Rachel A. Parsons v. Mullica Township Board of Education(075859)

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).
Rachel A. Parsons v. Mullica Township Board of Education (A-69-14) (075859)
Argued April 12, 2016 -- Decided August 17, 2016
FERNDANDEZ-VINA J., writing for a unanimous Court.
In this appeal, the Court considers whether public entities and their employees are granted immunity pursuant to
the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:6-4, for failure to report the results of a preventative public health
examination.
Rachel A. Parsons (“Parsons”) was a student at the Mullica Township Elementary School from 2001
through 2004. Pursuant to public health initiatives, the school nurse administered visual acuity tests to all students.
In the 2001-02 academic year, Parsons failed the test in her right eye, but her parents were not notified. In 2004,
Parsons was given a second visual acuity test, which she also failed in her right eye. After the 2004 test, Parsons’s
parents were notified of the results from the first and second screenings. Parsons was subsequently diagnosed with
amblyopia in her right eye.
Nine years later, Parsons and her parents (collectively “plaintiffs”) filed a complaint against the Mullica
Township Board of Education (“Board of Education”) and the school nurse (collectively “defendants”). Plaintiffs
alleged that defendants breached their duty of care by failing to timely notify them of the results from the first screening
in violation of N.J.A.C. 6A:16-2.2(1)(6), which provides that local school boards must provide certain health screenings
to their students. On July 3, 2014, defendants moved for summary judgment. Defendants argued that they were
immunized pursuant to the TCA, N.J.S.A. 59:6-4, which provides immunity to public entities and their employees for
failing to conduct an adequate physical or mental examination for the purpose of determining whether the examinee has
a disease of a physical or mental condition. Defendants asserted that taking a person’s medical history, the visual acuity
testing itself, and the communication of the test results are encompassed by the definition of a physical examination, and
therefore, are afforded immunity under N.J.S.A. 59:6-4. Plaintiffs countered that the failure to communicate the results
of the visual acuity test was a separate and distinct act from the examination itself. Therefore, they claimed that the
defendants’ failure to report the results of the physical examination fell outside the purview of immunity under N.J.S.A.
59:6-4.
The trial court denied defendants’ motion for summary judgment, finding that N.J.S.A. 59:6-4 did not
immunize the nurse for failing to timely notify Parsons’s parents of the results from the first visual acuity test. The
trial court also found that the nurse’s actions exposed the Board of Education to liability because she was a public
employee acting within the scope of her duties at the time of the injury. Defendants were granted leave to file an
interlocutory appeal. In a published opinion, the Appellate Division reversed the trial court’s denial of summary
judgment. 440 N.J. Super. 79 (App. Div. 2015). The panel found that reporting the results of a physical or mental
examination was part of the examination itself, and, therefore, defendants were immune from liability. Quoting
Kemp by Wright v. State, 147 N.J. 294 (1997), the panel noted that immunity for public entities is the general rule
and liability is the exception. The panel observed that physical examinations involve a three-step process: (1)
arranging to have an examination; (2) conducting the examination; and (3) reporting the results of the examination.
The exceptions plaintiffs sought to carve out of N.J.S.A. 59:6-4 would excise from such examinations their
necessary concluding step. According to the panel, severing that connection would create an anomaly for the person
examined and would undermine N.J.S.A. 59:6-4’s aim of encouraging public health examinations.
This Court granted plaintiffs’ motion for leave to appeal. 223 N.J. 285 (2015).
HELD: The failure to timely communicate the results of a preventative public health examination falls within the
purview of N.J.S.A. 59:6-4. Therefore, defendants are immune from liability under the TCA. The Court further holds
that immunizing defendants under N.J.S.A. 59:6-4 does not render meaningless the provisions of N.J.A.C. 6A:16-
2.2(1)(6).
1. In 1972, the Legislature enacted the TCA to serve as a comprehensive scheme that seeks to provide compensation to
tort victims without unduly interfering with governmental functions and without imposing an excessive burden on
taxpayers. Except as otherwise provided by the TCA, a public entity is not liable for an injury, whether such injury
arises out of an act or omission of the public entity or public employee or any other person. The TCA’s immunities are
absolute and any ambiguities in their application must be resolved in favor of immunity. (pp. 13-15)
1
2. In Kemp, supra, the Court held that N.J.S.A. 59:6-4 is consistent with the TCA’s overarching principle of extending
absolute immunity to public entities. Kemp also held that N.J.S.A. 59:6-4 can be divided into two sections. The first
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. The second section establishes an exception to the general rule of absolute immunity if the examination is for the
purpose of treatment. Accordingly, the Court must first determine whether a visual acuity test constitutes a physical
examination pursuant to N.J.S.A. 59:6-4. The TCA does not explicitly define a physical examination or its components.
