Velez v. City of Jersey City

• Decision Date: 29 June 2004
• Parties: Nancy VELEZ, Plaintiff-Respondent, v. CITY OF JERSEY CITY, County of Hudson, ABC Corp. (said name being fictitious and unknown), ABC Company (said name being fictitious and unknown), DEF Corp. (said name being fictitious and unknown), John Doe (said name being fictitious and unknown), John Roe (said name being fictitious and unknown) and Roe Doe (said name being fictitious and unknown), Defendants, and Arnold Bettinger, Defendant-Appellant.
• Court: New Jersey Supreme Court

850 A.2d 1238

180 N.J. 284

Nancy VELEZ, Plaintiff-Respondent, v. CITY OF JERSEY CITY, County of Hudson, ABC Corp. (said name being fictitious and unknown), ABC Company (said name being fictitious and unknown), DEF Corp. (said name being fictitious and unknown), John Doe (said name being fictitious and unknown), John Roe (said name being fictitious and unknown) and Roe Doe (said name being fictitious and unknown), Defendants, and Arnold Bettinger, Defendant-Appellant.

Supreme Court of New Jersey.

Argued November 17, 2003.

Decided June 29, 2004.

John L. Shahdanian, II, Secaucus, argued the cause for appellant (Chasan, Leyner, Bariso & Lamparello, attorneys; Ralph J. Lamparello, of counsel).

Cynthia Gill, Teaneck, argued the cause for respondent (Davis, Saperstein & Salomon, attorneys).

Karen L. Jordan, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Deputy Attorney General, of counsel).

Justice WALLACE delivered the opinion of the Court.

The issue in this appeal is whether the notice of claim requirements under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, apply to common law intentional tort claims. The Appellate Division held that the Act's notice requirements did not apply to plaintiff's assault and battery claim against defendant, who is a public employee. Velez v. City of Jersey City, 358 N.J.Super. 224, 817 A.2d 409 (2003). We granted defendant's petition for certification, 177 N.J. 224, 827 A.2d 291 (2003), and granted the Attorney General amicus curiae status. We now hold that a plaintiff must give a public entity written notice, pursuant to the Act, prior to filing a common law intentional tort action against a public employee. However, for the reasons set forth in section IV of this opinion, we affirm the judgment of the Appellate Division.

I.

The facts are uncomplicated. Plaintiff, Nancy Velez, is a former employee of the City of Jersey City (City), where she worked in the Neighborhood Improvement Division (NID). Defendant, Arnold Bettinger, was a City councilman and was the Hudson County Division Chief in charge of central services.

In October or November 1997, plaintiff sought defendant's assistance, in his role as councilman, to obtain child support from her former husband. Defendant indicated that he would try to help her. A few weeks later, plaintiff learned she would receive the past due child support as a result of defendant's intervention.

On December 1, 1997, plaintiff went to defendant's office to thank him personally for his help. She alleged that when she attempted to shake defendant's hand, he responded, "[t]his doesn't deserve a handshake, this deserves a hug," and then hugged and kissed her. Allegedly, defendant then fondled and groped plaintiff before she struggled free. Plaintiff claimed she orally reported that incident to numerous NID management employees, union officials, family members, family doctors, and coworkers, but she never directly notified the City in writing. The City did not investigate or respond to her allegations.

Subsequently, plaintiff incurred an unrelated, on-the-job injury that caused her to take an extended leave of absence. She remained out of work from December 1997 through March 1999.

On November 10, 1999, plaintiff filed a fourteen-count complaint against the City and defendant. She asserted various common law tort claims, including assault and battery, and violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The City and defendant answered, and defendant counterclaimed, alleging malicious prosecution and defamation.

Following discovery, defendant and the City each moved for summary judgment. Plaintiff cross-motioned for summary judgment and for dismissal of defendant's counterclaims. The trial court granted summary judgment in favor of defendant and the City with respect to plaintiff's common law claims due to her failure to give timely notice under N.J.S.A. 59:8-8, but denied the motions with respect to the LAD claims. Plaintiff's cross-motion was denied, but defendant voluntarily dismissed his counterclaims.

Plaintiff and defendant sought reconsideration, which the City opposed. The trial court considered all arguments anew and dismissed the entirety of plaintiff's complaint, including the LAD claims. The court ruled that plaintiff failed to demonstrate a triable issue of material fact with respect to her LAD claims, and that plaintiff's failure to file a tort claim notice with the City within ninety days of the incident barred her common law claims.

