FREDDY FLORIAN v. SHANTAY D. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1010-12T1

FREDDY FLORIAN, AN INFANT

BY HIS GUARDIAN AD LITEM,

CARMELA FLORIAN and

CARMELA FLORIAN, INDIVIDUALLY,

Plaintiffs-Appellants,

v.

SHANTAY D. JOHNSON, AISHA J.

DESINCE, and FARMERS INSURANCE

GROUP,

Defendants,

and

FRANKLIN TOWNSHIP BOARD OF

EDUCATION,

Defendant-Respondent.

________________________________________________________________

ArguedMay 14,2014 Decided October29, 2014

Before Judges Sapp-Peterson and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1487-11.

Christopher F. Struben argued the cause for appellants (Michael A. Percario, attorney; Mr. Struben, on the brief).

Austin B. Tobin argued the cause for respondent Franklin Township Board of Education (Wolff, Helies, Spaeth & Lucas, P.A., attorneys; Mr. Tobin, on the brief).

The opinion of the court was delivered by

MAVEN, J.A.D.

Plaintiffs Freddy Florian, through his guardian ad litem, Carmela Florian and Carmela Florian1, individually, appeal from a Law Division order granting summary judgment in favor of defendant Franklin Township Board of Education (Board)2 and dismissing their complaint. Plaintiffs raise the following argument on appeal

THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT [TO] DEFENDANT AS THE COURT FAILED TO DETERMINE THE STANDARD TO APPLY TO THE PUBLIC ENTITY'S CONDUCT

We have considered the argument in light of the motion record and applicable legal standards. We reverse and remand for further proceedings.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 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 were no genuine disputes as to material facts. Ibid.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, 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, 540 (1995).]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. We owe no deference to the motion judge's conclusions of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

I.

We derive the facts viewed in the light most favorable to plaintiffs from the record submitted in support of and in opposition to defendant's motion for summary judgment.3 In September 2010, plaintiff lived in the Somerset Park apartment complex. At the time of the accident, Freddy was twelve years old and in the sixth grade.

Carmela testified that her family moved into another apartment building within the same complex over the weekend of January 1 and 2, 2011. She had been told by Freddy's school that she had to take a copy of her new lease to the Board and complete a change-of-address form in person before the Board could issue a new bus pass. On Wednesday, January 5, 2011, she appeared before the Board where she submitted an address change form. She was told she would not immediately receive a bus pass "because they have to follow protocol," and that "it would be issued and he would have to ride on the old bus." She was additionally told Freddy could not ride on the new bus "until the new bus pass was issued and that it would be mailed to [her]." After completing the change-of-address form, Carmela received a receipt that read: "Please note, not to put your child on any school bus, until you have received written notification from [the] Transportation [Department]." Carmela could not recall if she read the receipt.

The Board's Registrar, was responsible for registering the addresses of new and existing students and notifying the transportation department of the change. The Registrar explained the procedures followed by her office to register a family's change of address. She stated that once a parent comes into her office with proof of residence and submits a change-of-address form she changes the address in the system. She provides the parent a receipt and informs the parent that it takes several days for a bus pass to be issued. The parent is also instructed that the child must wait for a new pass to arrive in the mail before riding a new bus, and that it is the parent's responsibility to arrange for the child's travel to and from school while awaiting the receipt of the bus pass. Thereafter, she would send the transportation department an email notifying them of the change of address, so they can generate a bus pass. She was not aware of how the transportation staff approved a bus stop or generated the bus pass.

The Registrar had no specific recollection of processing Carmela's change-of-address form but acknowledged that the receipt given to Carmela bore her initials. She also acknowledged that processing change-of-address forms is her "primary job." She therefore conceded that it was fair to assume that she was the person who accepted Carmela's change-of-address form. In addition, she sent the transportation department an email regarding Freddy's change of address at 12:51 p.m. on January 5, 2011.

