Bill Text: NJ A1558 | 2018-2019 | Regular Session | Introduced
Bill Title: Eliminates awards of punitive damages against public entities, and eliminates awards of noneconomic damages against both public entities and public employees except in certain cases involving physical injury.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-01-09 - Introduced, Referred to Assembly Judiciary Committee [A1558 Detail]
Download: New_Jersey-2018-A1558-Introduced.html
STATE OF NEW JERSEY
218th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION
Sponsored by:
Assemblyman MICHAEL PATRICK CARROLL
District 25 (Morris and Somerset)
SYNOPSIS
Eliminates awards of punitive damages against public entities, and eliminates awards of noneconomic damages against both public entities and public employees except in certain cases involving physical injury.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning the liability of public entities and public employees for certain damages arising out of tort actions, and amending various parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.59:2-2 is amended to read as follows:
59:2-2. a. A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances; except that a public entity shall not be liable and shall not pay for any punitive or exemplary damages resulting from the act or omission of a public employee. The prohibition against punitive or exemplary damages set forth in this subsection shall apply, notwithstanding the general availability of this remedy against parties as provided in the common law or pursuant to any other statutory law, including, but not limited to, the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.) and the "Conscientious Employee Protection Act," P.L.1986, c.105 (C.34:19-1 et seq.).
b. A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.
(cf: N.J.S.59:2-2)
2. N.J.S.59:3-1 is amended to read as follows:
59:3-1. Generally. a. Except as otherwise provided by this act, a public employee is liable for injury caused by his act or omission to the same extent as a private person.
b. The liability of a public employee established by this act is subject to any immunity of a public employee provided by law and is subject to any defenses that would be available to the public employee if he were a private person.
c. A public employee is not liable for an injury [where] when a public entity is immune from liability for that injury. Nothing in this subsection shall be deemed to provide the public employee with immunity from liability for punitive or exemplary damages when the public entity has immunity from liability for those damages.
(cf: P.L.1994, c.49, s.1)
3. N.J.S.59:9-2 is amended to read as follows:
59:9-2. a. No interest shall accrue prior to the entry of judgment against a public entity or public employee.
b. No judgment shall be granted against a public entity or public employee on the basis of strict liability, implied warranty or products liability.
c. No punitive or exemplary damages shall be awarded against a public entity. The prohibition against punitive or exemplary damages set forth in this subsection shall apply, notwithstanding the general availability of this remedy against parties as provided in the common law or pursuant to any other statutory law, including, but not limited to, the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.) and the "Conscientious Employee Protection Act," P.L.1986, c.105 (C.34:19-1 et seq.).
d. No damages shall be awarded against a public entity or public employee for [pain and suffering] any compensatory damages for noneconomic losses resulting from any injury; provided, however, that this limitation on the recovery of damages for [pain and suffering] noneconomic losses shall not apply in cases of [permanent loss of a bodily function, permanent disfigurement or dismemberment where] physical injury when the medical treatment expenses for that injury are in excess of [$3,600.00] $10,000. The limitation against compensatory damages for noneconomic losses set forth in this subsection shall apply, notwithstanding the general availability of this remedy against parties as provided in the common law or pursuant to any other statutory law, including, but not limited to, the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.) and the "Conscientious Employee Protection Act," P.L.1986, c.105 (C.34:19-1 et seq.).
For purposes of this [section] subsection "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; and "noneconomic losses" means pain, suffering, inconvenience, loss of consortium, loss of society, physical or emotional impairment, disfigurement, or any other form of nonpecuniary damage.
e. If a claimant receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tortfeasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award against a public entity or public employee recovered by such claimant; provided, however, that nothing in this provision shall be construed to limit the rights of a beneficiary under a life insurance policy. No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee.
(cf: P.L.2000, c.126, s.32)
4. N.J.S.59:10-1 is amended to read as follows:
59:10-1. Indemnification. If pursuant to the provisions of P.L.1972, c.48 (C.59:10A-1 et seq.) the Attorney General provides for the defense of an employee or former employee, the State shall provide indemnification for the State employee. Nothing in this section requires the State to pay for punitive or exemplary damages or damages resulting from the commission of a crime [. The State may, however, indemnify a State employee for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the Attorney General, the acts committed by the State employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct, or an intentional wrong.] The limitation on indemnification set forth in this section shall apply, notwithstanding the general availability of indemnification as a principle of the law of agency between employer and employee, as provided in the common law or pursuant to any other statutory law permitting or requiring employer indemnification.
