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Paris Wilson, An Infant By His Guardian Ad Litem, Sonya Manzano, and v. City of Jersey City

March 8, 2012

PARIS WILSON, AN INFANT BY HIS GUARDIAN AD LITEM, SONYA MANZANO, AND D'ARTAGNAN MANZANO, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATES OF DEQUAN WILSON AND DARTAGNANIA WILSON, AND DEQUAN WILSON AND DARTAGNANIA WILSON, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
CITY OF JERSEY CITY, 911 OPERATOR LAURA JEAN PETERSEN (OPERATOR NO. 35) AND 911 OPERATOR BRENDA MURDAUGH-JONES (OPERATOR NO. 326), DEFENDANTS-APPELLANTS,
AND POLICE OFFICER JOSE M. SANTANA (SHIELD NO. 2853), POLICE OFFICER ERNEST VIDAL (SHIELD NO. 2395), RADIO DISPATCHER MICHAEL EDWARD CLARK, STATE OF NEW JERSEY, NEW JERSEY STATE POLICE, AND 911 OPERATOR LU ANN BURD, DEFENDANTS, AND CITY OF JERSEY CITY, POLICE OFFICER JOSE M. SANTANA (SHIELD NO. 2853), POLICE OFFICER ERNEST VIDAL (SHIELD NO. 2395), 911 OPERATOR LAURA
JEAN PETERSEN (OPERATOR NO. 35), RADIO DISPATCHER MICHAEL EDWARD CLARK, AND 911 OPERATOR BRENDA MURDAUGH-JONES (OPERATOR NO. 326), DEFENDANTS-THIRD-PARTY PLAINTIFFS,
v.
DWAYNE WILSON AND 185 MARTIN LUTHER KING DRIVE, LLC; STATE OF NEW JERSEY, NEW JERSEY STATE POLICE, THIRD-PARTY DEFENDANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at The opinion of the court was delivered by: Justice Albin

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)

Paris Wilson v. City of Jersey City (A-61/62-10) (066782)

Argued October 12, 2011 -- Decided March 8, 2012

ALBIN, J., writing for a unanimous Court.

The issue in this appeal is whether the 9-1-1 immunity statute, N.J.S.A. 52:17C-10, provides immunity to 9-1-1 operators and their public-entity employers from civil liability for the negligent mishandling of emergency calls.

Shortly after 12:00 a.m. on September 20, 2005, Dwayne Wilson brutally stabbed his sister Marcia and her three children, including nine-year-old Paris, in their Jersey City apartment at 207 Wegman Parkway (also known as 185 Martin Luther King Drive). Paris lapsed in and out of consciousness, spoke to his siblings at one point, and on the morning of September 21, gathered enough strength to call 9-1-1. Police found him grievously wounded. His mother and siblings were dead.

At the time of the attack, Anthony Andrews, who was temporarily living with his sister in an apartment across the hall, called 9-1-1. The call was routed to a State Police Public Safety Answering Point (PSAP) (known as a 9-1-1 call center). When the 9-1-1 operator answered, Andrews reported that he "heard somebody screaming next door, inside this building" at "227 Wegman." The call was transferred to Jersey City's PSAP, where 9-1-1 Operator Laura Jean Petersen answered and asked for a location. Andrews responded, "185 Wegman." He stated: "I hear some screamin'" and "I don't know what's going on next door."

Petersen prepared a computer-aided dispatch (CAD) ticket, a narrative of the call, for transmittal to a police dispatcher. The CAD ticket listed the incorrect address given by Andrews, "185 WEGMAN PKWY," which he had confused because the building had two addresses. Also, Petersen never asked Andrews what he meant by "next door" and so she mistakenly wrote "the house next door" rather than an apartment. Petersen also violated police procedures by not asking for the caller's name or confirming the number he was calling from. After receiving the CAD ticket, a dispatcher radioed police officers to "Check 185 Wegman Parkway," noting that "caller states he hears someone screaming from the house next door." The officers found the building at 185 Wegman unoccupied, ultimately found nothing amiss, and left. Approximately twenty-two hours later, at 11:00 p.m. on September 20, Andrews called 9-1-1 again. Operator Brenda Murdaugh-Jones answered, and Andrews stated that he called "last night because I heard a little bit of noise and reckin' in the building across the hall," but nobody ever came. Murdaugh-Jones interrupted Andrews and asked if he had "a life threatening emergency that's going on right now," and he replied, "No . . . it happened last night." The operator began to inform Andrews of the non-emergency number. Andrews interrupted, "See they should have come yesterday," and hung up.

