JASMINE ROACH v. NEW JERSEY STATE PAROLE BOARD
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2277-15T2
JASMINE ROACH, as Administratrix
ad Prosequendum of the Estate of
Veronica Roach, and Jasmine Roach,
individually,
Plaintiffs-Appellants,
v.
NEW JERSEY STATE PAROLE BOARD,
STATE OF NEW JERSEY, NEW JERSEY
DEPARTMENT OF CORRECTIONS, DIVISION
OF PAROLE, and SENIOR PAROLE OFFICER
ANGEL RODRIGUEZ,
Defendants-Respondents.
_____________________________________
Argued February 14, 2017 – Decided March 9, 2018
Before Judges Ostrer, Leone, and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No.
L-2553-15.
Michael B. Zerres argued the cause for
appellant (Blume, Forte, Fried, Zerres &
Molinari, PC, attorneys; Michael B. Zerres,
of counsel and on the brief; Matthew E.
Blackman, on the briefs).
Christopher J. Riggs, Deputy Attorney General,
argued the cause for respondents (Christopher
S. Porrino, Attorney General, attorney; Lisa
A. Puglisi, Assistant Attorney General, of
counsel; Christopher J. Riggs, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Plaintiff Jasmine Roach appeals from the January 8, 2016
order dismissing her complaint because defendants are immune under
the Tort Claims Act (TCA),
N.J.S.A. 59:1-1 to 59:12-3. We affirm.
I.
Plaintiff's complaint alleged as follows. She brought this
action both individually and as the administratrix of the estate
of her daughter Veronica Roach. At the time of her death, Veronica
was nine years old and in the custody of another woman. On July
31, 2014, Veronica was violently and sexually assaulted and
murdered by Brian Farmer, a paroled violent sex offender.
Plaintiff filed a three-count complaint against defendants
the New Jersey State Parole Board (Parole Board), the New Jersey
State Department of Corrections (DOC), and Senior Parole Officer
Angel Rodriguez. Plaintiff's first count alleged defendants
were responsible for the ministerial duties
of monitoring and supervising Brian Farmer,
were responsible for ensuring that Brian
Farmer was properly registered as a sex
offender and/or obtaining accurate and current
information relative to Brian Farmer's
registration as a sex offender, were
responsible for ensuring that said Brian
Farmer was not residing at a prohibited
address or location, were responsible for
2 A-2277-15T2
ensuring that Brian Farmer complied with all
conditions of parole and that any violations
thereof be properly reported and/or addressed
in a timely manner, and were responsible for
complying with all rules, policies,
procedures, regulations and directives
related to supervising and monitoring a
paroled sex offender, such as Brian Farmer.
Plaintiff's second count alleged defendants "had the
ministerial responsibility of hiring, training, screening,
supervising and retaining its parole officer and/or staff
employees relative to the supervision and monitoring of violent
sex offenders and execution of the rules, policies, procedures,
regulations and directives related thereto." Plaintiff's third
count alleged defendants "had the ministerial responsibility of
warning and notifying the public of the accurate and current
address and location of Brian Farmer." Plaintiff alleged
defendants were reckless, careless, and negligent in carrying out
the duties listed in each count.
Before discovery occurred, defendants filed a motion to
dismiss plaintiff's complaint for failure to state a cause of
action under Rule 4:6-2(e), contending defendants were immune
under
N.J.S.A. 59:5-2(a). After oral argument, the trial court
3 A-2277-15T2
dismissed plaintiff's complaint "for failure to state a cause of
action."1 Plaintiff filed a notice of appeal.2
II.
We must hew to our standard of review. "We review a grant
of a motion to dismiss a complaint for failure to state a cause
of action de novo, applying the same standard under Rule 4:6-2(e)
that governed the motion court." Wreden v. Twp. of Lafayette,
436 N.J. Super. 117, 124 (App. Div. 2014). Thus, we apply
the test for determining the adequacy of a
pleading: whether a cause of action is
"suggested" by the facts. In reviewing a
complaint dismissed under Rule 4:6-2(e) our
inquiry is limited to examining the legal
sufficiency of the facts alleged on the face
of the complaint. However, a reviewing court
"searches the complaint in depth and with
liberality to ascertain whether the fundament
of a cause of action may be gleaned even from
an obscure statement of claim, opportunity
being given to amend if necessary." At this
preliminary stage of the litigation the Court
is not concerned with the ability of
plaintiffs to prove the allegation contained
in the complaint. For purposes of analysis
plaintiffs are entitled to every reasonable
inference of fact. The examination of a
1
The order mistakenly stated "Summary Judgment is hereby granted."
