Defense Digest

Tort Claims Notice Required For All Torts, Including Intentional Torts

In theJune 2004 issue of this newsletter, I published an article concerning whether plaintiffs were required to file notices of claims against public entities within 90 days from the date a claim accrued for intentional torts. At that time, two cases in the New Jersey Appellate Division had addressed the issue and came to different conclusions. Recently, the New Jersey Supreme Court clarified the issue in some ways, but in other ways it created entirely new issues for which the ramifications are not yet fully known.

The New Jersey Tort Claims Act (TCA) established a 90-day period from the time the claim accrues for a plaintiff to file a Notice of Claim. N.J.S.A. 59:8-8. The TCA notice provisions apply to both public entities and public employees.

However, under the TCA, a public entity is not liable for intentional torts. N.J.S.A. 59:2-10. On the other hand, a public employee "is liable for injury caused by his act or omission to the same extent as a private person," N.J.S.A. 59:3-1(a), subject to "whatever liabilities and immunities a public employee would have had at common law," N.J.S.A. 59:3-1(b).

In Bonitsis v. New Jersey Institute of Technology, 363 N.J. Super. 505 (App. Div. 2003), the Appellate Division held that "regardless of whether the alleged tortious conduct arose out a want of due care or an intentional act, when the public employee committed the conduct within the scope of his or her employment, compliance with the notice provisions of the Act was required."

Based upon the reading of the TCA, the court found that a notice of tort claim was required to be filed when a claim fell within the scope of employment, such as a claim for intentional infliction of emotional distress and intentional interference with a contract. Because the Appellate Division was simply reaffirming established law, the Bonitsis Court dismissed the plaintiff's complaint.

However, another panel in the Appellate Division case found that when the conduct fell outside the scope of the employment, such as an assault and battery, the notice requirement was not applicable. See Velez v. City of Jersey City, 358 N.J. Super. 224 (App. Div. 2003) rev'd 180 N.J. 284 (2004)

In June 2004, the New Jersey State Supreme Court rendered its opinion in Velez. The Supreme Court found that all tort claims, including intentional tort claims, require a tort claims notice to be filed, relying upon the rationale in Bonitsis.

However, the Court disagreed with one part of the Bonitsis rationale and holding. The Court held that the law was not settled in this area and applied the holding prospectively to all similar causes of action accruing after the date of the opinion, which was June 29, 2004. Thus, the Court reinstated the plaintiff's cause of action and remanded the matter.

There is only one published opinion that has provided any insight into how the New Jersey courts will deal with Velez and the prospective application of it. In Ptaszynski v. Uwaneme, 371 N.J. Super. 333 (App. Div.) certif. denied 2004 N.J. LEXIS 1419 (2004), the central issue was whether a plaintiff could maintain a cause of action under the New Jersey Law Against Discrimination for a racial slur allegedly made by a police officer, outside the police station, while making an arrest. The Appellate Division held that a police force is a place of accommodation, and thus, both the building and the officers were places of public accommodation.

The trial court had dismissed the plaintiff's state-based intentional tort claim based on the failure to file a notice of claim. Because Velez was decided approximately three weeks before Ptaszynski, the Appellate Division applied Velez, reversed the granting of summary judgment, and remanded the matter back to the trial court for trial.

Even in light of Ptaszynski, many questions still remain. Can a plaintiff reinstate an entire complaint which was previously dismissed and for which an appeal was never filed? What if the complaint or cause of action was dismissed years ago? Will we be seeing motions to reinstate complaints or causes of action dismissed months or even years ago? What happens if those cases are reinstated and all of the witnesses are now unavailable and the documents have been destroyed? What happens if plaintiffs' attorneys do not seek reinstatement? Have they committed malpractice? In the end, Velez may have created new issues that may now take years for the courts to sift through and resolve.

*Matthew is an associate in our Cherry Hill, NJ office. He can be reached at (856) 414-6048 or mbehr@mdwcg.com.