The transportation department processed the new bus pass on January 6, 2011, and designated a new bus stop at Westminster Road and Coventry Lane. The new bus pass was mailed to Carmela on January 6, 2011 with an effective date of January 10, 2011.

Freddy testified he rode the old bus to and from school January 4 through January 6, 2011. He boarded the bus, and was dropped off at his old bus stop, located at the intersection of Whitehall Lane and Westminster Road. Because his new residence was on the opposite side of the street from the bus stop, he had to cross the road to get there. On January 6, 2011, when the school bus dropped him off, he was struck by defendant's vehicle while crossing the road.

Freddy testified he and his mother discussed the need for a new bus pass before the accident.

[Defense Counsel]: Did you ever tell the bus driver that you had a new stop?[4]

[Freddy]: No. I wasn't even supposed to be on that bus.

[Defense Counsel]: Did you know you weren't supposed to be on that bus?

[Freddy]: Yes.

[Defense Counsel]: Why did you get on it then?

[Freddy]: I didn't have a pass to go on the other one.

. . . .

[Defense Counsel]: Did anybody tell you that you couldn't get on the bus without a pass?

[Freddy]: I spoke to my mom. She said you're going to have to wait until the pass comes.

[Defense Counsel]: When did you tell your mother that? [sic]

[Freddy]: My mother already knew that I would need a new bus pass considering that I lived away from that stop so she handled it and told me I needed to wait for my new pass.

[Defense Counsel]: So your mom knew you were going to be on the same route, the same bus you had been on previously?

[Freddy]: Yes.

[Defense Counsel]: So when you left for school in the morning it was understood that you were going to be on the same bus that you had been on before you moved because you didn't have a new pass for the new bus?

[Freddy]: Yes.

. . . .

[Defense Counsel]: When did you discuss with her the fact that you would have to take the old bus home instead of the new bus, the night before?

[Freddy]: Two nights before, actually, yes.

Carmela testified that when Freddy went to school on January 4 through 6, he walked to the old stop to board the bus and got dropped off at the old stop. She stated a medical condition caused her to go to the hospital on January 5 after completing the address form. She did not pick Freddy up from the bus stop on January 6 because of her condition, and because she said "he was accustomed [to] going back and forth to home. At least at the old stop he was accustomed to it."

The Board Supervisor of Transportation, Parent Information, and Attendance and Truancy (Supervisor), oversaw the daily operation of the Department of Student Registration and was the Registrar's direct supervisor. His testimony regarding the procedures used to register student addresses was consistent with the Registrar's. He described the process for assigning a child to a bus stop and explained the Board's procedure for processing a change of address created the necessary communication chain to ensure that appropriate school personnel and bus drivers know which bus each student is assigned to ride. He stated once the transportation department receives notice of an address change within the district and eligibility for bus service is confirmed, a software program is utilized to determine the most appropriate bus stop to assign to the child. Notice is then sent to the principal, teachers, the bus company, and the affected bus drivers.

Following discovery, the Board moved for summary judgment contending plaintiff's claims were barred by the Tort Claim Act (the TCA), N.J.S.A. 59:1-1 to 12-3. In support of its motion, the Board argued its policies and procedures for registering address changes and issuing bus passes were reasonable; its employees were not negligent in carrying out their duties; and plaintiff failed to produce any evidence to prove negligence by the Board. Plaintiff argued the actions taken by the registration staff to process the change of address, and the transportation department staff to issue a new bus pass were operational or ministerial in nature, and therefore not immunized under the TCA.

The trial court granted the Board's motion finding: (1) the Board's established procedure for registering a change of address and issuing a bus pass was reasonable; (2) the Board employees were not negligent in performing their duties, and as such, under N.J.S.A. 59:2-2, there was no negligence on the part of the public entity; (3) there is no liability for an injury caused by the Board's failure to adopt an ordinance or regulation, under N.J.S.A. 59:2-4; and (4) there is no liability under N.J.S.A. 59:2-3 resulting from the Board's exercise of judgment or discretion. This appeal followed.

II.

The TCA "re-establishes sovereign immunity and provides that 'public entities shall only be liable for their negligence within the limitations of th[e] act . . . .'" Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 457 (2009) (quoting N.J.S.A. 59:1-2). "The guiding principle of the [TCA] is that 'immunity from tort liability is the general rule and liability is the exception.'" Coyne v. Dept. of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).

N.J.S.A. 59:2-3(a) declares that a public entity is "not liable for an injury resulting from the exercise of judgment or discretion vested in the entity." Public employees are immunized for the same activities. N.J.S.A. 59:3-2. Costa v. Josey, 83 N.J. 49, 55 (1980); see Coyne, supra, 182 N.J. 481, 489-90 (2005). The exercise of discretion contemplated by N.J.S.A. 59:2-3(a) "refers to actual, high-level policymaking decisions involving the balancing of competing considerations."

On the other hand, the TCA does not "exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions." See N.J.S.A. 59:2-3(d); N.J.S.A. 59:3-2 (declaring the same with respect to public employees). Within that context, a ministerial act is one which is performed "under a given state of facts in a prescribed manner . . . without regard to or the exercise of . . . judgment upon the propriety of the act being done." Kemp by Wright v. State, 147 N.J. 294, 308 (1997) (citation and internal quotation marks omitted).

Here, plaintiff argues that the trial court erred by finding that the Board's actions were reasonable without determining whether the Board's procedures for registering address changes and issuing new bus passes were discretionary decisions, immunized from liability under the TCA, or whether they were operational decisions subject to the "palpably unreasonable" test. We agree.

The motion judge did not make a definitive determination with respect to whether the actions of the Board staff were operational or discretionary decisions. Instead, the judge merely stated "under [N.J.S.A.] 2-3(a), the [Board] is not liable for injury resulting from the exercise of judgment or discretion vested in the [Board]." Because our review is de novo, we review this issue.

In Costa, the Court makes clear that the "exemption contemplated under N.J.S.A. 59:2-3 concerns the 'exercise of judgment or discretion' . . . in basic policy decisions made at the planning, rather than the operational level of decision making." Costa, supra, 83 N.J. at 59. Furthermore, immunity for such decisions, "is contingent upon proof that discretion was actually exercised at that level by an official who, faced with alternative approaches, weighed the competing policy considerations and made a conscious choice." Ibid.

In Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485 (App. Div. 2013), we recognized that an "act is 'ministerial [or operational]'[5] if it is 'one which a person performs in a given state in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his [or her] own judgment upon the propriety of the act being done.'" Id. at 502 (alteration in original) (quoting Morey v. Palmer, 232 N.J. Super. 144, 151 (App. Div. 1989)). The Henebema court further provided that "immunity under the [TCA] exists for discretionary activities unless a public entity's actions were palpably unreasonable. And ordinary negligence principles apply for a public entity's performance of ministerial [or operational] functions." Id. at 503.

New Jersey courts have also recognized that "every governmental decision requires, to some extent a degree of discretion." Pacifico v. Froggatt, 249 N.J. Super. 153, 156 (1991). As such, the Court advised in Costa

That the discretionary function immunity should be limited to actual policymaking is further supported by practical considerations. It is apparent that a literal interpretation of the term "discretion" would effectively exempt from the operation of the Tort Claims Act all government action unless it resulted from mere inadvertence. Almost all official conduct, no matter how ministerial, involves the exercise of some judgment and decision-making. To construe subsection (a) that broadly, however, would in effect eliminate most of the liability which the Legislature clearly intended to permit when it enacted the statute.

[Costa, supra, 83 N.J. at 60.]

Here, the Board's policy decision to provide bus transportation to all of its children, beyond that which is required by statute, was clearly discretionary. The Supervisor testified that the Board is required to bus all children within two miles of their school. See N.J.S.A. 18A:39-1 (requiring school districts to provide transportation to all elementary school children who live more than two miles from their school, and secondary school children who live more than two-and-one-half miles from school). However, he further stated that the Board decided on its own to bus all children from grades pre-kindergarten through six. There is no doubt this was a policy decision with broad district-wide implications for transporting children to school.