2
In its oral decision, the trial court denied plaintiff leave to
amend the complaint to allege willful misconduct, finding that
would be essentially filing a new complaint. For this reason, the
court's order was final and appealable. Plaintiff has informed
us that she subsequently filed a separate complaint alleging wanton
and willful conduct, and that the new action has been stayed
pending this appeal. The filing of this separate action does not
affect the finality of the order appealed in this action.
4 A-2277-15T2
complaint's allegations of fact required by
the aforestated principles should be one that
is at once painstaking and undertaken with a
generous and hospitable approach.
[Printing Mart-Morristown v. Sharp Elecs.
Corp.,
116 N.J. 739, 746 (1989) (citations
omitted); accord Green v. Morgan Props., 215
N.J. 431, 451-52 (2013).]
III.
The trial court dismissed plaintiff's complaint because
defendants were immune under
N.J.S.A. 59:5-2(a). We agree.
A.
Since 1972,
N.J.S.A. 59:5-2 has stated in pertinent part:
Neither a public entity nor a public employee
is liable for:
a. An injury resulting from the parole or
release of a prisoner or from the terms and
conditions of his parole or release or from
the revocation of his parole or release; [or]
b. any injury caused by:
(1) an escaping or escaped prisoner;
(2) an escaping or escaped person;
(3) a person resisting arrest . . . ;
(4) a prisoner to any other prisoner[.]
We refer to subsections (a) and (b) as 5-2(a) and 5-2(b).
Plaintiff argues 5-2(a) does not immunize for failure to
perform ministerial acts. We must evaluate plaintiff's claim "by
first considering the plain language of the statute in question.
The fundamental objective of statutory interpretation is to
identify and promote the Legislature's intent. 'In most instances,
5 A-2277-15T2
the best indicator of that intent is the plain language chosen by
the Legislature.'" Parsons ex rel. Parsons v. Mullica Twp. Bd.
of Educ. ("Parsons II"),
226 N.J. 297, 307 (2016) (citations
omitted). "When the statutory language is clear on its face, this
Court's interpretive process ceases, and our sole function is to
enforce the statute in accordance with its terms." Ibid.
Moreover, we must be "guided by the principle that 'immunity
for public entities [under the TCA] is the general rule and
liability is the exception.'" Id. at 308 (alteration in original)
(citation omitted). The TCA's "immunities are absolute and any
ambiguities in their application must be resolved in favor of
immunity, not liability." Ibid.
Nothing in the language of
N.J.S.A. 59:5-2 draws any
distinction between ministerial and discretionary acts. In
particular, 5-2(a) immunizes public entities and public employees
from liability for injuries "resulting from the parole or release
of a prisoner or from the terms and conditions of his parole or
release or from the revocation of his parole or release."
N.J.S.A.
59:5-2(a). Thus, the plain language of 5-2(a) is clear on its
face, and must be construed in favor of immunity.
B.
In addition, for forty years this court and our Supreme Court
have interpreted
N.J.S.A. 59:5-2 to provide absolute immunity,
6 A-2277-15T2
including immunity for ministerial acts. In Burg v. State,
147 N.J. Super. 316 (App. Div. 1977), the plaintiff was assaulted by
a prisoner on work release, and sued the State and its officials,
claiming they had committed either improper discretionary acts or
"negligent ministerial acts." Id. at 318-19, 322. The trial
court dismissed the complaint, concluding "that all acts of public
entities or public employees within the ambit of release
procedures, whether of a discretionary or a ministerial nature,
were immunized from tort liability." Id. at 319. We affirmed.
Id. at 325.
In Burg, we "look[ed] for guidance" to California cases
"[s]ince our Tort Claims Act is modeled after the comparable
California statute, Cal. Gov't Code § 810 et seq." Id. at 322.
