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State Found Immune From Liability for Auto Accident Based Upon Tort Claims Act Immunities

Plaintiff Ralph Jameson was injured in an automobile accident while he was driving around a traffic circle (Cranbury Circle) in Cranbury Township.  His vehicle collided with a truck driven by defendant Richard Kyle.  The issue in Jameson v. DRD Int’l, Inc., 2024 N.J. Super. Unpub. LEXIS 1481 (App. Div. July 8, 2024) was whether the plaintiff could pursue a claim against the State of New Jersey, which controlled the Cranbury Circle, or whether the State had immunity from this claim under the Tort Claims Act.

This accident occurred when Jameson was driving northbound on U.S. Route 130 in Cranbury Township.  Defendant Kyle was driving a truck on South Main Street, which intersects with the northbound lanes of U.S. Route 130 at the Cranbury Circle.  Although there is a stop sign at the intersection of South Main Street where it enters the Cranbury Circle, Kyle did not stop at the stop sign.  He believed he had enough time to pass through the intersection and circle before any northbound vehicles on U.S. Route 130 came to the intersection.  However, he misjudged and Jameson’s car struck Kyle’s truck which resulted in severe injuries to Jameson.

Plaintiff sued Kyle and his employer, DRD International, Inc.  That claim settled.  However, he also sued the State of New Jersey and Middlesex County. The County was later dismissed out of the case. This appeal concerned plaintiff’s claim against the State.

Plaintiff contended that the State was negligent in its design, maintenance, and/or control of Cranbury Circle and that it created a dangerous condition.  Plaintiff produced two expert reports to support his claim.  His engineering expert opined that the Cranbury Circle was a dangerous condition because it had a crash history “that exceeded crash history standards and that the Cranbury Circle’s crash history should have raised red flags.”  His accident reconstruction expert opined that there was a dangerous condition at the Cranbury Circle “because slow-moving vehicles, such as tractor trailers, entering the Cranbury Circle could pose a danger to vehicles traveling at highway speeds.”

At the trial court level, the State filed for a summary judgment.  It contended that plaintiff had not and could not establish that the Cranbury Circle was a dangerous condition.  It also argued that it was entitled to plan or design immunity and immunity for failure to provide traffic signals.  The trial court granted the State’s summary judgment motion and dismissed the claims against the State.  

That order was appealed to the Appellate Division. The issues upon appeal were whether plaintiff was able to show that the Cranbury Circle was a dangerous condition under the Tort Claims Act and whether the State had established that it was entitled to plan or design immunity under the Act.

The Appellate Division agreed with the trial court decision.  It found that the plaintiff did not establish the existence of a dangerous condition at the Cranbury Circle.   The plaintiff had not identified anything specific in the Cranbury Circle that created a danger.  Plaintiff’s engineering expert suggested that the Circle may be poorly designed because there were a high number of accidents at the Cranbury Circle but his expert failed to point to a specific design defect in the Cranbury Circle.  The expert had suggested several changes that could be made to the Cranbury Circle, including widening lanes or installing traffic signals, rather than stop signs, but emphasized that the high volume of traffic through the Cranbury Circle and the multiple points where accidents could occur were what made the Circle dangerous as a whole.

As for the reconstruction expert, he effectively acknowledged that Kyle failed to stop at the stop sign and “tried to excuse that failure by reasoning that a truck would have difficulty traveling across the Cranbury Circle in a timely manner if it had stopped at the stop sign.”  The Appellate Division found that this opinion did not form a factual basis from which a jury could find that there was a dangerous condition at the Circle if Kyle had stopped as required by the stop sign.  The jury would have been left to speculate that there would have been a sufficient gap in ongoing traffic to allow a truck to safely pass through the intersection.

The Court pointed out that plaintiff’s real argument was that the dangerous condition at the Cranbury Circle arose out of its design.  However, plaintiff failed to show that the design was defective.  Plaintiff also failed to show that the unidentified dangerous condition at the Cranbury Circle caused this accident.

Further, the Appellate Division found that the State did have plan or design immunity under the statute, N.J.S.A. 59:4-6(a).  Under the Tort Claims Act, a public entity would have plan or design immunity from liability for an accident if it is able to show that the injury was caused by the plan or design of its property, where this plan or design has been approved in advance of the construction or improvement by the Legislature, or the governing body of the public entity.  The Court pointed out that when this immunity attaches, the public entity is not subject to liability for an injury that arises from the design of the property.

Here, the Appellate Division found that the State did provide several as-built documents and diagrams of the Cranbury Circle’s design plan.  It noted that these drawings contemplated the “geometry” of the Cranbury Circle, which is apparently what plaintiff contended caused or contributed to the accident.  The documents included signatures of the individuals who submitted, recommended or approved the plans.  Some of the documents predated the construction of the Circle. 

The Appellate Division found that by producing these documents, the State had met its burden of demonstrating that it considered the Cranbury Circle’s shape in formulating its design.  It did not need to produce a plan or design applicable to the stop sign but only needed to offer evidence that it considered the flow of traffic around the Cranbury Circle generally.  Hence, the Appellate Division found that the State was entitled to plan or design immunity.

Because the Appellate Division found that the plaintiff had failed to demonstrate a dangerous condition at the Cranbury Circle and that the State established that it was entitled to plan or design immunity, even if there had been a dangerous condition of the Cranbury Circle, it affirmed the trial court’s decision, dismissing the lawsuit.

Prosecutor’s Office Found Not Liable for Civil Claim in Prosecuting Former Police Officer for Criminal Acts

Plaintiff Thomas Aletta, a former police officer for the Hackensack Police Department sued the Bergen County Prosecutor’s Office, State of New Jersey, Prosecutor John Molinelli, Assistant Prosecutor Daniel Keitel, and Prosecutor Investigator Lieutenant Jay Haviland after he was acquitted of official misconduct, conspiracy and evidence tampering.  He alleged a politically motivated conspiracy to prosecute him contrary to state and federal law.  The issue in Aletta v. Bergen County Prosecutor’s Office, 2024 N.J. Super. Unpub. LEXIS 976 (App. Div. May 29, 2024), was whether the plaintiff had stated a constitutional claim and/or a claim under the New Jersey Tort Claims Act against the defendants.

This case was dismissed at the summary judgment level as to all defendants based upon immunity under the Tort Claims Act, as well as prosecutorial immunity under §1983 and the New Jersey Civil Rights Act (“NJCRA”).  Further, the defendants had argued that the Prosecutor defendants enjoyed qualified immunity due to the existence of probable cause for the charges against plaintiff. 

