Antоnio Chaparro Nieves v. Office of the Public Defender (A-69-18) (082262)
A-69-18 (082262)
SUPREME COURT OF NEW JERSEY
April 15, 2020
241 N.J. 567
LaVECCHIA, J., writing for the Court.
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.
Antonio Chaparro Nieves v. Office of the Public Defender (A-69-18) (082262)
Argued January 6, 2020 -- Decided April 15, 2020
LaVECCHIA, J., writing for the Court.
The Court considers whether the Tort Claims Act (TCA), which governs tort actions filed against public entities and employees, applies to a criminal defendant’s legal malpractice claim filed against his public defender. The Court also considers whether, if the TCA applies, a claim for loss of liberty damages is subject to its “verbal threshold” for pain and suffering awards, as set forth in
This case arises out of the representation of plaintiff Antonio Chaparro Nieves by a state public defender, Peter Adolf, Esq. After his conviction, Nieves was granted post-conviction relief based on the ineffective assistance of counsel at trial. DNA evidence later confirmed that Nieves was not the perpetrator, and the underlying indictment against him was dismissed. Nieves subsequently recovered damages from the State for the time he spent wrongfully imprisoned. He then filed the present legal malpractice action seeking damages against the Office of the Public Defender (OPD) and Adolf.
Defendants moved for summary judgment, arguing that the TCA barred the damages sought because Nieves failed to vault
The Court granted certification “limited to the issues of whether legal malpractice claims are exempt from the [TCA] and whether plaintiff’s ‘loss of liberty’ damages claim is subject to the verbal threshold of the TCA.” 237 N.J. 428 (2019).
HELD: The TCA applied to Nieves’s legal malpractice action, and his claim for loss of liberty damages failed to vault the verbal threshold for a pain and suffering damages claim under the strictures of
- The Court reviews key provisions of the TCA, which has the overarching approach of rendering public employees liable for an act or omission to the extent that a private person would be liable for same, unless an immunity attaches. It is well recognized that, through the TCA, the Legislature established that generally, immunity for public entities is the rule and liability is the exception. “Public entity” is a defined term in the TCA. It “includes the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State.”
N.J.S.A. 59:1-3 . The term “public employee” is also defined. It “means an employee of a public entity.”Ibid. And “‘[e]mployee’ includes an officer, employee, or servant, whether or not compensated or part-time, who is authorized to perform any act or service.”Ibid. The TCA governs its coverage through its defined terms. (pp. 8-10) - The OPD is an office within the executive branch of State government; its head is appointed by the Governor with the advice and consent of the State Senate. Further, the OPD relies on annual State funding appropriated through the State Budget. Consideration of those facts leaves no room to doubt that the OPD meets the TCA’s definition of a public entity. Nor is there room to doubt that the Public Defender’s exercise of control over his individual public defеnders makes those employees the type of person intended by the TCA to be considered public employees for the Act’s purposes. Whether as a full-time staff attorney or a contracted pool attorney serving as a public defender, the individuals serving in such capacity and under the control of the Public Defender meet the definition of an employee of the OPD for TCA purposes and have been treated as public employees in previous cases. See Rogers v. Cape May Cty. Office of the Pub. Def., 208 N.J. 414, 417 (2011). (pp. 10-12)
- Although the professional representational duty owed by a public defender is to his or her individual client,
N.J.S.A. 2A:158A-11 , public defenders are performing a public function -- that of ensuring representation for indigent defendants in criminal matters brought by the State, seeN.J.S.A. 2A:158A-3 , -5. The fact that such attorneys are adversaries of other state actors prosecuting the criminal charges does not mean they lose their state public employee status under the TCA. The Act contains no express exemption for public defenders, or for public entities and public employees who fall within the definitions of those terms but are excluded because of the nature of their work. The OPD is a public entity under the TCA and Adolf is an employee of that public entity. Therefore, the TCA with its immunities, defenses, and limitation on tort claims filed against public entities and their public employees applies to defendants. (pp. 12-16) - Where liability is permitted, the TCA limits certain damages available to a plaintiff who brings a claim for injury. Among its limitations,
