C.J. v. Vuinovich

Citation252 N.J.Super. 122,599 A.2d 548
Parties, 2 A.D. Cases 1175 C.J., Plaintiff-Appellant, v. Robert G. VUINOVICH, State of New Jersey, Department of Defense, New Jersey Militia--Army National Guard, Defendants-Respondents.
Decision Date22 November 1991
CourtNew Jersey Superior Court – Appellate Division

Louis Raveson, Newark, for plaintiff-appellant.

Robert J. Del Tufo, Atty. Gen., for defendants-respondents (Michael R. Clancy, Asst. Atty. Gen., of counsel; Glenn R. Jones, Deputy Atty. Gen., on the brief).

Before Judges PRESSLER, SHEBELL and D'ANNUNZIO.

The opinion of the court was delivered by

SHEBELL, J.A.D.

This is an appeal from the grant of summary judgment dismissing an action brought by plaintiff, C.J., a former member of the New Jersey National Guard, against the New Jersey Department of Defense, New Jersey Militia, Army National Guard, and Sergeant Robert G. Vuinovich. We affirm.

Plaintiff alleged that in 1977 he became a member of the New Jersey National Guard (Guard), and that he re-enlisted several times, ultimately extending his service through November of 1990. In 1987 or 1988, plaintiff was ordered by the Guard to undergo a blood test for antibodies to HIV as part of a mandatory testing program.

On March 25, 1988, plaintiff reported for duty at the Teaneck Armory with Company C, 104th Engineer Battalion, and was transported to West Point, New York, for weekend exercises. Late that evening, at West Point, defendant, Sergeant Vuinovich, called roll during Company formation, but did not call plaintiff's name. When plaintiff inquired why his name had not been called, the sergeant allegedly responded in front of the assembled company members "you have AIDS and you are discharged." The mandatory testing had revealed that plaintiff's blood was positive for HIV antibodies. He, however, maintained he was not ill and was able to perform all of his Guard duties. Plaintiff alleged he had received no prior notice of his discharge, although the Guard contends that it forwarded a letter notifying him that he would be transferred to reserve status effective March 8, 1988.

Plaintiff alleged that as a result of Vuinovich's statement, plaintiff spent the night in a tent isolated and shunned, until transported back to New York City the next day. He alleges he has since been excluded from all Guard activities, avoided by friends, and that because of Vuinovich's statement he believed that he had AIDS and was in imminent danger of death. He maintained that after his return home he continued in fear of imminent death and attempted suicide. Subsequently, plaintiff sought and received advice in a public clinic regarding his health and his HIV antibody status.

Although he cannot satisfy the $1,000 medical expense threshold requirement, plaintiff seeks recovery under the New Jersey Tort Claims Act (NJTCA) for damages for emotional distress only. N.J.S.A. 59:9-2; see Ayers v. Jackson Tp., 106 N.J. 557, 577, 525 A.2d 287 (1987). Plaintiff urges that under the provisions of N.J.S.A. 59:3-14 the willful nature of Vuinovich's conduct and the fact that his statements were outside the scope of his official duties require that his damages claim not barred by the NJTCA. 1

N.J.S.A. 59:3-14 provides:

a. Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.

b. Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.

To support his position, plaintiff relies upon Palmentieri v. Atlantic City, 231 N.J.Super. 422, 555 A.2d 752 (Law Div.1988). In Palmentieri, an Atlantic City councilman helped organize a "Black Unity" rally, which was sponsored by a private group of citizens. "Approximately 10 to 15 minutes after the rally, [the councilman] was interviewed by ... a reporter[,]" and criticized an Afro-American casino executive stating "we feel [he] is as racist as the most bigoted white man walking on the face of the earth." Id. at 427. The court held that these comments were not performed within the scope of the councilman's public duties, stating:

This statement, however, was a purely personal vilification of a private individual. A public official is generally liable for defamatory statements unless made in discharging his official duties. McQuillan, Municipal Corporations (3 ed.), § 12.211d. Dorn's words may have been sought out by the Press only because he was a city councilman, but it stretches the imagination to believe that his statement about [the casino executive] in any way expressed a policy or rationale, fulfilled or discharged a duty, or furthered an interest of the City of Atlantic City. [Id. at 438-39, 555 A.2d 752].

Accordingly, the Law Division judge concluded that the city was not permitted to indemnify or defend the councilman in the defamation action. Id. at 442, 555 A.2d 752.

In this case, plaintiff argues that the way in which Sergeant Vuinovich informed him that he had been discharged because of his HIV status demonstrates it was a malicious act, clearly outside the scope of his employment. However, based upon our careful review of the facts, we conclude that the sergeant was acting within the scope of his employment when he informed the plaintiff of his military status. Sergeant Vuinovich did not himself discharge plaintiff; rather, an official Guard order, dated March 1, 1988, listed plaintiff's name as a member of the Guard who had been "discharged from the Army National Guard and assigned to component indicated on day following effective date." When plaintiff asked the sergeant why plaintiff's name had not been called at roll call during a Company formation at West Point, the sergeant, while in uniform and acting in his official capacity, responded to the inquiry.

The sergeant's statements may have been unwise; however, it is clear that he was answering a question of a subordinate military person while engaged in his duties as a Guard officer. The public official in Palmentieri made defamatory statements to the press while he was engaged in a rally sponsored by a private organization. The councilman also made statements to further the interests of a private organization, whereas Sergeant Vuinovich was on duty and furthering Guard business when he answered plaintiff's direct inquiry.

Plaintiff mistakenly relies upon Marion v. Borough of Manasquan, 231 N.J.Super. 320, 329, 555 A.2d 699 (App.Div.1989) for the proposition that damages may be awarded to plaintiff under the NJTCA. In Marion, plaintiffs brought an action against the municipality and individual officers for unlawfully arresting and detaining them. Id. at 324, 555 A.2d 699. There, we concluded that the individual officers could be held liable for unlawful detention even though a claim against the borough would fail. Id. at 331, 555 A.2d 699. However, this result was compelled by the provisions of N.J.S.A. 59:3-3, which specifically denies immunity to public employees for false arrest or false imprisonment.

Plaintiff argues that Sergeant Vuinovich's willful public disclosure of plaintiff's HIV status is an actionable cause of action for: (1) defamation, (2) public disclosure of private facts, or (3) intentional or negligent infliction of emotional distress. Relying on Doe v. Borough of Barrington, 729 F.Supp. 376 (D.N.J.1990), plaintiff argues that HIV-related information must be held in confidence as part of a citizen's right to privacy absent a compelling governmental interest. 2 Further, plaintiff quotes Woods v. White, 689 F.Supp. 874, 877 (W.D.Wis.1988), aff'd, 899 F.2d 17 (7th Cir.1990), for the proposition that "it would have been clear to a competent public official in 1986 that individuals had a constitutional right to privacy in information relating to AIDS." Id. Plaintiff argues that Sergeant Vuinovich acknowledged that HIV-related information was supposed to be held in confidence and, therefore, asserts that Vuinovich's statement could "only be interpreted as a wanton and malicious comment."

In Jorden v. National Guard Bur., 799 F.2d 99 (3d Cir.1986), cert. denied, Sajer v. Jorden, 484 U.S. 815, 108 S.Ct. 66, 98 L.Ed.2d 30 (1987), the court examined whether National Guard officers enjoyed immunity from liability for civil damages. Id. at 100-01. The plaintiff had "brought a civil rights suit ... alleging that his various supervisors had engaged in a conspiracy to harass him and to discharge him on the basis of race.... Specifically, he asserted claims for damages under 42 U.S.C. § 1983, § 1985 and § 1986 against ... both his military officers and his civilian supervisors, [including] a pendent state common law claim of defamation...." Id. at 102. The Jorden court held as follows:

The clear implication of Chappell [Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) ] is that while some non-damage constitutional claims involving the military remain viable, damage claims do not. The Stanley [Stanley v. United States, 574 F.Supp. 474 (S.D.Fla.1983), aff'd, 786 F.2d 1490 (11th Cir.1986) ] court's approach would frequently require courts to make difficult and hair-splitting distinctions as to whether a particular claim was the sort that, if legally actionable, would threaten military discipline. This approach seems questionable as a matter of policy. In any event, we simply do not read Chappell as sanctioning this kind of case-by-case approach.

We thus believe that the Supreme Court was laying down a general rule barring damages actions by military personnel against superior officers for constitutional violations, rather than authorizing a fact-specific inquiry. [Id. at 107-08 (emphasis...

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    ... ... v. Vuinovich, 252 N.J.Super. 122, 599 A.2d 548, 553 (Ct.App.Div.1991) (same idea). Accordingly, because the first prong of the majority opinion is unnecessary ... ...
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    ... ... Def. Memo, at 26. In support of its argument, defendant offers C.J. v. Vuinovich, 252 N.J.Super. 122, 133, 599 A.2d 548 (1991), where the New Jersey Superior Court held that a NJLAD handicap discrimination claim by a discharged ... ...
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    ... ... State Personnel Commn., 178 Wis.2d 776, 794, 505 N.W.2d 793, 800; see also, C.J. v. Vuinovich, 252 N.J.Super. 122, 132-134, 599 A.2d 548, 553-554). In Hazelton v. State Personnel Commn., supra, the Court of Appeals of Wisconsin noted that ... ...
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    ... ... 9 Cf. C.J. v. Vuinovich, 252 N.J.Super. 122, 599 A.2d 548, 553-54 (N.J.Super.Ct.App.Div.1991) (noting that state judicial intervention in a discharge and transfer from ... ...
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