Janet Henebema v. South Jersey Transportation Authority and N.J. State Police (072545)

• Court: Supreme Court of New Jersey
• Decided: September 29, 2014
• Docket: A-7-13
• Status: Published

Opinion

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

Janet Henebema v. South Jersey Transportation Authority (A-7-13) (072545)

Argued March 31, 2014 -- Decided September 29, 2014

RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, where a jury determined that there was no basis to impose liability on the individual defendants or the plaintiff, the Court considers whether, on retrial, a second jury should decide anew the liability of all parties, or whether the remand shall proceed only with respect to the liability of the public-entity defendants.

On December 4, 2005, plaintiff was severely injured in a multi-vehicle accident on the Atlantic City Expressway. That morning, several close-in-time accidents were reported to the State Police, beginning at 3:55 a.m., when a motorist called 9-1-1 to report the first accident. Because his vehicle was stranded in the far left and center lanes, the driver reported that his vehicle was “in a bad spot” and “needed to get out of there.” The second accident occurred about fifteen minutes later. A private ambulance responding to a different emergency stopped to assist, parked behind the second disabled vehicle in the middle lane, and activated the emergency lights. At 4:25 a.m., the third accident occurred when plaintiff tried to avoid the ambulance by passing it on the left, and collided with the second vehicle. Plaintiff exited her vehicle and stood nearby. Within minutes, a fourth vehicle struck plaintiff and her car, causing plaintiff serious injuries. State Police officers arrived at approximately 4:43 a.m.

Plaintiff sued the drivers and owners of the other vehicles involved in the accidents (individual defendants), as well as two New Jersey public entities, South Jersey Transportation Authority (Authority) and the New Jersey State Police (State Police) (collectively “public-entity defendants”). Plaintiff alleged that the public-entity defendants were liable for failing to follow proper procedure in responding to 9-1-1 calls, resulting in an almost one- hour delay before law enforcement officers and emergency personnel arrived on the scene.

Following a fifteen-day trial, the jury was charged. On the issue of the public-entity defendants’ liability, the trial court’s instructions did not require the jury to determine whether the actions of their employees or agents constituted either ministerial or discretionary action. Instead, the court instructed the jury on ordinary negligence principles. The jury returned a verdict finding that the individual defendants were not negligent, that the Authority was eighty-percent liable and the State Police was twenty-percent liable, and that there was no comparative negligence on plaintiff’s part. The jury awarded plaintiff $8,748,311 in damages. The public-entity defendants moved for a judgment notwithstanding the verdict, and alternatively, for a remittitur, which the trial court denied.

The public-entity defendants sought review on several grounds and plaintiff cross-appealed. The individual defendants did not participate in the appeal. In a published opinion, the Appellate Division reversed the liability verdict against the public-entity defendants, concluding that the trial court should have submitted the question of whether the employees of the public-entity defendants’ alleged culpable conduct occurred while engaging in ministerial or discretionary activity. The panel remanded for a new trial concerning the public-entity defendants’ liability only. Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 504 (App. Div. 2013).

The public-entity defendants sought certification solely on their contention that, at the retrial, the jury should assess anew whether the individual defendants were negligent and whether plaintiff was comparatively negligent. The Court granted the public-entity defendants’ petition. 215 N.J. 487 (2013).

HELD: The individual defendants’ liability and plaintiff’s comparative negligence are not intertwined with the issues to be determined on remand and therefore do not need to be considered by the jury at the retrial. The purpose of the retrial is to have the jury determine, from the evidence, whether the public entities’ employees were performing either ministerial or discretionary actions. Once the appropriate standard is identified, the jury can determine, based upon the applicable standard, whether the public-entity defendants are liable.

