*1 unreasonableness palpable acted with defendants whether the State, 110 Rochinsky v. N.J. jury to determine. is one for a (1988). 399, 410, .2d 1029 541 A
Ill apply neither of the absolute immunities Because indicates put forward substantial evidence plaintiff has unreasonably, the mo- acted defendant entities that the have been denied. summary judgment should tion for opinion. joins STEIN in this Justice WILENTZ, Justice reversal and remandment —Chief For CLIFFORD, POLLOCK, O’HERN and Justices GARIBALDI—5. HANDLER and STEIN—2.
For affirmance—Justices
Arthur E. Miller, DiFante, Ray, Joseph Wilbert Fountain Clarence Walter Summers, Mullen, Manuel, Benjamin (Montano, and Albert Gregorio, attorneys). & Owens opinion of was delivered the Court *5 HANDLER, J. duty
This case concerns the public by municipal owed to the employees charged with maintaining repairing public Department streets. Defendants are all City They Public Works of the of Camden. are said to have dangerous persist allowed a condition to in a street for many injury plaintiff. months and a result to have caused City case, The never party presumably has been a to this plaintiff would because have been barred the failure to serve timely granted a notice of claim. summary The trial court judgment in favor of the all Appellate defendants. The Divi- unreported opinion. grant- sion affirmed in an This Court then (1991). ed certification. 126 2d N.J. A 886
I 11,1986, plaintiff standing On November Eddie Chatman was Camden, the street on the 28th block of Benson Street leaning open parked over hood car. A 1963 Chevrolet pick-up coming per truck down the street at about five miles large passenger hour hit a hole in the street. Its side door back, swung open, striking causing Mr. in the him Chatman injury. serious The street place where the accident took was residential, way, parked one and had cars on both sides. by nearby Affidavits submitted residents the hole as describe “very large.” provided Photos of the hole after the accident and after it had been filled show that the hole ran across much of the street. The driver of the truck stated that the hole had eight been in the street for at lеast seven to months and that he could not avoided it. Chatman said that he could hear have And, passing cars over the hole from inside his home. as the large enough suggest, facts of the case the hole was to cause pick-up swing open. the door of the truck to is not clear from the exact nature and cause the hole large hole, alternatively pothole, record. It is referred to as a *6 “plumber’s “cave in”2. Chatman maintains a ditch”1 and a Exum, City nearby a made to John that calls were the accident, resident, complaining year the about at least a before Although Exum submitted on has the hole Benson Street. calls, City the attesting having those to his made affidavits According it no of them. to defendant states that has records the on they the had no notice of hole employees, City and actual they The notice after accident. first Benson Street until the 1986, 3, days roughly twenty after was on December received accident, complained about the an unidentified caller the when following repaired by a work crew of day the it was hole. On Department. thе Works Camden Public wife, Sarah, January Chatman and his On Eddie pick-up truck and complaint against filed the driver of the a (Reference personnel. herein- unnamed maintenance various Chatman.) they not Because did “plaintiff” after to is Eddie Act, ninety-day requirement of the Tort Claims the notice meet City in to include the of Camden the were unable Chatmans delay, City provided the the names of their suit. some After responsible Department in the of Public Works those persons Those six were added maintaining for Benson Street. July They were Richard- complaint on 1989. Walter to the son, Department; Wilbert Foun- of the Public Works director tain, Benjamin, assistant street superintendent; Albert street working plumbing "plumber’s on 1A is created when contractor ditch” necessary problem up permit for action and the A is cuts the street. days required the with dirt and then return ten later is to fill hole contractor City tops dig again the up then off hole with it fill it with concrete. The and dig plumber’s any permits asphalt. ditches on the is record of There no during preceding years. street three water breaks and the dirt under 2A when a sewer or line "сave in” occurs hydrant question perpendicular pavement to a fire The hole in is is eroded. City responsible repairing directly the sewer line. is and over a sewer The Company responsible Jersey water mains. is for the Water mains whereas New may suggests break in the have been a that the cause At least one defendant line, system Jersey Company points to the sewer Water but New water likely culprit. more superintendent charge highway department; Clarence Miller, responsible foreman potholes for the that fill crews City; Ray, responsible Walter a foreman for street mainte- including Street; nance in Joseph DiFante, the area Benson City inspector street at the time of the accident. The Department Public Works generally responsible maintaining securing public property City in the of Cam- Highway den. The Department Division of the is in turn responsible maintaining roughly 250 miles of streets in accident, city. At the time of the it had a fifty-five total of employees, assigned six of repair potholes. whom were The operates complaint Division on the system. City basis of a complaints daily. receives about 300 to 400 Based on the *7 severity complaint, crews are sent out to take remedial perform inspections. action or complaints All are reviewed daily by Division, the head of Highway the a in defendant this action. independently identify problems.
