Public Entity Newsletter

Plaintiff alleges that she was injured when she fell into an uncovered trench drain at Snyder High School, operated by the Jersey City Board of Education. The day after the accident she delivered a note to the school advising of the accident. In Hernandez v. Snyder High School, 2018 N.J. Super. Unpub. LEXIS 155 (App. Div. Jan. 24, 2018), plaintiff contended that her note should constitute substantial compliance with her obligation to file a notice of tort claim.

Plaintiff’s note described the accident and provided the date and her telephone number. However, it did not include her home address, the nature and extent of her injury, her loss or damages, or her intent to file a claim against the defendant school and school board.

The accident occurred on November 20, 2014. After the plaintiff retained counsel, her attorney sent tort claim notices on December 12, 2014 but the notices were sent to City Hall for Jersey City. No notice was sent to the Board of Education office, which was at a separate location.

The Board of Education filed for summary judgment on the basis that it was not timely served with a tort claim notice. Plaintiff contended that the handwritten note substantially complied with the notice requirement. Further, Plaintiff argued that in the Yellow Pages, the City Hall address is listed as one of the addresses for the Board of Education.

The trial court rejected both of these arguments. The trial court judge found that the Board and the City were separate public entities and service upon the City was not effective service on the Board. The court also found that the doctrine of substantial compliance was inapplicable. Plaintiff’s note did not express her intent to pursue a claim and failed to include other information required by N.J.S.A. 59:8-4, such as her address and her injuries. Thus, the trial court granted the Board summary judgment.

On appeal, the Appellate Division affirmed. It noted the strict requirement of the Tort Claims Act to file a timely notice. The Court stated: “We have repeatedly made clear that, after the ninety-day deadline has passed and a plaintiff has not utilized the procedure under N.J.S.A. 59:8-9 to obtain an extension of that period up to one year, courts lack jurisdiction to entertain tort claims if the required notices were not timely filed.”

Although the plaintiff contended the Board should be estopped from making this argument because if failed to raise it within one year of the accident – which would have permitted plaintiff to seek leave to file a late notice – the Court found that, even if the plaintiff had sought leave, it would have been denied. The Plaintiff’s explanation for serving the Board at the City Hall address was not a sufficient excuse when the Board’s correct address was readily available.

Further, the Appellate Division agreed that the plaintiff’s handwritten note did not substantially comply with Tort Claim’s Act notice requirement. The notice that was filed was missing some of the required information and was more akin to an accident report than a notice of tort claim. Although the plaintiff argued she should be entitled to additional discovery, the Court also rejected that argument. No amount of additional discovery would change the fact that plaintiff failed to serve the Board with the notice of claim.

The plaintiff, Carol Leonard, on behalf of the Estate of her deceased son, Devine Nichols, sued the City of New Brunswick due to the accidental drowning death of her son in the Raritan River. Devine and his friend had been seen walking in the Raritan River in Boyd Park. The next day, the bodies of Devine and his friend were found in the river. In Leonard v. City of New Brunswick, 2017 N.J. Super. Unpub. LEXIS 2837 (App. Div. Nov. 14, 2017), plaintiff sought to hold the City liable based upon its ownership and operation of Boyd Park.

Eleven year old Devine was last seen at Boyd Park, walking in the middle of the Raritan River, during low tide. However, according to a witness who saw Devine and his friend, about 5 minutes later, it started to rain heavily.

The plaintiff, Carol Leonard (“Leonard”), sued the City, along with the County of Middlesex and the State, on the basis that the park created a dangerous condition in not restricting access to the river. Also, the plaintiff’s expert faulted the City for “failing to post warning signs concerning the dangers created by ‘tidal changes and resulting strong currents.’”

However, the City contended that it should be immune from liability under the Tort Claims Act pursuant to N.J.S.A. 59:4-8, which provides immunity to public entities from injuries caused by conditions on their unimproved public properties. While the plaintiff claimed that this defense would not apply because Boyd Park was an improved property, the City countered by arguing that it is immune from liability because Devine drowned in the Raritan River, which is unimproved.

