The Tort Claims Act and The Requirements Necessary for Bringing Suit Against Public Employees and Public Entities

Derrick Foster v. Troy Frye

Docket No.:    A-1512-20

Decided July 25, 2022

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

In a recent unpublished decision, the Appellate Division overturned a dismissal of a personal injury complaint after plaintiff sued a police officer and the city of Newark for injuries sustained in a motor vehicle accident, and the passenger in the police officer’s vehicle settled with the plaintiff, causing plaintiff’s claim for contribution against Newark to be dismissed, and barring plaintiff’s original claim against Newark as a result pursuant to the Tort Claims Act.

In Foster v. Frye, Foster, an off-duty Newark police officer, was injured in a motor vehicle accident involving an on-duty Newark police officer, Frye. Frye was driving a police vehicle. Frye’s partner, Hipolito Felix, was in the passenger seat of the police vehicle.

The trial court found that on November 2, 2017, Frye “unexpectedly made an improper U-turn” while in pursuit of a suspect who Frye and Felix believed to be armed. The improper turn brought the police vehicle into the path of Foster’s privately-owned vehicle, which was traveling in the opposite direction. Foster sustained serious injuries in the ensuing collision.

On October 4, 2018, plaintiff brought suit against Frye in Essex County Superior Court, claiming negligence, and against the city of Newark under the principle of respondeat superior. We refer to this suit as the “major claim.” On March 15, 2019, the Newark defendants filed their answer.

On October 26, 2019, Felix filed a complaint against plaintiff, but not against Frye. We refer to this action as the “minor claim.” On March 4, 2020, Foster filed an answer to Felix’s complaint along with a third-party complaint against the Newark defendants, demanding contribution in the event Foster was found liable in the minor claim. It should be noted that Foster’s interests in the minor claim were represented by a different attorney than the major claim.

On April 8, 2020, the Newark defendants jointly moved to consolidate Foster v. Frye (the major claim) and Felix v. Foster (the minor claim). Foster’s counsel opposed the consolidation. On April 24, 2020, the Essex County Assignment Judge entered an order granting the Newark defendants’ motion, consolidating the two lawsuits “into a single action . . . for all purposes . . . [.]” Citing Moraes v. Wesler, that order explained that “[h]ere, consolidation is appropriate because both actions arise out of the same motor vehicle accident and involve the same parties. . . . Absent consolidation of these actions for joint resolution, there is a risk of inconsistent jury verdicts.” 439 N.J. Super. 375, 379 (App. Div. 2015).

The same day the consolidation order was entered, Progressive’s counsel signed on Foster’s behalf a stipulation of dismissal, with prejudice, of the minor claim suit. In the settlement, filed May 11, 2020, “[i]t [was] stipulated and agreed, by and between counsel for plaintiff, Hipolito Felix and counsel for defendant, Derrick Foster that this action be dismissed as to defendant, Derrick Foster with prejudice and without costs.” The record shows that counsel representing the Newark defendants had proposed that the dismissal on the minor case include a provision dismissing the third-party complaint against the Newark defendants. We add that although the stipulation purports to have been agreed to by counsel for Foster, in fact, the stipulation had been negotiated by and agreed to by Progressive’s counsel. So far as the record shows, Foster’s counsel played no role in the negotiations that resulted in the settlement of the minor claim.

The resolution of the minor claim provided that Progressive would pay Felix a nominal amount, $3,000, in consideration for his agreement to dismiss his lawsuit. It also provided for the dismissal of the third-party contribution claim against the Newark defendants raised in response to Felix’s suit against Foster. Foster received no compensation whatsoever from the settlement of the minor claim.

On November 20, 2020, the Newark defendants moved for summary judgment in the major claim action. The issue before the trial court was whether the settlement dismissing with prejudice Foster’s third-party contribution claim against the Newark defendants as part of the minor claim lawsuit precluded Foster from pursuing the major claim lawsuit against the Newark defendants by operation of N.J.S.A. 59:9-6.

On January 13, 2021, the trial court heard oral argument on the summary judgment motion, at the conclusion of which the court rendered an oral ruling concluding that “the statute provides a complete bar to recovery to the plaintiff.” The judge concluded that the settlement of the minor case (against Foster) means the major case (against the Newark Defendants) is barred by the plain language of N.J.S.A. 59:9-6. The court therefore found that “the notice of dismissal [of the minor case] is . . . a judgment on the merits that carries preclusive effect as to the major case [against the Newark defendants].”

Foster appealed and the Appellate Division reversed the dismissal and bar of his major claim, finding that the stipulation of dismissal was not a “judgment or settlement” within the meaning of the statute, mainly because Foster’s counsel for the major claim did not participate in the settlement of the minor claim. Therefore plaintiff’s complaint was reinstated.

This case is important to understand the complexities of the Tort Claims Act and the requirements necessary for bringing suit against public employees and public entities. This case is unique and perhaps one-of-a-kind circumstances leading to plaintiff’s premature dismissal of the complaint.  Nonetheless, the lesson is important to have competent counsel familiar with the complexities of notice and claim requires under the Tort Claims Act if you are injured involving a public entity or public employee.

If you or someone you know has been injured in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.


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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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