Work crews also street they simply complaints Sometimes they call when come potholes dangerous across or conditions. On at least some they addition, immediately repair problem. occasions the In perhaps there was at least one and more than one full time DiFante, inspector street the Joseph at time of the accident. defendant, responsible driving also a was for the streets of supervising inspecting by private Camden road work con- responsible insuring tractors. He for was that those contrac- plumber’s City topped tors filled ditches and that the in turn the holes off. any inspections
When asked whether were made of the area accident, subsequent to the defendant Wilbert Fountain stated inspection that an of the area had on been made March 1986. eight That would have been more than months the before date, however, accident. The seems to have been an error. they plumber’s Fountain said found two ditches that had been Thus, repaired inspection on 1986. the most December was inspection, from made the accident. Aside that likely after Department inspect- employees that is no evidence there area on Benson Street. ed the defendants, summary granting judgment In in favor jury plaintiff that could not recover because court held trial any had actual or not find that of defendants either could Further, knowledge jury if a of the hole. even constructive notice, that 59:3-7 have found defendants had N.J.S.A. could barring brought by immunized defendants from suit claims negligent inspection. The court against public for immune from suit because their discre- also found defendants 59:3-2d, tionary fell within the ambit N.J.S.A. decisions qualified immunity discretionary acts provides a which Finally, the court that public employees. trial determined imposing 59:4-2, provides which the standards N.J.S.A. dangerous public entity on conditions on appeal, Appellate apply did not defendants. On рroperty, affirmed, adopting reasoning of the court and trial Division “any ruling plaintiff duty that had not shown toward this subject which is not hole condition street] [the provision of immunity the Act.” posed rely determining appeal, In issues this we Act, Jersey 59:1-1 to :12-3 the New Tort Claims on against (Act), governs public entities which claims emphasize initially the Act reestablishes employees. We *8 entities, similarly sovereign immunity public for but does not Santoro, public employees. Longo v. shield den., 507, 515, (App.Div.), .2d934 99 N.J. 480 A certif. for (1984). public entity A “not liable an deemed A .2d706 Act, In provided in the N.J.S.A. 59:2-1. injury” except as except contrast, injury” employee “is public liable Thus, analysis provided. 59:3-1. otherwise markedly from the determining differs public-employee liability. differen determining public-entity That analysis for by the public employees entities Tort and tial treatment legal longstanding principles Claims Act reflects in the State explains large part apparent anomaly public in and that employees may exposed greater liability public to than their be employers. may surprised public employ- While some be employers differently purposes, are ees and treated tort readily explainable given the of tort distinctions are evolution Moreover, Jersey. emphasized it that the law New should be employees greater liability apparent exposing harshness of to apparent. In just under certain limited circumstances is that — practice, longstanding policy indemnifying public employ- penalties. from ees shields them ruinous tort We now hold that under the Tort Claims Act relevant jurisprudence public employees duty common law owe a to dangerous protect against condi- members public property employees and that such are not immune tion of “inspection” suit under the immunities of the Act. With from protecting against dangerous respect to condition of applicable of care property, we determine that the standard If employees depends nature of their duties. on the non-discretionary, public em- those duties are ministerial and they use reasonable ployees may found liable if failed to be require policy of discretion or care. If those duties the exercise dеcisions, may found liable if their failure public employees be These rules insure that palpably unreasonable. to use care was imposed not left with the financial burden innocent victims are negligence while at the same time by persons’ on them other legitimate policy-making functions of local safeguarding the hold, also, provisions notice-of-claim government. that the We apply the Tort Claims Act do not ordinary statute against governed them are that actions Accordingly, judgment reverse the below limitations. we trial. and remand the matter for
II providing for the Legislature, Act, preserve Tort determined employees under the Claims *9 404 liability. provides expressly common law The Act that
their “except provided” public employees shall be as otherwise liable N.J.S.A. private person.” 59:3-l(a). “to the same extent as a doing principle so common In the act reaffirms the law respect private persons immunity exception to is the with contrast, Legislature exactly In rather than the rule. used opposite language the treatment of describe not liable They except provided by are entities. otherwise 59:2-l(a). the act. in turn codifies the common This principle respect immunity is law that with entities opposite exception. rule and The use of these two draftsmanship. Rather, formulations no mistake of it was pre-Tort public employees reflected the Claims Act treatment Moreover, employers. the Tort the authors of Claims Act upon they were well aware that the California law which drew public employee liability heavily many included situations where Report Jersey See New entity liability. was broader than Sovereign Immunity 103- Attorney General’s Task Force on (1972) (discussing 04 situations under California law in which employee liability than that of em- was broader ployers). expresses preserve
The Tort
Act
a clear intent to
Claims
public employee liability
principles governing
common law
subjected
specific
provided by
they are not
immunities
where
example,
provides
that the
the Act. For
the Act
public employee
subject
any immunity
public employ
of a
1(b).
of the
N.J.S.A. 59:3—
provided by
ee
law.