Since the legislative intent cannot be derived from the statute’s plain language, the Court looks to N.J.S.A. 59:6-4’s
legislative history. (pp. 15-16)
3. According to the Report of the Attorney General’s Task Force on Sovereign Immunity (1972)(the “Task Force
Report”), which was submitted to the Legislature with the draft TCA, the immunity granted in 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. The listed examinations were not intended to be exhaustive, but to serve as general
descriptions. The statute should be construed to embrace other illustrations that are similar in nature to those
enumerated. Accordingly, the Court concludes that a visual acuity test is a physical examination administered to
further the public health of students pursuant to N.J.S.A. 59:6-4. (pp. 16-18)
4. As to whether an adequate physical examination includes reporting the results of the examination to the patient or
the patient’s guardians, the Court observes that the TCA does not expressly define a physical examination or its
components. However, according to the American Medical Association, a physical examination includes history-
taking, which involves communicating with the patient at various points throughout the examination about her
physical or mental condition. An additional component of a physical examination involves the actual testing of a
patient. In the context of an eye examination, the Mayo Clinic has defined a complete eye examination to include a
series of tests designed to evaluate vision and check for eye diseases. A complete examination includes
communicating the results of testing to the patient. Thus, reporting the results of the examination to a patient is an
integral component of a complete eye examination. (pp. 18-20).
5. Since an adequate physical examination under N.J.S.A. 59:6-4 includes reporting the results of the examination, it
follows that reporting the results of a physical examination falls within the purview of the statute’s immunity.
Exposing public school boards to liability for failure to adequately communicate the results of a physical
examination would have a chilling effect on public entities that administer public health examinations and it would
be illogical to provide immunity for an inadequately performed examination, while imposing liability for the failure
to report the results of an examination to a patient. For those reasons, the Court holds that defendants are immune
from liability pursuant to N.J.S.A. 59:6-4. This holding comports with the Court’s prior decision in Reed v.
Bojarski, 166 N.J. 89, 91 (2001), in which it held that a complete physical examination includes communication of
the test results to the patient. (pp. 20-21)
6. The Court also holds that immunizing defendants under N.J.S.A. 59:6-4 does not render meaningless the
provisions of N.J.A.C. 6A:16-2.2(1)(6), which provide that local school boards must provide certain health
screenings, including visual acuity tests, to their students. In the event that a screening uncovers a deficiency, the
school district shall notify the parent of any student suspected of deviation from the recommended standard.
Plaintiffs argue that immunizing defendants under N.J.S.A. 59:6-4 for failing to timely inform Parsons’s parents of
her 2001-02 visual acuity test results renders meaningless the safeguards of N.J.A.C. 6A:16-2.2(1)(6). As the
appellate panel found, 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. (pp. 22-24)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-69 September Term 2014
075859
RACHEL A. PARSONS, a minor by
her parents and guardians ad
litem, HOWARD PARSONS and
MICHELLE PARSONS, and HOWARD
PARSONS and MICHELLE PARSONS,
individually,
Plaintiffs-Appellants,
v.
MULLICA TOWNSHIP BOARD OF
EDUCATION AND JUDITH M.
GRASSO, R.N., B.A., C.S.N.,
Defendants-Respondents,
and
SABAH AMIR, M.D. and WALTER
D. CRANE, D.O.,
Defendants.
Argued April 12, 2016 – Decided August 17, 2016
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 440
N.J. Super. 79 (App. Div. 2015).
Elliott J. Almanza argued the cause for
appellants (Goldenberg, Mackler, Sayegh,
Mintz, Pfeffer, Bonchi & Gill and Richard N.
Shapiro, a member of the Pennsylvania bar,
attorneys; Joseph E. Sayegh and Mr. Shapiro,
on the brief).
Thomas G. Smith argued the cause for
respondents.
1
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this appeal, the Court addresses whether public entities
and their employees are granted immunity pursuant to the New
Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:6-4, for failure to
report the results of a preventative public health examination.
