TORTS — Immunity

Turner v. Township of Irvington

New Jersey Law Journal

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Turner v. Township of Irvington, A-5478-11T2; Appellate Division; opinion by Parrillo, P.J.A.D.; decided and approved for publication April 23, 2013. Before Judges Parrillo, Sabatino and Maven. On appeal from the Law Division, Essex County, L-1533-07. [Sat below: Judge Davidson.] DDS No. 36-2-9699 [18 pp.]

This case involves the handling of emergency telephone calls by two Irvington 9-1-1 operators. Plaintiffs Erica Turner and Eric Turner, as well as Erica's mother and cousin, had repeatedly placed calls to 9-1-1 while Al Mutah Q. Saunders, Erica's former boyfriend and father of her infant daughter, was attempting to forcefully enter her residence on April 4, 2005, the same day he was served with a domestic violence final restraining order (FRO).

The first of 10 calls was made by Erica's mother at 6:30 p.m., reporting that Saunders was outside the door in violation of an outstanding FRO and had kidnapped her granddaughter. Subsequent calls within the next 20 minutes grew more desperate as Saunders' conduct escalated. At 6:39 p.m., Erica reported Saunders was going to kick the door in and that she was fearful for her life. The next call at 6:41 p.m. was from her cousin, a Newark police officer, who related Erica's account that Saunders had a gun and was threatening to kill her. Erica herself reported the threat minutes later and immediately thereafter her father also charged that Saunders had a gun.

The dispatchers on duty, James Flagler and Anjeanette Monroig, responded that they would send officers to the scene as soon as they became available. When Erica's mother complained at 6:49 p.m. that no one had yet responded, one of the operators replied "you have to take that up with the mayor." The last call was placed by Erica at 7:51 p.m., who reported that Saunders was now inside the building, beyond the second door, and kicking at her apartment door.

Two police officers arrived at 8:36 p.m., nine minutes after receiving a call from the dispatcher to respond to the Turner residence and more than two hours after the first 9-1-1 call. Although the officers were informed that there was a "dispute," they were not told that a gun was involved or the suspect was in violation of an FRO. Saunders had left by the time they arrived.

One week later, Erica found Saunders in her apartment. He struck her on the head with a gun, and with Saunders holding the gun to Erica's back they left the apartment with their infant daughter. When they encountered Erica's father, Saunders shot him. He then forced Erica to drive from the scene. Following a police chase, Saunders was arrested after a four-hour standoff.

Plaintiffs sued the township of Irvington, Monroig, Flagler and Saunders. The complaint included counts sounding in both vicarious and direct liability. The counts alleging negligent hiring/supervision, negligent training, negligent retention and civil conspiracy were dismissed on the township's motion for summary judgment, as were those counts alleging intentional torts. The counts remaining against the township alleged negligence predicated on vicarious liability, including a count alleging the township is liable for the conduct of its 9-1-1 operators who acted unreasonably and with gross negligence in carrying out ministerial duties.

By leave granted, the township appeals, arguing that the court erred in failing to dismiss the vicarious liability counts of plaintiffs' complaint because the 9-1-1 immunity statute, N.J.S.A. 52:17C-10(d), and the Tort Claims Act (TCA), specifically N.J.S.A. 59:2-10, collectively considered, immunize the public employer from civil liability for the conduct of its 9-1-1 operators, whether simply negligent or willful and wanton.

Held: N.J.S.A. 52:17C-10(d), which immunizes 9-1-1 operators for conduct that is not wanton and willful, and N.J.S.A. 59:2-10, a general Tort Claims Act provision that immunizes public entities for the wanton and willful conduct of their employees, together prevent a public entity employer from being held liable for its operators' conduct regardless of their level of culpability.

N.J.S.A. 52:17C-10(d) shields public entity employers and their 9-1-1 operators from civil liability for the negligent mishandling of emergency calls. However, the immunity provision is inapplicable if a 9-1-1 operator acts in wanton and willful disregard for the safety of persons or property. Here, the appellate panel finds that the record contains evidence from which a jury could reasonably find the 9-1-1 operators' acts and omissions constituted such wanton and willful disregard so as to defeat the immunity afforded to the township under Title 52.

Although not shielded under the 9-1-1 immunity statute, the appellate panel finds the township is nevertheless insulated from liability for such willful and wanton employee misconduct under the TCA's limitation on public entity liability contained in N.J.S.A. 59:2-10.

The panel finds nothing in the legislative history of the 9-1-1 immunity statute that indicates an intent to displace the immunity provisions of the TCA. On the contrary, statutes dealing with the same subject matter should be read in pari materia. Both statutory schemes share the common goal of expanding the limitations on liability for public entities. The TCA's guiding principle is that immunity from tort liability is the general rule and liability is the exception. Similar policy goals of expanded immunity underlie N.J.S.A. 52:17C-10(d). The immunity provision of N.J.S.A. 52:17C-10(d) is intended to have an extremely broad scope.

The appellate panel concludes that N.J.S.A. 52:17C-10(d) does not qualify or limit the general rule of public entity immunity under N.J.S.A. 59:2-10, and therefore the township remains immune for the wanton and willful misconduct of its 9-1-1 operators.

For appellant — Robert E. Levy (Scarinci & Hollenbeck; Levy, Michael A. Cifelli and Candida J. Griffin on the briefs). For respondents — David Wendel (The Serruto Law Firm).

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