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Wuethrich v. Delia

Decided: May 27, 1975.

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



Dreier, J.d.c., Temporarily Assigned.

Dreier

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:

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

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 ...


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