1 1. The parties do not challenge that the case must be remanded to assess whether the public-entity defendants were performing ministerial acts or discretionary acts in order to determine their liability under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The only issue before the Court is whether the remand appropriately includes only the public entities or whether the retrial must reassess the liability of all of the parties. (p. 10)

2. The TCA provides protection for public entities involved in tort claims. The standard for liability under the TCA depends on whether the conduct of individuals acting on behalf of the public entity was ministerial or discretionary. See N.J.S.A. 59:2-3(d). If the public entity’s action in allocating resources was ministerial, liability is evaluated based on an ordinary negligence standard. However, a more difficult threshold must be overcome in order for a public entity to be liable for an individual’s discretionary acts. (pp. 11-12)

3. As a general rule, “issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues.” Ahn v. Kim, 145 N.J. 423, 434-35 (1996). If issues are inextricably intertwined, then when one is remanded, the others, too, must be retried. However, the determination of whether the issues are sufficiently distinct and separable is a fact-sensitive analysis. Accordingly, and in line with the fact-sensitive approach taken when reviewing which parties must be included in a retrial on discrete issues in a negligence action, the Court has recognized that a remand must include all parties impacted by an improper jury charge. Similarly, when ascertaining whether issues are intertwined, the Court considers whether the jury on retrial will be confused when answering questions about one issue without considering another issue. (pp. 12-14)

4. In this matter, the public-entity defendants argue that the interrelatedness of the individual defendants’ negligence, as well as plaintiff’s comparative negligence, require reassessment in a combined retrial on all liability issues if the public entities’ negligence is to be retried. On close examination, however, the Court rejects defendants’ interrelatedness argument. At trial, plaintiff alleged that the public-entity defendants were negligent because they failed to follow proper procedures in responding to the emergency situation. The liability of the individual defendants, however, depended on whether the drivers operated their vehicles with adequate care. Similarly, plaintiff’s comparative negligence depended on whether she used reasonable care in operating her vehicle and after exiting it. The issue of whether the individual defendants, or plaintiff, used reasonable care is unrelated to the issue of whether the public-entity defendants complied with the appropriate standard of care in making decisions about how to respond to the evolving situation on the Expressway. None of the issues involved in determining the public-entity defendants’ liability would require or even invite consideration of the individual defendants’ liability or plaintiff’s comparative negligence. In sum, the theories for recovery from the public-entity defendants and individual defendants are not intertwined, let alone inextricably intertwined. (pp. 14-16)

5. Having determined that it would be inappropriate to require a new trial on the individual defendants’ liability or plaintiff’s comparative negligence, the Court addresses the public-entity defendants’ reliance on Ogborne v. Mercer Cemetery Corp., 197 N.J. 448 (2009), for the propositions that proximate cause and comparative negligence must be retried together and that the issue of liability must be retried as to all parties. In Ogborne, the Court ordered a retrial because “issues concerning the dangerous condition of the property and whether the [c]ity acted in a palpably unreasonable manner [were] intertwined with the issues of causation and foreseeability.” Id. at 461 (internal quotation marks omitted). Here, the negligence claimed against the public-entity defendants is separate and distinct from that claimed against the other parties, as is the issue of proximate cause. (pp. 16-19)

The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion. JUSTICE ALBIN did not participate.

2 SUPREME COURT OF NEW JERSEY A-7 September Term 2013 072545

JANET HENEBEMA,

Plaintiff-Respondent,

v.

SOUTH JERSEY TRANSPORTATION AUTHORITY and NEW JERSEY STATE POLICE,

Defendants-Appellants,

and

MICHAEL R. TESTA, MARIA E. PEREIRA, DOMENICO RADDI, JR., JOSHUA COOPER, REY S. COOPER, TROOPER C. DEANGELIS, and TROOPER M. RAZUKAS,

Defendants.

Argued March 31, 2014 – Decided September 29, 2014

On certification to the Superior Court, Appellate Division, whose opinion is reported at 430 N.J. Super. 485 (2013).

Stephen M. Orlofsky argued the cause for appellants (Blank Rome, attorneys; Mr. Orlofsky, Adrienne C. Rogove, and Jaret N. Gronczewski, on the briefs).

Christine Petruzzell argued the cause for respondent (Wilentz, Goldman & Spitzer, attorneys).

