Lynch, Bischoff and Kole. The opinion of the court was delivered by Kole, L.a.d.
Plaintiff and defendant Lewis were arrested, while under the influence of intoxicating beverages, by two police officers of the City of Trenton. They were transported to Trenton police headquarters and placed in the same jail cell. For the purpose of this proceeding we must assume that the municipal defendants -- the city, its police department, the persons in charge of the police station, and all of the officers, jail guards and municipal personnel involved when plaintiff and Lewis were placed in the same cell -- (1) knew that Lewis had a prior history of violence, including violent crimes, (2) had received requests from Lewis and plaintiff that they be separated because of Lewis' assaultive tendencies, and (3) notwithstanding such knowledge and requests and the availability of an empty cell, placed and kept plaintiff and Lewis in the same cell. While in the cell Lewis severely assaulted plaintiff.
The complaint charged defendants municipality, its police department and the municipal personnel with negligence and willful, wanton and gross negligence that proximately caused plaintiff's injuries. Damages were sought against them under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (the act). The trial judge, on motion, entered orders on the merits in favor of such defendants. Plaintiff appeals.*fn1
Plaintiff contends that, as an "arrestee-detainee," he was not a "prisoner" within the meaning of the Act; that a special relationship was created by the arrest prior to adjudication of guilt which is an exception to the prisoner immunity provided by the act, and that the facts here warrant
an exception to the rule of sovereign immunity. We disagree.
We have concluded that the municipality, its police department and their employees are immune from liability in this case by reason of the plain language of N.J.S.A. 59:5-2(b)(4) and the purpose of that provision. It provides that neither a public entity nor a public employee is liable for "any injury caused by * * * a prisoner to any other prisoner." The act does not define the term "prisoner." The comment following N.J.S.A. 59:5-2, however, states in pertinent part:
Subsection (a) [immunizing from liability a public entity and employee for any injury resulting from the parole or release of a prisoner or from the terms and conditions of his parole or release or from the revocation of his parole or release] involves a particular type of discretionary activity which should not be subject to threat of tort liability.
Subsection (b) reflects the judgment that governmental liability should not be extended beyond reasonable limits.
Subsection b(4) also recognizes the practical problems inherent in supervising prisoners and particularly in preventing injuries caused by one prisoner upon another. While it is necessary to provide supervision, the decision to do so for the purpose of preventing interprisoner injuries should not be threatened with tort liability nor should the actions of prison guards in reacting to situations which may give rise to such injuries. Thus, this provision (as it relates to injuries to another prisoner) specifically rejects the reasoning of the Appellate Division in Harris v. State , 118 N.J. Super. 384 (1972). [Emphasis added]*fn2
Harris v. State , 118 N.J. Super. 384 (App. Div. 1972), rev'd 61 N.J. 585 (1972), involving a claim prior to the effective date of the act, held that jail personnel could be
individually liable for negligence in failing adequately to protect prisoners against assaults by other prisoners. In its opinion reversing the Appellate Division the Supreme Court noted that the act (which was inapplicable to the case before it) "contains a sweeping provision that neither a public entity nor a public employee ...