Public Entity Newsletter

By Jessica M. Anderson, Esq.

Our Legislature passed the New Jersey Tort Claims Act over forty years ago to replace and reestablish the common law rule immunizing public entities from liability for personal injury.  Although the common law doctrine of sovereign immunity was eroded to some extent by the Tort Claims Act, common law immunity for snow removal survived the enactment of our legislation.

Until roughly fifteen years ago, the majority of published cases applied the common law snow and ice removal immunity to municipalities.  However, in the 1999 Appellate decision Sykes v. Rutgers, 308 N.J. Super. 265 (App. Div. 1998), the Appellate Division held that Rutgers University was immune when a student slipped and fell on an accumulation of ice in the parking lot.  In 2001, the Sports and Exposition Authority was also found immune in the matter, O’Connell v. Sports & Exp. Auth., 337 N.J. Super. 122 (App. Div. 2001), certif. denied, 168 N.J. 293 (2001), where Plaintiff, who was attending a football game at Giants Stadium, fell on accumulated ice near the stadium seats and steps.  In 2006, UMDNJ was found immune in the unpublished decision, Smith v. University of Med. & Dentistry of N.J., 2006 N.J. Super. Unpub. LEXIS 755 (App. Div. January 9, 2006), where Plaintiff slipped and fell on refrozen ice piled next to the elevator entrance.

In the recent unpublished Appellate decision, Stair v. New Jersey Transit Inc., 2015 N.J. Super. Unpub. LEXIS 950 (App. Div. April 24, 2015), in which I successfully represented Defendant, the Appellate Division against extended the common law snow and ice removal immunity by applying it to New Jersey Transit.  In this case, Plaintiff claimed he was injured when he slipped and fell on black ice while walking on the Woodbridge train station platform.  Of significant note were the Appellate Division’s comments emphasizing the importance of the immunity in light of the multitude of claims that could be filed after every snowstorm, the substantial cost of defending such claims, and the obvious risk an individual takes when traveling in winter weather conditions.

Although the common law snow and ice removal immunity has continued to grow in strength over the past forty years, the recent concurring decision by the Honorable Jack Sabatino in Rajohn Mann v. New Jersey Transit Corporation, 2015 N.J. Super. Unpub. LEXIS 2804 (App. Div. December 4, 2015), invites the Supreme Court to reconsider the immunity.  Judge Sabatino discusses at length how absolute immunity might be sufficiently anachronistic in light of the additional safeguards provided by the Tort Claims Act.  He also notes that some other states, such as New York, do not confer absolute immunity upon public entities for negligent snow or ice removal.

By Ralph R. Smith, 3rd, Esq.

In a highly anticipated decision, the New Jersey Supreme Court recently upheld the right of employees who complain about illegal workplace activities to sue for wrongful retaliation even when the raising of such issues is a part of their designated job duties.  Rejecting a plethora of past rulings by New Jersey’s intermediate appeals court, the Supreme Court in Lippman v. Ethicon, Inc.,  (NJ 2015), held that the Conscientious Employee Protection Act (“CEPA”) does not create any type of carve out for employees who are responsible for engaging in certain “watchdog” activities as part of their job responsibilities.  What this now means for employers is that all employees, even those who may have responsibility in the workforce for ensuring compliance with certain legally required standards of care and reporting any deviations from those requirements, are covered by the statute and  entitled to CEPA’s protections even when the employee’s whistleblowing activities pertain to aspects of those “watchdog” job responsibilities.

The plaintiff in Lippman was formerly employed as the world wide vice president of medical affairs and chief medical officer for the defendant.  His job responsibilities included safety compliance over medical reviews of items being sold by his employer. On numerous occasions, plaintiff objected to the proposed and/or continued sale of certain products claiming that such products were unsafe or defective. Plaintiff’s employment was ultimately terminated, and Lippman claimed that his firing occurred in violation of CEPA due to those foregoing past complaints that Lippman claimed were protected whistleblowing activities.

