Janet Henebema v. South Jersey Transportation Authority and N.J. State Police (072545) ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Janet Henebema v. South Jersey Transportation Authority (A-7-13) (072545)
Argued March 31, 2014 -- Decided September 29, 2014
RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, where a jury determined that there was no basis to impose liability on the individual
defendants or the plaintiff, the Court considers whether, on retrial, a second jury should decide anew the liability of
all parties, or whether the remand shall proceed only with respect to the liability of the public-entity defendants.
On December 4, 2005, plaintiff was severely injured in a multi-vehicle accident on the Atlantic City
Expressway. That morning, several close-in-time accidents were reported to the State Police, beginning at 3:55
a.m., when a motorist called 9-1-1 to report the first accident. Because his vehicle was stranded in the far left and
center lanes, the driver reported that his vehicle was “in a bad spot” and “needed to get out of there.” The second
accident occurred about fifteen minutes later. A private ambulance responding to a different emergency stopped to
assist, parked behind the second disabled vehicle in the middle lane, and activated the emergency lights. At 4:25
a.m., the third accident occurred when plaintiff tried to avoid the ambulance by passing it on the left, and collided
with the second vehicle. Plaintiff exited her vehicle and stood nearby. Within minutes, a fourth vehicle struck
plaintiff and her car, causing plaintiff serious injuries. State Police officers arrived at approximately 4:43 a.m.
Plaintiff sued the drivers and owners of the other vehicles involved in the accidents (individual defendants),
as well as two New Jersey public entities, South Jersey Transportation Authority (Authority) and the New Jersey
State Police (State Police) (collectively “public-entity defendants”). Plaintiff alleged that the public-entity
defendants were liable for failing to follow proper procedure in responding to 9-1-1 calls, resulting in an almost one-
hour delay before law enforcement officers and emergency personnel arrived on the scene.
Following a fifteen-day trial, the jury was charged. On the issue of the public-entity defendants’ liability,
the trial court’s instructions did not require the jury to determine whether the actions of their employees or agents
constituted either ministerial or discretionary action. Instead, the court instructed the jury on ordinary negligence
principles. The jury returned a verdict finding that the individual defendants were not negligent, that the Authority
was eighty-percent liable and the State Police was twenty-percent liable, and that there was no comparative
negligence on plaintiff’s part. The jury awarded plaintiff $8,748,311 in damages. The public-entity defendants
moved for a judgment notwithstanding the verdict, and alternatively, for a remittitur, which the trial court denied.
The public-entity defendants sought review on several grounds and plaintiff cross-appealed. The individual
defendants did not participate in the appeal. In a published opinion, the Appellate Division reversed the liability
verdict against the public-entity defendants, concluding that the trial court should have submitted the question of
whether the employees of the public-entity defendants’ alleged culpable conduct occurred while engaging in
ministerial or discretionary activity. The panel remanded for a new trial concerning the public-entity defendants’
liability only. Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 504 (App. Div. 2013).
The public-entity defendants sought certification solely on their contention that, at the retrial, the jury
should assess anew whether the individual defendants were negligent and whether plaintiff was comparatively
negligent. The Court granted the public-entity defendants’ petition. 215 N.J. 487 (2013).
HELD: The individual defendants’ liability and plaintiff’s comparative negligence are not intertwined with the
issues to be determined on remand and therefore do not need to be considered by the jury at the retrial. The purpose
of the retrial is to have the jury determine, from the evidence, whether the public entities’ employees were
performing either ministerial or discretionary actions. Once the appropriate standard is identified, the jury can
determine, based upon the applicable standard, whether the public-entity defendants are liable.
1
1. The parties do not challenge that the case must be remanded to assess whether the public-entity defendants were
performing ministerial acts or discretionary acts in order to determine their liability under the New Jersey Tort
Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The only issue before the Court is whether the remand appropriately
includes only the public entities or whether the retrial must reassess the liability of all of the parties. (p. 10)
2. The TCA provides protection for public entities involved in tort claims. The standard for liability under the TCA
depends on whether the conduct of individuals acting on behalf of the public entity was ministerial or discretionary.
