No Municipal Liability for 911 Calls

Turner v. Irvington Tp., 430 N.J. Super. 274 (App. Div. 2013).  This opinion by Judge Parrillo reversed the denial of the defendant Township’s motion for summary judgment in a case that sought to hold the Township vicariously liable for the allegedly improper conduct of its 911 operators.  The panel held that two statutes, N.J.S.A. 52:17C-10(d), a 911 immunity statute, which immunizes 911 operators for conduct that is not wanton and willful, and N.J.S.A. 59:2-10, a Tort Claims Act (“TCA”) provision that immunizes public entities for the wanton and willful conduct of their employees, combined to bar the Township from liability for its 911 operators conduct regardless of the level of their culpability.

Judge Parrillo described at length the underlying facts and concluded that there was evidence that the “operators’ actions and omissions constituted a ‘wanton and willful disregard for the safety of persons'” that defeated the immunity afforded by N.J.S.A. 52:17C-10(d).  However, the TCA immunity insulated the Township against even wanton and willful employee conduct.

Seeking to avoid that result, plaintiffs contended that because the 911 immunity statute was enacted 27 years after the TCA’s immunity provision, “it is fair to conclude that the [L]egislature had knowledge of the latter but still determined that public entities would be liable for wanton and willful misconduct constituting a violation of the 9-1-1 immunity statute.”  Judge Parrillo did not agree.  There was “nothing in the legislative history of the 9-1-1 immunity statute that indicates an intent to displace the immunity provisions of the TCA.”  On the contrary, the two statutes actually have the same goal: “expanding the limitations on liability for public entities.”  

Judge Parrillo observed that “the TCA’s guiding principle is that immunity from tort liability is the general rule and liability is the exception.”  The Supreme Court stated in Wilson ex. rel. Manzano v. Jersey City, 209 N.J. 558 (2012), that the legislative history of the 911 immunity statute likewise showed an intent to “expand limitation of liability” for various entities.  Judge Parrillo thus concluded that “it would be rather paradoxical that a statute designed to ‘expand immunity’,’ Wilson, supra, 209 N.J. at 581, would be applied, as plaintiffs suggest, to limit the immunity theretofore afforded to municipalities under the TCA.”