Massachi v. City of Newark Police Department, A-5252-07T1; Appellate Division; opinion by Baxter, J.A.D.; decided and approved for publication August 4, 2010. Before Judges Lisa, Baxter and Alvarez. On appeal from the Law Division, Essex County, L-4487-02. DDS No. 31-2-8923 [48 pp.]

The issue is whether N.J.S.A. 52:17C-10, commonly known as the 9-1-1 immunity statute, provides immunity to employees of defendant Newark’s 9-1-1 emergency communications center for the employees’ bungled response to a call for emergency police assistance.

On May 10, 2000, two high school girls saw Christopher Honrath force Sohayla Massachi, who was screaming and crying for help, into his car. The girls reported the incident and the car’s license plate number to an Argenbright Security guard at Seton Hall University. Because the incident did not occur on university property, the girls telephoned the South Orange Police Department to report the abduction and provided the license plate number and a description of the car and its occupants.

Two off-duty Essex County Sheriff’s Officers, Melissa Lester and Elwood Thompson, also witnessed Honrath pull Massachi into his car. Lester called 9-1-1, and the call was routed to the city’s 9-1-1 emergency communications center. Lester provided a description of the incident, the car, and the car’s direction of travel to 9-1-1 operator Debony Venable. Although Venable was unsure how to handle the call, she consulted a co-worker instead of her supervisor, as was required by police department guidelines. Venable put the information into the 9-1-1 computer system, but failed to note the last known location of Honrath’s car or that the car was in motion; misidentified the car; failed to record the vehicle’s path of travel, which resulted in a police unit being erroneously dispatched to the original location; and failed to keep Lester on the line so that Lester would be able to update the responding units on the vehicle’s path of travel.

Dispatcher George Mike “ran” the license plate and printed out the name and address of the vehicle’s owner, Honrath. However, although Mike was required by police procedures to also issue a general alert to all Newark police units and to neighboring municipalities, he failed to do so. Mike also had the capacity to contact Westfield police, where Honrath lived, but did not do so.

A short time later, Westfield police were notified by Gary Powell, who shared a Westfield house with Honrath, that Honrath had pulled a woman into his room and that she was screaming that Honrath had a gun. Westfield police responded to the house, knocked on Honrath’s door, and yelled “police.” Two gunshots were then heard from inside Honrath’s room. The emergency response team found Honrath dead and Massachi unconscious with a bullet wound to the head; Massachi was transported to a Newark hospital, where she died two days later.

After an Essex County judge denied the city’s motion for summary judgment by concluding that the 9-1-1 statute did not provide immunity, the case proceeded to trial, resulting in a jury award of $5.512 million to plaintiff, the estate of Sohayla Massachi.

Held: N.J.S.A. 52:17C-10 does not afford immunity to a 9-1-1 emergency communications center and to its employees for the negligent rendering of 9-1-1 services.

The city argues that the Law Division’s denial of its motion for judgment under the 9-1-1 immunity statute was error because both N.J.S.A. 52:17C-10(d) and (e) provide immunity for the type of negligent acts and omissions that Venable and Mike committed. The city maintains that subsection (d) provides immunity to a public safety answering point (PSAP) such as Newark’s 9-1-1 emergency communications center for a wide array of design or mechanical failures at a PSAP and for “any other aspect of delivering enhanced 9-1-1 service, wireless 9-1-1 service or wireless enhanced 9-1-1 service.” The city relies heavily on the immunity from liability for errors in “delivering” PSAP services. The city also relies on subsection (e), which immunizes a PSAP for errors committed while providing assistance to any law enforcement officer.

Examining the legislative history and the 1999 amendments to N.J.S.A. 52:17C-10, the appellate panel rejects the city’s argument that interpreting the phrase “or any other aspect of delivering enhanced 9-1-1 service” as meaning only the mechanical delivery of services would narrow the immunity that was contained in the 1989 version of the statute. The Legislature’s goal of providing enhanced emergency response capability to the citizens of this state would not have been advanced by a statute that immunized municipalities from liability for the mishandling, or the bungling, of an emergency call.

The appellate panel finds the immunity N.J.S.A. 52:17C-10(d) affords PSAPs and their employees is limited to negligence in the mechanical delivery of 9-1-1 services, such as errors or omissions in the operation, maintenance, design or performance of the 9-1-1 telephone equipment. Subsection (d) does not provide immunity from the consequences of a PSAP’s negligence in responding to a request for emergency services, and does not provide immunity for negligence in the way the PSAP employees input the information received from the caller and the way they dispatch police units in immediate response to the 9-1-1 call. Nor does subsection (e) afford any benefit to the city here. The negligence did not arise while providing “assistance to law enforcement … in connection with any lawful investigation by or other law enforcement activity of the law enforcement officer.”

Therefore, the Law Division correctly denied the city’s motion to dismiss plaintiff’s complaint. However, the panel agrees that the court erred in its omission of special jury interrogatories asking the jury to apportion damages, which had a clear capacity to produce an unjust result. The panel, therefore, reverses the order entering judgment in plaintiff’s favor and remands for a new trial; however, as the error did not affect the quantum of damages, the retrial shall be limited to liability and proximate cause.

— By Debra McLoughlin

For appellant/cross-respondent — Cindy Nan Vogelman (Chasan Leyner & Lamparello; Vogelman and Maria P. Vallejo on the briefs). For respondents/cross-appellants — Brian J. Levine (Brenner & Levine; Levine and Robert E. Brenner on the briefs).