Defense Digest

Whether An Employee's Conduct Is Deemed Within Or Outside The Scope Of Employment May Determine Whether A Notice Of Tort Claim Is Required To Be Filed
By Matthew J. Behr, Esq.*

The New Jersey Tort Claims Act ("TCA") establishes a 90-day period from the time a 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. 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," subject to "whatever liabilities and immunities a public employee would have had at common law."

Moreover, pursuant to N.J.S.A. 59:3-14, nothing in the TCA 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 conduct.  One of the central issues in determining whether the TCA will apply to public employees is whether his or her conduct falls within or outside the scope of his or her employment.

Until recently, the New Jersey courts never discussed whether a plaintiff is required to file a notice of claim against a public employee for an intentional tort and what type of conduct falls within or outside the TCA.  Recently, two cases in the Appellate Division addressed these issues.

The New Jersey Supreme Court in Comm. Union Ins. Co. v. Burt Thomas-Aitken Constr. Co., 49 N.J. 389, 392, n.1 (1967), adopted the definition of Restatement, Agency 2d, § 228 at 504 (1958) regarding "scope of employment."  It reads:

(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use is not unexpectedly by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time and space limits, or too little actuated by a purpose to serve the master.

In Bonitsis v. New Jersey Institute of Technology , 363 N.J. Super. 505 (App. Div. 2003), the plaintiff alleged tortious interference with his contract of employment and intentional infliction of emotional distress.  The Appellate Division held that "regardless of whether the alleged tortious conduct arose out a want of due care of 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."

The court in Bonitsis undertook a thorough analysis of the statute.  First, the court found that under the TCA, the definition of injury is "broader than a 'negligence' type of injury and includes death, injury to a person, damage to or loss of property or any other injury that a person may suffer that would be actionable if inflicted by a private person."  Second, the statutory language of the TCA's notice provisions do not distinguish between negligence claims and intentional acts, and the Legislature did not delineate between negligence and intentional claims in other sections of the TCA.  Third, the purpose of the notice requirement is to allow governmental entities time to investigate the claims fully before immediately becoming involved in expensive litigation.

Based upon the reading of the TCA, the court found that a notice of tort claim is required to be filed when a claim falls within the scope of employment, such as a claim for intentional infliction of emotional distress and intentional interference with a contract.

However, another recent Appellate Division case found that when the conduct falls outside the scope of the employment, such as an assault and battery, the notice requirement is not applicable. See Velez v. City of Jersey City, 358 N.J. Super. 224 (App. Div.) certif. granted 177 N.J. 224 (2003).

In Velez , the plaintiff, a former employee of the City of Jersey City, alleged that she had been sexually assaulted by a councilman.  The plaintiff filed a complaint alleging violations of the New Jersey Law Against Discrimination ("LAD"), as well as an assault and battery claim against the councilman as a direct defendant.  The plaintiff did not file a notice of tort claim as it pertained to any of her claims (a notice of tort claim is not required in LAD cases), including her claim of assault and battery against the councilman.

The Appellate Division held that the councilman's actions in sexually assaulting the plaintiff would qualify as the type of "outrageous conduct" sought to be excluded from the protections of the TCA.  Because the alleged assault and battery occurred outside the scope of his employment, the councilman could not avail himself of the notice provision to avoid liability, and thus, no notice of claim was needed.

It is important to note, however, that the New Jersey Supreme Court has granted certification, but as of the date of this article, a decision has not been rendered.

Based upon these two recent cases from the Appellate Division, the issue of whether a notice of tort claim may be required to be filed will depend on whether the actions are deemed within or outside the scope of the employment.  A thorough understanding of the claims brought, the facts of the case, and the underlying case law is required in determining whether it is practical to file a motion to dismiss based on the failure to file a timely notice of tort claim.

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