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Subsection (a) concerns the “exercise of judgment or discretion” in making basic policy — the type made at the planning, rather than the operational level of decision-making. Moreover, immunity is contingent upon proof that discretion was actually exercised at that level by an official who, faced with alternative approaches, weighed the competing policy considerations and made a conscious choice.
Continue Reading Discretionary Immunity and Negligent Operation

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.
Continue Reading Inside 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.
Continue Reading Public Employee Immunity and the Tort Claims Act

This blog is the second in a series of blogs discussing the New Jersey Home Warranty and Builders’ Registration Act. This blog will discuss when the election of remedies provision is triggered. You can access previous installments of this series online here.
Continue Reading Why the Homeowner Warranty Program Remedy is no Remedy At All – Part 4

This blog is the second in a series of blogs discussing the New Jersey Home Warranty and Builders’ Registration Act. This blog will provide an overview of how to file a claim under the New Jersey Home Warranty and Builder’s Registration Act. You can access previous installments of this series online here.
Continue Reading Why the Homeowner Warranty Program Remedy is no Remedy At All – Part 2

Since its inception, the New Jersey Home Warranty and Builders’ Registration Act (the “Act”), N.J.S.A. 46:3B-1 to -20, has proven to be more of trap for new homeowners than the safety net it was purported to be. The purpose of the Act is to establish a program requiring that newly constructed homes conform to certain construction and quality standards as well as to provide buyers of new homes with insurance-backed warranty protection in the event such standards are not met. While the intent of the Act is to provide homeowners with a prompt, convenient and cost-saving means of resolving disputes concerning construction defects, in reality, its effect has been, in many cases, to strip homeowners of any meaningful means of recovery for discovered construction defects.
Continue Reading Why the Homeowner Warranty Program Remedy is no Remedy At All – Part 1

On Monday, November 15th, 2010, the New Jersey Supreme Court issued its highly anticipated decision in the controversial case of Dean v. Barrett Homes, Inc., 406 N.J. Super. 453 (App. Div. 2009), cert. granted, 200 N.J. 207, 976 (2009). The contested issue in Dean was whether the economic loss doctrine, a judicial construct which bars recovery in tort for damage a product causes only to itself, applied to bar a homeowner’s tort claim for a defective exterior finishing system installed on their home during construction.
Continue Reading New Jersey Supreme Court Reverses Appellate Division in Seminal Economic Loss Rule Case

Contributory negligence is the common-law construct whereby any negligence by a plaintiff acts as a total bar to recovery against a negligent tortfeasor. The contributory negligence doctrine has been uniformly criticized as overly harsh, allowing culpable parties to avoid the consequences of their actions, and leaving relatively innocent plaintiffs without recourse.
Continue Reading New Jersey Appellate Division Resurrects Deceased Contributory Negligence Doctrine: Consumer’s Pre-Purchase Notice of Product Defect Bars PLA Recovery of “Other Property” Damage Inflicted After Purchase