Plaintiff was administered two visual acuity tests over an
approximately two-year period by her elementary school’s nurse.
Plaintiff failed both tests in her right eye, but her parents
were not informed of the test results until the completion of
the second test. Plaintiff’s private doctors subsequently
diagnosed her with amblyopia.1
Nine years later, plaintiff and her parents (collectively
“plaintiffs”) filed a complaint against the Mullica Township
Board of Education (“Board of Education”) and the elementary
school’s nurse (collectively “defendants”). Plaintiffs alleged
that defendants breached their duty of care by failing to timely
notify plaintiff’s parents of the results from the first
screening in violation of N.J.A.C. 6A:16-2.2(l)(6).2
1 “Amblyopia 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. This condition is also sometimes called lazy eye.”
Nat’l Eye Inst., Amblyopia,
https://nei.nih.gov/health/amblyopia.
2 On October 5, 2015, subsection (k) of N.J.A.C. 6A:16-2.2 was
recodified as subsection (1). While lower courts referred to
2
Defendants then moved for summary judgment, claiming
immunity pursuant to N.J.S.A. 59:6-4. This provision provides
immunity to public entities and their employees for failing to
conduct an adequate physical or mental examination for the
purpose of determining whether the examinee has a disease or a
physical or mental condition. Defendants asserted that taking a
person’s medical history, the visual acuity testing itself, and
the communication of the test results are encompassed by the
definition of a “physical examination,” and, therefore, are
afforded immunity under N.J.S.A. 59:6-4.
Plaintiffs countered that the failure to communicate the
results of the visual acuity test was a separate and distinct
act from the examination itself. Therefore, they contended that
the defendants’ failure to report the results of the physical
examination fell outside the purview of immunity under N.J.S.A.
59:6-4.
The trial court denied defendants’ motion for summary
judgment, finding that N.J.S.A. 59:6-4 did not immunize the
nurse for failing to timely notify plaintiff’s parents of the
results from the first visual acuity test. The trial court
further concluded that the nurse’s actions exposed the Board of
Education to liability because she was a public employee acting
the relevant portion of the statute as subsection (k), this
Court refers to its current form, subsection (1).
3
within the scope of her duties at the time of the injury.
Defendants were granted leave to file an interlocutory appeal.
In a published opinion, the Appellate Division reversed the
trial court’s denial of summary judgment. Parsons v. Mullica
Twp. Bd. of Educ., 440 N.J. Super. 79 (App. Div. 2015). The
Appellate Division found that reporting the results of a
physical or mental examination was part of the examination
itself, and, therefore, defendants were immune from liability
under N.J.S.A. 59:6-4.
We now address whether a public entity’s failure to timely
communicate the results of a preventative public health
examination is immunized pursuant to N.J.S.A. 59:6-4. This
determination requires an analysis of the components of a
physical examination and an exploration of whether the
Legislature intended to immunize a public entity for the failure
to communicate the results of an examination under the TCA.
For the reasons that follow, we conclude that the failure
to timely communicate the results of a preventative public
health examination falls within the purview of N.J.S.A. 59:6-4.
Therefore, we hold that defendants are immune from liability
under the TCA, and affirm the judgment of the Appellate
Division.
I.
4
Rachel A. Parsons was a student at the Mullica Township
Elementary School from 2001 through approximately 2004. During
that time, the school was operated by the Board of Education.
Pursuant to public health initiatives, Judith M. Grasso, R.N.,
C.S.N., the school nurse, administered visual acuity tests to
all students.
In the 2001-02 academic year, Parsons failed the test in
her right eye. However, her parents were not notified of this
deficiency. In 2004, Parsons was given a second visual acuity
test, which she also failed in her right eye. After the 2004
test, Parsons’s parents were notified of the results from the
first and second screenings. Parsons was subsequently diagnosed
with amblyopia in her right eye, a condition that went
undetected by her private doctors before and after the first
screening.3
In November 2013, Parsons, then seventeen years old, and
her parents filed a complaint against the Board of Education and
Grasso. Plaintiffs alleged that defendants breached their duty
to timely notify Parsons’s parents of the earlier test results
pursuant to N.J.A.C. 6A:16-2.2(l)(6).
3 Plaintiffs also filed claims against the private doctors for
failing to perform adequate vision screening and to properly
diagnose and treat her amblyopia. Those claims are not part of
this appeal.
5
A.
On July 3, 2014, defendants moved for summary judgment.
Defendants argued, among other things, that they were immunized
pursuant to the TCA, N.J.S.A. 59:6-4, which provides immunity to
public entities and public employees for the failure to make
adequate physical or mental examinations for the purpose of
determining whether the examinee has a disease or a physical or
mental condition. Defendants emphasized that the visual acuity
test and the communication of the examination’s results are
integral components of a “physical examination,” which is
immunized under N.J.S.A. 59:6-4.
In opposition, plaintiffs argued that defendants’ failure
to disclose the results of the visual acuity test was a separate
and distinct act from the physical examination. Plaintiffs
maintained that consequently, the failure to report the results
of the visual acuity test should not be afforded immunity under
N.J.S.A. 59:6-4 because it fell outside of the definition of a
“physical examination.” Accordingly, plaintiffs contended that
the failure to communicate the results should be considered a
ministerial act, which is not afforded immunity pursuant to
N.J.S.A. 59:3-2. Plaintiff’s also argued that Grasso was not
immune from liability because N.J.S.A. 18A:40-4.5 applies only
to scoliosis screenings.
6
In August 2014, the trial court denied defendants’ motion
for summary judgment by order and written opinion. Viewing the
pleadings and available evidence in the light most favorable to
plaintiffs, the trial court concluded that defendants were not
immunized under the TCA for Grasso’s failure to timely disclose
the results of the 2001-02 visual acuity test to Parsons’s
parents. Specifically, the trial court found that the visual
acuity test was “an examination or diagnosis for the purpose of
treatment,” and, therefore, defendants were not entitled to
immunity under N.J.S.A. 59:6-4. Finally, the trial court found
that N.J.S.A. 18A:40-4.5 immunizes school nurses from liability
only for scoliosis examinations but not other health screenings.
B.
The Appellate Division granted defendants’ motion for leave
to appeal and reversed the trial court’s denial of summary
judgment. Parsons, supra, 440 N.J. Super. at 82. The panel
held that a visual acuity test constitutes a “physical
examination” under N.J.S.A. 59:6-4. Id. at 89. The panel
reiterated that “immunity for public entities is the general
rule and liability is the exception.” Parsons, supra, 440 N.J.
Super. at 85 (quoting Kemp by Wright v. State, 147 N.J. 294, 299
(1997)). Further, the Appellate Division noted that N.J.S.A.
59:6-4’s legislative history, and specifically, the Report of
the Attorney General’s Task Force on Sovereign Immunity (1972)
7
(the “Task Force Report”), was evidence of the Legislature’s
intent to immunize public entities for failure to perform
adequate public health examinations, such as eye examinations
for public health purposes. Id. at 87-88.
Second, the panel opined that an “adequate physical
examination” under N.J.S.A. 59:6-4 includes reporting the
examination’s results. Id. at 89-90. The Appellate Division
noted, “[i]n 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 exceptions plaintiffs seek to carve out of
N.J.S.A. 59:6-4 would excise from such examinations their
necessary concluding step.” Ibid. The panel held that
“[s]evering that connection would create an anomaly for the
person examined” and would undermine N.J.S.A. 59:6-4’s aim of
encouraging public health examinations. Id. at 90-91.
Further, the Appellate Division emphasized that even though
“a public entity is generally liable for the ordinary negligence
of its employees in [the] performance of ministerial duties,
[N.J.S.A. 59:2-3 and N.J.S.A. 59:2-3(d)], that liability yields
to a grant of immunity.” Id. at 93 (quoting Pico v. State, 116
N.J. 55, 62 (1989) (citing Rochinsky v. N.J. Dep’t of Transp.,
110 N.J. 399, 412 (1988)). Citing to the Court’s holding in
Kemp, the Appellate Division concluded that the specific
8
immunity for public health screenings under N.J.S.A. 59:6-4
superseded the general liability for negligent ministerial acts
under N.J.S.A. 59:2-3 and 59:3-2. Id. at 94. The panel noted
that its view followed 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.’” Ibid. (quoting State v. Gerald, 113 N.J.
40, 83 (1988)).
This Court granted plaintiffs’ motion for leave to appeal.
223 N.J. 285 (2015).
II.
A.
Plaintiffs argue that the Appellate Division “rewrote”
N.J.S.A. 59:6-4 and, in doing so, ignored the statute’s plain
language and the canons of statutory interpretation by creating
an unsupported “three-step” definition of “physical
examination.” Plaintiffs assert that “[a] survey of medical
reference dictionaries confirms that . . . the definition of
‘physical examination’ does not encompass what occurs after the
examination is complete, namely, notification or reporting of
the results.”
Further, plaintiffs maintain that the plain language of
N.J.S.A. 59:6-4 grants immunity only for the failure to conduct
9
a physical examination or to execute an adequate examination.
Because the statute’s language was clear on its face, plaintiffs
allege that the Appellate Division improperly considered
N.J.S.A. 59:6-4’s legislative history and commentary in
violation of the canons of statutory interpretation. Plaintiffs
also contend that N.J.S.A. 59:6-4’s legislative history and
commentary do not support the Appellate Division’s extension of
immunity to defendants.
Plaintiffs also argue that Kemp does not attach “absolute
immunity” to a public entity’s failure to communicate the
results of a physical or mental examination under N.J.S.A. 59:6-
4. Instead, plaintiffs contend that Kemp only immunizes a
public entity for the failure to perform an adequate physical or
mental examination. Plaintiffs claim that the immunity provided
by the Appellate Division’s three-step test would render the
State’s medical reporting laws meaningless and allow public
health entities to disregard reporting requirements.
Plaintiffs contend that it is not an anomaly to excuse a
public entity from liability for failure to conduct an
examination or execute an adequate examination, while attaching
liability for failure to communicate the results of an
examination. Plaintiffs submit that imposing liability on
public entities advances public policy because it ensures that
10
resources are being used efficiently and protects the interests
and expectations of the examinee.
Finally, plaintiffs argue that immunizing defendants from
liability pursuant to N.J.S.A. 59:6-4 would “render meaningless”
the safeguards in N.J.A.C. 6A:16-2.2(l)(6) because there would
be no statutory enforcement mechanism to ensure compliance.
Paper Mill Playhouse v. Millburn Twp., 95 N.J. 503, 521-22
(1984); Zimmerman v. Bd. of Review, 132 N.J. Super. 316, 322-23
(App. Div. 1975).
B.
Defendants assert that visual acuity tests and
communication of the test results are encompassed by N.J.S.A.
59:6-4’s definition of a “physical examination,” and thus,
defendants are immunized from liability. Defendants stress that
plaintiffs’ argument is flawed because excluding the reporting
of an examination’s results from the definition of a “physical
examination” runs contrary to a patient’s common expectation of
discussing their results with a medical professional. Further,
defendants maintain that visual acuity tests are preventative
public health examinations and not examinations that render
medical treatment. Therefore, visual acuity tests fall within
the purview of immunity under N.J.S.A. 59:6-4 because they
promote public health.
11
Defendants argue that this interpretation does not
“rewrite” or expand N.J.S.A. 59:6-4. Defendants contend that
the Appellate Division properly determined that N.J.S.A. 59:6-
4’s legislative history, including the Task Force Report,
reveals the Legislature’s conclusion that the reporting of
results is expected as part of a “physical examination,” such as
a visual acuity screening.
Defendants also maintain that the Appellate Division
properly relied on Kemp to impose immunity under N.J.S.A. 59:6-
4. Specifically, defendants assert that Kemp, supra, held 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
[to N.J.S.A. 59:6-4].” 147 N.J. at 303. Therefore, defendants
assert that Kemp held that the Legislature intended for the
listed examples in the Comment to N.J.S.A. 59:6-4 to serve as
general descriptions and “be construed to embrace only other
illustrations that are similar in nature to those enumerated.”
Ibid. Accordingly, defendants rely on Kemp to support their
argument that the visual acuity tests and the disclosure of the
test results are encompassed by N.J.S.A. 59:6-4’s definition of
a “physical examination.”
12
Further, defendants assert that N.J.A.C. 6A:16-2.2(l)(6) is
a regulation promulgated by the State Department of Education,
and, therefore, does not control the interpretation of N.J.S.A.
59:6-4. Defendants also argue that immunizing a public entity
or its employees under N.J.S.A. 59:6-4 does not render N.J.A.C.
6A:16-2.2(l)(6) without an enforcement mechanism for ensuring
compliance. Specifically, defendants note that the Department
of Education possesses separate enforcement mechanisms to ensure
compliance with the regulation.
III.
This Court evaluates plaintiffs’ claim by first considering
the plain language of the statute in question. State v. Frye,
217 N.J. 566, 575 (2014); State v. Marquez, 202 N.J. 485, 499
(2010). The fundamental objective of statutory interpretation
is to identify and promote the Legislature’s intent. State v.
Gelman, 195 N.J. 475, 482 (2008) (citing DiProspero v. Penn, 183
N.J. 477, 492 (2005)). “In most instances, the best indicator
of that intent is the plain language chosen by the Legislature.”
State v. Gandhi, 201 N.J. 161, 176 (2010) (citing DiProspero,
supra, 183 N.J. at 492).
When the statutory language is clear on its face, this
Court’s interpretive process ceases, and our sole function is to
enforce the statute in accordance with its terms. State v.
Lenihan, 219 N.J. 251, 262 (2014); Frye, supra, 217 N.J. at 575.
13
In executing this function, this Court reads the Legislature’s
chosen words “with[in] their context” and gives them “their
generally accepted meaning.” N.J.S.A. 1:1-1. Courts may not
“rewrite a plainly-written enactment of the Legislature nor
presume that the Legislature intended something other than that
expressed by way of the plain language.” O’Connell v. State,
171 N.J. 484, 488 (2002); see also Frye, supra, 217 N.J. at 575.
However, if a statute’s plain language is ambiguous or
subject to multiple interpretations, this Court “may consider
extrinsic evidence including legislative history and committee
reports.” Marquez, supra, 202 N.J. at 500; Wilson v. City of
Jersey City, 209 N.J. 558, 572 (2012).
A.
In reviewing plaintiffs’ TCA claim, this Court is guided by
the principle that “immunity for public entities [under the TCA]
is the general rule and liability is the exception.” Kemp,
supra, 147 N.J. at 299; see also D.D. v. Univ. of Med. &
Dentistry of N.J., 213 N.J. 130, 134 (2013).
In 1972, the Legislature enacted the TCA to serve as “a
comprehensive scheme that ‘seeks to provide compensation to tort
victims without unduly interfering with governmental functions
and without imposing an excessive burden on taxpayers.’”
Bernstein v. State, 411 N.J. Super. 316, 331 (2010) (quoting
Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546, 552
14
(2000)). “Except as otherwise provided by [the TCA], a public
entity is not liable for an injury, whether such injury arises
out of an act or omission of the public entity or public
employee or any other person.” N.J.S.A. 59:2-1(a). The TCA’s
immunities are absolute and any ambiguities in their application
must be resolved in favor of immunity, not liability. See
Kyriakos v. N.J. Dep’t of Human Servs., 216 N.J. Super. 308, 312
(App. Div.), certif. denied, 108 N.J. 182 (1987); Perona v. Twp.
of Mullica, 270 N.J. Super. 19, 30 (App. Div. 1994).
Under the TCA, a “public entity” has been defined to
include any “district, public authority, public agency, and any
other political subdivision or public body in the State.”
N.J.S.A. 59:1-3. Similarly, the Legislature defined a “public
employee” to encompass any person in the employ of a public
entity and “an[y] officer, employee, or servant, whether or not
compensated or part-time, who is authorized to perform any act
or service” for a public entity. N.J.S.A. 59:1-3.
The statute in question, N.J.S.A. 59:6-4, provides as
follows:
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
15
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.
In Kemp, supra, the Court held that N.J.S.A. 59:6-4 is
consistent with the TCA’s overarching principle of extending
absolute immunity to public entities. 147 N.J. at 300. Kemp
also held that N.J.S.A. 59:6-4 can be divided into two sections.
Ibid. “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 immunity if the examination is ‘for the purpose of
treatment.’” Ibid. (quoting N.J.S.A. 59:6-4).
Accordingly, we must first determine whether a visual
acuity test constitutes a “physical examination” pursuant to
N.J.S.A. 59:6-4. The TCA does not explicitly define a “physical
examination” or its components. Because the legislative intent
cannot be derived from the statute’s plain language, we turn to
N.J.S.A. 59:6-4’s legislative history.
The Task Force Report was submitted to the Legislature with
the draft TCA. Del Tufo v. Twp. of Old Bridge, 278 N.J. Super.
16312, 323 (App. Div. 1995), aff’d, 147 N.J. 90 (1996). The Task
Force Report included the following section that was later
reprinted as a Comment to N.J.S.A. 59:6-4:
The immunity granted [in this provision]
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.
