Lead Opinion
The opinion of the Court was delivered by
In this case, a non-tenured public school industrial arts teacher claimed that his employer, the local board of education, through its supervisory employees, retaliated against him by not rehiring him as a tenured teacher because he complained about inadequate health and safety conditions in the school’s metal shop. The teacher filed a complaint against the board of education alleging that its conduct violated the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -9 (CEPA). The board contended that it was not vicariously liable for the actions of its school officials.
The case is before the Court on our grant of the petition for certification filed by the board of education, and the appeal as of right filed by the board of education under Rule 2:2-l(a)(2), based on a dissent in the Appellate Division, whose opinion is reported at 269 N.J.Super. 11,
The major issues presented on the appeal are whether a local board of education may be held vicariously liable for the retaliatory acts of its school officials in an action brought under CEPA and whether punitive damages are available in such an action.
I
In September 1985, plaintiff, Joseph P. Abbamont, Jr., was hired by defendant, Piseataway Township Board of Education (board), to teach industrial arts. Plaintiff was employed by defendant in Quibbletown Middle School for the 1985-86, 1986-87, and 1987-88 school years.
From the beginning of his employment, plaintiff expressed concern about the poor health and safety conditions of the metal shop, including broken machines, lack of air ventilation, inadequate lighting, and slippery floors. In either December 1985 or January 1986, plaintiff completed a required safety inspection checklist in which he listed a number of items as “unsatisfactory,” including the air ventilation. That form was sent to Edward McGarigle, Principal of the Middle School, and the Industrial Arts
In February 1986, according to plaintiff, he and McGarigle met, at which time the two agreed that plaintiff would teach plastics instead of metals. However, plaintiff expressed concern about the lack of air ventilation because, like metal-shop machinery, plastics machinery creates fumes and requires separate ventilation hoods. Again, in June 1986 and June 1987, when plaintiff submitted his list of needs for the upcoming school year, he requested repair of the ventilation system. Id. at 17,
On October 19, 1987, plaintiff and the wood shop teacher, Carl Schweitzer, sent a joint letter to Superintendent of Schools Burt Edelchik asserting that they had been having problems with repair and replacemеnt of broken equipment in the shops and that they could not get responses from either McGarigle or Papariello. Edelchik responded by requesting more information, and plaintiff and Schweitzer responded to that request in an October 27, 1987 letter, which included all their requests to McGarigle and Papar-iello since plaintiffs hiring. Plaintiff sent copies of the Edelchik correspondence to McGarigle and Papariello. Ibid. Edelchik later informed plaintiff that “most of the things were taken care of’ because he had met with McGarigle and Papariello. Ibid.
During the fall of 1987, plaintiff began to experience dizziness, nausea, headaches, coughing and trouble breathing. He was diagnosed as having a pulmonary condition. Ibid. Plaintiff continued to operate the shop machines until December 1987, when a student in plaintiffs plastics course collapsed, allegedly from the fumes in the shop.
On January 15,1988, plaintiff wrote to Dr. Virginia Brinson, the Middlesex County Superintendent of Schools, “telling her who I was and what my problems were and how much trouble I was having.” Ibid. After an inspection, of which plaintiff was not informed, MeGarigle met with plaintiff and Schweitzer. The inspection report listed only minor safety changes; it did not mention ventilation. According to plaintiff, MeGarigle discovered at that meeting that the inspector had not been qualified to check air quality. MeGarigle also stated that he was aware that a part needed for the proper ventilation of the shop had not been installed for one-and-one-half years.
In February 1988, plaintiffs doctor determined that he should not return to the metal shop until the air had been tested, and wrote a letter describing plaintiffs condition. Id. at 19,
After plaintiff stopped teaching, an air-quality test was performed. The report, which the board received on March 10, 1988, stated that the classroom was safe from all nuisance particles. Plaintiff, however, was not informed of the favorable air-quality report.
The trial court, ruling that a judge and not a jury should determine the issue of punitive damages, severed that claim from the jury trial. On the remaining claims, the jury returned a verdict in favor of the plaintiff, and awarded compensatory damages of $60,000. The trial court, however, granted the board of education’s motion to dismiss the complaint, upon which it had earlier reserved decision, concluding that plaintiff had not established vicarious liability of the board based on the actions of its supervisory school officials.
