Henebema v. South Jersey Transportation Authority, 430 N.J. Super. 485 (App. Div. 2013). The key issue in this case, in which the opinion of the Appellate Division was written by Judge Fasciale, was whether a judge or a jury is to decide “whether defendants either exercised discretionary decisionmaking or performed ministerial acts, a decision central to applying the correct standard of liabliity under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3.” The panel ruled that where there is a genuine dispute of material fact as to that question, the jury, not a judge, must decide it. Because a judge decided that issue here even though there was such a genuine dispute of fact, the Appellate Division reversed a jury verdict for plaintiff of over $9 million and ordered a new trial.
“[I]mmunity under the Act exists for discretionary activities unless a public entity’s actions were palpably unreasonable.” The “palpably unreasonable” standard “imposes a steep burden on a plaintiff.” In contrast, if what is at issue is a public entity’s mere ministerial act, “ordinary negligence principles” would apply. Judge Fasciale cited cases from other jurisdictions that held that a jury, not a judge, is to decide this issue where there is a genuine dispute of material fact as to it. This issue affected the jury instructions, and Judge Fasciale gave directions as to how the instructions could be handled at a new trial.
On other issues, plaintiff did prevail. The panel rejected defendants’ argument that plaintiff’s expert offered a net opinion. Using the deferential abuse of discretion standard of review applicable to decisions to admit expert testimony, Judge Fasciale found no abuse of discretion. Nor did the panel accept defendants’ argument that their motion for remittitur was erroneously denied. Again, the standard of review is deferential, and the Appellate Division deferred to the trial judge’s “feel of the case” in this regard. Moreover, defendants’ citations of “comparable” cases involved settled cases rather than jury verdicts, and facts different than those here.
Finally, on damages, the decision was a mixed bag. Plaintiff succeeded in avoiding a retrial on damages and limiting the new trial to liability issues only. Defendants won on the issue of whether, as public entities, they were obligated to pay prejudgment interest since plaintiff had invoked the offer of judgment rule and had succeeded at trial thereafter. Judge Fasciale noted “tension” between Rule 4:58, the offer of judgment rule, which provides for prejudgment interest where a party who made an offer of judgment does better at trial, and the Act, which states in N.J.S.A. 59:9-2(a) that no prejudgment interest may accrue against a public entity or public employee. After carefully analyzing the constitutional issues arising from the separation of powers between the legislative and judicial branches, Judge Fasciale concluded that the best way “to harmonize our constitutional powers with the will of the Legislature” was to deny prejudgment interest in cases under the Act.