Under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3, a public entity is entitled to sovereign immunity for discretionary activities unless the entity’s actions were palpably unreasonable. However, in respect of ministerial functions, ordinary negligence principles apply. Thus, the consistent NJ battle is between plaintiffs who seek to have a ministerial standard applied and the public entities that seek to have a discretionary function standard applied.

Such was the issue before the court in the case of Henebama v. SJTA, et al.. In this case, the plaintiff lost a leg when, as the result of numerous other car accidents, medical aid was not rendered to her when her car accident occurred. The trial court made the decision as to which standard applied and then charged the jury. An adverse verdict and appeal followed.

When confronted with the appeal, the Appellate Division stressed that the fundamental question before it was whether a judge or jury should make the discretionary or ministerial decision. The Court ruled that “when the evidence establishes a genuine issue of material fact regarding whether the alleged failures of a public entity were the result of discretionary decision making as to how to use its resources, or instead involved ministerial acts mandated by law or practice, then that fact issue must be submitted to the jury.” This is just one more thing to worry about when defending public entities as there now appears to be limited hope for a motion victory.

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