Decisions
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.