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Velez v. City of Jersey City6/29/2004
Argued November 17, 2003
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 (2003). We granted defendant's petition for certification, 177 N.J. 224 (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 V 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, " 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 co-workers, 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, ex
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