Rachel A. Parsons v. Mullica Township Board of Education(075859)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience

of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of

brevity, portions of any opinion may not have been summarized).

Rachel A. Parsons v. Mullica Township Board of Education (A-69-14) (075859)

Argued April 12, 2016 -- Decided August 17, 2016

FERNDANDEZ-VINA J., writing for a unanimous Court.

In this appeal, the Court considers whether public entities and their employees are granted immunity pursuant to

the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:6-4, for failure to report the results of a preventative public health

examination.

Rachel A. Parsons (“Parsons”) was a student at the Mullica Township Elementary School from 2001

through 2004. Pursuant to public health initiatives, the school nurse administered visual acuity tests to all students.

In the 2001-02 academic year, Parsons failed the test in her right eye, but her parents were not notified. In 2004,

Parsons was given a second visual acuity test, which she also failed in her right eye. After the 2004 test, Parsons’s

parents were notified of the results from the first and second screenings. Parsons was subsequently diagnosed with

amblyopia in her right eye.

Nine years later, Parsons and her parents (collectively “plaintiffs”) filed a complaint against the Mullica

Township Board of Education (“Board of Education”) and the school nurse (collectively “defendants”). Plaintiffs

alleged that defendants breached their duty of care by failing to timely notify them of the results from the first screening

in violation of N.J.A.C. 6A:16-2.2(1)(6), which provides that local school boards must provide certain health screenings

to their students. On July 3, 2014, defendants moved for summary judgment. Defendants argued that they were

immunized pursuant to the TCA, N.J.S.A. 59:6-4, which provides immunity to public entities and their employees for

failing to conduct an adequate physical or mental examination for the purpose of determining whether the examinee has

a disease of a physical or mental condition. Defendants asserted that taking a person’s medical history, the visual acuity

testing itself, and the communication of the test results are encompassed by the definition of a physical examination, and

therefore, are afforded immunity under N.J.S.A. 59:6-4. Plaintiffs countered that the failure to communicate the results

of the visual acuity test was a separate and distinct act from the examination itself. Therefore, they claimed that the

defendants’ failure to report the results of the physical examination fell outside the purview of immunity under N.J.S.A.

59:6-4.

The trial court denied defendants’ motion for summary judgment, finding that N.J.S.A. 59:6-4 did not

immunize the nurse for failing to timely notify Parsons’s parents of the results from the first visual acuity test. The

trial court also found that the nurse’s actions exposed the Board of Education to liability because she was a public

employee acting within the scope of her duties at the time of the injury. Defendants were granted leave to file an

interlocutory appeal. In a published opinion, the Appellate Division reversed the trial court’s denial of summary

judgment. 440 N.J. Super. 79 (App. Div. 2015). The panel found that reporting the results of a physical or mental

examination was part of the examination itself, and, therefore, defendants were immune from liability. Quoting

Kemp by Wright v. State, 147 N.J. 294 (1997), the panel noted that immunity for public entities is the general rule

and liability is the exception. The panel observed that physical examinations involve a three-step process: (1)

arranging to have an examination; (2) conducting the examination; and (3) reporting the results of the examination.

The exceptions plaintiffs sought to carve out of N.J.S.A. 59:6-4 would excise from such examinations their

necessary concluding step. According to the panel, severing that connection would create an anomaly for the person

examined and would undermine N.J.S.A. 59:6-4’s aim of encouraging public health examinations.

This Court granted plaintiffs’ motion for leave to appeal. 223 N.J. 285 (2015).

HELD: The failure to timely communicate the results of a preventative public health examination falls within the

purview of N.J.S.A. 59:6-4. Therefore, defendants are immune from liability under the TCA. The Court further holds

that immunizing defendants under N.J.S.A. 59:6-4 does not render meaningless the provisions of N.J.A.C. 6A:16-

2.2(1)(6).

