Continuing Tort Claim Not Barred by Failure of Plaintiffs to File within Two-Year Statute of Limitations

Herbert and Karen Wreden served a tort claims act notice against the Township of Lafayette on January 28, 2008, due to the Township’s construction of a retaining wall and water drainage adjacent to the Wredens’ property. As a result of this construction, water was directed onto their property and caused flooding. In 2009, the retaining wall collapsed, sending large blocks of concrete tumbling onto their property and causing an unstable and unsafe roadway frontage in front of their property. On June 28, 2011, in Wreden v. Township of Lafayette, 2014 N.J. Super. LEXIS (App.Div. 2014), plaintiffs filed suit against the Township, alleging damage to their property.

On the trial court level, Lafayette successfully obtained a dismissal of the complaint based upon a failure to state a cause of action. This type of motion differs from a summary judgment motion because its basis is that the complaint itself fails to state a claim, as pled, as opposed to the court considering other evidence submitted such as certifications or testimony.

The Township claimed that:

  1. the plaintiffs’ claims for a continuing tort were barred by the two-year statute of limitations;
  2. that the plaintiffs were required to submit a new notice of tort claim to seek damages for the collapse of the retaining wall on their property;
  3. that it was entitled to plan or design immunity; and
  4. that the plaintiffs’ inverse condemnation claim was barred by the entire controversy doctrine.

The trial court granted a dismissal on all of the first 3 bases and refused to permit an amendment to the complaint on the 4th basis. However, the Appellate Division reversed all of the trial court’s rulings and remanded the matter back to the trial court.

First, the appeals court found that the trial court failed to consider that the plaintiffs faced continuous flooding to their property and improperly focused only on the date the notice of claim was filed. Although the suit was not filed until three years after the notice of claim, the trial judge made no determination as to the applicability of the continuing tort doctrine. Contrary to the judge’s ruling, the Appellate Division noted that the date upon which a notice of claim is filed does not mark the accrual date for a cause of action in a continuing tort case.

Second, the Appellate Division disagreed with the trial court that the plaintiffs would have to file a new notice of tort claim when the retaining wall collapsed. The plaintiffs had already placed the Township on notice of the problem and the eventual collapse of the wall was merely a continuation of the tort plaintiffs had previously described.

Third, the appeals court found that the trial court judge mistakenly considered evidence external to the pleadings (a certification from a Township Committee member) as to the Township’s approval of the project in granting a dismissal based upon the plan and design immunity defense. While such evidence may be considered in a summary judgment motion, it cannot be considered in ruling on a motion to dismiss based upon the pleadings.

Last, on appeal, the Court found that the trial court judge erred in refusing to permit the plaintiffs to include an inverse condemnation claim against the Township in an amended complaint. This case was still ongoing as to the other defendants when the plaintiffs learned that some of the retaining wall was actually built on their property. No final judgment had been entered as to all parties and, hence, the plaintiffs should have been permitted to amend their complaint to assert this new claim.

This case is a published decision and is precedential. Thus, public entities need to take note of this case for any claims that arguably involve a continuous tort and be aware that, if the damage is continuing to occur, the statute of limitations to file suit against that public entity has likely not started to run. 

OPRA Applies to Requests for Bid Specifications

By: Kelly E. Adler, Esq.

In Bozzi v. City of Atlantic City, 2014 N.J. Super. LEXIS 6, decided on January 7, 2014, the Appellate Division addressed three important issues:  (1) whether an actual written OPRA request is necessary for the Open Public Records Act (“OPRA”) to apply;  (2) whether bid specifications are government records under OPRA; and (3) regardless of whether a written OPRA request is made, is a public entity required to follow the fee provisions of OPRA with regard to copying fees when providing a government record to a member of the public.  In determining that a failure to make a written request was fatal to an award pursuant to the Open Public Records Act (“OPRA”), the Appellate Division also determined that bid specifications are government records and the fee provisions apply with regard to all government records, regardless of whether an OPRA request was made for access to the record.

On February 3, 2012, Plaintiff, Ernest Bozzi, requested, from the City of Atlantic City, a copy of bid specifications for award of a thirty-three month contract to provide heating, ventilation, and air conditioning maintenance and service for the Clayton G. Graham Public Safety Building.  No OPRA form was filled out by the Plaintiff and the request was made verbally.  Plaintiff was given a copy of the bid specifications and charged $25.00, which Plaintiff paid. 

