(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 21, 1996 -- Decided January 14, 1997
Coleman, J., writing for a unanimous Court.
The primary issue in this appeal is whether either N.J.S.A. 59:6-4 of the Tort Claims Act (“TCA”)
or N.J.S.A. 26:11-12 (now repealed) immunizes defendants from liability for injuries caused by the
administration of a rubella vaccine to a pregnant high school student.
During the spring of l975, due to an outbreak of measles and rubella, Burlington County health
officials, with the cooperation of the Riverside Board of Education and the assistance of the New Jersey
Department of Health, organized and operated a free immunization clinic at Riverside High School.
Plaintiff, Debra Wright, a senior at the high school, was given a rubella vaccine at the clinic on April l8, l975.
A pre-vaccination screening examination of participants in the vaccination clinic was conducted, during which
it was defendants' standard practice to counsel all females of childbearing age about the risks of vaccination
and to refrain from inoculating any female who was pregnant or sexually active. Wright, who was pregnant
when she received the vaccine, subsequently gave birth to Delisha Kemp, who was born with congenital
rubella syndrome, as a result of which she was afflicted with severe birth defects requiring continuing medical
treatment.
The complaint, filed in October 1992, alleged that defendants were negligent in failing to ascertain
whether Wright was pregnant or sexually active prior to her vaccination and that Wright was not warned that
she should not receive the vaccine because an unborn child could suffer severe birth defects from the
vaccine.
Defendants moved for summary judgment on several grounds, including immunity under N.J.S.A.
59:6-4 (excepting a public entity from the grant of absolute immunity from liability for the failure to perform
an examination where the public entity performed an examination or diagnosis for the purpose of treatment)
and N.J.S.A. 26:11-12. (granting immunity to county boards and its employees and agents for “any act done
or omitted in good faith and with ordinary discretion”). The trial court denied summary judgment, finding
that neither N.J.S.A. 59:6-4 nor N.J.S.A. 26:11-12 immunized defendants from liability.
The Appellate Division reversed, concluding that the Legislature intended to exclude from the broad
category of treatment all but the kind of ordinary medical examinations and treatments rendered by a doctor
-- not routine immunizations such as the one at issue. The Appellate Division also found that the public
defendants were entitled to immunity under N.J.S.A. 26:11-12 because the statute was not repealed until after
the date of the alleged negligence. The court rejected both the implied and the retroactive repealer
doctrines as a basis to deny immunity.
The Supreme Court granted Wright's petition for certification.
HELD: Defendants were not entitled to summary judgment on the basis of the absolute immunity provided
by N.J.S.A. 59:6-4 as the pre-vaccination examination in this case was an examination for the purpose of
treatment, and therefore falls within the exception to the TCA grant of immunity; N.J.S.A. 26:11-12, which
provides for the general grant of “good-faith immunity” for “any act” of a county board or its agents, is
irreconcilably inconsistent with the TCA and deemed to have been impliedly repealed in 1972 when the TCA
was enacted.
1. The plain meaning of “treatment” encompasses the administration of a vaccine and the fact that it is
given in a public clinic, rather than in the privacy of a doctor's office, does not change the essential
character of the ordinary act of administering a vaccine. (pp.6-9)
2. Where, as here, the purpose of the screening examination is to determine whether to implement the
intended treatment, and not merely to determine whether Wright had the measles, the screening examination
was for the specific purpose of treatment and, therefore, does not fall within the group of public health
examinations exempt from liability under N.J.S.A. 59:6-4. (pp. 10-12)
3. The fact that the TCA did not expressly enumerate N.J.S.A. 26:11-12 in its repealer provision does not
foreclose the possibility that the TCA repealed N.J.S.A. 26:11-12 by implication if the statute is inconsistent
with other provisions of the TCA. (pp. 13-14)
4. When a subsequent enactment covering a field of operation coexistent with a prior statute cannot be
given effect while the prior law remains in existence because of irreconcilable conflict between the two acts,
the latest legislative expression prevails, and the prior law yields to the extent of the conflict. (pp. 14-15)
5. N.J.S.A. 26:11-12's grant of only qualified immunity for discretionary acts is clearly inconsistent with the
TCA's general discretionary immunity provisions, which provide for absolute immunity, and is further
inconsistent with the TCA treatment of ministerial acts. (pp. 16-18)
6. Because N.J.S.A. 26:11-12 grants only qualified immunity, while the TCA provides a general grant of
absolute immunity, N.J.S.A. 26:11-12 simply cannot coexist with the TCA without undermining the express
legislative intent in the TCA to provide a general grant of absolute immunity for the discretionary acts of
public entities. (pp. 18-20)
7. The express repeal of N.J.S.A. 26:11-12 in 1976 should be accorded little weight in the analysis of whether
N.J.S.A. 26:11-12 was previously impliedly repealed by the TCA. (pp. 20-22)
Judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
41 September Term 1996
DELISHA KEMP, a minor, by her
parent and natural guardian, DEBRA
WRIGHT, and DEBRA WRIGHT, in her
own right,
Plaintiffs-Appellants,
v.