1. In 1972, the Legislature enacted the TCA to serve as a comprehensive scheme that seeks to provide compensation to

tort victims without unduly interfering with governmental functions and without imposing an excessive burden on

taxpayers. Except as otherwise provided by the TCA, a public entity is not liable for an injury, whether such injury

arises out of an act or omission of the public entity or public employee or any other person. The TCA’s immunities are

absolute and any ambiguities in their application must be resolved in favor of immunity. (pp. 13-15)

1

2. In Kemp, supra, the Court held that N.J.S.A. 59:6-4 is consistent with the TCA’s overarching principle of extending

absolute immunity to public entities. Kemp also held that N.J.S.A. 59:6-4 can be divided into two sections. The first

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. The second section establishes an exception to the general rule of absolute immunity if the examination is for the

purpose of treatment. Accordingly, the Court must first determine whether a visual acuity test constitutes a physical

examination pursuant to N.J.S.A. 59:6-4. The TCA does not explicitly define a physical examination or its components.

Since the legislative intent cannot be derived from the statute’s plain language, the Court looks to N.J.S.A. 59:6-4’s

legislative history. (pp. 15-16)

3. According to the Report of the Attorney General’s Task Force on Sovereign Immunity (1972)(the “Task Force

Report”), which was submitted to the Legislature with the draft TCA, the immunity granted in 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. The listed examinations were not intended to be exhaustive, but to serve as general

descriptions. The statute should be construed to embrace other illustrations that are similar in nature to those

enumerated. Accordingly, the Court concludes that a visual acuity test is a physical examination administered to

further the public health of students pursuant to N.J.S.A. 59:6-4. (pp. 16-18)

4. As to whether an adequate physical examination includes reporting the results of the examination to the patient or

the patient’s guardians, the Court observes that the TCA does not expressly define a physical examination or its

components. However, according to the American Medical Association, a physical examination includes history-

taking, which involves communicating with the patient at various points throughout the examination about her

physical or mental condition. An additional component of a physical examination involves the actual testing of a

patient. In the context of an eye examination, the Mayo Clinic has defined a complete eye examination to include a

series of tests designed to evaluate vision and check for eye diseases. A complete examination includes

communicating the results of testing to the patient. Thus, reporting the results of the examination to a patient is an

integral component of a complete eye examination. (pp. 18-20).

5. Since an adequate physical examination under N.J.S.A. 59:6-4 includes reporting the results of the examination, it

follows that reporting the results of a physical examination falls within the purview of the statute’s immunity.

Exposing public school boards to liability for failure to adequately communicate the results of a physical

examination would have a chilling effect on public entities that administer public health examinations and it would

be illogical to provide immunity for an inadequately performed examination, while imposing liability for the failure

to report the results of an examination to a patient. For those reasons, the Court holds that defendants are immune

from liability pursuant to N.J.S.A. 59:6-4. This holding comports with the Court’s prior decision in Reed v.

Bojarski, 166 N.J. 89, 91 (2001), in which it held that a complete physical examination includes communication of

the test results to the patient. (pp. 20-21)

6. The Court also holds that immunizing defendants under N.J.S.A. 59:6-4 does not render meaningless the

provisions of N.J.A.C. 6A:16-2.2(1)(6), which provide that local school boards must provide certain health

screenings, including visual acuity tests, to their students. In the event that a screening uncovers a deficiency, the

school district shall notify the parent of any student suspected of deviation from the recommended standard.

Plaintiffs argue that immunizing defendants under N.J.S.A. 59:6-4 for failing to timely inform Parsons’s parents of

her 2001-02 visual acuity test results renders meaningless the safeguards of N.J.A.C. 6A:16-2.2(1)(6). As the

appellate panel found, 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. (pp. 22-24)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON and SOLOMON; and

JUDGE CUFF (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion.

2

SUPREME COURT OF NEW JERSEY

A-69 September Term 2014

075859

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-Appellants,

v.

MULLICA TOWNSHIP BOARD OF

EDUCATION AND JUDITH M.

GRASSO, R.N., B.A., C.S.N.,

Defendants-Respondents,

and

SABAH AMIR, M.D. and WALTER

D. CRANE, D.O.,

Defendants.

Argued April 12, 2016 – Decided August 17, 2016

On appeal from the Superior Court, Appellate

Division, whose opinion is reported at 440

N.J. Super. 79 (App. Div. 2015).

Elliott J. Almanza argued the cause for

appellants (Goldenberg, Mackler, Sayegh,

Mintz, Pfeffer, Bonchi & Gill and Richard N.

Shapiro, a member of the Pennsylvania bar,

attorneys; Joseph E. Sayegh and Mr. Shapiro,

on the brief).

Thomas G. Smith argued the cause for

respondents.

1

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

In this appeal, the Court addresses whether public entities

and their employees are granted immunity pursuant to the New

Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:6-4, for failure to

report the results of a preventative public health examination.

Plaintiff was administered two visual acuity tests over an

approximately two-year period by her elementary school’s nurse.

Plaintiff failed both tests in her right eye, but her parents

were not informed of the test results until the completion of

the second test. Plaintiff’s private doctors subsequently

diagnosed her with amblyopia.1

Nine years later, plaintiff and her parents (collectively

“plaintiffs”) filed a complaint against the Mullica Township

Board of Education (“Board of Education”) and the elementary

school’s nurse (collectively “defendants”). Plaintiffs alleged

that defendants breached their duty of care by failing to timely

notify plaintiff’s parents of the results from the first

screening in violation of N.J.A.C. 6A:16-2.2(l)(6).2

1 “Amblyopia 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. This condition is also sometimes called lazy eye.”

Nat’l Eye Inst., Amblyopia,

https://nei.nih.gov/health/amblyopia.

2 On October 5, 2015, subsection (k) of N.J.A.C. 6A:16-2.2 was

recodified as subsection (1). While lower courts referred to

2

Defendants then moved for summary judgment, claiming

immunity pursuant to N.J.S.A. 59:6-4. This provision provides

immunity to public entities and their employees for failing to

conduct an adequate physical or mental examination for the

purpose of determining whether the examinee has a disease or a

physical or mental condition. Defendants asserted that taking a

person’s medical history, the visual acuity testing itself, and

the communication of the test results are encompassed by the

definition of a “physical examination,” and, therefore, are

afforded immunity under N.J.S.A. 59:6-4.

Plaintiffs countered that the failure to communicate the

results of the visual acuity test was a separate and distinct

act from the examination itself. Therefore, they contended that

the defendants’ failure to report the results of the physical

examination fell outside the purview of immunity under N.J.S.A.

59:6-4.

The trial court denied defendants’ motion for summary

judgment, finding that N.J.S.A. 59:6-4 did not immunize the

nurse for failing to timely notify plaintiff’s parents of the

results from the first visual acuity test. The trial court

further concluded that the nurse’s actions exposed the Board of

Education to liability because she was a public employee acting

the relevant portion of the statute as subsection (k), this

Court refers to its current form, subsection (1).

3

within the scope of her duties at the time of the injury.

Defendants were granted leave to file an interlocutory appeal.

In a published opinion, the Appellate Division reversed the

trial court’s denial of summary judgment. Parsons v. Mullica

Twp. Bd. of Educ., 440 N.J. Super. 79 (App. Div. 2015). The

Appellate Division found that reporting the results of a

physical or mental examination was part of the examination

itself, and, therefore, defendants were immune from liability

under N.J.S.A. 59:6-4.

We now address whether a public entity’s failure to timely

communicate the results of a preventative public health

examination is immunized pursuant to N.J.S.A. 59:6-4. This

determination requires an analysis of the components of a

physical examination and an exploration of whether the

Legislature intended to immunize a public entity for the failure

to communicate the results of an examination under the TCA.

For the reasons that follow, we conclude that the failure

to timely communicate the results of a preventative public

health examination falls within the purview of N.J.S.A. 59:6-4.

Therefore, we hold that defendants are immune from liability

under the TCA, and affirm the judgment of the Appellate

Division.

I.

4

Rachel A. Parsons was a student at the Mullica Township

Elementary School from 2001 through approximately 2004. During

that time, the school was operated by the Board of Education.

Pursuant to public health initiatives, Judith M. Grasso, R.N.,

C.S.N., the school nurse, administered visual acuity tests to

all students.

In the 2001-02 academic year, Parsons failed the test in

her right eye. However, her parents were not notified of this

deficiency. In 2004, Parsons was given a second visual acuity

test, which she also failed in her right eye. After the 2004

test, Parsons’s parents were notified of the results from the

first and second screenings. Parsons was subsequently diagnosed

with amblyopia in her right eye, a condition that went

undetected by her private doctors before and after the first

screening.3

In November 2013, Parsons, then seventeen years old, and

her parents filed a complaint against the Board of Education and

Grasso. Plaintiffs alleged that defendants breached their duty

to timely notify Parsons’s parents of the earlier test results

pursuant to N.J.A.C. 6A:16-2.2(l)(6).

3 Plaintiffs also filed claims against the private doctors for

failing to perform adequate vision screening and to properly

diagnose and treat her amblyopia. Those claims are not part of

this appeal.

5

A.

On July 3, 2014, defendants moved for summary judgment.

Defendants argued, among other things, that they were immunized

pursuant to the TCA, N.J.S.A. 59:6-4, which provides immunity to

public entities and public employees for the failure to make

adequate physical or mental examinations for the purpose of

determining whether the examinee has a disease or a physical or

mental condition. Defendants emphasized that the visual acuity

test and the communication of the examination’s results are

integral components of a “physical examination,” which is

immunized under N.J.S.A. 59:6-4.

In opposition, plaintiffs argued that defendants’ failure

to disclose the results of the visual acuity test was a separate

and distinct act from the physical examination. Plaintiffs

maintained that consequently, the failure to report the results

of the visual acuity test should not be afforded immunity under

N.J.S.A. 59:6-4 because it fell outside of the definition of a

“physical examination.” Accordingly, plaintiffs contended that

the failure to communicate the results should be considered a

ministerial act, which is not afforded immunity pursuant to

N.J.S.A. 59:3-2. Plaintiff’s also argued that Grasso was not

immune from liability because N.J.S.A. 18A:40-4.5 applies only

to scoliosis screenings.

6

In August 2014, the trial court denied defendants’ motion

for summary judgment by order and written opinion. Viewing the

pleadings and available evidence in the light most favorable to

plaintiffs, the trial court concluded that defendants were not

immunized under the TCA for Grasso’s failure to timely disclose

the results of the 2001-02 visual acuity test to Parsons’s

parents. Specifically, the trial court found that the visual

acuity test was “an examination or diagnosis for the purpose of

treatment,” and, therefore, defendants were not entitled to

immunity under N.J.S.A. 59:6-4. Finally, the trial court found

that N.J.S.A. 18A:40-4.5 immunizes school nurses from liability

only for scoliosis examinations but not other health screenings.

B.

The Appellate Division granted defendants’ motion for leave

to appeal and reversed the trial court’s denial of summary

judgment. Parsons, supra, 440 N.J. Super. at 82. The panel

held that a visual acuity test constitutes a “physical

examination” under N.J.S.A. 59:6-4. Id. at 89. The panel

reiterated that “immunity for public entities is the general

rule and liability is the exception.” Parsons, supra, 440 N.J.

Super. at 85 (quoting Kemp by Wright v. State, 147 N.J. 294, 299

(1997)). Further, the Appellate Division noted that N.J.S.A.

59:6-4’s legislative history, and specifically, the Report of

the Attorney General’s Task Force on Sovereign Immunity (1972)

7

(the “Task Force Report”), was evidence of the Legislature’s

intent to immunize public entities for failure to perform

adequate public health examinations, such as eye examinations

for public health purposes. Id. at 87-88.

Second, the panel opined that an “adequate physical

examination” under N.J.S.A. 59:6-4 includes reporting the

examination’s results. Id. at 89-90. The Appellate Division

noted, “[i]n 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 exceptions plaintiffs seek to carve out of

N.J.S.A. 59:6-4 would excise from such examinations their

necessary concluding step.” Ibid. The panel held that

“[s]evering that connection would create an anomaly for the

person examined” and would undermine N.J.S.A. 59:6-4’s aim of

encouraging public health examinations. Id. at 90-91.

Further, the Appellate Division emphasized that even though

“a public entity is generally liable for the ordinary negligence

of its employees in [the] performance of ministerial duties,

[N.J.S.A. 59:2-3 and N.J.S.A. 59:2-3(d)], that liability yields

to a grant of immunity.” Id. at 93 (quoting Pico v. State, 116

N.J. 55, 62 (1989) (citing Rochinsky v. N.J. Dep’t of Transp.,

110 N.J. 399, 412 (1988)). Citing to the Court’s holding in

Kemp, the Appellate Division concluded that the specific

8

immunity for public health screenings under N.J.S.A. 59:6-4

superseded the general liability for negligent ministerial acts

under N.J.S.A. 59:2-3 and 59:3-2. Id. at 94. The panel noted

that its view followed 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.’” Ibid. (quoting State v. Gerald, 113 N.J.

40, 83 (1988)).

This Court granted plaintiffs’ motion for leave to appeal.

223 N.J. 285 (2015).

II.

A.

Plaintiffs argue that the Appellate Division “rewrote”

N.J.S.A. 59:6-4 and, in doing so, ignored the statute’s plain

language and the canons of statutory interpretation by creating

an unsupported “three-step” definition of “physical

examination.” Plaintiffs assert that “[a] survey of medical

reference dictionaries confirms that . . . the definition of

‘physical examination’ does not encompass what occurs after the

examination is complete, namely, notification or reporting of

the results.”

Further, plaintiffs maintain that the plain language of

N.J.S.A. 59:6-4 grants immunity only for the failure to conduct

9

a physical examination or to execute an adequate examination.

Because the statute’s language was clear on its face, plaintiffs

allege that the Appellate Division improperly considered

N.J.S.A. 59:6-4’s legislative history and commentary in

violation of the canons of statutory interpretation. Plaintiffs

also contend that N.J.S.A. 59:6-4’s legislative history and

commentary do not support the Appellate Division’s extension of

immunity to defendants.

Plaintiffs also argue that Kemp does not attach “absolute

immunity” to a public entity’s failure to communicate the

results of a physical or mental examination under N.J.S.A. 59:6-

4. Instead, plaintiffs contend that Kemp only immunizes a

public entity for the failure to perform an adequate physical or

mental examination. Plaintiffs claim that the immunity provided

by the Appellate Division’s three-step test would render the

State’s medical reporting laws meaningless and allow public

health entities to disregard reporting requirements.

Plaintiffs contend that it is not an anomaly to excuse a

public entity from liability for failure to conduct an

examination or execute an adequate examination, while attaching

liability for failure to communicate the results of an

examination. Plaintiffs submit that imposing liability on

public entities advances public policy because it ensures that

10

resources are being used efficiently and protects the interests

and expectations of the examinee.

Finally, plaintiffs argue that immunizing defendants from

liability pursuant to N.J.S.A. 59:6-4 would “render meaningless”

the safeguards in N.J.A.C. 6A:16-2.2(l)(6) because there would

be no statutory enforcement mechanism to ensure compliance.

Paper Mill Playhouse v. Millburn Twp., 95 N.J. 503, 521-22

(1984); Zimmerman v. Bd. of Review, 132 N.J. Super. 316, 322-23

(App. Div. 1975).

B.

Defendants assert that visual acuity tests and

communication of the test results are encompassed by N.J.S.A.

59:6-4’s definition of a “physical examination,” and thus,

defendants are immunized from liability. Defendants stress that

plaintiffs’ argument is flawed because excluding the reporting

of an examination’s results from the definition of a “physical

examination” runs contrary to a patient’s common expectation of

discussing their results with a medical professional. Further,

defendants maintain that visual acuity tests are preventative

public health examinations and not examinations that render

medical treatment. Therefore, visual acuity tests fall within

the purview of immunity under N.J.S.A. 59:6-4 because they

promote public health.

11

Defendants argue that this interpretation does not

“rewrite” or expand N.J.S.A. 59:6-4. Defendants contend that

the Appellate Division properly determined that N.J.S.A. 59:6-

4’s legislative history, including the Task Force Report,

reveals the Legislature’s conclusion that the reporting of

results is expected as part of a “physical examination,” such as

a visual acuity screening.

Defendants also maintain that the Appellate Division

properly relied on Kemp to impose immunity under N.J.S.A. 59:6-

4. Specifically, defendants assert that Kemp, supra, held 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

[to N.J.S.A. 59:6-4].” 147 N.J. at 303. Therefore, defendants

assert that Kemp held that the Legislature intended for the

listed examples in the Comment to N.J.S.A. 59:6-4 to serve as

general descriptions and “be construed to embrace only other

illustrations that are similar in nature to those enumerated.”

Ibid. Accordingly, defendants rely on Kemp to support their

argument that the visual acuity tests and the disclosure of the

test results are encompassed by N.J.S.A. 59:6-4’s definition of

a “physical examination.”

12

Further, defendants assert that N.J.A.C. 6A:16-2.2(l)(6) is

a regulation promulgated by the State Department of Education,

and, therefore, does not control the interpretation of N.J.S.A.

59:6-4. Defendants also argue that immunizing a public entity

or its employees under N.J.S.A. 59:6-4 does not render N.J.A.C.

6A:16-2.2(l)(6) without an enforcement mechanism for ensuring

compliance. Specifically, defendants note that the Department

of Education possesses separate enforcement mechanisms to ensure

compliance with the regulation.

III.

This Court evaluates plaintiffs’ claim by first considering

the plain language of the statute in question. State v. Frye,

217 N.J. 566, 575 (2014); State v. Marquez, 202 N.J. 485, 499

(2010). The fundamental objective of statutory interpretation

is to identify and promote the Legislature’s intent. State v.

Gelman, 195 N.J. 475, 482 (2008) (citing DiProspero v. Penn, 183

N.J. 477, 492 (2005)). “In most instances, the best indicator

of that intent is the plain language chosen by the Legislature.”

State v. Gandhi, 201 N.J. 161, 176 (2010) (citing DiProspero,

supra, 183 N.J. at 492).

When the statutory language is clear on its face, this

Court’s interpretive process ceases, and our sole function is to

enforce the statute in accordance with its terms. State v.

Lenihan, 219 N.J. 251, 262 (2014); Frye, supra, 217 N.J. at 575.

13

In executing this function, this Court reads the Legislature’s

chosen words “with[in] their context” and gives them “their

generally accepted meaning.” N.J.S.A. 1:1-1. Courts may not

“rewrite a plainly-written enactment of the Legislature nor

presume that the Legislature intended something other than that

expressed by way of the plain language.” O’Connell v. State,

171 N.J. 484, 488 (2002); see also Frye, supra, 217 N.J. at 575.

However, if a statute’s plain language is ambiguous or

subject to multiple interpretations, this Court “may consider

extrinsic evidence including legislative history and committee

reports.” Marquez, supra, 202 N.J. at 500; Wilson v. City of

Jersey City, 209 N.J. 558, 572 (2012).

A.

In reviewing plaintiffs’ TCA claim, this Court is guided by

the principle that “immunity for public entities [under the TCA]

is the general rule and liability is the exception.” Kemp,

supra, 147 N.J. at 299; see also D.D. v. Univ. of Med. &

Dentistry of N.J., 213 N.J. 130, 134 (2013).

In 1972, the Legislature enacted the TCA to serve as “a

comprehensive scheme that ‘seeks to provide compensation to tort

victims without unduly interfering with governmental functions

and without imposing an excessive burden on taxpayers.’”

Bernstein v. State, 411 N.J. Super. 316, 331 (2010) (quoting

Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546, 552

14

(2000)). “Except as otherwise provided by [the TCA], a public

entity is not liable for an injury, whether such injury arises

out of an act or omission of the public entity or public

employee or any other person.” N.J.S.A. 59:2-1(a). The TCA’s

immunities are absolute and any ambiguities in their application

must be resolved in favor of immunity, not liability. See

Kyriakos v. N.J. Dep’t of Human Servs., 216 N.J. Super. 308, 312

(App. Div.), certif. denied, 108 N.J. 182 (1987); Perona v. Twp.

of Mullica, 270 N.J. Super. 19, 30 (App. Div. 1994).

Under the TCA, a “public entity” has been defined to

include any “district, public authority, public agency, and any

other political subdivision or public body in the State.”

N.J.S.A. 59:1-3. Similarly, the Legislature defined a “public

employee” to encompass any person in the employ of a public

entity and “an[y] officer, employee, or servant, whether or not

compensated or part-time, who is authorized to perform any act

or service” for a public entity. N.J.S.A. 59:1-3.

The statute in question, N.J.S.A. 59:6-4, provides as

follows:

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

15

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.

In Kemp, supra, the Court held that N.J.S.A. 59:6-4 is

consistent with the TCA’s overarching principle of extending

absolute immunity to public entities. 147 N.J. at 300. Kemp

also held that N.J.S.A. 59:6-4 can be divided into two sections.

