Coverage Decisions
Kampf v. Franklin Life (1960) | When the policy terms are clear, the function of the court is to enforce its provisions and not make it better for either party.
Burd v. Sussex Mutual (1970) | The duty to defend applies to only those injuries that would be covered if the claim was valid.
Rova Farms v. Investors Insurance Co. (1974) | Where an insurer reserves full control of the claims settlement process, the insurer has the duty to exercise good faith in settling claims.
Mt Hope Inn v. Travelers (1978) | When multiple alternative causes of action are stated, the duty to defend continues until every covered claim is eliminated.
DiOrio v. NJ Manufacturers (1979) | When the meaning of a phrase is ambiguous, the ambiguity is resolved in favor of the insured in line with the insured’s objectively reasonable expectations.
Ward v. Merrimack Mutual (1980) | In order to establish bad faith in a first party claim, the insured must establish an insurer’s “reckless indifference to facts or to other proofs submitted by the insured.”
Patterson Tallow v. Royal Globe (1981) | The coverage trigger in malicious prosecution and wrongful arrest claim is the date charges were filed against the claimant.
Zuckerman v. National Union (1985) | The fundamental principle of insurance law is to fulfil the reasonable expectations of the parties. The insurer is not required to show prejudice when denying a claim based on late notice against a claims made policy even though it must show prejudice in an occurrence policy.
Sparks v. St. Paul (1985) Because insurance polices are policies of adhesion, the courts must assume a particularly vigilant role in insuring conformity to public policy and the principles of fairness. Under exceptional circumstances, an insured may be entitled to “reasonable expectations” even if this differs from the unambiguous wording in the policy.
Werner Industries v. First State (1988) | If an insured’s reasonable expectations contravene the plain meaning of a policy, the plain meaning can be overcome only if the policy is inconsistent with public expectations and commercially accepted standards.
Longobardi v. Chubb (1990) | Generally a policy should be interpreted according to its plain and ordinary meaning.
Voorhees v. Preferred Mutual (1992) | When claim that emotional distress resulted in physical ramifications, it is covered under the bodily injury section of a liability policy. The accidental nature of an occurrence is determined by analyzing whether the alleged wrongdoer intended or expected to cause an injury. If not then the resulting injury is accidental even if the act that caused the injury was intentional.
State v. Signo Trading (1992) | The courts should resort to the doctrine of reasonable expectations only when the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage. Public policy considerations alone are not sufficient to permit a finding of coverage in an insurance contract when the plain language cannot be fairly read to otherwise provide coverage.
SL Industries v. American Motorists (1992) | An insurer has no duty to reimburse an insured for defense costs incurred before the insured reports the claim.
Nunn v. Franklin Mutual (1994) | The absolute pollution exclusion is enforceable in a commercial policy because commercial policyholders are more able to understand policy language.
Zacarias v. All State (2001) | A legislative mandate is required for the courts to expand coverage using a public policy rational.
Edwards v. Prudential Property/Casualty (2003) | Insurers have no duty to educate or counsel policyholders about the conditions of their policies.
Benjamin Moore v. Aetna (2004) | In a long-tail environmental exposure case, an insured must satisfy the full deductible for each triggered policy before it is entitled to indemnity from the insurer.
American Wrecking v. Burlington Insurance Co. (2008) | The doctrine of the reasonable expectations of an insured for coverage only applies in commercial insurance where there is ambiguity in the policy language.
Ferentz v. Frederick (2019) | Coverage was voided by the deliberate action of the insured to undermine its own defense so that the plaintive would win.
Decorum Decisions
White v. Norwalk (1990) | In dealing with agenda items, a governmental body does not violate the first amendment when it restricts speakers to the decision at hand.
Donato & Calogero v. Moldow (2005) | The operator of an electronic community bulletin board is not liable for defamatory messages posted by others.
Besler v. BOE of West Windsor and Plainfield (2010) | the NJ Supreme Court ruled that a jury must decide if the action of a governmental body cutting off speech in a public meeting was acceptable under the Federal White v Norwalk standard.
Rosenblatt v. Camilla (2012) | Appellate Court threw out a defamation case brought by a Council Member because it failed to meet the high standard in Sullivan v NY Times
Employment Practices Liability Decisions
Monell v. NYC (1977) | In a case challenging a forced maternity leave policy, the US Supreme Court ruled that local government can be sued for monetary damages under Section 1983 (the Civil Rights Code) based on the implementation of a policy or custom. This case opened the flood gates for many types of civil rights cases including employment practices.
Lehmann v. Toys R Us (1993) | Employer liable for sexual harrassment committed by a supervisor because of the lack of an effective anti-harrassment program.
Mancini v. Teaneck (2002) | Sexual harassment suits subject to the continuous trigger rule.
Hernandez v. Montville BOE (2002) | The trial judge should be very cautious about the overturning the jury’s verdict in CEPA cases.
Gaines v. Bellino (2002) | An employer is responsible for sexual haressment unless there is an effective anti-harassment progam in place.
Nardello v. Voorhees (2005) | Even minor incidents must be considered when determining if there is a pattern of retaliation in a CEPA case.
