On certification to the Superior Court, Appellate Division.
Handler, Wilentz, Clifford, Stein, O'Hern, Pollock, Garibaldi
The opinion of the court was delivered by
This case concerns the duty owed to the public by municipal employees charged with maintaining and repairing public streets. Defendants are all employees of the Department of Public Works of the City of Camden. They are said to have allowed a dangerous condition to persist in a public street for many months and as a result to have caused injury to plaintiff. The City has never been a party to this case, presumably because plaintiff would have been barred by the failure to serve a timely notice of claim. The trial court granted summary judgment in favor of the all defendants. The Appellate Division affirmed in an unreported opinion. This Court then granted certification. 126 N.J. 392 (1991).
On November 11, 1986, plaintiff Eddie Chatman was standing in the street on the 28th block of Benson Street in Camden, leaning over the open hood of a parked car. A 1963 Chevrolet pick-up truck coming down the street at about five miles per hour hit a large hole in the street. Its passenger side door swung open, striking Mr. Chatman in the back, causing him serious injury. The street where the accident took place was one way, residential, and had cars parked on both sides.
Affidavits submitted by nearby residents describe the hole as "very large." Photos provided of the hole after the accident and after it had been filled show that the hole ran across much of the street. The driver of the truck stated that the hole had been in the street for at least seven to eight months and that he could not have avoided it. Chatman said that he could hear cars passing over the hole from inside his home. And, as the facts of the case suggest, the hole was large enough to cause the door of the pick-up truck to swing open.
The exact nature and cause of the hole is not clear from the record. It is alternatively referred to as a large hole, a pothole, a "plumber's ditch"*fn1 and a "cave in"*fn2 Chatman maintains that calls were made to the City by John Exum, a nearby resident, at least a year before the accident, complaining about the hole on Benson Street. Although Exum has submitted affidavits attesting to his having made those calls, the City states that it has no records of them. According to defendant employees, they and the City had no actual notice of the hole on Benson Street until after the accident. The first notice they received was on December 3, 1986, roughly twenty days after the accident, when an unidentified caller complained about the hole. On the following day it was repaired by a work crew of the Camden Public Works Department.
On January 19, 1988, Eddie Chatman and his wife, Sarah, filed a complaint against the driver of the pick-up truck and various unnamed maintenance personnel. (Reference hereinafter to "plaintiff" is to Eddie Chatman.) Because they did not meet the ninety-day notice requirement of the Tort Claims Act, the Chatmans were unable to include the City of Camden in their suit. After some delay, the City provided the names of those employees in the Department of Public Works responsible for maintaining Benson Street. Those six persons were added to the complaint on July 7, 1989. They were Walter Richardson, director of the Public Works Department; Wilbert Fountain, street superintendent; Albert Benjamin, assistant street superintendent in charge of the highway department; Clarence Miller, foreman responsible for the crews that fill potholes in the City; Walter Ray, a foreman responsible for street maintenance in the area including Benson Street; and Joseph DiFante, the City street inspector at the time of the accident.
The Public Works Department is generally responsible for maintaining and securing public property in the City of Camden. The Highway Division of the Department is in turn responsible for maintaining the roughly 250 miles of streets in the city. At the time of the accident, it had a total of fifty-five employees, six of whom were assigned to repair potholes. The Division operates on the basis of a complaint system. The City receives about 300 to 400 complaints daily. Based on the severity of the complaint, crews are sent out to take remedial action or perform inspections. All complaints are reviewed daily by the head of the Highway Division, a defendant in this action.
Work crews also independently identify street problems. Sometimes they simply call in complaints when they come across potholes or dangerous conditions. On at least some occasions they immediately repair the problem. In addition, there was at least one and perhaps more than one full time street inspector at the time of the accident. Joseph DiFante, also a defendant, was responsible for driving the streets of Camden supervising and inspecting road work by private contractors. He was responsible for insuring that those contractors filled plumber's ditches and that the City in turn topped the holes off.
When asked whether any inspections were made of the area subsequent to the accident, defendant Wilbert Fountain stated that an inspection of the area had been made on March 3, 1986. That would have been more than eight months before the accident. The date, however, seems to have been an error. Fountain said they found two plumber's ditches that had been repaired on December 3, 1986. Thus, the inspection was most likely made after the accident. Aside from that inspection, there is no evidence that employees of the Department inspected the area on Benson Street.
In granting summary judgment in favor of defendants, the trial court held that plaintiff could not recover because a jury could not find that any of defendants had either actual or constructive knowledge of the hole. Further, even if a jury could have found that defendants had notice, N.J.S.A. 59:3-7 immunized defendants from suit by barring claims brought against public employees for negligent inspection. The court also found defendants immune from suit because their discretionary decisions fell within the ambit of N.J.S.A. 59:3-2d, which provides a qualified immunity for the discretionary acts of public employees. Finally, the trial court determined that N.J.S.A. 59:4-2, which provides the standards for imposing liability on a public entity for dangerous conditions on public property, did not apply to defendants. On appeal, the Appellate Division affirmed, adopting the reasoning of the trial court and ruling that plaintiff had not shown "any duty toward this condition [the hole in the street] which is not subject to the immunity provision of the Act."
In determining the issues posed by this appeal, we rely on the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (Act), which governs claims against public entities and public employees. We emphasize initially that the Act reestablishes sovereign immunity for public entities, but does not similarly shield public employees. Longo v. Santoro, 195 N.J. Super. 507, 515 (App. Div.), certif. den., 99 N.J. 210 (1984). A public entity is deemed "not liable for an injury" except as provided in the Act, N.J.S.A. 59:2-1. In contrast, a public employee "is liable for injury" except as otherwise provided. N.J.S.A. 59:3-1. Thus, the analysis for determining public-employee liability differs markedly from the analysis for determining public-entity liability. That differential treatment of public employees and entities by the Tort Claims Act reflects longstanding legal principles in the State and explains in large part the apparent anomaly that public employees may be exposed to greater liability than their public employers. While some may be surprised that public employees and employers are treated differently for tort purposes, the distinctions are readily explainable given the evolution of tort law in New Jersey. Moreover, it should be emphasized that the apparent harshness of exposing employees to greater liability under certain limited circumstances is just that -- apparent. In practice, the longstanding policy of indemnifying public employees shields them from ruinous tort penalties.
We now hold that under the Tort Claims Act and relevant common law jurisprudence public employees owe a duty to members of the public to protect against the dangerous condition of public property and that such employees are not immune from suit under the "inspection" immunities of the Act. With respect to protecting against the dangerous condition of public property, we determine that the standard of care applicable to public employees depends on the nature of their duties. If those duties are ministerial and non-discretionary, public employees may be found liable if they failed to use reasonable care. If those duties require the exercise of discretion or policy decisions, public employees may be found liable if their failure to use care was palpably unreasonable. These rules insure that innocent victims are not left with the financial burden imposed on them by other persons' negligence while at the same time safeguarding the legitimate policy-making functions of local government. We hold, also, that the notice-of-claim provisions of the Tort Claims Act do not apply to public employees and that actions against them are governed by the ordinary statute of limitations. Accordingly, we reverse the judgment below and remand the matter for trial.
The Legislature, in providing for the liability of public employees under the Tort Claims Act, determined to preserve their common law liability. The Act provides expressly that "except as otherwise provided" public employees shall be liable "to the same extent as a private person." N.J.S.A. 59:3-1(a). In doing so the act reaffirms the common law principle that with respect to private persons immunity is the exception rather than the rule. In contrast, the Legislature used exactly the opposite language to describe the treatment of public entities. They are not liable except as otherwise provided by the act. N.J.S.A. 59:2-1(a). This in turn codifies the common law principle that with respect to public entities immunity is the rule and liability the exception. The use of these two opposite formulations was no mistake of draftsmanship. Rather, it reflected the pre-Tort Claims Act treatment of public employees and employers. Moreover, the authors of the Tort Claims Act were well aware that the California law upon which they drew heavily included many situations where public employee liability was broader than entity liability. See Report of New Jersey Attorney General's Task Force on Sovereign Immunity 103-04 (1972) (discussing situations under California law in which public employee liability was broader than that of public employers).
The Tort Claims Act expresses a clear intent to preserve the common law principles governing public employee liability where they are not subjected to specific immunities provided by the Act. For example, the Act provides that the liability of a public employee is subject to any immunity of a public employee provided by law. N.J.S.A. 59:3-1(b). The use of the words "any immunity of the public employee provided by law" was clearly calculated. The Legislature expressly departed from the California Tort Claims Act, which in many respects was a model for the New Jersey Act. See, e.g., Daniel v. State, 239 N.J. Super. 563, 592 (App. Div.), certif. den., 122 N.J. 325 (1990); Burg v. State, 147 N.J. Super. 316, 322 (App. Div), certif. den., 75 N.J. 11 (1977). The corresponding subsection of the California Act, Cal. Gov't Code sec. 815 (b), states that the liability of a public entity is "subject to any immunity of the public entity provided by statute." (emphasis added.) "The New Jersey Legislature deleted the words 'provided by statute' to allow the continuing development of categorical common-law immunities." Guerriero v. Palmer, 175 N.J. Super. 1, 4 n.1 (Law Div. 1979). See also Steward v. Magnolia, 134 N.J. Super. 312, 321 (App. Div. 1975) ("the term 'immunity' as used in N.J.S.A. 59:3-1(b) relates only to those exemptions from liability for particular kinds of conduct or activities as were previously given to public employees by case law"). Hence, our search for standards governing the liability of public employees with respect to public property must take us back to common law. That search will reveal that the standards defining liability were varied. Further, at common law the liability of public employees was distinct from and often more extensive than that of their municipal employers.
Before the 1970s the legal doctrine of sovereign immunity clothed the State with absolute protection from tort suits. See, e.g., Fitzgerald v. Palmer, 47 N.J. 106 (1966). The common law afforded no similar blanket protection to public municipalities. Rather than the blanket immunity that applies to the State, liability at the municipal level of government was governed by complex and often overlapping rules of liability.
At common law, a municipality could be held liable for dangerous conditions on public property if through an officer in a position of general authority it ordered an employee to perform the negligent action. See Florio v. Jersey, 101 N.J.L. 535, 537 (E. & A. 1925); Reilly v. City of New Brunswick, 92 N.J.L. 547 (E. & A. 1919); Jersey City v. Kiernan, 50 N.J.L. 246 (E. & A. 1888). If the injury arose out of the proprietary function of the municipality, such as the use of property for the purpose of raising revenue, the municipality would be liable under the same circumstances as a private person, without regard to whether nonfeasance or misfeasance was involved. Fay v. City of Trenton, 126 N.J.L. 52 (E. & A. 1941); Martin v. Asbury Park, 111 N.J.L. 364 (E. & A. 1933); cf. B.W. King, Inc. v. West New York, 49 N.J. 318 (1967) (rejecting distinction between proprietary and governmental ownership). Further, with respect to the performance of governmental functions recovery was allowed on a showing of negligence if the injury arose from the creation of a private nuisance threatening a specific person or groups of persons. See, e.g., Casey v. Bridgewater Township, 107 N.J.L. 163 (E. & A. 1930); Pray v. Mayor of Jersey City, 32 N.J.L. 394, 396 (Sup. Ct. 1868). But if a public nuisance, such as a ditch in a public road, threatened the public in general, liability required active wrongdoing. Milstrey v. Hackensack, 6 N.J. 400, 412 (1951); Bengivenga v. Plainfield, 128 N.J.L. 418, 423-25 (E. & A. 1942); Newman v. Ocean Township, 127 N.J.L. 287 (E. & A. 1941); Lentini v. Montclair, 122 N.J.L. 355, 356 (E. & A. 1939); Fisher v. Nutley, 120 N.J.L. 290 (E. & A. 1938); Florio, supra, 101 N.J.L. at 539.
In addition, municipalities at common law were liable only if high level officers of the municipal corporation were negligent in ordering actions that were harmful. Id. at 537. If the municipality itself was found to have acted negligently, no liability would attach to the employee who simply acted on the orders of the municipality. On the other hand, the municipality would not be held liable where an employee engaged in negligence or negligently performed his or her duties. Reilly v. City of New Brunswick, 92 N.J.L. 547 (E. & A. 1919). It was not until 1960, that municipalities came to be liable for the tortious conduct of their employees under a theory of respondeat superior. McAndrew v. Mularchuk, 33 N.J. 172.
