on a particular day, the employee must be paid that entire day’s salary even if sent home and told to return in suitable clothing.

Moreover, be aware that there are very strict rules for deducting any monies from the salary of an exempt employee, and the allowable grounds for making such deductions typically involve the violation of serious workplace rules.  Now, here is another legal catch-even if the employer has grounds for sanctioning an exempt employee by withholding a portion of his/her salary as punishment, any deduction that is for less than a full day’s pay is illegal.  Thus, in our hypothetical, not only would a deduction from pay  not be warranted because dress code violations are usually not serious enough to meet wage and hour requirements, but deducting pay for only the brief time out of work to correct the problem also does not satisfy the full day deduction rule.  Thus, while even exempt employees can be sanctioned for violating dress codes, docking pay is not going to be one of those options in most situations.

As this example shows, sometimes wage and hour rules can create unexpected traps that an employer can easily fall into, and not realize there has been a legal violation.  Thus, anytime your business is thinking about making disciplinary deductions from pay, make sure you consult with an experienced employment lawyer first to avoid such unexpected wage and hour pitfalls.


Appellate Division Reverses Order Denying Motion to Dismiss NJCRA Claims against New Jersey DEP Employees on the Basis of Qualified Immunity

In the recent precedential opinion of Radiation Data, Inc. v. N.J. Dep’t of Envtl. Prot., 2018 N.J. Super. LEXIS 149 (App. Div. Nov. 2, 2018), the Appellate Division highlighted the importance of resolving a public employee’s assertion of qualified immunity on a motion to dismiss for failure to state a claim that was filed under the New Jersey Civil Rights Act.  In doing so, the Appellate Division sent a clear message to lower courts that a perceived need for discovery is not an excuse for dodging the pure legal question of whether a right is “clearly established,” and that courts must remember that qualified immunity is not just a defense to liability but is also an immunity from suit, including the burdens attendant to litigation.

Radiation Data, Inc. (“RDI”) filed a claim under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c), against several employees of the New Jersey Department of Environmental Protection (“NJDEP”) for allegedly violating RDI’s constitutional rights as administrative enforcement litigation proceeded in the Office of Administrative Law.  Beyond claiming that NJDEP did not pursue enforcement actions against other radon companies for the same kinds of violations, RDI alleged that several NJDEP employees refused to respond to RDI’s telephone calls and emails regarding business and compliance matters, channeled communications between the adverse parties through counsel, prohibited RDI from hand-delivering a license renewal form to the NJDEP’s offices, made several threatening remarks to or about RDI, refused to meet with an RDI representative, and uttered an anti-Semitic slur about the President of RDI.  The issues in this precedential opinion were: (1) whether RDI’s substantive due process claim against the NJDEP employees should have been dismissed on the basis of qualified immunity; and (2) whether RDI’s equal protection claim against the NJDEP employees should have been dismissed on the basis of qualified immunity.  The trial court, on a motion to dismiss pursuant to Rule 4:6-2(e), answered both questions in the negative, so the NJDEP employees appealed.

On leave to appeal granted, the Appellate Division found that the trial court “misapplied principles of qualified immunity from suit” in denying the NJDEP employees’ motion to dismiss.  The trial court essentially held that consideration of qualified immunity had to wait until summary judgment.  But the Appellate Division wrote that “the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense . . . so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings.”  Indeed, “unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”  Thus, since “qualified immunity is not simply immunity from a final judgment, but is immunity from suit,” and since “[t]he claims of constitutional deprivation [we]re ripe . . . for dismissal on immunity grounds,” the Appellate Division “discern[ed] no need to withhold immunity-based dismissal, pending discovery.”

With respect to RDI’s equal protection claim, the Appellate Division wrote that it was based on the “class-of-one” theory, which required proof that RDI was both intentionally and irrationally treated differently from others who were similarly situated.  The Appellate Division found that the NJDEP employees were entitled to qualified immunity on the selective enforcement claim because the regulatory action was “multi-dimensional” and because RDI, the largest radon mitigation business in New Jersey, was not similarly situated to other such businesses.  The Appellate Division also found that the NJDEP employees were entitled to qualified immunity on the disparate treatment claim because they had a rational basis to limit and channel RDI’s contacts given “the contentious adversarial context . . . existing while the administrative case was pending.”  Further, the Appellate Division found that “RDI had no ‘clearly established right’ to dictate how [the NJDEP] was to communicate with RDI while the hotly-contested litigation was ongoing.”  Indeed, “[g]overnment must retain the discretion to respond to private parties in a manner it finds most efficient and effective.”