The Appellate Division found that as to the entity defendants, the claims were properly dismissed.  However, as to the individual defendants, the Appellate Division agreed that the defendants were entitled to immunity for their roles in plaintiff’s prosecution except for the allegations against the individual defendants that they pressured witnesses to lie or change their statements, destroyed exculpatory evidence, and presented false testimony to the court and/or grand jury.

Plaintiff’s prosecution arose from an assault against a juvenile in which the Prosecutor’s office claimed that the plaintiff improperly sought to secure another juvenile’s involvement in the case.  Plaintiff alleged that his prosecution arose from a political conspiracy due to his support of the Hackensack Police Chief.  Plaintiff, however, was acquitted from the criminal proceedings brought against him and, thereafter, filed this civil suit against the defendants. 

As for the entity defendants, the Appellate Division agreed that they were absolutely immune from plaintiff’s § 1983 and NJCRA. claims.  The court noted that prosecutors have absolute immunity from claims arising out of their governmental function.  That immunity is based on “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from their public duties, and the possibility that they would shade their decisions instead of exercising the independence of judgment required by their public trust.” 

Activities which are an integral part of the judicial process are protected.  The court noted that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings and for trial, which occur in the course of their role as an advocate for the State, are entitled to the protections of absolute immunity.  In fact, courts have granted immunity from claims alleging a prosecutor failed to disclose exculpatory evidence and use false testimony in connection with the prosecution “so long as they did so while functioning in their prosecutorial capacity.” 

However, prosecutors do not have immunity outside their role as an advocate.  A prosecutor is not entitled to absolute immunity “when performing administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.”  Further, the Court noted that a prosecutor “is not entitled to absolute immunity if they acted out of personal motive, with malicious intent, or in excess of their jurisdiction.”   However, a government official may be entitled to qualified immunity “for discretionary acts that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 

As to the entity defendants, the Appellate Division agreed with the trial court that plaintiff’s NJCRA and §1983 claims against the State failed because it is not amenable to suit under either statute.   The Court noted that the State is not subject to suit because it did not waive its sovereign immunity for either a 1983 or a NJCRA claim.

The Appellate Division also agreed that the prosecutor’s office was properly dismissed.  A public entity may be held liable under the NJCRA or § 1983 if it causes harm through the “implementation of an official municipal policy which caused a constitutional violation.”  The public entity cannot be held liable under the doctrine of respondeat superior.  Liability can only be imposed “when the policy or custom itself violates the Constitution or when the policy or custom, while not unconstitutional itself, is the moving force behind a constitutional tort of one of its employees.”  Where the policy or custom at issue is a failure to train or supervise, “the plaintiff must show that this failure amounts to deliberate indifference to the rights of persons with whom the municipality’s employees will come into contact.”

Here, plaintiff alleged generally that the prosecutor’s office had a custom of “condoning the actions of their agents, servants and/or employees by virtue of their training, supervision, policies, procedures, and/or directives.”  However, the Appellate Division noted that this “conclusory, undetailed statement” did not identify any specific and constitutional component or how this custom was the “moving force” behind any allegedly tortious conduct.  The plaintiff had alleged that all named prosecutor defendants “failed to follow proper and lawful guidelines, policies, procedures, and methods for conducting criminal investigations and prosecutions.”  However, the Court found that plaintiff had failed to identify any specific training he claimed would be necessary nor any pattern of similar constitutional violations to put the prosecutor’s office on notice that a new training program was necessary.  Hence, the Appellate Division agreed that the dismissal against the prosecutor’s office was proper. 

However, the Appellate Division disagreed with the dismissal of the common law claims against the individual defendants. These claims were governed by the Tort Claims Act.  The Appellate Division grouped the plaintiff’s allegations based upon the purported underlying conduct as the following:

(1) Improper charging and prosecution of plaintiff based on personal and/or political motives, (2) coercion of witnesses to lie or change their statements, (3) use of those false statement, (4) purposeful destruction of exculpatory evidence.

As for the allegations concerning charging and prosecuting plaintiff, the Court found that the individual defendants had immunity under N.J.S.A. 59:3-8 in which there was immunity for “instituting or prosecuting any judicial . . . proceeding within the scope of defendant’s employment.”  As for pressuring witnesses to lie, the Court concluded that the record was insufficient for a determination whether defendants were entitled to Tort Claims Act immunity.  The Appellate Division ruled that the plaintiff must specify each instance forming the basis for these claims and defendants may then renew their motion as appropriate.

As for the knowing use of false testimony before the grand jury and/or trial, the Court found that this claim, as pled, constituted willful misconduct. Thus, the two prosecutors were not entitled to immunity for this alleged willful misconduct.  As for the allegation of destruction of exculpatory evidence, the Court found that the plaintiff did not provide any specific details as to how the prosecutors were involved.  However, as to the investigator, the court found that the plaintiff had presented sufficient facts suggesting that he was not entitled to immunity for purportedly ordering and/or participating in the destruction of evidence.  Thus, the Appelate Division found that the investigator Haviland was not entitled to prosecutorial immunity under the Tort Claims Act for allegedly destroying evidence.

As for the common law claims asserted against the entity defendants, the court noted that while a public entity may be held responsible for acts or omissions of its employees under a theory of respondeat superior under the Tort Claims Act, it is “not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.”  Further, under N.J.S.A. 59:2-10,  it is not liable “where the employee’s acts or omissions constitute a crime, actual fraud, actual misconduct.” 

Thus, the Appellate Division ruled that to the extent it has determined that any of the individuals are entitled to immunity, neither the prosecutor’s office nor the State can be held liable on a respondeat theory related to those claims.  Further, the Appellate Division ruled that to the extent any individual defendant engaged in willful misconduct or acted outside the scope of their employment such that they were not entitled to immunity, the entity defendants cannot be held liable for those actions.

The defendants also argued that the plaintiff’s complaint should be dismissed for failure to meet the verbal threshold under N.J.S.A. 59:9-2(d).  Under this provision, no damages may be awarded against a public entity for pain and suffering, except for cases of “permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.”  Emotional distress is considered to be pain and suffering.  However, where a public employee’s actions constitute willful misconduct, the plaintiff did not need to satisfy the verbal threshold.

The Appellate Division agreed that the record did not reflect medical treatments in excess of $3,600.  However, based upon the allegation of the investigator’s purported destruction of evidence and the prosecutor’s alleged use of false testimony constituting willful misconduct, they found that the verbal threshold provision would be inapplicable.

In summary, the court agreed that all claims against the prosecutor’s office and the State were properly dismissed.  Further, all claims based upon defendants’ allegedly improper motivation to prosecute the plaintiff, the constitutional claims based upon the defendants’ alleged known use of false testimony before the grand jury or at plaintiff’s trial, and all claims against the two prosecutors based upon their alleged destruction of evidence were all properly dismissed. 

