Rachel A. Parsons v. Mullica Township Board of Education , 440 N.J. Super. 79 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0643-14T4
RACHEL A. PARSONS, a minor
by her parents and guardians ad
litem, HOWARD PARSONS and
MICHELLE PARSONS, and APPROVED FOR PUBLICATION
HOWARD PARSONS and MICHELLE
PARSONS, individually, March 30, 2015
APPELLATE DIVISION
Plaintiffs-Respondents,
v.
MULLICA TOWNSHIP BOARD OF
EDUCATION and JUDITH M. GRASSO, R.N.,
B.A., C.S.N.,
Defendants-Appellants,
and
SABAH AMIR, M.D. and
WALTER D. CRANE, D.O.,
Defendants.
_____________________________________
Argued February 23, 2015 – Decided March 30, 2015
Before Judges Simonelli, Guadagno and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. L-6954-13.
Thomas G. Smith argued the cause for
appellants.
Richard N. Shapiro of the Pennsylvania bar,
admitted pro hac vice, argued the cause for
respondents (Goldenberg, Mackler, Sayegh,
Mintz, Pfeffer, Bonchi & Gill, and Mr.
Shapiro, attorneys; Joseph E. Sayegh, on the
brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendants, the Mullica Township Board of Education (Board)
and Judith M. Grasso (collectively "defendants"), appeal the
denial of their motion for summary judgment in a suit brought on
behalf of then-minor plaintiff Rachel A. Parsons by her parents
and guardians ad litem Howard and Michelle Parsons, who also sue
on their own behalf. Because defendants are immune under
N.J.S.A. 59:6-4, we must reverse and remand.
I.
For purposes of summary judgment only, the parties treat as
fact the following allegations by plaintiffs. From the
2001/2002 school year through at least 2004, Rachel was a
student at the Mullica Township Elementary School operated by
the Board. During that time, Grasso was employed by the Board
as a registered nurse (RN) and certified school nurse (CSN). As
part of her duties, Grasso conducted a screening test for visual
acuity on Rachel. Rachel failed the vision screening in her
right eye, but Rachel's parents were not notified of this
failure, and Rachel was not referred for further vision testing.
Defendants did not provide Rachel's parents with the vision
2 A-0643-14T4
acuity test results from 2001/2002 until Rachel failed her next
school vision screening in May 2004. The delay in notification
resulted in a two-year delay in the diagnosis and treatment of
Rachel's right eye amblyopia, and proximately caused the loss of
sight in Rachel's right eye.1
Plaintiffs allege defendants breached their duty to give
notice of the test results under N.J.A.C. 6A:16-2.2(k)(6).
Plaintiffs filed a complaint in 2013, when Rachel was seventeen,
seeking damages for defendants' negligence and breach of duty
under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3.2
Defendants filed a motion for summary judgment, claiming
that they were immune under N.J.S.A. 59:6-4, and that Grasso was
also immune under N.J.S.A. 18A:40-4.5. The trial court denied
summary judgment by order and memorandum decision on August 22,
2014. We granted defendants' motion for leave to appeal.
1
Amblyopia, also referred to as "lazy eye," "is the medical term
used when the vision in one of the eyes is reduced because the
eye and the brain are not working together properly. The eye
itself looks normal, but it is not being used normally because
the brain is favoring the other eye." Nat'l Eye Inst.,
Amblyopia, https://www.nei.nih.gov/health/amblyopia (last
visited Mar. 9, 2015).
2
Plaintiffs' complaint also included counts against private
doctors who treated Rachel before and after 2001 for failing to
perform adequate vision screening and to properly diagnose and
treat her amblyopia.
3 A-0643-14T4
II.
Summary judgment must be granted if the court determines
"that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment
or order as a matter of law." R. 4:46-2(c); accord Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Given
the parties' agreement to the facts for purposes of the motion
for summary judgment, the motion raised only a legal issue of
whether defendants have statutory immunity. "Our review of the
meaning of a statute is de novo, and we owe no deference to the
interpretative conclusions reached by the trial court . . . ."
Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564
(2012). Moreover, "[a] ruling on summary judgment is reviewed
de novo. We thus 'apply the same standard governing the trial
court,' and do not defer to the trial court's . . .
interpretation of 'the meaning of a statute . . . .'" Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations
omitted). We must hew to that standard of review.
III.
We first address defendants' claim that Grasso is immune
under N.J.S.A. 18A:40-4.5. This requires consideration of the
statutes and regulations requiring the visual acuity test.
4 A-0643-14T4
In 1967, the Legislature enacted the current "Education"
title. L. 1967, c. 271. In the subtitle governing the conduct
of schools, it included a chapter entitled "Health Promotion and
Disease Prevention." N.J.S.A. 18A:40. In that chapter, the
Legislature included N.J.S.A. 18A:40-4, which provides that a
nurse or other health care personnel "shall examine every pupil
to learn whether any physical defect exists." "The frequency
and procedure of and selection of pupils for examinations shall
comply with the rules of the State board." Ibid.Under the regulations subsequently promulgated by the State
Board of Education, "[e]ach district board of education shall
ensure that students receive health screenings." N.J.A.C.
6A:16-2.2(k). In particular, "[s]creening for visual acuity
shall be conducted biennially for students in kindergarten
through grade 10." N.J.A.C. 6A:16-2.2(k)(2). "Screenings shall
be conducted by a school physician, school nurse, or other
school personnel properly trained." N.J.A.C. 6A:16-2.2(k)(5).
"The school district shall notify the parent of any student
suspected of deviation from the recommended standard." N.J.A.C.
6A:16-2.2(k)(6).
In 1978, the Legislature passed "AN ACT concerning the
examination of pupils for the condition known as scoliosis," the
abnormal curvature of the spine (Scoliosis Act). L. 1978, c.
5 A-0643-14T4
97, §§ 1-3, codified at N.J.S.A. 18A:40-4.3 to -4.5. The
Scoliosis Act required biennial examinations for scoliosis by "a
school physician, school nurse, physical education instructor or
other school personnel." N.J.S.A. 18A:40-4.3; see N.J.A.C.
6A:16-2.2(k)(4). The final section of the Scoliosis Act
provided that "[n]o action of any kind in any court of competent
jurisdiction shall lie against any physician, school nurse,
physical education instructor or other school personnel by
virtue of the provisions of this act." L. 1978, c. 97, § 3,
codified at N.J.S.A. 18A:40-4.5 (emphasis added).
The natural reading of "this act" in N.J.S.A. 18A:40-4.5
refers to the Scoliosis Act of which it is a part. Nonetheless,
defendants argue N.J.S.A. 18A:40-4.5 immunized Grasso for
performing an examination under N.J.S.A. 18A:40-4. However, as
noted above, N.J.S.A. 18A:40-4 was enacted eleven years earlier,
with the entire Education title. Defendants' argument would
require us to read N.J.S.A. 18A:40-4.5 as immunizing all "school
personnel" from any "action of any kind in any court of
competent jurisdiction" for any violation of the entire
Education title. We see no indication that the Legislature
intended N.J.S.A. 18A:40-4.5 to extend that far, or indeed
anywhere beyond the Scoliosis Act itself.
6 A-0643-14T4
Thus, we agree with the trial court that N.J.S.A. 18A:40-
4.5 provides immunity only against actions brought "by virtue of
the provisions of" the Scoliosis Act, N.J.S.A. 18A:40-4.3 to
-4.5. It does not immunize Grasso for her conduct under
N.J.S.A. 18A:40-4 and N.J.A.C. 6A:16-2.2(k)(2) and (6).3
IV.
