T.S. AND R.S., h/w v. NEW LISBON DEVELOPMENTAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3779-08T33779-08T3

T.S. AND R.S., h/w,

Plaintiffs-Appellants,

v.

NEW LISBON DEVELOPMENTAL CENTER,

Defendant-Respondent,

and

WYNDHAM HOTELS AND RESORTS d/b/a

SUMMERFIELD SUITES HOTEL BY WYNDHAM,

Defendants.

________________________________

 

Argued December 15, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-781-04.

Ann Madden Tufano argued the cause for appellants (Madden & Tufano, attorneys; Ms. Tufano, on the brief).

Gregory A. Spellmeyer, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Spellmeyer, on the brief).

PER CURIAM

Plaintiff T.S. is employed by defendant, the New Lisbon

Developmental Center (New Lisbon). Plaintiff filed this action after being sexually assaulted by a New Lisbon resident while she accompanied a group of residents on an overnight, off-premises trip. New Lisbon moved for summary judgment, asserting plaintiff's claims were barred by various immunity provisions of the Tort Claims Act (TCA), N.J.S.A. 59:5-1 to 12-3. Judgment was entered for defendant and plaintiff's complaint was dismissed. Plaintiff argues the court misapplied the TCA and inappropriately granted summary judgment. Following our review, we affirm.

The facts are taken from the summary judgment record. Defendant is a State correctional facility designed to provide rehabilitation programs for developmentally disabled adults who have committed crimes. Residents are placed under the care, custody and control of the State and housed at New Lisbon by court order. Plaintiff works at New Lisbon as a licensed practical nurse.

In 1997, T.E. was charged with a criminal offense. The criminal charges were conditionally dismissed and T.E. was committed to the custody of the Department of Human Services and placed by the Division of Developmental Disabilities (DDD) in New Lisbon's Moderate Security Unit (MSU). The MSU is a state-wide resource for the DDD for males over age eighteen. N.J.A.C. 10:46.1

In 2000, T.E. again faced criminal charges, this time for conduct occurring in the MSU. Upon review, the court determined T.E. "lack[ed] the fitness to proceed to trial . . . and that, due to a mental defect or illness, there [was] no likelihood that he [would] be deemed competent in the future." T.E. was ordered to remain at the MSU.

On March 22, 2002, plaintiff, along with other New Lisbon staff members, accompanied residents to an off-site Special Olympics event. The group stayed overnight at a hotel. The MSU residents, including T.E., were required to be supervised at all times while at the hotel. In the evening, while the residents were in their assigned rooms, supervision was provided by four MSU staff members, using a dorm watch procedure of alternating two-person shifts to monitor the hotel hallways every thirty minutes.

Sometime in the early morning hours, T.E. exited his first-floor hotel room, without being seen, and took an elevator to the second floor, where he forcibly entered plaintiff's room and raped her before returning to his room. MSU staff were unaware the assault had occurred; in fact, they only learned of the incident upon return to New Lisbon.

Plaintiff's initial complaint against defendant alleged assault and battery. She was permitted to file an amended complaint adding allegations of negligence. The parties settled plaintiff's intentional tort claims for $80,000. Thereafter, defendant moved for summary judgment of the negligence action, and plaintiff filed a motion to amend her complaint a second time.

In a written opinion, the Law Division concluded defendant was immune from suit for plaintiff's injuries caused by: (1) an escaped person evading arrest, pursuant to N.J.S.A. 59:5-2, (2) and an escaped mental patient, pursuant to N.J.S.A. 59:6-7, and (3) determinations made during terms of confinement for mental illness, pursuant to N.J.S.A. 59:6-6. New Lisbon was granted summary judgment, plaintiff's complaint was dismissed, and her motion to amend the complaint was deemed moot.

On appeal, plaintiff presents several challenges to the Law Division's determination, essentially arguing that the immunity provisions of the TCA do not apply. She also asserts summary judgment was inappropriate in light of what she maintains are substantial disputes of material fact.

When reviewing a trial court's grant of summary judgment, we employ the same standards used by the motion judge. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there are no genuine disputes as to material facts, R. 4:46-2; we then decide "whether the motion judge's application of the law was correct." Id. at 230-31. We owe no deference to the motion judge's conclusions on issues of law. Id. at 231 (citing Manalapan Realty, L.P. v. Tp. Comm'n of Manalapan, 140 N.J. 366, 378 (1995)). Our review of the trial court's interpretation of the law and the legal consequences that flow from established facts is de novo. Manalapan Realty, supra, 140 N.J. at 378.

The TCA limits a public entity's liability for negligence. Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 457 (2009). "'[T]he public policy of this State is that public entities shall be liable for their negligence only as set forth in the Tort Claims Act.'" Dickson v. Tp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) (quoting Pico v. State, 116 N.J. 55, 59 (1989)), certif. denied, 196 N.J. 461 (2008). "'[T]he dominant theme of the Act is immunity, with liability as the exception.'" Ibid. (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 495 (App. Div. 2007); see also Tice v. Cramer, 133 N.J. 347, 355 (1993) (reviewing the general principles behind the TCA); Rochinsky v. Dep't of Transp., 110 N.J. 399, 406-08 (1988) (detailing the history of the TCA).

In any analysis of the applicability of the scope of the TCA, we determine "whether an immunity applies and if not, should liability attach." Attorney General's Task Force Report on Sovereign Immunity, comment to N.J.S.A. 59:2-1 (1972); Pico, supra, 116 N.J. at 59. The liability of the public entity must be explicitly stated in the TCA. Tice, supra, 133 N.J. at 355. When both liability and immunity exist, immunity prevails. N.J.S.A. 59:2-1; Tice, supra, 133 N.J. at 356. Thus, if an immunity applies, the public entity's negligence is irrelevant. Kyriakos v. Dep't of Human Servs., 216 N.J. Super. 308, 311 (App. Div.), certif. denied, 108 N.J. 182 (1987).

The TCA provides immunity to public entities and their employees for injuries caused by an escaping or escaped person, N.J.S.A. 59:5-2(b)(2), or the escape of a person "confined for mental illness[.]" N.J.S.A. 59:6-7(a). Additionally, "[n]either a public entity nor a public employee is liable for any injury resulting from . . . the terms and conditions of confinement for mental illness . . . or [the decision] to parole, grant a leave of absence to, or release a person from confinement for mental illness[.]" N.J.S.A. 59:6-6(a)(2), (3).

Plaintiff does not challenge that New Lisbon, as a state-run institution, falls under the definition of a "public entity" found in the TCA. N.J.S.A. 59:1-3. Instead, plaintiff disputes the court's application of the various immunity provisions. Specifically, plaintiff examines T.E.'s status and contends he is neither a "prisoner" nor "a person who has been confined for a mental illness" and cannot be characterized as an "escaped or escaping person," because he successfully exited his hotel room without detection. Plaintiff also argues that the grant of immunity applies solely to injuries occurring in the pursuit of an escaping prisoner or mentally ill person, requiring the public entity to be aware of the escape. In this regard, she suggests there was no pursuit of T.E. because MSU staff were unaware he left his room.

We reject plaintiff's contentions, which require a very narrow reading of the immunity provisions. Our courts have concluded the provisions are read broadly.

The words "escaped or escaping person" should not receive "a cramped interpretation in view of the clear legislative objective of immunity." Tice, supra, 133 N.J. at 361 (quoting Tice v. Cramer, 254 N.J. Super. 641, 650 (App. Div. 1992)); see Blunt v. Klapproth 309 N.J. Super. 493, 502 (App. Div.), certif. denied, Blunt v. Wirtz, 156 N.J. 387 (1998). The Tice Court further rejected an argument suggesting "the Legislature would want to base that immunity on the technical status of suspects as persons who had just been arrested, or who were about to be arrested, or for whom good cause for arrest existed. Tice, supra, 133 N.J. at 361.

Although Tice involved the death of another driver struck in a car chase, as police pursued suspected persons, supra, 133 N.J. at 351-52, the Court emphasized the TCA's grant of broad immunity. In doing so, the Court cited with approval our opinion in Burg v. State, 147 N.J. Super. 316 (App. Div.), certif. denied, 75 N.J. 11 (1977) in which we held that N.J.S.A. 59:5-2b(1) "absolutely immunized both the public entity and the public employee from negligence, whether discretionary or ministerial, whether acts of omission or commission." Tice, supra, 133 N.J. at 364.

In Burg, the plaintiff had been assaulted by a convicted felon who was attending college classes while on vocational, noncustodial release. Supra, 147 N.J. Super. at 318. In applying the immunity provisions of N.J.S.A. 59:5-2, we determined "escape," as used in the TCA, encompasses the definition found in N.J.S.A. 30:4-91.5, that is "the willful failure of a prisoner to remain within the extended limits of his confinement[.]" Id. at 325; see also Fielder v. Stonack, 141 N.J. 101, 120 (1995) (holding the immunity described in N.J.S.A. 59:5-2b concerns "a very specific class of lawsuits: those based on alleged negligence in deciding to parole or release prisoners, or in setting terms and conditions of parole or release that were not sufficiently restrictive, or in deciding not to revoke parole").

Similarly, in Kyriakos, supra, 216 N.J. Super. at 309-11, we reviewed the immunity provisions of N.J.S.A. 59:6-7(a) and N.J.S.A. 59:6-6(a)(1) and (2), concluding they barred recovery for injuries suffered in a motor vehicle accident caused by a mental patient who grabbed a visitor's car keys and drove the car off hospital grounds. We held that "[t]he Legislature has clearly expressed its desire that clinical judgments to house mental patients in the least restrictive environment should not create tort liability." Id. at 312; see also Predoti v. Bergen Pines Cty. Hosp., 190 N.J. Super. 344, 347 (App. Div. 1983) (discussing "the important social policy of maximizing the personal liberty of those who are mentally ill").

Here, T.E. was, in fact, subject to the custodial control of the State, committed to New Lisbon's MSU by order of the Superior Court, Criminal Part. While not criminally convicted due to his mental deficiencies, T.E.'s confinement at New Lisbon followed a court determination and order of commitment. New Lisbon is a correctional facility designed to provide rehabilitative treatment for those mentally ill persons involved in criminal conduct. N.J.S.A. 59:6-1 defines "mental institution" as "any facility for the care or treatment of persons committed for mental illness." The term "mental illness" includes mental deficiencies. Ibid.

DDD Circular #16 describes the MSU as "a specialized, institutional program authorized and established by the Director of [DDD,] which is characterized primarily by physical security for the confinement of individuals assessed to be dangerous to self, others or property and in need of a highly structured therapeutic program." Individuals housed in the MSU were "found by the court to be incompetent to stand trial," and "committed to the care and custody of the Commissioner in accordance with N.J.S.A. 30:4-25.1 as a Class I commitment."

T.E.'s status combines the immunity provisions regarding escaped prisoners and mental health patients. We have no difficulty concluding New Lisbon qualifies as a mental institution as defined in the TCA. Ludlow v. City of Clifton, 305 N.J. Super. 308, 311-12 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998). Further, T.E. was confined in the custody of the State, due to mental illness, making him subject to imposed restrictions prohibiting his freedom to leave the facility. Cf. Gianni v. County of Bergen, 251 N.J. Super. 486, 492-93 (App. Div. 1991), certif. denied, 127 N.J. 565 (1992) (concluding a voluntary committee of mental institution was "confined" because he was prohibited from simply leaving).

Also, contrary to the implication sought by plaintiff, T.E. was subject to supervision while attending the off-site event; he was to remain in his room, leaving only if accompanied by an MSU staff member. This fact is reinforced by T.E.'s statement that he was aware of the restrictions and tested whether he could evade them. After successfully leaving his room without detection once, he then left a second time, and assaulted plaintiff. We concur with the trial judge's conclusion that T.E. qualified under N.J.S.A. 59:5-2 and N.J.S.A. 59:6-7 as an "escaped or escaping" person.

Finally, we reject plaintiff's argument that the negligence must occur while the escaping person is avoiding apprehension or while the State is in pursuit. In advancing this argument, plaintiff misreads our opinion in Torres v. City of Perth Amboy, 329 N.J. Super. 404 (App. Div. 2000). In Torres, a police officer hit a pedestrian as he attempted to close the gap between himself and a speeding driver. Id. at 406. We concluded the officer's conduct was not immune according to N.J.S.A. 59:5-2 because the putative traffic offender violator was not attempting to flee after the policeman signaled him to stop. Id. at 407-08. The officer was merely utilizing a shortcut to effectuate a stop. Ibid. This holding is not applicable to the facts presented.

A fair reading of plaintiff's complaint, affording her all reasonable inferences, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), reflects allegations that New Lisbon was negligent in determining the amount of necessary supervision and its implementation and exercise of that supervision with respect to T.E. The specific immunity for injuries caused by an escaping patient, or resulting from discretionary decisions made in caring for a committee, prevails over such a theory of liability. Kyriakos, supra, 216 N.J. Super. at 311. See also McNesby v. Dept. of Human Servs., 231 N.J. Super. 568, 574 (App. Div.) (concluding the State was immune in the death of a patient based on theory of negligent supervision), certif. denied, 117 N.J. 127 (1989); Predoti, supra, 190 N.J. Super. at 347 (upholding immunity, pursuant to N.J.S.A. 59:6-6, in suit alleging negligence when the transfer of a resident to a less restrictive mental health ward enabled him to exit the facility).

Plaintiff's assertions of ineffective staff supervision challenge the terms and conditions of T.E.'s confinement and fall within the parameters of the grant of immunity provided by N.J.S.A. 59:6-6(a)(2). McNesby, supra, 231 N.J. Super. at 575-76. The decision to allow T.E. to attend the off-site event "may have been foolish" but "it was a term and condition of his confinement for which the [TCA] conferred immunity." Id. at 576; see Ludlow, supra, 305 N.J. Super. at 310; Longo v. Santoro, 195 N.J. Super. 507, 518 (App. Div.), certif. denied, 99 N.J. 210 (1984).

Accordingly, "'if an alleged conflict in statutory language generates doubt between immunity and liability, immunity must prevail. The statute itself resolves such a conflict when it states that any liability of a public entity established by this act is subject to any immunity of the public entity.'" McNesby, supra, 231 N.J. Super. at 575 (quoting Kyriakos, supra, 216 N.J. Super. at 311) (internal quotations and citations omitted). We conclude N.J.S.A. 59:6-6 affords defendant absolute immunity for its discretionary determinations.

Based upon our conclusions, we need not address plaintiff's remaining arguments. R. 2:11-3(e)(1)(E).

 
Affirmed.

In this opinion references to plaintiff refer solely to T.S., as R.S. filed only derivative claims.

In a related criminal matter, T.E. pled guilty to the assault.

Under N.J.S.A. 30:4-25.1(b), application for a Class I commitment is made on behalf of "an eligible mentally retarded person to functional services of the [DDD] . . . to the commissioner with an order of commitment to the custody of the commissioner issued by a court of competent jurisdiction during or following criminal process involving the eligible mentally deficient person."

 

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2

A-3779-08T3

RECORD IMPOUNDED

May 14, 2010