On appeal from the 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Lisa, Baxter and Alvarez.
This appeal requires us to decide a question left unresolved in our prior opinion in this case, Massachi v. AHL Services, Inc., 396 N.J. Super. 486, 508 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). In particular, we now decide whether N.J.S.A. 52:17C-10, commonly known as the 9-1-1 immunity statute, provides immunity to employees of defendant City of Newark's (City) 9-1-1 emergency communications center for the employees' bungled response to a call for emergency police assistance. Their negligent mishandling of the call, and failure to properly dispatch police, contributed to the murder of Sohayla Massachi by her former boyfriend. After an Essex County judge denied the City's motion for summary judgment by concluding that the 9-1-1 statute did not provide immunity, the case proceeded to trial, resulting in a jury award of $5,512,000 to plaintiff, the estate of Sohayla Massachi.
We now hold that N.J.S.A. 52:17C-10 does not afford immunity to a 9-1-1 emergency communications center and to its employees for the negligent rendering of 9-1-1 services, including dispatching police to an incorrect location, failing to keep the caller on the line so she could update the 9-1-1 employee on the location of the perpetrator and failing to broadcast an alert to surrounding municipalities. We also reject the City's claim that the "increased risk/substantial factor" jury charge was improper. We do, however, agree that the judge's omission of special jury interrogatories asking the jury to apportion damages had a clear capacity to produce an unjust result. In particular, not asking the jury to determine, in percentages, what portion of the ultimate injury (Massachi's death) was the result of her pre-existing condition as an abductee, and what portion of the ultimate injury was the result of the City's negligent handling of the 9-1-1 call, created reversible error. We therefore reverse the May 22, 2008 order entering judgment in plaintiff's favor and remand for a new trial; however, as the error did not affect the quantum of damages, the retrial shall be limited to liability and proximate cause.
Although the facts are set forth in considerable detail in our prior opinion, id. at 491-93, we now briefly recite the pertinent facts, as drawn from the trial record, to provide context for the legal issues we address today. On May 10, 2000, two high school girls saw Christopher Honrath force Massachi, who was screaming and crying for help, into his car. The girls reported the incident and the car's license plate number to an Argenbright Security (Argenbright) guard who was stationed at the guard booth at the main gate of Seton Hall University (Seton Hall). When the guard stated there was nothing he could do because the incident did not occur on University property, the girls telephoned the South Orange Police Department to report the abduction and provided the license plate number and a description of the car and its occupants.
At approximately the same time, two off-duty Essex County Sheriff's Officers, Melissa Lester and Elwood Thompson, witnessed Honrath pull Massachi into his car. Lester called 9-1-1, and the call was routed to the City's 9-1-1 emergency communications center. Lester provided a description of the incident, the car, and the car's direction of travel to 9-1-1 operator Debony Venable.
Although Venable was unsure how to handle the call, she consulted a co-worker instead of her supervisor, as was required by police department guidelines. Venable put the information into the 9-1-1 computer system, but failed to note the last known location of Honrath's car or that the car was in motion; misidentified the car as a Chevrolet Blazer instead of a Plymouth Laser; failed to record the vehicle's path of travel, which resulted in a police unit being erroneously dispatched to the original location even though Honrath was already gone; and failed to keep Lester on the line so that Lester would be able to update the responding units on the vehicle's path of travel.
Dispatcher George Mike "ran" the license plate and printed out the name and address of the vehicle's owner, Honrath. However, although Mike was required by police procedures to also issue a general alert to all Newark police units and to neighboring municipalities, he failed to do so. Mike also had the capacity to contact Westfield police, where Honrath lived, but did not do so.
A short time later, Westfield police were notified by Gary Powell, who shared a Westfield house with Honrath, that Honrath had pulled a woman into his room and that she was screaming that Honrath had a gun. Westfield police responded to the house, knocked on Honrath's door, and yelled "police." Two gunshots were then heard from inside Honrath's room. The officers did not enter the room, but instead waited thirty minutes for the arrival of an Emergency Response Team. The Response Team found Honrath dead and Massachi unconscious with a bullet wound to the head; Massachi was transported to a Newark hospital where she died two days later.
Disciplinary sanctions were imposed against Venable for her violation of police department policies and procedures in her handling of the 9-1-1 call.
To place in context the 9-1-1 immunity issue, we first describe the procedural posture of the case at the time we issued our published opinion in 2007. On August 26, 2005, prior to commencement of trial, the judge had granted summary judgment to the City, finding that it was entitled to immunity under a portion of the Tort Claims Act, N.J.S.A. 59:5-4. Plaintiff appealed. We held that the Tort Claims Act did not provide immunity to Newark under these circumstances, reversed the trial court's grant of summary judgment and remanded plaintiff's claim against Newark for trial. Massachi, supra, 396 N.J. Super. at 507-08. We did not rule upon Newark's argument that it was entitled to immunity under the 9-1-1 statute, N.J.S.A. 52:17C-10, as the issue had not been squarely addressed in the Law Division in light of the grant of summary judgment based upon the Tort Claims Act. Id. at 508. We preserved the issue for remand. Ibid.
On April 29, 2008, a few days before the trial was scheduled to commence, the City again moved for dismissal of plaintiff's complaint pursuant to the 9-1-1 immunity statute, N.J.S.A. 52:17C-10. The City argued that a plain reading of the statute afforded immunity to the City for Venable's and Mike's actions in delivering 9-1-1 services unless their actions were wanton, willful, or malicious, which plaintiff had not alleged. Plaintiff opposed the City's motion, arguing that the 9-1-1 statute provided immunity only for negligence in the mechanical delivery of services and not for Venable's and Mike's "rendering" of services. The judge denied the City's motion on procedural grounds, but did find that the City had not provided the court with any precedent, from New Jersey or elsewhere, to support its argument that the City should be afforded immunity under N.J.S.A. 52:17C-10. The case proceeded to trial, resulting in the verdict we have already described.
The City argues that the Law Division's denial of its motion for judgment under the 9-1-1 immunity statute was error, because, according to the City, both N.J.S.A. 52:17C-10(d) and (e) provide immunity for the very type of negligent acts and omissions that Venable and Mike committed. In particular, the City maintains that subsection (d) provides immunity to a public safety answering point*fn2 (PSAP) such as Newark's 9-1-1 emergency communications center for a wide array of design or mechanical failures at a PSAP and for "'any other aspect of delivering enhanced 9-1-1 service, wireless 9-1-1 service or wireless enhanced 9-1-1 service.'" (quoting N.J.S.A. 52:17C-10(d)) (emphasis added). The City relies heavily on the immunity from liability for errors in "delivering" PSAP services. The City also relies on subsection (e), which immunizes a PSAP for errors committed while providing assistance to any law enforcement officer.
Plaintiff urges us to reject the City's subsection (d) argument, contending that the immunity conferred by that subsection is confined to a "technical failure of a 9-1-1 call service" such as the "failure of a 9-1-1 call to connect because of a service provider's faulty hardware." Plaintiff also maintains that the City's subsection (e) argument ascribes functions to a PSAP that it does not actually perform.
Because the parties' arguments rely heavily on the legislative history of the statute -- from its initial form in 1989 through the 1999 amendments that resulted in the current version -- we begin our analysis by turning first to the legislative history of N.J.S.A. 52:17C-10.
The 1989 statute was adopted as part of a comprehensive legislative enactment that created an Emergency Response System in the State of New Jersey. The entire package of bills was the culmination of the work of the Emergency Response System Study Commission (the Commission), which was established in January 1986, by L. 1985, c. 542, "to study and make recommendations concerning appropriate legislation to create a Statewide enhanced 9-1-1 emergency telephone system; and to study and make recommendations concerning the emergency response system in the State with a view to improving and facilitating the provisions of emergency service . . . and . . . remedying defects in the present system." After holding a series of public hearings, the Commission issued its report, Emergency Response System Study Commission, First Phase Report (Dec. 30, 1986) (Report), calling for the creation of an "enhanced" 9-1-1 system,*fn3 which had three components: 1) a series of technical recommendations designed to address the "overlap" and "underlap" problems in the emergency 9-1-1 telephone service that had been in place since 1967; 2) development of a proposed funding source for the new switching equipment that would be required; and 3) recommendations for a package of proposed legislation to implement the enhanced 9-1-1 system.
Notably, although none of the witnesses at any of the three public hearings the Commission conducted in Blackwood, Trenton or Paterson had recommended, or even discussed, providing telephone companies or PSAPs with immunity from liability for negligently handled 9-1-1 calls, the 1986 Report contained a section recommending immunity for any acts or omissions committed while rendering PSAP services. In a section of its Report entitled "Liability of the Telephone Companies and PSAPs," the Commission recommended:
No liability would be incurred by any telephone company or PSAP for the release of the information specified in the legislation, including non-published telephone numbers, or for the failure of any equipment or procedure in connection with the enhanced 9-1-1 service. Furthermore, no liability would be incurred by any telephone company or PSAP for any act or omission of an act committed while training for or rendering PSAP services in good faith and in accordance with the legislation.
[Id. at 21 (emphasis added).]
In furtherance of its immunity recommendation, the Commission included proposed legislation immunizing PSAPs for "any act or . . . omission of an act committed . . . in rendering PSAP services." The legislation proposed by the Commission was as follows:
No telephone company, public safety answering point, or agents of a telephone company or PSAP, shall be liable to any person who uses the enhanced 9-1-1 service established under this act for release of the information specified in this section, including non-published telephone numbers, or for failure of any equipment or procedure in connection with the enhanced 9-1-1 service or for any act or the omission of an act committed while in the training for or in rendering PSAP services in good faith and in accordance with this act. [Id. at 31.]
The package of bills introduced in the General Assembly and Senate in response to the Commission's Report contained an immunity section that was identical to the immunity legislation the Commission recommended in its 1986 Report; however, the Sponsor's Statement made no reference to the immunity provisions. See Sponsor's Statement, Statement to A.B. No. 1576 (pre-filed for 1988). Instead, the Sponsor's Statement was confined to a description of the features of the enhanced 9-1-1 system and the ways in which the new system was superior to the system then in place. Ibid.
After introduction, A-1576 was considered by three legislative committees, the Assembly Transportation and Communications Committee, the Assembly Appropriations Committee and the Senate Committee on Revenue, Finance and Appropriations. The legislative history of the proceedings of those three committees includes no reference to the portion of the legislation establishing immunity from liability.
When Governor Thomas H. Kean signed A-1576 into law on January 18, 1989, he commented that the legislation establishing the Statewide emergency 9-1-1 telephone system would "greatly enhance the State's emergency response capabilities" by establishing a "network of 'Public Safety Answering Points' with specialized computers to receive 911 calls and locate their source. The call will the[n] be routed to the appropriate emergency response agency nearest to the location of the call." Press Release, Office of the Governor, Press Release for A-135 and A-1576 (Jan. 19, 1989). The Governor's Press Release made no mention of the immunity section contained in the legislation. Ibid.
The legislation signed into law on January 18, 1989 contained an immunity provision later codified as N.J.S.A. 52:17C-10. The statute provided:
a. Whenever possible and practicable, telephone companies shall forward to jurisdictional public safety answering points via enhanced 9-1-1 network features, the telephone number and street address of any telephone used to place a 9-1-1 call.
Subscriber information provided in accordance with this section shall be used only for the purpose of responding to emergency calls or for the investigation of false or intentionally misleading reports or incidents requiring emergency service.
b. No telephone company, public safety answering point, agents of, or manufacturer supplying equipment to a telephone company or PSAP, shall be liable to any person who uses the enhanced 9-1-1 service established under this act for release of the information specified in this section, including non-published telephone numbers, or for failure of any equipment or procedure in connection with the enhanced 9-1-1 service or for any act or the omission of any act committed while in the training for or in rendering PSAP services in good faith and in accordance with the act. [N.J.S.A. 52:17C-10 (emphasis added).]
As is clear from the version of N.J.S.A. 52:17C-10 that was enacted in 1989, the statute provided three distinct types of immunity: 1) immunity for the release of non-published telephone numbers; 2) immunity for failure of any equipment or procedure used in connection with the enhanced 9-1-1 service; and 3) immunity for any act or omission in rendering PSAP services in good faith.
However, whether intentionally or unintentionally, the 1989 version of the statute conferred immunity from liability only to claims asserted by the "person who uses the enhanced 9-1-1 service." Thus, N.J.S.A. 52:17C-10, in its original form, would not have established any immunity from liability if the intended recipient of the 9-1-1 emergency service was not the person who placed the call. That is because the immunity was extended only ...