The use
words
”
public employee provided by law was
immunity
“any
clearly
Legislature expressly departed
The
from
calculated.
Act,
many respects
was a
the California Tort Claims
which
See,
State,
e.g.,
Daniel v.
Jersey
Act.
239
model for the New
den.,
N.J.Super.
563, 592,
122
(App.Div.),
1329
571 A.2d
certif.
State,
Burg
(1990);
N.J.
147
A.2d
den.,
N.J.
316, 322,
(App.Div),
At common
a
through
public property if
an officer
dangerous conditions on
authority
employee
ordered an
general
of
it
position
a
Jersey,
action.
Florio v.
101 N.J.L.
negligent
See
perform
537,
(E. A.1925); Reilly v.
New
535,
City
&
52,
(E. A.1941);
111
18 A.2d
v.
66
&
King,
v.
(E. A.1933);
168 A. B.W.
Inc.
364,
N.J.L.
&
cf.
York,
(1967)
(rejecting
New
N.J.
In
at common law were liable
municipal corporation
negligent
were
high
officers of the
level
537, 129
Id. at
A.
470.
ordering
in
actions that were harmful.
negligently,
municipality
If the
itself was found to have acted
employee
simply acted on
liability
no
would attach to the
who
hand, the munici
municipality.
On the other
the orders
employee engaged in
not
held
where an
pality would
be
liable
Reilly
negligently performed
his or her duties.
negligence or
Brunswick, 92
547,
(E.
City New
N.J.L.
Municipal liability tort courts, complexity. Most American this doctrinal reflected that, English Jersey, over the rule hav- including carried New streets, municipality employ- and its ing constructed
407
to maintain them
a safe
corresponding duty
ees had a
Obstructions
Municipal Corporations,
condition.
Defects of
(1950);
sec. 782
Ways, 63 C.J.S.
other Public
in Streets of
Streets, Municipal Corpo
McQuillan, Liability for Defective
Stevenson,
rations,
(1991);
Harry
54.15a
Law Streets
§
(1949).
See also
Jersey,
in New
3 Rut.L.Rev.
Sidewalks
487, 492-93,
Newark,
158 2d 214
A.
Bechefsky v.
(responsibility municipalities
“from the earli
(App.Div.1960)
public thorough
to the maintenance and care of
days
est
to see
However,
many
fares.”).
Jersey differed from
other
New
dangerous
conditions
limiting liability
street
jurisdictions
Curley,
v.
involving
Hayden
misfeasance.
N.J.
to situations
412,
(1961);
supra, 6
at
Milstrey,
.2d 809
N.J.
169 A
(Sup.Ct.
37;
Bohen,
Further, although
at common law
courts
nonfeasance, they
misfeasance
between
on the distinction
See,
County
v.
e.g., Hammond
its coherence.
questioned
also
(“In
12,
reason
criticism of Hankinson, 51 N.J. Jackson v. 1960s, in the sance increased (1968), began emphasize an 230, 685 and courts 238 A. 2d liability, namely, dichotomy establishing alternative discretionary acts. See ministerial and distinction between Park, 214, 48 N.J. 225 Corp. Borough v. Visidor of Cliffside 972, 1166, 18 den., cert. 386 U.S. S.Ct. (1966), 87 A.2d 105 478, 246 A.2d Koppenal, 52 N.J. Bergen v. (1969); L.Ed.2d 132 541, Borough, 42 N.J. 201 Amelchenko v. Freehold (1968); 442 (1964). 2d 726 A. municipal employees has exposure of
Historically,
the tort
employers, it
municipаl
from that of their
not
been distinct
employees were
law
At common
has been broader.
“to the same extent as
by their acts
injury
caused
liable
granted immunity. Kisielewski v.
unless
private persons,”
262,
258,
203
Jersey,
N.J.Super.
172 A.2d
New
68
State of
Florio,
539,
Moreover, Legislature when the use of arising from the for accidents palities in 1933 structures, an additional it created buildings, and grounds, munic- employees and that of liability of distinction between
409
immunity
That
confer
similar
on
ipal entities.
statute did not
460;
1933,
(R.S.,
municipal employees. L.
