Chatman v. Hall

O’HERN, J.,

dissenting.

The majority’s interpretation of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (the Act), produces the anomalous *421result of saddling the lowest-level public employee with the greatest responsibility to pay damages to those injured by defective conditions of public property. Although the majority’s approach to liability can be reached by reading some of the Act’s provisions in isolation, such a result conflicts with the Act’s overall structure. The result reached by the majority is the only instance under the Act that I can discern in which the public employee’s duty when acting within the scope of employment is not commensurate with the scope of the employer’s liability. Additionally, the majority’s result conflicts with a fair reading of the Act’s provisions and the Legislature’s attempt to equate the duties and liabilities of public entities and public employees with respect to the defective condition of public property. Those provisions dealing with the condition of public property define the duties and liabilities of public entities and public employees identically.1

A public entity is not liable for injury caused by a failure to inspect or negligent inspection of property; except, a public entity may be liable for “failure to protect against a dangerous condition as provided in chapter 4.” N.J.S.A. 59:2-6 (emphasis added).

A public employee is not liable for injury caused by his or her failure to inspect or negligent inspection of property; except, a public employee may be liable for “failure to protect against a dangerous condition as provided in chapter 4• ” N.J.S.A. 59:3-7 (emphasis added).

Under chapter four of the Act, a public entity may be held liable for injuries proximately caused by the dangerous condition of its property if either:
(1) the dangerous condition is created by a public employee’s negligent or wrongful act or omission; or
(2) the public entity had notice of the dangerous condition a sufficient time before the injury to have taken measures to protect against the dangerous condition.
*422However, in either ease, liability will be imposed only when the public entity’s action or failure to take action to protect against the dangerous condition is “palpably unreasonable.” N.J.S.A. 59:4-2.

What action or inaction of a public entity can possibly be “palpably unreasonable” other than the activities of its employees? Let us take this case as an example and assume that either plaintiff, his friends, or his family had called the Department of Public Works to complain about the condition of the road. Assume further that the commissioner of streets had dispatched a road superintendent and inspector of streets to look at the condition. However, before arriving at Benson Street, the two employees had stopped for a cup of coffee that delayed their arrival until after the accident had occurred. A jury might find that that conduct, although not in bad faith, amounted to a negligent failure to discharge their duties.

Should the public entity be able to defend on the basis that its actions were not “palpably unreasonable” but leave its employees to pay the verdict under principles of ordinary negligence? One may say that that result will never happen, but the Act does not require indemnification of employees by local public entities. N.J.S.A. 59:10-4. A cost-cutting budget analyst may find elimination of coverage for employees a good place to cut liability-insurance premiums. The majority has provided an interesting retrospective on common-law doctrines of governmental immunity from the 1860s to the 1960s. Ante at 404-408, 608 A2d 268-270. The majority’s analysis, however, has made no effort to harmonize the common law with the Act, and is as though the Tort Claims Act of 1972 had never been enacted. The common-law scheme espoused by the majority of holding public employees liable for their torts under principles of ordinary negligence, while, in effect, exonerating the public entity, ante at 404, 608 A 2d 268, is an anachronism.

“The liability of the individual official for wrongdoing committed in the course of his duty * * * is essentially a relic from past centuries when government was in the hands of a few prominent, independent and substantial persons, so-called Public Officers, who were in no way responsible to ministers or elected legislatures or councils____ Such a doctrine is utterly unsuited to *423the twentieth-century state, in which the Public Officer has been superseded by armies of anonymous and obscure civil servants, acting directly under the orders of their superiors, who are ultimately responsible to an elected body. The exclusive liability of the individual officer is a doctrine typical of a highly individualized common law. It is of decreasing value today.”
[5 Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The Law of Torts, § 29.9 at 662-63 (2d ed. 1986) (Harper and James) (quoting Robson, Report of the Committee on Ministers’ Powers, 3 PoLSci.Q. 346-58 (1932)).]

Did the Legislature intend the public employee to bear exclusive liability for negligent inspection of public property? Under the majority’s interpretation of the Act, the public employee’s duty is greater than that owed by the employing entity only in the instance of a dangerous condition of public property. For example, had a Camden City truck driver struck plaintiff, principles of ordinary negligence would have applied to the duties of the employee and the responsibility of the employer. See N.J.S.A. 59:3-la and N.J.S.A. 59:2-2a. Why, when there is a defective condition of property, should the public employee have a greater duty than the city to protect the public against harm? Recall that in almost every other instance under the Act, the pattern of duty/liability is the same.2

A public entity is not liable for:

(1) legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature. N.J.S.A. 59:2-3b.
(2) The exercise of discretion in determining whether to provide resources for governmental services. N.J.S.A. 59:2-3c.
*424(3) The exercise of discretion when, in the face of competing demands, it determines whether and how to allocate resources; provided that the public entity is responsible for acts or omissions of employees in carrying out ministerial functions. N.J.S.A. 59:2-3d.
(4) For injuries caused by the termination or reduction of benefits under a public assistance program. N.J.S.A. 59:2-8.

