New Jersey-2010-A606-Introduced

An Act concerning punitive damages and amending various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1995, c.142 (C.2A:15-5.10) is amended to read as follows:

2. As used in this act:

"Actual malice" means an intentional wrongdoing in the sense of an evil-minded act.

"Clear and convincing evidence" means that standard of evidence which leaves no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. It is a standard which requires more than a [preponderence] preponderance of evidence, but less than beyond a reasonable doubt, to draw a conclusion.

"Compensatory damages" means damages intended to make good the loss of an injured party, and no more. The term includes general and special damages and does not include nominal, exemplary or punitive damages.

"Defendant" means any party against whom punitive damages are sought.

"Nominal damages" are damages that are not designed to compensate a plaintiff and are less than $500.

"Plaintiff" means any party claiming punitive damages.

"Public employee" means an officer, employee, or servant of a public entity, whether or not compensated or part-time, who is authorized to perform any act or service, and includes: a person participating, under the supervision of the Palisades Interstate Park Commission, in a volunteer program in that part of the Palisades Interstate Park located in New Jersey; a volunteer doing work for the Division of Parks and Forestry, the Division of Fish, Game and Wildlife, or the New Jersey Natural Lands Trust, as authorized by the Commissioner of Environmental Protection; a volunteer doing work for the New Jersey Historic Trust; and any person retained by the public defender to serve as an arbitrator, mediator, or in such similar capacity. The term "public employee" does not include an independent contractor.

"Public entity" means the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State.

"Punitive damages" includes exemplary damages and means damages awarded against a party , other than a public entity or a public employee acting within the scope or under color of his office, employment or agency, in a civil action because of aggravating circumstances in order to penalize and to provide additional deterrence against a defendant to discourage similar conduct in the future. Punitive damages do not include compensatory damages or nominal damages.

"Wanton and willful disregard" means a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission.

(cf: P.L.1995, c.142, s.2)

2. Section 4 of P.L.1995, c.142 (C.2A:15-5.12) is amended to read as follows:

4. a. Punitive damages may be awarded to the plaintiff [only if the plaintiff proves] in any action, other than an action against a public entity or a public employee acting within the scope or under color of his office, employment or agency. The plaintiff shall prove, by clear and convincing evidence, that the harm suffered was the result of the defendant's acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions. This burden of proof may not be satisfied by proof of any degree of negligence including gross negligence.

b. In determining whether punitive damages are to be awarded, the trier of fact shall consider all relevant evidence, including but not limited to, the following:

(1) The likelihood, at the relevant time, that serious harm would arise from the defendant's conduct;

(2) The defendant's awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the defendant's conduct;

(3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and

(4) The duration of the conduct or any concealment of it by the defendant.

c. If the trier of fact determines that punitive damages should be awarded, the trier of fact shall then determine the amount of those damages. In making that determination, the trier of fact shall consider all relevant evidence, including, but not limited to, the following:

(1) All relevant evidence relating to the factors set forth in subsection b. of this section;

(2) The profitability of the misconduct to the defendant;

(3) When the misconduct was terminated; and

(4) The financial condition of the defendant.

(cf: P.L.1995, c.142, s.4)

3. Section 6 of P.L.1995, c.142 (C.2A:15-5.14) is amended to read as follows:

6. a. Before entering judgment for an award of punitive damages, the trial judge shall ascertain that the award is reasonable in its amount and justified in the circumstances of the case, in light of the purpose to punish the defendant and to deter that defendant from repeating such conduct. If necessary to satisfy the requirements of this section, the judge may reduce the amount of or eliminate the award of punitive damages.

b. No defendant shall be liable for punitive damages in any action in an amount in excess of five times the liability of that defendant for compensatory damages or $350,000, whichever is greater.

c. The provisions of subsection b. of this section shall not apply to causes of action brought pursuant to P.L.1993, c.137 (C.2A:53A-21 et seq.), P.L.1945, c.169 (C.10:5-1 et seq.), P.L.1989, c.303 (C.26:5C-5 et seq.) or P.L.1992, c.109 (C.2A:61B-1), or in cases in which a defendant has been convicted pursuant to R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a).

d. Notwithstanding the provisions of subsections b. and c. of this section, a public entity or a public employee acting within the scope or under color of his office, employment or agency shall not be liable for punitive damages in any action.

(cf: P.L.2005, c.329, s.3)

4. Section 3 of P.L.1979, c.488 (C.2A:84A-21.11) is amended to read as follows:

3. a. A person, corporation, partnership, proprietorship or other entity aggrieved by a search for or seizure of materials in violation of this act shall have a civil cause of action for damages for such search or seizure:

(1) Against the State of New Jersey, or against any other governmental unit, all of which shall be liable for violations of this act by their officers, employees or agents while acting within the scope or under color of their office, employment or agency.

(2) Against an officer, employee or agent of the State of New Jersey or any other governmental unit who has violated this act while acting other than within the scope or under color of his office, employment or agency. It shall be a complete defense to a civil action brought under this paragraph that the officer, employee or agent had a reasonable good faith belief in the lawfulness of his conduct unless his error is due to an ignorance of an official statement of the law.

b. The State of New Jersey or any other governmental unit, liable for violations of this act under paragraph [3 a. (1)] (1) of subsection a. of this section, may not assert as a defense to a claim arising under this act the immunity of the officer, employee or agent whose violation is complained of or his reasonable good faith belief in the lawfulness of his conduct, except that such a defense may be asserted if the violation complained of is that of a judge.

c. The remedy provided by paragraph [3 a. (1)] (1) of subsection a. of this section against the State of New Jersey or any other governmental unit is exclusive of any other civil action or proceeding for conduct constituting a violation of this act, against the officer, employee or agent whose violation gave rise to the claim, or against the estate of such officer, employee or agent.

d. A person, corporation, partnership, proprietorship or other entity having a cause of action under this section shall be entitled to recover actual damages but not less than liquidated damages of $1,000.00, such punitive damages as may be warranted if the cause of action involves a violation of paragraph (2) of subsection a. of this section, and such reasonable attorney's fee and other litigation costs reasonably incurred as the court, in its discretion, may award; provided, however, that the State of New Jersey or any other governmental unit shall not be liable for interest prior to judgment.

e. The Attorney General is authorized to settle a claim for damages brought against the State of New Jersey under this section and shall promulgate regulations to provide for the commencement of an administrative inquiry following a determination of a violation of this act by an officer, employee or agent of the State of New Jersey or any other governmental unit and for the imposition of administrative sanctions against such officer, employee or agent if warranted.

f. A county prosecutor may settle a claim for damages brought against the county of his jurisdiction or any other governmental unit under this section.

(cf: P.L.1979, c.488, s.3)

5. Section 24 of P.L.1968, c.409 (C.2A:156A-24) is amended to read as follows:

24. Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of this act shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person:

a. Actual damages, but not less than liquidated damages computed at the rate of $100.00 a day for each day of violation, or $1,000.00, whichever is higher;

b. Punitive damages , except in an action against an officer, including an investigative or law enforcement officer, or employee of the State or of any political subdivision thereof acting within the scope or under color of his office, employment or agency; and

c. A reasonable attorney's fee and other litigation costs reasonably incurred.

(cf: P.L.1993, c.29, s.20)

6. N.J.S.2B:21-10 is amended to read as follows:

2B:21-10. a. Any person who, with the intent to injure another, purposely discloses any information concerning the proceedings of a grand jury, other than as authorized or required by law, commits a crime of the fourth degree. A public officer or employee who is convicted of a violation of this subsection shall be dismissed from public office or employment.

b. A person injured as a result of a violation of subsection a. of this section may bring a civil action against the person convicted of the violation. The person convicted shall be liable to the person injured for actual damages, punitive damages of not less than $1,000.00 or more than $100,000.00, reasonable litigation costs and reasonable attorney fees ; except that a public officer or employee acting within the scope or under color of his office, employment or agency shall not be liable for punitive damages.

