Marley v. Borough of Palmyra

• Decision Date: 07 September 1983
• Parties: William MARLEY, Plaintiff/Counter Defendant, v. BOROUGH OF PALMYRA, Defendant/Counter Plaintiff, Third Party Plaintiff, v. SELECTED RISKS INS. CO., Third Party Defendant/Second Party Plaintiff, v. William MARLEY, Second Party Defendant/Third Party Plaintiff on the Counterclaim, v. BOROUGH OF PALMYRA, Grace A. Carr, Helen Coles and John W. Sacca, Jr. individually and in their individual capacities; jointly, severally and in the alternative, Third Party Defendants on the Counterclaim, v. The BANK OF NEW JERSEY, Fourth Party Defendant.
• Court: New Jersey Superior Court

Page 271

193 N.J.Super. 271

473 A.2d 554

William MARLEY, Plaintiff/Counter Defendant, v. BOROUGH OF PALMYRA, Defendant/Counter Plaintiff, Third Party Plaintiff, v. SELECTED RISKS INS. CO., Third Party Defendant/Second Party Plaintiff, v. William MARLEY, Second Party Defendant/Third Party Plaintiff on the Counterclaim, v. BOROUGH OF PALMYRA, Grace A. Carr, Helen Coles and John W.

Sacca, Jr. individually and in their individual capacities;

jointly, severally and in the alternative, Third Party Defendants on the Counterclaim, v. The BANK OF NEW JERSEY, Fourth Party Defendant.

Superior Court of New Jersey, Law Division,

Burlington County.

Decided Sept. 7, 1983.

John F. Pilles, Jr., Mount Holly, for plaintiff/counter defendant (Hartman, Schlesinger, Schlosser & Faxon, Mount Holly, attorneys)

Bernard F. Boglioli, West Long Branch, for third party defendant/second party plaintiff Selected Risk Ins. Co. (Boglioli & Stein, West Long Branch, attorneys).

Richard E. Gehret, Mount Holly, for third party defendant on counterclaim Sacca.

Janet Miller, Mount Holly, for third party defendants on counterclaim Carr and Coles (James Logan, Jr., Mount Holly, attorney).

Morton R. Branzburg, Westmont, for fourth party defendant Bank of New Jersey (Fellheimer, Eichen & Goodman, Westmont, attorneys).

Barry T. Parker, Marlton, for third party defendant on counterclaim Borough of Palmyra (Parker, McCay & Criscuolo, Marlton, attorneys).

HAINES, A.J.S.C.

This opinion considers the application of the New Jersey Tort Claims Act (the act) to claims, counter-claims and cross-claims involving the Borough of Palmyra, four of its employees and its bonding company, Selected Risks. The provisions of the act primarily involved are those which establish immunity for law enforcement actions and for failure to enforce the law.

The Palmyra Borough Council adopted a water conservation program providing for the distribution of water-efficient showerheads to be provided by Conservco, Inc. The borough assumed no financial responsibility for the program; Conservco was to be reimbursed for its expenses by a local developer. Conservco, however, requested Marley, The Borough Administrator, to advance borough monies for the showerheads, promising repayment when the developer honored its reimbursement agreement. Marley, anxious to get the program started, complied with the request. At his direction, Grace Carr, the Borough Clerk, drew a check against borough funds for $22,787.50 payable to Conservco. The Borough Treasurer, Helen Coles, signed the check and affixed the signature of Mayor John Sacca to it by using a stamp which he kept in a safe accessible to the other officials. Conservco cashed the check, never provided the showerheads and decamped with the borough's money.

The procedure employed in the issuance of the check violated requirements of the borough's ordinances and N.J.S.A. 40:94-3 After these facts became known, the borough council discharged Marley. He was entitled to three months' severance pay, pursuant to N.J.S.A. 40A:9-138, which the borough refused to pay and for which this suit was instituted. The borough counterclaimed for the monies Marley paid Conservco and filed a third-party complaint against Selected Risks to recover the same monies, claiming that a bond issued by that carrier naming Marley as principal, covered its loss. The bonding company then sued Marley on tort and contract theories; it also claimed indemnification from Sacca, Coles and Carr. ¹ Marley, in turn, sued the borough, Carr, Coles and Sacca, seeking contributions from them as joint tortfeasors. In response to earlier motions, the borough has paid Marley's claim for severance pay and the bonding company has paid the borough $22,787.50 for the Conservco loss. The issues discussed below are raised by motions for summary judgment.

a circumstance known to Marley, Cole and Carr. These laws required all bills to be approved by the borough council and signed by the mayor. Checks in payment were to be signed by the borough clerk, treasurer and mayor. The check to Conservco was issued without the approval of the borough council; the voucher which it covered had not been signed by the mayor.

THE APPLICATION OF THE TORT CLAIMS ACT TO THE PUBLIC EMPLOYEES

N.J.S.A. 59:3-3 provides, in part:

A public employee is not liable if he acts in good faith in the execution or enforcement of any law.