We next address defendants' claim that they are immune
under N.J.S.A. 59:6-4 of the TCA. In 1972, the Legislature
adopted the TCA, "which reestablished the rule of immunity for
public entities and public employees, with certain limited
exceptions." Marcinczyk v. State Police Training Comm'n, 203
N.J. 586, 594-95 (2010); see L. 1972, c. 45. The TCA "declared
to be the public policy of this State that public entities shall
only be liable for their negligence within the limitations of
this act and in accordance with the fair and uniform principles
established herein." N.J.S.A. 59:1-2. "Public entity" includes
any "district, public authority, public agency, and any other
political subdivision or public body in the State," including
the Board here. N.J.S.A. 59:1-3. Under the TCA, "immunity for
public entities is the general rule and liability is the
exception." Kemp by Wright v. State, 147 N.J. 294, 299 (1997);
3
The legislative history does not reveal why the Legislature
included N.J.S.A. 18A:40-4.5 in the Scoliosis Act, given the
immunity earlier provided in N.J.S.A. 59:6-4.
7 A-0643-14T4
accord D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130,
134 (2013) (describing that rule as "the 'guiding principle' of
the [TCA]").
The Supreme Court in Kemp found that "N.J.S.A. 59:6-4 of
the TCA is consistent with that policy," because N.J.S.A. 59:6-4
establishes a "general rule of absolute immunity." Kemp, supra,
147 N.J. at 300. N.J.S.A. 59:6-4 provides:
Except for an examination or diagnosis
for the purpose of treatment, neither a
public entity nor a public employee is
liable for injury caused by the failure to
make a physical or mental examination, or to
make an adequate physical or mental
examination, of any person for the purpose
of determining whether such person has a
disease or physical or mental condition that
would constitute a hazard to the health or
safety of himself or others. For the
purposes of this section, "public employee"
includes a private physician while actually
performing professional services for a
public entity as a volunteer without
compensation.
The Court stated that "N.J.S.A. 59:6-4 can be divided into
two sections." Kemp, supra, 147 N.J. at 300. "The first
section provides absolute immunity for the failure to perform an
adequate examination 'for the purpose of determining whether [a]
person has a disease or physical or mental condition that would
constitute a hazard to the health or safety of himself or
others.'" Ibid. (quoting N.J.S.A. 59:6-4). "The second section
establishes an exception to the general rule of absolute
8 A-0643-14T4
immunity if the examination is 'for the purpose of treatment.'"
Ibid. (quoting N.J.S.A. 59:6-4).
Here, it is undisputed that the health screening of Rachel
for visual acuity was not made "for the purpose of treatment."
N.J.S.A. 59:6-4. Rather, it was made "for the purpose of
determining whether [she had] a disease or physical or mental
condition that would constitute a hazard to [her] health or
safety." Ibid. N.J.S.A. 59:6-4 "provides absolute immunity"
regarding examinations for that purpose. Kemp, supra, 147 N.J.
at 300.
Defendants therefore contend they are immune under N.J.S.A.
59:6-4. Plaintiffs offer several arguments why that section
should not apply here.
A.
First, plaintiffs contend that the health screening of
Rachel was not "a physical or mental examination." N.J.S.A.
59:6-4. The TCA does not define that phrase, but the
legislative history of N.J.S.A. 59:6-4 gives examples
illustrating what the phrase includes. The 1972 Report of
Attorney General's Task Force on Sovereign Immunity4 accompanied
the draft legislation that was adopted as the TCA. Del Tufo v.
4
The Report is reprinted in Harry A. Margolis & Robert Novack,
Claims Against Public Entities at 581-662 (Gann 2015).
9 A-0643-14T4
Twp. of Old Bridge, 278 N.J. Super. 312, 323 (App. Div. 1995),
aff’d, 147 N.J. 90 (1996). The Report included a portion
reprinted as the Comment to N.J.S.A. 59:6-4. See Kemp, supra,
147 N.J. at 302. The Comment states that "[t]he immunity
granted [by N.J.S.A. 59:6-4] pertains to the failure to perform
adequate public health examinations, such as public tuberculosis
examinations, physical examinations to determine the
qualifications of boxers and other athletes, and eye
examinations for vehicle operator applicants." Comment to
N.J.S.A. 59:6-4. The Supreme Court in Kemp explained that
"[a]lthough the examples listed in the Comment to N.J.S.A. 59:6-
4 were not intended to be exclusive, their general descriptions
must be construed to embrace only other illustrations that are
similar in nature to those enumerated." Kemp, supra, 147 N.J.
at 303.