Municipal tort liability relating to dangerous street conditions reflected this doctrinal complexity. Most American courts, including New Jersey, carried over the English rule that, having constructed public streets, the municipality and its employees had a corresponding duty to maintain them in a safe condition. Municipal Corporations, Defects of Obstructions in Streets of other Public Ways, 63 C.J.S. sec. 782 (1950); McQuillan, Liability for Defective Streets, Municipal Corporations, § 54.15a (1991); Harry Stevenson, Law of Streets and Sidewalks in New Jersey, 3 Rut. L. Rev. 19 (1949). See also Bechefsky v. Newark, 59 N.J. Super. 487, 492-93 (App. Div. 1960) (responsibility of municipalities "from the earliest days to see to the maintenance and care of public thoroughfares."). However, New Jersey differed from many other jurisdictions in limiting liability for dangerous street conditions to situations involving misfeasance. Hayden v. Curley, 34 N.J. 420 (1961); Milstrey, supra, 6 N.J. at 412; Slutsky v. Bohen, 120 N.J.L. 102 (Sup. Ct. 1938); Buckalew v. Freeholders of Middlesex, 91 N.J.L. 517 (E. & A. 1918). Also, New Jersey courts generally held that absent statutory language the obligation to maintain roads in safe conditions could not be enforced through tort. Carter v. Mayor of Rahway, 57 N.J.L. 196 (E. & A. 1894) (holding that liability for failure to repair a municipal street arises only if established by a statute). Nonetheless, when the Legislature in 1933 immunized municipalities from liability in tort for injuries arising from the use of public property, it expressly exempted injuries arising from the use of streets and public ways. N.J.S.A. 18:5-30 (R.S., since repealed); Cohen v. Morristown, 15 N.J. Misc. 288 (Sup. Ct. 1937); Hammond v. County of Monmouth, 117 N.J.L. 11 (Sup. Ct. 1936). In doing so, the Legislature recognized the special nature of the duties owed to persons using public streets.
Further, although courts at common law placed great weight on the distinction between misfeasance and nonfeasance, they also questioned its coherence. See, e.g., Hammond v. County of Monmouth, supra, 117 N.J.L. at 12 ("In reason and logic, it is difficult to understand why there should be any distinction between passive and active wrongdoing."). The criticism of the distinction between misfeasance and nonfeasance increased in the 1960s, Jackson v. Hankison, 51 N.J. 235 (1968), and courts began to emphasize an alternative dichotomy for establishing liability, namely, the distinction between ministerial and discretionary acts. See Visidor Corp. v. Borough of Cliffside Park, 48 N.J. 219 (1968), cert. den., 386 U.S. 972, S. Ct...., L. Ed. (1969); Bergen v. Koppenal, 52 N.J. 478 (1968); Amelchenko v. Freehold Borough, 42 N.J. 541 (1964).
Historically, the tort exposure of municipal employees has not only been distinct from that of their municipal employers, it has been broader. At common law public employees were liable for injury caused by their acts "to the same extent as private persons," unless granted immunity. Kisielewski v. State of New Jersey, 68 N.J. Super. 255, 262 (App. Div. 1961); Florio, supra, 101 N.J.L. at 539. Public employees were liable not only for negligent actions in the course of their employment but also for negligent performance of their municipal duties. Milstrey v. Hackensack, supra, 6 N.J. 400; Florio, supra, 101 N.J.L. at 540. However, like the municipalities for which they worked, public employees were liable only if their negligence involved active wrongdoing. See Milstrey, supra, 6 N.J. at 412; Harris v. State, 118 N.J. Super. 384 (App. Div. 1972); Czyzewski v. Schwartz, 110 N.J. Super. 255 (App. Div. 1970); Kisielewiski, supra, 68 N.J. Super. 255; Florio, supra, 101 N.J.L. at 539. Further, as mentioned, public employees could be found liable in circumstances that would not result in municipal liability. Reilly v. City of New Brunswick, supra, 92 N.J.L. 547.
