On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-935-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2011
Before Judges Kestin and Newman.
Plaintiffs, Karen Maffucci and David Maffucci, appeal from an order granting defendants' motion for summary judgment. On the entry of the order, the complaint was dismissed. We affirm. The complaint alleges eleven causes of action, all arising from the escape of Edgar Del Cid-Perez from the Trenton State Psychiatric Hospital and the effects of that occurrence on the plaintiffs because of their prior encounter with him. The escape occurred on August 7, 2006, and Del Cid-Perez was apprehended in Irvington either the following day or the day after that.*fn1
Del Cid-Perez had been in custody on criminal charges
arising from the abduction of plaintiff Karen Maffucci from her
home on November 30, 2005.*fn2 He had been transported from the Somerset County Jail to the State psychiatric facility for an in-depth medical evaluation to determine his competency to stand trial.
We take the details of plaintiffs' prior encounter with Del Cid-Perez as they were set out in the complaint. Shortly after her husband left their residence in the morning, Karen Maffucci was taken by Del Cid-Perez, armed with a handgun and a knife, from her Bernardsville home, in her own automobile, to a storage shed in a horse stable, and bound with duct tape. After several hours, she escaped and flagged down a passerby. At about 12:25 p.m., the police responded to a call for assistance. While plaintiffs were at police headquarters, shortly after 2:00 p.m., Mr. Maffucci received a call on his cell phone from his wife's stolen cell phone. The caller threatened to kill Ms. Maffucci if his demand for a ransom of one million dollars was not satisfied. Del Cid-Perez was apprehended by the police later that day, in the evening, leading to his incarceration, his eventual presence at the State psychiatric facility, and his escape from custody there.
Plaintiffs alleged in the complaint that they were traumatized by the news that Del Cid-Perez was at liberty. They feared for their safety. They felt in 'shock'. David Maffucci sat in his truck on the family's driveway and said he would not leave his home. . . . [A]t this time the plaintiffs have the fear that security will never be sufficient, since the system has already failed them, in that, Del Cid-Perez has already escaped once.
They assert in their brief on appeal that, "[a]s to Karen Maffucci herself, . . . the knowledge and fear of an actual escape has had, and will have, lasting, direct injurious effects. . . . [S]he has experienced psychiatric/physical injuries as a direct result of the escape . . . ." The trial court, on the motion for summary judgment, rejected plaintiffs efforts to characterize their claim as inherently different from other tort claims that have been barred by the doctrine of sovereign immunity and the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3. See N.J.S.A. 59:1-2; Marcinczyk v. State of N.J. Police Training Comm'n, 203 N.J. 586, 594-95 (2010); Polzo v. County of Essex, 196 N.J. 569 (2008); Vincitore v. Sports & Exposition Auth., 169 N.J. 119 (2001).
The judge delivered an oral opinion in which he held that "the facts of this case fall within the immunity provisions of" N.J.S.A. 59:5-2b. He disagreed with plaintiffs that a distinguishing element was to be found because of "the injury being caused by somebody other than the escapee." He opined:
It was the act of escaping and his not being confined that led to the alleged injury [of plaintiffs]. I think whenever there's an escape there's an assumption or there could be an argument that there is always negligence by the State or whatever law enforcement is in charge of keeping the inmate confined. So I feel like it clearly falls within the statute.
The judge continued: And then given the strong language in Tice[v. Cramer, 133 N.J. 347 (1993),] I also feel constrained . . . that essentially what Tice is saying is that the statute is very, very broad and they say it would plainly violate the legislative intent if particular words of the statute were given such technical meanings that a case fell between the cracks of the immunity. . . . [T]he negligence counts would fall within my previous rationale or whether it's a failure to pro[t]ect that would fall within immunity under [N.J.S.A.] 59:5-4. The [§]1983 [Fourteenth] Amendment claims . . . ...