Tort Claims Act Notice Need Not be Served on Private Government Contractor

Gomes v. County of Monmouth, ___ N.J. Super. ___ (App. Div. 2016). The Tort Claims Act, N.J.S.A. 59:1-1 et seq. (“TCA”), requires that a plaintiff who intends to sue a “public entity” or “public employee” in tort must first serve a notice of tort claim on the relevant public entity. That notice is jurisdictional. The question here was whether plaintiff, who was briefly incarcerated at the Monmouth County Correctional Institution, needed to serve a notice of tort claim on defendant Correct Care Solutions, Inc. (“CCS”). CCS, a private company, provided medical services to inmates at the correctional facilities pursuant to a contract with Monmouth County.

Plaintiff alleged that she sustained harm because CCS had denied her access to Cipro, an antibiotic that she had been prescribed, and which she had with her when she reported to the correctional facility. The Law Division found that a notice of tort claim to CCS was required, and therefore dismissed the complaint for failure to state a claim. On plaintiff’s appeal, the Appellate Division reversed in an opinion by Judge Sabatino that applied the de novo standard of review.

After discussing the background of the TCA and the policy behind the notice of tort claim, which is designed to give “public entities” time to investigate and, if appropriate, resolve claims expeditiously, Judge Sabatino focused on the language of the TCA. The TCA’s definition of “public entity” includes “the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State.” A “public employee” is defined as “an officer, employee, or servant, whether or not compensated or part-time, who is authorized to perform any act or service; provided, however, that the term does not include an independent contractor.”

CCS did not fall within the definition of “public entity” or “public employee.” In fact, Judge Sabatino observed, CCS is a private, independent contractor, whose employees were “specifically carved” out of the latter definition. The fact that CCS “apparently performs certain functions that the County otherwise would have had to perform itself” did not convert CCS into a “public entity.”

Judge Sabatino noted 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.'” The limited record at this stage of the case did not allow the panel to decide whether derivative immunity could apply to CCS. That would have to await full discovery. But on the narrow issue of whether notice of tort claim must be served on private contractors who perform governmental functions, the panel’s answer was “no.”