Recent Blog Posts

• Trespass Actions Under the Tort Claims Act An action for trespass arises upon the unauthorized entry onto another's property, real or personal. A trespass on property, whether real or personal, is actionable, irrespective of any appreciable injury. Under a trespass theory, a plaintiff may "assert a claim for whatever damages the facts may lawfully warrant." Thus, a plaintiff may claim damages from the loss in value to the land trespassed upon, as well as consequential damages such as property taxes and loss of profits. While a municipality enjoys immunity for its exercise of discretion and judgment in the development of a sewer and drainage plan, such immunity does not protect it from liability for the creation of a nuisance or actual trespass. ....
• When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 4 This blog is the fifth and final installment in a series of posts discussing an individual’s potential liability for the collective decisions made by their board. Be sure to read our previous posts online here. A Board that acts in reliance upon advice of its experts and legal professionals cannot be held liable for negligence or breach of fiduciary duty if that advice turns out to be wrong. A provision of the New Jersey Nonprofit Corporation Act specifically provides, in relevant part: Trustees and members of any committee designated by the board shall discharge their duties in good faith and with that degree of diligence, care and skill which ordinary, prudent persons would exercise under similar circumstances in like positions. In discharging their duties, trustees and members of any committee designated by the board shall not be liable if, acting in good faith, they rely on the opinion of counsel for the corporation or upon written reports setting forth financial data concerning ....
• When Can An Action for Nuisance Be Brought Against a Public Entity? An action for nuisance may be brought against a public entity unhampered by the TCA. Private nuisance is but one possible theory for recovery of damages caused by the invasion of one's interest in the private use and enjoyment of land. That interest may be invaded by more than one type of conduct, i.e., the conduct may be intentional, it may be unintentional but caused by negligent or reckless conduct, or it may result from an abnormally dangerous activity for which there is strict liability. One is subject to liability for private nuisance if the invasion is either: (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities. [Restatement (Second) of Torts, � 822 (1979).] The conduct necessary to make the actor liable for a private nuisance may consist of an act or a failure to act under circumstances in which the actor is under a duty to ....
• When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 4 This blog is the fourth in a series of posts discussing an individual’s potential liability for the collective decisions made by their board. Be sure to read our previous posts online here. When liability for any of these breaches is imposed on an individual director or trustee, the issue of indemnification arises. In New Jersey, because condominium associations are generally organized as not-for-profit corporations under the Nonprofit Corporation Act, indemnification may be available to an officer of an entity organized under this Act provided that the officer (1) “acted in good faith and in a manner which the [officer] reasonably believed to be in or not opposed to the best interests of the corporation,” and (2) “with respect to an criminal proceeding, the [officer] had no reasonable cause to believe the conduct was unlawful.” N.J.S.A. 15A:3-4(b). If the director can satisfy this standard, he can recover from the association both expenses incurred in the litigation and the amount ....
• Design and Plan Immunity The immunity principle espoused by the Barney’s Furniture court (concluding that the city could not be held liable in damages for floods resulting from a gradually increasing functional incapacity of the sewer system) is codified as the planning and design immunity provision of the TCA. See N.J.S.A. 59:4-6. The Act's plan or design immunity is granted because such decisions are "an example of the type of highly discretionary governmental activity which the courts have recognized should not be subject to the threat of tort liability." N.J.S.A. 59:4-6 cmt. Thus, under Barney's Furniture, as well as under the Tort Claims Act, a public entity may establish plan or design immunity for its original construction of a drainage system. Once it does, "no subsequent event or change of condition shall render a public entity liable on the theory that the existing plan or design of public property constitutes a dangerous condition." N.J.S.A. 59:4-6 cmt. Although plan or design immunity does not ....
• When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 3 This blog is the third in a series of posts discussing an individual’s potential liability for the collective decisions made by their board. Be sure to read our previous posts online here. New Jersey courts that have considered the application of the business judgment rule have concluded that the scope of judicial review of condominium association decisions is limited to a two-pronged test: (1) whether an association's action was authorized by statute or its own bylaws and, if so, (2) whether the action was fraudulent, self-dealing or unconscionable. Thanasoulis, supra, 110 N.J. at 655; see also Chin v. Coventry Square Condo, 270 N.J. Super. 323, 328-29, (App. Div. 1994); Siller, supra, 93 N.J. at 382; Papalexiou v. Tower West Condo, 167 N.J. Super. 516, 527 (Ch. Div. 1979). In Thanasoulis, the New Jersey Supreme Court considered whether a rule adopted by the board of directors of a condominium association increasing the parking fee for tenants of nonresidents owners but not for those ....
• Discretionary Immunity and Negligent Operation Public entities, however, are not liable for discretionary activities. The section that confers immunity based upon discretionary activities reads as follows: (a) A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity; (b) A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature; (c) A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services; (d) A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether or how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a ....
• When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 2 This blog is the second in a series of posts discussing an individual’s potential liability for the collective decisions made by their board. Be sure to read our previous posts online here. Since condominium associations are generally organized as non-profit corporations under N.J.S.A. 15A:1-1 et seq., the New Jersey Nonprofit Corporation Act is quite instructive on a Board member’s standard of care: Trustees and members of any committee designated by the board shall discharge their duties in good faith and with that degree of diligence, care and skill which ordinary, prudent persons would exercise under similar circumstances in like positions. [N.J.S.A. 15A:6-14.] Moreover, the overriding scheme of the Condominium Act requires an association to act as a fiduciary and make decisions for the protection of the whole condominium and each of the constituent owners, not to act discriminatorily, arbitrarily, or in bad faith. See Billig v. Buckingham Towers Condo. Ass'n I, Inc., 287 N.J. ....
