Court Rules in Long-Running Lawsuit

A New Jersey appeals court has issued its latest ruling in a lawsuit filed against the city of Newark almost 10 years ago alleging a dispatcher mishandled a 911 call reporting a kidnapping. The case highlights the need for very specific language if states wish to grant comm centers immunity from lawsuits. Sohayla Massachi was kidnapped in 2000 from a Seton Hall University parking lot by her estranged boyfriend. Newark dispatcher Debony Venable fielded the calls, but mis-identified the suspect’s vehicle and didn’t mention it had left the scene. Massachi’s family sued, but the trial court ruled that the city and Venable was immune from liability under state law. The family appealed, and in Nov. 2007 the NJ Superior Court overturned the immunity ruling, saying the city could be held liable. The lawsuit went to trial and a jury awarded the family $5.5 million. The city then appealed, saying it was immune under a second section of state law. Last week, the Superior Court again ruled the city was not immune from liability, interpreting the state’s 911 immunity law very strictly. The court studied the legislative intent of the law, and concluded, “None of the language…is remotely suggestive of a legislative intent to immunize a call taker…or a dispatcher…from the consequences of their mishandling of a 9-1-1 call.” Instead, the immunity was granted to communications providers and PSAPs for mechanical and electronic problems. The appeals court did find reversible error in the omission of certain jury instructions during the trial. Therefore, the court reversed the jury’s finding for the Massachi family, and ordered a re-trial of the case on the specific issue of how much of Massachi’s “injury” was caused by the city’s negligent handling of the 911 call, and how much was the result of what the court called her “pre-existing condition as an abductee.”

Download (pdf) the 2007 Superior Court appeal decision here. Download (pdf) the August 2010 Superior Court decision here.

The lawsuit and the appellate court decision hung on two specific sections of New Jersey law pertaining to governmental immunity. The city’s first appeal was based on Section 54:5-4:

Neither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided,  for failure to provide sufficient police protection service.

The city’s second appeal centered on Section 52:17C-10, enacted in 1989 and amended in 1996 and 1999:

10. a. Whenever possible and practicable, telephone companies shall forward to jurisdictional public safety answering points via enhanced 9-1-1 network features, the telephone number and street address of any telephone used to place a 9-1-1 call.  Subscriber information provided in accordance with this section shall be used only for the purpose of responding to emergency calls or for the investigation of false or intentionally misleading reports of incidents requiring emergency service.

b. (Deleted)

c. No telephone company, person providing commercial mobile radio service as defined in 47 U.S.C.s. 332(d), public safety answering point, or manufacturer supplying equipment to a telephone company, wireless telephone company, or PSAP, or any employee, director, officer, or agent of any such entity, shall be liable for damages to any person who uses or attempts to use the enhanced 9-1-1 service, wireless 9-1-1 service or wireless enhanced 9-1-1 service established under this act for release of the information specified in this section, including non-published telephone numbers.  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.

d. No telephone company, person providing commercial mobile radio service as defined in 47 U.S.C.s. 332(d), public safety answering point, or manufacturer supplying equipment to a telephone company, wireless telephone company, or PSAP, 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.

e. No telephone company, person providing commercial mobile radio service as defined in 47 U.S.C.s. 332(d), public safety answering point, or manufacturer supplying equipment to a telephone company, wireless telephone company, or PSAP, or any employee, director, officer, or agent of any such entity, shall be liable to any person for damages resulting from or in connection with such entity’s provision of any lawful assistance to any investigative or law enforcement officer of this State or a political subdivision of this State, of the United States, or of any other state or a political subdivision of such state in connection with any lawful investigation by or other law enforcement activity of the law enforcement officer unless the entity, in providing such assistance, acted in a manner exhibiting wanton and willful disregard for the safety of persons or property.