GEORGE LUCIETTO and GAIL LUCIETTO v. COUNTY OF BERGEN

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(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0793-06T30793-06T3

GEORGE LUCIETTO and GAIL

LUCIETTO,

Plaintiff-Appellants,

v.

COUNTY OF BERGEN and BERGEN

COUNTY POLICE AND FIRE ACADEMY,

Defendant-Respondents,

and

PASSAIC COUNTY SHERIFF'S DEPARTMENT,

MARYLAND STATE POLICE DEPARTMENT and

BOROUGH OF FORT LEE,

Defendants.

 
_______________________________________

Submitted April 18, 2007 - Decided

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Docket No. L-11552-04.

Fahy Choi, attorneys for appellants George Lucietto and Gail Lucietto (Emad G. Iskaros, of counsel and on the brief).

Rivkin Radler, attorneys for respondents County of Bergen and Bergen County Police and Fire Academy (John J. Robertelli, of counsel and Timothy B. Parlin, on the brief).

PER CURIAM

Plaintiff George Lucietto appeals from the summary judgment dismissal of his personal injury lawsuit against defendants County of Bergen and Bergen County Police and Fire Academy (County and Academy, or collectively, the defendants) based on the immunity provisions of N.J.S.A. 59:2-3a and d of the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3. We affirm.

Viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the pertinent facts are as follows. At the time he sustained his injury, plaintiff was a fifty-three year motorcycle patrol officer employed by the Pompton Lakes Police Department (department). Plaintiff had been a police officer since September 28, 1985 and had "over thirty years" experience riding motorcycles. In fact, he had worked as an assistant motorcycle training instructor in Passaic County. From among several volunteers, plaintiff was one of two officers selected to participate in defendants' two-week motorcycle training program by his department, which apparently required certification for its motorcycle patrol officers.

The training program was adopted by defendants in 1998 and patterned after the Maryland State Police course recommended by program coordinator Officer Kevin Mahon, who was authorized by defendants to assess "several different training programs." Mahon was directed to look for a low-cost academically-accredited program that included training in operating a motorcycle in urban, suburban, and rural environments. He recommended the Maryland course because of "its all encompassing nature", and after presenting his findings to the Academy's Curriculum Committee and the Chiefs of Police Board, received their approval to implement the program. Mahon himself

received Motor Officer Instructor training from the Maryland State Police, and as coordinator, administered the program with its creator, First Sergeant Frank Wastler of the Maryland State Police.

Wastler, who has been a motorcycle instructor since 1992 or 1993, developed the Maryland State Police Motorcycle Training Manual from his experience attending the U.S. Park Police Training Program. The manual began as "five or six pages" of motorcycle handling and safety basics, which expanded and evolved over the years to eventually become the training program that received accreditation from the University of Maryland and the approval of the Maryland State Police, the Maryland Police Training Commission and the Motorcycle Safety Foundation.

Unlike the New Jersey version, the Maryland model prescribed a screening mechanism. Prior to participation, Maryland officers are required to perform a "preliminary range evaluation" during which they perform basic motorcycle riding maneuvers and demonstrate their ability to handle a motorcycle. Apparently, Maryland State Police determined this screening evaluation was necessary because in the past officers who didn't pass the course, having failed to "pick the bike up", had filed grievances. Participants are also required to fill out a brief medical questionnaire although they are not subject to a physical examination. According to Wastler, out-of-state law enforcement agencies using the Maryland model decide for themselves whether and how to determine if an officer has the riding skill and physical fitness necessary to participate in the program. The fact that trainees in defendants' program were not subject to a physical examination did not "raise concerns" for Wastler because the officers were approved for training by their superiors. Nor did he consider the failure to implement a screening mechanism a deviation from the program.

Part of defendants' course involved a maneuver known as "righting a downed motorcycle." According to Wastler, officers must be able to do this maneuver without assistance because they often ride alone and are required to respond quickly to emergencies even if their motorcycle "goes over on its side". To right the motorcycle on an incline, an officer is required to rotate the motorcycle so that it is lying "parallel to the hill" before attempting to right it from the elevated side by straddling it and "squaring" the front wheel. This technique had been taught in every training course Wastler had "been personally involved with". Wastler observed officers successfully perform this maneuver on Honda Gold Wing motorcycles like the one used by plaintiff. He testified that the bike-rotating technique described by plaintiff was "a technique that's used" on an incline, and that based upon plaintiff's version of events he received "proper instruction" in the technique. Wastler observed Mahon administer the program, and opined that it was "a safe environment", that defendants "follow all the mandates and guidelines" of the program and that to his knowledge they do not deviate from the program.