N.J.S.A. 59:9-2(d) addresses awards for pain and suffering. Known as the “verbal threshold,” subsection (d) provides in part that “[n]o 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 dаmages 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.” The verbal threshold by its terms applies to pain and suffering claims and not to economic damages. (pp. 16-18) - Nieves is not seeking economic damages in this matter. He claims that quality of life damages were recognized to be recoverable in Ayers v. Township of Jackson, 106 N.J. 557 (1987), and should be recoverable here. To the extent Nieves relies on Ayers, that reliance is misplaced. Ayers involved at bottom a nuisance claim, and its damages explanation must be understood in its narrow context. In legal malpractice actions, the Court recognizes there to be two general categories of damages -- economic damages or an emotional distress award, and Nieves’s loss of liberty damages fall within the subset of emotional distress damages. The Court has not spoken on the issue of emotional distress damages in a legal malpractice action but finds it is sensible to recognize that a legal malpractice claim can, in certain circumstances, result in an award of emotional distress damages. In the present matter, however, there is an unavoidable hurdle to any such award: emotional distress damages are controlled under the TCA through its limitations on the recovery of a pain and suffering award. New Jersey case law holds that emotional distress is considered pain and suffering under the TCA. There is no other category of damages into which plaintiff’s claim -- denominated as loss of liberty damages or quality of life damages -- fits in this legal malpractice claim premised on attorney negligence. It is either economic damages or a pain and suffering award. Since Nieves already obtained economiс damages, his remaining claim must be analyzed under the TCA’s constraints on a pain and suffering award. As the Appellate Division correctly held, Nieves failed to satisfy the standards for vaulting the verbal threshold for a pain and suffering damages claim under the strictures of
N.J.S.A. 59:9-2(d) . (pp. 18-23)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN, dissenting in part, agrees that the TCA applies here and would also hold that non-pecuniary damages -- such as pain and suffering, loss of liberty, and loss of enjoyment of life -- should not be awarded in legal malpractice cases at least in the absence of egregious or extraordinary circumstances. Justice Albin disagrees, however, that the TCA’s limitation on awards for “pain and suffering” in
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate opinion, dissenting in part.
Antonio Chaparro Nieves, a/k/a Anthony Chaparro, Plaintiff-Appellant, v. Office of the Public Defender and Peter S. Adolf, Esq., Defendants-Respondents.
A-69 September Term 2018 082262
SUPREME COURT OF NEW JERSEY
Argued January 6, 2020 Decided April 15, 2020
On certification to the Superior Court, Appellate Division.
Thomas D. Flinn argued the cause for appellant (Garrity, Graham, Murphy, Garofalo & Flinn, attorneys; Thomas D. Flinn, of counsel and on the briefs, and Francis X. Garrity, on the briefs).
Daniel M. Vannella, Assistant Attorney General, argued the cause for respondents (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel, and Daniel M. Vannella, on the briefs).
George Conk argued the cause for amicus curiae New Jersey State Bar Association (New Jersey State Bar Association, attorneys; Evelyn Padin, President, of counsel, and George Conk, on the brief).
This case arises out of the representation of plaintiff Antonio Chaparro Nieves by a state public defender, Peter Adolf, Esq., for criminal charges related to sexual assault. After his conviction, Nieves was granted post-conviction relief based on the ineffective assistance of counsel at trial. DNA evidence later confirmed that Nieves was not the perpetrator, and the underlying indictment against him was dismissed. Nieves subsequently recovered $608,333.33 in damages from the State under
In this appeal Nieves argues that the Tort Claims Act (TCA or the Act),
The appellate judgment under review held that the TCA applied to Nieves’s legal malpractice action and that his claim for
I.