Thereafter, Plaintiff sued Atlantic City, alleging that Atlantic City, their records custodian and civil engineer (“Defendants”) violated OPRA, the common law right to access, and the Civil Rights Act (the Act), N.J.S.A. 10:6-1 to -2. The complaint alleged that OPRA limited copying costs of public documents to five cents per page, making the fee charged for the material excessive. Plaintiff sought a refund of $21.55, along with counsel fees and costs.  Defendants argued that Plaintiff never filed an OPRA request and that the bid specifications, when prepared, “require[d] specialized and skilled services usually by professional and experienced staff in consultation with other City departments’ staff [that] are equally skilled and experienced in their respective fields,” and therefore, the $25.00 charge was reasonable. 

The trial judge found in favor of Plaintiff, holding that the requested document was a public record and that the $25.00 blanket fee for the bid specifications was a violation of the OPRA statute.  The trial judge also awarded attorneys fees. 

As a result, Defendants appealed the trial judge’s decision and argued that plaintiff’s failure to submit a written OPRA request was fatal to relief under the statute. Further, Defendants maintained that the provision of bid specifications falls outside OPRA’s scope and is governed by the Local Public Contracts Law (“LPCL”). 

With regard to the requirements for a proper request for access to a government record pursuant to OPRA, the statute states:

A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof.

N.J.S.A. 47:1A-5(g).

The Appellate Division, in analyzing this matter, held that the courts are not free to ignore the language of a statute.  Specifically, the Appellate Division stated:

“. . . we conclude the express requirement for a written record request, unequivocally set forth in N.J.S.A. 47:1A-5(g), cannot be ignored merely because a government record was sought. We are not free to disregard the writing requirement, which would render the statutory provision meaningless, and create a circumstance running counter to the express language in OPRA.”

As a result, the Appellate Division vacated the attorneys fee award because the fee award can only be sustained if the statute applies.  Since OPRA does not apply due to the Plaintiff’s failure to submit a written OPRA request, he was not entitled to a fee award.

The Appellate Division, however, also addressed the Defendants’ argument that the bidding documents are not public records and are governed by the LPCL and not OPRA.  This argument was rejected by the Appellate Division.  The Appellate Division explained that the LPCL requires certain contracts entered into by local public entities be procured through a public bidding process detailed in that statute.  Further, the Court noted that the LPCL provides that all contracts for the performance of municipal work or services must be advertised for and awarded to the lowest responsible bidder.  The Court further noted that the bid specifications sought by plaintiff for maintenance services over a thirty-three month period were for an award of a public contract governed by the LPCL. The Court further noted that no provision of the LPCL would exempt the bid specifications from OPRA.  The Appellate Division explained that OPRA defines a government record as:

any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.

N.J.S.A. 47:1A-1.1.  The Court determined that no exception applies that would carve out the bid specifications from the definition of a government record.  As a result, the Court explained that even though a proper OPRA request was not made, the fee provisions found in OPRA apply since the record provided is a government record as defined by OPRA.   The Court noted that the Legislature may not have had bid specifications in mind when lawmakers crafted the OPRA statute.  Nevertheless, the Court indicated that it was not the Court’s job to craft exceptions.

Therefore, it is important for public entities to understand the implications of this decision.  Although it is an unpublished decision and, hence, not binding on the trial courts, it is recommended that public entities evaluate their policies and make a determination whether their copying policies should be changed.

Many public entities have charged a flat fee to anyone requesting copies of bid specifications.  Assuming this decision is followed by the trial courts, charging a flat fee will no longer acceptable and, instead, OPRA’s fee provisions would apply with regard to all documents that are public records under OPRA.  No longer would it be appropriate for public entities to charge more than the current per page rate established by OPRA when providing a public record to a member of the public, even if the request for the bid specifications was not made pursuant to OPRA.

Township’s Contract with County to Clear Snow from County Roadway Does Not Create Liability

By: Betsy G. Ramos, Esq.

Owning or controlling the public property upon which a plaintiff claims caused injury is an essential element to establish liability of a public entity under the Tort Claims Act for a personal injury claim. In a District Court of New Jersey case, Marenbach v. City of Margate, 942 F. Supp. 2d 488 (D.N.J. 2013), the court held that although Atlantic County paid Margate to remove snow from a county roadway, that did not equate to “control” of the roadway under the circumstances.