*423 A public employee is not liable for:

(1) legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature. N.J.S.A. 59:3-2b.
(2) The exercise of discretion in determining whether to provide resources for governmental services. N.J.S.A. 59:3-2c.
*424(3) The exercise of discretion when, in the face of competing demands, the employee determines whether and how to allocate resources; provided that the employee shall remain liable for negligence in carrying out ministerial functions. N.J.S.A. 59:3-2d.
(4) For damages resulting from the termination or reduction of benefits under a public assistance program. N.J.S.A. 59:3-12.

Under the majority’s view, only in the case of public property is the pattern of duty/liability broken:

The public entity is not liable for the dangerous condition of land attributable to negligent failure to act except in the case of “palpably unreasonable” acts or omissions.

The public employee is liable for the dangerous condition of land attributable to negligent failure to act.

The Legislature had to qualify the employee’s immunity for negligent inspection or failure to inspect public property because the public entity would otherwise have incurred no liability for the dangerous condition of its property. Under N.J.S.A. 59:2-2b, “[a] public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.” Because the entity’s liability for failure “to protect against the [dangerous] condition” under N.J.S.A. 59:4-2 can result only from the acts or omissions of public employees, public employees must also lose their immuni*425ty to the extent of the entity’s liability. That stripping of the public employee of immunity in order to hold the public entity liable for the dangerous condition of its property is turned on its head when interpreted to enhance the duty of the lowest-paid employee beyond that of the employee’s superiors or even the city itself.3 The majority’s interpretation has thus created an “inverted pyramid” for public liability — because neither the public entity nor the superior shares the liability, “any recovery must come from the financially weakest link in the chain.” Harper and James, supra, § 29.9, at 662.

Generally speaking, when we interpret statutes, we attempt to reach the result that we believe the Legislature would have intended. See Medical Soc’y of New Jersey v. New Jersey Dep’t of Law and Pub. Safety, 120 N.J. 18, 26-27, 575 A.2d 1348 (1990). We seek to achieve coherence in statutory law and, whenever possible, to harmonize the separate provisions of an act with the more general principles and policies of the law. Denbo v. Township of Moorestown, 23 N.J. 476, 481-82, 129 A.2d 710 (1957).

Other jurisdictions that have considered the scope of public-employee immunity have also addressed the issue of indemnification. When California expanded the scope of public-employee responsibility to cover the duty to warn a foster family about the dangerous character of a paroled youngster, it reasoned:

The public employee need not suffer concern over the possibility that he will be compelled to finance and oversee a tort suit filed against him personally; the *426statute provides for defense by the public entity upon notice. * * * Moreover, the public employee faces only a slim danger of ultimate personal liability; such liability attaches only in the rare instances of injuries arising from acts either outside of the scope of employment or performed with actual fraud, corruption, or malice. [Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 247, 447 P.2d 352, 359 (1968).]

In a case very similar to ours, Stevenson v. Department of Transportation, 290 Or. 3, 619 P.2d 247, 254 (1980), the Oregon Supreme Court held that both the public entity and the public road employees can be held liable for “determining the extent of the actual disrepair in each section [of the highway] and the kinds of hazards that existed as a result.” The Oregon court reached that conclusion because it found under the Oregon Tort Claims Act a corresponding responsibility that required public bodies to defend and indemnify their employees against all tort claims arising out of performance of their duties, thus eliminating “the ground for concern by public employees that they can be held liable for a good faith failure to use reasonable care.” Id. 619 P.2d at 253.

We should seek a comparable symmetry in our law. Even if the public employee’s liability is regarded as a function of common law, as a matter of sound policy the Court can and should now decide that to reconcile the levels of liability of the public entity and the public employee makes the best sense of the statute and of the common law. The qualified immunities afforded to each should be the same. Under the majority’s interpretation of the Act and of the common law, two incongruous results arise: (1) public employees, other than at the state level, are not guaranteed indemnification for negligent road supervision, but are held liable even for a good faith failure to use reasonable care; and (2) the State, which is required to indemnify its public employees, will thereby be held vicariously liable for the negligent maintenance of its roads even though the Legislature intended the State, as public entity, to be responsible solely for “palpably unreasonable” conditions of its *427roads. Those two results conflict with the overall structure and policy of the Tort Claims Act and cause me to dissent.

Justices Pollock and Garibaldi join in this opinion. For reversal and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER and STEIN — 4. Opposed — Justices POLLOCK, O’HERN and GARIBALDI— 3.

For ease of analysis, I omit those provisions that define a dangerous condition, N.J.S.A. 59:4-1, and the required forms of notice, N.J.S.A. 59:4-3.

For convenience, I recite only a shorthand version of the corresponding provisions of the Act concerning the duties and liabilities of a public entity and public employer.

The duties and liabilities of public entities and public employees under the Act differ with respect to recreational facilities. N.J.S.A. 59:2-7 provides that a public entity's liability is linked to the dangerous condition of property under chapter four; however, under N.J.S.A. 59:3-11, a public employee’s responsibility extends to "negligence in the supervision of a public recreational facility." Presumably, that dichotomy exists to protect the public from specific acts of negligence of a public employee, such as a lifeguard, but only in the event that the employee negligently undertakes supervision. See Burroughs v. City of Atlantic City, 234 N.J.Super. 208, 221-22, 560 A.2d 725 (App.Div.), certif.denied, 117 N.J. 647, 569 A.2d 1345 (1989). Note, however, that the public entity might have been held vicariously liable for the employee’s negligence.