In 2015, Nieves served the State with a notice of tort claim, pursuant to the TCA, and filed the instant complaint against Adolf and the Office of the Public Defender (OPD) (collectively, defendants) asserting legal malpractice in the defense of the criminal charges that had been filed against him. Nieves alleged that defendants’ deficient representation was the proximate cause of his wrongful conviction and twelve-year incarceration. He also clаimed that Adolf violated Rule of Professional Conduct (RPC) 1.7.
At the close of discovery, defendants sought dismissal of the complaint by filing a motion for summary judgment. Defendants argued that a violation of the RPCs does not give rise to a cause of action in tort and that the TCA barred the damages sought because Nieves failed to vault the Act’s requirements for a pain and suffering award, as set forth in
The motion court agreed that a violation of the RPCs does not provide a basis for a cause of action in tort and dismissеd that count. However, with respect to the remainder of Nieves’s complaint, the court concluded that the TCA and its verbal threshold were inapplicable to Nieves’s claims. Accordingly, the court brushed aside defendants’ arguments, rooted in the Act’s requirements, that they were entitled to dismissal where Nieves made no claim for economic damages, did not provide an expert report from a psychologist or psychiatrist, and did not certify that he had any medical expenses.
In its denial of a subsequent motion for reconsideration filed by defendants, the court further explained that,
whether an individual is represented by private counsel or counsel appointed from a publicly funded institution, he is entitled to the same level of competency. And, if that level of competency falls below the standard, then he should also be entitled to the same level of recovery, whethеr he is represented by private counsel or counsel appointed from a publicly funded institution.
Defendants sought interlocutory appellate review. The Appellate Division reversed and ordered the entry of summary judgment in favor of defendants.
The Appellate Division reviewed the Act’s definitions, which address its scope, as well as pertinent case law, and concluded that “the OPD is a public entity and public defenders are public employees that come within the TCA’s immunities and defenses.” The Appellate Division relied on Rogers v. Cape May County Office of the Public Defender, in which this Court, in focusing on a question of compliance with a TCA procedural requirement, stated that “[c]laims for damages against defendants -- a public entity and a public employee -- are subject to the provisions of the Tort Claims Act.” (quoting 208 N.J. 414, 420 (2011)). Finding that precedent applicable to Nieves’s claim of legal malpractice against defendants, the appellate court concluded that the claim fell squarely within the Act -- and that Nieves had failed to meet the Act’s requirements.
We granted Nieves’s petition for certification “limited to the issues of whether legal malpractice claims are exempt from the [TCA] and whether plaintiff’s ‘loss of liberty’ damages claim is subject to the verbal threshold of the TCA.” 237 N.J. 428 (2019). We also granted amicus curiae status to the New Jersey State Bar Association.
II.
The parties advance essentially the same arguments put forward before the Appellate Division.
Nieves acknowledges that the OPD may be a public agency and public defenders may be public employees in many settings, but he argues that when they are engaged in the representation of a criminal defendant, public defenders are not engaged in government action. Therefore, he claims the TCA does not apply. Even if the TCA did apply, Nieves contends that the verbal threshold is inapplicable because the “quality of life” damages he seeks have been, according to him, recognized to be qualitatively different from subjective damages for pain and suffering. (citing Ayers v. Township of Jackson, 106 N.J. 557 (1987)).
Defendants, on thе other hand, in claiming the protections of the TCA apply, assert that the TCA protects a broad swath of public entities and public employees, and includes “any employee of a public entity, including the State and its many departments, offices, and other agencies.” Defendants argue that the definitions setting forth the TCA’s scope encompass the OPD and its employees. Further, defendants argue that plaintiff’s claim for “loss of liberty” damages amounts to the same as a claim for emotional distress damages and is thus subject to
The New Jersey State Bar Association fully supports defendants’ position that the TCA applies to claims of legal malpractice filed against public defenders in connection with representation of indigent individuals in criminal proceedings.
III.
A.