Maimone v. Atlantic City (2006) | Involuntary transfer out of the detective bureau can be considered as retaliation.
Cutler v. Dorn (2008) | Jokes based on an employee’s religion create a hostile work environment actionable under LAD even if the employee didn’t complain at the time.
Groslinger v. Wyckoff (2009) | Summary judgment affirmed because of the Township’s prompt and consistent enforcement of its personnel policies.
Valentino v. Woodcliff Lake (2011) | Summary judgement affirmed because the employer’s actions were not of the type that would compel a reasonable employee to resign.
Winters v. North Hudson Regional Fire (2012) | Employees who lose with civil service cannot also sue under CEPA.
Farneski v. Hunterdon County (2013) | In a CEPA case, the Court must examine each discrete act to determine whether that act is time barred.
Vaticano v. Edison (2013) | Employees must show competent evidence connecting political activity and an adverse employment action to claim political retaliation.
Hahn v. Edison (2013) | In CEPA cases, employees must establish that the offensive activity poses a threat of public harm, not merely private harm only to the aggrieved employee.
Buonanno v. Elmwood Park (2014) | The elimination of the plaintiff’s position was improper because a council member who had a conflict of interest failed to recuse from the deliberations and vote.
Dunkley v. Coraluzza Petroleum (2014) | Summary judgement affirmed because employer had an anti-harrassment program that met the standard in Lehmann and employer acted promptly when the plaintiff reported harrassment.
Kownacki v. Saddle Brook BOE(2014) | In a CEPA case, the statute of limitations tolls after one year from the last alleged event that could be actionable under CEPA.
Urbanski v. Edison (2014) | Filing a CEPA case bars filing a LAD case for the same incidents.
Aguas v. New Jersey (2015) | The employer may assert as an affirmative defense that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided,” provided that the employer has not taken an adverse tangible employment action against the plaintiff employee.
Caraballo v. Jersey City (2019) | A police officer’s failure to obtain knee replacement surgery under Workers’ Compensation precludes a failure to accommodate claim under LAD.
Wild v Carriage Funeral Holdings (2020) | An Employee who has been prescribed medical marijuana cannot be fire for merely failing a drug test.
Employee Safety & Firefighter Cancer Presumption
Kossack v. Bloomfield (1960) | Police officer injured at home cleaning his service weapon is covered by Workers Compensation.
Abdullah v. Thomas (1983) | Established the formula used to reduce an award when the injured employee received a previous award involving a similar injury.
Dowson v. Lodi
(1986) | A volunteer firefighter who was injured while playing on the Department’s softball team is not covered for WC because the game did not produce a benefit for the Department beyond morale.
Mabee v. Borden (1998) | The sole recourse rule does not apply if the employer directs a violation of safety rules that result in a “virtual certainly” that employees will be injured.
Schmidt v. Smith (1998) | The employers’ liability section of a workers’ compensation policy covers claims for workplace sexual harassment where the harassment results in physical manifestation of bodily injury (i.e. stress).
Crank v. Palermo (1999) | A Housing Authority Commissioner on HA business who was injured while riding as a passenger in a HA owned vehicle cannot sue the HA for injuries sustained in that accident because the Commissioner is considered as an employee covered by Workers’ Compensation and therefore subject to the sole recourse rule.
Capano v. Bound Brook Relief and Fire Company (2001) | A 93-year-old life member of a Fire Company is entitled to compensation when he fell in the fire house while putting a log into a fire place.
Peterson v. Alpine (2001) | Utilities share responsibility for police officer workers’ compensation.
Jumpp v. Ventnor (2003) | A municipal water department operator is not covered by Workers’ compensation when he stopped along his route to pick up his personal mail because this is more than a minor deviation.
Lindquest v. Jersey City (2003) | A career fire fighter with emphysema is entitled to compensation even though he was an extensive smoker and science is not able to clearly establish causation.
Wasik v. Bergenfield (2003) | The instigator of horseplay can also be covered by workers’ compensation so long as the horsing around was neither extensive nor serious.
Potter v. Jersey City (2012) | The 48 hour period to report a hernia does not apply to inguinal hernias.
Hersh v. Morris County (2012) | Upholds and clarifies the going and coming rule concerning when workers’ compensation coverage begins and ends.
Tumolo v. Seaside (2013) | A “travel-time” exception allows portal-to-portal coverage for employees paid for travel time to and from a distant job site, or using an employer-authorized vehicle for travel time to and from a distant job site. Further, “travel by a policeman, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency, shall be deemed to be in the course of employment.
Lambert v. Travelers (2016) | Notwithstanding the auto no fault law, when an employee is injured in an auto accident, the employee may sue a third party and the WC insurer has subrogation rights to the recovery.
Ethics Decisions
Hollander v. Watson (1979): A Freeholder may not serve on the Board of a County College.
Allen v. Toms River Regional BOE (1989): Under the Doctrine of Necessity, there are circumstances that require members with conflicts to vote anyway.
Barrett v. Union Township (1989): Council member is disqualified from voting on a zoning ordinance impacting a nursing home where his mother lives even though neither he nor his mother had a financial interest in the establishment.
