Cadmus v. Long Branch Bd. of Ed.

• Decision Date: 21 December 1977
• Citation: 382 A.2d 98,155 N.J.Super. 42
• Parties: Robert D. CADMUS, Plaintiff, v. LONG BRANCH BOARD OF EDUCATION and Industrial Associates, a Partnership, Defendants.
• Court: New Jersey Superior Court

Page 42

155 N.J.Super. 42

382 A.2d 98

Robert D. CADMUS, Plaintiff, v. LONG BRANCH BOARD OF EDUCATION and Industrial Associates, a Partnership, Defendants.

Superior Court of New Jersey, Law Division.

Dec. 21, 1977.

Richard D. Schibell, Asbury Park, for plaintiff (Shebell & Schibell, Asbury Park, attorneys).

Albert C. Lisbona, Montclair, for defendant Long Branch Bd. of Ed. (Dwyer, Connell & Lisbona, Montclair, attorneys).

AIKINS, J. S. C.

This motion for summary judgment by defendant Long Branch Board of Education (board) stems from an action against it and codefendant Industrial Associates (Industrial) for personal injuries sustained by plaintiff while he was a Long Branch Senior High School student and a participant in that school's Cooperative Industrial Education Program.

On December 10, 1974 plaintiff, then a 17-year-old senior, was engaged in the program under the sponsorship of codefendant Industrial and was employed in the repair of the roof of a building owned by it when he lost his balance and fell to the ground some 35 feet below, sustaining substantial injuries and resultant medical expenses.

The abovementioned program is defined in N.J.A.C. 6:42-2.1 as "a cooperative work-study program of vocational education for persons who, through a cooperative arrangement between the school and employers, receive instruction, including required academic course and related vocational instruction, by the alternation of study in school with a job in any occupational field * * *."

Plaintiff alleges a breach of duty by defendant board in that it failed to adhere to standards of safety for construction and maintenance work established by the Federal Occupational Safety and Health Administration and adopted by the New Jersey State Board of Education for its vocational cooperative programs.

Defendant board asserts its immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., contending that it is immunized from liability for failure to supervise the vocational activities conducted on the private property of codefendant Industrial.

As was held in English v. Newark Housing Auth., 138 N.J.Super. 425, 428, 351 A.2d 368 (App.Div.1976), the terminology of the Tort Claims Act makes it obvious that the goal of the Legislature was to reestablish immunity for all governmental subdivisions within its definition of "public entity," a description clearly encompassing defendant board. See N.J.S.A. 59:1-3. Burg v. State, 147 N.J.Super. 316, 320, 371 A.2d 308, 310 (App.Div.1977), characterized the scope of immunity as that which was "all inclusive within that definition except as otherwise provided by the Act." N.J.S.A. 59:2-1.

Plaintiff here seeks to found defendant board's liability upon certain language in New Jersey and federal administrative regulations. Specifically, he refers to N.J.A.C. 6:42-2.2, which provides that "Each program (i. e., vocational cooperative program) will provide on-the-job training that * * * employs student-learners in conformity with Federal, State and local laws and regulations * * *," and also N.J.A.C. 6:43-2.3(b)(3), which contains the requirement that "Student assignments shall assure * * * (iv) Compliance with safety standards; (v) On-the-job supervision; and (vi) Compliance with appropriate State and Federal Laws and regulations."

Plaintiff next points to defendant board's alleged failure to adhere to the federal regulations issued by the Occupational Safety and Health Administration, namely, "Safety and Health Regulations for Construction," § 1926.105, calling for the utilization of safety nets for work places more than 25 feet above the ground. Thus plaintiff submits that defendant board was negligent in failing to implement the above terms of the federal safety regulations and in not providing adequate supervision and control of both the activities of defendant Industrial and the job site at which plaintiff worked.

Plaintiff, however, is barred from recovery against defendant board for the asserted failure to enforce the aforementioned state and federal regulations and failure to inspect the private property of defendant Industrial by two provisions of the Tort Claims Act, i. e., N.J.S.A. 59:2-4 and 59:2-6, which are as follows:

N.J.S.A. 59:2-4. Adoption or failure to adopt or enforce a law.

A public entity is not liable for an injury caused by adopting or failing to adopt a law or by failing to enforce any law. ¹

N.J.S.A. 59:2-6. Failure to inspect, or negligent inspection of, property.

A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property; provided, however, that nothing in this section shall * * * exonerate a public entity from liability for failure to protect against a dangerous condition as provided in chapter 4. ²

Plaintiff nonetheless argues that notwithstanding any specific enactments, defendant board is liable for its negligent omissions because the state and federal safety regulations create duties of a low-level discretionary or ministerial nature, citing McGowan v. Eatontown, 151 N.J.Super. 440, 376 A.2d 1327 (App.Div.1977), and Wuethrich v. Delia, 134 N.J.Super. 400, 341 A.2d 365 (Law Div.1975).

McGowan involved a traffic accident apparently caused by the accumulation of ice on a portion of a state highway. The facts considered on that summary judgment application reveal that the State on numerous prior occasions had been alerted to the development of this emergent dangerous condition in the winter months.

In Wuethrich the municipal police were informed several times during an afternoon and evening that an armed individual was menacing certain persons within a short distance of police headquarters. The police made no attempt whatsoever to investigate, and less than 12 hours later in that same area defendant Delia wantonly shot plaintiff's decedent.

McGowan and Wuethrich are the progeny of Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968), wherein our Supreme Court held (before enactment of the Tort Claims Act) that in a situation in which a township had actual notice of the breaking loose of a traffic light, thereby causing the dangerous misdirection of a traffic signal, and failed to take prompt remedial action (a collision thereafter occurring), the entity would be liable if the emergent condition holds an unusual risk of injury and if the omission to act were predicated upon a palpably unreasonable judgment in the allocation of its resources and personnel.

Therefore, McGowan and Wuethrich are inapposite on two grounds. Firstly, both cases stand for the proposition that the Tort Claims Act does not permit liability to be imposed upon a public entity for the negligent execution of its duties in the absence of tangible facts demonstrating the requisite actual or constructive awareness of the danger on the part...