(cf: N.J.S.2B:21-10)

7. Section 1 of P.L.2001, c.385 (C.10:5-12.6) is amended to read as follows:

1. No employer, public or private, shall discharge or discriminate against an employee in compensation or in terms, conditions or privileges of employment for displaying the American flag on the employee's person or work station, provided the display does not substantially and materially interfere with the employee's job duties. An employer who discharges or discriminates against an employee as described in this section shall be liable to the employee for damages caused by the discharge or discrimination, including punitive damages if a private employer, and for reasonable attorney's fees as part of the costs of any action for damages. A public employer, or an officer, employee or a servant thereof acting within the scope or under color of his office, employment or agency, shall not be liable to the aggrieved employee for punitive damages. If the court determines that the action for damages was brought without substantial justification, the court may award costs and reasonable attorney's fees to the employer.

(cf: P.L.2001, c.385, s.1)

8. Section 6 of P.L.1983, c.466 (C.17:16K-6) is amended to read as follows:

6. If a court of competent jurisdiction determines that a financial institution or a government agency acted negligently, willfully, or recklessly in violating this act, the financial institution or government agency shall be liable to the aggrieved person for actual damages sustained by him; reasonable litigation costs; reasonable attorneys' fees; and only in cases where a financial institution [or government agency] acted willfully or recklessly, a
court of competent jurisdiction may award punitive damages where appropriate.

(cf: P.L.1983, c.466, s.6)

9. Section 19 of P.L.1983, c.65 (C.17:30E-7) is amended to read as follows:

19. Pursuant to the plan of operation, the association shall have the power and duty to:

a. Enter into contracts as are necessary or proper to carry out the provisions and purposes of this act;

b. Sue or be sued in the name of the association, including taking any legal actions necessary or proper for recovery of any assessments for, on behalf of, or against members. A judgment against the association shall not create any direct liability against the servicing carrier, board of directors or the individual members, or the individual participating members of the association;

c. Indemnify its directors and employees for any and all claims, suits, costs of investigations, costs of defense, settlements or judgments against them on account of an act or omission in the scope of a director's duties or employee's employment. The association shall refuse to indemnify if it determines that the act or failure to act was because of actual fraud, willful misconduct or actual malice, or for claims for exemplary or punitive damages;

d. Take such action as is necessary to prevent and avoid the payment of improper claims against the association or the coverage provided by or through the association;

e. Arrange for the issuance of automobile insurance to any qualified applicant through servicing carriers. Each servicing carrier shall issue policies in the name of the servicing carrier, on behalf of the association, to the extent the plan of operation provides. Servicing carriers, as agents of the association, shall have no individual liability for claims or policies written by the association. However, notwithstanding the above, or any other provision of law to the contrary, the association shall not arrange for the issuance or renewal of any automobile insurance policy, either through a servicing carrier or on its own behalf, on or after October 1, 1990;

f. Appoint from among its members appropriate legal, actuarial, claims, investment and other committees as necessary to provide technical assistance in the operation of the association, policy and other contract design, and any other function within the authority of the association;

g. Establish standards for, and review operating practices of, servicing carriers and producers to determine whether such practices are adequate to properly service association business, and to take appropriate action to eliminate inadequate operating practices and develop adequate operating practices, and to appoint an audit committee to review operating practices. The audit committee shall be composed of servicing carriers, producers, and member companies who are not servicing carriers;

h. Develop criteria and establish a monitoring system to ensure that: (1) servicing carriers do not obtain an unfair advantage, because of their servicing carrier relationship with producers over other member companies which are not servicing carriers; and (2) member companies do not obtain an unfair advantage over producers of record without a contractual relationship with a voluntary market company, as a result of an offer of voluntary market coverage to an insured of the association;

i. Order the reporting of such statistics by the members of the association as it deems necessary;

j. Reimburse servicing carriers from association funds;

k. Adopt bylaws for the regulation of its internal affairs;

l. Employ a general manager, who shall serve at its pleasure and be responsible for the conduct of the administrative affairs of the association. The board may employ other necessary personnel and may delegate to the general manager and other personnel such authority as it deems necessary to assure proper administration and operation of the association consistent with the plan of operation. The board shall arrange and contract if necessary for suitable quarters within the State of New Jersey for operations of the association; for such equipment, goods and services; and incur such expenses as it deems necessary to assure efficient administration of the association consistent with the plan of operation. If required by the plan of operation, the board may establish service centers in underserviced areas, which service centers shall provide for the dissemination of full information on the coverages available under this act and for referrals to appropriate outlets for the acquisition of such coverage;

m. Hear and determine complaints of any member or producer concerning the operation of the association in accordance with procedures prescribed in section 28 of this act;

n. Annually report to the commissioner on the operation of the association;

o. Record and investigate complaints involving the conduct of producers and to take appropriate corrective action or to recommend to the commissioner appropriate disciplinary action, including suspension or revocation of authority to write association business;

p. Review servicing practices of servicing carriers to determine whether such practices are adequate to properly service the risks written by the association; and upon finding that the practices of any servicing carrier are inadequate, establish a program for that member which will assist the servicing carrier in the performance of its duties and charge that servicing carrier a reasonable fee for establishing and operating such a program;

q. Audit the operations of members for the purpose of determining compliance with this act;

r. Develop methods and standards for the establishment of adequate, actuarially sound reserves for unpaid losses and loss adjustment expenses, including provision for incurred but not reported losses; and

s. Take such other action as is necessary to effectuate the purposes of this act.

(cf: P.L.1990, c.8, s.16)

10. N.J.S.18A:12-20 is amended to read as follows:

18A:12-20. Whenever a civil, administrative, criminal or quasi-criminal action or other legal proceeding has been or shall be brought against any person for any act or omission arising out of and in the course of the performance of his duties as a member of a board of education, and in the case of a criminal or quasi-criminal action such action results in final disposition in favor of such person, the board of education shall defray all costs of defending such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, and shall save harmless and protect such person from any financial loss resulting therefrom. [Indemnification for exemplary or punitive damages shall not be mandated and shall be governed by the standards and procedures set forth in N.J.S.59:10-4.] Any board of education may arrange for and maintain appropriate insurance to cover all such damages, losses and expenses.

(cf: P.L.2001, c.178, s.1)

11. N.J.S.18A:16-6 is amended to read as follows:

18A:16-6. Whenever any civil or administrative action or other legal proceeding has been or shall be brought against any person holding any office, position or employment under the jurisdiction of any board of education, including any student teacher or person assigned to other professional pre-teaching field experience, for any act or omission arising out of and in the course of the performance of the duties of such office, position, employment or student teaching or other assignment to professional field experience, the board shall defray all costs of defending such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, and shall save harmless and protect such person from any financial loss resulting therefrom; provided that such person

a. [no employee] shall not be entitled to be held harmless or have his defense costs defrayed in a disciplinary proceeding instituted against him by the board or when [the employee is] appealing an action taken by the board[; and] .

b. [indemnification for exemplary or punitive damages shall not be mandated and shall be governed by the standards and procedures set forth in N.J.S.59:10-4.] (Deleted by amendment P.L. , c. (C. ) (now pending before the Legislature as this bill).

Any board of education may arrange for and maintain appropriate insurance to cover all such damages, losses and expenses.

(cf: P.L.2001, c.178, s.2)

12. Section 3 of P.L.1993, c.282 (C.26:2H-14.7) is amended to read as follows:

3. A person shall have a cause of action against the residential health care facility for any violation of this act. The Department of Health and Senior Services may maintain an action in the name of the State to enforce the provisions of this act and any rules and regulations promulgated pursuant to this act. The action to recover actual damages and, if the cause of action is against a private residential health care facility, punitive damages , shall be brought in a court of competent jurisdiction. A plaintiff shall not be entitled to recover punitive damages in any action against a public residential health care facility, or against an officer, employee, or a servant thereof acting within the scope or under color of his office, employment or agency. A plaintiff who prevails in an action shall be entitled to recover reasonable attorney's fees and costs of the action.

