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Burg v. State

Decided: February 24, 1977.

ELIZABETH BURG AND NEAL BURG, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY, ANN KLEIN, COMMISSIONER OF N.J. INSTITUTIONS AND AGENCIES, WILLIAM FAUVER, DIRECTOR OF DIVISION OF CORRECTION AND PAROLE, DEPARTMENT OF INSTITUTIONS AND AGENCIES, VINCENT J. REGAN, FORMER SUPERINTENDENT, NEW JERSEY STATE PRISON, LEESBURG, N. J. JOHN DOE, TRUE NAME BEING UNKNOWN, AGENT OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

On November 16, 1973, while walking home from the Port Authority station in Westmont, plaintiff was assaulted and struck on the head with a blunt instrument wielded by William Boland, a convicted felon serving a life term at Leesburg State Prison for a murder committed in 1961. He was apprehended and subsequently entered pleas of guilty to indictments charging him not only with this offense but also with assaults upon and robberies of other persons during the same month.

It is not disputed that at the time of these incidents Boland was on vocational, noncustodial release pursuant to N.J.S.A. 30:4-91.3 and the implementing rules and regulations promulgated by the Commissioner of the Department of Institutions and Agencies (N.J.A.C. 10:35-52.1 et seq.) Under this program he was permitted to attend classes daily at Glassboro State College without supervision and to use an automobile for transportation between the prison and the college.

After complying with the notice of claim provision of the Tort Claims Act, N.J.S.A. 59:8-1 et seq. , Mrs. Burg and her husband filed this lawsuit for compensatory and punitive damages upon the expiration of the statutory six-month waiting period (N.J.S.A. 59:8-8). Named as defendants were the State of New Jersey, the Commissioner of the Department of Institutions and Agencies, the then Superintendent of the State Prison at Leesburg, and "John Doe" as agent of the State of New Jersey. Plaintiffs charged them with negligence in (1) permitting Boland to be at liberty without supervision and control and in alleged violation of applicable rules and regulations and standards of penology; (2) failing adequately to examine Boland's mental, psychiatric, psychological and emotional stability; (3) failing properly to safeguard members of the public, and (4) acting in willful and wanton disregard of the rights of plaintiff.

Defendants moved for an order dismissing the complaint for failure to state a claim upon which relief could be granted. Plaintiffs filed a cross-motion for discovery or, alternatively, for the taking of depositions. The trial judge who originally heard the motions died before announcing his decision. The matter was later reargued before another judge who, in a letter opinion, after noting that the issue involved was one of first impression in this State, held that plaintiffs had no cause of action under the Tort Claims Act. Relying largely on California decisions, he reached the conclusion that all acts of public entities or public employees within the ambit of release procedures, whether of a discretionary or a ministerial nature, were immunized from tort liability. This appeal is from the judgment dismissing the complaint.

It is thoroughly settled that on a motion challenging the legal sufficiency of a complaint, R. 4:6-2(e), "the plaintiff is entitled to a liberal interpretation of its contents and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn from

them." Rappaport v. Nichols , 31 N.J. 188, 193 (1959); see also Bonnett v. State , 126 N.J. Super. 239, 242 (App. Div. 1974). Thus, the issue raised on this appeal is, essentially, whether on the facts alleged, accepting them as true, a cause of action arose against those defendants cognizable under the Tort Claims Act.

Plaintiffs suggest that the statute was designed to create liability rather than immunity. They are mistaken. We said in English v. Newark Housing Auth. , 138 N.J. Super. 425, 428 (App. Div. 1976), that the language of the legislation made it clear that the basic legislative premise was to re-establish immunity for all governmental bodies within its definition of "public entity." Immunity, we emphasized, was all-inclusive within that definition except as otherwise provided by the act. See N.J.S.A. 59:2-1. In the comment appended to this section of the statute, taken from the Report of the Attorney General's Task Force on Sovereign Immunity (May 1972), the observation appears that the Supreme Court had developed the analytical approach that courts "ought not to be * * * asking why immunity should not apply in a given situation but rather * * * asking whether there is any reason why it should apply." B.W. King, Inc. v. West New York , 49 N.J. 318, 325 (1967). Under the Tort Claims Act, according to the comment, "the approach should be whether an immunity applies and if not, should liability attach." The hope is expressed "that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities."

It is within the framework of this expressed legislative design that we must test the sufficiency of the complaint in this case.

Boland was released under N.J.S.A. 30:4-91.3, captioned, "Extension of limits of place of confinement," which, to the extent pertinent here, provides as follows:

The Commissioner [of the Department of Institutions and Agencies] or his duly authorized agent or ...


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