On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4487-02.
The opinion of the court was delivered by: Baxter, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Gilroy and Baxter.
This appeal arises from the murder of a Seton Hall University student by her former boyfriend after she was abducted outside the University gates. The suit filed after her death alleged that a series of missteps by the 9-1-1 operator and police dispatcher who had received the call from eyewitnesses caused police to search for the wrong car and respond to the wrong location, thereby missing any opportunity they would have had to save the young woman's life. The trial court granted the City of Newark's (City) motion for summary judgment, finding that the City was immune from liability under N.J.S.A. 59:5-4, a section of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (Act or TCA). N.J.S.A. 59:5-4 provides immunity for the failure of a public entity and its employees to provide police protection service or sufficient police protection service. We conclude that the immunity provided by that section does not immunize 9-1-1 operators and police dispatchers from the results of their negligently executed ministerial duties, and accordingly reverse the grant of summary judgment to the City. We do not address the City's alternate immunity claim under N.J.S.A. 52:17C-10(d), and permit the parties upon remand to more fully develop their arguments respecting that statute.
On the afternoon of May 10, 2000, two high school girls saw Christopher Honrath pull Sohayla Massachi into a black, two-door sports car on South Orange Avenue in front of Seton Hall University in South Orange. Massachi was crying and screaming for help. At approximately 2:30 p.m., one of the girls ran to the security guard's booth at the University's main gate and reported what she had seen to one of defendant Argenbright Security's employees. She also provided him with the license plate number of the vehicle. When a security guard told her "it was not on campus and there was nothing they could do for her," she ran back to the car. She saw Massachi still crying out for help. The two girls screamed at the man to let Massachi go, but he pushed Massachi into the car and sped away. At 2:48 p.m., the girls telephoned the South Orange Police Department from one of their homes and reported the abduction. They provided a description of the people involved, and a description of the car and its license plate number.
At approximately the same time, at 2:42 p.m., two off-duty Essex County Sheriff's Officers, Melissa Lester and Elwood Thompson, were driving on South Orange Avenue as Honrath pulled Massachi into the car and drove away. Lester immediately called 9-1-1 and reported to the 9-1-1 operator, Debony Venable, that Massachi was struggling, screaming and beating on the windows. Venable was an employee of the City's police department. Lester calmly and accurately provided a complete description of the fleeing vehicle and its direction of travel. In particular, Lester told Venable the vehicle was a black Plymouth Laser. Venable commented to Lester, "what are [police] going to do, by the time they come out this car will be gone." Venable had questions about how to handle the call, but rather than consult a supervisor, as required by official police department guidelines, she consulted a co-worker.
Venable entered the information Lester had provided into the 9-1-1 computer system. Venable made two critical errors. First, she entered an incorrect description of the vehicle, calling it a Chevrolet "Blazer," which is a sport utility vehicle, rather than a Plymouth "Laser," which is a sports car. Second, Venable did not report the last known location of the vehicle or that it was in motion; instead, she merely reported the location of the initial abduction at South Orange and Stuyvesant Avenues. The dispatcher, George Mike, relied on the incorrect information Venable had entered into the 9-1-1 computer system, and accordingly he dispatched a police unit to South Orange and Stuyvesant Avenue, the original location of the abduction. Because Venable failed to specify in the 9-1-1 system that the car was moving, by the time police arrived at South Orange and Stuyvesant Avenues, Honrath and Massachi were long gone. Mike did not issue a general police alert on the vehicle, although applicable police procedures required him to have done so.
At 3:00 p.m., Westfield police were notified by Gary Powell, who shared the house on Central Avenue in Westfield with Honrath, that Honrath had pulled a woman by her hair into his room and that she was screaming that Honrath had a gun. Three Westfield police officers responded. Two of them immediately went upstairs, knocked on Honrath's door and yelled "police." They heard two gunshots. Rather than immediately enter the room, the officers waited one hour for a Union County Emergency Response Team to arrive. When the Response Team entered Honrath's room, they found him dead and Massachi unconscious from a bullet wound to the head. She was transported to a hospital in Newark where she died two days later from the gunshot wound.
Less than a month after Massachi was abducted, the City's police department instituted disciplinary charges against Venable. The Department found that she neglected her official duties by violating official police department policies and procedures in the handling of the 9-1-1 call that day. Specifically, the police department charged her with failing to:
(1) advise the dispatcher that the suspect's vehicle was moving and not stationary; (2) inform her supervisor of the 9-1-1 call; (3) obtain the names, addresses and phone numbers of the people who called in the complaint; (4) enter the correct description of the vehicle into the computer aided dispatcher (CAD) system; (5) record the vehicle's path of travel in the CAD, which resulted in a unit being dispatched to the wrong location; and (6) keep the caller, Lester, on the telephone so that Lester would be able update the responding units on the direction that Honrath's vehicle was proceeding. Expert reports submitted by plaintiffs in opposition to the City's summary judgment motion opined that had Venable correctly entered the information she received from Lester into the CAD system, Honrath's identity would have been determined, and police would have had time to prevent him from creating a "barricaded gunman/hostage situation."
The trial court granted summary judgment motions filed by the South Orange and Westfield Police Departments. The court denied the motions by Argenbright Security and Seton Hall, but plaintiffs' claims against them were subsequently settled through mediation. Plaintiffs voluntarily dismissed the complaint against the Union County Emergency Response Team. The trial court granted summary judgment to the City on August 26, 2005, finding that Newark was entitled to immunity under N.J.S.A. 59:5-4, but not under N.J.S.A. 52:17C-10(d).
In his decision, the motion judge held that Sczyrek v. County of Essex, 324 N.J. Super. 235 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000), was dispositive. The judge found that, under Sczyrek, immunity exists when a plaintiff alleges liability based upon the failure of police to provide, or when police inadequately provide, protection from the criminal acts of third parties. The judge concluded that immunity applies regardless of whether the police acted carelessly or negligently, or whether their conduct was ministerial or not ministerial. The judge determined that the negligent performance of ministerial acts, which results in a failure to provide police protection, is entitled to immunity under N.J.S.A. 59:5-4. He reasoned that the facts in Sczyrek were on "all fours" with this case. After the claims of all other defendants were resolved, the grant of summary judgment to the City became a final judgment, and plaintiff appealed as of right on October 24, 2006.
The City also argued that it was entitled to immunity under N.J.S.A. 52:17C-10(d), which provides in pertinent part, that "no . . . public safety answering point . . . or any employee . . . of any such entity, shall be liable to any person for civil damages . . . resulting from . . . any other aspect of delivering enhanced 9-1-1 service." After the judge explained his reasons for granting summary judgment to the City on the basis of N.J.S.A. 59:5-4, he commented, "having done so, it's not necessary that I . . . [address] the second issue for summary judgment, that is dismissal under N.J.S.A. 52:17C-10." The judge then briefly discussed that 9-1-1 statute. At the conclusion of those comments, the judge observed, "so I don't find that it's clear on its face . . . that [N.J.S.A. 52:17C-10(d)] would be applicable under these circumstances. But, I do find that Cywreck [sic] is controlling and the City of Newark's entitled to summary judgment."
Summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here, the parties agree that there are no genuine issues of material fact. We must therefore decide whether the trial court correctly interpreted the law. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Accordingly, we now decide whether the motion judge correctly determined that N.J.S.A. 59:5-4 immunizes the City from liability for the negligent acts of Venable and Mike. The City argues that the motion judge properly relied upon our decision in Sczyrek, and that the cases relied upon by plaintiff are inapplicable because they do not involve the criminal ...