GINAMARIE GOMES, Plaintiff-Appellant, v. THE COUNTY OF MONMOUTH, a body politic of the State of New Jersey, and CORRECT CARE SOLUTIONS, LLC, Defendants-Respondents.
DOCKET NO. A-1679-14T4
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
Decided April 14, 2016
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. APPROVED FOR PUBLICATION April 14, 2016 APPELLATE DIVISION.
Submitted February 22, 2016 – Decided April 14, 2016
Before Judges Sabatino, Accurso and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2096-14.
Marks, O‘Neill, O‘Brien, Doherty & Kelly, P.C., attorneys for respondents (Melissa J. Brown and Sean X. Kelly, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This appeal raises in part the novel issue of whether a plaintiff, who was treated by a private medical provider under contract to provide care to inmates at a county jail, must serve that private entity with a tort claims notice before she can sue the company for negligence. We hold that the Tort Claims Act (the “TCA” or the “Act“),
In the unpublished portion of this opinion, we affirm the trial court‘s dismissal of plaintiff‘s intentional tort claims against co-defendant County of Monmouth. We vacate the court‘s dismissal of the other remaining claims as premature, and remand for discovery and other further proceedings.
I.
The record in its present incomplete state reflects the following pertinent facts and allegations. The case arises out of plaintiff GinaMarie Gomes‘s brief incarceration at the Monmouth County Correctional Institution (the “MCCI” or the “County jail“), where defendants allegedly denied plaintiff access to her prescribed antibiotic medication. The MCCI is a unit within defendant County of Monmouth, a public entity. Co-defendant Correct Care Solutions, Inc. (“CCS“) is a private company. During the relevant time period, CCS provided medical services to inmates housed at the MCCI pursuant to a contract with the County.1
On June 2, 2012, plaintiff reported to the MCCI because of an acknowledged parole violation. As part of the intake process that day, the medical staff conducted an initial screening in which plaintiff disclosed her medical history. A mental health screening was also conducted, which found nothing of particular relevance.
According to plaintiff, Cipro had been prescribed by her physician and filled at a pharmacy prior to her admission at the MCCI to address a “severe infectious condition.” For reasons that remain unclear, the antibiotic was confiscated from plaintiff during the intake process. The screening records indicate that medical staff ordered a new five-day dosage of Cipro, but that prescription apparently was cancelled pending blood work and the jail‘s receipt of plaintiff‘s prior medical records. Plaintiff contends that she never received a dosage of Cipro, or any other antibiotic, during her time at the MCCI.
Over the course of the next twenty-three days, plaintiff repeatedly complained of a sore throat, coughing, and other ailments. She also began complaining of lower back pain and decreased mobility. Plaintiff was seen by CCS medical personnel on twenty-seven occasions during this time, and she was prescribed various palliative medications. Nearly all of the documents and records relating to plaintiff‘s care at the MCCI bear the CCS company name and logo.
By June 25, 2012, plaintiff‘s back pain and mobility issues had become so acute that she was transferred to a local hospital. Further medical investigation revealed that she was suffering from a “large epidural abscess with cord compression,” a diagnosis which plaintiff alleges has left her permanently paralyzed and incontinent. She further alleges that the condition could have been prevented had the medical staff at the jail provided her with the Cipro that she was originally prescribed and had brought with her to the facility.
Through her counsel, plaintiff initially served a notice of tort claim upon the County, the MCCI, and the State Attorney General‘s Office on August 24, 2012. Plaintiff‘s counsel received a written response dated December 26, 2012 from PMA Companies (“PMA“), the third-party administrator for the County, acknowledging receipt of the notice. The response further stated in relevant part:
We have reported the claim as well to Correct Care Solutions, of Memphis, Tennessee. This is the private contractor which provides the medical staff at Monmouth County Correctional Institution. Their insurance carrier is Allied Insurance, and I have been advised a claim has been reported to this company.
Plaintiff‘s counsel separately received a letter from the Office of the Attorney General2 informing her that MCCI was a “local public entity” and that the claim, therefore, did not involve the State.
Plaintiff thereafter filed a six-count complaint in the Law Division against the County, CCS, and various fictitious parties. The complaint asserts various claims of negligence, intentional tort, and breach of contract. Each count is premised on a theory that defendants negligently or intentionally
The co-defendants, the County and CCS, each moved to dismiss the complaint in lieu of an answer. The primary arguments advanced by defendants in favor of dismissal were that: (1) plaintiff failed to serve a notice of tort claim upon CCS; (2) plaintiff failed to state a prima facie claim of negligence or intentional tortious conduct against either defendant; and (3) plaintiff is not an intended beneficiary of the contract between the County and CCS and therefore lacks standing to complain about any breaches of that agreement.
