A recent New Jersey Appellate Division case, Turner v. Township of Irvington, held that municipalities enjoy absolute immunity for the conduct of 911 operators. The case involved two people who were injured after repeated calls to 911 were not relayed to police. The plaintiffs, Erica and Eric Turner, repeatedly placed calls to 911 in response to several attempts made by Al Mutah Q. Saunders to forcibly enter Ms. Turner?s residence. Mr. Saunders was Ms. Turner?s ex-boyfriend and on April 4, 2005, he was served with a final restraining order obtained by Erica for her and her family?s protection. That same day, Mr. Saunders made several attempts to forcibly enter the residence beginning at 6:30 p.m. The first call claimed that Mr. Saunders was outside the door in violation of the final restraining order and that he had kidnapped his daughter. Subsequent, and more desperate calls, were made at 6:39 p.m., 6:41 p.m., 6:49 p.m., and finally at 7:51 p.m. As of the last call at 7:51 p.m., the report was that Mr. Saunders was now inside the building beyond a second door and kicking at the apartment door.
Police did not arrive at the scene until 8:36 p.m. after receiving a call from the dispatcher at 8:27 p.m. Although the prior calls indicated that Mr. Saunders had a gun and was threatening to kill Erica, the Police were not informed by the dispatchers that he had a gun or that he was in violation of a final restraining order. By the time the officers left at 8:36 p.m., Mr. Saunders had left.
One week later on April 11, 2005, at approximately 6:15 a.m., Erica found Mr. Saunders climbing into her apartment through a window. He had a gun and said to Erica, ?I?m going to kill you, bitch.? He struck her in the head with a gun and ordered her to put clothes on their infant daughter. Erica complied and all three left the apartment with Saunders holding the gun to Erica?s back. As they left they encountered Erica?s father, Mr. Turner, in the driveway. Mr. Saunders shot Mr. Turner and then forced Erica to drive them onto the Turnpike and then Route 78, where they were chased by police and eventually he was arrested after a four-hour standoff.
The Turners sued both the Township of Irvington and the 911 dispatchers. The trial court declined to dismiss the case as to the Township of Irvington and an appeal was filed. The issue on appeal was whether the 911 immunity statute N.J.S.A. 52:17C-10(d) and the Tort Claims Act immunity for willful and wanton misconduct (N.J.S.A. 59:2-10) provided absolute immunity to the Town for the conduct of the 911 operators. The 911 immunity statute provides:
No telephone company, person providing commercial mobile radio service?, public safety answering point, ? or any employee, director, officer, or agent of any such entity, shall be liable to any person for civil damages, or subject to criminal prosecution resulting from or caused by any act, failure or omission in the development, design, installation, operation, maintenance, performance or provisioning of any hardware, software, or any other aspect of delivering enhanced 9-1-1 service, wireless 9-1-1 service or wireless enhanced 9-1-1 service. This limitation of liability is inapplicable if such failure resulted from a malicious purpose or a wanton and willful disregard for the safety of persons or property.
N.J.S.A. 52:17C-10(d).
The relevant immunity provision in the Tort Claims Act provides,
A public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct.
N.J.S.A. 59:2-10.
In denying the Township?s motion for summary judgment, the trial court found that the plaintiffs had ?narrowly? met their burden to surpass the immunity provisions of N.J.S.A. 52:17C-10(d). It?emphasized?that multiple calls expressed ?severe issues,? and that ?this is not a one-time mistake where the call taker maybe on one occasion?didn’t?do what the call taker needed to do, but calls were repeated over and over again.? Thus, the court found that the 911 operator?s conduct created an issue of fact as to whether their misconduct was willful or wanted. On that basis, the trial court denied the motions for summary judgment filed by both the 911 operators and the Township of Irvington.
The trial court, however, failed to take into account the immunity provision of N.J.S.A. 59:2-10. When taking that provision into account, the appellate court found that the legislature intended for the Township to remain immune for the wanton and willful misconduct of the 911 operators. Accordingly, the appellate division directed the trial court to dismiss the complaint against the Township on that basis.