We relied on case law refusing "'to create sharp (but essentially
artificial) distinctions between ministerial and discretionary
acts,'" and holding "all acts within the ambit of release
procedures were immunized from tort liability under the [parole
immunity] statute." Id. at 323 (quoting State v. Superior Court,
112 Cal. Rptr. 706, 709 (Ct. App. 1974)). We agreed that
"[m]inisterial implementation of correctional programs . . . can
hardly, in any consideration of the imposition of tort liability,
be isolated from discretionary judgments made in adopting such
programs," and that immunizing both ministerial and discretionary
7 A-2277-15T2
acts "seems entirely justified when one reflects that [otherwise]
prison [ad]ministrators would of necessity be inhibited in
maintaining rehabilitative programs." Id. at 324 (quoting Cty.
of Sacramento v. Superior Court,
503 P.2d 1382, 1387 (1972)). We
agreed that the immunity was "an absolute one, thus encompassing
both discretionary acts or omissions and ministerial acts or
omissions." Ibid. (quoting Cty. of Sacramento, 503 P.2d at 1387).
We concluded in Burg that, even if the prisoner's release
"was a low-level discretionary or ministerial act," as the
plaintiffs contended, "liability should not attach for any injury
resulting from his release. It is clear that
N.J.S.A. 59:5-2(a)
expressly excludes such a claim as the basis of a cause of action."
Id. at 322, 325. We also found immunity under 5-2(b)(1),
addressing escaped prisoners. Id. at 325.
We explained the public policy underlying Burg in Flodmand
v. State,
175 N.J. Super. 503, 511 (App. Div. 1980). Under 5-
2(a), "[t]he public policy dictating application of the immunity
while the inmate is on work-release is obvious and is the same as
that motivating immunity when an inmate is on parole or other form
of conditional release." Ibid. Immunity is necessary for two
reasons. First, "officials [must] be free to exercise their
discretion as to which inmates may safely be returned to the
community and under what conditions." Ibid. Second, "[s]ince the
8 A-2277-15T2
conduct of [parolees and] inmates while on release cannot be
subject to constant supervision or surveillance, imposition of
liability on the State for tortious acts committed by inmates on
release would prejudice the entire parole and release system."
Ibid.
We extended Burg in White v. Lewis,
156 N.J. Super. 198 (App.
Div. 1978). We held that
N.J.S.A. 59:5-2(b)(4) provided the State
and its employees immunity for assaults between prisoners "even
if the employee is negligent or grossly negligent in carrying out
what may be considered ministerial duties. The ministerial-
discretionary duty dichotomy is of no significance under this
provision." Id. at 202 (citing Burg,
147 N.J. Super. 316). We
stressed that statutory provision "makes no distinction between
discretionary and ministerial functions or duties of public
employees with respect to the kind of prisoner tort here involved."
Id. at 203.
We applied Burg to a parolee in Coppola v. State,
177 N.J.
Super. 37 (App. Div. 1981). A parolee abducted the plaintiff and
her child and sexually assaulted the plaintiff, and she contended
the Parole Board and the DOC had failed to follow statutory
requirements. Id. at 38. We found immunity under 5-2(a). Id.
at 39-40. We ruled the TCA "re-establishes an all-inclusive
immunity from tort liability for" the State and its Parole Board
9 A-2277-15T2
and Department of Corrections. Id. at 39 (citing Burg,
147 N.J.
Super. at 320). Like Burg, we agreed with California cases "that
there is a strong public policy in favor of allowing correctional
personnel to make determinations of parole unfettered by any fear
of tort liability" and "the process of parole" required "absolute
immunity." Id. at 40 (citing Burg,
147 N.J. Super. at 322). We
had "no hesitancy in concluding that the immunity granted by the
clear and explicit language of
N.J.S.A. 59:5-2(a) applies and
insulates these defendants from any and all liability for the
injuries plaintiff sustained." Ibid. "[W]e hold to the view that
the immunity conferred by
N.J.S.A. 59:5-2(a) is total and
absolute." Id. at 41.
We again followed Burg and ruled that 5-2(a) immunized against
liability for negligence in performing ministerial duties in Ornes
v. Daniels,
278 N.J. Super. 536, 541 (App. Div. 1995). The
plaintiff was raped by a prisoner on work release, and claimed the
DOC "failed to properly perform ministerial acts and duties." Id.
at 538-40. We concluded "the State clearly enjoys immunity from
suit in this case pursuant to N.J.S.A. 59:5-2(a)." Id. at 541.
