Rachel A. Parsons v. Mullica Township Board of Education

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0643-14T4

RACHEL A. PARSONS, a minor
by her parents and guardians ad
litem, HOWARD PARSONS and
MICHELLE PARSONS, and APPROVED FOR PUBLICATION
HOWARD PARSONS and MICHELLE
PARSONS, individually, March 30, 2015

APPELLATE DIVISION
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 – Decided March 30, 2015

Before Judges Simonelli, Guadagno and Leone.

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).

The opinion of the court was delivered by

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

2 A-0643-14T4
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 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 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.

1
Amblyopia, also referred to as "lazy eye," "is the medical term
used when the vision in one of the eyes is reduced because the
eye and the brain are not working together properly. The eye
itself looks normal, but it is not being used normally because
the brain is favoring the other eye." Nat'l Eye Inst.,
Amblyopia, https://www.nei.nih.gov/health/amblyopia (last
visited Mar. 9, 2015).
2
Plaintiffs' complaint also included counts against private
doctors who treated Rachel before and after 2001 for failing to
perform adequate vision screening and to properly diagnose and
treat her amblyopia.

3 A-0643-14T4
 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 (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

(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 (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.

4 A-0643-14T4
 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). "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.

5 A-0643-14T4
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 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 indication that the Legislature

intended N.J.S.A. 18A:40-4.5 to extend that far, or indeed

anywhere beyond the Scoliosis Act itself.

6 A-0643-14T4
 Thus, we agree with the trial court that N.J.S.A. 18A:40-

4.5 provides immunity only against actions brought "by virtue of

the provisions of" the Scoliosis Act, N.J.S.A. 18A:40-4.3 to

-4.5. It does not immunize Grasso for her conduct under

N.J.S.A. 18A:40-4 and N.J.A.C. 6A:16-2.2(k)(2) and (6).3

IV.

We next address defendants' claim that they are immune

under N.J.S.A. 59:6-4 of the TCA. In 1972, the Legislature

adopted the TCA, "which reestablished the rule of immunity for

public entities and public employees, with certain limited

exceptions." Marcinczyk v. State Police Training Comm'n, 203

N.J. 586, 594-95 (2010); see L. 1972, c. 45. The TCA "declared

to be the public policy of this State that public entities shall

only be liable for their negligence within the limitations of

this act and in accordance with the fair and uniform principles

established herein." N.J.S.A. 59:1-2. "Public entity" includes

any "district, public authority, public agency, and any other

political subdivision or public body in the State," including

the Board here. N.J.S.A. 59:1-3. Under the TCA, "immunity for

public entities is the general rule and liability is the

exception." Kemp by Wright v. State, 147 N.J. 294, 299 (1997);

3
The legislative history does not reveal why the Legislature
included N.J.S.A. 18A:40-4.5 in the Scoliosis Act, given the
immunity earlier provided in N.J.S.A. 59:6-4.

7 A-0643-14T4
accord D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130,

134 (2013) (describing that rule as "the 'guiding principle' of

the [TCA]").

The Supreme Court in Kemp found that "N.J.S.A. 59:6-4 of

the TCA is consistent with that policy," because N.J.S.A. 59:6-4

establishes a "general rule of absolute immunity." Kemp, supra,

147 N.J. at 300. N.J.S.A. 59:6-4 provides:

Except for an examination or diagnosis
for the purpose of treatment, neither a
public entity nor a public employee is
liable for injury caused by the failure to
make a physical or mental examination, or to
make an adequate physical or mental
examination, of any person for the purpose
of determining whether such person has a
disease or physical or mental condition that
would constitute a hazard to the health or
safety of himself or others. For the
purposes of this section, "public employee"
includes a private physician while actually
performing professional services for a
public entity as a volunteer without
compensation.

The Court stated that "N.J.S.A. 59:6-4 can be divided into

two sections." Kemp, supra, 147 N.J. at 300. "The first

section provides absolute immunity for the failure to perform an

adequate examination 'for the purpose of determining whether [a]

person has a disease or physical or mental condition that would

constitute a hazard to the health or safety of himself or

others.'" Ibid. (quoting N.J.S.A. 59:6-4). "The second section

establishes an exception to the general rule of absolute

8 A-0643-14T4
immunity if the examination is 'for the purpose of treatment.'"

Ibid. (quoting N.J.S.A. 59:6-4).

Here, it is undisputed that the health screening of Rachel

for visual acuity was not made "for the purpose of treatment."

N.J.S.A. 59:6-4. Rather, it was made "for the purpose of

determining whether [she had] a disease or physical or mental

condition that would constitute a hazard to [her] health or

safety." Ibid. N.J.S.A. 59:6-4 "provides absolute immunity"

regarding examinations for that purpose. Kemp, supra, 147 N.J.

at 300.

Defendants therefore contend they are immune under N.J.S.A.

59:6-4. Plaintiffs offer several arguments why that section

should not apply here.

A.

First, plaintiffs contend that the health screening of

Rachel was not "a physical or mental examination." N.J.S.A.

59:6-4. The TCA does not define that phrase, but the

legislative history of N.J.S.A. 59:6-4 gives examples

illustrating what the phrase includes. The 1972 Report of

Attorney General's Task Force on Sovereign Immunity4 accompanied

the draft legislation that was adopted as the TCA. Del Tufo v.

4
The Report is reprinted in Harry A. Margolis & Robert Novack,
Claims Against Public Entities at 581-662 (Gann 2015).

9 A-0643-14T4
Twp. of Old Bridge, 278 N.J. Super. 312, 323 (App. Div. 1995),

aff’d, 147 N.J. 90 (1996). The Report included a portion

reprinted as the Comment to N.J.S.A. 59:6-4. See Kemp, supra,

147 N.J. at 302. The Comment states that "[t]he immunity

granted [by N.J.S.A. 59:6-4] pertains to the failure to perform

adequate public health examinations, such as public tuberculosis

examinations, physical examinations to determine the

qualifications of boxers and other athletes, and eye

examinations for vehicle operator applicants." Comment to

N.J.S.A. 59:6-4. The Supreme Court in Kemp explained that

"[a]lthough the examples listed in the Comment to N.J.S.A. 59:6-

4 were not intended to be exclusive, their general descriptions

must be construed to embrace only other illustrations that are

similar in nature to those enumerated." Kemp, supra, 147 N.J.

at 303.

By that measure, visual acuity screenings for students are

"public health examinations." Comment to N.J.S.A. 59:6-4. They

are similar in nature to "public tuberculosis examinations" and

"eye examinations for vehicle operator applicants," ibid.,

because they are "conducted for diagnostic purposes only" and,

"[o]nce the examination . . . is complete, the public entity

takes no further action of a medical nature," Kemp, supra, 147

N.J. at 303.

10 A-0643-14T4
 Further, when N.J.S.A. 59:6-4 was amended in 1983,5 "the

statement of the Senate Labor, Industry and Professions

Committee which accompanied the amendment noted that the

immunity granted by the statute 'pertains to the failure to

perform adequate public health examinations, such as

tuberculosis, scoliosis, hearing, eye, mental, and other

examinations for public health purposes.'" Del Tufo, supra, 278

N.J. Super. at 323; see Kemp, supra, 147 N.J. at 302 (citing

Senate Labor, Indus. & Professions Comm. Statement, No. 524, L.

1983, c. 184). Here, the visual acuity screenings were eye

examinations for public health purposes.

Such examinations may be performed by a school. Indeed,

Kemp involved a high school's pre-vaccination screening

examination of students and resulting vaccination for measles.

Kemp, supra, 147 N.J. at 297-98. The Supreme Court stated that

"[i]f the purpose of the screening examination was to inform

[the student] whether she had measles, such an examination would

have been similar to testing for tuberculosis or visual fitness

to operate a motor vehicle, and would fit perfectly into the

group of public health examinations articulated in the Comment."

5
The amendment added the last sentence of N.J.S.A. 59:6-4, which
is not implicated here. L. 1983, c. 184, § 1.

11 A-0643-14T4
Id. at 303.6 Here, the purpose of the visual acuity screening

was simply to inform Rachel's parents if she had vision

problems, and the screening thus "fit perfectly into the group

of public health examinations articulated in the Comment."

Ibid.

