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Parsons v. Mullica Twp. Bd. of Educ.

Superior Court of New Jersey, Appellate Division

March 30, 2015

RACHEL A. PARSONS, a minor by her parents and guardians ad litem, HOWARD PARSONS and MICHELLE PARSONS, and HOWARD PARSONS and MICHELLE PARSONS, individually, Plaintiffs-Respondents,
v.
MULLICA TOWNSHIP BOARD OF EDUCATION and JUDITH M. GRASSO, R.N., B.A., C.S.N., Defendants-Appellants, and SABAH AMIR, M.D. and WALTER D. CRANE, D.O., Defendants

Argued February 23, 2015

Approved for Publication March 30, 2015.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6954-13.

Thomas G. Smith argued the cause for appellants.

Richard N. Shapiro of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondents ( Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, and Mr. Shapiro, attorneys; Joseph E. Sayegh, on the brief).

Before Judges SIMONELLI, GUADAGNO and LEONE. The opinion of the court was delivered by LEONE, J.A.D.

Page 145

[440 N.J.Super. 81] OPINION

[440 N.J.Super. 82] LEONE, J.A.D.

Defendants, the Mullica Township Board of Education (Board) and Judith M. Grasso (collectively " defendants" ), appeal the denial of their motion for summary judgment in a suit brought on behalf of then-minor plaintiff Rachel A. Parsons by her parents and guardians ad litem Howard and Michelle Parsons, who also sue on their own behalf. Because defendants are immune under N.J.S.A. 59:6-4, we must reverse and remand.

I.

For purposes of summary judgment only, the parties treat as fact the following allegations by plaintiffs. From the 2001/2002 school year through at least 2004, Rachel was a student at the Mullica Township Elementary School operated by the Board. During that time, Grasso was employed by the Board as a registered nurse (RN) and certified school nurse (CSN). As part of her duties, Grasso conducted a screening test for visual acuity on Rachel. Rachel failed the vision screening in her right eye, but Rachel's parents were not notified of this failure, and Rachel was not referred for further vision testing. Defendants did not provide Rachel's parents with the vision acuity test results from 2001/2002 until Rachel failed her next school vision screening in May 2004. The delay in notification resulted in a two-year delay in the diagnosis and treatment of Rachel's right eye amblyopia, and proximately

Page 146

caused the loss of sight in Rachel's right eye.[1]

Plaintiffs allege defendants breached their duty to give notice of the test results under N.J.A.C. 6A:16-2.2(k)(6). Plaintiffs filed a complaint in 2013, when Rachel was seventeen, seeking damages [440 N.J.Super. 83] for defendants' negligence and breach of duty under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3.[2]

Defendants filed a motion for summary judgment, claiming that they were immune under N.J.S.A. 59:6-4, and that Grasso was also immune under N.J.S.A. 18A:40-4.5. The trial court denied summary judgment by order and memorandum decision on August 22, 2014. We granted defendants' motion for leave to appeal.

II.

Summary judgment must be granted if the court determines " that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); accord Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). Given the parties' agreement to the facts for purposes of the motion for summary judgment, the motion raised only a legal issue of whether defendants have statutory immunity. " 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 . . . ." Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564, 39 A.3d 177 (2012). Moreover, " [a] ruling on summary judgment is reviewed de novo. We thus 'apply the same standard governing the trial court,' and do not defer to the trial court's . . . interpretation of 'the meaning of a statute . . . .'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405, 98 A.3d 1173 (2014) (citations omitted). We must hew to that standard of review.

III.

We first address defendants' claim that Grasso is immune under N.J.S.A. 18A:40-4.5. This requires consideration of the statutes and regulations requiring the visual acuity test.

[440 N.J.Super. 84] In 1967, the Legislature enacted the current " Education" title. L. 1967, c. 271. In the subtitle governing the conduct of schools, it included a chapter entitled " Health Promotion and Disease Prevention." N.J.S.A. 18A:40. In that chapter, the Legislature included N.J.S.A. 18A:40-4, which provides that a nurse or other health care personnel " shall examine every pupil to learn whether any physical defect exists." " The frequency and procedure of and selection of pupils for examinations shall comply with the rules of the State board." Ibid.

Under the regulations subsequently promulgated by the State Board of Education, " [e]ach district board of education shall ensure that students receive health screenings." N.J.A.C. 6A:16-2.2(k). In particular, " [s]creening for visual acuity shall be conducted biennially for students in kindergarten through grade 10." N.J.A.C. 6A:16-2.2(k)(2).

Page 147

" Screenings shall be conducted by a school physician, school nurse, or other school personnel properly trained." N.J.A.C. 6A:16-2.2(k)(5). " The school district shall notify the parent of any student suspected of deviation from the recommended standard." N.J.A.C. 6A:16-2.2(k)(6).

In 1978, the Legislature passed " AN ACT concerning the examination of pupils for the condition known as scoliosis," the abnormal curvature of the spine (Scoliosis Act). L. 1978, c. 97, § § 1-3, codified at N.J.S.A. 18A:40-4.3 to -4.5. The Scoliosis Act required biennial examinations for scoliosis by " a school physician, school nurse, physical education instructor or other school personnel." N.J.S.A. 18A:40-4.3; see N.J.A.C. 6A:16-2.2(k)(4). The final section of the Scoliosis Act provided that " [n]o action of any kind in any court of competent jurisdiction shall lie against any physician, school nurse, physical education instructor or other school personnel by virtue of the provisions of this act. " L. 1978, c. 97, § 3, codified at N.J.S.A. 18A:40-4.5 (emphasis added).

The natural reading of " this act" in N.J.S.A. 18A:40-4.5 refers to the Scoliosis Act of which it is a part. Nonetheless, defendants argue N.J.S.A. 18A:40-4.5 immunized Grasso for performing an examination under N.J.S.A. 18A:40-4. However, as noted above, N.J.S.A. 18A:40-4 was enacted eleven years earlier, with the [440 N.J.Super. 85] entire Education title. Defendants' argument would require us to read N.J.S.A. 18A:40-4.5 as immunizing all " school personnel" from any " action of any kind in any court of competent jurisdiction" for any violation of the entire Education title. We see no ...


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