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Kelly v. County of Monmouth

October 12, 2005

KEVIN KELLY, PLAINTIFF-APPELLANT,
v.
COUNTY OF MONMOUTH, MONMOUTH COUNTY BOARD OF CHOSEN FREEHOLDERS, AND ALAIN FORTIER, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-1430-01.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 19, 2005

Before Judges Alley, C.S. Fisher and Yannotti.

In this appeal, we consider, among other things, whether a public employee who commits either an assault or battery upon a fellow employee is entitled to the benefit of the New Jersey Tort Claims Act's verbal threshold, N.J.S.A. 59:9-2, when sued for damages. While we affirm the dismissal of all plaintiff's other claims, there remain unresolved questions of fact pivotal to determining whether the individual defendant may take refuge behind the verbal threshold in these circumstances, and reverse and remand for further proceedings.

I.

Plaintiff Kevin Kelly, a Monmouth County employee assigned to the County's buildings and grounds department, filed this action against the County, the Board of Chosen Freeholders, and Alain Fortier, the supervisor of the County's reclamation center.

Kelly asserted in his complaint and explained in his deposition testimony that, upon his arrival at the reclamation center with a delivery on March 7, 2000, he was greeted by Fortier, who took off a work glove, asked Kelly how he was doing, and offered his right hand. As they shook hands, Fortier commented that Kelly had "a pretty good grip," and squeezed Kelly's hand even harder, causing Kelly to more forcefully grip Fortier's hand. Fortier then said, "you got some kind of handshake," and "you are some kind of man." According to Kelly, who described this event as a "testosterone type thing," Fortier then grabbed at Kelly's crotch, causing Kelly to step back while he shoved Fortier in the chest with his elbow.

Fortier denies that he grabbed Kelly's genitals, as Kelly alleged, but that, instead, he extended his left hand toward Kelly's lower body, without making contact, in an effort to loosen Kelly's grip. Because summary judgment was entered against Kelly, we are required to assume the truth of his allegations and not Fortier's conflicting version of this event. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

II.

The trial judge rendered a lengthy oral decision in summarily dismissing all Kelly's causes of action. While the complaint contained seven counts, Kelly seeks our reversal only of those parts of the summary judgment orders of February 5, 2004 and March 2, 2004 that dismissed his claim of what he refers to as a common law assault, as well as his claim of "same sex" harassment prohibited by the Law Against Discrimination, N.J.S.A. 10:5-1 to -42.

In his brief, Kelly asserts the following two arguments for our consideration:

I. APPELLANT'S CASE SHOULD PROCEED TO A JURY WHEN PRIMA FACIE EVIDENCE OF AN ASSAULT IS ...


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