SENATE, No. 872

STATE OF NEW JERSEY

INTRODUCED FEBRUARY 26, 1996

By Senator CARDINALE

An Act concerning civil actions against public entities and public employees, amending parts of the statutory law and supplementing Title 59 of the New Jersey Statutes.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. Section 11 of P.L.1989, c.300 (C.45:9-19.11) is amended to read as follows:

    11. A member of the State Board of Medical Examiners or the Medical Practitioner Review Panel, the medical director to the State Board of Medical Examiners, the Attorney General, any medical consultant to the board or review panel and any employee of the board, Attorney General or review panel shall not be liable in any action for damages to any person for any action taken or recommendation made by him within the scope of his function as a member, consultant or employee, if the action or recommendation was [taken or] made [without malice. The Attorney General shall defend the person in any civil suit and the State shall provide indemnification for any damages awarded] in good faith. This section is not intended to and shall not be construed to immunize anyone for any acts which constitute actual malice, actual fraud, the commission of a crime or willful misconduct.

(cf: P.L.1989, c.300, s.11)

    2. R.S.48:12-152 is amended to read as follows:

    48:12-152. Trespassing on tracks prohibited; [contributory negligence;]injury on tracks or moving car; crossings.

    It shall not be lawful for any person other than those connected with or employed upon the railroad to walk along the tracks of any railroad except when the same shall be laid upon a public highway.

    Any person injured [by an engine or car] while walking, standing or playing on a railroad or by jumping on or off a car while in motion shall [be deemed to have contributed to the injury sustained and shall] not recover therefor any damages from the company owning or operating the railroad. This section shall not apply to the crossing of a railroad by a person at any lawful public or private crossing.

(cf: R.S.48:12-152)

    3. N.J.S.59:1-3 is amended to read as follows:

    59:1-3. Definitions.

    As used in this subtitle:

    "Employee" includes an officer, employee, or servant, whether or not compensated or part-time, who is authorized to perform any act or service; provided, however, that the term does not include an independent contractor.

    "Employment" includes office; position; employment; or service, under the supervision of the Palisades Interstate Park Commission, in a volunteer program in that part of the Palisades Interstate Park located in New Jersey, or as an emergency management volunteer.

    "Enactment" includes a constitutional provision, statute, executive order, ordinance, resolution or regulation.

    "Injury" means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that would be actionable if inflicted by a private person.

    "Law" includes enactments and also the decisional law applicable within this State as determined and declared from time to time by the courts of this State and of the United States.

    "Public employee" means an employee of a public entity. The term "public employee" includes any individual duly appointed by the Public Defender to act as a Deputy Public Defender in designated cases, and [includes] a person participating, under the supervision of the Palisades Interstate Park Commission, in a volunteer program in that part of the Palisades Interstate Park located in New Jersey and any person retained by the public defender to serve as an arbitrator, mediator, or in such similar capacity. "Public employee" does not include any independent contractors or other individuals, agencies, or entities not established in or employed by the Office of the Public Defender designated to provide protection and advocacy services to indigent mental hospital admittees or persons with a developmental disability as the term is defined in section 3 of P.L.1977, c.82 (C.30:6D-3).

    The term "public employee" does not exclude members of the New Jersey National Guard or organized militia merely because they receive their compensation from the United States of America. For the purposes of the New Jersey Tort Claims Act, a public employee who receives compensation for performing acts or services is, in connection with those services, the employee only of the public entity which pays the compensation to the employee and is not the employee of any other public entity.

    "Public entity" includes the State, [and] any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State. "Public entity" does not include any independent contractors or other individuals, agencies, or entities not established in or employed by the Office of the Public Defender designated to provide protection and advocacy services to indigent mental hospital admittees or persons with a developmental disability as the term is defined in section 3 of P.L.1977, c.82 (C.30:6D-3).

    "State" shall mean the State and any office, department, division, bureau, board, commission or agency of the State, but shall not include any such entity which is statutorily authorized to sue and be sued. "State" also means the Palisades Interstate Park Commission, but only with respect to employees, property and activities within the State of New Jersey. For purposes of chapter 10 and chapter 10A of Title 59, the term "State" shall also mean any member or employee of the State Board of Medical Examiners, the Medical Practitioner Review Panel, the Medical Director to the State Board of Medical Examiners and any medical consultant to the board or review panel.

