NOT FOR PUBLICATION WITHOUT THE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 

HOWARD PARSONS and MICHELLE 

PARSONS, individually,

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

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, 

APPROVED FOR PUBLICATION

March 30, 2015

APPELLATE DIVISION

March 30, 2015
2 A-0643-14T4

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 
3 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. 
4 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. 
5 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.
6 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. 
7 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.
8 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 
9 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).
10 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.
11 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.
12 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)
13 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.
14 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 
15 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 
16 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 
17 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, 
18 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 
19 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 
20 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 
21 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. 
22 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 
23 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. 
24 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).
25 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 
26 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.