On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-964-07.
The opinion of the court was delivered by: Fasciale, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Fasciale.
The opinion of the court was delivered by FASCIALE, J.A.D.
Defendants South Jersey Transportation Authority (SJTA) and the New Jersey State Police (NJSP) (collectively referred to as "defendants") appeal from a judgment in plaintiff Janet Henebema's favor, entered after a jury trial, and an order denying their motion for a remittitur. Plaintiff cross-appeals from an order denying her request for pre-judgment interest pursuant to Rule 4:58-2(a)(2).*fn1
The parties contested the predicate facts relevant to determining whether defendants either exercised discretionary decisionmaking or performed ministerial acts, a distinction central to applying the correct standard of liability under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. The structural question before us is whether a judge or jury resolves that threshold dispute. We hold that when the evidence establishes a genuine issue of material fact regarding whether the alleged failures of a public entity were the result of discretionary decisionmaking as to how to use its resources, or instead involved ministerial acts mandated by law or practice, then that fact issue must be submitted to the jury. The resolution of that factual dispute will guide the jury in applying either ordinary negligence law or the Act's "palpably unreasonable" standard. N.J.S.A. 59:2-3(d). Because the judge himself settled that fact-laden dispute here and charged a potentially erroneous standard of care, we reverse the judgment on liability and remand for a new trial. We affirm in all other aspects.
On December 4, 2005, between approximately 3:05 a.m. and 4:28 a.m., at least eight accidents occurred on the Atlantic City Expressway (the Expressway). Plaintiff's right leg was severed as a result of an accident that occurred near milepost 7.3. Four NJSP troopers were on duty that morning patrolling approximately a forty-four mile length on the Expressway. Troopers Christopher J. DeAngelis and James A. Clay patrolled in one police vehicle, and Troopers Bernard Tennant and Rod Nicholson patrolled in the other. According to an SJTA witness who testified at trial, no adverse weather conditions had been forecasted for the night in question. The morning, however, turned out to be hectic and chaotic due to unexpected poor weather conditions and the numerous accidents.
The first of several 9-1-1 calls to SJTA dispatch operators reporting four accidents at the scene where plaintiff was injured was made at 3:55 a.m. by Joshua Cooper, after he was involved in a single-car accident at milepost 7.3. Cooper reported that no injuries were suffered, "but [that] the car is kind of in a really bad spot [and] we can't move it." Cooper added that "[t]he car [is] sitting on the left, not moving."
Dispatcher Jeremiah Conner, of the SJTA, took Cooper's call and inquired whether Cooper hit a guardrail. Cooper responded, "No, hydroplaned on the snowy ice." Conner then asked, "[are] you in a bad . . . location?" Cooper replied: "Well yeah, [we are] like on the left, like right up like we slammed into the middle section thingy. . . . It happened in the left lane so we need to get it out of here." Conner ended the conversation by saying, "Ok[,] we'll get somebody out there[,] alright?" The transcript of that call includes several "[i]naudible" references, and includes the statement, "7 eastbound hit the guardrail[,] no injuries[,] it's in the left lane." In the same call, the dispatcher referred to another accident at milepost 16.2 west with one vehicle off the road.
At approximately 4:18 a.m., Conner received a call from Atlantic Cape MedCom.*fn2 The caller informed Conner that her supervisor at MedCom had just reported a subsequent two-car motor vehicle accident "at the 7 south exit." Conner responded, "Yes[,] we have that [and] we're getting somebody out there[,] we just have a lot of accidents right now."
At 4:22 a.m., Conner dispatched Cooper's call to the NJSP. Dispatch operator John Travis, who was also on duty that morning, testified that there was no dispatch call indicating that they were now also dealing with a two-car accident at milepost 7.3.
When Cooper's 3:55 a.m. call came in, one call was already "stacked," or piled up, because the four patrolling troopers were diverted to other accident locations. For example, at around 3:05 a.m., Troopers DeAngelis and Clay responded to an accident at milepost 26 and remained at that site until approximately 4:00 a.m., whereupon they proceeded further west to handle an earlier non-emergency call. Around the same time, Troopers Tennant and Nicholson responded to a vehicle accident at milepost 16.2 involving one fatality. While the troopers were at those accident scenes, four additional accidents occurred in succession at milepost 7.3 in the westbound lanes, one of which involved plaintiff.
Milepost 7.3 has a gradual incline that passes over the Garden State Parkway. A driver must reach the crest of the incline before the other side of the Expressway is visible. The four accidents occurred about 350 feet beyond the crest on an allegedly icy road surface. We discern the following facts regarding these four accidents, mindful that the disputed aspects of those facts will be relitigated at a new trial.
The first accident occurred at approximately 3:55 a.m. and involved the Cooper vehicle. Cooper traveled at approximately fifty-five to sixty miles per hour, reached the unsafe road surface, and lost control of his vehicle. His vehicle slammed into the Expressway's concrete median barrier and came to rest facing east at least partially in the far left westbound lane. Cooper activated his high beam lights, he and his passengers exited the vehicle, and they ran to the side of the Expressway. The troopers were unable to respond to Cooper's 9-1-1 call because they were at other accident scenes.
Approximately ten to fifteen minutes later, a second onecar accident occurred involving a vehicle driven by Michael R. Testa. Like Cooper, Testa approached milepost 7.3 and lost control of his vehicle, which stopped horizontally across the middle and left lanes of the three-lane westbound Expressway. Testa and his passenger exited his disabled vehicle and then Testa called 9-1-1. The troopers remained unable to respond due to other accidents.
Other drivers traveling westbound on the Expressway reached Cooper and Testa's disabled vehicles and successfully passed them using the right lane. An ambulance driver then happened on the scene, stopped in the middle lane, and activated the ambulance's emergency lights. Other drivers managed to pass the ambulance and disabled vehicles using the right lane. Before another accident occurred at the scene, defendants rejected emergency assistance that the Egg Harbor Township Police Department (Egg Harbor PD) offered to the NJSP.
A third accident then occurred at approximately 4:25 a.m. involving plaintiff's vehicle. Plaintiff was traveling in the middle lane, observed the flashing lights, and attempted to pass the ambulance on its left. Plaintiff's vehicle then collided with Testa's vehicle. Because her driver-side door was wedged against the concrete barrier, plaintiff exited from her passenger-side door and then stood on the Expressway.
A few minutes later, the fourth accident occurred, tragically injuring plaintiff. Domenico Raddi, Jr., approached milepost 7.3 at approximately fifty-five to sixty miles per hour, and his vehicle struck plaintiff's car and plaintiff while she was standing on the Expressway. The fourth accident occurred before troopers arrived at the scene. The computer-assisted dispatch (CAD) system data showed that the first police officer arrived at the scene at approximately 4:43 a.m., fifty minutes after the Cooper accident.
As noted, there were numerous calls coming in reporting accidents along other areas of the Expessway as well. There were three SJTA dispatchers on duty that morning, including Conner, Travis, and a supervisor, handling approximately eighty-eight transmissions during the relevant time period. As is the usual procedure, SJTA dispatch operators receive 9-1-1 calls, obtain information from the callers, enter it into the CAD, and then broadcast that information to the troopers on duty.
According to New Jersey Standard Operating Procedure F41 (SOP 41):
A. It is the responsibility of all enlisted and civilian radio and Public Safety Telecommunicators (PSTs) to obtain as much information as possible concerning the nature of a call for assistance/service prior to dispatching a trooper(s). Where information necessary to determine the nature of the required response, i.e., emergency or non-emergency, is not available, enlisted and civilian radio and Public Safety Telecommunicators shall advise the responding trooper(s) of same (e.g., unknown on injuries, unknown on traffic hazards or other hazardous conditions).
B. If enlisted and civilian radio and PSTs receive additional information pertaining to a call for assistance/service while a trooper(s) is responding to a call, such information shall immediately be dispatched to the responding trooper(s).
SOP 41 further required that troopers dispatched to the site of an emergency "respond to the scene of the crime, accident, or other incident, without delay, as quickly as possible, by the most direct means."
SOP 41 also classified calls for assistance/service in terms of priority:
I. Emergency Calls for Assistance/Service
a. Trooper in need of assistance (station in need of assistance)
d. Crime involving a deadly weapon in progress
e. Crime resulting in death or serious injury
f. Riot or large disturbance involving threats of violence, fighting, or injuries
g. Motor vehicle crashes/incidents resulting in injuries
h. Motor vehicle crashes/incidents resulting in potential traffic hazards
i. Motor vehicle crashes/incidents resulting in hazardous material leaks
j. Residential/Commercial alarms and ...