In Marenbach, the plaintiff tripped and fell in the street on Ventnor Avenue in Atlantic City. He claimed severe and permanent injury to his left ankle. The plaintiff claimed that the street was in a dangerous condition. He sued the City of Margate, claiming that Margate controlled Ventnor Avenue and was liable for failing to protect him from a dangerous condition.

Ventnor Avenue was a roadway owned by Atlantic County. The plaintiff claimed that Margate had possessory control over the roadway because (1) Atlantic County paid Margate to remove snow and clean Ventnor Avenue; (2) Margate police officers patrolled the street and enforced parking and moving violations on Ventnor Avenue and Margate split the fees from those activities with the County. The court rejected both of these arguments and granted summary judgment to Margate.

The court found that neither of these activities were sufficient to establish that Margate had “control” over the roadway. Prior case law squarely rejected plaintiff’s argument that protective police patrol over the roadway demonstrated control by the city of the county road.

Additionally, the court found that the payment by the County to Margate to remove snow and perform weekly cleaning services on Ventnor Avenue was also insufficient to establish control. The court pointed out that, although the process of snow removal and street cleaning may contribute to a deteriorated street, there was no evidence that Margate regularly inspected the condition of the street or that it was responsible for repairing the condition of the road that may have been affected by its snow removal and cleaning activities.

Further, the court stated that under N.J.S.A. 27:16-6, the County had the exclusive responsibility to keep its county roadways in repair. Last, the court noted that, just as a privately owned company that was under contract with Atlantic County to maintain Ventnor Avenue would not obtain a possessory control in the roadway to make it a concurrent owner, the same would most likely be true for another public entity.

Although this case is a federal case, it could be useful as persuasive case law in a state court Tort Claims Act matter. In many situations, a township does provide services to its county in maintaining roadways. Depending on the circumstances, this case can be used to argue that providing such services does not create liability for the township in a personal injury action filed as a result of the condition of the roadway.

Sidewalk Raised by 1 ½ Inches Determined to be Dangerous Condition

By: Betsy G. Ramos

In the unpublished decision of Colon v. Woodbridge Housing Authority, Docket no. A-1634-12T4 (October 30, 2013), the Appellate Division ruled that a 1 ½ inch raised sidewalk could constitute a dangerous condition under the Tort Claims Act. But, the Appellate Division, finding that the actions or inactions of the defendant Woodbridge Housing Authority were not palpably unreasonable, affirmed the trial court’s dismissal of the case.

The Plaintiff, Yvette Alvarado-Colon, claiming injury when she tripped over a raised public sidewalk, sued the defendant, Woodbridge Housing Authority. The sidewalk was located outside of the entrance way to a public building and was intended for pedestrian travel.

The trial court judge granted the Authority’s motion for summary judgment, finding that no dangerous condition of public property existed. The plaintiff filed this appeal.

The plaintiff submitted an expert report that this raised sidewalk was reflective of basic construction defects and that the condition had been clearly present for a substantive time period before the accident. The expert stated that it took several years to produce this level of concrete ridge formation.

The trial court judge found that no dangerous condition existed. The Appellate Division, however, disagreed, holding that a jury could consider a 1 ½” declivity across a sidewalk a dangerous condition under the Tort Claims Act.

But, the court pointed out that the Act also requires a plaintiff to prove that the defendant’s actions or inactions in connection with this alleged dangerous condition were palpably unreasonable. The condition of the property must pose a substantial risk of harm. The Appellate Division also stated that not every defect in a public roadway, even when caused by negligent maintenance, is actionable.

Here, the Appellate Division noted that there was no evidence of prior tripping hazards and that such “minor” irregularities are commonplace on sidewalks. Thus, the court held that the plaintiff’s proofs, at best, established ordinary negligence, rather than patently unacceptable conduct, the standard needed to prove palpably unreasonable conduct. Accordingly, the court affirmed the trial court’s dismissal.

Although this is an unpublished decision, it could be very helpful in defending against sidewalk fall cases. The court’s finding that a 1 ½” differential could be a dangerous condition is not surprising. However, finding that these types of irregularities in a public sidewalk are “commonplace” and that the Authority’s failure to remediate was not palpably unreasonable in light of no prior tripping hazards could be a very useful argument in summary judgment motions in these types of cases.

