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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Published.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4044-08T24044-08T2 PARIS WILSON, an infant by his Guardian Ad Litem, SONYA MANZANO, and D'ARTAGNAN MANZANO, Individually and as Administrator of the Estates of DEQUAN WILSON and DARTAGNANIA WILSON, and DEQUAN WILSON and DARTAGNANIA WILSON, Individually, Plaintiffs-Appellants, v. CITY OF JERSEY CITY, Police Officer JOSE M. SANTANA (Shield No. 2853), Police Officer ERNEST VIDAL (Shield No. 2395), 911 Operator LAURA JEAN PETERSEN (Operator No. 35), Radio Dispatcher MICHAEL EDWARD CLARK, 911 Operator BRENDA MURDAUGH-JONES (Operator No. 326), STATE OF NEW JERSEY, NEW JERSEY STATE POLICE, 911 Operator LU ANN BURD,

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Defendants-Respondents, and CITY OF JERSEY CITY, Police Officer JOSE M. SANTANA (Shield No. 2853), Police Officer ERNEST VIDAL (Shield No. 2395), 911 Operator LAURA JEAN PETERSEN (Operator No. 35), Radio Dispatcher MICHAEL EDWARD CLARK, and 911 Operator BRENDA MURDAUGH-JONES (Operator No. 326), Defendants-Third-Party Plaintiffs, v. DWAYNE WILSON and 185 MARTIN LUTHER KING DRIVE, LLC; STATE OF NEW JERSEY, NEW JERSEY STATE POLICE, Third-Party Defendants.

Argued February 3, 2010 - Decided Before Judges Stern, Graves, and J. N. Harris. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4232-06. Brian C. Harris and Patrick J. Boyle (Frankfurt, Kurnit, Klein & Selz) argued the cause for appellants (Braff, Harris & Sukonick, L.L.P., attorneys; Mr. Harris, Mr. Boyle, Gloria B. Cherry, and Lisa A. Herbert (Frankfurt, Kurnit, Klein & Selz), on the brief). Priti Vakharia, Assistant Corporation Counsel, argued the cause for respondent City of Jersey City (William Matsikousis, Corporation Counsel, attorney; Edward J. Florio, of counsel and on the brief; Michael T. Cooney and Thomas R. Brophy, on the brief). Michael A. Cifelli argued the cause for respondents Santana, Vidal, Petersen, Clark and Murdaugh-Jones (Scarinci Hollenbeck, L.L.C., attorneys; Mr. Cifelli and Robert E. Levy, of counsel and on the brief; Maureen Dougherty, on the brief). Vincent J. Rizzo, Jr., Deputy Attorney General, argued the cause for respondents State of New Jersey, New Jersey State Police and Lu Ann Burd (Paula T. Dow, Acting Attorney General attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Rizzo, on the brief). The opinion of the court was delivered by JONATHAN N. HARRIS, J.S.C. (temporarily assigned).
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Paris Wilson is the sole survivor of a tragic mass slaying. He was left for dead with life-threatening wounds as his mother and siblings lay dying nearby in their home. After enduring multiple stab wounds allegedly inflicted by his uncle, Paris was finally able----more than thirty hours after the attack----to telephone a Jersey City 9-1-1 operator for help. Rescue arrived almost immediately thereafter, but those responders could not save Paris's mother, brother, and sister who perished as a result of their grievous wounds. Unfortunately, two earlier unheeded calls to Jersey City's 9-1-1 system----one communicated during the bloodshed itself----did not promptly bring emergency response services to stop the horrors being wreaked upon the Wilson household. Plaintiffs in this litigation seek to hold several governmental actors----together with their public employers ----just as responsible for plaintiffs' harm as the alleged perpetrator himself. Our review in this appeal relates to summary judgment orders that extinguished plaintiffs' claims against all defendants on the grounds of several types of governmental immunities and certain evidentiary shortcomings. We affirm in part; reverse in part; and remand for further proceedings. I. A. Because summary judgment was granted in favor of defendants, we recite the facts most favorable to plaintiffs. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., ___ N.J. ___, ___ (2010) (slip op. at 3) (citing Guido v. Duane Morris, LLP, ___ N.J. ___, ___ (2010) (citing Roa v. LAFE, 200 N.J. 555, 562 (2010))). In the early pre-dawn hours of Tuesday, September 20, 2005, Marcia Wilson and her three young children ----DeQuan, Dartagnania, and Paris----were in their Jersey City apartment located at 185 Martin Luther King Drive, also known as 207 Wegman Parkway. According to the third amended complaint, Marcia's brother---- Dwayne Wilson----brutally attacked his family members with a knife, inflicting serious and, in some cases, lethal stab wounds upon each of them. At approximately 12:50 a.m., Anthony Andrews, who was visiting in his sister's apartment across the hall from the Wilson residence, heard an uproar and used his cellular telephone to call 9-1-1. Because Andrews's emergency call originated with a cellular telephone, it was initially routed to a New Jersey State Police (NJSP) call center where it was answered by defendant Lu Ann Burd. The call lasted only a few seconds, and resulted in an immediate transfer to the Jersey City Police Department's (JCPD) 9-1-1 call center:

