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.


Third Circuit Affirms Dismissal of Excessive Force Claim Because Plaintiff Cannot Identify Police Officer Who Kicked Him

Two police officers from the Riverdale Police Department and three troopers from the New Jersey State Police encountered Plaintiff Emil Jutrowski, who was heavily intoxicated, after he crashed his vehicle along the shoulder of a highway and sustained injury.  While the officers were escorting Jutrowski to an ambulance, he struck one of the troopers who was trying to steady him, so the officers brought him to the ground and tried to put him in handcuffs.  During the ensuing scuffle, one of the officers kicked Jutrowski on the right side of his face, breaking his nose and eye socket.  The issues in the published decision of Jutrowski v. Twp. of Riverdale, 2018 U.S. App. LEXIS 25806 (3d Cir. 2018), were: (1) whether Jutrowski could survive summary judgment on his excessive force claim when he could not identify which of the four officers named in the complaint had kicked him, and (2) whether Jutrowski could survive summary judgment on his civil conspiracy claim based on the officers’ alleged after-the-fact cover-up of the events giving rise to the case.  The District Court answered both questions in the negative and dismissed Jutrowski’s claims with prejudice.

On appeal, the Third Circuit agreed that the officers were entitled to summary judgment on Jutrowski’s excessive force claim.  Relying on the core principle of § 1983 litigation that a plaintiff resisting summary judgment must produce evidence supporting each individual defendant’s personal involvement in the alleged constitutional violation in order to bring that defendant to trial, the Court found that the record was insufficient for any reasonable jury to identify which, if any, of the officers had used excessive force.  Indeed, while Jutrowski had narrowed the potential universe of actors to those that were in his immediate vicinity, he admittedly sought to proceed to trial against at least three officers who were free of liability without ever ascertaining which officer was the perpetrator of the constitutional deprivation.  Like the District Court, the Third Circuit was thus unwilling to have a jury “guess” as to which officer had kicked Jutrowski.

However, the Third Circuit reversed the order granting the officers’ motion for summary judgment on Jutrowski’s after-the-fact civil conspiracy claim, which was not dependent on Jutrowski’s ability to identify the officer who had kicked him.  Jutrowski’s theory was that the officers had conspired with one another to cover up the use of force during the arrest and thus to deprive him of his constitutional right of access to the courts to be heard on his underlying excessive force claim.  The Court found that there were material omissions in contemporaneous police reports from which a jury could infer a conspiracy – namely, the fact that none of the reports mentioned that Jutrowski suffered significant injuries during the course of his arrest.  The Court also pointed to inconsistent accounts of the vantage point of one of the officer’s vehicles, the absence of that officer’s dashcam footage from the record when all of the other officers’ vehicles recorded the encounter, and the fact that several officers acknowledged having discussed the case with each other while they were writing their reports.  Further, the Court relied on Jutrowski’s expert report, which concluded that his injury most likely resulted from a kick or a punch and not from a face-first fall to the ground.  Thus, the Court remanded Jutrowski’s conspiracy claim for further proceedings.


DOT Found Not Liable for Plaintiff’s Injuries When Plaintiff Struck by Car as Crossing Highway to Reach DOT Unimproved Parking Lot Across From American Legion

Plaintiff Daniel Mattos and his wife, Cary Mattos, parked their car on the DOT property to attend a St. Patrick’s Day event held at the American Legion, which was located across Route 206 in Frankford Township. Cary was struck and killed by a car driven by defendant Thomas Zoschak as she attempted to cross Route 206 to return to her parked car. The issue in Mattos v. Hotalen, 2018 N.J. Super. Unpub. LEXIS 1968 (App. Div. Aug. 22, 2018), was whether the DOT could be responsible for permitting the American Legion to use its unimproved lot as an overflow parking lot without providing warning signs, crossing guards, safety lighting, or patrol officers to assist in pedestrian crossing of Route 206 or require the American Legion to provide the safety measures.

The DOT moved for summary judgment before the trial court, arguing that it was immune from liability based upon the provision of N.J.S.A. 59:2-4 of the Tort Claims Act, which provides that “a public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.” Further, the DOT argued that it was not legally obligated to prevent the unauthorized use of its public property.

