PorzioAppealLaw

A Partial Victory For A Pro Se Prisoner In The Third Circuit On His Eighth Amendment Claim

2011-10-18T08:41:00-04:00

We see a lot of opinions issued by federal appellate courts in which a prisoner representing himself or herself challenges some policy, procedure, or action relating to his or her confinement. Far more often than not, the District Court rejects the plaintiff’s claim and the appellate court affirms. Thus, today we are writing about Mutschler v. SCI Albion, No. 10-4242 (3d Cir. Sept. 27, 2011), because the pro se plaintiff convinced the Third Circuit to reverse a part of the District Court’s ruling that had granted the defendants’ motion to dismiss.

The plaintiff was a prisoner at defendant State Correctional Institution (“SCI”) Albion. He filed a civil rights complaint against Sandy Malena, a registered nurse at SCI Albion, and Maxine Overton, the Chief Healthcare Administrator. The basis of his complaint was that the defendants issued him a latex catheter even though they allegedly knew that he was allergic to latex. Specifically, the plaintiff alleged that he informed the medical department about his allergy when he arrived at SCI Albion. In October 2008, Malena gave him a catheter that contained latex. The plaintiff used it overnight and he claimed that it caused him pain and blisters on his penis, which led to scarring, erectile problems, and depression. As a result, the plaintiff filed a grievance and informed Overton about the incident, and she told him that it would not occur again.

In March 2009, Malena provided the plaintiff with a latex-containing catheter, which the plaintiff used. The plaintiff claimed that it caused a burning sensation. One month later, a different nurse gave him a catheter that contained latex, but he did not use it once he realized it had latex after he read the packaging. Plaintiff then filed a civil rights action in the Western District of Pennsylvania against Overton and Malena in which he alleged violations of the Fifth Amendment, the Eighth Amendment, the Fourteenth Amendment, and the Americans with Disabilities Act (“ADA”). The District Court granted the defendants’ motion to dismiss. The Third Circuit affirmed the dismissal of the plaintiff’s Fifth Amendment, Fourteenth Amendment, and ADA claims, but reversed as to his Eighth Amendment claim.

The Third Circuit explained that to establish an Eighth Amendment claim for cruel and unusual punishment, a prisoner must prove: 1) that defendants were deliberately indifferent to his medical needs, and 2) those needs were serious. The court further explained that simple medical malpractice is not deliberate indifference and that deference is afforded to prison medical officials in diagnosing and treating patients. However, the court pointed out that an Eighth Amendment claim does not require the defendant to have acted intentionally to inflict pain. Rather, the key test is whether the officials acted – or failed to act – despite having knowledge of a substantial risk of serious harm to the prisoner.

Turning to the plaintiff’s allegations, the Third Circuit ruled that they “may entitle” the plaintiff to relief. Specifically, the court reasoned that “it is plausible that Malena knew of [plaintiff’s] latex allergy based on his medical file and the 2008 incident, and that Malena persisted on issuing him a catheter she knew he was allergic to and knew had previously caused him pain, blistering, and scarring on his penis. Additionally, Overton knew of [plaintiff’s] allergy and its resultant pain and risk of permanent injury. Thus, the pleadings plausibly suggest Overton allowed the issuance of a latex catheter despite this knowledge. [Plaintiff], therefore, made the bare showing to survive a motion to dismiss.” After explaining why the District Court’s dismissal of the plaintiff’s other claims was correct, the Third Circuit vacated the lower court’s order to the extent it dismissed the Eighth Amendment claims and remanded the case to the District Court for further proceedings.

Judge Garth dissented, stating that “I cannot conclude that [plaintiff] has alleged a constitutional violation.”

Appellate Division Vacates Summary Judgment Because Of Procedural Errors

2011-10-17T08:37:00-04:00

Rule 1:6-2(d) provides in pertinent part that unless a civil motion “involves pretrial discovery or is directly addressed to the calendar,” a party’s request for oral argument “shall be granted as of right.” For motions that can be appealed as of right, Rule 1:7-4(a) requires a trial court to “by opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon.” In Stephenson v. Rutgers University, No. A-1660-10 (App. Div. Sept. 22, 2011), the Appellate Division highlighted the importance of those Rules in vacating the trial court’s entry of summary judgment for the defendants because the trial court did not conduct oral argument and did not provide a proper explanation for its ruling.