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[Burd]: 9-1-1, where is your emergency? Andrews: Hello, um, um at 227 Wegman. We heard somebody screaming next door, inside this building right here. [Burd]: What town? Andrews: Jersey City. [Burd]: Alright hold on I'll connect you into the police department out there, hold on. JCPD: 9-1- 1 Operator 3-5, where is your emergency? Andrews: Uh, [Line with NJSP disconnected.] Defendant Laura Jean Petersen, a call taker at the JCPD, received Burd's transfer and spoke with Andrews: [Petersen]: 9-1-1 operator 3-5, where is your emergency? Andrews: Uh-185-uh-Wegman . . . [Petersen]: 185 WeAndrews: Yeah, I hear some screamin[g] and throwing stuff, so I don't know what's going on next door. Somebody's fighting or something. [Petersen]: Okay, and that's 185 Wegman Parkway? Andrews: Yeah. [Petersen]: Okay, we're going to get someone over there as soon as possible, sir. Andrews: Alright bye. [Petersen]: Thank you, bye bye now. [End of call.] In the moments between speaking with Burd and then with Petersen, caller Andrews----a non-resident of Jersey City----inadvertently changed the address of the location of the emergency from "227 Wegman" to "185 Wegman Parkway." Both addresses turned out to be fatally incorrect. At the conclusion of the call, Petersen completed a routine computer-aided dispatch (CAD) ticket that was transferred to defendant Michael Edward Clark, a dispatcher at the JCPD. The CAD ticket included the incorrectly reported location of 185 Wegman Parkway. For purposes of the CAD ticket, Petersen selected the call code "F1900Person screaming/calling for help; time elapsed not applicable; injury not applicable." In the narrative portion of the CAD ticket, Petersen inaccurately explained that the "[reporting party] hears screaming coming from house next door, no further info." Petersen gave the call a priority two, which----according to plaintiffs' expert witness----is the second highest response priority.
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Upon receipt and review of Petersen's CAD ticket, Clark dispatched defendant police officers Jose M. Santana and Ernest Vidal----who, between them both, had less than seven months experience----to 185 Wegman Parkway. Both officers stated in their depositions that they were expected to respond only to the address provided by the dispatcher. Arriving at the location corresponding to 185 Wegman Parkway within five minutes of Andrews's initial 9-1-1 call, officers Santana and Vidal discovered a dwelling that appeared to be unoccupied. Santana stated that it never occurred to him they were at the wrong address because they had verified it with dispatcher Clark. The police officers were unable to find anything amiss after a brief canvass of the area around 185 Wegman Parkway. At the officers' request, Clark attempted to re-call Andrews using the telephone number that had automatically appeared on Petersen's computer screen. He did so despite the fact that appropriate procedure required control sergeants or tour supervisors to attempt call-backs, unless the dispatcher asked specific permission to do so. Nevertheless, Clark pointed out that in regular daily practice, it was standard for dispatchers to make call-backs because otherwise the sergeants or supervisors would "be on the phone eight hours a day handling calls for four districts." When Clark attempted to place the call-back to Andrews, the phone rang several times and then was transferred to voice mail, at which point Clark terminated the call-back without leaving a message. He explained, "[i]t's not part of our policy and procedures to leave voice mail messages on phones." Police officers Santana and Vidal suspended their incipient hunt for an emergency and resumed their regular patrol duties after having spent approximately thirty minutes at the wrong address. Approximately twenty-two hours after making his first 9-1-1 call, Andrews placed a second 9-1-1 call at 11:09 p.m., still on Tuesday, September 20, 2005. Defendant Brenda Murdaugh-Jones of the JCPD answered the call this time: [Murdaugh-Jones]: 9-1-1 emergency Operator 326, where is your emergency? [Andrews]: Hello, I called the police last night -[Murdaugh-Jones]: Ex -[Andrews]: because I heard -- Hello? [Murdaugh-Jones]: Yes, go ahead, what did you say sir? [Andrews]: I called the police last night because I heard a little bit of noise and reckin' (sic) in the building across the hall. It sounded like somebody was fist -- it sounded like somebody was fightin[g] -- (inaudible) something. I called the police last night[.] [N]obody never came. And then all of a sudden I saw a guy rush out [of] the building [and] jump in his car and skid off in his car, so . . . I don't know what happened next door. So, somebody should have came out and checked. I called the police two times, they never came.
