November 10, 2010
RAYMOND MARCINCZYK AND ERIN MARCINCZYK, PLAINTIFFS-APPELLANTS,
STATE OF NEW JERSEY POLICE TRAINING COMMISSION, DEFENDANT, AND COUNTY OF SOMERSET, SOMERSET COUNTY POLICE ACADEMY, RARITAN VALLEY COMMUNITY COLLEGE, EXECUTIVE DIRECTOR RICHARD CELESTE, DETECTIVE LIEUTENANT PETER LUBAS, DETECTIVE JOHN RUSSO, DETECTIVE JUDITH POLHILL AND DETECTIVE WILLIAM LOFTEN, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Decided April 24, 2009
Argued February 25, 2009
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 tasks in a satisfactory manner." Director Celeste insisted that this task was not intended to be punishment or hazing.
On the morning of February 23, 2004, recruits were allotted ten to fifteen minutes to dress in their khaki uniforms and assemble in the gymnasium. Oels and plaintiff were obligated to transport the lunch cooler to the gymnasium within that time. They climbed the stairs with Oels in front and plaintiff in back. Plaintiff alleged he was wearing a backpack and held the handle of the cooler in one hand, and a gallon jug, a winter coat and his hat in the other. During the ascent, plaintiff slipped and fell.
The circumstances surrounding the fall are disputed. Plaintiff claims that, as instructed, he slowly jogged up the steps carrying the cooler. He stated that recruits always were ordered to move at a "fast pace," which usually resembled a "brisk walk," but on the day in question he and Oels moved at a pace "closer to a slow jog than just a brisk walk."*fn1 As plaintiff and Oels approached the upper portion of the staircase, plaintiff slipped, fell to his knees, and rolled to his side. Plaintiff claimed that, as a result, he endured multiple injuries to the spine and the muscles, tissues and nerves in his back, and that he is permanently disabled and unable to work.*fn2
Defendants moved for summary judgment, claiming the exculpatory agreement precluded plaintiff's personal injury action and his wife's per quod claim. Defendants also argued that the TCA insulated them from suit. In response to plaintiff's claim that his assignment as a lunch recruit was a proximate cause of his injuries, defendants asserted that the creation of the lunch recruit program was an immune discretionary activity. The trial judge granted the motion on all grounds and plaintiffs appealed.
As indicated, we previously affirmed summary judgment on the basis of the exculpatory agreement without considering the other issues raised. 406 N.J. Super. at 615. The Supreme Court found the exculpatory agreement unenforceable and remanded for our consideration of the remaining issues raised on appeal, namely:
I. DISCRETIONARY ACTIVITY IMMUNITY UNDER THE TORT CLAIMS ACT DOES NOT APPLY TO MINISTERIAL ACTS, SUCH AS THE IMPLEMENTATION OF THE ACAD[E]MY'S DUBIOUS "LUNCH RECRUIT" HAZING EXERCISE.
A. The Trial Court's Errant Application of Immunity.
B. Trial Court Improvidently Resolved a Factual Dispute in Favor of Defendants.
II. NEGLIGENCE WAS A FACTURAL [SIC] ISSUE FOR A JURY TO DECIDE.
We agree that the decision to create the lunch recruit program and the manner in which it was conducted are matters that do not fall within the TCA's discretionary immunity. We, therefore, reverse and remand for further proceedings.*fn3
Summary judgment is only appropriate if in view of all pleadings, depositions, answers to interrogatories and admissions to file, together with any affidavits, there exists no genuine issue as to any material fact. R. 4:46-2(c). The trial judge must not make credibility determinations but must view the "competent evidential materials . . . in the light most favorable to the non-moving party" and decide whether such evidence is sufficient to allow a rational factfinder to resolve the dispute in the non-moving party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If, after viewing the competent evidence, there exists "a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of" summary judgment. Ibid.
Specifically, with regard to summary judgment motions based on tort immunities:
[i]t is well established that the burden is on the public entity both to plead and prove its immunity under our Act, see Ellison v. Housing Authority of South Amboy, 162 N.J. Super. 347, 351 (App. Div. 1978); and that to succeed on a motion for summary judgment, the entity must "come forward with proof of a nature and character [that] would exclude any genuine dispute of fact . . . ." Id. However, once a moving party has met that burden, summary judgment is warranted and, indeed, desirable, as a matter of judicial economy. [Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985).]
We apply the same legal standard that bound the trial judge, Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., Ltd., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008), and evaluate the trial judge's decision on the "case only as it has unfolded to that point" and the evidence submitted on the motion, Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000) (citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188 (1963)). Only if the trial judge's legal conclusions are correct and the evidence is "so one-sided that one party must prevail as a matter of law" should this court affirm the grant of summary judgment. Brill, supra, 142 N.J. at 540.
N.J.S.A. 59:2-3(a) declares that a public entity is "not liable for an injury resulting from the exercise of judgment or discretion vested in the entity." Public employees are immunized for the same activities. N.J.S.A. 59:3-2. Plaintiffs argue that the creation and implementation of the lunch recruit program does not merit immunity because this statute applies only to high-level policy decisions and not the negligent implementation of ministerial duties. See N.J.S.A. 59:2-3(d) (declaring that "[n]othing in [the provisions that insulate discretionary activities] shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions"); N.J.S.A. 59:3-2 (declaring the same with respect to public employees). An understanding of the difference between discretionary and ministerial acts is vital in determining whether defendants are immune in the circumstances in question.
A ministerial act is one which is performed "under a given state of facts in a prescribed manner . . . without regard to or the exercise of . . . judgment upon the propriety of the act being done." Kemp by Wright v. State, 147 N.J. 294, 308 (1997); Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 495-96 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008); see also Ritter v. Castellini, 173 N.J. Super. 509, 513-14 (Law Div. 1980). On the other hand, the exercise of discretion contemplated by N.J.S.A. 59:2-3(a) "refers to actual, high-level policymaking decisions involving the balancing of competing considerations." Costa v. Josey, 83 N.J. 49, 55 (1980); see also Coyne v. State Dep't of Transp., 182 N.J. 481, 489-90 (2005). The Court's examination in Costa and Coyne of the application of N.J.S.A. 59:2-3 to decisions and actions taken by the Department of Transportation (DOT) is instructive and helpful to our understanding of that statute's application to the matter at hand.
In Costa, the Court recognized that courts "utilizing standard tort principles, are ill-equipped to interfere" with decisions that have been "traditionally entrusted to coordinate branches of government." Costa, supra, 83 N.J. at 55. In defining the types of DOT decisions qualifying as immune "high-level policymaking decisions," the Court provided as an example a DOT decision to utilize resources and expend funds to maintain a road in a particular manner. Ibid. By comparison, the Court recognized that once such a decision is made, the manner in which it is carried out will likely not fall within the parameters of N.J.S.A. 59:2-3.
The Court expanded upon this concept in Coyne. There, the plaintiff was injured when his vehicle encountered and could not avoid a DOT roving cleaning operation. In seeking summary judgment, the DOT argued that its crew's actions were at least consistent with, if not even more cautious, than that required by the DOT's Safety Manual. 182 N.J. at 491. The Court, however, rejected the contention that "behavior consonant with the DOT's Safety Manual automatically immunizes" the behavior of the DOT and its employees. Ibid. The Court instead concluded that because the DOT's Safety Manual "delegate[d] ultimate authority to the road crew, it cannot, as presently constituted and under these circumstances, trigger the discretionary act immunity provisions of N.J.S.A. 59:2-3." Coyne, supra, 182 N.J. at 492.
Against this backdrop, plaintiff argues that the decision to include a lunch recruit program within the overall mission of training police officers is not the type of discretionary decision contemplated by N.J.S.A. 59:2-3(a). We agree. Although the construction of a police training program and the extent to which resources and manpower are devoted to such a program are clearly immune discretionary determinations, it does not follow that every decision that results in the inclusion of a requirement in the program or suggests how the program should be carried out is cloaked in immunity any more than the DOT Safety Manual considered in Coyne cloaked DOT and its employees when acting in conformity with its provisions.
The record contains the parties' competing expert reports concerning the relative value of the lunch recruit program. Plaintiffs' expert, Charles Key, Jr., retired commanding officer and supervisor of the Baltimore Fire Department, asserted that instructors must first "zealously protect the health and safety of each trainee." Indeed, as he noted, the SCPA Recruit Training Program Staff Guidebook declares "the primary responsibility of an instructor is to ensure the safety of trainees who are under their immediate control and supervision" and that trainees should not be forced to "engage in training activities on any surface that is likely to cause injury or unnecessary discomfort." In short, in Key's view, safety was recognized to be of primary importance and the "training mission a distant second." As a result, in Key's opinion, the lunch recruit program served no legitimate purpose. Plaintiffs argue that it follows that the inclusion of a lunch recruit program is not a high-level decision entitled to immunity because that program must ultimately give way to the more important aspects of the program, such as recruit safety.
To be sure, defendants' expert, Robert Melson, the current administrator of the New Jersey Police Training Commission (PTC), expressed a somewhat different view, as did PTC Chairman Wayne Fisher. Melson testified at his deposition that the lunch recruit program did not violate the guidelines or regulations passed by the PTC that govern police academies throughout the State. Fisher agreed and asserted that the lunch recruit program served a valid SCPA training purpose because it instructs in the importance of "follow[ing] orders given through the chain of command for the benefit of a larger group" and because it teaches recruits responsibility and "how to work well with others."
These disputes about the relative importance of the lunch recruit program miss the point about immunity and, as the Court held in Coyne, "trivializes the requirement that 'the immunity rule will protect only basic policy determinations.'" Coyne, supra, 182 N.J. at 492 (quoting Costa, supra, 83 N.J. at 55). That the written program may call for a host of areas in which recruits may be required to engage does not render immune all training aspects, particularly those as seemingly trivial as the lunch recruit program. Moreover, the conduct of those charged with supervising police training is not rendered immune merely because they may have adhered to the literal terms of the program. There is no legitimate dispute that the program's supervisors are primarily charged with ensuring the safety of the recruits. Just as the Court held in Coyne -- that the steps taken in fulfilling the DOT's safety requirements were not cloaked by discretionary immunity even in instances when the DOT and its employees complied with the terms of a safety manual --so too we conclude that the manner in which the police training program was conducted were not insulated from suit.
With the Supreme Court's finding that the exculpatory agreement is unenforceable, and with our determination that summary judgment could not be entered on the question of whether defendants are insulated from liability by the TCA, we remand to the trial court for further proceedings.
The order under review is reversed and the matter remanded. We do not retain jurisdiction.