Additionally, N.J.S.A. 59:4-9 provides immunity for injuries caused by the condition of unimproved portions of “submerged lands” and the “beds of navigable rivers.” The City argued that this defense was another basis upon which it should be immune.

The Appellate Division agreed with the City that the relevant property was not the park but, rather, was the river. The Court held that the Raritan River caused Devine’s death, which made it the relevant property for the Tort Claims Act analysis as to applicable defenses.

The plaintiff failed to show that the Raritan River was an improved property. The fact that Boyd Park has improved lands in part did not make the river an improved part of the property. Thus, the Appellate Division found it to be within the scope of the defense in N.J.S.A. 59:4-8. Additionally, the Court also held that the City was insulated from liability for a dangerous condition within “submerged lands,” as set forth in N.J.S.A. 59:4-9.

Hence, the Appellate Division upheld the trial court’s dismissal of this matter, finding that these Tort Claims Act defenses immunized the City of New Brunswick from tort liability for this accident.

By:  Jessica M. Anderson, Esq.

By way of background, under the New Jersey Tort Claims Act, a Plaintiff may not bring suit against a public entity or public employee unless the Plaintiff presented the public entity or public employee with a pre-suit notification of the claim.  N.J.S.A. 59:8-3.

The Tort Claims Act provides for specific procedures by which a claim may be brought against a public entity. N.J.S.A. 59:8-4 sets forth the specific content that must be included in a notice of claim:

A claim shall be presented by the claimant or by a person acting on his behalf and shall include:

1. The name and post office address of the claimant;

2. The post-office address to which the person presenting the claim desires notices to be sent;

3. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;

4. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;

5. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and

6. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.

In order to preserve a claimant’s right to proceed, the notice of claim “must substantially comply with the statutory content requirements.”  Newberry v. Township of Pemberton, 319 N.J. Super. 671, 679, 726 A.2d 321 (App. Div. 1999).  Failure to assert a basis for the public entity’s liability is a clear invitation for the Court to dismiss a Plaintiff’s claim.  Without a basis for liability, the public entity would be unable to promptly investigate the claim which is an essential reason for the notice requirement.  Beauchamp v. Amedio, 164 N.J. 111, at 121-22 (2000).

In Newberry v. Township of Pemberton, Plaintiffs submitted a timely notice of claim to the Township, which stated that another vehicle ran a stop sign at an intersection and struck their vehicle.  319 N.J. Super. 671, 674 (App. Div. 1999).  The Appellate Division affirmed the trial court’s decision dismissing Plaintiffs’ complaint, finding that a timely notice of tort claim which states that there has been a car accident causing injury, but failing to assert any basis for the public entity’s liability for that accident, does not substantially complied with the substantive requirements of N.J.S.A. 59:8-4.  Similarly, in the unpublished decision Aguilar v. Essex County Dep’t of Parks & Rec., Plaintiff served a timely notice of claim alleging that he was injured when his right leg went into a depression in the area of the main exit of a County owned park.  Aguilar v. Essex County Dep’t of Parks & Rec., 2009 N.J. Super. Unpub. LEXIS 1790, at 2-3 (App. Div. July 9, 2009).  However, at Plaintiff’s deposition, Plaintiff testified that he fell in a different area of the park than what was indicated in his notice of tort claim.  Id. at 4.  The Appellate Division affirmed the trial court’s order dismissing Plaintiff’s Complaint finding that Plaintiff’s notice of claim was materially deficient and failed to meet the requirements of N.J.S.A. 59:8-4 because the notice did not accurately identify the place where the alleged fall occurred thus failing to assert a basis for the public entity’s liability that would permit the entity to promptly investigate the claim.  Id. at 11-12.

Failure to assert a basis for the public entity’s liability is only one of numerous arguments that can be made as to why a timely received notice of tort claim is not statutorily compliant.  In order to ensure that the proper defenses are being raised on the public entity’s behalf, the claim should be reviewed to determine that all available defenses are being asserted.

To maintain a claim for a pain and suffering against a public entity for a personal injury, a plaintiff must be able to prove that he or she has sustained a “permanent loss of bodily function,” as required by the Tort Claims Act, N.J.S.A. 59:9-2(d). The plaintiff must show (1) an objective permanent injury and (2) a permanent loss of a bodily function that is substantial. In Moore v. Frucci, 2017 N.J. Super. Unpub. LEXIS 1 (App. Div. Jan. 3, 2017), the plaintiff, who suffered a knee injury, which was treated with arthroscopic surgery, was unable to meet the second prong of this test.

Plaintiff John Moore suffered an injury to his right leg, when allegedly a Camden City Detective, Christopher Frucci, drove an unmarked police vehicle onto the sidewalk, and the vehicle struck him in the rear of his right leg. Plaintiff was initially treated at Cooper Hospital, where his right leg was x-rayed. The x-ray showed no fractures, dislocation, or swelling.

Thereafter, the plaintiff sought treatment at South Jersey Health & Wellness Center for severe lower back pain, knee pain, and ankle pain. His right knee showed a 50% decrease in range of motion. He began a treatment of physical therapy and chiropractic treatment.

About 6 months later, the plaintiff obtained a right knee MRI, which showed a chronic appearing partial tear of the proximal ACL and small joint effusion. The plaintiff began treatment with an orthopedist, Dr. Lawrence Barr, who recommended that the plaintiff continue physical therapy, chiropractic care, and fitted him for a knee brace.

Eventually, when the plaintiff’s knee started giving out, Dr. Barr recommended diagnostic arthroscopy and anterior cruciate ligament reconstruction. The plaintiff underwent the surgery and he continued to treat with Dr. Barr who injected his knee twice. Upon discharge, the plaintiff had a full range of motion on extension, limited in flexion, no medial or lateral joint line pain, but some discomfort on the posteromedial corner of the knee. However, a year later, in a permanency exam, Dr. Barr opined that his injuries are permanent. Further, Dr. Barr reported that he might need future surgery.

The plaintiff testified in his deposition that he had some difficulty climbing onto roofs to perform his job as a public adjustor. He had a “little” bit of pain when he climbed stairs. He had to pay more attention to what he was doing because of his knee. He would ice his knee 3-4 times per week due to soreness and swelling. It would also be painful and swell when he hunts and rides his dirt bike and motorcycle.

Based upon the facts before the Court, the Appellate Davison found that the plaintiff failed to establish through objective evidence that he sustained a permanent and substantial injury to his knee. After his surgery, he was able to fully perform in his employment and none of his avocational pursuits were impaired. His knee discomfort was insufficient to meet the TCA threshold. Further, Dr. Barr’s suggestion of further surgery was insufficient to establish a permanent loss of bodily function that was substantial. Thus, the Appellate Division upheld the trial court’s decision, granting summary judgment.

This case demonstrates the potential of winning on a permanency defense in a Tort Claims Act case. Even with surgery, if the plaintiff recovers sufficiently, this defense may be viable. The key to proving that plaintiff has not met the second prong of the permanency test is to be able to establish the lack of impairment in the plaintiff’s job duties (if her or she is employed), as well as the lack of impact, or minor impact on the plaintiff’s recreational, household, and social activities.

Claims for pain and suffering are barred against public entities under the Tort Claims Act, N.J.S.A. 59:9-2(d), unless the claimant suffers a permanent injury and incurs medical expenses in excess of $3,600. The claimant must be able to prove a permanent loss of bodily function, permanent disfigurement, or dismemberment in addition to the monetary threshold. In Hardy v. Sparta Township High School, 2016 N.J. Super. Unpub. LEXIS 1117 (App. Div. May 16, 2016), one of the issues was whether the plaintiff, who suffered a partial finger amputation, could pursue a claim for pain and suffering because he failed to submit medical expenses in excess of $3600.

The plaintiff, Cameron Hardy, age 17 was participating in an organized off-season weight lifting program for high school football players. Plaintiff was paired with another player to each hold opposite ends of a heavy-weight hex lifting bar loaded with weights. While carrying the bar, the other player slipped and fell and the bar fell on plaintiff’s right hand, partially amputating his middle finger and severing the tip of his index finger. The doctor was able to reattach his middle finger, but in a deformed state. However, the tip of his index finger could not be reattached at the hospital. The doctor effected a partial repair by pulling the flap over the top of the finger, but leaving the index finger deformed and disfigured.

Plaintiff sued Sparta, alleging that Sparta breached its duty of care to him, that it negligently supervised the training activity. He sought damages for permanent injuries, pain and suffering, and future medical expenses.

Sparta filed a motion for summary judgment, which was granted by the trial court. One of the issues raised by the trial court judge was whether the plaintiff had met the $3600 monetary threshold under the Tort Claims Act. The judge barred the plaintiff’s claim for pain and suffering because he failed to document $3600 in medical bills.

Upon appeal, the Appellate Division noted that the law is clear that to pursue a pain and suffering claim, a plaintiff must suffer a permanent injury and his medical expenses must exceed the monetary threshold of $3600. Because the plaintiff failed to submit proof of medical bills in at least that amount, the Court found that the claim for pain and suffering was barred.

However, the plaintiff could still pursue a claim for the permanent disfigurement of his hand. Thus, the Appellate Division found that, while the plaintiff’s claim for pain and suffering was barred due to his failure to meet the monetary threshold, this failure did not bar his right to seek damages for the permanent disfigurement of his hand. Due to his permanent disfigurement of his reattached deformed middle finger and his significantly shortened and scarred index finger, the Court ruled that the plaintiff’s claim for permanent injury remained viable.

By:  Sanmathi (Sanu) Dev, Esq.

On April 24, 2017, the New Jersey Superior Court, Camden County, denied a plaintiff’s request for attorney’s fees under the Open Public Records Act (“OPRA”) in the case Grieco v. Borough of Haddon Heights. The Court determined that the public entity inadvertently omitted a record in response to the plaintiff’s OPRA request and that she made no attempt to cooperate with the agency to acquire the missing document prior to initiating a formal lawsuit.

Heather Grieco submitted an OPRA request to the Borough of Haddon Heights (“Borough”) seeking notices to newspapers for all council meetings from November 1, 2014 to April 1, 2015. Within the seven-day deadline imposed by OPRA, the Borough provided documents responsive to Grieco’s request, which included records relating to council meetings held in 2015. However, the Borough did not include proof of publication for the meetings held in 2014.

Two weeks after the Borough’s initial response, Ms. Grieco filed suit in the New Jersey Superior Court alleging violations of OPRA and seeking attorney’s fees. Upon receipt of the lawsuit, the Borough became aware for the first time that it had omitted one of the documents requested by Ms. Grieco. Within three days of learning of this omission, the Borough provided the missing document.

In OPRA cases, if the Court finds that the government entity violated the statute, then the requestor is generally considered a prevailing party entitled to attorney’s fees. The Court considers whether the lawsuit was a catalyst in causing the public body to comply with the law. In addition, the Court applies a fact-sensitive inquiry in evaluating the government agency’s reasonableness and motivations behind such conduct.

In this case, the Court determined that the Borough inadvertently omitted one responsive document to Ms. Grieco’s OPRA request and only became aware of the omission upon service of the lawsuit. The Court found it significant that almost immediately after the Borough discovered the error, it provided the missing document. Further, the Court determined that the Borough did not act with malice or ill will, as the error was caused by a change in personnel handling the response to the OPRA request. Specifically, the Borough employee who initially started processing the response transferred the task to another employee because the former employee suddenly needed to attend to a critically ill spouse.

Further, the Court considered that Ms. Grieco made no attempt to obtain the missing document from the Borough after receiving the initial records and instead resorted to litigation. The Court explained that the cooperative spirit of OPRA requires some sort of follow up communication by the requestor to the public entity to notify it of a mistake.

Fortunately for the Borough, its good faith efforts to comply with OPRA precluded the requestor from obtaining attorney’s fees through litigation.