(cf: P.L.1987, c.340, s.1)
5. N.J.S.59:10-2 is amended to read as follows:
59:10-2. Refusal to defend--indemnification. If the Attorney General refuses to provide for the defense of a State employee as required by the provisions of P.L.1972, c.48 (C.59:10A-1 et seq.), the employee or former employee of the State shall be entitled to indemnification from the State if he establishes that the act or omission upon which the claim or judgment was based occurred within the scope of his employment as an employee of the State and the State fails to establish that he acted or failed to act because of actual fraud, actual malice or willful misconduct.
If the State employee establishes that he was entitled to a defense under the provisions of this chapter, the State shall pay or reimburse him for any bona fide settlement agreements entered into by the employee, and shall pay or reimburse him for any judgments entered against the employee, and shall pay or reimburse him for all costs of defending the action, including reasonable counsel fees and expenses, together with costs of appeal, if any.
Nothing in this section requires the State to pay for punitive or exemplary damages or damages resulting from the commission of a crime. [The State may indemnify a State employee for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the Attorney General, the acts committed by the State employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct, or an intentional wrong.] The limitation on indemnification set forth in this section shall apply, notwithstanding the general availability of indemnification as a principle of the law of agency between employer and employee, as provided in the common law or pursuant to any other statutory law permitting or requiring employer indemnification.
(cf: P.L.1987, c.340, s.2)
6. N.J.S.59:10-4 is amended to read as follows:
59:10-4. Local public entities--authority to indemnify. Local public entities are hereby empowered to indemnify local public employees consistent with the provisions of this act concerning the State's indemnification of State employees. [A local public entity may indemnify an employee of the local public entity for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the governing body of the local public entity, the acts committed by the employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.]
(cf: P.L.1987, c.340, s.3)
7. Section 5 of P.L.1995, c.142 (C.2A:15-5.13) is amended to read as follows:
5. a. Any actions involving punitive damages shall, if requested by any defendant, be conducted in a bifurcated trial.
b. In the first stage of a bifurcated trial, the trier of fact shall determine liability for compensatory damages and the amount of compensatory damages or nominal damages. Evidence relevant only to the issues of punitive damages shall not be admissible in this stage.
c. Punitive damages may be awarded only if compensatory damages have been awarded in the first stage of the trial. An award of nominal damages cannot support an award of punitive damages.
d. In the second stage of a bifurcated trial, the trier of fact shall determine if a defendant is liable for punitive damages.
e. In any action in which there are two or more defendants, an award of punitive damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.
f. Pursuant to the provisions of the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq., a public entity shall not be liable for punitive damages, and shall not indemnify a public employee for any award of punitive damages resulting from an act or omission of the public employee.
(cf: P.L.1995, c.142, s.5)
8. This act shall take
effect immediately and apply to any cause of action against a public entity or
public employee that accrues on or after the effective date.
STATEMENT
This bill amends the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq., and the "Punitive Damages Act," P.L.1995, c.142 (C.2A:15-5.9 et seq.), to:
(1) eliminate awards of punitive damages against public entities, as well as clarify that public entities shall not indemnify public employees with respect to any such employee liability for punitive damages; and
(2) eliminate awards of noneconomic damages (such as pain and suffering, or emotional impairment) against both public entities and public employees, except for cases involving physical injury when the medical treatment expenses are in excess of $10,000. This medical treatment threshold already exists with respect to damages for pain and suffering, but is set at $3,600; the bill would increase the threshold dollar amount as well as expand its application to all noneconomic damages.
The bill's provisions specifically provide that the above limitations apply to public entities and public employees, notwithstanding the general availability of either type of damages, or the application of indemnification as a general principle of the law of agency between employer and employee, whether as provided in the common law or pursuant to any other statutory law.
With respect to damages, the bill also makes specific cross-references to the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.) (hereafter, LAD) and the "Conscientious Employee Protection Act," P.L.1986, c.105 (C.34:19-1 et seq.) (hereafter, CEPA), since a New Jersey Supreme Court decision previously permitted the full pursuit of damages for noneconomic losses or punitive damages against public entities and public employees under the LAD or CEPA, notwithstanding the existing provisions in the "New Jersey Tort Claims Act" which generally restrict or prohibit such damage awards. See Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405 (1994). The bill provisions intend to overturn this Supreme Court precedent and establish that the restrictions or prohibitions set forth in the "New Jersey Tort Claims Act," which are specifically applicable to public entities and public employees, supersede the general availability of such damages under the common law, the above enactments, or any other statute.
