This is a suit by an inmate of the Rahway Prison Farm against defendants Warren Pinto and William D. Van Zandt, respectively superintendent and chief deputy, of the Rahway Prison Farm, for damages for an assault committed upon plaintiff by a fellow inmate.
The testimony presented by plaintiff indicates that on August 8, 1962 he complained to a guard that a fellow inmate had threatened him, and as a precaution he and that inmate were placed in separate cells under double lock -- explained as a form of protective custody until an investigation could be made. The two were then separately interviewed by defendant Van Zandt, to whom plaintiff complained that the other inmate had wanted to indulge in homosexual activities, and because he had resisted such advances he had been threatened with serious harm. Van Zandt spoke with the inmate, who denied he had threatened plaintiff's life but explained that plaintiff owed him cigarettes which he had loaned plaintiff, and also cigarettes for laundry work done for plaintiff at his request. The inmate denied any attempt to be involved with plaintiff homosexually. After this interview Van Zandt called upon plaintiff and explained the inmate's denial of any threats to plaintiff's life and his admission of the existence of a dispute over plaintiff's refusal to pay the cigarette debt he owed. Van Zandt testified that after this explanation plaintiff stated that if that was all the inmate wanted, he would pay him back. Van Zandt then inquired of plaintiff whether he was afraid to be released from protective custody, and plaintiff indicated that he desired to be released.
On August 11, 1962 the inmates of Rahway Prison Farm attended a motion picture show on the prison premises. At the end of the picture and as the inmates were filing out, plaintiff felt a blow on his back, as if someone had struck his shoulder to gain his attention. As he turned the inmate struck him in the face with what turned out to be a razor blade. One of the guards drove plaintiff to the Rahway General Hospital where it was discovered that the blow on the back was actually a razor cut which required 15 stitches. The
cut on the face required 14. Plaintiff was then returned to the prison farm infirmary where he remained for a period of time until the sutures were removed.
Plaintiff exhibited the face scar and complains of severe pain over a long period of time, as well as disfigurement as a result of the assault. Plaintiff also complains that the prison officials have refused him plastic surgery to remove the scars, and that he has developed a nervous condition and an inferiority complex and has difficulty in sleeping.
Defendant Pinto was called as a witness by plaintiff. He apparently had been unaware of the assault until a report was made to him. It is undisputed that he took no active part in plaintiff's release from protective custody. Plaintiff did request Pinto to arrange for plastic surgery to remove the disfiguring marks. It is conceded that as a result of that request plaintiff was examined by two physicians, employees of the State; neither surgeon recommended plastic surgery, and after several consultations the doctors either advised plaintiff against it or refused to perform it.
At the close of plaintiff's case defendants moved for an involuntary dismissal of the action for the reason that as public officials they were performing a public duty, which duty was of a discretionary nature and, further, that they are immune from liability in that their conduct toward plaintiff lacked malice and was in good faith. In addition, defendants plead immunity under the provisions of R.S. 30:4-16. In view of the conclusions reached, an interpretation of this statute will not be necessary.
No reported case of a plenary trial of the issues raised in this litigation has ever been reported in this State. There was an expression of the applicable law to a situation of this type in an appeal from a motion granted to dismiss a complaint for failure to state a claim, as provided by R.R. 4:12-2(e). The court in Kisielewski v. State, 68 N.J. Super. 258 (App. Div. 1961) said:
"Whether a public officer, or employee, is clothed with immunity in the performance or nonperformance of an act in the course of his
public service, depends upon the nature of his duties and the nature and quality of the allegedly tortious act or ...