In her complaint, the plaintiff alleged that Rutgers and one of its employees unlawfully discriminated against her in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The plaintiff had been a part-time student manager of a Rutgers sports team, and she claimed that she was discriminated against with respect to her compensation and harassed because of a disability and her perceived sexual orientation.

The defendants filed a summary judgment motion and requested oral argument pursuant to Rule 1:6-2(d). The plaintiff opposed the motion and the defendants filed a reply. The trial court did not conduct oral argument and dismissed the complaint. In doing so, the judge handwrote a nine-sentence explanation outlining the basis of his ruling.

In reviewing the trial court’s ruling, the Appellate Division first outlined the requirements of Rule 1:6-2(d) and Rule 1:7-4(a). With respect to the former, the Appellate Division noted that the trial court did not have the option to deny oral argument on a substantive motion like the defendants’ summary judgment motion. As to the trial court’s explanation of its ruling, the Appellate Division pointed out that it did not include findings of fact and was “cursory.” Accordingly, the Appellate Division determined that the trial court’s ruling did not comply with Rule 1:7-4(a). Therefore, the Appellate Division reversed the summary judgment order and remanded the case to the trial court, instructing the court to “address both the statute of limitations issue, which was apparently the basis for his decision, and the substantive-law issues raised in the motion.”

Underage Drinking Conviction Overturned Because: 1) Sniff Test For Alcohol Insufficient; 2) Miranda Violations; and 3) Improperly Excluded Evidence

2011-10-14T08:27:00-04:00

In State v. Koch, No. A-0602-10 (App. Div. Sept. 26, 2011), the defendant was convicted in municipal court of underage consumption of alcohol. The defendant was fined $250 and assessed $33 in court costs. The defendant appealed to the Law Division, which affirmed following a trial de novo. The defendant then appealed that judgment, and the Appellate Division reversed on several grounds.

On May 8, 2009, the defendant, an eighteen-year-old high school student, went to a house party with his girlfriend, Ashley, who was nineteen. A neighbor complained to the police that partygoers were smoking marijuana and urinating on his lawn. There was no dispute that alcohol was being consumed by partygoers in and around the home.

When a police officer responded to the scene in a marked car, about twenty people ran into the woods but the officer did not pursue them. Instead, he detained the forty to fifty party attendees who did not flee. He lined them up, told them they could not leave, and then smelled the breath of each one to determine if they had consumed alcohol. The officer did not provide Miranda warnings to any of the partygoers. According to the officer, just before he sniffed the defendant’s breath he blurted out, “I only had one.” The officer recalled that the defendant’s breath smelled of alcohol. Approximately twenty minutes later, the officer told the group that they were free to leave but had to go with a “sober” driver. No summonses were issued at that time.

According to the officer, about ninety minutes later he saw a vehicle, later determined to be registered to the defendant’s girlfriend, stationary on the side of the road. The officer testified that the defendant, his girlfriend, and another young woman were in the car but that the defendant was not the driver.

Ashley testified at trial that the defendant did not consume any alcoholic beverages and did not tell the officer that he “only had one.” She testified that after they left the party, the officer pulled over her car while the defendant was driving. Specifically, she testified that the vehicle was moving when the officer activated the overhead lights to pull the vehicle. Similarly, the defendant testified that he did not drink any alcoholic beverage and that he was driving his girlfriend’s vehicle when it was pulled over. There was no dispute that the motor vehicle stop ended with no charges being issued.

At trial, the defendant attempted to introduce into evidence a videotape made by a camera in the police car. Although the evidence was excluded, the Appellate Division reviewed it because it was part of the record on appeal. The videotape showed that the vehicle was being driven by the defendant and that it was moving for a considerable distance before the officer activated the overhead lights and pulled the car over.

Four days after the party and the vehicle stop, the officer issued an underage drinking summons to the defendant, which he only found out about after he was suspended by his principal from school activities.

In reversing the defendant’s conviction, the Appellate Division first focused on the excluded videotape. The court determined that the trial court erred in excluding that evidence because it “directly impeached” the officer’s testimony and raised credibility doubts about the officer’s identification of the defendant as one of the partygoers who had consumed alcohol, as well as his testimony that the vehicle was stationary when he first saw it and that the defendant was not the driver.