Plaintiff himself described the training maneuver, consisting of a "controlled fall" and "righting a downed motorcycle":

As you were going up the hill, cut the bike to the left, hit the kill switch, dismount while the bike was going down so that your handlebars would be facing downward on the hill. Then you're supposed to grab it by the front wheel and the engine guard which they had on the Harleys and spin the bike completely around and then pick it up with your back again the proper way. There is a proper way to pick up with bike if you're on the hill when the bike is the wrong way. You're not supposed to pick the bike up from the downward side of the hill but from the upward side of the hill going down.

According to plaintiff, the instructors in defendants' program told him to "pick the bike up bend your legs, push the back against the seat of the bike and then lift the bike up", and that this was consistent with his previous training and with what he himself taught.

On August 22, 2002, while a participant in the program, plaintiff was injured during this exercise. He described how it occurred:

When I came up the hill, there was a lot of ruts and the grass was uneven and that. I was having a problem with my front end and when I got to cut the wheel to the left, it kind of jerked the handlebars on me and the bike went down faster. I wound up coming off the bike and rolling, tumbling. And then the instructor who was up there . . . said to me boy, that was some dismount. Like that. So then I got up. He said take your time getting up. I got up. Then I went up there and they showed you what you do is you grab the front wheel and you grab the crash bar and you drag the bike around. Well, on a Honda Gold Wing there is no crash bar. There is only an engine guard. So when the bike is down in the grass, everything is in the grass. Your foot pegs are buried in the grass, everything. The only thing you can grab it by is the front wheel and you can't bend down with your knees and bend your legs to pull it because it's too low. You can't pull it. So you have to try to grab the front wheel with both arms and then drag it around. When I went to do this, I felt a sharp pain in my back so I stopped. I said I just hurt my back. I felt a sharp pain. The instructor said to me well, we got to get it turned around so I'll help you. I said all right. We'll try. He leaned down. I grabbed the wheel and he grabbed the wheel and both of us could not move the bike. I said I can't do any more. I'm hurting my back. So then he made me get on this side of the bike, he got on this side of the bike and both of us lift and again my back felt bad. I told him. He said go sit down. . . . I sat down for a while while the rest of them did maneuvers. After the maneuvers were done, they came back down. They said everybody get back on the bike. I got back on the bike. And then they just rode us around the park . . . through all kinds of ruts and simulating riding over dirt roads. And then they took us out of the park and took us back to the academy.

Plaintiff suffered lower back and neck injuries. He did not return to work as a police officer, was placed on disability, and retired on ordinary disability.

Plaintiff brought the instant action against defendants alleging negligence in the adoption and administration of the motorcycle training program, citing specifically to defendants' failure to adopt a preliminary screening evaluation and to use a proper lifting technique, instead of requiring the "lifting of a fallen motorcycle by front wheel to pivot and right." To support his claim, plaintiff presented reports of engineer Daniel Denton and "biomechanical expert" Lisa Ferrara, who both opined that a dangerous condition was created when plaintiff was instructed to dismount the motorcycle while it was in motion and when he was twice instructed to pivot and lift the motorcycle, which he did with his back and upper body. They asserted that lifting a motorcycle using the back and upper body did not comport with the Minnesota Motorcycle Safety Center guidelines or the National Institute for Occupational Safety and Health Work Practices Guide for Manual Lifting.

Following discovery, defendants moved for summary judgment on the ground they were immune, as public entities, under N.J.S.A.

59:2-3. The trial court granted defendants' motion, reasoning:

First of all, the Court finds that the issue with respect to discretionary immunity is adequately clear, fairly clear from the Court's reading of N.J.S.A. 59:2-3. That section of our statute states that in Subpart A, "A public entity is not liable for any injury resulting from the exercise of judgment or discretion vested in the entity. As described, without repeating it on the record at this point, as described in the papers, the various steps taken in order -- or before the County of Bergen and the Bergen County Police and Fire Academy adopted the Maryland Manual on this procedure and this maneuver, the Court finds that these defendants did exercise judgment and discretion that were appropriate in order to approve this program. The Court finds that there is no genuine issue as to this. There was a thorough review before this procedure, this process was -- this manual was adopted, and in fact, the County did its own background in terms of research . . . before approving this course.

As cited in the moving papers by defendants, there was an officer, Kevin Mahon of the Fort Lee Police Department, that spent 18 months evaluating the courses and the Maryland State Police Motor Officer Instructor School was ultimately chosen because of its all encompassing nature. This process that the defendants, the movants undertook before approving this motorcycle training program when it did in the spring of 1999 was by this Court's account very thorough and thought out, so that there should be no disturbance of the exercise of the defendants' exercise of judgment or discretion in approving the course.