18:5-30
c.
Newark,
repealed).
17
since
In
Board
Educ.
Falcone v.
of
of
75,
explained
4
(Cty.Ct.1939)
A.2d 687
the court
that
N.J.Misc.
municipal employees and entities
the differential treatment of
legislative
public policy
due to “the
would be
was
belief
interposing
wrongful injuries
by
responsibility
served
better
person, solely upon
committed the
the individuals who
wrongful
public body
upon
and not also
itself.”
at
acts
Id.
76,
We thus at common were extensively municipal their exposed liability more than were Further, employers. years immediately proceeding in 1972, passage of Tort Claims Act the common law quite dealing municipal and was employee with uncertainty, complicated, great marked tremendous municipal Supreme In tort law flux. 1968 the Court described Darpino, et “going through metamorphosis.” Miehl v. (1968). 49, 52, increasingly al., A.2d N.J. fully distinction between nonfea suspect but not abandoned misfeasance had determined the sance and century. v. Hankin employees for most See Jackson (criticizing son, 2d 685 act/omission supra, 51 N.J. 238 A. distinction). Many doctrines that had struc of the traditional rejected. analysis expressly Other case had bеen tured earlier heavy or been limited important had come under criticism rules substitutionary And new rules were narrow fact situations. at See, King, supra, fully e.g., B.W. N.J. not elaborated. emphasize 324-35, begun had 2d 133. Courts 230 A. duties, discretionary see ministerial and distinction between Park, supra, 48 N.J. Corp. Borough v. Visidor Cliffside 478, 246 105; 52 N.J. Bergen Koppenal, supra, A.2d analyze liability munici not it to 2d had used A. but pal employees. the Tort Claims backdrop sharpen the effect of
This serves to municipal public employee prior Act on the treatment *14 significant liability. ways scope The Act in narrows the of that municipalities. Conversely, significantly the Act expands public employees. of We redirect our specific posed by appeal attention to the issues this from that perspective.
Ill aspect The trial court believed that one plaintiffs against employees negli cause of action several of the was gence arising of a duty inspect out to streets. The court determined that the employees were immune with respect relating duty to conduct to a inspect breach of the to рroperty. The basis for that determination was N.J.S.A. 59:3-7, part, provides: in which injury
A is not liable for caused his failure to an public employee make by making negligent or reason of an or inspection, by inadequate inspection any property. duty inspect The duty to as an incident of the to maintain and public property assure the safeness of duty is distinct from the part inspect regulatory authority to that is of the employees private property. over The statute pro thus also nothing vides “that in this section shall exonerate ... a employee from liability protect against danger for failure to provided chapter ous condition as 4.” 57:3-7. The N.J.S.A. Nowicki, court in N.J.Super. Karczewski v. 457 A.2d (App.Div.1982), held that 59:3-7 does not N.J.S.A. bar negligent inspection brought against public employees claims protect when the accident is caused against a failure to dangerous public property. condition of legislative history supports interpreta Act that Legislative inspection tion. The Comments indicate that the immunity municipalities of N.J.S.A. 59:2-6 does not absolve or duty inspect public property their from the Rather, dangerous immunity designed conditions. encourage inspection public generally. activities benefit The Comments state that inclusion of the reference to “[t]he shall not immunity 4 is indicate that this Chapter intended to in public property are dangerous conditions on apply when Although Legislative on N.J.S.A. 59:2-6. volved.” Comment purpose of 59:3- commentary explain does N.J.S.A. not 59:2-6, grants which the same explain it does al Because the sections contain immunity entities. can language, the comment N.J.S.A. 59:2-6 most identical discerning See guide scope N.J.S.A. 59:3-7. this Court 507, 515, Santoro, supra, 480 A.2d Longo v. *15 59:3-2, granting (court provision the interpreted 934 N.J.S.A. by discretionary immunity public employees, reference to 59:2-3, provision applica construing parallel cases N.J.S.A. the public entity). Chapter public property four defines ble to the by public personal property owned or controlled the as “real or easements, encroachments and entity, not include but does public property the property other that are located on entity.” by public the entity not owned or controllеd but are 59:4-lc; Long of Educ., see v. Branch Board N.J.S.A. Cadmus Div.1977) 42, 48, (Law (“It .2d is N.J.Super. 155 382 A 98 Tort Act evinces respect public property that the Claims with imposition of for any legislative intention that there be (or negligent inspection).”); Bom inspection omission cf. 361, (1991) Newark, 125 A .2d 335 City N.J. 593 bace v. inspection). negligent housing code (indicating immunity for patterned Jersey New Tort Legislature the Because the Act, the California Act on California Tort Claims Claims State, See, e.g., supra, 239 Daniel v. statute instructive. State, 592, 1329; supra, Burg .2d N.J.Super. at 571 A counterpart to 371 .2d308. The California N.J.Super. at A liable public employee is not provides that 59:3-7 N.J.S.A. “[a] inspections relating to the respect to deficient injury” with Code and Actions non-public property. Cal.Claims safeness of (California Act). (West 1980) definition of 821.4 § precise terminol Act contains the property under the California Hence, 59:4-lc. Act. ogy Jersey New See N.J.S.A. used inspec- apply expressed the California Act policy immunity only tion non-public property mirrors a similar policy implicit Jersey in the New Act.
