S2492

An Act concerning the tort liability of public entities and employees and amending N.J.S. 59:2-3 and N.J.S. 59:3-2.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S. 59:2-3 is amended to read as follows:

59:2-3. Discretionary activities. a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;

b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

d. 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.

e. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity when there is compliance with the minimum requirements of the public entity's approved safety or operations manuals or when the minimum requirements have been exceeded, if the safety or operations manuals so allow.

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.

(cf: P.L.1972, c.45, s.59:2-3)

2. N.J.S. 59:3-2 is amended to read as follows:

59:3-2. Discretionary activities. a. A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him;

b. A public employee is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

c. A public employee is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or
maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

d. A public employee is not liable for the exercise of discretion when, in the face of competing demands, he 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 employee was palpably unreasonable.

e. A public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in the employee when there is compliance with the minimum requirements of a public entity's approved safety or operations manuals or when the minimum requirements have been exceeded, if the safety or operations manuals so allow.

Nothing in this section shall exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions.

(cf: P.L.1972, c. 45, s. 59:3-2)

3. This act shall take effect immediately and shall apply to any cause of action arising on or after the effective date.

STATEMENT

In Coyne v. State, 182 N.J. 481 (2005), the New Jersey Supreme Court held that, even though a Department of Transportation work crew followed all of the minimum standards set forth in a safety manual for highway operations and used optional measures, there was no discretionary immunity under N.J.S. 59:2-3 or N.J.S. 59:3-2.

This bill would clarify that discretionary immunity is available where public employees use minimum safety standards and choose among additional discretionary measures as allowed in a safety or operational manual.