Antell, Joelson and McElroy. The decision of the court was delivered by McElroy, J.A.D.
This appeal requires consideration of N.J.S.A. 59:3-2d, a subsection of the New Jersey Tort Claims Act which provides that a public employee "is not liable for the exercise of discretion when, in the face of competing demands, he determines whether and how to utilize or apply existing resources, including those allocated for . . . personnel unless a court concludes that the determination of the public employee was palpably unreasonable." The act further states that "[n]othing in this section shall exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions."
On Tuesday, January 1, 1976, plaintiff Laura Longo was thirteen years old and an eighth grade student at the Audubon Borough Junior/Senior High School. During the lunch period she was standing in a group of girls on an athletic field adjacent to the school and was struck in the face by a rock thrown by Frank Santoro, a seventh grade student, who was throwing rocks at a basketball backboard located near the girls. She and her father sued defendant Gilbert, principal of the school alleging he failed to provide proper supervision of the lunch hour activities of the students. We will refer to plaintiffs in the singular. The Board of Education was sued respondeat
superior as Gilbert's employer.*fn1 Plaintiff appeals a judgment of dismissal entered in favor of Gilbert and the Board by the trial judge after submission of all the evidence. The judge determined that Gilbert was statutorily immune under N.J.S.A. 59:3-2d and consequently his conduct was not imputable to the Board. We reverse and remand for a new trial.
The school had an enrollment of approximately 1,300 students. It operated under a Board instituted "open lunch" policy by which the students were free to eat lunch in the school cafeteria, at home or at local restaurants or stores in the neighborhood of the school.*fn2 There were two lunch periods of 45 minutes each commencing at 11:45 a.m. As might be expected, during these periods a number of students would be in and around the area of the school buildings, adjacent playing fields, sidewalks and parking lot. There were no scheduled school activities during this time. Gilbert had, however, assigned certain of the teaching staff and his assistant principal, James Held, to the cafeteria to patrol outside the buildings in order to exercise supervision over the students. Gilbert testified that those assigned outside were charged with the duty to "supervise the students that were in the immediate area of the building." They were to walk around the area and try to prevent "problems." There was no standing instruction that a teacher had to be in the ballfield area on a daily routine basis. Teachers were instructed either to go to that field or observe it from the school area across the street.
Three teachers maintained order in the cafeteria. Either two or three of Gilbert's staff usually patrolled the exterior areas.*fn3 Held was one of these but he was not available on Tuesdays for this duty because he customarily attended a Rotary Club function during the first lunch period on that day. There was no policy set by Gilbert to replace Held on Tuesdays. He stated that he instructed the teachers in the cafeteria "that as soon as the students began to leave . . . they should work their way outside as well. In other words, as the number of students in the cafeteria decreased, a teacher or two should move outside with them." Gilbert testified that sometimes he would take over Held's duty on Tuesdays. On the day of the accident he was "tied up" and could not do so.
Gilbert explained that he was limited as to the number of teachers available for lunch time duty because the union contract limited teachers to one duty period a day. Under the contract a teacher's schedule consisted of eight periods in a school day, five teaching periods, lunch period, a preparation period and a duty period. A teacher's duty period might fall within "one of any of the eight periods." He testified that during the two lunch periods (periods four and five), "I had a very small number of teachers available to cover the halls, the inside, as well as the outside. I simply did not have enough teachers available." A teacher could only be assigned to one duty period per day. He did not state whether Held had a duty period, why it was necessary for Held to be excused to attend
the Rotary meeting and whether Held's daily patrol was part of his normal allotted lunch hour.
There was no teacher in the area where plaintiff sustained her injury. The accident was brought to the attention of school authorities when plaintiff was brought to the school nurse by her friends. Dawn Hudson, one of the group in which plaintiff was standing, testified she observed no boy other than Santoro throwing rocks. No other boys were near him. She saw him throw "over five" rocks in a five minute period, the last injuring plaintiff. Santoro denied he threw the stone that injured plaintiff. He stated he and a group of two or three boys had thrown stones at the basketball backboard for five or ten minutes. He admitted he had thrown rocks at the basketball backboard at other times and had seen other students do so as well.
Plaintiff stated she was standing with her friends and did not see who threw the rock that injured her. Neither she nor Dawn recalled seeing any teachers in the area. When Santoro started to throw rocks plaintiff's group moved away from the area in which stones were landing. As she and the girls were ...