Moreover, when the Legislature provided immunity to municipalities in 1933 for accidents arising from the use of public grounds, buildings, and structures, it created an additional distinction between the liability of employees and that of municipal entities. That statute did not confer a similar immunity on municipal employees. L. 1933, c. 460; N.J.S.A. 18:5-30 (R.S., since repealed). In Falcone v. Board of Educ. of Newark, 17 N.J. Misc. 75 (Cty. Ct. 1939) the court explained that the differential treatment of municipal employees and entities was due to "the legislative belief that public policy would be better served by interposing responsibility for wrongful injuries to the person, solely upon the individuals who committed the wrongful acts and not also upon the public body itself." Id. at 76.
We can thus see that at common law public employees were exposed to liability more extensively than were their municipal employers. Further, in the years immediately proceeding the passage of the Tort Claims Act in 1972, the common law dealing with public employee and municipal liability was quite complicated, marked by great uncertainty, and in tremendous flux. In 1968 the Supreme Court described municipal tort law as "going through a metamorphosis." Miehl v. Darpino, et al., 53 N.J. 49, 52 (1968). The increasingly suspect but not fully abandoned distinction between nonfeasance and misfeasance had determined the liability of public employees for most of the century. See Jackson v. Hankison, supra, 51 N.J. 235 (criticizing act/omission distinction). Many of the traditional doctrines that had structured earlier case analysis had been expressly rejected. Other important rules had come under heavy criticism or been limited to narrow fact situations. And new substitutionary rules were not fully elaborated. See, e.g., B.W. King, supra, 49 N.J. at 324-35. Courts had begun to emphasize the distinction between ministerial and discretionary duties, see Visidor Corp. v. Borough of Cliffside Park, supra, 48 N.J. 219; Bergen v. Koppenal, supra, 52 N.J. 478, but had not used it to analyze the liability of municipal employees.
This backdrop serves to sharpen the effect of the Tort Claims Act on the prior treatment of municipal and public employee liability. The Act in significant ways narrows the scope of that liability for municipalities. Conversely, the Act significantly expands the liability of public employees. We redirect our attention to the specific issues posed by this appeal from that perspective.
The trial court believed that one aspect of plaintiff's cause of action against several of the employees was negligence arising out of a duty to inspect the public Streets. The court determined that the public employees were immune with respect to conduct relating to a breach of the duty to inspect the property. The basis for that determination was N.J.S.A. 59:3-7, which in part, provides:
A public employee is not liable for injury caused by his failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property.
The duty to inspect as an incident of the duty-to maintain and assure the safeness of public property is distinct from the duty to inspect that is part of the regulatory authority of public employees over private property. The statute thus also provides "that nothing in this section shall exonerate . . . a public employee from liability for failure to protect against a dangerous condition as provided in chapter 4." N.J.S.A. 57:3-7. The court in Karczewski v. Nowicki, 188 N.J. Super. 355 (App. Div. 1982), held that N.J.S.A. 59:3-7 does not bar claims of negligent inspection brought against public employees when the accident is caused by a failure to protect against a dangerous condition of public property.
The legislative history of the Act supports that interpretation. The Legislative Comments indicate that the inspection immunity of N.J.S.A. 59:2-6 does not absolve municipalities or their employees from the duty to inspect public property for dangerous conditions. Rather, the immunity is designed to encourage inspection activities that benefit the public generally. The Comments state that "the inclusion of the reference to Chapter 4 is intended to indicate that this immunity shall not apply when dangerous conditions on public property are involved." Legislative Comment on N.J.S.A. 59:2-6. Although the commentary does not explain the purpose of N.J.S.A. 59:3-7, it does explain N.J.S.A. 59:2-6, which grants the same immunity to public entities. Because the sections contain almost identical language, the comment to N.J.S.A. 59:2-6 can guide this Court in discerning the scope of N.J.S.A. 59:3-7. See Longo v. Santoro, supra, 195 N.J. Super. 507, 515 (court interpreted N.J.S.A. 59:3-2, the provision granting discretionary immunity to public employees, by reference to cases construing N.J.S.A. 59:2-3, the parallel provision applicable to the public entity). Chapter four defines public property as "real or personal property owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity." N.J.S.A. 59:4-1c; see Cadmus v. Long Branch Board of Educ., 155 N.J. Super. 42, 48 (Law Div. 1977) ("It is only with respect to public property that the Tort Claims Act evinces any legislative intention that there be imposition of liability for omission in inspection (or for negligent inspection)."); cf. Bombace v. City of Newark, 125 N.J. 361 (1991) (indicating immunity for negligent housing code inspection).
Because the Legislature patterned the New Jersey Tort Claims Act on the California Tort Claims Act, the California statute is instructive. See, e.g., Daniel v. State, supra, 239 N.J. Super. at 592; Burg v. State, supra, 147 N.J. Super. at 322. The California counterpart to N.J.S.A. 59:3-7 provides that "[a] public employee is not liable for injury" with respect to deficient inspections relating to the safeness of non-public property. Cal. Claims and Actions Code § 821.4 (West 1980) (California Act). The definition of public property under the California Act contains the precise terminology used in the New Jersey Act. See N.J.S.A. 59:4-1c. Hence, the policy expressed by the California Act to apply the inspection immunity only to non-public property mirrors a similar policy implicit in the New Jersey Act.
Thus, when the public entity neither owns nor controls the property, N.J.S.A. 59:3-7 bars claims predicated on negligent inspection. On the other hand, because the public entity's responsibility for the care of public property is direct, nondelegable, and exclusive, there is no independent need to encourage the proper discharge of that duty. Hence, the Legislature reasonably chose to allow suits for negligent inspection when the public entity owns or controls the property that gives rise to injury. See Karczewski, supra, 188 N.J. Super. 355; Kenney v. Scientific, Inc., 204 N.J. Super. 237 (App. Div. 1985) (N.J.S.A. 59:2-6 barred plaintiff's claim of negligent maintenance against public entity because public entity did not own or control the property). Inasmuch as "a road or highway falls within the definition of public property," Johnson v. Essex County, 223 N.J. Super. 239, 256 (App. Div. 1987), inspections related to public ways would not be accorded immunity.
We conclude that N.J.S.A. 59:3-7 does not immunize defendants from liability stemming from negligent inspection of public streets.
The central remaining issue is the duty that public employees owe the public with respect to the dangerous condition of public property. The Tort Claims Act expressly provides that public entities are liable for injuries caused by dangerous conditions on public property, but only if the entity's action or failure to act was palpably unreasonable. N.J.S.A. 59:4-2. The Legislative Comments indicate that the section follows the rule articulated in Bergen v. Koppenal, supra, 52 N.J. at 480, that "when a public entity exercises or fails to exercise its discretion in determining what action should or should not be taken to protect against the dangerous condition that judgment should only be reversed where it is clear to the court that it was palpably unreasonable."
The Act, however, contains no corresponding provision dealing with the liability of public employees for dangerous conditions on public property. The one reference to dangerous conditions on public property as they relate to public employees is ambiguous. To reiterate, that reference, in chapter 3, N.J.S.A. 59:3-7, states that the immunity for negligent inspections shall not exonerate a public employee from liability for failure to protect against a dangerous condition as provided in chapter 4, N.J.S.A. 59:4-1 to 4-9.
One might argue that the immunity exception of section 59:3-7, by reference, incorporates into the public employee chapter the liability of chapter 4, and, by implication, its palpable unreasonableness standard of care. See Karczewski, supra, 188 N.J. Super. at 360. The negligent inspection immunity of N.J.S.A. 59:3-7, however, is one of a number of related provisions that grant specific immunities to both employees and entities. Its primary function is to confer immunity, not to establish liability. The legislative decision to exclude any express section on the liability of public employees with respect to dangerous conditions on public property was obviously calculated to perpetuate common-law liability. In contrast, the inclusion of the express reference to chapter 4 in the immunity provisions for negligent inspection was intended to do no more than limit the scope of that immunity.
That interpretation comports with the basic structure of the Tort Claims Act. The Act did provide common treatment of public entities and public employees in some respects. Thus, it abandoned the active wrongdoing standard, stating unequivocally that employees and entities are responsible for both their acts and their omissions. N.J.S.A. 59:2-2 and :3-1. In addition, the Act enhanced the immunity for discretionary decisions, providing that both municipalities and employees would be ...