Kelly v. County of Monmouth
883 A.2d 411, 380 N.J. Super. 552 (2005)
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Rule of Law:
A public employee is not entitled to the protection of the New Jersey Tort Claims Act's verbal threshold for pain and suffering damages when sued for an intentional tort, if the employee's conduct constituted willful misconduct or was outside the scope of their employment.
Facts:
- Kevin Kelly, a Monmouth County employee, was making a delivery to the County's reclamation center.
- Alain Fortier, the supervisor at the reclamation center, greeted Kelly and initiated a handshake.
- During the handshake, Fortier commented on Kelly's grip and squeezed his hand very hard, which Kelly described as escalating into a 'testosterone type thing'.
- Kelly alleged that immediately following the handshake, Fortier grabbed at his crotch.
- In response to being grabbed, Kelly stepped back and shoved Fortier in the chest with his elbow.
Procedural Posture:
- Kevin Kelly filed a complaint against the County of Monmouth, the Board of Chosen Freeholders, and Alain Fortier in the Superior Court of New Jersey, Law Division (trial court).
- The trial judge granted defendants' motions for summary judgment, dismissing all of Kelly's causes of action.
- Kelly (Appellant) appealed the trial court's dismissal of his assault and battery claim against Fortier and his harassment claim to the Superior Court of New Jersey, Appellate Division.
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Issue:
Does the New Jersey Tort Claims Act's verbal threshold, which limits recovery for pain and suffering, apply to an intentional tort claim against a public employee whose alleged conduct constitutes willful misconduct or falls outside the scope of his employment?
Opinions:
Majority - Fisher, J.A.D.
No. The New Jersey Tort Claims Act's verbal threshold does not apply to an intentional tort claim against a public employee if the conduct was willful or outside the scope of employment. The Act, specifically N.J.S.A. 59:3-14(b), explicitly states that a public employee is not exonerated from the full measure of recovery for conduct constituting willful misconduct or falling outside the scope of employment. The court reasoned that the legislative intent, as stated in the 1972 Task Force Comment, was to prevent employees guilty of 'outrageous conduct' from availing themselves of the Act's limitations on liability. While the verbal threshold might apply in cases where an employee acts negligently but within the scope of employment, it does not shield an employee from the full consequences of an intentional tort. Therefore, summary judgment was improper because whether Fortier's actions constituted willful misconduct or were outside the scope of his employment are disputed questions of fact for a jury to decide.
Analysis:
This decision clarifies a significant exception to the qualified immunity protections afforded to public employees under the New Jersey Tort Claims Act. It establishes that the Act's verbal threshold, a major hurdle for plaintiffs seeking pain and suffering damages, does not shield public employees from liability for their willful or malicious intentional torts, or actions taken outside the scope of their job duties. This ruling ensures that public employees remain fully accountable for outrageous conduct by treating them like private citizens in such instances. The case signals to lower courts that they must distinguish between negligent acts within the scope of employment, where the TCA's protections apply, and intentional acts that fall outside those protections, which often require factual determinations by a jury.
