                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0643-14T4

RACHEL A. PARSONS, a minor
by her parents and guardians ad
litem, HOWARD PARSONS and
MICHELLE PARSONS, and                     APPROVED FOR PUBLICATION
HOWARD PARSONS and MICHELLE
PARSONS, individually,                         March 30, 2015

                                            APPELLATE DIVISION
      Plaintiffs-Respondents,

v.

MULLICA TOWNSHIP BOARD OF
EDUCATION and JUDITH M. GRASSO, R.N.,
B.A., C.S.N.,

      Defendants-Appellants,

and

SABAH AMIR, M.D. and
WALTER D. CRANE, D.O.,

     Defendants.
_____________________________________

          Argued February 23, 2015 – Decided March 30, 2015

          Before Judges Simonelli, Guadagno and Leone.

          On appeal from the Superior Court of New
          Jersey,   Law  Division, Atlantic County,
          Docket No. L-6954-13.

          Thomas G.      Smith   argued    the    cause    for
          appellants.

          Richard N. Shapiro of the Pennsylvania bar,
          admitted pro hac vice, argued the cause for
          respondents (Goldenberg, Mackler, Sayegh,
              Mintz, Pfeffer, Bonchi & Gill, and Mr.
              Shapiro, attorneys; Joseph E. Sayegh, on the
              brief).

       The opinion of the court was delivered by

LEONE, J.A.D.

       Defendants, the Mullica Township Board of Education (Board)

and    Judith    M.     Grasso    (collectively           "defendants"),      appeal      the

denial of their motion for summary judgment in a suit brought on

behalf of then-minor plaintiff Rachel A. Parsons by her parents

and guardians ad litem Howard and Michelle Parsons, who also sue

on    their     own   behalf.       Because      defendants          are   immune      under

N.J.S.A. 59:6-4, we must reverse and remand.

                                         I.

       For purposes of summary judgment only, the parties treat as

fact    the     following        allegations         by    plaintiffs.          From      the

2001/2002       school    year    through       at    least    2004,       Rachel     was    a

student at the Mullica Township Elementary School operated by

the Board.        During that time, Grasso was employed by the Board

as a registered nurse (RN) and certified school nurse (CSN).                                As

part of her duties, Grasso conducted a screening test for visual

acuity on Rachel.             Rachel failed the vision screening in her

right    eye,     but    Rachel's    parents         were    not     notified    of     this

failure, and Rachel was not referred for further vision testing.

Defendants      did     not   provide   Rachel's           parents    with   the     vision




                                            2                                       A-0643-14T4
acuity test results from 2001/2002 until Rachel failed her next

school vision screening in May 2004.         The delay in notification

resulted in a two-year delay in the diagnosis and treatment of

Rachel's right eye amblyopia, and proximately caused the loss of

sight in Rachel's right eye.1

     Plaintiffs allege defendants breached their duty to give

notice   of   the   test   results   under   N.J.A.C.   6A:16-2.2(k)(6).

Plaintiffs filed a complaint in 2013, when Rachel was seventeen,

seeking damages for defendants' negligence and breach of duty

under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3.2

     Defendants filed a motion for summary judgment, claiming

that they were immune under N.J.S.A. 59:6-4, and that Grasso was

also immune under N.J.S.A. 18A:40-4.5.          The trial court denied

summary judgment by order and memorandum decision on August 22,

2014.    We granted defendants' motion for leave to appeal.




1
  Amblyopia, also referred to as "lazy eye," "is the medical term
used when the vision in one of the eyes is reduced because the
eye and the brain are not working together properly.      The eye
itself looks normal, but it is not being used normally because
the brain is favoring the other eye."          Nat'l Eye Inst.,
Amblyopia,     https://www.nei.nih.gov/health/amblyopia     (last
visited Mar. 9, 2015).
2
  Plaintiffs' complaint also included counts against private
doctors who treated Rachel before and after 2001 for failing to
perform adequate vision screening and to properly diagnose and
treat her amblyopia.



                                     3                          A-0643-14T4
                                        II.

    Summary judgment must be granted if the court determines

"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."                 R. 4:46-2(c); accord Brill v.

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

the parties' agreement to the facts for purposes of the motion

for summary judgment, the motion raised only a legal issue of

whether defendants have statutory immunity.                   "Our review of the

meaning of a statute is de novo, and we owe no deference to the

interpretative conclusions reached by the trial court . . . ."

Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564

(2012).     Moreover, "[a] ruling on summary judgment is reviewed

de novo.     We thus 'apply the same standard governing the trial

court,'     and   do   not     defer    to     the    trial     court's   .    .   .

interpretation of 'the meaning of a statute . . . .'"                     Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations

omitted).    We must hew to that standard of review.

                                       III.

    We first address defendants' claim that Grasso is immune

under N.J.S.A. 18A:40-4.5.             This requires consideration of the

statutes and regulations requiring the visual acuity test.




                                         4                                A-0643-14T4
      In 1967, the Legislature enacted the current "Education"

title.     L. 1967, c. 271.          In the subtitle governing the conduct

of schools, it included a chapter entitled "Health Promotion and

Disease Prevention."           N.J.S.A. 18A:40.         In that chapter, the

Legislature included N.J.S.A. 18A:40-4, which provides that a

nurse or other health care personnel "shall examine every pupil

to learn whether any physical defect exists."                      "The frequency

and procedure of and selection of pupils for examinations shall

comply with the rules of the State board."                 Ibid.

      Under the regulations subsequently promulgated by the State

Board of Education, "[e]ach district board of education shall

ensure     that    students    receive    health     screenings."           N.J.A.C.

6A:16-2.2(k).        In     particular,   "[s]creening       for       visual    acuity

shall    be   conducted      biennially       for   students      in    kindergarten

through grade 10."          N.J.A.C. 6A:16-2.2(k)(2).          "Screenings shall

be   conducted     by   a   school    physician,     school    nurse,      or      other

school personnel properly trained."                 N.J.A.C. 6A:16-2.2(k)(5).

"The school district shall notify the parent of any student

suspected of deviation from the recommended standard."                      N.J.A.C.

6A:16-2.2(k)(6).

      In   1978,    the     Legislature   passed     "AN    ACT    concerning         the

examination of pupils for the condition known as scoliosis," the

abnormal curvature of the spine (Scoliosis Act).                        L. 1978, c.




                                          5                                     A-0643-14T4
97,   §§    1-3,    codified       at    N.J.S.A.          18A:40-4.3       to     -4.5.       The

Scoliosis Act required biennial examinations for scoliosis by "a

school physician, school nurse, physical education instructor or

other      school   personnel."           N.J.S.A.          18A:40-4.3;          see     N.J.A.C.

6A:16-2.2(k)(4).            The     final       section        of    the     Scoliosis         Act

provided that "[n]o action of any kind in any court of competent

jurisdiction        shall    lie    against          any    physician,       school        nurse,

physical      education      instructor          or    other        school       personnel      by

virtue of the provisions of this act."                          L. 1978, c. 97, § 3,

codified at N.J.S.A. 18A:40-4.5 (emphasis added).

      The natural reading of "this act" in N.J.S.A. 18A:40-4.5

refers to the Scoliosis Act of which it is a part.                               Nonetheless,

defendants      argue       N.J.S.A.          18A:40-4.5       immunized           Grasso      for

performing an examination under N.J.S.A. 18A:40-4.                                 However, as

noted above, N.J.S.A. 18A:40-4 was enacted eleven years earlier,

with the entire Education title.                           Defendants' argument would

require us to read N.J.S.A. 18A:40-4.5 as immunizing all "school

personnel"      from     any   "action          of    any     kind     in    any       court    of

competent      jurisdiction"            for     any        violation        of     the     entire

Education title.            We see no indication that the Legislature

intended      N.J.S.A.      18A:40-4.5         to     extend    that        far,    or     indeed

anywhere beyond the Scoliosis Act itself.




                                                6                                        A-0643-14T4
     Thus, we agree with the trial court that N.J.S.A. 18A:40-

4.5 provides immunity only against actions brought "by virtue of

the provisions of" the Scoliosis Act, N.J.S.A. 18A:40-4.3 to

-4.5.     It   does   not    immunize       Grasso    for   her   conduct        under

N.J.S.A. 18A:40-4 and N.J.A.C. 6A:16-2.2(k)(2) and (6).3

                                     IV.

     We   next    address    defendants'      claim    that    they   are    immune

under N.J.S.A. 59:6-4 of the TCA.                In 1972, the Legislature

adopted the TCA, "which reestablished the rule of immunity for

public    entities    and   public   employees,        with    certain      limited

exceptions."      Marcinczyk v. State Police Training Comm'n, 203

N.J. 586, 594-95 (2010); see L. 1972, c. 45.                  The TCA "declared

to be the public policy of this State that public entities shall

only be liable for their negligence within the limitations of

this act and in accordance with the fair and uniform principles

established herein."        N.J.S.A. 59:1-2.         "Public entity" includes

any "district, public authority, public agency, and any other

political subdivision or public body in the State," including

the Board here.       N.J.S.A. 59:1-3.        Under the TCA, "immunity for

public    entities    is    the   general     rule    and     liability     is    the

exception."      Kemp by Wright v. State, 147 N.J. 294, 299 (1997);

3
  The legislative history does not reveal why the Legislature
included N.J.S.A. 18A:40-4.5 in the Scoliosis Act, given the
immunity earlier provided in N.J.S.A. 59:6-4.



