• Tort Claims Act Subordinated To Statutory and Constitutional Claims
  • December 21, 2009 | Author: Paul C. Johnson
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Cherry Hill Office
  • The New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:1-1, et. seq., establishes procedural and substantive requirements for pursuing tort claims against a New Jersey public entity. The Tort Claims Act begins with a sweeping declaration of purpose, proclaiming:

    [I]t is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration. N.J.S.A. 59:1-2

    One of the "fair and uniform" provisions established by the TCA is a 90-day notice provision that requires a potential claimant to notify a public entity and/or public employee of a potential claim within 90 days of the date of the injury. The Legislature included this notice provision to provide opportunities for a public entity to promptly resolve a claim, to adequately investigate a claim, and to quickly correct conditions or practices giving rise to the claim and to be aware of potential liability. Beauchamp v. Amedio, 164 N.J. 111, 121-122 (2000).

    For several years, the courts have chipped away at the mandatory nature of the 90-day notice requirement, carving out exceptional situations to limit or restrict the notice requirement. Recently, the New Jersey Supreme Court excavated a chasm to separate the notice requirements of the Tort Claims Act from any constitutional claims or any statutory claims. Owens v. Feigin, 194 N.J. 607 (2008). The Court's rationale in Owens suggests that the 90-day notice requirement of the Tort Claims Act applies only to common law negligence claims.

    In 1988, the New Jersey Supreme Court began chipping away at the 90-day notice requirement for statutory remedial claims when it found that a plaintiff pursuing claims under the New Jersey Law Against Discrimination ("LAD") did not have to comply with the 90-day notice provisions of the TCA. Fuchilla v. Layman, 109 N.J. 319, cert. denied 488 U.S. 826 (1988).

    In 2003, the Third Circuit predicted that New Jersey courts would not apply the 90-day notice provisions of the TCA to whistleblower claims under the Conscientious Employee Protection Act ("CEPA"). Brennan v. Norton, 350 F.3d 399 (3rd Cir. 2003). Sure enough, in 2007, the prediction of the Third Circuit began to come true when the Law Division held that the 90-day notice provisions of the TCA did not apply to CEPA claims. Lakes v. Brigantine, 396 N.J.Super. 65 (Law Div. 2007). The New Jersey Appellate Court has not yet addressed the interplay between CEPA and the notice provisions of the TCA.
    From a constitutional perspective, the New Jersey Supreme Court observed that state and federal constitutional rights superseded any statutory limitations on actions. Velez v. City of Jersey City, 180 N.J. 284 (2004). The 90-day notice provision which, in effect, can act as a statute of limitations, would not apply when state and federal constitutional claims were at issue.

    The Supreme Court in Owens began its analysis by looking at the specific language of the New Jersey Civil Rights Act ("CRA"), N.J.S.A. 10:6-1, et. seq., which the Legislature adopted in 2004. The Court cited the "broad purpose" of the CRA to assure "a state law cause of action for violations of state and federal constitutional rights." The CRA provides a state law remedy for alleged violations of state or federal constitutional rights. The CRA permits an individual to file an action in the Superior Court of New Jersey with a right to request a jury trial for any alleged violations of state or federal constitutional rights. According to the Court, the CRA does not contain any other procedural requirements in order to pursue these constitutional claims.

    The Court did not elect to read the CRA in conjunction with the TCA. Rather, the Court observed that it was not aware of any other statutory causes of action being subject to the notice provisions or other procedural requirements of the TCA. Specifically, the court noted, "[I]n the few cases involving statutory claims against public entities where the TCA's requirements were in issue, those requirements were found to be inapplicable." These other cases did not establish a bright line rule to ignore the procedural requirements of the TCA for all statutory causes of action. Moreover, the Supreme Court in Owens likewise does not go that far in its language. However, by its arguments and reasoning, the Supreme Court is certainly leading us down the road towards such a bright line rule.

    Ultimately, the Owens Court restricted its holding to the express terms of the CRA, noting the "the Legislature would have spoken expressly on the subject had it intended that the TCA's notice requirement serve as a prerequisite to a CRA cause of action." The Court concluded that, "In light of the broad remedial purpose of the CRA, and absent any legislative expression to the contrary, we are unconvinced that the Legislature chose to condition the rectifying of an infringement on an individual's constitutional rights, or of injurious discriminatory conduct, on satisfaction of the TCA's notice of claim requirement."

    The Court's rationale places the onus on the Legislature to specifically refer to and incorporate the TCA procedural requirements into any statute that creates substantive remedial rights or claims against public entities. This approach appears to judicially restrict the Legislature's intent to create procedural notice requirements for all potential negligence claims against public entities in order to allow for early resolution and investigation of claims and the prompt correction of potentially violative practices or conditions. Rather than electing to read the procedural requirements of the TCA in parie materia with other substantive remedial statutes, the Court appears to require a specific inclusionary reference to the TCA in order for its procedural provisions to apply. In light of this decision, it would be difficult to successfully argue that the 90-day notice provisions of the TCA apply to claims asserted against public entities under any remedial statute in New Jersey.