Wuethrich v. Delia

• Decision Date: 27 May 1975
• Citation: 341 A.2d 365,134 N.J.Super. 400
• Parties: Betty WUETHRICH, individually and as Administratrix ad Prosequendum for the Heirs-at-law of John Wuethrich, deceased, Plaintiff, v. John DELIA and Township of Berkeley Heights, a Municipal Corporation, Defendants.
• Court: New Jersey Superior Court

Page 400

134 N.J.Super. 400

341 A.2d 365

Betty WUETHRICH, individually and as Administratrix ad Prosequendum for the Heirs-at-law of John Wuethrich, deceased, Plaintiff, v. John DELIA and Township of Berkeley Heights, a Municipal Corporation, Defendants.

Superior Court of New Jersey,

Law Division.

May 27, 1975.

Francis H. Scalessa, Elizabeth, for plaintiff (John Anthony Lombardi, Summit, attorney).

Francis J. Beyrent, Morristown, for defendant Tp. of Berkeley Heights (Schenck, Price, Smith & King, Morristown, attorneys).

Robert C. Thelander, Summit, for defendant John Delia (Mantel & Thelander, Summit, attorneys).

DREIER, J.D.C., Temporarily Assigned.

Defendant Township of Berkeley Heights has moved for judgment seeking dismissal of plaintiff's complaint as to it for failure to state a claim upon which relief can be granted.

Although some of the allegations in the complaint are disputed by both defendants, for purposes of this motion we must take them as true and accord the benefit of all favorable inferences to plaintiff. Plaintiff alleges: On several occasions during the afternoon and evening of February 9, 1974 notification was given to the police department of the township that defendant John Delia was menacing with a firearm certain persons within a short distance of the Berkeley Heights police headquarters. The police department made no response to these warnings. Less than 12 hours later, in the early morning of February 10, 1974, John Delia in that same area willfully, wantonly and maliciously shot decedent in the head with a gun, killing him instantly. John Wuethrich left as survivors his wife (plaintiff herein) and three infant children.

Plaintiff filed the appropriate notice of claim against the defendant township on April 10, 1974, and more than six months have elapsed since the filing of said notice. Plaintiff, individually and as administratrix Ad prosequendum for the heirs-at-law of decedent, brought suit pursuant to N.J.S.A. 59:8--8 on February 5, 1975, within two years of decedent's death, demanding judgment against John Delia for damages and against the township for compensatory damages. Plaintiff alleges that decedent's death was caused not only by the wrongful act of defendant Delia but also by the neglect, failure and default of the township police department to carry out its duty (1) to 'apprehend and disarm' defendant after receiving warning of his armed threats of imminent personal harm, and (2) to take 'appropriate action * * * to disarm (defendant) * * * file a Complaint against him or otherwise confiscate the firearms in his possession.'

Defendant township in its motion relies entirely upon three statutes. For convenience, they are reprinted here in full.

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.

N.J.S.A. 59:5--4. Failure to provide police protection. Neither a public entity nor a public employee is liable for failure to provide police protection service, or, if police protection service is provided, for failure to provide sufficient police protection service.

N.J.S.A. 59:5--5. Failure to make arrest or retain person arrested in custody. Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody.

All were effective as of 1972 and none has as yet been construed by New Jersey courts. This court therefore has an obligation to consider them in relation to the special facts of this case and in light of the specific policy considerations expressed in the New Jersey Tort Claims Act of 1972; New Jersey case law prior to this enactment dealing with these issues, as well as subsequent case law in relevant areas although not specifically dealing with construction of the statutes; and related case law in other jurisdictions construing municipal immunity.

Initially, we must note the legislative declaration expressed in N.J.S.A. 59:1--2, which states in part that:

* * * the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein.

This is more generally expressed again in N.J.S.A. 59:2--1, stating that a public entity is not liable for an injury arising out of an act or omission except as otherwise provided by the act. The comment to this provision emphasizes that its purpose is to allow some degree of predictability so that municipalities may estimate their insurance needs. The suggested approach is

* * * Whether an immunity applies and if not, should liability attach. It is hoped that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities. (Emphasis in original)

N.J.S.A. 59:2--2 states that the public entity is generally liable for injury proximately caused by an act or omission of a public employee within the scope of his employment. The broad exceptions follow. N.J.S.A. 59:2--3, 'Discretionary Activities,' requires quotation in full:

a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;

b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

c. A public entity is not liable for the exercise of discretion in determining whether or to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

The extensive comment to this provision explains that New Jersey (and other states such as California) protects from challenge 'certain high-level decisions calling for the exercise of official judgment or discretion.' The examples given in subsection (c) illustrate what areas must remain free from interference. Subsection (d) traces such high-level decisions down to the area of immediate contact with the citizenry where one approaches the gray area encompassing activities reasonable persons might categorize as either low-level discretionary or ministerial. Then once a public entity does act, 'when it acts in a manner short of ordinary prudence, liability could be judged as in the case of a private party.' Fitzgerald v. Palmer, 47 N.J. 106, 109, 219 A.2d 512, 514 (1966).

The new act is equally applicable to any county, municipality, public authority, etc., in the State, N.J.S.A. 59:1--3, and its beneficent policy is exemplified by recent cases which stress that what is important is the substance of notice provisions to the State, not technical niceties. Dambro v. Union County Park Comm'n, 130 N.J.Super. 450, 327 A.2d 466 (Law Div.1974); Markey v. Skog, 129 N.J.Super. 192, 322 A.2d 513 (Law Div.1974). Both of these cases show a careful concern for tempering the effects of unanticipated economic liabilities (which must, in the end, be paid by the public at large through taxes) with the qualities of basic fairness to the individual alleging harm for which the State was a proximate cause.

This court finds no recent New Jersey case (with the possible exception of Dobbins v. Henry Hudson Reg. High Bd. of Ed., 133 N.J.Super. 13, 335 A.2d 58 (App.Div.1974), aff'd 67 N.J. 69, 335 A.2d 23 (1975)--as qualified by its special jury verdict situation and particular statutory wording) manifesting an intention to hide public wrongdoing, whether by act or omission, behind the ancient negative facade of 'the King can do no wrong.' Today the policy expressed by the Tort Claims Act is to consider: (1) Was this, in fact, a wrong? (2) Was the government responsible for it? If so, (3) was it the kind of wrong for which all the taxpayers should be held liable? In order to avoid the trap aptly phrased in Amelchenko v. Freehold, 42 N.J. 541, 550, 201 A.2d 726, 731 (1964), 'It cannot be a tort for government to govern,' we must examine the distinction between discretionary and ministerial activity.

Judicial construction of the California Tort Claims Act enacted in 1963 (Cal. Gov't Code § 810 et seq.), while not binding on New Jersey courts, may offer guidance. California's act also provides immunity to discretionary and not to ministerial duties.

Discretionary activity * * * is that related to basic policy decisions, or that activity sometimes characterized as the 'planning' as opposed to the 'operational' level of decisionmaking. Ramos v. Madera County, 4 Cal.2d 685, 94 Cal.Rptr. 421, 426, 484 P.2d 93, 99 (1971).

The actor must not only have discretion but also must act in the exercise of that discretion. 'Immunity for 'discretionary' activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government. Accordingly, to be entitled to immunity the state must make a showing that such a policy decision * * * took place * * *.' Ramos, supra, at 426, 484 P.2d at 98 fn. 7, California case citation omitted.

A pre-act New...