Presented by the Public Entity & Civil Rights Litigation Practice Group

Defending a Public Defender Under the New Jersey Tort Claims Act

The New Jersey Supreme Court recently held that the New Jersey Tort Claims Act applies to legal malpractice claims made against public defenders. However, plaintiffs must surmount the verbal threshold for damages for pain and suffering.

In Nieves v. Officer of the Public Defender, (A-69-18) (082262), the plaintiff was convicted for criminal charges related to a sexual assault. At his criminal trial, he had been represented by a public defender. He was granted post-conviction relief based on the ineffective assistance of his counsel during his trial. Later, DNA evidence showed that the plaintiff was not the perpetrator, and all criminal charges were dismissed against him.

The plaintiff filed a lawsuit against the Public Defender’s Office and the public defender himself for legal malpractice. The issue before the New Jersey Supreme Court was whether the New Jersey Tort Claims Act applied to the plaintiff’s legal malpractice claim against the Public Defender’s Officer and the public defender. The New Jersey Supreme Court answered yes to that question.

In reaching its finding, the court analyzed the issue against the language and the developed case law surrounding the Tort Claims Act. The court found that public defenders in New Jersey have been held to be public employees, pursuant to various statutes and case law. The court also found that the Act contains no express exception for public defenders to not be included within its protections. Therefore, the court held that public defenders are public employees and enjoy the immunities, defenses and limitation on tort claims against public employees in legal malpractice actions.

The next issue the court had to address was whether the plaintiff was required to surmount the verbal threshold since he only alleged a loss-of-liberty claim. The court held that the loss-of-liberty damages claim was subject to the Tort Claims Act. It is undisputed that emotional distress is considered pain and suffering under the Act if the injury can meet the Act’s verbal threshold requirements. However, here, the plaintiff did not meet those requirements. As a result, summary judgment was appropriate, and the court affirmed the Appellate Division’s decision.

The Tort Claims Act is a powerful defense for New Jersey public entities and public employees. It is important to consult an attorney regarding all available defenses under the Tort Claims Act if your public entity or your public employee has been sued.

Please do not hesitate to contact me to discuss any issue under the Tort Claims Act. I can be reached at 856-414-6048 or you can email me any question at



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