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Brook v. April

September 30, 1996

CHARLOTTE M. BROOK, PLAINTIFF-APPELLANT,
v.
JEFFREY A. APRIL, MARY J. MAUDSLEY, ANTHONY J. HARVATT II, AND CAROL GOLOFF, PRACTICING LAW AS APRIL & MAUDSLEY, P.A., DEFENDANTS/THIRD PARTY PLAINTIFFS-RESPONDENTS, V. HUGH RILEY AND TERESA LANG, THIRD PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Cape May County.

Approved for Publication October 2, 1996.

Before Judges Dreier, Kestin and Cuff. The opinion of the court was delivered by Kestin, J.A.D.

The opinion of the court was delivered by: Kestin

The opinion of the court was delivered by

KESTIN, J.A.D.

Plaintiff in this legal malpractice action appeals from the trial court's grant of defendants' motion for summary judgment and its denial of plaintiff's motion for summary judgment on a single issue, based upon the trial court's understanding of the requirements of the Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. The motion Judge held that plaintiff's underlying claims for wrongful discharge, grounded upon the Workers' Compensation Law's prohibition against retaliation, N.J.S.A. 34:15-39.1, were subject to the immunities conferred by the Tort Claims Act upon public entities and employees with respect to claims arising from discretionary activities, N.J.S.A. 59:2-3(d), :3-2(d).

In reaching his decision, the motion Judge was guided by Dlugosz v. Fred S. James & Co., 212 N.J. Super. 175, 514 A.2d 538 (Law Div. 1986), the reasoning of which he adopted in concluding that plaintiff did not qualify to make a claim under the Tort Claims Act. We overrule the holding in Dlugosz insofar as it bears upon the relationship between N.J.S.A. 34:15-39.1 and the Tort Claims Act. We nevertheless affirm the trial court's orders on the motions for summary judgment for other reasons.

I

Because the matter is before us on an appeal from a grant of defendants' motion for summary judgment, the fairly presented facts must be viewed in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523, 666 A.2d 146 (1995). She is to be accorded "the benefit of all favorable inferences that may legitimately be drawn from the record" before the trial court. Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 135, 516 A.2d 220 (1986). See also Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75, 110 A.2d 24 (1954).

Plaintiff was employed as a police officer in the Stone Harbor Police Department (Department) from 1988 to 1991. She contracted pneumonia during the winter or spring of 1990, and was absent from her job for a period of three to four weeks. During that time, the Department brought disciplinary charges against plaintiff, alleging abuse of sick leave. Plaintiff retained defendant Harvatt to represent her in the disciplinary action. Harvatt was then an associate in defendant law firm, April & Maudsley.

On June 9, 1990, plaintiff suffered a herniated disc while on patrol. She filed a workers' compensation claim and was on disability leave collecting benefits when she received a letter dated January 7, 1991, informing her that she would be terminated from the Department as of January 25, 1991. Plaintiff communicated with Harvatt. She alleges that Harvatt assured her that the Department could not terminate her in that manner and undertook to handle the matter, saying: "You worry about getting better.... We have plenty of time to go after these guys."

The complaint alleges, "among other things," negligence in failing to file a timely notice of claim under the Tort Claims Act. It is undisputed that none of the defendants filed a notice of claim on behalf of plaintiff, N.J.S.A. 59:8-4, ordinarily required by the Tort Claims Act as a jurisdictional prerequisite, N.J.S.A. 59:8-3; see also N.J.S.A. 59:8-8a; Fuchilla v. Layman, 109 N.J. 319, 330, 537 A.2d 652, cert. denied, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). There is no contention that plaintiff was specifically advised that she needed to inform the municipality and the police department of her claims in order to preserve her rights.

In addition to denying negligence generally, defendants contend that, on February 4, 1991, before the ninety-day notice period expired, April & Maudsley forwarded plaintiff's file to another law firm for representation on all pending matters. Neither that firm nor any of its members is a defendant in this action. Eventually, that firm's involvement in the case ended and plaintiff retained another firm, not a party to this appeal, which was in turn succeeded by her present attorney. With respect to the underlying claim, the municipality and its police chief, plaintiff's supervisor, (collectively, the municipal defendants) have maintained that plaintiff's dismissal resulted from budgetary considerations and reductions in work force.

The motion Judge concluded that defendants' liability depends directly on the potential underlying liability of the municipal defendants in respect of plaintiff's wrongful discharge claim. The Judge reasoned that, if the municipal defendants were immune under the Tort Claims Act, defendants in this suit could not be liable for ...


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