Opinion
DOCKET NO. A-4044-08T2
06-28-2012
PARIS WILSON, an infant by his Guardian Ad Litem, SONYA MANZANO, and D'ARTAGNAN MANZANO, Individually and as Administrator of the Estates of DEQUAN WILSON and DARTAGNANIA WILSON, and DEQUAN WILSON and DARTAGNANIA WILSON, Individually, Plaintiffs-Appellants, v. CITY OF JERSEY CITY, Police Officer JOSE M. SANTANA (Shield No. 2853), Police Officer ERNEST VIDAL (Shield No. 2395), 911 Operator LAURA JEAN PETERSEN (Operator No. 35), Radio Dispatcher MICHAEL EDWARD CLARK, 911 Operator BRENDA MURDUGH-JONES (Operator No. 326), STATE OF NEW JERSEY, NEW JERSEY STATE POLICE, 911 Operator LU ANN BURD, Defendants-Respondents, and CITY OF JERSEY CITY, Police officer JOSE M. SANTANA (Shield No. 2853), Police Officer ERNEST VIDAL (Shield No. 2395), 911 Operator LAURA JEAN PETERSEN (Operator No. 35), Radio Dispatcher MICHAEL EDWARD CLARK, and 911 Operator BRENDA MURDAUGH-JONES (Operator No. 326), Defendants-Third-Party Plaintiffs, v. DWAYNE WILSON and 185 MARTIN LUTHER KING DRIVE, LLC; STATE OF NEW JERSEY, NEW JERSEY STATE POLICE, Third-Party Defendants.
Patrick J. Boyle (Frankfurt, Kurnit, Klein & Selz) argued the cause for appellants (Braff, Harris & Sukonick, L.L.P., attorneys; Jessie F. Beeber (Frankfurt, Kurnit, Klein & Selz), of counsel and on the brief; Brian C. Harris, Mr. Boyle and Amanda K. Brankov (Frankfurt, Kurnit, Klein & Selz), on the brief). Stephen M. Orlofsky and Adrienne C. Rogove argued the cause for respondent City of Jersey City (Blank Rome, LLP, attorneys; Mr. Orlofsky and Ms. Rogove, on the brief). Robert E. Levy argued the cause for respondents Petersen and Murdaugh-Jones (Scarinci & Hollenbeck, attorneys; Mr. Levy and Michael A. Cifelli, of counsel and on the brief; C.J. Griffin, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and J. N. Harris.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4232-06.
Patrick J. Boyle (Frankfurt, Kurnit, Klein & Selz) argued the cause for appellants (Braff, Harris & Sukonick, L.L.P., attorneys; Jessie F. Beeber (Frankfurt, Kurnit, Klein & Selz), of counsel and on the brief; Brian C. Harris, Mr. Boyle and Amanda K. Brankov (Frankfurt, Kurnit, Klein & Selz), on the brief).
Stephen M. Orlofsky and Adrienne C. Rogove argued the cause for respondent City of Jersey City (Blank Rome, LLP, attorneys; Mr. Orlofsky and Ms. Rogove, on the brief).
Robert E. Levy argued the cause for respondents Petersen and Murdaugh-Jones (Scarinci & Hollenbeck, attorneys; Mr. Levy and Michael A. Cifelli, of counsel and on the brief; C.J. Griffin, on the brief). PER CURIAM
On remand from the New Jersey Supreme Court, Wilson v. City of Jersey City, 209 N.J. 558 (2012), we decide the only issue left unresolved by our prior opinion. Plaintiffs appeal the Law Division's grant of summary judgment against them finding that there was insufficient evidence of "a wanton and willful disregard for the safety of persons or property" to vault the immunity barrier contained in N.J.S.A. 52:17C-10(d). We affirm.
I.
Except to the extent necessary to illustrate the issues on remand, we will not repeat the factual background in detail that was set forth in both our initial holding and the Supreme Court's remand opinion. Familiarity with those opinions is assumed. The issues in dispute stem from a September 2005 triple homicide in Jersey City, and revolve around the handling of cellular telephone calls by two Jersey City 9-1-1 operators. In Wilson, the Court held that the "the 9-1-1 operators, and their employer the City of Jersey City, are immune for any negligent mishandling of the emergency calls in this case under subsection (d) of N.J.S.A. 52:17C-10." Id. at 588. However, "the immunity provision of subsection[] (d) [is] inapplicable if a 9-1-1 operator acts in 'wanton and willful disregard for the safety of persons or property.'" Id. 587.
