Phillips v. State, Dept. of Defense

Decision Date21 January 1985
Citation486 A.2d 318,98 N.J. 235
PartiesWalter PHILLIPS, Plaintiff-Appellant, v. STATE of New Jersey, DEPARTMENT OF DEFENSE, New Jersey State Militia, Mark Curiale and Charles Watson, Defendants-Respondents. and FMC Corporation, Defendant-Appellant.
CourtNew Jersey Supreme Court

Joseph Albanese, Hawthorne, Me., a member of the Maine bar, for plaintiff-appellant Walter Phillips (Samuel A. Weiner, Clifton, attorney).

David R. Kott, Newark, for defendant-appellant FMC Corp. (McCarter & English, attorneys; Eugene M. Haring, Newark, of counsel).

Jonathan L. Williams, Deputy Atty. Gen., for defendants-respondents (Irwin I. Kimmelman, Atty. Gen., attorney; Michael R. Cole, First Asst. Atty. Gen., Theodore A. Winard, Asst. Atty. Gen., and Deborah T. Poritz, Deputy Atty. Gen., of counsel; Jonathan L. Williams, Madeleine W. Mansier and William Harla, Deputy Attys. Gen., on the briefs).

The opinion of the Court was delivered by


Plaintiff, Walter Phillips, a member of the New Jersey State Militia, filed a complaint in the Superior Court seeking damages for personal injuries he allegedly suffered during a military training maneuver at Fort Drum, New York. Plaintiff charged that on or about August 17, 1978, Private Charles Watson, the driver of an armored personnel carrier, and Lieutenant Mark Curiale, the officer in charge, caused the carrier to be operated "in such a negligent, careless, reckless, dangerous, hazardous and perilous manner that the plaintiff was so thrown and propelled about within" the carrier that he fractured a cervical spine vertebra and became a quadriplegic. Plaintiff also asserted that FMC Corporation had negligently manufactured and designed the carrier without precautionary or safety devices, resulting in plaintiff's injuries. The defendants named were the State of New Jersey-Department of Defense-New Jersey State Militia (Department of Defense), Watson, Curiale, and FMC Corporation.

Plaintiff attached to and incorporated in his complaint a sworn statement made on October 26, 1978 on a form of the Office of the Deputy Chief of Staff for Personnel of the Department of Defense. The statement set forth a more detailed explanation of the accident. In it plaintiff claimed that he was a passenger in the carrier, that defendant Curiale told defendant Watson to drive faster, that the carrier began hitting large ditches, that plaintiff slid off the seat a number of times striking his back on the seat, and that, when the carrier struck another large ditch, "everyone fell on [him]." Plaintiff further stated that while his back bothered him initially, the pain subsided the same day, but that on August 20, 1978, when plaintiff was visiting his brother, his "legs gave out and [he] blacked out." When he awoke, he was unable to move. Plaintiff is now a quadriplegic.

The Attorney General filed answers on behalf of Watson, Curiale, and the Department of Defense. See N.J.S.A. 59:10A-1 to -6. Other than admitting (1) the military status of plaintiff, defendant Watson, and defendant Curiale, (2) the fact that the operator of the carrier was Watson, and (3) receipt of the sworn affidavit attached to the complaint, these three defendants filed general denials, set up ten separate defenses, and filed a cross-claim for contribution against codefendant FMC Corporation. Defendant FMC Corporation similarly filed a general denial, propounded five separate defenses, and asserted a cross-claim for contribution against its codefendants. The trial court granted a motion for summary judgment by defendants Watson, Curiale, and the Department of Defense. The court concluded in a letter opinion that the military compensation law, N.J.S.A. 38A:13-1 to -9, incorporated by reference the scheme of the Workers' Compensation Act, N.J.S.A. 34:15-7 to -35.22. It reasoned that since an employee's exclusive remedy under that Act was workers' compensation, plaintiff's exclusive remedy against the Department of Defense was under the military compensation law. The court likewise held that no action could lie against a fellow member of the militia because the Workers' Compensation Act prevented an injured employee from recovering damages from a fellow employee for injuries received arising out of and in the course of employment. Utilizing the rationale that third-party tortfeasors are barred from seeking contribution from an employer who has paid workers' compensation, the trial court dismissed the FMC cross-claim.

Upon plaintiff's appeal and defendant FMC's cross-appeal, the Appellate Division affirmed, substantially for the reasons stated by the trial court. We granted plaintiff's and defendant FMC's joint petition for certification. 96 N.J. 279, 475 A.2d 578 (1984).

We note at the outset that defendants Watson, Curiale, and the Department of Defense relied solely on their brief and oral argument before the trial court in support of their motion for summary judgment. No testimony or affidavits were produced. Accordingly, it would appear that the motion was effectively a motion for judgment on the pleadings. Therefore the court must accept as true all the allegations of the complaint.


