The Appellate Division has ordered a new trial on liability in an $8.7 million auto injury case after ruling that two state agencies were wrongly granted sovereign immunity.
The appeals court found that a Superior Court judge in Atlantic County erroneously dismissed the New Jersey State Police and the South Jersey Transportation Authority from a suit over a 2005 crash in which Janet Henebema’s right leg was severed.
The panel said Superior Court Judge James Savio of Atlantic County failed to carry out remand instructions from the Supreme Court and that Savio misapplied a key Supreme Court ruling on sovereign immunity from January, Royster v. N.J. State Police.
The suit claimed that 911 dispatchers for the SJTA failed to properly notify the state police of a series of collisions that occurred on the Atlantic City Expressway during a winter storm. The suit also cited a decision by the state police declining help from local police agencies when the storm brought numerous crashes.
Henebema’s car crashed into the left median after she came upon a group of five other vehicles that had crashed. She was initially trapped but managed to extricate herself and was standing behind her car when another vehicle came along and struck her car, pinning her between the vehicles and causing a traumatic amputation at her right knee.
One of the SJTA’s operators notified the state police on receiving a call about the first vehicle in the group striking the left guardrail and coming to rest in a travel lane. But as successive calls came in a few minutes apart about other vehicles becoming involved a multicar crash at the scene, the operators did not update the state police about the mounting severity of the incident, according to plaintiffs lawyer Ralph Paolone.
A jury awarded $8.7 million to Henebema in 2010. The state defendants appealed, and the Appellate Division ordered a new trial on liability, finding the trial judge gave a faulty jury instruction on the threshold issue of whether the defendants’ alleged failures were the result of discretionary decision-making over how to deploy their resources or involved ministerial acts mandated by law and practice.
Henebema’s case then headed to the Supreme Court, which affirmed the Appellate Division and sent the case back to Atlantic County.
While the remand was pending, the Supreme Court issued the Royster decision, which held that state sovereign immunity precluded a claim under the Americans With Disabilities Act.
Lawyers for the SJTA and the state police, instead of retrying the case as instructed, moved for summary judgment under defenses that were not raised before. The defendants argued that they were entitled to immunity not under the general doctrine of state sovereign immunity, but under statutes withholding public entity liability for failure to provide police protection and granting immunity to 911 operators for conduct that is not wanton and willful.
On appeal, Judges Douglas Fasciale, Thomas Sumners Jr. and Scott Moynihan said that defendants had waived the new affirmative defenses, since they were raised for the first time 10 years after the accident. That period, the panel noted, “included three years of extensive pretrial litigation, a lengthy and expensive trial, an appeal to us, and an appeal to the Supreme Court. We conclude that defendants waived the new affirmative defenses, reverse the orders, and re-remand for a liability trial on an expedited basis due to the age of this case.”
Fasciale, writing for the court, added that ”The principles of law outlined in Royster did not authorize defendants to raise the new affirmative defenses belatedly, and file their post-appeal motions. Royster is a completely different case.”
Unlike this case, the court said, Royster dealt with the defendants’ reliance on the doctrine of state sovereign immunity to dismiss the plaintiff’s state claims under the ADA.
Paolone, a solo practitioner in Galloway, was pleased with the court’s decision, which he said puts his client in the same posture as at the first trial, since the court rejected the application of Royster and the statutory defenses.
Stephen Orlofsky of Blank Rome in Princeton, who represented the state defendants, said “we respectfully disagree with the court’s opinion” and that “it is likely that we will petition for certification.