    "Statute" means an act adopted by the Legislature of this State or by the Congress of the United States.

(cf: P.L.1995, c.383, s.4)

    4. N.J.S.59:1-7 is amended to read as follows:

    59:1-7. Effect of assumption of liability by United States. a. Any waiver of immunity and assumption of liability contained in this act shall not apply in circumstances where liability or responsibility has been or [is hereafter] can be assumed by the United States[, to the extent of such assumption of liability].

    b. Neither a public entity nor a public employee shall be liable on any claim based on activities of the New Jersey National Guard when in Federal status.

(cf: N.J.S.59:1-7)

    5. N.J.S.59:2-2 is amended to read as follows:

    59:2-2. Liability of public entity.

    a. [A] Subject to all of the other provisions of this act, a public entity is liable for injury proximately caused by an act or omission of [a] its public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.

    b. A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.

    c. A public entity shall not be held to a heightened duty of care in connection with any activity related to the operation or provision of

public conveyances or other modes of mass transportation services.

(cf: N.J.S.59:2-2)

    6. N.J.S.59:2-3 is amended to read as follows:

    59:2-3. Discretionary activities.

    a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;

    b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature. For the purposes of this section, judicial action or inaction or actions or inaction of a judicial nature shall be deemed to include the provision of a criminal defense by a public employee acting as a public defender;

    c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

    d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

(cf: N.J.S.59:2-3)

    7. (New section) Neither a public entity nor a public employee shall be liable for an injury arising from any personnel decision, whether negligent or otherwise, relating to any employee, agent or independent contractor. For the purposes of this section personnel decisions include but are not limited to decisions to hire, to promote or to determine work assignment.

    8. N.J.S.59:3-1 is amended to read as follows:

    59:3-1. Generally.

    a. Except as otherwise provided by this act, a public employee is liable for injury caused by his act or omission to the same extent as a private person.

    b. The liability of a public employee established by this act is subject to any immunity of a public employee provided by law and is subject to any defenses that would be available to the public employee if he were a private person.

    c. A public employee is not liable for an injury where a public entity is immune from liability for that injury.

    d. A public employee shall not be held to a heightened duty of care in connection with any activity related to the operation or provision of public conveyances or other modes of mass transportation services.

(cf: P.L.1994, c.49 s.1)

    9. N.J.S 59:3-2 is amended to read as follows:

    59:3-2. Discretionary activities.

    a. A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him;

    b. A public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature. For the purposes of this section, judicial action or inaction or action or inaction of a judicial nature shall be deemed to include the provision of a criminal defense by a public employee acting as a public defender;

    c. A public employee is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

    d. A public employee is not liable for the exercise of discretion when, in the face of competing demands, he determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public employee was palpably unreasonable.

    Nothing in this section shall exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions.

(cf: N.J.S.59:3-2)

    10. N.J.S.59:4-2 is amended to read as follows:

    59:4-2. Liability generally.

    a. [A] Neither a public entity nor a public employee [is] shall be liable for injury caused by a condition of [its] that public entity's property [if] unless the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

    [a.]1. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

    [b.]2. [a] the public entity or the public employee had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

    b. All claims against a public entity or public employee alleging a dangerous condition of public property or otherwise attributable to a condition of public property shall be made exclusively in accordance with the provisions of this section.

    Nothing in this section shall be construed to impose liability upon a public entity or a public employee for a dangerous condition of [its] that public entity's property if the action the entity or employee took to protect against the condition or the failure to take such action was not palpably unreasonable.

(cf: N.J.S.59:4-2)

    11. N.J.S.59:4-6 is amended to read as follows:

    59:4-6. Plan or design immunity.

    a. Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, [either in its original construction or any improvement thereto,]whether such plan or design be for the original construction of the public property, an improvement or alteration thereto, or the betterment or maintenance thereof, where [such] the plan or design has been approved in advance of the construction, [or] improvement, alteration, betterment or maintenance by the Legislature or the governing body of a public entity or some other body or a public employee [exercising discretionary] acting within the scope of his authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.

    b. Neither the public entity nor the public employee shall be liable for the absence of any element or feature from a plan or design if the plan or design has been approved in accordance with subsection a. of this section.

    c. Any delay in the implementation of a plan or design otherwise immunized by subsection a. of this section cannot itself be the basis for liability.

(cf: N.J.S. 9:4-6)

    12. N.J.S.59:4-7 is amended to read as follows:

    59:4-7. Weather conditions; effect on use of [streets and highways] public property--immunity.

    a. Neither a public entity nor a public employee is liable for an injury caused [solely] by the effect of a weather condition on [the use of] streets, [and] highways [of weather conditions] or any other public property.

    b. For purposes of this section, an injury is caused by the effect of a weather condition where but for the weather condition the public

property would not be in a dangerous condition within the meaning of N.J.S.59:4-1.

(cf: N.J.S.59:4-7)

    13. N.J.S.59:4-8 is amended to read as follows:

    59:4-8. Condition of unimproved public property--immunity.

    Neither a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach or other land and any man-made conditions that serve to enhance or preserve the natural characteristics of the property or that function as an integral part of the property or enhance the use for which the property has been designated by the governmental entity.

(cf: N.J.S.59:4-8)

    14. (New section) Immunity for leased property, including property involved in mass transit; jurisdictional agreements.

    Neither a public entity nor a public employee shall be liable for injury caused by a condition of property that is:

    a. leased or loaned by the public entity to another person, company or entity for use in the business or service of providing transportation of persons or freight; or

    b. the subject of a jurisdictional agreement whereby another public entity agrees to maintain the property.

    15. N.J.S.59:5-2 is amended to read as follows:

    59:5-2. Parole or escape of prisoner; injuries between prisoners.

    Neither a public entity nor a public employee is liable for:

    a. An injury resulting from the parole or release of a prisoner or from the terms and conditions of his parole or release or from the revocation of his parole or release.

    b. any injury caused by:

    (1) an escaping or escaped prisoner;

    (2) an escaping or escaped person; or

    (3) a person resisting arrest; or

    (4) a prisoner to self or any other prisoner.

(cf: N.J.S.59:5-2)

    16. N.J.S.59:6-7 is amended to read as follows:

    59:6-7. Escape of person confined; injuries between inmates.

    Neither a public entity nor a public employee is liable for:

    a. [an] any injury suffered by, or any injury to others caused by an escaping or escaped person who has been confined for mental illness or drug dependence;

    b. [an] any injury to self or others so confined caused by any

person who has been confined for mental illness or drug dependence [upon any other person so confined].

(cf: N.J.S.59:6-7)  

    17. N.J.S.59:8-7 is amended to read as follows:

    59:8-7. Place for presentation of claim.

    A claim for damage or injury arising under this act against the State or any of its employees shall be filed either with (1) the Attorney General or (2) the department or agency involved in the alleged wrongful act or omission and if against a public employee shall also be served upon the public employee. A claim for injury or damages arising under this act against a local public entity or any of its employees shall be filed with that entity and if against its employee shall also be served upon that employee.

(cf: N.J.S.59:8-7)

    18. N.J.S.59:8-8 is amended to read as follows:

    59:8-8. Time for presentation of claims.

    A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action. After the expiration of 6 months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:

    a. He failed to file his claim with [the public entity] as required by section 59:8-7 within 90 days of accrual of his claim except as otherwise provided in section 59:8-9; or

    b. Two years have elapsed since the accrual of the claim; or

    c. The claimant or his authorized representative entered into a settlement agreement with respect to the claim.

    Nothing in this section shall prohibit an infant or incompetent person from commencing an action under this act within the time limitations contained herein, after his coming to or being of full age or sane mind.

(cf: P.L.1994, c.49, s.4)

    19. N.J.S 59:9-2 is amended to read as follows:

    59:9-2. Interest and limitations on judgments.

    a. No interest shall accrue prior to the entry of judgment against a public entity or public employee.

    b. No judgment shall be granted against a public entity or public employee on the basis of strict liability, implied warranty or products liability.

    c. No punitive or exemplary damages shall be awarded against a public entity.

    d. No damages shall be awarded against a public entity or public employee for [pain and suffering] non-economic losses resulting from any injury; provided, however, that this limitation on the recovery of damages for [pain and suffering] non-economic losses shall not apply in cases of significant permanent loss of a bodily function, significant permanent disfigurement or dismemberment where the medical treatment expenses are in excess of[$1,000.00] $2,500.00. For purposes of this section, medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service and shall not include the imputed value of services provided by family members.

    e. If a claimant receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tortfeasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any net award against a public entity or public employee recovered by such claimant; provided, however, that nothing in this provision shall be construed to limit the rights of a beneficiary under a life insurance policy. No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee.

    f. (1) No judgment against one or more public entities or public employees shall be entered, either jointly or severally, in favor of a single claimant for a single occurrence for a total amount greater than $750,000.00, including attorney's fees, and where an award for non-economic losses is permissible under subsection d. of this section, no such judgment shall include an award for non-economic losses in a total amount greater than $300,000.00.

    (2) For purposes of this section:

    (a) "Non-economic loss" means any loss which has been or will be incurred by the claimant, other than objectively determinable medical treatment expenses as defined in subsection d. of this section, losses of past, present or future wages, damage to property and attorney fees which have been or will be incurred or recovered by the claimant or his attorney;

    (b) "Occurrence" means an event or accident or series of events or accidents that are closely connected in time and location or in their causation or happening or that arise from the same act or omission or a series of related acts or omissions;

    (c) "Single claimant" means the injured party and any person who asserts a claim, derivative or otherwise, including but not limited to parents, spouses or anyone who sustained a loss or asserts a claim as a consequence of the injury or death of or damage to the property of the person involved in the occurrence.

    (3) If a public entity or public employee is covered, other than by a policy of excess insurance, by liability insurance in excess of the limits contained in this section, the limitation contained herein shall not apply, but any judgment entered on a claim for which there is such insurance coverage shall be reduced to the amount of available insurance coverage. For purposes of this section, excess insurance is defined as any policy of insurance which provides liability coverage only after the insured public entity or public employee has incurred a loss greater than $750,000.00 per claimant per occurrence and only for that part of the loss which exceeds that amount.

    (4) If a judgment is entered against one or more public entities or public employees which exceeds the limits set forth in subsection f. of this section, the judgment shall be reduced to the appropriate limits.

    g. The limitation on judgments against public entities or public employees established herein shall be adjusted every five years, beginning 5 years from the effective date of P.L. , c. (C. ) (now pending before the Legislature as this bill), in accordance and consistent with the average annual change in the Consumer Price Index for all urban consumers in the New York City and Philadelphia areas as reported by the United States Department of Labor for the preceeding five year period. The amount of the adjustment shall be determined by the Treasurer of the State of New Jersey and shall be certified by him to the Governor. The adjusted limitation shall apply to causes of action accruing after the effective date of the adjustment as determined by the Treasurer.

(cf: N.J.S.59:9-2)

    20. N.J.S.59:10-1 is amended to read as follows:

    59:10-1. Indemnification. [If pursuant to the provisions of P.L.1972, c.48 (C.59:10A-1 et seq.) the Attorney General provides for the defense of an employee or former employee,]Regardless of whether the State has provided for the defense of a State employee, the State [shall] may provide indemnification for the State employee only if, in the opinion of the Attorney General, the acts or omissions committed by the employee were committed within the scope of his employment and did not constitute the commission of a crime, actual fraud, actual malice, willful misconduct or an intentional wrong.

    Nothing in this section requires the State to pay for punitive or exemplary damages or damages resulting from the commission of a crime. The State may, however, indemnify a State employee for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the Attorney General, the acts committed by the State employee upon which the damages are based did not constitute actual fraud, actual malice,

willful misconduct, or an intentional wrong.