1 JUDGE RODRÍGUEZ (temporarily assigned) delivered the

opinion of the Court.

In this case, a jury determined that two New Jersey public

entities, South Jersey Transportation Authority (Authority) and

the New Jersey State Police (State Police), were liable for

injuries sustained by plaintiff as a result of a multi-vehicle

pile-up on the Atlantic City Expressway (Expressway) during a

heavy snowstorm.1 Plaintiff alleged that the public entities

were negligent in failing to adhere to standard operating

procedures with respect to competing 9-1-1 calls for motorist

assistance. The jury found no negligence on the part of

plaintiff or the owners or drivers of the other vehicles

involved in the several collisions (individual defendants).

On appeal, the Appellate Division reversed the liability

verdict against the public-entity defendants based on errors in

the jury instructions with respect to the liability of the

public entities for discretionary versus ministerial acts. The

error, as found by the Appellate Division, was caused by the

trial court’s failure to allow the jury to determine predicate

facts that resolved whether ministerial or discretionary acts

were involved. The Appellate Division remanded the matter for

1 We refer to the Authority and State Police collectively as the public-entity defendants. 2 retrial only with respect to the liability of the public-entity

The public-entity defendants now contend that, at the

retrial, the second jury should decide anew the liability of all

parties. We disagree.

The jury reached a final verdict with regard to the

plaintiff’s and individual defendants’ liability predicated on

proper jury instructions. The theories and evidence of

liability with respect to the public entities and the individual

defendants are not inextricably intertwined. Furthermore, the

issue of plaintiff’s comparative negligence is distinct from the

question of the public entities’ liability. Therefore, the

retrial shall affect only the liability of the public-entity

I.

A.

During an ice and snowstorm in the early morning of

December 4, 2005, plaintiff, Janet Henebema, was severely

injured in a multi-vehicle accident near mile marker 7.3 on the

Expressway. That portion of the Expressway has three lanes in

each direction. The morning of the accident, several close-in-

time accidents were reported to the State Police at that general

location.

3 Around 3:53 a.m., the first accident happened on the

westbound side at mile marker 7.3. Joshua Cooper, the driver of

a vehicle, called 9-1-1 at 3:55 a.m., reporting that his car

slammed into the center median, bounced off the concrete

barrier, and spun around, coming to rest facing the wrong

direction in the far left and center lanes. Cooper and his

passengers had moved to the safety of the right shoulder of the

Expressway. Cooper also told the 9-1-1 dispatcher that his

vehicle “needed to get out of there” because it was “in a bad

spot.” The dispatcher reported the accident through the

computer assisted dispatch system, which alerted the State

Police.

The second accident occurred at that same location about

fifteen minutes later. Michael Testa lost control of his

vehicle and it became stuck in the snow perpendicular to the

roadway, straddling the left and center lanes of the Expressway.

After exiting his vehicle, Testa and his passenger also made

their way to the right side of the road. At that time, a

private ambulance driver responding to a different emergency

stopped temporarily to assist. The ambulance driver parked

behind Testa’s disabled vehicle in the middle lane and activated

the emergency lights.

At approximately 4:25 a.m., the third accident occurred

when plaintiff tried to avoid the ambulance in the middle lane

4 by passing it on the left; however, plaintiff collided with

Testa’s vehicle. Although the impact was light, plaintiff’s

driver-side door was pinned against the concrete median and she

was forced to exit her vehicle through the passenger-side door.

Plaintiff stood near her car on the Expressway.

Within minutes, the fourth accident occurred. Domenico

Raddi, Jr.’s vehicle approached the scene. His car struck

plaintiff and her vehicle, causing plaintiff serious injuries,

including severing of one of her legs upon impact.

State Police officers arrived at the scene of the

aforementioned accidents at approximately 4:43 a.m., about fifty

minutes after Cooper made the initial 9-1-1 call.

B.