However, the Court reversed and vacated the dismissal against the investigator Haviland based upon his alleged destruction of evidence, all claims against the individual defendants based upon their alleged coercion of witnesses and the common law claims against the two prosecutors based upon their alleged presentation of false testimony to the grand jury and/or at trial.  But, upon remand, the plaintiff was ordered “to provide specific details about the purported coercion, including the specific defendant(s) alleged to be involved, when the conduct occurred, and whether the witness later testified before the grand jury or at plaintiff’s trial.”

Appellate Division Rules That Department of Transportation and State of New Jersey Were Not Liable for Injury Caused by Pothole

By: Uyen Nguyen, Law Clerk
Edited By: Betsy G. Ramos, Esq.

Plaintiff Josef and Stefani Langel filed a complaint against Defendants New Jersey Department of Transportation (DOT), State of New Jersey, county, municipal, and private entities, alleging that Defendants’ failure to provide proper warning and repair a pothole in the roadway caused his injuries when he was thrown off his bike. The issue in Langel v. State DOT, 2024 N.J. Super. Unpub. LEXIS 1490 (App. Div. July 10, 2024) was whether Defendants DOT and the State of New Jersey were liable for the injuries Plaintiff Josef Langel sustained from the pothole.

On March 16, 2019, Josef Langel rode a bicycle on Sylvan Avenue, a section of Route 9 West, in Englewood Cliffs, NJ. He hit a pothole in the roadway, causing him to be thrown off his bike and sustain injuries. Plaintiff and his friends were on a bike trip from New York City to Piermont, NY. Plaintiff claimed that he rode the same route six months before the accident. However, Plaintiff never noticed the pothole before the accident, nor made any complaint about the road conditions to any state entities.

Ronald Gallucci, a DOT crew supervisor who oversaw the maintenance of Route 9 West, testified that he had neither received any complaints, nor seen the pothole that injured the Plaintiff. He stated that his maintenance crew inspected the roadway every other day for potholes. According to Gallucci, if the DOT had received a complaint about the potholes, he or his crew would have inspected the area.

William Falato, a DOT equipment operator, also testified that he was familiar with the area where the accident occurred and had never seen the pothole before. According to this witness, if the pothole had been there for a substantial period, he or his crew would have noticed it due to its large size. He also recounted instances where his crews inspected an area and saw no potholes, but within days later, DOT received a complaint that a pothole had formed.

Englewood Cliffs Patrol Officer Marc Krapels, who responded to Plaintiff’s accident, also testified that he had not seen the pothole before. Krapels stated that from his experience patrolling the area, a pothole could form at any time, since the town is located on a cliff. DOT also provided complaints it received on February 27, 2019 regarding potholes in areas surrounding where Plaintiff hit the pothole. However, the records indicated DOT did not receive any complaint about the pothole that Plaintiff hit.

Meanwhile, Plaintiff obtained a report from expert engineer Richard Balgowan, who indicated that the pothole had been present for at least a year before Plaintiff’s accident. However, Balgowan admitted that he did not inspect the location until April 23, 2021, which was more than two years since Plaintiff’s accident, and the pothole had been repaired by then.

On August 1, 2022, Defendants filed a motion for summary judgment claiming they were entitled to discretionary immunity under the NJ Tort Claims Act (TCA), N.J.S.A. 59:2-3. Defendants maintained that their conduct in maintaining the roadway was not palpably unreasonable, and Plaintiff’s expert report was a net opinion. On the other hand, Plaintiff cross-moved for summary judgment, arguing that defendants were not entitled to discretionary immunity. Plaintiffs claimed Defendants had actual and constructive knowledge of the dangerous conditions, and their actions or omissions were palpably unreasonable. Plaintiff also argued that their expert report was not a net opinion.

The Law Division granted the summary judgment in favor of Defendants DOT and the State of New Jersey, denied Plaintiff’s summary judgment, and dismissed the complaint with prejudice. Ultimately, Plaintiff moved for reconsideration. Plaintiff’s motion for summary judgment and reconsideration was denied because they had failed to establish that Defendants had actual or constructive notice of the pothole. On appeal, the Appellate Division reviewed whether the trial judge had abused his discretion in denying Plaintiff’s motions for reconsideration.

Under the TCA, a public entity is liable for injuries caused by a dangerous condition if it has actual or constructive notice of its existence. To establish actual notice, Plaintiff must show that the public entity has actual knowledge of the existence of a condition and knew or should have known of its dangerous character. Defendants can still be liable, even though they didn’t have actual notice if Plaintiff can establish that they have constructive notice of the dangerous condition. To establish constructive notice, Plaintiffs must show that the dangerous condition had existed for a period of time and was of such an obvious nature that Defendants should have discovered it if they exercised due care.

To show actual knowledge, Plaintiff offered a photograph of the pothole that had been paved over at some point. However, Plaintiff failed to prove that the repair was performed before the accident. Thus, Plaintiff could not prove that Defendants had actual notice or knew about the pothole before his accident. Regarding constructive notice, Defendants’ witnesses all testified that a pothole could have formed within a few days or even overnight. Plaintiff could not show that the pothole had existed for a period of time despite its obvious nature, and DOT failed to exercise due care to discover it. Thus, Plaintiff was also unable to establish Defendants had constructive notice of the pothole.

Furthermore, the Appellate Division held that the expert’s opinion Plaintiff provided was a mere conclusion. Applying the standard established by the NJ Supreme Court in Pomerantz Paper Corp. v. New Community Corp. regarding the admissibility of expert opinions, the Court concluded that the expert’s opinions in this case were a mere conclusion because Plaintiffs’ expert witness could not “give the why and wherefore” to support his opinion. Furthermore, the fact this expert did not inspect the pothole in person two years after the accident did not weigh in favor of Plaintiffs.

Under discretionary immunity, a public entity is not liable for the exercise of discretion unless a court concludes that its procedures or policies are palpably unreasonable. Although the Law Division did not rely on this doctrine as a basis to grant Defendant’s motion, the Appellate Division applied the doctrine in this case and held that the DOT Assistant Commissioner’s decisions in inspecting roadway and repairing potholes were entitled to discretionary immunity. Thus, Defendants are not liable for Plaintiff’s injuries because their conduct in maintaining the roadway and making repairs was not palpably unreasonable.

Hence, the Appellate Division affirmed the summary judgment granted to the Defendants, dismissing the Complaint.

Police Officer Found to Be Immune From Liability for an Accident Caused by High Speed Chase

Plaintiffs Omer Jackson and Sharonda Jackson sued defendants County of Hudson, Hudson County Sheriff’s Office, and Officer Renato Maure-Cascaret for injuries suffered by Omer when his car was hit by a car that was being pursued in a high speed chase by Officer Maure-Cascaret.  The defendants successfully filed for a motion for summary judgment, obtaining a dismissal of the lawsuit.  The issue in Jackson v. County of Hudson, 2024 N.J. Super. Unpub. LEXIS 561 (App. Div. Apr. 4, 2024) was whether the officer committed willful misconduct in his police pursuit or whether he was immune from liability under the Tort Claims Act.

The incident occurred at about 5:00 a.m. when Officer Maure-Cascaret of the Hudson County Sheriff’s Department was conducting radar enforcement in Jersey City.  He observed a vehicle driven by defendant Oriental Hamlet pass through three consecutive red lights and his radar captured his speed at traveling between 68 and 70 miles per hour on a road with a posted speed limit of 25 miles per hour.  The officer began following Hamlet and attempted to “close the gap” without turning on his patrol car’s lights or sirens.  He radioed the on-duty communications officers to inform them that he was following a vehicle traveling at a high speed.  The Hamlet vehicle ultimately slowed down and the officer was able to initiate a traffic stop.  After both vehicles were stopped for several seconds, the officer called in Hamlet’s license plate but then Hamlet suddenly sped away.

Officer Maure-Cascaret again contacted the on-duty communications officers to report that the vehicle had sped away and he was going to pursue it.  Hamlet then sped through a red light and collided with Omer’s vehicle which had the green light.

This entire incident from the time the officer initially observed Hamlet speeding to the attempt to pull him over, to the accident terminating the pursuit, lasted only about 50 seconds.  The time period after the initial stop was about 30 seconds and lasted approximately 9 or 10 blocks.  The officer was about one block behind Hamlet when the collision occurred.

The trial court found that the Tort Claims Act provision, N.J.S.A. 59:5-2(b)(2), conferred immunity on the police officer for injuries resulting from a pursuit.  Under this statutory provision, “neither a public entity nor a public employee is liable for any injury caused by an escaping person or escaped person.” And, further, under N.J.S.A. 59:5-2(c), neither the public employee, nor the public entity is liable for “any injury resulting from or caused by a law enforcement officer’s pursuit of a person.”

Plaintiff contended, however, that there was an issue whether the officer’s decision to initiate the pursuit and his subsequent failure to terminate the pursuit violated the Attorney General’s Vehicular Pursuit Policy and, therefore, constituted willful misconduct (which would void out these immunities).

In the prior New Jersey Supreme Court Case of Fielder v. Stonack, the Court defined willful misconduct in the context of police pursuits.  There are two elements which must be satisfied: “(1) disobeying either a specific lawful command of a superior or a specific lawful standing order and (2) knowing of the command or standing order, knowing that it is being violated and, intending to violate it.”  

The Appellate Division agreed with the trial court decision herein that “there were no credible facts in the record to establish Officer Maure-Cascaret engaged in willful misconduct during his pursuit of Hamlet.”  Under the Attorney General Guidelines, a police officer may only pursue a suspect if they have committed a first-or second-degree offense or if the officer reasonably believes the suspect poses an immediate threat to either the public or the officer. 

In his deposition, the officer had explained that his decision to pursue Hamlet was based, in part, on Hamlet pulling away from the initiated traffic stop.  This was a second degree offense of eluding, warranting police pursuit based upon the Attorney General Guidelines. In conjunction with the characterizations of Hamlet’s action as a second degree offense, the officer’s decision was authorized and, therefore, his actions did not constitute willful misconduct.

Further, the Appellate Division noted that this pursuit was of such a short duration that the accident occurred before the officer could even have a reasonable chance to terminate the pursuit.  As for the use of excessive speed, it is judged upon whether it is reasonable for the officer to move at excessive speed.  The trial judge had concluded that finding the officer acted improperly pursuing Hamlet at the speeds he traveled would be “an unfair and illogical reading of the guidelines.”

To deny the defendants’ summary judgment motion “would have required a factual dispute over whether Officer Maure-Cascaret demonstrated willful misconduct in both his decision to pursue Hamlet and his failure to terminate the pursuit prior to the collision.” 

The Appellate Division found that the undisputed facts showed that the pursuit occurred on a virtually empty street before 5:00 a.m., it lasted 30 seconds, for only 9 blocks, with no order from a commanding officer to terminate the pursuit, and there was no expert report opining that the officer’s speed was unreasonable.  Hence, based upon these factual circumstances, there were no facts that could demonstrate willful misconduct and, therefore, no genuine dispute as to any material fact existed.  Thus, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

Court Permits Plaintiff To File Late Notice Of Tort Claim

This case involved a tragic accident in which four members of a family were involved in a one-vehicle accident at a toll plaza on the Atlantic City Expressway.  Due to this accident, three of the family members were killed and the fourth member, a 12 year old girl, was severely injured.  To be able to sue the South Jersey Transportation Authority for this accident, the plaintiffs in this case, the Estates of the decedents and guardian of the survivor, sought leave from the court to file a late tort claims notice against the Authority (“SJTA”).  The issue in Estate of Khiev v. South Jersey Transportation Authority, 2024 N.J. Super. Unpub. LEXIS 226 (App. Div. Feb. 14, 2024) was whether the trial court correctly ruled that a late tort claim notice could be served. 

This accident happened on December 26, 2021 when the decedents’ vehicle crashed at the Egg Harbor Toll Plaza on the Atlantic City Expressway.  The South Jersey Transportation Authority owns and operates the Expressway.  On January 4, 2022, plaintiffs contacted and retained counsel to investigate the crash and also requested the police report and a video of the crash.  A preliminary police report was received on January 19, 2022 but it did not contain a full investigation or video of the accident.  In February 2022, plaintiffs retained two experts to investigate the crash.  Their preliminary investigations did not reveal any obvious roadway defects.

On March 17, 2022, the State Trooper with whom plaintiffs’ counsel had been in contact, advised plaintiffs that he had prepared a supplemental report and, further, plaintiffs could now request the complete report, as well as the video of the crash.  Their request was made that same day.  The final report, however, was not delivered to plaintiffs’ counsel until May 5, 2022 and the video of the accident was not delivered until May 11, 2022.  After plaintiffs’ experts reviewed and discussed the video, they formed the opinion that there was a design defect in the toll plaza that had substantially contributed to plaintiffs’ deaths and injury.  In their opinion, there was a sloped concrete barrier of the toll plaza, and that when plaintiffs’ vehicle travelled up the slope of the barrier, it caused the vehicle to combust and sustain catastrophic damage, which led to the deaths and injury of plaintiffs.

On May 31, 2022, plaintiffs filed a motion seeking leave to file a late notice of tort claim as to the SJTA.  The motion was unopposed and the court granted an order on June 24, 2022, permitting the late notice to be filed. Thereafter, the plaintiffs did file their tort claims notice on June 30, 2022.

However, it was ascertained that defendant Authority had not been properly served with the notice of motion.  Thus, defendant filed a motion to vacate the June 24, 2022 order and now filed opposition to plaintiffs’ motion for leave to file a late tort claims notice.

Although the trial court did vacate the June 24, 2022 order, it granted plaintiffs’ leave to file a late tort claims notice.  The court granted the application on two bases.  First, the trial court found that the date of accrual of plaintiffs’ claims was not until May 11, 2022 when plaintiffs had sufficient information that a public entity could be responsible for the crash, rather than December 26, 2021, the date of the crash.  Accordingly, the filing of the tort claims notice on June 30, 2022 was considered timely to meet the ninety (90) day notice requirement under the Tort Claims Act.

Second, the trial court found, in the alternative, that there were extraordinary circumstances justifying late notice.  The judge found that plaintiffs had exercised due diligence in investigating the accident but determined that defendant was potentially liable only when they received a video.  Also, the trial court found that the defendant SJTA would not suffer any substantial prejudice if the late claim was permitted.  It had been aware of the accident and witnesses related to the accident were still available.  The toll plaza worker who had been injured in the accident was still available as a witness and the damaged vehicle had been preserved and defendant had access to the video of the accident.

This decision was appealed to the Appellate Division.

Upon appeal, the SJTA made three arguments:  First, it contended that the trial court misapplied the law in finding that the accrual date was the date plaintiffs received the video, rather than the date of the accident. Second, it argued that the trial court abused its discretion “in finding that, even if the claim accrued on the date of the crash, extraordinary circumstances justified allowing plaintiffs to file a late notice.”  Last, defendant argued that the trial court abused its discretion in finding that there would be no substantial prejudice in in permitting plaintiffs the right to file a late notice.  The Appellate Division reviewed these arguments and rejected all of them.

Pursuant to N.J.S.A. 59:8-8, the failure to serve a notice of claim upon a public entity within the ninety (90) day period following accrual of the claim results in a bar against the claim.  However, the Tort Claims Act permits a claimant to move for leave to file a late notice of tort claim within one year after the claim accrues.  Under N.J.S.A. 59:8-9, a trial court may grant the motion “if there are sufficient reasons constituting extraordinary circumstances for the claimant’s failure to timely file” a notice within that ninety day period and, further, if the public entity is not substantially prejudiced thereby.

The “accrual” of a claim has been determined to be the date on which the underlying tortious act occurred.  However, under the “discovery rule,” the law also allows for a delay of the date of accrual when the victim is unaware of an injury or does not know that a third-party is liable for the injury.  Based upon the “discovery rule,” the accrual date is tolled from the date of the tortious act or injury when the injured party either does not know the injury or does not know that a third-party is responsible for the injury.  Under this rule, the claim will accrue when the claimant knows there has been an injury and there are facts suggesting that a third-party may be responsible. 

Here, the Appellate Division found that the claim did not accrue until May 11, 2022 when their counsel received video footage of the crash.  Until that date, there were no facts suggesting that the South Jersey Transportation Authority may have been responsible for the plaintiffs’ deaths and injuries.  The Appellate Division agreed with the trial court that just knowing that the defendant owned the roadway and toll plaza was not sufficient for the claim to accrue.  Rather, the claim accrued when plaintiffs’ experts reviewed and analyzed the video and learned that defendant might be responsible for the plaintiffs’ deaths and injuries. 

The Appellate Division also considered the alternative argument that the plaintiffs’ late notice of claim was justified by extraordinary circumstances.  In determining whether extraordinary circumstances exist, the inquiry focuses on whether there has been reasonable diligence of the plaintiff in investigating the claim and determining the identity of the tortfeasor. 

Here, again, the Appellate Division agreed with the trial court that the plaintiffs had shown extraordinary circumstances to justify a late notice of tort claim.  The Court found that the plaintiffs acted with due diligence to retain experts and to obtain the accident report and the video.  However, it was the state police who took some time to approve the final accident report and released the video.  Therefore, the accident report was not received until May 5, 2022 and the video on May 11, 2022.  It was not until the video was reviewed and analyzed by the plaintiffs’ experts, who, for the first time, had a basis to opine that the Authority could be responsible for this accident.  Thus, the Appellate Division agreed that the plaintiffs acted with due diligence and were prevented from serving a timely tort claims notice by extraordinary circumstances.

Finally, the Court considered whether there was substantial prejudice to the Authority by the filing of the late notice of tort claim.  The Appellate Division found that the Authority had not demonstrated any prejudice, much less substantial prejudice. It was well aware of the accident, the car had been preserved, and the witnesses to the accident were still available.  Hence, the Appellate Division found no abuse of discretion in the trial court’s finding that there was no substantial prejudice to defendant.  Accordingly, the trial court decision to permit the filing of a late notice of claim was affirmed and plaintiffs were allowed to go forward with their lawsuit. 

Plaintiff’s Injury Claim Against Municipality Caused by Stepping Into Pothole Fails Due to Lack of Notice of Condition

Plaintiff Reginald Jones was injured when he was attempting to cross in the middle of Isabella Avenue in Irvington.  While stepping off the curb, his foot became stuck in a hole in the street adjacent to the curb.  It caused him to fall and suffer injuries.  The issue in Jones v. Township of Irvington, 2024 N.J. Super. Unpub. LEXIS 176 (App. Div. Feb. 6, 2024) was whether he could pursue a claim against the Township for its failure to remediate the pothole. 

Personal injury claims against public entities are governed by the Tort Claims Act.  To be able to sue a public entity for tort liability for injuries caused by that entity’s property, under N.J.S.A. 59:4-2, the plaintiff must establish the property was in a dangerous condition at the time of the injury and that the condition was either created by an employee of the public entity or the public entity had actual or constructive notice of the condition. However, even if the plaintiff is able to present those proofs, the public entity would not be liable for the dangerous condition of its property “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

There were two issues in this case.  First, the issue was whether the plaintiff had sufficiently established that there was a dangerous condition of the Township’s property at the time of his accident.  Second, the issue was whether the Township had notice that the property was in a hazardous condition.

While the parties conducted discovery, there were no depositions taken and there were no experts retained.  The only evidence of the pothole were 11 photographs of the roadway produced by the plaintiff.  The photographs showed a hole which was surrounded by vegetation growth, cracked, and filled with garbage and vegetation.  According to the plaintiff, the hole measured about 19 inches long, 19 inches wide, and 16 inches deep.

Once discovery concluded, the Township filed for a summary judgment.  It argued that the plaintiff had failed to state a claim that the plaintiff’s injuries were caused by a dangerous condition of its property.  Plaintiff opposed that motion, arguing that the Township had constructive notice of the ‘“large sinkhole.’”

The trial court judge granted the motion for summary judgment.  The judge ruled that plaintiff had failed to present any competent evidence other than speculation and legal conclusion to prove that the hole was in a dangerous condition.  The trial court judge noted that the only evidence in support of the condition of the property were the photographs attached to plaintiff’s answers to interrogatories which were not glossy color photos, nor were they provided with any certification stating who took the photos and when they were taken. Further, the plaintiff failed to prove that the Township had notice of the condition.

Plaintiff filed a motion for reconsideration, which was denied, again on the same basis due to the plaintiff’s failure to prove the Township had prior notice of the condition or had adequate proofs as to its actual condition.  The plaintiff appealed this decision to the Appellate Division.

The Appellate Division found that the trial court correctly ruled that plaintiff had failed to establish liability under the Tort Claims Act due to lack of evidence that the Township either caused the hole in the street or had actual or constructive notice of the hole. In support of the notice argument, plaintiff cited to a Township Public Works website that street sweepers were on Isabella Avenue twice a week.  However, the Court found this information insufficient to show that the Township had constructive notice of the hole. 

The Court also found that plaintiff had failed to offer any expert testimony or proofs showing that there were any reports about the hole which could have established that the Township had actual notice thereof.  Last, the Appellate Division found that the plaintiff had failed to submit any proofs that the Township acted in a “palpably unreasonable manner.”  The Appellate Division agreed with the trial court that the plaintiff’s claim was based on nothing more than ‘“mere speculation.’”

The appeals court also agreed with the trial court that the photographs themselves were insufficient competent evidence due to the lack of foundation as to these photographs.  The plaintiff had failed to offer any competent testimony “concerning the measurements of the hole, who took the photographs, when they were taken, and if they were altered.” 

Hence, the Appellate Division agreed that plaintiff failed to meet his burden under the Tort Claims Act to “establish that the Township had or could have had actual or constructive notice of the hole in the middle of Isabella Avenue.”  Therefore, the Court affirmed the trial court decision, dismissing the lawsuit. 

No Liability Found for Jersey City for Injury Caused by Trip and Fall on Uneven Pavement

Plaintiff Linda Emmanoulidis was walking her dog in Enos Park in Jersey City when she tripped and fell on an uneven pavement and sustained injuries. The issue in Emmanoulidis v. City of Jersey City, 2023 N.J. Super. Unpub. LEXIS 477 (App. Div. Mar. 30, 2023) was whether the City could be liable for a pedestrian accident caused by a trip and fall on an uneven pavement under the Tort Claims Act.

Prior to her fall, Plaintiff had never walked in the area before and did not know how long the condition existed. After her fall, Plaintiff retained an engineering expert who opined that the elevation of the crack where Plaintiff stated she fell was 1/2 – 3/4 inches. In his report, the expert noted that some of the concrete sidewalk slabs showed signs of repairs but not in the specific area where plaintiff fell. The report did not indicate when the repairs were done and who performed the work.

Plaintiff sued the City of Jersey City claiming that the uneven pavement was a dangerous condition which caused her accident. The City moved for summary judgment dismissal, contending that the plaintiff had not established the existence of a dangerous condition of which the City had actual or constructive notice. In addition, the City contended plaintiff did not demonstrate that the City’s conduct was palpably unreasonable.  In response to the motion, plaintiff presented a certification from her brother-in-law, a retired Jersey City police officer. He certified that, in course of his job, he had searched evidence in the area where plaintiff fell and the condition of the pavement was exactly as it was on the day she fell for at least four years.

The trial court granted the City’s motion for summary judgment, holding that the plaintiff had not demonstrated the uneven sidewalk was a dangerous condition and that the City had actual or constructive notice of the “declivity in the walkway.” The Court reviewed the photographs on record and concluded that the condition was not so open and obvious to provide the City of constructive notice of a dangerous condition. 

Upon appeal, plaintiff argued that the court erred in finding: 1) the uneven pavement was not a dangerous condition; 2) the City was aware of the dangerous condition; and 3) the City’s failure to fix the dangerous condition was palpably unreasonable. The Appellate Division noted that under the Tort Claims Act, a dangerous condition exists when there is a defect in the physical condition of the property itself. The Court held that whether the defect in the pavement was a dangerous condition could be left to the jury for determination.

To determine the issue of notice, the Court considered that the plaintiff could not establish: 1) the duration for which the crack was present; 2) there was no evidence to show that the City had actual knowledge of the crack; 3) the City had no record of any complaints regarding the crack; and 4) the certification offered by plaintiff’s brother-in-law did not satisfy the notice to public entity standard. In addition, plaintiff could not show the crack was open and obvious. Thus, the Appellate Division held that plaintiff did not demonstrate that the City had actual or constructive notice of the defect. Therefore, the Court ruled that the plaintiff did not establish that the City was liable under the Tort Claims Act and affirmed the summary judgment dismissal.

Plaintiff’s Loss of Balance May Satisfy the Permanency Requirement of the Tort Claims Act

Plaintiff Berta Abreu Flores was injured as a result of a collision by the defendant North Hudson Regional Fire & Rescue Department’s fire engine.  During a training exercise, the fire engine crossed the road and struck the front of her residence opposite the fire house where plaintiff was working on the first floor.  She claimed an injury from the accident, including a hearing loss, shoulder injury, and a loss of balance.   The issue in Flores v. North Hudson Regional Fire & Rescue, 2023 N.J. Super. Unpub. LEXIS 1928 (App. Div. Oct. 27, 2023) was whether the plaintiff’s injuries satisfied the substantiality and permanency of the Tort Claims Act verbal threshold under N.J.S.A. 59:9-2(d).

At the time of the accident, plaintiff was operating a tax preparation business out of the first floor of the residence.  While she was working, the defendant fire company was conducting a training exercise at a fire station.  The fire engine crossed the road, struck the front of the residence where she was working, and the impact damaged the building’s support columns.  While plaintiff was speaking with one of her employees, the employee saw the wall coming down.  She yanked plaintiff from her chair by her right arm. 

After plaintiff was pulled from her desk, she immediately began to have pain on the left side of her head.  She noted fragments of glass that were in her hair and a lump in her head.  She was taken to a local emergency room where she reported pain in her left side, head, and shoulder and dizziness.

She continued to experience pain in the weeks following the accident but did continue to work until the end of the tax season.  She has not worked since that time. 

