Opinion
Civil Action No. 95-6186 (HAA).
December 15, 1998.
Richard K. Coplon, Esq., HELLRING LINDEMAN GOLDSTEIN SIEGAL Newark, New Jersey, Attorneys for Plaintiffs.
Michael Dougherty, Esq., PASSMAN, DOUGHERTY ZIRULNIK, Roseland, New Jersey, Attorneys for Defendant, Millburn/Short Hills Volunteer First Aid Squad, Inc.
Catherine E. Tamasik, Esq., ESSEX COUNTY COUNSEL, Newark, New Jersey, Attorneys for Defendant/Third-Party Plaintiff, County of Essex.
John F. Doherty, Esq., LAW OFFICES OF WILLIAM E. FRESE, Newark, New Jersey, Attorneys for Defendant, Public Service Electric Gas Co.
Thomas M. Crino, Esq., VENTANTONIO WILDENHAIN, Warren, New Jersey, Attorneys for Third-Party Defendant, Bell Atlantic-New Jersey.
Ronald S. Heymann, Esq., HEYMANN FLETCHER, Mt. Freedom, New Jersey, Attorneys for Defendants, Millburn Township, Millburn Fire Department, and Alfred Ardito.
OPINION
I. INTRODUCTION
This matter comes before the court on a motion for summary judgment filed jointly by defendants Millburn Township, Millburn Fire Department, and Alfred Ardito (collectively the "Fire Department Defendants"). For the reasons detailed below, the Fire Department Defendants' motion is denied.
Subject matter jurisdiction is predicated on diversity of citizenship pursuant to 28 U.S.C. § 1332. At the time suit was initiated, plaintiffs were residents of Cheshire, Connecticut. A review of the Fourth Amended Complaint reveals that all defendants are citizens of states other than Connecticut. The amount in controversy exceeds $50,000. This fact, along with the apparent complete diversity of citizenship, supports subject matter jurisdiction under § 1332.
On October 19, 1996, Congress increased the amount in controversy requirement necessary to support diversity jurisdiction to $75,000, exclusive of interest and costs. See Federal Courts Improvement Act of 1996 , Pub.L. No. 104-317, § 205, 110 Stat. 3847, 3850 (1996). Because the instant suit was filed prior to the effective date of the amendment, the amount in controversy necessary to support diversity jurisdiction is $50,000 as under the prior law. See RTC Mortgage Trust 1994 N-1 v. Fidelity Nat'l Title Ins. Co . , 981 F. Supp. 334, 338 n. 3 (D.N.J. 1997) (noting that 1996 amendment increasing amount in controversy requirement to $75,000 is not retroactive).
II. SUMMARY JUDGMENT STANDARD/CHOICE OF LAW
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all legitimate inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. In other words, "summary judgment may be granted if the movant shows that there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hosp., 843 F.2d 139, 143 (3d Cir. 1988).
The substantive law will identify which facts are "material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Therefore, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard to that issue. See id.
The party seeking summary judgment always bears the initial burden of production, i.e., of making a prima facie showing that it is entitled to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This may be done either by demonstrating that there is no genuine issue of fact and that the moving party must prevail as a matter of law, or by demonstrating that the nonmoving party has not produced sufficient evidence relating to an essential element of the issue for which is bears the burden. See id. at 322-23. Once either showing is made, the burden shifts to the nonmoving party to demonstrate facts supporting each element for which it bears the burden, as well as establish the existence of a genuine issue of material fact. See id. at 324.
At the summary judgment stage, however, a court may not weigh the evidence or make credibility determinations; these tasks are left to the factfinder. See Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Therefore, to raise a genuine issue of material fact, "`the [summary judgment] opponent need not match, item for item, each piece of evidence proffered by the movant,' but simply must exceed the `mere scintilla' standard." Id. (quoting Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)); see also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]."). Moreover, this court must accept all supported facts, and any reasonable inferences therefrom, in favor of the non-moving party, in this case the plaintiffs. See Anderson, 477 U.S. at 255; Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970).
A federal court sitting in diversity must apply the substantive law of the forum state, in this case New Jersey. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d Cir. 1994). Moreover, a federal court sitting in diversity must apply the choice of law rules of the forum to determine which state's law applies to a given action. See Klaxon v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487 (1941); see also Dent v. Cunningham, 786 F.2d 173, 176 (3d Cir. 1986).
In tort actions, New Jersey's choice of law principles requires the application of "the law of the jurisdiction `having the most significant relationship and closest contacts with the occurrence and the parties.'"Rohm Haas Co. v. Adco Chem. Co. 689 F.2d 424, 429 (3d Cir. 1982) (quoting Rose v. Port of N Y Auth., 61 N.J. 129, 140 (1972)). The relevant test has been termed the "governmental interest" analysis, a far more flexible standard than the traditional lex loci delicti test. See Veazey v. Doremus, 103 N.J. 244, 247-48 (1986).