By that measure, visual acuity screenings for students are
"public health examinations." Comment to N.J.S.A. 59:6-4. They
are similar in nature to "public tuberculosis examinations" and
"eye examinations for vehicle operator applicants," ibid.,
because they are "conducted for diagnostic purposes only" and,
"[o]nce the examination . . . is complete, the public entity
takes no further action of a medical nature," Kemp, supra, 147
N.J. at 303.
10 A-0643-14T4
Further, when N.J.S.A. 59:6-4 was amended in 1983,5 "the
statement of the Senate Labor, Industry and Professions
Committee which accompanied the amendment noted that the
immunity granted by the statute 'pertains to the failure to
perform adequate public health examinations, such as
tuberculosis, scoliosis, hearing, eye, mental, and other
examinations for public health purposes.'" Del Tufo, supra, 278
N.J. Super. at 323; see Kemp, supra, 147 N.J. at 302 (citing
Senate Labor, Indus. & Professions Comm. Statement, No. 524, L.
1983, c. 184). Here, the visual acuity screenings were eye
examinations for public health purposes.
Such examinations may be performed by a school. Indeed,
Kemp involved a high school's pre-vaccination screening
examination of students and resulting vaccination for measles.
Kemp, supra, 147 N.J. at 297-98. The Supreme Court stated that
"[i]f the purpose of the screening examination was to inform
[the student] whether she had measles, such an examination would
have been similar to testing for tuberculosis or visual fitness
to operate a motor vehicle, and would fit perfectly into the
group of public health examinations articulated in the Comment."
5
The amendment added the last sentence of N.J.S.A. 59:6-4, which
is not implicated here. L. 1983, c. 184, § 1.
11 A-0643-14T4
Id. at 303.6 Here, the purpose of the visual acuity screening
was simply to inform Rachel's parents if she had vision
problems, and the screening thus "fit perfectly into the group
of public health examinations articulated in the Comment."
Ibid.
Plaintiffs argue that a visual acuity screening is not a
physical examination under N.J.A.C. 6A:16 and the Mullica
Township Board of Education's regulations. However, those
regulations by the State Board of Education and by Mullica
Township have nothing to do with the TCA. Those regulations
cannot determine, limit, or redefine the Legislature's intent in
enacting the TCA in 1972. They cannot dictate what examinations
the Legislature intended to encompass within the immunity
granted by N.J.S.A. 59:6-4.7
6
Kemp held immunity did not apply only because the vaccination
was treatment, id. at 300-03, and "the pre-vaccination
examination was an examination for the purpose of treatment, and
therefore falls within the exception to the TCA grant of
immunity [in N.J.S.A. 59:6-4]," id. at 304. "N.J.S.A. 59:6-4's
grant of immunity 'does not apply to examinations for the
purpose of treatment such as are ordinarily made in doctors'
offices and public hospitals,'" like vaccinations. Id. at 302
(quoting Comment to N.J.S.A. 59:6-4).
7
Thus, we need not decide whether N.J.A.C. 6A:16-2.2(k)(2)'s
requirement for visual acuity screening falls within the
definition of "[p]hysical examination" in the regulations of the
State Board and Mullica Township's Board. We note those
definitions each include as physical examinations the "specific
(continued)
12 A-0643-14T4
Plaintiffs stress that those regulations specify what type
of health care professional can perform certain physical
examinations, and do not include an RN or CSN such as Grasso.
However, immunity does not turn on the type of license possessed
by the "public employee" tasked with performing a physical
examination. N.J.S.A. 59:6-4. Under the TCA, "'[p]ublic
employee' means an employee of a public entity," and
"'[e]mployee' includes an officer, employee, or servant, whether
or not compensated or part-time, who is authorized to perform
any act or service." N.J.S.A. 59:1-3. It is undisputed that
Grasso was authorized to perform the visual acuity screenings.
N.J.A.C. 6A:16-2.2(k)(5), -2.3(b)(3)(ii).
