New Jersey's Torts Claims Act: How the Government Can Avoid Paying for its Mistakes
Before expending the time and money suing the government for your injuries it may well have caused, citizens should understand why their ability to prevail against the government in New Jersey courts is limited. Although decisions or acts by public entities often harm others, New Jersey's Torts Claims Act (TCA) limits the tort liability of public entities by expressly providing specific immunities. N.J.S.A. 59:1-1 et seq.
This guide addresses two of the specific immunities from tort liability that the TCA affords public entities in New Jersey. First, under N.J.S.A.59:4-6, public entities are immune from tort liability for injuries due to the design or plan in the construction of improvement of public property. Second, under N.J.S.A. 59:2-3, public entities are generally immune from liability for injuries resulting from a discretionary decision or act. However, these two specific immunities protect a public entity against tort liability only if the public entity meets certain statutory requirements.
The Torts Claims Act provides immunity for any injury caused by a plan or design of public property that has been approved by an authorized body. N.J.S.A.59:4-6. Based on research of key cases analyzing and applying N.J.S.A. 59:4-6, it is clear that New Jersey courts have afforded public entities design immunity only when there has been adequate evidence that the public entity >approved the general issue or feature in question that is the subject of a plaintiff’s complaint. As the New Jersey Supreme Court stated in one case: “[a]pplication of plan-or-design immunity turns on whether the public entity has approved the feature in question so as to immunize it from challenge." Manna, supra at 353 (emphasis added).
New Jersey courts have consistently held that approval of the feature in question means approval of the general issue or feature about which plaintiff complains. In Thompson, the New Jersey Supreme Court applied this standard to determine that the public entity did not consider the issue or condition about which plaintiff complained. In that case, the Court did not grant the Housing Authority design immunity due to lack of any evidence that the general issue of fire safety was considered. The Thompson Court explained: “Of course, we do not intend or mean that a public entity must necessarily show that a feature of the plans (such as smoke detectors) was specifically considered and rejected. If the plans sufficiently embrace the condition that is the subject matter of plaintiff's claim, they should be given pre-emptive effect; if they do not, the defense of plan or design immunity must fall." Id.
However in Manna, although the Supreme Court cited and applied its holding in Thompson, it granted design immunity to the DOT. In Manna, the plaintiff alleged that the lack of traction on the bridge was a dangerous condition caused by the state’s failure to install metal studs on the bridge deck. The plaintiff further argued that state liability was not immunized under N.J.S.A. 59:4-6 because the bridge plan approval did not specifically consider installation of metal studs. However, the Court disagreed with plaintiff and held that the state was required only to provide evidence that it considered design of the bridge’s surface and the general issue of traction. Id. at 357. Since the state’s original plans for the surface of the steel deck specifically included a series of metal parallagrams designed to improve traction, there was clear evidence that the state considered the general issue of traction. Accordingly, N.J.S.A. 59:4-6 immunized the state from liability.
Therefore, for plan-or-design immunity to protect a public entity from tort liability, there must be evidence that the Freeholders approved the feature in question. Evidence is sufficient for design-and-plan immunity to apply if it establishes that, in its plan or design, a public entity actually considered and approved the feature in question under its discretionary authority. As discussed above, in Manna, the feature in question was the general issue of traction on the bridge. In that case, the Court held that there was sufficient evidence that the state considered the general issue of traction on the basis of an affidavit from a regional director of the DOT and a statement by plaintiff’s own expert.
In Daniel v. State of New Jersey, the Court held that the state failed to offer sufficient evidence that it approved the feature in question. In that case, the feature in question that was the subject of plaintiff’s complaint was the low height of a highway median curb, which plaintiff alleges caused cars that collided with the median to project onto the opposite lane into oncoming traffic. In its defense, the state raised plan-or-design immunity and offered testimony of an Assistant Commissioner of Construction and Maintenance in the DOT. In that testimony, the DOT Assistant Commissioner claimed that the 1970 project on this roadway involved a deliberate high level decision to bank the roadway and decrease the height of the median. However, in denying the state’s summary judgment motion, the Daniel court held that the state failed to meet its evidentiary bu rden where none of its project documents specifically referred to such a deliberate decision.
