Government Contractors Not Protected by New Jersey Tort Claims Act’s Pre-Suit Notice Provisions

On April 14, 2016, the New Jersey Appellate Division, in a precedential decision, determined that injured parties are not obligated to serve pre-suit tort claims notices under the New Jersey Tort Claims Act (“TCA”) on private government contractors.

In Gomes v. County of Monmouth, et al. (A-1679-14T4, approved for publication), plaintiff filed a lawsuit against, among others, Correct Care Solutions, Inc. (“CCS”), alleging that she had been injured after being unlawfully denied access to her prescribed antibiotic medication during her incarceration at the Monmouth County Correctional Institution (“MCCI”).  CCS is a private company that, during the relevant time, provided medical services to inmates housed at the MCCI pursuant to a contract with the County of Monmouth.   The trial court ruled that plaintiff’s claims were barred as against CCS because she had failed to serve CCS with notice of her claim within ninety days of the accrual of the claim, as the trial court determined was required by the TCA under N.J.S.A. 59:8-8.  On appeal, the Appellate Division reversed, holding that there was no obligation, “either in the language of the Tort Claims Act or one logically compelled by the policies underlying the statutory scheme[,]” requiring a plaintiff to provide a tort claims notice to a public entity’s private contractor.

The Gomes court, however, was careful to point out that its holding was limited to the TCA’s pre-suit notice provisions, and did not extend to any other possible protections offered by the TCA to government contractors.  For example, the court expressly “recognize[d] 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.’”  One of the cases cited by the court where such immunity was found to have applied was Cobb v. Waddington, 154 N.J. Super. 11 (App. Div. 1977), certif. denied, 76 N.J. 235 (1978).  In Cobb, plaintiff was injured in an automobile accident, and sued, among others, a Department of Transportation (“DOT”) contractor that had been performing road construction work at the site of the accident and had set up barricades which plaintiff struck during the accident.  The barricades, however, had been specified in type and configuration by the DOT, and the contractor merely followed the DOT’s specifications in purchasing and setting up the barricades.  Because the DOT was found to be immune from liability under the TCA based, among other things, on its protected exercise of discretion, and because the contractor was merely acting pursuant to the DOT’s exercise of discretion, the DOT’s immunity was deemed extended to the contractor.

Contractors, including construction contractors, who perform work for any governmental entity in New Jersey, as well as their counsel, should be aware, in light of the Gomes decision, that they are not entitled to the protections of the TCA’s pre-suit tort claims notice provisions, although they still may be subject to other protections afforded by the TCA, such as derivative immunity.