Thus, public entity when the neither owns nor controls property, 59:3-7 predicated bars claims negli on gent inspection. hand, theOn other public entity’s because the responsibility for the care direct, property is nondele gable, exclusive, independent there is no need to encourage proper discharge duty. Hence, of that Legislature reasonably chose to allow suits negligent inspection when public entity owns or property gives controls the rise to injury. Karczewski, supra, See 457 2dA. 837; Kenney Inc., v. Scientific, 204 N.J.Super. 497 A.2d (L.Div.1985) (N.J.S.A. 59:2-6 plaintiff’s barred claim of negligent against public maintenance entity because enti ty did not own or property). control the Inasmuch as “a road highway or falls within the definition of property,” Johnson v. County, 239, 256, Essex 223 N.J.Super. 538 A.2d (L.Div.1987), inspections related to ways would not be immunity. accorded
We conclude that N.J.S.A. 59:3-7 does not immunize defen- dants from stemming negligent from inspection of public streets.
IV The remaining central duty issue is the public that employees public owe the respect dangerous with to the public condition of property. The Tort expressly Claims Act provides public that entities are injuries liable for by dangerous caused cоnditions public property, on only but if the entity’s action or failure to act palpably was unreasonable. Legisla N.J.S.A. 59:4-2. The tive Comments indicate that the section follows the rule articu Bergen Koppenal, lated in supra, 480, at N.J. 246 A. 2d 442, public that entity “when a exercises or fails to exercise its discretion in determining what action should or should not be protect against taken to dangerous the judgment condition that it it is clear to the court that was should be reversed where palpably unreasonable.” however, Act, corresponding provision no deal-
The
contains
public
dangerous condi-
ing
liability
employees
of
with the
dangerous
to
public property.
on
The one reference
tions
employees
public property
they
relate to
conditions on
3,
reiterate,
reference,
chapter
ambiguous.
is
To
that
59:3-7,
negligent inspec-
immunity for
states that the
employee
liability
from
not exonerate a
tions shall
dangerous
provided in
protect against
condition as
failure to
chapter
4-9.
N.J.S.A. 59:4-1 to
exception
argue
immunity
that
of section 59:3-
might
One
the
reference,
public employee chapter
into
by
incorporates
4, and,
implication,
palpable
its
chapter
Karczewski, supra,
standard of care. See
unreasonableness
negligent inspection
The
We are
provided
satisfied that when the
general liability
public employees,
it intended that such
law,
liability
guided by
would be
subject
the common
to the
See,
provided
immunities
in the
e.g.,
Tort Claims Act.
Renz v.
Central,
(1981).
Penn
87 N.J.
palpably
regard
3However, even with
to the
immunity
municipalities,
Legislature
evolving
common-law
The Act
incorporated
principles.
establishing
subject
made the
themselves
provisions
common-law
Judge
immunities. As
Guerriero,
said in
at
Brody
supra,
stating
A. 2d
the Act "doubles back” on itself
of a
by
"any liability
subject
established
this act is
entity
any immunity
N.J.S.A. 59:2-1.
entity."
*18
hand,
immunity
discretionary
qualified
when
On the other
in
public employees are liable
decision-making
apply,
does not
negligence.
ordinary
Thus
principles
common-law
of
tort under
59:3-2(d) goes
to provide:
on
section
negligence arising
Nothing
in this
shall exonerate a
section
public employee
carrying
in
out his ministerial
functions.
out of his acts or omissions
public
dangerous
on
conclude that when
We
conditions
discretionary
policy
persist
or
arise or
because of
property
funds, resources,
regarding
of
or
public
the allocation
decisions
staff, public
judged against
palpa
a standard of
employees are
relatively
The
of
is
standard
review
ble unreasonableness.
competing
searching
requires
it
because
assessment
competing
employee
The
must show that there were
demands.
discretionary
between
and that a
choice was made
demands
Elizabeth,
Lopez
N.J.Super.
City
demands.
those
Santoro,
supra,
Longo v.
(App.Div.1991);
In
employees, particularly those
occupy
who
positions
municipality,
lower-level
in the
carry
policies
often
out
programs already designed
by the municipality. Although
employees
the work of almost all
involves considerable discre
tion,
arguments
shielding
policy
by public
decisions
entities lose their
respect
persons
force with
who have
relatively-well-defined responsibilities.
Czyzewski
See
v.
Schwartz,
supra,
N.J.Super.
(state
It should be Act in entity liability by the Tort Claims public employee and dangerous public property. on is limited to conditions this case in the engages negligence employee an otherwise Where equivalent entity will have employment his or her course of Act. superior provisions respondeat under the Moreover, government 59:2-2(a). municipal because required is employees, and the State generally indemnify their case law, in treatment this the limited difference to do so hardship employees. on unlikely to in serious result sufficiently record is not In case the factual this *20 unre why the hole or ditch remained developed to determine If, the example, long period of time. paired over such a policy a of maintain repair hole was the result of failure to the repairing only part City or in one of the ing only those streets of would be then the standard potholes, and not ditches If, on palpably unreasonable. the decision was whether of a hand, patch the was the result failure to hole other complaint that otherwise process to a would adequately failure order, up a or to follow work responded have to been nеgligence. be standard of would background somewhat Although remains the factual a motion is sufficient defeat point, at this the record unclear a defendant summary judgment. questions The of whether negligently under the circum unreasonably or palpably acted Rochinsky decide. v. State jury ones that a should stances are 418 410, 399, N.J. v. Borough (1988);
110
541 A. 2d
McGowan
1029
Eatontown,
151 N.J.Super.
440,
(App.Div.
V Our consideration a threshold notice issue is now fully more understanding informed our of the standards and recognizing liability bases for part on the respect with protect against dangerous to their failure to condi tions of property. N.J.S.A. 59:8-8 person
Under
injured
as the result of the
acts or
public entity
omissions of a
must file a claim with that
entity
ninety
within
days.
chapter governing
proce-
*21
bringing
against public
dures for
claims
entities does not men-
tion
employees, and no similar statute of limitations
Here, plaintiff did
employees.
against public
governs claims
requirement.
ninety-day notice
meet the
not
of limitations
statute
difference between
anomaly.
appаrent
public employees creates an
entities and
government
requires the
to indemni-
Act
state
The Tort Claims
scope
in the
negligent acts and omissions
its
fy
Municipal governments
authorized but not
are
employment.
Most
indemnify
employees.
59:10-4.
their
required to
municipali-
that the
employees. That means
indemnify their
do
lodged
be
judgment
that could not
may
the cost
ty
bear
is
case, although plaintiff
barred
directly
In
against it.
this
accomplish the
can
directly suing
municipality,
he
from
going through
employees.
goal by
same
periods does not
the two limitation
The differences between
peculiar
the result of the
an
but instead
appear to be
accident
municipal-employee
municipal-government and
development of
emphasized in Karczewski
Appellate Division
liability. As the
Nowicki,
N.J.Super. at
457 A.2d
supra, 188
away
to do
with
Tort Claims Act was
overriding purpose
sovereign immu
doctrine of
unjust results of the traditional
public employee at common
negligence
against
suit
nity. A
limitations.
prevailing statute of
subject
to the
law was
incorporates
principles,
law
we
the cоmmon
Because the Act
plaintiff’s
to limit a
Legislature an intent
impute to the
cannot
provision that
ninety-day-notice
of a
right
of action means
Such a result
against public
Ibid.
expressly
entities.
applies
given
statutory
interpretation
to earlier
consistent with
also
liability. The 1933 stat
municipal entity-employee
treatment
injuries arising on
immunity municipalities
granting
ute
resulting employees,
not
to torts
property
apply
did
might
municipality
anomaly, namely, that a
apparent
the same
brought
could not be
of a suit that
the ultimate costs
bear
77, 4
2d
Falcone,
at
A.
supra,
N.J.Misc.
directly against it.
408-409,
at 270-271.
discussion,
at
608 A.2d
supra
See
687.
*22
language
The actual
easily
of the Act does not
allow another
reading.
clearly
The Act
requirement
limits the notice
preserves
entities and
the common-law
em
Adams,
ployees.
198-99,
Williams v.
(Law Div.1983)(“filing
A. 2d 707
against
a claim
entity
prerequisite
against
is not a
to suit
an
employee,
individual
even when a
might thereby
claimant
recover from the entity
indirectly, through indemnification, what he could not recover
(citations
directly”)
omitted);
Semcer,
Lutz v.
