Opinion
DOCKET NO. A-5836-13T3
11-02-2015
ESTATE OF C.M.W., C.C. and T.W., Individually, Plaintiffs-Appellants, v. DIVISION OF YOUTH AND FAMILY SERVICES (DYFS), STATE OF NEW JERSEY, P.R., and M.F., Defendants-Respondents, and S.R., Defendant.
Eric G. Kahn argued the cause for appellants (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Kahn, of counsel and on the brief). Benjamin H. Zieman, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Zieman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2353-11. Eric G. Kahn argued the cause for appellants (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Kahn, of counsel and on the brief). Benjamin H. Zieman, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Zieman, on the brief). PER CURIAM
Plaintiffs appeal from an order entered by the Law Division on November 8, 2013, granting summary judgment in favor of defendants, State of New Jersey, the Division, P.R. and M.F. (collectively, the "State Defendants"). We affirm.
This appeal arises from the following facts. C.C. and T.W. are the natural parents of C.M.W. In November 2009, the Division removed C.M.W. from his parents' care and placed him in the physical custody of S.R., one of the Division's licensed resource parents. C.M.W. was seventeen months old at the time. He was the youngest of three foster children in S.R.'s home. He slept in a crib, which had drop-down sides.
The Division had previously issued a license to S.R. for a three-year term, and it was scheduled to be renewed in February 2010. On February 17, 2010, K.K., a quality assurance child care inspector in the Division's Office of Licensing, went to S.R.'s home to conduct the renewal inspection. During her inspection, K.K. identified several conditions that had to be remedied before S.R.'s license could be renewed. One of those conditions involved C.M.W.'s crib.
K.K. had recently been given information from the Consumer Product Safety Commission, indicating that there had been recalls on certain drop-side cribs because a child's head or limb could be entrapped. K.K. inspected C.M.W.'s crib. When she brushed up against it, the drop-side rail fell. She tried to pull the rail back into place, but she could not fasten it. K.K. shook the crib and noticed that it was made of "cheap wood" and was not sturdy. The crib did not have a label or markings so K.K. could not determine if it was subject to recall.
K.K. determined that the crib had to be replaced. K.K. said that she told S.R. that the Division could provide a kit to fix the crib or a new crib. According to K.K., S.R. suggested a toddler bed instead of a crib because C.M.W. had started to climb out of his crib. K.K. determined that a toddler bed would be appropriate because she was concerned that C.M.W. might fall and injure himself if he was climbing out of the crib.
S.R. and plaintiffs offered different versions of how C.M.W. came to be placed in a toddler bed. S.R. said K.K. told her the crib was unsafe and offered her the option of requesting a new crib or transitioning C.M.W. to a toddler bed. Moreover, according to plaintiffs, another Division caseworker stated that S.R. had requested a new crib but K.K. told her that a new crib would have to be requisitioned through P.R., who was C.M.W.'s caseworker. S.R. allegedly said she would request a new crib from P.R., and place C.M.W. in a toddler bed for the time being.
We note that defendant M.R. was P.R.'s supervisor.
S.R. disassembled and discarded C.M.W.'s crib. She assembled the toddler bed which was already in her possession. S.R. positioned the bed, in C.M.W.'s room so that its headboard was on the north side of the room. She pushed the headboard and the west side of the bed as close to their adjoining walls as possible. C.M.W. was placed in the bed.
On February 22, 2010, K.K. returned to S.R.'s home and examined the bed. She determined that the bed was safe and sturdy. Since S.R. had satisfactorily addressed the issue raised by C.M.W.'s crib, and had abated the other licensing issues, S.R.'s license was renewed for another three-year term.
C.M.W. slept in the bed from February 17, 2010 to March 1, 2010, without incident. On the morning of March 2, 2010, S.R. entered C.M.W.'s room and found his unconscious body between the headboard of the bed and the north wall. She removed C.M.W. from this position, and told her older daughter to call 9-1-1. S.R. attempted to revive the child by administering cardio-pulmonary resuscitation while waiting for emergency personnel to arrive. C.M.W. was transported by ambulance to a hospital, where he was pronounced dead. An autopsy indicated that the cause of C.M.W.'s death was positional asphyxia, and that the child's death was accidental.
At some point thereafter, the Institutional Abuse Investigation Unit ("IAIU") in the Department of Children and Families conducted an investigation to determine if S.R.'s actions regarding C.M.W. constituted abuse or neglect. S.R.'s license was suspended, and the other foster children were removed from her home. In April 2010, the IAIU concluded its investigation. It determined that S.R.'s actions did not constitute abuse or neglect and that corrective action was not required. S.R.'s license was reinstated.
In May 2010, plaintiffs submitted a notice of claim and thereafter filed an action in the Law Division, naming the State, the Division, and the Division's caseworkers as defendants. Plaintiffs later filed an amended complaint and named S.R. as a defendant. They asserted claims under the Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3; and federal civil rights claims under 42 U.S.C.A. § 1983.