. . . .

With reference to the third issue provided by the defendants that the plaintiff has presented no evidence to establish the actions of the defendants were palpably unreasonable, the Court finds that there are, first of all, no facts set forth by the plaintiffs that show as a matter of course for factual evaluation at this point that the defendants' acts were palpably unreasonable, and in fact, the plaintiff's own expert gives the opinion that the guidelines that plaintiff maintains were not followed by the defendants were just that, guidelines. They were suggestions for safety but they were not in essence required or obligatory. So, the Court finds that the -- coupled with the fact that the defendants acted in good faith in proceeding, adopting, and proceeding with this motorcycle training -- these motorcycles training procedures, the defendants further did not act in any way palpably unreasonable that would rise to that level above and beyond ordinary negligence.

On appeal, plaintiff raises the following issues for our consideration:

I. SUMMARY JUDGMENT IS [SIC] PROPRIETY OF THE TRIAL COURT'S ORDER IS A LEGAL, NOT A FACTUAL QUESTION.

II. THE TRIAL JUDGE IMPROPERLY MADE A CREDIBILITY DETERMINATION REGARDING THE PLAINTIFF'S PRIOR EXPERIENCE IN RIDING A MOTORCYCLE AND TEACHING A MOTORCYCLE TRAINING COURSE.

III. THE TRIAL JUDGE'S CONCLUSION THAT THE GUIDELINES THAT PLAINTIFF'S EXPERT RELIES UPON ARE SUGGESTIONS FOR SAFETY BUT WERE NOT REQUIRED OR OBLIGATORY VIOLATES THE RULES OF EVIDENCE.

IV. THE TRIAL JUDGE'S CONCLUSION THAT THE ACTIONS OF THE COUNTY WERE NOT PALPABLY UNREASONABLE WAS IMPROPER AND SHOULD HAVE BEEN DETERMINED BY THE JURY.

These arguments boil down to the essential claim of plaintiff that while defendants enjoy limited immunity for the discretionary activities at issue, under N.J.S.A. 59:2-3d, they are nevertheless liable as their failure to medically screen and use proper lifting technique in the maneuver at hand constitute palpably unreasonable conduct. We disagree. We conclude that limited immunity of subsection (d) applies to defendants' discretionary actions in adopting and administering its motorcycle training program, and that there is no evidence of palpable unreasonableness in defendants' creation or implementation of the program that vitiates their limited immunity.

In enacting the Tort Claims Act (Act), the Legislature set forth the public policy of this State, N.J.S.A. 59:2-1:

a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of any act or omission of the public entity or a public employee or any other person.

b. Any 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.

The clear intent of the statute is "to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions." Comment on N.J.S.A. 59:2-1b. See also Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 407-08 (1988). Thus, the Act "is strictly construed to permit lawsuits only where specifically delineated." Gerber v. Springfield Bd. of Educ., 328 N.J. Super. 24, 34 (App. Div. 2000). See also Alston v. City of Camden, 168 N.J. 170, 176 (2001). Accordingly, except where liability is specifically imposed by the Act, public entities are immune from negligence suits. N.J.S.A. 59:1-2.

When governmental entities are sued under a theory of negligence, courts must first determine whether immunity applies, and if not, whether liability attaches. Pico v. State, 116 N.J. 55, 59 (1989). Here, by all accounts, the immunity afforded by N.J.S.A. 59:2-3 applies, although the parties differ as to which specific provision governs. The statute provides:

a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;

b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

[N.J.S.A. 59:2-3.]

This provision is intended to codify the existing law in the State of New Jersey which immunizes both public employees and public entities for the exercise of discretion within the scope of employment. See Willis v. Dep't of Conservation and Economic Devel., 55 N.J. 534, 540 (1970); Bergen v. Koppenal, 52 N.J. 478 (1968); Amelchenko v. Borough of Freehold, 42 N.J. 541 (1964). Subsection (a) of this section is a general provision providing broad immunity for discretionary acts. "[W]hen the Legislature wrote paragraph (a) it intended to protect a range of function wider than what is treated under paragraphs (b), (c) and (d)." Cobb v. Waddington, 154 N.J. Super. 11, 17 (App. Div. 1977), certif. denied, 76 N.J. 235 (1978); see also Longo v. Santoro, 195 N.J. Super. 507, 515 (App. Div.), certif. denied, 99 N.J. 210 (1984).

For instance, subsection (b) specifies an absolute immunity for certain high-level decisions calling for the exercise of official judgment or discretion, see Amelchenko, supra, 42 N.J. at 550, and subsection (c) specifies with particularity the type of high-level policy decisions which must remain free from the threat of tort liability, including the decision to seek appropriations for the purchase of equipment or the construction of facilities or the hiring of personnel, which are discretionary judgments of a coordinate branch of government, reserved solely for decision by that branch of government.

Subsection (d), on the other hand, specifies certain discretionary activities of a public entity which lend themselves to a very limited judicial review. Thus, "'[s]ubsection (d) involves the exercise of discretion when in the face of competing demands, the governmental body determines whether and how to utilize existing resources[,]'" Longo, supra, 195 N.J. Super. at 517 (quoting Brown v. Brown, 86 N.J. 565, 577 (1981)), a determination for which the public body may be liable only if "palpably unreasonable." Bergen v. Koppenal, supra, 52 N.J. at 478.

"Each subsection should be read with respect to the subject matter of the others and in harmony with each other and with the whole. . . . When an immunity comes within a specific subsection of N.J.S.A. 59:2-3, then the general provision, subsection a, would not apply." Brown, supra, 86 N.J. at 577-78. In this regard, our Supreme Court has noted that

(s)ubdivision (a) . . . states broadly that a public entity is not liable for an injury resulting from the exercise of judgment or discretion. However, subdivision (a) should be read in conjunction with the areas of protected discretion expressly outlined in subparagraphs (b), (c) and (d). All the subsections should be read consistently, each with respect to the subject of the others. These subparagraphs are signposts to understanding the nature of immunized discretionary determinations. They suggest that the "exercise of . . . discretion" in N.J.S.A. 59:2-3a refers to actual, high-level policymaking decisions involving the balancing of competing considerations. Such decisions have been traditionally entrusted to coordinate branches of government, and courts, utilizing standard tort principles, are ill-equipped to interfere with them.

[Costa v. Josey, 83 N.J. 49, 54-55 (1980) (applying subsection (a) to decisions made in the planning stages of a road resurfacing project but not to operational decisions regarding that project, which are governed by the duty of care set forth in N.J.S.A. 59:4-2).]

Of course, under N.J.S.A. 59:2-3, "[i]mmunity 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." Id. at 59. There must be some indication that "competing policy choices were actually considered". Id. at 60. Subsequent to Costa, we noted that the "design and structure of [a community correctional] program represented a basic policy determination which is protected by the immunity rule" of N.J.S.A. 59:2-3a. Flodmand v. State, Dep't of Institutions & Agencies, 175 N.J. Super. 503, 510 (App. Div. 1980).

Similar to the reasoning in Costa, in deciding whether an act was discretionary, the California Supreme Court in Johnson v. State, 69 Cal. 2d 782, 73 Cal. Rptr. 240, 447 P.2d 352 (1968), focused on the policy considerations behind the grant of governmental immunity, explaining:

Courts and commentators have . . . centered their attention on an assurance of judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government. Any wider judicial review, we believe, would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government. Moreover, the potentiality of such review might even in the first instance affect the coordinate body's decision-making process.

[Id., 69 Cal. 2d at 793, 73 Cal. Rptr. at 248, 447 P.2d at 360.]

Consistent with this approach, the California Court of Appeals in Soto v. State, 56 Cal. App. 4th 196, 65 Cal. Rptr. 2d 11 (Ct. App. 1997), in holding the State immune from civil liability for injuries to a State employee incurred during a training exercise - albeit under a statute admittedly broader than ours - reasoned:

Training people to respond to disasters is unquestionably one of those areas where the responsibility has been committed to a coordinate branch of government. It is not up to the courts to decide the appropriateness of the design or execution of training exercises conducted for that purpose. That such exercises may place the participants at risk does not lessen the inappropriateness of intervention by the courts.

[Id., 56 Cal. App. 4th at 200-201, 65 Cal. Rptr. at 13.]

Turning to the specifics of the case at hand, plaintiff essentially concedes that the creation, adoption and administration of the motorcycle training program involves an exercise of judgment and discretion on the part of defendants. Indeed, no one posits such a discretionary determination to be at the lowest ministerial rung of official action for which only ordinary negligence needs be proved. On the contrary, the decision to design and implement a course modeled or patterned after that of the Maryland State Police was a discretionary determination evidently involving consideration of competing policy choices. Indisputably, Officer Mahon spent eighteen months evaluating programs that fit the particular requirements of the County and the Academy in terms of content, cost, and accreditation, and upon considering his presentation and answers to their questions, defendants ultimately approved his recommendation.