The Appellate Division reached the same conclusion with respect to RDI’s substantive due process claim, which was grounded on an alleged violation of the right “to engage in common occupations of life ‘free from unreasonable governmental interference.’”  While a substantive due process violation is only actionable if the official conduct was “arbitrary, or conscience shocking, in a constitutional sense,” the Appellate Division found that NJDEP’s decisions “to pursue regulatory violations against RDI and to channel communications through counsel as the administrative case became increasingly contentions do not ‘shock the conscience.’”  Thus, “[t]he conduct alleged by RDI did not infringe upon any ‘clearly established’ constitutional rights of RDI.”


5 New Year’s Resolutions For Your Workplace In 2019

With 2019 around the corner, employers are presented with a wonderful opportunity to review internal policies/procedures and hopefully help avoid future workplace legal problems. Here are five suggested New Year’s Workplace Resolutions for 2019.

  1. When was the last time your employee handbook was reviewed and updated? Policies and procedures need to be revised periodically to keep current with ongoing changes in the law, especially in a place like New Jersey, where it is frequently the case that new laws and decisions impose new legal requirements. In that regard, remember you now need a policy regarding New Jersey’s Paid Sick Time Law that went into effect this past October! Therefore, 2019 presents a great opportunity for employers to review handbook polices and bring them up to speed with any recent legal changes that impact your workplace. Alternatively, if you do not have one yet, the upcoming new year of 2019 provides a wonderful chance for your workplace to reap the benefit of having all relevant workplace policies stored in one collective document.
  2. When was the last time your job descriptions were reviewed and updated? Job descriptions are very important, especially in gauging compliance with mandated accommodation requirements for persons with disabilities under both federal and state discrimination laws. Ask yourself: do your job descriptions accurately reflect what an employee actually does in their jobs today? Because courts often rely on how an employer defines the essential job functions of an employment position in assessing disability discrimination and failure to accommodate issues, it is important that employers maintain updated job descriptions so there will be a point of reference if any issues arise as to what the essential functions of a job position are for accommodation purposes. Moreover, just like employee handbooks, if you do not have job descriptions today, the beginning of the upcoming year is a good time to commence preparing them.
  3. When was the last time you conducted anti-harassment training? With the Me Too Movement and other recent societal trends in this area, employers must be proactive in ensuring that workplaces are free of harassment and discrimination, and conducting yearly training in this area is an excellent preventative tool for ensuring your anti-harassment and anti-discrimination polices are enforced and followed.
  4. When was the last time you conducted an audit of your payroll practices? A good part of my practice this year has been representing clients in state and federal wage and hour audit proceedings so it is good to be proactive in aggressively monitoring payroll practices to ensure audits do not find problems with such practices. One of the chief concerns to examine here is ensuring that all your employees are properly classified as exempt versus non-exempt employees for purposes of their proper compensation under federal and state wage and hour laws. It is always a good idea for an employer to do a quick review of employment classifications each year in case changes need to be made based upon any modifications in employee job responsibilities. In addition, please remember that, as of January 1 of each year, New Jersey’s minimum wage rate might be adjusted upwardly automatically based upon any increase in the consumer price index as of September 30 of the prior year. Thus, it is important that you properly keep track of any upcoming changes in New Jersey’s minimum wage.
  5. Are you properly performing background checks on current and prospective employees? Remember, there are strict requirements concerning how such background checks are conducted under not only the Fair Credit Reporting Act but also under relevant federal employment discrimination laws such as Title VII. Just a few years ago, the United States Equal Employment Opportunity Commission issued a detailed compliance guidance on how the results of a background check can be utilized in assessing a person’s suitability for employment, so it is important that all background check policies meet these requirements. Similarly, if you as an employer conduct your own background checks, and still request that employees and prospective employees provide private password protected information for their social media sites as part of that examination, such a practice is illegal under New Jersey Law. Therefore, it is critical that background check policies be modified to eliminate any potential violation of this limitation under New Jersey Law.

In sum, the upcoming new year provides a wonderful opportunity for employers to proactively evaluate internal policies and procedures to make 2019 a legally problem free year in your workplace. An experienced labor and employment attorney is a valuable asset in conducting these types of internal policy examinations to effectively minimize possible legal exposures.

Happy Holidays and Healthy New Year to All!!


