Tort Notice Rule Held Inapplicable to Government Contractors

FREEHOLD, N.J. - April 29, 2016 - PRLog -- A New Jersey appeals court has ruled that plaintiffs suing contractors working for public entities do not have to comply with the 90-day notice requirement of the state's Tort Claims Act.

In a published decision, the three-judge Appellate Division panel said private contractors, while performing work that normally would be done by public entities, do not fall within the notice requirements of the TCA.

"We hold that the Tort Claims Act ... does not require service of such a notice upon a private government contractor," Appellate Division Judge Jack Sabatino said in Gomes v. Monmouth County. Judges Allison Accurso and Karen Suter joined in the ruling.

The case involves a woman, GinaMarie Gomes, who was briefly jailed at the Monmouth County Correctional Institution, where a private company, Correct Care Solutions, is the private contractor hired to provide medical care to inmates.

Gomes presented herself at the jail June 2, 2012, to serve a brief period of incarceration for a parole violation, according to the appeals court's opinion.

During the intake process, Gomes told medical staff that she suffered from asthma, heroin withdrawal, kidney disease, hepatitis C and other issues, and that she had been prescribed Cipro, an antibiotic, and an asthma inhaler. The medical screening was performed by CCS employees, the ruling said.

The Cipro had been prescribed to treat a "severe infectious condition," the ruling said, adding that, for some reason, the drug was confiscated from her during the intake process.

The medical staff, according to the opinion, ordered a new five-day supply of Cipro, but cancelled it pending the results of blood tests and until the jail received her medical records. During her incarceration, Gomes said she never received her prescribed Cipro dosage.

Gomes was housed in the jail for 23 days. During that time, she repeatedly complained of having a sore throat, coughing, lower back pain, decreased mobility and other ailments, according to the opinion. CCS, the ruling said, gave her palliative medications.

On June 25, 2012, Gomes' condition had become so acute that she was transferred to a hospital, where she was diagnosed as having a "large epidural abscess with cord compression," the ruling said.

Gomes, in her lawsuit, said she has been left permanently paralyzed and incontinent, and that her condition could have been prevented had CCS staff provided her with the Cipro that had been prescribed for her.

The TCA requires that a public entity that is likely to be a defendant in a tort case be notified of a possible claim within 90 days of the accrual of an injury.

Gomes served a timely TCA notice on the county, the jail and the state on Aug. 24, 2012, and then filed a lawsuit against those parties and CCS.

The lawsuit alleged negligence, intentional tort and breach of contract. Gomes said the defendants intentionally withheld her medication and caused her personal harm. She also alleged negligent observation, inadequate medical testing procedures, inadequate keeping of medical records, negligent hiring and failure to follow mandated procedures for retaining private medical providers.

Monmouth County Superior Court Judge Joseph Quinn dismissed the claims against all of the defendants. He ruled that the claims against the public entities were barred because they could not be held vicariously liable. And he agreed with CCS that the allegations against the company should be dismissed because it was not properly served with a TCA notice.

The appeals court disagreed with Quinn's ruling on the claims against CCS.

"[T]here is no such obligation, either in the language of the Tort Claims Act or one logically compelled by the policies underlying the statutory scheme," Sabatino said.

The TCA requires a 90-day notice to any "public entity," which is defined in the statute as "the state, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the state." The notice requirement also includes anyone defined as a "public employee."

Sabatino noted that none of the standard forms used in TCA notices ask plaintiffs to identify any private contractors or entities.

"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 statutes' notice provision," Sabatino said, adding that CCS does not satisfy any of the definitions of a public entity.

"Under the contractual agreement with CCS, the county has apparently delegated at least some ... functions to CCS," he said. "That delegation does not however, automatically convert CCS into a 'public entity' for all purposes under the TCA.

"Plaintiff should not have been required to assume that she was supposed to provide any more notice of that incident than what she had already supplied to the county," Sabatino said. "The Legislature has not directed that duplicative notices be served upon private contractors or their insurers."

Gomes' attorney, Herbert Ellis (http://www.herbertellis.com/), agreed that it was unfair to require Gomes to provide notice to CCS.

Ellis, who heads a firm in Freehold, said he did not even know the identity of the contractor within the 90-day timeframe since discovery had not begun and he had not been given a copy of the contract.

"This opens the door to lawsuits against this entity that until now has been immune because of a technicality," Ellis said. "It's nice to see the TCA has been defined better."

CCS' attorney, Melissa Brown, of the Pennsauken office of Marks, O'Neill, O'Brien, Doherty & Kelly, did not return a call seeking comment on the ruling.

Contact the reporter at mbooth@alm.com.