Local Finance Board Opinion 92 – 009 (1992): A computer contractor may receive a contract from a town where the contractor serves on the Zoning Board.
Local Finance Board Opinion 92-011 (1992): A member of the governing body may not participate in the drafting of bid specifications for services that the member provides in his private business or submit a response to an bid released by the municipality for those services.
Local Finance Board Opinion 92 – 015 (1992): A member of a governing body may not provide goods or services to the municipality through the State Cooperative Bidding program.
Local Finance Board Opinion 93-003 (1993): A Freeholder may serve as municipal prosecutor in towns within the county.
Local Finance Board Opinion 92-004 and 93-019 (1993): An officer of fire department may not serve on the Board of Fire Commissioners that controls that fire department, but a volunteer who is not an officer may serve on the board.
Local Finance Board Opinion 93-020 (1993): A Housing Authority Commissioner may serve as auditor for a neighboring Housing Authority.
Wyzykowski v. Rizas (1993): A Mayor may apply to a Planning Board for approval even though the Mayor has an interest in the project.
Local Finance Board Opinion 95 – 001 (1995): in most circumstances, a member of the governing body who is also a teacher may participate in matters before the governing body that relate to the Board of Education.
Horvath v. Local Finance Board (2004): A Mayor may appoint a daughter to the Planning Board even though the appointment did not require Council approval.
Shapiro v. Mertz (2004): A Council Member may not vote on the appointment of a spouse to a Planning Board.
Beacon Hill Farm v. Marlboro (2006): Council President who recused himself from a matter may not continue to preside at the meeting while the matter is being considered.
Murtagh v. Park Ridge (2006): A Planning Board member who recused himself because of his personal interest in the application may speak from the audience at the hearing.
Re: Zisa (2006): Following advice from municipal attorney provides limited safe harbor.
Hughes v. Monmouth University (2007): It is not a conflict for members of a planning board to vote on the expansion of an university library even though they are alumni of that university.
State v. Lake (2009): Mayor sentenced to 5 years for offering his opponent a job if he dropped out of Mayor’s race.
Local Finance board Opinion 11-073 (2011): A Council Member may not serve as the paid Planning Board Secretary.
Local Finance Board Opinion 11-146 (2011): The Mayor may not urge citizens to “vote yes” on a referendum in a news letter paid by the town, but may explain the referendum in the newsletter.
Local Finance Board Opinion 12-011 (2012): A Commissioner in a Commissioner form municipality, may not serve as both Public Safety Director and as the non-paid Secretary of the Volunteer Fire Department.
Local Finance Board Opinion 12-037 (2012): A mayor may use the title to solicit contributions to a charity
Local Finance boards Opinion 12-030 (2012): A Mayor may award a consulting contract to a university even though the Mayor is a very active alumni and supporter.
Local Finance Board Opinion 12-093 (2012): The Mayor’s insurance firm may provide coverage to a lawn service that did work for the town.
Local Finance Board Opinion 13-009 (2013): A Council Member may inquire about the status of construction projects on behalf of companies from which the official received campaign contributions and/or had a business relationship.
Local Finance Board Opinion 13-044 (2013): A Council Member may not move to give a contract to a law firm that includes a child even if the Council Member abstains from the final vote.
Local Finance Board Opinion 12 – 013 (2013): An elected official may not use official stationary to support candidates for public office.
Local Finance Board Opinion 14-008 (2014): Elected officials may vote to appoint their campaign managers to vacant positions on a MUA Board.
Local Finance Board Opinion 11-088 (2015): Local public officials may appear before as advocates before a local public body in quasi-judicial proceedings provided they are (1) representing the public interest and (2) have no role in reviewing the local public agency’s decision.
Local Finance Board Opinion 13-014 (2015): A local elected official must recuse on any matter involving a non-profit organization where the official is also an officer of the non-profit.
Land Use Liability Decisions
Centennial Land & Development v. Medford Township (1979) | Absolute Immunity (as opposed to qualified immunity) applies to members of Planning and Zoning Boards engaged in quasi-judicial activity.
Schad v. Mount Ephraim (1981) | The US Supreme Court voided a zoning ordinance that prohibited adult bookstores because the ordinance allowed a broad range of other uses in the commercial zone and therefore unconstitutionally singled out a particular type of speech.
Anastasio v. West Orange Planning Board (1986) | Board members are eligible for absolute immunity even when they ignore a court order to grant an approval.
Renton v. Playtime Theater (1986) | The Supreme Court upheld a zoning ordinance that prohibited adult theaters within 1000 feet of a residential zone where there were other places under the zoning code where the theater can operate.
Whispering Woods v. Middletown (1987) | A land use board may enter into a settlement with an applicant that is appealing the board’s decision but must give the public the opportunity to be heard on the terms of the settlement.
Nunziato v. Edgewater (1988) | Absent a legal requirement that establishes guidelines to require offsite improvements, it is not legal to accept voluntary contributions from developers.
White v. Norwark (1990) | In dealing with agenda items, a governmental entity does not violate the first amendment when it restricts speakers to the subject at hand.
Smith v. Fair Haven (2000) At onsite visits, board members should not go beyond arguments advanced in the hearings and should report what was learned at the next meeting.