Plaintiffs argue that a visual acuity screening is not a

physical examination under N.J.A.C. 6A:16 and the Mullica

Township Board of Education's regulations. However, those

regulations by the State Board of Education and by Mullica

Township have nothing to do with the TCA. Those regulations

cannot determine, limit, or redefine the Legislature's intent in

enacting the TCA in 1972. They cannot dictate what examinations

the Legislature intended to encompass within the immunity

granted by N.J.S.A. 59:6-4.7

6
Kemp held immunity did not apply only because the vaccination
was treatment, id. at 300-03, and "the pre-vaccination
examination was an examination for the purpose of treatment, and
therefore falls within the exception to the TCA grant of
immunity [in N.J.S.A. 59:6-4]," id. at 304. "N.J.S.A. 59:6-4's
grant of immunity 'does not apply to examinations for the
purpose of treatment such as are ordinarily made in doctors'
offices and public hospitals,'" like vaccinations. Id. at 302
(quoting Comment to N.J.S.A. 59:6-4).
7
Thus, we need not decide whether N.J.A.C. 6A:16-2.2(k)(2)'s
requirement for visual acuity screening falls within the
definition of "[p]hysical examination" in the regulations of the
State Board and Mullica Township's Board. We note those
definitions each include as physical examinations the "specific
(continued)

12 A-0643-14T4
 Plaintiffs stress that those regulations specify what type

of health care professional can perform certain physical

examinations, and do not include an RN or CSN such as Grasso.

However, immunity does not turn on the type of license possessed

by the "public employee" tasked with performing a physical

examination. N.J.S.A. 59:6-4. Under the TCA, "'[p]ublic

employee' means an employee of a public entity," and

"'[e]mployee' includes an officer, employee, or servant, whether

or not compensated or part-time, who is authorized to perform

any act or service." N.J.S.A. 59:1-3. It is undisputed that

Grasso was authorized to perform the visual acuity screenings.

N.J.A.C. 6A:16-2.2(k)(5), -2.3(b)(3)(ii).

Accordingly, we hold that the visual acuity screening here

was a physical examination under N.J.S.A. 59:6-4.

B.

Plaintiffs also argue that even if N.J.S.A. 59:6-4

immunizes the "screening for visual acuity" required by N.J.A.C.

6A:16-2.2(k)(2) as a physical examination, it does not immunize

the failure to "notify the parent of any student suspected of

deviation from the recommended standard" under N.J.A.C. 6A:16-

2.2(k)(6). They assert their claim addresses only the failure

(continued)
procedures required by statute as stated in N.J.A.C. 6A:16-2.2."
E.g., N.J.A.C. 6A:16-1.3.

13 A-0643-14T4
to give notice of the examination results, and does not claim a

"failure to make a physical or mental examination, or to make an

adequate physical or mental examination." N.J.S.A. 59:6-4.

In common experience, physical examinations involve a

three-step process: arranging to have an examination; conducting

the examination; and reporting the results of the examination.

The exception plaintiffs seek to carve out of N.J.S.A. 59:6-4

would excise from such examinations their necessary concluding

step. This is illustrated by the examples given in the

legislative history. "[P]ublic tuberculosis examinations" would

be of little use if the examiner kept the results to herself.

Comment to N.J.S.A. 59:6-4. "[P]hysical examinations to

determine the qualifications of boxers and other athletes, and

eye examinations for vehicle operator applicants," are followed

by notification to the athletes or applicants of whether they

are qualified. Ibid. A physical or mental examination which

fails to communicate or inadequately communicates the results is

not "an adequate physical or mental examination." N.J.S.A.

59:6-4.

Plaintiffs contend that in the Comment's examples, the

examiner presumably directly notifies the person examined, who

is an adult or, for driver's license applicants, at least

sixteen years old. N.J.A.C. 13:21-7.1. Plaintiffs note that

14 A-0643-14T4
Rachel was in kindergarten, and that N.J.A.C. 6A:16-2.2(k)(6)

requires "[t]he school district shall notify the parent of any

student suspected of deviation from the recommended standard."

However, the identity of the persons giving and receiving

notification under the regulation does not alter the integral

role of notification to the adequacy of the examination.

Plaintiffs assert that the regulation makes the examination and

the notification two separate events, but it does not sever the

inexorable connection between making and communicating the

diagnosis.

Severing that connection would create an anomaly for the

person examined. Under plaintiffs' reading, N.J.S.A. 59:6-4

would immunize the public entity and public employee for the

failure to make an examination to detect the hazardous

condition, and for the failure to diagnose the hazardous

condition in an examination, but leave the public entity and

public employee wholly liable for failure to communicate the

result of the examination. The interests of the person examined

do not justify such a distinction. Each failure would leave

them just as ignorant of the hazardous condition. The resulting

injury and damages are the same for each failure.

