This opinion considers the application of the New Jersey Tort Claims Act (the act) to claims, counter-claims and cross-claims involving the Borough of Palmyra, four of its employees and its bonding company, Selected Risks. The provisions of the act primarily involved are those which establish immunity for law enforcement actions and for failure to enforce the law.
The Palmyra Borough Council adopted a water conservation program providing for the distribution of water-efficient showerheads to be provided by Conservco, Inc. The borough assumed no financial responsibility for the program; Conservco was to be reimbursed for its expenses by a local developer. Conservco, however, requested Marley, The Borough Administrator, to advance borough monies for the showerheads, promising repayment when the developer honored its reimbursement agreement. Marley, anxious to get the program started, complied with the request. At his direction, Grace Carr, the Borough Clerk, drew a check against borough funds for $22,787.50 payable to Conservco. The Borough Treasurer, Helen Coles, signed the check and affixed the signature of Mayor John Sacca to it by using a stamp which he kept in a safe accessible to the other officials. Conservco cashed the check, never provided the showerheads and decamped with the borough's money.
The procedure employed in the issuance of the check violated requirements of the borough's ordinances and N.J.S.A. 40:94-3,
a circumstance known to Marley, Cole and Carr. These laws required all bills to be approved by the borough council and signed by the mayor. Checks in payment were to be signed by the borough clerk, treasurer and mayor. The check to Conservco was issued without the approval of the borough council; the voucher which it covered had not been signed by the mayor.
After these facts became known, the borough council discharged Marley. He was entitled to three months' severance pay, pursuant to N.J.S.A. 40A:9-138, which the borough refused to pay and for which this suit was instituted. The borough counterclaimed for the monies Marley paid Conservco and filed a third-party complaint against Selected Risks to recover the same monies, claiming that a bond issued by that carrier naming Marley as principal, covered its loss. The bonding company then sued Marley on tort and contract theories; it also claimed indemnification from Sacca, Coles and Carr.*fn1 Marley, in turn, sued the borough, Carr, Coles and Sacca, seeking contributions from them as joint tortfeasors. In response to earlier motions, the borough has paid Marley's claim for severance pay and the bonding company has paid the borough $22,787.50 for the Conservco loss. The issues discussed below are raised by motions for summary judgment.
THE APPLICATION OF THE TORT CLAIMS ACT TO THE PUBLIC EMPLOYEES
N.J.S.A. 59:3-3 provides, in part:
A public employee is not liable if he acts in good faith in the execution or enforcement of any law.
N.J.S.A. 59:3-5 provides:
A public employee is not liable for an injury caused by his adoption of or failure to adopt any law or by his failure to enforce any law.
Marley, Carr, Coles and Sacca claim that these statutory provisions provide them with immunity from claims involving the
Conservco transactions since these claims arise from law enforcement activities. The defenses raise difficult questions of interpretation. These immunity sections of the act seem to reestablish disappearing concepts of liability for municipalities and their employees based upon active-passive wrongdoing distinctions, under which municipalities acting in a governmental capacity, and perhaps municipal employees, were liable for a tort only when "active wrongdoing" occurred, not in cases involving an omission, a failure to act. Several cases have held municipalities immune from liability under the act's provisions dealing with failure to enforce a law; none has addressed the statutory distinctions considered here. See Brothers v. Highlands, 178 N.J. Super. 146, 151 (App.Div.1981); Diodato v. Camden Co. Park Comm., 162 N.J. Super. 275 (Law Div.1978); Cogsville v. Trenton, 159 N.J. Super. 71 (Law Div.1978); Danow v. Penn Central Transp. Co., 153 N.J. Super. 597 (Law Div.1977); Cadmus v. Long Branch Bd. of Ed., 155 N.J. Super. 42 (Law Div.1977); National Spring Co. v. Pierpont Ave. Assoc., 146 N.J. Super. 63 (Law Div.1976).
N.J.S.A. 59:3-3 provides immunity in connection with the "good faith" enforcement of a law. N.J.S.A. 59:3-5 provides immunity for the failure to enforce any law, omitting any "good faith" requirement and thereby making an obvious distinction between the two immunity provisions. A public employee who is enforcing a law (an act of commission) must prove good faith in order to enjoy immunity, while one who fails to enforce a law (an omission) need not. The difference is emphasized by N.J.S.A. 59:2-4 which provides the municipality itself with immunity for failure to enforce a law and makes no "good faith" requirement, thus paralleling N.J.S.A. 59:3-5, the public employee section. The municipality is not provided with immunity as to the enforcement of a law but is so provided, under N.J.S.A. 59:2-2, for "an act or omission of a public employee where the public employee is not liable." Consequently, the availability of public employee immunity may determine the liability of the municipality itself. The necessity for establishing
a workable interpretation of the two immunity provisions is clear.
At first blush, the suggestion that the immunity provisions must be distinguished seems too obvious to require argument. The Legislature enacted them in separate sections, using different language. Consequently, they are distinct. They establish a commission-omission dichotomy. This simplistic response, examined historically, logically and intellectually, however, is unsatisfactory.
The clear trend of judicial thought in New Jersey has been toward the elimination of the governmental-proprietary or passive-active wrongdoing approach to tort liability claims against public entities. That approach, discussed, e.g., in Cloyes v. Delaware Twp., 23 N.J. 324 (1957), required proof of active wrongdoing before a public entity, acting in a governmental capacity and not a proprietary one, could be liable for a tort. In B. W. King v. West New York, 49 N.J. 318, 324 (1967), our Supreme Court called for a new approach. It held that a municipality owning real property "has the same duties and liabilities in connection with the prevention of the spread of fire" as private owners. It rejected the passive-active wrongdoing test, restricting the rejection, however, to the circumstances of the case. It suggested the adoption of a substitutionary rule, saying:
The problem should be approached by the court on a gradual case by case basis, permitting a new theory to metamorphose slowly. A firm rule can evolve with additional experience. The analytical approach ought not to be one of asking why immunity should not apply in a given situation but rather one of asking whether there is any reason why it should apply. [at 325]
K.S.B. v. No. Jersey Dist. Water Supply, 75 N.J. 272, 288 (1977), rejected the governmental-proprietary distinction in a matter dealing with water distribution. The Court noted that the distinction had been eliminated in tort cases. In Bergen v. Koppenal, 52 N.J. 478 (1968), a municipality which had knowledge of a broken traffic light was held to possible liability for failure to act in an emergent situation. Active wrongdoing was
not discussed. In Jackson v. Hankinson, 51 N.J. 230, 231 (1968), the Court refused to apply the active wrongdoing test in circumstances involving a school child -- school bus injury. Tower Marine v. New Brunswick, 175 N.J. Super. 526 (Ch.Div.1980) sounded a final note, holding that the governmental-proprietary or active-passive wrongdoing distinction had been extinguished by the Tort Claims Act. Tower Marine was correct, generally, but not, as this opinion shows, in the context of law enforcement liability.
The active wrongdoing test seems to have been the rule for municipal employees acting within the scope of their employment, as well as for municipalities, although this is not entirely clear. Thus, in Milstrey v. Hackensack, 6 N.J. 400 (1951), the court held a municipal engineer liable in a tort action, saying:
It is a settled rule in this State that public officers have no protection "from the consequences of their misfeasance in the performance of their public duties," as distinguished from a mere negligent omission or nonfeasance. [at 412]
See also Florio v. Jersey City, 101 N.J.L. 535 (E. & A.1925). Milstrey was a four to three decision. The dissent, in a lengthy analysis, was of the opinion that a municipal employee, acting in his public capacity and discharging a duty to his municipal employer under circumstances in which the municipality itself was liable, should be immune. The Milstrey majority rule remained in effect at the time the Tort Claims Act was adopted. In Cloyes v. Delaware Twp., supra, however, the Court said:
The parties did not raise, brief or argue the question whether the individual defendants may be held for mere inaction in the face of alleged notice of a dangerous condition. We accordingly have not considered the question and express no view with respect to it. [23 N.J. at 336-337]
The Court cited Milstrey.
Logically, the distinction between active and passive wrongdoing, between commission and omission, between action and failure to act, in many cases is a distinction without a difference. The problem was noted (and by-passed) in Cloyes v. Delaware Twp., supra, involving the death of a child who crawled under a gate:
. . . The facts of the present case sharply expose the fine line which may separate active wrongdoing from a mere failure to act. The sewage disposal plant was enclosed by a cyclone fence. The evidence would warrant a finding that the lad entered the premises by crawling through an opening of some 18 inches beneath the gate. It could be found that as initially erected the space beneath the gate was too slight to permit a child to enter, but erosion of the soil caused the enlargement. If the situation is viewed in terms of failure to repair, the answer would be for defendant. But if the situation is viewed in terms of failure to provide against such erosion by the installation of an appropriate base beneath the gate, then it is claimed the wrongdoing was active, i.e., improper construction. [at 330]
Prosser, Handbook of the Law of Torts (4 ed. 1971) speaks in terms of misfeasance and malfeasance:
In theory the difference between the two is simple and obvious; but in practice it is not always easy to draw the line and say whether conduct is active or passive. [at 339]
The present case illustrates the problem: the failure to obtain approvals for the issuance of the check may have been passive wrongdoing while issuance of the unapproved check may have been active wrongdoing.
The only intellectually satisfying basis for a commission-omission concept is one based upon knowledge which the actor had or reasonably should have had, coupled with resulting action. Cadmus v. Long Branch Bd. of Ed., supra, 155 N.J. Super. at 47, suggests this. "Knowledge" may be either conscious or required, i.e., imputed for liability purposes. One who is aware of a certain law or a certain fact has conscious knowledge. Theoretically, then, failure to enforce that law or to address that fact in discharge of a duty to do so is action; consciously ignoring a legal requirement is an act of will. This concept, for use in the courts, however, requires a practical approach; detection of the conscious and the unconscious in the mind of man, absent an admission, is possible only through the observation and interpretation of action. Consequently, we do not penalize our fellows for a failure to make some part of the body move in response to their mental gyrations. We require an act of will to be exhibited before it has legal consequences. The rule is set forth in Restatement, Torts 2d, § 2, Comment A. (1965):
Some outward manifestation of the defendant's will is necessary to the existence of an act which can subject him to liability.
To result in liability, the defendant's act must be a voluntary one. But a voluntary act, reduced to its lowest terms, is a contraction of the muscles, and nothing else. [at 31]
Wigmore discusses the problem of proving knowledge, belief or consciousness and points to three kinds of evidence used for the purpose: (1) conduct or behavior which "illustrates and points back to the state of mind producing it;" (2) external circumstances, "calculated by their presence or occurrence to bring about the state of mind in question," and (3) a prior or subsequent state of mind which "indicates, within certain limits, its existence at the time in question." 2 Wigmore, Evidence (3 ed. 1940), § 244. Actors may be liable without conscious knowledge. In certain circumstances, the law requires (imputes) knowledge. One who is put on notice of certain events, for example, may not ignore their portents with impunity. When dealing with knowledge of the law our imputation process goes further, generally recognizing the old adage that "ignorance of the law is no excuse." Thus, the Restatement, Torts 2d, supra, § 290 provides:
For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is required to know
(b) The common law, legislative enactments and general customs insofar as they are likely to affect the conduct of the other or third persons.
These definitions and uses of the words "knowledge" and "act" must be applied when interpreting the active-passive distinctions apparently resurrected by the Tort Claims Act in the present instance.
An added problem arises when the commission-omission test is applied to a sequence of events, some lawful, some not, some active, some passive. The solution, described in Kelley v. Curtiss, 29 N.J. Super. 291 (App.Div.1954), rev'd on ...