Tenafly Eruv Association v. Tenafly (2002) | The use of a sign ordinance to deny the establishment of a ERUV constituted illegal selective enforcement because the town had not consistently enforced is sign ordinance.
Mansoldo v. NJ (2006) | In deciding inverse condemnation cases, courts must ask if the regulation effectively eliminates all commercially productive use of the land and must also determine if the regulation interferes with legitimate investment-backed expectations of the property owner.
Al Falah v. Bridgewater (2013) | The Federal Court ruled that the action of the town in denying the application of a mosque was a violation of RLUIPA because the revision to its zoning and the nature of the hearings clearly indicated the discriminatory intent of the town’s actions.
Grabowsky v. Montclair (2015) | The fact that the Mayor’s mother might live in the applicant’s facility in the future is not sufficient cause to require the Mayor to recuse. The fact that the Mayor is a board member of the adjacent church is sufficient to require recusal.
Hartz v. Spring Lake (2018)| The applicant did not have an action against the Planning Board under the New Jersey Civil Rights Act because the applicant had not exhausted the statutory process for securing the right to be heard by the board and had prematurely filed for a prerogative writ.
Liability / Title 59 – Tort Claim Act
Willis v. Department of Conservation (1970) | Sovereign immunity overturned.
Rodgers v. Passaic Housing Authority (1976) | Once design immunity is triggered, it remains in effect even if there is a subsequent change in safety standards.
Yanko v. Fane (1976) | Common law sidewalk immunity does not apply to commercial property owners.
Diodato v. Camden County Park Commission (1978) | Unimproved property immunity does not apply to unnatural hazards, i.e. a 55 gallon metal trash container submerged in a pond.
Malloy v. State of NJ (1978) | Licensure immunity applies to all phases of the function including discretionary duties and ministerial duties.
Ellison v. South Amboy Housing Authority (1978) | To establish design immunity, a Public Entity has the duty to establish that the plans were properly approved before construction, but that once a public property becomes eligible for immunity, that is perpetual even if design standards subsequently change.
Johnson v. South Hampton (1978):The limited ability to make observations on either side of the road caused by trees and vegetation simply served as a warning that due care must be maintained. The road conditions which presented themselves to the plaintiff passenger and his operator did not constitute a “trap.”
Suarez v. Dosky (1979) | Police Officers can be held negligent for failure to perform ministerial duties.
D’Eustachio v. Beverly Fire Company (1979) | Volunteer Fire Company immunity (NJSA 2A:53-13 and 13.1) continues after the adoption of Title 59 but only pertains when responding to an emergency.
Freitag v. Morris County (1981) | Unimproved property immunity exists for both natural and “artificial” hazards i.e. rocks along a toboggan run that had been placed there sometime in the past.
Ayers v. Jackson Twp (1983) | Establishes the basis for toxic tort suits against governmental entities.
Rodriguez v. NJ Sports and Exposition Authority (1983) | Public entity and its contracted security firm have immunity for failing to provide adequate security at a state owned raceway.
Shuttleworth v. Conti (1984) | Once a public entity decides to install a stop sign, it may be held liable for failure to keep foliage from blocking vision of the sign.
Kolitch v. Lindedahl (1985) | Palpably unreasonable means behavior that is patently unreasonable under any circumstances.
Sharra v. Atlantic City (1985) | A dangerous condition must be a physical hazard of the property itself and not how it is being used (i.e. congestion)
Shore v. Harrison Housing Authority (1986) | Housing authority not immunized for injuries that occur due to criminal acts while its police officer was “goofing off.”
Stempkowski v. Manasquan (1986) | A municipality has no duty to provide life guards at a beach. Further, rough surf is not a dangerous condition on public property.
Thompson v. Newark Housing Authority (1987) | The lack of fire detectors in a housing unit is not eligible for design immunity because the installation of fire detectors was not considered at the time the units were designed.
King v. Brown (1987) | Design Immunity is not lost because of changed circumstances. Courts must exercise restraint in recognizing novel causes of action.
Morely v. Palmer (1989) | Immunity covers a police officer’s decision to arrest or not arrest.
Troth v. State (1989) | A dam is not eligible for unimproved property immunity even if the surrounding area is eligible.
Bombace v. Newark (1991) | A claim allegedly caused by the building inspector’s negligence in inspecting an application is barred under the tort claim act.
Lopez v. City of Elizabeth (1991) | The plaintiff has the burden to show that the actions or inactions of the public entity or employee were palpably unreasonable.
Manna v. NJ DOT (1992) | Design immunity is not lost even if new knowledge demonstrates that the dangerousness of the design, or the design presents a dangerous condition in light of a new context.
Tice v. Creamer (1992) | Police officers immune from suits where a motorist fleeing a stop causes an accident with a third party. (see Fagan v. Vineland below)
Levin v. County of Salem (1993) | The fact that the county knew that its bridge was being used improperly does not negate the Title 59 requirement that the plaintiff must show that the property was being used properly at the time of the injury.
Abbamont v. Piscataway (1993) | CEPA supersedes the immunities in the Tort Claims Act.
Bligen v. Jersey City Housing Authority (1993) | Common law snow removal only applies to public roads and not to internal sidewalks, driveways and roadways owned by a Housing Authority.