The background to and development of the TCA have been addressed many times before. See, e.g., Velez v. City of Jersey City, 180 N.J. 284, 289-91 (2004). “The overall purpose of the [TCA] was to reestablish the immunity of public entities while coherently ameliorating
The Act details the liability of public employees. While liability is limited in various areas, see, e.g.,
It is well recognized that, through the TCA, the Legislature established that “[g]enerally, immunity for public entities is the rule and liability is the exception.” Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999). The Act delineates both procedural and substantive requirements for bringing a tort claim against the State, public entities, and public employees.
“Public entity” is a defined term in the TCA. It “includes the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State.”
The Act governs its coverage through its defined terms. We thus turn to the application of those definitions to defendants in this matter.
B.
The OPD is an office within the executive branch of State government.
Further, we perceive no room to doubt that the Public Defender’s exercise of control over his individual public defenders makes those employees the type of person intended by the TCA to be considered public employees for the Act’s purposes. The Public Defender is statutorily required to exercise ongoing quality control over the competent professional services the office is expected to provide to indigent defendants.
We have heretofore treated a state public defender as a public employee in connection with a tort claim filed under the TCA. In Rogers, although we were not faced with a question about the applicability of the TCA to a legal malpractice claim for damages filed against the OPD and a public defender, we held the plaintiff’s claims against the OPD and the public defender in that matter were “not barred by the one-year filing limitation in [the TCA].” 208 N.J. at 417. The appeal involved a question about the date from which the Act’s timeframes for notice and filing of a claim should be calculated; in that context, we obviously regarded the OPD and its public defender employees as falling under the procedural requirements for suit contained in the TCA. See
Nevertheless, Nieves maintains that the issue has not beеn resolved by this Court. We turn next to his arguments for retreating from the position taken in Rogers, which clearly considered the OPD and public defenders to be, respectively, a public entity and public employees for purposes of the TCA.
C.
Nieves argues the OPD and public defenders are not subject to the TCA because when they represent the interests of criminal defendants, as in this case, they are not “engaged in government action.” We cannot agree with that proposition.
The OPD is performing a state function when providing representation for indigent defendants. See
The Act contains no express exemption for public defenders, or for public entities and public employees who otherwise fall within the definitions of those terms but are excluded because of the nature of their work. See
The OPD is a public entity under the TCA and Adolf is аn employee of that public entity. Therefore, the TCA with its immunities, defenses, and limitation on tort claims filed against public entities and their public employees applies to defendants.2
The fact that this is a legal malpractice action does not alter that conclusion. Nieves relies on a published trial court opinion to argue otherwise. In Delbridge v. Office of Public Defender, a Law Division judge found an exception to the immunity afforded under the TCA for legal malpractice claims. 238 N.J. Super. 288, 311 (Law Div. 1989). Identifying no precedent in this state at the time, the Delbridge court relied on United States Supreme Court cases analyzing immunity for public defenders in actions brought under
This is a simple application of the TCA to a tort action brought against a
An attorney certainly owes a duty of care to the individual being represented, but that does not alter the status of the public defender as a public employee, or the OPD’s status as the public employer. Both are entitled to the benefit of the TCA’s application, which does not provide absolute immunity but places conditions and limits on the ability to recover damages in such settings.
Having determined that the TCA controls here, we turn to the application question involved.
IV.
A.
Pertinent to this appeal, where liability is permitted, the TCA limits certain damages available to a plaintiff who brings a claim for injury.3 See
[n]o 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.
[
N.J.S.A. 59:9-2(d) .]
That provision weeds out claims for “subjectively measured damages for pain and suffering, which are not compensable by the Tort Claims Act,” Ayers, 106 N.J. at 571 (quoting Ayers v. Township of Jackson, 202 N.J. Super. 106, 118 (App. Div. 1985)), from claims for objectively measured damages for pain and suffering that can meet the threshold’s expense and other requirements. Notably, that limitation does not apply to willful or other outrageous misconduct excepted under
A two-part test is used to assess whether a plaintiff satisfies the requirements of
The second issue on which we granted certification is whether Nieves’s loss-of-liberty damages claim is subject to the TCA’s verbal threshold.
