Before Judges Pressler, Landau and Ciancia.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 1999
On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Ruth M. Leibig, a seventy-eight year old woman who was active and self-sufficient, lived by herself in an apartment building owned and operated by defendant Somerville Senior Citizens Housing, Inc. Ms. Leibig had lived in the apartment complex since 1985. On May 16, 1994, she was discovered in her bathtub with her arm wedged between the bathroom wall and a grab bar mounted on the wall. She was conscious and told her rescuer that she had been stuck in the bathroom for three days. Her arm was swollen and a subsequent medical exam diagnosed "gangrene secondary to compression of artery." Ms. Leibig went into a coma and died two days after she had been found in her bathroom. The cause of death was described as septicemia as a consequence of gangrene.
A complaint was filed on behalf of decedent and her estate (plaintiff) alleging in relevant part negligent design, construction, and installation of the grab bar and negligent supervision of Ms. Leibig by defendant. A wrongful death count was also brought but was subsequently dismissed on defendant's motion for summary judgment. That dismissal is not challenged in this appeal.
Defendant's answer set forth eighteen separate defenses including immunity under the Tort Claims Act. N.J.S.A. 59:1-1 et seq. Defendant moved for summary judgment, and plaintiff cross-moved for judgment "on a product liability theory." The motion Judge subsequently found that defendant was entitled to derivative immunity pursuant to the Tort Claims Act and dismissed the complaint. Plaintiff's cross-motion was denied, as was a subsequent motion for reconsideration. We now reverse the grant of summary judgment in favor of defendant, affirm the denial of plaintiff's cross-motion, and reinstate plaintiff's complaint.
Initially we note that our review of this appeal was hampered by the attorneys' failure to set forth fact statements supported by references to the appendix and transcript as required by R. 2:6-2(a)(4). Indeed in numerous instances we were unable to find supporting documentation for the asserted facts. That being said, we are able to discern the following.
The heart of plaintiff's theory of liability was that the bathroom grab bar, as installed, left too much space between the bar and the wall, thereby creating a risk of harm such as that visited upon decedent. In response, defendant claimed immunity from suit based on N.J.S.A. 59:4-6 which provides:
Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.
Defendant, a nonprofit housing sponsor and not a public entity itself, claimed it was entitled to derivative immunity. Its theory was that when the housing complex was built in 1977 it was funded by the New Jersey Housing Mortgage Finance Agency (HMFA), and that entity controlled the design and construction of the building. Assertedly the grab bars were part of the plans and had been installed as part of the original construction in all units in the same manner. Defendant characterizes itself as an independent contractor that had no choice but to follow the design dictates of the HMFA.
The trial Judge, in granting defendant's motion for summary judgment, essentially adopted defendant's theory of immunity, although he did not specify which provision of the Tort Claims Act was operative. We assume it was N.J.S.A. 59:4-6 because on the facts presented and in light of the arguments advanced, it could be no other.
Putting aside for the moment the question of whether an entity such as defendant is entitled to derivative immunity, the basic elements of plan-or-design immunity under N.J.S.A. 59:4-6, on the facts here presented, are a public entity, public property, and a plan or design approved in advance of construction by the public entity. We are satisfied these elements have not been sufficiently demonstrated to permit a finding of "primary" immunity, the necessary predicate to derivative immunity.
Initially we note what is probably the least of our concerns. Throughout the proceedings at the trial level, everyone referred to the New Jersey Housing Mortgage Finance Agency as the public entity entitled to plan-or-design immunity in the first instance. On appeal defendant cites us to a Federal District Court opinion for the proposition that the HMFA meets the definition of public entity as that term is used in the Tort Claims Act. Our small problem is that the HMFA did not exist when this housing complex was constructed in 1977. The HMFA did not come into existence until 1984. N.J.S.A. 55:14K-1. The predecessor agencies that were joined to form the HMFA were the Housing Finance Agency (HFA) and the Mortgage Finance Agency (MFA). The HFA was concerned with multiple-unit dwellings and the MFA with single-family residences. Statement of the Senate State Government, Federal and Interstate Relations and Veterans Affairs Committee, Assembly No. 3463 -L. 1983, c. 530. We assume it was the HFA that defendant contends funded, planned, and designed the housing complex. We are presented with no information concerning the nature of the HFA, and we have found no case discussing whether the HFA was a public entity for purposes of the Tort Claims Act. Certainly "public entity" has been given a broad and inclusive interpretation by our courts. S.E.W. Friel Co. v. New Jersey Turnpike Authority, 73 N.J. 107, 113-18 (1997). Yet ...