Such an exception also would not serve the goals of

N.J.S.A. 59:6-4. Its provision of immunity encourages public

15 A-0643-14T4
health examinations. Public entities might not undertake such

examinations if the public entities risked exposure to

potentially substantial liability. If school boards could be

found liable for the full damages from any hazardous condition

they failed to communicate or to communicate adequately, the

boards would be reluctant to conduct such public health

examinations. The Legislature and State Board of Education

would be similarly reluctant to compel the boards do so. To

encourage public health examinations, N.J.S.A. 59:6-4 was

intended to provide "absolute immunity," Kemp, supra, 147 N.J.

at 300, not partial immunity that omits one step of a three-step

process.

Accordingly, we hold that N.J.S.A. 59:6-4's immunity

covering the "failure . . . to make an adequate physical and

mental examination" includes the failure to provide adequate

notification of the examination results. It thus covers failure

to comply with N.J.A.C. 6A:16-2.2(k)(6)'s requirement that

"[t]he school district shall notify the parent of any student

suspected of deviation from the recommended standard."

C.

Plaintiffs primarily assert that such notification is a

ministerial act, not a discretionary act. Based on that

premise, they conclude the public entity and public employee are

16 A-0643-14T4
liable under N.J.S.A. 59:2-3 and 59:3-2, respectively. The

trial court apparently agreed, citing N.J.S.A. 59:3-2 in ruling

that the TCA "does not provide immunity for Ms. Grasso's

conduct." We accept plaintiffs' premise, but not their

conclusion.

"[A] ministerial act is 'one which a person performs in a

given state of facts in a prescribed manner in obedience to the

mandate of legal authority, without regard to or the exercise of

his own judgment upon the propriety of the act being done.'"

S.P. v. Newark Police Dep't., 428 N.J. Super. 210, 231 (App.

Div. 2012). We agree that notification here was a ministerial

rather than a discretionary act. By providing that 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) gave the school district no discretion.

However, plaintiffs' argument contravenes the structure,

language, and intent of the TCA, which allows ministerial acts

to be immunized by specific provisions like N.J.S.A. 59:6-4. We

first examine the general provisions of the TCA in chapters two

and three.

Chapter two of the TCA addresses generally the liability

and immunity of public entities. "Except as otherwise provided

by this act, a public entity is not liable for an injury,

17 A-0643-14T4
whether such injury arises out of an act or omission of the

public entity or a public employee or any other person."

N.J.S.A. 59:2-1(a). The TCA provides that "[a] public entity is

liable for injury proximately caused by an act or omission of a

public employee within the scope of his employment in the same

manner and to the same extent as a private individual under like

circumstances." N.J.S.A. 59:2-2(a). However, "[a]ny liability

of a public entity established by this act is subject to any

immunity of the public entity." N.J.S.A. 59:2-1(b).

Chapter three of the TCA addresses generally the liability

and immunity of public employees. "Except as otherwise provided

by this act, a public employee is liable for injury caused by

this act or omission to the same extent as a private person."

N.J.S.A. 59:3-1(a). However, "[t]he liability of a public

employee established by this act is subject to any immunity of a

public employee provided by law." N.J.S.A. 59:3-1(b).

In chapters two and three, general provisions immunize

"[d]iscretionary activities." N.J.S.A. 59:2-3, 59:3-2. Those

sections declare that a public entity or a public employee "is

not liable for an injury resulting from the exercise of judgment

or discretion vested" in the entity or the employee,

respectively. N.J.S.A. 59:2-3(a), 59:3-2(a). However, those

sections provide that "[n]othing in this section shall exonerate

18 A-0643-14T4
a public entity [or a public employee] for negligence arising

out of acts or omissions . . . in carrying out . . . ministerial

functions." N.J.S.A. 59:2-3(d), 59:3-2(d). Thus, when no

provision of the TCA other than N.J.S.A. 59:2-3 or 59:3-2 could

provide immunity, "[t]he standard for liability under the TCA

depends on whether the conduct of individuals acting on behalf

of the public entity was ministerial or discretionary."

Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 490 (2014).

Importantly, N.J.S.A. 59:2-3(d) and 59:3-2(d) each provide

only that "[n]othing in this section" shall immunize ministerial

functions. (Emphasis added.) Thus, those sections in no way

prevent immunity from being granted by other sections of the

TCA. Moreover, chapter two and chapter three both provide that

their general allocation of immunity and liability governs

"[e]xcept as otherwise provided by this act." N.J.S.A. 59:2-

1(a), 59:3-1(a). Chapter two and chapter three also provide

that any liability of a public entity or a public employee

"established by this act is subject to any immunity" of the

public entity or public employee provided by law. N.J.S.A.

59:2-1(b), 59:3-1(b).

