November 28, 2017
appeal from Superior Court of New Jersey, Law Division,
Atlantic County, Docket No. L-0964-07.
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).
Judges Fasciale, Sumners and Moynihan.
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.
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.
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.
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
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. 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
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.]
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.
affirming our opinion, the Supreme Court specifically