GINAMARIE GOMES v. THE COUNTY OF MONMOUTH and CORRECT CARE SOLUTIONS, LLC

This appeal raises in part the novel issue of whether a

plaintiff, who was treated by a private medical provider under

contract to provide care to inmates at a county jail, must serve

that private entity with a tort claims notice before she can sue

the company for negligence. We hold that the Tort Claims Act

(the "TCA" or the "Act"), N.J.S.A. 59:1-1 to :14-4, does not

require service of such a notice upon a private government

contractor. Consequently, we reverse the trial court's

dismissal of plaintiff's claims against the contractor for

failure to serve it with a notice.

In the unpublished portion of this opinion, we affirm the

trial court's dismissal of plaintiff's intentional tort claims

against co-defendant County of Monmouth. We vacate the court's

dismissal of the other remaining claims as premature, and remand

for discovery and other further proceedings.

I.

The record in its present incomplete state reflects the

following pertinent facts and allegations. The case arises out

of plaintiff GinaMarie Gomes's brief incarceration at the

Monmouth County Correctional Institution (the "MCCI" or the

"County jail"), where defendants allegedly denied plaintiff

access to her prescribed antibiotic medication. The MCCI is a

unit within defendant County of Monmouth, a public entity. Co

defendant Correct Care Solutions, Inc. ("CCS") is a private

company. During the relevant time period, CCS provided medical

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services to inmates housed at the MCCI pursuant to a contract

with the County.1

On June 2, 2012, plaintiff reported to the MCCI because of

an acknowledged parole violation. As part of the intake process

that day, the medical staff conducted an initial screening in

which plaintiff disclosed her medical history. A mental health

screening was also conducted, which found nothing of particular

relevance.

According to the screening forms, plaintiff alerted the

medical staff that she suffered from asthma, heroin withdrawal,

kidney disease, hepatitis C, and several other medical issues.

She reported that she had seen a physician within the preceding

two weeks regarding "kidney issues." Plaintiff also reported

that she had been prescribed a variety of medications, including

Cipro, a broad-spectrum antibiotic, and an asthma inhaler. All

of the medical staff at the jail who performed these intake

services allegedly were employees of CCS.

According to plaintiff, Cipro had been prescribed by her

physician and filled at a pharmacy prior to her admission at the

MCCI to address a "severe infectious condition." For reasons

that remain unclear, the antibiotic was confiscated from

plaintiff during the intake process. The screening records

1 The parties have not furnished us with a copy of the contract.

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indicate that medical staff ordered a new five-day dosage of

Cipro, but that prescription apparently was cancelled pending

blood work and the jail's receipt of plaintiff's prior medical

records. Plaintiff contends that she never received a dosage of

Cipro, or any other antibiotic, during her time at the MCCI.

Over the course of the next twenty-three days, plaintiff

repeatedly complained of a sore throat, coughing, and other

ailments. She also began complaining of lower back pain and

decreased mobility. Plaintiff was seen by CCS medical personnel

on twenty-seven occasions during this time, and she was

prescribed various palliative medications. Nearly all of the

documents and records relating to plaintiff's care at the MCCI

bear the CCS company name and logo.

By June 25, 2012, plaintiff's back pain and mobility issues

had become so acute that she was transferred to a local

hospital. Further medical investigation revealed that she was

suffering from a "large epidural abscess with cord compression,"

a diagnosis which plaintiff alleges has left her permanently

paralyzed and incontinent. She further alleges that the

condition could have been prevented had the medical staff at the

jail provided her with the Cipro that she was originally

prescribed and had brought with her to the facility.

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Through her counsel, plaintiff initially served a notice of

tort claim upon the County, the MCCI, and the State Attorney

General's Office on August 24, 2012. Plaintiff's counsel

received a written response dated December 26, 2012 from PMA

Companies ("PMA"), the third-party administrator for the County,

acknowledging receipt of the notice. The response further

stated in relevant part:

We have reported the claim as well to Correct Care Solutions, of Memphis, Tennessee. This is the private contractor which provides the medical staff at Monmouth County Correctional Institution. Their insurance carrier is Allied Insurance, and I have been advised a claim has been reported to this company.

Plaintiff's counsel separately received a letter from the Office

of the Attorney General2 informing her that MCCI was a "local

public entity" and that the claim, therefore, did not involve

the State.

Plaintiff thereafter filed a six-count complaint in the Law

Division against the County, CCS, and various fictitious

parties. The complaint asserts various claims of negligence,

intentional tort, and breach of contract. Each count is

premised on a theory that defendants negligently or

2 After this appeal was briefed, we invited the Attorney General to participate as an amicus or intervenor to address the statutory issues raised here under the Tort Claims Act. The Attorney General declined our invitation.

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intentionally confiscated and withheld plaintiff's prescribed

medication, causing her personal harm. Although plaintiff does

not explicitly style any of her claims as claims for medical

negligence or medical malpractice, she alleges in count four

several related theories of liability, including negligent

observation; inadequate medical testing procedures; inadequate

documentation and record keeping; negligent hiring of medical

staff; and failure to "adhere to the Internal Management

Procedures for Medication Administration as mandated and

required by, for and of the New Jersey Department of Corrections

Internal Management Procedures[.]"

The co-defendants, the County and CCS, each moved to

dismiss the complaint in lieu of an answer. The primary

arguments advanced by defendants in favor of dismissal were

that: (1) plaintiff failed to serve a notice of tort claim upon

CCS; (2) plaintiff failed to state a prima facie claim of

negligence or intentional tortious conduct against either

defendant; and (3) plaintiff is not an intended beneficiary of

the contract between the County and CCS and therefore lacks

standing to complain about any breaches of that agreement.

After hearing oral argument, the motion judge dismissed the

complaint with prejudice as to both defendants. In his written

statement of reasons, the judge ruled that plaintiff's lawsuit

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against CCS was barred under the TCA because she had not served

a tort claims notice upon the contractor within the ninety-day

period set forth in N.J.S.A. 59:8-8.

The judge determined that CCS, as the provider of medical

care to inmates at a county jail, is a "public entity" within

the meaning of the statute. In making this finding, the judge

substantially relied upon this court's opinion in Hoag v. Brown,

397 N.J. Super. 34, 47-48, 53 (App. Div. 2007), which treated an

employee of a private contractor that provided medical services

to a State prison as an employee of the State for purposes of

her claim that she had been harassed in her workplace in

violation of the Law Against Discrimination ("LAD"), N.J.S.A.

10:5-1 to -42. The judge also noted unpublished opinions of

this court and the trial court likewise treating employees of a

private contractor to a State prison to be the functional

equivalent of public employees working for the prison.3

The judge reasoned that because the medical staff that

allegedly acted negligently here worked at the jail and could be

3 We do not cite the unpublished opinions, as they are nonprecedential. R. 1:36-3. That said, we recognize that the notice issue presented here has not been the subject of a reported case, and that there appear to be several unreported opinions that have addressed the issue. We by no means fault the trial judge for considering the unpublished cases, as he is permitted to do under Rule 1:36-3, in his conscientious effort to grapple with this issue without the guidance of precedent.

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considered the functional equivalent of public employees for

certain purposes as in Hoag, their employer CCS should be

treated as a public entity that must be served with a tort

claims notice. Since no such timely notice was served upon CCS,

the judge dismissed plaintiff's tort-based claims against that

co-defendant. The judge rejected plaintiff's argument that her

service of notice upon the County sufficed as notice to CCS

under the circumstances. The judge also rejected plaintiff's

claims against CCS founded upon her theory that she was an

intended third-party beneficiary of the contract between CCS and

the County.

The judge then dismissed all of plaintiff's claims against

the County. He rejected, as a matter of law, plaintiff's claims

of intentional tort against the County as a public entity

because N.J.S.A. 59:2-10 directs that public entities are not

vicariously liable for acts or omissions of public employees

constituting a "crime, actual fraud, actual malice, or willful

misconduct." The judge also found non-viable plaintiff's

negligence claims against the County because she had not alleged

that any County employees had been involved in her medical

screening or her medical care. In addition, the judge dismissed

plaintiff's contract-based claims against the County,

essentially for the same reasons that the judge had noted in

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dismissing the contract claims against CCS. Lastly, the judge

dismissed plaintiff's claims for punitive damages.

II.

On appeal, plaintiff contends that the dismissal of her

complaint against both defendants was legally erroneous and

premature. She also asserts various criticisms of the manner in

which the trial judge proceeded to rule on her claims,

complaining about the judge's citation to unpublished authority.

In considering these arguments, we adhere to the well

established principle that before a court dismisses a civil

complaint with prejudice, it must "search[] the complaint in

depth and with liberality to ascertain whether the fundament of

a cause of action may be gleaned even from an obscure statement

of claim, opportunity being given to amend if necessary."

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,

746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43

N.J. Super. 244, 252 (App. Div. 1957)).

Nevertheless, a purely legal question of whether a

defendant is insulated from liability because of an immunity or

some other statutory provision ideally should be resolved, if

possible, at an early stage of the litigation. See Rivera v.