See N.J.S.A. 59:2-3(d). If the public entity’s action in allocating resources was ministerial, liability is evaluated
based on an ordinary negligence standard. However, a more difficult threshold must be overcome in order for a
public entity to be liable for an individual’s discretionary acts. (pp. 11-12)
3. As a general rule, “issues in negligence cases should be retried together unless the issue unaffected by error is
entirely distinct and separable from the other issues.” Ahn v. Kim, 145 N.J. 423, 434-35 (1996). If issues are
inextricably intertwined, then when one is remanded, the others, too, must be retried. However, the determination of
whether the issues are sufficiently distinct and separable is a fact-sensitive analysis. Accordingly, and in line with
the fact-sensitive approach taken when reviewing which parties must be included in a retrial on discrete issues in a
negligence action, the Court has recognized that a remand must include all parties impacted by an improper jury
charge. Similarly, when ascertaining whether issues are intertwined, the Court considers whether the jury on retrial
will be confused when answering questions about one issue without considering another issue. (pp. 12-14)
4. In this matter, the public-entity defendants argue that the interrelatedness of the individual defendants’
negligence, as well as plaintiff’s comparative negligence, require reassessment in a combined retrial on all liability
issues if the public entities’ negligence is to be retried. On close examination, however, the Court rejects
defendants’ interrelatedness argument. At trial, plaintiff alleged that the public-entity defendants were negligent
because they failed to follow proper procedures in responding to the emergency situation. The liability of the
individual defendants, however, depended on whether the drivers operated their vehicles with adequate care.
Similarly, plaintiff’s comparative negligence depended on whether she used reasonable care in operating her vehicle
and after exiting it. The issue of whether the individual defendants, or plaintiff, used reasonable care is unrelated to
the issue of whether the public-entity defendants complied with the appropriate standard of care in making decisions
about how to respond to the evolving situation on the Expressway. None of the issues involved in determining the
public-entity defendants’ liability would require or even invite consideration of the individual defendants’ liability
or plaintiff’s comparative negligence. In sum, the theories for recovery from the public-entity defendants and
individual defendants are not intertwined, let alone inextricably intertwined. (pp. 14-16)
5. Having determined that it would be inappropriate to require a new trial on the individual defendants’ liability or
plaintiff’s comparative negligence, the Court addresses the public-entity defendants’ reliance on Ogborne v. Mercer
Cemetery Corp., 197 N.J. 448 (2009), for the propositions that proximate cause and comparative negligence must be
retried together and that the issue of liability must be retried as to all parties. In Ogborne, the Court ordered a retrial
because “issues concerning the dangerous condition of the property and whether the [c]ity acted in a palpably
unreasonable manner [were] intertwined with the issues of causation and foreseeability.” Id. at 461 (internal
quotation marks omitted). Here, the negligence claimed against the public-entity defendants is separate and distinct
from that claimed against the other parties, as is the issue of proximate cause. (pp. 16-19)
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA;
and JUDGE CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion. JUSTICE ALBIN did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-7 September Term 2013
072545
JANET HENEBEMA,
Plaintiff-Respondent,
v.
SOUTH JERSEY TRANSPORTATION
AUTHORITY and NEW JERSEY
STATE POLICE,
Defendants-Appellants,
and
MICHAEL R. TESTA, MARIA E.
PEREIRA, DOMENICO RADDI, JR.,
JOSHUA COOPER, REY S. COOPER,
TROOPER C. DEANGELIS, and
TROOPER M. RAZUKAS,
Defendants.
Argued March 31, 2014 – Decided September 29, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 430 N.J. Super. 485 (2013).
Stephen M. Orlofsky argued the cause for
appellants (Blank Rome, attorneys; Mr.
Orlofsky, Adrienne C. Rogove, and Jaret N.
Gronczewski, on the briefs).
Christine Petruzzell argued the cause for
respondent (Wilentz, Goldman & Spitzer,
attorneys).
1
JUDGE RODRÍGUEZ (temporarily assigned) delivered the
opinion of the Court.
In this case, a jury determined that two New Jersey public
entities, South Jersey Transportation Authority (Authority) and
the New Jersey State Police (State Police), were liable for
injuries sustained by plaintiff as a result of a multi-vehicle
pile-up on the Atlantic City Expressway (Expressway) during a
heavy snowstorm.1 Plaintiff alleged that the public entities
were negligent in failing to adhere to standard operating
procedures with respect to competing 9-1-1 calls for motorist
assistance. The jury found no negligence on the part of
plaintiff or the owners or drivers of the other vehicles
involved in the several collisions (individual defendants).
On appeal, the Appellate Division reversed the liability
verdict against the public-entity defendants based on errors in
the jury instructions with respect to the liability of the
public entities for discretionary versus ministerial acts. The
error, as found by the Appellate Division, was caused by the
trial court’s failure to allow the jury to determine predicate
facts that resolved whether ministerial or discretionary acts
were involved. The Appellate Division remanded the matter for
1 We refer to the Authority and State Police collectively as the
public-entity defendants.
2
retrial only with respect to the liability of the public-entity
defendants.
The public-entity defendants now contend that, at the
retrial, the second jury should decide anew the liability of all
parties. We disagree.
The jury reached a final verdict with regard to the
plaintiff’s and individual defendants’ liability predicated on
proper jury instructions. The theories and evidence of
liability with respect to the public entities and the individual
defendants are not inextricably intertwined. Furthermore, the
issue of plaintiff’s comparative negligence is distinct from the
question of the public entities’ liability. Therefore, the
retrial shall affect only the liability of the public-entity
defendants.
I.
A.
During an ice and snowstorm in the early morning of
December 4, 2005, plaintiff, Janet Henebema, was severely
injured in a multi-vehicle accident near mile marker 7.3 on the
Expressway. That portion of the Expressway has three lanes in
each direction. The morning of the accident, several close-in-
time accidents were reported to the State Police at that general
location.
3
Around 3:53 a.m., the first accident happened on the
westbound side at mile marker 7.3. Joshua Cooper, the driver of
a vehicle, called 9-1-1 at 3:55 a.m., reporting that his car
slammed into the center median, bounced off the concrete
barrier, and spun around, coming to rest facing the wrong
direction in the far left and center lanes. Cooper and his
passengers had moved to the safety of the right shoulder of the
Expressway. Cooper also told the 9-1-1 dispatcher that his
vehicle “needed to get out of there” because it was “in a bad
spot.” The dispatcher reported the accident through the
computer assisted dispatch system, which alerted the State
Police.
The second accident occurred at that same location about
fifteen minutes later. Michael Testa lost control of his
vehicle and it became stuck in the snow perpendicular to the
roadway, straddling the left and center lanes of the Expressway.
After exiting his vehicle, Testa and his passenger also made
their way to the right side of the road. At that time, a
private ambulance driver responding to a different emergency
stopped temporarily to assist. The ambulance driver parked
behind Testa’s disabled vehicle in the middle lane and activated
the emergency lights.
At approximately 4:25 a.m., the third accident occurred
when plaintiff tried to avoid the ambulance in the middle lane
4
by passing it on the left; however, plaintiff collided with
Testa’s vehicle. Although the impact was light, plaintiff’s
driver-side door was pinned against the concrete median and she
was forced to exit her vehicle through the passenger-side door.
Plaintiff stood near her car on the Expressway.
Within minutes, the fourth accident occurred. Domenico
Raddi, Jr.’s vehicle approached the scene. His car struck
plaintiff and her vehicle, causing plaintiff serious injuries,
including severing of one of her legs upon impact.
State Police officers arrived at the scene of the
aforementioned accidents at approximately 4:43 a.m., about fifty
minutes after Cooper made the initial 9-1-1 call.
