Defendant Barred from Suing Public Entity Due to Failure to File Timely Tort Claims Act Notice

On July 27, 2017, the New Jersey Supreme Court decided important issues concerning the ability of a defendant to sue a public entity in a third party claim.  In the case of Twanda Jones v. Morey’s Pier, 2017 N.J. LEXIS 812 (July 27, 2017), the Supreme Court decided that a defendant is barred from asserting contribution and common law indemnification claims against a public entity under the Tort Claims Act if a timely notice of tort claim was not filed.  The Supreme Court also decided how fault may be allocated against a public entity regardless and the effect of any such allocation of fault on plaintiff’s recovery of damages.

The Jones case dealt with the tragic death of 11 year old Abiah Jones after she fell from a ride in an amusement park during a trip organized by her charter school, Pleasant Tech Academy Education Association (“Association”), which is treated as a public entity for the purposes of the Tort Claims Act (“TCA”).  Her parents filed a wrongful death action against Morey’s Pier and other Morey defendants, alleging that their daughter’s death resulted from the negligent operation of the park.  However, the plaintiffs did not serve a TCA Notice of Claim on the Association within ninety (90) days of her death.

The plaintiffs filed this wrongful death and survival action in New Jersey almost two years following her death.  The Morey defendants thereafter filed a Third Party Complaint against the Association and sought contribution and common law indemnification alleging that its negligent was a proximate cause of the  minor’s death.  The Association moved for summary judgment, invoking the TCA’s 90 day notice of claim provision.

The trial court denied the Association’s motion, finding that the TCA does not require the service of a notice of a claim as a prerequisite to a contribution or common law indemnification claim against a public entity joint tortfeaser.  The Association filed a Motion for Leave to Appeal to the Appellate Division, which was denied.  However, the Supreme Court subsequently granted the Association’s Motion for Leave to Appeal.

The plaintiffs did not name the Association as a defendant.  Neither plaintiffs, nor the Morey defendants served Notice of a Tort Claim on the Association within the ninety (90) day time period prescribed by the notice of claim provision of the Tort Claims Act.  The Morey defendants, regardless, filed a Third Party Complaint against the Association.  They claimed that the Association negligently organized, supervised, and chaperoned the field trip to the amusement park and that its negligence proximately caused the minor’s death.

In denying the Association’s Summary Judgment Motion, the trial court interpreted the notice provision to limit only a plaintiff’s right to assert a claim against a public entity.  It concluded that the pertinent provision does not require the service of a notice of a claim as a prerequisite to a defendant’s contribution or common law indemnification claims against the joint tortfeaser that is a public entity.

In previously published decisions of both the Appellate Division and the Law Division, the courts had interpreted the notice provision as inapplicable to defendants who file third party actions for contribution or common law indemnification against the public entity, despite defendant’s failure to comply with the notice requirement. The rationale was that the contribution claim was a right which does not ripen into a cause of action until the defendant has paid more than his pro rata portion of the judgment obtained against him by the plaintiff.  However, there was contrary prior Law Division published decisions, which barred claims for contribution and indemnification, if the claimant (or the defendant) failed to serve a tort claims act notice within the ninety (90) day period as set forth in the statute.

The Supreme Court decided in favor of the prior Law Division decisions, concurring in their logic that the Legislature did not distinguish between a plaintiff’s claim and a defendant’s cross-claim or third party claim against a public entity.  It did not exempt from the tort claims notice requirement a defendant’s claim for contribution and indemnification.  In short, the Court found that the statute’s meaning was clear in that it governs contribution and indemnification claims brought by defendants, as well as direct claims asserted by plaintiffs.  To hold otherwise, the Court felt that it would be undermining the Legislature’s intent “to permit public entities to properly investigate claims, correct the conditions or practices that give rise to the claim, prepare a defense, and assess the need for reserves.”