The trial court judge found that there were several issues of material facts related to whether the proximity of Route 206 to the DOT’s property constituted a dangerous condition, whether the DOT had notice of the dangerous condition, and whether it failed to remediate the dangerous condition. The DOT filed an interlocutory appeal, arguing that the motion judge failed to dismiss the plaintiffs’ claims based upon the immunity granted to public entities concerning the adoption or failure to adopt or enforce a law. In the alternative, the DOT argued that even if N.J.S.A. 59:4-2 applied (liability for dangerous condition of public property), the plaintiffs did not present sufficient evidence that the property was in a dangerous condition.

The Appellate Division noted that the plaintiffs had parked their car on an unpaved, grassy parcel of land that is part of the DOT’s property, located across from the American Legion. Route 206 is a 50 mile an hour road with no pedestrian crossing to allow those who park their car on the DOT’s property to cross Route 206 safely. Further, it found that the DOT maintained Route 206.

This accident happened at about 10:30 pm when the plaintiffs were attempting to cross Route 206 and were struck by a car by the defendant Zoschak. Plaintiff Cary Mattos sustained fatal head injuries and died at the scene.

The DOT property was an unpaved, grassy lot without any designated means of egress and ingress for vehicular or pedestrian traffic. There were no barriers or fences blocking access to the property and on the side of the property adjacent to Main Street, there was a worn down patch that had been used as an unauthorized entrance and exit onto the property. During depositions, the DOT investigator explained that it was illegal for persons attending events held at the American Legion to use the property as a parking lot. However, the DOT did not have any “no trespassing” signs on the property at the time of the accident.

Plaintiff’s theory of liability was based upon the DOT’s failure to take affirmative measures to prevent people from improperly using its lot as a de facto parking area for events held at the American Legion. Stated differently, the plaintiff was arguing that the DOT should be liable for the plaintiffs’ misuse of public property. If the cause of action against the DOT was proximately caused by a dangerous condition located on the property, the Appellate Division held that it would have a “modicum of substantive merit.” However, the plaintiffs decided to cross Route 206 at about 10:30 pm, wearing dark clothing, in an area of the road where the overhead lighting provided intermittent illumination. Hence, the Court rejected the plaintiffs’ arguments attempting to impose an affirmative responsibility on the DOT to facilitate the misuse of its property.

Further, the Appellate Division found that the DOT did have immunity under N.J.S.A. 59:2-4, which provided immunity for any injury caused by adopting or failing to adopt a law or failing to enforce any law. Accordingly, the Appellate Division reversed the trial judge’s denial of the DOT’s motion for summary judgment and found that the complaint should have been dismissed by the Law Division.


Parking Authority’s Operation of a Fee Based Jitney Service Did not Deprive it from Asserting Public Entity Snow Removal Immunity

Plaintiff Mildred Molino was walking in the Township of South Orange when she fell on an icy sidewalk adjacent to a municipal parking lot. The lot was owned by the Township and operated by the South Orange Parking Authority (“SOPA”). The issue in Molino v. Township of South Orange, 2018 N.J. Super. Unpub. LEXIS 1665 (App. Div. July 12, 2018) was whether SOPA was barred from asserting the common law snow and ice removal immunity because it charged for its jitney service.

It was undisputed that it had snowed the day before the plaintiff’s accident. Township employees had plowed, shoveled, and salted the parking lots and sidewalks, including the municipal lot owned by the Township and operated by SOPA. The plaintiff alleged that the Township and SOPA failed to properly remove ice and snow, causing plaintiff’s injury.

Both the Township and SOPA filed motions for summary judgment, each asserting a common law public entity snow and ice removal immunity. Plaintiff argued that SOPA’s  operation of a fee based jitney service for residents to the train station rendered it a commercial entity, not entitled to public entity immunity.

Although the trial court judge initially denied SOPA’s motion, upon reconsideration, the trial judge found that SOPA was acting as a public entity and, regardless of whether it ran a jitney service, it did not lose its public entity immunities. Having surplus funds did not convert SOPA into a commercial enterprise.

The Appellate Division agreed. Charging a fee for its jitney service did not render SOPA a commercial enterprise. The Court found that collecting parking fees and operating a jitney service did not deprive SOA of its common law snow and ice removal immunity. It was operating within the bounds as a public entity and used the revenue raised through its parking fees and jitney service to defray the cost of its regulation. As a result, SOPA would be immune from liability for the injuries plaintiff suffered when she slipped on ice.


Can a Plaintiff Recover for Injuries Due to a Fall in a Pothole on a Public Roadway?

