J.R. v. N.J. State Parole Bd.

1

J.R., as administratrix ad prosequendum of the Estate of V.R. and J.R.,^[1] individually, Plaintiffs-Appellants, v. NEW JERSEY STATE PAROLE BOARD, STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF CORRECTIONS, and DIVISION OF PAROLE, Defendants, and SR. PAROLE OFFICER ANGEL RODRIGUEZ, Defendant-Respondent.

No. A-1936-21

Superior Court of New Jersey, Appellate Division

December 21, 2023

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Submitted June 1, 2023

On appeal from the Superior Court of New Jersey, Law Division Monmouth County, Docket No. L-0470-16.

Blume Forte, Fried, Zerres & Molinari, PC, attorneys for appellants (Michael B. Zerres, of counsel and on the briefs; Richard T. Madurski, on the briefs).

Matthew J. Platkin, Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Justine M. Longa, Deputy Attorney General, on the brief).

Before Judges Accurso and Vernoia.

VERNOIA, J.A.D.

Under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, a public employee is not liable for injuries resulting from the parole of a prisoner or the terms and conditions of the prisoner's parole. N.J.S.A. 59:5-2(a). But that broad grant of immunity does not exonerate a public employee from liability for injuries where the employee's conduct "constitute[s] a crime, actual fraud, actual malice or willful misconduct." N.J.S.A. 59:3-14(a).

It is claimed defendant Angel Rodriquez worked as the supervising parole officer of convicted sex offender and parolee Brian Farmer in July 2019, when Farmer is alleged to have sexually assaulted and brutally murdered nine-year-old V.R. and murdered V.R.'s then-foster parent, J.C. Plaintiff J.R., V.R.'s biological mother, later filed suit on her own behalf and as administratrix ad prosequendum of V.R.'s estate, claiming defendant engaged in willful misconduct-an alleged failure to properly supervise Farmer on parole-and, as a result, defendant is not immune from liability under N.J.S.A. 59:5-2(a) and instead is liable under N.J.S.A. 59:3-14(a) for plaintiff's and V.R.'s injuries and damages. Plaintiff appeals from an order granting defendant summary judgment based the court's determination plaintiff lacked evidence defendant's alleged actions constituted willful misconduct under N.J.S.A. 59:3-14(a), and defendant therefore is immune from liability under N.J.S.A. 59:5-2(a). Based on our review of the record, the parties' arguments, and the applicable legal principles, we vacate the court's order and remand for further proceedings.

Plaintiff's First Complaint

In July 2015, plaintiff filed a complaint alleging the New Jersey State Parole Board, the State of New Jersey, the New Jersey Department of Corrections, Division of Parole, and defendant recklessly, carelessly, and negligently supervised Farmer on parole and thereby proximately caused V.R. to suffer injuries and death as a result of the sexual assault and murder allegedly committed by Farmer. Those defendants jointly moved for summary judgment, arguing they were immune from liability under N.J.S.A 59:5-2(a).

The court granted the motion, finding plaintiff did not plead a cause of action upon which relief may be granted, see R. 4:6-2(e), because defendants were immune from liability under N.J.S.A. 59:5-2(a) for the only claim asserted in the complaint-that defendants recklessly, carelessly, or negligently caused the asserted injuries and damages. The court, however, recognized plaintiff could properly assert a legally cognizable claim alleging willful misconduct against the defendants. The court noted the initial complaint did not assert a willful misconduct claim and explained that it made "no ruling with regard to" such a claim.

The court denied plaintiff's request for leave to file an amended complaint to add a willful misconduct claim, reasoning the putative claim required the filing of a new complaint. The court explained it was not "precluding [plaintiff] from raising that claim." In its order dismissing the initial complaint, the court stated it "ma[de] no ruling with regard to" willful misconduct.

Plaintiff appealed from the court's order dismissing the reckless, careless, and negligent conduct cause of action. We affirmed the order, J.R. v. N.J. State Parole Bd., No. A-2277-15 (App. Div. Mar. 9, 2018) (slip op. at 26), but noted the court had stated plaintiff could file a new complaint asserting a willful misconduct claim. Id. at 4 n.2. We further observed that plaintiff had already filed a second complaint asserting a willful misconduct claim. Ibid.

Plaintiff's Second Complaint

In her second complaint, plaintiff asserted a single cause of action alleging Farmer was a violent sex offender serving parole under defendant's supervision at the time of V.R.'s sexual assault and murder. The complaint further alleged defendant engaged in reckless and willful misconduct in his supervision of Farmer by failing to follow the "rules, policies, procedures, regulations and directives related to supervising and monitoring a paroled violent sex offender, such as" Farmer. Plaintiff also averred that as a direct and proximate result of defendant's "deliberate indifference and willful misconduct, [V.R.] . . . was violently and sexually assaulted and murdered by . . . Farmer, and, suffered great physical pain and suffering and emotional and psychiatric suffering and distress."

The complaint also alleged the New Jersey State Parole Board, State of New Jersey, and State of New Jersey, Department of Corrections and Division of Parole, were vicariously liable for defendant's alleged willful misconduct. The court later granted the State defendants' motion to dismiss the complaint, and the matter proceeded solely on plaintiff's willful misconduct claim against defendant.^[2]

Defendant filed an answer to the complaint. During discovery, plaintiff provided a report from a putative liability expert Nancy Hildner who in part opined that defendant engaged in willful misconduct by failing to supervise Farmer in accordance with New Jersey State Parole Board policies and procedures.^[3] In response to Hildner's report, defendant offered a certification from James Stephens, a long-time employee of the New Jersey State Parole Board, Division of Parole, who is a Supervising Parole Office/Captain and whose duties include supervising the Sex Offender Management Unit.^[4] In his certification, Stephens provided an "assessment" of Hildner's report, detailing his numerous disagreements with her findings and conclusions.

Defendant moved for summary judgment. He argued he is entitled to judgment as a matter of law because he is immune from liability under N.J.S.A. 59:5-2(a) and plaintiff lacked evidence he engaged in willful misconduct such that he is exonerated from the immunity under N.J.S.A. 59:3-14(a). Plaintiff opposed the motion, arguing there were genuine issues of material fact concerning defendant's supervision of Farmer's parole prior to V.R.'s sexual assault and murder.^[5]

The Summary Judgment Record

We review a grant of summary judgment de novo, applying the same standard as the trial court. Conforti v. Cnty. of Ocean, 255 N.J. 142, 162 (2023); Samolyk v Berthe, 251 N.J. 73, 78 (2022). The standard requires that 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." Ibid. (quoting Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 125 (2023)).

We also must determine "whether 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).

In reviewing a summary judgment record, we limit our findings of fact to those facts properly presented in accordance with Rule 4:46-2. The Rule states:

[A] party moving for summary judgment is required to submit a "statement of material facts" . . . "set[ting] forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted."

[Claypotch v. Heller, Inc., 360 N.J.Super. 472, 488 (App. Div. 2003) (quoting R. 4:46-2(a)).]

A moving party's citation to the motion record "shall identify the document and shall specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on" in support of each statement of material facts. R. 4:46-2(a).

"[A]ll material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact." R. 4:46-2(b). "[A] party opposing a motion for summary judgment [must] 'file a responding statement either admitting or disputing each of the facts in the movant's statement.'" Claypotch, 360 N.J.Super. at 488 (quoting R. 4:46-2(b)).

Rule 4:46-2's requirements are "critical" but "entail[] a relatively undemanding burden." Housel v. Theodoridis, 314 N.J.Super. 597, 604 (App Div. 1998). They are "designed to 'focus [a court's] . . . attention on the areas of actual...