On appeal, the Appellate Division reversed the trial court, reinstated the jury verdict, and remanded the case for a jury trial on punitive damages. 269 N.J.Super. at 33,
II
The primary issue is whether defendant, the local board of education, may be held vicariously liable as a public employer under CEPA for its decisiоn, based on the recommendations of its principal and superintendent, not to rehire plaintiff with tenure because of complaints plaintiff had made concerning health and safety conditions in the school. The derivative issue is whether the evidence supports the determination that the conduct of the supervisory officials and the board constituted “retaliatory action” under CEPA.
A.
Plaintiff claims that defendant’s decision not to rehire him as a tenured teacher constituted “retaliatory action” under CEPA. He
CEPA defines “retaliatory action” as “the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” N.J.S.A. 34:19-2e. Plaintiff additionally asserts that as an “employer,” the board of education was liable under CEPA for that retaliatory action of its officials, the superintendent and principal. Under CEPA, “employer” is defined as
any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent and shall include all branches of State Government, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any special district, or any authority, commission, or board or any other agency or instrumentality thereof.
[N.J.S.A. 34:19-2a (emphasis added).]
Further, plaintiff claims that the superintendent and principal acted in supervisory сapacities. The statute defines “supervisor” as
any individual with an employer’s organization who has the authority to direct and control the work performance of the affected employee, who has authority to take corrective action regarding the violation of the law, rule or regulation of which the employee complains, or who has been designated by the employer on the notice required under ... this act.
[N.J.S.A. 34:19 — 2d.]
In charging the jury, the trial court declared that the board would not be vicariously liable for any illegal retaliatory acts attributed to its superintendent and principal unless the jury found that the board had known, or should have known, of those acts and had ratified or agreed to them. In later granting defendant’s motion to dismiss plaintiffs complaint, the trial court ruled that plaintiff had not established a prima facie case of vicarious liability because McGarigle did not have the authority to
The Appellate Division unanimously ruled that the trial court had erred in holding that plaintiff had not established a prima facie CEPA case. It concluded that (1) McGarigle was a “supervisor” under N.J.S.A. 34:19-2d, 269 N.J.Super. at 21-23,
B.
Under CEPA an employer can be “any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent.” N.J.S.A. 34:19-2a. Further, such an employer can be a governmental entity, that is, one of the “branches of State Government, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any special district.” Ibid. The courts below differ over whether that provision of CEPA imports the traditional principles of respondeat superior for determining whether an employer may be deemed vicariously liable for the wrongful actions of its employees.
Recently, in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587,
The Court was concerned in Lehmann with defining standards for liability that would achieve the statutory objectives and effectuate the legislative purpose of LAD. It characterized the “eru-
First, strict liability should apply for relief that is equitable in nature. Second, agency principles, which include negligence, should be applied to decide if an employer is liable for compensatory damages that exceed that equitable relief. Third, a higher level of culpability than mere negligence should be required for punitive damages.
[Id. at 626,626 A.2d 445 .]
We conclude that the analysis and principles of Lehmann are appropriate to our consideration of the essential elements of a cause of action under CEPA and hold that the standards governing employer liability as determined and explained in that decision are fully applicable to actions brought under CEPA.
The Court in Lehmann clearly indicated that its determination of the scope of employer liability under LAD was influenced by considerations of public policy. 132 N.J. at 625,
In 1986 the Legislature enacted CEPA to protect employees from retaliatory actions by employers. That law protects “whis-tleblowers,” “who, believing that the public interest overrides the interest of the organization he [or she] serves, publicly ‘blows the whistle’ if the organization is involved in corrupt, illegal, fraudulent, or harmful activity.” Ralph Nader et al., Whistleblowing: The Report of the Conference on Professional Responsibility vii (Ralph Nader et al., eds., 1972). As the bill’s sponsor stated, CEPA’s enactment is “important to all New Jersey workers who are concerned about working in a safe environment with honest employers.” Linda Lamendola, Safeguards Enacted for ‘Whistle-blowers”, The Star Ledger, Sept. 8, 1986, at 1. When signing the whistleblower law, Governor Kean explained CEPA’s purpose:
*418 It is most unfortunate — but, nonetheless, true — that conscientious employees have been subjected to firing, demotion or suspension for calling attention to illegal activity on the part of his or her employer.