(cf: P.L.1993, c.282, s.3)

13. Section 13 of P.L.1997, c.192 (C.26:2S-13) is amended to read as follows:

13. a. An employee of the department who participates in the Independent Health Care Appeals Program shall not be liable in any action for damages to any person for any action taken within the scope of his function in the Independent Health Care Appeals Program. The Attorney General shall defend the person in any civil suit and the State shall provide indemnification for any damages awarded pursuant to the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq.

b. The carrier that is the subject of a review shall not be liable in any action for damages to any person for any action taken to implement a recommendation of the independent utilization review organization pursuant to this act.

(cf: P.L.1997, c.192, s.13)

14. Section 10 of P.L.1989, c.303 (C.26:5C-14) is amended to read as follows:

10. a. A person who has or is suspected of having AIDS or HIV infection who is aggrieved as a result of a violation of this act may commence a civil action against the individual or institution who committed the violation to obtain appropriate relief, including actual damages, equitable relief and reasonable attorney's fees and court costs. Punitive damages may be awarded against any individual or institution, other than the department, a local health department, or a health care facility operated at the direction of or under the management of the State or a political subdivision thereof, or against any other public entity, or against an officer, employee, or a servant of the department, or the local health department, or the provider of health care for, or health care facility operated or managed by, the State or political subdivision thereof, or any other public entity, while acting within the scope or under color of his office, employment or agency, when the violation evidences wantonly reckless or intentionally malicious conduct by the person or institution who committed the violation.

b. Each disclosure made in violation of this act is a separate and actionable offense.

(cf: P.L.1989, c.303, s.10)

15. Section 5 of P.L.1948, c.454 (C.27:23-5) is amended to read as follows:

5. General grant of powers. The authority shall be a body corporate and politic and shall have perpetual succession and shall have the following powers:

(a) To adopt bylaws for the regulation of its affairs and the conduct of its business;

(b) To adopt an official seal and alter the same at pleasure;

(c) To maintain an office at such place or places within the State as it may designate and to organize itself into such sub-departments, operating divisions or units as it deems appropriate;

(d) To sue and be sued in its own name;

(e) To acquire, improve, construct, maintain, repair, manage, and operate transportation projects or any part thereof at such locations as shall be established by law or by the authority;

(f) To borrow money and issue negotiable bonds for any of its corporate purposes, and to secure the same through the pledging of tolls and other revenues and proceeds of such bonds, or other available sources, and to refund its bonds, and to enter into any credit agreement, all as provided in this act;

(g) In the exercise of any of its powers, by resolution to fix and revise from time to time and charge and collect tolls, fees, licenses, rents, concession charges and other charges for each transportation project or any part thereof constructed or acquired by it. No toll revenues derived from the New Jersey Turnpike or the Garden State Parkway shall be used or available for any transportation project other than a highway project and all transportation projects other than highway projects shall be self-sustaining; provided however that such toll revenues may be used to finance or support the costs of non-highway transportation projects on an interim basis according to such terms, with or without interest, as the authority shall establish;

(h) To establish rules and regulations for the use of any project including restrictions on the type, weight and size of vehicles utilizing transportation projects, and also including the power to exclude from any part of a highway project any traffic other than passenger automobiles if the authority finds that such part is not suitable or sufficient as a highway to carry mixed traffic;

(i) To acquire, hold and dispose of real and personal property in the exercise of its powers and the performance of its duties under this act;

(j) To acquire in the name of the authority by purchase or otherwise, on such terms and conditions and in such manner as it may deem proper, or by the exercise of the power of eminent domain, except as against the State of New Jersey, any land and other property, which it may determine is reasonably necessary for any transportation project or feeder road or for the relocation or reconstruction of any highway by the authority under the provisions of this act and any and all rights, title and interest in such land and other property, including public lands, parks, playgrounds, reservations, highways or parkways, owned by or in which the State of New Jersey or any county, city, borough, town, township, village, or other political subdivision of the State of New Jersey has any right, title or interest, or parts thereof or rights therein and any fee simple absolute or any lesser interest in private property, and any fee simple absolute in, easements upon, or the benefit of restrictions upon, abutting property to preserve and protect transportation projects.

Upon the exercise of the power of eminent domain, the compensation to be paid thereunder shall be ascertained and paid in the manner provided in the "Eminent Domain Act of 1971," P.L.1971, c.361 (C.20:3-1 et seq.), insofar as the provisions thereof are applicable and not inconsistent with the provisions contained in this act. The authority may join in separate subdivisions in one petition or complaint the descriptions of any number of tracts or parcels of land or property to be condemned and the names of any number of owners and other parties who may have an interest therein and all such land or property included in said petition or complaint may be condemned in a single proceeding; provided, however, that separate awards be made for each tract or parcel of land or property; and provided, further, that each of said tracts or parcels of land or property lies wholly in or has a substantial part of its value lying wholly within the same county.

Upon the filing of such petition or complaint or at any time thereafter the authority may file with the clerk of the county in which such property is located and also with the Clerk of the Superior Court a declaration of taking, signed by the authority, declaring that possession of one or more of the tracts or parcels of land or property described in the petition or complaint is thereby being taken by and for the use of the authority. The said declaration of taking shall be sufficient if it sets forth: (1) a description of each tract or parcel of land or property to be so taken sufficient for the identification thereof, to which there may or may not be attached a plan or map thereof; (2) a statement of the estate or interest in the said land or property being taken; and (3) a statement of the sum of money estimated by the authority by resolution to be just compensation for the taking of the estate or interest in each tract or parcel of land or property described in said declaration.

Upon the filing of the said declaration, the authority shall deposit with the Clerk of the Superior Court the amount of the estimated compensation stated in said declaration.

Upon the filing of the said declaration as aforesaid and depositing with the Clerk of the Superior Court the amount of the estimated compensation stated in said declaration, the authority, without other process or proceedings, shall be entitled to the exclusive possession and use of each tract of land or property described in said declaration and may forthwith enter into and take possession of said land or property, it being the intent of this provision that the proceedings for compensation or any other proceedings relating to the taking of said land or interest therein or other property shall not delay the taking of possession thereof and the use thereof by the authority for the purpose or purposes for which the authority is authorized by law to acquire or condemn such land or other property or interest therein.

The authority shall cause notice of the filing of said declaration and the making of said deposit to be served upon each party in interest named in the petition residing in this State, either personally or by leaving a copy thereof at his residence, if known, and upon each party in interest residing out of the State, by mailing a copy thereof to him at his residence, if known. In the event that the residence of any such party or the name of such party is unknown, such notice shall be published at least once in a newspaper published or circulating in the county or counties in which the land is located. Upon the application of any party in interest and after notice to other parties in interest, including the authority, any judge of the Superior Court assigned to sit for said county may order that the money deposited with the Clerk of the Superior Court or any part thereof be paid forthwith to the person or persons entitled thereto for or on account of the just compensation to be awarded in said proceeding; provided, that each such person shall have filed with the Clerk of the Superior Court a consent in writing that, in the event the award in the condemnation proceeding shall be less than the amount deposited, the court, after notice as herein provided and hearing, may determine his liability, if any, for the return of such difference or any part thereof and enter judgment therefor. If the amount of the award as finally determined shall exceed the amount so deposited, the person or persons to whom the award is payable shall be entitled to recover from the authority the difference between the amount of the deposit and the amount of the award, with interest at the rate of six per centum (6%) per annum thereon from the date of making the deposit. If the amount of the award shall be less than the amount so deposited, the Clerk of the Superior Court shall return the difference between the amount of the award and the deposit to the authority, unless the amount of the deposit or any part thereof shall have theretofore been distributed, in which event the court, on petition of the authority and notice to all persons interested in the award and affording them an opportunity to be heard, shall enter judgment in favor of the authority for such difference against the party or parties liable for the return thereof. The authority shall cause notice of the date fixed for such hearing to be served upon each party thereto residing in this State, either personally or by leaving a copy thereof at his residence, if known, and upon each party residing out of the State, by mailing a copy to him at his residence, if known. In the event that the residence of any party or the name of such party is unknown, such notice shall be published at least once in a newspaper published or circulating in the county or counties in which the land is located. Such service, mailing or publication shall be made at least 10 days before the date fixed for such hearing.