After hearing oral argument, the motion judge dismissed the complaint with prejudice as to both defendants. In his written statement of reasons, the judge ruled that plaintiff‘s lawsuit against CCS was barred under the TCA because she had not served a tort claims notice upon the contractor within the ninety-day period set forth in
The judge determined that CCS, as the provider of medical care to inmates at a county jail, is a “public entity” within the meaning of the statute. In making this finding, the judge substantially relied upon this court‘s opinion in Hoag v. Brown, 397 N.J. Super. 34, 47-48, 53 (App. Div. 2007), which treated an employee of a private contractor that provided medical services to a State prison as an employee of the State for purposes of her claim that she had been harassed in her workplace in violation of the Law Against Discrimination (“LAD“),
The judge reasoned that because the medical staff that allegedly acted negligently here worked at the jail and could be considered the functional equivalent of public employees for certain purposes as in Hoag, their employer CCS should be treated as a public entity that must be served with a tort claims notice. Since no such timely notice was served upon CCS, the judge dismissed plaintiff‘s tort-based claims against that co-defendant. The judge rejected plaintiff‘s argument that her service of notice upon the County sufficed as notice to CCS under the circumstances. The judge also rejected plaintiff‘s claims against CCS founded upon her theory that she was an intended third-party beneficiary of the contract between CCS and the County.
The judge then dismissed all of plaintiff‘s claims against the County. He rejected, as a matter of law, plaintiff‘s claims
II.
On appeal, plaintiff contends that the dismissal of her complaint against both defendants was legally erroneous and premature. She also asserts various criticisms of the manner in which the trial judge proceeded to rule on her claims, complaining about the judge‘s citation to unpublished authority.
In considering these arguments, we adhere to the well-established principle that before a court dismisses a civil complaint with prejudice, it must “search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.” Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem‘l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).
Nevertheless, a purely legal question of whether a defendant is insulated from liability because of an immunity or some other statutory provision ideally should be resolved, if possible, at an early stage of the litigation. See Rivera v. Gerner, 89 N.J. 526, 536 (1982) (noting that resolving issues involving the TCA through the pretrial process “is to be encouraged“); Hurwitz v. AHS Hosp. Corp., 438 N.J. Super. 269, 305-06 (App. Div. 2014) (observing in a statutory immunities case that issues involving those immunities should be adjudicated at an “early stage of litigation,” and that an “unfettered right to discovery” would “dilut[e] the practical benefit of the immunity protection“). Indeed, in keeping with the need for expedition, interlocutory appeals from orders granting or denying leave to file a late tort claims notice are now immediately appealable under the Rules of Court as of right. R. 2:2-3(a)(3). Our review of such legal determinations by a trial court is de novo. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012).
A.
The novel and important issue that most warrants our attention here is whether plaintiff was obligated to serve a separate tort claims notice upon co-defendant CCS, a private contractor to the County. We hold that there is no such obligation, either in the language of the Tort Claims Act or one logically compelled by the policies underlying the statutory scheme.
The TCA indisputably governs causes of action in tort against governmental agencies within New Jersey. Velez v. City of Jersey City, 180 N.J. 284, 289-90 (2004). The Legislature enacted the Act in recognition of “the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity,” while still recognizing that government — which cannot abstain from its obligation to govern in the
Generally, a defendant organization falls within the purview of the TCA if it is considered a “public entity,” as that term is defined in
The TCA likewise defines the related concept of a “public employee.” According to
When an injured party wishes to pursue a claim against a public entity or a public employee, that party must first file a notice of claim with the public entity involved. Because plaintiff‘s alleged mistreatment occurred at a County jail, the notice provision concerning local governmental entities pertains. See
Functionally, this notice requirement within the TCA is largely intended to “compel a claimant to expose his intention and information early in the process in order to permit the public entity to undertake an investigation while witnesses are available and the facts are fresh.” O‘Neill v. City of Newark, 304 N.J. Super. 543, 549 (App. Div. 1997) (emphasis added) (quoting Lutz v. Twp. of Gloucester, 153 N.J. Super. 461, 466 (App. Div. 1977)).
As our Supreme Court explained in Beauchamp v. Amedio, 164 N.J. 111 (2000), the recognized goals of the TCA‘s notice provision are:
(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense[;] (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State [or local public entity] in advance as to the indebtedness or liability that it may be expected to meet.
[Id. at 121-22 (first alteration in original) (emphasis added)
The first two goals are derived from the Task Force Comment to
The contents of a proper notice of claim under the TCA are governed by
A claim shall be presented by the claimant . . . and shall include:
a. The name and post[-]office address of the claimant;
b. The post-office address to which the person presenting the claim desires notice to be sent;
c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
d. A general description of the injury, damage, or loss incurred so far as it may be known at the time of presentation of the claim;
e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.
[(Emphasis added).]