Fagan v. Vineland (1994) | Federal law supersedes police pursuit immunity in Title 59.
Canico v. Hurtado (1996) | Law enforcement officers are immunized for the negligent operation of their vehicles in response to emergencies. “Good faith” in section 3-3 and “objective reasonableness” encompass the operation of police vehicles by police officers acting within the scope of their duties and in response to an emergency.
Kneipp v. Tedder (1996) | In Federal Court, a police officer can be held liable for a state created danger.
Campbell v. Campbell (1996) | Where there is an restraining order in force, failure to make an arrest under the Prevention of Domestic Violence Act is not eligible for law enforcement immunity under the Tort Claims Act.
Davenport v. Closter (1996) | Common law snow immunity applies to a foot path across a vacant lot owned by the municipality.
Brooks v. Odom (1997) | to meet the verbal threshold under the Tort Claims Act, a plaintiff must establish a permanent “loss” of a bodily function, not just a permanent “limitation.”
Petrocelli v. Sayreville Shade Tree Commission (1997) | NJSA 40:64-14 immunizes shade tree commissions from liability on sidewalks and creates a strong defense for the municipality in many cases.
Shapiro v. Middlesex JIF (1998) | A Joint Insurance Fund is a local unit of government and eligible for the protections of Title 59. Further, anti trust laws do not apply to JIFs.
Garrison v. Middletown (1998) | Under the Tort Claims Act, the plaintiff must establish that the public property was used with due care.
Stollenwerk v. Mullica (1998) | NJSA 2A 53A-13 and 13.1 concerning volunteer fire companies also immunize municipalities.
Morrison v. Lumberton (1999) | While a public entity has a duty to keep the immediate area around a stop sign free of foliage, this duty does not extend to keeping the entire sight triangle free of obstructions.
Norris v. Leonia (1999) | Common law sidewalk immunity does not apply to municipalities. Curbs are apart of the street and not the sidewalk. The fact that a neighbor complained about the condition of a curb elsewhere in the neighborhood does not constitute notice about all curbs in the neighborhood.
Roe v. NJ Transit (1999) | NJ Transit responsible for a sexual assault committed on park land adjacent to a gate on its property that was bolted open thus encouraging access to a high crime area.
Fleuhr v. Cape May (1999) | Reviews and clarifies potential liabilities and immunities for towns that operate ocean beaches.
Otchy v. Elizabeth (2000) | Failure to file suit within 2 years is an absolute bar (except minors, etc.).
McCarthy v. Verona (2001) Summary judgement upheld because no reasonable jury can find that a concrete sidewalk with a rise of one and a quarter inch at a joint with another slab creates a substantial risk of injury under NJSA 59:4-1.
Posey v. Bordentown Sewerage Authority (2002) | If a public entity has constructive possession of private property, it becomes responsible for hazards on that property under the same standards as if the public entity owned the property.
Pallister v. Spotswood First Aid Squad (2002) | Volunteer First Aid squads and their volunteers are protected by NJSA 2A:53-13 and 13.1 (Volunteer Fire Company immunity) even if the squad is not apart of a fire company.
DelaCruz v. Hillsdale (2004) | Verbal threshold applies to false arrest claims.
Foster v. Newark Housing Authority (2006) | A public entity can be held liable for criminal assaults where the failure to provide working locks on front doors of housing units creates a increased danger of assaults.
Lodato v. Evesham (2006) | NJSA 40:64-14 does not immunize an advisory shade tree Committee (as opposed to a shade tree commission – see Petrocelli v. Sayreville (1997)) or the town. Further, an ordinance that requires residential property owners to repair sidewalks dos not overcome the common law sidewalk immunity enjoyed by residential property owners.
J.H. v. Mercer County Youth Detention Center (2007) | The Child Sexual Abuse Act supersedes Title 59 and imposes potential liability for failure to protect juveniles entrusted to the care of the public entity.
Sopko v. Logan Twp (2007) Unlike a private adjoining landowner, a public entity has no duty to inspect or trim the hedges when they happen to lie in its right of way.
Bayer v. Union Twp (2010) | Innocence does not create a presumption of wrongful arrest.
Charney v. Wildwood (2010) | Imperfections in boardwalk surfaces are commonplace, and the failure to remedy every small defect in a boardwalk cannot be deemed palpably unreasonable. Accordingly, the court finds a reasonable fact finder could not resolve the palpable unreasonableness question in favor of plaintiff.
Murray v. Plainfield Rescue Squad (2010) | The legislature provided immunity to (1) volunteer rescue squads and their members (NJSA 2A:53A-13 and 13.1, i.e. Volunteer Fire Company Immunity), (2) non volunteer rescue squads and their members rendering advanced life support services (NJSA 26:2k-14) and members of non volunteer rescue squads rendering intermediate life support services (NJSA 26:2K-29) but not to the non volunteer rescue squad itself rendering intermediate life support services.
Perina v. NJ Highway Authority (2010) | Failure to post a traffic warning sign as provided for in an approved plan is still is entitled to immunity under 59: 4-5 for failing to provide ordinary traffic signals and signs.
