SUING THE STATE AND LOCAL GOVERNMENT: THE NEW JERSEY TORT CLAIMS ACT
This article is meant to serve as a general summary of the New Jersey Tort Claims Act (or “TCA”) and how one can sue municipalities and their employees under the requirements provided in the statute. Under N.J.S.A. §59:4-2, a plaintiff is required to prove that public property owned and operated by the government is in a dangerous condition. That dangerous condition, when used by a foreseeable person in a reasonable manner, must be the cause of the plaintiff’s injuries. Finally, the plaintiff must provide objective medical proof that they have sustained the permanent loss of a bodily function as a result of the injury. Specifically, you must have the permanency just described as well as medical expenses in excess of $3,600.00.
Before any litigation begins a potential plaintiff must comply with the statutory requirements of notice to the state and local government regarding the claim. A Notice of Claim must be filed within 90 days of the accident or the claimant loses their right to bring a lawsuit. The claimant must provide the public entities and employees with notice of the name and address of the claimant, date, place and circumstances of the occurrence or transaction giving rise to the claim asserted, a general description of the injury, damage or loss incurred, the name of the public entities or employees causing the injury, damage or loss and the amount of damages claimed. See, N.J.S.A. § 59:8-3 through 8. Failure to satisfy the notice requirement of the TCA is an absolute bar to recovery against a public entity or its employees. Id. It is very important to note that each municipality is entitled to have their own form for notice, so prompt compliance is necessary in case they respond by requesting the claimant’s attorney to fill out a different form of notice.
A claimant should be advised that the government entity is allowed a six month period to review the claim before a lawsuit can be filed. Upon expiration of the 6 months a lawsuit may be initiated, though is not typical as the full extent of the plaintiff’s injuries may not be known.
You may also sue the local entity based upon the conduct of its employees, if their actions result in injuries to the claimant. The Tort Claims Act provides for protection of a public employee from liability for injury “resulting from the exercise of judgment or discretion vested in him.” (N.J.S.A. 59:3-2(a)). A public official’s good faith exercise of judgment and discretion in the performance of his duties has been accorded limited immunity by the courts of this State. Burke v. Deiner, 97 N.J. 465, 472-473 (1984); Visidor Corporation v. Borough of Cliffside Park, 48 N.J. 214, 221 (1966).
This protection is circumscribed, however; public employees may not act in complete disregard for the rights of others. There is a public employee immunity exception found in N.J.S.A. 59:3-14. Subsection (a) states: “[N]othing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment, or constituted a crime, actual fraud, actual malice or willful misconduct.” See also, Burke v. Deiner, supra, at 472-473. A common factual basis for explaining the above is to think of a police officer in pursuit of a bank robber; if the police officer acts in reckless disregard for other drivers while in pursuit the entity and the officer are liable. If he/she was in hot pursuit and it was safe to continue pursuit, there were few cars on the road, and the officer did not follow at an unreasonably high speed a lawsuit may fail.
If you have been injured while on public property, or have been injured as the result of the actions of an employee of a local governmental entity, contact the attorneys of Bailey & Orozco, LLC, for a free consultation.