This opinion is an elaboration of a ruling made by the court during the trial of this matter.*fn1
The question presented for the court's determination is whether defendant, New Jersey Transit Rail Operations, Inc., is liable for the negligent hiring of a transit police officer who is alleged to have assaulted a passenger on a New Jersey Transit train.
Plaintiff contends that he was assaulted by defendant George Fountain (Fountain), a New Jersey Transit police officer, while a passenger on a train. Plaintiff alleges that defendant, New Jersey Transit Rail Operations, Inc., (Transit), is liable for the actions of Fountain because it negligently hired him. Specifically, plaintiff contends that Transit knew, or should have known, that Fountain had vicious propensities. In this regard plaintiff has proffered a letter from the police academy, which indicates that Fountain has a tendency to engage in assaultive conduct. He further proffers documents from the Bergen County Sheriff's office, Fountain's prior employer, showing that Fountain was disciplined on two occasions for assaultive conduct. Transit responds that the sovereign immunity statute insulates it from liability for an employee's willful acts, and for the tort of negligent hiring.
N.J.S.A. 59:2-2 provides:
a. 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.
N.J.S.A. 59:2-10 provides:
A public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice or willful misconduct.
Transit contends that this is not a negligence case but one involving willful conduct and that it therefore cannot be liable for Fountain's conduct. As authority for its position, Transit cites the case of McDonough v. Jordan, 214 N.J. Super. 338 (App. Div. 1986). In that case, the Appellate Division, addressing similar facts, held that a municipality is not liable for the tortious conduct of a police officer. The court cited N.J.S.A. 59:2-10, and stated:
The language of the statute is clear. When the municipal employees committed the intentional torts, respondeat superior did not apply. The city was not vicariously liable in such circumstances. [At 350]
Transit is obviously correct in its assertion that a sovereign entity cannot be liable for the willful acts of its employees and thus in this case, Transit is not liable for the acts of Fountain. However, the McDonough case is not applicable to the facts of this case, because what plaintiff alleges is that Transit is liable to it not because of the willful conduct of Fountain but because of the negligent act of one of its employees in hiring Fountain.
New Jersey recognizes the tort of negligent hiring. In DiCosala v. Kay, 91 N.J. 159 (1982), the Court recited at length section 213 of the Restatement, Agency 2d which discusses the liability of a principal for the dangerous acts of his agent, concluding:
In short, persons must use reasonable care in the employment of all instrumentalities - people as well as machinery - where members of the public may be expected to come into contract with such instrumentalities. [At 171]
It is Transit's contention however that even if there were a negligent hiring, Transit still cannot be liable to plaintiff because it is immune by virtue of N.J.S.A. 59:2-3 (discretionary ...