B.
Plaintiff sued the drivers and owners of the other vehicles
involved in the accidents (individual defendants), as well as
the Authority and the State Police. Plaintiff alleged that the
public-entity defendants were liable for failing to follow
proper procedure in responding to 9-1-1 calls, resulting in an
almost one-hour delay before law enforcement officers and
emergency personnel arrived on the scene.
The trial lasted fifteen days. Plaintiff’s strategy was to
establish the public-entity defendants’ negligence by showing
that they had violated their standard operating procedure.
5
The trial court’s instructions on the issue of the public-
entity defendants’ liability did not require the jury to make a
factual determination whether the actions of their employees or
agents constituted either ministerial action or discretionary
action. Instead, the court instructed the jury on ordinary
negligence principles, which is the instruction given when a
public entity is found to have taken ministerial action under
the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.
The jury returned a verdict finding that the individual
defendants were not negligent, that the Authority was eighty-
percent liable and the State Police was twenty-percent liable,
and that there was no comparative negligence on plaintiff’s
part. The jury awarded plaintiff $8,748,311 in total damages.
Following the jury verdict, the public-entity defendants
moved for a judgment notwithstanding the verdict, and
alternatively, for a remittitur. The trial court denied the
motions, determining that the jury was properly charged and the
verdict was fair and reasonable.
The public-entity defendants sought review on several
grounds. Plaintiff cross-appealed challenging the court’s
denial of her motion for pre-judgment interest. The individual
defendants did not participate in the appeal in light of the no-
cause judgment in their favor. In a published opinion, the
Appellate Division reversed the liability verdict against the
6
public-entity defendants, concluding that the trial court had
erroneously charged the jury. The panel determined that the
trial court should have submitted the question of whether the
employees of the public-entity defendants’ alleged culpable
conduct occurred while engaging in ministerial or discretionary
activity. Henebema v. S. Jersey Transp. Auth., 430 N.J. Super.
485, 504 (App. Div. 2013). The Appellate Division remanded for
a new trial concerning the public-entity defendants’ liability
only. Id. at 513-14, 517.2
The public-entity defendants petitioned for certification
solely on their contention that, at the retrial, the jury should
be asked to assess anew whether the individual defendants were
negligent and whether plaintiff was comparatively negligent; if
so, the public-entity defendants maintain, the jury should
compare the percentage of responsibility of all parties. This
Court granted the petition. Henebema v. S. Jersey Transp.
Auth., 215 N.J. 487 (2013).
II.
A.
The public-entity defendants raise three arguments. First,
they contend that the proximate cause of plaintiff’s injuries is
inextricably intertwined with the negligence of the individual
2 The panel concluded there was no error in the denial of the
public-entity defendants’ motion for remittitur. Henebema,
supra, 430 N.J. Super. at 512.
7
defendants and the issue of plaintiff’s comparative negligence.
Thus, a retrial on the liability of all parties is required in
this instance. The public-entity defendants maintain that
remanding for retrial only as to their liability would be
prejudicial and unfair because the second jury would not be
presented with potential evidence of negligence and proximate
causation of all parties. They argue that, because the facts
and evidence surrounding the parties’ actions are intertwined,
everything must be presented to the new jury.
Second, the public-entity defendants insist that the
Appellate Division’s decision to remand solely on their
liability is in stark contrast to settled case law. Relying
heavily on Ogborne v. Mercer Cemetery Corp., 197 N.J. 448
(2009), they argue that proximate cause and comparative
negligence must be retried together. Additionally, they contend
that Ogborne requires retrying the issue of liability as to all
parties.
Finally, the public-entity defendants suggest that this
case is an opportunity for this Court to clarify that, in
situations where a trial court has given an improper jury charge
with respect to the standard of care pursuant to the TCA, the
case must be remanded in its entirety to retry comparative
negligence and proximate cause as to all parties.
B.
8
Plaintiff argues that the error in the jury instruction
affected only the issue of immunity afforded to the Authority
and the State Police by the TCA. Accordingly, plaintiff argues
that the retrial should have no bearing on the jury’s previous
no-cause finding in assessing the conduct of the individual
defendants. She further argues that the assessment of the
public-entity defendants’ alleged ordinary negligence with
respect to TCA liability will not cause a shift of liability to
any of the other defendants.
Plaintiff further challenges the public-entity defendants’
reliance on Ogborne, arguing that this case is distinguishable.
Ogborne, plaintiff maintains, involved a different standard of
liability and a different tort immunity under a different
section of the TCA. More specifically, plaintiff argues that
the liability finding in Ogborne turned on whether a “dangerous
condition” existed on the property, a concept that was
inextricably intertwined with the comparative negligence of the
plaintiff.
Plaintiff argues that the Appellate Division’s
determination of an error in the jury instruction regarding the
public-entity defendants’ tort immunity under a palpably
unreasonable standard versus an ordinary negligence standard
requires only a partial remand. Specifically, this case
involves a claim of negligence based on the public entities’
9
standard operating procedure, which relates only to the public
entities’ duties and is not impacted by the conduct of plaintiff
or the individual defendants at the scene of the accident.
Finally, plaintiff argues that the public-entity defendants
did not challenge the verdict as against the weight of the
evidence with respect to any of the individual defendants,
except Raddi, until the appeal to this Court. In addition to
urging the Court not to consider this new issue on appeal,
plaintiff argues that the Appellate Division correctly concluded
that ample evidence was produced at trial to allow a reasonable
jury to conclude that the individual defendants were not
negligent.
III.
A.
The Appellate Division determined, and the parties do not
challenge, that due to the erroneous jury charge the case must
be remanded to assess whether the public-entity defendants --
the Authority and the State Police -- were performing
ministerial acts or discretionary acts in order to determine
their liability under the TCA. The only issue before this Court
is whether the remand for retrial on that question appropriately
includes only the public entities or whether the retrial must
reassess the liability of all of the parties. To set the remand
10
in context, we begin by briefly reviewing some basic principles
of public-entity liability pursuant to the TCA.
The TCA provides protection for public entities involved in
tort claims. Generally, immunity prevails over liability to the
extent that immunity has become the rule and liability is the
exception. See Tice v. Cramer, 133 N.J. 347, 355 (1993) (citing
Bombace v. City of Newark, 125 N.J. 361, 372 (1991)). The
standard for liability under the TCA depends on whether the
conduct of individuals acting on behalf of the public entity was
ministerial or discretionary. See N.J.S.A. 59:2-3(d).
More particularly, for purposes of the factual setting of
this appeal, N.J.S.A. 59:2-3(d) prescribes the circumstances
when a public entity can be found liable in instances where the
public entity allocates resources:
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.
[Ibid.]
Thus, the TCA creates two standards for immunity based on
whether the public entity’s action in allocating resources was
11
ministerial or discretionary. If the action was ministerial,
liability for the public entity is evaluated based on an
ordinary negligence standard. However, a more difficult
threshold must be overcome in order for a public entity to be
liable for an individual’s discretionary acts.
At trial, the jury was not asked to classify the public-
entity defendants’ resource-allocation actions. Rather, the
jury was only asked to determine whether the public-entity
defendants were negligent based on an ordinary negligence
standard. Accordingly, the Appellate Division remanded the case
for retrial, ordering that the second jury be instructed to
determine whether the public-entity defendants’ resource-
allocation actions were ministerial or discretionary. Henebema,
supra, 430 N.J. Super. at 513-14.
With that background we now address the scope of the remand
necessitated in this matter.
B.
As a general rule, “issues in negligence cases should be
retried together unless the issue unaffected by error is
entirely distinct and separable from the other issues.” Ahn v.
Kim, 145 N.J. 423, 434-35 (1996). If issues are inextricably
intertwined, then when one is remanded, the others, too, must be
retried. Id. at 435. However, the determination of whether the
issues are sufficiently distinct and separable is a fact-
12
sensitive analysis, which ultimately depends on the particular
circumstances involved in each individual case. Id. at 434-35;
see, e.g., Tindal v. Smith, 299 N.J. Super. 123, 137-38 (App.
Div.) (stating same and denying new trial where trial judge’s
erroneous instructions on proximate cause did not infect jury’s
verdict, premised on finding of no negligence, because
negligence and causation issues were “entirely distinct and
separate”), certif. denied, 150 N.J. 28 (1997).
Accordingly, and in line with the fact-sensitive approach
taken when reviewing which parties must be included in a retrial
on discrete issues in a negligence action, this Court has
recognized that the remand must include all parties impacted by
an improper jury charge. In Acken v. Campbell, 67 N.J. 585, 589
(1975), this Court affirmed the Appellate Division’s decision to
remand a case for retrial as to both the defendants’ liability
and the plaintiff’s comparative negligence. The jury had been
improperly charged on issues that affected both defendants. Id.
at 588. We also ordered retrial on the plaintiff’s comparative
negligence because once the jury had found the defendants
negligent -- based on an erroneous jury charge -- the jury did
not deliberate properly on whether the plaintiff was
comparatively negligent. Id. at 589.
Similarly important when ascertaining whether issues are
intertwined is whether the jury on retrial will be confused when
13
answering questions about one issue without considering another
issue. Accordingly, in Conklin v. Hannoch Weisman, 145 N.J. 395
(1996), we addressed circumstances where there existed the real
potential that jury confusion could undermine confidence in a
second jury’s verdict on causation if that second jury did not
understand the basis for the first jury’s findings on
negligence. Id. at 422. We held that the interplay of the
negligence and causation issues required both to be redetermined
by the second jury, notwithstanding that the first jury’s
findings on negligence were not infected with error. Ibid.
IV.
In this matter, defendants argue that the negligence of the
individual defendants and the comparative negligence of
plaintiff must be redetermined by the second jury on retrial if
the public entities’ negligence is to be retried. They claim
that the interrelatedness of the individual defendants’
negligence, as well as plaintiff’s comparative negligence,
require reassessment in a combined retrial on all liability
issues. However, this interrelatedness argument fails on close
examination.
At trial, plaintiff alleged that the public-entity
defendants were negligent because they failed to follow proper
procedures in responding to the 9-1-1 system calls and to the
emergency situation. The liability of the individual
14
defendants, unlike that of the Authority and the State Police,
depended on whether Cooper, Testa, and Raddi operated their
vehicles with adequate care given the conditions of the road at
the time of the collisions. Similarly, plaintiff’s comparative
negligence depended on whether she used reasonable care in
operating her vehicle and after exiting it. The first jury,
after being properly instructed on those issues, returned a
verdict finding no cause of action against Cooper, Testa, and
Raddi. The jury verdict also found plaintiff not negligent.
The issue of whether the individual defendants, or
plaintiff, used reasonable care in driving their vehicles is
unrelated to the issue of whether the public-entity defendants
complied with the appropriate standard of care in making
decisions about how to respond to the evolving situation on the
Expressway. The Authority and the State Police have not pointed
to any error in the jury’s determination of no liability with
respect to the individual defendants, or of plaintiff in her
conduct in the motor vehicle accident or immediately after
exiting her vehicle. Moreover, none of the issues involved in
determining the public-entity defendants’ liability would
require or even invite consideration of the individual
defendants’ liability or plaintiff’s comparative negligence. It
therefore would be inappropriate to require a new trial on the
15
individual defendants’ liability or plaintiff’s comparative
negligence.
In sum, plaintiff’s case against the individual defendants,
and the comparative negligence claim against plaintiff, were
based on a different theory of negligence than that posited
against the public-entity defendants. Thus, the theories for
recovery from the public-entity defendants and individual
defendants are not intertwined, let alone inextricably
intertwined. Unlike the jury instruction error in Acken, the
error here did not impact the other parties. Further, the first
jury’s verdict in this matter does not have an outcome-
determinative effect on the issue to be addressed on retrial.
Moreover, there is no potential for jury confusion that
concerned this Court in Conklin.
Finally, we address the public-entity defendants’ reliance
on this Court’s opinion in Ogborne. In Ogborne, supra, a woman
sued a municipality because she fell and broke her leg when she
was forced to scale a fence in order to leave a city-owned
cemetery. 197 N.J. at 453-54. The woman was trapped inside
because an employee locked the only exit hours before the
scheduled closing. Id. at 453. The jury returned a verdict in
favor of the plaintiff. Id. at 455. On the defendant’s appeal,
the Appellate Division remanded for a retrial on liability of
all parties because of an erroneous jury charge. Id. at 455.
16
The Ogborne plaintiff appealed to this Court, arguing that only
the issue of the city’s negligence needed to be retried because
the jury had already found that she was not negligent. Id. at
456. This Court affirmed the Appellate Division decision,
reasoning that the issues of proximate cause and negligence
needed to be retried together because the combination of the
plaintiff’s act of being in the cemetery, along with the
employee’s act of locking the gates, together created a
“dangerous condition.” Id. at 461. Therefore, the
determination of a “dangerous condition” was dependent on the
conduct of both parties, compelling a retrial on all of the
liability factors, not just the city’s liability. Id. at 462.
The public-entity defendants’ reliance on Ogborne is
misplaced. Although the judgment in Ogborne, like this case,
was reversed based on an incorrect jury charge, we ordered a
retrial in Ogborne because “issues concerning the dangerous
condition of the property and whether the [c]ity acted in a
palpably unreasonable manner [were] intertwined with the issues
of causation and foreseeability.” Id. at 461 (internal
quotation marks omitted). Here, the individual defendants
played no role in the conduct of the employees of the public-
entity defendants during the snowstorm. Likewise, plaintiff’s
conduct was not related to that of the public entities’
employees. The negligence claimed against the public-entity
17
defendants is separate and distinct from that claimed against
the other parties, as is the issue of proximate cause.
To conclude, in this matter, the first jury already has
determined that there was no basis to impose liability on the
individual defendants or plaintiff after examining their
respective conduct and using the correct legal standard. It is
undisputed that the jury instructions on those issues were
correct.
The purpose of the retrial -- ordered due to the jury
instruction error on public-entity liability pursuant to the TCA
-- is to have the jury determine, from the evidence, whether the
public entities’ employees were performing either ministerial or
discretionary actions. If the conduct is found to have been
ministerial, then the ordinary negligence standard would apply
in determining the public entities’ liability. If the conduct
is found to have been discretionary, then the correct standard
for imposing liability would be palpably unreasonable conduct.
Once the appropriate standard is identified, the jury can
determine, based upon the applicable standard, whether the
public-entity defendants are liable.
For the foregoing reasons, we hold that the individual
defendants’ liability and plaintiff’s comparative negligence are
not intertwined with the issues to be determined on remand and
18
therefore do not need to be considered by the jury at the
retrial.
V.
The judgment of the Appellate Division is affirmed. The
distinct and separable issue of the public-entity defendants’
negligence is remanded for a new trial consistent with this
opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in
JUDGE RODRÍGUEZ’s opinion. JUSTICE ALBIN did not participate.
19
SUPREME COURT OF NEW JERSEY
NO. A-7 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
JANET HENEBEMA,
Plaintiff-Respondent,
v.
SOUTH JERSEY TRANSPORTATION
AUTHORITY and NEW JERSEY
STATE POLICE,
Defendants-Appellants,
and
MICHAEL R. TESTA, MARIA E.
PEREIRA, DOMENICO RADDI, JR.,
JOSHUA COOPER, REY S. COOPER,
TROOPER C. DEANGELIS, and
TROOPER M. RAZUKAS,
Defendants.
DECIDED September 29, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM/REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN --------------------- ---------------------
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1
2