On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-781-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Plaintiff T.S.*fn1 is employed by defendant, the New Lisbon Developmental Center (New Lisbon). Plaintiff filed this action after being sexually assaulted by a New Lisbon resident while she accompanied a group of residents on an overnight, off-premises trip. New Lisbon moved for summary judgment, asserting plaintiff's claims were barred by various immunity provisions of the Tort Claims Act (TCA), N.J.S.A. 59:5-1 to 12-3. Judgment was entered for defendant and plaintiff's complaint was dismissed. Plaintiff argues the court misapplied the TCA and inappropriately granted summary judgment. Following our review, we affirm.
The facts are taken from the summary judgment record. Defendant is a State correctional facility designed to provide rehabilitation programs for developmentally disabled adults who have committed crimes. Residents are placed under the care, custody and control of the State and housed at New Lisbon by court order. Plaintiff works at New Lisbon as a licensed practical nurse.
In 1997, T.E. was charged with a criminal offense. The criminal charges were conditionally dismissed and T.E. was committed to the custody of the Department of Human Services and placed by the Division of Developmental Disabilities (DDD) in New Lisbon's Moderate Security Unit (MSU). The MSU is a statewide resource for the DDD for males over age eighteen. N.J.A.C. 10:46.1
In 2000, T.E. again faced criminal charges, this time for conduct occurring in the MSU. Upon review, the court determined T.E. "lack[ed] the fitness to proceed to trial... and that, due to a mental defect or illness, there [was] no likelihood that he [would] be deemed competent in the future." T.E. was ordered to remain at the MSU.
On March 22, 2002, plaintiff, along with other New Lisbon staff members, accompanied residents to an off-site Special Olympics event. The group stayed overnight at a hotel. The MSU residents, including T.E., were required to be supervised at all times while at the hotel. In the evening, while the residents were in their assigned rooms, supervision was provided by four MSU staff members, using a dorm watch procedure of alternating two-person shifts to monitor the hotel hallways every thirty minutes.
Sometime in the early morning hours, T.E. exited his first-floor hotel room, without being seen, and took an elevator to the second floor, where he forcibly entered plaintiff's room and raped her before returning to his room. MSU staff were unaware the assault had occurred; in fact, they only learned of the incident upon return to New Lisbon.*fn2
Plaintiff's initial complaint against defendant alleged assault and battery. She was permitted to file an amended complaint adding allegations of negligence. The parties settled plaintiff's intentional tort claims for $80,000. Thereafter, defendant moved for summary judgment of the negligence action, and plaintiff filed a motion to amend her complaint a second time.
In a written opinion, the Law Division concluded defendant was immune from suit for plaintiff's injuries caused by: (1) an escaped person evading arrest, pursuant to N.J.S.A. 59:5-2, (2) and an escaped mental patient, pursuant to N.J.S.A. 59:6-7, and (3) determinations made during terms of confinement for mental illness, pursuant to N.J.S.A. 59:6-6. New Lisbon was granted summary judgment, plaintiff's complaint was dismissed, and her motion to amend the complaint was deemed moot.
On appeal, plaintiff presents several challenges to the Law Division's determination, essentially arguing that the immunity provisions of the TCA do not apply. She also asserts summary judgment was inappropriate in light of ...