The verbal threshold by its terms applies to pain and suffering claims and not to economic damages. See DelaCruz, 183 N.J. at 164. Nieves is not seeking eсonomic damages in this matter. And, as already noted, Nieves has received an award in excess of $600,000 under the Mistaken Imprisonment Act, an award that is calculated in relation to time served and capped based on a claimant’s earnings per year before incarceration.
We do not discount the injury Nieves has suffered as a result of having spent more than twelve years imprisoned for a crime he did not commit. The question we must address is only whether Nieves must submit to the requirements for a pain and suffering award in pursuing his noneconomic claim for loss of liberty damages. He claims that quality of life damages were recognized to be recoverable in our decision in Ayers and should be recoverable here, as loss of liberty damages, unencumbered by the verbal threshold. We find his reliance on Ayers unsound and his argument in support of a new category of damages in legal malpractice сlaims otherwise unpersuasive.4
C.
To the extent Nieves relies on Ayers, that reliance is misplaced. Ayers involved at bottom a nuisance claim. In Ayers, the defendant’s landfill contaminated the plaintiffs’ well water with toxic pollutants, causing the plaintiffs to not have access to running water for nearly two years. 106 N.J. at 565, 570. The plaintiffs brought a claim for nuisance under the TCA. Id. at 565. At trial, the jury awarded the plaintiffs damages for, among other things, impairment of their quality of life. Id. at 565-66. This Court held that the plaintiffs’ quality of life damages were not subject to the TCA’s verbal threshold for pain and suffering damages, explaining that pain and suffering “was not intended to bar claims for the inconvenience associated with the invasion of a property interest.” Id. at 571 (emphasis added). Notably, the Court stated that “[a] claim for quality of life damages is derived from the law of nuisance.” Ibid. To the extent the Court discussed quality of life impacts in recognizing a unique damage claim in that matter, the damages explanation must be understood in its narrow context. It has not been expanded uрon since, and we decline the invitation to incorporate it here.
As for urging that we recognize what is described to be a new “sliver” of damages in this legal malpractice action that would not be subject to the verbal threshold requirements for a pain and suffering award under the TCA, we likewise decline. We recognize there to be two general categories of damages in legal malpractice actions, and Nieves’s loss of liberty damages fall within the subset of emotional distress damages where such are recoverable in attorney malpractice claims.
A legal malpractice action has three elements: “(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the
This Court has not spoken on the issue of emotional distress damages in a legal malpractice action. However, the Appellate Division has commented on the possibility of such an award. In the setting of a legal malpractice case involving an underlying medical malpractice claim, the Appellate Division stated that it was
persuaded that emotional distress damages should not be awarded in legal malpractice cases at least in the absence of egregious or extraordinary circumstances. Whether viewed within the context of the traditional concept of proximate cause, or simply as a matter of sound public policy, we are convinced that damages should be generally limited to recompensing the injured party for his economic loss.
[Gautam v. De Luca, 215 N.J. Super. 388, 399 (App. Div. 1987) (citations omitted).]
See also Innes v. Marzano-Lesnevich, 435 N.J. Super. 198 (App. Div. 2014) (relying on Gautam). It is fair to say that, presently, emotiоnal distress damages are acknowledged to be potentially recoverable in certain legal malpractice settings.