Attorney’s Fee Award Denied By Federal Court on Basis of Being Outrageously Excessive

Plaintiff Bernie Clemens was awarded $100,000 in punitive damages under the Pennsylvania Bad Faith Statute in a federal jury trial. He then submitted a petition to the District Court judge for over $900,000 in attorney’s fees from the defendant New York Central Mutual Fire Insurance Company. The District Court denied the petition in its entirety on the basis that it was not adequately supported and that the requested amount was grossly excessive. In the published decision of Clemens v. New York Central Mutual Fire Insurance Company, 2018 U.S. App. LEXIS 25803 (3rd Cir. 2018), the United States Court of Appeals for the Third Circuit upheld the denial of attorney’s fees.

Plaintiff Clemens had been dissatisfied with the defendant insurance company’s handling of his insurance claim related to a serious car accident and filed suit against the company in state court in Pennsylvania, asserting a contractual UIM claim and a claim under Pennsylvania’s Bad Faith Statute. The case was removed to federal court and the parties settled the UIM claim for $25,000. The bad faith claim, however, proceeded to a weeklong trial, at the conclusion of which, the jury found that the insurance company had acted in bad faith and awarded Clemens $100,000 in punitive damages.

As the prevailing party under the Bad Faith Statute, the plaintiff then submitted a petition for attorney’s fees in which he requested an award of $946,526 in fees and costs. The District Court denied the request in its entirety in a “thorough and well-reasoned 100 page opinion.” The court found that 87% of the hours billed had to be disallowed as vague, duplicative, unnecessary, or inadequately supported by documentary evidence. Hence, the District Court found that the fee request was “outrageously excessive” and exercised its discretion to award no fee whatsoever.

The Third Circuit noted that the Pennsylvania Bad Faith Statute used the word “may” with respect to the award of attorney’s fees and costs. Thus, the Court found that it was within the judge’s discretion whether or not to award attorneys fees. The Third Circuit held that the fee request must be reasonable. It would not disturb the District Court judge’s decision absent an abuse of discretion. The Court stated that “[a]lthough it was unusual, we cannot say that this decision was an abuse of discretion.”

The Third Circuit enumerated the many problems with the fee application. To start, counsel did not maintain contemporaneous time records for most of the litigation and they had to be recreated. The responsibility of reconstructing the time records was left to a single attorney, who not only had to estimate retrospectively the length of time she spent on each individual task, but also had to estimate the amount of time that her colleagues spent on task because they had left the firm by the time the fee petition was filed.  While contemporaneous records are not required, the Court noted that it was the “preferred practice.”

Further, the time entries submitted were so vague that there is no way to discern whether the hours billed were reasonable. Some entries were, on their face, unnecessary or excessive. In particular, the Third Circuit noted that counsel billed a “staggering” 562 hours for “trial prep” or “trial preparation” with no further description of the nature of the work performed. The Court agreed with the District Court that this amount was an outrageous number under the circumstances. That would mean that if counsel did nothing else for eight hours a day, every day, counsel would have spent approximately 70 days doing nothing but preparing for a trial, which consisted of only four days of substantive testimony with a total of five witnesses for both sides.

And, even more troubling was the fact that the counsel’s hard work did not appear to pay off at trial. The District Court had to repeatedly admonish counsel for being unprepared because he was so obviously unfamiliar with the Rules of Evidence, Rules of Procedure and rulings of the court. Hence, the Third Circuit agreed that the District Court did not abuse its discretion in disallowing all of the 562 hours for this trial preparation.

Also, the Court pointed out that counsel neglected their burden of showing that the requested hourly rates were reasonable in light of the prevailing rate in the community or similar services by lawyers of reasonably comparable skill, experience, and reputation. Four of the five billing lawyers, including lead counsel, provided no information whatsoever on which the District Court could make a determination whether the requested hourly rate was reasonable. For all of these reasons, the District Court concluded, based upon the disallowance, as well as other reductions, that counsel was entitled to only 13% of the fees they requested. Accordingly, the District Court found that the request was “outrageously excessive” and exercised its discretion to award no fee at all.

The Third Circuit stated that while it had never had the opportunity to formally endorse such an approach, other circuits have held that district courts may exercise discretion to deny a fee request in its entirety when the requested amount is outrageously excessive under the circumstances. The rationale is that unless the court has this kind of discretion, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such conduct would be a reduction of their fee to what they should have asked for in the first place. The Third Circuit agreed with this rationale. It stated that is the duty of the requesting party to make a good-faith effort to exclude “ hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.”

The Third Circuit found that the District Court provided a thorough explanation of how counsel failed to fulfill their duty to the court. That failure, along with the other deficiencies in the fee petition and counsel’s substandard performance, justified the District Court’s decision to deny the fee request in its entirety. The Third Circuit found that this decision was not an abuse of discretion and, thus, affirmed the order of the District Court denying the plaintiff’s fee award.

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