Gerner, 89 N.J. 526, 536 (1982) (noting that resolving issues

involving the TCA through the pretrial process "is to be

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encouraged"); Hurwitz v. AHS Hosp. Corp., 438 N.J. Super. 269,

305-06 (App. Div. 2014) (observing in a statutory immunities

case that issues involving those immunities should be

adjudicated at an "early stage of litigation," and that an

"unfettered right to discovery" would "dilut[e] the practical

benefit of the immunity protection"). Indeed, in keeping with

the need for expedition, interlocutory appeals from orders

granting or denying leave to file a late tort claims notice are

now immediately appealable under the Rules of Court as of right.

R. 2:2-3(a)(3). Our review of such legal determinations by a

trial court is de novo. Wilson ex rel. Manzano v. City of

Jersey City, 209 N.J. 558, 564 (2012).

A.

The novel and important issue that most warrants our

attention here is whether plaintiff was obligated to serve a

separate tort claims notice upon co-defendant CCS, a private

contractor to the County. We hold that there is no such

obligation, either in the language of the Tort Claims Act or one

logically compelled by the policies underlying the statutory

scheme.

The TCA indisputably governs causes of action in tort

against governmental agencies within New Jersey. Velez v. City

of Jersey City, 180 N.J. 284, 289-90 (2004). The Legislature

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enacted the Act in recognition of "the inherently unfair and

inequitable results which occur in the strict application of the

traditional doctrine of sovereign immunity," while still

recognizing that government — which cannot abstain from its

obligation to govern in the way a private actor can choose not

to engage in certain conduct — "should not have the duty to do

everything that might be done." N.J.S.A. 59:1-2; Lopez v. City

of Elizabeth, 245 N.J. Super. 153, 164 (App. Div. 1991).

Generally, a defendant organization falls within the

purview of the TCA if it is considered a "public entity," as

that term is defined in N.J.S.A. 59:1-3. See S.E.W. Friel Co.

v. N.J. Turnpike Auth., 73 N.J. 107, 113-17 (1977). Section 1-3

of the Act denotes a "public entity" to include "the State, and

any county, municipality, district, public authority, public

agency, and any other political subdivision or public body in

the State." N.J.S.A. 59:1-3. The Attorney General's 1972 Task

Force Comment to N.J.S.A. 59:1-3 clarifies that the TCA's

definition of "public entity" is intended to encompass "all

entities exercising governmental functions." Margolis & Novack,

Claims Against Public Entities, 1972 Task Force Comment on

N.J.S.A. 59:1-3 (2016).

The TCA likewise defines the related concept of a "public

employee." According to N.J.S.A. 59:1-3, a "public employee" is

A-1679-14T4 12

simply "an employee of a public entity[.]" The term "employee"

means "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." Ibid. (emphasis added).

When an injured party wishes to pursue a claim against a

public entity or a public employee, that party must first file a

notice of claim with the public entity involved. Because

plaintiff's alleged mistreatment occurred at a County jail, the

notice provision concerning local governmental entities

pertains. See N.J.S.A. 59:8-7 ("A claim for injury . . .

arising under this act against a local public entity shall be

filed with that entity.") (emphasis added); N.J.S.A. 59:8-2

("'[L]ocal public entity' means a public entity other than the

State."). This notice must be filed "within 90 days of accrual

of the claim," subject to potential extension by the court which

is not implicated by the present appeal. N.J.S.A. 59:8-8. If

the claimant fails to do so, the statute dictates that he or she

"shall be forever barred from recovering against a public entity

or public employee[.]" Ibid.

Functionally, this notice requirement within the TCA is

largely intended to "compel a claimant to expose his intention

and information early in the process in order to permit the

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public entity to undertake an investigation while witnesses are

available and the facts are fresh." O'Neill v. City of Newark,

304 N.J. Super. 543, 549 (App. Div. 1997) (emphasis added)

(quoting Lutz v. Twp. of Gloucester, 153 N.J. Super. 461, 466

(App. Div. 1977)).

As our Supreme Court explained in Beauchamp v. Amedio, 164

N.J. 111 (2000), the recognized goals of the TCA's notice

provision are:

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense[;] (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State [or local public entity] in advance as to the indebtedness or liability that it may be expected to meet.

[Id. at 121-22 (first alteration in original) (emphasis added) (internal quotations and citations omitted).]

The first two goals are derived from the Task Force Comment to

N.J.S.A. 59:8-3, and the last two goals come from Fuller v.

Rutgers, 154 N.J. Super. 420, 426 (App. Div. 1977), certif.

denied, 75 N.J. 610 (1978). See Margolis & Novack, supra,

comment on N.J.S.A. 59:8-8, at p. 266 (2016).

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The contents of a proper notice of claim under the TCA are

governed by N.J.S.A. 59:8-4, which specifies the following

minimum information that a claimant's notice must contain:

A claim shall be presented by the claimant . . . and shall include:

a. The name and post[-]office address of the claimant;

b. The post-office address to which the person presenting the claim desires notice to be sent;

c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;

d. A general description of the injury, damage, or loss incurred so far as it may be known at the time of presentation of the claim;

e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and

f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.

[(Emphasis added).]

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Under N.J.S.A. 59:8-6, a public entity may, "by rule or

regulation," adopt its own standardized form that requests

information beyond the minimum level of detail enumerated in

N.J.S.A. 59:8-4.

By way of illustration, pursuant to N.J.S.A. 59:8-4 and -6,

the State has issued its own standard tort claims notice form.

That form asks the claimant to identify the State "agency"

allegedly responsible for the claimant's injury. There is no

place on the State form for the claimant to identify a private

actor or entity as a responsible party.4 In fact, case law

instructs that a claimant's failure to use the public entity's

prescribed form supplying the necessary information can at times

support a finding that the entity failed to receive timely and

proper notice under N.J.S.A. 59:8-4 and -6. See Wood v. Cty. of

Burlington, 302 N.J. Super. 371, 378 (App. Div. 1997) (ruling

that plaintiffs were required to use the defendant township's

"specialized notice of claim form").

Likewise, although the County of Monmouth does not

apparently post a standard tort claims notice form on the

4 See Initial Notice of Claim for Damages Against the State of New Jersey, Dep't of the Treasury, Bureau of Risk Mgmt., http://www.nj.gov/treasury/riskmgt/pdf/ClaimLongForm.pdf (last visited Mar. 31, 2016) (asking the claimant to identify the "state agency or agencies" that caused the damages and the "names of State employees whom you claim were at fault").

A-1679-14T4 16

Internet, a number of other local governments do.5 None of those

standard notice forms that our research has uncovered ask the

claimant to identify any private actors or entities. Instead,

the forms simply ask the claimant to indicate the governmental

agencies involved.

Here, presumably because a standardized form from the

County was not readily available, the notice served on the

County by plaintiff was a typed letter prepared by her counsel.

The letter addressed the six items required for proper notice

under N.J.S.A. 59:8-4.

To require claimants such as plaintiff in this case to

serve a pre-suit tort claims notice upon a defendant government

contractor would clash with both the text of the TCA and the

5 See, e.g., Notice of Tort Claim Against Gloucester County, New Jersey and/or Its Entities, Gloucester Cty., http://www. gloucestercountynj.gov/civica/filebank/blobdload.asp?BlobID=4215 (last visited Mar. 31, 2016) (asking the claimant to identify "each and every Department, Division, Agency or Authority" and "each and every County employee" the claimant contends is liable); Notice of Claim for Damages Against the County of Passaic, Passaic Cty., http://www.passaiccountynj.org/Document Center/View/108 (last visited Mar. 31, 2016) (requesting claimants to specify the "names of County Employees whom you claim were at fault" and "the negligence or wrongful act of the County Agency and County employees which caused your damages"); Tort Claim for Damages Against the City of Trenton, City of Trenton, http://www.trentonnj.org/FCpdf/notice%20of%20tort% 20claim.pdf (last visited Mar. 31, 2016) (requesting the "name and address of the City Department, Division or Agency that you claim caused [the claimant's] damage/injury" and "the names of the City employees whom you claim were at fault").

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objectives of the statute's notice provision. A private

enterprise like CCS is not a "county, municipality, district,

public authority, public agency, [or] any other political

subdivision or public body in the State." N.J.S.A. 59:1-3.

Instead, it is a private independent contractor, whose workers

are specifically carved out of Section 1-3's definition of a

public employee.

To be sure, as the private contractor hired by Monmouth

County to provide medical services based at the County jail, CCS

apparently performs certain functions that the County otherwise

would have had to perform itself. We agree with defendants that

the provision of such medical services to County inmates – had

they been performed by the County's own workers – would comprise

a governmental function. Under the contractual agreement with

CCS, the County has apparently delegated at least some of those

functions to CCS. That delegation does not, however,

automatically convert CCS into a "public entity" for all

purposes under the TCA.

We recognize 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."

See, e.g., Rodriguez v. N.J. Sports & Exposition Auth., 193 N.J.