Next, the Appellate Division ruled that the defendant’s Miranda rights were violated. Specifically, the court pointed out that the partygoers were detained at the scene and that the officer’s sniffing of their breath was in a custodial setting. Thus, the Appellate Division found that the officer’s testimony that the defendant had stated that he had consumed an alcoholic drink should have been suppressed.

Turning to the officer’s sniff test, the Appellate Division declared that even if the officer’s testimony that he smelled alcohol on the defendant’s breath was to be believed, it still was “insufficient as a matter of law to sustain a conviction.” The court explained that “[t]here were many young people at this party. Alcohol was being consumed by many of them. Therefore, the smell of alcohol in the area of the party was a given. The sniff test without excluding other sources, was not sufficient to establish that [defendant] was drinking.” Therefore, the Appellate Division reversed the defendant’s conviction.

Don’t Forget To Provide The Appellate Division With The Complete Record

2011-10-12T08:26:53-04:00

Two procedural provisions, Rule 2:5-1(b) and Rule 2:6-1(a)(1)(I), were the focus of Raspavolo v. New Jersey State Police, No. A-3099-09 (App. Div. (Orig.) July 20, 2011, (Amended) Sept. 20, 2011). After a party files a notice of appeal with the Appellate Division, Rule 2:5-1(b) allows the trial court to “file and mail to the parties an amplification of a prior statement, opinion or memorandum made either in writing or orally pursuant to R. 1:2-2.” In essence, the provision provides the trial court with the opportunity to correct or supplement a prior opinion that will be the focus of the appeal. Rule 2:6-1(a)(1)(I) requires the appellant to provide the Appellate Division with all parts of the record that are “essential to the proper consideration of the issues[.]” In Raspavolo, the Appellate Division affirmed the trial court’s ruling that upheld an earlier dismissal of the plaintiff’s complaint because the plaintiff did not provide the Appellate Division with the trial court’s Rule 2:5-1(b) supplementary ruling.

In a January 22, 2010, order, the trial court denied the plaintiff’s motion to vacate a prior order that dismissed his complaint. On July 20, 2011, the Appellate Division reversed that ruling because the record presented to it was “devoid of any decision or statement reasons by the motion judge in support of the January 22, 2010 order.” The Appellate Division reversed so that the plaintiff would have the opportunity to have the trial court consider his arguments on the merits.

One week later the trial judge wrote to the Appellate Division to inform it that on March 12, 2010, he had orally supplemented his January 22, 2010, order and provided supplementary findings of fact and conclusions of law. However, the Appellate Division was never provided with that supplementary ruling.

After stressing that it is the appellant’s obligation to provide it with the complete record, the Appellate Division stated that “plaintiff’s failure to provide us with the judge’s supplemental statement of reasons constitutes a deficiency ‘which renders review impossible[.]’” Because it did not have the trial court’s supplementary ruling, the Appellate Division had “no basis for determining” that the lower court erred in denying the plaintiff’s motion to vacate. Accordingly, because the plaintiff failed to provide the complete record on appeal, the Appellate Division superseded its prior opinion and affirmed the trial court’s ruling.

A Case That Could Have Been On “To Catch a Predator”

2011-09-20T09:06:00-04:00

State v. Champagne, No. A-1365-08 (App. Div. Sept. 19, 2011), sounds like a case that could have been featured on the NBC show, “To Catch a Predator.” The defendant engaged in sexually graphic Internet conversations with a person whom he thought was a boy between the ages of thirteen and sixteen. In their conversations, the defendant tried to make arrangements to meet the “boy” at a motel to engage in sexual relations. In reality, however, the “boy” was an undercover investigator with the State’s Division of Criminal Justice. The defendant was indicted on three counts of second-degree attempted sexual assault and third-degree luring/enticing a child.

In December 2004, the defendant pled guilty to one count of attempted sexual assault. The State appealed his sentence and the Appellate Division reversed and remanded for resentencing. After the case returned to the trial level, the defendant moved to dismiss the indictment, arguing that “‘a person [cannot] purposely attempt to commit the strict liability crime of sexual assault of a child between the ages of [thirteen] and [sixteen] when no child was actually involved[.]’” The trial court denied that motion. Thereafter, the defendant pled guilty to one count of second-degree attempted sexual assault, which for sentencing purposes was treated as a third-degree offense. After sentencing, the defendant appealed and argued that the trial court should have dismissed the indictment and that the factual basis for his plea did not establish the crime of attempted sexual assault.

