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Velez v. City of Jersey City6/29/2004
cept 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.
With respect to the LAD claims against the City, the panel found sufficient facts to establish a triable issue concerning the City's negligent failure to adequately enforce its own sexual harassment policy. Id. at 236. 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. 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. 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 guilty of outrageous conduct from availing themselves of the limitations as to liability and damages contained in 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 (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 (1988) (noting that comments to "certain sections of the statute were taken from the 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 (1987), the Act contains the following legislative declaration:
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