(cf: P.L.1987, c.340, s.1)

    21. N.J.S.59:10-2 is amended to read as follows:

    59:10-2. Refusal to defend--indemnification. If the Attorney General refuses to provide for the defense or indemnification of a State employee as required by the provisions of P.L.1972, c.48 (C.59:10A-1 et seq.), the employee or former employee of the State shall be entitled to indemnification from the State for any bona fide and reasonable settlement or judgment if [he establishes that] in the opinion of the Attorney General the act or omission upon which the claim or judgment was based occurred within the scope of his employment as an employee of the State and [the State fails to establish that he acted or failed] in the opinion of the Attorney General he did not act or fail to act because of actual fraud, actual malice or willful misconduct or did not commit an intentional wrong. A decision of the Attorney General pursuant to this section shall be deemed a final decision of a state officer, appealable as of right to the Appellate Division in accordance with the Rules of Court and shall be reversed only if that decision is arbitrary and capricious.

    If the State employee establishes that he was entitled to a defense under the provisions of this chapter, the State shall pay or reimburse him [for any bona fide settlement agreements entered into by the employee, and shall pay or reimburse him for any judgments entered against the employee, and shall pay or reimburse him] for all costs of defending the action, including reasonable counsel fees and expenses, together with costs of appeal, if any.

    Nothing in this section requires the State to pay for punitive or exemplary damages or damages resulting from the commission of a crime. The State may indemnify a State employee for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the Attorney General, the acts [committed by the State employee upon which the damages are based] did not constitute actual fraud, actual malice, willful misconduct, or an intentional wrong.

(cf: P.L.1987, c.340, s.2)

    22. Section 1 of P.L.1989, c.77 (C.59:10-2.1) is amended to read as follows:

    1. State officers; reimbursement of costs of defending criminal action related to lawful exercise of official duties on disposition in favor of officer.

    If any criminal action is instituted against any State officer based upon an act or omission of that officer arising out of and directly related to the [lawful] exercise of his official duties or under color of his authority, and that action is dismissed or results in a final disposition in favor of that officer, the State shall reimburse the officer for the cost of defending the action, including reasonable attorney's fees and costs of trial and appeals, only if, in the opinion of the Attorney General, the conduct was in furtherance of the officer's lawful performance of his duties or the lawful exercise of his authority. A decision of the Attorney General pursuant to this section shall be deemed a final decision of a state officer, appealable as of right to the Appellate Division in accordance with the Rules of Court, and shall be reversed only if the decision is arbitrary or capricious.

(cf: P.L.1989, c.77, s.1)

    23. Section 2 of P.L.1989, c.77 (C.59:10-2.2) is amended to read as follows:

    2. A claim for reimbursement shall be filed within the time and in the manner provided for claims for damage or injury under chapter 8 of Title 59 of the New Jersey Statutes, except where the procedure prescribed in that chapter is inconsistent with the nature of a claim resulting from a criminal action. No claim for reimbursement shall be paid unless the claimant first establishes that he complied with the requirements of N.J.S.59:10-3 and allowed the Attorney General the opportunity to arrange for representation at the expense of the State. Furthermore, no claim for reimbursement shall be paid where the Attorney General establishes that representation was offered to the claimant that was not accepted or that the claimant failed to cooperate fully with the Attorney General's defense.

(cf: P.L.1989, c.77, s.2)

    24. N.J.S.59:10-4 is amended to read as follows:

    59:10-4. [Local public entities--authority to indemnify. Local public entities are hereby empowered to indemnify local public employees consistent with the provisions of this act. A local public entity may indemnify an employee of the local public entity for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the governing body of the local public entity, the acts committed by the employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.] Every public entity other than the State shall provide for the defense and indemnification of its employees for claims arising from acts or omissions of its employees within the scope of the performance of their duties as employees. A public employee seeking a defense or indemnification pursuant to this section shall be subject to the same terms and conditions applicable to State employees except that the governing body of the public entity shall act in the stead of the Attorney General.

(cf: P.L.1987, c.340, s.3)

    25. This act shall take effect immediately.

STATEMENT

    This bill proposes various amendments to clarify the Torts Claims Act and related statutes concerning actions against public employees and public entities. The amendments are designed to strike a more appropriate balance between the interests of persons injured as a result of the negligence of public entities or public employees, the interest of public employees in indemnification for and defense against claims arising from acts or omissions within the scope of their duties, and the general public interest in reasonable and responsible allocation of limited public resources.

Revises the Tort Claims Act and related statutes.