In the Law Division, plaintiffs argued that the two 9-1-1 operators were derelict in their duties and that their negligence, gross negligence, or wanton and willful disregard for the safety of others caused pain and suffering to the victims and contributed to the deaths of a mother and two of her three children. On summary judgment, the Law Division's single mention of immunity-depriving conduct was its finding that
[p]laintiff[s] [have] advanced no evidence of willful or wanton disregard as to Jersey City or its employees sufficient to defeat Title 52 immunity. This Court finds that Jersey City is entitled to immunity under Title 52 and is entitled to summary judgment as to its liability to plaintiff[s] under this statutory scheme.
. . . .
This Court finds that Call Takers Peterson and Jones are immunized under N.J.S.A. 52:17C-10 as employees of a PSAP[] because plaintiff[s] [have] failed to provide evidence that defendants acted with wanton or willful disregard for plaintiffs['] safety to defeat the immunity provided to PSAPs or its employees under Title 52.
The acronym PSAP stands for a Public Safety Answering Point. It is "a facility, operated on a 24-hour basis, assigned the responsibility of receiving 9-1-1 calls and, as appropriate, directly dispatching emergency response services or transferring or relaying emergency 9-1-1 calls to other public safety agencies." N.J.S.A. 52:17C-1(l).
On appeal, plaintiffs contend that the 9-1-1 operators' shortfalls were the following:
Failure to obtain from the caller his name, call-back telephone number, and exact location, including whether he was in an apartment building, and if so, his floor and apartment number.The question for us is whether this catalog of events (and all reasonable inferences to be derived therefrom) - if believed by a rational trier of fact - would satisfy the "wanton and willful disregard for the safety of persons" standard and thereby strip the 9-1-1 operators of Title 52 immunity. We are satisfied that it does not, and therefore affirm the Law Division's dismissal of plaintiffs' complaint.
Failure to seriously consider the caller's second call - received approximately twenty-two hours after his first call - thereby (1) discouraging the caller from "dial[ing] back on the [police] non-
emergency [telephone] number," (2) neglecting to collect the "who, what, where, and when" from the caller, (3) failing to conduct an "event search" in the [computer-aided dispatch] system [(CAD)] to link the second call with the first call, and (4) not dispatching police or other emergency services to the scene of the incident.
Failure to verify the accuracy of the computer-generated telephone number of the caller.
Erroneous entry of information into CAD ticket transmitted to the Jersey City Police dispatcher, including, but not limited to, reference that "[caller] hears screaming coming from the house next door, no further info," when there was no mention from the caller of a house as a location of the emergency.
In Wilson, the Court identified several errors contained in the CAD ticket, id. at 566-67, but not all of them were solely attributable to the 9-1-1 operator. Plaintiffs' expert witness, Paul D. Linnee, identified additional shortcomings in the 9-1-1 operator's creation of the CAD ticket, including her neglect in filling in the name of the caller and instead indicating that the "reporting party" was a "neighbor." Linnee's September 3, 2008 expert report opined:
The City of Jersey City's Police Department, its Communications Bureau and individual employees and officers thereof were grossly negligent in their manner of processing [the caller's] initial 911 call, and subsequently collecting and/or failing to seek or collect information from him, the formatting and the transmittal of that information from the 911 operator to the police dispatcher, and from the police dispatch to the assigned police officers.
Because we are unable to conceive of any circumstance - given the facts and procedural posture of this case - where Jersey City, as the public employer of the 9-1—1 operators, could be held liable to plaintiffs, we affirm the dismissal of plaintiffs' claims against it. In our first opinion, we affirmed the trial court's dismissal of plaintiffs' claims of negligent hiring, training, and supervision, and no appeal was taken from our ruling. Wilson, supra, 209 N.J. at 570 n. 8. If the 9-1-1 operators' actions are found to constitute "wanton and willful disregard for the safety of persons," Jersey City is not liable for their actions. N.J.S.A. 59:2-10 ("A public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct."); see also, Fielder v. Stonack, 141 N.J. 101, 130 (1995). If the 9-1-1 operators' actions are not found to constitute "wanton and willful disregard for the safety of persons," they and their employer are immune from civil damages to plaintiffs under Wilson's interpretation of N.J.S.A. 52:17C-10(d). Wilson, supra, 209 N.J. at 589.
II.
N.J.S.A. 52:17C-10(d), similar to many other statutes (immunity and otherwise) employing the same or comparable language, does not define what is a "wanton and willful disregard for the safety of persons or property." This is not at all surprising, given that our jurisprudence recognizes that "[l]ike many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124 (1995). We are obliged to draw its contours based upon the relevant statute and trace its role with sensitivity to the operative facts. Ibid. Additionally, although we may draw from the expressions of the concept from our jurisprudential history, we should not presume to define "wanton and willful disregard for the safety of persons or property" in any context other than 9-1-1 operators' conduct under N.J.S.A. 52:17C-10(d).