Whenever under the "Eminent Domain Act of 1971" the amount of the award may be paid into court, payment may be made into the Superior Court and may be distributed according to law;

(k) To designate the locations, and establish, limit and control such points of ingress to and egress from each highway or transportation project as may be necessary or desirable in the judgment of the authority to insure the proper operation and maintenance of such project, and to prohibit entrance to such project from any point or points not so designated;

(l) To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this act and to enter into contracts with federal, State and local governments and private entities for the financing, administration, operation, management and construction of transportation projects;

(m) To appoint such additional officers, who need not be members of the authority, as the authority deems advisable, and to employ consulting engineers, attorneys, accountants, construction and financial experts, superintendents, managers, and such other similarly situated employees and agents as may be necessary in its judgment; to fix their compensation; and to promote and discharge such officers, employees and agents, all without regard to the provisions of Title 11A of the New Jersey Statutes;

(n) To receive and accept from any federal agency, subject to the approval of the Governor, grants for or in aid of the acquisition or construction of any transportation project or any part thereof, and to receive and accept aid or contributions, from any source, of either money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions may be made;

(o) To do all acts and things necessary or convenient to carry out the powers expressly or impliedly granted in this act;

(p) Subject to any agreement with the bondholders, to invest moneys of the authority not required for immediate use, including proceeds from the sale of any bonds, in such obligations, securities and other investments as the authority shall deem prudent;

(q) To apply for, receive and accept from any federal agency, any bistate agency, or the State and any subdivision thereof, grants for or in aid of the planning, acquisition, management, maintenance, operation or construction of any project, and to receive and accept aid or contributions from any other public or private source, of either money, property, labor or other things of value, to be held, used and applied only for the purposes for which those grants and contributions may be made;

(r) To procure and enter into contracts for any type of insurance and to indemnify against loss or damage to property from any cause, including the loss of use and occupancy and business interruption, death or injury of any person, employee liability, any act of any member, officer, employee or servant of the authority, whether part-time, compensated or uncompensated, in the performance of the duties of office or employment or any other insurable risk or any other losses in connection with property, operations, assets or obligations in any amounts and from any insurers as are deemed desirable. The authority shall not indemnify any member, officer, employee or servant for claims for exemplary or punitive damages. In addition, the authority may carry its own liability insurance;

(s) To adopt regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to provide open and competitive procedures for awarding contracts for towing and storage services. Towing and storage services on a highway project may be provided on a rotating basis, provided that the authority determines that there would be no additional cost to the authority, excepting administrative costs, as a result of those services being provided on a rotating basis. The regulations shall fix maximum towing and storage fees, and establish objective criteria to be considered in awarding a contract for towing and storage services which shall include, but shall not be limited to, reliability, experience, response time, acceptance of credit cards and prepaid towing contracts, adequate equipment to safely handle a sufficient volume of common vehicle types under a variety of traffic and weather conditions, location of storage and repair facilities, security of vehicles towed or stored, financial return to the authority, maintenance of adequate liability insurance and appropriate safeguards to protect the personal safety of customers, including considerations related to the criminal background of employees. The Division of Consumer Affairs in the Department of Law and Public Safety shall provide, at the authority's request, a report to the authority on any prospective contractor for which the division has information relevant to the prospective contractor's service record, subject to the provisions of the New Jersey consumer fraud act, P.L.1960, c.39 (C.56:8-1 et seq.). The Division of Insurance Fraud Prevention in the Department of Banking and Insurance also shall provide, at the authority's request, a report to the authority on any prospective contractor for which the division has information relevant to the prospective contractor's service record, subject to the "New Jersey Insurance Fraud Prevention Act," P.L.1983, c.320 (C.17:33A-1 et seq.);

(t) To adopt, prior to the Transfer Date and notwithstanding any other provision of law to the contrary, a resolution authorizing the issuance of bonds, notes or other obligations on such terms as otherwise provided for in this act for the retirement by defeasance, redemption, secondary market purchase, tender payment at maturity or otherwise, of all of the New Jersey Highway Authority's outstanding bonds, notes or other obligations, as if the Transfer Date transferring to the authority the rights, duties and obligations to operate, maintain and manage the Garden State Parkway had already occurred; and

(u) To transfer, sell, dispose of, or otherwise relinquish all right, title, or interest in the Garden State Arts Center, and any related or auxiliary facilities, to the New Jersey Sports and Exposition Authority, established by P.L.1971, c.137 (C.5:10-1 et seq.), or to any other entity, according to such terms and process as the authority may establish in its discretion.

(cf: P.L.2003, c.79, s.9)

16. Section 5 of P.L.1979, c.150 (C.27:25-5) is amended to read as follows:

5. In addition to the powers and duties conferred upon it elsewhere in this act, the corporation may do all acts necessary and reasonably incident to carrying out the objectives of this act, including but not in limitation thereof the following:

a. Sue and be sued;

b. Have an official seal and alter the same at pleasure;

c. Make and alter bylaws for its organization and internal management and for the conduct of its affairs and business;

d. Maintain an office at such place or places within the State as it may determine;

e. Adopt, amend and repeal such rules and regulations as it may deem necessary to effectuate the purposes of this act, which shall have the force and effect of law; it shall publish the same and file them in accordance with the "Administrative Procedure Act,"
P.L.1968, c.410 (C.52:14B-1 et seq.) with the Director of the Office of Administrative Law;

f. Call to its assistance and avail itself of the service of such employees of any federal, State, county or municipal department or agency as it may require and as may be available to it for said purpose;

g. Apply for, accept and expend money from any federal, State, county or municipal agency or instrumentality and from any private source; comply with federal statutes, rules and regulations, and qualify for and receive all forms of financial assistance available under federal law to assure the continuance of, or for the support or improvement of public transportation and as may be necessary for that purpose to enter into agreements, including federally required labor protective agreements;

h. Plan, design, construct, equip, operate, improve and maintain, either directly or by contract with any public or private entity, public transportation services, capital equipment and facilities or any parts or functions thereof, and other transportation projects, or any parts or functions thereof, which may be funded under section 3 of the federal Urban Mass Transportation Act of 1964, Pub.L.88-365 (49 U.S.C. s.1602), or any successor or additional federal act having substantially the same or similar purposes or functions; the operation of the facilities of the corporation, by the corporation or any public or private entity, may include appropriate and reasonable limitations on competition in order that maximum service may be provided most efficiently to the public;

i. Apply for and accept, from appropriate regulatory bodies, authority to operate public transportation services where necessary;

j. Purchase, lease as lessee, or otherwise acquire, own, hold, improve, use and otherwise deal in and with real or personal property, or any interest therein, from any public or private entity, wherever situated;

k. Lease as lessor, sell or otherwise dispose of on terms which the corporation may prescribe, real and personal property, including tangible or intangible property and consumable goods, or any interest therein, to any public or private entity, in the exercise of its powers and the performance of its duties under this act. In order to provide or encourage adequate and efficient public transportation service, the corporation may lease or otherwise permit the use or occupancy of property without cost or at a nominal rental;

l. Restrict the rights of persons to enter upon or construct any works in or upon any property owned or leased by the corporation, except under such terms as the corporation may prescribe; perform or contract for the performance of all acts necessary for the management, maintenance and repair of real or personal property leased or otherwise used or occupied pursuant to this act;

m. Establish one or more operating divisions as deemed necessary. Upon the establishment of an operating division, there shall be established a geographically coincident advisory committee to be appointed by the Governor with the advice and consent of the Senate. The committee shall consist of county and municipal government representatives and concerned citizens, in the number and for such terms as may be fixed by the corporation, and shall advise the corporation as to the public transportation service provided in the operating division. At least two members of each advisory committee shall be public transportation riders, including but not limited to urban transit users and suburban commuters as appropriate. One public member from the board of the corporation shall serve as a liaison to each advisory committee;

n. Set and collect fares and determine levels of service for service provided by the corporation either directly or by contract including, but not limited to, such reduced fare programs as deemed appropriate by the corporation; revenues derived from such service may be collected by the corporation and shall be available to the corporation for use in furtherance of any of the purposes of this act;

o. Set and collect rentals, fees, charges or other payments from the lease, use, occupancy or disposition of properties owned or leased by the corporation; such revenues shall be available to the corporation for use in furtherance of any of the purposes of this act;

p. Deposit corporate revenues in interest bearing accounts or in the State of New Jersey Cash Management Fund established pursuant to section 1 of P.L.1977, c.281 (C.52:18A-90.4);

q. Delegate to subordinate officers of the corporation such powers and duties as the corporation shall deem necessary and proper to carry out the purposes of this act;

r. Procure and enter into contracts for any type of insurance and indemnify against loss or damage to property from any cause, including loss of use and occupancy, against death or injury of any person, against employees' liability, against any act of any member, officer, employee or servant of the corporation, whether part-time, full-time, compensated or noncompensated, in the performance of the duties of his office or employment or any other insurable risk. The corporation shall not indemnify any member, officer, employee or servant for claims for exemplary or punitive damages. In addition, the corporation may carry its own liability insurance and may also establish and utilize a wholly-owned insurance subsidiary or captive provided the subsidiary or captive is domiciled in the United States in a state which is accredited by the National Association of Insurance Commissioners and which licenses and regulates wholly-owned insurance subsidiaries or captives;

s. Promote the use of public transportation services, coordinate ticket sales and passenger information and sell, lease or otherwise contract for advertising in or on the equipment or facilities of the corporation;

t. Adopt and maintain employee benefit programs for employees of the corporation including, but not limited to, pension, deferred compensation, medical disability, and death benefits, and which programs may utilize insurance contracts, trust funds, and any other appropriate means of providing the stipulated benefits, and may involve new plans or the continuation of plans previously established by entities acquired by the corporation;

u. Own, vote, and exercise all other rights incidental to the ownership of shares of the capital stock of any incorporated entity acquired by the corporation pursuant to the powers granted by this act;

v. Enter into any and all agreements or contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient or desirable for the purposes of the corporation, or to carry out any power expressly or implicitly given in this act;

w. Notwithstanding the provisions of section 17 of P.L.1979, c.150 (C.27:25-17) or any other law to the contrary, (1) issue operating grant anticipation notes which shall be secured and retired from operating assistance grants authorized under section 9 of the federal Urban Mass Transportation Act of 1964, Pub.L.88-365 (49 U.S.C. s.1602), or any successor or additional federal act having substantially the same or similar purposes or functions and (2) issue capital grant anticipation notes which shall be secured and retired from capital assistance grants authorized under section 3 or section 9 of the federal Urban Mass Transportation Act of 1964, Pub.L.88-365 (49 U.S.C. s.1602), or any successor or additional federal act having substantially the same or similar purposes or functions. As used in this subsection, "operating grant anticipation notes" or "capital grant anticipation notes" (hereinafter referred to as "notes") means credit obligations issued in anticipation of these grants. The notes shall be authorized by a resolution or resolutions of the corporation, and may be issued in one or more series and shall bear the date, or dates, bear interest at the rate or rates of interest per annum, be in the denomination or denominations, be in the form, carry the conversion or registration privileges, have the rank or priority, be executed in such manner as the resolution or resolutions require. The notes may be sold at public or private sale at the price or prices and in the manner that the corporation determines. The notes of the corporation, the sale or transfer thereof, and the income derived therefrom by the purchasers of the notes, shall, at all times, be free from taxation for State or local purposes, under any law of the State or any political subdivision thereof. Notes may be issued under the provisions of P.L.1979, c.150 (C.27:25-1 et seq.) without obtaining the consent of any department, division, commission, board, bureau or agency of the State, and without any other proceedings, conditions, or things which are specifically required by P.L.1979, c.150 (C.27:25-1 et seq.). The notes issued pursuant to P.L.1979, c.150 (C.27:25-1 et seq.) shall not in any way create or constitute any indebtedness, liability or obligation of the State or of any political subdivision thereof or of the corporation, except as provided herein.

The notes shall be payable solely from (1) note proceeds, to the extent not disbursed to the corporation, (2) grant payments if, as, and when received from the federal government, and (3) investment earnings on note proceeds, to the extent not disbursed to the corporation. Each note shall contain on its face a statement to the effect that the corporation is obligated to pay the principal thereof or the interest thereon only from these grants to the corporation and from the proceeds of the notes and investment earnings on the proceeds of the notes, to the extent not disbursed to the corporation, and that neither the faith and credit nor the taxing power of the State or of any political subdivision thereof or of the corporation is pledged to the payment of the principal and interest on these notes. Neither the members of the corporation's board nor any person executing the transactions are personally liable on those notes nor are they otherwise liable for their actions; and

x. Enter into agreements with a public or private entity or consortia thereof to provide for the development of demonstration projects through the use of public-private partnerships pursuant to sections 1 through 9 of P.L.1997, c.136 (C.27:1D-1 through C.27:1D-9).

(cf: P.L.2004, c.1, s.1)

17. Section 7 of P.L.1991, c.252 (C.27:25A-7) is amended to read as follows:

7. The authority shall have the following powers:

a. To adopt bylaws for the regulation of its affairs and the conduct of its business;

b. To adopt an official common seal and alter it at its pleasure;

c. To maintain an office at a place or places within the State as it may designate;

d. To sue and be sued in its own name;

e. To acquire, construct, maintain, operate and support projects;

f. To assist in planning for the development of the transportation system in South Jersey, in conjunction with federal, State, local, and other public entities, as appropriate;

g. To acquire, construct, maintain, and operate feeder roads;

h. To issue bonds or notes of the authority for the purposes of this act and to provide for the rights of the holders thereof as provided in this act;

i. In the exercise of any of its powers, to fix and revise from time to time and charge and collect tolls, fares, passenger facility charges or other charges for transit over or use of any project of the authority, including but not limited to any reduced fare or charge programs as deemed appropriate by the authority; and to determine levels of service to be provided by the authority either directly or by contract. Any revenues collected shall be available to the authority for use in furtherance of any of the purposes of this act;

j. To set and collect rents, fees, charges or other payments for the lease, use, occupancy or disposition of properties owned or leased by the authority. Any revenues collected shall be available to the authority for use in furtherance of any of the purposes of this act;

k. To enter into contracts with any public or private entity to operate motorbus regular route service, motorbus charter service, marine passenger service, rail passenger service, and air passenger service or portions or functions thereof; however, these contracts shall not supplant any services operated pursuant to the "New Jersey Public Transportation Act of 1979," P.L.1979, c.150 (C.27:25-1 et seq.);

l. To acquire, lease as lessee or lessor, own, rent, use, hold and dispose of real property and personal property or any interest therein, in the exercise of its powers and the performance of its duties under this act;

