Presented by the Public Entity and Civil Rights Litigation Practice Group

Legal Updates for NJ Public Entity & Civil Rights - August 2018

Today’s Topic – The New Jersey Tort Claims Act

By Matthew J. Behr, Esq.*

In this first case of Banks v. Gunderson, 2018 N.J. Super. Unpub. LEXIS 1253 (May 30, 2018), the plaintiff was injured by a car while walking on a Camden County road in Winslow Township. The plaintiff alleged negligence against the Township and County because he was walking in an area that did not have a sidewalk or an adequately paved shoulder. The plaintiff further alleged that he had to walk in the lane of traffic in order to avoid stepping into a puddle, because there was not a sidewalk. The theory was that the Township/County had a duty to have a sidewalk where his accident occurred.

The Appellate Division affirmed the trial court’s granting of summary judgment. The discovery revealed that in 1986, Camden County approved plans for construction of storm drainage in the area where the accident occurred. The plans included that a portion of the road would not include sidewalks. The plaintiff’s expert opined that the failure to have a shoulder or sidewalk, together with the presence of a water filled pothole, created a dangerous condition. He further faulted the County for not repairing the pothole, despite work orders to repair potholes in unspecified locations along the road in question.

The court granted summary judgment relying upon various different immunities pursuant to the Tort Claims Act. First, the court invoked N.J.S.A. 59:2-3, which provide plan or design immunity. Second, the court utilized N.J.S.A. 59:4-6, which are discretionary immunities. Third, the court held that the plaintiff could not demonstrate a dangerous condition pursuant to N.J.S.A. 59:4-2. Three different provisions of the Tort Claims Act provided immunity to both the Township and the County despite the plaintiff’s serious injuries.

The second case, Feltynowski v. Kaufman, 2018 N.J. Super. Unpub. LEXIS 1538 (June 27, 2018), addressed a late notice of tort claim. The plaintiff filed a medical malpractice action against the defendant approximately two years after the alleged malpractice. The defendant filed an answer and asserted he was an employee of Rutgers the State University and, therefore, a public employee.

At the time of the initial consultation and thereafter during treatment with the plaintiff, the defendant’s status as an employee was clear because of the initial form she signed, the sign on his office door, the business card he gave the claimant and the lab coat he wore. As a result, the court affirmed summary judgment and denied the plaintiff’s request to file a late notice of tort claims based on exceptional circumstances. The court held that the plaintiff had notice that the defendant was a public employee and never filed a tort claims notice; therefore, her claims were barred.

However, one important aspect of the case was that the trial court permitted discovery to occur as to the issue of whether the defendant was a public employee. Thus, even if the issue is clear to the defendant that he or she is a public employee and subject to the Tort Claims Act, a court may allow discovery into the issue, and a public employee defendant may not be dismissed early in the case.

The third case is Pierre v. Irvington Bd. of Educ., 2018 N.J. Super. Unpub. LEXIS 804 (April 6, 2018). In Pierre, the plaintiff was an invitee of the Irvington Public Library when he went outside to tell students to stop throwing snowballs. The students did not stop but, rather, assaulted the the plaintiff. The defendant relied upon N.J.S.A. 59:5-4 of the Tort Claims Act, which provides immunity to public entities for failure to provide police protection or for failure to provide sufficient police protection service. The trial court granted summary judgment, and the Appellate Division affirmed that decision.

The final case to be discussed is Archacavage v. North Burlington Reg’l Sch. Dist., 2018 N.J. Super. Unpub. LEXIS 1036 (May 3, 2018) in which the Appellate Division reversed the granting of summary judgment to the public entity. This case should make all public entities nervous as to the court’s interpretation of what is “palpably unreasonable” pursuant to the Tort Claims Act.

The plaintiff attended a play at the high school. Prior to the show, a group of volunteer parents utilized an empty coat rack to keep parents from seeing the students go back and forth and to keep parents and guests out. The volunteers would place a cloth over the coat rack with a sheet that reached the ground. The volunteer parents were aware that parents and others would simply go around the rack.

The plaintiff was going back stage and saw others going around the coat rack. As she proceeded around the coat rack, her toe got caught on a wheel of the coat rack and she fell. The plaintiff alleged that there was no warning sign present and the wheel was completely covered by the sheet. The plaintiff was seriously injured, including fractures that later required an open-reduction surgery. The plaintiff’s expert concluded that the coat rack presented a hazardous condition in violation of the BOCA Code.

The Appellate Division held that a factual issue existed as to whether the covered coat rack was a dangerous condition pursuant to the Tort Claims Act. The court found that the cloth hid the coat rack’s protruding wheels from public view. As to the issue of “palpably unreasonable,” the court found that subsequent measures taken by the school to dissuade people from going backstage—which did not involve partially blocking the hall—can be considered for purposes of opposing a summary judgment motion and therefore reversed. Thus, a coat rack that had a cloth over it to keep people from going backstage was considered “palpably unreasonable,” which permitted the issue to go to a jury. This decision should be viewed as quite troublesome and one in which plaintiffs will surely rely upon in opposing summary judgment motions in the future.

Hopefully, these analyses are helpful when defending tort claims. Always remember that you should consult with your Board Counsel/Solicitor if you have any questions regarding the Tort Claims Act. I am also here to provide any assistance on any legal issue you may have. You can reach me at 856.414.6048 or email me at

*Matthew is a shareholder in our Mt. Laurel, New Jersey office. He can be reached at 856.414.6048 or



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