Therefore, "[a]lthough a public entity is generally liable

for the ordinary negligence of its employees in performance of

ministerial duties, that liability yields to a grant of

19 A-0643-14T4
immunity." Pico v. State, 116 N.J. 55, 62 (1989) (citations

omitted); see Rochinsky v. N.J. Dep't of Transp., 110 N.J. 399,

412 (1988). Both this court and the Supreme Court have ruled

that "acts of negligence, both discretionary and ministerial,

. . . even if not immunized by the general sections conferring

entity immunity (sections 2-2 and 2-3), [may] be immunized under

the specific provisions" of the TCA. Tice v. Cramer, 133 N.J.

347, 364-65 (1993); see, e.g., Malloy v. State, 76 N.J. 515, 520

(1978); S.P., supra, 428 N.J. Super. at 233. Where a section of

the TCA provides absolute immunity, "it immunizes absolutely all

negligence of the public entity or the public employee,"

regardless of "whether the negligence is discretionary or

ministerial." Tice, supra, 133 N.J. at 367.

The Supreme Court in Kemp addressed these precepts with

respect to N.J.S.A. 59:6-4. The Court noted that "[t]he TCA

includes both general provisions concerning immunity and

liability, see N.J.S.A. 59:2-3; N.J.S.A. 59:3-2, and specific

provisions that govern in particular factual contexts." Kemp,

supra, 147 N.J. at 307 (citing N.J.S.A. 59:6-1 to 6-7 ("Medical,

Hospital and Public Health Activities")). The Court cited

N.J.S.A. 59:6-4 as an example of a specific provision which

provides immunity for ministerial acts:

[W]here the Legislature saw fit to confer
absolute immunity for ministerial acts, it

20 A-0643-14T4
 also did so in specified contexts. See
N.J.S.A. 59:6-4 (providing absolute immunity
in the context of examination for public
health purposes).

[Id. at 310.]

The Court thus indicated that the specificity of N.J.S.A.

59:6-4 trumped the generality of N.J.S.A. 59:2-3 and 59:3-2.

This view follows the "well-established rule that where two

statutes appear to be in conflict, and one is general in nature

and the other specific, the conflict is resolved in favor of the

more specific statute 'as a more precise manifestation of

legislative intent.'" State v. Gerald, 113 N.J. 40, 83 (1988).

Moreover, if a specific immunity provision's "meaning were

limited to discretionary governmental acts, the entire provision

would be surplusage, as [N.J.S.A. 59:2-3(a)] immunizes a public

entity from liability for discretionary activities." Malloy,

supra, 76 N.J. at 520.

Moreover, reading N.J.S.A. 59:6-4 to immunize all aspects

of public health examinations, whether discretionary or

ministerial, comports with its unqualified plain language.

N.J.S.A. 59:6-4 specifically provides absolute immunity for

"failure to make a physical or mental examination, or to make an

adequate physical or mental examination." It provides no

exception for ministerial acts.

21 A-0643-14T4
 Furthermore, as set forth above, such an interpretation

better serves N.J.S.A. 59:6-4's goal to encourage such

examinations than would a construction that failed to immunize

all three steps of the examination process. Additionally,

reading N.J.S.A. 59:6-4 as immunizing only discretionary acts

would cause contradictions with its plain language. For

example, its language immunizing "the failure to make a physical

or mental examination" would dictate immunity, while a

ministerial acts exception would call for liability where such

an examination is required, as here. N.J.A.C. 6A:16-2.2(k)

("Each district board of education shall ensure that students

receive health screenings.").

By contrast, applying N.J.S.A. 59:6-4's plain language

providing absolute immunity effectuates the intent of the TCA.

"[T]he Legislature intended public entities to receive broad

immunity protection under the" TCA, and thus "an immunity

provision of the Act will trump an applicable liability

provision." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459

(2009); see Tice, supra, 133 N.J. at 355. Courts must

"recognize[] the precedence of specific immunity provisions,"

and ensure "the liability provisions of the Act will not take

precedence over specifically granted immunities." Weiss v. N.J.

Transit, 128 N.J. 376, 380 (1992). To "rule otherwise would be

22 A-0643-14T4
to ignore what is probably the clearest and most important

command of the [TCA], namely, that the immunities set forth in

the [TCA] prevail over any liabilities." Tice, supra, 133 N.J.

at 370-71 (citing N.J.S.A. 59:2-1(b) and 59:3-1(b)). "A

contrary conclusion could be reached only by ignoring the

language of the statute, the holdings of the cases [above], and

the basic policy of the Tort Claims Act." Sczyrek v. Cnty. of

Essex, 324 N.J. Super. 235, 245 (App. Div. 1999), certif.

denied, 163 N.J. 75 (2000).

