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Velez v. City of Jersey City6/29/2004
ublic employees. Although we note that the better practice is for a potential plaintiff to give notice to both the public entity and the public employee, N.J.S.A. 59:8-8 only requires that notice be given to the public entity. If the Legislature had intended to require that written notice be given to a public employee in the same manner as a public entity, it would have expressly done so when it amended N.J.S.A. 59:8-8.
Again, it did not. Accordingly, the State's argument is better addressed to the Legislature.
In sum, we conclude that plaintiff's claims for assault and battery are encompassed within the term "injury," and that plaintiff should have given a notice of claim to the public entity.
IV.
Finally, we must decide whether this decision should be applied prospectively only. "Although retroactive application of judicial decision is the general rule, the primary focus in resolving questions of [prospectivity] is with considerations of fairness and justice, related to reasonable surprise and prejudice to those affected." Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 600 (1992) (citations and quotation marks omitted). Accordingly, prospective application is appropriate when (1) the decision establishes a new rule of law, by either overruling past precedent or deciding an issue of first impression, and (2) when retroactive application could produce substantial inequitable results. Alderiso v. The Medical Center of Ocean County, Inc., 167 N.J. 191, 203 (2001).
A new rule of law is created when, in a case of first impression, "a plaintiff 'reasonably relie on a plausible, although incorrect, interpretation of the law.'" Id. at 204.
Here, plaintiff reasonably believed that N.J.S.A. 59:3-14a precluded application of the notice requirements to this case. The reasonableness of plaintiff's view is demonstrated by the fact that two panels of our Appellate Division came to opposite conclusions when reviewing this issue. Because this is a case of first impression before our Court and in view of the uncertainty of this issue, the "interests of justice will better be served by prospective application of our decision." Green, supra, 127 N.J. at 591.
Accordingly, we hold that this decision will be applied prospectively to all similar causes of action accruing after the date of this opinion.
V.
Although the basis of our decision differs from the court below, we affirm the judgment of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in JUSTICE WALLACE's opinion.
Chief Justice Poritz PRESIDING
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