Following discovery, the State Defendants filed a motion for summary judgment. They argued that they are entitled to absolute immunity pursuant to certain provisions of the TCA; specifically, immunity for discretionary activities under N.J.S.A. 59:2-3 and 59:3-2; immunity for good faith enforcement of the law, under N.J.S.A. 59:3-3; and immunity for licensing activities under N.J.S.A. 59:2-5 and 59:3-6. The State Defendants also argued that they are entitled to qualified immunity with regard to the claims asserted under federal law. Plaintiffs opposed the motion.
Judge Jamie S. Perri considered the motion on November 8, 2013, and placed her decision on the record that day. Although plaintiffs indicated at oral argument that they were not pursuing their federal claims, the judge nevertheless addressed those claims and determined that they should be dismissed.
In addition, the judge found that, while the State Defendants were not entitled to immunity under the TCA for discretionary activities or the good faith enforcement of the law, they were entitled to immunity for licensing activities under N.J.S.A. 59:2-5 and 59:3-6. The judge memorialized her decision in an order dated November 8, 2013, dismissing the claims against the State Defendants. This appeal followed.
We note that in August 2014, a stipulation was filed in the trial court dismissing plaintiffs' claims against S.R. The stipulation provided, however, that these claims could be restored in the event plaintiffs are successful in the appeal. --------
On appeal, plaintiffs argue that the motion judge adopted an overly broad and expansive interpretation of the TCA immunity for licensing activities. We disagree.
The TCA provides that "[e]xcept as otherwise provided by [the TCA], a public employee is liable for injury caused by his act or omission to the same extent as a private person." N.J.S.A. 59:3-1a. In addition, the TCA provides that "[a] public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2a.
Even so, the TCA provides that
[a] public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or public employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked.Similarly, N.J.S.A. 59:3-6 provides that a public employee has immunity from liability
[N.J.S.A. 59:2-5.]
for an injury caused by his issuance, denial, suspension or revocation of, or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar
authorization where he is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked.
[N.J.S.A. 59:3-6.]
In Malloy v. State, 76 N.J. 515, 519 (1978), the Court noted that the TCA's immunities prevail over any of its liability provisions. The Court stated that the immunity under the TCA for licensing activities "is pervasive and applies to all phases of the licensing function." Id. at 520. The Court noted that,
Licensing activity is a vital exercise of governmental authority. In this State there are literally millions of licenses, certificates, permits and the like applied for, issued, renewed or denied. It is inevitable that with such a staggering volume of activity, mistakes, both judgmental and ministerial, will be made. The purpose of the immunity is to protect the licensing function and permit it to operate free from possible harassment and the threat of tort liability.
[Id. at 521.]
Here, Judge Perri explained that the decision to transition C.M.W. to a toddler bed was made as part of the Division's licensing function. The judge pointed out that the issue regarding the bed arose out of K.K.'s inspection of S.R.'s home as part of the license renewal process. The judge noted that the renewal of S.R.'s license hinged in whole or in part upon the replacement of C.M.W.'s drop-side crib, with either a safer crib or a toddler bed. As the judge determined, the decision was a necessary part of the license renewal process.
Plaintiffs argue, however, that the immunity under N.J.S.A. 59:2-5 and 59:3-6 does not apply unless the injury was caused by the issuance or denial of a license. They contend that the immunity cannot apply here because S.R.'s license was not renewed until after the decision was made to transition C.M.W. to a toddler bed.
This argument is without merit. The record shows that S.R. was licensed as a resource parent when the decision was made, and the toddler bed was selected as part of the license renewal process. S.R.'s license would not have been renewed until S.R. addressed the issue of whether C.M.W.'s crib was safe. Judge Perri correctly determined that the decision to transition C.M.W. to a toddler bed was made as part of the Division's license renewal process.
Plaintiffs further argue that C.M.W.'s injuries were the result of K.K.'s negligence, which was allegedly "wholly distinct" from the license renewal process. However, as Judge Perri found, inspecting S.R.'s home, including C.M.W.'s sleeping arrangements, was an essential part of the Division's license renewal process. Plaintiffs assert that K.K.'s authorization of the toddler bed was inconsistent with the Division's guidelines, but even if K.K. was negligent in this regard, the immunity applies because K.K.'s action was part of the Division's licensing function.
We note that, in support of their contention that the Division's licensing activities did not cause C.M.W.'s fatal injuries, plaintiffs rely on a comment in The Report of Attorney General's Task Force on Sovereign Immunity (the "Task Force Report") concerning the immunity for licensing activities. The Attorney General's Task Force drafted the TCA. Malloy, supra, 76 N.J. at 519.
The Task Force stated that the immunity was needed due to "the almost unlimited exposure to which public entities would otherwise be subjected if they were liable for" their numerous licensing activities. Id. at 520 (citation and internal quotation marks omitted). The Task Force noted that "most actions of this type by a public entity can be challenged through an existing administrative or judicial review process." Ibid. (citation and internal quotation marks omitted).
Plaintiffs' reliance upon the comment in the Task Force Report is misplaced. The Task Force Report does not indicate that an immunity for licensing activities would only apply if the licensing action could be challenged in an administrative or judicial review process. As we have explained, the immunity that was enacted applies to the full range of a public entity's licensing activities. Id. at 520. This is so regardless of whether the licensing activity may be the subject of administrative or judicial review.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION