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Kemp by Wright v. State

January 14, 1997

DELISHA KEMP, A MINOR, BY HER PARENT AND NATURAL GUARDIAN, DEBRA WRIGHT, AND DEBRA WRIGHT, IN HER OWN RIGHT, PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY, COUNTY OF BURLINGTON, RIVERSIDE BOARD OF EDUCATION, RIVERSIDE HIGH SCHOOL, DEFENDANTS-RESPONDENTS, AND JOHN DOES MANUFACTURERS (1-10), RICHARD ROES DISTRIBUTORS (1-10); AND ROBERT DOES (1-10) (FICTITIOUS NAMES) INDIVIDUALLY, JOINTLY, SEVERALLY, AND/OR IN THE ALTERNATIVE, DEFENDANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 286 N.J. Super. 549 (1996).

The opinion of the Court was delivered by Coleman, J. Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi and Stein join in Justice COLEMAN's opinion.

The opinion of the court was delivered by: Coleman

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Delisha Kemp, et. al. v. State of New Jersey, et. al. (A-41-96)

Argued October 21, 1996 -- Decided January 14, 1997

Coleman, J., writing for a unanimous Court.

The primary issue in this appeal is whether either N.J.S.A. 59:6-4 of the Tort Claims Act ("TCA") or N.J.S.A. 26:11-12 (now repealed) immunizes defendants from liability for injuries caused by the administration of a rubella vaccine to a pregnant high school student.

During the spring of 1975, due to an outbreak of measles and rubella, Burlington County health officials, with the cooperation of the Riverside Board of Education and the assistance of the New Jersey Department of Health, organized and operated a free immunization clinic at Riverside High School. Plaintiff, Debra Wright, a senior at the high school, was given a rubella vaccine at the clinic on April 18, 1975. A pre-vaccination screening examination of participants in the vaccination clinic was conducted, during which it was defendants' standard practice to counsel all females of childbearing age about the risks of vaccination and to refrain from inoculating any female who was pregnant or sexually active. Wright, who was pregnant when she received the vaccine, subsequently gave birth to Delisha Kemp, who was born with congenital rubella syndrome, as a result of which she was afflicted with severe birth defects requiring continuing medical treatment.

The complaint, filed in October 1992, alleged that defendants were negligent in failing to ascertain whether Wright was pregnant or sexually active prior to her vaccination and that Wright was not warned that she should not receive the vaccine because an unborn child could suffer severe birth defects from the vaccine.

Defendants moved for summary judgment on several grounds, including immunity under N.J.S.A. 59:6-4 (excepting a public entity from the grant of absolute immunity from liability for the failure to perform an examination where the public entity performed an examination or diagnosis for the purpose of treatment) and N.J.S.A. 26:11-12. (granting immunity to county boards and its employees and agents for "any act done or omitted in good faith and with ordinary discretion"). The trial court denied summary judgment, finding that neither N.J.S.A. 59:6-4 nor N.J.S.A. 26:11-12 immunized defendants from liability.

The Appellate Division reversed, concluding that the Legislature intended to exclude from the broad category of treatment all but the kind of ordinary medical examinations and treatments rendered by a doctor -- not routine immunizations such as the one at issue. The Appellate Division also found that the public defendants were entitled to immunity under N.J.S.A. 26:11-12 because the statute was not repealed until after the date of the alleged negligence. The court rejected both the implied and the retroactive repealer doctrines as a basis to deny immunity.

The Supreme Court granted Wright's petition for certification.

HELD : Defendants were not entitled to summary judgment on the basis of the absolute immunity provided by N.J.S.A. 59:6-4 as the pre-vaccination examination in this case was an examination for the purpose of treatment, and therefore falls within the exception to the TCA grant of immunity; N.J.S.A. 26:11-12, which provides for the general grant of "good-faith immunity" for "any act" of a county board or its agents, is irreconcilably inconsistent with the TCA and deemed to have been impliedly repealed in 1972 when the TCA was enacted.

1. The plain meaning of "treatment" encompasses the administration of a vaccine and the fact that it is given in a public clinic, rather than in the privacy of a doctor's office, does not change the essential character of the ordinary act of administering a vaccine. (pp.6-9)

2. Where, as here, the purpose of the screening examination is to determine whether to implement the intended treatment, and not merely to determine whether Wright had the measles, the screening examination was for the specific purpose of treatment and, therefore, does not fall within the group of public health examinations exempt from liability underN.J.S.A. 59:6-4. (pp. 10-12)

3. The fact that the TCA did not expressly enumerate N.J.S.A. 26:11-12 in its repealer provision does not foreclose the possibility that the TCA repealed N.J.S.A. 26:11-12 by implication if the statute is inconsistent with other provisions of the TCA. (pp. 13-14)

4. When a subsequent enactment covering a field of operation coexistent with a prior statute cannot be given effect while the prior law remains in existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails, and the prior law yields to the extent of the conflict. (pp. 14-15)

5. N.J.S.A. 26:11-12's grant of only qualified immunity for discretionary acts is clearly inconsistent with the TCA's general discretionary immunity provisions, which provide for absolute immunity, and is further inconsistent with the TCA treatment of ministerial acts. (pp. 16-18)

6. Because N.J.S.A. 26:11-12 grants only qualified immunity, while the TCA provides a general grant of absolute immunity, N.J.S.A. 26:11-12 simply cannot coexist with the TCA without undermining the express legislative intent in the TCA to provide a general grant of absolute immunity for the discretionary acts of public entities. (pp. 18-20)

7. The express repeal of N.J.S.A. 26:11-12 in 1976 should be accorded little weight in the analysis of whether N.J.S.A. 26:11-12 was previously impliedly repealed by the TCA. (pp. 20-22)

Judgment of the Appellate Division is REVERSED.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion.

The opinion of the Court was delivered by

COLEMAN, J.

The primary issue in this appeal is whether either of two statutory provisions, N.J.S.A. 59:6-4 of the Tort Claims Act ("TCA") or N.J.S.A. 26:11-12 (now repealed), immunizes defendants from liability for injuries caused by the administration of a rubella vaccine to a pregnant high school student. The Appellate Division, in a published opinion, found the defendants were immune under both statutes. 286 N.J. Super. 549, 670 A.2d 31 (1996). We granted certification, 144 N.J. 586, (1996), and now reverse.

I

During the spring of 1975, there was an outbreak of measles and rubella that reached near epidemic proportions in Burlington County and in other areas of the State. Burlington County health officials, with the cooperation of the Riverside Board of Education and the assistance of the New Jersey Department of Health, organized and operated a free immunization clinic at Riverside High School to vaccinate students. Plaintiff Debra Wright, a senior at the high school, was given a rubella vaccine at the clinic on April 18, 1975.

The product information in 1973 and 1974 for the live attenuated rubella vaccine specifically recommended that pregnant women should not be given the vaccine and that women of child-bearing age should not be considered for vaccination unless there was no possibility of pregnancy ...


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