It does not apply to examinations for the
purpose of treatment such as are ordinarily
made in doctors’ offices and public hospitals.
[Comment to N.J.S.A. 59:6-4.]
In 1983, the Comment was amended to specifically provide
immunity for matters “pertain[ing] to the failure to perform
adequate public health examinations, such as tuberculosis,
scoliosis, hearing, eye, mental, and other examinations for
public health purposes.” S. Labor, Indus. & Professions Comm.
Statement to S. No. 524 (1982). However, as this Court
determined in Kemp, supra, the listed examinations in the
Comment to N.J.S.A. 59:6-4 were not intended to be exhaustive.
147 N.J. at 303. Instead, Kemp instructed that the listed
examples should serve as general descriptions and the statute
“must be construed to embrace only other illustrations that are
similar in nature to those enumerated.” Ibid.
Therefore, in accordance with our decision in Kemp, we
conclude that a visual acuity test is a “physical examination”
17
administered to further the public health of students pursuant
to N.J.S.A. 59:6-4. According to the Comment to N.J.S.A. 59:6-
4, the Legislature immunized public entities for “the failure to
perform adequate public health examinations such as public
tuberculosis examinations . . . and eye examinations.” Here,
the parties do not dispute that the visual acuity tests were
designed to promote public health -- specifically, ocular
wellness in students. Further, the visual acuity tests
administered to Parsons and her classmates were not conducted
“for the purpose of treatment such as are ordinarily made in
doctors’ offices and public hospitals”; they were merely
preventative screenings.
We further conclude that visual acuity tests are similar in
nature to “public tuberculosis examinations” and “eye
examinations,” and thus fit soundly within the definition of
“physical examination” under N.J.S.A. 59:6-4.
B.
Next, we must determine whether an “adequate physical
examination,” pursuant to N.J.S.A. 59:6-4, includes reporting
the results of the examination to the patient or the patient’s
guardians. The TCA does not expressly define a “physical
examination” or its components, so we must turn again to
secondary sources to inform our decision.
18
The American Medical Association defines “physical
examination” as
[a] thorough study of a person’s state of
health. The physical examination typically
follows history-taking, in which a doctor
listens to a person’s concerns and asks
questions. Examination usually includes
inspection, palpation (direct feeling with the
hand), percussion (striking parts of the body
with short, sharp taps and feeling and
listening to subsequent vibrations), and
auscultation (listening with a stethoscope).
If a person reports symptoms, the doctor will
attempt to determine their cause. Tests may
also be ordered to aid in diagnosis. One main
objective of regular physical examinations,
conducted at frequent intervals even when a
person is feeling well, is the early detection
of disease.
[Am. Med. Ass’n Complete Med. Encyc. 531 (20th
ed. 2003).]
Thus, a physical examination includes history-taking, which
involves communicating with the patient at various points
throughout the examination about her physical or mental
condition.
An additional component of a “physical examination”
involves the actual testing of a patient. Testing includes the
physical inspection of a patient’s body by hand or medical
device. In the specific context of an eye examination, the Mayo
Clinic has defined a complete eye examination to include
a series of tests designed to evaluate your
vision and check for eye diseases. Your eye
doctor may use a variety of instruments, shine
bright lights directly at your eyes and request
19
that you look through an array of lenses. Each
test during an eye exam evaluates a different
aspect of your vision or eye health.
[Mayo Clinic Staff, Overview, Eye Exam, Mayo
Clinic, http://www.mayoclinic.org/tests-
procedures/eye-exam/home/ovc-20189446.
(last visited Aug. 4, 2016).]
Prior to its conclusion, a complete examination includes
communicating the results of testing to the patient. The Mayo
Clinic states,
[a]t the end of your eye exam, you and your
doctor will discuss the results of all testing,
including an assessment of your vision, your
risk of eye disease and preventive measures you
can take to protect your eyesight.
[Mayo Clinic Staff, Results, Eye Exam, Mayo
Clinic, http://www.mayoclinic.org/tests-
procedures/eye-exam/details/results/rsc-
20189727.
(last visited Aug. 4, 2016).]
Thus, it follows that reporting the results of the
examination to a patient is an integral component of a complete
eye examination. Further, the communication of the results of
an examination to a patient is consistent with the patient’s
reasonable expectation that a medical professional will explain
the diagnosis and any relevant treatment options before leaving
the medical center.
We hold that an “adequate physical examination” under
N.J.S.A. 59:6-4 includes reporting the results of the
examination. Consequently, reporting the results of a physical
20
examination falls within the purview of N.J.S.A. 59:6-4’s
immunity. Further, our holding is supported by public policy
considerations. Exposing public school boards to full or
partial liability for failure to adequately communicate the
results of a physical examination would have a chilling effect
on public entities that administer public health examinations.
Such a result would undermine the overarching purpose of
preventative physical examinations -- to foster public health
and wellness. Finally, we conclude that it would be illogical
to provide immunity for an inadequately performed examination,
while imposing liability for the failure to report the results
of an examination to a patient. For those reasons, we hold that
defendants are immune from liability pursuant to N.J.S.A. 59:6-
4.
Our holding today comports with this Court’s prior decision
in Reed v. Bojarski, 166 N.J. 89, 91 (2001), in which the court
observed that a complete physical examination includes
communication of the test results to the patient. In Reed, this
Court considered whether a medical professional owed a patient a
non-delegable duty of care to disclose the results of a pre-
employment screening. Ibid. Two healthcare providers
administered physical examinations to a construction company’s
employees, which included chest x-rays. Id. at 91-92. One of
the x-rays revealed an abnormality in an employee’s chest;
21
however, the medical professionals did not inform him of this
discovery. Id. at 92. Six months later, he was diagnosed with
terminal cancer and died. Id. at 92-93.
This Court held that “when a person is referred to a
physician for a pre-employment physical, a physician-patient
relationship is created at least to the extent of the
examination, and a duty to perform a professionally reasonable
and competent examination exists.” Id. at 105. This Court
opined that “included within the notion of a reasonable and
competent examination is the need to ‘take reasonable steps to
make information available timely to the examinee of any
findings that pose an imminent danger to the examinee’s physical
or mental well-being.’” Ibid. (quoting Rainer v. Frieman, 294
N.J. Super. 182, 191 (App. Div. 1996)).
C.
We also hold that immunizing defendants under N.J.S.A.
59:6-4 does not “render meaningless” the provisions of N.J.A.C.
6A:16-2.2(1)(6). N.J.A.C. 6A:16-2.2(1) provides that local
school boards must provide certain health screenings, including
visual acuity tests to their students. “Screenings for vision
acuity shall be conducted biennially for students in
kindergarten through grade [ten].” N.J.A.C. 6A:16-2.2(l)(2).
The “[s]creenings shall be conducted by a school physician,
school nurse, or other school personnel properly trained.”
22
N.J.A.C. 6A:16-2.2(1)(5). In the event that a screening
uncovers a deficiency, “[t]he school district shall notify the
parent of any student suspected of deviation from the
recommended standard.” N.J.A.C. 6A:16-2.2(1)(6).
Plaintiffs argue that immunizing defendants under N.J.S.A.
59:6-4 for failing to timely inform Parsons’s parents of her
2001-02 visual acuity test results “renders meaningless” the
safeguards of N.J.A.C. 6A:16-2.2(1)(6). Plaintiffs contend that
“constructions of statutes and administrative code that render
meaningless language in other statutes or code are strongly
disfavored.” For support, plaintiffs rely on Paper Mill
Playhouse, supra, 95 N.J. 503, and Zimmerman, supra, 132 N.J.
Super. 316.
However, Paper Mill Playhouse involved the interpretation
of contradictory sections within the same statutory provision or
regulation. Here, by contrast, we are faced with an
inconsistency between a statutory provision and its associated
administrative regulation, not the interpretation of a statutory
provision in conjunction with other related statutory
provisions. In such instances,
[d]espite the presumptions and weight accorded
a duly enacted administrative regulation . .
. [it] must often coexist alongside provisions
of superior legal effect, namely state
statutes. Statutes, when they deal with a
specific issue or matter, are the controlling
authority as to the proper disposition of that
23
issue or matter. Thus, any regulation or rule
which contravenes a statute is of no force,
and the statute will control.
[Terry v. Harris, 175 N.J. Super. 482, 496
(App. Div. 1980).]
Further, as the Appellate Division noted:
[R]egulations 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.
[Parsons, supra, 440 N.J. at 88-89.]
Therefore, we conclude that extending immunity to
defendants under N.J.S.A. 59:6-4 does not “render meaningless”
N.J.A.C. 6A:16-2.2(1)(6).
IV.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
FERNANDEZ-VINA’s opinion.
24