On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-5308-00.
Before Judges Wefing, Wecker and Lisa.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This case arises from the tragic death of Andrew Aversano, a nineteen-year-old young man who fell backwards off a 300-foot cliff in the Palisades Interstate Park. He had been sunbathing with his brother and two friends when he got up, lost his balance, and fell. When alerted to the accident, Palisade Interstate Parkway ("Parkway") Police officers did not call the local rescue squad because they assumed that Andrew could not have survived the fall. Instead, they undertook a"recovery" operation, rather than a rescue operation. They set out to reach what they assumed was Andrew's dead body about an hour later, using a four-wheel drive vehicle and then hiking at the base of the cliffs. When the police finally reached Andrew, approximately three hours after his fall, they found that he was still breathing, had a pulse, and was moaning, but apparently was not conscious. At that point, they called for the Closter Rescue Squad.
While waiting for the rescue squad to rappel down the cliff to reach Andrew, which took one-and-one-half hours from the time the squad reached the top of the cliff, the Parkway officers kept Andrew warm and secured him from falling further down the slope. Nevertheless, by the time the rescue squad reached Andrew, he was no longer breathing. His body was raised up the cliff and he was pronounced dead at the scene. The chronology of events is not in dispute.*fn1
Andrew's father, Michael Aversano, arrived at police headquarters soon after the fall, and along with Andrew's brother, Eric, he apparently remained there throughout the "recovery" operation. Michael Aversano, individually and as executor of Andrew's estate, and Eric Aversano, filed a complaint against the Palisades Interstate Parkway Commission, the Parkway Police, and several fictitious persons, alleging that defendants were negligent in their maintenance and supervision of the park, in their failure to provide sufficient warnings, and in their failure to initiate efforts to rescue and bring medical aid to Andrew.
After discovery was completed, defendants moved for summary judgment, alleging absolute immunity under the Tort Claims Act ("TCA") as well as the Landowners' Liability Act ("LLA"). Defendants argued that even if they were negligent in their rescue efforts, the Tort Claims Act provides immunity to public entities for injuries caused by a condition of unimproved public property. N.J.S.A. 59:4-8. In addition, they argued that the Landowners' Liability Act, N.J.S.A. 2A:42A-3, protects landowners, including public entities, from any duty to keep their premises safe for use by others for recreational activities, such as Andrew was pursuing at the time of his fall.
The motion judge granted defendants' summary judgment motion and dismissed plaintiffs' complaint.*fn2 In a letter opinion, the judge set forth his conclusions that Andrew's injuries stemmed from the recreational use of unimproved public property, and defendants were immune from liability pursuant to the Tort Claims Act, N.J.S.A. 59:4-8, as well as the Landowner's Liability Act, N.J.S.A. 2A:42A-3. Plaintiffs now concede, as they must, that defendants have immunity under the TCA to the extent that an alleged dangerous condition on this unimproved public land in the Palisades, or defendants' alleged failure to warn or prevent access to the cliff, bears a substantial causal relationship to Andrew's death.
The motion judge did not address the facts or the law as both relate to plaintiffs' claim that defendants negligently failed to carry out their assigned mission - to save lives by taking all reasonable steps to rescue an accident victim such as Andrew and to obtain prompt medical help. In rejecting plaintiffs' claim of liability for those failures, the judge rejected what he characterized as plaintiffs' focus on Justice O'Hern's dissent in Fluehr v. City of Cape May, 159 N.J. 532 (1999). Without further analysis, the motion judge concluded that"the majority decision in Fluehr, which this court is bound to follow, supports a ruling of summary judgment."
We certainly agree that the motion judge was bound to follow Fluehr, as are we, to the extent it applies. However, we find Fluehr distinguishable and therefore not controlling, for reasons we shall explain further in this opinion.
The issue we confront on plaintiffs' appeal is one the majority in Fleuhr explicitly did not reach. That issue is whether the immunity provided by the TCA (or the LLA) for certain acts or omissions in regard to the property, also provides immunity to the Commission or the Parkway Police for a violation of their duty to provide emergency rescue and medical aid when there is credible evidence that the violation reduced the victim's chances of survival. It is the minority in Fleuhr that did reach that issue. There is no jurisprudential reason to reject the minority's reasoning or conclusions on an issue the majority did not decide.
We briefly describe plaintiffs' liability claim before returning to the issue of immunity. Plaintiffs' assertion that the Parkway Police failed to make a prompt rescue effort, resulting in injury defined by a lost chance of survival, invokes interrelated concepts of duty and causation. See Del Tufo v. Tp. of Old Bridge, 147 N.J. 90, 109 (1996). To succeed on such a claim, plaintiffs must establish that defendants had a duty to attempt to save Andrew's life, and that if he had been reached within the time that prompt rescue efforts likely would have accomplished, his chances of survival would have been measurably greater. Hake v. Manchester Tp., 98 N.J. 302, 311 (1985)."[I]n cases involving the failure to give rescue assistance,'courts have generally let a jury find the failure caused the harm, though it is often a pretty speculative matter whether the precaution would in fact have saved the victim.'" Battista v. Olson, 213 N.J. Super. 137, 151 (App. Div. 1986) (internal citation omitted).