It is just as unfortunate that illegal activities have not been brought to light because of the deep-seated fear on the part of an employee that his or her livelihood will be taken away without recourse.
[Office of the Governor, News Release at 1 (Sept. 8, 1986).]
We are satisfied that the Lehmann standard provides the “most effective intervention and prevention” of retaliatory actions against employees. 132 N.J. at 626,
In CEPA actions, as in LAD actions, “the employer is the party with the power and responsibility to hire, promote, reinstate, provide back pay, and take other remedial action.” Id. at 617,
Further, we hold, as Lehmann held with respect to employers in LAD actions, that the traditional doctrine of respondeat superior governs employer liability for compensatory damages under CEPA. Agency law is “sufficiently flexible to provide just results in the great variety of circumstances presented by [the retaliatory discharge of whistleblowers] ■ and to accomplish the purposes of [CEPA].” See Lehmann, supra, 132 N.J. at 619,
Defendant has argued that the Lehmann liability framework should not apply to CEPA because its statutory purposes and elements demand a different and stricter standard.
First, defendant asserts that traditional agency principles are not appropriate under CEPA because CEPA actions, unlike LAD actions, require a showing of intent. However,
[a]ccording to the trend of modem authority, the liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was wilful and intentional оr was unintentional, but upon whether the employee, when he did the wrong, was acting in the prosecution of the employer’s business and within the scope of his authority, or had stepped aside from that business and done an individual wrong.
[53 Am.Jur.2d Master & Servant § 438 (1970).]
See Lehmann, supra, 132 N.J. at 619,
However, section 1983 is distinguishable from CEPA. The language of section 1983 “plainly imposes liability on a government that, under color of some official policy, ‘causes’ an employee to violate another’s constitutional rights.” Id. at 692, 98 S.Ct. at 2036, 56 L.Ed.2d at 636. Further, the imposition of respondeat superior for section 1983 actions is contrary to that statute’s legislative history, which included the express rejection by Congress of language that would have provided for vicarious liability. Id. at 692-93, 98 S.Ct. at 2036, 56 L.Ed.2d at 636-37.
Unlike section 1983, CEPA’s requirement of “consent” does not imply that the effectuation of an “official policy” be an element of the public employer’s conduct in order to give rise to a cause of action. Although CEPA specifically applies to governmental bodies and includes school districts as public employers, N.J.S.A 34:19-2a, it draws no distinctions between private and public employers. Cf. Oklahoma City v. Tuttle, 471 U.S. 808, 817-18, 105 S.Ct. 2427, 2433,
We conclude, as did the Appellate Division, that “the Legislature intended that the same rules of vicarious liability applicable to private principals also be applied to public entities.” 269 N.J.Super. at 27-28,
C.
The Appellate Division found that the evidence amply supports the jury determination that the actions of the board’s superintendent and principal сonstituted retaliatory conduct in violation of CEPA. McGarigle and Edelchik were high-level employees who were responsible for conditions in the shop, for evaluating plaintiffs job performance, and for making tenure recommendations. As this Court noted in Lehmann, an employer whose supervisory employee is acting within the scope of employment will be liable for that supervisor’s improper conduct. 132 N.J. at 619,
The tenure laws help define the scope of authority that the superintendent and principal exercised in this case. Under those laws, a teacher generally will acquire tenure at the beginning of the fourth year of employment. N.J.S.A. 18A:28-5. During a teacher’s first three years, school districts hire the teacher for ten-month contracts from September to June. Tenure is nоt acquired if the teacher is not rehired for the fourth year.
Plaintiff, as a non-tenured teacher, was evaluated three times each year. 269 N.J.Super. at 16,
In the 1985-86 summary evaluation report, McGarigle was impressed by plaintiffs performance. He rated plaintiff as competent and having strengths in all areas, with no need for improvement. Similarly, plaintiffs 1986-87 evaluations were “excellent.” Id. at 17,
On March 17, 1988, McGarigle sent a letter to plaintiff stating that McGarigle was not recommending that plaintiff be rehired in his fourth year with Quibbletown Middle School as a tenured teacher because plaintiff was unable to perform his teaching duties. McGarigle testified that he did not remember exactly whеn he had decided not to recommend plaintiff for rehiring, except that he had made that decision on or before March 17. Nevertheless, McGarigle did complete a summary evaluation of plaintiff on March 24, 1988.
Mr. Abbamont, I’m going to tell you one P’n thing. I’ve got five years left in this place until I retire and I don’t need another god damn Carl Schweitzer. Do you understand? I want you to understand that Mr. Schweitzer has tenure and you do not. Do you understand what I am saying?
Further, in an altercation with Papariello at the end of January 1988 about the shop’s air quality, Papariello told plaintiff, “this is your tenure year and I’m going to tell you something, you’ll never see it.” Ibid. According to the record, Assistant Supеrintendent of Schools and Board Secretary Guy Vander Vhet also told plaintiff: “I’ll be truthful with you. I think that maybe you should go your way and Piscataway will go the other way.” Ibid. The next morning, following that conversation with Vander Vliet, McGarigle, who, according to plaintiff, was “extremely mad,” stated, “I don’t care what you do, you ain’t coming back. There’s no tenure. You’re not going to get it. I warned you three years ago and I’m going to tell you I’ll make good on my promise, you’re not going to get tenure.” Id. at 18-19,
In addition, the record supports the finding that plaintiffs complaints were, as required under CEPA, based on a reasonable belief that the conditions in the metal shop were in violation of an administrative “regulation promulgated pursuant to law” and were contrary to “a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.”
N.J.S.A. 34:19-3 provides:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer ... that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law;
*424 e. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
Plaintiff established the existence of health and safety administrative rules and regulations and a clear mandate of public policy applicable to conditions of the metal shop, as required under N.J.S.A. 34:19 — 3c(3). In December 1985, Papariello distributed a booklet entitled “New Jersey Industrial Arts Education Safety Guide.” The guide included Title 6 of the 1977 New Jersey Administrative Code (“Vocational Education Safety Standard”), the 1982 amendment to Title 6, and the “National Standard School Shop Safety Inspection Check List.” The guide also included an administrative regulation that specifically requires “dependable ventilation” that provides “a minimum amount of outdoor air supply and exhaust on movement” for different types of industrial arts, including metal work. N.J.AC. 6:22-5.2. It was accompanied by a cover memorandum written by Papariello that explained the guide, instructed the industrial arts teachers to read the materials, and informed them that the board was adopting the safety guide as “our official safety guide.” 269 N.J.Super. at 16,
Plaintiff also demonstrated “a reasonable, objective belief that the conduct of the school officials was a specific violation” of thosе regulatory standards and “incompatible” with their public policy mandate. Plaintiffs own description of the lack of ventilation and the poor air quality in the shop and its corroboration by Schweitzer’s testimony as well as plaintiffs work-related pulmonary problems underscore the reasonableness of that belief. The objectivity, as well as reasonableness, of that belief was further evidenced by the opinion of plaintiffs expert on ventilation, Mark Goldberg,
D.
We conclude, as did the Appellate Division, that plaintiff established a cause of action under CEPA. The evidence supports the determination that the supervisory employees of defendant, board"' of education, its principal and superintendent, engaged in retaliatory action against plaintiff for his complaints based on his reasonable and objective belief that conditions at work were contrary to law and violated administrative rules and regulations and were incompatible with a clear mandate of public policy. The recommendation not to rehire plaintiff with tenure, which was accepted by the board, was within the scope of the authority of those supervisors. That action, under well-established agency principles of respondeat superior, constitutes the basis for the board’s vicarious liability to plaintiff for compensatory damages under CEPA.
Ill
The majority of the Appellate Division determined that punitive damages were available under CEPA because in amending both CEPA and LAD, the Legislature provided not only for jury trials but also for remedies available in common-law tort actions. The majority further concluded, “Allowing plaintiff the remedies available in common law tort actions, the remedy of punitive damages herein should be decided by a jury, as it is in common law tort actions.” 269 N.J.Super. at 29,
A sensible and unconstrained reading of the language of CEPA, a consideration of the provisions of CEPA in light of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:13-5, a review of CEPA’s legislative history, an understanding of the underlying policy concerns in awarding punitive damages against public entities, and an examination of CEPA’s remedial purpose persuade us that CEPA does allow the award of punitive damages against public entities.