On the other hand, the procedures employed by the Registrar to accept and process change-of-address forms, and by the transportation department to utilize the software program to designate the appropriate bus stop and generate the bus pass were operational or ministerial tasks. Completing these tasks do not involve the exercise of independent judgment. Thus, we conclude the actions of the Board employees in processing Carmela's change of address and bus pass requests were ministerial in nature, and consequently not immunized from liability under N.J.S.A. 59:2-3.

Succinctly stated, "when the public employee is liable for acts within the scope of that employee's employment, so too is the entity." Tice v. Cramer, 133 N.J. 347, 355 (1993). Thus, we apply ordinary principles of negligence in determining the liability of the public entity under these circumstances. Robinson, supra, 217 N.J. at 207; Tice, supra, 133 N.J. at 355. The TCA permits liability for the negligent acts of public employees only on the same terms as a private individual. N.J.S.A. 59:2-1(b).

We now turn to consider the fundamental elements of a negligence claim, namely, a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, injury to the plaintiff proximately caused by the breach, and damages. E.g., Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). In Frugis v. Bracigliano, 177 N.J. 250, 268 (2003), the Court commented on the responsibility imposed upon a school for the care of its students

The law imposes a duty on children to attend school and on parents to relinquish their supervisory role over their children to teachers and administrators during school hours. While their children are educated during the day, parents transfer to school officials the power to act as guardians of those young wards. No greater obligation is placed on school officials than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others. Although the overarching mission of a board of education is to educate, its first imperative must be to do no harm to the children in its care.

Further, in Jerkins v. Anderson, 191 N.J. 285, (2007), where a third-grade student was injured following an early dismissal about which the student's family claimed they had no knowledge, the Court held that school districts have a duty of care to supervise children at dismissal. Id. at 300. The Court concluded the scope of that duty is defined by "reasonableness" that is measured under a "totality of the circumstances standard." Id. at 301. The three elements of the school's duty of care require that

(1) the school [] adopt a reasonable policy concerning dismissal and the manner in which students of different ages will be dismissed;

(2) the school [] provide adequate notice of that policy to all parents or guardians; and

(3) the school [] effectively implement that policy and adhere to parents' reasonable requests regarding dismissal.

Id. at 301-302.

Plaintiffs contend that the Board was negligent by failing to provide Freddy a secure and safe passage home, in light of its assumption of an obligation to provide transportation to all students through the sixth grade and for failing to have written address change and bus pass procedures. There remain genuine issues of material fact as to whether the Board breached that duty.

When the facts are viewed in the light most favorable to plaintiffs, it is undisputed the Board adopted procedures to respond to address changes for its students who it determined would be bused to school. It is also undisputed that within one day of Carmela's submission of her change of address, a new bus pass was mailed to her. The motion judge found the Board's procedures were reasonable because it was necessary to await a determination by the bus company as to whether an existing bus stop could be utilized or whether a new bus stop must be created. Plaintiffs presented no evidence from which a jury could reasonably conclude that the delay in issuing a bus pass for the reasons explained was unreasonable.

This conclusion, however, does not end the analysis. Carmela testified that she was told that Freddy could continue to ride the old bus until he received his new bus pass. The Registrar's testimony regarding the parent's responsibilities in the interim was equivocal. She initially testified that no instructions are given to parents about what they should do in the interim while awaiting the new bus pass, "unless they ask." She later testified that the parent is told that until the new bus pass arrives the parent is responsible for the student's transportation.

