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Aversano v. Palisades Interstate Parkway Commission

SUPREME COURT OF NEW JERSEY


July 08, 2004

MICHAEL AVERSANO, INDIVIDUALLY, AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ANDREW JOSEPH AVERSANO, DECEASED AND ERIC AVERSANO, PLAINTIFFS-RESPONDENTS,
v.
PALISADES INTERSTATE PARKWAY COMMISSION, A PUBLIC ENTITY AND PALISADES INTERSTATE PARKWAY POLICE, A PUBLIC ENTITY, DEFENDANTS-APPELLANTS, AND JOHN DOES 1-10, FICTITIOUS ENTITIES AND JANE ROES, 1-10 FICTITIOUS ENTITIES, DEFENDANTS.

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 363 N.J. Super. 266 (2003).

SYLLABUS BY THE COURT

(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).

The Court determines whether a public entity is immune from liability under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:4-8, in a situation in which the decedent fell off a cliff in a public parkway, and the plaintiffs assert that the subsequent acts or omissions of the public entity contributed substantially to reducing the decedent's chances of survival.

Aversano, a nineteen-year-old man, was sunbathing in the Palisades Interstate Park when he fell backwards off a 300-foot cliff. Palisades Interstate Parkway Police officers did not call the local rescue squad because they assumed that Aversano could not have survived the fall. Instead, they determined to carry out a"recovery" operation. Using a four-wheel drive vehicle and then hiking to the base of the cliffs, they reached Aversano about three hours after his fall. They found that Aversano was still breathing, but he was not conscious. The officers called for the Closter Rescue Squad. After the rescue squad reached the top of the cliff, it took them an hour and a half to rappel down to Aversano. However, by that time Aversano was no longer breathing. He was pronounced dead at the scene.

Aversano's father and brother filed a complaint against the Palisades Interstate Parkway Commission and the Palisades Interstate Parkway Police (collectively, Palisades) alleging that they 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 Aversano. Palisades filed a motion for summary judgment, asserting that they were immune from liability under the TCA and under the Landowners' Liability Act, N.J.S.A. 2A:42A-3 (LLA). The trial court granted the summary judgment motion and dismissed the complaint, finding that immunity was appropriate under the TCA because Aversano's injuries stemmed from the recreational use of unimproved public property. Plaintiffs conceded on appeal that Palisades is immune under the TCA to the extent that an alleged dangerous condition on the unimproved public land, or to the extent that defendants' alleged failure to warn or prevent access to the cliff, bore a substantial causal relationship to Aversano's death. The trial court did not address the facts or law concerning the claim that Palisades negligently failed to take reasonable steps to rescue Aversano. Instead, the judge concluded that the majority decision in Fluehr v. City of Cape May, 159 N.J. 532 (1999), required summary judgment on that claim.

With one member dissenting, the Appellate Division reversed the trial court's decision regarding both the TCA and the LLA. 363 N.J. Super. 266 (2003). Concerning the TCA, the majority held that unimproved-property immunity did not eliminate exposure to liability for the reduction in Aversano's chances of survival that might have been caused by defendant's alleged negligence in undertaking a proper rescue. In part, the panel determined that the duty of the officers to call a rescue squad was a"ministerial" function, rather than an exercise of judgment or discretion, for the purposes of the TCA's provisions that deny immunity for negligence in carrying out ministerial functions. The panel also distinguished this Court's opinion in Fluehr, in which the Court determined that the alleged negligence of a public employee was remotely or insignificantly related to the plaintiff's accident and therefore it did not constitute a cause of the accident. Here, the panel determined that the record supports a question of fact respecting causation, i.e., whether the delay in calling the rescue squad caused a significant lost chance of survival. Finally, the majority concluded that any immunity created by the LLA was similarly limited. The dissenting judge would have granted immunity under the TCA. She found it unnecessary, therefore, to address whether Palisades was immune under the LLA.

HELD: The Court affirms the judgment of the Appellate Division, 363 N.J. Super. 266 (2003), denying immunity from liability to public entities under the New Jersey Tort Claims Act, N.J.S.A. 59:4-8, when the public property's natural condition was not the sole cause of the decedent's death and the entities' acts or omissions contributed substantially to reducing the decedent's chances of survival.

1. The Court affirms the Appellate Division's judgment on the reach and effect of unimproved-property immunity under N.J.S.A. 59:4-8. In respect of the question whether immunity applies if the cliff's dangerous natural condition was not the sole cause of Aversano's death, and the same public entity's acts or omissions contributed substantially to reducing Aversano's chance of survival, the Court agrees that the answer to that narrow question is no. (Pp. 3 -- 4).

2. The Court's disposition does not foreclose an analysis of an officer's purported duty in these circumstances as measured against other forms of immunity that might be relevant, which the Court views as a separate inquiry. That analysis implicates whether the TCA's provisions pertaining to discretionary acts might apply to limit or eliminate the Palisades' potential liability. Although the majority opinion of the Appellate Division addressed such discretionary-act immunity, that aspect of the opinion was not necessary to decide the discrete legal question whether unimproved-property immunity trumped all theories of liability asserted against Palisades. (P. 4).

