On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Allcorn, Kole and Pressler. The opinion of the court was delivered by Allcorn, P.J.A.D. Pressler, J.A.D. (dissenting).
[178 NJSuper Page 500] The present action was commenced by plaintiffs seeking damages for an asserted physical assault and rape committed against plaintiff Jane Doe while she and her alleged assailant were residents of Ewing Residential Center, a DYFS facility. The cause of action sounds in negligence, asserting that plaintiff's injuries resulted from the failure of defendants adequately to supervise the residents of the facility and their failure to take
proper precautions for plaintiff's safety. On motion, the trial judge granted the application of defendants for summary judgment on the ground that, under the Tort Claims Act, the State, its agencies and employees are not liable for damages arising from "any injury caused by . . . a prisoner to any other prisoner." N.J.S.A. 59:5-2 b(4). Plaintiffs appeal.
The record reveals that in 1974 the parents of the minor plaintiff entered into an agreement with the predecessor agency of DYFS requesting foster care for plaintiff and two other children. Thereafter, although placed in a number of foster homes, plaintiff ran away and refused to stay in individual foster homes. As a result, a proceeding was ultimately initiated against plaintiff by DYFS in the Morris County Juvenile and Domestic Relations Court. After a hearing plaintiff was adjudicated a juvenile in need of supervision (JINS) and was remanded to the Youth Shelter pending exploration of residential placement. A subsequent hearing resulted in the placement of plaintiff in Ewing Residential Center. The Center is a group foster home -- a residential facility for "hard to place" children, who are emotionally disturbed or socially maladjusted. It was during her stay at the Center that the asserted assault and rape occurred. The alleged perpetrator concededly was also a resident at the Center by virtue of his adjudication as a JINS and an order of placement to the Center.
The single issue raised on this appeal is whether the minor plaintiff (as well as her alleged assailant) was a "prisoner" within the contemplation of that term as used in N.J.S.A. 59:5-2 b(4). The cited subsection provides:
Neither a public entity nor a public employee is liable for:
(4) a prisoner to any other prisoner.
By common definition, "[a] 'prisoner' is a person deprived of his liberty by virtue of judicial or other lawful process." 60
Am.Jur. 2d Penal and Correctional Institutions , § 1 at 808. A juvenile who, in an appropriate proceeding in the Juvenile and Domestic Relations Court, has been adjudicated a JINS and who, by order of that court, has been committed to a youth facility such as the Center -- a group foster home operated by the State (DYFS) to provide care and supervision for those youths committed to it -- is "in the custody of the person in charge of the . . . [facility] and is not free to come and go at will." State in the Interest of M.S. , 73 N.J. 238, 244 (1977). He or she has been committed to the custody of the person in charge of the juvenile facility and is there under a restraint against leaving voluntarily. Such juvenile is thus deprived of his or her liberty by virtue of judicial process issued in and as the result of a judicial proceeding.
We recognize, of course, that a JINS in custody at such a juvenile facility is not a "prisoner" in the sense of being an inmate of State Prison or some other state or county penal establishment. Indeed, it is of some significance that the Legislature utilized the term "prisoner" in the statutory context, rather than the ...