Ojinnaka v. Newark (2011) | The failure to adequately search for a occupant in a motor vehicle crash is not immune because it is a failure to perform a ministerial duty.
Polzo v. Essex County (2012) | TCA does not require a proactive “roving pot hole patrol.”
SP v. Newark (2012) | Absent a restraining order or similar factors, the decision to make an arrest under the Prevention of Domestic Violence Act is eligible for law enforcement immunity under the tort claim act.
Bezerra v. DeLorenzo (2012) | Under the Tort Claim Act, the immunity standard is different for employees as opposed to the public entity. Generally, an employee is entitled to immunity unless the employee’s conduct “was outside the scope of employment or constituted a crime, actual malice, actual fraud, actual malice or willful misconduct.”
United States v. Taylor (2012) | To establish selective prosecution, the defendant must “provide evidence that persons similarly situated have not been prosecuted” and that “the decision to prosecute was made on the basis of an unjustifiable standard, such as race, religion, or some other arbitrary factor.”
Alfano v. Schaud (2013) | Summary judgment upheld because dispatcher’s tape verified officer’s timeline of an incident where a motorist claimed unlawful detention.
Luna v. Lakewood (2013) | Summary judgment upheld because absent overt signs of intoxication, the decision to give or not give a Breathalyzer test is qualifies for law enforcement immunity. Further, absent overt signs of intoxication, the “state created danger” doctrine under federal law does not apply.
Calm Development v. Allendale (2014) | A public entity is not liable for injury caused by the issuance, denial, suspension or revocation of or by the failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization.
Desiervo v. Elmwood Park (2014) | Summary judgment upheld in favor of police and ambulance corps because plaintiff failed to show any evidence that the actions or inactions of the first responders could be considered “wanton or wilful” negligence.
Portman v. Spring Lake (2014) | The Summary Judgement in this case was appropriate because no reasonable jury can find that a one-half inch height differential can give rise to a substantial risk of injury as this term is to be applied under the Tort Claims Act.
Giordano v. Hillsdale (2014) | Summary judgment upheld because no reasonable jury can find the existence of some dirt and pebbles on a curb cut can give rise to a substantial risk of injury.
NJ Manufacturers v. Rutherford FD (2014) | An auto PIP carrier is barred from subrogating against a governmental entity subject to Title 59.
Plumhoff v. Rickard (2014) | Officer was justified using deadly force to terminate a high-speed chase.
Nappi v. Secaucus (2015) | Summary judgement upheld that town entitled to snow removal immunity even when some snow is plowed onto the sidewalk.
Wilson v. East Rutherford (2015) | Town entitled to summery judgment in case where police officer was responding to an emergency struck pedestrian who was crossing the street in front of a bus away from the cross walk.
Morillo v. Monmouth (2015) | When a plaintiff asserts that he or she was unlawfully arrested, an officer can defend such a claim by establishing either that he or she acted with probable cause, or, even if probable cause did not exist, that a reasonable police officer could have believed in its existence.
Stair v. NJ Transit (2015) | Inherently, snow removal leaves slippery residues and common law snow removal immunity is meant to protect property owners including public entities from endless arguments over the adequacy of snow removal activities.
Guerra v. Lyndhurst (2015) | The clearly visible location of the playground equipment at the bottom of a slope that plaintiff chose to use for snow tubing did not render the park dangerous property within the meaning of the statute.
DiMatteo v. East Brunswick (2015) | Site plan approval by the Planning Board is sufficient to trigger design immunity.
Shilinsky v. Ridgefield (2016) | “Roadways are intended for vehicle use and it is not palpably unreasonable not to repair a depression that a car would harmlessly pass over, to prevent the tripping of a pedestrian who legally could not cross there. Public entities do not have the ability or resources to remove all [roadway] dangers peculiar to pedestrians.”
Lambert v. Travelers (2016) | Notwithstanding the auto no fault law, when an employee is injured in an auto accident, the employee may sue a third party and the WC insurer has subrogation rights to the recovery.
Mignano v. Sullivan (2016) | Public Entities have immunity for injuries allegedly caused by mistakes in issuing a license or approval.
Scafidi v Lyndhurst (2018) | A summary judgment dismissing a trip and fall claim from a pedestrian getting out of a car was upheld because a pothole in a street is not subject to the same standard as a parking lot or a crosswalk.
Aupperle v. North Wildwood (2019) | In addition to the Title 59 immunities, a lifeguard is also eligible for the immunities under the Good Seminarian Act.
Marra v. Hopatcong (2019) | Plaintiff’s motion to file a late notice was denied because plaintiff failed to establish extraordinary circumstances in accordance with the TCA.
Smith v North Plainfield (2021) | Unimproved public property immunity is “absolute” regardless of whether a particular condition on that property is dangerous.
Personal Liability Decisions
Golaine v. Cardinale (1976): The three necessary preconditions for indemnification under Title 59 are that the public official was acting in a matter in which the municipality has an interest, the officer was acting in the discharge of a duty imposed or authorized by law, and that the officer was acting in good faith.
Centennial Land & Development v. Medford Township (1979): Absolute Immunity (as opposed to qualified immunity) applies to members of Planning and Zoning Boards engaged in quasi-judicial activity.