m. To acquire in the name of the authority by purchase, gift or otherwise, on terms and conditions and in a manner as the authority may deem proper, or by the exercise of the power of eminent domain except as against the State of New Jersey, any land and other property which the authority may determine is necessary for any project or for the relocation or reconstruction of any public highway by the authority under the provisions of this act or the construction of any feeder road which the authority is or may be authorized to construct and any and all rights, title and interest in that land and other property, including public lands, parks, playgrounds, reservations, highways or parkways owned by or in which the State of New Jersey or any county, municipality or other governmental subdivision of South Jersey or any other federal, State or local government entity has any right, title or interest, or parts thereof or rights therein, and any fee simple absolute or any lesser interest in private property, and any fee simple absolute in, easements upon, or the benefit of restrictions upon abutting property to preserve and protect projects;

n. To grant by franchise, lease or otherwise, the use of any project, facility or property owned and controlled by the authority to any person for the consideration and for the period or periods of time and upon terms and conditions as are agreed upon, including but not limited to, the condition that the lessee may construct or provide any buildings or structures for the project facility or property or portions thereof;

o. To locate and designate, and to establish, limit and control points of ingress to and egress from each project as may be necessary or desirable in the judgment of the authority to insure the proper operation and maintenance of that project and to prohibit entrance to a project from any point or points not so designated;

p. Subject to the limitations of this act, to acquire, construct, maintain, or operate any public highway connecting with any one or more projects which in the opinion of the authority will increase the use of a project or projects, to take over for construction, maintenance or operation any existing public highway as a feeder road and to realign any existing public highway and build additional sections of road over new alignment in connection with that existing public highway;

q. To establish rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) as are necessary for the management and regulation of its affairs, the use, maintenance and operation of the transportation system, any project, the properties of the authority and the provision of paratransit services to and from any transportation project and to establish a plan for the management, control and regulation of motorbus regular route and motorbus charter services, except for those services which are operated pursuant to the "New Jersey Public Transportation Act of 1979," P.L.1979, c.150 (C.27:25-1 et seq.);

r. To apply for, receive and accept from any federal agency, any bi-State agency, or the State and any subdivision thereof, subject to the approval of the commissioner, grants for or in aid of the planning, acquisition or construction of any project, and to receive and accept aid or contributions from any other public or private source, of either money, property, labor or other things of value, to be held, used and applied only for the purposes for which those grants and contributions may be made;

s. Subject to the limitations of this act, to determine the location, type and character of any project and all other matters in connection with the project;

t. Subject to the rights and security interests of the holders from time to time of bonds or notes issued by the authority, to enter into contracts with the State or the department or the Transportation Trust Fund Authority, providing for the payment from the revenues of the authority to the State or to the Transportation Trust Fund Authority of the amount or amounts of revenues that may be set forth in or determined in accordance with the contracts, provided, that the payments shall be used solely for financing projects in South Jersey, including the payment of principal and interest on any bonds, notes or other obligations issued or entered into by the Transportation Trust Fund Authority, the proceeds of which shall be allocated by the Transportation Trust Fund Authority to projects within South Jersey; any contracts authorized pursuant to this subsection may include conditions and covenants necessary and desirable to facilitate the issuance and sale of bonds, notes and other obligations of the Transportation Trust Fund Authority;

u. To enter into contracts or agreements with any entity for the entity to issue bonds or notes on behalf of the authority and to make payments to the entity to secure those bonds or notes;

v. To establish any reserves, funds or accounts as may be deemed necessary by the authority and to deposit authority revenues in interest bearing accounts or in the State of New Jersey Cash Management Fund established pursuant to section 1 of P.L.1977 c.281 (C.52:18A-90.4);

w. To procure and enter into contracts for any type of insurance and indemnify against loss or damage to property from any cause, including the loss of use and occupancy and business interruption, death or injury of any person, employee liability, any act of any member, officer, employee or servant of the authority, whether part-time, compensated or uncompensated, in the performance of the duties of office or employment or any other insurable risk or any other losses in connection with property, operations, assets or obligations in any amounts and from any insurers as are deemed desirable. The authority shall not indemnify any member, officer, employee or servant for claims for exemplary or punitive damages. In addition, the authority may carry its own liability insurance; and

x. To enter into any and all agreements or contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient or desirable for the purposes of the authority or to carry out any power expressly given in this act.

(cf: P.L.1991, c.252, s.7)

18. Section 2 of P.L.1991, c.262 (C.30:13-4.2) is amended to read as follows:

2. A person shall have a cause of action against the nursing home for any violation of this act. The Department of Health and Senior Services may maintain an action in the name of the State to enforce the provisions of this act and any rules and regulations promulgated pursuant to this act. The action to recover actual damages and, if the cause of action is against a private nursing home, punitive damages , shall be brought in a court of competent jurisdiction. A plaintiff shall not be entitled to recover punitive damages in any action against a public nursing home, or against an officer, employee, or a servant thereof acting within the scope or under color of his office, employment or agency. A plaintiff who prevails in an action shall be entitled to recover reasonable attorney's fees and costs of the action.

(cf: P.L.1991, c.262, s.2)

19. Section 8 of P.L.1976, c.120 (C.30:13-8) is amended to read as follows:

8. a. Any person or resident whose rights as defined herein are violated shall have a cause of action against any person committing such violation. The Department of Health and Senior Services may maintain an action in the name of the State to enforce the provisions of this act and any rules or regulations promulgated pursuant to this act. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages and, if the cause of action is against a private nursing home, punitive damages , for their violation. A plaintiff shall not be entitled to recover punitive damages in any action against a public nursing home, or against an officer, employee, or servant thereof acting within the scope or under color of his office, employment or agency. Any plaintiff who prevails in [any such] an action shall be entitled to recover reasonable attorney's fees and costs of the action.

b. In addition to the provisions of subsection a. of this section, treble damages may be awarded to a resident or alleged third party guarantor of payment who prevails in any action to enforce the provisions of section 3 of P.L.1997, c.241 (C.30:13-3.1).

(cf: P.L.1997, c.241, s.2)

20. Section 4 of P.L.1985, c.386 (C.34:1B-50) is amended to read as follows:

4. The authority shall have the power:

a. To adopt bylaws for the regulation of its affairs and the conduct of its business, which shall include a code of ethics with respect to conflicts of interest;

b. To sue or be sued in the name of the authority, provided that a judgment against the authority shall not create any direct liability against its directors, employees, or its agents;

c. To indemnify its directors, employees and agents for any and all claims, suits, costs of investigations, costs of defense, settlements, or judgments against them on account of an act or omission in the scope of a director's duties, or an employee's or agent's employment, but the authority shall refuse to indemnify if it determines that the act or failure to act was because of actual fraud, willful misconduct, or actual malice, or for claims for exemplary or punitive damages;

d. To enter into any contracts as are necessary or proper to carry out the provisions and purposes of this act;

e. To establish and maintain any reserve or insurance funds as may be necessary to carry out the provisions of this act;

f. To sell, convey, lease, purchase, or otherwise acquire real or personal property to carry out its functions under the act;

g. To borrow money, to issue bonds, notes, or other debt instruments, which may be at a fixed rate of return or otherwise, commensurate with the risk, and to provide for the rights of holders thereof as provided in this act, which obligations shall be an eligible investment pursuant to the provisions of section 144 of P.L.1977, c.110 (C.5:12-144) and section 33 of P.L.1984, c.218 (C.5:12-181);

h. Subject to any agreements with bondholders or noteholders, to purchase bonds or notes of the authority out of any funds or money of the authority available therefor and to hold, cancel, or resell these bonds or notes;

i. To contract for and to accept any gifts, grants, loans of funds or financial or other aid in any form from any person, including an individual, authority, partnership, or otherwise, or from the United States of America or any agency or instrumentality thereof, or from the State or any agency, instrumentality, or political subdivision thereof;

j. In connection with any application for financing or other assistance under this act, to require and collect any reasonable fees and charges, including commitment fees, as the authority may deem necessary for its services;

k. Subject to any agreement with bondholders or noteholders, to invest moneys of the authority not required for immediate use, including proceeds from the sale of bonds and notes, in any obligations, securities, and other investments which the authority deems prudent;