Based upon the previously existing case law that exempted “watchdog” employees from the scope of CEPA’s whistleblowing protections where such complained of activities simply involved the employee performing his job obligations, the trial court dismissed plaintiff’s complaint.  When the matter was subsequently appealed, the intermediate appeal court refused to follow this earlier case precedent, concluding in part that allowing “watchdog” whistleblowing claims was required by CEPA because such employees are in an extremely vulnerable position to suffer retaliation for doing their jobs.  In ultimately agreeing with that appeal decision, the Supreme Court found no textual support for an exemption for “watchdog” employees, and broadly interpreted the scope of CEPA’s protections to eliminate what it concluded were the evils of retaliation as intended by the legislature in passing CEPA.  While siding with the earlier appeal court ruling, the Supreme Court likewise thought that this ruling went too far in imposing a higher standard of proof in the form of a mandated internal whistleblowing reporting exhaustion requirement that the Court concluded went beyond the elements of proof ordinarily applied to CEPA claims.

With the Supreme Court’s expansive Lippman ruling that broadens the class of employees who are protected by CEPA to encompass all employees in one’s workforce, it is incumbent upon employers to make employment related decisions free of any type of retaliatory animus that could result in a CEPA claim against the company, even when those employees have taken adverse positions against the company (as Lippman did here) as part of his job obligations.  No longer will employers have the benefit of what was at least some common law recognized limits on the kinds of employees statutorily protected by CEPA, which means that this can no longer be used as grounds for ignoring the pleas of a “watchdog” employee engaged in possible whistleblowing activities.

One final note: for employers who may not be aware, CEPA in addition to creating a possible ground for a wrongful discharge claim also requires that employers provide its workforce annually with individual notices advising employees about their whistleblowing rights under the CEPA statute.  If your company is not in compliance with such notice requirements, which includes having a CEPA whistleblowing policy as part of your company employee handbook, you should take steps now to immediately remedy such issues and seek legal advice to answer any further CEPA compliance questions.

By Betsy G. Ramos, Esq.

Plaintiff Fran Brooks sued the Tabernacle Rescue Squad alleging a violation of the Open Public Records Act (OPRA) and the common law right to access. Her complaint was dismissed by the trial judge, who ruled that the Squad did not qualify as a public agency for purposes of OPRA, and, in Brooks v. Tabernacle Rescue Squad, 2015 N.J. Super. Unpub. LEXIS 1584 (App. Div. July 1, 2015), she filed an appeal of that decision.

She had requested “township records” of the Tabernacle Rescue Squad’s reports for drivers of all ambulances and rescue truck for the period of January 1, 2013 to July 31, 2013. The Squad denied the request, stating that it is a non-profit charitable organization 501-C3, created and maintained by volunteer emergency medical technicians, was not created as part of the Township and is not a public agency for purposes of OPRA.

The plaintiff argued that the Squad should qualify as a public agency because of the Township’s substantial financial support of the Squad, coupled with its limited immunity under the Tort Claims Act and its performance of a government function as the Township’s official and exclusive rescue squad. The Squad, however, stressed that it has its own trustees and elected officers, none of whom is appointed by the Township and conducts its activities independent of any control by the municipality. All of its members are volunteers. The Squad conducts its activities subject to its own budget, which is not subject to Township approval.

The trial court judge found the Squad’s formation by private citizens independent of Tabernacle and the Township’s lack of direct control over the leadership or daily operation of the Squad dispositive. He also rejected the argument that the Squad’s performance of a government function is sufficient to qualify it as a public agency under OPRA. Further, he found that no court has held that an organization is a public agency solely because it received substantial government funding.

The Appellate Division agreed with the trial court judge and his reasoning, upholding the dismissal of the complaint. It found that the Squad, having been founded by private individuals and conducting its operations wholly free of municipal control, even though with financial support permitted by statute, cannot be considered a public agency under OPRA. Because the Squad is not a public agency and its volunteer members do not conduct government business, plaintiff was likewise not entitled to documents under the common law.

By Betsy G. Ramos, Esq.

In the published opinion of Beyer v. Sea Bright Borough, 2015 N.J. Super. LEXIS 84 (App. Div. May 19, 2015)), the Plaintiff Brian Beyer claimed that the Sea Bright Police Department physically abused him when he was arrested in August 2013. Upon his release from jail, he consulted with Clifford Kuhn (“Kuhn”), counsel who had represented him previously on matters. In October, Kuhn was diagnosed with a relapse of lung cancer and underwent emergency surgery.  In December, Kuhn told him he could no longer handle his case and he died in early 2014. However, Kuhn never filed a notice of tort claim on plaintiff’s behalf within the required 90 day time period.

Beyer retained new counsel on December 30, 2013, who filed a notice of tort claim on January 8, 2014. His new attorney also filed a motion for leave to file a late notice of claim. That motion was denied by the trial court. The trial court reasoned that attorney inattentiveness, even if the reason is tragic, does not constitute extraordinary circumstances to justify the late filing. This appeal ensued.

The Appellate Division found that an attorney’s failure to act due to his serious incapacity or death are not routine matters and should not be equated with mere inattention. On the existing record, the court could not conclude that Beyer’s failure to file a timely notice of claim was simply something in “the nature of inadvertence, negligence, inattentiveness, or ignorance.” On its face, his lawyer’s illness and related incapacity appear to represent an extraordinary situation.

The appeals court found that it required further exploration and consideration by the trial judge. Thus, the Appellate Division reversed the order of the trial court dismissing the case and remanded the case back to the trial court for a plenary hearing to determine the facts surrounding Beyer’s failure to file a timely notice of claim and the extent to which it was a result of his lawyer’s grave illness, as opposed to “inadvertence, negligence, inattentiveness or ignorance.”

This case represents likely a narrow exception to the mandate in the Supreme Court case of D.D. v. University of Medicine & Dentistry of NJ, 213 N.J. 130 (2013) to strictly construe the extraordinary circumstances standard for plaintiffs seeking leave to file a late notice of claim. Nevertheless, it does make inroads into D.D.’s holding and carves out a narrow exception when the plaintiff’s attorney is seriously ill during the 90 day period following the accrual of the plaintiff’s claim.

By Ralph R. Smith, 3rd, Esq.

In a recent decision, the New Jersey Appellate Division was asked to decide whether a wrongful discharge public policy claim could be brought against a public entity employer who discharged an employee as part of a layoff and the employee claimed that the discharge occurred because of his close association with a co-worker who had been convicted of committing a crime.  The employee plaintiff in Kozak v. Township of Cherry Hill, Docket No. A-2454-13T2 (App. Div. 2015), was formerly employed as the Cherry Hill Township building inspector.  His direct supervisor in that position was the Township’s construction official.  After the construction official announced his retirement plans in 2008, the plaintiff claimed that both the Township’s mayor and business administrator told him in early 2009 that he was going to become the next construction official.

In March 2009, the construction official was charged with accepting bribes from a third party construction inspection service used by the township.  Due to that on-going criminal investigation, the plaintiff was advised by the mayor that he was being suspended with pay, and that his employment as building inspector would be re-evaluated during the pendency of the criminal investigation being conducted by the United States Attorney’s Office.  The Mayor testified in the case that the plaintiff’s suspension happened because the Township did not know how far the criminal investigation would go in plaintiff’s department. While plaintiff met with various investigators over the course of the investigation, he was advised that he was not “a target” and ultimately was not charged with any criminal wrongdoing.

In June 2009, plaintiff’s attorney sought his reinstatement in light of the negative outcome of the criminal investigation.  Rather than being reinstated, plaintiff was terminated as part of a township wide reduction in force due to economic issues facing the Township. The Township asserted that plaintiff was chosen for selection because other persons had more licenses in the construction department than plaintiff and thus could absorb some of the extra work arising from the lack of the laid off workforce.  Plaintiff was ultimately one of thirteen other township employees who lost their job as a result of the layoff.

In challenging his layoff, plaintiff claimed that, amongst other things, the layoff violated a clear mandate of public policy under the case of Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), because he was laid off due to an erroneous belief that he had committed an offense since he worked with a co-worker who committed a crime.  The Appellate Division, like the Trial Court did earlier, rejected this claim as being grounds for asserting a wrongful discharge public policy claim.  In dismissing this claim, the Appellate Division noted that plaintiff could not identify any clearly defined mandate of public policy that prohibited an employer from discharging an employee based upon a perception that the employee’s trustworthiness was compromised due to an association with a former supervisor convicted of accepting wrongful bribes. In addition, the court found that the undisputed evidentiary record presented by the Township to the Trial Court indisputably established that the asserted reason for plaintiff’s selection was not a pretext for wrongful action because the layoff decision was supported by overwhelming proof that economic issues existed at the Township, and that plaintiff, along with a second laid off department employee had the least number of licenses in that group.  As a result, the appeals court concluded that the wrongful discharge claim premised upon a violation of public policy was rightly dismissed by the Trial Court.