Anastasio v. West Orange Planning Board (1986): Board members are eligible for absolute immunity even when they ignore a court order to grant an approval.
Dowson v. Lodi (1986): No workers’ compensation coverage for injury sustained while playing softball because there was no benefit to the town beyond morale.
Palmentieri v. Atlantic City (1988): Council cannot indemnify a Council Member for allegedly derogatory comments made at a rally organized by a citizens action committee because speaking at this rally was not within the scope of the Council Member’s duty. In 2000, Palmentieri was effectively overturned in Loigmann v. Monmouth County (see below).
Lopez v. Elizabeth (1991): High level discretionary policy decisions whether to burden the taxpayers to furnish equipment, material, facilities, personnel or services are absolutely immune and operational governmental decisions to devote existing resources to one activity at the expense of another are immune unless palpably unreasonable.
SL Industries v. American Motorists (1992): An insurer has no duty to reimburse an insured for defense costs incurred before the insured reports the claim.
Crank v. Palermo (1999): A Housing Authority Commissioner on HA business who was injured while riding as a passenger in a HA-owned vehicle cannot sue the HA for injuries sustained in that accident because a Commissioner is considered as an employee covered by Workers’ Compensation and therefore subject to the sole recourse rule.
Loigmann v. Monmouth County (2000): By using the word “may” in a applicable Title 59 provision, the legislature left the decision to indemnify or not indemnify to the governing body of a “local unit of government” and the courts will not usually second guess that decision. Loigmann effectively overturns Palmentiere v. Atlantic City (1988). However, note that this decision does not apply to state and BOE officials/employees because the Title 59 indemnification provisions for them use the word “shall”
Hopkins v. Gloucester City (2003): Immunity does not attach to actions taken with actual malice.
Re: Zisa (2008): Following the advice of the municipal attorney on an ethics matter provides limited safe harbor.
State v. Lake (2009): A 5 year jail sentence was upheld for a Mayor who offered his opponent a job if the opponent dropped out of Mayor’s race.
Donato & Calogero v. Moldow (2005): The operator of an electronic community bulletin board is not liable for defamatory messages posted by others.
Rosenblatt v. Camilla (2012): Appellate Court threw out a defamation case brought by a Council Member because it failed to meet the high standard in Sullivan v NY Times.
Zirkle v. Fairfield (2015): Council has the right but not the duty to defend a member of the governing body.
Election Law Enforcement v. James (2015): The outstanding balance in an election fund cannot be used for legal fees associated with a possible criminal matter.
McCurrie v. Kearney (2002): A council’s discretion to defend and indemnify its clerk under NJSA 40A:8-134.1 is broader than its duty to do so.
Trotta v. Bogota (2016): The destruction of trees is regrettable, and the plaintiffs felt that the town acted underhandedly. Nevertheless, even a bad decision is not an unconstitutional decision. This case is an excellent discussion of current controlling law on local squabbles.
Protecting Children Decisions
J.H. v. Mercer County Youth Detention Center (2007) | The Child Sexual Abuse Act supersedes Title 59 and imposes potential liability for failure to protect juveniles entrusted in the care of a public entity.
S.P. v. Newark (2012) | Absent knowledge of a restraining order or similar factors, the decision to make an arrest under the Prevention of Domestic Violence Act is eligible for law enforcement immunity under the Tort Claims Act.
Schmotzer v. Rutgers (2017) | The statute of limitations is longer for victims of sexual abuse that are under 18 years old. (Note: The statutes of limitations for sexual molestation was extended in 2019 under S-477)
L.E. v. Plainfield BOE (2018) | Schools have a duty to protect children from sexual molestation and are not eligible for law enforcement immunity under Title 59.
G.A.H. v. K.G.G. (2019) | The NJ Supreme ruled that no reasonable factfinder could conclude that the defendant ambulance driver knew or had reason to know that the molester, a fellow employee, was engaged in a sexual relationship with a minor and therefore there was no reason for defendant employee to make a report to their employer. The court declined to address the issue of whether an ambulance driver has a legal duty to report a co-worker’s illegal sexual relationship with a minor. Therefore, the law is unsettled on this basic question.
Public Officials & Employment Practices Decisions
Lehmann v. Toys R Us (1993) | Employer liable for sexual harrassment committed by a supervisor because of the lack of an effective anti-harrassment program.
Mancini v. Teaneck (2002) | Sexual harassment suits subject to the continuous trigger rule.
Hernandez v. Montville BOE (2002) | The trial judge should be very cautious about the overturning the jury’s verdict in CEPA cases.
Gaines v. Bellino (2002) | An employer is responsible for sexual haressment unless there is an effective anti-harassment progam in place.
Nardello v. Voorhees (2005) | Even minor incidents must be considered when determining if there is a pattern of retaliation in a CEPA case.
Maimone v. Atlantic City (2006) | Involuntary transfer out of the detective bureau can be considered as retaliation.
Cutler v. Dorn (2008) | Jokes based on an employee’s religion create a hostile work environment actionable under LAD even if the employee didn’t complain at the time.
