Slide 1

Report
Public Entity Litigation
-- Update 2013 --
Presented to the Municipal Excess Liability Joint Insurance Fund
April 12, 2013
Eric L. Harrison, Esq. – Fred Semrau, Esq.
POL AND EPL CLAIMS:
FEE-DRIVEN
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No proportionality required between amount of
judgment and fee award
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Lodestar calculation
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Enhancement under certain statutes to reflect
level of risk (i.e. “Rendine” enhancement)
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Wide discretion for reduction – sometimes none at
all, even when most claims or defendants dismissed.
Offers of Judgment in Federal Court
Federal Rule of Civil Procedure 68
Marek v. Chesny, 473 U.S. 1 (1985)
■ In a federal fee-shifting case where plaintiff recovers less than offer of
judgment, offering defendants will not be held liable for attorney fees
incurred by plaintiff after offer.
■ “It is immaterial whether the offer recites that costs are included,
whether it specifies the amount the defendant is allowing for costs, or,
for that matter, whether it refers to costs at all. As long as the offer
does not implicitly or explicitly provide that the judgment not include
costs, a timely offer will be valid.”
■ Pivotal question: Does the statute define attorney fees as “costs”?
(42 U.S.C. §1988 v. ADEA)
■ Safest option: Offer a sum certain “plus all attorney fees and costs
accrued to date”
Offers of Judgment in State Court
NJ Rule of Court 4:58-3(c)
 Best v. C&M Door Controls, 200 N.J. 348 (2009)
Reversed and remanded, with instructions to
consider prior offer in calculating fee award:
 “[I]f a judge determines, under all the
circumstances, that defendant proffered a
reasonable offer of judgment that plaintiff
unjustifiably rejected, that is a factor to be
taken into account in determining plaintiff’s
entitlement to fees.”
 The solution: Offer a fixed amount “plus all
reasonable fees and costs incurred to date”
Conscientious Employee Protection
Act (CEPA), N.J.S.A. § 34:19-3
 An employer shall not take any retaliatory action against an employee
because the employee does any of the following:
 a. Discloses, or threatens to disclose to a supervisor or to a public
body an activity, policy or practice of the employer . . . that the
employee reasonably believes is in violation of a law, or a rule or
regulation promulgated pursuant to law, . . . .
 c. Objects to, or refuses to participate in any activity, policy or practice
which the employee reasonably believes:
 (1) is in violation of a law, or a rule or regulation promulgated pursuant
to law;
 (2) is fraudulent or criminal; or
 (3) is incompatible with a clear mandate of public policy concerning
the public health, safety or welfare or protection of the environment.
Conscientious Employee Protection
Act (CEPA), N.J.S.A. § 34:19-3
 What is a “clear mandate of public policy”?
 Attorney General Guidelines?
 Terms of a Collective Bargaining Agreement?
 Mehlman v. Mobil Oil Corp., 153 N.J. 163, 188
(1998): a “salutary limiting principle [of CEPA] is
that the offensive activity must pose a threat of
public harm, not merely private harm or harm only
to the aggrieved employee”
 So . . . Whistleblowing motivated purely by selfinterest is non-actionable, right?
Conscientious Employee Protection
Act (CEPA), N.J.S.A. § 34:19-3
 Maimone v. City of Atlantic City, 188 N.J. 221 (2006):
Summary judgment precluded by fact question as to
whether officer had reasonable belief that chief's policy
decision on allocation of police resources was
incompatible with a clear mandate of public policy
precluded summary judgment.
 Hernandez v. Montville Board of Education, 354
N.J.Super. 467 (App. Div. 2002): Custodian’s complaint to
principal of overflowing toilets and malfunctioning light in
exit sign sufficient to sustain jury verdict for plaintiff.
 Everyone’s a whistleblower!
Conscientious Employee Protection
Act (CEPA), N.J.S.A. § 34:19-3
 A possible common sense limitation: No right to sue when
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the “whistleblowing” falls within job requirements
White v. Starbucks, A-3153-09: District manager
responsible for “ensuring that employees adhere to legal
and operational compliance requirements.”
Store managers complained of disrespect, customer
complaints
She reported suspected theft, unsanitary conditions, “after
hours sex parties”
Trial court dismissed because “the issues on which she
bases her claim fall within the sphere of her job-related
duties”; Appellate Division affirmed
Conscientious Employee Protection
Act (CEPA), N.J.S.A. § 34:19-3
 Hitesman v. Bridgeway Inc. (March 2013)
 A licensed or certified health-care professional may assert a claim
against his or her employer pursuant to the Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, based on a reasonable
belief that the employer’s conduct “constitutes improper quality of
patient care[.]” N.J.S.A. 34:19-3a(1) and c(1).
 The statutory definition of “improper quality of patient care” includes
the violation of “any professional code of ethics.” N.J.S.A. 34:19-2(f).
 In this appeal, we consider whether plaintiff’s proof, and specifically
his reliance on a professional code of ethics not applicable to his
employer, was sufficient to support a liability verdict in his favor.
 We conclude that, as a matter of law, plaintiff failed to prove the first
element of his CEPA claim.
Conscientious Employee Protection
Act (CEPA), N.J.S.A. § 34:19-3
 Houston v. Randolph Township (U.S.D.C., Summary
Judgment Granted March 2013)
 Plaintiff volunteer firefighter resigned from Rapid
Intervention Crew training position in protest over
deployments, citing NFPA model code
 Chief suspended him from all training for insubordination
 Case dismissed on summary judgment because plaintiff
could not cite a law, regulation or clear mandate of public
policy which he reasonably believed was violated
First Amendment Speech on
Matters of Public Concern
 Garcetti v. Ceballos, 126 S.Ct. 1951 (2006):
 Deputy district attorney wrote a disposition memo
recommending dismissal of charges because of
inaccuracy of memo seeking warrant
 Transferred, denied a promotion
 Speech pursuant to official duties is not protected
 … Just as “whistleblowing” pursuant to official
duties should not be protected under CEPA
Political Retaliation
 Montone v. City of Jersey City, Third Cir. (March 2013)
 Sergeants in the Jersey City Police Department all of whom ranked within the
top eleven slots on the 2003-2006 promotion list, filed this action alleging that
Jersey City failed to promote them to lieutenant in retaliation for exercise of
First Amendment
 During Troy's tenure as police chief, no promotions were made to lieutenant in
retaliation for Montone's active support of Healy's opponent in a mayoral
election.
 The District Court misapplied the summary judgment standard, improperly
dismissed evidence of a culture of political patronage, and erred in giving
substantial weight to evidence of the promotion of one Manzo supporter; and
erred in concluding that Montone's gender discrimination complaints did not
involve matters of public concern.
 Asriab plaintiffs have standing to bring an action for First Amendment
political affiliation retaliation even though the retaliation was directed towards
Montone and that the District Court erred in granting summary judgment for
defendants on the Astriab plaintiffs' claim because there is a genuine issue of
material fact as to whether Montone's political conduct was a motivating factor
in defendants' decision not to promote the Astriab plaintiffs.
Political Retaliation
 Vaticano v. Edison, Third Circuit (Feb. 2013)
 Deputy Chief could not demonstrate political
retaliation in non-promotion to Chief or
assignment to tasks he considered demeaning
 Plaintiff could not demonstrate that his nonpromotion or job assignments constituted
retaliation for protected involvement in prior
litigation of another officer
Law Against Discrimination
 Lasky v. Borough of Hightstown, 426 N.J. Super. 68, 43 A.3d 445
(App. Div. 2012)
 In public accommodation claims, different standards apply to claims of
specific accessibility barriers v. general program access barriers
 It is entirely reasonable and consistent with the spirit, if not letter, of
the Division's implementing regulations, to require qualified persons
with a disability requesting a reasonable accommodation to apprise the
public entity of his or her disabling condition and any suggestions for
such possible public accommodations.
 On the other hand, where a more generalized claim alleging overall
lack of access is made, a plaintiff seeking redress should not be
required, as a prerequisite to filing such a claim, to first make a request
for a reasonable accommodation.
Law Against Discrimination
 Lasky v. Moorestown, 425 N.J.Super. 530 (App.Div. 2012)
 Plaintiff … contends that once he proposes methods of making the
park readily accessible, the burden shifts to defendant to prove they are
not achievable without undue financial and administrative burdens. We
disagree and therefore find no error in omitting such a notion from the
court's jury instructions.
 While it seems only reasonable for the proponent of the affirmative
defense to prove the existence of undue financial or administrative
burdens, where the defense is simply that a reasonable alternative
means of access exists, the burden of proof does not shift.
 Because defendant claimed it would have employed an alternative
effective means of access had plaintiff requested it, the court was not
obligated to instruct that it was defendant's burden to prove that
plaintiff's proposed methods of making the park readily accessible
were not achievable and would cause undue financial and
administrative burdens.