l. To appoint and employ any persons as may be necessary to carry out the purposes of this act, and to determine their qualifications, terms of office, duties and compensation without regard to the provisions of Title 11, Civil Service, of the Revised Statutes;

m. To extend credit, make long-term or short-term loans, loan guarantees, or provide other financial assistance, including letters of credit or guarantees of letters of credit;

n. To establish underwriting standards for eligibility for financial assistance, as provided in section 5 of this act;

o. To establish a financial and technical assistance investment policy which delineates the proposed allocation of assistance by the authority by type of business, which policy shall include a provision that no more than 50% of the total assistance made available by the authority be made available to small businesses, and no more than 25% of the total assistance made available by the authority be made available to minorities and 25% of the total assistance made available by the authority be made available to women; except that notwithstanding the foregoing, and in addition to the funds otherwise allocated by the authority to minorities and women pursuant to this subsection, 100% of the funds made available pursuant to the provisions of section 33 of P.L.1984, c.218 (C.5:12-181), shall be made available to minorities and women, 50% of which shall be made available to women, and 50% of which shall be made available to minorities and shall be invested in accordance with the geographic restrictions established by that act; provided, however, that any repayment of principal and interest due to the Casino Reinvestment Development Authority with respect to obligations purchased or monies otherwise invested in the New Jersey Development Authority for Small Businesses, Minorities, and Women's Enterprises shall be the obligation of the New Jersey Development Authority for Small Businesses, Minorities', and Women's Enterprises;

p. To establish standards for providing a letter of credit or other guarantee for businesses which are unable to secure performance bonds;

q. To take any security which it deems necessary in connection with any direct loan or any guaranteed loan or other extension of credit;

r. To purchase any loan or assistance package which is consistent with the underwriting standards established by the authority from any person, including any financial institution or subsidiary thereof, and to contract with any person to originate these loans;

s. To participate with financial institutions and other investors in providing financial assistance to eligible businesses, under underwriting standards established by the authority, by means of direct loan participations or loan guarantees;

t. To make any rules and regulations necessary to effectuate the purposes of this act;

u. To take any other actions which are reasonable and necessary to effectuate the provisions of this act.

(cf: P.L.1985, c.386, s.4)

21. Section 11 of P.L.1989, c.261 (C.34:11B-11) is amended to read as follows:

11. Any person may initiate suit in Superior Court or file a complaint with the division on either an individual or class basis. In addition to the remedies provided in section 16 of P.L.1945, c.169 (C.10:5-17), the aggrieved party, in any action other than an action against a public employer or against an officer, employee or a servant thereof acting within the scope or under color of his office, employment or agency, may be awarded punitive damages in an amount not greater than $10,000.00 , except that in the case of a class action or a director's complaint the total amount of punitive damages shall not exceed $500,000.00 or 1% of the net worth of the defendant, whichever is less. In determining the amount of punitive damages, the court or director shall consider, among other relevant factors, the amount of compensatory damages awarded, the amount of civil penalty to be paid by the employer, the frequency and persistence of the violation of this act by the employer, the resources of the employer, the number of persons adversely affected by the violation, and the extent to which the employer's failure to comply with this act was intentional.

(cf: P.L.1989, c.261, s.11)

22. Section 5 of P.L.1986, c.105 (C.34:19-5) is amended to read as follows:

5. Upon a violation of any of the provisions of this act, an aggrieved employee or former employee may, within one year, institute a civil action in a court of competent jurisdiction. Upon the application of any party, a jury trial shall be directed to try the validity of any claim under this act specified in the suit. All remedies available in common law tort actions shall be available to prevailing plaintiffs. These remedies are in addition to any legal or equitable relief provided by this act or any other statute. The court shall also order, where appropriate and to the fullest extent possible:

a. An injunction to restrain any violation of this act which is continuing at the time that the court issues its order;

b. The reinstatement of the employee to the same position held before the retaliatory action, or to an equivalent position;

c. The reinstatement of full fringe benefits and seniority rights;

d. The compensation for all lost wages, benefits and other remuneration; [and]

e. The payment by the employer of reasonable costs, and attorney's fees.

In addition, the court or jury may order: the assessment of a civil fine of not more than $10,000 for the first violation of the act and not more than $20,000 for each subsequent violation, which shall be paid to the State Treasurer for deposit in the General Fund; punitive damages ,except in an action against a public employer, or an officer, employee or a servant thereof acting within the scope or under color of his office, employment or agency; or both a civil fine and punitive damages. In determining the amount of punitive damages, the court or jury shall consider not only the amount of compensatory damages awarded to the employee, but also the amount of all damages caused to shareholders, investors, clients, patients, customers, employees, former employees, retirees or pensioners of the employer, or to the public or any governmental entity, by the activities, policies or practices of the employer which the employee disclosed, threatened to disclose, provided testimony regarding, objected to, or refused to participate in.

(cf: P.L.2005, c.329, s.2)

23. Section 21 of P.L.1992, c.165 (C.40:54D-21) is amended to read as follows:

21. The public purpose of an authority shall be to undertake a tourism project if it is necessary or useful to the economic development and public welfare of the residents and tourist industry of the creating municipalities, and to promote, advertise and enhance the attractiveness of the district to visitors and tourists; provided however, that such promotion, advertisement and enhancement shall not be undertaken by any authority with respect to the Wildwood convention center facility unless any such authority is expressly authorized by the sports authority to undertake such activities. Except as otherwise provided in, and subject to any limitations in P.L.1997, c.273 (C.40:54D-25.1 et al.), an authority shall have the following powers:

a. To adopt bylaws for the regulation of its affairs and the conduct of its business;

b. To adopt an official common seal and alter it at its pleasure;

c. To maintain an office at a place or places within the district as it may designate;

d. To sue and be sued in its own name;

e. To acquire from any predecessor owner or operator, and to construct, reconstruct, maintain, and operate a convention center facility or other tourism project;

f. To issue bonds or notes of the authority for the purposes of this act and to provide for the rights of the holders thereof all as provided in the "Local Bond Law," N.J.S.40A:2-1 et seq.;

g. To set and collect rents, fees, charges or other payments for the lease, use, occupancy or disposition of a convention center facility or other tourism project acquired, constructed or reconstructed by the authority pursuant to the provisions of P.L.1992, c.165 (C.40:54D-1 et seq.). Any revenues collected shall be available to the authority for use in furtherance of any of the purposes of this act;

h. To acquire, lease as lessee or lessor, own, rent, use, hold and dispose of real property and personal property or any interest therein, in the exercise of its powers and the performance of its duties under this act;

i. To acquire in the name of the authority by purchase, gift or otherwise, on terms and conditions and in a manner as the authority may deem proper, or by the exercise of the power of eminent domain except as against the State of New Jersey, any land and other property which the authority may determine is necessary for the construction, reconstruction, maintenance, operation or support of tourism projects pursuant to the provisions of this act, P.L.1992, c.165 (C.40:54D-1 et seq.) or parts thereof or rights therein, and any fee simple absolute or any lesser interest in private property, and any fee simple absolute in, easements upon, or the benefit of restrictions upon abutting property to preserve and protect same;

j. To grant by franchise, lease or otherwise, the use of any property owned and controlled by the authority to any person for the consideration and for the period or periods of time and upon terms and conditions as are agreed upon;

k. To apply for, receive and accept from the United States of America or any agency thereof, or the State and any subdivision thereof, subject to the approval of the State Treasurer, grants for or in aid of the planning, acquisition or construction of a convention center facility or other tourism project, and to receive and accept aid or contributions from any other public or private source, of either money, property, labor or other things of value, to be held, used and applied only for the purposes for which those grants and contributions may be made;

l. Subject to the limitations of this act, to determine the location, type and character of its tourism project and all other matters in connection therewith;

m. To enter into contracts or agreements with any entity for the entity to issue bonds or notes on behalf of the authority and to make payments to the entity to secure those bonds or notes;

n. To procure and enter into contracts for any type of insurance and indemnify against loss or damage to property from any cause, including the loss of use and occupancy and business interruption, death or injury of any person, employee liability, any act of any member, officer, employee or servant of the authority, whether part-time, compensated or uncompensated, in the performance of the duties of office or employment or any other insurable risk or any other losses in connection with property, operations, assets or obligations in any amounts and from any insurers as are deemed desirable. The authority shall not indemnify any member, officer, employee or servant for claims for exemplary or punitive damages. In addition, the authority may carry its own liability insurance;

o. To promote and advertise the district and to promote the use of the tourism projects by tourists and visitors to the district; and

p. To enter into any and all agreements or contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient or desirable for the purposes of the authority or to carry out any power expressly given in P.L.1992, c.165 (C.40:54D-1 et seq.).