Accordingly, we hold that the visual acuity screening here
was a physical examination under N.J.S.A. 59:6-4.
B.
Plaintiffs also argue that even if N.J.S.A. 59:6-4
immunizes the "screening for visual acuity" required by N.J.A.C.
6A:16-2.2(k)(2) as a physical examination, it does not immunize
the failure to "notify the parent of any student suspected of
deviation from the recommended standard" under N.J.A.C. 6A:16-
2.2(k)(6). They assert their claim addresses only the failure
(continued)
procedures required by statute as stated in N.J.A.C. 6A:16-2.2."
E.g., N.J.A.C. 6A:16-1.3.
13 A-0643-14T4
to give notice of the examination results, and does not claim a
"failure to make a physical or mental examination, or to make an
adequate physical or mental examination." N.J.S.A. 59:6-4.
In common experience, physical examinations involve a
three-step process: arranging to have an examination; conducting
the examination; and reporting the results of the examination.
The exception plaintiffs seek to carve out of N.J.S.A. 59:6-4
would excise from such examinations their necessary concluding
step. This is illustrated by the examples given in the
legislative history. "[P]ublic tuberculosis examinations" would
be of little use if the examiner kept the results to herself.
Comment to N.J.S.A. 59:6-4. "[P]hysical examinations to
determine the qualifications of boxers and other athletes, and
eye examinations for vehicle operator applicants," are followed
by notification to the athletes or applicants of whether they
are qualified. Ibid. A physical or mental examination which
fails to communicate or inadequately communicates the results is
not "an adequate physical or mental examination." N.J.S.A.
59:6-4.
Plaintiffs contend that in the Comment's examples, the
examiner presumably directly notifies the person examined, who
is an adult or, for driver's license applicants, at least
sixteen years old. N.J.A.C. 13:21-7.1. Plaintiffs note that
14 A-0643-14T4
Rachel was in kindergarten, and that N.J.A.C. 6A:16-2.2(k)(6)
requires "[t]he school district shall notify the parent of any
student suspected of deviation from the recommended standard."
However, the identity of the persons giving and receiving
notification under the regulation does not alter the integral
role of notification to the adequacy of the examination.
Plaintiffs assert that the regulation makes the examination and
the notification two separate events, but it does not sever the
inexorable connection between making and communicating the
diagnosis.
Severing that connection would create an anomaly for the
person examined. Under plaintiffs' reading, N.J.S.A. 59:6-4
would immunize the public entity and public employee for the
failure to make an examination to detect the hazardous
condition, and for the failure to diagnose the hazardous
condition in an examination, but leave the public entity and
public employee wholly liable for failure to communicate the
result of the examination. The interests of the person examined
do not justify such a distinction. Each failure would leave
them just as ignorant of the hazardous condition. The resulting
injury and damages are the same for each failure.
Such an exception also would not serve the goals of
N.J.S.A. 59:6-4. Its provision of immunity encourages public
15 A-0643-14T4
health examinations. Public entities might not undertake such
examinations if the public entities risked exposure to
potentially substantial liability. If school boards could be
found liable for the full damages from any hazardous condition
they failed to communicate or to communicate adequately, the
boards would be reluctant to conduct such public health
examinations. The Legislature and State Board of Education
would be similarly reluctant to compel the boards do so. To
encourage public health examinations, N.J.S.A. 59:6-4 was
intended to provide "absolute immunity," Kemp, supra, 147 N.J.
at 300, not partial immunity that omits one step of a three-step
process.
Accordingly, we hold that N.J.S.A. 59:6-4's immunity
covering the "failure . . . to make an adequate physical and
mental examination" includes the failure to provide adequate
notification of the examination results. It thus covers failure
to comply with N.J.A.C. 6A:16-2.2(k)(6)'s requirement that
"[t]he school district shall notify the parent of any student
suspected of deviation from the recommended standard."
C.
Plaintiffs primarily assert that such notification is a
ministerial act, not a discretionary act. Based on that
premise, they conclude the public entity and public employee are
16 A-0643-14T4
liable under N.J.S.A. 59:2-3 and 59:3-2, respectively. The
trial court apparently agreed, citing N.J.S.A. 59:3-2 in ruling
that the TCA "does not provide immunity for Ms. Grasso's
conduct." We accept plaintiffs' premise, but not their
conclusion.
