Public entities got good news Tuesday when an appeals court ruled in a published opinion that they can’t be held liable for their 9-1-1 operators’ negligence.
The Appellate Division, in Turner v. Township of Irvington, A-5478-11, overturned a denial of summary judgment to a town sued over a delayed police response to a domestic dispute that left one person shot.
The panel found the town insulated, regardless of culpability, when N.J.S.A. 52:17C-10(d), which immunizes 9-1-1 operators for conduct not wanton or willful, is read with N.J.S.A. 59:2-10 of the Tort Claims Act, that immunizes entities for employees’ willful and wanton conduct.
Statutes that address the same subject “should be read in pari materia and construed together as a ‘unitary and harmonious whole,’” the court said.
The case stems from two episodes in 2005 involving plaintiff Erica Turner’s ex-boyfriend, Al Mutah Saunders. On April 4, after he was served with a domestic violence final restraining order, he appeared at her apartment with a gun and tried to force his way inside. For an hour, Turner and family members made numerous calls to 9-1-1 as Saunders continued to threaten her from outside. The police, who were not told that a gun was involved or that Saunders was in violation of a restraining order, did not arrive until nearly two hours after the first call, by which time he had left.
A week later, Saunders entered Turner’s apartment through a window, again wielding a gun. He threatened to kill her, then kidnapped her and their infant daughter, shooting Turner’s father in the leg outside the building in the process. He was arrested after a four-hour standoff with police.
Turner and her father sued Irvington and the two operators who were on duty, Anjeanette Monroig and James Flagler. The plaintiffs’ expert witness said police should have been sent after the first 9-1-1 call because Saunders was in violation of the final restraining order and that the operators failed to obtain as much information as possible during the  calls, to advise police of the calls and to recognize the situation as an emergency.
Irvington moved to dismiss, citing the lack of evidence of proximate causation between the failure of police to respond to the emergency calls, and the kidnapping and shooting. The town also cited a lack of wanton or willful conduct by its dispatchers.
Superior Court Judge Rachel Davidson denied the motion, finding the operators “narrowly” surpassed the provisions of the 9-1-1 statute by their repeated and inconsistent responses to calls for help by Turner and others.
But Appellate Division Judges Anthony Parrillo, Jack Sabatino and Susan Maven found that if the operators’ conduct was not found to constitute wanton and willful disregard for the safety of individuals, they and their employer were immune from civil damages under the 9-1-1 statute. And, if their actions were found to meet the wanton and willful standard, the township was not vicariously liable for their actions.
The plaintiffs argued that because the 9-1-1 statute was enacted in 1999, 27 years after the TCA, it was fair to assume the Legislature intended that public entities be liable for employees’ wanton and willful misconduct. But the appeals court found “nothing in the legislative history of the 9-1-1 immunity statute that indicates an intent to displace the immunity provisions of the TCA.”
When liability and immunity appear to exist, the latter trumps the former, the judges said. They distinguished Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558 (2012), which held that the 9-1-1 statute protects municipalities from vicarious liability for operators’ negligence but not for conduct that constitutes wanton and willful disregard for safety, since TCA immunity was not before the Wilson court.
Irvington’s lawyer, Robert Levy of Scarinci Hollenbeck in Lyndhurst, says, the decision means “immunity is the rule, not the exception.”
The plaintiffs’ lawyer, David Wendel of the Seruto Law Firm in West Orange, says that he and his clients have not yet discussed whether to appeal.