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Court Dismisses Pothole Case against County

Plaintiff Luz Cruz (“Cruz”) tripped and fell in a pothole when crossing River Avenue in Camden, New Jersey. She broke her fifth metatarsal of her left foot and sued the County of Camden for her injuries. In Cruz v. Camden County, 2019 N.J. Super. Unpub. LEXIS 385 (App. Div. Feb. 19, 2019), one of the issues was whether the County had prior notice of the pothole.

Cruz and her friend drove a U-Haul truck to pick up a couch in an apartment on River Avenue, a County owned road. They parked the truck across the street from the apartment. They did not see a pothole while walking to the apartment. As they were carrying the couch to the truck, Cruz stepped into the pothole in the middle of the road and fell. About two months after the accident, plaintiff’s expert measured the pothole as about 18 inches in length, 6 inches wide, and 3 inches deep.

The County had no prior notice of this pothole’s existence. The County’s Department of Public Works (“DPW”) employees are tasked with looking for potholes and repair them upon their discovery. In addition, the County has a dedicated phone line and email address for complaints as to potholes or other road problems. Also, police, fire, and public safety personnel will report road problems. However, no complaints had been called in as to this particular pothole or on this block of River Avenue in the 10 years before the accident.

As for constructive notice, plaintiff was unable to establish how long the pothole had been present. Cruz had been there the year before at the same address and did not notice the pothole. Plaintiff retained an expert who did not determine or estimate when the pothole had formed.

The County filed a motion for summary judgment, arguing that the plaintiff had failed to show that the County had actual or constructive notice of the pothole, as required under the Tort Claims Act to prove a claim against a public entity for a dangerous condition. The trial court agreed and granted the motion, finding that the plaintiff was unable to prove any time frame for the pothole or that the pothole was “of such an obvious nature that the public entity, in exercise of due care, should have discovered the condition and its dangerous character.”

The plaintiff appealed to the Appellate Division, arguing that the County had actual or constructive notice of the pothole and failed to repair it and that the County’s failure to maintain a major County road was palpably unreasonable. The Appellate Division rejected these arguments and upheld the trial court’s decision.

The Appellate Division noted that public entity liability is restricted under the Tort Claims Act. For liability to attach for an injury caused by a dangerous condition, a plaintiff must establish that a public entity “had actual or constructive notice of the dangerous condition” in “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The Court agreed with the trial court that there was no actual notice. The question was whether the plaintiff had proven that the County had constructive notice of the pothole. To prove constructive notice, the plaintiff must establish “that the condition existed for such time that the [County], in exercising due care, should have discovered the condition and its dangerous condition.” The Appellate Division found that was no evidence of how long the pothole existed before the accident. Hence, the plaintiff could not prove constructive notice either. Without such notice, the Court found that the plaintiff’s claim fails.

The Appellate Division also found that the County’s inaction in repairing River Avenue was not palpably unreasonable. The plaintiff failed to show that it was not palpably unreasonable for the County to fail to fix a pothole that was harmless for a vehicle to pass over to prevent a pedestrian to trip over in a portion of the road that was not a designated crosswalk.

This case is illustrative of the difficulty that plaintiffs face in pursuing pothole claims against public entities. Because potholes can pop up in a day, depending on weather conditions, unless the public entity has actual notice of the pothole, it can be very difficult for a plaintiff to prove constructive notice.

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Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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 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.

Plaintiff Unable to Meet Permanency Threshold of Tort Claims Act Despite Knee Surgery

The New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 to 59:13-10, requires that a Plaintiff seeking to recover damages from a public entity must prove as a threshold requirement that he or she sustained a “permanent loss of body function.”  N.J.S.A. 59:9-2(d). The Appellate Division of the Superior Court of New Jersey on January 3, 2017 issued an opinion, not yet approved for publication, which addresses this requirement in the matter of Moore v. Frucci, 2017 N.J. Super. Unpub. LEXIS 1 (App. Div. Jan. 3, 2017).

The fact pattern is fairly unusual in that, on December 1, 2013, Plaintiff John Moore was standing on a Camden sidewalk observing police activity at a crime scene. Plaintiff alleged that Defendant Detective Christopher Frucci drove an unmarked Camden City Police vehicle onto the sidewalk, and the vehicle struck Plaintiff in the rear of the right leg, causing Plaintiff to lose his balance, but not fall to the ground. Defendant Frucci denied that the vehicle struck Plaintiff, but liability was not an issue raised in Defendants’ Motion for Summary Judgment.  Rather, Defendants claimed that Plaintiff failed to meet the threshold to recover under the TCA.

Plaintiff sought treatment at an emergency department approximately 40 minutes after the incident.  X-rays of the right lower extremity were essentially negative. Plaintiff was also noted to be ambulating without difficulty. However, four days later, on December 5, 2011, Plaintiff commenced a course of physical therapy and chiropractic treatment, alleging injuries to his knee and ankle, as well as severe lower back pain. He continued this treatment for approximately six months.

On February 1, 2012, Plaintiff underwent an MRI of the right knee. The MRI report noted no fracture or contusions, but a “chronic appearing partial tear of the proximal ACL” and “small joint effusion.”

Plaintiff also came under the care of a board certified orthopedic surgeon on February 29, 2012. This doctor indicated that Plaintiff had suffered “aggravation of chronic lumbosacral sprain and strain” and a “right knee contusion with high-grade partial versus full thickness tear of the ACL.” Plaintiff was recommended to continue chiropractic treatment and physical therapy, and was fitted for a knee brace.

After periodic follow-ups with the surgeon and Plaintiff’s claims of persistent tenderness in the right knee, arthroscopic surgery was performed on August 30, 2012. The operative report describes the procedure as “diagnostic arthroscopy of right knee, partial synovectomy medial joint, lateral joint, notch, and suprapatellar pouch, and chondroplasty of patella.”  Plaintiff thereafter attended several post-surgical follow-up visits with the surgeon, as part of what the surgeon described as continuing “aggressive therapy,” which included two injections of the knee with Depo-Medrol and the lidocaine.

The surgeon also ultimately provided a permanency evaluation in which he stated that Plaintiff “has had an insult to his anterior cruciate ligament. There was a partial tear. He did have posttraumatic changes with chondromalacia patella and synovitis of the right knee.” The doctor also opined that Plaintiff might require knee replacement surgery in the future.

In his deposition, Plaintiff, who was employed as a public adjuster, claimed that he had difficulty climbing onto roofs, and when climbing stairs he experienced a “little bit” of pain in the knee. Plaintiff also testified that, given his condition, he paid more attention to his activities due to his knee.  He also claimed that given the right knee soreness and swelling, he was required to ice the knee three to four times per week. He claimed the problems with his knee limited his ability to participate in other activities of daily living, including hunting, riding dirt bikes and a motorcycle which he owned, and caused him pain and difficulty when he remained in the same position for an extended period of time.

The trial court ruled that the proofs set forth above were insufficient to create a triable issue as to whether Plaintiff had met the threshold of the TCA.  Accordingly, Defendants’ Motion for Summary Judgment was granted.

On appeal, the Appellate Division set forth the specific language of N.J.S.A. 59:9-2(d), which indicates that:

“No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.  For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.”

Therefore, in circumstances where a Plaintiff has incurred in excess of $3,600.00 in medical expenses, the Appellate Division noted that “to recover pain-and-suffering damages against a public entity the plaintiff must also prove: (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial.”  Toto v. Ensuar, 196 N.J. 134, 145 (2008).”  Further, Plaintiffs “may not recover under the TCA for mere subjective feelings of discomfort.  Brooks v. Odom, 150 N.J. 395, 403 (1997).”  In Brooks, although Plaintiff Brooks had ongoing pain and permanent restrictions of motion in the neck and back, her claims were still dismissed due to the fact that she could function in her employment and as a homemaker.  Id. at 406-407.  The Appellate Division also referenced the opinion in Ponte v. Overeem, 171 N.J. 46 (2002), in which even though Plaintiff in that matter sustained a knee injury which required surgery, the same still was determined not to meet the threshold.

Given all of the foregoing, in Moore the Appellate Division held that Plaintiff did not meet his burden of proof to establish the objective evidence that he had as a result of the incident sustained a permanent substantial injury to his knee. The Court relied heavily upon the fact that following the surgery, plaintiff remained “fully capable of performing in his employment and none of his avocational pursuits were significantly impaired. The discomfort he experienced while performing such activities was insufficient to meet the TCA threshold. Further, (the surgeon’s) suggestion of the possibility of future surgery was insufficient to establish a permanent loss of bodily function that was substantial.”

Thus, this recent Appellate Division opinion stands for the proposition that Plaintiff’s burden to meet the threshold of the TCA is a significant one, as even surgery may not be found sufficient to meet the same. This case shows that, even with objection evidence of a permanent injury, if a plaintiff is unable to show that the loss is substantial with respect to a limitation of his ability to work or his recreational or daily activities, it may be subject to dismissal based upon the TCA’s permanency defense.

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.

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Parents’ Emotional Distress Claim Due to Drowning of Son Barred Due to Failure to Meet Monetary Threshold of Tort Claims Act

By Betsy G. Ramos, Esq.