We reiterated: "Pursuant to
N.J.S.A. 59:5-2(a) the State enjoys
absolute immunity against suits for injuries resulting from an
assault committed by an inmate participating in a community work-
release program." Ibid. (citing Burg,
147 N.J. Super. at 325).
10 A-2277-15T2
We found the plaintiff's "contention that the State's tort immunity
applies to the results of its decision to implement a work-release
program, but not to consequences of its administration of such a
program, is without merit.
N.J.S.A. 59:5-2 makes no such
distinction." Ibid. (citing Burg,
147 N.J. Super. at 322).
Our Supreme Court adopted the same view in Tice v. Cramer,
133 N.J. 347 (1993). To determine whether
N.J.S.A. 59:5-2(b)(2)
immunized pursuit of an escaping suspect, the Court analogized to
Burg and its interpretation of 5-2(a). The Court ruled:
The view we take of the effect of section
5-2b immunity, when applicable, corresponds
more with that taken by the court in Burg . . .
There the Appellate Division held that the
immunities provided by sections 5-2a and
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. . . . The decision indicates not
only that those acts of negligence, both
discretionary and ministerial . . . were
immunized, but also that those decisions of
the public entity . . . would also be immunized
under the specific provisions of sections 5-
2a and 5-2b(1).
[Id. at 364-65 (emphasis added) (citing Burg,
147 N.J. Super. at 324-25).]
Our Supreme Court in Tice held the "absolute immunity" in
Burg and White applied also to 5-2(b)(2). Id. at 364 (citing
Burg,
147 N.J. Super. at 324, and White,
156 N.J. Super. at 201).
"Just as the Appellate Division in Burg construed section 5-2a to
11 A-2277-15T2
confer immunity for all acts within the ambit of release
procedures, so its language indicated it would immunize all acts
of a public entity or a public employee in connection with section
5-2b[.]" Id. at 365 (citing Burg,
147 N.J. Super. at 325). As
Chief Justice Wilentz explained for the Court:
Our sense of the intent of the section is that
it immunizes absolutely all negligence of the
public entity or the public employee . . . It
makes no difference whether the negligence is
discretionary or ministerial, whether an act
or omission, whether it precedes the escape
or follows it, whether it triggers the escape
or affects it, it is immune. In that respect
we read section 5-2b as no different from
section 5-2a, despite the difference in
language . . . . It therefore is clear, just
as it is in the case of parole or release
under section 5-2a, that all of the actions
of government and its employees related to
that escape or escaping are immune[.]
[Id. at 367 (emphasis added).]
Based on Burg's reading of 5-2(a), the Court concluded that 5-2(b)
similarly provides "absolute immunity, absent willful misconduct."
Id. at 351; see id. at 356, 367, 370, 380.3
Since Tice, our Supreme Court has repeatedly reaffirmed that
"section 5-2b provides absolute immunity, absent willful
3 N.J.S.A. 59:3-14 provides that "[n]othing in this act shall
exonerate a public employee from liability if it is established
that his conduct was outside the scope of his employment or
constituted a crime, actual fraud, actual malice or willful
misconduct."
12 A-2277-15T2
misconduct." Fielder v. Stonack,
141 N.J. 101, 123 (1995); accord
Alston v. City of Camden,
168 N.J. 170, 177 (2001); Canico v.
Hurtado,
144 N.J. 361, 363-64 (1996). The Court has emphasized
that policy concerns "support an interpretation of pursuit
immunity that 'immuniz[es] both the employee and the entity for
all acts of negligence related to the injuries caused by the
escape.'" Alston,
168 N.J. at 178 (quoting Tice,
133 N.J. at
365).
We have similarly reaffirmed that "
N.J.S.A. 59:5-2b immunizes
both the employee and the entity 'for all acts of negligence'
relating to the injuries caused by an escaping person, whether
discretionary or ministerial, whether an act or an omission."