Plaintiffs filed a civil action alleging that defendant City of Jersey City and defendant 9-1-1 Operators Petersen and Murdaugh-Jones (the only defendants relevant to this appeal) engaged in negligence, gross negligence, or wanton and willful disregard for the safety of others. The trial court dismissed the claims against defendants, finding that they were protected by statutes including the 9-1-1 immunity act, N.J.S.A. 52:17C-10, and that there was insufficient evidence of wanton and willful conduct needed to vault the immunity statute. The Appellate Division reversed. 415 N.J. Super. 138 (2010). Regarding the 9-1-1 immunity statute, the panel reasoned that only subsection (e) of N.J.S.A. 52:17C-10 is potentially applicable, but that it applies only after an investigation is underway and no investigation commenced until Paris was found alive on September 21. The Court granted certification. 205 N.J. 80 (2010).

HELD: N.J.S.A. 52:17C-10 provides immunity to 9-1-1 operators and their public-entity employers for negligence in delivering 9-1-1 services, including the mishandling of emergency calls. Because the statute does not protect conduct that constitutes wanton and willful disregard for safety, that issue must be addressed on remand.

1. If the language of a statute is ambiguous or a literal reading would yield an absurd result, particularly one at odds with the overall statutory scheme, the Court may look to extrinsic guides such as legislative history. (pp. 17-20)

2. A 9-1-1 emergency system requires collaboration between private telecommunications companies, which provide equipment to relay calls to appropriate PSAPs, and governmental agencies operating PSAPs, which are manned by trained operators who gather and convey information to the appropriate police, fire, or first-aid emergency personnel. In 1989, the Legislature enacted legislation establishing an enhanced 9-1-1 system, which mandated the provision of systems and services by telephone companies, counties, and municipalities. At that time, section (b) of N.J.S.A 52:17C-10 provided immunity to 9-1-1 operators for their "good faith" rendering of PSAP services to 9-1-1 callers. In 1999, in response to federal law, the Legislature amended the statute to confer the same immunity to wireless carriers that was provided to telephone companies. The amendment deleted subsection (b) and replaced it with the immunity scheme contained in subsections (c), (d), and (e). (pp. 20-26)

3. Amended N.J.S.A. 52:17C-10 expands the immunity provided to telecommunications companies, PSAPs, and their employees. Subsection (c) applies to the release of personal information. Subsection (d) provides immunity for harm "resulting from or caused by any act, failure or omission in the development, design, installation, operation, maintenance, performance or provisioning of any hardware, software, or any other aspect of delivering enhanced 9-1-1 service." This covers equipment failure and, in the Court's view, errors made in dispatching first-responders. Subsection (e) applies to mistakes made in assisting an ongoing investigation. Subsection (d) provides protection from criminal liability. Subsections (d) and (e) extend immunity for civil damages to "any person," not just a user of 9-1-1 services. Subsections (c), (d), and (e) eliminate immunity only if the failure resulted from "a wanton and willful disregard for the safety of persons or property." Nothing in the legislative history suggests an intention to contract the immunity previously granted to governmental agencies and employees operating PSAPs. (pp. 26-31)

4. The appellate panels in this case and in Massachi v. City of Newark Police Department, 415 N.J. Super. 518 (App. Div. 2010), concluded that the amendments contracted immunity for 9-1-1 operators, while expanding immunity to telecommunications carriers. This result does not logically follow from the statute's language and is inconsistent with the legislative purpose and history. Under Massachi's reading of the amended statute, 9-1-1 operators who mishandle calls dispatching first-responders have no immunity under subsection (d), but they have immunity under subsection (e) for mishandling calls in ongoing investigations. The Massachi panel determined that the words in subsection (d), "development, design, installation, operation, maintenance, performance or provisioning of any hardware[] [or] software," should be construed as limiting the more general phrase that follows, "any other aspect of delivering enhanced 9-1-1 service." However, applying a counter canon of statutory construction to interpret the latter phrase as a catchall, broadly providing immunity for 9-1-1 operators, is faithful to the Legislature's intent. Construing the statute otherwise yields absurd results: the careless design of software receives immunity but a 9-1-1 operator fielding a frantic call does not; telecommunications companies receive expansive protection from costly lawsuits but municipalities do not, when both are compelled to participate in the 9-1-1 system; protections are expanded to wireless telecommunications companies, while 9-1-1 operators and their employers lose the protection they once had; and 9-1-1 operators are immune when they assist an ongoing investigation but not when they carry out their primary function of handling emergency calls that require the immediate dispatch of first-responders. (pp. 32-39)

