On appeal from the Superior Court, Appellate Division, whose opinion is reported at 148 N.J. Super. 15 (1977).
For reversal -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Sullivan, J.
This suit for damages against the State of New Jersey presents the question whether plaintiff's claim is cognizable under the New Jersey Tort Claims Act or whether in the circumstances, the Act confers absolute immunity on the State.
The facts are not in dispute. On May 17, 1973, Joseph Malloy, plaintiff herein, took an examination for a real estate salesman's license. The Division of the New Jersey Real Estate Commission, Department of Insurance, is the licensing body and conducts the licensing examinations. Although plaintiff passed the examination, due to clerical error he was sent a written notice on May 23, 1973 that he had failed. It was not until August 1974 that he was notified of the error and of the fact that he had actually passed the examination. This suit for damages followed.
After issue was joined, cross-motions for summary judgment were made and argued. The trial judge denied plaintiff's motion and granted defendant's motion. He noted that plaintiff was not claiming fraud, bad faith or malice, but merely negligence or mistake. See N.J.S.A. 59:2-10. He interpreted N.J.S.A. 59:2-5, a section of the Tort Claims Act dealing with licensing, to confer immunity on the public entity in the situation here presented.
The statutory section relied on by the trial judge provides as follows:
A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or public employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked.
The Appellate Division, in a majority opinion reported at 148 N.J. Super. 15 (1977), reversed. It held that plaintiff's motion for summary judgment had been properly denied since the record did not support a determination of negligence on defendant's part as a matter of law. However, it held that the immunity conferred on a licensing body by N.J.S.A. 59:2-5 extended only to its discretionary acts and did not apply to a ministerial act by an employee, such as was here involved.
The majority opinion also rejected defendant's additional contention that plaintiff was barred from maintaining suit by another section of the Act, N.J.S.A. 59:3-10, which states:
A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation.
While this section protects only the employee, a companion provision, N.J.S.A. 59:2-2(b), reads:
b. A public entity is not liable for an injury resulting from an act or omission of a public employee where the ...