Opinion
DOCKET NO. A-0709-11T2
02-11-2013
LISA M. ROSE, Plaintiff-Appellant, v. ESTATE OF PETER P. RIVA, JR. and BOROUGH OF TOTOWA, Defendants, and STATE OF NEW JERSEY JUDICIARY, Defendant-Respondent.
Peter D. Wint, Assistant Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wint, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Waugh and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9050-09.
Michael J. Epstein argued the cause for appellant (The Epstein Law Firm, attorneys; Mr. Epstein and April M. Gilmore, on the brief).
Peter D. Wint, Assistant Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wint, on the brief). PER CURIAM
Plaintiff Lisa M. Rose commenced this action against the New Jersey Judiciary, among others, for personal injuries sustained when, on July 16, 2007, she was struck by an automobile driven by a former probation officer, Peter P. Riva, Jr., who was fatally shot by police when he fled the scene. The claims asserted against the other parties were previously resolved, leaving for review the involuntary dismissal of plaintiff's claim that the Judiciary negligently hired, retained and supervised Riva. We agree with the trial judge that no reasonable juror could conclude that the hiring of Riva twenty years earlier, or his retention until suspended without pay in 2005, proximately caused plaintiff's 2007 injuries.
Plaintiff's claim against Riva's estate was amicably resolved, and the Borough of Totowa was awarded summary judgment.
The Judiciary (hereafter "defendant") moved for summary judgment prior to trial. The motion judge found that material factual disputes precluded disposition of plaintiff's negligent hiring/retention/supervision theory and that, as a matter of law, the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, does not provide immunity for such a claim, citing Pacifico v. Froggatt, 249 N.J. Super. 153 (Law Div. 1991).
A trial date was scheduled and the matter assigned to another judge who examined whether plaintiff possessed an actionable claim. At his urging, the parties stipulated certain facts, which the judge found sufficient to support entry of an involuntary dismissal.
In appealing, plaintiff argues: (1) the trial judge erred in revisiting the other judge's denial of defendant's motion for summary judgment; (2) the trial judge failed to provide plaintiff with all legitimate inferences; and (3) neither N.J.S.A. 59:2-3(a) or (b) provides immunity in this instance for the negligent hiring, retention or supervision of a probation officer. We find no merit in plaintiff's first two arguments, concluding that no reasonable juror could determine that the alleged negligent hiring, retention and supervision of Riva was a proximate cause of plaintiff's injuries. As a result, we need not reach the interesting and important questions posed in plaintiff's third argument.
N.J.S.A. 59:2-3(a) declares that a public entity "is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity." N.J.S.A. 59:2-3(b) provides immunity for "judicial action or inaction."
I
We find no merit in plaintiff's argument that the trial judge was barred from revisiting the sufficiency of plaintiff's cause of action simply because the motion judge denied defendant's motion for summary judgment which raised the same issues. Contrary to plaintiff's assertions, the "law of the case" doctrine does not constitute an insurmountable obstacle to reconsideration of issues at a later stage. Lombardi v. Masso, 207 N.J. 517, 539 (2011); Gonzalez v. Ideal Tile Imp. Co., Inc., 371 N.J. Super. 349, 356-57 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006). Indeed, a denial of summary judgment decides nothing but merely reserves issues for future disposition, ibid.; A & P Sheet Metal Co., Inc. v. Edward Hansen, Inc., 140 N.J. Super. 566, 573 (Law Div. 1976), and may be reviewed, in the interests of justice, at any time prior to the entry of judgment, R. 4:42-2. As a result, there was no impediment to reexamination of the issues. Moreover, the trial judge's approach had the salutary effect of efficiently and economically disposing of the case, avoiding the need and cost of empaneling a jury and the further expenditure of the court's and parties' time and energy.
II
The trial judge determined that no reasonable juror could find defendant's hiring, retention or supervision of Riva to be a proximate cause of plaintiff's injuries. We agree.
The issue for the trial judge was "mechanical" as it is for us. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). We must reverse if the stipulated evidence and all favorable inferences drawn therefrom could sustain a judgment in plaintiff's favor. Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 183 (2008). Stated another way, dismissal is appropriate when no rational juror could conclude from the evidence that an essential element of plaintiff's case is present. Id. at 197. The court must "not [be] concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing" dismissal. Dolson, supra, 55 N.J. at 5-6.
Dismissal here was based on the absence of proximate cause. Our Supreme Court has recognized that the extent to which a negligent act may generate legal consequences for the actor is an instrument of fairness, involving "'mixed considerations of logic, common sense, justice, policy and precedent.'" Caputzal v. The Lindsay Co., 48 N.J. 69, 77-78 (1966) (quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 734 (Sup. Ct.), aff'd o.b., 98 N.J.L. 893 (E. & A. 1923)); see also Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 242 (2001); People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 264 (1985). The concept of proximate cause "fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery." Ibid.
In considering the extent to which defendant may be excused from liability for having hired and retained Riva, as examined through the standard of review applicable to the grant of an involuntary dismissal, we assume defendant knew or should have known Riva was reckless and dangerous when hired in 1987. See Di Cosala v. Kay, 91 N.J. 159, 174 (1982). In addition, we assume defendant was negligent in retaining Riva's services in the years that followed, even though there is no evidence of disciplinary infractions from 1987 until June 2005, other than a suspension in 1990 for twenty days, the nature of which is not revealed by the record.
The parties also stipulated to the following facts regarding a domestic violence matter. On June 24, 2004, Riva was arrested for stalking P.M., his realtor. A domestic violence restraining order was entered, and Riva's four firearms and ammunition were confiscated from his home. When approached by police, Riva would not sign a receipt for the TRO and refused to permit his home to be searched; he was arrested as a result. P.M. dismissed the domestic violence matter and the TRO was vacated on July 12, 2004. A few months later, a superior court judge revoked Riva's firearms purchaser identification cards.
P.M. alleged in that matter Riva stalked her for four years but she was fearful of reporting Riva because of his firearms and erratic behavior.
As stipulated, the Vicinage Human Resources Division Manager investigated the P.M. matter but did not interview P.M. or any of the officers involved in Riva's arrest and confiscation of his weapons. In addition, the parties stipulated that the investigation did not uncover the fact that Riva's firearms purchaser identification cards were revoked. As a result of this inadequate investigation, Riva was not disciplined; the investigation concluded on October 22, 2004, with only a determination that Riva had left early for lunch without permission. Plaintiff claims Riva's employment should have been terminated at that time, and if he had been terminated, he would not have become involved with plaintiff.
The parties did not stipulate that the investigation was inadequate, but the involuntary-dismissal standard requires that such an inference be drawn.
On October 1, 2004, while the investigation of the P.M. matter was near completion, plaintiff was sentenced to a three-year probationary term. Defendant contends that Riva was never assigned to be plaintiff's probation officer; plaintiff contends -- and we assume for present purposes -- that her case was "turned over to" Riva, or her assigned probation officer "surrendered control to Riva for reasons defendant has never explained." Plaintiff claims that Riva "acted as her probation officer" and made "an unannounced visit to plaintiff's residence" at this time. She also asserts that Riva influenced or manipulated her probation file.
We assume, in giving plaintiff all legitimate inferences, the later contact between plaintiff and Riva would never have occurred had Riva been suspended or terminated for his role in the P.M. matter.
The parties stipulated that Riva interviewed plaintiff and "made an entry as plaintiff's probation officer into plaintiff's probation file in the CAPS system on October 28, 2004." They also stipulated that within two or three months, in violation of the code of conduct, plaintiff and Riva began a dating relationship.
On March 20, 2005, plaintiff and Riva were arrested on cross-complaints that alleged assaults. A TRO was entered against Riva. The probation department received copies of the police reports and the TRO within a few days of the incident. The parties stipulated that "[u]ltimately, defendant did not discipline Riva for the March 2005 incident which violated the Code of Conduct for Judicial Employees."
The parties also stipulated to the circumstances underlying a June 8, 2005 incident. At that time, Riva was arrested by Little Falls police and charged with aggravated assault and domestic violence against plaintiff. The next day, during an interview by the Assistant Chief Probation Officer, Riva acknowledged knowing plaintiff and her family for twenty years but denied an intimate relationship with her. Plaintiff was interviewed; she acknowledged Riva was a family friend for twenty years and also denied having an intimate relationship with him.
On June 14, 2005, the Chief Probation Officer issued a notice, advising Riva he was suspended without pay pending the disposition of the criminal charges stemming from the June 8 incident. A notice issued on June 27, 2005, advised Riva that his suspension was indefinite, in accordance with N.J.A.C. 4A:2-2.5(a)(2).
On June 30, 2005, plaintiff wrote a letter in support of Riva regarding the Little Falls incident. She thereafter asserted, however, that the letter was a means of protecting herself by protecting Riva.
Pursuant to a settlement agreement, Riva accepted a thirty-five-day suspension without pay and agreed to utilize accumulated leave time until disposition of the criminal charges. This was confirmed in an August 30, 2005 final notice of disciplinary action.
On September 6, 2005, Totowa police arrested Riva, charging him with aggravated assault, N.J.S.A. 2C:12-1(b)(1), against plaintiff. Twenty-one days later, Riva was arrested in Paterson and charged with possession of a controlled dangerous substance (crack cocaine). N.J.S.A. 2C:35-10(a)(1). On September 29, 2005 and October 13, 2005, the State issued notices advising Riva of his indefinite suspension without pay pending the outcome of these criminal charges.
On March 21, 2007, Riva was convicted of possession of drug paraphernalia, N.J.S.A. 2C:36-2, relating to a February 18, 2006 arrest in Wayne. He was ordered to permanently forfeit his public office pursuant to N.J.S.A. 2C:51-2(a). This conviction was reversed after Riva's death. State v. Riva, No. A-1148-07 (App. Div. Nov. 19, 2008). Our opinion reveals that plaintiff was in Riva's company when he was arrested.
On July 16, 2007, plaintiff and Riva appeared in Totowa Municipal Court regarding Riva's harassment claim against plaintiff. That claim was dismissed. According to ISP Officer Theresa Brantly, who accompanied plaintiff to court, Riva appeared "agitated," causing Brantly to request a police escort from the courtroom. Outside the building, plaintiff, a friend of hers, and Brantly were standing on a grassy area between parking lots when Riva drove his SUV directly at them. The SUV hit a curb and went "almost airborne." Brantly dove out of the way. The vehicle, however, struck plaintiff and her friend. Riva ran from the scene and, while fleeing, was fatally shot by a police officer.
In conformity with our standard of review, we accept as true these stipulated facts and the reasonable inferences they evoke. We immediately reject the contention that the act of hiring Riva -- even if negligent -- was a proximate cause of plaintiff's injuries. Riva was hired in 1987; he struck plaintiff with his SUV twenty years later. This extraordinary passage in time between the alleged triggering event and the result for which a recovery is sought precludes a finding of proximate cause. Common sense and fairness necessarily limit the imposition of legal responsibility; that one event may philosophically cause a later event is not the test for imposing proximate or legal cause:
In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would "set society on edge and fill the courts with endless litigation."These commentators suggested as an example, an individual "driv[ing] through the state of New Jersey at an excessive speed, and arriv[ing] in Philadelphia in time for the car to be struck by lightning." Prosser and Keeton, supra, § 41 at 264. The vehicle's "speed is a cause of the accident, since without it the car would not have been there in time," but the law of negligence does not extend to the risk that the driver's passenger was injured in the event. Ibid. The adoption of plaintiff's broad view of proximate cause could just as easily support finding liable for Riva's 2007 actions the obstetrician who presided over Riva's birth.
[W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts, § 41 at 264 (5th ed. 1984) (quoting North v. Johnson, 59 N.W. 1012, 1012 (Minn. 1894)); see also Restatement (Second) of Torts § 431, comment a (1965)]
To be sure, a great lapse in time between act and effect -- although a significant consideration, Restatement, supra, § 433(c) -- does not always negate a finding of proximate cause. Those circumstances where courts have found a latent defect in a structure that did not cause damage for many years or the ingestion of a defective drug did not have consequences for a considerable period of time, however, are distinguishable. Here, the nature of the act causing injury -- a reckless or willful assault -- superseded the fact that twenty years earlier Riva was negligently appointed to be a probation officer. Considerations of logic and common sense negate a finding that defendant's hiring of Riva in 1987 was a proximate cause of Riva's actions two decades later even if it philosophically caused Riva's reconnection with plaintiff, a longtime family friend, years later. See Verdicchio v. Ricca, 179 N.J. 1, 25 (2004) (quoting Restatement, supra, § 431, comment a).
In the comment to this provision, the Restatement drafters observed:
Experience has shown that where a great length of time has elapsed between the actor's negligence and harm to another, a great number of contributing factors may have operated, many of which may be difficult or impossible of actual proof. Where the time has been long, the effect of the actor's conduct may thus become so attenuated as to be insignificant and unsubstantial as compared to the aggregate of the other factors which have contributed. However, where it is evident that the influence of the actor's negligence is still a substantial factor, mere lapse of time, no matter how long, is not sufficient to prevent it from being the legal cause of the other's harm.
[Restatement, supra, § 433, comment f]
For example, absent the impact of a statute of limitations, an ingestion or inhalation of a substance the harmful effects of which do not immediately surface may be actionable despite a considerable passage of time between the negligent act and the manifestation of its consequences. See, e.g., Quincy Mut. Fire Ins. Co. v. Borough of Bellmawr, 172 N.J. 409, 419 (2002).
Again, we assume defendant was negligent for present purposes only.
The stipulated facts relating to Riva's disciplinary matters -- occurring closer in time than his hiring -- also persuade us that defendant's retention of Riva, between 1987 and June 2005, could not be found a proximate cause of plaintiff's injuries. As stipulated, Riva was suspended without pay in June 2005, never returning to work as a probation officer. Plaintiff sustained her injuries on July 16, 2007, more than two years later.
As we have demonstrated, our jurisprudence draws no bright lines of a spatial or temporal nature between actionable events and their consequences. Instead, the law of proximate or legal cause draws lines based on "logic, common sense, justice, policy and precedent." Powers, supra, 98 N.J.L. at 734. Here, the stipulated facts reveal that Riva was suspended from his position -- never to return -- more than two years before the incident. His alleged official affiliation with defendant was all but over long before he willfully or recklessly struck plaintiff with his SUV on July 16, 2007. Even if suspension without pay was not a sufficient severing of defendant's relationship with Riva, the record reveals that Riva was ordered, as part of his drug-paraphernalia sentence, to forfeit his office; this was ordered four months before he caused plaintiff's injuries.
It is true that we reversed that conviction, but that occurred after the event in question here. At the time he assaulted plaintiff with his vehicle, Riva no longer held his office, even in a suspended state.
The stipulated facts leave no doubt that defendant's relationship with -- and legal responsibility for -- Riva had ended no later than June 14, 2005. To the extent plaintiff's relationship with Riva continued, it did so through her own choosing and not because Riva once was her probation officer, whether or not properly so. The mere fact that defendant once hired and retained Riva -- and presumably negligently so -- does not serve to legally tie defendant to Riva forever after, as suggested by the theory proposed by plaintiff. Riva's own reckless or deliberate conduct more than two years after defendant divorced itself from Riva served as a superseding intervening event different in kind and separated by a significant amount of time as to absolve defendant's conduct -- assumed for present purposes as negligent -- in retaining Riva until his suspension in June 2005. See, e.g., Caputzal, supra, 48 N.J. at 77-80 (holding that even if a defect in a water softener caused rusty discoloration of water, manufacturer was not liable when plaintiff suffered idiosyncratic and unanticipated heart attack brought on by fright at sight of discolored water); Meyer v. Board of Ed. of Middletown Twp., 9 N.J. 46, 54-55 (1952) (affirming a directed verdict for school board in failing to install a jig saw's guard because of a classmate's intervening act of starting the jig saw while plaintiff was cleaning it). No rational juror could conclude otherwise. Dolson, supra, 55 N.J. at 5-6.
III
Defendant first contends, and the trial judge held, that the hiring of Riva was a judicial function rendered immune by subsection (b) of N.J.S.A. 59:2-3 (providing immunity for "judicial action or inaction"). We agree the Supreme Court's description in In re P.L. 2001, Chapter 362 , 186 N.J. 368, 385 (2006), of the manner of hiring a probation officer suggests the strength of defendant's claim to immunity in that regard. And, if that is so, it may logically follow that the continued retention or failure to discipline a probation officer is also judicial action or inaction entitled to immunity, but we decline to answer these questions because those answers are unnecessary to today's decision. Without a more developed factual record, the extent of the reach of judicial immunity in the hiring and retention of a probation officer cannot be safely ascertained.
We further observe that whether a public entity's decision to hire or retain a single employee is the type of discretionary decision immunized by N.J.S.A. 59:2-3(a) (providing immunity for injuries "resulting from the exercise of judgment or discretion vested in the entity") has not been determined by our appellate courts. It is true that one trial court has held that a public entity is not immune from suit for the negligent hiring or failure to fire a transit officer with violent tendencies. Pacifico, supra, 249 N.J. Super. at 155-56. But no appellate court has yet endorsed this view. In Denis v. City of Newark, 307 N.J. Super. 304, 317 (App. Div. 1998), we considered the question but ultimately determined the record was too sparse. In Hoag v. Brown, 397 N.J. Super. 34, 38 (App. Div. 2007), the trial judge dismissed a social worker's claim against the Department of Corrections for negligently hiring and supervising one of its officers, who threatened and physically and verbally abused her, based on the determination that the Department could not be vicariously liable for the officer's misconduct and because the plaintiff failed to meet the TCA's verbal threshold, N.J.S.A. 59:9-2(d). In reversing, we limited our holding to those two grounds without considering whether the Department was rendered immune by N.J.S.A. 59:2-3(a). No other appellate court of this State has considered the question, and we decline to interpret our silence in Hoag as an endorsement of either Pacifico's holding or plaintiff's view of the application of N.J.S.A. 59:2-3(a) to a negligent hiring or supervision claim.
McAndrew v. Mularchuk, 33 N.J. 172 (1960), which did endorse such a claim against a public entity, was decided prior to the TCA's enactment.
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We, thus, leave for yet another day the important questions of whether N.J.S.A. 59:2-3(a) immunizes a public entity from a negligent hiring or retention suit, or whether N.J.S.A. 59:2-S 3(b) immunizes the Judiciary from a suit based on the negligent hiring or retention of a probation officer.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION