VINCENT PETRECCA, Plaintiff, v. COUNTY OF OCEAN, ROBERT URIE and JOHN STEINHAUER

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2340-06T12340-06T1

VINCENT PETRECCA,

Plaintiff,

v.

COUNTY OF OCEAN,

ROBERT URIE and

JOHN STEINHAUER,

Defendants-Appellants,

and

FIREARMS TRAINING SYSTEMS, INC.,

Defendant.

________________________________________________________________

 

Submitted May 23, 2007 - Decided

Before Judges Wefing, Parker and Messano.

On appeal from Decision of New Jersey Attorney General.

Berry, Sahradnik, Kotzas Riordan & Benson, attorneys for appellant Ocean County (R. Scott Clayton, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel, Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Defendants Robert Urie and John Steinhauer, two investigators employed by the Ocean County Prosecutor's Office, and the County of Ocean (collectively, defendants), appeal the Attorney General's decision denying them a defense and indemnification in this lawsuit brought by plaintiff Vincent Petrecca. We consider the issue pursuant to R. 2:2-3(a)(2) and the Supreme Court's directive in Prado v. State, 186 N.J. 413, 423-24 (2006).

Since the litigation is in its infancy and no discovery has apparently taken place, we rely upon the allegations contained in the pleadings to frame the issue presented. Plaintiff, also employed as an investigator with the Ocean County Prosecutor's Office, was participating in firearms training at the Ocean County Police Academy on May 28, 2004, utilizing a "Firearms Training System" (FATS) machine manufactured and installed by defendant Firearms Training Systems, Inc. Plaintiff alleged that he was struck in the eye by a projectile from the machine suffering serious injuries as a result. He alleged that the FATS system lacked the appropriate "warnings and directions," and that defendants "created a dangerous condition," by Urie's failure "to properly run the training session," and Steinhauer's "negligent[] operat[ion] of the [FATS] machine." Plaintiff filed his complaint on May 19, 2006.

Defendants moved to dismiss the complaint in lieu of filing an answer. They argued the action was not cognizable because of the bar contained in the Workers' Compensation Act, specifically N.J.S.A. 34:15-8. Since we have not been supplied with a transcript of the argument, we cannot discern the motion judge's specific rationale for denying the motion which he did by order dated October 6, 2006, "for the reasons expressed on the record." In their brief, defendants contend that the judge denied the motion because plaintiff has asserted that Steinhauer intentionally caused his injury.

On October 16, 2006, defendants made formal written demand upon the Attorney General for defense and indemnification in the matter pursuant to the Supreme Court's decision in Wright v. State, 169 N.J. 422 (2001). On November 9, the Attorney General responded, denying the request "because the plaintiff's allegations do not involve tortious conduct initiating from [] an investigation, arrest or prosecution of a criminal matter." He continued since "[d]efendants . . . were not involved in a law enforcement function . . . but were engaged in an administrative task, i.e. firearms training," "the County, not the State, is vicariously liable" for their actions. Defendants' request for reconsideration was apparently futile because this appeal ensued.

We must accord the Attorney General's final administrative decision in this regard "the usual deference," and it should not be "reverse[d] unless 'it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Prado, supra, 186 N.J. at 427 (quoting In re Taylor, 158 N.J. 644, 657 (1999)). After careful consideration of the issue presented, we affirm.

Defendants argue that they are entitled to a defense and indemnification from the State because they were engaged in "law enforcement duties" at the time of plaintiff's injury and, pursuant to Wright, they were acting as "agents of the State." Wright, supra, 169 N.J. at 455. The Attorney General contends that the State is obligated to defend and indemnify employees of the county prosecutor only when they are engaged in "the investigation and enforcement of the criminal laws of the State." Ibid. Plaintiff's claims arising from defendants' involvement in mandatory firearms training, he contends, simply do not fall within Wright's ambit.

In Wright, plaintiff filed suit against various members of the Somerset County Prosecutor's Office alleging false arrest, invasion of privacy, malicious prosecution, false imprisonment, and other causes of action. Id. at 429. The Supreme Court confronted two issues -- specifically, 1) whether the State could be held vicariously liable for the conduct of the prosecutor's employees, and 2) whether those employees were entitled to a defense from the State. Id. at 429-30.