In addition, the receipt provided following the submission of the change-of-address form, upon which the Board relies as evidence of notice to Carmela of her responsibility to provide transportation for Freddy while awaiting the new bus pass, is not dispositive of whether the Board fulfilled its obligation to Freddy. On its face, the relevant language appears to be specifically directed to new students registering in the district. The form, in part, reads

Dear Parent/Guardian

We have received your registration documentation and your child has been assigned to __________________ a school within the Franklin Township Public Schools. You should receive a letter from your child's school informing you of his/her placement. You should also receive a letter from our Transportation Department informing you of your child's eligibility for bus services. Please note, not to put you child on any school bus, until you have received written notification from Transportation.

It is undisputed that Carmela was not registering Freddy as a new student when she appeared before the Board. The fact that she was given this document as a receipt does not necessarily mean that the language contained in this section of the document applied to her request for a new bus pass for Freddy, who was already a student within the district. Indeed, elsewhere on the document, there is a check list that, in addition to referencing "change of address," lists other matters under the apparent jurisdiction of the Registrar: emergency card, transfer card, native language, birth certificate, proof of residency, immunizations, registration and re-registration. We are certain the language quoted has little or no relevance here to such things, for example immunizations and native language. Arguably, however, the receipt form may not be interpreted accurately by a parent seeking a new bus pass due to a change in address. Thus, a trier of fact may reasonably conclude that this document does not fulfill the Board's notice obligation to a parent regarding his or her interim obligations when a child for which bus transportation is being provided moves within the district.

The question of the Board's reasonableness here together with plaintiffs' conduct must be measured under the totality of the circumstances as found by the trier of fact. Jerkins, supra, 191 N.J. at 306. The motion judge, in finding the Board's procedures reasonable accepted the Board's version of the facts, without considering Carmela's testimony as to what she was told. In accepting the Board's evidence that Carmela was told that it was her responsibility to transport Freddy to and from school during the interim, the motion judge engaged in a weighing analysis, rather than viewing the facts in the light most favorable to plaintiffs. Brill, supra, 142, N.J. at 520.

Nor does the fact that Freddy testified that he knew he was not supposed to be on the old bus eliminate the need for resolution of the issue of the reasonableness of the Board's actions. If the jury credits Carmela's testimony that she was told Freddy could continue to ride the old bus, Freddy's testimony that he knew he was not supposed to be on the bus could be interpreted by the jury as Freddy knowing that the old bus was not the correct bus, rather than that he was not allowed to be on any bus at that point.

In concluding that summary judgment was improperly granted, we do not find the Board was under a duty to provide transportation to Freddy during the interim period when Freddy was awaiting issuance of a new pass, as the scope of the transportation services provided by the Board, beyond that which is statutorily mandated, does involve the exercise of the type of discretion immunized under the TCA. N.J.S.A. 59:2-3(a). However, where the Board does not provide transportation, under certain circumstances, such as during the interim period when a student is awaiting issuance of a new bus pass because of an address change, the Board must establish notice procedures reasonably designed to clearly explain to the parent his or her responsibilities during this interim period.

The existence and reasonableness of the Board's notice procedures here and whether Carmela was in fact given adequate notice of her responsibility to transport Freddy to and from school during the interim period when Freddy was without a new bus pass, raises genuinely disputed issues sufficient to defeat summary judgment in favor of the Board. We, therefore, reverse. To the extent we have not specifically addressed any of plaintiff's remaining arguments, we find them to be without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 As plaintiffs share a common last name, we will refer to them by their first names; no disrespect is intended.

2 All claims against the other defendants have been administratively dismissed.

3 Depositions were taken of Freddy Florian, Carmela Florian, the Board Registrar and the Transportation Supervisor.

4 The Investigation Report indicates the bus driver saw Freddy lying in the street after she had dropped him off at his bus stop. Freddy told the driver he had moved, and the driver told him "that she had not received any documentation notifying her of a change in his bus assignment."

5 "Ministerial" and "operational" can be used interchangeably. See, e.g., Kolitch v. Lindedahl, 100 N.J. 485, 495 (1985) (recognizing that "there is a distinction to be made between a planning-level or discretionary decision, which is generally entitled to immunity, and an operational or ministerial action, which is not").