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[Murdaugh-Jones]: Okay Sir, let me stop you right now because I, you know, we give people the opportunity to tell us what the life threatening emergency is, so that's the first question we do ask. Do you have a life threatening emergency that's going on right now? [Andrews]: Excuse me? [Murdaugh-Jones]: Do you have a life threatening emergency that's going on right now? [Andrews]: No it would -[Murdaugh-Jones]: Alright, [Andrews]: -- it happened last night. [Murdaugh-Jones]: What you're going to do is you're going to dial back on the nonemergency number -- okay? The number you need to be dialing is 201-547 -[Andrews]: See they should have come yesterday[.] [Hang up.] Murdaugh-Jones explained in her deposition that she was trained to get off the 9-1-1 phone lines as soon as possible so that they are not tied up. In the case of Andrews's call, she listened to see if it involved a contemporaneous life-threatening event, and believed that Andrews hung up before she finished providing the Police Department's non-emergency telephone number. Meanwhile, back in the Wilson apartment, Paris had awoken on the Tuesday of the attack around 9:45 a.m. During the one hour he was conscious, he recalled hearing his sister request water but he was unable to get up to help her. His brother told Paris that they needed to find their mother's cellular phone, but Paris again lost consciousness and did not awake again until "close to the afternoon," which actually turned out to be the late morning, on Wednesday, September 21, 2005. At that point, his brother was barely alive but somehow had moved himself into another room. Paris finally managed to call 9-1-1 and direct the police to the apartment approximately thirty-four hours after the assault was first launched. By the time help finally arrived, Paris was the only one in the apartment to have survived. B. Plaintiffs filed their initial complaint on August 9, 2006. On October 8, 2008, they filed a third amended complaint, alleging: (1) negligence, gross negligence, and wanton and willful disregard for the safety of others against Jersey City-employed defendants Petersen, Murdaugh-Jones, Clark, Santana, and Vidal; (2) respondeat superior, negligent retention, training, and supervision against Jersey City; (3) negligence, gross negligence, and wanton and willful disregard for the safety of others against NJSP-employed defendant Burd; and (4) respondeat superior against the State of New Jersey and the NJSP.

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In March 2009, all defendants moved for summary judgment. Plaintiffs thereupon cross-moved for partial summary judgment against Petersen and Murdaugh-Jones. On April 15, 2009, in a written decision memorialized by four separate orders, the court granted all of defendants' motions and denied plaintiffs' cross-motion. This appeal ensued. II. A. We start with first principles: a trial court will grant summary judgment to a moving party only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); Carlson v. City of Hackensack, 410 N.J. Super. 491, 494-95 (App. Div. 2009). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2010). We employ the same standard that governs trial courts in reviewing summary judgment orders. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we contemplate, as did the Law Division, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). The motion judge determined that all of the defendants were entitled to governmental immunity from liability, but through slightly different statutory devices. The City of Jersey City was held to be immunized from plaintiffs' claims by three different provisions: N.J.S.A. 59:3-2 (Petersen, Murdaugh-Jones, Santana, and Vidal); N.J.S.A. 59:5-4 (Santana and Vidal); and N.J.S.A. 52:17C-10 (Petersen, Murdaugh-Jones, and Clark). Lastly, the State defendants----Burd, the NJSP, and the State of New Jersey----were each determined to enjoy immunity pursuant to N.J.S.A. 52:17C-10. Commonly understood, the motion judge found two sources of immunity. First, she held that particularized immunity provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, shielded several defendants from liability. Second, she determined that N.J.S.A. 52:17C-10 (Title 52 immunity) protected all of the governmental actors (with the exception of police officers Santana and Vidal) and their employers from suit. Lastly, the motion judge found
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that without a supporting expert opinion, plaintiffs' tort claims for negligent training, supervision, and retention were inadequate to present to a jury. We do not entirely subscribe to the motion judge's point of view on these issues, for the following reasons. B. Plaintiffs submit that they presented clear evidence that Jersey City call takers Petersen and Murdaugh-Jones, as well as dispatcher Clark, ignored mandatory policies and procedures, which requires disenfranchisement of both their and Jersey City's TCA immunity claims. With respect to Jersey City police officers Santana and Vidal, plaintiffs contend that the question of whether the officers' abbreviated and abruptly-ended investigation at 185 Wegman Parkway was unreasonable should have been left to a jury for its determination. In essence, plaintiffs assert that once having become involved with Andrews's emergency call, each of these governmental actors negligently performed ministerial duties in their responses. For purposes of the summary judgment disposition, we agree with