This is a motion for summary judgment by defendant sheriff. The question presented is whether a sheriff may be held liable for the theft and destruction of property upon which he has levied pursuant to a writ of attachment.
Plaintiff is the court-appointed receiver for Benjamin Boymann and Rosaline Boymann, trading as Levenson's Market, defendants in a suit filed by the Farmers and Merchants National Bank of Bridgeton. On December 27, 1976 the bank obtained a writ of attachment against all of the Boymanns' property after they defaulted on a demand note. Cumberland County Sheriff's officers duly served the writ and levied on the building and contents of Levenson's Market by taking an inventory of the goods and equipment. The officers then padlocked the store and took possession of the keys until sometime after the receiver was appointed on February 28, 1977.
On February 25, 1977, three days before the appointment of the receiver, a Sheriff's Department officer discovered evidence of a forced entry at the store and reported same to his superiors. The Bridgeton Police Department, notified later that evening, found that a padlock and hasp had been pried off the rear door of the building and an inner window pried of with a wide-bladed
instrument. Further investigation by detectives and the Sheriff's Department revealed that a meat slicer, cigarettes, candy and other inventoried items were missing. The premises were re-secured on March 3, 1977 by a member of the Sheriff's Department by placing a new lock on the rear door. No further inventory was made with respect to the missing items.
Plaintiff contends that the theft or loss of these items was due to the negligence of the Sheriff's Department. He notes that the Sheriff's Department did not re-secure the premises immediately after the reported entry but instead waited seven days before installing a new lock on the rear door, during which time other items may have been removed. In addition, plaintiff contends that during the time the property was in the actual or constructive possession of the sheriff, the building and a portion of its contents were destroyed when water pipes burst after utilities for the building were shut off for nonpayment of utility bills. Plaintiff alleges that the Sheriff's Department was negligent in (1) initially securing the building and windows; (2) failing to protect the building and contents from water damage due to the burst water pipes, and (3) failing to take reasonable measures to secure the building and contents from loss by theft between February 25 and March 3, 1977.
Defendant cites 80 C.J.S. Sheriffs and Constables § 78, as authority for the rule that a sheriff is not liable for property which is lost, destroyed or damaged while in his care and custody unless a showing is made of his neglect. Defendant asserts that the sheriff properly secured the premises and exercised reasonable care with respect to the property and therefore was not negligent. Plaintiff argues otherwise.
At the outset, then, a factual question is raised which would appear to preclude summary judgment for defendant.
Since the sheriff is a public employee, however, the nature and scope of his duty of care with respect to attached property must be determined in light of the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. While public employees
are immune from liability for injuries resulting from the exercise of judgment or discretion vested in them, the Tort Claims Act specifically provides:
Nothing in this section shall exonerate a public employee for negligence arising out of his acts or omissions in carry [ sic ] out his ...