Under
By way of illustration, pursuant to
Likewise, although the County of Monmouth does not apparently post a standard tort claims notice form on the Internet, a number of other local governments do.5
Here, presumably because a standardized form from the County was not readily available, the notice served on the County by plaintiff was a typed letter prepared by her counsel. The letter addressed the six items required for proper notice under
To require claimants such as plaintiff in this case to serve a pre-suit tort claims notice upon a defendant government contractor would clash with both the text of the TCA and the objectives of the statute‘s notice provision. A private enterprise like CCS is not a “county, municipality, district, public authority, public agency, [or] any other political subdivision or public body in the State.”
To be sure, as the private contractor hired by Monmouth County to provide medical services based at the County jail, CCS apparently performs certain functions that the County otherwise would have had to perform itself. We agree with defendants that the provision of such medical services to County inmates — had they been performed by the County‘s own workers — would comprise a governmental function. Under the contractual agreement with CCS, the County has apparently delegated at least some of those functions to CCS. That delegation does not, however, automatically convert CCS into a “public entity” for all purposes under the TCA.
We recognize that, in appropriate circumstances, private contractors retained by State and local governments to perform some of their functions may be protected by the TCA‘s immunities and special defenses under the concept of “derivative immunity.” See, e.g., Rodriguez v. N.J. Sports & Exposition Auth., 193 N.J. Super. 39, 44-46 (App. Div. 1983) (finding that a private security company that provided security and guards for a public entity was entitled to derivative immunity, noting that a contractor could still be liable for negligence “in the execution of the contract“), certif. denied, 96 N.J. 291 (1984); Cobb v. Waddington, 154 N.J. Super. 11, 18 (App. Div. 1977) (finding that a construction company hired by the State to perform roadwork and install barriers to divert traffic was entitled to derivative immunity), certif. denied, 76 N.J. 235 (1978).
We do not resolve on this limited record whether CCS, in fact, is entitled to such second-hand “derivative” substantive immunity, particularly since the record lacks evidence of the actual contract between the County and CCS, and where discovery on this pivotal subject has yet to be conducted. As an analytical point, however, we note that there would be no need for courts to recognize the concept of derivative immunity if private contractors hired by government agencies were per se regarded for all purposes under the TCA as “public entities.”
None of the four goals of the notice provision, as identified by the Supreme Court in Beauchamp, support construing
We recognize that a private contractor might similarly want to have such claim-related information provided to it, at a pre-suit stage, for its own business or risk management reasons. But the central objectives of the TCA‘s notice provision are solely related to the benefit of governmental decision-makers and, ultimately, the taxpayers who might bear the costs of a successful claim. It is revealing that the tort claims notice forms that have been created by the State and other public entities are designed to require claimants to specify which governmental agency or agencies that he or she alleges was responsible for causing the injury.
When plaintiff duly served her notice upon the County, she was specifically apprised that the medical staff who dealt with her at the jail were employees of CCS, a private entity, whose insurance carrier was identified in the County‘s response. Plaintiff should not have been required to assume that she was supposed to provide any more notice of the incident than what she had already supplied to the County. The Legislature has not directed that duplicative notices be served upon private contractors or their insurers. Of course, the Legislature is free to amend the statute to so require, but that is not how the law is presently worded or structured.
The trial judge‘s reliance on Hoag, supra, 397 N.J. Super. at 53-54, in reaching his contrary conclusion on the notice issue was misplaced. There was no issue of notice involved in Hoag. That case instead turned on whether an employee of a private contractor, who had been working at a State prison and allegedly mistreated by a State employee supervising her, should be regarded as a public employee for purposes of the State‘s anti-discrimination laws and the TCA.
Hoag specifically involved whether the worker‘s relationship with the State Department of Corrections was fundamentally one of an employer and employee for purposes of liability under the LAD. This court found that the State in those circumstances potentially could be regarded as the plaintiff‘s “employer,” given the allegations of its close involvement in the conditions of her workplace, and thereby could be responsible for perpetuating a hostile work environment. Id. at 47-53.
We do not endorse the trial judge‘s overbroad reading of Hoag with respect to the TCA notice issues presented here. Unlike the plaintiff in Hoag, plaintiff Gomes was not employed in a government facility. She was only housed there as an inmate less than a month, before her medical condition became so severe that she had to be transferred to the hospital. The scope of Gomes‘s statutory obligation to provide notice of her tort claims is fundamentally different in character than the question of whether, by comparison, Ms. Hoag‘s substantive rights to a discrimination-free workplace were infringed by the State when it was acting as her employer. For these many reasons, the analysis in Hoag is inapposite to the notice question posed here under
We therefore reverse the trial judge‘s dismissal of CCS for lack of service of a timely notice under
B.
[At the discretion of the court, the published version of this opinion omits Part II(B), which addresses issues unrelated to the notice issue.]
Affirmed in part, reversed in part, and remanded in part. We do not retain jurisdiction.
SABATINO, P.J.A.D.
CLERK OF THE APPELLATE DIVISION