Dual Administrative Charges
and Lawsuits
 Winters v. North Hudson Regional Fire and Rescue (N.J. Supreme
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Court, September 2012)
Years of employee disputes
2005 disciplinary charges for submitting false report, making false
claims
2009 demotion, 60 day suspension
Following injury in 2006, plaintiff continued to criticize NJRFR and
appeared on TV show examining the department
Investigation revealed violation of sick time policy
Termination in 2007, appealed to Civil Service commission
Retaliation asserted as a defense; termination upheld
Retaliation lawsuit under CEPA, LAD and Civil Rights Act barred.
Workers Compensation
Retaliation
 Stancil v. ACE USA (N.J. Supreme Court, August 2012)
 In this matter, we are asked to create a common law cause of action
that would permit an injured employee, who is separately entitled to
receive workers' compensation benefits, to sue his employer's
compensation carrier directly for pain and suffering when it results
from the carrier's delay in payment for medical treatment,
prescriptions, or related services. We decline this invitation to create a
new cause of action for three essential reasons.
 Our statutory workers' compensation system has stood as a model of a
fair and efficient mechanism for compensation of injured workers for
nearly a century. To the extent that it has in recent years been criticized
for shortcomings, including the existence of recalcitrant carriers, our
Legislature has responded swiftly and decisively. For all of these
reasons, we decline the invitation to create a common law remedy.
Litigation Immunity
 Murray v. Plainfield Rescue Squad (NJ Supreme Court, July 2012)
 In this wrongful-death/survival action, the Plainfield Rescue Squad is alleged
to have unreasonably — and therefore negligently — delayed the transport of
a gunshot victim to a nearby hospital, thereby causing his death. The
individual members of the Rescue Squad are not the subject of the civil suit.
 We now reverse the dismissal of the wrongful-death/survival claims against
the Rescue Squad. Although N.J.S.A. 26:2K-29 states that the "officers and
members" of a rescue squad shall not be liable for civil damages in rendering
"intermediate life support services in good faith" to a patient, the statute
provides no similar immunity to a rescue squad as an entity. A plain-language
reading of N.J.S.A. 26:2K-29 leads to the conclusion that on the summaryjudgment record before us, the Plainfield Rescue Squad is subject to a civil
suit for negligence.
 January 2013: Bill A-3282 Passes Assembly Health Committee with
Bipartisan Support
 Clarifies that first aid, ambulance or rescue squads, as entities, have
immunity from civil damages in certain circumstances
Litigation Immunity
 Wilson v. Jersey City (NJ Supreme Court, 2012)
 In this appeal, we must determine whether 9-1-1 operators, along with
their public-entity employers, are statutorily immune from civil
liability for the negligent mishandling of emergency calls. The
paramount issue before us is the scope of the 9-1-1 immunity statute,
N.J.S.A. 52:17C-10.
 In light of the language of N.J.S.A. 52:17C-10, its legislative history,
and the overall objectives of the statutory scheme, we conclude that the
enactment confers immunity on the 9-1-1 operators and public entity in
this case for any negligence in the "delivery" of 9-1-1 services,
including the mishandling of emergency calls.
 Although we reverse on this issue, we nevertheless remand to the
Appellate Division to address an issue it left undecided: whether the
conduct of the 9-1-1 operators constituted wanton and willful disregard
for the safety of persons, conduct that would deny defendants
protection under the 9-1-1 immunity statute.
Litigation Immunity
 Polzo v. County of Essex (NJ Supreme Court 2012)
 We must determine whether a county can be held liable for a fatal
accident that occurred when a person lost control of her bicycle while
riding across a two-foot wide, one-and-one-half inch depression on the
shoulder of a county roadway.
 We now hold that the Appellate Division erred in suggesting that
public entities may have to employ the equivalent of roving pothole
patrols to fulfill their duty of care in maintaining roadways free of
dangerous defects.
 In this case, just five weeks before the accident, while filling some
potholes, the County surveyed the entire length of the subject roadway.
Even when viewed in the light most favorable to plaintiff, we cannot
conclude that the County was on constructive notice of a "dangerous
condition" on the shoulder of its roadway that "created a reasonably
foreseeable risk" of death, or that the County's failure to correct this
depression before the tragic accident was "palpably unreasonable." See
N.J.S.A. 59:4-2
Litigation Immunity
 Henebema v. South Jersey Transportation Authority (App. Div. March
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2013)
Pedestrian hit by a car on A.C. Expressway after calling 911 for
assistance, squad cars not deployed promptly
The parties contested the predicate facts relevant to determining
whether defendants either exercised discretionary decision-making or
performed ministerial acts in connection with dispatch procedures.