STATE OF NEW JERSEY, COUNTY OF
BURLINGTON, RIVERSIDE BOARD OF
EDUCATION, RIVERSIDE HIGH SCHOOL,
Defendants-Respondents,
and
JOHN DOES MANUFACTURERS (1-10)
RICHARD ROES DISTRIBUTORS (1-10);
and ROBERT DOES (1-10) (fictitious
names) individually, jointly,
severally, and/or in the
alternative,
Defendants.
Argued October 21, 1996 -- Decided January 14, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
286 N.J. Super. 549 (1996).
David K. Cuneo argued the cause for
appellants.
Valerie L. Egar, Deputy Attorney General,
argued the cause for respondent State of New
Jersey (Peter G. Verniero, Attorney General
of New Jersey, attorney; Joseph L. Yannotti,
Assistant Attorney General, of counsel).
Timothy E. Annin argued the cause for
respondent County of Burlington (Capehart &
Scatchard, attorneys; Alison M. Nissen, on
the brief).
Frank G. Basile argued the cause for
respondents Riverside Board of Education and
Riverside High School (Basile & Testa,
attorneys; Diane M. Vari, on the brief).
The opinion of the Court was delivered by
COLEMAN, J.
The primary issue in this appeal is whether either of two
statutory provisions, N.J.S.A. 59:6-4 of the Tort Claims Act
("TCA") or N.J.S.A. 26:11-12 (now repealed), immunizes defendants
from liability for injuries caused by the administration of a
rubella vaccine to a pregnant high school student. The Appellate
Division, in a published opinion, found the defendants were
immune under both statutes.
286 N.J. Super. 549 (1996). We
granted certification,
144 N.J. 586 (1996), and now reverse.
During the spring of 1975, there was an outbreak of measles
and rubella that reached near epidemic proportions in Burlington
County and in other areas of the State. Burlington County health
officials, with the cooperation of the Riverside Board of
Education and the assistance of the New Jersey Department of
Health, organized and operated a free immunization clinic at
Riverside High School to vaccinate students. Plaintiff Debra
Wright, a senior at the high school, was given a rubella vaccine
at the clinic on April 18, 1975.
The product information in 1973 and 1974 for the live
attenuated rubella vaccine specifically recommended that pregnant
women should not be given the vaccine and that women of child-bearing age should not be considered for vaccination unless there
was no possibility of pregnancy at the time of the injection or
in the following two to three months.
A pre-vaccination screening examination of participants in
the vaccination clinic consisted of interviews in which questions
regarding sexual activity were asked of the students.
Defendants' standard practice was to counsel all females of
childbearing age about the risks of vaccination and to refrain
from inoculating any female who was pregnant or sexually active.
Plaintiff Wright was pregnant when she received the rubella
vaccine. On December 28, 1975, Wright gave birth to Delisha
Kemp, who was born with congenital rubella syndrome. As a
result, Kemp is afflicted with severe birth defects and requires
continuing medical treatment.
The complaint, filed in October 1992, alleges that
defendants were negligent in failing to ascertain whether Wright
was pregnant or sexually active prior to her vaccination.
Plaintiffs also allege that Wright was not warned that she should
not receive the vaccine if she were pregnant or became pregnant
within three months because an unborn child could suffer severe
birth defects from the vaccine.
Defendants moved for summary judgement on several grounds,
including immunity under N.J.S.A. 59:6-4 and N.J.S.A. 26:11-12.
The trial court denied summary judgment on the immunity issues,
finding that neither N.J.S.A. 59:6-4 nor N.J.S.A. 26:11-12
immunized defendants from liability. The Appellate Division
reversed. It concluded that although the plain meaning of the
word "treatment" in N.J.S.A. 59:6-4 might have included the
examination and inoculation received in this case, the
Legislature did not intend a plain meaning interpretation of the
treatment exception in the TCA. It found that the Legislature
intended to exclude from the broad category of treatment all but
the kind of ordinary medical examinations and treatments rendered
by a doctor. It concluded that in this case the immunization for
measles was not the ordinary care that a doctor would normally
render and thus found the immunity was triggered. It also found
that the public defendants have immunity under N.J.S.A. 26:11-12
because the statute was not repealed until after the date of the
alleged negligence. The court rejected both the implied and the
retroactive repealer doctrines as a basis to deny immunity. 286
N.J. Super. at 563.
Plaintiffs contend that defendants are not immune from liability under N.J.S.A. 59:6-4, because they engaged in the affirmative act of injecting the rubella vaccine into Wright without first examining her or properly questioning her regarding whether she was pregnant. Plaintiffs contend that the
administration of a vaccine is a preventive measure that
constitutes a form of treatment. Thus, plaintiffs argue that
N.J.S.A. 59:6-4 immunity is inapplicable to the facts of this
case because the pre-vaccination screening examination that
defendants allegedly failed to perform properly was for the
purpose of administering treatment in the form of the rubella
vaccine.
Plaintiffs' argument requires an analysis of N.J.S.A.
59:6-4. It provides:
Except for an examination or diagnosis for
the purpose of treatment, neither a public
entity nor a public employee is liable for
injury caused by the failure to make a
physical or mental examination, or to make an
adequate physical or mental examination, of
any person for the purpose of determining
whether such person has a disease or physical
or mental condition that would constitute a
hazard to the health or safety of himself or
others. For the purposes of this section,
"public employee" includes a private
physician while actually performing
professional services for a public entity as
a volunteer without compensation.
[N.J.S.A. 59:6-4.]
As a proposition of law, immunity for public entities is the
general rule and liability is the exception. See N.J.S.A. 59:2-1(a); Canico v. Hurtado,
144 N.J. 361, 364 (1996); Fielder v.
Stonack,
141 N.J. 101, 117 (1995); Tice v. Cramer,
133 N.J. 347,
355 (1993); Bombace v. City of Newark,
125 N.J. 361, 372-73
(1991). N.J.S.A. 59:6-4 of the TCA is consistent with that
policy.
N.J.S.A. 59:6-4 can be divided into two sections. The first
section provides absolute immunity for the failure to perform an
adequate examination "for the purpose of determining whether [a]
person has a disease or physical or mental condition that would
constitute a hazard to the health or safety of himself or
others." N.J.S.A. 59:6-4. The second section establishes an
exception to the general rule of absolute immunity if the
examination is "for the purpose of treatment." Ibid.
Plaintiffs maintain that defendants' conduct fell within the
exception to the grant of immunity in N.J.S.A. 59:6-4. Thus, the
narrow, but complex, question becomes whether the vaccination
constitutes treatment within the meaning of the exception.
The plain meaning of "treatment" encompasses the
administration of a vaccine. See 2 Roscoe N. Gray & Louise J.
Gordy, Attorneys' Textbook of Medicine ¶ 33.12, at 33-4 (3d ed.
1990) ("[t]he most effective treatment of an infectious disease
is obviously its prevention" by immunization or vaccination);
Black's Law Dictionary 1502 (6th ed. 1990) (defining "treatment"
as "broad term covering all the steps taken to effect a cure of
an injury or disease; including examination and diagnosis as well
as application of remedies"); Stedman's Medical Dictionary
Fifth Abridged Lawyers' Edition 1477 (5th ed. 1982) (stating that
"treatment" encompasses, among other things, preventive or
prophylactic efforts, including "the institution of measures
designed to protect a person from an attack of a disease to which
he has been, or is liable to be, exposed"). A vaccine is "[a]
medicinal material which, when introduced properly into the body,
is capable of causing the body to produce certain substances
(antibodies) that overcome invading viruses, bacteria, or their
poisons. In other words, a vaccine builds up immunity." 3 J.E.
Schmidt, Attorneys' Dictionary of Medicine & Word Finder V-1
(1983). Thus, the act of administering a vaccine involves the
introduction of foreign matter into the recipient's body with the
purpose of causing a specific reaction in the recipient's body.
It is that reaction that creates the immunity to the unwanted
disease.
The rubella vaccine administered in this case is analogous
to the anti-rabies vaccination administered in Calabrese v.
Trenton State College, 162 N.J. Super. 145 (App. Div. 1978),
aff'd,
82 N.J. 321 (1980). In Calabrese, the plaintiff suffered
adverse side effects from the administration of a rabies vaccine.
Id. at 150. The plaintiff sued for malpractice, alleging
negligence in the administration of the vaccine and for the
failure to warn him of its dangerous side effects. Id. at 150-51. On appeal, the Appellate Division determined that the
"administration of a given drug," in that case the rabies
vaccine, constituted medical treatment. Id. at 156; see also
Boyd v. Louisiana Medical Mut. Ins. Co.,
593 So.2d 427, 428-29
(La. Ct. App. 1991) (equating administration of oral polio
vaccine with "medical treatment" in context of determining
whether physician adequately disclosed risks of treatment as
required by informed consent statute), writ denied,
594 So 2d
877 (La. 1992); In re Christine M.,
595 N.Y.S.2d 606, 613 (Fam.
Ct. 1992) (equating parents' failure to inoculate child against
measles with deprivation of "recommended treatment" in violation
of statute requiring parents to provide "adequate medical care");
People v. Steinberg,
73 N.Y.S.2d 475, 477 (Magis. Ct. 1947)
(concluding that vaccination against smallpox is "treatment"
under statute defining practice of medicine: "Vaccination is a
treatment given to a human being, even though no disease is
present, to prevent disease . . . . It is treatment as well as
preventive medicine.").
The Appellate Division in this case, however, concluded
that the Legislature must have intended to reserve the
"treatment" exception for "the type of medical examinations that
we normally associate with treatment and care provided by doctors
and hospitals--the ordinary provision of care." 286 N.J. Super.
at 557. The Appellate Division found that because Wright was
vaccinated as part of a public immunization clinic, Wright did
not receive "that type of ordinary medical care." Ibid. We find
that the Appellate Division's analysis is flawed.
First, the legislative commentary and history relied on by
the Appellate Division state that N.J.S.A. 59:6-4's grant of
immunity "does not apply to examinations for the purpose of
treatment such as are ordinarily made in doctors' offices and
public hospitals." See Comment to N.J.S.A. 59:6-4 (emphasis
added); Senate Labor, Industry and Professions Committee
Statement, No. 524, L. 1983, c. 184. The Appellate Division
interpreted that language to mean that the immunity does not
apply to "ordinary medical care." 286 N.J. Super. at 557. The
Appellate Division also concluded that "ordinary medical care"
does not encompass the administration of a vaccine through a
public vaccination clinic, apparently because a public
vaccination is something extraordinary. Ibid.
We find that an examination for the purpose of administering
a vaccine is precisely the type of examination "such as [is]
ordinarily made in doctors' offices." Comment to N.J.S.A. 59:6-4. The administration of a vaccine is a routine and common
medical procedure. See Roscoe & Gordy, supra, ¶ 33.12(2). The
fact that the vaccine is given in a public clinic, rather than in
the privacy of a doctor's office, does not change the essential
character of the ordinary act of administering a vaccine.
Second, the court's rejection of a "plain meaning"
interpretation was based on its view that such an interpretation
would lead to a result inconsistent with the statutory scheme.
286 N.J. Super. at 557. The Appellate Division concluded that
the pre-vaccination screening examination was comparable to other
public health examinations described in the Comment to N.J.S.A.
59:6-4. Id. at 555. The Comment to N.J.S.A. 59:6-4 describes
the immunity as applying to
the failure to perform adequate public health
examinations, such as public tuberculosis
examinations, physical examinations to
determine the qualifications of boxers and
other athletes, and eye examinations for
vehicle operator applicants.
[Comment to N.J.S.A. 59:6-4.]
The Appellate Division reasoned that the pre-vaccination
screening was designed to screen out those individuals who should
not receive the vaccine, in much the same way as an eye
examination might rule out a prospective driver or a physical
examination might screen out a prospective boxer. 286 N.J.
Super. at 555.
Although the examples listed in the Comment to N.J.S.A.
59:6-4 were not intended to be exclusive, their general
descriptions must be construed to embrace only other
illustrations that are similar in nature to those enumerated. If
the purpose of the screening examination was to inform Wright
whether she had measles, such an examination would have been
similar to testing for tuberculosis or visual fitness to operate
a motor vehicle, and would fit perfectly into the group of public
health examinations articulated in the Comment.
But the public health examinations described in the Comment
are simply not analogous to the examination that took place in
the present case. The examinations described in the Comment are
not conducted for purposes of rendering medical treatment. Once
the examination of a prospective driver or athlete is complete,
the public entity takes no further action of a medical nature.
The same is true in the case of public tuberculosis examinations
that are conducted for diagnostic purposes only. In this case,
however, the purpose of the screening examination was not to see
if Wright and others had measles, but to determine which
individuals fell into the high risk category and should not
receive the vaccine. The screening examination here served the
same purpose as a doctor asking a patient whether he or she is
allergic to penicillin before administering an injection of
penicillin. The purpose of both interviews is to determine
whether to implement the intended treatment. The introduction of
the vaccine into Wright's body, or the penicillin into the
hypothetical patient's body, to cause the body to react in a
certain way, falls within the definition of medical treatment.
That conclusion is consistent with California precedents
interpreting California's comparable statute. Cal. Gov't Code
§ 855.6 (West 1996). That statute is virtually identical to
N.J.S.A. 59:6-4. See, e.g., Colome v. State Athletic Comm'n. of
Cal.,
55 Cal. Rptr.2d 300, 308 (Ct. App. 1996) (explaining that
public employee is immune under section 855.6 where employee
conducts examination for purpose of determining plaintiff's
fitness to participate in athletic competition, and neither
renders treatment to plaintiff nor suggests any medical procedure
to plaintiff), review denied, (1996); Smith v. County of Kern,
25 Cal. Rptr.2d 716, 723 (Ct. App. 1993) (explaining that public
employee is not immune under section 855.6 where employee's
actions "were taken to facilitate the delivery of medical
diagnosis or care"), review denied, (1994). Because our TCA was
patterned after the California Tort Claims Act of 1963, reference
to California precedents interpreting section 855.6 is
appropriate. See Kleinke v. City of Ocean City,
147 N.J. Super. 575, 579 (App. Div. 1977). We hold that the pre-vaccination
examination was an examination for the purpose of treatment, and
therefore falls within the exception to the TCA grant of
immunity. Consequently, defendants are not entitled to summary
judgment on the basis of the absolute immunity provided by
N.J.S.A. 59:6-4.
Next, we must decide whether N.J.S.A. 26:11-12 should be
applied to this case. That statute granted "good-faith immunity"
to county boards of health and their agents. To answer that
inquiry, we must decide whether our 1972 TCA impliedly repealed
N.J.S.A. 26:11-12. If it did not, we must decide the effect the
1976 express repeal of N.J.S.A. 26:11-12 has on this case.
Prior to its repeal in April 1976, N.J.S.A. 26:11-12
provided:
No member, officer or agent of a county board
shall be sued or held liable for any act done
or omitted in good faith and with ordinary
discretion on behalf of or under the county
board or pursuant to its rule or ordinances.
[N.J.S.A. 26:11-12.]
Plaintiffs argue that N.J.S.A. 26:11-12 was repealed in 1972
when the TCA was enacted. To answer that contention, we must
ascertain the Legislature's intention regarding the TCA's effect
on preexisting statutes. Some indication of this is found in the
TCA's repealer provision, N.J.S.A. 59:12-2, which provides for
the express repeal of a select group of enumerated statutes, and
also purports to authorize the implied repeal of all unenumerated
statutes that are "inconsistent" with the TCA. It provides:
All acts and parts of acts inconsistent
with this act are, to the extent of such
inconsistency, repealed, including without
limitation:
P.L.1971, c. 199, s.26 (C. 40A:12-26).
N.J.S. 18A:20-35;
N.J.S. 38A:4-9;
N.J.S. 38A:4-10;
R.S. 53:1-22.
[N.J.S.A. 59:12-2 (emphasis added).]See footnote 1
It is significant that N.J.S.A. 59:12-2's list of expressly repealed statutes is inclusive rather than exclusive. Thus, the fact that the TCA did not expressly enumerate N.J.S.A. 26:11-12 in its repealer provision does not foreclose the possibility that the TCA repealed N.J.S.A. 26:11-12 by implication. See Tice, supra, 133 N.J. at 369 (holding that pre-TCA liability arising out of preexisting statutes not enumerated in N.J.S.A. 59:12-2 was repealed to extent inconsistent with immunity provisions of TCA). Preexisting statutes that are not enumerated in the
repealer provision of the TCA may "[n]onetheless . . . [have] been impliedly repealed because inconsistent with" other provisions of the TCA. Abei v. Monmouth County Highway Dep't, 148 N.J. Super. 430, 434 (App. Div. 1977); Polyard v. Terry, 148 N.J. Super. 202, 208 (Law Div. 1977) (stating that TCA supersedes provisions of Joint Tortfeasors Contribution Law only to extent of inconsistency between the two acts), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd, 79 N.J. 547 (1979); see also New Jersey State Policemen's Benevolent Ass'n v. Town of Morristown, 65 N.J. 160, 165 (1974) ("A new law altering fundamental assumptions relied upon by the old law will work to supersede earlier inconsistent statutes."); State v. Roberts, 21 N.J. 552, 555 (1956) (explaining that where later act "covers the whole subject" dealt with by prior act, the "reasonable, indeed inescapable, conclusion" is that later act was intended by Legislature to supplant former: "in that circumstance the later statute, though not expressly saying so, will be held to operate to repeal the earlier law"); Division of Motor Vehicles v. Kleinert, 198 N.J. Super. 363, 369 (App. Div. 1985) ("Implied repealers are not favored. Only when a later expression of legislative will is clearly in conflict with an earlier statute on the same subject will courts find a legislative intent to supersede earlier law." (citation omitted)); Mahr v. State, 12 N.J. Super. 253, 261 (Ch. Div. 1951) ("[W]here the intention to effectuate a repeal is clear and compelling; where there is a clear repugnancy between the two acts, or a manifest intention to
cover the same subject matter by way of revision; or where,
considering the specific provision in relation to the general
object of a statute, the purpose to repeal prior legislation is
revealed, it is the judicial function to effectuate it."
(citation omitted)); see generally 1A Norman J. Singer,
Sutherland Statutory Construction §§ 23.08 to 23.11, at 334-63
(5th ed. 1993). A good rule of statutory construction, which we
apply, is:
When a subsequent enactment covering a
field of operation coexistent with a prior
statute cannot by any reasonable construction
be given effect while the prior law remains
in existence because of irreconcilable
conflict between the two acts, the latest
legislative expression prevails, and the
prior law yields to the extent of the
conflict.
Conversely, if the inconsistency between
a later act and an earlier one is not fatal
to the operation of either, the two may stand
together and no repeal will be effected.
[Singer, supra, § 23.09, at 338-39 (footnotes
omitted).]
The critical inquiry now shifts to whether N.J.S.A. 26:11-12
is fatally inconsistent with the TCA. Although the question is
simply stated, the resolution is made more difficult because of
the absence of case law interpreting N.J.S.A. 26:11-12.
Defendants argue that N.J.S.A. 26:11-12 is not fatally
inconsistent with the TCA. They maintain that if the
administration of the vaccination fell outside of the TCA grant
of immunity in N.J.S.A. 59:6-4, N.J.S.A. 26:11-12 would still
immunize defendants if they acted in "good faith" and with
"ordinary discretion."
An analysis of N.J.S.A. 26:11-12 in light of the TCA as a
whole, however, suggests a different conclusion. N.J.S.A. 26:11-12 establishes a generalized grant of qualified immunity to
county boards "for any act done or omitted in good faith and with
ordinary discretion." N.J.S.A. 26:11-12 (emphasis added).
The TCA includes both general provisions concerning immunity
and liability, see N.J.S.A. 59:2-3; N.J.S.A. 59:3-2, and specific
provisions that govern in particular factual contexts. See,
e.g., N.J.S.A. 59:5-1 to 5-6 ("Correction and Police
Activities"); N.J.S.A. 59:6-1 to 6-7 ("Medical, Hospital and
Public Health Activities"). The TCA also expressly distinguishes
between discretionary acts and ministerial acts. See N.J.S.A.
59:2-3; N.J.S.A. 59:3-2.
N.J.S.A. 26:11-12 is clearly inconsistent with the TCA's
general discretionary immunity provisions. Under the TCA's
general grant of discretionary immunity, all public entities and
public employees are absolutely immune from liability for injury
resulting from "the exercise of judgment or discretion."
N.J.S.A. 59:2-3(a); N.J.S.A. 59:3-2(a). N.J.S.A. 26:11-12,
however, establishes a generalized grant of qualified immunity to
county boards and their agents "for any act" performed "in good
faith and with ordinary discretion." N.J.S.A. 26:11-12 (emphasis
added). We conclude that N.J.S.A. 26:11-12's grant of only
qualified immunity for discretionary acts is clearly inconsistent
with the TCA's general discretionary immunity provisions which
provide for absolute immunity in that context.
N.J.S.A. 26:11-12 is also plainly inconsistent with the
TCA's general provisions regarding liability for ministerial
acts. The TCA provides that, in general, public entities and
employees are not exonerated from liability for injuries
resulting from negligence in the performance of ministerial
functions. See N.J.S.A. 59:2-3; N.J.S.A. 59:3-2. By definition,
ministerial acts do not involve the exercise of discretion. See,
e.g., Black's Law Dictionary 996 (6th ed. 1990) (defining
"ministerial act" as act which "person or board performs under a
given state of facts in a prescribed manner . . . without regard
to or the exercise of . . . judgment upon the propriety of the
act being done"). The official comment to N.J.S.A. 59:2-3
explains that, in respect of ministerial duties, "once a public
entity does act, then `when it acts in a manner short of ordinary
prudence, liability could be adjudged as in the case of a private
party.'" Comment to N.J.S.A. 59:2-3 (quoting Fitzgerald v.
Palmer,
47 N.J. 106, 109 (1966)); see also Comment to N.J.S.A.
59:3-2 (stating that the "reasoning contained in the comment to
N.J.S.A. 59:2-3 is equally applicable to this section"). Thus,
under the TCA, the standard of liability in respect of
ministerial duties is the ordinary negligence standard.
By its plain language, N.J.S.A. 26:11-12 applies to "any
act" of a county board or its agents, and that includes
ministerial acts as well as acts of discretion. Ibid. Thus,
under N.J.S.A. 26:11-12, a public entity that performs a
ministerial act in good faith, even negligently, would be immune
from liability. Under the TCA's general rule, however, an entity
that acts negligently in the performance of a ministerial duty is
not immune from liability, regardless of good faith. We conclude
that N.J.S.A. 26:11-12 is inconsistent with the TCA treatment of
ministerial acts.
Next, we must resolve whether N.J.S.A. 26:11-12 is fatally
inconsistent with the TCA. That question is answered by looking
to the legislative purpose and design of the TCA. Generally, as
we have noted, supra at ___ (slip op. at 5), the purpose of the
TCA "`was to establish immunities for municipalities; it was not
designed to create liability.'" Russo Farms, Inc. v. Vineland
Bd. of Educ.,
144 N.J. 84, 110 (1996) (quoting Woodsum v.
Township of Pemberton,
172 N.J. Super. 489, 517 (Law. Div. 1980),
aff'd,
177 N.J. Super. 639 (App. Div. 1981)). Thus, if an
immunity existed prior to the TCA, that immunity remained
available to the public entity after the TCA's enactment unless
totally inconsistent therewith. Ibid.
Applying that principle to N.J.S.A. 26:11-12 reveals that it
is fatally inconsistent with the TCA. In the context of
discretionary activity, N.J.S.A. 26:11-12 grants only qualified
immunity, while the TCA provides a general grant of absolute
immunity. N.J.S.A. 26:11-12 "good-faith immunity," therefore,
simply cannot coexist with the TCA without undermining the
express legislative intent in the TCA to provide a general grant
of absolute immunity for the discretionary acts of public
entities.
Furthermore, if the preexisting immunities were to remain
available to public entities, that would mean that N.J.S.A.
26:11-12's grant of "good-faith immunity" would prevail over the
TCA's general provision for liability in respect of negligently
performed ministerial acts. Such an anomalous result would
defeat the express legislative intent to establish in the TCA a
general rule of no immunity for negligently performed ministerial
acts.
Moreover, the statutory scheme of the Act reveals that where
the Legislature saw fit to grant "good-faith immunity," it did so
expressly in a specified context. See N.J.S.A. 59:3-3 ("A public
employee is not liable if he acts in good faith in the execution
or enforcement of any law."). Similarly, where the Legislature
saw fit to confer absolute immunity for ministerial acts, it also
did so in specified contexts. See N.J.S.A. 59:6-4 (providing
absolute immunity in the context of examination for public health
purposes). Thus, a reasonable interpretation of the statutory
scheme is that the Legislature did not intend that immunity or
liability in general would depend on good faith. We find
therefore, that N.J.S.A. 26:11-12's general grant of "good-faith
immunity" for "any act" of a county board or its agents is
irreconcilably inconsistent with the TCA. It is deemed to have
been impliedly repealed in 1972 when the TCA was enacted.
Further, the express repeal of N.J.S.A. 26:11-12 in 1976 is
not inconsistent with our holding that N.J.S.A. 26:11-12 was
impliedly repealed by the TCA in 1972. N.J.S.A. 26:11-12 was
repealed effective April 1976 as part of the larger repeal of
Chapter 11 of Title 26. See N.J.S.A. 26:11-1 to -31, 26:11-33 to
-61, repealed by L. 1975, c. 329, § 21. Chapter 11 covered a
broad range of subject matter relating to county boards of
health. To the extent that the subject matter of the repealed
sections was reenacted, it was enacted in N.J.S.A. 26:3A2-1 to
-35, the Local Health Services Act and the County Environmental
Health Act (Chapter 3A2).
Significantly, the precise subject matter of N.J.S.A. 26:11-12 was not reenacted in Chapter 3A2. The express repeal may
indicate that the Legislature deemed N.J.S.A. 26:11-12
inconsistent with the TCA and that it had been impliedly repealed
by the TCA's enactment. Conversely, the express repeal could
indicate that N.J.S.A. 26:11-12 was still in existence in 1976.
See Singer, supra, § 23.11, at 362 ("the later express repeal of
a particular statute may be construed as some indication that the
legislature did not previously intend to repeal the statute by
implication"); Central Constr. Co. v. Horn,
179 N.J. Super. 95,
102 (App. Div. 1981) (same).
We are convinced that the Horn rule of construction "should
be accorded no more weight than is customarily given contemporary
interpretation originating from other sources." Singer, supra,
§ 23.11, at 362. Here, other factors were at play that may
explain the subsequent express repeal of N.J.S.A. 26:11-12. The
repeal of N.J.S.A. 26:11-12 was not an isolated act. That
section was repealed along with a larger group of statutes in
anticipation of the enactment of a new chapter concerning local
health departments. Thus, regardless of whether N.J.S.A. 26:11-12 was earlier repealed by implication, that section would no
doubt have been expressly repealed in 1976 when the entirety of
Chapter 11 was repealed. Therefore, the express repeal of
N.J.S.A. 26:11-12 in 1976 should be accorded little weight in the
analysis of whether N.J.S.A. 26:11-12 was previously impliedly
repealed by the TCA.
Additionally, the express repeal of N.J.S.A. 26:11-12 was
unaccompanied by a savings clause or other language limiting the
effect of its repeal.
In this State it is the general rule that
where a statute is repealed and there is no
saving[s] clause or a general statute
limiting the effect of the repeal, the
repealed statute, in regard to its operative
effect, is considered as though it had never
existed, except as to matters and
transactions passed and closed.
[Parsippany Hills Assocs. v. Rent Leveling
Bd.,
194 N.J. Super. 34, 42 (App. Div.),
certif. denied,
97 N.J. 643 (1984).]
Because plaintiff Kemp was less than six months old when the
statute was repealed in 1976, the present case cannot be regarded
as a transaction "passed and closed." Ibid. Furthermore, it is
most likely that the Legislature intended that N.J.S.A. 26:11-12
should be considered "as though it had never existed" in view of
the passage of the comprehensive TCA. Parsippany Hills Assocs.,
supra, 194 N.J. Super. at 42. The subsequent express repeal of
N.J.S.A. 26:11-12 unaccompanied by a reenactment of its subject
matter and unaccompanied by a savings clause or other language
limiting the effect of its express repeal, permits the inference
that the Legislature recognized that N.J.S.A. 26:11-12 was
inconsistent with, and therefore impliedly repealed by, the TCA.
We hold that N.J.S.A. 26:11-12's generalized grant of "good
faith immunity" is fatally inconsistent with the TCA. Therefore,
the trial court was correct in denying summary judgment on the
ground of "good-faith immunity" under N.J.S.A. 26:11-12, and on
the ground of immunity under the TCA, N.J.S.A. 59:6-4.
The judgment of the Appellate Division dismissing the
complaint is reversed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK,
O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-41 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
DELISHA KEMP, et al.,
Plaintiffs-Appellants,
v.
STATE OF NEW JERSEY, et al.,
Defendants-Respondents,
and
JOHN DOES MANUFACTURERS (1-10) RICHARD ROES
DISTRIBUTORS (1-10); et al.,
Defendants.
DECIDED January 14, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 The subject matter of the repealed statutes expressly enumerated in N.J.S.A. 59:12-2 is varied. N.J.S.A. 40A:12-26 provided immunity for all counties and municipalities for injury to persons from the use of public property. N.J.S.A. 18A:20-35 provided comparable immunity for school districts. N.J.S.A. 38A:4-9 concerned the immunity of members of the organized militia. N.J.S.A. 38A:4-10 concerned security for costs in actions against members of the organized militia. N.J.S.A. 53:1-22 related to the discretionary authority of the Attorney General to defend State police officials in criminal proceedings in the interest of the State.