On appeal from the Superior Court, Law Division, Burlington County.
Matthews, Furman and Havey. The opinion of the court was delivered by Furman, J.A.D.
Plaintiff appeals from summary judgment dismissing his complaint, R. 4:6-2(e). Against both defendants he alleged educational malpractice in failing to provide him with a special remedial education to assist him to overcome his academic deficiencies. On defendants' motion for dismissal, the allegations of the complaint were accepted as true, including the claim of damages proximately resulting from the alleged educational malpractice, see Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954).
Although the complaint sounds in tort against two public entities, plaintiff did not follow the notice procedure set down in the Tort Claims Act, N.J.S.A. 59:1-1 et seq., or plead the act; defendant did not plead immunity under the act; the trial judge did not apply the act sua sponte; and neither party has briefed the act on appeal before us. The trial judge rested his dismissal of the complaint on the conclusion that, as educational malpractice is not a recognized cause of action, he should not innovate by sanctioning it without the imprimatur of a higher court.
Educational malpractice has not been approved as a theory of recovery in this state or elsewhere. See Hunter v. Board of Ed. of Montgomery County, 292 Md. 481, 439 A.2d 582 (Ct.App.1982); D.S.W. v. Fairbanks No. Star Bor. Sch. Dist., 628 P. 2d 554 (Alaska Sup.Ct.1981); Hoffman v. Board of Ed. of City of N.Y., 49 N.Y. 2d 121, 400 N.E. 2d 317, 424 N.Y.S. 2d 376
(Ct.App.1979); Peter W. v. San Francisco Unified School District, 60 Cal.App. 3d 814, 131 Cal.Rptr. 854 (Ct.App.1976).
We affirm but for reasons other than those stated by the trial judge. Whether a cause of action lies for educational malpractice against defendant public entities must be determined pursuant to the Tort Claims Act. The act limits and circumscribes governmental tort liability; apart from the act no tort cause of action lies against a public entity of this state, N.J.S.A. 59:1-2, 59:2-1; Bell v. Bell, 83 N.J. 417, 423 (1980); Kolitch v. Lindedahl, 193 N.J. Super. 540, 546 (App.Div.1984).
The appellate issue before us is not that of waiver of an affirmative defense. Governmental tort immunity is the rule, except as liability is expressly provided for in the Tort Claims Act and is not, in turn, subject to a specific immunity under the act.*fn1 No express provision of the act imposes liability against defendants in accordance with the allegations of the complaint. Although liability under the act was neither pleaded nor argued, we hold that defendants' failure to provide plaintiff with a special remedial education was not actionable because it fits within no specific liability provision of the Tort Claims Act.
Apart from clearly irrelevant provisions, e.g., liability for maintenance of property in a dangerous condition, the Tort Claims Act defines governmental tort liability as follows in N.J.S.A. 59:2-2a:
A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.
Educational malpractice, like other professional or occupational malpractice, would arise, if recognized as a cause of action, out of negligence ...