The Restatement provides helpful insight in this respect. It recognizes that a lawyer liable for legal malpractice may be subject to economic damages and damages for emotional distress. Restatement (Third) of the Law Governing Lawyers § 53 (Am. Law Inst. 2000). In its comment (g) on damages for emotional distress, the Restatement notes the differing rules that apply among the jurisdictions canvassed, with many cases focusing on intentional, outrageous, or reckless behavior or similarly egregious circumstances, and some that have allowed emotional distress damages for malpractice causing a client’s imprisonment. See id. at cmt. g; see also Restatement (Second) of Torts § 905 (Am. Law Inst. 1979) (“Compensatory damages that may be awarded without proof of pecuniary loss inсlude compensation (a) for bodily harm, and (b) for emotional distress.“); id. at cmt. g (mentioning “loss of freedom” as an element of emotional distress damages “if the defendant intentionally causes the loss“).
It is sensible to recognize that a legal malpractice claim can, in certain circumstances, result in an award of emotional distress damages. But, in the present matter, there is an unavoidable hurdle to any such award: emotional distress damages are controlled under the TCA through its limitations on the recovery of a pain and suffering award.
Our case law holds that emotional distress is considered pain and suffering under the TCA. See Ayers, 106 N.J. at 577; cf. Collins v. Union Cty. Jail, 150 N.J. 407, 422-23 (1997) (recognizing that a permanent psychological injury, when properly documented, can meet the verbal threshold requirements of the TCA for emotional distress as a pain and suffering award). There is no other category of damages into which plaintiff’s claim -- denominated аs loss of liberty damages or quality of life damages -- fits in this legal malpractice claim premised on attorney negligence.5 It is either economic
As the Appellate Division correctly held, Nieves failed to satisfy the standards for vaulting the verbal threshold for a pain and suffering damages claim under the strictures of
V.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate opinion, dissenting in part.
Antonio Chaparro Nieves, a/k/a Anthony Chaparro, Plaintiff-Appellant, v. Office of the Public Defender and Peter S. Adolf, Esq., Defendants-Respondents.
JUSTICE ALBIN, dissenting in part.
I agree with the majority that the Tort Claims Act (TCA),
I disagree with the majority, however, that the TCA’s limitation on awards for “pain and suffering” in
I therefore respectfully dissent.
I.
[n]o 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.
[
N.J.S.A. 59:9-2(d) .]
The first canon of statutory interpretation is to look to the plain language of the statute to discern its meaning. See DiProspero v. Penn, 183 N.J. 477, 492-93 (2005). The statute, by its terms, limits only “the recovery of damages for pain and suffering” unless the verbal threshold is met. It does not limit the
Pain and suffering is generally defined as “subjective symptoms of depression, stress, health concerns, and anxiety” or “intangible, subjective feelings of discomfort that are associated with personal injuries.” Ayers v. Township of Jackson, 106 N.J. 557, 571, 576 (1987); see also Model Jury Charges (Civil), 8.11E, “Disability, Impairment and Loss of the Enjoyment of Life, Pain and Suffering” (rev. May 2017) (defining pain and suffering as “the pain, physical and mental suffering, discomfort, and distress that a person may endure as a natural consequence of the injury“); 2 Stein on Personal Injury Damages § 8:2 (3d ed.) (defining pain and suffering as not only “physical pain,” but also “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, or ordeal“).
Loss of liberty damages are a distinct category of damages from pain and suffering damages, as recognized by other jurisdictions. The United States Court of Appeals for the Second Circuit has held that “[t]he damages recoverable for loss of liberty for the period spent in a wrongful confinement are separable from damages recoverable for such injuries as physical harm, embarrassment, or emotional suffering.” Kerman v. City of New York, 374 F.3d 93, 125 (2d Cir. 2004); see also Martinez v. Port Auth. of N.Y. & N.J., 445 F.3d 158, 161 (2d Cir. 2006) (recognizing that “emotional distress and loss of liberty [are] separate components of [a] false arrest claim” and therefore “are ‘separable’ and thus separately compensable“). The purpose of loss of liberty damages is to “redress the denial of free movement and the violation done to [the plaintiff’s] dignity as a result of the unlawful detention, and not the physical and mental injuries arising from the incident.” Gardner v. Federated Dep’t Stores, Inc., 907 F.2d 1348, 1353 (2d Cir. 1990); see also Phillips v. District of Columbia, 458 A.2d 722, 725 (D.C. 1983) (recognizing loss of liberty damages and holding that “the single fact of imprisonment, the deprivation of one’s right to move about, is compensable“).