126 N.J.Super.
288, 300,
(Law Div.1974).
Plaintiffs against cause of action employee defendants is preserved thus despite lapse ninety-day period of the limitations.
VI We conclude plaintiff proceed should be allowed to with his case. The standard of applied to be to the conduct of the depend particular defendants will on the facts of the If repair case. the failure to the hazardous condition in the street was the result of a discretionary decision or policy determination, defendants will be liable if their acts or palpably omissions were persistence unreasonable. If the product the hole was the of ministerial or nondiscretionary conduct rather than a regarding decision how to allocate limited resources, then negligence defendants are liable to the same private, extent as persons. judgment
We reverse the Appellate affirming Division summary judgment in favor of defendants and remand for trial.
O’HERN, J., dissenting.
majority’s
interpretation of
Jersey
the New
Tort Claims
Act,
(the Act),
N.J.S.A. 59:1-1 to :12-3
produces the anomalous
saddling
emрloyee with the
the lowest-level
result of
damages
injured by
pay
to those
greatest
responsibility
Although
majori-
public property.
conditions
defective
by reading some of the
liability can be reached
ty’s approach to
isolation,
result conflicts with the
provisions
such a
Act’s
*23
by
majority is
The result
the
Act’s overall structure.
reached
I can discern in which the
only instance under the Act that
the
employ-
of
acting
scope
within the
public employee’s duty when
scope
employer’s
is not commensurate with the
ment
fair
Additionally, majority’s
the
result conflicts with a
liability.
attempt to
Legislature’s
and the
reading
provisions
of the Act’s
public
and
public
liabilities of
entities
equate the duties and
public
to
condition of
respect
the defective
employees with
of
provisions dealing
public
the condition
property. Those
with
and
define the duties and liabilities of
entities
property
public employees identically.1
li-
public employee is not
public entity
A
is not liable
A
injury
his
by
by
for
caused
a failure
able
or
negligent
injury
for
to
caused
inspect
her
or
negligent
in-
failure to
inspеct
or
inspection
prop-
except,
spection
a
property;
except,
public em-
may
erty;
a
public entity
be liable
ployee may be liable
protect
“failure
to
against a
dangerous
protect
to
against a
condi-
“failure
dangerous
pro-
provided
chapter
condition as
tion
”
(empha-
chapter
vided
N.J.S.A. 59:3-7
59:2-6
N.J.S.A.
4(cid:127)
4.”
added).
(emphasis
sis
added).
injuries
be held liable
four of the
aAct,
entity
Under chapter
may
dangerous
its
if either:
the
condition of
caused
property
proximately
negligent
(1)
or
dangerous
a
condition
created by
public employee’s
the
wrongful
or
or omission;
act
dangerous
(2)
time
the
condition a sufficient
notice of
the
had
entity
against
dangerous
injury
measures
have taken
protect
before
condition.
dangerous
omit
those
that define
I
provisions
1For ease of analysis,
N.J.S.A. 59:4-3.
notice,
forms of
condition,
59:4-1,
the required
N.J.S.A.
in either
be
However,
ease,
will
when
imposed
entity’s
against
dangerous
or
take
action
failure to
action to
condition is
protect
unreasonable.”
59:4-2.
“palpably
or
entity
possibly
Whаt action
inaction of a
can
be
“palpably unreasonable” other
the activities of its employ-
than
Let us
this
example
ees?
take
case as an
and assume that
friends,
plaintiff,
family
Depart-
either
his
or his
called the
had
ment of Public
to complain
Works
about the condition of the
road. Assume further that the
commissioner
streets had
dispatched
superintendent
inspector
road
streets
However,
at
arriving
look
the condition.
before
at Benson
Street,
stopped
cup
the two
had
for a
of coffee that
delayed their arrival until
had
A
after
accident
occurred.
might
conduct,
faith,
jury
although
find that that
not in bad
negligent
amounted to a
to discharge
failure
their duties.
public entity
Should
be
to defend on the
able
basis that its
“palpably
actions were not
employ-
unreasonable” but leave its
pay
principles
ordinary negligence?
ees
verdict under
may say
One
that
happen,
result will never
but
Act
*24
require
by
does not
of employees
indemnification
local
N.J.S.A.
cost-cutting budget
entities.
59:10-4. A
analyst may
coverage
employees good plaсe
find elimination of
for
cut
to
liability-insurance premiums.
majority
provided
The
has
an
interesting retrospective on
govern-
common-law doctrines of
immunity
mental
from the 1860s to the 1960s.
