On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-662-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded by Supreme Court October 18, 2010.
Resubmitted October 18, 2010
Before Judges Cuff, Fisher and C.L. Miniman.
Plaintiff Raymond Marcinczyk, and his wife, commenced this action alleging the negligence of defendants with regard to his fall during training to become a police officer with the University of Medicine and Dentistry of New Jersey (UMDNJ). The trial judge granted summary judgment in favor of defendants, and plaintiffs appealed.
In an earlier opinion, we affirmed the summary judgment entered in favor of defendants by concluding that an exculpatory agreement executed by plaintiff was valid and enforceable and barred the action. 406 N.J. Super. 608 (App. Div. 2009). As a result, we found it unnecessary to consider plaintiffs' arguments pertaining to the trial judge's alternative application of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, as a bar to this action.
The Supreme Court granted plaintiffs' petition for certification, 200 N.J. 370 (2009), and, on October 18, 2010, reversed, holding that the exculpatory agreement was not enforceable. The matter was remanded to us for consideration of plaintiffs' other arguments in seeking a reversal of the summary judgment. __ N.J. __, __ (2010) (slip op. at 17). After close examination of these issues, we reverse the summary judgment entered against plaintiffs and remand for further proceedings.
By way of background, UMDNJ initially hired plaintiff as a groundskeeper and promoted him in November 2003 to police intern. As a police intern, plaintiff had the opportunity to attend a police academy to fulfill the requirements necessary to become a police officer.
Plaintiff began his training with the Somerset County Police Academy (SCPA) at Raritan Valley Community College (RVCC) on January 19, 2004. A few weeks later, the SCPA instructors assigned plaintiff and William Oels III (Oels) to the position of "Lunch Recruits," which required that they carry a cooler filled with all recruit lunches wherever the class went.
Academy Director Richard Celeste and Lieutenant Peter Lubas, the SCPA commanding officer, formulated the lunch recruit program in response to recruit complaints that the absence of an available cooler relegated them to the monotony of eating nonperishable foods for lunch. Director Celeste certified that the policy permitted the recruits to hand off their regular training gear while transporting the cooler; he also asserted recruits were instructed to "move cautiously" while carrying the cooler.
Director Celeste opined that, as with many other assignments imposed on recruits, the lunch recruit assignment served the purpose of instilling "personal attributes such as willingness and eagerness to accept assignments, willingness and eagerness to accept responsibility and accountability for performance of their assigned tasks, willingness and ability to work well with others in performing and completing tasks, and ability to perform assigned ...