5. Reading N.J.S.A. 52:17C-10 as a whole, giving meaning to each part, and being faithful to its prior version leads to interpreting subsection (d) as providing immunity to 9-1-1 operators for their handling of emergency calls-the primary function of the 9-1-1 system-and to interpreting subsection (e) as providing immunity for their assistance in ongoing law enforcement investigations. Thus, in this case, the 9-1-1 operators and the City are immune for any negligent mishandling of the emergency calls under N.J.S.A. 52:17C-10(d) that does not rise to "wanton and willful disregard for the safety of persons or property." The tragic events in this case naturally evoke sympathy. However, the Legislature has decided that the overall benefits of an enhanced 9-1-1 system require that telecommunications and public entities, and their personnel, be shielded from costly lawsuits for negligent mistakes. (pp. 39-43)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate Division for further proceedings consistent with the Court's opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, HOENS, and PATTERSON; and JUDGE WEFING (temporarily assigned) join in JUSTICE ALBIN's opinion.

Argued October 12, 2011

JUSTICE ALBIN delivered the opinion of the Court.

In this appeal, we must determine whether 9-1-1 operators, along with their public-entity employers, are statutorily immune from civil liability for the negligent mishandling of emergency calls. The paramount issue before us is the scope of the 9-1-1 immunity statute, N.J.S.A. 52:17C-10.

The panels in Massachi v. City of Newark Police Department, 415 N.J. Super. 518, 522 (App. Div. 2010) and in this case, Wilson ex rel. Manzano v. City of Jersey City, 415 N.J. Super. 138, 157, 165 (App. Div. 2010), concluded that, under N.J.S.A. 52:17C-10, 9-1-1 operators are not immune for mistakes made when they dispatch police, fire, or first-aid personnel to the scene of an emergency, but are immune for mistakes made when they assist police in an ongoing investigation. Under this construction of the statute, 9-1-1 operators have no immunity for errors committed in carrying out their primary responsibility -- dispatching first-responders to the scenes of emergencies, but have immunity for a secondary responsibility --providing assistance to an ongoing police investigation. Under this interpretation of N.J.S.A. 52:17C-10, 9-1-1 operators do not share the same statutory immunity that shields police, fire, or first-aid personnel from liability for their missteps in responding to the scene of an emergency.

In this case, the Wilson appellate panel overturned the trial court's grant of summary judgment in favor of two 9-1-1 operators, as well as their public employer, who were sued because of their alleged negligent handling of an emergency call reporting a disturbance that, in fact, turned out to be a multiple homicide. We now reverse and remand.

In creating an enhanced 9-1-1 system that would allow police, fire, and first-aid personnel to respond to emergencies, the Legislature mandated the participation of telecommunications companies and governmental entities. In exchange for this compelled cooperation, the Legislature apparently devised a statute, N.J.S.A. 52:17C-10, to shield public and private entities, and their personnel, from civil liability for certain acts of ordinary negligence arising from the operation of the 9-1-1 system. No one disputes that these entities and their personnel are not immune for acts or omissions constituting "a wanton and willful disregard for the safety of persons or property." N.J.S.A. 52:17C-10(d) and (e).

In light of the language of N.J.S.A. 52:17C-10, its legislative history, and the overall objectives of the statutory scheme, we conclude that the enactment confers immunity on the 9-1-1 operators and public entity in this case for any negligence in the "delivery" of 9-1-1 services, including the mishandling of emergency calls. Although we reverse on this issue, we nevertheless remand to the Appellate Division to address an issue it left undecided: whether the conduct of the 9-1-1 operators constituted wanton and willful disregard for the safety of persons, conduct that would deny defendants protection under the 9-1-1 immunity statute.

I. A.

We begin with some basic principles of law. Our review of the meaning of a statute is de novo, and we owe no deference to the interpretative conclusions reached by the trial court and Appellate Division. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); see also Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). In determining whether summary judgment was properly granted based on the record, we apply the same standard governing the trial court -- we view the evidence in the light most favorable to the non-moving party. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); see also R. 4:46-2(c). Here, the trial court granted summary judgment against plaintiffs, the non-moving parties. With these principles in mind, we now turn to the facts, viewing them in the light most favorable to plaintiffs.

B.

Sometime shortly after 12:00 a.m. on September 20, 2005, Dwayne Wilson carried out a brutal rampage, repeatedly stabbing his sister Marcia Wilson and her three children, Paris, age nine, DeQuan, age eleven, and Dartagnania, age eleven, in their Jersey City apartment located at 207 Wegman Parkway (also known as 185 Martin Luther King Drive). Having survived the attack, Paris lay unconscious until around 9:45 a.m., when he awoke for about an hour. He spoke with his brother, DeQuan, and sister, Dartagnania, who were seriously injured and lying on the floor. His sister asked for water, and his brother told them "to look for the phone." Paris was unable to help them and lapsed back into unconsciousness. The next morning, September 21, when Paris regained consciousness, he retrieved his mother's cellular telephone and called 9-1-1. Shortly afterwards, police officers arrived in the apartment where they found Paris grievously wounded but alive. His mother, brother, and sister were dead.

C.

At the time of the attack, Anthony Andrews was temporarily living with his sister in an apartment at 207 Wegman Parkway, across the hall from the Wilson family. After hearing a disturbance coming from the Wilson apartment, Andrews called 9-1-1 using his sister's cellular telephone. That call was automatically routed to a New Jersey State Police Public Safety Answering Point (PSAP)*fn1 , commonly referred to as a 9-1-1 call center. At 12:52 a.m., State Police 9-1-1 Operator Lu Ann Burd received Andrews's call:*fn2

[Burd]: 9-1-1, where is your emergency?

Andrews: Hello, um, um at 227 Wegman. We heard somebody screaming next door, inside this building right here. [Burd]: What town?

Andrews: Jersey City. [Burd]: Alright hold on I'll connect you into the police department out there, hold on. [(Emphasis added).]

At this point, Burd transferred Andrews to the Jersey City Police Department's PSAP, where 9-1-1 Operator Laura Jean Petersen picked up the call. Petersen then took information from Andrews:

[Petersen]: 911 operator 3-5, where is your emergency? [Andrews]: Uh -- 185 -- Wegman . . . [Petersen]: 185 We -- [Andrews]: Yeah, I hear some screamin' and throwing stuff, so I don't know what's going on next door. Somebody's fighting or something. [Petersen]: Okay, and that's 185 Wegman Parkway? [Andrews]: Yeah. [Petersen]: Okay, we're going to get someone over there as soon as possible, Sir. [Andrews]: Alright bye. [Petersen]: Thank you, bye bye now. [(Emphasis added).]

Petersen then prepared a computer-aided dispatch (CAD) ticket, a computerized textual narrative of the 9-1-1 call, for transmittal to a Jersey City Police dispatcher.*fn3 The CAD ticket that Petersen generated contained a number of errors. First, Petersen listed the incorrect address given to her by Andrews: "185 WEGMAN PKWY." Andrews undoubtedly was confused because the building in which he was temporarily residing had two addresses, 207 Wegman Parkway and 185 Martin Luther King Drive. Second, in the narrative portion of the dispatch ticket, Petersen wrote that "[Reporting party] hears screaming coming from the house next door, no further info." Petersen failed to ask Andrews what he meant by "next door" and mistakenly assumed that he was describing an adjacent house rather than an adjacent apartment. Third, Petersen did not ask the caller's name or confirm the telephone number from which he was calling, a violation of the Jersey City Police Department Call Taker Policy and Procedure Manual.*fn4 Fourth, Andrews called from his sister's cell phone. Nevertheless, Andrews's telephone number -- not his sister's --was automatically generated from his cellular service provider's billing information.*fn5

The flawed CAD ticket was forwarded to Jersey City Police Dispatcher Michael Edward Clark, who in turn radioed Officers Jose Santana and Ernest Vidal to "Check 185 Wegman Parkway." In his dispatch, Clark added that "caller states he hears someone screaming from ...


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