About four months after the accident, plaintiff went to an audiologist with complaints of “hearing loss, dizziness, nasal congestion, and difficulty maintaining her balance.”  The audiologist tested her and found that plaintiff had decreased hearing in both ears and injury to her brain stem.  He further diagnosed her with a loss of balance.  He attributed the hearing deficits and loss of balance to the incident.  Plaintiff tried to take Lasix for the dizziness but the drug’s side effects caused kidney damage and it had to be discontinued.  After that drug was discontinued, plaintiff’s loss of balance worsened.  Although her hearing problems persisted to some extent, she did not obtain hearing aids. 

She also sustained injury to her right shoulder and treated with an orthopedist who diagnosed her with a tear of the supraspinatus tendon.  After physical therapy failed to resolve her shoulder symptoms, she underwent an arthroscopic rotator cuff repair.  She continued to have post-surgery about a 10% loss of full function in her right shoulder.

Plaintiff filed a lawsuit against the fire department and two of its employees as a result of the accident.  She claims that the defendants were negligent in causing the accident. 

Following the completion of discovery, defendants filed for a summary judgment to dismiss the plaintiff’s claims of pain and suffering.  Defendants argued that her post-accident medical problems were not substantial and permanent, as required under the Tort Claims Act, N.J.S.A. 59:9-2(d), to pursue a claim for pain and suffering.  In the opposition to the motion, the plaintiff attested to her balance and hearing problems.  In particular, she noted that she was losing her balance at least twice each day on average and had fallen recently. 

Nevertheless, the trial court judge granted summary judgment to the defendants.  He found that the plaintiff’s medical experts did not show that the damage to her hearing loss was substantial.  He found that she did not require a hearing aid and she was still able to return to work.  She was also able to finish the tax season.  As for her right shoulder, the trial court judge found that plaintiff had not shown by objective medical evidence that the injuries resulted in a loss of bodily function that was substantial.  However, he did not comment on her imbalance problems.

This summary judgment dismissal was appealed to the Appellate Division.  The Court noted that under the Tort Claims Act verbal threshold provision, for the plaintiff to obtain a monetary award, plaintiff must prove a “permanent loss of a bodily function, permanent disfigurement or dismemberment.”  Under New Jersey case law, the courts have construed this provision to require that the claimant suffer an “objective” permanent injury or disfigurement that is “substantial.” 

Thus, the courts have set up a 2-prong standard in evaluating whether the plaintiff’s injuries constitute a permanent loss of bodily function.  First, the plaintiff must prove that there is an objective medical evidence of a permanent injury and then, second, plaintiff must prove that there is a permanent loss of a bodily function that is substantial.

In reviewing the record, the Appellate Division agreed that the plaintiff’s shoulder injury and hearing loss claim did not vault the verbal threshold.  The trial court judge found from the medical evidence that plaintiff’s shoulder injury had been effectively resolved through surgery.  The 10% estimated residual limitation on her shoulder functions was not sufficiently “substantial” to qualify to the statute.  Further, she had not prevented sufficient evidence that her post-surgery shoulder condition had substantially restricted her daily life activities. 

The Appellate Division found that a closer question was whether the plaintiff’s hearing loss claims vaulted the threshold.  Again, however, the Appellate Division agreed with the trial court that it was not sufficient.  It noted that none of the plaintiff’s expert had expressed a numerical value as to the plaintiff’s diminution of hearing.  Further, it did not rise to the level to be a substantial limitation on her daily life activities.  It was not severe enough for plaintiff to obtain the aid of a hearing device.  Further, plaintiff admitted that, with attentiveness, she was able to engage in normal conversation with others. 

However, the Appellate Division reached a different conclusion with respect to the plaintiff’s ongoing deficits of balance.  Her medical documentation did establish that she has suffered significant problems with her balance, as often as twice per day.  The Court concluded that plaintiff’s frequent and persistent loss of balance post-Lasix presented a genuine issue of material fact under the Tort Claims Act.  Thus, it reversed the summary judgment.

When the case is tried, the Court noted that the jury verdict’s form should contain a specific inquiry concerning the loss of balance.  If that loss is found by the jury to surmount the threshold, then plaintiff’s other injuries caused by the accident could also be compensated.

Hence, the Appellate Division reversed the trial court’s decision and remanded it back for further proceedings.

Court Finds That Minor’s Left Elbow Fracture May Meet Permanency Requirement of Tort Claims Act

Plaintiff T.R.C. through his guardian ad litem Ada Cardenas filed a personal injury complaint against defendants, Harrison Board of Education, Harrison In District Day School, and the Town of Harrison due to an injury in the preschool program at the Harrison In District Day School.  The minor plaintiff, while playing on the playground equipment, fell and fractured his left elbow.  The issue in Child T.R.C. v. Harrison In District Day School, 2023 N.J. Super. Unpub. LEXIS 1797 (App. Div. Oct. 18, 2023) was whether the minor’s injury qualified as a “permanent loss of bodily injury function,” as required by the Tort Claims Act to be able to sue for pain and suffering.

The injury happened while the minor and his classmates were at a playground near the school during recess.  The minor fell from a platform, landed on his left arm and suffered a left elbow injury.  He underwent surgery to repair a displaced lateral condyle fracture in his left elbow which required the placement of two pins.  After the surgery, his arm was in a long arm cast for five weeks, after which the pins were removed.  He then underwent a year of physical therapy.

At the conclusion of discovery, the defendants filed a motion for summary judgment, arguing that the minor had not suffered a permanent loss of bodily function.  The trial court agreed with the argument and dismissed the complaint.  This appeal ensued.

The Appellate Division noted that under New Jersey law, to recover for pain and suffering under the Tort Claims Act, “a plaintiff must show (1) an objective permanent injury and (2) a permanent loss of a bodily function that is substantial.”  For purposes of the summary judgment motion, the trial court had assumed that the minor plaintiff had presented objective medical evidence of a permanent bodily injury under the first prong.  The issue was the second prong and whether the plaintiff’s injuries were considered “substantial.”

Here, the testimony was that the minor plaintiff could no longer participate in gym class because of this injury.  He could no longer write using his left arm.  He was unable to partake in his favorite pastimes such as playing sports, playing with his friends and playing at the playground.  He is unable to dress himself.  Further, the minor’s father testified that he was embarrassed about his scars and that he now eats with his right hand instead of his left.

The plaintiff provided expert testimony that concluded more likely than not that the minor had sustained a permanent injury that will have a permanent residual sequelae. The minor also presented a plastic surgery expert, reporting that the minor’s left elbow had several scars, including the larger one which was 5 cm. by 1 cm.  He also had three smaller scars that were all hypopigmented.  The plaintiff’s plastic surgeon expert opined that the scars were permanent in nature.

The defendants presented an orthopedic defense expert who opined that the plaintiff did have some permanent losses, including scars about the lateral elbow with a loss of range of motion of about 10% and a loss of grip strength.