Therefore, to establish that it addressed the feature in question, a public entity must offer more than affidavits concerning past meetings or design plans that are silent or vague about the feature in question. Rather, sufficient evidence requires that the feature in question be addressed in records such as project documents, meeting minutes, resolutions, or written instructions.
HIGH LEVEL DISCRETIONARY DECISIONS
Under the TCA, a public entity is generally immune from injury resulting from its exercise of discretion. The New Jersey District Court, quoting the United States Supreme Court, stated that "where there is room for policy judgment and decision there is discretion." Berel Co. v. Sencit F/G McKinley Associates, 710 F. Supp. 530, 542-543 (D.N.J. 1989) (citing Dalehite v. United States, 346 U.S. 15, 36 (1953)). Discretionary decisions of a public entity are given immunity to protect hard but necessary governmental choices. Lopez v. City of Elizabeth, 245 N.J. Super. 153, 164 (App. Div. 1991). For the same reason, the TCA does not extend immunity to a public entity’s operational decisions or ministerial acts. Therefore, various provisions in the TCA afford public entities immunity from tort liability with regard to different levels of discretionary policy decisions.
N.J.S.A. 59:2-3(a) immunizes high-level policy and planning decisions “involving the balancing of competing considerations." Costa, 83 N.J. at 55. High-level, discretionary policy and planning determinations include such decisions as ‘whether to utilize the Department’s resources and expend funds for the maintenance of [a] road; whether to repair the road by patching or resurfacing; [and] what roads should be repaired …" Id. (quoting Costa v. Josey, 79 N.J. 535, 545 (1979)). As such, to ensure that its discretionary policy decision is immune from tort liability, the County should produce an evidentiary record sufficient under N.J.S.A. 59:2-3(a).
Evidence is sufficient under this provision if it demonstrative of “decisions involving the balancing of competing considerations." Costa, 83 N.J. at 55. Furthermore, “[s]uch decisions have been traditionally entrusted to coordinate branches of government, and courts, utilizing standard tort principles, are ill-equipped to interfere with them. These discretionary determinations likely include such decisions as ‘whether to utilize the Department’s resources and expend funds for the maintenance of [a] road; whether to repair the road by patching or resurfacing; [and] what roads should be repaired …" Id. (quoting Costa v. Josey, 79 N.J. 535, 545 (1979)). N.J.S.A. 59:2-3(a) only protects the basic policy determinations behind a high-level policy decision. Id.
Fundamental to subsection (a) is that the subsequent operational decisions that must be made in order to execute high-level planning decisions are not protected under N.J.S.A. 49:2-3(a). Costa, 83 N.J. at 58. For example, while subsection (a) may protect the decision by a high-level official for a public entity to expend funds and resurface a road, subsection (a) will not protect a subsequent decision by that same official to approve the engineering plans intended to execute the original decision. Id. at 59-60.
As stated, in addition to proving that a decision constitutes a high-level policy decision, a public entity must prove that a public official actually exercised discretion in arriving at that decision. The New Jersey District Court, quoting the United States Supreme Court, stated that "where there is room for policy judgment and decision there is discretion." Berel Co. v. Sencit F/G McKinley Associates, 710 F. Supp. 530, 542-543 (D.N.J. 1989) (citing Dalehite v. United States, 346 U.S. 15, 36 (1953)).
Notably, in Cobb v. Waddington, 154 N.J. Super. 11, 17 (App. Div. 1977), plaintiff alleged that his injuries were caused by the particular placement and type of barricades on the highway. Specifically, plaintiff claimed that the DOT should have used barricades designed as Type IIIC and that the use of Type IIIA constituted negligence under the circumstances and proximately contributed to plaintiff’s injuries. The court, however, granted the DOT’s motion for summary judgment. It decided that the design of a particular type of barricade and its configuration on the highway “involved the weighing of competing considerations to serve the provisional purpose" and “reflected the exercise of judgment and discretion on the part of a public entity within the sense of N.J.S.A. 59:2-3(a)…" Id. at 16.