Not all non-pecuniary damages fall within the category of pain and suffering damages. Model Civil Jury Charge 8.11E distinguishes between damages for disability impairment, loss of enjoyment of life, and pain and suffering. Loss of enjoyment of life is defined as “the inability to pursue one’s normal pleasure and enjoyment.” Model Jury Charges (Civil), 8.11E (citing Eyoma v. Falco, 247 N.J. Super. 435, 452 (App. Div. 1991)). “[T]he actual loss of enjoyment of life is not a function of pain and suffering.” Eyoma, 247 N.J. Super. at 452. Additionally, “[d]isability and impairment is clearly distinct and separate from pain and suffering.” Ibid.
Indeed, in Ayers, this Court distinguished between quality of life damages and pain and suffering damages in an action brought by municipal residents against Jackson Township for ground and water contamination. 106 N.J. at 565, 569-72. Acknowledging that quality of life damages derive from the law of nuisance, the Court concluded that “quality of life damages represent compеnsation for losses associated with damage to property,
Additionally, loss of liberty does not fall within the category of emotional distress. The elements of emotional distress damages, in many ways, are indistinguishable from pain and suffering damages. Ayers, 106 N.J. at 576; see also Tarr v. Ciasulli, 181 N.J. 70, 77-78 (2004) (listing cases in which emotional distress damages were recoverable for various types of injuries). Loss of liberty, moreover, is an objective fact. A determination that a person has been deprived of liberty does not require an inquiry into subjective feelings of emotional distress or mental anguish.
There is no basis in the TCA or our jurisprudence for the majority’s conclusion that “loss of liberty damages fall within the subset of emotional distress” in legal malpractice actions, see ante at ___ (slip op. at 19), or, for that matter, in any other legal action. Had the Legislature intended to sweep into the verbal thrеshold more than just pain and suffering damages, the statute would have limited the recovery of not just pain and suffering but also loss of liberty damages, or would have limited recovery of all non-pecuniary damages. See
The majority’s conflation of loss of liberty damages with pain and suffering and emotional distress damages undoubtedly will become a source of confusion in future cases. By blurring the lines between loss of liberty and pain and suffering/emotional distress damages, the majority decision raises certain questions. Will an individual who is wrongly arrested and confined not be entitled to damages for the loss of his liberty solely because he did not suffer “permanent loss of a bodily function, permanent disfigurement or dismemberment” under
Words and phrases make a difference. They do not have endless elasticity. Defining loss of liberty damages as the same as pain and suffering and emotional distress damages is a breaking point. I therefore respectfully dissent.
II.
To be clear, I believe that plaintiffs must vault a high threshold to be entitled to non-pecuniary damages in a legal malpractice action, whether against a public defender or a private attorney. At least in the absence of “egregious or extraordinary circumstances,” damages for pain and suffering, loss of liberty, and loss of enjoyment of life should not be permissible. See Gautam, 215 N.J. Super. at 399; Ovando v. County of Los Angeles, 71 Cal. Rptr. 3d 415, 439-40 (Ct. App. 2008) (hоlding that “[a]n emotional injury resulting from the incarceration of an innocent defendant is plainly foreseeable” and therefore “a defense attorney in a criminal case owes a duty to his or her client to avoid such an injury“). But cf. Dombrowski v. Bulson, 971 N.E.2d 338, 340-41 (N.Y. 2012) (declining to depart from New York’s rule “limiting recovery in legal malpractice actions to pecuniary damages” because to allow non-pecuniary damages
Because the present record before this Court does not indicate whether the alleged legal malpractice here was “egregious or extraordinary,” I would remand to the trial court for consideration of this issue.