(cf: P.L.1997, c.273, s.9)

24. Section 11 of P.L.1989, c.300 (C.45:9-19.11) is amended to read as follows:

11. A member of the State Board of Medical Examiners or the Medical Practitioner Review Panel, the medical director to the State Board of Medical Examiners, the Attorney General, any medical consultant to the board or review panel and any employee of the board or review panel shall not be liable in any action for damages to any person for any action taken or recommendation made by him within the scope of his function as a member, consultant or employee, if the action or recommendation was taken or made without malice. The Attorney General shall defend the person in any civil suit and the State shall provide indemnification for any damages awarded pursuant to the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq.

(cf: P.L.1989, c.300, s.11)

25. Section 10 of P.L.1988, c.121 (C.48:5A-63) is amended to read as follows:

10. a. Subject, where appropriate, to the "New Jersey Tort Claims Act" (N.J.S.59:1-1 et seq.), any person, State or local agency or other governmental or public entity which discloses personally identifiable information in violation of this act, or otherwise engages in negligent, willful or reckless conduct in violation of this act, shall be liable to the aggrieved subscriber for:

(1) Actual damages, but not less than liquidated damages computed at a rate of $100.00 per day for each day of violation or a total of $1,000.00 for all violations, whichever is greater;

(2) Such punitive damages as [the court may allow] provided by law, except that the State, or a local agency or other government or public entity, or an officer, employee, or a servant thereof acting within the scope or under color of his office, employment or agency, shall not be liable for punitive damages; and

(3) Attorney's fees and other litigation costs reasonably and actually incurred.

b. In determining the amount of punitive damages, if any, the court shall consider, among other relevant factors, the amount of any actual damages awarded, the nature and seriousness of any intangible harm suffered by the subscriber, the frequency and persistence of failures of compliance by the defendant, the resources of the defendant, the number of persons adversely affected, and the extent to which the failure of the defendant to comply was intentional.

(cf: P.L.1988, c.121, s.10)

26. Section 5 of P.L.1979, c.500 (C.55:13B-21) is amended to read as follows:

5. Any person or resident whose rights as defined herein are violated shall have a cause of action against any person committing such violation. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages and, if the cause of action is against a private boarding facility, punitive damages , for their violation. A plaintiff shall not be entitled to recover punitive damages in any action against a public boarding facility, or against an officer, employee, or a servant thereof acting within the scope or under color of his office, employment or agency. Any plaintiff who prevails in [any such] an action shall be entitled to recover reasonable attorney's fees and costs of the action.

(cf: P.L.1979, c.500, s.5)

27. N.J.S.59:9-2 is amended to read as follows:

59:9-2. a. No interest shall accrue prior to the entry of judgment against a public entity or public employee.

b. No judgment shall be granted against a public entity or public employee on the basis of strict liability, implied warranty or products liability.

c. No punitive or exemplary damages shall be awarded against a public entity or a public employee acting within the scope or under color of his office, employment or agency.

d. No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.

e. If a claimant receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tortfeasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award against a public entity or public employee recovered by such claimant; provided, however, that nothing in this provision shall be construed to limit the rights of a beneficiary under a life insurance policy. No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee.

(cf: P.L.2000, c.126, s.32)

28. N.J.S.59:10-1 is amended to read as follows:

59:10-1. Indemnification. If pursuant to the provisions of P.L.1972, c.48 (C.59:10A-1 et seq.) the Attorney General provides for the defense of an employee or former employee, the State shall provide indemnification for the State employee.

Nothing in this section requires the State to pay for punitive or exemplary damages , or for damages resulting from the commission of a crime. [The State may, however, indemnify a State employee for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the Attorney General, the acts committed by the State employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct, or an intentional wrong.]

(cf: P.L.1987, c.340, s.1)

29. N.J.S.59:10-2 is amended to read as follows:

59:10-2. Refusal to defend--indemnification. If the Attorney General refuses to provide for the defense of a State employee as required by the provisions of P.L.1972, c.48 (C.59:10A-1 et seq.), the employee or former employee of the State shall be entitled to indemnification from the State if he establishes that the act or omission upon which the claim or judgment was based occurred within the scope of his employment as an employee of the State and the State fails to establish that he acted or failed to act because of actual fraud, actual malice or willful misconduct.

If the State employee establishes that he was entitled to a defense under the provisions of this chapter, the State shall pay or reimburse him for any bona fide settlement agreements entered into by the employee, and shall pay or reimburse him for any judgments entered against the employee, and shall pay or reimburse him for all costs of defending the action, including reasonable counsel fees and expenses, together with costs of appeal, if any.

Nothing in this section requires the State to pay for punitive or exemplary damages , or for damages resulting from the commission of a crime. [The State may indemnify a State employee for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the Attorney General, the acts committed by the State employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct, or an intentional wrong.]

(cf: P.L.1987, c.340, s.2)

30. N.J.S.59:10-4 is amended to read as follows:

59:10-4. Local public entities--authority to indemnify. Local public entities are hereby empowered to indemnify local public employees consistent with the provisions of this act. [A local public entity may indemnify an employee of the local public entity for exemplary or punitive damages resulting from the employee's civil violation of State or federal law if, in the opinion of the governing body of the local public entity, the acts committed by the employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.] Nothing in this section authorizes a local public entity to indemnify an employee of the local public entity for exemplary or punitive damages.

(cf: P.L.1987, c.340, s.3)

31. This act shall take effect on the 60th day following its enactment, and only contracts entered into, or causes of action filed, on or after the effective date shall be governed by its provisions.

STATEMENT

This bill would eliminate awards of punitive damages against all public entities and public employees acting within the scope or under color of their office, employment or agency. The provisions of the bill would clearly establish that public entities, including the State and all political subdivisions thereof, as well as all public officers, employees, and servants would not be liable in any civil action for punitive damages.

Since these officers, employees, and servants would no longer be liable for punitive damages while acting within the scope or under color of their office, employment or agency, the public entities would no longer need the authority to indemnify such individuals in their official capacity. In order to properly reflect this point, the bill would also amend several statutory sections concerning the authority of public entities to indemnify these individuals.

The amendments within the bill changing the "Punitive Damages Act," N.J.S.A.2A:15-5.9 et seq., the "Conscientious Employee Protection Act," N.J.S.A.34:19-1 et seq., and the "Law Against Discrimination," N.J.S.A.10:5-1 et seq., as well as amendments to several other specific causes of action set forth throughout the statutory law, would create a consistent legislative framework prohibiting awards of punitive damages against public entities and public employees. This action would clarify the Legislature's position on the issue of punitive damages against public entities, and guide future court decisions when ruling on the availability of such awards. See Abbamont v. Piscataway Tp. Bd. of Educ., 138 N.J. 405 (1994) (permitting punitive damages against government entities under the "Conscientious Employee Protection Act"); Lockley v. N.J. Dep't of Corrections, 177 N.J. 413 (2003) (permitting punitive damages against public entity under the "Law Against Discrimination").