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Sczyrek v. County of Essex

August 10, 1999

CHERYL SCZYREK, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF JOHN SCZYREK, JR., DECEASED, CHERYL SCZYREK, INDIVIDUALLY AND SHANNON SCZYREK, BY HER GUARDIAN AD LITEM, CHERYL SCZYREK, PLAINTIFFS-APPELLANTS,
v.
COUNTY OF ESSEX, ESSEX COUNTY SHERIFF'S DEPARTMENT, ESSEX COUNTY PROBATION DEPARTMENT, AND ESSEX COUNTY PROSECUTOR'S OFFICE, DEFENDANTS-RESPONDENTS, EDDIE LEE OLIVER A/K/A/EDDIE LEE PHILSON A/K/A DAMANY KAMOU, TENESHA JAMES, AND STATE OF NEW JERSEY, DEFENDANTS.



Before Judges Skillman, P.G. Levy and Lesemann.

The opinion of the court was delivered by: Lesemann, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 7, 1998

On appeal from the Superior Court of New Jersey, Law Division, Essex County.

This appeal arises from the tragic killing of a police officer in the Essex County Court Complex. The suit alleging negligence by the county authorities was dismissed by summary judgment based primarily on immunity provisions in the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:14-4. *fn1 Because we are satisfied that the immunity provisions of the Act, particularly N.J.S.A. 59:5-4, do apply and require dismissal of the complaint, we affirm.

On June 3, 1993, John Sczyrek, Jr., a Newark police officer, was about to testify in a criminal trial in Essex County. While he was waiting in the public area of the court house, he was shot and killed by one Eddie Lee Oliver, the brother of the man on trial, against whom Sczyrek was about to testify. After the shooting, Oliver fled through the building, shot and wounded a sheriff's officer, but was apprehended shortly after he left the court house complex.

At the time of the shooting, the Essex County Security Plan, which had been adopted in 1990 and was modeled after the New Jersey Supreme Court Security Plan, was in place and operating. The plan had been approved by the Essex County Assignment Judge and thereafter by the New Jersey Supreme Court. It called for electronic security searches of persons entering the building, who would pass through x-ray machines and magnetometers. The machines also examined packages entering the building, but the plan contained a significant, and in this case fatal, exception: county employees, lawyers and jurors were permitted to enter without passing through the electronic security devices.

The gun which killed Officer Sczyrek was smuggled into the court complex by Tenesha James, a clerical employee with the Essex County Probation Department. After James carried the gun into the building, she met Oliver at an agreed location, and passed the gun to him. Oliver then used it to shoot Officer Sczyrek.

Plaintiff's complaint was based in part on the alleged inadequacy of the security system. *fn2 It also alleged, however, that the County had been negligent in hiring James and was negligent as well in failing to respond to warnings of a pending plan to kill both Sczyrek and the Judge who was presiding over the trial.

Those warnings were allegedly given to the prosecutor's office by an inmate in the Essex County Jail, Julius Brown. *fn3 Brown said that while he was in the jail, another inmate, Gerald Jones, told him that a Newark police officer (who he identified as "Sczy,") as well as the trial Judge presiding over the case against Oliver's brother, were going to be murdered. Brown claimed that between a few days and a week before the shooting, he wrote to the Essex County Prosecutor's Office advising of that plot. He received no response and within a few days thereafter he wrote a second letter. He said that in the letters he described the matter as "an emergency" and asked to speak to an investigator because an inmate in the jail was "talking about murdering . . . a Newark police officer and also murdering a Judge." He said he provided the name of the Judge, but was able to identify the officer only as "Sczy." Brown said that in the letters he gave his full name and cell number.

Brown said he also received no response to his second letter and, therefore, within a few days after he sent that letter, he called the prosecutor's office to deliver the message. He said he made several collect telephone calls. On each occasion he told the person answering the phone that it was an emergency call and he wanted to speak to a prosecutor. He said that on each occasion the office accepted the call but invariably placed him on "hold," or told him to wait for a period of time. Each time, he said, he was eventually disconnected and was unable to speak to anyone. He said that in total he made "anywhere from 8 to 10, to 12, to 15" calls. The calls were during the business day and "4 or 5 times" he was able to tell the person answering the phone that there was going to be a shooting in the court house. On those occasions he gave his name and cell number to the operator but he never received any response.

The Law Division granted defendants' motion for summary judgment dismissing all of plaintiffs' claims. It did so based on the immunity provisions in the Tort Claims Act together with its finding that plaintiffs' claim of negligence in the hiring and training of James had no support in the record. *fn4 We shall deal first with the claim based on the allegedly inadequate security plan and then with the claim of negligence stemming from the asserted non-response to Brown's warnings.

I.

N.J.S.A. 59:5-4, a part of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:11-1, provides that, "Neither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service." That provision compels a dismissal of plaintiffs' claim based on defendants' adoption of an allegedly inadequate security plan. As this court made clear in Suarez v. Dosky, 171 N.J. Super. 1 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980), the decision complained of, which ...


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