The Appellate Division rejected the defendant’s arguments and affirmed. First, the Appellate Division noted that during the pendency of the defendant’s appeal it had decided State v. Kuhn, 415 N.J. Super. 89 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), which involved analogous facts. In that case, the defendant had several sexually related Internet conversations with someone he thought was a thirteen-year-old girl but was really an investigator for Atlantic County. Like the defendant in Champagne, the defendant in Kuhn tried to arrange a meeting to engage in sexual relations with a person he thought was a minor. Among other things, the defendant in Kuhn was convicted of second-degree attempted sexual assault, which is what the defendant pled guilty to in the instant case.

The Kuhn court rejected the defendant’s argument that he could not be guilty of attempt because the person he had spoken with was not a minor, reasoning that “[i]f a person whom the defendant believes to be a child is an adult, then the defendant’s subjective belief that the victim is a child suffices to impose liability for attempt[.]” The defendant in Champagne argued that Kuhn was incorrect and urged the court not to follow it, but the Appellate Division refused. In so doing, the Appellate Division reviewed its reasoning from Kuhn concerning attempted sexual offenses and concluded that “because defendant was charged with attempted crimes, his claim that the thirteen-year-old ‘boy’ was, in fact, an adult would not be a defense at trial. It is likewise of no avail to him on appeal.” The Appellate Division also rejected the defendant’s assertion that the factual basis for his plea did not establish the offense of attempted sexual assault, as the court noted that he admitted the necessary elements of the offense.

Appellate Division Rejects Woman’s Argument That She Has Right To Be Topless On Beach

2011-09-15T11:39:37-04:00

In June 2008, the defendant, a woman, was sitting on a public beach in Spring Lake and took off her bathing suit top. State v. Feeley, No. A-0115-10 (App. Div. Sept. 14, 2011). A police officer approached her and asked her to put the top back on. The defendant declined, at which time the police officer arrested her. The defendant was brought to police headquarters and was given a t-shirt. She was processed and released. Shortly thereafter, the police received a call about a topless woman at an intersection near the police headquarters. The police responded and again arrested the defendant. The t-shirt that the police gave to the defendant was found at the door of the police headquarters. The defendant was charged with various offenses, including two violations of the town’s public nudity ordinance.

The defendant did not challenge these facts before the municipal court or on her appeal to the Law Division. Instead, she argued that applying the public nudity ordinance violated her equal protection rights under the 14th Amendment of the United States Constitution. In that regard, she asserted that it was unconstitutional to allow men to be topless on the public beach but not women. Both the municipal court and the Law Division rejected her argument and she was convicted on two counts of violating the public nudity ordinance.

Before the Appellate Division, the defendant repeated her constitutional arguments and claimed that the ordinance unjustifiably sanctioned arrest and prosecution based on gender. The Appellate Division rejected her arguments and affirmed.

The Appellate Division first reviewed Spring Lake’s public nudity ordinance and its decision in State v. Vogt, 341 N.J. Super. 407 (App. Div. 2001). In Vogt, the Appellate Division ruled that “there [wa]s no constitutional right for a woman to appear topless on a public beach,” and “[r]estrictions on the exposure of the female breast are supported by important governmental interest in safeguarding the public’s moral sensibilities, and th[e] ordinance [wa]s substantially related to that interest.” The Vogt court also ruled that the public nudity ordinance at issue met both the federal and state standards for equal protection.

The Appellate Division then pointed out that the ordinance in Vogt was substantially similar to the Spring Lake ordinance and that the facts of Vogt were “indistinguishable from those presented here.” Because the “[d]efendant has presented no principled reason for us to depart from our holding in Vogt[,]” the Appellate Division affirmed the defendant’s convictions.

Interlocutory Appeal Involving An Inadvertently Produced – And Purportedly Privileged – Document

2011-09-09T11:10:00-04:00

First Industrial, L.P. v. General Insurance Co. of America, No. A-1705-10 (App. Div. Aug. 29, 2011), arose from environmental property damage at a complex that was owned by the plaintiff’s predecessor in interest. The plaintiff informed the New Jersey Department of Environmental Protection about the damage and agreed to investigate and remediate the property. As the successor to its predecessor’s insurance policies, the plaintiff filed claims with defendants General Insurance Company of America (“General”) and Harleysville Insurance Company (“Harleysville”) in which it demanded defense and indemnification for losses it would incur to remediate the property. From 2000 through 2007, the parties negotiated but could not reach an agreement about the claims. Therefore, the plaintiff filed a complaint against Harleysville and General in April 2007. In November 2008, the parties entered into an agreement whereby the complaint was dismissed without prejudice so that the parties could again try to resolve their dispute. Negotiations again proved unsuccessful and in February 2009 the plaintiff re-filed its complaint and added Pennsylvania General Insurance Company (“Pennsylvania”) as a defendant.

During discovery, the plaintiff produced over 50,000 pages of documents, including a January 26, 2005, letter from plaintiff’s counsel Debra Rothberg to Jon Raleigh, Director of Business Management at First Industrial Realty Trust, Inc. The top of the letter contained the following statement, in boldface type: “PRIVILEGED & CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION AND ATTORNEY-WORK PRODUCT.” Pursuant to a court order, the plaintiff also submitted a privilege log to the trial court, which was to review the documents in camera and then make a determination as to whether the listed documents were privileged. The plaintiff listed approximately 100 documents that it claimed were privileged, including eleven communications between Raleigh and Rothberg – but not the January 2005 letter.

During the deposition of the plaintiff’s corporate designee, counsel for Pennsylvania questioned him about the January 2005 letter. Plaintiff’s counsel instructed the witness to not answer the question, stating that the document was privileged and had been inadvertently produced. Counsel for Pennsylvania did not continue questioning the witness about the document because the privilege issue had to be resolved by the court.

One month later, the defendants filed a motion to compel the deposition of plaintiff’s counsel, Rothberg. They claimed that Rothberg was intimately involved with the development of the facts on the underlying claim and that the January 2005 letter was relevant to the defendants’ bad faith claims and various defenses. The plaintiff cross-moved for a protective order concerning the allegedly privileged information in the January 2005 letter.

The trial court denied both motions and provided a statement of reasons why it denied the defendants’ motion to compel the deposition, but did not do so for the plaintiff’s motion for a protective order. After the plaintiff filed a motion for leave to appeal, the trial court provided a written statement of its reasons pursuant to Rule 2:5-6 in which it explained that it “‘motion as to privilege until the Court could conduct a full review of all documents as granting that part of the motion at the time would have been premature.’”

The Appellate Division granted the plaintiff’s motion for leave to appeal and reversed. The Appellate Division noted that, pursuant to well-established caselaw, when a claim of privilege is disputed the trial court ordinarily must review the disputed information in camera to determine if a privilege applies and then make a specific ruling about each document and provide its reasoning for each such ruling. The Appellate Division concluded that “it is clear that the trial court misapplied its discretion when it failed to conduct an in camera hearing prior to ruling on plaintiff’s cross-motion.” Accordingly, the Appellate Division reversed and remanded the matter so that the trial court could review the January 2005 letter in camera and determine if it was privileged.

New Jersey State League Of Municipalities Is Subject To OPRA

2011-09-08T10:56:00-04:00

The New Jersey State League of Municipalities (“League”) was formed in 1915 pursuant to a law that authorized its creation. It is a non-profit, unincorporated association that represents all 566 of the State’s municipalities. Its board includes several elected municipal officials. More than 13,000 elected and appointed municipal officials are League members and its employees are members of the Public Employees’ Retirement System. The League’s budget is partially financed through public funds. One of the League’s main objectives is to lobby for legislation that benefits municipalities and to pursue litigation that furthers the interests of municipalities. In Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, ___ N.J. ___ (2011), the Supreme Court held that the League was a “public agency” within the meaning of the Open Public Records Act (“OPRA”) and, therefore, had to make available government documents pursuant to OPRA’s provisions.

In 2008, the Council on Affordable Housing (“COAH”) issued proposed regulations concerning the obligation of municipalities to provide affordable housing. The League filed comments opposing the proposed regulations. Shortly thereafter, Fair Share Housing Center, Inc. (“Fair Share”) asked the League’s Executive Director, pursuant to OPRA, to provide certain documents relating to its opposition to the regulations. The Executive Director declined the request, asserting that the League was “not covered by” OPRA.

Fair Share then filed a verified complaint in lieu of prerogative writs, claiming that the League violated OPRA and the common law right of access when it refused to provide the requested documents. Fair Share asked the trial court to declare that the League was a “public agency” under OPRA and order the League to provide the requested documents to the court to review in camera. Fair Share supplemented its filing with an order to show cause that sought the same relief. The League asserted that it was not a “public agency” and, therefore, that its records were not “government records” subject to disclosure under OPRA. During the pendency of the case before the trial court, the Government Records Council issued an advisory opinion, at the request of the League, that the League was not a “public agency” under OPRA.

The trial court dismissed Fair Share’s complaint, ruling that the League was not a “public agency” under OPRA, primarily because it did not carry out any traditional government functions. The Appellate Division affirmed but the Supreme Court reversed.

The Court began its analysis by reviewing the Legislature’s intent in enacting OPRA and the law’s objectives. After highlighting the Legislature’s desire to allow the public access to government records, the Court turned to specific terms included in OPRA and explained that it had to read the disputed words and phrases in context and afford them their generally accepted meaning. Stressing that the case turned on the meaning of “public agency” in OPRA, the Court noted that the phrase (as well as “agency”) was broadly defined in the law as “any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.”

Summarizing that statutory definition, the Court explained that under OPRA a “public agency” included an “instrumentality … created by a … combination of political subdivisions.” The Court concluded that the “plain language places the League squarely within the term ‘public agency.’” The Court went on to elaborate how and why the League satisfied the plain language of OPRA and disagreed with the reasoning of the lower courts that the League could not be a “public agency” because it did not perform a traditional governmental task. In that regard, the Court rejected the caselaw relied upon by the League as inapposite.

Having concluded that the League was a “public agency,” the Court also rejected the League’s contention that its records were not “government records” under OPRA. The Court reasoned that “any document kept on file or received in the course of the official business of an ‘agency’ of a political subdivision is a political document. The League is such an ‘agency’ and therefore the term ‘government record’ applies to it.”

In conclusion, the Court held that the League “is a ‘public agency’ under OPRA and must provide access to ‘government record[s]’ that are not subject to a[] [statutory] exemption.” Accordingly, the Court reversed the Appellate Division’s judgment and remanded the case to the trial court for additional proceedings.

Employer Not Liable On Emotional Distress Claim Where Supervisor Instructed Plaintiff To Stop Talking About Her Deceased Daughter & To Remove Daughter’s Photos From Her Cubicle

2011-09-07T10:19:00-04:00

The plaintiff worked for the defendant Ortho-McNeil Pharmaceutical from 1994 to 2006. Ingraham v. Ortho-McNeil Pharmaceutical, ___ N.J. Super. ___ (App. Div. 2011). In 2006, she was an administrative assistant in a marketing department. The plaintiff’s immediate supervisors reported to defendant Carl DeStefanis, the department’s director, but the plaintiff had only infrequent contact with him.

In 2003, the plaintiff’s only child, Tatiana, was diagnosed with acute lymphocytic leukemia while she was in her third year of high school. Tatiana was a talented, excellent student who belonged to several honor societies and had been accepted at Cornell University. In addition, she studied at the New Jersey School of Ballet but had to stop dancing because of her illness. Tatiana died in May 2005. As the Appellate Division noted, the “[p]laintiff’s mourning was deep and enduring[,]” and she kept pictures of Tatiana and her ballet slippers at her work cubicle.

About eighteen months after Tatiana died, one of defendant’s human resources managers met with DeStefanis to share with him complaints that had been received about plaintiff’s conduct and interaction with co-workers. Some of the complaints did not involve Tatiana, but some did, as plaintiff’s colleagues noted that the plaintiff often spoke with them about her daughter’s death. Although her colleagues sympathized with the plaintiff, they felt uncomfortable in these discussions; as a result, they tried to avoid the plaintiff.

DeStefanis met with the plaintiff in a conference room at 4:00 p.m. on Friday, November 17, 2006, to discuss these issues. DeStefanis informed the plaintiff that there had been several complaints about her discussions of her daughter and that she displayed pictures of Tatiana in her cubicle. He also told her that the pictures had to be removed. The plaintiff became upset upon hearing this, and during the course of the discussion DeStefanis reiterated that the pictures, along with Tatiana’s ballet slippers, had to be removed from the plaintiff’s cubicle. Although the plaintiff protested, DeStefanis explained that the pictures were a disruption and that people were avoiding her. According to the plaintiff, DeStefanis also told her that she could “‘no longer speak of [her] daughter because she is dead.’” When the plaintiff asked DeStefanis if she was supposed to act as if Tatiana did not exist, DeStefanis responded affirmatively.

During the rest of their conversation, DeStefanis declined to give the plaintiff the names of her colleagues who complained about her. DeStefanis also advised the plaintiff that if she felt a need to talk about Tatiana, she could go to his office and speak with him about her behind closed doors. They also discussed the non-Tatiana related issues, and the plaintiff gave her version of those incidents. The plaintiff did not think that DeStefanis was angry during the meeting but was “cold.” She did not feel angry but instead distraught, hurt, upset, and outraged. She left work that day crying and never returned, eventually resigning.

In April 2008 the plaintiff filed a three-count complaint that included claims for alleged violation of the New Jersey Law Against Discrimination (“LAD”); intentional infliction of emotional distress; and constructive discharge. After discovery the defendants moved for summary judgment, at which time the plaintiff stipulated to the dismissal of her LAD and constructive discharge claims. The trial court granted summary judgment to the defendants on the plaintiff’s intentional infliction of emotional distress claim, and the Appellate Division affirmed.

The Appellate Division began its analysis by explaining that to establish an intentional infliction of emotional distress claim, the plaintiff must prove: 1) the defendant acted intentionally or recklessly with the intent to produce emotional distress; 2) the defendant’s conduct was extreme and outrageous -- that is, it is so outrageous and extreme that it goes beyond all bounds of decency and is intolerable in a civilized community; 3) the defendant’s conduct proximately caused his or her harm; and 4) the emotional injury is so severe that no reasonable person could be expected to endure it. The Appellate Division agreed with the defendants’ argument that the plaintiff could not satisfy the first and second elements.

The court explained that the second element, concerning the outrageousness of defendants’ conduct, had an “‘elevated threshold’ that is satisfied only in extreme cases.” Next, the court listed, with a description of the conduct at issue, cases in which that elevated threshold had been met, as well as cases in which it had not. With respect to the plaintiff’s argument that the “power dynamics of the workplace” lessened her burden, the court explained that the employment relationship is one factor to be considered but does not serve to reduce the plaintiff’s burden of proof. In that regard, the Appellate Division reasoned that “the workplace has too many personal conflicts and too much behavior that might be perceived as uncivil for the courts to be used as the umpire for all but the most extreme workplace disputes.”

The court proceeded to extensively review the plaintiff’s deposition testimony and concluded that “although plaintiff’s version of the meeting would allow the jury to view DeStefanis as insensitive and perhaps negligent of plaintiff’s vulnerability in her continuing bereavement, the conduct described does not meet the requisite standard to support a claim of intentional infliction of emotional distress. The trial court correctly determined that plaintiff could not prove the second essential element of her cause of action.” Similarly, the Appellate Division ruled that the plaintiff could not satisfy the first element because DeStefanis did not intend to cause emotional distress to plaintiff; rather, his purpose in meeting with her was to resolve a workplace issue involving efficiency and the plaintiff’s relationships with her colleagues.

In conclusion, the Appellate Division declared that “the evidence, while troubling and naturally invoking sympathy for plaintiff, is not sufficient to support a cause of action for intentional infliction of emotional distress.”

Deceased Driver’s Failure To Have Auto Insurance Bars Heirs From Pursuing Wrongful Death Claims

2011-09-06T10:18:28-04:00

New Jersey’s Survivors Act, N.J.S.A. 2A:15-3, allows an appointed representative to file any cause of action that the decedent could have brought if he or she had not died. Such an action belongs to the estate and any recovery is for the benefit of the estate. The Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, provides a decedent’s heirs with a cause of action to recover pecuniary damages for their direct losses as a result of the decedent’s death if caused by the tortious conduct of another person. However, the Act further provides that heirs can recover only if the decedent would have been “entitled … to maintain an action for damages resulting from the injury” had “death not ensued.” A provision of New Jersey’s automobile insurance law, N.J.S.A. 39:6A-4.5(a), provides that any individual who fails to have statutorily required no-fault insurance “shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident while operating an uninsured automobile.”

