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Presented to the Municipal Excess Liability Joint Insurance Fund


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Title: Presented to the Municipal Excess Liability Joint Insurance Fund

Public Entity Litigation -- Update 2013 --
  • Presented to the Municipal Excess Liability Joint
    Insurance Fund
  • April 12, 2013
  • Eric L. Harrison, Esq. Fred Semrau, Esq.

No proportionality required between amount of
judgment and fee award Lodestar
calculation Enhancement under certain statutes
to reflect level of risk (i.e. Rendine
enhancement) 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 458-3(c)
  • Best v. CM Door Controls, 200 N.J. 348 (2009)
    Reversed and remanded, with instructions to
    consider prior offer in calculating fee award
  • If 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 plaintiffs
    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. 3419-3
  • 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

Conscientious Employee Protection Act (CEPA),
N.J.S.A. 3419-3
  • 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
    self-interest is non-actionable, right?

Conscientious Employee Protection Act (CEPA),
N.J.S.A. 3419-3
  • 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
  • Hernandez v. Montville Board of Education, 354
    N.J.Super. 467 (App. Div. 2002) Custodians
    complaint to principal of overflowing toilets and
    malfunctioning light in exit sign sufficient to
    sustain jury verdict for plaintiff.
  • Everyones a whistleblower!

Conscientious Employee Protection Act (CEPA),
N.J.S.A. 3419-3
  • A possible common sense limitation No right to
    sue when the whistleblowing falls within job
  • White v. Starbucks, A-3153-09 District manager
    responsible for ensuring that employees adhere
    to legal and operational compliance
  • Store managers complained of disrespect, customer
  • 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

Conscientious Employee Protection Act (CEPA),
N.J.S.A. 3419-3
  • 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. 3419-1 to -8, based on a
    reasonable belief that the employers conduct
    constitutes improper quality of patient care.
    N.J.S.A. 3419-3a(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.
  • In this appeal, we consider whether plaintiffs
    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

Conscientious Employee Protection Act (CEPA),
N.J.S.A. 3419-3
  • 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
  • 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
  • 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
  • Just as whistleblowing pursuant to official
    duties should not be protected under CEPA

Political Retaliation
  • Montone v. City of Jersey City, Third Cir. (March
  • 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
  • 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
    non-promotion 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
  • 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

Law Against Discrimination
  • Lasky v. Moorestown, 425 N.J.Super. 530 (App.Div.
  • 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 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
  • Termination in 2007, appealed to Civil Service
  • Retaliation asserted as a defense termination
  • Retaliation lawsuit under CEPA, LAD and Civil
    Rights Act barred.

Workers Compensation Retaliation
  • Stancil v. ACE USA (N.J. Supreme Court, August
  • 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. 262K-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. 262K-29
    leads to the conclusion that on the
    summary-judgment record before us, the Plainfield
    Rescue Squad is subject to a civil suit for
  • 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.
  • In light of the language of N.J.S.A. 5217C-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. 594-2

Litigation Immunity
  • Henebema v. South Jersey Transportation Authority
    (App. Div. March 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. 592-3(d) (requiring proof that a
    public entitys discretionary decisions were
    palpably unreasonable). The question is whether
    a judge or jury should resolve that threshold
  • When the evidence establishes a genuine issue of
    material fact regarding whether a public entitys
    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
  • OBoyle 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 Governors 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.
  • 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
  • The Court held that while Rutgers University
    falls under OPRAs 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
  • Common-law right of access does not extend to
    records of a legal clinic at a public law school.

Open Public Records Act
  • Valley Hospital v. New Jersey Dept of Health and
    Senior Services (App. Div. 2012)
  • Government Records Council denied Valley
    Hospitals OPRA request to obtain a draft report
    prepared by staff within the New Jersey
    Department of Health concerning Hackensack
    University Medical Centers (HUMC) application
    for a certificate of need seeking transfer of a
    closed hospitals license to HUMC and permission
    to reopen hospital.
  • While OPRAs 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
  • Wolosky v. Township of Sparta (App. Div. 2012)
  • Mr. Wolosky submitted an OPRA request seeking
    copies of minutes of the Township Councils
    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 attorneys fee award to 500.