Plaintiff sued the drivers and owners of the other vehicles

involved in the accidents (individual defendants), as well as

the Authority and the State Police. Plaintiff alleged that the

public-entity defendants were liable for failing to follow

proper procedure in responding to 9-1-1 calls, resulting in an

almost one-hour delay before law enforcement officers and

emergency personnel arrived on the scene.

The trial lasted fifteen days. Plaintiff’s strategy was to

establish the public-entity defendants’ negligence by showing

that they had violated their standard operating procedure.

5 The trial court’s instructions on the issue of the public-

entity defendants’ liability did not require the jury to make a

factual determination whether the actions of their employees or

agents constituted either ministerial action or discretionary

action. Instead, the court instructed the jury on ordinary

negligence principles, which is the instruction given when a

public entity is found to have taken ministerial action under

the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

The jury returned a verdict finding that the individual

defendants were not negligent, that the Authority was eighty-

percent liable and the State Police was twenty-percent liable,

and that there was no comparative negligence on plaintiff’s

part. The jury awarded plaintiff $8,748,311 in total damages.

Following the jury verdict, the public-entity defendants

moved for a judgment notwithstanding the verdict, and

alternatively, for a remittitur. The trial court denied the

motions, determining that the jury was properly charged and the

verdict was fair and reasonable.

The public-entity defendants sought review on several

grounds. Plaintiff cross-appealed challenging the court’s

denial of her motion for pre-judgment interest. The individual

defendants did not participate in the appeal in light of the no-

cause judgment in their favor. In a published opinion, the

Appellate Division reversed the liability verdict against the

6 public-entity defendants, concluding that the trial court had

erroneously charged the jury. The panel determined that the

trial court should have submitted the question of whether the

employees of the public-entity defendants’ alleged culpable

conduct occurred while engaging in ministerial or discretionary

activity. Henebema v. S. Jersey Transp. Auth., 430 N.J. Super.

485, 504 (App. Div. 2013). The Appellate Division remanded for

a new trial concerning the public-entity defendants’ liability

only. Id. at 513-14, 517.2

The public-entity defendants petitioned for certification

solely on their contention that, at the retrial, the jury should

be asked to assess anew whether the individual defendants were

negligent and whether plaintiff was comparatively negligent; if

so, the public-entity defendants maintain, the jury should

compare the percentage of responsibility of all parties. This

Court granted the petition. Henebema v. S. Jersey Transp.

Auth., 215 N.J. 487 (2013).

II.

The public-entity defendants raise three arguments. First,

they contend that the proximate cause of plaintiff’s injuries is

inextricably intertwined with the negligence of the individual

2 The panel concluded there was no error in the denial of the public-entity defendants’ motion for remittitur. Henebema, supra, 430 N.J. Super. at 512. 7 defendants and the issue of plaintiff’s comparative negligence.

Thus, a retrial on the liability of all parties is required in

this instance. The public-entity defendants maintain that

remanding for retrial only as to their liability would be

prejudicial and unfair because the second jury would not be

presented with potential evidence of negligence and proximate

causation of all parties. They argue that, because the facts

and evidence surrounding the parties’ actions are intertwined,

everything must be presented to the new jury.

Second, the public-entity defendants insist that the

Appellate Division’s decision to remand solely on their

liability is in stark contrast to settled case law. Relying

heavily on Ogborne v. Mercer Cemetery Corp., 197 N.J. 448

(2009), they argue that proximate cause and comparative

negligence must be retried together. Additionally, they contend

that Ogborne requires retrying the issue of liability as to all

parties.

Finally, the public-entity defendants suggest that this

case is an opportunity for this Court to clarify that, in

situations where a trial court has given an improper jury charge

with respect to the standard of care pursuant to the TCA, the

case must be remanded in its entirety to retry comparative

negligence and proximate cause as to all parties.

8 Plaintiff argues that the error in the jury instruction

affected only the issue of immunity afforded to the Authority

and the State Police by the TCA. Accordingly, plaintiff argues

that the retrial should have no bearing on the jury’s previous

no-cause finding in assessing the conduct of the individual

defendants. She further argues that the assessment of the

public-entity defendants’ alleged ordinary negligence with

respect to TCA liability will not cause a shift of liability to

any of the other defendants.

Plaintiff further challenges the public-entity defendants’

reliance on Ogborne, arguing that this case is distinguishable.

Ogborne, plaintiff maintains, involved a different standard of

liability and a different tort immunity under a different

section of the TCA. More specifically, plaintiff argues that

the liability finding in Ogborne turned on whether a “dangerous

condition” existed on the property, a concept that was

inextricably intertwined with the comparative negligence of the

plaintiff.

Plaintiff argues that the Appellate Division’s

determination of an error in the jury instruction regarding the

public-entity defendants’ tort immunity under a palpably

unreasonable standard versus an ordinary negligence standard

requires only a partial remand. Specifically, this case

involves a claim of negligence based on the public entities’

9 standard operating procedure, which relates only to the public

entities’ duties and is not impacted by the conduct of plaintiff

or the individual defendants at the scene of the accident.

Finally, plaintiff argues that the public-entity defendants

did not challenge the verdict as against the weight of the

evidence with respect to any of the individual defendants,

except Raddi, until the appeal to this Court. In addition to

urging the Court not to consider this new issue on appeal,

plaintiff argues that the Appellate Division correctly concluded

that ample evidence was produced at trial to allow a reasonable

jury to conclude that the individual defendants were not

negligent.

III.

The Appellate Division determined, and the parties do not

challenge, that due to the erroneous jury charge the case must

be remanded to assess whether the public-entity defendants --

the Authority and the State Police -- were performing

ministerial acts or discretionary acts in order to determine

their liability under the TCA. The only issue before this Court

is whether the remand for retrial on that question appropriately

includes only the public entities or whether the retrial must

reassess the liability of all of the parties. To set the remand

10 in context, we begin by briefly reviewing some basic principles

of public-entity liability pursuant to the TCA.

The TCA provides protection for public entities involved in

tort claims. Generally, immunity prevails over liability to the

extent that immunity has become the rule and liability is the

exception. See Tice v. Cramer, 133 N.J. 347, 355 (1993) (citing

Bombace v. City of Newark, 125 N.J. 361, 372 (1991)). The

standard for liability under the TCA depends on whether the

conduct of individuals acting on behalf of the public entity was

ministerial or discretionary. See N.J.S.A. 59:2-3(d).

More particularly, for purposes of the factual setting of

this appeal, N.J.S.A. 59:2-3(d) prescribes the circumstances

when a public entity can be found liable in instances where the

public entity allocates resources:

A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

[Ibid.]

Thus, the TCA creates two standards for immunity based on

whether the public entity’s action in allocating resources was

11 ministerial or discretionary. If the action was ministerial,

liability for the public entity is evaluated based on an

ordinary negligence standard. However, a more difficult

threshold must be overcome in order for a public entity to be

liable for an individual’s discretionary acts.

At trial, the jury was not asked to classify the public-

entity defendants’ resource-allocation actions. Rather, the

jury was only asked to determine whether the public-entity

defendants were negligent based on an ordinary negligence

standard. Accordingly, the Appellate Division remanded the case

for retrial, ordering that the second jury be instructed to

determine whether the public-entity defendants’ resource-

allocation actions were ministerial or discretionary. Henebema,

supra, 430 N.J. Super. at 513-14.

With that background we now address the scope of the remand

necessitated in this matter.

As a general rule, “issues in negligence cases should be

retried together unless the issue unaffected by error is

entirely distinct and separable from the other issues.” Ahn v.

Kim, 145 N.J. 423, 434-35 (1996). If issues are inextricably

intertwined, then when one is remanded, the others, too, must be

retried. Id. at 435. However, the determination of whether the

issues are sufficiently distinct and separable is a fact-

12 sensitive analysis, which ultimately depends on the particular

circumstances involved in each individual case. Id. at 434-35;

see, e.g., Tindal v. Smith, 299 N.J. Super. 123, 137-38 (App.

Div.) (stating same and denying new trial where trial judge’s

erroneous instructions on proximate cause did not infect jury’s

verdict, premised on finding of no negligence, because

negligence and causation issues were “entirely distinct and

separate”), certif. denied, 150 N.J. 28 (1997).

Accordingly, and in line with the fact-sensitive approach

taken when reviewing which parties must be included in a retrial

on discrete issues in a negligence action, this Court has

recognized that the remand must include all parties impacted by

an improper jury charge. In Acken v. Campbell, 67 N.J. 585, 589

(1975), this Court affirmed the Appellate Division’s decision to

remand a case for retrial as to both the defendants’ liability

and the plaintiff’s comparative negligence. The jury had been

improperly charged on issues that affected both defendants. Id.

at 588. We also ordered retrial on the plaintiff’s comparative

negligence because once the jury had found the defendants

negligent -- based on an erroneous jury charge -- the jury did

not deliberate properly on whether the plaintiff was

comparatively negligent. Id. at 589.

Similarly important when ascertaining whether issues are

intertwined is whether the jury on retrial will be confused when

13 answering questions about one issue without considering another

issue. Accordingly, in Conklin v. Hannoch Weisman, 145 N.J. 395

(1996), we addressed circumstances where there existed the real

potential that jury confusion could undermine confidence in a

second jury’s verdict on causation if that second jury did not

understand the basis for the first jury’s findings on

negligence. Id. at 422. We held that the interplay of the

negligence and causation issues required both to be redetermined

by the second jury, notwithstanding that the first jury’s

findings on negligence were not infected with error. Ibid.

IV.

In this matter, defendants argue that the negligence of the

individual defendants and the comparative negligence of

plaintiff must be redetermined by the second jury on retrial if

the public entities’ negligence is to be retried. They claim

that the interrelatedness of the individual defendants’

negligence, as well as plaintiff’s comparative negligence,

require reassessment in a combined retrial on all liability

issues. However, this interrelatedness argument fails on close

examination.

At trial, plaintiff alleged that the public-entity

defendants were negligent because they failed to follow proper

procedures in responding to the 9-1-1 system calls and to the

emergency situation. The liability of the individual

14 defendants, unlike that of the Authority and the State Police,

depended on whether Cooper, Testa, and Raddi operated their

vehicles with adequate care given the conditions of the road at

the time of the collisions. Similarly, plaintiff’s comparative

negligence depended on whether she used reasonable care in

operating her vehicle and after exiting it. The first jury,

after being properly instructed on those issues, returned a

verdict finding no cause of action against Cooper, Testa, and

Raddi. The jury verdict also found plaintiff not negligent.

The issue of whether the individual defendants, or

plaintiff, used reasonable care in driving their vehicles is

unrelated to the issue of whether the public-entity defendants

complied with the appropriate standard of care in making

decisions about how to respond to the evolving situation on the

Expressway. The Authority and the State Police have not pointed

to any error in the jury’s determination of no liability with

respect to the individual defendants, or of plaintiff in her

conduct in the motor vehicle accident or immediately after

exiting her vehicle. Moreover, none of the issues involved in

determining the public-entity defendants’ liability would

require or even invite consideration of the individual

defendants’ liability or plaintiff’s comparative negligence. It

therefore would be inappropriate to require a new trial on the

15 individual defendants’ liability or plaintiff’s comparative

negligence.

In sum, plaintiff’s case against the individual defendants,

and the comparative negligence claim against plaintiff, were

based on a different theory of negligence than that posited

against the public-entity defendants. Thus, the theories for

recovery from the public-entity defendants and individual

defendants are not intertwined, let alone inextricably

intertwined. Unlike the jury instruction error in Acken, the

error here did not impact the other parties. Further, the first

jury’s verdict in this matter does not have an outcome-

determinative effect on the issue to be addressed on retrial.

Moreover, there is no potential for jury confusion that

concerned this Court in Conklin.

Finally, we address the public-entity defendants’ reliance

on this Court’s opinion in Ogborne. In Ogborne, supra, a woman

sued a municipality because she fell and broke her leg when she

was forced to scale a fence in order to leave a city-owned

cemetery. 197 N.J. at 453-54. The woman was trapped inside

because an employee locked the only exit hours before the

scheduled closing. Id. at 453. The jury returned a verdict in

favor of the plaintiff. Id. at 455. On the defendant’s appeal,

the Appellate Division remanded for a retrial on liability of

all parties because of an erroneous jury charge. Id. at 455.

16 The Ogborne plaintiff appealed to this Court, arguing that only

the issue of the city’s negligence needed to be retried because

the jury had already found that she was not negligent. Id. at

456. This Court affirmed the Appellate Division decision,

reasoning that the issues of proximate cause and negligence

needed to be retried together because the combination of the

plaintiff’s act of being in the cemetery, along with the

employee’s act of locking the gates, together created a

“dangerous condition.” Id. at 461. Therefore, the

determination of a “dangerous condition” was dependent on the

conduct of both parties, compelling a retrial on all of the

liability factors, not just the city’s liability. Id. at 462.

The public-entity defendants’ reliance on Ogborne is

misplaced. Although the judgment in Ogborne, like this case,

was reversed based on an incorrect jury charge, we ordered a

retrial in Ogborne because “issues concerning the dangerous

condition of the property and whether the [c]ity acted in a

palpably unreasonable manner [were] intertwined with the issues

of causation and foreseeability.” Id. at 461 (internal

quotation marks omitted). Here, the individual defendants

played no role in the conduct of the employees of the public-

entity defendants during the snowstorm. Likewise, plaintiff’s

conduct was not related to that of the public entities’

employees. The negligence claimed against the public-entity

17 defendants is separate and distinct from that claimed against

the other parties, as is the issue of proximate cause.

To conclude, in this matter, the first jury already has

determined that there was no basis to impose liability on the

individual defendants or plaintiff after examining their

respective conduct and using the correct legal standard. It is

undisputed that the jury instructions on those issues were

correct.

The purpose of the retrial -- ordered due to the jury

instruction error on public-entity liability pursuant to the TCA

-- is to have the jury determine, from the evidence, whether the

public entities’ employees were performing either ministerial or

discretionary actions. If the conduct is found to have been

ministerial, then the ordinary negligence standard would apply

in determining the public entities’ liability. If the conduct

is found to have been discretionary, then the correct standard

for imposing liability would be palpably unreasonable conduct.

Once the appropriate standard is identified, the jury can

determine, based upon the applicable standard, whether the

public-entity defendants are liable.

For the foregoing reasons, we hold that the individual

defendants’ liability and plaintiff’s comparative negligence are

not intertwined with the issues to be determined on remand and

18 therefore do not need to be considered by the jury at the

retrial.

The judgment of the Appellate Division is affirmed. The

distinct and separable issue of the public-entity defendants’

negligence is remanded for a new trial consistent with this

opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion. JUSTICE ALBIN did not participate.

19 SUPREME COURT OF NEW JERSEY

NO. A-7 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

SOUTH JERSEY TRANSPORTATION AUTHORITY and NEW JERSEY STATE POLICE,

MICHAEL R. TESTA, MARIA E. PEREIRA, DOMENICO RADDI, JR., JOSHUA COOPER, REY S. COOPER, TROOPER C. DEANGELIS, and TROOPER M. RAZUKAS,

DECIDED September 29, 2014 Chief Justice Rabner PRESIDING OPINION BY Judge Rodríguez CONCURRING/DISSENTING OPINIONS BY DISSENTING OPINION BY

CHECKLIST AFFIRM/REMAND CHIEF JUSTICE RABNER X JUSTICE LaVECCHIA X JUSTICE ALBIN --------------------- --------------------- JUSTICE PATTERSON X JUSTICE FERNANDEZ-VINA X JUDGE RODRÍGUEZ (t/a) X JUDGE CUFF (t/a) X TOTALS 6

1 2