Ante at
404-
majority’s
however,
425
ty
entity’s liability.
stripping
of the
That
to the extent
of the
public employee
immunity
public entity
of
in order to hold the
dangerous
property
for the
condition of its
is turned
liable
on
interpreted
duty
its head when
to enhance the
of the lowest-
paid employee beyond
employee’s superiors
that of the
or even
city
majority’s interpretation
itself.3 The
has
the
thus created
pyramid”
public liability
an “inverted
neither the
—because
public entity
superior
liability, “any recovery
nor the
shares the
financially
must
the
link in
come from
weakest
the chain.”
James,
29.9,
Harper
supra,
at 662.
§
statutes,
Generally speaking,
interpret
attempt
when we
we
Legislature
to reach the result that we believe
would have
Soc’y
Jersey
Jersey
intended. See Medical
New
v. New
of
18, 26-27,
Dep’t
Safety,
Law and Pub.
120 N.J.
575 A .2d
of
(1990).
statutory
1348
We seek to achieve coherence
law
and,
possible,
separate provisions
whenever
to harmonize the
of
general principles
policies
an act with the more
of the law.
Moorestown,
481-82,
Township
23
129
Denbo v.
N.J.
(1957).
.2d 710
A
scope
public-
jurisdictions thаt have considered the
Other
immunity
the issue of indemnifi-
employee
have also addressed
expanded
scope
public-employee
cation. When California
duty
family
a foster
responsibility to cover the
to warn
about
dangerous
paroled youngster,
character of a
it reasoned:
public employee
possibility
he
need not suffer concern over the
that will be
against
personally;
compelled
him
to finance and oversee a tort suit filed
public employees
3The duties and liabilities of
entities and
under the
respect
provides that a
Act differ with
to recreational facilities. N.J.S.A.59:2-7
dangerous
property
public entity's liability is linked to the
condition of
under
59:3-11,
four; however,
employee’s responsibil
chapter
under N.J.S.A.
facility."
ity
"negligence
supervision of a
recreational
extends to
in the
dichotomy
protect
specific
Presumably,
exists to
from
acts of
negligence
public employee,
lifeguard,
in the event that
of a
such as a
but
supervision.
Burroughs
City
employee negligently
See
undertakes
208, 221-22,
certif.denied,
City,
(App.Div.),
A.2d
Atlantic
725
Note, howevеr,
(1989).
entity might
A.2d
that the
117 N.J.
negligence.
vicariously
employee’s
have been held
liable for the
* * *
notice.
Moreover,
for defense
public entity upon
statute provides
danger
such
a slim
of ultimate personal
liability;
faces only
public employee
arising
injuries
from acts either
in the rare instances of
attaches only
fraud,
or
with actual
corruption,
outside
scope
employment
performed
State,
Cal.Rptr.
*27
v.
447
[Johnson
240, 247,
P.2d
782,
Cal.2d
or malice.
(1968).]
Department
ours,
Stevenson
very similar
In a case
(1980), Oregon
Transportation,
290 Or.
619 P.2d
public entity
and the
Supreme
held that both the
Court
“determining
employees
held
the extent
road
can be
liable
highway]
disrepair in
section
and the
of the actual
each
[of
Oregon
a result.” The
court
kinds of hazards that existed as
Oregon
it found under the
Tort
reached that conclusion because
responsibility
required public
corresponding
that
Claims Act a
against
indemnify
their
all tort
to defend and
bodies
duties,
arising
performance of their
thus eliminat-
claims
out of
by public employees
they
can
ing
ground
“the
for concern
good
for a
faith failure to usе reasonable care.”
be held liable
Id.
We should public employee’s liability regarded is as a function of law, policy sound the Court can and common as a matter of liability of the decide that to reconcile the levels of should now public entity public employee and the makes the best sense qualified immunities the statute and of the common law. majority’s should be the same. Under the afforded to each law, incongru- common two interpretation of the Act and of the (1) public employees, than at the ous results arise: other state level, guaranteed negligent road are not indemnification good failure supervision, but are held liable even for faith (2) State, care; required reasonable which use thereby vicariously held indemnify public employees, its will be though negligent for the maintenance of its roads even liable State, Legislature public entity, to be intended the solely “palpably unreasonable” conditions of its responsible roads. Those two results conflict structure with overall policy of the Tort Claims Act me and cause to dissent. join opinion.
Justices Pollock and Garibaldi in this WILENTZ, For reversal and remandment —Chief Justice CLIFFORD, and Justices HANDLER and STEIN—4. POLLOCK, Opposed O’HERN and GARIBALDI— —Justices 3.
Argued February July 1992 Decided 1992.