dissenting.
I would affirm the judgment of the Appellate Division, enforcing the agreement between the parties that barred negligence claims as a condition of a police recruit’s participation in the police training program. Marcinczyk v. N.J. Police Training Comm’n, 406 N.J.Super. 608, 968 A.2d 1205 (2009). As the panel’s decision observed, exculpatory agreements are not prohibited, though subjected to close scrutiny. Id. at 616, 968 A.2d 1205. We stated and applied that principle in our opinion last Term in Stelluti v. Casapenn Enters., LLC, 203 N.J. 286,1 A.3d 678 (2010), when we enforced an exculpatory agreement in respect of a claim based in simple negligence.
Key to the enforcement of an exculpatory clause within an agreement is whether the particular limitation on liability would violate public policy. Marcinczyk, supra, 406 N.J.Super. at 616, 968 A.2d 1205 (citation and quotation marks omitted). As the panel below noted,
courts have refused to enforce such agreements if the party benefiting from exculpation is subject to a positive duty imposed by law or is imbued with a public trust, or if exculpation of the party would adversely affect the public interest. And our courts will not enforce an exculpatory agreement that would release tort liability resulting from intentional or reckless conduct.
[Ibid, (internal citations and quotation marks omitted).]
The court thereupon analyzed the exculpatory agreement in this matter and found no reason not to enforce the agreement’s bar against the recruit’s negligence claim premised on injuries sus*601tained while carrying a cooler filled with lunches for fellow recruits. It bears emphasis that reckless or intentional conduct was not implicated in the complaint filed by the parties. Accordingly, addressing all the relevant criteria when considering such a claim brought in the face of an exculpatory agreement, the panel found that the agreement did not negatively impact the public interest,1 did not negate a statutory duty, and was not unconscionable. Id. at 613, 968 A.2d 1205. It therefore was valid and enforceable and operated to bar the plaintiffs’ negligence claims, ibid., a conclusion with which I agree.
My colleagues in the majority, however, reach a different conclusion. Advancing an objection to this exculpatory agreement’s bona fides that was not raised heretofore, the majority turns the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA or “the Act”), with its reassertion of sovereign immunity, and its procedures establishing how and under what conditions a claim may be advanced against a public entity in this State, into a positive duty: to be liable in suit in negligence. See ante at 594-97, 5 A.3d at 790-91. By such means, the majority declares the exculpatory agreement at issue in this matter to be contrary to public policy. In my view, the majority’s use of the Act turns it on its head.
The history to the TCA is well known. See Rochinsky v. State Dep’t of Transp., 110 N.J. 399, 404-11, 541 A.2d 1029 (1988) (tracing TCA’s enactment and structural design). After this Court abrogated the common law doctrine of sovereign immunity to tort claims, see Willis v. Dep’t of Conservation & Econ. Dev., 55 N.J. 534, 540, 264 A.2d 34 (1970), the Legislature responded surely and swiftly. Through enactment of the TCA, the Legislature broadly re-imposed sovereign immunity. See N.J.S.A. 59:2-l(a) *602(“Except as otherwise provided by this act, a public entity is not liable for an injury. ...”); see also Polzo v. County of Essex, 196 N.J. 569, 578, 960 A.2d 375 (2008) (describing Act’s “guiding principle, that is, that immunity from tort liability is the general rule and liability is the exception”) (internal citations and quotation marks omitted); Rochinsky, supra, 110 N.J. at 407, 541 A.2d 1029 (identifying immunity as Act’s “overriding objective”). Moreover, the TCA declared that “[a]ny liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person.” N.J.S.A. 59:2-l(b). The Legislature thereupon delineated when a public entity may be held liable and set the conditions on how to bring suit. That said, through the adoption of narrow exceptions to the reestablished norm of sovereign immunity, the TCA does not purport to devolve a form of “positive duty” on public entities. Rather, the legislative history to the TCA reveals the distinctly different, focused purpose to broadly assert sovereign immunity, to have the exceptions to the re-establishment of immunity interpreted narrowly and in favor of public entities, and to establish the procedural conditions to pursuit of a tort suit against a public entity. Rochinsky, supra, 110 N.J. at 404-09, 541 A.2d 1029.
Moreover, the Act explicitly states the intention to put public entities on the same footing as private entities with respect to certain liabilities. See N.J.S.A 59:2-l(b). Private entities can limit and circumscribe those liabilities through the use of various risk-shifting provisions, such as exculpatory clauses and indemnification agreements. Nothing in the Act specifically prohibits public entities from doing the same. The question is why should we construct such a barrier when the Legislature has not chosen to do so.
I am at a loss to see how the Act’s careful structure limiting one’s right to pursue a tort action against a public entity can be flipped to support the premise that a public entity cannot take further steps to contain its risks. In my view, the TCA’s princi*603pies cannot be logically extended so, and I find no support within the Act to support a conclusion that the Legislature intended to preclude public entities from entering into agreements, with willing participants, that result in a limitation on liability for negligent acts in connection with certain activities.2
These are difficult times for government, particularly in terms of governmental finances. Governments at all levels are under pressure to contain costs. In areas such as are involved here, cost containment means containment of risk. Exculpatory agreements have historically been used in the private sector as a means to contain and allocate risk. Here a county governmental entity sought to avail itself of that mechanism to contain cost in respect of its police training program. Private entities have such a right and I discern no prohibition from the same imposed on public entities based on the letter or the spirit of the TCA.
In sum, the preclusive effect that the majority teases out of the TCA appears antithetical to our prior expressions about the Act’s purpose and the manner in which it is to be construed, namely in favor of immunity and narrowly on issues relating to liability. See, e.g., Polzo, supra, 196 N.J. at 578, 960 A.2d 375. Moreover, the majority’s determination ignores the Act’s stated intention that public entities should be entitled to avail themselves of defenses to liability that the private sector may employ. Instead of allowing government to enter into voluntary agreements to contain risk by limiting liability, agreements that a private party would be permitted to execute, the majority ties the hands of public entities and of the public they represent.
I respectfully dissent.
Justices RIVERA-SOTO and HOENS join in this opinion.
*604For reversal and remandment—Chief Justice RABNER, Justices LONG, ALBIN and WALLACE—4.
For affirmance—Justices LaVECCHIA, RIVERA-SOTO and HOENS—3.
The panel concluded that the agreement served a valid public concern, noting the need to have rigorous police training. The panel described the agreement as one that acted to prevent the eroding impact of potential lawsuits from interfering with police training. Moreover, the agreement did not purport to immunize reckless or intentionally tortious behavior.
The assertion that the public entity here is performing a service that can only be obtained from government is unsupported in this record. Having not been argued as such, nor factually supported, I will not address this appeal as though we were confronted with a situation in which government was the sole source of a necessary service.