Ibid. “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 immunity if the examination is ‘for the purpose of

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

Accordingly, we must first determine whether a visual

acuity test constitutes a “physical examination” pursuant to

N.J.S.A. 59:6-4. The TCA does not explicitly define a “physical

examination” or its components. Because the legislative intent

cannot be derived from the statute’s plain language, we turn to

N.J.S.A. 59:6-4’s legislative history.

The Task Force Report was submitted to the Legislature with

the draft TCA. Del Tufo v. Twp. of Old Bridge, 278 N.J. Super.

16

312, 323 (App. Div. 1995), aff’d, 147 N.J. 90 (1996). The Task

Force Report included the following section that was later

reprinted as a Comment to N.J.S.A. 59:6-4:

The immunity granted [in this provision]

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.

It does not apply to examinations for the

purpose of treatment such as are ordinarily

made in doctors’ offices and public hospitals.

[Comment to N.J.S.A. 59:6-4.]

In 1983, the Comment was amended to specifically provide

immunity for matters “pertain[ing] to the failure to perform

adequate public health examinations, such as tuberculosis,

scoliosis, hearing, eye, mental, and other examinations for

public health purposes.” S. Labor, Indus. & Professions Comm.

Statement to S. No. 524 (1982). However, as this Court

determined in Kemp, supra, the listed examinations in the

Comment to N.J.S.A. 59:6-4 were not intended to be exhaustive.

147 N.J. at 303. Instead, Kemp instructed that the listed

examples should serve as general descriptions and the statute

“must be construed to embrace only other illustrations that are

similar in nature to those enumerated.” Ibid.

Therefore, in accordance with our decision in Kemp, we

conclude that a visual acuity test is a “physical examination”

17

administered to further the public health of students pursuant

to N.J.S.A. 59:6-4. According to the Comment to N.J.S.A. 59:6-

4, the Legislature immunized public entities for “the failure to

perform adequate public health examinations such as public

tuberculosis examinations . . . and eye examinations.” Here,

the parties do not dispute that the visual acuity tests were

designed to promote public health -- specifically, ocular

wellness in students. Further, the visual acuity tests

administered to Parsons and her classmates were not conducted

“for the purpose of treatment such as are ordinarily made in

doctors’ offices and public hospitals”; they were merely

preventative screenings.

We further conclude that visual acuity tests are similar in

nature to “public tuberculosis examinations” and “eye

examinations,” and thus fit soundly within the definition of

“physical examination” under N.J.S.A. 59:6-4.

B.

Next, we must determine whether an “adequate physical

examination,” pursuant to N.J.S.A. 59:6-4, includes reporting

the results of the examination to the patient or the patient’s

guardians. The TCA does not expressly define a “physical

examination” or its components, so we must turn again to

secondary sources to inform our decision.

18

The American Medical Association defines “physical

examination” as

[a] thorough study of a person’s state of

health. The physical examination typically

follows history-taking, in which a doctor

listens to a person’s concerns and asks

questions. Examination usually includes

inspection, palpation (direct feeling with the

hand), percussion (striking parts of the body

with short, sharp taps and feeling and

listening to subsequent vibrations), and

auscultation (listening with a stethoscope).

If a person reports symptoms, the doctor will

attempt to determine their cause. Tests may

also be ordered to aid in diagnosis. One main

objective of regular physical examinations,

conducted at frequent intervals even when a

person is feeling well, is the early detection

of disease.

[Am. Med. Ass’n Complete Med. Encyc. 531 (20th

ed. 2003).]

Thus, a physical examination includes history-taking, which

involves communicating with the patient at various points

throughout the examination about her physical or mental

condition.

An additional component of a “physical examination”

involves the actual testing of a patient. Testing includes the

physical inspection of a patient’s body by hand or medical

device. In the specific context of an eye examination, the Mayo

Clinic has defined a complete eye examination to include

a series of tests designed to evaluate your

vision and check for eye diseases. Your eye

doctor may use a variety of instruments, shine

bright lights directly at your eyes and request

19

that you look through an array of lenses. Each

test during an eye exam evaluates a different

aspect of your vision or eye health.

[Mayo Clinic Staff, Overview, Eye Exam, Mayo

Clinic, http://www.mayoclinic.org/tests-

procedures/eye-exam/home/ovc-20189446.

(last visited Aug. 4, 2016).]

