On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Pressler, Shebell and D'Annunzio. The opinion of the court was delivered by Shebell, J.A.D.
This is an appeal from the grant of summary judgment dismissing an action brought by plaintiff, C.J., a former member of the New Jersey National Guard, against the New Jersey Department of Defense, New Jersey Militia, Army National Guard, and Sergeant Robert G. Vuinovich. We affirm.
Plaintiff alleged that in 1977 he became a member of the New Jersey National Guard (Guard), and that he re-enlisted several times, ultimately extending his service through November of 1990. In 1987 or 1988, plaintiff was ordered by the Guard to undergo a blood test for antibodies to HIV as part of a mandatory testing program.
On March 25, 1988, plaintiff reported for duty at the Teaneck Armory with Company C, 104th Engineer Battalion, and was transported to West Point, New York, for weekend exercises. Late that evening, at West Point, defendant, Sergeant Vuinovich, called roll during Company formation, but did not call plaintiff's name. When plaintiff inquired why his name had not been called, the sergeant allegedly responded in front of the assembled company members "you have AIDS and you are discharged." The mandatory testing had revealed that plaintiff's blood was positive for HIV antibodies. He, however, maintained he was not ill and was able to perform all of his Guard duties. Plaintiff alleged he had received no prior notice of his discharge, although the Guard contends that it forwarded a letter notifying him that he would be transferred to reserve status effective March 8, 1988.
Plaintiff alleged that as a result of Vuinovich's statement, plaintiff spent the night in a tent isolated and shunned, until transported back to New York City the next day. He alleges he has since been excluded from all Guard activities, avoided by friends, and that because of Vuinovich's statement he believed that he had AIDS and was in imminent danger of death. He maintained that after his return home he continued in fear of imminent death and attempted suicide. Subsequently, plaintiff sought and received advice in a public clinic regarding his health and his HIV antibody status.
Although he cannot satisfy the $1,000 medical expense threshold requirement, plaintiff seeks recovery under the New Jersey Tort Claims Act (NJTCA) for damages for emotional distress only. N.J.S.A. 59:9-2; see Ayers v. Jackson Tp., 106 N.J. 557, 577, 525 A.2d 287 (1987). Plaintiff urges that under the provisions of N.J.S.A. 59:3-14 the willful nature of Vuinovich's conduct and the fact that his statements were outside the scope of his official duties require that his damages claim not
be barred by the NJTCA.*fn1
N.J.S.A. 59:3-14 provides:
a. Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
b. Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
To support his position, plaintiff relies upon Palmentieri v. Atlantic City, 231 N.J. Super. 422, 555 A.2d 752 (Law Div.1988). In Palmentieri, an Atlantic City councilman helped organize a "Black Unity" rally, which was sponsored by a private group of citizens. "Approximately 10 to 15 minutes after the rally, [the councilman] was interviewed by . . . a reporter[,]" and criticized an Afro-American casino executive stating "we feel [he] is as racist as the most bigoted white man walking on the face of the earth." Id. at 427. The court held that these comments were not performed within the scope of the councilman's public duties, stating:
This statement, however, was a purely personal vilification of a private individual. A public official is generally liable for defamatory statements unless made in discharging his official duties. McQuillan, Municipal Corporations (3 ed.), § 12.211d. Dorn's words may have been sought out by the Press only because he was a city councilman, but it stretches the imagination to believe that his statement about [the casino executive] in any way expressed a policy or rationale, fulfilled or discharged a duty, or furthered an interest of the City of Atlantic City. [ Id. at 438-39, 555 A.2d 752].
Accordingly, the Law Division judge concluded that the city was not permitted to indemnify or defend the councilman in the defamation action. Id. at 442, 555 A.2d 752.
In this case, plaintiff argues that the way in which Sergeant Vuinovich informed him that he had been discharged because of his HIV status demonstrates it was a malicious act, clearly outside the ...