See, e.g., N.J.S.A. 2A:53A-7(c) ("Nothing in this section shall be deemed to grant immunity to: (1) any trustee, director, officer, employee, agent, servant or volunteer causing damage by a willful, wanton or grossly negligent act of commission or omission, including sexual assault and other crimes of a sexual nature.") (emphasis added); N.J.S.A. 2A:53A-13 ("Nothing herein shall be deemed to grant any such immunity to any person causing damage by his willful or wanton act of commission or omission.") (emphasis added); N.J.S.A. 2A:62A-5 ("Nothing herein shall be deemed to grant immunity to any person causing such accidents or emergency situations or any damage resulting therefrom in the course of his business activities or to persons who by a willful, wanton or grossly negligent act of commission or omission cause damage in responding to such accidents and emergency situations.") (emphasis added); N.J.S.A. 2C:7-9 ("Nothing herein shall be deemed to grant any such immunity to any person for his willful or wanton act of commission or omission.") (emphasis added); N.J.S.A. 39:4-96 ("A person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving . . . .") (emphasis added); N.J.S.A. 59:3-14(a) ("Nothing 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.") (emphasis added); but cf. N.J.S.A. 2A:15-5.10 ("'Wanton and willful disregard' means a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission.") (emphasis added).
Here, the Supreme Court emphasized the importance of maintaining parity in immunity between 9-1-1 operators and other emergency responders, such as police, fire, and first-aid personnel. Wilson, supra, 209 N.J. at 586-87. Additionally, the Court observed that immunity was an important and legislatively-appropriate benefit conferred on "municipalities and other public and private entities" in exchange for the burden of being "conscript[ed] . . . into providing and operating an enhanced 9-1-1 system." Id. at 588. Moreover, "the Legislature has decided that the overall benefits to our State from an enhanced 9-1-1 system require shielding telecommunications and public entities, and their personnel, from potentially costly lawsuits for mistakes, even negligent ones." Id. at 589. Thus, the immunity provision of N.J.S.A. 52:17C-10(d) is intended to have an extremely broad scope.
From these expressions of particularized public policy, plaintiffs must "come forward with evidence" to create a genuine factual dispute whether the misconduct of the 9-1-1 operators displayed N.J.S.A. 52:17C-10(d)'s "wanton and willful disregard for the safety of persons or property." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). See also Triffin v. Am. Intern. Grp., Inc., 372 N.J. Super. 517, 523 (App. Div. 2004) (noting that an opponent of summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts").
"Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." G.S. v. Dep't of Human Servs., 157 N.J. 161, 179 (1999). Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds her responsible for the injuries she causes. Ibid. In the fast-paced and fluid world of 9-1-1 operators we cannot dictate a one-size-fits-all recipe for conduct, but what happened at Jersey City's PSAP in September 2005, did not demonstrate wanton and willful misconduct, despite the horrific outcome.
The first 9-1-1 operator indubitably made mistakes. She failed to actively obtain the name of the caller and confirm his actual telephone number (even though the computer system generated a "pilot" telephone number); she misinterpreted the nature and location of where the emergency was happening, and she did not obtain precise information about the caller's location. Wilson, supra, 209 N.J. at 566. However the 9-1-1 operator fully appreciated the gravity of the situation by instantly initiating a proper sequence of events that led to an immediate response by two Jersey City police officers. That the police helplessly found themselves a mere "200 feet away from the building where the Wilson family resided" does not increase the 9-1-1 operator's culpability. We are unable to discern anything about the first 9-1-1 operator's actions that suggest a reckless disregard for the safety of others. Plaintiffs argue, essentially, that anything less than perfection constitutes "wanton and willful disregard for the safety of persons or property." In the realm of dispatching emergency responders, perfection is not always achievable.
The second 9-1-1 operator is highly criticized for not fully engaging the caller when he reported that his day-earlier 9-1-1 call went unheeded. This 9-1-1 operator discharged her responsibility to balance the needs of the caller against her ability to be ready to accept the next (true) emergency call when she tried to direct him to the Jersey City Police Department's non-emergency telephone number. We fail to see how this unremarkable exchange amounts to a reckless disregard for the safety of others.
The question of whether particular conduct is to be classified as merely negligent, grossly negligent, or reckless can often be a difficult one. Dept. of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011). What happened to plaintiffs was a tragedy, but this is not a close case. Applying summary judgment standards, although the 9-1-1 operators were plainly negligent, there is insufficient evidence to convince a rational trier of fact that they acted with a "wanton and willful disregard for the safety of persons or property."
We do not view the departures from the Jersey City Police Department's standard operating protocols for handling emergency calls to be anything more than mere negligence. Moreover, each 9-1-1 operator's conduct, when viewed in the aggregate, did not surmount the immunity threshold of N.J.S.A. 52:17C-10(d).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION