Burg v. State

• Decision Date: 24 February 1977
• Citation: 371 A.2d 308,147 N.J.Super. 316
• Parties: Elizabeth BURG and Neal Burg, her husband, Plaintiffs-Appellants, v. STATE of New Jersey, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 316

147 N.J.Super. 316

371 A.2d 308

Elizabeth BURG and Neal Burg, her husband, Plaintiffs-Appellants, v. STATE of New Jersey, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 4, 1977.

Decided Feb. 24, 1977.

Carl D. Poplar, Haddonfield, for plaintiffs-appellants.

William F. Hyland, Atty. Gen., for defendants-respondents (Erminie L. Conley, Deputy Atty. Gen., of counsel; Thomas D. Monte, Jr., Deputy Atty. Gen., on the brief).

Before Judges MATTHEWS, SEIDMAN and HORN.

The opinion of the court was delivered by

SEIDMAN, J.A.D.

On November 16, 1973, while walking home from the Port Authority station in Westmont, plaintiff was assaulted and struck on the head with a blunt instrument wielded by William Boland, a convicted felon serving a life term at Leesburg State Prison for a murder committed in 1961. He was apprehended and subsequently entered pleas of guilty to indictments charging him not only with this offense but also with assaults upon and robberies of other persons during the same month.

It is not disputed that at the time of these incidents Boland was on vocational, noncustodial release pursuant to N.J.S.A. 30:4--91.3 and the implementing rules and regulations promulgated by the Commissioner of the Department of Institutions and Agencies (N.J.A.C. 10:35--52.1 Et seq.) Under this program he was permitted to attend classes daily at Glassboro State College without supervision and to use an automobile for transportation between the prison and the college.

After complying with the notice of claim provision of the Tort Claims Act, N.J.S.A. 59:8--1 Et seq., Mrs. Burg and her husband filed this lawsuit for compensatory and punitive damages upon the expiration of the statutory six-month waiting period (N.J.S.A. 59:8--8). Named as defendants were the State of New Jersey, the Commissioner of the Department of Institutions and Agencies, the then Superintendent of the State Prison at Leesburg, and 'John Doe' as agent of the State of New Jersey. Plaintiffs charged them with negligence in (1) permitting Boland to be at liberty without supervision and control and in alleged violation of applicable rules and regulations and standards of penology; (2) failing adequately to examine Boland's mental, psychiatric, psychological and emotional stability; (3) failing properly to safeguard members of the public, and (4) acting in willful and wanton disregard of the rights of plaintiff.

Defendants moved for an order dismissing the complaint for failure to state a claim upon which relief could be granted. Plaintiffs filed a cross-motion for discovery or, alternatively, for the taking of depositions. The trial judge who originally heard the motions died before announcing his decision. The matter was later reargued before another judge who, in a letter opinion, after noting that the issue involved was one of first impression in this State, held that plaintiffs had no cause of action under the Tort Claims Act. Relying largely on California decisions, he reached the conclusion that all acts of public entities or public employees within the ambit of release procedures, whether of a discretionary or a ministerial nature, were immunized from tort liability. This appeal is from the judgment dismissing the complaint.

It is thoroughly settled that on a motion challenging the legal sufficiency of a complaint, R. 4:6--2(e), 'the plaintiff is entitled to a liberal interpretation of its contents and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn from them.' Rappaport v. Nichols, 31 N.J. 188, 193, 156 A.2d 1, 3 (1959); see also Bonnett v. State, 126 N.J.Super. 239, 242, 313 A.2d 808 (App.Div.1974). Thus, the issue raised on this appeal is, essentially, whether on the facts alleged, accepting them as true, a cause of action arose against these defendants cognizable under the Tort Claims Act.

Plaintiffs suggest that the statute was designed to create liability rather than immunity. They are mistaken. We said in English v. Newark Housing Auth., 138 N.J.Super. 425, 428, 351 A.2d 368 (App.Div.1976), that the language of the legislation made it clear that the basic legislative premise was to re-establish immunity for all governmental bodies within its definition of 'Public entity.' Immunity, we emphasized, was all-inclusive within that definition except as otherwise provided by the act. See N.J.S.A. 59:2--1. In the comment appended to this section of the statute, taken from the Report of the Attorney General's Task Force on Sovereign Immunity (May 1972), the observation appears that the Supreme Court had developed the analytical approach that courts 'ought not to be * * * asking why immunity should not apply in a given situation but rather * * * asking whether there is any reason why it should apply.' B. W. King, Inc. v. West New York, 49 N.J. 318, 325, 230 A.2d 133, 137 (1967). Under the Tort Claims Act, according to the comment, 'the approach should be Whether an immunity applies and if not, should liability attach.' The hope is expressed 'that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities.'

It is within the framework of this expressed legislative design that we must test the sufficiency of the complaint in this case.

Boland was released under N.J.S.A. 30:4--91.3, captioned, 'Extension of limits of place of confinement,' which, to the extent pertinent here, provides as follows:

The commissioner (of the Department of Institutions and Agencies) or his duly authorized agent or agents may extend the limits of the place of confinement of a prisoner as to whom there is reasonable cause to believe he will honor his trust, by authorizing him, under prescribed conditions, to

(b) * * * participate in a training or educational program in the community on a voluntary basis while continuing as a prisoner of the institution or facility to which he is committed.

This extension of the 'limits of the place of confinement of a prisoner' is designated in the implementing regulations as 'work release.' See N.J.A.C. 10:35--52.1 Et seq. N.J.A.C. 10:35--52.6 provides for the screening of all referrals, recommendations and requests for inmates to go on work release by the classification committee of the institution, which makes a determination whether to approve or disapprove an inmate in accordance with the eligibility standards set forth in N.J.A.C. 10:35--52.2. The latter section specifies, among other things, that where the commitment offense was the first serious offense against the person involving the use or carrying of a weapon, the offender is eligible for the program 'when in the judgment of the classification committee there is no likelihood of reoccurrence.' It excludes from the program inmates with serious emotional or personality defects with histories of violent or assaultive behavior, or of sexual assault, but provision is made for the consideration of work release, under limited circumstances, for emotionally or mentally handicapped inmates who are not dangerous to others, 'when it appears that community employment can aid their post release adjustment.'

Plaintiffs argue that the allegations of the complaint permit inferences of 'derelictions of duty and violations of law' on the part of state employees in permitting Boland 'to roam in the community without supervision 15 hours each and every day,' and that any claim of immunity on the facts of this case would be unfair and unjust. They charge that Boland 'had a well defined and obvious history of emotional, psychological and psychiatric problems,' and that the murder conviction 'clearly is a history of violent behavior.' While conceding that the State would not be liable for certain acts of discretion, they maintain that the basis for their lawsuit is 'the wrongful conduct on the part of the State in disregarding, negligently and intentionally, the responsibilities mandated by statutes and Rules and Regulations promulgated thereunder.' They assert that there was no discretion to release Boland and that 'he should not have been permitted to roam unsupervised in the community as the clear and dangerous threat that he was.' In essence, plaintiffs seek to charge defendants with that which necessarily must be characterized either as an improper exercise of discretion by prison personnel, or as negligent ministerial acts on their part. They argue, in effect, that the...