                                        7                                   A-0643-14T4
accord D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130,

134 (2013) (describing that rule as "the 'guiding principle' of

the [TCA]").

      The Supreme Court in Kemp found that "N.J.S.A. 59:6-4 of

the TCA is consistent with that policy," because N.J.S.A. 59:6-4

establishes a "general rule of absolute immunity."                      Kemp, supra,

147 N.J. at 300.       N.J.S.A. 59:6-4 provides:

                 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.          For the
            purposes of this section, "public employee"
            includes a private physician while actually
            performing   professional    services  for   a
            public   entity   as   a   volunteer   without
            compensation.

      The Court stated that "N.J.S.A. 59:6-4 can be divided into

two   sections."       Kemp,     supra,    147     N.J.   at    300.     "The   first

section provides absolute immunity for the failure to perform an

adequate examination 'for the purpose of determining whether [a]

person has a disease or physical or mental condition that would

constitute    a    hazard   to    the     health    or    safety   of    himself    or

others.'"     Ibid. (quoting N.J.S.A. 59:6-4).                 "The second section

establishes       an   exception    to     the     general     rule     of   absolute



                                           8                                 A-0643-14T4
immunity if the examination is 'for the purpose of treatment.'"

Ibid. (quoting N.J.S.A. 59:6-4).

    Here, it is undisputed that the health screening of Rachel

for visual acuity was not made "for the purpose of treatment."

N.J.S.A.   59:6-4.        Rather,     it    was        made   "for   the     purpose   of

determining whether [she had] a disease or physical or mental

condition that would constitute a hazard to                          [her] health or

safety."    Ibid.      N.J.S.A. 59:6-4 "provides absolute immunity"

regarding examinations for that purpose.                      Kemp, supra, 147 N.J.

at 300.

    Defendants therefore contend they are immune under N.J.S.A.

59:6-4.    Plaintiffs offer several arguments why that section

should not apply here.

                                           A.

    First,     plaintiffs       contend         that    the   health    screening      of

Rachel was not "a physical or mental examination."                             N.J.S.A.

59:6-4.       The   TCA     does     not       define     that    phrase,      but     the

legislative     history         of    N.J.S.A.           59:6-4      gives     examples

illustrating    what      the   phrase     includes.           The   1972     Report    of

Attorney General's Task Force on Sovereign Immunity4 accompanied

the draft legislation that was adopted as the TCA.                          Del Tufo v.


4
  The Report is reprinted in Harry A. Margolis & Robert Novack,
Claims Against Public Entities at 581-662 (Gann 2015).



                                           9                                    A-0643-14T4
Twp. of Old Bridge, 278 N.J. Super. 312, 323 (App. Div. 1995),

aff’d,    147   N.J.      90    (1996).        The    Report    included       a    portion

reprinted as the Comment to N.J.S.A. 59:6-4.                         See Kemp, supra,

147    N.J.   at   302.        The     Comment    states      that    "[t]he       immunity

granted [by N.J.S.A. 59:6-4] pertains to the failure to perform

adequate public health examinations, such as public tuberculosis

examinations,          physical         examinations           to     determine          the

qualifications          of     boxers     and        other     athletes,       and       eye

examinations       for       vehicle    operator      applicants."         Comment         to

N.J.S.A.      59:6-4.         The    Supreme     Court   in    Kemp    explained        that

"[a]lthough the examples listed in the Comment to N.J.S.A. 59:6-

4 were not intended to be exclusive, their general descriptions

must be construed to embrace only other illustrations that are

similar in nature to those enumerated."                       Kemp, supra, 147 N.J.

at 303.

       By that measure, visual acuity screenings for students are

"public health examinations."              Comment to N.J.S.A. 59:6-4.                  They

are similar in nature to "public tuberculosis examinations" and

"eye     examinations         for    vehicle     operator      applicants,"          ibid.,

because they are "conducted for diagnostic purposes only" and,

"[o]nce the examination . . . is complete, the public entity

takes no further action of a medical nature," Kemp, supra, 147

N.J. at 303.




                                           10                                      A-0643-14T4
       Further, when N.J.S.A. 59:6-4 was amended in 1983,5 "the

statement    of    the     Senate      Labor,    Industry   and     Professions

Committee    which       accompanied     the    amendment   noted    that       the

immunity granted by the statute 'pertains to the failure to

perform     adequate       public      health      examinations,     such        as

tuberculosis,      scoliosis,       hearing,      eye,   mental,    and      other

examinations for public health purposes.'"               Del Tufo, supra, 278

N.J. Super. at 323; see Kemp, supra, 147 N.J. at 302 (citing

Senate Labor, Indus. & Professions Comm. Statement, No. 524, L.

1983, c. 184).           Here, the visual acuity screenings were eye

examinations for public health purposes.

       Such examinations may be performed by a school.                    Indeed,

Kemp    involved     a     high     school's     pre-vaccination      screening

examination of students and resulting vaccination for measles.

Kemp, supra, 147 N.J. at 297-98.               The Supreme Court stated that

"[i]f the purpose of the screening examination was to inform

[the student] whether she had measles, such an examination would

have been similar to testing for tuberculosis or visual fitness

to operate a motor vehicle, and would fit perfectly into the

group of public health examinations articulated in the Comment."




5
  The amendment added the last sentence of N.J.S.A. 59:6-4, which
is not implicated here. L. 1983, c. 184, § 1.



                                        11                                A-0643-14T4
Id. at 303.6          Here, the purpose of the visual acuity screening

was     simply    to    inform    Rachel's          parents   if     she       had     vision

problems, and the screening thus "fit perfectly into the group

of    public     health      examinations          articulated     in     the       Comment."

Ibid.

       Plaintiffs argue that a visual acuity screening is not a

physical       examination      under        N.J.A.C.    6A:16      and       the     Mullica

Township       Board    of   Education's           regulations.         However,        those

regulations      by    the    State   Board        of   Education       and     by   Mullica

Township have nothing to do with the TCA.                          Those regulations

cannot determine, limit, or redefine the Legislature's intent in

enacting the TCA in 1972.             They cannot dictate what examinations

the     Legislature       intended      to     encompass      within       the       immunity

granted by N.J.S.A. 59:6-4.7




6
  Kemp held immunity did not apply only because the vaccination
was   treatment,  id.   at  300-03,   and  "the  pre-vaccination
examination was an examination for the purpose of treatment, and
therefore falls within the exception to the TCA grant of
immunity [in N.J.S.A. 59:6-4]," id. at 304. "N.J.S.A. 59:6-4's
grant of immunity 'does not apply to examinations for the
purpose of treatment such as are ordinarily made in doctors'
offices and public hospitals,'" like vaccinations.    Id. at 302
(quoting Comment to N.J.S.A. 59:6-4).
7
  Thus, we need not decide whether N.J.A.C. 6A:16-2.2(k)(2)'s
requirement for visual acuity screening falls within the
definition of "[p]hysical examination" in the regulations of the
State Board and Mullica Township's Board.        We note those
definitions each include as physical examinations the "specific
                                                     (continued)


                                              12                                     A-0643-14T4
      Plaintiffs stress that those regulations specify what type

of   health    care    professional       can     perform      certain      physical

examinations, and do not include an RN or CSN such as Grasso.

However, immunity does not turn on the type of license possessed

by   the   "public    employee"   tasked        with    performing      a   physical

examination.         N.J.S.A.   59:6-4.         Under    the     TCA,    "'[p]ublic

employee'     means     an   employee      of     a     public     entity,"       and

"'[e]mployee' includes an officer, employee, or servant, whether

or not compensated or part-time, who is authorized to perform

any act or service."         N.J.S.A. 59:1-3.           It is undisputed that

Grasso was authorized to perform the visual acuity screenings.

N.J.A.C. 6A:16-2.2(k)(5), -2.3(b)(3)(ii).

      Accordingly, we hold that the visual acuity screening here

was a physical examination under N.J.S.A. 59:6-4.

                                      B.

      Plaintiffs      also   argue    that       even    if    N.J.S.A.      59:6-4

immunizes the "screening for visual acuity" required by N.J.A.C.

6A:16-2.2(k)(2) as a physical examination, it does not immunize

the failure to "notify the parent of any student suspected of

deviation from the recommended standard" under N.J.A.C. 6A:16-

2.2(k)(6).     They assert their claim addresses only the failure


(continued)
procedures required by statute as stated in N.J.A.C. 6A:16-2.2."
E.g., N.J.A.C. 6A:16-1.3.