3. The trial court's written opinion did not explicitly address or discuss discretionary-act immunity under N.J.S.A. 59:2-3a or 59:3-2a. To the extent that an evaluation of that subject requires further development of undisputed facts or resolution of any material factual disputes, it should be reviewed initially at the trial court level. In remanding to the trial court for that purpose, the Court suggests no ultimate outcome. The Court's decision not to affirm that part of the Appellate Division's opinion regarding N.J.S.A. 59:2-3a and 59:3-2a reflects a modification of the Appellate Division's judgment. (Pp. 4 -- 5).

4. Although the dissenting judge in the Appellate Division briefly referred to the LLA, it was not the subject of the dissent, therefore the immunity established by the LLA is not before the Court. As a result, the conclusion of the Appellate Division majority in respect of the LLA is the law of the case but not a determination of this Court. Nor does the Court's disposition here preclude either the trial court as a matter of law or a jury, if appropriate, from determining the applicability of immunities found in statutes other than the TCA and LLA. (P. 5).

As MODIFIED, the judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court for further proceedings consistent with this opinion. The Court does not retain jurisdiction.

CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in this opinion.

Per curiam.

Argued April 26, 2004

This appeal comes to us as of right on the basis of a dissent in the Appellate Division. R. 2:2-1(a)(2). We affirm that court's judgment substantially for the reasons set forth in the majority opinion, see Aversano v. Palisades Interstate Parkway Comm'n, 363 N.J. Super. 266 (App. Div. 2003), subject to the modification and limitations described below.

The case arises out of the death of Andrew Aversano who fell backwards off a three-hundred foot cliff while sunbathing at Palisades Interstate Park. Id. at 268. Assuming that Aversano "could not have survived the fall[,]... [police officers associated with the Palisades Interstate Parkway] undertook a 'recovery' operation, rather than a rescue operation." Ibid. "When the police finally reached [Aversano], approximately three hours after his fall, they found that he was still breathing, had a pulse, and was moaning, but apparently was not conscious." Ibid. At that juncture the officers called a local rescue squad. Ibid. Aversano was pronounced dead about two hours later. Id. at 269.

Basically on those facts, the trial court concluded that defendants were immune from liability under the Tort Claims Act (the TCA), specifically N.J.S.A. 59:4-8, which pertains to injuries caused by conditions of unimproved public property. The trial court also ruled that defendants were immune under the Landowner's Liability Act, N.J.S.A. 2A:42A-3 (the LLA).

With one member dissenting in respect of the TCA, the Appellate Division reversed the trial court's decision regarding both the TCA and LLA. Aversano, supra, 363 N.J. Super. at 285- 87. Concerning the TCA, the panel's majority held that unimproved-property immunity did not eliminate exposure to liability for the reduction in Aversano's chances of survival that might have been caused by defendants' alleged negligence in undertaking a proper rescue. Id. at 285. The panel concluded that any immunity created by the LLA similarly was limited. Id. at 287. Because the dissenter would have granted immunity under the TCA, she found it "unnecessary to address at length whether [defendants] are also immune under the [LLA]." Id. at 291 (Wefing, J.A.D., dissenting).

Our affirmance of the Appellate Division's judgment extends solely to the question regarding the reach and effect of unimproved-property immunity under N.J.S.A. 59:4-8. The panel framed the issue this way: "The question that presents itself is whether [such] immunity applies if the cliff's dangerous natural condition was not the sole cause of [Aversano's] death, and the same public entity's acts or omissions contributed substantially to reducing [Aversano's] chances of survival."

Id. at 275. We agree with the Appellate Division, essentially for the reasons expressed in its majority opinion, that the answer to that narrow question is no.

Our disposition, however, does not foreclose an analysis of a police officer's purported duty in these circumstances as measured against other forms of immunity that might be relevant, which we view as a separate inquiry. That analysis implicates whether the TCA's provisions pertaining to discretionary acts, N.J.S.A. 59:2-3a and 59:3-2a, might apply to limit or eliminate defendants' potential liability. The majority opinion below touches on such discretionary-act immunity, see Aversano, supra, 363 N.J. Super. at 284-85, but that aspect of the opinion was not necessary to decide the discrete legal question whether unimproved-property immunity trumped all theories of liability asserted against defendants.

Nor did the trial court's written opinion explicitly address or discuss discretionary-act immunity under N.J.S.A. 59:2-3a or 59:3-2a. (Perhaps as a result, the parties' respective Appellate Division briefs make no specific mention of those provisions.) To the extent that an evaluation of that subject requires further development of undisputed facts or resolution of any material factual disputes, we believe that it initially should be reviewed at the trial court level. In remanding the matter to the trial court for that purpose, we suggest no ultimate outcome. Our decision not to affirm that part of the Appellate Division's opinion regarding N.J.S.A. 59:2-3a and 59:3-2a reflects a modification of the Appellate Division's judgment.

Moreover, although the dissenter below briefly referred to the LLA, it was not, in our view, "the subject of the dissent." Gilborges v. Wallace, 78 N.J. 342, 349 (1978). Thus, the immunity established by the LLA is not before us. See R. 2:2- 1(a)(2). As a result, the conclusion of the Appellate Division majority in respect of the LLA is the law of the case but not a determination of this Court. Nor does our disposition preclude either the trial court as a matter of law or a jury, if appropriate, from determining the applicability of immunities found in statutes other than the TCA and LLA. In preserving such questions, we imply no answer to them, consistent with our observation concerning discretionary-act immunity described in N.J.S.A. 59:2-3a and 59:3-2a.

As modified, the judgment of the Appellate Division is affirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

Chief Justice Poritz PRESIDING

20040708

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