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Professional Liability

Legal Updates for New Jersey Public Entity & Civil Rights

Attorney General Role Limited to Cases Alleging Tortious Damages

Legal Updates for New Jersey Public Entity & Civil Rights, December 10, 2024

December 10, 2024

In Monmouth County Prosecutor’s Office v. Office of the Atty General, et al., the New Jersey Appellate Division affirmed the Office of the Attorney General’s (OAG) denial of the petitioner’s request for representation in a legal action in lieu of prerogative writs filed by a retired deputy police chief. The Superior Court found the respondent’s duty to defend arose from the New Jersey Tort Claims Act (TCA) as he was only charged with defending a state employee to the extent required under N.J.S.A. § 59:10A-1. The TCA mandates a defense only in tort actions seeking damages, and the respondent had discretionary authority in other cases. In this case, the former police chief’s claim did not seek tort damages; therefore, the Appellate Division affirmed the OAG’s discretionary denial of the petitioner’s request for representation.

The petitioner, Township of Marlboro Police Department, received a complaint regarding its Deputy Police Chief, Frederick Reck. As mandated by the Internal Affairs Policies and Procedures (“IAPP”) and the Attorney General’s directive, the petitioner initiated an internal investigation into the allegations, and two were sustained against Reck. He then elected to retire in lieu of proceeding through a disciplinary hearing.

Reck’s written agreement memorializing retirement included a provision whereby he retained the right to challenge findings made by the petitioner relating to the investigation. In June of 2023, Reck’s counsel requested a copy of the formal procedures by which he could challenge the report and a copy of the petitioner’s complete investigation report. The petitioner responded that Reck was precluded from challenging its findings through the administrative process post-retirement pursuant to Section I.E. of Directive 2019-6.

Reck then filed an action in lieu of prerogative writs in the Superior Court, Law Division, Monmouth County, against the petitioner, requesting de novo review of the findings in the report. Specifically, he alleged the petitioner improperly sustained two allegations charged against him and that the petitioner never identified the particular administrative process by which he could challenge the findings of the report as demanded.

The petitioner forwarded a copy of Reck’s complaint to the OAG with a letter requesting representation in accordance with Wright v. State, 169 N.J. 422 (2001). The OAG denied the petitioner’s request for representation, positing the duty only obligates the OAG to provide defense and indemnification to employees when they are being sued in civil actions seeking damages for conduct that is tortious and/or violative of 42 U.S.C. § 1983. As a result of Reck’s complaint, self-titled as an action in lieu of prerogative writs, sought only non-statutory equitable remedies and did not assert any claims for monetary damages, the OAG determined it was not required to provide a defense.

The Appellate Division found the OAG is only charged with defending a state employee to the extent required under N.J.S.A. § 59:10A-1, which provides that “the Attorney General shall, upon a request of an employee or former employee of the State, provide for the defense of any action brought against such State employee or former State employee on account of an act or omission in the scope of his employment.” However, the court found the OAG’s duty to defend solely arises from the New Jersey Tort Claims Act, N.J.S.A. § 59:1-1 to -12-3. The legislative mandate only applies in the context of civil actions seeking damages for tortious conduct. Chasin v. Montclair State Univ., 159 N.J. 418, 431 (1999). 

It’s important to be aware that the decision to represent an employee in any action not arising under the TCA falls within the discretion of the OAG. Specifically, N.J.S.A. 59:10A-3 is characterized as “a catch-all” provision which permits the OAG to “cover actions not arising under the [TCA], including civil actions not seeking damages, as well as criminal actions.” However, the OAG is only charged with defending a state employee to the extent required under N.J.S.A. 59:10A-1. See Helduser v. Kimmelman, 191 N.J. Super. 493, 508 (App. Div. 1983) (emphasis added). As such, the OAG is not mandated to defend in cases other than those which fall under the TCA. 

As the action in lieu of prerogative writs did not seek damages for tortious conduct, the Appellate Division affirmed the OAG’s discretionary denial of the petitioner’s request for representation. 

 

Legal Updates for New Jersey Public Entity & Civil Rights, December 10, 2024, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved.

Firm Highlights

Thought Leadership

Legal Update for Special Education Law: Recent Positive Outcomes From the Group

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Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

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Unanimous Verdict Obtained in a Medical Malpractice Matter in Bergen County, New Jersey

Result

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Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Vendor Cyber Attack Compromises PII of More Than 3 Million Hunting and Fishing License Holders in Texas

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Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.