Potholes are a fact of life in New Jersey. They can pop up almost overnight, which makes it difficult for a plaintiff to be able to pursue a claim for a personal injury against a public entity due to an injury suffered from stepping in a pothole. Typically, a plaintiff is unable to show that the public entity had actual or constructive notice, as required under the Tort Claims Act to pursue such a claim.

Postorino v. County of Passaic, 2016 N.J. Super. Unpub. LEXIS 1729 (App. Div. July 25, 2016) is a good example of a pothole case in which notice was an issue for a pedestrian fall due to a pothole. The plaintiff Michael Postorino, Fire Chief for the City of Paterson, was leaving the scene of a fire and stepped into a pothole covered with water on Grand Street. He suffered a left knee injury and filed suit against the County of Passaic, who was responsible for the maintenance of the street.

To be able to successfully pursue a personal injury claim against the County, pursuant to the Tort Claims Act, N.J.S.A. 59:4-2, the plaintiff had to prove that the pothole constituted a dangerous condition and that the County had actual or constructive notice of the condition prior to his accident. Constructive notice would exist if the plaintiff could show “that the condition existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” N.J.S.A. 59:4-3(b).

There were no facts to establish that the County had actual notice of the pothole. The trial court found that there was no actual or constructive notice of the pothole and granted summary judgment to the County. The issue on appeal was whether the County had constructive notice of the pothole. The Appellate Division pointed out that constructive notice can be proven based upon the length of time a dangerous condition existed and its appearance. Further, if there were prior accidents at the same location of the dangerous condition, that could establish constructive notice.

In Postorino, there were no proofs to show how long the pothole had existed before the accident. According to the County, Buildings and Roads employees travelled in the approximate vicinity of the accident location on a weekly basis and would have reported such a pothole or had it filled had it been noticed. Other potholes on Grand Street had been identified the day before by a county inspector to be filled in. However, no specific potholes were identified and, regardless, that would not have allowed sufficient time to fill it in before the accident.

There was no record of prior accidents involving this accident or other potholes in the same area, which could have provided notice to the County. The plaintiff presented no expert testimony to opine on the duration of the pothole prior to the accident. Thus, because the plaintiff was unable to establish notice of the pothole, the Appellate Division affirmed the order, granting summary judgment to the defendant County.


Township Found Not Liable for Injury Caused by Fall in Pothole

Plaintiff Anthony Scafidi (“Scafidi”) was injured due to a fall in a pothole in the road alongside the sidewalk on Stuyvesant Avenue in Lyndhurst, New Jersey. He sued the Township, claiming that the pothole constituted a dangerous condition of public property. In Scafidi v. Township of Lyndhurst, 2018 N.J. Super. Unpub. LEXIS 925 (App. Div. April 20, 2018), the plaintiff argued that he had met the requirements of the Tort Claims Act to be able to recover for his injuries against the Township.

Scafidi had been visiting a friend who lived on Stuyvesant Avenue and was walking home when the accident occurred. He accidentally dropped his house keys in the street. When he stepped off the sidewalk to retrieve his keys, his left foot stepped into a pothole, causing him to fall. He suffered a fracture, necessitating surgery to his foot.

One year after the accident, he retained an expert, who inspected and measured the pothole at 4 ¼ inches deep. The expert did not record the length or width of the pothole. He opined that the pothole had formed over a period of years, specifically within a 3 to 5 year duration.

The Township filed for a summary judgment, asserting that it was entitled to immunity under the Tort Claims Act. It argued that the plaintiff failed to prove that the pothole was a dangerous condition, that the Township had actual or constructive notice of the condition, that the Township’s actions as to the pothole were palpably unreasonable, or that plaintiff suffered a permanent injury. The judge granted the motion and the plaintiff appealed. On appeal, the plaintiff argued that there were issues of fact which should have precluded the motion from being granted.

The Appellate Division noted that potholes and depressions are common features of roadways. Not every defect in a highway is actionable. The Court found that the Township’s inaction in repairing the pothole was not palpably unreasonable. Had the plaintiff not dropped his keys, he would not have stepped into this portion of the roadway. This area was not one designated as a pedestrian crosswalk and a car would have driven over the pothole without incident. Hence, the Court agreed that the Township’s failure to repair this pothole was not palpably unreasonable. Thus, the Appellate Division affirmed the trial court’s dismissal of this lawsuit.

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