"[A] ministerial act is 'one which a person performs in a
given state of facts in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise of
his own judgment upon the propriety of the act being done.'"
S.P. v. Newark Police Dep't., 428 N.J. Super. 210, 231 (App.
Div. 2012). We agree that notification here was a ministerial
rather than a discretionary act. By providing that the school
district "shall notify the parent of any student suspected of
deviation from the recommended standard," N.J.A.C. 6A:16-
2.2(k)(6) gave the school district no discretion.
However, plaintiffs' argument contravenes the structure,
language, and intent of the TCA, which allows ministerial acts
to be immunized by specific provisions like N.J.S.A. 59:6-4. We
first examine the general provisions of the TCA in chapters two
and three.
Chapter two of the TCA addresses generally the liability
and immunity of public entities. "Except as otherwise provided
by this act, a public entity is not liable for an injury,
17 A-0643-14T4
whether such injury arises out of an act or omission of the
public entity or a public employee or any other person."
N.J.S.A. 59:2-1(a). 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. 59:2-2(a). However, "[a]ny liability
of a public entity established by this act is subject to any
immunity of the public entity." N.J.S.A. 59:2-1(b).
Chapter three of the TCA addresses generally the liability
and immunity of public employees. "Except as otherwise provided
by this act, a public employee is liable for injury caused by
this act or omission to the same extent as a private person."
N.J.S.A. 59:3-1(a). However, "[t]he liability of a public
employee established by this act is subject to any immunity of a
public employee provided by law." N.J.S.A. 59:3-1(b).
In chapters two and three, general provisions immunize
"[d]iscretionary activities." N.J.S.A. 59:2-3, 59:3-2. Those
sections declare that a public entity or a public employee "is
not liable for an injury resulting from the exercise of judgment
or discretion vested" in the entity or the employee,
respectively. N.J.S.A. 59:2-3(a), 59:3-2(a). However, those
sections provide that "[n]othing in this section shall exonerate
18 A-0643-14T4
a public entity [or a public employee] for negligence arising
out of acts or omissions . . . in carrying out . . . ministerial
functions." N.J.S.A. 59:2-3(d), 59:3-2(d). Thus, when no
provision of the TCA other than N.J.S.A. 59:2-3 or 59:3-2 could
provide immunity, "[t]he standard for liability under the TCA
depends on whether the conduct of individuals acting on behalf
of the public entity was ministerial or discretionary."
Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 490 (2014).
Importantly, N.J.S.A. 59:2-3(d) and 59:3-2(d) each provide
only that "[n]othing in this section" shall immunize ministerial
functions. (Emphasis added.) Thus, those sections in no way
prevent immunity from being granted by other sections of the
TCA. Moreover, chapter two and chapter three both provide that
their general allocation of immunity and liability governs
"[e]xcept as otherwise provided by this act." N.J.S.A. 59:2-
1(a), 59:3-1(a). Chapter two and chapter three also provide
that any liability of a public entity or a public employee
"established by this act is subject to any immunity" of the
public entity or public employee provided by law. N.J.S.A.
59:2-1(b), 59:3-1(b).
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
19 A-0643-14T4
immunity." Pico v. State, 116 N.J. 55, 62 (1989) (citations
omitted); see Rochinsky v. N.J. Dep't of Transp., 110 N.J. 399,
412 (1988). Both this court and the Supreme Court have ruled
that "acts of negligence, both discretionary and ministerial,
. . . even if not immunized by the general sections conferring
entity immunity (sections 2-2 and 2-3), [may] be immunized under
the specific provisions" of the TCA. Tice v. Cramer, 133 N.J.
347, 364-65 (1993); see, e.g., Malloy v. State, 76 N.J. 515, 520
(1978); S.P., supra, 428 N.J. Super. at 233. Where a section of
the TCA provides absolute immunity, "it immunizes absolutely all
negligence of the public entity or the public employee,"
regardless of "whether the negligence is discretionary or
ministerial." Tice, supra, 133 N.J. at 367.
The Supreme Court in Kemp addressed these precepts with
respect to N.J.S.A. 59:6-4. The Court noted that "[t]he TCA
includes both general provisions concerning immunity and
liability, see N.J.S.A. 59:2-3; N.J.S.A. 59:3-2, and specific
provisions that govern in particular factual contexts." Kemp,
supra, 147 N.J. at 307 (citing N.J.S.A. 59:6-1 to 6-7 ("Medical,
Hospital and Public Health Activities")). The Court cited
N.J.S.A. 59:6-4 as an example of a specific provision which
provides immunity for ministerial acts:
[W]here the Legislature saw fit to confer
absolute immunity for ministerial acts, it
20 A-0643-14T4
also did so in specified contexts. See
N.J.S.A. 59:6-4 (providing absolute immunity
in the context of examination for public
health purposes).
[Id. at 310.]
The Court thus indicated that the specificity of N.J.S.A.
59:6-4 trumped the generality of N.J.S.A. 59:2-3 and 59:3-2.
This view follows the "well-established rule that where two
statutes appear to be in conflict, and one is general in nature
and the other specific, the conflict is resolved in favor of the
more specific statute 'as a more precise manifestation of
legislative intent.'" State v. Gerald, 113 N.J. 40, 83 (1988).
Moreover, if a specific immunity provision's "meaning were
limited to discretionary governmental acts, the entire provision
would be surplusage, as [N.J.S.A. 59:2-3(a)] immunizes a public
entity from liability for discretionary activities." Malloy,
supra, 76 N.J. at 520.
Moreover, reading N.J.S.A. 59:6-4 to immunize all aspects
of public health examinations, whether discretionary or
ministerial, comports with its unqualified plain language.
N.J.S.A. 59:6-4 specifically provides absolute immunity for
"failure to make a physical or mental examination, or to make an
adequate physical or mental examination." It provides no
exception for ministerial acts.
21 A-0643-14T4
Furthermore, as set forth above, such an interpretation
better serves N.J.S.A. 59:6-4's goal to encourage such
examinations than would a construction that failed to immunize
all three steps of the examination process. Additionally,
reading N.J.S.A. 59:6-4 as immunizing only discretionary acts
would cause contradictions with its plain language. For
example, its language immunizing "the failure to make a physical
or mental examination" would dictate immunity, while a
ministerial acts exception would call for liability where such
an examination is required, as here. N.J.A.C. 6A:16-2.2(k)
("Each district board of education shall ensure that students
receive health screenings.").
By contrast, applying N.J.S.A. 59:6-4's plain language
providing absolute immunity effectuates the intent of the TCA.
"[T]he Legislature intended public entities to receive broad
immunity protection under the" TCA, and thus "an immunity
provision of the Act will trump an applicable liability
provision." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459
(2009); see Tice, supra, 133 N.J. at 355. Courts must
"recognize[] the precedence of specific immunity provisions,"
and ensure "the liability provisions of the Act will not take
precedence over specifically granted immunities." Weiss v. N.J.
Transit, 128 N.J. 376, 380 (1992). To "rule otherwise would be
22 A-0643-14T4
to ignore what is probably the clearest and most important
command of the [TCA], namely, that the immunities set forth in
the [TCA] prevail over any liabilities." Tice, supra, 133 N.J.
at 370-71 (citing N.J.S.A. 59:2-1(b) and 59:3-1(b)). "A
contrary conclusion could be reached only by ignoring the
language of the statute, the holdings of the cases [above], and
the basic policy of the Tort Claims Act." Sczyrek v. Cnty. of
Essex, 324 N.J. Super. 235, 245 (App. Div. 1999), certif.
denied, 163 N.J. 75 (2000).
We recognize certain provisions in the TCA have been held
not to grant immunity to ministerial acts. We held N.J.S.A.
59:7-2 does not immunize ministerial acts because the Comment
stated that chapter seven "'confers immunity upon public
employees and public entities for their discretionary acts in
the administration of the tax laws.'" Tontodonati v. City of
Paterson, 229 N.J. Super. 475, 482 (App. Div.) (quoting Comment
to N.J.S.A. 59:7-3), certif. denied, 117 N.J. 35 (1989). We
also have held N.J.S.A. 59:5-4 does not immunize ministerial
acts by police officers, because of a similar Comment, and
because the section gave no indication it was making a "major
change in prior law," which had provided for liability. Suarez
v. Dosky, 171 N.J. Super. 1, 8-10 (App. Div. 1979), certif.
23 A-0643-14T4
denied, 82 N.J. 300 (1980).8 Here, no prior law or Comment calls
for liability in contravention of the plain language of N.J.S.A.
59:6-4.
Our "conclusion is consistent with California precedents
interpreting California's comparable statute[,] Cal. Gov't Code
§ 855.6 (West 1996)," which in its text and its comment "is
virtually identical to N.J.S.A. 59:6-4." Kemp, supra, 147 N.J.
at 304. "Because our TCA was patterned after the California
Tort Claims Act of 1963, reference to California precedents
interpreting section 855.6 is appropriate." Ibid. Our Court
has stressed that "the interpretations of the California statute
by its judiciary, both before and after our Legislature's
enactment of the Tort Claims Act," are "particularly significant
to our interpretation of the [TCA]." Tice, supra, 133 N.J. at
361-62.
In Creason v. Department of Health Services, 957 P.2d 1323,
1325 (Cal. 1998), the plaintiffs claimed that the public entity
violated a "mandatory duty with respect to its development of
appropriate testing and reporting procedures" in a program
8
Cf. Rochinsky, supra, 110 N.J. at 412 (noting that N.J.S.A.
59:5-4 has "been found to cover ministerial as well as
discretionary acts," citing Wuethrich v. Delia, 155 N.J. Super.
324 (App. Div.), certif. denied, 77 N.J. 486 (1978)); see Pico,
supra, 116 N.J. at 62 (noting that general "liability [for
ministerial acts] yields to a grant of immunity" under N.J.S.A.
59:5-4, citing Wuethrich, supra, 155 N.J. Super. at 326).
24 A-0643-14T4
screening newborns for hereditary disorders. The California
Supreme Court held that even if the public entity making a
physical examination fails to carry out a mandatory statutory
duty which is not immunized by California's general
discretionary immunity statute, "section 855.6 provides specific
immunity" to non-discretionary acts. Id. at 1331. "If a
specific immunity statute applies, it 'cannot be abrogated by a
statute which simply imposes a general legal duty or
liability[.]'" Ibid.; see also Barner v. Leeds, 13 P.3d 704,
711 (Cal. 2000) (noting that if section 855.6 only immunized
acts of discretion also covered by California's general
discretionary immunity statute, "the additional immunity set
forth in section 855.6 would have been unnecessary"). The Court
concluded that immunity was required by the public policy
underlying § 855.6 and its comment:
"To provide the utmost public protection,
public entities should not be dissuaded from
engaging in such activities by the fear that
liability may be imposed if an employee
performs his duties inadequately. Far more
persons would suffer if government did not
perform these functions at all than would be
benefited by permitting recovery in those
cases where the government is shown to have
performed inadequately."
[Creason, supra, 957 P.2d at 1332.]
We are mindful of the serious allegation here that Rachel
lost her sight in one eye because of defendants' negligence in
25 A-0643-14T4
failing to perform a ministerial act. However, as our Supreme
Court recently stated in finding immunity from liability for
wrongful death, even where the facts "involve a profound
tragedy" and "evoke sympathy," the judiciary's focus must be "on
the meaning of a statute." Wilson, supra, 209 N.J. at 572, 573,
589. "The Legislature has chosen the means to achieve its
policy goals . . . . Our role is complete once we have made
clear the meaning of the law enacted by the Legislature." Id.
at 589.
We reverse the trial court's order denying summary
judgment, and remand for further proceedings consistent with
this opinion.
26 A-0643-14T4