On appeal from Superior Court, Law Division, Morris County.
Petrella, Havey and Stern. The opinion of the court was delivered by Petrella, P.J.A.D.
Plaintiffs Robert M. Popek, as guardian, and his son Robert A. Popek, sued the State Department of Human Services (Department), the Sheriff of Passaic County and the Passaic County Board of Freeholders*fn1 in connection with injuries received by Robert A. Popek while a patient in the care and custody of Greystone Park Psychiatric Hospital (Greystone). The complaint alleged that he was assaulted by various persons in Greystone's custody and that his injuries were due to the "negligent formulation of policy, administration of policy, care and custody and supervision of those individuals coming under their [Greystone's] purview." Breach of contract causes of action were also asserted as well as claims based on willful, wanton or reckless disregard of the rights of a patient. The Department as well as the County officials were granted summary judgment on their respective motions based on certain immunity provisions (N.J.S.A. 59:6-7) of the Tort Claims Act, N.J.S.A. 59:1-1 et seq.
Plaintiff seeks to reverse the grants of summary judgment on various grounds which may be essentially summarized as: (1) the State waived immunity under the Tort Claims Act by a consent order entered June 29, 1977 in another case;*fn2 (2)
patients committed to psychiatric hospitals such as Greystone have a constitutional right to be protected from harm while institutionalized; (3) no justification remains for the immunity in N.J.S.A. 59:6-7(b); (4) defendants are liable under other provisions of the Tort Claims Act for injuries suffered by plaintiff; and (5) the defendants are liable under the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq.
For purposes of the motions, certain matters were stipulated and defendants conceded the factual contentions asserted by plaintiffs.
In the enactment of the Tort Claims Act the Legislature has set forth the public policy of this State, N.J.S.A. 59:2-1:
a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of any act or omission of the public entity or a public employee or any other person.
b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person.
The comment to N.J.S.A. 59:2-1 states in pertinent part:
In the absence of a comprehensive statute the New Jersey Supreme Court has developed the analytical approach that courts "ought not to be . . . asking why immunity should not apply in a given situation but rather . . . asking whether there is any reason why it should apply." B.W. King, Inc. v. West New York, 49 N.J. 318, 325, 230 A.2d 133 (1967). This approach is no longer necessary in light of this comprehensive Tort Claims Act. Rather the approach should be whether an immunity applies and if not, should liability attach. It is hoped that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities [emphasis in original]. Subsection (b) is intended to insure that any immunity provisions provided in the act or by common law will ...