The Court noted, "[T]he issue of defense turns on whether the [county prosecutor's] employees can be considered 'State employees' pursuant to N.J.S.A. 59:10A-1 of the [Tort Claims Act, N.J.S.A. 59:1-1 through 12-3]." Id. at 444. Since prosecutors "are discharging a State responsibility" which "the Legislature has delegated" to them when they "perform their law enforcement function," id. at 451, the Court concluded

[W]hen county prosecutors and their subordinates act in their law enforcement/investigatory capacity, they act as "agents" and "officers" of the State, qualifying as State employees under N.J.S.A. 59:1-3 for the purpose of determining vicarious liability under the [Tort Claims Act].

[Id. at 452.]

The Court juxtaposed these prosecutorial activities against the "administrative tasks" of the office "entirely unrelated to the duties involved in criminal prosecution." Id. at 441 (quoting Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir. 1996), cert. denied, 519 U.S. 1084, 117 S. Ct. 754, 136 L. Ed. 2d 691 (1997)). When performing these tasks, the prosecutor "acts on behalf of the county that is the situs of his or her office." Ibid. As a result, the State is not vicariously liable for those activities and owes no duty to defend or indemnify the prosecutor or his employees against claims based upon them. DeLisa v. County of Bergen, 326 N.J. Super. 32, 40 (App. Div. 1999), rev'd on other grounds, 165 N.J. 140 (2000).

In the case at hand, plaintiff's claims do not arise out of any alleged tortious conduct committed by Urie and Steinhauer during their "investigation and enforcement of the State's criminal laws." Wright, supra, 169 N.J. at 455; see also Cashen v. Spann, 66 N.J. 541, 552 (holding prosecutor and investigators are "agents of the State" when tortious conduct arose out of investigative activity), cert. denied, 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975)).

Defendants argue, however, that they were performing a "law enforcement function" at the time of plaintiff's alleged injury because prosecutor's investigators are required to participate in firearms training. N.J.S.A. 2C:39-6a(4) exempts prosecutor's investigators from the criminal prohibition against carrying a firearm only if they have complied with subsection j. of the statute. That subsection requires the satisfactory completion of a firearms training course and intermittent re-training and qualification in the use of the weapon as prescribed by the Police Training Commission. N.J.S.A. 52:17B-70.

Despite these mandatory requirements, however, we fail to discern how the actual training is a law enforcement function within the context of Wright and the earlier cases cited therein. In training its own members to carry firearms safely, the prosecutor's office is not engaged in the "investigation, arrest [or] prosecution" of criminals. Wright, supra, 169 N.J. at 453. It is only those types of activities, which are essentially the "State['s] responsibility," "delegated to the county prosecutors," and "subject to the Attorney General's right to supersede," id. at 451-52, that make the State vicariously liable under N.J.S.A. 59:2-2a, and trigger the right to defense and indemnification under the Tort Claims Act.

While the mandatory requirements of firearms training may be set by the Police Training Commission and not by the county prosecutor, that alone cannot transmute the manner in which the training is conducted into an activity which obligates the State to defend and indemnify those prosecutor's employees who participate. We must assume, absent anything in the record to the contrary, that the county prosecutor hires the investigators in the first instance, decides who will provide them with training, insures the instructors themselves are appropriately trained, and documents each participant's satisfactory completion of the course. In our view, such a process, by its nature, is inherently an "administrative task" defined and guided by the prosecutor's appropriate discretionary decisions.

 
Given the nature of the activity, the State would not be vicariously liable for the tortious conduct of the prosecutor's employees arising out of mandatory firearms training, and, hence is not required to provide a defense and indemnification to them. We therefore affirm the Attorney General's decision denying defendants a defense and indemnification pursuant to N.J.S.A. 59:10A-1 and N.J.S.A. 59:10-1 respectively.

Affirmed.

By our order, dated March 19, 2007, the County of Ocean has been substituted as appellant instead of those parties originally named, the Ocean County Sheriff's Office and Sheriff William Polhemus.

By our orders of March 19, 2007, these defendants have joined in this appeal; neither had filed a separate brief.

Because we conclude that Wright does not require the State to provide a defense and indemnification under these circumstances, we need not address the Attorney General's other argument that defendants are not entitled to a defense and indemnification because Steinhauer's actions were allegedly intentional. See N.J.S.A. 59:10A-2a and 2b (permitting the State to refuse to provide a defense if the employee was not acting within the scope of his employment, or acted fraudulently, willfully, or with actual malice).

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A-2340-06T1

July 11, 2007