Blunt v. Klapproth,
309 N.J. Super. 493, 510 (App. Div. 1998)
(quoting Tice,
133 N.J. at 365). We have repeatedly reiterated
that subsection provides "absolute immunity." Id. at 503 (quoting
Margolis & Novack, Claims Against Public Entities, comment to
N.J.S.A. 59:5-2 (Gann 1997)); Clarke v. Twp. of Mount Laurel,
357 N.J. Super. 362, 369 (App. Div. 2003); Torres v. City of Perth
Amboy,
329 N.J. Super. 404, 406 (App. Div. 2000); accord Fagan v.
City of Vineland,
22 F.3d 1283, 1294 (3d Cir. 1994).
Moreover, "[i]n 1997, the Legislature essentially codified
Tice and Fielder by amending
N.J.S.A. 59:5-2 to provide that, in
addition to the immunity under subsection b(2), public employees
13 A-2277-15T2
are immune from liability for 'any injury resulting from or caused
by a law enforcement officer's pursuit of a person.'" Alston,
168 N.J. at 178-79 (quoting L. 1997, c. 423, § 2 (codified at
N.J.S.A.
59:5-2(c) ["5-2(c)"])).4
The leading commentators on the TCA agree that
N.J.S.A. 59:5-
2 provides "absolute immunity." Margolis & Novack, Claims Against
Public Entities, comment to
N.J.S.A. 59:5-2 (2017). They confirm
that "[t]he absolute immunity afforded under this section does not
depend on the ministerial-discretionary dichotomy, but covers
negligent ministerial conduct as well as decision-making." Ibid.
That has been the commentators' conclusion for well over thirty
years. See, e.g., Margolis & Novack, Claims Against Public
Entities, comment to
N.J.S.A. 59:5-2 (1984).
C.
Thus, from Burg in 1977 to Tice in 1993 to the present day,
courts and commentators have agreed 5-2(a) and 5-2(b) provide
absolute immunity from liability for negligent ministerial acts,
and the Legislature endorsed that position by amending the statute
to codify Tice in 5-2(c). Nonetheless, plaintiff contends 5-2(a)
did not immunize defendants for negligent ministerial acts.
4
The Legislature also broadened 5-2(b)(3) by immunizing the state
and its employees for any injury caused by a person "evading
arrest."
14 A-2277-15T2
For plaintiff to persuade us to change that long-standing
interpretation of
N.J.S.A. 59:5-2, she must carry a very heavy
burden. "The doctrine of stare decisis—the principle that a court
is bound to adhere to settled precedent—serves a number of
important ends." Luchejko v. City of Hoboken,
207 N.J. 191, 208
(2011). "The doctrine 'promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.'" Ibid. (quoting Payne v.
Tennessee,
501 U.S. 808, 827 (1991)). "Stare decisis 'carries
such persuasive force that [courts] have always required a
departure from precedent to be supported by some special
justification.'" Ibid. (citations omitted).
Special justification is particularly difficult to establish
where the issue is statutory construction. State v. Singleton,
211 N.J. 157, 180 (2012). "Statutory-based decisions are less
likely to be subject to reconsideration because the legislative
branch can correct a mistaken judicial interpretation of a
legislative enactment." Ibid. Moreover, where "the statute is
thereafter amended without any change in the interpreted language,
the judicial construction 'is regarded as presumptively the
correct interpretation of the law.'" Coyle v. Bd. of Chosen
Freeholders,
170 N.J. 260, 267 (2002) (citation omitted). Further,
15 A-2277-15T2
years of "legislative acquiescence to an interpretation of a
statute renders the judicial decision an unlikely candidate for
abandoning stare decisis." Singleton,
211 N.J. at 181.
D.
Plaintiff's arguments do not persuade us to abandon the forty-
year interpretation of 5-2. First, plaintiff notes that the TCA's
general sections provide that public entities and public employees
are immune for "the exercise of judgment or discretion," but that
"[n]othing in this section shall exonerate a public entity [or
public employee] for negligence arising out of acts or omissions
. . . in carrying out their ministerial functions."
N.J.S.A.
