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Fair v. County of Bergen and

Decided: July 13, 1977.

HARRY P. FAIR AND MARTIN H. RABINOWITZ, M.D., PLAINTIFFS-APPELLANTS,
v.
COUNTY OF BERGEN AND STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Lynch, Milmed and Antell.

Per Curiam

[151 NJSuper Page 521] Plaintiffs herein brought an action against one Fred Butler in the Superior Court. At the close of the trial the court attendant mistakenly delivered into the jury room, together with the documentary exhibits received in evidence, the pretrial order and a copy of defendant's brief. Following discovery of this error the verdict which that jury returned on the complaint and the counterclaim in favor of Butler and against plaintiffs was vacated and a mistrial declared. Plaintiff thereupon brought this action against the county in which the trial was held and the State of New Jersey seeking recovery of damages allegedly resulting from the "inadvertent delivery" by the court attendant of the

harmful papers. This appeal by plaintiffs follows from two separate orders for summary judgment entered by the court below in favor of defendants on considerations of immunity.

The following provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. , are pertinent:

N.J.S.A. 59:2-1. Immunity of Public Entity Generally

a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person.

N.J.S.A. 59:2-2. Liability of Public Entity

a. A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.

b. A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.

N.J.S.A. 59:2-3. Discretionary Activities

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 ...


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