In this case, the accident and the underlying conduct of the various defendants giving rise to this action occurred in New Jersey. More importantly, this case involves issues concerning the potential immunity of various New Jersey entities and counties to lawsuits such as this. This case also involves the design and safety of New Jersey roads. Accordingly, it appears that New Jersey's interests predominate, and the parties appear to agree that New Jersey substantive law applies in this case. Therefore, this court will apply New Jersey law to the state law claims.
III. BACKGROUND
There are many disputes concerning the time frame and the specific events surrounding the extrication and care of the victims. At this stage of the proceedings, however, this court must take all supported facts, and any reasonable inferences therefrom, in favor of the plaintiffs, the non-moving parties.
This case arises out of a fatal car accident which occurred on November 11, 1994 involving Jay Roczynski, the plaintiffs' son. At approximately noon on that date, Roczynski and a passenger, Michael Marsello, were driving westbound on South Orange Avenue in Millburn, New Jersey, on an area known as the "S-Curves." Plaintiffs' Rule 56.1 Statement at ¶ 1. The vehicle went out of control and struck a utility pole adjacent to the roadway after first hitting several signs.Id. The Essex County Police Dispatcher called the Millburn Fire Department, whose records note that the alarm was activated at 12:12 p.m. Id. The Millburn Fire Department arrived at the scene at approximately 12:20 p.m. Id.
On December 7, 1998, this court issued an opinion which addressed summary judgment motions filed by various defendants. Because that opinion discussed the underlying facts of this case, I will refrain from repeating them here, except those relevant specifically to the Fire Department Defendants' motion.
The plaintiffs allege that the Millburn Fire Department commander on the scene, Alfred Ardito, was responsible for the overall extrication procedure. Id. at ¶ 2. The crux the plaintiffs' claim against the Fire Department Defendants is that they unreasonably delayed Roczynski's extrication from the automobile. They allege that from the time of the initial alarm to the approximate time of Roczynski's extrication — 12:50 p.m. — forty minutes had elapsed. Id. at ¶ 3. They contend that forty minutes is far too long to free a trapped motorist from his vehicle, and indeed, materially exceeds even the Millburn Fire Department's own estimates of a "reasonable" time for extrication. Id. Furthermore, the plaintiffs allege that Roczynski should have been extricated through the windshield, which would have been less time consuming. Id. at 5.
The plaintiffs also allege that the Millburn Fire Department failed to prime the "jaws of life," an extrication device used to cut automobile roof supports, before arriving on the scene. Id. at ¶ 5. They allege that sound, customary practice dictates that equipment like the "jaws of life" should be primed at the start of a shift, not at the accident scene. Id. The plaintiffs also point to the circumstances surrounding the Medivac helicopter, which arrived on the scene at approximately 12:37 p.m. Id. at ¶ 8. The plaintiffs contend that Millburn Fire Department personnel were deployed to the landing zone to monitor the helicopter landing. Id. The helicopter, however, left the scene before the extrication was completed. Id. at ¶¶ 10-11.
Roczynski was pronounced dead at 1:37 p.m. at University Hospital in Newark.
IV. DISCUSSION
In their motion for summary judgment, the Fire Department Defendants rely on N.J.S.A. §§ 59:2-3(a) and 59:3-2(a). Section 59:2-3(a) provides that a "public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity." Its counterpart, § 59:3-2(a), provides the same immunity to a "public employee" for any injury resulting from the "exercise of judgment or discretion vested in him." The issue here is whether the conduct of the Fire Department Defendants constitutes discretionary activity within the purview of § 59:2-3(a) and § 59:3-2(a). The Fire Department Defendants contend that their conduct at the Roczynski accident scene was "discretionary" activity, and thus immunized from liability under § 59:2-3(a) and § 59:3-2(a). I disagree.
In their brief, the Fire Department Defendants have erroneously cited to N.J.S.A. § 59:3-3, entitled "Execution or Enforcement of Laws," which provides as follows:
A public employee is not liable if he acts in good faith in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.This provision is clearly not relevant to the Fire Department Defendants.
Section 59:2-3 provides in full as follows:
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.
Section 59:3-2 provides in full as follows:
a. A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him;
b. A public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
c. A public employee 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 employee is not liable for the exercise of discretion when, in the face of competing demands, he 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 employee was palpably unreasonable. Nothing in this section shall exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions.
By their very terms, § 59:2-3 applies only to "public entities," whereas § 59:3-2 applies only to "public employees." Other than this difference, both provisions contain the same substantive language concerning immunity for discretionary activities. Accordingly, the New Jersey courts have interpreted the provisions in the same manner. See Longo v. Santoro, 195 N.J. Super. 507, 515 (App.Div. 1984).
The immunity provided by subsections (a) of both § 59:2-3 and § 59:3-2 is restricted to discretionary activities "exercised at the highest levels of government in matters of policy or planning." Tice v. Cramer, 133 N.J. 347, 366 (1993). In Costa v. Josey, 83 N.J. 49, 55 (1980), the New Jersey Supreme Court found that the "exercise of . . . discretion" phrase in § 59:2-3(a), and thus by implication in § 59:3-2(a), "refers to actual, high-level policymaking decisions involving the balancing of competing considerations." More to the point, the court made clear that "the exemption contemplated under § 59:2-3(a) concerns the `exercise of judgment or discretion' in making basic policy — the type made at the planning, rather than the operational level of decisionmaking." Id. at 59; see also Longo, 195 N.J. Super. at 515. Thus, for example, a police officer's conduct relating to a police pursuit was held to be not immunized by § 59:3-2(a). See Tice 133 N.J. at 367; see also Czyzewski v. Schwartz, 110 N.J. Super. 255 (App. Div. 1970) (holding that police officer who directed vehicle to stop causing a second vehicle to crash into stopped automobile was not performing "discretionary" activities within meaning of § 59:3-2(a), and thus, was not immunized).
In this case, the Fire Department Defendants have simply argued that their conduct at the accident scene falls within the ambit of "discretionary activity" under § 59:2- 3(a) and § 59:3-2(a). They have made no effort, however, to establish in the first instance — and it appears that they cannot — that their conduct was the result of high-level policymaking decisions involving the balancing of competing considerations, as contemplated by those provisions. Rather, it appears that the Fire Department Defendants rely on a more literal interpretation of the term "discretion" in § 59:2-3(a) and § 59:3-2(a). However, as the New Jersey Supreme Court correctly reasoned in Costa:
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 decisionmaking. 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.83 N.J. at 60.
The Fire Department Defendants' reliance on Perona v. Township of Mullica, 270 N.J. Super. 19 (App.Div. 1994), is misplaced. In Perona, police officers, who arrived at a residence to investigate a domestic violence call, were told by the plaintiff that there was no incident of domestic violence. She indicated to the officers that she desired to take a walk. Her husband asked the officers to take the plaintiff into custody and not permit her to take a walk because he feared that she would commit suicide. The officers refused, stating that they could not prohibit the plaintiff from doing so. Sometime thereafter, the plaintiff was found after she was struck twice by automobiles, apparently in an attempt to take her own life. The plaintiff asserted a negligence action against, inter alia, police officers who failed to take her into custody even though there were clear indications that she was suicidal. The Appellate Division held that the officers' conduct was immune from liability pursuant to § 59:3-2(b). Perona, 270 N.J. Super. at 29.
Perona involved specifically § 59:3-2(b) — concerning conduct of a legislative, judicial, or administrative nature — whereas the case at bar involves § 59:3-2(a) and § 59:2-3(a). The Perona court itself recognized the different standards required the provisions:
[D]iscretionary determinations . . . by public employees under subsection (b) of N.J.S.A. 59:3-2 . . . need not rise to the level required by subsection a. Thus, discretionary decisions by law enforcement officers [under § 59:3-2(b)] need not involve policy, but may merely involve operational decisions such as whether to take a person into custody based on a claim of mental illness.Id. (citations omitted); see also Denis v. City of Newark, 307 N.J. Super. 304, 316 (App.Div. 1998) ("Subsection (a) [of § 59:2-3] deals with `high-level policymaking decisions' which are made at the planning level and involve the weighing of competing policy considerations; subsection (b) deals with the operational level of decisionmaking and does not implicate high level policymaking decisions."); Daniel v. Department of Transp., 239 N.J. Super. 563, 598 (App.Div. 1990) (finding that subsections (c) and (d) of § 59:2-3 "do not require `high-level planning decisions' as the predicate for immunity as does subsection a . . ."); Longo, 195 N.J. Super. at 518 (finding that discretionary decision of public entity under § 59:2-3(d) and, necessarily, one made by public employee under § 59:3-2(d), "need not be one made at the high level required under subsection a" of those provisions).
The Fire Department Defendants have based their collective motion for summary judgment on the immunity provisions of § 59:2-3(a) and § 59:3-2(a). They have failed to prove as a matter of law, however, that their activities at the Roczynski accident scene were in any way the result of high level or basic policy decisionmaking within the ambit of those provisions. Accordingly, their motion for summary judgment is denied.