Carol Ann Conforti v. County of Ocean 086206)

• Court: Supreme Court of New Jersey
• Decided: August 10, 2023
• Docket: A-1-22
• Status: Published

Opinion

SYLLABUS

This syllabus is not part of the Court’s opinion. 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 Court and may not summarize all portions of the opinion.

Carol Ann Conforti v. County of Ocean (A-1-22) (086206)

Argued January 30, 2023 -- Decided August 10, 2023

WAINER APTER, J., writing for the Court.

The Court considers whether the Ocean County defendants are immune from liability by provisions of the New Jersey Tort Claims Act (TCA) in a negligence suit brought by plaintiff Carol Ann Conforti, whose husband, Kenneth Conforti, hung himself while incarcerated at the Ocean County Jail (OCJ).

In summer 2010, plaintiff obtained a restraining order against her husband. On September 8, he was arrested for violating the restraining order by returning to the marital home to see his son. Conforti was taken to the OCJ, where he was evaluated by a staff member of Correctional Health Services (CHS). A CHS staff member wrote on the “Intake Receiving and Screening” form that Conforti reported (1) drinking half a gallon of vodka each day; (2) major surgery that left him with rods and screws in his back; (3) feeling “hopeless or helpless”; and (4) the “[r]ecent significant loss” of his marriage. A physician prescribed him one extra mattress and medicine for back pain and alcohol dependence, and instructed that he not be assigned work or a top bunk. After 27 days, Conforti was released.

Just over a week later, Conforti was arrested for again returning to the marital home to see his son. He arrived at OCJ on October 13, 2010. During his intake, a CHS nurse, Kelly Clough, filled out the same form that had been filled out in September, but noted this time that Conforti reported no major surgical history, did not “feel helpless or hopeless,” had no “[r]ecent significant loss,” and was only a “social” drinker. A document from Conforti’s file acknowledged his previous incarceration and history of binge drinking but stated he had “[n]o current mental health issues/concerns” and was cleared for OCJ’s general population.

Initially assigned to a cell in which he had a bunk, Conforti was transferred to a cell in which he had to sleep on the floor. On October 16, he requested medical attention for back pain. Two days later, Clough said he could purchase Motrin or Tylenol. On October 20, Conforti wrote a suicide note to his parents, closed the door to his cell, covered the cell door window with a sheet, and hung himself.

1 Testimony at trial established that an inmate closing a cell door would cause the door to lock automatically and trigger a light to alert staff. Surveillance footage of areas outside Conforti’s cell existed and was preserved after his death, but an OCJ warden testified that it subsequently became unviewable for technological reasons. The OCJ Suicide Prevention Policy states that officers “should make unsystematic patrols of the housing area” to “hinder the inmate’s efforts” of timing the patrols and to “increase the possibility of successful intervention.” Yet the logbook indicates checks on Conforti’s cell block on October 20 at 8:03 a.m., 9:02 a.m., 9:56 a.m., 11:02 a.m., and 12:03 p.m. Any change in the logbook was supposed to be initialed, with a reason provided. Despite that, the time of the entry that followed the 12:03 p.m. health and welfare check was overwritten or obliterated with a 12:55 p.m. notation for “[p]ossible [s]uicide.” There was no reason provided, and no initials.

During discovery, plaintiff submitted an expert report from Martin Horn, who opined that defendants acted negligently by failing to adequately train and supervise OCJ staff to prevent inmate suicide; failing to adopt and implement an adequate suicide prevention policy; failing to follow OCJ’s existing Suicide Prevention Policy; failing to conduct mortality reviews and revise policies after inmate suicides; failing to “recognize Mr. Conforti presented a risk of suicide”; housing Conforti in an occupied single-bunk cell, ensuring he had no bunk to sleep on; “[f]ailing to recognize or appreciate the danger of a closed and locked cell door with a towel covering the door”; and “[e]ngaging in predictable and easily timed and anticipated patrols of the cell block when the . . . Policy prohibited systematic patrols.”

The County defendants moved for summary judgment, maintaining in part that OCJ was a medical facility under N.J.S.A. 59:6-1 and was therefore immune from liability under provisions of the TCA, N.J.S.A. 59:6-4, -5, and -6. The trial court refused to dismiss plaintiff’s negligence claim, saying nothing about the TCA. At trial, the parties presented competing fact and expert testimony regarding negligence and causation. The jury found defendants negligent and apportioned liability 60% against the County defendants and 40% against CHS. Defendants moved for judgment notwithstanding the verdict (JNOV), in part reasserting their medical-facility-immunity argument. The judge denied the motion. Defendants appealed, contending for the first time that the immunities granted in 6-4, -5, and -6 were not limited to medical facilities. The Appellate Division affirmed. The Court granted defendants’ petition for certification, 252 N.J. 53 (2022), and denied plaintiff’s cross-petition, 252 N.J. 25 (2022).

HELD: The definition of “medical facility” under N.J.S.A. 59:6-1 does not restrict the substantive immunities granted in N.J.S.A. 59:6-4, -5, or -6, which are also not “superseded in the jail suicide context.” However, there was evidence presented in this case, both at the summary judgment stage and at trial, that falls outside of any immunities granted by N.J.S.A. 59:6-4, -5, and -6. The jury could reasonably have 2 concluded from that evidence that the County defendants were negligent. The trial court was therefore correct to refuse to dismiss plaintiff’s negligence count at the summary judgment stage and to refuse to overturn the jury’s verdict after trial. The Court accordingly affirms the judgment of the Appellate Division, as modified.

1. The guiding principle of the TCA is that immunity from tort liability is the general rule and liability is the exception. N.J.S.A. 59:6-1 defines “medical facility” as “a hospital, infirmary, clinic, dispensary, mental institution, or similar facility.” The County defendants argue that, despite that definition their conduct was immunized by three separate substantive provisions of Chapter Six: N.J.S.A. 59:6-4, which grants absolute immunity for a public entity or public employee’s failure to perform an adequate examination to determine whether a person has a physical or mental condition which would be hazardous to that person or others, unless the examination is for the purpose of treatment; N.J.S.A. 59:6-5, which grants immunity to public entities and employees for diagnosing or failing to diagnose “that a person has a mental illness” or drug use disorder, and from failing to prescribe treatment for a mental illness or drug use disorder; and N.J.S.A. 59:6-6, which grants immunity for decisions regarding whether to confine a person for mental illness or drug dependence, and the terms and conditions of such confinement or release. N.J.S.A. 59:6-1’s definitions section does not limit the substantive immunities provided by 59:6-4, -5, or -6 to “medical facilities,” and the immunities set forth in 59:6-4, -5, and -6 are not “inapplicable in jail suicide cases” or “superseded in the jail suicide context.” In theory, therefore, defendants could be immunized from liability for specific conduct under 59:6-4, -5, and -6. (pp. 25-29)

2. However, because there was evidence here from which the jury could have concluded that the County defendants were negligent beyond any immunities possibly granted by N.J.S.A. 59:6-4, -5, and -6, the trial court was correct to refuse to dismiss plaintiff’s negligence count at the summary judgment stage and to refuse to overturn the jury’s verdict after trial. Reviewing the grounds on which Horn’s report opined that the County defendants were negligent, the Court finds that, even though the trial court was wrong in failing to address defendants’ arguments under the TCA at the summary judgment stage, it did not err in refusing to dismiss the negligence count because there was evidence from which a jury could find negligence without reference to any immunized conduct. And at trial, the jury heard voluminous testimony about the County defendants’ negligence that was unrelated to any conduct immunized under 59:6-4, -5, and -6, including testimony from Horn. While defendants’ expert refuted Horn’s testimony, it was up to the jury to decide which expert to believe. The jury was also free to rely on the existing OCJ Suicide Prevention Policy, admitted at trial, which provides that an “officer should make unsystematic patrols of the housing areas,” and to infer culpability against the County defendants from the “conveniently overwritten log entry and unavailable security footage.” (pp. 29-32) 3 3. The Court addresses arguments about the specific procedural history of this case. (pp. 32-37)

4. Because the jury’s verdict here is supported by non-immunized conduct introduced at trial, this case is not like others in which a claim against a public entity or public employee was held immunized by N.J.S.A. 59:6-4, -5, or -6, and the Court does not reach the contours of immunity under those provisions. The Court does note, however, that the Appellate Division erred when it stated that defendants had no immunity under 59:6-4 “regarding [Conforti]’s medical intake, which was done to assess his OCJ confinement and not conducted for treatment purposes.” That is the opposite of what 59:6-4 actually says. N.J.S.A. 59:6-4 applies only to exams that are not conducted “for the purpose of treatment” and explicitly denies immunity when examinations are conducted for treatment purposes. (pp. 37-39)

AFFIRMED AS MODIFIED.

JUSTICE FASCIALE, concurring in part and dissenting in part, agrees that the definition of “medical facility” does not restrict the substantive immunities granted in N.J.S.A. 59:6-4, -5, or -6; that the immunities granted by those statutes to public entities and public employees are not superseded in the jail suicide context; and that the trial judge correctly denied summary judgment as to that part of the negligence count alleging damages premised on evidence that falls outside of any immunities granted. In Justice Fasciale’s view, however, the trial judge should have granted summary judgment to the extent that plaintiff’s negligence claim is derived from conduct immunized under N.J.S.A. 59:6-4, -5, and possibly -6. Because the court denied the motion in its entirety, Justice Fasciale explains, plaintiff was able to present evidence that was immunized under the TCA and to make arguments based in part on immunized conduct. The cumulative effect of those combined mistakes denied the County defendants a fair trial, Justice Fasciale writes.

CHIEF JUSTICE RABNER and JUSTICES SOLOMON and PIERRE-LOUIS join in JUSTICE WAINER APTER’s opinion. JUSTICE FASCIALE filed an opinion concurring in part and dissenting in part, in which JUSTICE PATTERSON joins. JUDGE SABATINO (temporarily assigned) did not participate.

4 SUPREME COURT OF NEW JERSEY A-1 September Term 2022 086206

Carol Ann Conforti, individually and as administratrix ad prosequendum of the Estate of Kenneth Conforti and as parent natural guardian and guardian ad litem of A.C., a minor,

Plaintiff-Respondent,

v.

County of Ocean, Ocean County Board of Chosen Freeholders, in their individual and official capacities, Ocean County Department of Corrections, Warden Theodore J. Hutler, in his individual and official capacity, and Corporal Petrizzo,

Defendants-Appellants,

and

Correctional Health Services, LLC, Prison Health Services, Inc., and Kelly Clough,

Defendants.

1 On certification to the Superior Court, Appellate Division .

Argued Decided January 30, 2023 August 10, 2023

Vito A. Gagliardi, Jr., argued the cause for appellants (Porzio, Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr., of counsel and on the briefs, and Eliyahu S. Scheiman and Thomas J. Reilly, on the briefs).

Donald F. Burke, Jr., argued the cause for respondent (Law Office of Donald F. Burke, attorneys; Donald F. Burke, on the brief).

Michael J. Epstein argued the cause for amicus curiae New Jersey Association for Justice (The Epstein Law Firm, attorneys; Michael J. Epstein, of counsel and on the brief, and Michael A. Rabasca, on the brief).

Karen Thompson argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Karen Thompson, Alexander Shalom, and Jeanne LoCicero, on the brief).

JUSTICE WAINER APTER delivered the opinion of the Court.

On October 20, 2010, Kenneth Conforti wrote a suicide note, closed the

door to his cell at the Ocean County Jail (OCJ), and covered the cell door

window with a sheet. He then tied bedsheets together and hung himself from a

ceiling light fixture over the toilet.

2 Plaintiff, Kenneth Conforti’s wife, sued Ocean County, the Ocean

County Board of Chosen Freeholders, the Ocean County Department of

Corrections, retired OCJ Warden Theodore Hutler, and OCJ Corporal Peter

Petrizzo (collectively, County defendants or defendants) for negligence and a

violation of the New Jersey Civil Rights Act (NJCRA). After a trial, the jury

found defendants negligent and awarded damages to plaintiff.

Defendants claim they are immune from liability for negligence by

provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:6-4, -5, and

-6, and the jury’s verdict against them must therefore be overturned. We agree

with defendants that the definition of “medical facility” under N.J.S.A. 59:6-1

does not restrict the substantive immunities granted in N.J.S.A. 59:6-4, -5,

or -6. As defendants point out, none of those three provisions are limited to

medical facilities. Instead, they grant immunities to public entities and public

employees. We also agree with defendants that the immunities set forth in

N.J.S.A. 59:6-4, -5, and -6 are not “superseded in the jail suicide context.”

However, there was evidence presented in this case, both at the summary

judgment stage and at trial, that falls outside of any immunities granted by

N.J.S.A. 59:6-4, -5, and -6. The jury could reasonably have concluded from

that evidence that the County defendants were negligent. The trial court was

therefore correct to refuse to dismiss plaintiff’s negligence count at the

3 summary judgment stage and to refuse to overturn the jury’s verdict after trial .

We accordingly affirm the judgment of the Appellate Division, as modified.

I.

A.

Kenneth Conforti (Conforti) became totally disabled due to a workplace

injury to his back. After unsuccessful surgery, he was left in chronic pain. He

initially obtained medical treatment through worker’s compensation, but after

treatment terminated, he began self-medicating with alcohol. In the summer of

2010, his wife, plaintiff Carol Ann Conforti, obtained a restraining order

against him, and he moved in with his sister. On September 8, 2010, Conforti

was arrested for violating the restraining order by returning to the marital

home to see his then-nine-year-old son, A.C. A.C. has Down syndrome and is

deaf and non-verbal.

Conforti was taken to the OCJ, where he was evaluated by a staff

member of defendant Correctional Health Services (CHS). Pursuant to a

contract with the Ocean County Department of Corrections (DOC), CHS

provided all medical and mental health services to OCJ inmates, including

intake evaluations, examinations, screenings, and treatment. A CHS staff

member wrote on the “Intake Receiving and Screening” form that Conforti

reported (1) drinking half a gallon of vodka each day; (2) major surgery that

4 left him with rods and screws in his back; (3) feeling “hopeless or helpless”;

and (4) the “[r]ecent significant loss” of his marriage. The form indicated that

Conforti denied use of any pain or psychotropic medication, any history of

anxiety or depression or any other mental health disorder, and any history of

suicide attempts or suicidal thoughts.

Because of his reported alcohol abuse, Conforti was admitted to OCJ’s

medical unit for observation. He also underwent a psychiatric evaluation,

during which he reported no psychiatric symptoms and denied any psychiatric

history, anxiety or depression, suicidal ideations, or history of suicide

attempts. After exhibiting no symptoms of alcohol withdrawal, Conforti was

cleared to enter OCJ’s general population on September 10. A physician

prescribed him one extra mattress and 600 mg of Motrin for chronic back pain,

and instructed that he not be assigned work or a top bunk. For alcohol

dependence, Conforti was given a multi-vitamin and the medication Librium.

After twenty-seven days in jail, Conforti was released on October 4, 2010.

Just over a week later, Conforti was arrested for again violating the

restraining order by returning to the marital home to see A.C. He arrived at

OCJ on October 13, 2010. During his intake with a CHS nurse, Kelly Clough,

Conforti indicated he had never previously been incarcerated at OCJ. Clough

took Conforti at his word and filled out the same “Intake Receiving and

5 Screening” form that had been filled out by a CHS staff member in September.

This time, though, Clough marked on the form that Conforti reported no major

surgical history, did not “feel helpless or hopeless,” had no “[r]ecent

significant loss,” and was only a “social” drinker. Although Conforti was

admitted to the jail with the same inmate number he had in September, and

records from his earlier incarceration were thus available to her, Clough did

not review them.

However, a document from Conforti’s file titled “Progress Notes,”

written on October 14 by CHS mental health staff, indicated that Conforti was

seen “upon his return to OC jail” and had been previously incarcerated in the

jail on September 10 for the same offense. The note reported that Conforti had

a “[history] of binge drinking” but denied recent use, denied current suicidal

thoughts, had no psychological history, and had “[n]o current mental health

issues/concerns.” It therefore indicated he was cleared for OCJ’s general

population.

Conforti was initially assigned to a cell with two beds, but was then

transferred to a cell with one bed, which was already occupied by another

inmate. Conforti thus had to sleep on the floor. On October 16, Conforti

requested medical attention for back pain. Two days later, Clough responded

that he could purchase Motrin or Tylenol from the commissary.

6 On October 20, 2010, Conforti wrote a suicide note to his parents,

stating that death was “the only way for [him] to stop” -- otherwise, he “would

have continued to drink and get locked up.” He dated the note “10/20/10,

9:32 am.” At some point thereafter, Conforti closed the door to his cell,

causing it to lock automatically, and covered the cell door window with a

sheet. He then tied bedsheets together and hung himself from a ceiling light

fixture over the toilet.

Testimony at trial established that an inmate closing a cell door would

cause the door to lock automatically and trigger a light in the control tower to

alert staff that the door was locked. An officer was stationed in the control

tower -- a raised glass enclosure -- at all times to monitor such alerts and to

supervise the inmates both through the glass and through video surveillance.

Surveillance footage of the hallways, general housing areas outside Conforti’s

cell, and the outside of cell doors existed and was preserved after Conforti’s

death. However, Warden Sandra Mueller testified that it subsequently became

unviewable for technological reasons.

Corporal Peter Petrizzo, filling in as a floor officer in Conforti’s housing

unit on October 20, testified that he was required to walk the 130-inmate unit

once per hour for health and welfare checks, to ensure the inmates were safe

7 and abiding by OCJ policies. That included OCJ rules that “[c]ell doors will

remain unobstructed with no items hung on or over the door.”

According to Corporal Petrizzo, the checks had to be conducted hourly,

and he switched the order of the cell blocks so that he would not check the

same cell block at the same time each hour. The OCJ Suicide Prevention

Policy specifically states that officers “should make unsystematic patrols of

the housing area” to “hinder the inmate’s efforts” of timing the patrols and to

“increase the possibility of successful intervention” if an inmate were to

attempt suicide. Yet the health and welfare logbook indicates that Corporal

Petrizzo checked Conforti’s cell block on October 20 at 8:03 a.m., 9:02 a.m.,

9:56 a.m., 11:02 a.m., and 12:03 p.m.

It is not clear exactly when DOC staff first responded to a “possible

suicide” in Conforti’s housing unit. The logbook was maintained by the tower

officer, and any change was supposed to be initialed, with a reason provided

for the change. Despite that, the time of the entry that followed the 12:03 p.m.

health and welfare check was overwritten or obliterated with a 12:55 p.m.

notation for “[p]ossible [s]uicide.” There was no reason provided, and no

initials.

8 After Conforti was discovered and his cell door unlocked, officers

performed CPR. An autopsy eventually confirmed that Conforti died of

asphyxiation by hanging.

B.

On August 20, 2015, plaintiff, as administratrix ad prosequendum of

Conforti’s estate, sued the County defendants and Correctional Health

Services, LLC, its successor-in-interest Prison Health Services, Inc., and Kelly

Clough (collectively, CHS defendants), in the Ocean County Law Division.

Plaintiff’s complaint raised two counts against the County defendants:

(1) negligence and (2) violations of the New Jersey Civil Rights Act. The

CHS defendants settled with plaintiff prior to trial.

During discovery, plaintiff submitted an expert report from Martin Horn,

former Secretary of Corrections for the State of Pennsylvania, and former

Commissioner of the New York City Department of Correction. Horn opined

that the County defendants acted unreasonably, negligently, or with deliberate

indifference by failing to adequately train and supervise OCJ staff to prevent

inmate suicide; failing to adopt and implement an adequate suicide prevention

policy; failing to follow OCJ’s existing Suicide Prevention Policy; failing to

conduct mortality reviews and revise policies accordingly after inmate

suicides; failing to “recognize Mr. Conforti presented a risk of suicide”;

9 “[h]ousing Mr. Conforti in a single [bunk cell] already occupied by an inmate

(ensuring he had no bunk to sleep on)”; “[f]ailing to recognize or appreciate

the danger of a closed and locked cell door with a towel covering the door

either through patrols or video surveillance”; and “[e]ngaging in predictable

and easily timed and anticipated patrols of the cell block when the Suicide

Prevention Policy prohibited systematic patrols.”

The County defendants moved for summary judgment seeking to dismiss

both the negligence and NJCRA counts.

They argued the NJCRA claim must be dismissed because plaintiff could

not establish: (1) an unconstitutional policy under Monell v. Dep’t. of Soc.

Servs., 436 U.S. 658 (1978); (2) that prison officials knew or should have

known that Conforti had a “particular vulnerability to suicide”; or (3) that they

acted with “reckless indifference.”

The County defendants contended the negligence count must be

dismissed because: (1) plaintiff could not establish that they breached any

duty owed to Conforti; (2) intake and mental health evaluations were

completed by CHS, not by them; (3) Conforti himself denied feelings of

helplessness or hopelessness and denied any mental health history; (4) no one

at OCJ “could reasonably have foreseen that Mr. Conforti would take his own

life”; and (5) no medical or mental health information was passed by CHS to

10 the County defendants because of Health Insurance Portability and

Accountability Act of 1996 (HIPAA) regulations.

Defendants also maintained that OCJ was a medical facility under

N.J.S.A. 59:6-1 and was therefore immune from liability under provisions of

Chapter Six of the TCA, “Medical, Hospital and Public Health Activities,”

codified at N.J.S.A. 59:6-4, -5, and -6. Defendants reasoned that because OCJ

“provides medical services in its medical unit, or infirmary, for all prison

inmates,” and “provides dental care for the inmates,” it should be deemed a

“medical facility” under 59:6-1 and therefore entitled to immunity under 59:6-

4, -5, and -6. N.J.S.A. 59:6-1 defines “medical facility” as “a hospital,

infirmary, clinic, dispensary, mental institution, or similar facility.”

In support of this point, defendants quoted the text of 59:6-4 (“[f]ailure

to make physical or mental examination or to make adequate physical or

mental examination”), 59:6-5 (“failure to diagnose certain conditions”), and

59:6-6 (determination of terms of confinement). They also discussed

Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991). 1 They then reiterated: “It

1 Charpentier did not hold that N.J.S.A. 59:6-4, -5, and -6 apply only to medical facilities, or that a jail is a medical facility under the TCA. In Charpentier, a person with bipolar manic-depressive psychosis was incarcerated in the Monmouth County Correctional Institution (MCCI) and sustained injuries during a psychotic episode. 937 F.2d at 861. He sued a physician employed by MCCI for prescribing him a tranquilizer injection but

11 is clear from the foregoing case that a county correctional facility is considered

a medical facility under New Jersey law and that, therefore, Defendants in this

matter are entitled to the applicable immunities contained in chapter six of the

TCA.”2 (emphasis added).

Plaintiff interpreted defendants to be arguing that they were entitled to

immunity under N.J.S.A. 59:6-4, -5, and -6 because OCJ was a medical facility

failing to personally examine him, failing to make any diagnosis, and failing to prescribe any other treatment, including transfer to a psychiatric or medical facility. Id. at 862. The Third Circuit held that the doctor was not immune under 59:6-5 for the allegedly wrongful injection of the tranquilizer, because 6-5(a) specifically provides “nothing in this subsection exonerates a public entity or a public employee who has undertaken to prescribe for mental illness . . . from liability for injury proximately caused by [] negligence or by [a] wrongful act in so prescribing.” Id. at 864 (quoting N.J.S.A. 59:6-5(a)). However, the court found the doctor was immune under 59:6-5 for failure to prescribe any other treatment for mental illness, including transfer to a psychiatric or medical facility. Id. at 866-67. 2 The dissent focuses on the two lines in defendants’ summary judgment brief that arguably broadened their argument to go beyond medical facilities. The first is: “Nevertheless, any alleged failure to recognize Mr. Conforti’s mental state or suicidal inclination is immunized by the plain language of both N.J.S.A. 59:6-4 and 6-5.” The second is: “The foregoing notwithstanding, . . . to the extent Plaintiff alleges that [the County defendants] failed to properly diagnose Mr. Conforti’s mental state, they are entitled to the immunities provided under the [TCA] for medical and public health activities.” However, both of those sentences appeared after the sentence in which defendants made clear they believed they were entitled to immunity under 6-4 and 6-5 only because OCJ was a medical facility under 6-1: “It is clear from the foregoing . . . that a county correctional facility is considered a medical facility under New Jersey law and that, therefore, Defendants in this matter are entitled to the applicable immunities contained in chapter six of the TCA.” (emphasis added). 12 under N.J.S.A. 59:6-1. In opposition, plaintiff responded that OCJ did not fall

within the definition of a “medical facility” in 59:6-1 and was therefore not

entitled to immunity under 59:6-4, -5, or -6. Defendants’ reply brief did not

mention the TCA.

At oral argument on defendants’ motion for summary judgment, the trial

court unsuccessfully tried to elicit additional information about defendants’

TCA arguments. Counsel for defendants initially sought to “rely on the

argument in the brief” for TCA immunities. The trial court then asked: “with

respect to those . . . tort claims, what, if any, immunities come into play?”

Counsel reiterated that Conforti’s mental health assessment was conducted by

CHS, not OCJ; Conforti did not report any mental health history and denied

thoughts of suicide; and Conforti did not tell Nurse Clough that he had

previously been incarcerated at OCJ. The court interrupted:

The court: I know, but I’m speaking to the enumerated --

Counsel for defendants: Well, with regard --

The court: -- tort claim immunities. Are you going to cite anything out of Title [5]9 then? . . . I mean if you haven’t, that’s fine. But I just, you know --

Counsel for defendants: Well, I think, I think primarily we addressed the provision with regard to the, the mental health itself for failure to, I guess, recognize that he was suicidal, and I cited the case that -- where they 13 had applied it in the context of the, I believe it was Monmouth County Correctional Facility with regard to that [Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991)]. Off the, off the top of my head I don’t know that there are any other specific tort claim immunities . . . with regard to this specific allegation.

The court: I want to make sure I didn’t miss anything. Okay.

Counsel for defendants: I don’t think so.

The court: If you didn’t brief it, that’s fine.

In a written opinion, the trial court granted summary judgment to

defendants dismissing plaintiff’s Civil Rights Act claim, refused to dismiss

plaintiff’s negligence claim, and said nothing about the TCA.

On the NJCRA claim, the trial court concluded that “[t]he evidence [did]

not support the level of culpability required” for a constitutional violation. As

to the negligence claim, the court held that Horn’s expert report raised a

genuine issue of material fact as to whether Conforti’s “suicide was

foreseeable and the Ocean County Defendants negligent.” The court said

nothing about defendant’s arguments regarding TCA immunity.

Defendants did not move for reconsideration of the court’s failure to

respond to their motion as to the TCA.

Before trial, defendants filed a motion in limine about allocating liability

with the settled CHS defendants. The motion did not seek to prevent the jury 14 from hearing evidence of any conduct immunized under N.J.S.A. 59:6-4, -5, or

-6, and did not mention the TCA. The motion was eventually withdrawn.

C.

At trial, the parties presented competing fact and expert testimony

regarding negligence and causation.

Retired OCJ Warden Theodore Hutler highlighted that OCJ was

accredited by the National Commission on Correctional Health Care

(NCCHC), met all American Correctional Association (ACA) standards, and

was nearly 100% compliant with the hundreds of standards on the State

Department of Corrections inspection. He affirmed that corrections officers

were trained in suicide prevention each year. After a suicide, Warden Hutler

stated, he would do a “total review” with his senior staff to determine what, if

anything, they could have done differently, and what policies, if any, should be

changed. He testified that the jail relied on CHS for all inmate medical and

mental health screenings; that the nurses determined whether an inmate was

suicidal during intake; and that CHS did not share inmates’ medical or mental

health information with corrections officers because they believed it was

prohibited by HIPAA. He also testified that health and welfare checks were

performed in accordance with the State Administrative Code, which required

15 checks to be made once per hour during waking hours. According to Warden

Hutler, there was no requirement that the checks be irregularly timed.

Horn testified that OCJ was negligent in failing to maintain accurate

records such that they could not even “say with certainty how many suicides

there were” at the jail between 2005 and 2010: Warden Mueller testified there

were seven; retired Warden Hutler testified there were three to four; and an

OCJ document listed eight names, with three crossed out, for a total of five.

According to Horn, while the New York City Department of Correction had

0.16 suicides per thousand inmates between 2005 and 2010, OCJ had two per

thousand inmates, assuming that the five-suicides figure was correct.

Defendants were negligent, Horn testified, by failing to conduct

comprehensive mortality reviews or revise OCJ’s Suicide Prevention Policy --

which had been promulgated in 1985 and last amended in 1999 -- after the five

suicides and the additional fifty-eight suicide or self-injury attempts that

occurred at OCJ between 2005 and 2010.

Horn further testified that the County defendants were negligent by

providing inadequate training to OCJ staff on preventing inmate suicide and by

failing to follow OCJ’s existing suicide prevention policies and general

correctional standards by: (1) failing to respond when Conforti closed his cell

door, which would have immediately notified the control tower officer, and

16 obstructed his cell door window; and (2) completing “systematic and

predictable” health checks of the housing units that were easily timed by

inmates. Had OCJ staff followed its existing policies, Horn concluded, the

“chances of [Conforti] succeeding in committing suicide would have been

substantially lowered.”

Defendants’ expert Jeff Eiser, the former deputy director of the

Cincinnati, Ohio jail system, countered that jail staff at OCJ at all times

complied with the standards of care established by the New Jersey

Administrative Code, ACA, and NCCHC. He testified that OCJ’s health and

welfare checks were adequate and complied with New Jersey law, and the

checks conducted by Corporal Petrizzo on the day of Conforti’s death “were

irregular” and consistent with OCJ policy. According to Eiser, OCJ had

adequate policies, procedures, and practices regarding suicide prevention; its

training on suicide prevention complied with ACA standards and was “very

current, very up to date”; and no evidence suggested that any lack of training

contributed to Conforti’s death. Eiser also concluded that Conforti’s intake

screening complied with ACA standards, was adequate, and did not raise any

“red flags”; OCJ staff did not disregard any risk regarding Conforti’s safety or

mental health; and Conforti was housed appropriately during his October

incarceration. An inmate could commit suicide, Eiser emphasized, even when

17 jail staff followed all applicable policies. While Conforti’s suicide was tragic,

Eiser testified, it was also unforeseeable.

At the close of plaintiff’s case, the County defendants moved for a

directed verdict. The court denied the motion.

The jury found defendants negligent and apportioned liability 60%

against the County defendants and 40% against CHS. The jury awarded

plaintiff a total of $150,000 in damages under the Wrongful Death Act, and

$1,400,000 for pain and suffering under the Survival Act.

D.

Defendants moved for judgment notwithstanding the verdict (JNOV), or,

in the alternative, for a new trial and remittitur. Among their many

contentions, defendants asserted that plaintiff introduced insufficient evidence

for a jury to conclude that Conforti’s suicide was reasonably foreseeable or

that defendants were a proximate cause of Conforti’s death. Renewing their

summary judgment argument, defendants also maintained that because OCJ

was a medical facility under N.J.S.A. 59:6-1, they were entitled to immunity

under N.J.S.A. 59:6-4, -5, and -6. Defendants’ JNOV brief copied, verbatim,

the entire TCA argument from their summary judgment brief.

Applying the correct JNOV standard, the judge denied the motion. On

the first point, the trial court reasoned that there was sufficient evidence in

18 Horn’s testimony from which a jury could conclude that Conforti’s suicide was

“reasonably foreseeable to the County Defendants and that the County

Defendants’ actions were a proximate cause of Mr. Conforti’s death.” On the

second point, the court held that OCJ was not a “medical facility” under

N.J.S.A. 59:6-1, and Charpentier v. Godsil “does not stand for the proposition

that the Ocean County Jail is a ‘medical facility.’”

The court also denied defendants’ motion for a new trial and remittitur,

finding there was no “manifest denial of justice under the law on liability or

damages.”

E.

Defendants appealed. Whereas they earlier contended that OCJ was a

“medical facility” under N.J.S.A. 59:6-1 and therefore immune under

59:6-4, -5, and -6, they contended for the first time before the Appellate

Division that the immunities granted in 6-4, -5, and -6 were not limited to

medical facilities and applied instead to certain “activities,” regardless of

which public entity performed them. According to defendants, 6-4, -5, and -6

immunized “public entit[ies]” and “public employee[s]” for injuries caused by

specific activities -- “[n]one of these immunities is limited to a ‘medical

facility’” under 59:6-1’s “general definitions section.” The trial court

19 therefore plainly erred in failing to apply TCA immunity, and the “jury’s

verdict should be set aside and the case dismissed with prejudice.”

Plaintiff responded that the jury’s verdict “was not based on the Ocean

County Defendants’ ‘failure to make a physical or mental examination,’

N.J.S.A. 59:6-4; ‘failing to [properly] diagnose,’ N.J.S.A. 59:6-5; or failing to

‘confine a person for mental illness or drug dependence.’ N.J.S.A. 59:6 -6.”

(alteration in original).

The Appellate Division affirmed. Without discussing the text of 59:6-4,

-5, or -6, the Appellate Division found “County defendants’ arguments

misconstrue plaintiff’s claims against them,” because “[t]he thrust of

plaintiff’s claims” was that defendants “failed to follow DOC policies and

rules for the prevention of inmate suicide.” The Appellate Division also noted

that because the jury assessed 40% liability against “the CHS defendants who

conducted [Conforti’s] jail intake, the County defendants’ contention that the

jury verdict should be set aside because they are not liable for a failure to

diagnose is without support. Seemingly, the jury held the CHS defendants

were liable for misdiagnosing [Conforti]’s mental condition, not the County

defendants.”

Detailing the testimony at trial, the Appellate Division concluded that

the “conveniently overwritten log entry and unavailable security footage

20 allowed the jury to infer culpability [against the County defendants] from the

actual timing of the welfare checks; the amount of time [Conforti]’s cell door

was closed, locked, and obstructed; and the time it took DOC staff to respond

to the hanging.”

F.

We granted defendants’ petition for certification, limited to the question

of whether defendants were entitled to immunity under N.J.S.A. 59:6-4, -5, or

-6. 252 N.J. 53 (2022). We denied plaintiff’s cross petition. 252 N.J. 25

(2022). We also granted leave to the New Jersey Association for Justice

(NJAJ) and the American Civil Liberties Union of New Jersey (ACLU) to

participate as amici curiae.

II.

Defendants maintain they are entitled to absolute immunity under

N.J.S.A. 59:6-4, -5, and -6, for plaintiff’s claims that defendants failed to

properly diagnose or address Conforti’s psychiatric and medical conditions.

Citing the plain language of the statutory provisions, they argue that the trial

court and Appellate Division erred in holding that immunity under 59:6-4, -5,

and -6 applies exclusively to “medical facilities” defined in 59:6-1. According

to the County defendants, nothing in Chapter Six of the TCA constricts the

scope of 6-4, -5, or -6 to “medical facilities”; instead, the provisions grant

21 immunity to certain activities performed by public entities and public

employees. Citing Bernstein v. State, 411 N.J. Super. 316, 334-35 (App. Div.

2010), Perona v. Township of Mullica, 270 N.J. Super. 19, 27 (App. Div.

1994), and Parsons ex rel. Parsons v. Mullica Twp. Bd. of Educ., 226 N.J. 297

(2016), defendants argue they were entitled to TCA immunity and the “jury’s

verdict” should therefore “be set aside and the case dismissed with prejudice.”

Plaintiff endorses the Appellate Division’s holding that her claims

against defendants focused on defendants’ failure to follow and implement

suicide prevention policies and procedures, which is not immunized under

59:6-4, -5, or -6. Additionally, plaintiff asserts, 59:6-4 could not help the

County defendants because the CHS defendants, who are not entitled to

immunity under the Act because they are not public entities or public

employees, were largely responsible for “intake and mental health screening

evaluations” and “identifying and addressing [Conforti]’s particular medical

needs during his OCJ confinement.” Likewise for 59:6-5, plaintiff contends,

the jury’s 40% liability finding against CHS demonstrates that it held CHS

“liable for misdiagnosing [Conforti]’s mental condition, not the County

NJAJ supports plaintiff and makes several additional points on why

there is no immunity for County defendants under 59:6-4, -5, or -6. The

22 ACLU maintains that N.J.S.A. 59:2-2 should be used to strengthen the duty of

care owed by jailers to incarcerated people in recognition of defendants’

“outstanding duty to preserve and protect individual lives in their care and to

pursue that care over and beyond any underlying fear of civil suit.”

III.

We review motions for summary judgment under the same standard as

the trial court. Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 124-25

(2023). In so doing, we “consider whether the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party,

are sufficient to permit a rational factfinder to resolve the alleged disputed

issue in favor of the non-moving party.” Id. at 125 (quoting Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

After the jury has reached a verdict, we review a decision on a JNOV

motion pursuant to Rule 4:40-2 under the same standard applied by the trial

court. Smith v. Millville Rescue Squad, 225 N.J. 373, 397 (2016). Thus, we

consider whether the evidence presented at trial, “‘together with the legitimate

inferences therefrom, could sustain a judgment in . . . favor’ of the party ” that

prevailed at trial. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415

(1997) (omission in original) (quoting Dolson v. Anastasia, 55 N.J. 2, 5

23 (1969)). If, “accepting as true all the evidence which supports the position of

the party defending against the motion and according [that party] the benefit of

all inferences which can reasonably and legitimately be deduced therefrom,

reasonable minds could differ,” the motion for JNOV “must be denied.” Ibid.

(quoting Dolson, 55 N.J. at 5). The judicial role in ruling on or reviewing such

a motion is therefore “mechanical”: the court “is not 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 the motion.” Ibid.

(quoting Dolson, 55 N.J. at 5-6). In sum, a motion for JNOV may “only ‘be

granted where no rational juror could conclude that the plaintiff marshaled

sufficient evidence to satisfy each prima facie element of a cause of action.’”

Smith, 225 N.J. at 397 (quoting Godfrey v. Princeton Theological Seminary,

196 N.J. 178, 197 (2008)).

The difference between review of a summary judgment motion and a

JNOV motion “is that summary judgment motions are generally decided on

documentary-evidential materials, while the directed verdicts are based on

evidence presented during a trial.” Tomeo v. Thomas Whitesell Constr. Co.,

176 N.J. 366, 370 (2003).

We review questions of statutory interpretation de novo. W.S. v.

Hildreth, 252 N.J. 506, 518 (2023). When interpreting statutory language,

24 “this Court aims to effectuate the Legislature’s intent.” Ibid. As this Court

has repeatedly explained, “[t]here is no more persuasive evidence of legislative

intent than the words by which the Legislature undertook to express its

purpose,” and we thus “first look to the plain language of the statute.” Perez v.

Zagami, LLC, 218 N.J. 202, 209-10 (2014). We “ascribe[] to the statutory

words their ordinary meaning and significance and read[] them in context with

related provisions so as to give sense to the legislation as a whole.” Hildreth,

252 N.J. at 518 (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). If the

plain language of a statute is clear and unambiguous, our task is complete.

Ibid.

“[T]he ‘guiding principle’ of the Tort Claims Act is ‘that immunity from

tort liability is the general rule and liability is the exception.’” D.D. v. Univ.

of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013) (quoting Coyne v. State

Dep’t of Transp., 182 N.J. 481, 488 (2005)).

Chapter Six of the TCA is entitled “Medical, Hospital and Public Health

Activities.” The chapter begins with a “Definitions” section, N.J.S.A. 59:6-1.

Included in that section is a definition of “medical facility” as “a hospital,

infirmary, clinic, dispensary, mental institution, or similar facility.” Ibid. The

County defendants argue that, despite that definition -- and the trial court’s

25 finding that OCJ did not meet it -- their conduct was immunized by three

separate substantive provisions of Chapter Six: N.J.S.A. 59:6-4, -5, and -6.

N.J.S.A. 59:6-4, “Failure to make physical or mental examination or to

make adequate physical or mental examination,” grants immunity for certain

physical and mental examinations. It reads in relevant part:

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.

The section thus grants “absolute immunity” for a public entity or public

employee’s “failure to perform an adequate examination” to determine whether

a person has a physical or mental condition which would be hazardous to that

person or others, and then “establishes an exception to the general rule of

absolute immunity if the examination is ‘for the purpose of treatment.’” Kemp

by Wright v. State, 147 N.J. 294, 300 (1997) (quoting N.J.S.A. 59:6-4); see

also Parsons, 226 N.J. at 310 (finding that “a visual acuity test” by an

elementary school nurse “is a ‘physical examination’ administered to further

the public health of students pursuant to N.J.S.A. 59:6-4” and is not

26 undertaken “for the purpose of treatment” because it is a “merely preventative

screening[]”).

N.J.S.A. 59:6-5, “Immunity from liability for failure to diagnose certain

conditions,” grants immunity for diagnosing or failing to diagnose a mental

illness or a substance abuse disorder involving drugs, and for failing to

prescribe treatment for such conditions. It provides:

a. Neither a public entity nor a public employee is liable for injury resulting from diagnosing or failing to diagnose that a person has a mental illness or is a person with a substance use disorder involving drugs or from failing to prescribe for mental illness or a substance use disorder involving drugs; provided, however, that nothing in this subsection exonerates a public entity or a public employee who has undertaken to prescribe for a mental illness or a substance use disorder involving drugs from liability for injury proximately caused by negligence or by a wrongful act in so prescribing.

The provision thus grants immunity to public entities and employees for

diagnosing or failing to diagnose “that a person has a mental illness” or drug

use disorder, and from failing to prescribe treatment for a mental illness or

drug use disorder.

Lastly, N.J.S.A. 59:6-6, “Determinations in accordance with applicable

enactments,” grants immunity for decisions regarding whether to confine a

person for mental illness or drug dependence, and the terms and conditions of

such confinement or release. It prescribes that

27 a. Neither a public entity nor a public employee is liable for any injury resulting from determining in accordance with any applicable enactment:

(1) whether to confine a person for mental illness or drug dependence;

(2) the terms and conditions of confinement for mental illness or drug dependence;

(3) whether to parole, grant a leave of absence to, or release a person from confinement for mental illness or drug dependence.

This last section thus grants immunity to public entities and public employees

for “determining in accordance with any applicable enactment,” “whether to

confine a person for mental illness or drug dependence,” the terms and

conditions of such confinement, and whether to release a person from such

confinement.

Significantly, the words “medical facility” cannot be found in N.J.S.A.

59:6-4, -5, or -6. The text of all three provisions is clear. All three grant

immunity to a “public entity” or “public employee” in particular

circumstances. None grants immunity only to “medical facilities” or public

entities or public employees that qualify as medical facilities.

At the summary judgment stage, defendants asserted they were immune

under 59:6-4, -5, and -6, because OCJ was a “medical facility” within the

meaning of 59:6-1. Plaintiff opposed immunity, arguing OCJ was not a

28 medical facility under 59:6-1. Defendants now correctly maintain that 59:6-

1’s definitions section does not limit the substantive immunities provided by

59:6-4, -5, or -6 to “medical facilities.” Cf. Allen v. V & A Bros., Inc., 208

N.J. 114, 130-31 (2011) (noting that the operative section of a statute, not its

definitional section, determines liability). We also agree with defendants that

the immunities set forth in 59:6-4, -5, and -6 are not “inapplicable in jail

suicide cases” or “superseded in the jail suicide context.”

In theory, therefore, defendants could be immunized from liability for

specific conduct under 59:6-4, -5, and -6.

However, because there was evidence here both at the summary

judgment stage and during trial from which the jury could have concluded that

the County defendants were negligent beyond any immunities possibly granted

by N.J.S.A. 59:6-4, -5, and -6, the trial court was correct to refuse to dismiss

plaintiff’s negligence count at the summary judgment stage and to refuse to

overturn the jury’s verdict after trial.

At the summary judgment stage, Horn’s report opined that the County

defendants were negligent by failing to adequately train OCJ staff on

preventing inmate suicide; failing to adopt and implement an adequate suicide

prevention policy; failing to follow OCJ’s existing Suicide Prevention Policy;

29 failing to conduct mortality reviews after inmate suicides and to revise policies

accordingly; “[f]ailing to recognize or appreciate the danger of a closed and

locked cell door with a towel covering the door either through patrols or video

surveillance”; and “[e]ngaging in predictable and easily timed and anticipated

patrols of the cell block” for all inmates, when OCJ’s Suicide Prevention

Policy specifically prohibited easily timed patrols. None of that conduct

would be immune under 59:6-4, -5, or -6, which immunize injuries caused by

failing to make an adequate physical or mental examination that is not for

purposes of treatment, failing to diagnose that a person has a mental illness or

drug use disorder or to treat that disorder, and failing to confine a person “for

mental illness or drug dependence,” and the terms and conditions of such

Therefore, even though the trial court was wrong in failing to address

defendants’ arguments under the TCA at the summary judgment stage, it did

not err in refusing to dismiss count one of plaintiff’s complaint because there

was evidence from which a jury could find negligence without reference to any

immunized conduct. See, e.g., Chiofalo v. State, 238 N.J. 527, 545 (2019)

(noting that “[t]he trial court’s focus was on the facts presented, and on that

basis we cannot say that the denial of summary judgment . . . was in error” and

30 it is “unfair to reassess the summary judgment record based on arguments that

were not advanced”).

At trial, the jury then heard voluminous testimony about the County

defendants’ negligence that was unrelated to any failure to examine, failure to

diagnose or treat, or failure to “confine a person for mental illness or drug

dependence,” or the terms and conditions of such confinement, under 59:6 -4, -

5, and -6. This included testimony from Horn that OCJ was negligent in

failing to be able to “say with certainty how many suicides there were” at the

jail between 2005 and 2010; failing to conduct comprehensive mortality

reviews or to revise OCJ’s Suicide Prevention Policy -- which had been

promulgated in 1985 and last amended in 1999 -- after at least five suicides

and fifty-eight suicide or self-injury attempts between 2005 and 2010;

providing inadequate training to OCJ staff on preventing inmate suicide;

failing to respond when Conforti closed his cell door, which would have

immediately notified the control tower, and obstructed his cell door window;

and failing to follow OCJ’s policies and general correctional standards by

completing “systematic and predictable” health checks that were easily timed

by inmates.

While defendants’ expert, Jeff Eiser, refuted Horn’s testimony, it was up

to the jury to decide which expert to believe. The jury was also free to rely on

31 the existing OCJ Suicide Prevention Policy, admitted at trial, which provides:

“An inmate who is serious about committing suicide will try to estimate a time

to carry out his plan when the likelihood of being discovered by someone [is]

small. For this reason the officer should make unsystematic patrols of the

housing areas.” And as the Appellate Division noted, the testimony about the

“conveniently overwritten log entry and unavailable security footage”

“allowed the jury to infer culpability” against the County defendants for

conduct that was unrelated to anything immunized by 59:6-4, -5, or -6.

1.

County defendants claim that “because the case was mishandled by the

trial court, the jury was never given an opportunity to distinguish between the

sort of negligence we assert would be immunized and the sort of negligence

which might not have been.” In the County defendants’ telling, they were

“prejudiced” because “there was no distinction made in terms of what was

submitted to the jury.”

But that ignores what actually happened both before and during trial.

The County defendants moved for summary judgment before trial not to keep

specific evidence of immunized conduct away from the jury, but to dismiss

count one of plaintiff’s complaint: negligence. A fair reading of their

summary judgment brief reveals that they argued they were immune from

32 liability for negligence under 59:6-4, -5, and -6 because they were a “medical

facility” under 59:6-1. As earlier noted, the trial court erred in failing to

respond to that contention. But it did not err in failing to dismiss count one of

plaintiff’s complaint under 59:6-4, -5, and -6, because the negligence claim

was supported by conduct that was not immunized by those sections of the

TCA.

Because the trial court’s written decision on their motion for summary

judgment said nothing about the TCA at all, defendants could have filed a

motion for reconsideration. See Rule 4:49-2 (requiring that a motion for

reconsideration shall “state with specificity the basis on which it is made,

including a statement of the matters or controlling decisions that counsel

believes the court has overlooked”) (emphasis added). We concur with our

dissenting colleagues that a motion for reconsideration is not a means for

“defendants to get a second bite at the apple.” Post at ___ (slip op. at 31). But

if the trial court did not consider TCA immunities in the first instance, even

though they were raised by defendants, defendants would not be attempting to

relitigate or refine their arguments; rather, they would be requesting that the

court review an otherwise overlooked argument that was properly raised in the

initial motion. Indeed, “a motion for reconsideration provides the court, and

not the litigant, with an opportunity to take a second bite at the apple to correct

33 errors inherent in a prior ruling.” Medina v. Pitta, 442 N.J. Super. 1, 18 (App.

Div. 2015); see also James H. Walzer, N.J. Practice, Civil Practice Forms §

105:47 (6th ed. 2023) (“[I]n practice the motion [for reconsideration] requires

a showing of law or facts presented in the motion papers that were overlooked

or misapprehended and would result in a different result.”).

Then, although defendants filed a motion in limine about allocating

liability with the settled CHS defendants, they did not seek to prevent the jury

from hearing evidence of conduct arguably immunized under N.J.S.A. 59:6-4,

-5, and -6, including failing to screen Conforti, completing an inaccurate or

incomplete screening, or failing to correctly house or place Conforti at OCJ.

At the time defendants filed their motion in limine, the trial court had not

rejected immunity under those sections; it had simply passed over it.

We agree with our dissenting colleagues that “[a] motion in limine is ‘[a]

pretrial request that certain inadmissible evidence not be referred to or offered

at trial.’” Post at ___ (slip op. at 34) (citing Black’s Law Dictionary 1109 (9th

ed. 2009)). We concur that a motion regarding the “admissibility of

evidence,” must be one that “if granted, would not have a dispositive impact

on a litigant’s case.” Post at ___ (slip op. at 34) (quoting Jeter v. Sam’s Club,

250 N.J. 240, 250 (2022)). We thus agree that granting a motion in limine

should not “result in the dismissal of a plaintiff’s case.” Jeter, 250 N.J. at 250.

34 That is precisely why a motion in limine would have been proper here.

As we have already explained, defendants wrongly sought to dismiss

plaintiff’s entire negligence count on the ground that (as they later articulated

clearly to this Court), some of the facts supporting that count concerned

conduct that was immunized by N.J.S.A. 59:6-4, -5, and -6. A motion to

exclude evidence of conduct immunized by 59:6-4, -5, and -6, therefore, could

have been brought as a motion in limine exactly because, if properly granted, it

“would not have [had] a dispositive impact on a litigant’s case.” Ibid.

By definition, a “dispositive motion,” “if granted, results in a judgment

on the case as a whole, as with a motion for summary judgment or a motion to

dismiss.” Black’s Law Dictionary (11th ed. 2019). Here, a motion to exclude

evidence of immunized conduct, properly decided, would not have led to the

dismissal of plaintiff’s complaint, or even the dismissal of count one of

plaintiff’s complaint, because plaintiff’s negligence count was supported by

evidence that is not immunized under any reading of 59:6-4, -5, and -6. A

motion in limine requesting that evidence of conduct immunized by 59:6-4, -5,

and -6 not be referred to or offered at trial would therefore not have been

dispositive. We continue to warn attorneys against filing motions in limine

that would “result in the dismissal of a plaintiff’s case.” Jeter, 250 N.J. at 250.

35 2.

On appeal, defendants maintained that the trial court erred when it

“bunched more than a half-dozen disparate theories of negligence against the

Jail into a single [jury] charge and question on the verdict sheet, obfuscating

any understanding of the basis” of the jury’s verdict. They continue that

objection here, faulting the trial court for not using a “jury verdict form . . .

that would have allowed the jury to distinguish between the sort of negligence

in the screening and in the confinement that we assert were immunized from

liability and the sort of conduct . . . that might not have been.”

But defendants did not request a jury charge that would distinguish

between evidence of immunized and non-immunized conduct. Nor did they

request a special verdict form or special interrogatory to “pars[e] out the

different types of negligence” and ensure that the jury’s verdict was based only

on non-immunized conduct. Instead, defendants consented to the trial court’s

charge to the jury and to the jury verdict sheet.

3.

Finally, the County defendants assert they are at least entitled to a new

trial because there is “no way of knowing” whether the jury held them liable

for immunized or non-immunized conduct.

36 Defendants’ argument that “we don’t know what was in the jury’s mind”

overlooks the standard of review on a JNOV motion. In reviewing a motion

for judgment notwithstanding the verdict, a court does not attempt to discern

how the jury reached its verdict or what evidence the jury credited versus what

evidence it discounted. Instead, the inquiry is only “whether ‘the evidence

[presented at trial], together with the legitimate inferences therefrom, could

sustain a judgment in . . . favor’” of the party that prevailed at trial. Sons of

Thunder, 148 N.J. at 415 (omission in original) (emphasis added) (quoting

Dolson, 55 N.J. at 5). Here, the evidence presented at trial, along with all

legitimate inferences therefrom, could sustain a judgment in favor of plaintiff

without reference to any immunized conduct. The trial court was therefore

correct to deny defendants’ JNOV motion.

4.

We address two other points only briefly. First, because the jury’s

verdict is supported by non-immunized conduct introduced at trial, this case is

simply not like others in which a claim against a public entity or public

employee was held immunized by N.J.S.A. 59:6-4, -5, or -6. See, e.g.,

Bernstein, 411 N.J. Super. at 327, 332-35 (holding that “[e]ven if [the]

defendants’ treatment or diagnosis” of an inmate who had “suffered from

psychological problems and had a history of violent behavior” was negligent,

37 failing to “order[] his segregation from the general prison population” was

immune pursuant to N.J.S.A. 59:6-4, -5, and -6); Perona, 270 N.J. Super. at

26-28 (concluding that police officers were immune under N.J.S.A. 59:6-6 for

failing to confine a person whose husband believed she was suicidal); Parsons,

226 N.J. at 299-301 (finding that a school district and school nurse were

immune from liability under N.J.S.A. 59:6-4 for failing to timely notify

parents that their daughter failed a visual acuity test); Charpentier, 937 F.2d at

861, 867 (determining that N.J.S.A. 59:6-5 immunized a physician’s alleged

negligent failure to transfer an arrestee from a county correctional institution

to a medical or psychiatric facility); Predoti v. Bergen Pines Cnty. Hosp., 190

N.J. Super. 344, 345-47 (App. Div. 1983) (holding that N.J.S.A. 59:6-6

immunized a psychiatric hospital’s decision to move a patient who suffered

from schizophrenia from the “closed ward” to the “open ward,” which allowed

him to walk the hospital grounds).

Second, because there was non-immunized conduct introduced at trial

sufficient to sustain the jury’s verdict on plaintiff’s negligence count under any

construction of 59:6-4, -5, and -6, we need not respond to the parties’ or

amici’s specific arguments about the precise contours of immunity under those

38 provisions.3 We do, however, note that defendants are correct that the

Appellate Division erred when it stated that defendants had no immunity under

59:6-4 “regarding [Conforti]’s medical intake, which was done to assess his

OCJ confinement and not conducted for treatment purposes.” That is the

opposite of what 59:6-4 actually says. N.J.S.A. 59:6-4 applies only to exams

that are not conducted “for the purpose of treatment” and explicitly denies

immunity when examinations are conducted for treatment purposes. See also

Kemp by Wright, 147 N.J. at 300 (noting that N.J.S.A. 59:6-4 “establishes an

exception to the general rule of absolute immunity if the examination is ‘for

the purpose of treatment’”).

IV.

For the reasons stated, the judgment of the Appellate Division is

3 This includes plaintiff’s assertion that Conforti was “detained on criminal charges” and not “confined for mental illness” under N.J.S.A. 59:6-6; NJAJ’s claim that N.J.S.A. 59:6-4 would not apply because all CHS medical intake evaluations and screenings were “for the purpose of treatment,” and thus fall under 6-4’s “treatment exception”; NJAJ’s position that 59:6-5 applies only to physicians or people otherwise authorized to diagnose mental illness or drug dependence; NJAJ’s assertion that alcoholism does not fall within 59:6-1’s definition of “drug dependence” and there is therefore no immunity under 6 -5 or -6; and NJAJ’s argument that 6-6 is inapplicable because neither CHS nor the County defendants undertook any process to determine whether to confine Conforti “in accordance with any applicable enactment” and because confinement for violating a restraining order does not constitute “confinement for the care and treatment of mental illness.” 39 CHIEF JUSTICE RABNER and JUSTICES SOLOMON and PIERRE- LOUIS join in JUSTICE WAINER APTER’s opinion. JUSTICE FASCIALE filed an opinion concurring in part and dissenting in part, in which JUSTICE PATTERSON joins. JUDGE SABATINO (temporarily assigned) did not participate.

40 Carol Ann Conforti, individually and as administratrix ad prosequendum of the Estate of Kenneth Conforti and as parent natural guardian and guardian ad litem of A.C., a minor,

County of Ocean, Ocean County Board of Chosen Freeholders, in their individual and official capacities, Ocean County Department of Corrections, Warden Theodore J. Hutler, in his individual and official capacity, and Corporal Petrizzo,

Correctional Health Services, LLC, Prison Health Services, Inc., and Kelly Clough,

JUSTICE FASCIALE, concurring in part, dissenting in part.

1 I entirely concur with four important, well-reasoned conclusions reached

by the majority. First, the definition of “medical facility” under N.J.S.A.

59:6-1 “does not restrict the substantive immunities granted in N.J.S.A. 59:6-4,

-5, or -6” because “none of those three provisions are limited to medical

facilities.” Ante at ___ (slip op. at 3). Second, N.J.S.A. 59:6-4, -5, and -6

“grant immunities to public entities and public employees.” Ante at ___ (slip

op. at 3). Third, “the immunities set forth in N.J.S.A. 59:6-4, -5, and -6 are not

‘superseded in the jail suicide context.’” Ante at ___ (slip op. at 3). And

fourth, the trial judge correctly denied the County defendants’1 motion for

summary judgment as to that part of the negligence count alleging damages

premised on evidence “that falls outside of any immunities granted by N.J.S.A.

59:6-4, -5, and -6.” Ante at ___ (slip op. at 3). In other words, the jury

correctly considered that part of plaintiff’s negligence claim -- plaintiff had the

right to proceed with that theory of the case. I therefore concur with those

important determinations reached by my colleagues in the majority.

But to the extent that plaintiff’s negligence claim is derived from

conduct immunized under N.J.S.A. 59:6-4, -5, and possibly -6, the trial judge

1 The “County defendants” are the County of Ocean; Ocean County Board of Chosen Freeholders (in their individual and official capacities); Ocean County Department of Corrections; Warden Theodore J. Hutler (in his individual and official capacity); and Corporal Petrizzo.

2 should have granted the County defendants’ summary judgment motion in part,

which would have barred such evidence at trial. Such a negligence theory

cannot survive the liability immunity granted under the New Jersey Tort

Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3. Instead, the judge erroneously

denied, in its entirety, their motion for summary judgment seeking to dismiss

the negligence count. At trial, the opening statement by plaintiff’s counsel set

the stage for introducing evidence of negligence against the County defendants

derived from conduct immunized under N.J.S.A. 59:6-4, -5, and possibly -6.

Plaintiff’s counsel then introduced at trial evidence against the County

defendants that was immunized under the TCA, and in closing, made

statements expressly predicating plaintiff’s claim in part on immunized

conduct. The cumulative effect of those combined mistakes tainted the jury,

was clearly capable of leading to an unjust result, and denied the County

defendants a fair trial.

Moreover, I disagree with the notion that trial counsel for the County

defendants are at fault for failing to move for reconsideration. For the reasons

that I later explain, reconsideration would have been futile. I also dispute the

contention that rather than filing a motion for summary judgment seeking to

dismiss that part of plaintiff’s negligence claim premised on immunized

conduct, they should have raised the immunity issue on the eve of trial in

3 limine. The other possible options recognized by my colleagues, such as a

special jury charge or verdict sheet, respectfully, were not viable solutions for

the County defendants to mitigate the improper introduction of evidence of

negligence premised on immunized conduct.

For those reasons, I respectfully concur in part and dissent in part.

It is well-settled “that the ‘guiding principle’ of the [TCA] is ‘that

“immunity from tort liability is the general rule and liability is the

exception.”’” D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134

(2013) (quoting Coyne v. State Dep’t of Transp., 182 N.J. 481, 488 (2005)).

This broad immunity applies to a negligence theory derived in part by conduct

immunized under the TCA. Accordingly, “a public entity is ‘immune from tort

liability unless there is a specific statutory provision’ that makes it answerable

for a negligent act or omission.” Polzo v. County of Essex, 209 N.J. 51, 65

(2012) (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)).

Those principles are well settled.

Importantly, when reviewing an order denying a request to dismiss a

negligence claim against a public entity, we must bear in mind that public

entities are liable “only . . . within the limitations of [the TCA] and in

accordance with the fair and uniform principles established [t]herein.”

4 N.J.S.A. 59:1-2. The TCA was “designed to reestablish the immunity of

public entities while relieving some of the harsh results of the doctrine of

sovereign immunity.” Alston v. City of Camden, 168 N.J. 170, 176 (2001)

(quotation omitted). In general, “the approach of the [TCA] is to broadly limit

public entity liability.” Ibid. (quoting Harry A. Margolis & Robert Novack,

Claims Against Public Entities, cmt. to N.J.S.A. 59:1-2 (2001)).

In this case, the County defendants filed a summary judgment motion

seeking dismissal of plaintiff’s entire complaint. In addition to a third count

against only non-public entities -- collectively referred to here as “CHS” or

“the CHS defendants” -- that have since settled with plaintiff and left the case,

the complaint asserted two causes of action against the County defendants:

negligence (count one) and violations of the New Jersey Civil Rights Act

(count two). The judge granted summary judgment in favor of the County

defendants as to count two but denied the County defendants’ motion for

summary judgment as to count one, the negligence claim. The judge did not

address in writing the immunities that the County defendants raised.

Plaintiff’s negligence claim, however, included multiple allegedly

negligent acts or omissions. Count one included allegations that the County

defendants lacked training, considering prior jail suicides; failed to adopt an

adequate suicide prevention policy; failed to provide mortality reviews;

5 engaged in predictable patrols that were prohibited by the then-existing

Suicide Prevention Policy; and failed to recognize or appreciate the danger of a

closed cell door with a towel obstructing view inside the cell. Those

allegations are not immunized under the TCA. Some of plaintiff’s other

allegations, however, assert that the County defendants acted negligently by

engaging in conduct that was arguably immunized by at least N.J.S.A. 59:6-4

and -5.

Thus, count one of plaintiff’s complaint combined allegations that

support theories of negligence based on immunized and non-immunized

conduct. The County defendants sought summary judgment dismissing all

negligence claims. The trial judge erred by failing to grant that part of the

motion seeking to dismiss the negligence claim premised on immunized

conduct. Fact issues precluded summary judgment as to the County

defendants’ non-immunized acts.

Although my colleagues point out that plaintiff “interpreted [the County]

defendants to be arguing [at the summary judgment stage] that they were

entitled to immunity under N.J.S.A. 59:6-4, -5, and -6 because OCJ was a

medical facility under N.J.S.A. 59:6-1,” --- ante at ___ (slip op. at 12-13), that

interpretation of the County defendants’ argument is incomplete. Instead of

6 making only that contention, the County defendants also relied at the summary

judgment stage on the plain language of N.J.S.A. 59:6-4 and -5.

Therefore, the trial judge was obligated to apply N.J.S.A. 59:6-4 and -5.

Even if the County defendants’ trial counsel argued that they were entitled to

immunity under N.J.S.A. 59:6-4, -5, and -6 specifically because the OCJ was a

“medical facility” as defined by N.J.S.A. 59:6-1, the trial judge should have

recognized upon analyzing the text of the statutes that N.J.S.A. 59:6-4, -5, and

-6 grant immunity to any “public entity” or “public employee.” ------- See ante at

___ (slip op. at 28). The words “medical facility” cannot be found in N.J.S.A.

59:6-4, -5, or -6.

N.J.S.A. 59:6-4, “Failure to make physical or mental examination or to

make adequate physical or mental examination,” grants immunity for certain

physical and mental examinations. It reads in relevant part that

[e]xcept 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.

7 N.J.S.A. 59:6-4 grants “absolute immunity,” therefore, for a public entity or

public employee’s alleged failure to “make an adequate examination” to

determine whether a person has a physical or mental condition which would be

hazardous to that person or others. Ante at ___ (slip op. at 26). The County

defendants are immune from liability for alleged negligent conduct that falls

under N.J.S.A. 59:6-4.

Without quoting every allegation in the complaint that arguably fits

within the immunity contemplated under N.J.S.A. 59:6-4, I refer to some

allegations that, taken together, demonstrate plaintiff’s negligence theory was

based in part on the County defendants’ alleged “failure to . . . make an

adequate . . . examination” to determine whether Mr. Conforti had a physical

or mental health condition that would be hazardous to himself.

97. Notwithstanding the inadequacy of the Ocean County Department of Corrections Suicide Prevention policy, adherence to [that policy] would have identified Mr. Conforti as a suicide risk.

98. This is because, as a result of the first intake evaluation of Mr. Conforti conducted in September of 2010, the jail intake personnel and other jail staff had actual knowledge of Mr. Conforti’s alcohol abuse; of his alcohol addiction; of his prior spinal surgery and resulting pain and impairment and of the recent significant deterioration of his marriage.

99. Mr. Conforti faced a “crisis situation” as identified by the Ocean County Department of Corrections 8 Suicide Prevention policy because of the following factors: 1) the deterioration of Mr. Conforti’s family life; 2) Mr. Conforti’s feelings of hopelessness and helplessness; and 3) Mr. Conforti’s chronic pain.

100. . . . [A]gents, servants and employees of [the County defendants listed in this paragraph] had actual knowledge of this as a result of the intake evaluation of Mr. Conforti in September of 2010 but these problems were ignored in October of 2010.

101. Notwithstanding the presence of factors identified by the Ocean County Department of Corrections Suicide Prevention policy as presenting a risk of suicide, Mr. Conforti was never referred to Medical Staff as being a suicide risk during his October 2010 incarceration.

....

112. . . . [A]gents, servants and employees of [the County defendants] took a “pro forma” approach to the process of assessing this inmate and overlooked serious issues that would have led to a different outcome.

116. [The County defendants’] . . . failure to recognize Mr. Conforti presented a risk of suicide based on the first intake evaluation of Mr. Conforti conducted in September of 2010 . . . shows a deliberate indifference toward Mr. Conforti’s well-being and was clearly unreasonable and therefore negligent.

[(emphases added).]

9 Plaintiff’s opposition to the County defendants’ summary judgment

motion demonstrates further that plaintiff’s negligence theory derives in part

from acts immunized under N.J.S.A. 59:6-4 and -5. Consistent with the

allegations in the complaint, and pertinent to N.J.S.A. 59:6-4, plaintiff pointed

to the County defendants’ alleged “failure to . . . make an adequate . . .

examination” to determine whether Mr. Conforti had a physical or mental

health condition that would be hazardous to himself, as several of plaintiff’s

responses to the County defendants’ statement of material facts reveal:

11. During the [October] intake screening . . . Mr. Conforti denied feeling hopeless or helpless.

ADMITTED but see . . . the . . . discrepancy between the first admission in September 2010 and the subsequent admission in October of 20[10].

13. During both mental health screenings Mr. Conforti denied being diagnosed with major depression.

DENIED. The defendants’ records speak for themselves but, a jury may reject the proposition that they reflect what Conforti said.

14. Mr. Conforti was released to the general population without any special doctor’s orders.

ADMITTED but . . . [t]he reasons for Mr. Conforti receiving “special doctor’s orders” in September 2010 did not change up to the time of the October 2010 incarceration and defendants w[ere] negligent in not reviewing the records pertaining to Mr. Conforti’s 10 September 2010 incarceration and inquiring why Mr. Conforti was not providing the same responses and taking appropriate action.

19. During the initial booking process medical and mental health screenings and assessments were contracted by the medical provider.

ADMITTED but the medical provider was operating pursuant to contract with and under the supervision of [the County defendants]. Further, [the County defendants] are responsible for negligence of CHS and were responsible for making sure communications between CHS and other jail personnel was adequate to apprise jail personnel of medical and mental health status of inmates in custody such as Conforti.

20. The nurse and/or mental health [personnel] made the determination as to whether an inmate is suicidal.

DENIED as stated. [The County defendants’] staff also played a role in intake evaluation and assessment of inmates.

21. The corrections officers are not provided with mental health or medical information related to the inmates because of HIPAA regulations.

DENIED as stated. Defendant Hutler testified “I mean, if there was anything that staff . . . needed to know, medical would tell them.” . . . Neither CHS nor the County checked the September medical records of Mr. Conforti which would have disclosed he was withholding information and should have led to further inquiry and scrutiny of Mr. Conforti during his October 2010 incarceration.

[(emphases added).] 11 Plaintiff’s additional statement of disputed material facts similarly relies

on the County defendants’ alleged “failure to . . . make an adequate . . .

examination,” which is arguably immunized under N.J.S.A. 59:6-4:

37. . . . [A] jury issue . . . exists as to whether adherence to the Ocean County Department of Corrections Suicide Prevention policy would have readily identified Mr. Conforti as a suicide risk. This is because, as a result of the first intake evaluation of Mr. Conforti conducted in September of 2010, the jail intake personnel and other jail staff had actual knowledge of Mr. Conforti’s alcohol abuse; of his alcohol addiction; of his prior spinal surgery and resulting pain and impairment[;] and of the recent “significant loss” resulting from the deterioration of his marriage.

39. Importantly, [the County defendants] had actual knowledge of this as a result of the intake evaluation of Mr. Conforti in September of 2010 and notwithstanding the presence of factors identified by the Ocean County Department of Corrections Suicide Prevention policy as presenting a risk of suicide, the records provided by [the County defendants] . . . reveal Mr. Conforti was never referred to Medical Staff as being a suicide risk during his October 2010 incarceration.

2.

N.J.S.A. 59:6-5 is entitled “Diagnosing or failing to diagnose mental

illness or substance use disorder involving drugs.” Subsection (a) of N.J.S.A.

59:6-5 provides that 12 [n]either a public entity nor a public employee is liable for injury resulting from diagnosing or failing to diagnose that a person has a mental illness or is a person with a substance use disorder involving drugs or from failing to prescribe for mental illness or a substance use disorder involving drugs; provided, however, that nothing in this subsection exonerates a public entity or a public employee who has undertaken to prescribe for a mental illness or a substance use disorder involving drugs from liability for injury proximately caused by negligence or by a wrongful act in so prescribing.

[(emphasis added).]

N.J.S.A. 59:6-5(a) thus grants immunity to public entities and employees for

diagnosing or failing to diagnose “that a person has a mental illness” and from

“failing to prescribe for mental illness,” such as by ordering a transfer out of a

single-bunk cell. The County defendants are immune from liability for alleged

negligent conduct that falls under N.J.S.A. 59:6-5.

Without quoting every allegation in the complaint that arguably fits

within N.J.S.A. 59:6-5 immunity, I highlight some that, taken together,

demonstrate plaintiff’s negligence theory was based in part on the County

defendants’ alleged failure to “prescribe for mental illness,” such as Mr.

Conforti’s transfer out of a single-bunk cell.

102. . . . [O]n September 10, 2010, by Order of the Jail’s Physician, Mr. Conforti was to be provided with an extra mattress, pain medication and “no work, no top bunk.”

13 103. This is to be contrasted with Mr. Conforti’s treatment during his October 20210 incarceration where he was housed in a single[-bunk cell] already occupied by an inmate (assuring he would sleep on the floor) and his complaints of back pain and need for medication were essentially ignored.

116. . . . Housing Mr. Conforti in a single[-bunk cell] already occupied by an inmate (ensuring he had no bunk to sleep on) when the officials knew or should have known of Mr. Conforti’s severe back pain and limitations based upon his September 2010 incarceration and his risk factors for suicide was deliberately indifferent and certainly unreasonable . . . .

Moreover, consistent with the allegations in the complaint and pertinent

to N.J.S.A. 59:6-5, in opposition to the County defendants’ motion for

summary judgment, plaintiff asserted that “[in September 2010], by Order of

the Jail’s Physician, Mr. Conforti was to be provided with an extra mattress[,]

pain medication and ‘no work, no top bunk.’” The submission explained

further -- under a heading titled “Mr. Conforti’s Excruciating Back Pain and

Physical Limitations Were Addressed in September of 2010 But Ignored by

[the County defendants] in October 2010” -- that

41. The treatment of Mr. Conforti in September of 2010 starkly contrasts with Mr. Conforti’s treatment during his October of 2010 incarceration. In October

14 of 2010 Mr. Conforti was housed in a single[-bunk cell] already occupied by an inmate and his complaints of medication for back pain were essentially ignored.

Those facts presented to the trial judge fit within immunity contemplated

under N.J.S.A. 59:6-5’s “failure to prescribe.”

The County defendants recognized correctly that several of plaintiff’s

allegations touched upon potentially immunized conduct. In response to the

allegations set forth in the complaint -- including additional allegations that

arguably pertain to immunity granted under N.J.S.A. 59:6-6 -- the County

defendants pled the affirmative defense of TCA immunity. Pertinent here are

their thirtieth, thirty-first, and thirty-second affirmative defenses asserting the

applicability of N.J.S.A. 59:6-4, -5, and -6. They recognized at the pleading

stage they had immunity, and they asserted such immunity.

In moving for summary judgment and in oral argument on the motion,

counsel for the County defendants again raised the legal immunity issue for the

judge to resolve. Counsel argued that the Ocean County Jail (OCJ) is a

“medical facility,” as defined under N.J.S.A. 59:6-1, and is therefore

immunized under “Title 59” of the TCA. The County defendants contended

that “any alleged failure to recognize Mr. Conforti’s mental state or suicidal

15 inclination is immunized by the plain language of both N.J.S.A. 59:6-4 and 6-

5.” (emphasis added). They added, “[t]he foregoing notwithstanding, . . . to

the extent that [plaintiff alleges that the County defendants] failed to properly

diagnose Mr. Conforti’s mental state, they are entitled to the immunities

provided under the [TCA].” The County defendants contended that they were

entitled to summary judgment and a dismissal of the negligence case that was

premised on conduct immunized under N.J.S.A. 59:6-4, -5, and -6, regardless

of whether the OCJ was deemed a “medical facility.”

Immunity is the default rule under the TCA, and claims based on

multiple alleged acts or omissions may touch in part on immunized conduct .

Courts must therefore thoroughly analyze immunity issues to ensure that only

actionable conduct is raised before the jury. See R. 4:46-2(c) (“A summary

judgment or order, interlocutory in character, may be rendered on any issue in

the action (including the issue of liability) although there is a genuine factual

dispute as to any other issue.”). The County defendants should have been held

immune from liability for the conduct that clearly falls within N.J.S.A. 59:6-4

and N.J.S.A. 59:6-5.

The majority correctly concluded that the Appellate Division

erroneously interpreted N.J.S.A. 59:6-4. Ante at ___ (slip op. at 39). The

16 appellate court erred when it determined that the County defendants had no

immunity under N.J.S.A. 59:6-4 “regarding [Mr. Conforti]’s medical intake,

which was done to assess his OCJ confinement and not conducted for

treatment purposes.” Ante at ___ (slip op. at 39) (alteration in original).

Under N.J.S.A. 59:6-4, the County defendants’ alleged failure to conduct an

adequate examination to determine whether Mr. Conforti had a physical or

mental health condition that would be hazardous to himself is immunized. The

County defendants were therefore entitled to summary judgment dismissing

that part of plaintiff’s negligence count to the extent that plaintiff’s theory is

based on immunized conduct under this provision. 2

Under N.J.S.A. 59:6-5, plaintiff’s negligence theory -- based on the

County defendants’ alleged failure to “prescribe for mental illness,” such as a

transfer out of a single-bunk cell -- is also immunized. See Charpentier v.

Godsil, 937 F.2d 859, 865, 866 (3d Cir. 1991) (explaining that a “natural

interpretation” of N.J.S.A. 59:6-5(a) indicates that injury resulting from a

failure to prescribe a transfer to a medical or psychiatric facility is immunized,

2 The majority declined to address arguments about “the precise contours of immunity under [N.J.S.A. 59:6-4, -5, and -6].” See ante at ___ & n.3 (slip op. at 39 & n.3). But it cannot be disputed that the County defendants are immunized for a purported failure to “make an adequate examination” to determine whether Mr. Conforti was a danger to himself or others, under N.J.S.A. 59:6-4. 17 but injury resulting from the affirmative act of prescribing is not). Plaintiff

alleged the County defendants were negligent for essentially “failing to

prescribe” because they housed Mr. Conforti in a single-bunk cell that was

already occupied by an inmate. The County defendants are therefore entitled

to summary judgment dismissing plaintiff’s negligence count to the extent that

it is based on immunized conduct under N.J.S.A. 59:6-5.

However, without differentiating between the County defendants’

alleged negligence derived from non-immunized conduct and their alleged

negligence derived solely from conduct immunized under N.J.S.A. 59:6-4, -5,

and possibly -6,3 the trial judge denied the County defendants’ motion on the

3 I would remand to develop the record more fully. The decision to house Mr. Conforti in a single-bunk cell rather than confine him in some other way may constitute a “determination in accordance with any applicable enactment” as to “whether to confine a person for mental illness,” or setting “the terms and conditions of confinement for mental illness,” pursuant to N.J.S.A. 59:6- 6(a)(1), (2). Though they do not point to any “applicable enactments,” the County defendants had authority to make the determination as to whether to confine Mr. Conforti under N.J.A.C. 10A:16-12.2, which enumerates various factors to consider when “determining whether to place an inmate on suicide watch or to release an inmate from suicide watch.” Thus, because plaintiff alleges that the County defendants were negligent for housing Mr. Conforti in a single-bunk cell “when the officials knew or should have known of Conforti’s severe back pain and limitations based upon his September 2010 incarceration and his risk factors for suicide,” the County defendants are at least arguably immune under N.J.S.A. 59:6-6(a)(1) or (2) for the decision not to confine Mr. Conforti elsewhere or under different terms or conditions. I would permit counsel to raise relevant arguments as to N.J.S.A. 59:6-6 on remand. Remanding highlights the legal complexity of interpreting at least

18 entire negligence count (count one). That decision was error. The judge

should have granted the motion in part and denied it in part.

By virtue of the trial court’s erroneous denial of the County defendants’

summary judgment motion as to the entire negligence claim, plaintiff was

permitted to predicate the negligence claim substantially on conduct that was

immunized by the TCA and to present to the jury evidence of immunized

conduct along with evidence of non-immunized conduct. In my view, the

County defendants were therefore not afforded a fair trial.

Granting partial summary judgment dismissing the portion of plaintiff’s

negligence claim that was predicated on immunized conduct would have had a

dispositive impact on plaintiff’s case. Had the trial court partially dismissed

the negligence claim, that decision would have barred evidence of immunized

conduct at the trial, and limited plaintiff’s negligence claim to evidence

properly presented to the jury.

The majority states “defendants wrongly sought to dismiss plaintiff’s

entire negligence count on the ground that (as they later articulated clearly to

this Court), some of the facts supporting that count concerned conduct that was

N.J.S.A. 59:6-6, which provides further support for why resorting to an in limine motion would be impracticable. 19 immunized by N.J.S.A. 59:6-4, -5, and -6.” Ante at ___ (slip op. at 35)

(emphases added). Respectfully, the County defendants presented reasons to

dismiss the negligence count as a whole (including that plaintiff failed to

establish they breached a duty or proximately caused damage); and they

argued for dismissal of the negligence count to the extent that it was premised

on conduct immunized by N.J.S.A. 59:6-4, -5, and -6. They proceeded in that

fashion because plaintiff alleged in count one of the complaint that County

defendants acted negligently, based on both immunized conduct and on non-

immunized conduct. Plaintiff’s negligence claim was not an all-or-nothing

proposition.

Under the Court Rules, trial judges have the discretion to grant in part

and deny in part summary judgment motions. See Applestein v. United Board

& Carton Corp., 35 N.J. 343, 351 (1961) (explaining that under the

predecessor to Rule 4:46-2, “partial summary judgment . . . may encompass

less than all the issues arising from a single claim; or it may encompass less

than all the claims joined in a single action. In either case, it removes the

determined matter from the trial of the case.” (citing 6 Moore’s Federal

Practice P 56.20(3.-2) (2d ed. 1976) (explaining “it is clear that [Federal Rule

of Civil Procedure 56] authorizes a summary adjudication that will often fall

short of a final determination, even of a single claim; [and] that the term

20 partial summary judgment as applied to an interlocutory summary adjudication

is often a misnomer” (emphasis added) (quotation omitted))); see also R.

4:46-2 (“The judgment or order sought shall be rendered . . . if the pleadings . .

. show that there is no genuine issue as to any material fact . . . . A summary

judgment or order . . . may be rendered on any issue in the action . . . although

there is a genuine factual dispute as to any other issue . . . .” (emphases

added)); R. 4:46-3 (“If . . . under this rule judgment is not rendered upon the

whole action . . . and a trial is necessary,” the trial court, “by examining the

pleadings . . . shall, if practicable, ascertain what material facts[] . . . exist

without substantial controversy and shall thereupon make an order . . .

directing such further proceedings in the action as are appropriate.”).

Plaintiff was entitled to a jury trial on the portion of the negligence

claim that was premised on genuinely disputed issues of non-immunized acts.

The judge, therefore, correctly denied that part of the motion. But the County

defendants were entitled to summary judgment dismissing the part of

plaintiff’s negligence claim derived from immunized conduct under the TCA.

The judge should have granted that part of the motion as a matter of law.

Despite my colleagues’ contention that the County defendants “believed

they were entitled to immunity under 6-4 and 6-5 only because OCJ was a

medical facility under 6-1,” ante at ___ n.2 (slip op. at 12 n.2), the County

21 defendants’ submission that immunity was inextricably tied to the OCJ being a

“medical facility” cannot relieve the judge’s obligation to read N.J.S.A. 59:6-

4, -5, and -6 -- the very provisions that the County defendants brought to his

attention. Just as an appellate court may affirm a trial court order for reasons

different from those espoused by the trial court in issuing the order, see Hayes

v. Delamotte, 231 N.J. 373, 387, 175 (2018), a trial court’s legal

determinations are similarly not constrained by the parties’ arguments on

matters of statutory interpretation. Indeed, it is legislative intent -- not parties’

arguments -- that is the “overriding goal” of statutory interpretation. See

Young v. Schering Corp., 141 N.J. 16, 25 (1995).

Had the judge interpreted 6-4 and 6-5 correctly, he would have seen that

the County defendants were entitled to immunity regardless of whether OCJ

was a “medical facility.” The majority acknowledges that the trial judge was

“wrong in failing to address defendants’ arguments under the TCA at the

summary judgment stage.” Ante at ___ (slip op. at 30, 33). I add that the

judge was wrong in failing to address the County defendants’ arguments that

they were entitled to immunity under the plain text of the TCA at the JNOV

stage as well. The predicament in which the County defendants found

themselves at trial was completely avoidable had the judge granted the motion

in part.

22 E.

Instead, immunized conduct was admitted into evidence at trial.

Introducing evidence of conduct immunized under the TCA to prove

negligence against the County defendants is reversible error, which is error

“clearly capable of producing an unjust result.” R. 2:10-2. Under the facts of

this case, the error was not harmless. An error cannot be harmless if there is

“‘some degree of possibility that [the error] led to an unjust result.’ For an

error to be reversible under the harmless error standard, ‘[t]he possibility must

be real, one sufficient to raise a reasonable doubt as to whether [the error] led

the jury to a verdict it otherwise might not have reached.’” Willner v. Vertical

Reality, Inc., 235 N.J. 65, 79 (2018) (alterations in original) (quoting State v.

Lazo, 209 N.J. 9, 26 (2012)).

The opening and closing remarks by plaintiff’s counsel, together with

the totality of evidence adduced at trial pertaining to immunized conduct under

N.J.S.A. 59:6-4 and -5, tainted the jury and requires a new trial.

For example, plaintiff’s counsel opened to the jury by addressing the

County defendants’ alleged failure to determine whether Mr. Conforti had a

physical or mental condition that would be hazardous to himself. He asserted

that “jail staff” failed to “compare[] . . . [the] treatment records, [and] the

medication records” and asserted that, had they done so, the “suicide could

23 have been prevented.” Counsel explained “there was a lack of an appropriate

level of communication between medical staff and corrections officers” and

that there was a lack of “heightened evaluation” by the County defendants. He

added that the County defendants were “responsible for monitoring,

supervising, and overseeing” CHS, an entity that had been “hired to provide

medical services” in the OCJ. The strong implication of those remarks is that

the County defendants engaged in immunized conduct under N.J.S.A. 59:6-4

by failing to “make an adequate examination” to determine whether Mr.

Conforti was a danger to himself or others.

Along those lines, plaintiff’s corrections liability expert, Martin Horn,

testified that during the intake process, the OCJ “check[s] [a prisoner’s]

physical and mental condition” and “screen[s] for mental illness.” He

explained, “You want to make sure the person is not acutely mentally ill, that

they’re not psychotic,” and “you want to screen for suicide.” He opined that

the County defendants “negligently failed to identify” Mr. Conforti as a

suicide risk. Again, the County defendants’ failure to “make an adequate

examination” to determine whether Mr. Conforti was a danger to himself is

immunized under N.J.S.A. 59:6-4 and should not have been part of plaintiff’s

negligence theory against the County defendants.

24 Plaintiff’s evidentiary focus should have been on non-immunized

conduct, particularly because plaintiff had settled with CHS on the separate

claim against the non-immunized CHS defendants for improperly evaluating

Mr. Conforti for suicidal ideation. Allowing evidence of and arguments as to

immunized conduct alongside those properly focused on non-immunized

conduct unfairly enlarged the scope of admissible evidence of negligence and

could well have swayed the jury.

And contrary to the Appellate Division’s suggestion, the jury’s partial

allocation of liability to the CHS defendants does not tend to show that the

improper admission of evidence, and arguments related to immunized conduct,

were harmless. The Appellate Division, which did not address the plain text of

N.J.S.A. 59:6-4, -5, or -6, affirmed the trial court’s judgment. It noted that the

jury assessed forty percent liability against “the CHS defendants who

conducted [Mr. Conforti’s] jail intake” and speculated that “[s]eemingly, the

jury held the CHS defendants were liable for misdiagnosing [Mr. Conforti]’s

mental condition, not the County defendants.”

Respectfully, even if that conjecture were true, plaintiff introduced

evidence that resulted in a fundamentally unfair trial, including that the County

defendants, not CHS, “negligently failed to identify” Mr. Conforti as a suicide

risk. Failure to “make an adequate examination” to determine whether Mr.

25 Conforti was a danger to himself is immunized and therefore should not have

been a part of plaintiff’s negligence theory against the County defendants. The

opening and closing statements and the totality of the evidence of immunized

conduct admitted at trial significantly tainted the verdict, which cannot be

saved by the forty percent allocation to CHS.

The majority references options that the County defendants had after the

judge denied their summary judgment motion. But none of those options can

offset the damage done through the erroneous admission of evidence and

arguments relating to immunized conduct.

My colleagues explain, for example, that the County defendants could

have moved for reconsideration, or they could have filed an in limine motion

seeking to bar at trial admission of conduct immunized under the TCA. ---- Ante

at ___ (slip op. at 33-35). That begs the question of whether immunized

conduct should have been precluded at the summary judgment stage, but I

respectfully disagree with the proposition that those possibilities were viable,

or that they would have ensured a fair trial based on evidence properly before

the jury.

26 To be sure, immunized conduct could and should have been precluded at

the summary judgment stage. At oral argument before the trial judge, counsel

for the County defendants relied on her brief “as to the [TCA] for the mental

health assessment.” Her brief quoted N.J.S.A. 59:6-4, -5, and -6, and argued

that the County defendants were immunized under the “plain language of both

N.J.S.A. 59:6-4 and 6-5.” (emphasis added). At oral argument, the judge

asked counsel “what, if any, immunities come into play?” The judge added,

“Are you going to cite anything out of Title [59] then?” Counsel repeated her

argument pertaining to “the mental health itself for failure to . . . recognize that

[Mr. Conforti] was suicidal,” then she stated, “I don’t know that there [is ] any

other specific tort claim immunities [other than those briefed.]” The judge

responded, “If you didn’t brief it, that’s fine.” Of course, counsel briefed

N.J.S.A. 59:6-4, -5, and -6, including independent reliance on the plain text of

6-4 and 6-5, but the judge nonetheless denied the motion.

Respectfully, the exchange between counsel for the County defendants

and the trial judge highlights the futility of the majority’s alternative

suggestions, such as moving for reconsideration. Rule 4:49-2 governs motions

for reconsideration. “The rule applies when the court’s decision represents a

clear abuse of discretion based on plainly incorrect reasoning or failure to

consider evidence or a good reason for the court to reconsider new

27 information.” Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R.

4:49-2 (2022). And when considering whether to file such a motion, we are

mindful that

a reconsideration motion is primarily an opportunity to seek to convince the court that either 1) it has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Kornbleuth v. Westover, 241 N.J. 289, 301 (2020) (emphasis added) (quoting Guido v. Duane Morris LLP, 202 N.J. 79, 87-88 (2010)).]

The majority points out that trial counsel for the County defendants should

have filed a motion for reconsideration after the judge, in his written decision,

did not address their claim that they are entitled to immunity for all allegedly

negligent acts that fall under N.J.S.A. 59:6-4, -5, and -6. See ante at ___ (slip

op. at 33-34) (“[I]n practice the motion [for reconsideration] requires a

showing of law or facts presented in the motion papers that were overlooked or

misapprehended and would result in a different result.” (quoting James H.

Walzer, N.J. Practice, Civil Practice Forms § 105:47 (6th ed. 2023))).

However, the majority also notes that the County defendants’ “JNOV brief

copied, verbatim, the entire TCA argument from their summary judgment

brief.” Ante at ___ (slip op. at 18). The trial judge explicitly rejected the

County defendants’ immunity argument that time. Since the trial judge later 28 expressly addressed and rejected the immunity claim, the County defendants

could not have avoided the prejudice of admission of evidence of immunized

conduct at trial by moving for reconsideration of the summary judgment

decision.

The majority also appears to state that the trial judge failed to address

the immunity issue at the summary judgment stage, and then erroneously

determined at the JNOV stage that N.J.S.A. 59:6-4, -5, and -6 immunity does

not apply, in part because the County defendants’ verbatim argument mi ssed

the mark. The majority recounted that the trial judge “unsuccessfully tried to

elicit additional information about [the County] defendants’ TCA arguments,”

ante at ___ (slip op. at 13-14), which suggests to me that my colleagues view

the County defendants’ contentions at the summary judgment stage as lacking

in some regard. Along those lines, my colleagues point out that County

defendants argued “for the first time before the Appellate Division that the

immunities granted in 6-4, -5, and -6 were not limited to medical facilities and

applied instead to certain ‘activities,’ regardless of which public entity

performed them.” Ante at ___ (slip op. at 19). Although I highlighted the

County defendants’ arguments at the summary judgment stage that they relied

on the plain text of N.J.S.A. 59:6-4 and -5, ante at ___ (slip op. at 21-22), the

majority stated that those contentions of immunity were dependent on the

29 premise that “OCJ was a medical facility under 6-1,” ante at ___ n.2 (slip op.

at 12 n.2).

Motions for reconsideration are ordinarily made to correct a mistake

made by the trial court. Rule 4:49-2’s purpose is not to afford a party the

opportunity to write a better brief, to introduce new evidence, or to introduce a

new argument. See, e.g., Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi,

398 N.J. Super. 299, 310 (App. Div. 2008) (“Reconsideration cannot be used

to expand the record and reargue a motion. . . . A motion for reconsideration

is . . . not [designed] to serve as a vehicle to introduce new evidence in order

to cure an inadequacy in the motion record.”).

A decision to file for reconsideration necessarily involves judgment on

the part of counsel that the trial court abused its discretion. An abuse of

discretion “arises when a decision is ‘made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.’” Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting

Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)). Thus, the

impetus for filing a reconsideration motion is that counsel seeks to correct a

trial court mistake.

In my view, the trial judge indeed erroneously denied summary

judgment insofar as plaintiff’s negligence theory was based on immunized

30 conduct. To the extent that the majority finds that the County defendants’

arguments on the immunity issue were deficient, it would not have been proper

for the County defendants to get a second bite at the apple, so to speak, by

refining their immunity arguments via a motion for reconsideration. The trial

court’s error should have been corrected on appeal, not on a motion for

reconsideration.

Even if the County defendants argued on their summary judgment

motion that they were “immune from liability for negligence under N.J.S.A.

59:6-4, -5, and -6 because they were a ‘medical facility’ under N.J.S.A. 59:6-

1,” - - - at ___ (slip op. at 32-33), the trial judge’s analysis should not have ante

stopped there. The judge should have rejected that contention, like the

majority and I do now, and then proceeded to analyze whether the plain

language of those provisions grants immunity and requires summary judgment

dismissing the negligence count to the extent that it is based on that

immunized conduct. As the record makes clear, the County defendants’

immunity argument was based on more than whether the OCJ was a “medical

facility.” Counsel contended the plain language of (at least N.J.S.A. 59:6-4

and -5) immunized the County defendants for “fail[ing] to recognize

Conforti’s mental state or suicidal inclination.” The trial judge erred as a

matter of law.

31 Most likely, the County defendants did not move for reconsideration for

a simple reason: any such motion would have been futile. That became

obvious when they moved for judgment notwithstanding the verdict (JNOV)

and reargued essentially the same position that they raised at the summary

judgment stage, namely that they were entitled to dismissal of that part of the

negligence case based on immunized conduct. The trial judge denied the

JNOV motion and concluded correctly that the OCJ was not a “medical

facility.” But the definition of “medical facility” under N.J.S.A. 59:6-1 does

not restrict the substantive immunities granted in N.J.S.A. 59:6-4, -5, or -6,

because none of those three provisions are limited to medical facilities. At that

post-trial stage, the trial court maintained its erroneous view of the question of

immunity.

Thus, even though the OCJ is not a “medical facility,” on the JNOV

motion the judge should have analyzed whether plaintiff’s negligence claim is

derived in part from conduct immunized under N.J.S.A. 59:6-4, -5, and -6. In

failing to do so, the judge failed to do precisely what the majority suggests the

County defendants could have argued for on reconsideration. The fact that the

County defendants lost at the JNOV stage supports the conclusion that moving

for reconsideration of the order denying summary judgment would have been

unavailing.

32 The majority correctly recites the standard for reviewing JNOV motions.

The question ordinarily is only “whether ‘the evidence [presented at trial],

together with the legitimate inferences therefrom, could sustain a judgment in

. . . favor’” of the party that prevailed at trial. Sons of Thunder v. Borden,

Inc., 148 N.J. 396, 415 (1997) (omission in original) (quoting Dolson v.

Anastasia, 55 N.J. 2, 5 (1969)). But this was far from an ordinary case where

we apply that standard. Although the majority states that “the evidence

presented at trial, along with all legitimate inferences therefrom, could sustain

a judgment in favor of plaintiff without reference to any immunized conduct ,”

ante at ___ (slip op. at 37), application of that standard does not account for

the cumulative mistakes that were clearly capable of leading to an unjust

result, which denied the County defendants a fair trial. While the majority

correctly observes that the jury properly heard evidence of non-immunized

conduct sufficient to sustain a judgment in plaintiff’s favor, the question on

review of the trial errors, including the order denying summary judgment in

part and the order denying JNOV, is whether the improper admission of

evidence of immunized conduct under the TCA was “clearly capable of

producing an unjust result.” R. 2:10-2.

Regarding the motion in limine that the majority, in hindsight, opines

that the County defendants should have filed, the County defendants followed

33 our common law and Court Rules by not moving to bar evidence immunized

by N.J.S.A. 59:6-4, -5, and -6. A motion in limine is “[a] pretrial request that

certain inadmissible evidence not be referred to or offered at trial.” Black’s

Law Dictionary 1109 (9th ed. 2009). More specifically, under our Court

Rules, it is “an application returnable at trial for a ruling regarding the conduct

of the trial, including admissibility of evidence, which motion, if granted,

would not have a dispositive impact on a litigant’s case.” Jeter v. Sam’s Club,

250 N.J. 240, 250 (2022) (first and second emphases added) (quoting R. 4:25-

8(a)(1)). “A motion in limine is not a summary judgment motion that happens

to be filed on the eve of trial.” Ibid. (quotation omitted). A motion that results

in the dismissal of a plaintiff’s case is instead subject to Rule 4:46, which

governs summary judgment motions. Ibid. Here, granting a motion in limine

would have been improper because it would have resulted in dismissal of

plaintiff’s negligence claim based on immunized conduct, which would have a

dispositive impact on plaintiff’s case.

At any rate, a motion seeking a determination of complicated legal

immunity principles under the TCA, respectfully, should be made well before

trial and under Rule 4:46. Indeed, a purely legal question, such as whether

TCA immunity applies, should be resolved at an early stage of the litigation.

See Rivera v. Gerner, 89 N.J. 526, 536 (1982) (noting that resolving issues

34 involving the TCA at the pretrial stage “is to be encouraged”). Furthermore,

this Court has observed that “for purposes of judicial economy, a public entity

. . . should assert [TCA] immunity in a pre-trial motion for summary judgment,

which, if successful, will bring the litigation to an end,” and that “delay in

raising several claims of immunity until the time of trial” causes concern. See

Maison v. N.J. Transit Corp., 245 N.J. 270, 298 (2021). From a practical

perspective, it would be unreasonably burdensome for the trial judge to

manage such an in limine motion, especially given that here plaintiff’s counsel

filed at least seven other in limine motions on the eve of trial.

Waiting until an in limine motion to address the complicated and

substantial immunity-related legal questions, which require statutory

interpretation, will add unnecessary distractions on the eve of trial. The

lawyers will have to wait until right before the trial begins to see how the

ruling will affect their opening statements; the trial judge will have to juggle a

complicated legal question at the last minute, read the legal briefs, and

entertain oral argument; jurors will be waiting in the jury assembly room; there

might be an emergent application seeking permission to file a motion on short

notice challenging the ruling; witnesses lined up to testify might be dismissed;

plaintiff’s counsel will have to spend time opposing such in limine motions

rather than devoting their time to trial; and so on.

35 My colleagues correctly continue to “warn attorneys against filing

motions in limine that would ‘result in the dismissal of a plaintiff’s case.’ ”

Ante at ___ (slip op. at 36) (quoting Jeter, 250 N.J. at 250). Clearly, the

rationale behind TCA immunity is not to permit a negligence suit against a

public entity premised on evidence of immunized conduct; allow the case to

proceed through the rigors of pre-trial discovery, including obtaining expert

reports addressing the immunized conduct; then, on the eve of trial, file a

motion in limine to bar evidence of such immunized conduct. See Polzo, 209

N.J. Super. at 51, 56 (“[A] public entity is ‘immune from tort liability unless

there is a specific statutory provision’ that makes it answerable for a negligent

act or omission.” (quoting Kahrar, 171 N.J. at 10)).

Hypothetically, had plaintiff separated the negligence claims into two

counts, one premised on immunized conduct and one premised on non-

immunized conduct, then my colleagues and I would no doubt agree that the

County defendants should file a motion for summary judgment dismissing the

negligence count premised on immunized conduct, rather than waiting until the

trial to bar evidence of immunized conduct. The fact that plaintiff elected to

include both theories of negligence in one count does not change the analysis.

The County defendants were clearly entitled to dismissal of that part of the

36 negligence count premised on conduct immunized under the TCA. That ruling

would have barred evidence of immunized conduct at trial.

We granted defendants’ petition for certification, as my colleagues have

said, “limited to the question of whether defendants were entitled to immunity

under N.J.S.A. 59:6-4, -5, or -6. 252 N.J. 53 (2022).” Ante at ___ (slip op. at

21). I respectfully submit that when a public entity is immune from tort

liability, like here, for all the reasons that I have articulated, the public entity

should bring that part of the litigation premised on immunized conduct to an

end under Rule 4:46.

I therefore disagree with the majority’s contention that the trial court’s

erroneous interpretation of the TCA could have been corrected if the

defendants had filed a motion in limine.

My colleagues in the majority suggest other possible options beyond

motion practice that the County defendants could have employed during the

trial to address evidence that, in my view, should have been barred by a partial

dismissal of the negligence count that pled immunized conduct. My

colleagues suggest that the County defendants could have requested a jury

charge distinguishing between immunized and non-immunized conduct, and

that they could have proposed a verdict sheet that parsed out different types of

37 negligence to ensure the verdict was based on non-immunized conduct. Ante

at ___ (slip op. at 36). I respectfully disagree that those options were viable.

Preliminarily, I note as to CHS, the County defendants sought allocation

of liability under Young v. Latta, 123 N.J. 584, 591 (1991) (permitting “a non-

settling defendant’s right to a credit reflecting the settler’s fair share of the

amount of the verdict -- regardless of the actual settlement -- [which]

represents the judicial implementation of the statutory right to contribution”).

Plaintiff filed a motion to preclude the County defendants from contending

CHS was liable. Plaintiff argued to the trial judge that defendants should be

prevented from pointing the finger at the “empty chair” and arguing to the jury

“that this is all [CHS’s] fault.” Counsel for plaintiff contended “none of the

settling defendants should be on the verdict sheet.” Nevertheless, CHS was

correctly listed on the verdict sheet.

With that in mind, requesting a special jury charge that would

“distinguish between evidence of immunized and non-immunized conduct”

could well have done more harm than good. Here, the trial judge denied the

County defendants’ motion for summary judgment seeking to dismiss the

negligence count, at least to the extent that the negligence theory was derived

from immunized conduct. The consequence of that ruling permitted plaintiff

to utilize immunized conduct to show the County defendants were partly

38 negligent. In that context, a jury charge distinguishing between immunized

and non-immunized conduct would have tainted the jury further by focusing

them on the County defendants’ immunized conduct. Drawing the jurors’

attention to immunized conduct erroneously admitted into evidence would

frustrate the Legislature’s intent. See D.D., 213 N.J. at 133-34 (explaining the

longstanding principle that the overall approach of the TCA is to broadly limit

public entity liability). In other words, allowing into evidence immunized

conduct against the County defendants to prove they were negligent, and then

instructing jurors not to consider it, would be prejudicial and inconsistent with

immunity principles under the TCA. See Priolo v. Compacker, Inc., 321 N.J.

Super. 21, 29-30 (App. Div. 1999) (“It is wrong to suggest that anything a jury

hears can be remedied by a curative instruction. Trial management is difficult

enough in dealing with the unforeseen or inadvertent comment or answer. A

trial judge’s responsibility is to minimize such errors.”). Here, introducing

immunized conduct as evidence of negligence, respectfully, could not be

remedied by a special jury charge or curative instruction.

The same logic applies to the suggestion that the County defendants

could have asked for a special verdict sheet to “‘pars[e] out the different types

of negligence’” and to ensure further that the jury’s verdict was “based only on

non-immunized conduct.” Ante at ___ (slip op. at 36). Respectfully, doing so

39 would have exacerbated the situation. It would have tainted the jury further by

focusing them on plaintiff’s theory that the County defendants were liable

based on immunized conduct.

The majority points out that counsel for the County defendants

consented to the charge and verdict sheet. This is not a situation, however,

where a party ignored a trial error. Denying in full their summary judgment

motion constituted the error, and defendants’ position was preserved for

appeal. Denial of the motion presented opportunities for plaintiff to admit

evidence that simply should not have been presented to the jury. The fact that

the County defendants thereafter consented to the charge and verdict sheet

does not mean, given this record, that they waived the argument that they were

entitled to summary judgment to the extent plaintiff’s negligence theory

derives from immunized conduct. And certainly it would not prevent them

from arguing on appeal that they received an unfair trial that requires a do-

over.

Regardless, none of the procedural and substantive options suggested by

the majority were necessary to preserve the immunity issue for appeal. The

County defendants did that by raising affirmative defenses, filing a motion for

summary judgment, and renewing those arguments after trial on their JNOV

motion.

40 III.

In my view, the trial court erred when it denied the County defendants’

motion for summary judgment to dismiss plaintiff’s negligence claim in its

entirety and did not recognize that the claim was predicated in part on

immunized conduct. That error denied the County defendants a fair trial. I

would reverse the Appellate Division’s judgment and remand this matter for a

retrial in which plaintiff would be permitted to present only evidence of non-

immunized conduct in support of the negligence claim. I therefore respectfully

concur in part and dissent in part.