Defendants do not deny a general duty to render rescue assistance to persons such as Andrew. They contend, however, that their efforts to rescue Andrew met that duty because their conduct was reasonable under the circumstances. The reasonableness of their conduct is an element of negligence that a jury normally decides [.minus] unless defendants have absolute immunity.
Defendants also dispute the proximate cause element of plaintiffs' case, arguing that even if the rescue squad had been summoned immediately, Andrew would not have survived and ultimately would have died from his injuries. Because the matter arises on defendants' motion for summary judgment, the court must accept plaintiffs' version of the facts and afford plaintiffs the benefit of all favorable inferences. Pico v. State of N.J., 116 N.J. 55, 57 (1989).
Plaintiffs proffered an expert opinion with respect to Andrew's chances of survival if he had been reached by rescue squad personnel an hour and a half earlier. The Bergen County Medical Examiner, who performed the autopsy, amended the original death certificate*fn3 to indicate that the"manner of death" was"undetermined." In a subsequent letter to plaintiffs' counsel, the medical examiner stated:
As you can see his trauma to multiple organ systems, resulting in a state of primary and secondary shock finally terminating his life.
It is certain that there will be an agreement all around that the injuries are consistent with not being instantly/immediately fatal.
While that may be so, in my opinion, it would be impossible to put a specific time frame to say that the shock was irreversible at a specific point in time so as to render life-saving treatment, impractical.
It would be only fair that you employ the services of an independent expert specialized in trauma cases.
Plaintiff's retained expert, Dr. Daniel Adler, a pediatric neurologist, referred to the medical examiner's statement quoted above, and offered this opinion:
With respect to the central nervous system, it is clear that the brain was injured. There was subarachnoid hemorrhage, a laceration of the corpus callosum and then, cerebral edema. It is my medical opinion that none of these injuries would have proven instantly fatal with the cerebral edema occurring as a later phenomenon after the injuries caused by the initial impact. It is my medical opinion that the central nervous system issues alone would not have been sufficient to cause Andrew Aversano to pass away.
Cerebral edema can be life threatening but is a treatable condition. The direct injuries to the brain would have caused some problems with vision. The parts of the central nervous system associated with speech and language as well as motor control were not directly injured in this traumatic event. A permanent neurological injury would certainly have occurred but the full extent of that injury would not have been profound.
These opinions are provided with a reasonable degree of medical probability.
For purposes of this motion, the court must assume that plaintiffs established a prima facie case of a lost chance of survival."To make out a claim in this narrow class of cases of lost chance of survival, plaintiffs here need establish only that defendants had a duty to try to save Robert's life and that there was a substantial possibility of the rescue of their son from death." Hake, supra, 98 N.J. at 311. The sole issue to be determined is whether defendants are immune from liability on the failure to rescue claim.
The legal standard for addressing a motion for summary judgment is clear. The motion should be granted if the materials on file demonstrate 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(c). In order to determine whether a"genuine issue" of material fact exists, the motion judge must consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve any disputed facts in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The motion court's function is not to weigh the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Ibid. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). On appeal, the appellate court applies the same standard of review as the motion court. Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).
We recognize that the dominant theme of the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3, is immunity. Weiss v. N.J. Transit, 128 N.J. 376, 383 (1992); Pico v. State, supra, 116 N.J. at 59. When a claim is brought against a public entity or employee, the court should ask first"whether an immunity applies and if not, should liability attach." Weiss v. N.J. Transit, supra, 128 N.J. at 383; Pico v. State, supra, 116 N.J. at 59. Indeed, the Attorney General's Task Force on Sovereign Immunity expressed the hope that"in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities." Weiss v. N.J. Transit, supra, 128 N.J. at 383.
N.J.S.A. 59:4-8 provides that"[n]either a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach." N.J.S.A. 59:4-9 grants similar immunity for injuries caused by a condition of public tidelands and submerged lands. In explaining the purpose of N.J.S.A. 59:4-8 and -9, the Attorney General's Task Force commented:
Sections 59:4-8 and 59:4-9 reflect the policy determination that it is desirable to permit the members of the public to use public property in its natural condition and that the burdens and expenses of putting such property in a safe condition as well as the expense of defending claims for injuries would probably cause many public entities to close such areas to public use. In view of the limited funds available for the acquisition and improvement of property for recreational purposes, it is not unreasonable to expect persons who ...