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Velez v. City of Jersey City

June 29, 2004

NANCY VELEZ, PLAINTIFF-RESPONDENT,
v.
CITY OF JERSEY CITY, COUNTY OF HUDSON, ABC CORP. (SAID NAME BEING FICTITIOUS AND UNKNOWN), ABC COMPANY (SAID NAME BEING FICTITIOUS AND UNKNOWN), DEF CORP. (SAID NAME BEING FICTITIOUS AND UNKNOWN), JOHN DOE (SAID NAME BEING FICTITIOUS AND UNKNOWN), JOHN ROE (SAID NAME BEING FICTITIOUS AND UNKNOWN) AND ROE DOE (SAID NAME BEING FICTITIOUS AND UNKNOWN). DEFENDANTS, AND ARNOLD BETTINGER, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 358 N.J. Super. 224 (2003).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the notice of claim requirements under the New Jersey Tort Claims Act (the Act) N.J.S.A. 59:1-1 to 12-3, apply to common law intentional tort claims.

Plaintiff, Nancy Velez, is a former employee of the City of Jersey 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, Velez sought Bettinger's assistance, in his capacity as councilman, in a personal matter. Ultimately, Velez learned that Bettinger's efforts had resulted in a favorable disposition of that personal matter, so on December 1, 1997, she went to Bettinger's office to thank him personally for his help. When she extended her hand to shake his, Bettinger allegedly hugged and kissed her, and then fondled and groped her before she struggled free. Shortly after that encounter, Velez sustained an unrelated onthe-job injury and took an extended leave of absence from December 1997 through March 1999.

Although Velez claimed that she orally reported the incident involving Bettinger to numerous NID management employees, union officials, family members, family doctors, and co-workers, she never directly notified the City in writing. The City did not investigate or respond to her allegations. On November 10, 1999, Velez filed a complaint against the City and Bettinger, asserting various common law tort claims, including assault and battery, and violations of the New Jersey Law Against Discrimination (LAD). The City and Bettinger answered, and Bettinger filed a counterclaim alleging malicious prosecution and defamation.

Following discovery, Bettinger and the City each moved for summary judgment, and Velez cross-motioned for summary judgment and for dismissal of Bettinger's counterclaims. The trial court granted summary judgment in favor of Bettinger and the City in respect of Velez's common law claims due to her failure to give timely notice under N.J.S.A. 59:8-8, but denied their motions in respect of the LAD claims. Although Velez's cross-motion was denied, Bettinger voluntarily dismissed his counterclaims. On reconsideration, the trial court dismissed the entirety of Velez's complaint, including the LAD claims, ruling that Velez had failed to demonstrate a triable issue of material fact in respect of the LAD claims, and further that her failure to file a tort claim notice with the City within ninety days of the incident barred her common law claims.

On appeal, Velez challenged the trial court's order, except for the dismissal of the LAD claims against Bettinger. In a published opinion, the Appellate Division reversed the grant of summary judgment on Velez's assault and battery claim against Bettinger and the LAD claims against the City, but affirmed the dismissal of the remaining claims. In respect of the assault and battery claim against Bettinger, the panel concluded that Velez's verbal notification given to various City officials did not satisfy the Act's notice requirements because the notice must be in writing. 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. Thus, the panel concluded that Velez was not required to file a notice of claim with the City to assert her common law assault and battery claim against Bettinger.

The Supreme Court granted Bettinger's petition for certification and further granted the Attorney General amicus curiae status.

HELD: A plaintiff must give a public entity written notice, pursuant to the New Jersey Tort Claims Act, prior to filing a common law intentional tort action against a public employee. However, because this represents an issue of first impression, the Court's decision will be applied prospectively to all similar causes of action accruing after the date of this opinion.

1. The notice provisions in the Act also apply to causes of action based on the intentional conduct of a public employee. As noted by the Appellate Division in Bonitsis v. New Jersey Inst. of Tech., 363 N.J. Super. 505 (2003), there are several persuasive reasons for reaching this conclusion. (pp. 11-14)

2. The absence of any reference to negligence within the definition of "injury" is consistent with the Legislature's intent that the Act's notice requirements encompass injuries arising from intentional conduct as well as negligent conduct. This interpretation further two central purposes: (1) restricting a public entity's liability in tort, and (2) creating a relatively short notice filing period so a public entity can investigate and settle claims. (pp. 14-15)

3. N.J.S.A. 59:3-14, which excludes a public employee from immunity for conduct that constitutes a crime, actual fraud, actual malice, or willful misconduct, must be read together with the overall mandate of N.J.S.A. 59:8-3, providing that no action shall be brought against a public entity or public employee under the Act unless the claim is presented in accordance with the procedure set forth in the Act. There is nothing the Act's legislative history or statutory scheme that indicates that the Legislature intended the notice requirements to apply solely to claims based in negligence. Although the Act's pre-amendment legislative declaration only mentions negligence, that declaration does not limit the necessity of notice. If the Legislature intended to exclude intentional torts from the notice requirements, it would have expressly done so when it amended N.J.S.A. 59:8-3 and 59:8-8. (pp. 15-16)

4. The Court's interpretation of the Act to require notice is consistent with prior cases in which courts have concluded that the Act's notice requirements apply to conduct that arguably could be classified as the intentional or outrageous conduct described in N.J.S.A. 59:3-14. (pp. 16-17)

5. Although the Court has, in limited circumstances, held that the Act's notice requirements are inapplicable to tort actions against a public entity or a public employee, the tort claims at issue here are not statutory causes of action with specific procedural requirements and greater damage allowances than available at common law, and do not assert any state or federal constitutional rights that would supercede statutory limitations. (pp. 17-18)

6. The Court rejects the State's invitation to extend the Act's notice requirements to mandate that written notice also be given to public employees. 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. (p. 18)

7. Velez's claims for assault and battery are encompassed within the term "injury." Thus, Velez should have given notice of claim to the public entity (the City). (p. 18)

8. Because this is a case of first impression, and in view of the uncertainty of this issue, the interests of justice will be better served by prospective application of this decision. Thus, this decision will be applied prospectively to all similar causes of action accruing after the date of this opinion. (pp. 19-20)

Judgment of Appellate Division is AFFIRMED, albeit on a different basis.

CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace

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 ...


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