59:2-3(d); see
N.J.S.A. 59:3-2. However, those sections "each
provide only that '[n]othing in this section' shall immunize
ministerial functions," so "those sections in no way prevent
immunity from being granted by other sections of the TCA." Parsons
v. Mullica Twp. Bd. of Educ. ("Parsons I"),
440 N.J. Super. 79,
93 (App. Div. 2015) (quoting
N.J.S.A. 59:2-3(d) and
N.J.S.A. 59:3-
2), aff'd,
226 N.J. 297 (2016).
"Therefore, '[a]lthough a public entity is generally liable
for the ordinary negligence of its employees in performance of
ministerial duties, that liability yields to a grant of immunity'"
elsewhere in the TCA. Ibid. (quoting Pico v. State,
116 N.J. 55,
62 (1989)). As Tice itself made clear, "acts of negligence, both
16 A-2277-15T2
discretionary and ministerial, . . . even if not immunized by the
general sections conferring entity immunity (sections 2-2 and 2-
3), would also be immunized under the specific provisions of
section 5-2a and 5-2b(1)." Tice,
133 N.J. at 364-65; see Parsons
I,
440 N.J. Super. at 93. "An application of [sections 2-2's and
2-3's] general guidelines here would be contrary to the
legislative intent underlying
N.J.S.A. 59:5-2, and to the
established rule that a specific statutory provision dealing with
a particular subject will prevail over a general provision." Burg,
147 N.J. Super. at 324-25.5
Next, plaintiff cites the comment to N.J.S.A. 5-2(a), which
states: "Subsection (a) involves a particular type of
discretionary activity which should not be subject to threat of
tort liability." That comment was in the Report of the Attorney
General's Task Force on Sovereign Immunity 225 (1972), submitted
with the draft TCA, and is part of its legislative history.
Rochinsky v. State, Dep't of Transp.,
110 N.J. 399, 407 n.4 (1988).
Based on such comments, "certain provisions in the TCA have been
5
Plaintiff cites the part of Flodmand discussing why sections 2-
2 and 3-2 did not provide immunity for negligence in operation.
175 N.J. Super. at 510. Flodmand extended that interpretation to
5-2(b). Id. at 512. Our Supreme Court in Tice disapproved of
Flodmand's interpretation of 5-2(b), choosing to follow Burg
instead.
133 N.J. at 363-65; see Margolis & Novack, Claims Against
Public Entities, comment on
N.J.S.A. 59:5-2 (2018).
17 A-2277-15T2
held not to grant immunity to ministerial acts." Parsons I,
440 N.J. Super. at 95.
However, we are not writing on a blank slate. In Burg, we
acknowledged that "[t]he legislative intent underlying subsection
(a) is that it involves 'a particular type of discretionary
activity which should not be subject to threat of tort liability.'"
147 N.J. Super. at 322 (quoting comment to
N.J.S.A. 59:5-2(a)).
Nonetheless, as set forth above, we held that 5-2(a) provided
immunity for both "'ministerial and discretionary acts.'" Id. at
323-24 (citation omitted). As explained above, since 1977 we have
repeatedly reaffirmed Burg's holding as to 5-2(a), we have extended
Burg's holding to 5-2(b), the Supreme Court has done likewise in
Tice and other cases, and the Legislature has enacted Tice's
holding by adopting 5-2(c). We will not overturn that well-
established interpretation based on a comment we already
addressed.
Plaintiff also cites cases decided under "the related
California provision," Cal. Gov't Code § 845.8(a), to suggest that
N.J.S.A. 59:5-2(a) does not extend to ministerial acts. Tice,
133 N.J. at 362. However, in drafting 5-2(a), our Legislature omitted
the highlighted language in § 845.8(a) suggesting immunity was
limited to "determining" discretionary issues:
18 A-2277-15T2
Neither a public entity nor a public employee
is liable for:
(a) Any injury resulting from determining
whether to parole or release a prisoner or
from determining the terms and conditions of
his parole or release or from determining
whether to revoke his parole or release.
"The deletion of ['determining whether'] from the Act as
adopted by our Legislature reinforces the conclusion . . . that
the Legislature's intention was to give the immunity provided for
in the section a broad sweep." See Tice,
133 N.J. at 362
(addressing a deletion from § 845.8(b)).
Plaintiff's California cases do suggest that at least some
ministerial duties are not immune under § 845.8(a). Johnson v.
State,
447 P.2d 352, 364 (1968), stated:
Once the proper authorities have made the
basic policy decision — to place a youth with
foster parents, for example — the role of
section 845.8 immunity ends; subsequent
negligent actions, such as the failure to give
reasonable warnings to the foster parents
actually selected, are subject to legal
redress.
In 2007, another California case relied on that language to hold
that "Johnson applied the distinction it had drawn [regarding Cal.
Gov't Code § 820.2] between basic or discretionary decisions on
the one hand and ministerial decisions implementing the basic
decision on the other hand." Perez-Torres v. State,
164 P.3d 583, 19 A-2277-15T2
588 (2007) (relying on Johnson to find no immunity for knowingly
keeping the wrong man in jail on a parole violation).
However, Johnson relied on § 845.8(a)'s different language
and different comment. 447 P.2d at 361 n.9, 364. Johnson also
relied on California's exception to immunity where the defendants
have a "special relationship" to the victims. Id. at 355, 362
n.10 (finding no immunity where the child-placement agency failed
to warn foster parents about the dangerous youth it placed with
them). However, "we have held that no such ['special
relationship'] exception exists" in New Jersey. S.P. v. Newark
Police Dep't,
428 N.J. Super. 210, 233-34 (App. Div. 2012); see
Macaluso v. Knowles,
341 N.J. Super. 112, 116 (App. Div. 2001);
Blunt,
309 N.J. Super. at 504-08. Moreover, plaintiff's complaint
did not allege she or Veronica had a special relationship with
defendants.
Further, unlike the unusual claims raised in Johnson and the
Perez-Torres, claims of the sort plaintiff raises here — failure
to supervise, failure to initiate revocation, and failure to warn
the general public — have been rejected under California law.
California courts have held § 845.8(a) "bars any state liability
for negligent supervision of a released prisoner." E.g., Brenneman
v. State,
256 Cal. Rptr. 363, 368 (Ct. App. 1989); Martinez v.
State,
149 Cal. Rptr. 519, 523 (Ct. App. 1978); Superior Court,
20 A-2277-15T2
112 Cal. Rptr. at 708-09 (distinguishing Johnson). California
courts have held § 845.8(a) also bars claims for administrative
errors in the revocation process. E.g., Perez-Torres, 164 P.3d
at 587; Whitcombe v. Cty. of Yolo,
141 Cal. Rptr. 189, 195-98 (Ct.
App. 1977). Moreover, California courts have found no duty for
parole officials to warn parents or other members of the general
public about dangerous prisoners paroled or released. E.g.,
Thompson v. Cty. of Alameda,
614 P.2d 728, 733-37 (Cal. 1980)
(distinguishing Johnson); Brenneman,
256 Cal. Rptr. at 367-68
(same).
In any event, Burg and Tice were "guided by the California
decisions making '"the immunity with respect to injury caused by
an escaped prisoner an absolute one."'" Tice,
133 N.J. at 364
(quoting Burg, 147 N.J. Super. at 324 (quoting County of
Sacramento, 503 P.2d at 1387)). Regardless of other California
cases, Burg, Tice, and the New Jersey cases following them have
already established New Jersey's interpretation of 5-2(a).
Plaintiff next quotes part of Fielder's discussion about
whether "the Legislature intended the immunity of 5-2b to be
narrower than 5-2a."
141 N.J. at 120. That dispute involved an
entirely different issue, namely whether N.J.S.A. 59:5-2(b)'s
language granting immunity for injuries "caused by . . . an
escaping or escaped person" restricted immunity to injuries caused
21 A-2277-15T2
by the escapee's vehicle as in Tice, and not by the pursuing
officer's vehicle as in Fielder. See Tice,
133 N.J. at 388
(Clifford, J., concurring) (asserting that 5-2(b)'s language was
narrower than 5-2(a)'s immunity for injuries "resulting from"
parole); Fielder,
141 N.J. at 135 (Stein, J., concurring).
Nonetheless, plaintiff emphasizes language in Fielder stating:
The Legislature did not use the language of
5-2b in drafting 5-2a—which would have
resulted in defining the immunity in terms of
"any injury caused by a paroled or released
prisoner"—because its concern was not with
prisoners as such but with 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. (We suspect that this is
the intended legislative meaning despite the
subsection's language.) The Legislature
apparently wished to relieve public employees
making discretionary decisions of concerns
that otherwise sound determinations might lead
to civil liability. More specifically, if the
authorities in their best judgment thought
that parole or release was warranted, the
Legislature did not want it denied just to
avoid a lawsuit; and the same reasoning
applies where sound judgment of the
authorities called for terms and conditions
not as restrictive as those that might better
protect against civil liability, or where
sound judgment called for a decision not to
revoke parole, but the possibility of a
lawsuit might argue for revocation.