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Super. 39, 44-46 (App. Div. 1983) (finding that a private

security company that provided security and guards for a public

entity was entitled to derivative immunity, noting that a

contractor could still be liable for negligence "in the

execution of the contract"), certif. denied, 96 N.J. 291 (1984);

Cobb v. Waddington, 154 N.J. Super. 11, 18 (App. Div. 1977)

(finding that a construction company hired by the State to

perform roadwork and install barriers to divert traffic was

entitled to derivative immunity), certif. denied, 76 N.J. 235

(1978).

We do not resolve on this limited record whether CCS, in

fact, is entitled to such second-hand "derivative" substantive

immunity, particularly since the record lacks evidence of the

actual contract between the County and CCS, and where discovery

on this pivotal subject has yet to be conducted. As an

analytical point, however, we note that there would be no need

for courts to recognize the concept of derivative immunity if

private contractors hired by government agencies were per se

regarded for all purposes under the TCA as "public entities."

We need not decide comprehensively in this appeal what

portions of the TCA afford protection to private contractors

such as CCS, and which portions do not. The narrow issue posed

before us is simply whether the notice provisions under N.J.S.A.

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59:8-8 and :8-9 require courts to treat such contractors as

public entities that must be served with tort claims notices as

a precondition to them being sued. The answer is no.

None of the four goals of the notice provision, as

identified by the Supreme Court in Beauchamp, support construing

N.J.S.A. 59:8-8 to require service of a notice upon a private

entity that serves as a government contractor. Each of those

enumerated purposes involves providing the government with a

timely opportunity to consider and react to an incident that the

claimant is contending to be a negligent failure by government

to discharge its functions properly. It is of no concern to CCS

whether plaintiff has given the County enough time to: (1)

administratively review and possibly settle a meritorious claim;

(2) adequately investigate the matter and prepare the

government's defense; (3) correct the conditions or practices

relating to the governmental function that gave rise to the

claim; or (4) apprise the government of its potential

indebtedness as a matter of fiscal planning. See Beauchamp,

supra, 164 N.J. at 121-22.

We recognize that a private contractor might similarly want

to have such claim-related information provided to it, at a pre

suit stage, for its own business or risk management reasons.

But the central objectives of the TCA's notice provision are

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solely related to the benefit of governmental decision-makers

and, ultimately, the taxpayers who might bear the costs of a

successful claim. It is revealing that the tort claims notice

forms that have been created by the State and other public

entities are designed to require claimants to specify which

governmental agency or agencies that he or she alleges was

responsible for causing the injury.

When plaintiff duly served her notice upon the County, she

was specifically apprised that the medical staff who dealt with

her at the jail were employees of CCS, a private entity, whose

insurance carrier was identified in the County's response.

Plaintiff should not have been required to assume that she was

supposed to provide any more notice of the incident than what

she had already supplied to the County. The Legislature has not

directed that duplicative notices be served upon private

contractors or their insurers. Of course, the Legislature is

free to amend the statute to so require, but that is not how the

law is presently worded or structured.

The trial judge's reliance on Hoag, supra, 397 N.J. Super.

at 53-54, in reaching his contrary conclusion on the notice

issue was misplaced. There was no issue of notice involved in

Hoag. That case instead turned on whether an employee of a

private contractor, who had been working at a State prison and

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allegedly mistreated by a State employee supervising her, should

be regarded as a public employee for purposes of the State's

anti-discrimination laws and the TCA.

Hoag specifically involved whether the worker's

relationship with the State Department of Corrections was

fundamentally one of an employer and employee for purposes of

liability under the LAD. This court found that the State in

those circumstances potentially could be regarded as the

plaintiff's "employer," given the allegations of its close

involvement in the conditions of her workplace, and thereby

could be responsible for perpetuating a hostile work

environment. Id. at 47-53. Even so, because the record in Hoag

was not fully developed as to those issues, we remanded the

matter for further factual development. Id. at 53.

We do not endorse the trial judge's overbroad reading of

Hoag with respect to the TCA notice issues presented here.

Unlike the plaintiff in Hoag, plaintiff Gomes was not employed

in a government facility. She was only housed there as an

inmate less than a month, before her medical condition became so

severe that she had to be transferred to the hospital. The

scope of Gomes's statutory obligation to provide notice of her

tort claims is fundamentally different in character than the

question of whether, by comparison, Ms. Hoag's substantive

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rights to a discrimination-free workplace were infringed by the

State when it was acting as her employer. For these many

reasons, the analysis in Hoag is inapposite to the notice

question posed here under N.J.S.A. 59:8-8.

We therefore reverse the trial judge's dismissal of CCS for

lack of service of a timely notice under N.J.S.A. 59:8-8. We

accordingly reinstate CCS as a co-defendant in the case, and

remand for further proceedings. Affirmed in part, reversed in part, and remanded in part. We do not retain jurisdiction.