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Erica Turner and Eric Turner v. Township of Irvington

April 23, 2013

ERICA TURNER AND ERIC TURNER, PLAINTIFFS-RESPONDENTS,
v.
TOWNSHIP OF IRVINGTON, DEFENDANT-APPELLANT, AND ANJEANETTE MONROIG, JAMES FLAGLER, AND AL MUTAH Q. SAUNDERS, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1533-07.

The opinion of the court was delivered by: Parrillo, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 4, 2013

Before Judges Parrillo, Sabatino and Maven.

Decided April 23, 2013

The opinion of the court was delivered by PARRILLO, P.J.A.D.

By leave granted, defendant the Township of Irvington (defendant or Township) appeals from the denial of its motion for summary judgment dismissal of those counts of plaintiffs' complaint seeking to hold defendant vicariously liable for the conduct of its employees. Defendant argues that N.J.S.A. 52:17C-10(d), which immunizes 9-1-1 operators for conduct that is not wanton and willful, and N.J.S.A. 59:2-10, a general Tort Claims Act provision which immunizes public entities for the wanton and willful conduct of their employees, together prevent the Township from being held liable for its operators' conduct regardless of their level of culpability. We agree, and accordingly reverse and remand.

We provide the factual background only to the extent necessary to illustrate the issues on leave to appeal, which revolve around the handling of emergency telephone calls by two Irvington 9-1-1 operators, and of course in the light most favorable to plaintiffs Erica Turner and Eric Turner. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Erica and her father Eric, as well as her mother and cousin, had repeatedly placed calls to 9-1-1 while Al Mutah Q. Saunders, Erica's former boyfriend and father of her five-month old daughter, was attempting to forcefully enter her residence on the evening of April 4, 2005, the same day he was served with a domestic violence final restraining order (FRO) obtained by Erica for her and her family's protection. The first of ten calls was made by Erica's mother at 6:30 p.m., reporting that Saunders was outside the door in violation of an outstanding FRO and had kidnapped her granddaughter.

Subsequent calls within the next twenty minutes grew increasingly more desperate as Saunders' conduct escalated. At 6:39 p.m., Erica reported Saunders was going to kick the door in and that she was fearful for her life. The next call at 6:41 p.m. was from her cousin, a Newark police officer, who related Erica's account that Saunders had a gun and was threatening to kill her. Erica herself reported the threat minutes later and immediately thereafter her father also charged that Saunders had a gun. The dispatchers on duty, James Flagler and Anjeanette Monroig, responded that they would send officers to the scene as soon as they became available. When Erica's mother complained at 6:49 p.m. that no one had yet responded, one of the operators replied "you have to take that up with the mayor." The last call was placed by Erica at 7:51 p.m., who reported that Saunders was now inside the building, beyond the second door, and kicking at her apartment door.

Two police officers arrived at the scene at 8:36 p.m., nine minutes after receiving a call from the dispatcher (at 8:27 p.m.) to respond to the Turner residence. While the officers were informed that there was a "dispute," they were not told that a gun was involved or that the suspect was in violation of an FRO. By the time the officers arrived, Saunders had left.

One week later, on April 11, 2005, at approximately 6:15 a.m., Erica found Saunders climbing into her apartment through a window. Saunders had a gun and said to Erica, "I'm going to kill you, bitch." He struck her on the head with the gun, and ordered her to put clothes on their infant daughter. Erica complied and all three left the apartment, with Saunders holding the gun to Erica's back. When they encountered Erica's father approaching in the driveway, Saunders shot Eric. He then forced Erica to drive them onto the Turnpike and then Route 78, where they were chased by police cars. Eventually, Saunders was arrested after a four-hour standoff.

Plaintiffs subsequently sued the Township, Monroig, Flagler and Saunders. As to the former, the complaint included counts sounding in both vicarious and direct liability. The latter counts, alleging negligent hiring/supervision, negligent training, negligent retention and civil conspiracy, were eventually dismissed on the Township's motion for summary judgment, as were those counts alleging intentional torts. As a result of these pre-trial rulings, the only ...


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