While the Title 59 permanency threshold, N.J.S.A 59:9-2, is a well known defense against bodily injury claims asserted against public entities, less publicized is the monetary threshold in that statutory section. No pain and suffering award can be asserted against a public entity unless the medical expenses incurred are in excess of $3,600. In Jung v. Village of Ridgewood, 2015 N.J. Super. Unpub. LEXIS 53 (App. Div. Jan. 8, 2015), this requirement resulted in a dismissal of the parents’ emotional distress claim filed due to the death of their son.

The plaintiffs’ son Soo died while swimming in the municipal swimming area operated by the Village of Ridgewood. The plaintiffs, as Soo’s parents, brought a negligence claim on his behalf but also filed a separate claim for their own severe emotional distress.

The family were visiting friends and they all went swimming at Graydon Pool in Ridgewood. Shortly after entering the pool, Soo and his friends began to swim from the shallow end to the dock at the deep end. Soo never reached the dock and drowned in the pool.

The case was tried and the jury awarded a total of $10 million – $4 million for Soo’s pain and suffering; $5 million for his family’s claims for emotional distress ($2 million for each parent and $1 million for his sister); and $1 million on his wrongful death claim.

Accepting Ridgewood’s argument that the plaintiffs were not entitled to damages for their pain and suffering because they did not meet the Tort Claims Act’s “verbal threshold” (the permanency requirement), the trial judge modified the verdict to dismiss the family’s emotional distress claim.

It was undisputed that the plaintiffs neither individually, nor collectively, incurred $3600 for their emotional distress claim. Because plaintiffs did not prove they met this threshold, the Appellate Division upheld the dismissal of their emotional distress claim.

Ridgewood had also appealed other evidentiary rulings, as well as the dismissal by summary judgment of its claims for  contribution and indemnification against Soo’s parents. Ridgewood had argued that Soo’s parents were negligent because they failed to obey posted warnings and instructions which required all children to take a deep water test prior to entering the deep area. Also, they argued that Soo’s parents were negligent because they failed to monitor their son. The Appellate Division agreed that these claims were not barred by the doctrine of parental immunity and were viable claims that should have been presented to the jury.

Fortunately for Ridgewood, the end result is that it was granted a new trial on liability and none of the verdict could be preserved. The Appellate Division held that Ridgewood was entitled to a new trial on liability and damages. The court found a new trial on issues was merited because the facts of negligence against Ridgewood and the parents were intertwined and also because the proofs plaintiffs presented on their emotional distress – which should not have been presented to the jury and which will not be presented when retried – may have affected the other damage awards.

  • Articles

Municipal Engineer Immune from Negligence Claim Under the Tort Claims Act

By: Betsy G. Ramos, Esq.

Plaintiff Bezr Homes, Inc. sued the engineering firm of Remington & Vernick and its engineer Kenneth Ressler (“the Remington defendants”) alleging negligence due to the failure to file for a township extension of a permit with the DEP for construction of a water main to provide water services to a proposed development. The permit application was not submitted timely by the township and the DEP denied it. Ultimately, the plaintiff’s prospective purchaser terminated the contract for sale, depriving the plaintiff of the $7.5 million sale price. In BEZR Homes, L.L.C. v. Twp. of E. Greenwich, 2014 N.J. Super. Unpub. LEXIS 2503 (App. Div. Oct. 21, 2014), the Remington defendants argued that they should be considered public employees under the Tort Claims Act (“TCA”) and immune under the TCA.

The Remington defendants filed a motion for summary judgment based upon the plaintiffs’ failure to file the lawsuit within the two years statute of limitations as required under the TCA. The trial judge granted the motion and the plaintiff appealed.

The plaintiff contended that the Remington defendants were independent contractors, not public employees, to which the TCA’s time limits do not apply. The TCA makes it clear that only public employees are covered by the Act and not independent contractors.

Municipal engineers are appointed by statute for a period of 3 years. The Township appointed first Ressler and then Remington itself to the position of municipal engineer.

The Appellate Division examined the Remington defendants’ status based upon the application of the control test and the relative nature of the work test. The court pointed out that, for a professional, the appropriate test would be the relative nature of the work test because employers do not control how professionals perform their services.

After applying all of the elements of the relative nature of the work test, the Appellate Division concluded that the Remington defendants satisfied this test and qualified as public employees under the TCA. Because the plaintiff did not claim that the Remington defendants performed any duties other than as a municipal engineer for the township, the complaint was barred based upon the plaintiff’s failure to sue them for more than 2 years following accrual of the claim.

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