On appeal, plaintiff challenged the trial court's order, except for the dismissal of the LAD claims against defendant. In a published opinion, the Appellate Division reversed the grant of summary judgment on plaintiff's assault and battery claim against defendant and the LAD claims against the City, but affirmed the dismissal of the remaining claims. Velez, supra, 358 N.J.Super. at 240-41, 817 A.2d 409.

With respect to the LAD claims against the City, the panel found sufficient facts to establish a triable issue concerning the City's¹ negligent failure to adequately enforce its own sexual harassment policy. Id. at 236, 817 A.2d 409. As to the assault and battery claim against defendant, the panel concluded that plaintiff's verbal notification given to various City officials was insufficient to satisfy the Act's notice requirements because the notice must be in writing. Id. at 238, 817 A.2d 409. However, the panel also found that although the 1994 expansion of the Act's notice requirements encompasses actions against public employees, it was not intended to modify the plain meaning of N.J.S.A. 59:3-14, which excludes outrageous conduct from statutory immunity. Id. at 240, 817 A.2d 409. The panel reasoned:

The 1972 Task Force Comment to the Act makes it clear that the intent behind N.J.S.A. 59:3-14 is to prevent public employee[s] guilty of outrageous conduct from availing themselves of the limitations as to liability and damages contained in [the] [A]ct. The assault and battery alleged to have been perpetrated by [defendant] would be outside the scope of his duties as a councilman. If proven, [defendant's] actions would qualify as the type of outrageous conduct sought to be excluded from the protections of the Act by N.J.S.A. 59:3-14. To permit [defendant] to avail himself of the notice provisions to avoid liability for such outrageous conduct would, under these circumstances, run counter to legislative intent and the overall purpose of the Act.

[Ibid. (first and second alterations in original) (quotation marks omitted).]

Thus, the panel concluded that plaintiff was not required to file a notice of claim with the City to assert her common law assault and battery claim against defendant. Ibid.

II.

Defendant contends that a plain reading of the Act mandates that a plaintiff give notice to a public entity and to a public employee prior to filing a civil assault and battery complaint against either. The State also urges that we interpret the Act to require notice to both a public entity and a public employee prior to filing a complaint alleging tortious intentional conduct.

Conversely, plaintiff maintains that because defendant's intentional acts are exempted from immunity under N.J.S.A. 59:3-14, the notice requirements do not apply. Further, plaintiff analogizes her assault and battery claim against defendant to discrimination claims governed by the LAD, which need not comply with the notice provisions of the Act.

Preliminarily, we review the relevant provisions and the history of the Act. In Willis v. Department of Conserv. & Econ. Dev., 55 N.J. 534, 536-41, 264 A.2d 34 (1970), the Court abrogated sovereign immunity from tort liability in this State. In 1972, the Legislature responded by adopting the Act and reestablishing sovereign immunity in a manner consistent with the proposals contained in the 1972 Attorney General's Task Force Report on Sovereign Immunity. See Rochinsky v. State, 110 N.J. 399, 407 n. 4, 541 A.2d 1029 (1988)

(noting that comments to "certain sections of the statute were taken from the [r]eport... and accompanied the Act during its consideration by the Legislature"). Modeled after the California Tort Claims Act of 1963, Ayers v. Township of Jackson, 106 N.J. 557, 575 n. 4, 525 A.2d 287 (1987), the Act contains the following legislative declaration:

The Legislature recognizes the inherently unfair and inequitable results that occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this [A]ct and in accordance with the fair and uniform principles established herein. All of the provisions of this [A]ct should be construed with a view to carry out the above legislative declaration.

[N.J.S.A. 59:1-2.]

The Act "`is dispositive, with respect to causes of action in tort accruing on and after [July 1, 1972], of the nature, extent and scope of state and local tort liability and the procedural requisites for prosecuting tort claims against governmental agencies.' " Wright v. State, 169 N.J. 422, 435, 778 A.2d 443 (2001) (quoting Pressler, Current N.J. Court Rules, comment 17.1 on R. 4:5-4 (2001)). Prior to filing a complaint, a plaintiff must submit a notice of claim to the public entity within ninety days of the claim's accrual, N.J.S.A. 59:8-8a, and must file suit within two years...