That distinction is central to applying the correct standard of liability
under N.J.S.A. 59:2-3(d) (requiring proof that a public entity’s
discretionary decisions were “palpably unreasonable”). The question is
whether a judge or jury should resolve that threshold dispute.
When the evidence establishes a genuine issue of material fact
regarding whether a public entity’s alleged failures were the result of
discretionary decision-making as to how to use its resources, or instead
involved ministerial acts mandated by law or practice, then that fact
issue must be submitted to the jury.
Damages determination undisturbed, remand for liability trial
Open Public Records Act
 O’Boyle v. Longport (App. Div. 2012)
 Litigation-related documents between defense
counsel and defendants, other attorneys were not
public records
 Application of attorney-client, work product
privileges under common interest rule
 Under common law right of access, no
particularized interest to overcome privilege
Open Public Records Act
 Burke v. Brandes (App. Div. 2012)
 OPRA Request to Governor’s office for “government records in its
possession or control regarding ‘EZ Pass benefits afforded to retirees
of the Port Authority, including all... correspondence between the
Office of the Governor ... and the Port Authority...’"
 Because plaintiff described the records sought with the requisite
specificity and narrowed the scope of the inquiry to a discrete and
limited subject matter, we conclude his request was neither vague nor
overbroad.
 The request sought the records themselves, not data, information or
statistics to be extracted, gleaned or otherwise derived therefrom.
Involving no research or analysis, but only a search for, and production
of, what proved to be readily identifiable records, plaintiff's properly
circumscribed and tailored request was wrongly invalidated as
overbroad.
Open Public Records Act
 Sussex Commons Associates v. Rutgers (Supreme Ct. 2012)
 Developer that was planning to build an outlet mall brought action
under OPRA to obtain documents from a public law school clinic that
represented a private group opposing the plan.
 Supreme Court held that records related to cases at public law school
clinics are not subject to OPRA.
 The Court held that while Rutgers University falls under OPRA’s
broad definition of ‘public agency’, clinical legal programs do not
perform any government functions and case-related records do not
shed light on the operation of government or expose misconduct or
wasteful government spending.
 Common-law right of access does not extend to records of a legal
clinic at a public law school.
Open Public Records Act
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Valley Hospital v. New Jersey Dep’t of Health and Senior Services (App. Div. 2012)
Government Records Council denied Valley Hospital’s OPRA request to obtain a draft
report prepared by staff within the New Jersey Department of Health concerning
Hackensack University Medical Center’s (HUMC) application for a certificate of need
seeking transfer of a closed hospital’s license to HUMC and permission to reopen
hospital.
While OPRA’s definition of a ‘government record’ is broad, it specifically excludes
inter-agency or intra-agency advisory, consultative or deliberate material. This
exemption has been construed to encompass the deliberative process privilege, which
has its roots in the common law.
Deliberative process privilege has allowed the government to withhold documents that
reflect advisory opinions, recommendations, and deliberations comprising part of a
process by which its decisions and policies are formulated.
Draft report was fully protected as deliberate material. As to the common law, Valley
Hospital did not overcome strong public policy attached to deliberative materials,
especially internal advice to a government decision-maker.
Open Public Records Act
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Wolosky v. Township of Sparta (App. Div. 2012)
Mr. Wolosky submitted an OPRA request seeking copies of minutes of the Township
Council’s executive session meetings. The Township provided the requested materials,
but made seventy one redactions to the copies. Mr. Wolosky instituted legal proceedings
seeking production of non-redacted copies.
After conducting an in-camera review of the non-redacted materials, it was determined
that the Township inappropriately redacted three out of seventy one items.
Pursuant to OPRA, a requestor is entitled to reasonable attorney's fees if the requestor
obtains a judgment or enforceable consent decree in an OPRA proceeding, or if the
litigation is the catalyst for the relief ultimately achieved.
The starting point for determining the amount of a reasonable attorney’ fee is the
lodestar; i.e. the number of reasonable hours spent multiplied by a reasonable hourly
rate.
When a requestor only achieves limited success in a lawsuit, the award of an attorney's
fee based on the lodestar may not be reasonable.
Court reduced $5058 attorney’s fee award to $500.

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