Groslinger v. Wyckoff (2009) | Summary judgment affirmed because of the Township’s prompt and consistent enforcement of its personnel policies.
Valentino v. Woodcliff Lake (2011) | Summary judgement affirmed because the employer’s actions were not of the type that would compel a reasonable employee to resign.
Winters v. North Hudson Regional Fire (2012) | Employees who lose with civil service cannot also sue under CEPA.
Farneski v. Hunterdon County (2013) | In a CEPA case, the Court must examine each discrete act to determine whether that act is time barred.
Vaticano v. Edison (2013) | Employees must show competent evidence connecting political activity and an adverse employment action to claim political retaliation.
Hahn v. Edison (2013) | In CEPA cases, employees must establish that the offensive activity poses a threat of public harm, not merely private harm only to the aggrieved employee.
Buonanno v. Elmwood Park (2014) | The elimination of the plaintiff’s position was improper because a council member who had a conflict of interest failed to recuse from the deliberations and vote.
Dunkley v. Coraluzza Petroleum (2014) | Summary judgement affirmed because employer had an anti-harassment program that met the standard in Lehmann and employer acted promptly when the plaintiff reported harassment.
Kownacki v. Saddle Brook BOE (2014) | In a CEPA case, the statute of limitations tolls after one year from the last alleged event that could be actionable under CEPA.
Urbanski v. Edison (2014) | Filing a CEPA case bars filing a LAD case for the same incidents.
Aguas v. New Jersey (2015) | The employer may assert as an affirmative defense that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided,” provided that the employer has not taken an adverse tangible employment action against the plaintiff employee.
Sauter v Colts Neck Volunteer Fire Company (2017) | A volunteer firefighter is not an employee for purposes of the Conscientious Employee Protection Act (CEPA).
Workers’ Compensation Decisions
Kossack v. Bloomfield (1960) | Police officer injured at home cleaning his service weapon is covered by Workers Compensation.
Abdullah v. Thomas (1983) | Established the formula used to reduce an award when the injured employee received a previous award involving a similar injury.
Dowson v. Lodi (1986) | A volunteer firefighter who was injured while playing on the Department’s softball team is not covered for WC because the game did not produce a benefit for the Department beyond morale.
Mabee v. Borden (1998) | The sole recourse rule does not apply if the employer directs a violation of safety rules that result in a “virtual certainly” that employees will be injured.
Schmidt v. Smith (1998) | The employers’ liability section of a workers’ compensation policy covers claims for workplace sexual harassment where the harassment results in physical manifestation of bodily injury (i.e. stress).
Crank v. Palermo (1999) | A Housing Authority Commissioner on HA business who was injured while riding as a passenger in a HA owned vehicle cannot sue the HA for injuries sustained in that accident because the Commissioner is considered as an employee covered by Workers’ Compensation and therefore subject to the sole recourse rule.
Capano v. Bound Brook Relief and Fire Company (2001) | A 93-year-old life member of a Fire Company is entitled to compensation when he fell in the fire house while putting a log into a fire place.
Peterson v. Alpine (2001) | Utilities share responsibility for police officer workers compensation.
Jumpp v. Ventnor (2003) | A municipal water department operator is not covered by Workers’ compensation when he stopped along his route to pick up his personal mail because this is more than a minor deviation.
Lindquest v. Jersey City (2003) | A career fire fighter with emphysema is entitled to compensation even though he was an extensive smoker and science is not able to clearly establish causation.
Wasik v. Bergenfield (2003) | The instigator of horseplay can also be covered by workers’ compensation so long as the horsing around was neither extensive nor serious.
Potter v. Jersey City (2012) | The 48 hour period to report a hernia does not apply to inguinal hernias.
Hersh v. Morris County (2012) | Upholds and clarifies the going and coming rule concerning when workers’ compensation coverage begins and ends.
Tumolo v. Seaside (2013) | A “travel-time” exception allows portal-to-portal coverage for employees paid for travel time to and from a distant job site, or using an employer-authorized vehicle for travel time to and from a distant job site. Further, “travel by a policeman, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency, shall be deemed to be in the course of employment.
Lambert v. Travelers (2016) | Not withstanding the auto no-fault law, when an employee is injured in an auto accident, the employee may sue a third party and the WC insurer has subrogation rights to the recovery.
Kocanowski v Bridgewater (2017) | Although a volunteer firefighter is entitled to temporary benefits at the maximum rate, there first must be an entitlement by the volunteer to the payment of temporary disability benefits. That payment depends on proof of lost wages.
Minter v. Mattson (2018) | Employee who was required to report to work during a snow storm was covered during commute even though was reporting to normal work site.
NJ Transit v. Sanchez (2018) | The fact that the employee elected the verbal threshold in a personal auto policy does not bar the employer from a subrogation recovery in a workers’ compensation case against the auto insurance carrier.
Martin v. Newark BOE (2019) | An employer is not required to continue paying for Opioids after the injured employee reaches maximum medical improvement (MMI).
Hager v. MK Construction (2020) | An employer and its workers’ compensation carrier are responsible for reimbursing an employee for medical marijuana.
Municipal Excess Liability Joint Insurance Fund
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Phone: 201.881.7632
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