Thus, the Supreme Court held that when a defendant (or claimant) does not serve a timely notice of tort claim on a public entity, as required under N.J.S.A. 59:8-8, and is not granted leave to file a late notice of claim under N.J.S.A. 59:8-9, the TCA bars that defendant’s crossclaim or third party claim for contribution and common law indemnification against a public entity.

Next, the Supreme Court had to decide what would be the consequences as to the defendant if it could not pursue the public entity in a third party claim for contribution and indemnification.  It noted that the defendant may not even be aware of a potential contribution claim within the ninety (90) day time period.

Ordinarily, a defendant compelled to pay more than the percentage of damages corresponding to the jury’s allocation of fault would have a remedy under the Comparative Negligence Act for a claim for contribution against other joint tortfeasers.  The Supreme Court cited two cases which have held in several settings that even if the claims against the defendant are dismissed by virtue of the operation of a statute, apportionment of fault to that defendant is required by law.  Permitting the allocation of a percentage of fault to a joint tortfeaser that is not a defendant at trial “may afford to a remaining defendant the practical benefit of the contribution claim to which it is entitled under the Comparative Negligence Act and the joint tortfeaser’s contribution law.”   Thus, the Supreme Court ruled that the Morey defendants may nevertheless seek an allocation at fault as an equitable result under the circumstances.

Next, the court considered the Morey defendants’ argument that “if plaintiffs prevail at trial and the trial court molds the judgment. . ., the court should limit the Morey defendants’ liability for damages to any percentage of fault that the jury apportions to them, whether or not that percentage meets the sixty percent (60%) threshold.” Here, if a jury were to allocate sixty percent (60%) or more of the fault, but less than one hundred percent (100%) to the Morey defendants, and the Morey defendants were required to pay one hundred percent (100%) of the damages, they would be denied the benefit of their contribution claim.  Thus, the Court ruled that if the Morey defendants present evidence that the Association was negligent and that its negligence was a proximate cause of the minor’s death, the jury should be instructed to determine whether the Morey defendants have met their burden of proof on these issues.  If so, the jury would allocate negligence between the Morey defendants and the Association.  If the jury allocates a percentage of fault to the Association, the Court held that the trial court should mold the judgment to reduce the Morey defendants’ liability to plaintiffs in accordance with the percentage of fault allocated to the Association.

The Supreme Court reminded all litigants that if they intended to pursue a claim against a public entity or employee subject to the Tort Claims Act, they must act expeditiously to preserve that claim by serving notice within ninety (90) days of the accrual of the claim or filing an application within one year of that date for leave to serve a late notice of claim on a showing of “extraordinary circumstances.”  A plaintiff that is aware of a potential cause of action against a public entity and litigates the case in a manner that deprives the defendant of an opportunity to serve a Tort Claims Act Notice on that entity, risks a reduction in any damage award by virtue of an allocation of fault under the Comparative Negligence and Joint Tortfeasers Contribution Law.  However, a defendant that is aware of its potential cross claim against a public entity that may be a joint tortfeasor, but fails to serve a Tort Claims Act notice on that entity, may lose the benefit of an allocation of fault to the public entity in accordance with those statutes.

This decision will be very helpful in defending public entities who are brought in on a third party basis for contribution and indemnification.  Up until now, the trial courts were following the case law that would not bar such a claim.  With this Supreme Court decision, it provides a powerful tool to public entity defendants to obtain a dismissal as to any such claims if a timely notice of tort claim was not filed – by either the plaintiff or the defendant.

Appellate Division Finds Plaintiffs Fail to Meet Standard to File Late Notice of Tort Claim

By: Charles F. Holmgren, Esq. and Betsy G. Ramos, Esq.

To file a personal injury claim against a public entity, the Tort Claims Act requires that a plaintiff must file a notice of tort claim with that entity within 90 days of his/her accident. If no tort claim notice is filed within that time period, a claimant has up to one year to seek leave with the court to file a late notice of tort claim. However, the claimant must establish that extraordinary circumstances prevented his or her filing of this notice within that 90 day time period – which is a difficult standard to meet. In a case handled by our firm before the New Jersey Appellate Division, Silver v. Wang, 2017 N.J. Super. Unpub. LEXIS 441 (App. Div. Feb. 24, 2017), the Appellate Division ruled that even the death of the claimant is not an impediment to the court’s refusal to find extraordinary circumstances exist to relax the strict requirement of a timely filed notice of tort claim.

The accident in the Silver case occurred on April 11, 2014. There, Plaintiffs’ decedent Jennifer Peplinski died when her car swerved off of Route 130 in North Brunswick, New Jersey and struck a utility pole off the side of the road. On January 21, 2015, the Middlesex County Prosecutor’s Office and the North Brunswick Police Department issued an investigation report of the accident showing that Mrs. Peplinski’s car was struck by another vehicle that caused her to lose control of her car and strike the pole. On receipt of this report, Mrs. Peplinski’s adult children, the plaintiffs, met with an attorney on January 31, 2015, took steps to create an estate for her, and filed a motion for leave to file a late notice of tort claim. They argued that only when they received the report, well after the ninety day notice period, did they learn that that defendants Township of North Brunswick and the State of New Jersey could have been involved in their mother’s accident and, during that ninety day period, no estate existed in order to file a claim on their mother’s behalf.

The defendants opposed the motion. The defendants argued that the claimant learned nothing new from the investigation report pertaining to North Brunswick or the State; that, at the time of her death or soon thereafter, the plaintiffs knew Mrs. Peplinski died from striking a pole off of Route 130 in North Brunswick and, on these facts alone, they had sufficient information to file a timely tort claims notice and that the plaintiffs’ failure to do so alone fails to satisfy the extraordinary circumstances requirement of pertinent Tort Claims Act section, N.J.S.A. 59:8-9. Furthermore, the defendants argued that the Tort Claims Act makes clear that an estate did not need to exist in order for the plaintiffs to file a notice on the decedent’s behalf.

The trial court was unpersuaded by the defendants’ position and found that the totality of the circumstances showed that only when they received the report did the plaintiffs learn the facts of the accident and, based on those proofs, met the threshold intended by the Act. Furthermore, the court found that without an estate to file the claims notice, there would be no entity chargeable with the failure to file a notice. Thus, the trial court permitted the plaintiffs to file a late notice of tort claim. Both defendants appealed this order.

On appeal, the Appellate Division reversed. The two issues before the appellate court were whether the trial court abused its discretion in finding the plaintiffs demonstrated extraordinary circumstances to relax the ninety day statutory period and whether the plaintiffs could have filed a notice of tort claim on behalf of the estate before the estate was created.

The Appellate Division found that the plaintiffs never indicated what new information they learned from the investigation report that prompted them to pursue the claim on their mother’s behalf against North Brunswick and the State. The Court found that the plaintiffs only came to an understanding they had a claim against the defendants after they visited an attorney who then informed them that the utility pole, which may be owned by either defendant, could be too close to the road and thereby could have contributed to the decedent’s death. As there was nothing in the investigation report that set forth the proximity of the utility pole to the roadway, the investigation report did not provide them with any information they did not already have in their possession immediately after their mother’s death. Because the failure to seek an attorney or ignorance of the filing period fails to satisfy the extraordinary circumstances threshold, the Court determined the plaintiffs could not meet the strict standards required by the Act. Thus, the Appellate Division found the trial court erred in its decision to grant the plaintiffs’ motion to file a late tort claims notice.

Furthermore, the Tort Claims Act specifically states that a notice “shall be signed by the claimant or by some person on his behalf.” Indeed, no case interpreting the Act supported the plaintiffs’ claim that only an estate can file a notice. Hence, the Appellate Division also ruled that an estate need not be created before a notice of tort claims is filed on a decedent’s behalf.

Don’t Let Your Public Entity Client Get Tripped up by a Pothole

By: Jessica M. Anderson, Esq.

By way of background, a public entity is only liable for an injury proximately caused by a condition of its property within the limitations of N.J.S.A. 59:4-2.  To impose liability on a public entity pursuant N.J.S.A. 59:4-2, a Plaintiff must prove the following five elements: (1) a dangerous condition existed at the time of Plaintiff’s injury; (2) Plaintiff’s injuries were proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kinds of injuries that Plaintiff sustained; (4) the public entity created the dangerous condition or had notice of it a sufficient time prior to Plaintiff’s injury to have taken measures to protect against it; and (5) the public entity’s failure to take action to protect against the dangerous condition was palpably unreasonable.  Failure to prove all five elements defeats Plaintiff’s claim.

In order to satisfy the first element, a claimant must show that there was a dangerous condition, defined as a “condition of property that creates a substantial risk of injury” when the property is used with due care in a reasonably foreseeable manner.  N.J.S.A. 59:4-1a.  Courts interpreting this definition ask whether the condition created a substantial risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner.

In a long line of cases, courts have held that minor imperfections on public travel-ways are not dangerous conditions under the Tort Claims Act because they do not pose a substantial risk of injury to the public.  Courts have so held notwithstanding the fact that the imperfections may directly cause Plaintiffs severe injuries or even death.

For example, in Polyard v. Terry, 160 N.J. Super. 497, 504, 507-08 (App. Div. 1978), aff’d o.b. 79 N.J. 547 (1979), a man drove his car over a three-eighths-inch declivity connecting a highway to a bridge, and then drove over a section of pavement that had comparatively less traction than the rest of the road.  As he drove over these two defective conditions, another car cut him off.  The man lost control of his vehicle, ultimately injuring one plaintiff and killing another.  In a subsequent lawsuit against the State, the Plaintiffs’ theory of the case — backed up by expert testimony at trial — was that the defective conditions of the road contributed to the man’s losing control of his car.  The jury agreed, and found the State thirty percent liable for causing the accident.  The Appellate Division (and the Supreme Court, which adopted the Appellate Division’s reasoning in its entirety) concluded that there was no dangerous condition within the Tort Claims Act notwithstanding that the jury reached a contrary conclusion, and notwithstanding that two defects in the road caused the Plaintiffs’ injury and death.  The Court explained that the Tort Claim Act establishes a threshold level of objective severity to make a defect actionable — defects falling below that threshold are not actionable as a matter of law.  The Court additionally held that a baseline number of defects must be tolerated in public property as being consistent with public expectations.

Another case rejecting the dangerousness of a condition that caused severe injuries is Charney v. City of Wildwood, 732 F. Supp. 2d 448, 452-53 (D.N.J. 2010).  There, a woman, while walking on the Wildwood boardwalk, tripped over a hole that was roughly shaped like a right triangle measuring approximately three and three-eighths inches long and one and one-half inch deep.  Even though the woman sustained multiple fractures, and even though there was evidence that the defendant had repaired adjacent wooden boards as well as the subject board in the past, the Court held that there was no dangerous condition as a matter of law.

Yet another example is Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 641, 643 (D.N.J. 1997) where a bicyclist sustained paralysis when his bicycle struck the property owner’s elevated railroad tracks, thereby launching him head-first over the handlebars and on to the street pavement.  The railroad track was raised between 5/8 and 7/8 of an inch above the roadway.  The court granted summary judgment finding that so slight a differential could not possibly be a dangerous condition creating a substantial risk of injury.  The court found that, that would impose an unfair onerous burden on the County to keep roadways free of even the slightest imperfections.  The court found further that even if one assumed that the small differential was a dangerous condition allowing such a difference could not possibly be found to be palpably unreasonable.

These three cases represent but a few of the many that hold that minor imperfections in public travel-ways are not actionable under the Tort Claims Act even if they do happen to cause substantial injuries.

Filing an Internal Affairs Complaint with Police Department Not “Substantially Comply” with Tort Claims Act Notice Requirement

By: Betsy G. Ramos

Plaintiff Malik Macklin alleged that three Camden County Police Officers used excessive force when they assaulted and arrested him without probable cause as he was walking down the street and, as a result, he suffered injuries. Less than one month later, he reported the incident to the Camden County Police Department’s internal affairs department. Approximately 2 years later in Macklin v. County of Camden, No. 15-7641, 2016 U.S. Dist. LEXIS 83581 (D.N.J. June 28, 2016), the plaintiff filed suit in federal court against the three officers, along with the County, the police department and the chief of police, alleging claims under the federal and New Jersey constitutions, as well as various state law tort claims. The defendants filed an initial motion to dismiss the state law claims, arguing that the plaintiff’s complaint should be dismissed due to his failure to file the required notice under the New Jersey Tort Claims Act (“TCA.”)

Plaintiff claims that he was walking home after a basketball game when he was stopped by a police car with several police officers inside. The encounter escalated from questioning to the officers allegedly, without provocation, throwing plaintiff to the ground and assaulting him with punches and kicks until Plaintiff’s family members came to the scene. Plaintiff was arrested and charged with resisting arrest, aggravated assault, obstruction of justice, and eluding an officer of the law, but he was later exonerated by a jury. Plaintiff claims to have suffered bodily injuries, emotional distress, and pain and suffering.

Shortly after the incident occurred, the Plaintiff and his mother filed a complaint with the Camden County Police Department. His mother complained that her son was arrested but that he was targeted and mistreated physically. Additionally, Plaintiff reported the excessive force incident to a detective in the Office of Internal Affairs. About 2 years after the incident, the Plaintiff filed suit, asserting claims for excessive force and negligent hiring and training under the United States and New Jersey Constitutions, as well as common law tort claims for assault, negligence, and abuse of process.

The defendants filed a motion to dismiss for failure to state a claim as to the state law claims on the basis that the Plaintiff failed to comply with the notice requirement of the TCA. The TCA bars claims against public entities unless specific information concerning the claim is presented to the public entity within 90 days of the claim’s accrual.

These specific notice requirements serve several purposes. They allow the public entity to investigate the claim when the facts are fresh, provide the opportunity to settle meritorious claims, and afford them an opportunity to correct the conditions which give rise to the claim, and inform the entity in advance as to the expected liability that it may be expected to meet.

It is undisputed that the Plaintiff did not file a notice of claim with the Camden Police Department. However, the plaintiff and his mother did make written and verbal complaints. The question before the court was whether those complaints substantially complied with the TCA’s notice requirement.

Plaintiff argued that the complaints lodged by him and his mother to the Internal Affairs Department substantially complied with the notice requirement because they informed the Camden County Police Department of the specifics of his claim within 90 days of the incident. He also claims that, in their complaints, he described his injuries. Further, it was sufficient for IA to conduct an investigation of the officers’ alleged misconduct.

However, the District Court found that, notwithstanding the specificity of the report to the police department, the written complaints did not substantially comply with the notice requirement because they failed to give notice of a potential civil suit for damages and the amount of the damages claimed. The purpose behind this notice requirement is not only to allow the public entity time to investigate the claim but also to advise the public entity of the intent to make a claim. Such information permits the public entity sufficient time to prepare a defense, preserve evidence, examine its liabilities and indebtedness, and settle meritorious suits.

Here, the complaint to the Internal Affairs department makes no mention of civil liability. It was just a request for the police department to look into an alleged incident of misconduct of its officers. The court noted that not every civilian complaint to the police department results in the filing of a civil lawsuit and the defendant is not required to interpret the Plaintiff’s complaint to investigate an incident as an indication of future litigation.

Accordingly, the District Court found that the filing of the complaints with the Internal Affairs department did not substantially comply with the notice requirements of the Tort Claims Department. Hence, the defendants’ motion to dismiss the state law claims was granted.