This is a positive decision for employers, due to how the appellate court adopted a restrictive view of the kinds of public policy matters that could support a Pierce wrongful discharge claim. The case also illustrates the importance of being able to articulate the reason (s) for a reduction in force and why certain employees are chosen for selection in that reduction in force.  Any time layoffs are being contemplated, employers should devise at the outset an appropriate plan for implementation that is free of illegal considerations and one grounded in a rationale selection process for choosing the employees to be affected by the layoff.  In this case, the employer decided that, in plaintiff’s department, those employees who had the least licenses would be selected for reduction because of the anticipated increased need for certain skill sets after certain job positions were to be eliminated.  Such objective standards are always the most preferred in constructing a selection process for expected layoffs.  Equally important is that the employer do exactly what the Township did here in following that criteria and documenting how that selection criteria was applied to the plaintiff in this case.

Layoffs can often be the cause for costly litigation, so employers are wise to seek advice during the pre-layoff process, especially when a layoff includes a large segment of the employer’s workforce. Effective selection practices and guidance in implementing such practices goes a long way towards eliminating such possible legal action.

By: Betsy G. Ramos, Esq.

Public entities are statutorily immune from bodily injury claims if they can prove that the injury was caused by the plan or design of public property which was approved by the governing body of the public entity. The Tort Claims Act also provides for plan and design immunity to public entities for these types of claims if “some other body” approves the plan or design. In Kain v. Gloucester City, 2014 N.J. Super. LEXIS (App. Div. July 21, 2014), the Appellate Division had to decide whether the Coast Guard falls within the term of  “some other body” under the statute.

Plaintiff Michael Kain was a parent/chaperone for his son’s Boy Scout troop when they participated in a free educational sail by the defendant Gloucester City Sail at the Gloucester City pier. Plaintiff was injured when he stepped into an opening between the edge of the pier and its wooden bumpers as he was helping the last boy into the schooner.

This pier had been purchased by the Coast Guard in the 1940s and renovated by it at that time. Due to the design of the renovations, there was an opening between the edges of the pier and the wooden bumpers. In 1991, the Coast Guard deeded the pier to Gloucester City.

The plaintiff sued Gloucester City based upon a premises liability claim. Summary judgment was granted to Gloucester City (“the City”) based upon the design or plan immunity of the Tort Claims Act (“the TCA”).

On appeal, the plaintiff argued that summary judgment was erroneously granted because, among other reasons, the TCA did not apply to the City because the pier was designed by the Coast Guard, which was not a public entity under the TCA. The Appellate Division, however, upheld the summary judgment order.

To utilize a design or plan immunity defense, the public entity must demonstrate that the condition that allegedly caused the injury was an approved feature of the plan or design. It was undisputed in this case that the Coast Guard considered the need for the pier to be a stable dock when it reconstructed the pier and the bulkhead. Thus, it was part of a design approved by the Coast Guard.

However, the plaintiff argued that the TCA immunity is limited to a public entity or public employee. The Appellate Division disagreed with this argument and noted that the statute does not so limit the approving authority. The TCA design immunity also extends to “some other body.”

The term “some other body” is not defined within the TCA. The Appellate Division found that this term referred to an alternative approving authority and was designed to apply to entities that do not fall within the definition of “public entity,” yet perform the type of governmental function covered by the design immunity. In this case, the appeals court held that the Coast Guard qualified as “some other body.”

The plaintiff next argued that, even if the immunity did apply to the Coast Guard as an approving authority, the City cannot “inherit” the design immunity from the Coast Guard and it was lost because the pier was designed for military use and the City repurposed it for civilian and recreational use. Again, the Appellate Division disagreed with the plaintiff’s argument.

Once effective, an immunity is perpetual. It cannot be lost if later knowledge shows a design or plan to be dangerous or later circumstances render it dangerous. Here, the court found that once the immunity attached , it remained unaltered by the later change in use.

This case points out the broad scope of the design or plan immunity defense under the TCA. Not only can the design or plan of the defendant public entity be considered, but if the design or plan was approved by another public entity or “some other body,” such design or plan may be used to immunize the defendant public entity from a premises liability claim.

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 4^th 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.