[
141 N.J. at 120-21 (emphasis by plaintiff).]
22 A-2277-15T2
However, plaintiff's argument fails because our Supreme Court
in Fielder refused to differentiate 5-2(a) and 5-2(b), even as it
acknowledged "that the language difference of 5-2b and 5-2a
suggests some difference in the nature of the immunities granted."
Id. at 121-22. First, the Court found public policy required
immunity not only for policy makers but also for ministerial
"public employees whose direct contact with someone causes
injuries—that apparently being the thrust of the argument
describing the 5-2a immunity as 'broader' than 5-2b (where such
direct contact is supposedly not immunized)." Id. at 121. The
Court "f[ou]nd it unlikely that the Legislature would have intended
a broader grant of immunity in order to encourage public entities
and employees to parole or release prisoners than that grant of
immunity designed to encourage them to capture and arrest escaping
prisoners." Ibid. Just as public policy supported immunity for
the police officer's negligent driving in Fielder, id. at 129,
public policy supports immunity for parole officers performing
ministerial duties who do not "revoke parole, [where] the
possibility of a lawsuit might argue for revocation," id. at 121.
The Fielder Court's second reason for rejecting the attempt
to differentiate the subsections was based on the Court's
"conclusion in Tice." Fielder,
141 N.J. at 122. The Court
reaffirmed Tice's holding "that as the negligent actions of a
23 A-2277-15T2
public employee or entity in connection with parole are immune
[under 5-2(a)], so are the negligent actions of a public employee
or entity in connection with the pursuit of an escaping person"
under 5-2(b). Id. at 118-19 (citing Tice,
133 N.J. at 367, 380).
The Court found "no meaningful distinction between Tice and this
case." Id. at 119.
As detailed above, Tice followed Burg and found 5-2(a) and
5-2(b) each immunized both discretionary and ministerial acts.
Our Supreme Court reaffirmed that absolute immunity in Fielder and
in cases after Fielder. After Fielder, we repeatedly reaffirmed
that absolute immunity and that it covered both discretionary and
ministerial activities. Accordingly, we are not persuaded to
discard all prior and later cases based on an argument discussed
and rejected in Fielder.
Plaintiff asserts that Burg, Coppola, and Ornes involved
claims arising from discretionary decisions, not from the
negligent performance of ministerial duties. However, as
described above, the plaintiffs in Burg and Ornes claimed the
defendants negligently performed ministerial duties, and we held
immunity under 5-2(a) applied to ministerial duties. The plaintiff
in Coppola claimed the defendants violated statutory duties, and
we found immunity under 5-2(a), even though "'obedience to the
mandate of legal authority'" in a statute or regulation is a
24 A-2277-15T2
ministerial duty. Parsons I,
440 N.J. Super. at 91 (citation
omitted). Moreover, although Burg and Coppola focused on the
decision to release the perpetrator on work release and parole
respectively, in Ornes we ruled that immunity under 5-2(a) applied
not only to the State's "decision to implement a work-release
program" but also to "its administration of such a program," which
involved ministerial duties.
278 N.J. Super. at 541; see id. at
540 (noting that DOC guidelines required that work-release
locations be "regularly monitored").
Plaintiff contends her complaint does not challenge Farmer's
release on parole, or the terms and conditions of his release, but
only the administration of his parole, including supervision,
monitoring, and revocation, which she contends are ministerial
duties. Even if ministerial, such duties are immunized by 5-2(a),
as set forth above. We reject plaintiff's contention Ornes is
mistakenly decided, and we refuse to discard the forty years of
precedent from Burg to Tice and beyond. Although plaintiff's
allegations "involve a profound tragedy" and "evoke sympathy," we
must follow the cases that "have made clear the meaning of the law
enacted by the Legislature." Parsons I,
440 N.J. Super. at 589
(quoting Wilson ex rel. Manzano v. City of Jersey City,
209 N.J.
558, 572, 589 (2012)). If that long-standing interpretation is
to be changed, it is "for the Legislature to speak to the issue."
25 A-2277-15T2
Alston,
168 N.J. at 183; see Tice v. Cramer,
254 N.J. Super. 641,
652 (App. Div. 1992) ("Any reconsideration of this policy is for
the Legislature, not for the courts."), aff'd,
133 N.J. 347, 351
(1993).
Affirmed.
26 A-2277-15T2
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