When injured as a result of the negligence of a public entity, or because of the actions or inactions of a local or State agency, your ability to obtain damages is much more complicated than you might think.
WHAT ARE PUBLIC ENTITIES, HERE ARE SOME EXAMPLES
The State of New Jersey (ie. State Park, State highway);
A County (ie. County Parks, County Highways, Commissions);
A town or City (ie. City Park, Parking Commission, Townhall); and
Agencies (ie. New Jersey Transit, New Jersey Turnpike Authority).
THE NEW JERSEY TORT CLAIMS ACT
Each state, like New Jersey, maintains “sovereign immunity,” which is based on old English Common Law, whose purpose was to protect the Crown from lawsuits. New Jersey is no different. There is a general immunity from lawsuits, with certain exceptions. Those exceptions are carved out by Statute and Case law.
First of all, a public entity is only liable for injury proximately caused by an act or omission of a public employee within the scope of his/her employment in the same manner and to the same extent as a private individual under like circumstances. NJSA 59:2-2. Meaning, that for a public entity to be responsible for your injuries someone acting as an employee for the public entity did something wrong. An example would be if a New Jersey Transit Bus operator drives his bus appropriately, but because of the actions of someone else, has an accident and you are injured. In this example, New Jersey Transit is not liable for your injuries. Of course, the reverse is true. If the New Jersey Transit Bus failed to stop at a stop sign and collides with oncoming traffic, then you MAY have a right of action (read below for the narrow criteria that must be met to obtain damages from a public entity) against both the New Jersey Transit Bus driver and New Jersey Transit.
This would also apply to injuries sustained from a dangerous condition on a public park or a public right of way (like a sidewalk). In these kinds of cases, the public entity is liable for injury caused by a condition of its property if the plaintiff can establish that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, and that the dangerous condition created a reasonably foreseeable risk of the kind of injury which has incurred and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created a dangerous condition, or
b. a public entity had actual or constructive notice of the dangerous condition (or should have known of a dangerous condition) and had sufficient time prior to the injury to correct the dangerous condition NJSA 59:4-2.
Though this same section of the Act creates an additional exemption where the public entity is not liable if it took action (but where said action can be proven to be palpably reasonable) to protect against dangerous condition. Meaning, that even if you were harmed after the public entity took action, the public entity is not liable if their actions to correct the issue is proven to be palpably reasonable. A good example of this would be a recurring pothole. You know these holes in the pavement that Cities cannot stop from coming back. The City sees a pothole, fills it up with asphalt, and within 6 months the pothole is back. In that case it would be very difficult to find a City’s public works department is liable for your injuries. Below is an actual picture of a recurring pothole in Newark.
This particular pothole was filled this past early summer (June 2021). It reopened again two-three weeks ago (September 2021) and was just filled in again this week (October 2021). If you had fallen in this hole, it would be difficult to establish liability; however, that would not be true if the City did nothing since June 2021 (despite calls to fix the problem) and you fell into the hole in the middle of the night in October 2021.
THRESHOLD ISSUES THAT MUST BE PROVEN
So, you had an accident as a result of the actions or inactions of a public entity, can you recover damages. Here is what you must prove to be successful in court.
“No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00. 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.” NJSA 59:9-2.
There is alot to unload from this section of the statute. Put simply for these types of accidents your injuries must be severe. Remember, the goal is to protect the Crown. So, if you are injured and only need chiropractic treatment to address neck or back pain, chances are you will not be successful in obtaining damages for your injuries. You will need to establish a “permanent loss of a bodily function, permanent disfigurement or dismemberment.” This limits many actions that might be successful like an accident between two passenger vehicles. So, your injuries would have to be more severe to establish a cause of action against the public entity.
NOTICE OF CLAIM
Beyond the need to prove that your public entity did something wrong, or allowed a dangerous condition to fester, you are also required to give prompt and adequate notice of your injuries. You must notify the appropriate State and/or local entity of your accident and your injuries within 90 days of the occurrence (with a limited exception), not 90 days after you get out of the Hospital.
A claim shall be presented by the claimant and shall provide the following information:
a. that name and postal address of the claimant;
b. the post office address to which the person presenting the claim desires notices to be sent;
c. the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
d. a general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
e. the name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
f. the amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. NJSA 59:8-4.
Some of these forms are available online, and you need to understand which public entity is responsible for your injuries. It may be difficult to determine who is responsible for your injuries.
Don’t go at it alone. Get the help you need from an experienced attorney to lead you in the right direction. Contact Walter M. Piccolo, Esq., of the Piccolo Law Firm, LLC. Call 973-368-2316, or go to our website: www.piccololaw.com