On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4860-07.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Sapp-Peterson and Fasciale.
The opinion of the court was delivered by SAPP-PETERSON, J.A.D.
We granted defendants leave to appeal an interlocutory order denying their motion for summary judgment based upon qualified immunity. Plaintiff, an attorney, commenced an action against defendants asserting common law and civil rights claims, stemming from the physical attack during the course of a meeting with her client, a patient at Ancora Psychiatric Hospital (Ancora). Plaintiff alleges that she sustained both physical and mental injuries as a result of the attack. Plaintiff claims the attack was caused by a state-created danger that violated her substantive due process right under the Fourteenth Amendment to the United States Constitution. In denying defendants' motion, the motion judge concluded that the question of whether plaintiff's injuries resulted from a state-created danger and whether defendants were entitled to qualified immunity were factual questions for the jury.
We hold that the facts, when viewed most favorably towards plaintiff, raise a triable issue of fact as to whether defendants affirmatively placed plaintiff in a position of danger for purposes of asserting a substantive due process claim under the Fourteenth Amendment. We additionally hold that whether defendants are entitled to qualified immunity is a question of law for resolution by the court. In that regard, we conclude, because the right asserted was not clearly established at the time plaintiff was attacked, defendants are entitled to qualified immunity.
The factual allegations surrounding plaintiff's claims are not disputed. At the time of her attack she was employed by the Department of the Public Advocate*fn1 and assigned to represent clients with mental illnesses in connection with their commitment to, treatment at, and discharge from psychiatric hospitals. On September 22, 2005, plaintiff went to Ancora to interview her clients in preparation for their weekly court hearings. During the course of the interview, without warning, B.R. attacked plaintiff, hitting her in the face while plaintiff's head was turned towards her notes. B.R. struck plaintiff several times, and when she attempted to flee, B.R. grabbed plaintiff by the hair and pulled her backwards until her head hit the floor. Plaintiff fought B.R. but claims she lapsed in and out of consciousness. Plaintiff recalled the hospital staff simply encouraging her to kick B.R., but that they did not attempt to immediately rescue her from the attack.
Ancora is a state psychiatric hospital administered by the New Jersey Division of Mental Health Services, a division of the Department of Human Services. The majority of patients at Ancora have been involuntarily committed.
Ancora has a well-documented history of problems. In the years preceding plaintiff's assault, the facility experienced hundreds of incidents of violence involving patient-to-patient attacks, as well as attacks upon staff and visitors. For example, between October 2003 and December 2005, there were 3,848 substantiated assaults, of which 810 involved assaults upon staff or visitors, and of that number, at least 200 resulted in injuries. Defendants were also aware, prior to the attack upon plaintiff, of multiple events of violence against professionals meeting with patient-clients. However, notwithstanding the documented and undisputed high incidence of assaultive behavior exhibited by its patients, Ancora did not afford attorneys such as plaintiff a secure location to conduct client interviews, nor implement any reliable system to monitor interview sessions between attorneys and their clients.
On the day that plaintiff conducted her interview of B.R., she met with him in the day room of Cedar Building A. The day room is a multi-purpose room where patients congregate. Plaintiff sat at a small table while she interviewed B.R. She positioned herself catty-corner at the table, rather than across from B.R., because the loud conditions in the day room prevented her from conducting the interview from a safer distance.
B.R. had been admitted to Ancora for sixteen days at that point and had been identified as requiring "close visual observation" (CVO), meaning that a staff member should keep the patient within eyesight at all times. No staff member, however, positioned himself or herself within sufficient proximity of plaintiff and B.R. during the interview, in order to respond quickly to any emergency. Nor did any staff person alert plaintiff to B.R.'s CVO status.
Plaintiff subsequently commenced a civil action against defendants, asserting both common law and civil rights claims. When defendants filed their summary judgment motions, they also sought dismissal of plaintiff's common law claims. The court granted this motion, and plaintiff did not seek leave to file an interlocutory appeal of this ruling.
As to the civil rights claim, which survived summary judgment, plaintiff's theory of liability is based upon her claim that defendants violated her right to substantive due process. Specifically, plaintiff contends that as B.R.'s attorney, she was responsible for rendering constitutionally-mandated legal services to a mentally ill client housed in a facility that defendants administered and controlled. Plaintiff maintains defendants were aware the professional services she rendered were provided under a locked custodial environment and that the physical conditions under which she provided legal services to B.R. were controlled by defendants. As a consequence, plaintiff urges "[t]he facts show a stubborn and chilling indifference on defendants' part to . . . [her] right to be free of a state-created danger, in an environment where . . [she] was wholly dependent upon . . . defendants[,] her litigation adversaries[,] for her security[.]"
Defendants contend the court erred in concluding that the question of whether they are entitled to qualified immunity is a question of fact for the jury. They urge that the determination is a question of law and that the determination ...