We recognize certain provisions in the TCA have been held

not to grant immunity to ministerial acts. We held N.J.S.A.

59:7-2 does not immunize ministerial acts because the Comment

stated that chapter seven "'confers immunity upon public

employees and public entities for their discretionary acts in

the administration of the tax laws.'" Tontodonati v. City of

Paterson, 229 N.J. Super. 475, 482 (App. Div.) (quoting Comment

to N.J.S.A. 59:7-3), certif. denied, 117 N.J. 35 (1989). We

also have held N.J.S.A. 59:5-4 does not immunize ministerial

acts by police officers, because of a similar Comment, and

because the section gave no indication it was making a "major

change in prior law," which had provided for liability. Suarez

v. Dosky, 171 N.J. Super. 1, 8-10 (App. Div. 1979), certif.

23 A-0643-14T4
denied, 82 N.J. 300 (1980).8 Here, no prior law or Comment calls

for liability in contravention of the plain language of N.J.S.A.

59:6-4.

Our "conclusion is consistent with California precedents

interpreting California's comparable statute[,] Cal. Gov't Code

§ 855.6 (West 1996)," which in its text and its comment "is

virtually identical to N.J.S.A. 59:6-4." Kemp, supra, 147 N.J.

at 304. "Because our TCA was patterned after the California

Tort Claims Act of 1963, reference to California precedents

interpreting section 855.6 is appropriate." Ibid. Our Court

has stressed that "the interpretations of the California statute

by its judiciary, both before and after our Legislature's

enactment of the Tort Claims Act," are "particularly significant

to our interpretation of the [TCA]." Tice, supra, 133 N.J. at

361-62.

In Creason v. Department of Health Services, 957 P.2d 1323,

1325 (Cal. 1998), the plaintiffs claimed that the public entity

violated a "mandatory duty with respect to its development of

appropriate testing and reporting procedures" in a program

8
Cf. Rochinsky, supra, 110 N.J. at 412 (noting that N.J.S.A.
59:5-4 has "been found to cover ministerial as well as
discretionary acts," citing Wuethrich v. Delia, 155 N.J. Super.
324 (App. Div.), certif. denied, 77 N.J. 486 (1978)); see Pico,
supra, 116 N.J. at 62 (noting that general "liability [for
ministerial acts] yields to a grant of immunity" under N.J.S.A.
59:5-4, citing Wuethrich, supra, 155 N.J. Super. at 326).

24 A-0643-14T4
screening newborns for hereditary disorders. The California

Supreme Court held that even if the public entity making a

physical examination fails to carry out a mandatory statutory

duty which is not immunized by California's general

discretionary immunity statute, "section 855.6 provides specific

immunity" to non-discretionary acts. Id. at 1331. "If a

specific immunity statute applies, it 'cannot be abrogated by a

statute which simply imposes a general legal duty or

liability[.]'" Ibid.; see also Barner v. Leeds, 13 P.3d 704,

711 (Cal. 2000) (noting that if section 855.6 only immunized

acts of discretion also covered by California's general

discretionary immunity statute, "the additional immunity set

forth in section 855.6 would have been unnecessary"). The Court

concluded that immunity was required by the public policy

underlying § 855.6 and its comment:

"To provide the utmost public protection,
public entities should not be dissuaded from
engaging in such activities by the fear that
liability may be imposed if an employee
performs his duties inadequately. Far more
persons would suffer if government did not
perform these functions at all than would be
benefited by permitting recovery in those
cases where the government is shown to have
performed inadequately."

[Creason, supra, 957 P.2d at 1332.]

We are mindful of the serious allegation here that Rachel

lost her sight in one eye because of defendants' negligence in

25 A-0643-14T4
failing to perform a ministerial act. However, as our Supreme

Court recently stated in finding immunity from liability for

wrongful death, even where the facts "involve a profound

tragedy" and "evoke sympathy," the judiciary's focus must be "on

the meaning of a statute." Wilson, supra, 209 N.J. at 572, 573,

589. "The Legislature has chosen the means to achieve its

policy goals . . . . Our role is complete once we have made

clear the meaning of the law enacted by the Legislature." Id.

at 589.

We reverse the trial court's order denying summary

judgment, and remand for further proceedings consistent with

this opinion.

26 A-0643-14T4