A plain reading of CEPA indicates that the Legislature provided that prevailing whistleblowers could be awarded punitive damages against public entities. N.J.S.A 34:19-2a expressly and specifically authorizes actions against “employer[s]” that are public entities, such as a “school district” or “board.” N.J.S.A 34:19-3 expressly prohibits such public employers from taking retaliatory actions against employees. CEPA furthеr specifies:
Upon the application of any party, a jury trial shall be directed to try the validity of any claim under this act specified in this suit. All remedies available in common law tort actions shall be available to prevailing plaintiffs. These remedies are in addition to any legal or equitable relief provided by this act or any other statute. The court may also order:
f. Punitive damages ...
[N.J.S.A. 34:19-5 (emphasis added).]
CEPA thus provides that punitive damages are available “[u]pon a violation of any of the provisions of this act.” N.J.S.A 34:19 — 5f; see also Knowlton v. Greenwood Indep. Sch. Dist.,
Further, no specific CEPA provision exists that precludes the awarding of punitive damages against public employers. That omission must be deemed purposeful. On that point, TCA is
TCA thus exemplifies the Legislature’s ability to exclude the availability of punitive damages against public entities when it so chooses. See also N.J.SA 59:13-3 (providing “no recovery against the State for punitive ... damages arising out of contract” allowed under Contractual Liability Act). As duly noted by the Appellate Division majority, “If the Legislature intended to exempt public entities from punitive damages under CEPA [as it did under TCA] ... it would have done so...” 269 N.J.Super. at 30,
The legislative history buttresses the conclusion that punitive damages are recoverable under CEPA. In 1990, the Legislature amended both CEPA and LAD to grant plaintiffs the right to a jury trial and to make available to prevailing parties those remedies available in common-law torts. In so doing, the Legislature expressly reversed Shaner v. Horizon Bancorp., 116 N.J. 433,
Moreover, to interpret CEPA as permitting punitive damages does not ignore the legitimate policy concerns about awarding punitive damages against public entities in personal injury actions. See, e.g., Jackson v. Housing Auth., 73 N.C.App. 363, 326 S.E.2d 295, 299 (1985) (stating that traditionally, municipal corporations have been exonerated from liability from punitive damages in personal injury cases for public policy reasons). We acknowledge the strength of the considerations militating against punitive
Those policy concerns are addressed in some measure by the heightened standard that we have adopted for imposing punitive damages against public entities. Under Lehmann’s heightened standard for liability, punitive damages may be awarded only if the conduct of managerial or supervisory government officials is particularly egregious and involves willful indifference or actual participation. Based on that kind of misuse of governmental authority, punitive damages serve to effectuate the goals of a statute that is specifically designed to discourage and eradicate vindictive action by employers and to further important interests of both employees and the public.
Punitive damages generally are intended not to compensate an injured party but to punish the tortfeasor and to deter him or her and others from similar conduct. See Restatement (Second) of Torts § 908 (1979); W. Prosser, Law of Torts 9-10 (4th ed. 1971); 22 Am.Jur.2d, Damages § 739 (1988); 25 C.J.S. Damages § 117(1) (1966). When the interest transgressed is significant, punitive damages may be appropriate even when the underlying wrongful conduct is that of the government. In LAD actions, in cases of “willful or malicious acts” caused by the entity itself, full damages, including punitive, may be awarded. Fuchilla v. Layman, 210 N.J.Super. 574, 579,
We reject the dissent’s argument that to allow punitive damages against a public entity under CEPA implicitly repeals TCA’s statutory prohibition against the awarding of punitive damages against public entities. 269 N.J.Super. at 34-35,
In Fuchilla, supra, 109 N.J. at 330-32,
The purpose of CEPA, like that of LAD, is different from that of TCA. The whistleblower statute, like LAD, is a civil rights statute. Its purpose is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct. Consistent with that purpose, CEPA must be considered “remedial” legislation and therefore should be construed liberally to effectuate its important social goal. Judiciary, Law and Public Safety Committee, Statement on Assembly Bills No. 2872, 2118, 2228 (1990) (indicating that “the remedies available under the “whistleblower’ act are to be liberally construed”); see also Sabella v. Lacey Township, 204 N.J.Super. 55, 59,
We conclude, further, that punitive damages, which are available under CEPA against public entities, should be determined by a jury as the trier of fact.
