Henebema v. South Jersey Transportation Authority, A-3723-10T4; Appellate Division; opinion by Fasciale, J.A.D.; decided and approved for publication April 1, 2013. Before Judges Parrillo, Sabatino and Fasciale. On appeal from the Law Division, Atlantic County, L-964-07. [Sat below: Judge Kane.] DDS No. 36-2-9435 [43 pp.]

Janet Henebema filed this action pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, seeking compensation for pain, suffering and economic losses she experienced after she was injured in an accident at milepost 7.3 on the Atlantic City Expressway.

On that day, at least eight accidents occurred on the expressway between 3:05 a.m. and 4:28 a.m., due to unexpected poor weather conditions. Four New Jersey state troopers in two patrol cars were on duty patrolling a 44-mile length on the expressway.

The first of several 9-1-1 calls to South Jersey Transportation Authority dispatch operators, reporting four accidents at milepost 7.3 was made at 3:55 a.m. The troopers were unable to respond because they were at other accident scenes.

Ten to 15 minutes later, a second accident occurred at milepost 7.3. The troopers remained unable to respond. The Egg Harbor Township Police Department offered emergency assistance but the offer was rejected.

A third accident, involving plaintiff’s vehicle, occurred at 4:25 a.m.. A few minutes later, the fourth accident occurred, injuring plaintiff, who had been standing on the expressway. Troopers arrived at the scene at 4:43 a.m.

The SJTA dispatchers handled 88 transmissions during the relevant time period. Pursuant to New Jersey Standard Operating Procedure F41 (SOP 41), they received the 9-1-1 calls, obtained information, entered it into the computer-assisted dispatch system, and broadcast it to the troopers on duty. SOP 41 requires that troopers dispatched to the site of an emergency respond to the scene "as quickly as possible, by the most direct means." It also prioritizes calls for assistance.

At trial, the parties disputed the nature and import of SOP 41. James Aaron Williams, plaintiff’s expert in police procedures, testified that where the procedures indicated "shall" or "will," there was no discretion.

Plaintiff filed a $5 million offer of judgment against defendants. Defendants rejected the offer and the matter proceeded to trial.

Plaintiff contended that defendants failed to (1) accept the mutual aid offered by the Egg Harbor police; (2) split up the troopers into four police cars; (3) dispatch troopers properly; and (4) dispatch tow trucks timely. Although the parties sharply disagreed on the predicate facts regarding whether defendants’ actions were discretionary or ministerial, the judge determined that the alleged lapses involved ministerial acts that defendants were mandated to perform. He therefore charged the jury solely on ordinary negligence principles.

The jury awarded plaintiff $8,748,311.

On appeal, defendants argue, inter alia, that the judge erred by (1) failing to charge the jury on the palpably unreasonable standard required by N.J.S.A. 59:2-3(d); (2) allowing Williams to render a net opinion; and (3) denying their motion for a remittitur. Plaintiff cross-appeals, contending that the judge erred by denying her motion for prejudgment interest.

Held: When the evidence establishes a genuine issue of material fact regarding whether the alleged failures of a public entity were the result of discretionary decision-making as to how to use its resources or instead involved ministerial acts mandated by law or practice, that fact issue must be submitted to the jury. Because the judge settled that fact-laden dispute here and charged a potentially erroneous standard of care, the judgment on liability is reversed. The damage award and the denial of prejudgment interest are affirmed.

Immunity exists under the TCA for discretionary activities unless a public entity’s actions were palpably unreasonable. Ordinary negligence principles apply for a public entity’s performance of ministerial functions. Thus, the distinction is crucial to applying the correct standard of liability under the act.

Defendants contend that the judge usurped the jury’s function in deciding whether the predicate acts at issue were ministerial or discretionary and erred in charging only ordinary negligence standards.

The parties aggressively disputed whether defendants lacked discretion to accept mutual aid, split up the troopers, and timely dispatch troopers and tow trucks. There is evidence from which the jury could reasonably find that defendants exercised personal deliberations and judgment. If the jury were to find as such, then it would have to decide whether the decisions constituted a palpably unreasonable determination.

The panel holds that when, as here, the parties dispute the predicate facts necessary for deciding whether the conduct of a public entity was discretionary or ministerial conduct, that dispute requires submission to the jury.

The panel rejects defendants’ argument that in opining that defendants were required to seek out and accept mutual aid, Williams rendered a net opinion. Contrary to their assertion that the sole basis for his opinion was SOP 41, the panel finds that he based his opinion on SOP 41, accepted police industry standards and procedures, and the NJSP’s actual practice of accepting mutual aid and concludes that admission of his testimony was not error.

The panel also rejects defendants’ contention that the judge erred in denying their motion for remittitur. It considers plaintiff’s age, lifestyle, work history, and injuries and treatments and, giving deference to the judge’s "feel of the case," it concludes that the verdict was not so disproportionate to the injury and resulting disability as to shock the conscience.

Finally, the panel holds that the damage award should be preserved, despite its conclusion that a new trial on liability is warranted, since the disputed facts regarding the discretionary or ministerial nature of defendants’ actions are separate and distinct from plaintiff’s claim for damages.

As to plaintiff’s cross-appeal, the panel notes the tension between the offer-of-judgment rule and N.J.S.A. 59:9-2(a), which bars the accrual of prejudgment interest against a public entity. Citing the need for cooperation between the branches of government, it affirms the denial of prejudgment interest.

For appellants/cross-respondents — Stephen M. Orlofsky (Blank Rome; Orlofsky, Adrienne C. Rogove and Bruce M. Gorman Jr. on the brief). For respondent/cross-appellant — Christine D. Petruzzell (Wilentz, Goldman & Spitzer; Petruzzell, Alex Lyubarsky, Amy Herbold and Corinne McCann on the brief).