ATTALLAH BRIGHTWELL VS. OFFICE OF LICENSING (L-3828-15, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4262-17T1

ATTALLAH BRIGHTWELL,

Plaintiff-Appellant,

v.

OFFICE OF LICENSING (an agency
of THE NEW JERSEY DEPARTMENT
OF CHILDREN AND FAMILIES),
JENNIFER THIEL, MARILYN WEISS,
ANTOINETTE MAHAN, JANET
HOCHMAN, SHARONDA CLARK,
JULISSA STUBNICKI, and HELEN
EMOND,

Defendants-Respondents.

Argued November 13, 2019 – Decided January 27, 2020

Before Judges Yannotti, Hoffman and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3828-15.

Attallah Brightwell, appellant, argued the cause pro se.

Jaclyn Michelle Frey, Deputy Attorney General, argued
the cause for respondents (Gurbir S. Grewal, Attorney
 General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Jaclyn Michelle Frey, on
the brief).

PER CURIAM

Plaintiff Attallah Brightwell appeals from the summary judgment order

and denial of reconsideration, dismissing her action against defendants. 1 The

trial court found that defendants were entitled to immunity from plaintiff's

claims under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and that

plaintiff failed to demonstrate a causal nexus between the actions of defendants

and any alleged injuries. After a review of the contentions in light of the record

and applicable principles of law, we affirm.

Plaintiff owns and operates a childcare facility. She alleges that defendant

OOL, through its employees, inspected her facility excessively, committed

willful misconduct and fabricated violations during the license renewal

procedure. Plaintiff stated her cause of action accrued in November 2013 when

defendant inspectors came to her facility and began a continuous course of

willful misconduct for a "four-year period" causing the intentional and negligent

infliction of emotional distress, and the onset of migraines.

1
The individual defendants are all state employees working for defendant
Office of Licensing (OOL) or the Department of Children and Families (DCF).
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 After extensive discovery and motion practice, defendants moved for

summary judgment, asserting absolute immunity from liability under the TCA

and contending plaintiff had not demonstrated a permanent injury causally

related to defendants' actions. When the parties appeared for oral argument, the

motion judge advised he only had a limited time to hear arguments.

Nevertheless, the judge asked numerous questions and permitted extensive

argument from both plaintiff and defendants' counsel. The judge then requested

the parties to return on another date, indicating he intended to re-read some

documents.

On the second date of oral argument, the judge advised he had read over

600 pages of deposition testimony. He told the parties they could present further

argument but cautioned it should not be repetitive of the prior presentation.

Plaintiff reasserted her opposition to the summary judgment motion.

In an oral decision on March 23, 2018, the judge found insufficient

evidence to support plaintiff's allegations. He also noted plaintiff had

complained of and been diagnosed with migraine headaches several months

before the November 2013 inspection. He concluded plaintiff had not

established a permanent injury causally related to defendants' actions. A

subsequent motion for reconsideration was denied.

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 On appeal, plaintiff raises numerous arguments, contending the judge

erred: 1) in finding the TCA barred her claims; 2) in denying her oral argument;

and 3) in relying on an unpublished decision. She also alleges the judge was

biased against her.

In our de novo review of an order granting summary judgment, we apply

the same standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516,

529 (2019) (quoting Davis v. Devereux Found., 209 N.J. 269, 286 (2012)).

Summary judgment must be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

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). To determine whether there was a genuine issue of fact, we "consider

whether the competent evidential materials presented, when viewed in the light

most favorable to the non-moving party in consideration of the applicable

evidentiary standard, are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 523 (1995).

We review the denial of a motion for reconsideration for an "abuse of

discretion." Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996)

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(quoting CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 401 (4th

Cir. 1995)).

Plaintiff contends she presented sufficient evidence to demonstrate both

willful malice on the part of the OOL inspectors and a permanent injury causally

related to defendants' actions to establish a TCA claim. She also asserts that the

trial court's denial of defendants' earlier Rule 4:6-2 motion to dismiss reflected

an affirmation of the merit of her claims, barring defendants from subsequently

moving for summary judgment.

We briefly address and reject the latter argument. In 2016, upon service

of the complaint, defendants filed a motion to dismiss in lieu of an answer,

contending the claims were barred by the immunities afforded them under the

TCA. In its oral decision denying the motion, the court advised plaintiff she

was not "winning today." However, in giving her all favorable inferences, the

court determined plaintiff might be able to establish through discovery there was

willful misconduct on the part of defendants to deprive them of the TCA's

immunities. The court noted several times during its decision that it was not

deciding the case on its merits. Therefore, plaintiff's argument that the doctrines

of res judicata and collateral estoppel barred defendants' summary judgment

motion is without merit.

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 Plaintiff's allegations regarding the OOL and its employees arise out of

the renewal of the license for her childcare facility. Under N.J.S.A. 30:5B-5(a),

the DCF is empowered to establish the standards for the operation and inspection

of childcare centers. The OOL is responsible for ensuring the facilities'

compliance with the applicable laws and regulations. N.J.A.C. 3A:52-1.1(g).