N.J.S.A 34:19-5(f) provides that the “court may” impose punitive damages. Seemingly, the trial court interpreted that provision to justify its removal of the punitive damages issue from the jury. However, as noted, the 1990 amendments to CEPA and LAD created the right to a jury trial and common-law tort remedies. See discussion, supra at 427-428,
Due to the universal recognition of the broad discretion by a jury to determine whether to give or withhold punitive damages and, when awarded, to determine the amount to be awarded, only one area of judicial control of the exercise of jury discretion has been recognized. That area of control is over excessive punitive damage awards.
[Lee & Lindahl, supra, § 21.40, at 813.]
In sum, we conclude that punitive damages are available against public employees under CEPA pursuant to Lehmann’s heightened standard of liability and those damages are to be determined by the jury as fact-finder.
IV
The Appellate Division unanimously found that the trial court properly had admitted evidence of a workers’ compensation settlement between the parties because the settlement was introduced not to establish defendant’s liability, but to prove that plaintiff had a reasonable belief that safety standards were being violated due to the injuries he had suffered. 269 N.J.Super. at 31-33,
Defendant argues that the Appellate Division erred in upholding the trial court’s admission of the parties’ workers’ compensation settlement. Plaintiff had filed two different claim petitions, one for pulmonary and internal disability, and the other for nasal and nervous system disability. In the compensation proceeding, which combined the two claims, defendant admitted that plaintiff had “suffered exposure which resulted in permanen
The Appellate Division determined that the settlement was admissible because it had not been used “to prove defendant’s liability for plaintiffs workers’ compensation claim.” 269 N.J.Super. at 32,
The board further contends that the jury instructions were “insufficient” and that plaintiffs counsel made an improper statement in his summation about the workers’ compensation settlement, implying that it constituted an admission “in worker’s' compensation court that it maintained an unsafe workplace.” We note that the board did not object to the summation or the jury charge at trial, and did not raise those issues before the Appellate Division. We are satisfied that those contentions lack merit, R.
V
The judgment of the Appellate Division is affirmed.
Concurrence Opinion
concurring and dissenting.
With one exception, I join the majority opinion. The exception is that I believe that the Legislature did not intend that public entities should be subject to payment of punitive damages under the Conscientious Employee Protection Act (CEPA). Substantially for the reasons stated by Judge Petrella in his dissent in the Appellate Division, I dissent from that part of the majority opinion hоlding that plaintiff, Joseph P. Abbamont, Jr., may maintain a claim for punitive damages against the Piscataway Township Board of Education.
Ultimately, the cost of any punitive-damage award will be borne by the taxpayers of Piscataway Township. In an era of decreasing legislative support for taxes, see L. 1994, c. 2, § 1 (amending N.J.S.A 54A:2-1) (decreasing rate of taxation under gross-income tax), and punitive damages, see N.J.S.A. 34:11B-11 (capping punitive damages for violations of Family Leave Act at $10,000 for individual suits or lesser of $500,000 or one percent of defendant’s net worth for class actions or director’s complaints); N.J.S.A. 2A:58C-5 (allowing punitive damages in products liability actions only if claimant proves “actual malice” or “wanton and willful disregard of the safety of product users, consumers, or others who foreseeably might be harmed by the product”), I doubt that the Legislature, when enacting CEPA, thought that it was overcoming the ban of the Tort Claims Act (TCA), N.J.S.A 59:9 — 2(c), on awarding punitive damages against public entities. That statute provides: “No punitive or exemplary damages shall be awarded against a public entity.” Ibid.
The problem, as the majority opinion recognizes, ante at 425-430,
As the majority candidly acknowledges, moreover, CEPA’s sparse history does not support either “a specific intent to incorporate the exemption from punitive damages of TCA,” ante at 428, 650 A 2d at 969, or one “to include punitive damages against public entities,” ibid. In the face of such enigmatic legislative history and language, the Legislature has left ample room for reasonable judges to disagree. I believe that not permitting punitive-damage awards against public employers is more consistent with the legislative intent. The best solution would be for the Legislature to revisit the issue and resolve it definitively.
Justices CLIFFORD and GARIBALDI join in this concurrence/dissent.
For affirmance — Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.
For reversal on part III — Justices CLIFFORD, POLLOCK and GARIBALDI — 3.