                                      13                                    A-0643-14T4
to give notice of the examination results, and does not claim a

"failure to make a physical or mental examination, or to make an

adequate physical or mental examination."                   N.J.S.A. 59:6-4.

       In    common       experience,       physical     examinations     involve      a

three-step process: arranging to have an examination; conducting

the examination; and reporting the results of the examination.

The exception plaintiffs seek to carve out of N.J.S.A. 59:6-4

would excise from such examinations their necessary concluding

step.        This    is    illustrated       by    the   examples    given    in    the

legislative history.              "[P]ublic tuberculosis examinations" would

be of little use if the examiner kept the results to herself.

Comment      to     N.J.S.A.       59:6-4.         "[P]hysical   examinations        to

determine the qualifications of boxers and other athletes, and

eye examinations for vehicle operator applicants," are followed

by notification to the athletes or applicants of whether they

are qualified.            Ibid.     A physical or mental examination which

fails to communicate or inadequately communicates the results is

not   "an    adequate       physical    or    mental     examination."       N.J.S.A.

59:6-4.

       Plaintiffs      contend       that    in    the   Comment's   examples,      the

examiner presumably directly notifies the person examined, who

is    an    adult    or,    for    driver's       license   applicants,      at   least

sixteen years old.             N.J.A.C. 13:21-7.1.          Plaintiffs note that




                                             14                               A-0643-14T4
Rachel was in kindergarten, and that N.J.A.C. 6A:16-2.2(k)(6)

requires "[t]he school district shall notify the parent of any

student suspected of deviation from the recommended standard."

However,      the    identity     of     the       persons      giving       and   receiving

notification under the regulation does not alter the integral

role     of   notification        to    the        adequacy      of    the    examination.

Plaintiffs assert that the regulation makes the examination and

the notification two separate events, but it does not sever the

inexorable         connection    between        making        and     communicating        the

diagnosis.

       Severing that connection would create an anomaly for the

person    examined.        Under       plaintiffs'        reading,       N.J.S.A.     59:6-4

would immunize the public entity and public employee for the

failure       to    make   an     examination          to       detect    the      hazardous

condition,         and   for    the    failure       to     diagnose      the      hazardous

condition in an examination, but leave the public entity and

public employee wholly liable for failure to communicate the

result of the examination.              The interests of the person examined

do not justify such a distinction.                        Each failure would leave

them just as ignorant of the hazardous condition.                            The resulting

injury and damages are the same for each failure.

       Such    an    exception        also     would      not    serve       the   goals   of

N.J.S.A. 59:6-4.           Its provision of immunity encourages public




                                              15                                    A-0643-14T4
health examinations.            Public entities might not undertake such

examinations       if     the     public        entities       risked     exposure          to

potentially substantial liability.                     If school boards could be

found liable for the full damages from any hazardous condition

they failed to communicate or to communicate adequately, the

boards     would   be       reluctant      to     conduct      such     public        health

examinations.         The    Legislature         and   State    Board     of    Education

would be similarly reluctant to compel the boards do so.                                    To

encourage     public        health      examinations,       N.J.S.A.       59:6-4       was

intended to provide "absolute immunity," Kemp, supra, 147 N.J.

at 300, not partial immunity that omits one step of a three-step

process.

     Accordingly,         we     hold     that     N.J.S.A.         59:6-4's     immunity

covering the "failure . . . to make an adequate physical and

mental   examination"          includes    the    failure      to    provide     adequate

notification of the examination results.                    It thus covers failure

to   comply    with      N.J.A.C.       6A:16-2.2(k)(6)'s            requirement       that

"[t]he school district shall notify the parent of any student

suspected of deviation from the recommended standard."

                                           C.

     Plaintiffs         primarily    assert       that   such       notification       is   a

ministerial    act,       not    a   discretionary         act.         Based    on    that

premise, they conclude the public entity and public employee are




                                           16                                    A-0643-14T4
liable      under    N.J.S.A.      59:2-3    and    59:3-2,    respectively.           The

trial court apparently agreed, citing N.J.S.A. 59:3-2 in ruling

that   the     TCA       "does   not    provide     immunity    for    Ms.       Grasso's

conduct."           We    accept       plaintiffs'     premise,     but     not     their

conclusion.

       "[A] ministerial act is 'one which a person performs in a

given state of facts in a prescribed manner in obedience to the

mandate of legal authority, without regard to or the exercise of

his own judgment upon the propriety of the act being done.'"

S.P. v. Newark Police Dep't., 428 N.J. Super. 210, 231 (App.

Div. 2012).         We agree that notification here was a ministerial

rather than a discretionary act.                   By providing that the school

district "shall notify the parent of any student suspected of

deviation      from       the    recommended       standard,"       N.J.A.C.       6A:16-

2.2(k)(6) gave the school district no discretion.

       However,      plaintiffs'        argument     contravenes      the    structure,

language, and intent of the TCA, which allows ministerial acts

to be immunized by specific provisions like N.J.S.A. 59:6-4.                             We

first examine the general provisions of the TCA in chapters two

and three.

       Chapter two of the TCA addresses generally the liability

and immunity of public entities.                   "Except as otherwise provided

by   this    act,    a    public    entity    is     not   liable   for     an    injury,




                                            17                                   A-0643-14T4
whether such injury arises out of an act or omission of the

public    entity   or    a    public      employee    or   any   other   person."

N.J.S.A. 59:2-1(a).          The TCA provides that "[a] public entity is

liable for injury proximately caused by an act or omission of a

public employee within the scope of his employment in the same

manner and to the same extent as a private individual under like

circumstances."       N.J.S.A. 59:2-2(a).            However, "[a]ny liability

of a public entity established by this act is subject to any

immunity of the public entity."             N.J.S.A. 59:2-1(b).

     Chapter three of the TCA addresses generally the liability

and immunity of public employees.               "Except as otherwise provided

by this act, a public employee is liable for injury caused by

this act or omission to the same extent as a private person."

N.J.S.A.    59:3-1(a).         However,     "[t]he    liability    of    a    public

employee established by this act is subject to any immunity of a

public employee provided by law."               N.J.S.A. 59:3-1(b).

     In    chapters     two    and    three,     general   provisions     immunize

"[d]iscretionary activities."              N.J.S.A. 59:2-3, 59:3-2.             Those

sections declare that a public entity or a public employee "is

not liable for an injury resulting from the exercise of judgment

or   discretion       vested"        in   the    entity    or    the     employee,

respectively.      N.J.S.A. 59:2-3(a), 59:3-2(a).                 However, those

sections provide that "[n]othing in this section shall exonerate




                                          18                                 A-0643-14T4
a public entity [or a public employee] for negligence arising

out of acts or omissions . . . in carrying out . . . ministerial

functions."        N.J.S.A.       59:2-3(d),      59:3-2(d).          Thus,     when   no

provision of the TCA other than N.J.S.A. 59:2-3 or 59:3-2 could

provide immunity, "[t]he standard for liability under the TCA

depends on whether the conduct of individuals acting on behalf

of     the    public     entity       was   ministerial         or    discretionary."

Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 490 (2014).

       Importantly, N.J.S.A. 59:2-3(d) and 59:3-2(d) each provide

only that "[n]othing in this section" shall immunize ministerial

functions.      (Emphasis added.)            Thus, those sections in no way

prevent immunity from being granted by other sections of the

TCA.    Moreover, chapter two and chapter three both provide that

their    general       allocation      of   immunity      and    liability       governs

"[e]xcept as otherwise provided by this act."                             N.J.S.A. 59:2-

1(a), 59:3-1(a).          Chapter two and chapter three also provide

that    any   liability     of    a   public     entity   or     a    public    employee

"established by this act is subject to any immunity" of the

public entity or public employee provided by law.                               N.J.S.A.

59:2-1(b), 59:3-1(b).

       Therefore, "[a]lthough a public entity is generally liable

for the ordinary negligence of its employees in performance of

ministerial      duties,     that       liability      yields        to    a   grant   of




                                            19                                  A-0643-14T4
immunity."       Pico v. State, 116 N.J. 55, 62 (1989) (citations

omitted); see Rochinsky v. N.J. Dep't of Transp., 110 N.J. 399,

412 (1988).      Both this court and the Supreme Court have ruled

that "acts of negligence, both discretionary and ministerial,

. . . even if not immunized by the general sections conferring

entity immunity (sections 2-2 and 2-3), [may] be immunized under

the specific provisions" of the TCA.                  Tice v. Cramer, 133 N.J.

347, 364-65 (1993); see, e.g., Malloy v. State, 76 N.J. 515, 520

(1978); S.P., supra, 428 N.J. Super. at 233.                  Where a section of

the TCA provides absolute immunity, "it immunizes absolutely all

negligence    of     the     public     entity   or    the    public    employee,"

regardless    of     "whether     the     negligence     is    discretionary      or

ministerial."       Tice, supra, 133 N.J. at 367.

    The Supreme Court in Kemp addressed these precepts with

respect to N.J.S.A. 59:6-4.               The Court noted that "[t]he TCA

includes     both     general     provisions      concerning         immunity    and

liability, see N.J.S.A. 59:2-3; N.J.S.A. 59:3-2, and specific

provisions that govern in particular factual contexts."                         Kemp,

supra, 147 N.J. at 307 (citing N.J.S.A. 59:6-1 to 6-7 ("Medical,

Hospital   and      Public    Health    Activities")).         The     Court    cited

N.J.S.A. 59:6-4 as an example of a specific provision which

provides immunity for ministerial acts:

           [W]here the Legislature saw fit to confer
           absolute immunity for ministerial acts, it



                                          20                               A-0643-14T4
               also did so in specified contexts.       See
               N.J.S.A. 59:6-4 (providing absolute immunity
               in the context of examination for public
               health purposes).

               [Id. at 310.]

       The Court thus indicated that the specificity of N.J.S.A.

59:6-4 trumped the generality of N.J.S.A. 59:2-3 and 59:3-2.

This    view    follows       the    "well-established       rule    that     where   two

statutes appear to be in conflict, and one is general in nature

and the other specific, the conflict is resolved in favor of the

more    specific       statute       'as   a    more    precise     manifestation      of

legislative intent.'"               State v. Gerald, 113 N.J. 40, 83 (1988).

Moreover,       if    a   specific      immunity       provision's        "meaning    were

limited to discretionary governmental acts, the entire provision

would be surplusage, as [N.J.S.A. 59:2-3(a)] immunizes a public

entity from liability for discretionary activities."                            Malloy,

supra, 76 N.J. at 520.

       Moreover, reading N.J.S.A. 59:6-4 to immunize all aspects

of     public        health    examinations,           whether    discretionary        or

ministerial,         comports       with     its    unqualified     plain     language.

N.J.S.A.       59:6-4     specifically         provides    absolute       immunity    for

"failure to make a physical or mental examination, or to make an

adequate       physical       or    mental     examination."         It    provides    no

exception for ministerial acts.




                                               21                               A-0643-14T4
       Furthermore,         as    set     forth      above,       such    an    interpretation

better       serves     N.J.S.A.          59:6-4's        goal       to        encourage    such

examinations than would a construction that failed to immunize

all    three    steps       of    the     examination         process.           Additionally,

reading N.J.S.A. 59:6-4 as immunizing only discretionary acts

would       cause    contradictions            with     its       plain     language.          For

example, its language immunizing "the failure to make a physical

or    mental        examination"          would       dictate        immunity,         while     a

ministerial acts exception would call for liability where such

an    examination      is    required,          as    here.        N.J.A.C.       6A:16-2.2(k)

("Each district board of education shall ensure that students

receive health screenings.").

       By    contrast,       applying          N.J.S.A.       59:6-4's         plain    language

providing absolute immunity effectuates the intent of the TCA.

"[T]he      Legislature      intended          public     entities        to    receive    broad

immunity       protection         under    the"       TCA,     and       thus    "an    immunity

provision       of    the        Act    will      trump      an     applicable         liability

provision."         Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459

(2009);      see     Tice,       supra,     133       N.J.    at     355.         Courts     must

"recognize[] the precedence of specific immunity provisions,"

and ensure "the liability provisions of the Act will not take

precedence over specifically granted immunities."                                Weiss v. N.J.

Transit, 128 N.J. 376, 380 (1992).                        To "rule otherwise would be




                                                22                                      A-0643-14T4
to   ignore        what    is   probably      the     clearest     and      most   important

command of the [TCA], namely, that the immunities set forth in

the [TCA] prevail over any liabilities."                         Tice, supra, 133 N.J.

at     370-71      (citing      N.J.S.A.       59:2-1(b)        and    59:3-1(b)).           "A

contrary       conclusion       could     be    reached         only   by    ignoring      the

language of the statute, the holdings of the cases [above], and

the basic policy of the Tort Claims Act."                          Sczyrek v. Cnty. of

Essex,       324    N.J.    Super.     235,     245    (App.      Div.      1999),   certif.

denied, 163 N.J. 75 (2000).

       We recognize certain provisions in the TCA have been held

not to grant immunity to ministerial acts.                             We held N.J.S.A.

59:7-2 does not immunize ministerial acts because the Comment

stated       that     chapter     seven        "'confers        immunity      upon    public

employees and public entities for their discretionary acts in

the administration of the tax laws.'"                           Tontodonati v. City of

Paterson, 229 N.J. Super. 475, 482 (App. Div.) (quoting Comment

to N.J.S.A. 59:7-3), certif. denied, 117 N.J. 35 (1989).                                     We

also have held N.J.S.A. 59:5-4 does not immunize ministerial

acts    by    police       officers,    because        of   a    similar      Comment,     and

because the section gave no indication it was making a "major

change in prior law," which had provided for liability.                               Suarez

v. Dosky, 171 N.J. Super. 1, 8-10 (App. Div. 1979), certif.




                                               23                                    A-0643-14T4
denied, 82 N.J. 300 (1980).8         Here, no prior law or Comment calls

for liability in contravention of the plain language of N.J.S.A.

59:6-4.

       Our "conclusion is consistent with California precedents

interpreting California's comparable statute[,] Cal. Gov't Code

§ 855.6 (West 1996)," which in its text and its comment "is

virtually identical to N.J.S.A. 59:6-4."                Kemp, supra, 147 N.J.

at 304.     "Because our TCA was patterned after the California

Tort   Claims   Act   of   1963,    reference      to   California    precedents

interpreting section 855.6 is appropriate."                 Ibid.     Our Court

has stressed that "the interpretations of the California statute

by   its   judiciary,      both    before   and    after   our   Legislature's

enactment of the Tort Claims Act," are "particularly significant

to our interpretation of the [TCA]."               Tice, supra, 133 N.J. at

361-62.

       In Creason v. Department of Health Services, 957 P.2d 1323,

1325 (Cal. 1998), the plaintiffs claimed that the public entity

violated a "mandatory duty with respect to its development of

appropriate     testing     and    reporting      procedures"    in   a   program

8
  Cf. Rochinsky, supra, 110 N.J. at 412 (noting that N.J.S.A.
59:5-4 has "been found to cover ministerial as well as
discretionary acts," citing Wuethrich v. Delia, 155 N.J. Super.
324 (App. Div.), certif. denied, 77 N.J. 486 (1978)); see Pico,
supra, 116 N.J. at 62 (noting that general "liability [for
ministerial acts] yields to a grant of immunity" under N.J.S.A.
59:5-4, citing Wuethrich, supra, 155 N.J. Super. at 326).



                                       24                                 A-0643-14T4
screening     newborns       for     hereditary       disorders.          The   California

Supreme      Court    held    that    even   if    the      public    entity      making    a

physical examination fails to carry out a mandatory statutory

duty    which        is      not     immunized         by     California's          general

discretionary immunity statute, "section 855.6 provides specific

immunity"      to    non-discretionary         acts.          Id.   at    1331.      "If    a

specific immunity statute applies, it 'cannot be abrogated by a

statute      which        simply     imposes      a      general      legal       duty     or

liability[.]'"         Ibid.; see also Barner v. Leeds, 13 P.3d 704,

711 (Cal. 2000) (noting that if section 855.6 only immunized

acts    of     discretion          also   covered        by    California's         general

discretionary        immunity       statute,      "the      additional     immunity      set

forth in section 855.6 would have been unnecessary").                             The Court

concluded      that       immunity    was    required         by    the   public     policy

underlying § 855.6 and its comment:

              "To provide the utmost public protection,
              public entities should not be dissuaded from
              engaging in such activities by the fear that
              liability may be imposed if an employee
              performs his duties inadequately.   Far more
              persons would suffer if government did not
              perform these functions at all than would be
              benefited by permitting recovery in those
              cases where the government is shown to have
              performed inadequately."

              [Creason, supra, 957 P.2d at 1332.]

       We are mindful of the serious allegation here that Rachel

lost her sight in one eye because of defendants' negligence in



                                             25                                    A-0643-14T4
failing to perform a ministerial act.                 However, as our Supreme

Court recently stated in finding immunity from liability for

wrongful      death,    even     where    the     facts   "involve      a   profound

tragedy" and "evoke sympathy," the judiciary's focus must be "on

the meaning of a statute."           Wilson, supra, 209 N.J. at 572, 573,

589.        "The   Legislature    has    chosen    the    means    to   achieve   its

policy goals . . . .             Our role is complete once we have made

clear the meaning of the law enacted by the Legislature."                          Id.

at 589.

       We     reverse   the      trial    court's     order       denying   summary

judgment,      and   remand    for   further      proceedings     consistent      with

this opinion.




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