• Inside the Tort Claims Act The New Jersey Tort Claims Act (the “TCA” or the “Act”) provides that "a public entity is not liable for an injury" caused by an act or omission "[e]xcept as otherwise provided by this act." N.J.S.A. 59:2-1a. Under the TCA, immunity is the rule and liability is the exception. The TCA defines public entities to include counties and municipalities, and therefore townships also fall within the scope of the TCA. N.J.S.A. 59:1-3. One relevant exception to the general rule of immunity covers dangerous conditions on public property. N.J.S.A. 59:4-2. That section provides: A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) a negligent or wrongful act or omission of an employee ....
• When Can Individual Association Board Members Be Held Personally Liable For Actions of the Collective Board? Part 1 This blog is the first in a series of posts discussing an individual’s potential liability for the collective decisions made by their board. Be sure to check back for future posts. Like directors of corporations, members of association Boards enjoy various protections for the consequences of their business decisions. Essentially, in order for a Board member to be personally liable for an act of the Board, the Plaintiff would have to prove either (1) that the Board acted without authorization from the association’s governing documents, Condominium Act or other statute; or (2) that an authorized act of the Board was fraudulent, unconscionable or resulted in self-dealing. Generally, as long as a Board member acts in good-faith and makes informed decisions, he will be protected from personal liability by operation of the business judgment rule. An association is comprised exclusively of the unit owners who, through their individual deeds, automatically become members. In essence, an ....
• Can Public Entities and Planning Boards Be Held Liable for Negligently Approving Construction Plans or Wrongly Issuing Permits? The law in New Jersey is such that a public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or public employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked. Pursuant to N.J.S.A. 59:2-3, "(a) a public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity; (b) a public entity is not liable for legislative or judicial action or inaction or administrative action or inaction of a legislative or judicial nature." Determining whether governmental action is discretionary for the purposes of the Tort Claims Act generally depends upon whether the decision is a high level policy decision. Generally high level policy decisions classified as discretionary acts ....
• The Perils of Overstating a Construction Lien Often times, a subcontractor or general contractor may be left with no other option after attempting to collect funds from a general contractor or owner then to file a Construction Lien to collect these funds at some future time. The party filing the Construction Lien, however, should be careful to ensure that the Lien is not overstated and it is accurate in its entirety. While Construction Lien Law allows a contractor to file a Lien against a property, it is also favorable to the property owner if the Construction Lien is improperly filed, overstated, or contains incorrect information. As a reference point, the process for filing a Construction Lien with regard to a residential property is entirely different than commercial Liens. As to non-residential properties, a contractor must first be able to demonstrate the existence of a Construction Agreement. In the absence of a signed Contract, a party may not file a Construction Lien. The individual must then make sure that the Lien has ....
• Can Municipalities and Building Inspectors Be Held Liable for Negligently Issuing Certificate of Occupancies? Many residents and laymen naturally assume that a municipality or building inspector that issues a certificate of occupancy should be held liable if they make a mistake or negligently issue the certificate. However, most people are surprised to learn that, as a matter of law, a municipality is not liable in tort for negligently granting a certificate of occupancy. In Fiduccia v. Summit Hill Constr. Co., 109 N.J. Super. 249 (Cty. Ct. 1970), the court has the occasion to address the very question of whether a municipality may be held liable to a landowner for negligence in granting a certificate of occupancy. The court concluded that it could not. The facts of the case are quite straightforward. Defendant builder built a home for plaintiff homeowner for which the municipality issued a certificate of occupancy. The homeowner then instituted suit against the builder and municipality alleging that the builder improperly graded the land and failed in other respects to construct the home ....
• Validity of "Paid When Paid" Provision In many construction contracts, the general contractor or the owner will often insert a “Paid When Paid” provision within the Contract which dictates when payment will be due to the general contractor or subcontractor. In the past, the Court’s had construed many of these “Paid When Paid” provisions as only controlling the timing of the payment to be made pursuant to the contract and not an absolute bar to payment being tendered. Recently, however, the Court’s have begun to strictly enforce the “Paid When Paid” provisions provided they are clearly worded and all parties had prior notice of the provision. In general, the Court has stated that where the condition precedent of upstream payment prior to payments being tendered to the subcontractor or contractor was clear and unambiguous and there is no room for interpretation, the Court must strictly construe the “Paid When Paid” provision of the contract. In order to properly fashion one of these clauses, it should be clear and the terms ....
• Public Employee Immunity and the Tort Claims Act Under the New Jersey Tort Claims Act (the “Act” or “TCA”), N.J.S.A. 59:1-1 et seq., public entities are liable for their negligence only as set forth in the Act and in accordance with the fair and uniform principles contained therein. The TCA seeks to provide compensation to tort victims without unduly interfering with governmental functions and without imposing an excessive burden on taxpayers. The Act establishes sovereign immunity for public entities, but does not similarly shield public employees. Thus, with respect to public entities, immunity is the rule, and liability the exception. The analysis for determining public-employee liability under the Act differs from the analysis for determining public-entity liability. Accordingly, when public employees are involved in activities that require discretionary decisions regarding the allocation of resources, they are liable only when their actions have been palpably unreasonable. See N.J.S.A. 59:3-2(d) (providing qualified immunity for ....
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