some, but not all, of plaintiffs' contentions. Plaintiffs' evidence, interpreted indulgently, demonstrated that the 9-1-1 call takers did not follow published protocol and failed to ask Andrews the basic information of who, what, where, and when as prescribed by the standard operating procedures of the JCPD. Although Andrews's initial communication about the location of the assaults was concededly inconsistent and faulty, plaintiffs' experts opined that the harm suffered by the Wilson family would have been substantially mitigated if, in the two brief exchanges with Andrews, the Jersey City call takers had fully complied with the Manual's "should obtain" admonition to collect the necessary background information from the caller. If Andrews's own location had been requested (he was just across the hallway from the Wilson apartment in 185 Martin Luther King Drive), and an accurate call-back telephone number had been obtained, the police officers would have probably found the Wilson family within an hour of the deadly assault. Had there been a more thorough compilation of information during Andrews's second 9-1-1 call, emergency resources could have been provided to the victims within twenty-four hours of the bloodshed, which might have ultimately saved their lives. Plaintiffs argue that dispatcher Clark was similarly short-sighted when he tried to call Andrews back at the behest of the police officers, only to suddenly terminate the call when transferred to voicemail. The failure to leave a voicemail message instructing Andrews to call the dispatcher back contributed to the evolving harm at the scene of the crime. As for the police officers' conduct, plaintiffs argue that it was woefully incomplete and inadequate. Plaintiffs claim that the rookie police officers put off any further pursuit of pertinent information that might lead them to the

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exigent event because they viewed it as something reserved for detectives, not patrol officers. Plaintiffs highlight the close locational proximity of the actual crime scene to where the police officers were actually sent---- supposedly less than 200 feet apart----as further evidence of a negligently-conducted search for an emergency situation. Jersey City and its employees sought refuge under the correlative principles embodied in N.J.S.A. 59:5-4, which provides immunity for the failure of a public entity and its employees to provide police protection service or sufficient police protection service to members of the public. These defendants argue that all of the employees' actions were animated by purposive discretionary choices made in the heat of the moment, and were informed by the limited public resources available to them. Petersen, for example, claimed that she was in the midst of addressing another emergency call that was vying for her time and commanded her attention. Murdaugh-Jones contended that she was trained to divert non-emergency calls as quickly as possible to appropriate channels in order to remain available for authentic exigent situations. Clark asserted that he should not have even attempted the call-back to Andrews in the first place, as that task was reserved for supervisory personnel only. Santana and Vidal argued that their decision to suspend their mission was impelled by the demands and burdens of being patrol officers with numerous other assignments to juggle. Although we share empathy for each of these defendants' explanations of their conduct, and except for the police officers and the dispatcher, we are unconvinced that they were performing anything besides ministerial acts. As such, if those acts or omissions were negligently done and proximately linked to a plaintiff's harm, it would expose one or more of them, as well as their public employer, to liability and damages, notwithstanding the TCA. According to 278 N.J. Super. 312, 324 (App. Div. 1995), aff'd, 147 N.J. 90 (1996), we stated that two conditions had to be satisfied before this immunity could be properly applied. "First the challenged conduct must constitute the 'exercise of discretion.' Secondly, the conduct must be a determination whether and how to utilize resources 'in the face of competing demands.'" Id. at 324-25. A public entity or employee of such bears the burden to plead and prove immunity under the TCA. Wymbs v. Twp. of Wayne, 163 N.J. 523, 539 (2000). Thus, the burden of proving that there were "competing demands" is on defendants in this case. Manna v. State, 129 N.J. 341, 351 (1992). See also Morey v. Palmer, 232 N.J. Super. 144, 148 (App. Div. 1989) (stating that "specifically, with respect to motions for summary judgment based on municipal tort immunities, the burden is on the public entity both to plead and prove its immunity under the Act"). Our appraisal of the record, when viewed under the lens of Brill's generosity to the non-movant plaintiffs, convinces
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us that there were genuine disputed facts relating to the two Jersey City call takers' performance of ministerial---- not discretionary----acts. We take our lead from Massachi v. AHL Serv., Inc., 396 N.J. Super. 486 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008), which held that "where police officers negligently perform ministerial duties, . . . ' N.J.S.A. 59:5-4 does not insulate [them] from [the] unfortunate results of their negligently executed ministerial duties.'" Id. at 496 (quoting Suarez v. Dosky, 171 N.J. Super. 1, 10 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980)). Similarly, N.J.S.A. 59:5-4 where police left scene and perpetrator returned to inflict harm upon plaintiff). The claimed breaches of duty by the call takers, however, relate to their less than stellar on-the-scene behavior, not to governmental policy decisions that might benefit from immunity. Accordingly, Jersey City and its call takers do not enjoy similar TCA immunity. We emphasize that our point of view does not require a jury to conclude that these governmental actors conducted themselves negligently, or even if they were negligent, that such conduct proximately contributed to a plaintiff's harm. Rather, we simply cannot find that TCA immunity exists under the indulgent state of facts that we have identified for the summary judgment analysis. Plaintiffs should not be deprived of the right to present an appropriate factual backdrop and expert opinion to a jury for its thoroughgoing review. Whether plaintiffs will succeed in persuading the jury of the alleged breaches of duty and the more thorny issue of proximate cause, remains to be seen. Our analysis of the State defendants' entitlement to TCA immunity does not take a different course. Indeed, the State concedes that Burd's transfer of Andrews's first 9-1-1 call to Petersen was a ministerial act. However, the State defendants argue that even under a Brill magnifying glass, no rational trier of fact could conclude that Burd's conduct was negligent. We agree. Plaintiffs' 9-1-1 expert, Paul Linnee, opined in his report that Burd's actions in the manner of transferring Andrews's call were palpably unreasonable and grossly negligent. He took issue with the manner in which Burd transferred the call, as well as with the fact that she did not stay on the line long enough to ensure that Andrews transmitted the same information he initially relayed to her. If she had, it was conceivable that Andrews's locational discrepancies would have been realized and corrected, which might have prevented later confusion as to the true location of the ongoing crime. Linnee characterized Burd's action as an unannounced blind transfer, despite the fact that she told Andrews she was transferring his call. The expert claimed that Burd's conduct contravened N.J.A.C. 17:24-2.3(a)(7), which prohibits blind transfers: "No call-taker shall transfer a 9-1-1 call without first advising the calling party that the call is being transferred and that the caller should remain on the line until the call is connected. No 'blind transfers' are
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permitted." However, we find that Burd clearly did not engage in a blind transfer. Linnee opined that Burd should have followed the National Emergency Number Association's (NENA) Call Taking Operational Standards, which suggest that call takers "should stay on the line until the connection is complete and all pertinent information has been relayed to the answering" call taker. Linnee noted that contrary to N.J.A.C. 17:24-2.3(a)(7), "every other 9[-]1[]1 system's call transferring protocols" he had reviewed required not only that the first call taker ensure that a connection was made, but also stay on the line to be satisfied that "the caller's critical information is being effectively passed on" to the next call taker. Even if we were to hypothetically engraft NENA's provisions onto New Jersey's 9-1-1 operational standards, and then conclude that Burd had neglectfully terminated her call involvement until Andrews gave the next call taker an address different from the address he told Burd, plaintiffs have failed to show how this constitutes negligence. Both the first address----227 Wegman----and the second address----185 Wegman----were incorrect. We cannot conceive how a rational trier of fact could conclude----without engaging in rank speculation and conjecture---- that any change in the duration of Burd staying on the line would have made any conceivable difference to those being assaulted in the apartment at 185 Martin Luther King Drive. However, because Burd properly performed her ministerial duties as specified in N.J.A.C. 17:24-2.3(a)(7), and no evidence was submitted demonstrating that she was actually required to do anything further, Burd, the NJSP, and the State were all entitled to summary judgment as a matter of law, regardless of the absence of TCA immunity. C. All of the non-police officer defendants claim that they are immune from liability pursuant to N.J.S.A. 52:17C10 in 1999, at a time when several other amendments were adopted in part to recognize that the Federal Communications Commission was requiring wireless telephone companies to provide wireless enhanced 9-1-1 service. See Senate Law & Public Safety Committee, Statement to Senate Bill No. 1495 (Jan. 25, 1999). "[T]he bill also clarifies existing limitations of liability for telephone companies, wireless telephone companies and other entities in connection with enhanced 9-1-1 service and wireless enhanced 9-1-1 service and in connection with supplying assistance to investigative or law enforcement officers." Ibid. It also "provid[ed] that the limitation of liability would be inapplicable in the event of wanton or willful disregard for the safety of persons or property." Ibid. The newly re-configured provisions for limitations of liability appear in the 1999 statute as follows:

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c. No telephone company, person providing commercial mobile radio service as defined in 47 U.S.C. [

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