Based upon these facts, the Appellate Division found that the plaintiff had raised a genuine issue of material fact as to whether he sustained a permanent loss of bodily function that is substantial.  It was undisputed by the defendant’s orthopedic expert that the plaintiff still had a 10 degree decreased range of motion in his elbow, along with reduced grip strength in his left hand.  This limitation along with his alleged inability to dress himself, participate in gym class, participate in sports and write with his left hand created a legitimate fact issue as to whether the plaintiff had met the permanency threshold.  Given the plaintiff’s young age, his significant life expectancy, and the genuine prospect that he may face a lifetime of limitations for these permanent residuals, the Court held that “a jury could find plaintiff demonstrated a permanent loss of bodily function that is substantial.”

Further, the Appellate Division noted that the trial court had not sufficiently addressed the plaintiff’s scarring.  The plaintiff had argued that the scars constituted a permanent disfigurement.  However, there was no indication as to whether plaintiff provided the court with photos of the scar or have plaintiff appear before the court so as to give the judge an opportunity to observe the scars.

The Appellate Division noted that a permanent disfigurement could qualify as a permanent injury under the Tort Claims Act but the scar “must impair or injure the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, or deforming them in some manner.”  Thus, the Court held that, upon remand, the plaintiff shall brief the issue and provide the trial court with photos or an opportunity to view the scars in person so the record may be properly developed.  The trial court would then be in a position to perform the requisite analysis under the applicable case law to determine whether the minor plaintiff’s scars constituted a permanent disfigurement.

Based upon all the facts, the Appellate Division reversed the trial court decision and remanded it back to the trial court.  The Court found that, for purposes of summary judgment, plaintiff had demonstrated a material factual dispute as to whether his elbow injuries met the requirements of the Tort Claims Act so as to permit him to pursue a pain and suffering claim.

Newark Police Officers Immune from Tort Liability for Injuries that Occurred During a Vehicle Pursuit

By: Ruhani K. Aulakh, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Priscilla Godoy was standing in between two parked cars in a line of several cars on May 5, 2018.  As she was standing in between these cars, a Jeep Cherokee involved in a police chase crashed into a parked car several feet away from Godoy.  The crash caused all the parked cars to collide, crushing Godoy.  As a result of this collision, Godoy sustained fatal injuries.  The issues in Godoy v. Washington, 2023 N.J. Super. Unpub. LEXIS 1170 (App. Div. July 13, 2023) were whether the police officers pursuing the Cherokee were negligent and reckless in their pursuit and whether the police officers engaged in willful misconduct in the apprehension of the Cherokee.

On May 5, 2018, defendant police officers Paul Hamilton and Vanessa Lorenzo were on duty in Newark.  The officers spotted a Jeep Cherokee that was stolen during an armed carjacking earlier that night for which the Newark Police Department had issued a Be on the Lookout Order (“BOLO”).  Hamilton and Lorenzo attempted to stop the car; however, the Cherokee did not stop, so the defendants began a pursuit with Hamilton driving. 

During the pursuit, the police officer’s vehicle traveled at around forty-five miles per hour, while the Cherokee traveled at approximately fifty-five miles per hour.  The pursuit was monitored by a Communications Division Officer and a field supervisor; however, officers Hamilton and Lorenzo did not inform their supervisor of the speed of the Cherokee.

The pursuit lasted approximately ninety-five seconds.  After sixty seconds, the driver of the Cherokee veered off road into a park where the driver went over a speed bump and lost control of the vehicle.  This caused a chain reaction which involved three additional vehicles, pinning Godoy between two of these vehicles.  After Godoy was injured, the driver of the Cherokee fled the scene, but officers Hamilton and Lorenzo did not pursue him.

Godoy’s estate filed suit against the two defendant police officers, arguing that the defendants were negligent and reckless in their pursuit of the Cherokee.  Further, the plaintiff argued that the defendants acted with willful misconduct in not complying with policies while continuing the pursuit.

In deciding to pursue the Cherokee, the defendants were governed by procedures set forth both in the Newark Police Division General Order and the New Jersey Attorney General’s Policy.  Both policies authorize officers to pursue a vehicle when they reasonably believe that a violator has committed an offense and they believe that violator poses an immediate threat to the safety of the public.  Once the officers choose to pursue the vehicle, they must immediately notify the Communications Division of pertinent information, such as the reason for the pursuit, the direction of travel, identifying factors of the vehicle, and the speed of the pursued vehicle. 

The plaintiff conceded that the defendants were justified in their pursuit of the vehicle; however, the plaintiff argued that the officers were in violation of policy when they did not report the speed of the pursued vehicle.  The defendant police officers moved for summary judgment, claiming that under the Tort Claims Act, they were immune from liability.  The trial court granted summary judgment on all counts, holding that the defendants were immune from liability unless there was evidence of willful misconduct.  The lower court further reasoned that there was no evidence of willful misconduct because reporting the speed of the pursued vehicle was not a requirement; rather, it was up to the discretion of the police officers.

On appeal, the plaintiff argued that the trial court erred in granting summary judgment because the plaintiff presented sufficient evidence of the defendants’ willful misconduct.  The plaintiff further argued that the trial court erred in determining that the defendants were entitled to summary judgment based on good faith immunity.

In affirming the lower court’s decision, the Appellate Division first analyzed good faith immunity.  The court upheld that the officers were immunized, looking to state Supreme Court precedent from Tice v. Cramer, 133 N.J. 347, 367 (1993).  There, the Court held that N.J.S.A. 59:5-2 immunizes absolutely all negligence of a public employee when the negligence, combined with the conduct of the escaping person, leads to injury.  The Court set forth a narrow exception in that decision, holding that immunity does not exonerate a public officer from liability if their conduct was outside of the scope of employment or constituted willful misconduct.

To determine whether the narrow willful misconduct exception applied in this case, the Appellate Division again looked to state Supreme Court precedent in Fielder v. Stonack, 141 N.J. 101, 123-30 (1995), which defined willful misconduct in the context of a police pursuit.  There, the Court established a two part test for willful misconduct which required that the public employee disobey a specific lawful command or standing order and that the public employee intended to violate it.

Here, the Appellate Division applied the Fielder test and held that in order for the plaintiff to establish willful misconduct, the plaintiff must have demonstrated that the defendants disobeyed a standing order that required them to report the speed of the Cherokee to Communications and that the defendants knew of the standing order, knew that they were violating it, and intended to violate it.  The Court held that because there was no standing order requiring the defendant officers to report the speed of the Cherokee, there was no willful misconduct on their behalf.  Thus, the Appellate Division affirmed the lower court’s decision to grant the defendants’ motion for summary judgment.

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