N.J.S.A. 59:3-5 provides:

A public employee is not liable for an injury caused by his adoption of or failure to adopt any law or by his failure to enforce any law.

Marley, Carr, Coles and Sacca claim that these statutory provisions provide them with immunity from claims involving the N.J.S.A. 59:3-3 provides immunity in connection with the "good faith" enforcement of a law. N.J.S.A. 59:3-5 provides immunity for the failure to enforce any law, omitting any "good faith" requirement and thereby making an obvious distinction between the two immunity provisions. A public employee who is enforcing a law (an act of commission) must prove good faith in order to enjoy immunity, while one who fails to enforce a law (an omission) need not. The difference is emphasized by N.J.S.A. 59:2-4 which provides the municipality itself with immunity for failure to enforce a law and makes no "good faith" requirement, thus paralleling N.J.S.A. 59:3-5, the public employee section. The municipality is not provided with immunity as to the enforcement of a law but is so provided, under N.J.S.A. 59:2-2, for "an act or omission of a public employee where the public employee is not liable." Consequently, the availability of public employee immunity may determine the liability of the municipality itself. The necessity for establishing At first blush, the suggestion that the immunity provisions must be distinguished seems too obvious to require argument. The Legislature enacted them in separate sections, using different language. Consequently, they are distinct. They establish a commission-omission dichotomy. This simplistic response, examined historically, logically and intellectually, however, is unsatisfactory.

Conservco transactions since these claims arise from law enforcement activities. The defenses raise difficult questions of interpretation. These immunity sections of the act seem to reestablish disappearing concepts of liability for municipalities and their employees based upon active-passive wrongdoing distinctions, under which municipalities acting in a governmental capacity, and perhaps municipal employees, were liable for a tort only when "active wrongdoing" occurred, not in cases involving an omission, a failure to act. Several cases have held municipalities immune from liability under the act's provisions dealing with failure to enforce a law; none has addressed the statutory distinctions considered here. See Brothers v. Highlands, 178 N.J.Super. 146, 151, 428 A.2d 528 (App.Div.1981); Diodato v. Camden Co. Park Comm., 162 N.J.Super. 275, 392 A.2d 665 (Law Div.1978); Cogsville v. Trenton, 159 N.J.Super. 71, 386 A.2d 1362 (Law Div.1978); Danow v. Penn Central Transp. Co., 153 N.J.Super. 597, 380 A.2d 1137 (Law Div.1977); Cadmus v. Long Branch Bd. of Ed., 155 N.J.Super. 42, 382 A.2d 98 (Law Div.1977); National Spring Co. v. Pierpont Ave. Assoc., 146 N.J.Super. 63, 368 A.2d 973 (Law Div.1976) a workable interpretation of the two immunity provisions is clear.

The clear trend of judicial thought in New Jersey has been toward the elimination of the governmental-proprietary or passive-active wrongdoing approach to tort liability claims against public entities. That approach, discussed, e.g., in Cloyes v. Delaware Twp., 23 N.J. 324, 129 A.2d 1 (1957), required proof of active wrongdoing before a public entity, acting in a governmental capacity and not a proprietary one, could be liable for a tort. In B.W. King v. West New York, 49 N.J. 318, 324, 230 A.2d 133 (1967), our Supreme Court called for a new approach. It held that a municipality owning real property "has the same duties and liabilities in connection with the prevention of the spread of fire" as private owners. It rejected the passive-active wrongdoing test, restricting the rejection, however, to the circumstances of the case. It suggested the adoption of a substitutionary rule, saying:

The problem should be approached by the court on a gradual case by case basis, permitting a new theory to metamorphize slowly. A firm rule can evolve with additional experience. The analytical approach ought not to be one of asking why immunity should not apply in a given situation but rather one of asking whether there is any reason why it should apply. [at 325, 230 A.2d 133]

K.S.B. v. No. Jersey Dist. Water Supply, 75 N.J. 272, 288, 381 A.2d 774 (1977), rejected the governmental-proprietary distinction in a matter dealing with water distribution. The Court noted that the distinction had been eliminated in tort cases. In Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968), a municipality which had knowledge of a broken traffic light was held to possible liability for failure to act in an emergent situation. Active wrongdoing was The active wrongdoing test seems to have been the rule for municipal employees acting within the scope of their employment, as well as for municipalities, although this is not entirely clear. Thus, in Milstrey v. Hackensack, 6 N.J. 400, 79 A.2d 37 (1951), the court held a municipal engineer liable in a tort action, saying:

not discussed. In Jackson v. Hankinson, 51 N.J. 230, 231, 238 A.2d 685 (1968), the Court refused to apply the active wrongdoing test in circumstances involving a school child--school bus injury. Tower Marine v. New Brunswick, 175 N.J.Super. 526, 420 A.2d 1029 (Ch.Div.1980) sounded a final note, holding that the governmental-proprietary or active-passive wrongdoing distinction had been extinguished by the Tort Claims Act. Tower Marine was correct, generally, but not, as this opinion shows, in the context...