It is clear that at common law the State was immune from liability for personal injuries suffered by an individual as a result of the State's action or inaction. Cf. Russell v. Men of Devon, 100 Eng.Rep. 359 (K.B.1788) (civil action for property damage cannot be maintained against inhabitants of county); Pound, "The Tort Claims Act: Reason or History? " 30 Nat'l A. Claimants' Compensation Att'ys 404, 406 (1964). The doctrine of sovereign immunity became embedded in our jurisprudence. See, e.g., Strobel Steel Constr. Co. v. State Highway Comm'n, 120 N.J.L. 298, 301, 198 A. 774 (E. & A. 1938); Lodor v. Baker, Arnold & Co., 39 N.J.L. 49, 50 (Sup.Ct.1876). The courts occasionally whittled away at sovereign immunity. See, e.g., Cloyes v. Delaware Township, 23 N.J. 324, 327, 129 A.2d 1 (1957). From time to time the State waived its immunity by providing that particular State agencies might sue or be sued. See Taylor v. New Jersey Highway Auth., 22 N.J. 454, 467, 126 A.2d 313 (1956); The Report of the Attorney General's Task Force on Sovereign Immunity 31 (1972).

The first movement in that direction with respect to soldiers was the enactment of L.1937, c. 49, Art. XV, §§ 1-11, the military compensation law. Presently codified at N.J.S.A. 38A:13-1 to -9, the statute provides a remedy against the State for soldiers in the New Jersey National Guard who suffer an injury, disease, or disability in the line of duty. N.J.S.A. 38A:13-1. Prior to that enactment, a National Guard soldier injured in the line of duty had no recourse against the State for temporary or permanent disabilities.

The Legislature undoubtedly knew that the military compensation law, when passed in 1937, was a militiaman's sole and exclusive remedy against the State. The Legislature next acted when it adopted the Tort Claims Act in 1972. N.J.S.A. 59:1-6 of the Tort Claims Act stated that nothing in that Act "shall be construed to affect, alter or repeal any provision of the military and veterans law of this State, except as specifically provided in repealer section 59:12-2 * * *." Section 59:12-2 did not refer to N.J.S.A. 38A:13-1 to -9. Accordingly, the law concerning the State's liability for injuries received in the line of duty remained unimpaired. We therefore hold that the sole and exclusive remedy against the State for an injury, disease, or disability incurred by a national guardsman in the line of duty is the remedy afforded in N.J.S.A. 38A:13-1.

Some mention must be made of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), upon which defendants rely. Feres involved three separate causes of action against the United States under the Federal Tort Claims Act for injuries suffered by members of the regular armed forces. The Supreme Court held that the Federal Tort Claims Act did not create "a new cause of action dependent on local law for service-connected injuries or death due to negligence." Id. at 146, 71 S.Ct. at 159, 95 L.Ed. at 161. The statutory interplay between the New Jersey military compensation law and the New Jersey Tort Claims Act was not present in Feres. While we conclude that the waiver of sovereign immunity contained in the New Jersey Tort Claims Act does not extend an additional remedy to national guardsmen injured in the line of duty, we do not rely on the Feres rationale. 1

One result intended by the New Jersey Tort Claims Act was to permit third parties to sue the State for the tortious conduct of a militiaman acting within the scope of his employment. See N.J.S.A. 59:2-2. Where a military employee might be properly held liable for injury to a third party, so might the State. To achieve this result, the Legislature, as part of the New Jersey Tort Claims Act, repealed that section of the military law, N.J.S.A. 38A:4-9, that provided that members of the organized militia ordered into active State service were not civilly or criminally liable for acts done in performance of their duty. N.J.S.A. 59:12-2. National guardsmen were placed in the same posture vis-a-vis third parties as other public employees. If a member of the militia not in the line of duty is injured by a member of the militia acting in the line of duty, the State may well be responsible. See Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). But the retention of the military compensation law by the Tort Claims Act, N.J.S.A. 59:1-6, indicates that the Legislature did not intend to open the State to civil liability to servicemen whose remedy against the State had already been provided for by the military compensation law. 2 Indeed, the Legislature explicitly provided in the New Jersey Tort Claims Act that the State was not to be held liable for injury "[e]xcept as otherwise provided" by the Act...

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12 cases
  • Phillips v. Curiale
    • United States
    • New Jersey Supreme Court
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    ... ...         O'HERN, J ...         In Phillips v. State, 98 N.J. 235, 486 A.2d 318 (1985) (Phillips I), we held that a member of the New Jersey National ... words of the United States Supreme Court, "[h]aving now lost the battle [for the tort defense] in the * * * Legislature, petitioners wish[ ] to continue the war in court. Losing a political ... ...
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