Township Entitled to Assert Traffic Sign Immunity for Plaintiff Injured on Bike Trail

By: Betsy G. Ramos, Esq.

Plaintiff, Albert Wood, sustained serious injuries while riding a scooter on the Manasquan Bike Trail in the Township of Wall. In Wood v. Township of Wall, A-0751-12T3 (December 17, 2013), the plaintiff claimed that Wall was negligent in its maintenance, supervision, and control of the trail, thereby creating a dangerous condition. Among other defenses, Wall claimed that the suit was barred by the ordinary traffic sign immunity under the Tort Claims Act.

The plaintiff contended that the trail was constructed in such a manner that it was unsafe. He asserted that the Township and the other defendants considered only the effect of the trail’s construction on the surrounding environmentally-sensitive areas.

The plaintiff’s expert inspected the trail and found that at the point where the plaintiff fell, the trail had a maximum downward slope of about 20 percent, which was quite steep. He noted that there were no signs present or any type of warning to alert persons of this steeply graded section of bikeway. In his opinion, the bicycle gradient exceeded the recommended grade found in a national park planning guide. Thus, he concluded that the slope of the bike trail was in an unsafe condition and contrary to industry standards.

Wall, however, contended that decreasing the slope where the plaintiff fell was not feasible. Based upon the hill, reducing the slope would have destroyed a significant amount of trees and result in a major excavation project.

The Appellate Division found that the trail could constitute a dangerous condition under the Tort Claims Act. While the natural topography of the land may have been safe for hiking, it was the construction of the trail that created the alleged dangerous condition.

Wall claimed that it had immunity as to the failure to warn claim based upon the application of N.J.S.A. 59:4-5, which provided immunity for injuries “caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices.” The plaintiff contended that this immunity could not apply because it applied only to a public street and not to pedestrian, bicycle, or scooter traffic on a recreational path.

In analyzing this issue, the Appellate Division found that the motor vehicle code (Title 39) defined traffic to include pedestrians in vehicles on highway for the purpose of travel. Highway is defined as the entire width between the boundary lines of public ways maintained for vehicular traffic. Vehicle excepts devices moved by human power. Further, Title 39 generally applies to the operation of bicycles.

Thus, after viewing all of the pertinent Title 39 provisions, the Appellate Division concluded that the Tort Claims Act immunizes a public entity’s decision-making regarding “ordinary traffic signals, signs, markings, or other similar devices” on a bike trail. Therefore, to the extent that the plaintiff’s claim rested upon a failure to provide signs or warnings regarding the trail’s slope, it found that summary judgment was properly granted.

However, the Appellate Division found a jury question as to Wall’s other claimed immunity – plan and design immunity. Accordingly, it remanded the matter back to the trial court to permit Wall to present sufficient proofs for this immunity, as well as whether Wall’s actions in failing to protect against this alleged dangerous condition was not palpably unreasonable.

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Emotional Distress Claim Against Public Entity Must Satisfy Tort Claims Act

By: Betsy G. Ramos, Esq.

In the recent unpublished Appellate Division decision, Mann v. Walder, Docket No. A-0863-11T1, decided October 31, 2013, the Court ruled that the plaintiff’s claim for negligent infliction of emotional distress against three New Jersey State Park police officers and the State of New Jersey was governed by the New Jersey Tort Claims Act (“TCA”) N.J.S.A. 59:1-1 et seq. and that the plaintiff failed to satisfy the requirements of the Act. Thus, the Court upheld the dismissal of this suit.

This matter arose from the fatal shooting of Emil Mann, which was witnessed by his nephew, Carl Mann, the plaintiff in this case. As a result, he claimed emotional damages and sued the three officers involved in the shooting and the State Police.

The plaintiff, however, suffered no physical injuries. His medical expenses incurred only totaled $187. In support of his claim, he submitted an expert report from a physician, opining that he suffered from uncomplicated bereavement and maladaptive health behavior (overeating), affecting his general medical condition, which was secondary to his bereavement. However, the plaintiff was able to graduate from high school, sleep adequately at night without nightmares, was able to perform his job at T.J.Maxx, and, although he continued to distrust police officers, his fear of them had receded.

The issue in this case was whether he had suffered a permanent injury and had incurred related medical expenses that exceeded $3,600, both threshold requirements to maintain an action under N.J.S.A. 59:9-2(d). While the Court had previously ruled that emotional distress could constitute “pain and suffering” under the TCA, an emotional distress claim is barred unless the plaintiff suffered a permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses exceeded $3,600.

