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Henebema v. Raddi

Superior Court of New Jersey, Appellate Division

December 6, 2017

JANET HENEBEMA, Plaintiff-Appellant,

          Argued November 28, 2017

         On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0964-07.

          Ralph A. Paolone argued the cause for appellant.

          Stephen M. Orlofsky argued the cause for respondents (Porzio, Bromberg & Newman, PC, Blank Rome LLP, J. Ric Gass (Gass Weber Mullins LLC) of the Wisconsin bar, admitted pro hac vice, and Michael B. Brennan (Gass Weber Mullins LLC) of the Wisconsin bar, admitted pro hac vice, attorneys; Mr. Orlofsky, Mr. Gass, Mr. Brennan, Adrienne C. Rogove and Eliyahu S. Scheiman, on the briefs).

          Before Judges Fasciale, Sumners and Moynihan.


          FASCIALE, J.A.D.

         This case involves a misapplication of Royster v. N.J. State Police, 439 N.J.Super. 554, 561 (App. Div. 2015), affd as modified, 227 N.J. 482 (2017), which held that "the doctrine of state sovereign immunity preclude[d] [a] plaintiff's [Americans with Disabilities Act (ADA)] claim, even though [the] defendants [had] not fully raise[d] that argument until their motion for a judgment notwithstanding the verdict (JNOV)." Plaintiff filed claims, not under the ADA, but rather, under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, which unlike under the ADA, are not federal law claims. By enacting the TCA, the Legislature waived state sovereign immunity, subject to the statute's provisions.

         Plaintiff appeals from orders dated December 7, 2015 and January 19, 2016 entered on remand granting summary judgment to South Jersey Transportation Authority (SJTA) and the New Jersey State Police (NJSP) (collectively defendants). In support of their motions, defendants belatedly raised the affirmative defenses of N.J.S.A. 52:17C-10 (9-1-1 dispatcher immunity) and N.J.S.A. 59:5-4 (failure to provide police protection). Plaintiff maintains that the judge exceeded the scope of detailed remand instructions from this court and the Supreme Court, and he otherwise erred as a matter of law.

         In a TCA case, when a public entity substantially waits before raising the affirmative defenses of N.J.S.A. 52:17C-10 and N.J.S.A. 59:5-4, we hold that the judge must first determine whether defendants waived those defenses. That is so because waiver negates reliance on the defenses. If the judge concludes that a public entity timely raised, and has not waived these affirmative defenses, then the judge should address whether dispositive relief is appropriate.

         Here, the judge granted summary judgment before resolving whether defendants waived the affirmative defenses, even though defendants raised them for the first time on remand, which occurred ten years after the accident; those ten years included three years of extensive pre-trial litigation, a lengthy and expensive trial, an appeal to us, and an appeal to the Supreme Court. We conclude that defendants waived the new affirmative defenses, reverse the orders, and re-remand for a liability trial on an expedited basis due to the age of this case.


         In December 2 005, plaintiff's leg was severed in a car accident. After the jury trial, the judge entered a judgment of $9, 002, 565.80 against defendants.[1] Defendants appealed from that judgment arguing primarily that the judge erred by failing to charge the jury on the correct standard required by N.J.S.A. 59:2-3(d). Henebema v. S. Jersey Transp. Auth., 430 N.J.Super. 485, 500 (App. Div. 2013), aff'd, 219 N.J. 481 (2014). On that issue, we stated:

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 [TCA]. 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 [TCA]'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.

[Id. at 491.]

         In rendering our decision, we remanded for a new trial on liability only. Id. at 517. We provided detailed instructions as to the procedure for resolving the ministerial versus discretionary issue at the re-trial. Id. at 506-07.

If, in the new liability trial, the jury determines that defendants had the discretion to determine, in the face of competing demands, whether and how to apply their existing resources, the jury would then be required to find whether that determination was palpably unreasonable. "Whether the conduct of the public entity or entities was 'palpably unreasonable' under all of the circumstances is a question for jury determination." Paternoster v. N.J. Dep't of Transp., 190 N.J.Super. 11, 20, 461 A.2d 759 (App. Div.), certif. denied, 96 N.J. 258, 475 A.2d 564 (1983). If, on the other hand, the jury determines that defendants had no discretion and were obligated, for example, to accept mutual aid and split up the troopers, then the jury would evaluate defendants' liability exposure using ordinary negligence principles. The final jury charge and verdict sheet must be tailored accordingly at the new trial.
We anticipate that the jury verdict sheet will contain questions for each disputed predicate fact where the record shows that defendants consciously considered whether to exercise discretion on how to utilize their resources. If the jury finds that the decision to decline mutual aid, for example, was discretionary, then they must determine, in accordance with the final charge, whether defendants' determination was palpably unreasonable. On the other hand, if they find that it was a ministerial act, then they must determine whether defendants acted negligently. The same applies to the other disputed predicate facts if the record shows that defendants consciously considered how to allocate their resources. By tailoring the verdict sheet to fit the facts at the new liability trial, any uncertainty regarding whether the jury found defendants negligent for discretionary decisions will be removed.


         In affirming our opinion, the Supreme Court specifically addressed ...

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