The intersection of these statutes was considered by the Supreme Court in Aronberg v. Tolbert, ___ N.J. ___ (2011). Specifically, the Court had to decide whether the decedent’s failure to maintain no-fault insurance barred his mother’s wrongful death claims against the defendants whose negligence allegedly caused his death in an automobile accident. The Court, relying primarily upon the plain statutory language of the Wrongful Death Act and N.J.S.A. 39:6A-4.5(a), held that because the decedent was an uninsured driver and therefore “could not have maintained a cause of action had he lived due to the statutory bar in N.J.S.A. 39:6A-4.5(a), his heirs cannot recover under the Wrongful Death Act.”

The decedent was driving southbound on the New Jersey Turnpike in his Volkswagen Jetta when a tractor trailer struck the rear of his vehicle, killing him. At the time of the accident, the decedent did not have automobile insurance, as only three weeks earlier Allstate New Jersey Insurance Company cancelled the policy issued to him because he failed to keep his premiums current. The decedent’s mother filed suit against the driver of the tractor trailer and his employer, asserting survivorship and wrongful death claims.

The defendants moved for summary judgment, arguing that both the survivorship and wrongful death claims were barred because the decedent was driving an uninsured vehicle. The trial court agreed that the survivorship claim had to be dismissed because the decedent would have been barred by N.J.S.A. 39:6A-4.5(a) from pursuing a personal injury action had he survived. However, the trial court ruled that the wrongful death claim could proceed because it belonged to the decedent’s beneficiaries, and the court did not believe that N.J.S.A. 39:6A-4.5(a) was intended to punish the heirs of a deceased individual. The Appellate Division affirmed but the Supreme Court reversed.

The Court began its analysis by noting that because the facts were undisputed, the question it had to consider was purely one of statutory interpretation. After recounting the well-established principles that guided how it interprets statutes, the Court proceeded to review the plain language of both N.J.S.A. 39:6A-4.5(a) and the Wrongful Death Act. As to N.J.S.A. 39:6A-4.5(a), the Court stressed that “[o]n its face, the statute deprives an uninsured motorist of the right to sue for any loss caused by another, regardless of fault.” The Court further explained that “[t]he statute’s self-evidence purpose is not to immunize a negligent driver from a civil action, but to give the maximum incentive to all motorists to comply with the State’s compulsory no-fault insurance laws.” Turning to the Wrongful Death Act, the Court pointed out that in order for heirs to proceed with such a claim, the decedent must have been entitled to maintain an action for damages had he or she not died.

The Court concluded that “[a]pplying the language of the statute to the facts here, we have [decedent’s] death caused by the alleged wrongful acts of defendants. However, ‘if death had not ensued’ – that is, had [decedent] lived – he would not have been entitled ‘to maintain an action for damages resulting from the injury,’ N.J.S.A. 2A:31-1, because, as an uninsured motorist, N.J.S.A. 39:6A-4.5(a) would have barred his cause of action. A plain-language reading of the Wrongful Death Act indicates that the heir’s cause of action is therefore likewise barred.” Although the Court could have ended its opinion at that point, it nonetheless went on to consider various cases and points raised by the Appellate Division’s majority opinion, as the majority had taken the position that the Legislature would not have wanted to bar the mother’s wrongful death action under these circumstances and that doing so would lead to an absurd result.

Thus, the Court proceeded to review the caselaw discussed by the Appellate Division majority, as well as the State’s automobile insurance statutory scheme. The Court also analyzed the Survivor’s Act and pointed out that its language was quite similar to that of the Wrongful Death Act and that allowing a wrongful death action to proceed while a survival action could not would be an anomalous result. After completing its review, the Court declared that there was nothing in the legislative history or policy objectives of the Wrongful Death Act and N.J.S.A. 39:6A-4.5(a) that “suggests an outcome different from the one compelled by the unambiguous language of the statutes themselves.”

In conclusion, the Court reasoned that “N.J.S.A. 39:6A-4.5(a) places a strong incentive on motorists to purchase automobile insurance not only to protect themselves, but their family members as well. Perhaps the desire to protect a loved one is at least as great as the impulse to protect oneself. The plain language of N.J.S.A. 39:6A-4.5(a), as applied to the Wrongful Death Act, furthers the Legislature’s purpose of coercing compliance with our automobile insurance laws. The Legislature has determined that N.J.S.A. 39:6A-4.5(a)’s lawsuit bar applies to the decedent’s next of kin in wrongful death action. We cannot ignore the relevant statutory language to reach a more sympathetic result for plaintiff.”