On December 4th, 2005, Janet Henebema was driving home from work as a dealer in an Atlantic City casino.  Suddenly, her car was struck by another car—one that had skidded out of control on some black ice.  Ms. Henebema got out of her car and walked over to the shoulder of the road, only to get hit again by another car, also victim to the same patch of black ice.  As a result of her injuries, she was hospitalized for six weeks and lost a leg, now replaced by a prosthetic.

Ms. Henebema eventually sued the Sough Jersey Transportation Authority, alleging that the agency itself was negligently responsible for her trauma.  She asserted that the emergency dispatchers made inadequate decisions that night in responding to the roadway condition and the accident.

At the trial-level, Ms. Henebema largely succeeded.  But, this week, the Appellate Division reversed the liability portion of that earlier decision, remanding the case for a new trial.

The judge sitting on the trial bench, apparently, made a decision to settle a particular factual dispute when he should have left that decision to a jury.

“The parties contested the predicate facts relevant to determining whether defendants either exercised discretionary decisionmaking or performed ministerial acts,” the Appellate Division opinion explained.  “[This is] a distinction central to applying the correct standard of liability under the New Jersey Tort Claims Act.”

In other words, for Ms. Henebema to prove fault by the government for her injuries, she needs to show that the actions that led to those injuries were based on discretion on the part of the actor(s).  There has to have been choice or leeway.  It can’t have just been ‘following orders,’ so to speak.

Clearly, this is a factual question.  And, as factual questions are generally reserved for juries, the Appellate Division reversed as to liability (though, if liability can still be shown, the lower-courts damages calculations stand).

For more, see http://www.leagle.com/xmlResult.aspx?xmldoc=In%20NJCO%2020130401216.xml&docbase=CSLWAR3-2007-CURR