The TCA affords immunity to the OOL and its employees for all licensing

functions, including actions taken during inspections. See N.J.S.A. 59:2-5

(where a public entity is authorized by law to issue licenses to facilities, "[a]

public entity is not liable for an injury caused by the issuance, denial, suspension

or revocation of, or by the failure or refusal to issue, deny, suspend o r revoke,

any . . . license . . . ."); N.J.S.A. 59:3-6 (similarly, where authorized by law, "[a]

public employee is not liable for an injury caused by his issuance, denial,

suspension or revocation of, or by his failure or refusal to issue, deny, suspend

or revoke, any permit . . . ."). "The purpose of the immunity is to protect the

licensing function and permit it to operate free from possible harassment and the

threat of tort liability." Malloy v. State, 76 N.J. 515, 521 (1978).

Plaintiff does not dispute the application of the TCA to her claims but

argues the OOL conducted inspections and cited her for violations in a manner

that constituted actual malice and willful misconduct. She contends the TCA's

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bar to liability is inapplicable here because she has presented evidence of actual

malice or willful misconduct. See N.J.S.A. 59:3-14(a) ("Nothing in this act shall

exonerate a public employee from liability if it is established that his conduct

. . . constituted . . . actual malice or willful misconduct.").

In granting summary judgment, the court found plaintiff had made

"blanket broad-brushed allegations" of willful misconduct, unsupported by the

evidence in the record. We agree.

Plaintiff contends defendants acted with willful misconduct in conducting

numerous inspections of her facility, which were unnecessary as she had been

certified previously without issue. She states she supported her claims with the

inspection reports and "affidavits from witnesses."

The TCA does not define "willful misconduct." Our Supreme Court has

cautioned against simply importing definitions of the term applied in contexts

not involving sovereign immunity and the TCA. "Like many legal

characterizations, willful misconduct is not immutably defined but takes its

meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J.

101, 124 (1995). Even within the context of the TCA, the concept may vary,

depending on the nature of the public employee's activity.

[W]ithin a statute like the Tort Claims Act, the precise
definition might differ where the role of willful

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 misconduct is to impose liability in numerous situations
where it would otherwise not exist, for the reasons and
purposes of imposing liability may differ in those
situations and call for differences in the definition and
application of willful misconduct.

[Id. at 125.]

In Van Engelen v. O'Leary, 323 N.J. Super. 141, 144 (App. Div. 1999),

we addressed the claim that a public employee was motivated by a vendetta that

allegedly vitiated his immunity defense. There, the plaintiff police officers

claimed that a prosecutor and his chief of detectives maliciously prosecuted

them in retaliation for their efforts to prosecute a person whom the prosecutor

had represented when in private practice. Ibid. The plaintiffs alleged that

immunity under the TCA was trumped by the "actual malice or willful

misconduct" exception of N.J.S.A. 59:3-14. Id. at 151. We affirmed the entry

of summary judgment, noting that "[c]arelessness, unreasonable conduct or even

noncompliance with substantive law" was not enough to establish malice or

willful misconduct. Id. at 154. The plaintiffs' allegation of willful misconduct

and actual malice lacked sufficient evidential support, and were grounded in

speculation. Id. at 151-53.

Here, plaintiff presented letters from several individuals attesting to her

good character. She also attached notarized statements from persons who

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observed the inspections. These documents do not establish evidence of a

"commission of a forbidden act with actual (not imputed) knowledge that the act

is forbidden." Marley v. Palmyra, 193 N.J. Super. 271, 294-95 (Law Div. 1983).

The statute authorizes unannounced, on-site inspections. N.J.S.A. 30:5B-5(d).

The inspection reports show plaintiff was cited for violations but offer no

evidence as to the conduct of the inspectors. None of the documents support the

high standard of knowledge required of an actor to find actual malice or willful

misconduct.

A careful review of the record reveals that plaintiff has presented

unsupported allegations of wrongdoing and no evidence of willful misconduct.

We construe the TCA to require, as proof of willful misconduct, more than proof

of the actions covered by the specific grant of immunity. In other words, mere

proof of actions taken pursuant to a licensing procedure such as inspections,

which are immunized under N.J.S.A. 59:2-5 and N.J.S.A. 59:3-6, does not

suffice to establish willful misconduct that vitiates the immunity.

Because we conclude defendants were entitled to the TCA's immunities,

we need not address whether plaintiff's evidence was adequate regarding a

causal connection between defendants' conduct and her injuries or whether she

presented evidence of a permanent injury as defined under the TCA.

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 In light of our conclusion, we discern no abuse of discretion in the court's

denial of plaintiff's motion for reconsideration. Plaintiff argued the court's

decision was "irrational" because it differed from the ruling made in May 2016

when the court denied defendants' motion to dismiss. We have already

explained the misapprehension of that contention.

To the extent not addressed, plaintiff's remaining points lack sufficient

merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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