 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Velez v. City of Jersey City6/29/2004
d the Act to create a parallel liability scheme for public employees and public entities. Sponsor's Statement to L. 1994, c. 49, § 1; see also Margolis & Novack, Claims Against Public Entities, comment on N.J.S.A. 59:3-1c (2004) (stating purpose of 1994 amendment was "to ensure that public employees will not be found liable on the basis of a negligence standard where the public entity would be liable only if palpably unreasonable"). The revised Act specifically provided that " public employee is not liable for an injury where a public entity is immune from liability for that injury." N.J.S.A. 59:3-1c. Consistent with the theme of parallel protection, the Legislature also amended the Act to expressly bar recovery against a public employee if the notice requirements of the Act are not met. N.J.S.A. 59:8-8; see also Margolis & Novack, supra, comment on N.J.S.A. 59:8-8 (noting failure to satisfy notice requirements "constitutes an absolute bar to recovery against an employee").
One other section of the Act is relevant to the disposition of this appeal. Both before and after the 1994 amendments, the Act provided that " othing in this ct 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 misconduct." N.J.S.A. 59:3-14a. The 1972 Task Force Comment to this section explained, "It is the intent of this provision that a public employee guilty of outrageous conduct cannot avail himself of the limitations as to liability and damages contained in this ct." N.J.S.A. 59:3-14 comment.
III.
We now address whether the amendment to N.J.S.A. 59:8-8, extending the application of the notice provisions to actions against public employees, was intended to apply to intentional conduct.
As noted above, the Appellate Division panel interpreted the Act to exclude the asserted assault and battery claim from the notice requirements. Velez, supra, 358 N.J. Super. at 239-240. Another Appellate Division panel recently addressed this issue and reached a different conclusion. Bonitsis v. New Jersey Inst. of Tech., 363 N.J. Super. 505 (2003). In Bonitsis, the plaintiff filed a complaint asserting claims for tortious interference with his employment contract and for intentional infliction of emotional distress against two supervisors. Id. at 512. However, the plaintiff failed to comply with the Act's notice provisions and the trial court dismissed his complaint. Id. at 510. On appeal, the panel affirmed the dismissal and concluded that New Jersey law implies "that the notice provisions of the Act are applicable to intentional torts." Id. at 519. The panel noted that New Jersey case law is consistent with current commentary stating that "'the notice requirement [of the Act] appear to apply even where the alleged tort is entirely due to actual fraud, actual malice, willful misconduct or an intentional wrong.'" Id. at 520 (quoting Margolis & Novack, supra, comment on N.J.S.A. 59:10-4) (second alteration in original). The panel further noted that its decision was consistent with California precedent interpreting the California Tort Claims Act, Cal. Gov't Code §§ 810 to 996. Ibid. (citing Tietz v. Los Angeles Unified Sch. Dist., 48 Cal. Rptr. 245, 249 (Ct. App. 1965), cert. denied, 385 U.S. 8, 87 S.Ct. 53, 17 L.Ed. 2d 7 (1966)).
The panel listed four persuasive reasons for its conclusion that the Act's notice provisions apply to intentional tort claims. First, the definition of "injury" in N.J.S.A. 59:1-3 is broad enough to encompass injuries inflicted from intentional as well as negligent conduct. Ibid. Second, the express language of the notice
Page 1 2 3 4 5 6 7 New Jersey Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|