The Court noted that case law permits recovery of damages from emotional distress if subjective symptoms are accompanied by “the requisite indicia of permanent physical infirmity.” Here, the plaintiff contended that his weight gain from 250 to 350 pounds was a physical manifestation of permanent injury. However, the Appellate Division ruled that this weight gain did not rise to the level of a permanent loss of a bodily function.

Further, the plaintiff failed to meet the monetary threshold of $3,600. The plaintiff argued that the value of the services he received and will need in the future exceeds that amount. Because his expenses were reduced due to payment by Medicaid, he argued that his claim on this ground discriminates against him because he is poor. The Appellate Division seemed skeptical of this argument and, regardless, noted that there was no evidence submitted as to the value of the services received.

This case is illustrative of both the permanency and monetary threshold requirements for all personal injury claims submitted under the Act. Especially if there is no physical injury, an emotional distress claim must be scrutinized closely to determine if it satisfies the TCA’s permanency requirement. Additionally, all claims should be examined to determine if they satisfy the monetary threshold. Usually, the monetary threshold is not an issue but for an emotional distress claim or other claims such as a simple fracture with no physical therapy or a laceration with a scar but no future scar revision, the plaintiff may not satisfy this threshold.

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Lifeguard Travelling Between Job Locations Entitled to Indemnification From Her Public Entity Employer, Sea Isle City

New Jersey Public Entity Law Monthly – Vol. II, Issue 9

By: Betsy G. Ramos, Esq.

In a recent District Court of New Jersey decision, Allard v. Eisenhauer, 2013 U.S. Dist. LEXIS 131078 (Sept. 13, 2013), the court found that a lifeguard who was sued as a result of a car accident should be entitled to indemnification from her public entity employer, Sea Isle City. The plaintiff sued Eisenhauer, the lifeguard, for personal injuries sustained when she was struck by a car driven by Eisenhauer. In turn, Eisenhauer filed a third party complaint against Sea Isle City, claiming that she was entitled to indemnification.

On the day of the accident, Eisenhauer was assigned to one beach in the morning and, then at noon, was scheduled to work a different beach. She was required to use her own transportation from one beach assignment to the next. While en route to the second assignment, she struck plaintiff and knocked her over.

Eisenhauer filed a third party action against her employer Sea Isle City, claiming that as an employee of the Beach Patrol, she was acting as an agent and/or representative of Sea Isle City at the time of the accident. SeaIsleCity moved for summary judgment, contending that she was not acting within the scope of her employment.

Pursuant to the Tort Claims Act, a public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment to the same extent as a private actor in the same circumstances. Further, the Tort Claims Act empowers public entities to indemnify its employees. However, the authority to indemnify stems from acts characterized within the scope of employment.

The court looked at a number of factors to make this determination. First, the court considered whether Eisenhauer’s conduct was “of the kind” that she was employed to perform through her lifeguard duties. SeaIsleCity contended that driving a vehicle was not within her duties. Because of how SeaIsleCity set up Eisenhauer’s schedule, it required her to drive between beach locations so as to execute her duties. Hence, the court found it was closely connected and fairly reasonably incidental to her lifeguard duties to qualify as “of the kind” of conduct she was employed to carry out.

Next, the court considered whether her conduct occurred substantially within the authorized time and space limits of her duties as a lifeguard. SeaIsleCity contended that her duties only encompassed the beach and the water. Because Eisenhauer was still on duty when she was travelling to her next assignment, the court found that she was acting within the authorized time limits of her employment when the accident occurred.

Finally, the court assessed whether Eisenhauer’s conduct was done, at least in part, to serve her employer. Again, because SeaIsleCity set up her assignments requiring her to travel between beaches to guard at the second beach, this act of travelling was found to be within her duties as lifeguard.

Thus, SeaIsleCity’s motion for summary judgment was denied. Although Eisenhauer did not cross-move for summary judgment, the court sua sponte contemplated granting Eisenhauer summary judgment on the indemnification issue and gave Sea Isle City 14 days to respond why an order for indemnification should not be granted.

This case shows the broad interpretation of the courts in finding employees to be acting within the scope of employment. Under those circumstances, employers will be vicariously liable for their employees’ acts and public entity employers should indemnify them for their negligent acts.

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