Equally discretionary was the deliberate choice of defendants to eliminate the screening feature of the Maryland program. Such adaptation of the Maryland model reflects local considerations and judgments as to eligibility criteria, allocation of resources, the balance of public versus officer safety, and the necessity of such a preliminary evaluation given the selection process that already exists. The other program component at issue here - the lifting maneuver - to the extent it is even a local adaptation, relates to course content and is therefore intrinsically implicated in the policy decision itself, resulting from the same discretionary decisionmaking as the elimination of the screening requirement. As noted, no one, not even plaintiff, suggests this course feature to be only an operational detail of a purely ministerial nature.

The only dispute then is whether defendant's adoption and implementation of the program was palpably unreasonable. See N.J.S.A. 59:2-3d ("A public entity is not liable for the exercise of discretion . . . unless a court concludes that the determination of the public entity was palpably unreasonable."). We conclude that as a matter of law, it was not.

"'Palpably unreasonable' means more than ordinary negligence, and imposes a steep burden on a plaintiff." Coyne v. Dept. of Transp., 182 N.J. 481, 493 (2005). The term "implies 'behavior that is patently unacceptable under any circumstance' and . . . 'it must be manifest and obvious that no prudent person would approve of [that] course of action or inaction.'" Holloway v. State, 125 N.J. 386, 403-04 (1991) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). To be "palpably unreasonable", the action or inaction must be "plainly and obviously without reason or reasonable basis, capricious, arbitrary or outrageous." Johnson v. County of Essex, 223 N.J. Super. 239, 257 (Law Div. 1987). The burden of proving that behavior is "palpably unreasonable" rests with the plaintiff. Kolitch, supra, 100 N.J. at 493.

Whether a governmental action is "palpably unreasonable is usually a fact question for the jury. Brown, supra, 86 N.J. at 580. However, where the evidence is insufficient to permit reasonable jurors to find that the governmental action complained of "was patently unacceptable in a way so manifest and obvious that no prudent person would approve" of it, the court may decide the question of palpable unreasonableness as a matter of law. Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002) (citing Garrison v. Tp. of Middletown, 154 N.J. 282, 311 (1998) (Stein, J. concurring)). In other words, although a "palpably unreasonable" determination is for the jury to make, "like any other fact question before a jury, [it] is subject to the court's assessment whether it can reasonably be made under the evidence presented". Black v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993).

We are satisfied that the motion judge properly determined that adoption and implementation of the course was not palpably unreasonable as a matter of law. Nothing in the record suggests that defendants' choice to implement this particular program was outrageous. On the contrary, the record shows that it has been used by defendants since 1998 or 1999 with no similar injuries reported; it was developed over the course of several years and is still used by the Maryland State Police; it has received academic accreditation as well as safety certification from the Motorcycle Safety Foundation; and it has been adopted for use by other states' agencies. Indeed, Wastler stated that when he administers

the program in Maryland, it includes only a brief medical questionnaire and a "preliminary range evaluation" of basic motorcycle skills; the program does not require or recommend an exam of any kind; and, in fact, he expressly defers to the law and policy of the jurisdiction where the program is administered. And even plaintiff's own expert admitted that he knew of no code, regulation, procedure, or policy mandating an exam prior to training.

As to the challenged maneuver, plaintiff's expert Denton could only postulate that "dismounting a motorcycle on a hill" was not "part and parcel of the Maryland training materials." However, as with the failure to provide screening, nothing in the record suggests that the maneuver "was patently unacceptable in a way so manifest and obvious that no prudent person would approve". Under the circumstances, we conclude defendants' discretionary determinations were not palpably unreasonable and consequently are cloaked with immunity under N.J.S.A. 59:2-3d.

 
Affirmed.

Plaintiff's wife, Gail Lucietto, sued per quod.

Plaintiff also sued the Passaic County Sheriff's Department, the Maryland State Police Department and the Borough of Fort Lee but stipulations of dismissals as to these defendants were entered during the discovery period.

At oral argument on the summary judgment motion, the following colloquy occurred between court and plaintiff's counsel:

Q. But, if the Academy instructed it pursuant to the manual, consistent with the manual that had been adopted since spring of 1999, where is there room for not allowing [discretionary] immunity to fall on them? In other words, are they not subject to the immunity in the process of adopting this Maryland policy as for Bergen County?

A. They are, obviously, subject to the immunity. However, the claim here is that their actions were palpably unreasonable.

(continued)

(continued)

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A-0793-06T3

May 14, 2007

 


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