On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Shebell, Long and Landau. The opinion of the court was delivered by Shebell, P.J.A.D.
[268 NJSuper Page 519] Plaintiffs, Matthew Benjamin, an infant by his Guardian ad Litem, James H. Benjamin, and James H. Benjamin, individually, appeal the dismissal on summary judgment of their complaint against defendant, the New Jersey Firemen's Home (N.J.F.H.). Plaintiffs sued for injuries sustained by Matthew Benjamin when he was bitten on the upper arm by the dog of Jeanette and James Corcoran while on the grounds of N.J.F.H. Jeanette and James Corcoran were named as defendants when the action was instituted on October 17, 1990. On February 21, 1992, N.J.F.H. filed a motion for summary judgment, which plaintiffs opposed. On May 22, 1992, the Law Division Judge heard oral argument after which he granted the N.J.F.H.'s motion for summary judgment. We denied plaintiff's motion for leave to file an interlocutory appeal by Order dated June 23, 1992. On August 31, 1992, an Order of
Dismissal, without prejudice, was entered as to the Corcorans. Plaintiffs then appealed as of right.
The facts are not complicated. On December 30, 1989, Matthew Benjamin, age nine, was sleigh riding on the grounds of N.J.F.H. in Boonton. He was in an area near the nursing home building and its driveway when he was bitten on the upper arm by a dog that had been purchased as a family pet by James Corcoran in 1985.
Mr. Corcoran had been the assistant superintendent of the N.J.F.H. since 1980. He lived in a house on the premises, rent free, with his wife, Jeanette, who was the director of nursing of the N.J.F.H. Mr. Corcoran died in 1988, prior to this incident. His wife continued to work at the N.J.F.H. and to live in the house on the grounds with the dog. There were two reported previous dog bites by the Corcoran dog. On one occasion the dog bit a child. On a second occasion the dog bit an adult. One of the incidents was on the public sidewalk adjacent to the N.J.F.H. premises, and the other was not near the premises. Both victims were treated in the emergency room at St. Clare's Hospital in Denville. These events took place prior to Mr. Corcoran's death.
Plaintiffs argue that the trial Judge erred in granting summary judgment to the N.J.F.H. Plaintiffs contend that the N.J.F.H. is not a public entity exempt from tort liability under Title 59. They assert that even if the N.J.F.H. is a public entity, a jury could have found that the Corcorans were negligent in not removing the dangerous dog from the grounds or taking precautions to protect others from the dog, and that this negligence was imputable to N.J.F.H. as their employer based upon vicarious liability. N.J.S.A. 59:2-2. Plaintiffs also maintain that the N.J.F.H. is not immune from liability under the Landowner's Liability Act, N.J.S.A. 2A:42A-2 to -8, since the property is located in a densely-populated area.
Defendant N.J.F.H. argues that the trial Judge properly held that it is a public entity and that it was not vicariously liable because ownership of the dog was not within the scope of the
Corcorans' employment. N.J.F.H. also contends that the trial Judge properly found that the N.J.F.H. was immune from liability under the Landowner's Liability Act because Matthew was sleigh riding on the property, thereby using the property for recreational purposes.
Summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment as a matter of law." R. 4:46-2; Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954). The standard of review on appeal is the same. Therefore, we must decide whether there was a genuine issue of fact, and if there was not, whether the Law Division Judge's ruling on the law was correct.
The trial Judge granted summary judgment to the N.J.F.H. after determining that the N.J.F.H. is a public entity immune from tort liability. The trial Judge found that the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, does provide immunity, stating:
[T]he question here is; is this that kind of an organization, for want of a better word, by virtue of the statute which was originally enacted as I interpreted it back in 1898. And the language in 30:7-1 it says that the Board of Managers of the New Jersey Firemen's Home is hereby constituted as an agency. The Board of Managers is constituted an agency within the state department institution. So you see, I make that emphasis because they're speaking of this group of people which is now a part of the New Jersey State Department of Institution Agency, cabinet level executive office and so on. I think that is very clear and that is the intention of the Legislature it would be part of the state government.
Public entity includes "the State, and any county, municipality, district, public authority, public agency, and any other political subdivision or public body in the State." N.J.S.A. 59:1-3 (emphasis added). The comment to this section states:
The definition of "Public Entity" provided in this section is intended to be all inclusive and to apply uniformly throughout the State of New Jersey to all entities exercising governmental functions. The intent of this provision is to provide a basis upon which an established body of law may be uniformly applied. For the purpose of establishing liability in the State of New Jersey this definition is
specifically intended to include such entities as the New Jersey Highway Authority and Turnpike Authority and Rutgers the State University.
[ Comment N.J.S.A. 59:1-3.]
The Legislature in its session of 1898 enacted Chapter 127, "authorizing a firemen's home for the aged, indigent and disabled firemen of this state, and providing for the regulation and government of such home." The purchase of the land and erection of the building were to be financed by $75,000 from the two percent tax on foreign (out-of-state) fire insurers. L. 1898, c. 127. In its session of 1899, the Legislature enacted Chapter 20, making further provision for the purchase of property for the home, and granting all real and personal property of the "board of managers of the New Jersey firemen's home" an exemption "from taxation, state or municipal, under any law of this state." L. 1899, c. 20.
The laws pertaining to the N.J.F.H. are codified in Title 30, Institutions and Agencies, Subtitle 5, Other Institutions in General, Chapter 7, New Jersey Firemen's Home. Under N.J.S.A. 30:7-1, the N.J.F.H. is governed by a board of managers, elected for a four-year term, and who serve without compensation. The board includes the President of the New Jersey State Firemen's Association, the Governor of the State, the State Commissioner of Banking and Insurance, the State Comptroller, one member elected from each of the twenty-one counties, and one additional member who must be a paid fireman elected from Essex and Hudson County. N.J.S.A. 30:7-1. The elected members are elected by the New Jersey State Firemen's Association. N.J.S.A. 30:7-1.
Under N.J.S.A. 30:7-3, the board of managers may appoint a chairman, secretary, treasurer, and superintendent. The superintendent appointment is subject to the governor's approval. N.J.S.A. 30:7-3. One of the managers must visit the N.J.F.H. at least once every two weeks, and the board must visit at least once in every three months. N.J.S.A. 30:7-9. The board must file an annual report to the governor. N.J.S.A. 30:7-10. To provide the means necessary to sustain the N.J.F.H., the managers may
receive bequests or devises and other voluntary contributions. N.J.S.A. 30:7-11.
The statute provides "[t]he board of managers of the New Jersey Firemen's Home is hereby constituted an agency within the State Department of Institutions and Agencies . . . ." N.J.S.A. 30:7-1 (emphasis added). However, plaintiffs, in their brief, point to several examples of contrasting language in the statutes governing other public entities. An example they give is the New Jersey Turnpike Authority, governed by N.J.S.A. 27:23-3, which reads as follows:
(A) There is hereby established in the State Highway Department a body corporate and politic, with corporate succession, to be known as the "New Jersey Turnpike Authority." The authority is hereby constituted an instrumentality exercising public and essential governmental functions, and the exercise by the authority of the powers conferred by this act in the construction, operation and maintenance of turnpike projects shall be deemed and held to be an essential governmental function of the State.
The statute goes on to say that each member of the authority must be appointed by the Governor, with the advice and consent of the Senate. N.J.S.A. 27:23-3(B).
Another public entity with differing statutory language is the New Jersey Sports and Exposition Authority, which is governed by N.J.S.A. 5:10-4. The language is as follows:
The authority is hereby constituted as an instrumentality of the State exercising public and essential governmental functions, and the exercise by the authority of the powers conferred by the act shall be deemed and held to ...