Prior to its conclusion, a complete examination includes

communicating the results of testing to the patient. The Mayo

Clinic states,

[a]t the end of your eye exam, you and your

doctor will discuss the results of all testing,

including an assessment of your vision, your

risk of eye disease and preventive measures you

can take to protect your eyesight.

[Mayo Clinic Staff, Results, Eye Exam, Mayo

Clinic, http://www.mayoclinic.org/tests-

procedures/eye-exam/details/results/rsc-

20189727.

(last visited Aug. 4, 2016).]

Thus, it follows that reporting the results of the

examination to a patient is an integral component of a complete

eye examination. Further, the communication of the results of

an examination to a patient is consistent with the patient’s

reasonable expectation that a medical professional will explain

the diagnosis and any relevant treatment options before leaving

the medical center.

We hold that an “adequate physical examination” under

N.J.S.A. 59:6-4 includes reporting the results of the

examination. Consequently, reporting the results of a physical

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examination falls within the purview of N.J.S.A. 59:6-4’s

immunity. Further, our holding is supported by public policy

considerations. Exposing public school boards to full or

partial liability for failure to adequately communicate the

results of a physical examination would have a chilling effect

on public entities that administer public health examinations.

Such a result would undermine the overarching purpose of

preventative physical examinations -- to foster public health

and wellness. Finally, we conclude that it would be illogical

to provide immunity for an inadequately performed examination,

while imposing liability for the failure to report the results

of an examination to a patient. For those reasons, we hold that

defendants are immune from liability pursuant to N.J.S.A. 59:6-

4.

Our holding today comports with this Court’s prior decision

in Reed v. Bojarski, 166 N.J. 89, 91 (2001), in which the court

observed that a complete physical examination includes

communication of the test results to the patient. In Reed, this

Court considered whether a medical professional owed a patient a

non-delegable duty of care to disclose the results of a pre-

employment screening. Ibid. Two healthcare providers

administered physical examinations to a construction company’s

employees, which included chest x-rays. Id. at 91-92. One of

the x-rays revealed an abnormality in an employee’s chest;

21

however, the medical professionals did not inform him of this

discovery. Id. at 92. Six months later, he was diagnosed with

terminal cancer and died. Id. at 92-93.

This Court held that “when a person is referred to a

physician for a pre-employment physical, a physician-patient

relationship is created at least to the extent of the

examination, and a duty to perform a professionally reasonable

and competent examination exists.” Id. at 105. This Court

opined that “included within the notion of a reasonable and

competent examination is the need to ‘take reasonable steps to

make information available timely to the examinee of any

findings that pose an imminent danger to the examinee’s physical

or mental well-being.’” Ibid. (quoting Rainer v. Frieman, 294

N.J. Super. 182, 191 (App. Div. 1996)).

C.

We also hold that immunizing defendants under N.J.S.A.

59:6-4 does not “render meaningless” the provisions of N.J.A.C.

6A:16-2.2(1)(6). N.J.A.C. 6A:16-2.2(1) provides that local

school boards must provide certain health screenings, including

visual acuity tests to their students. “Screenings for vision

acuity shall be conducted biennially for students in

kindergarten through grade [ten].” N.J.A.C. 6A:16-2.2(l)(2).

The “[s]creenings shall be conducted by a school physician,

school nurse, or other school personnel properly trained.”

22

N.J.A.C. 6A:16-2.2(1)(5). In the event that a screening

uncovers a deficiency, “[t]he school district shall notify the

parent of any student suspected of deviation from the

recommended standard.” N.J.A.C. 6A:16-2.2(1)(6).

Plaintiffs argue that immunizing defendants under N.J.S.A.

59:6-4 for failing to timely inform Parsons’s parents of her

2001-02 visual acuity test results “renders meaningless” the

safeguards of N.J.A.C. 6A:16-2.2(1)(6). Plaintiffs contend that

“constructions of statutes and administrative code that render

meaningless language in other statutes or code are strongly

disfavored.” For support, plaintiffs rely on Paper Mill

Playhouse, supra, 95 N.J. 503, and Zimmerman, supra, 132 N.J.

Super. 316.

However, Paper Mill Playhouse involved the interpretation

of contradictory sections within the same statutory provision or

regulation. Here, by contrast, we are faced with an

inconsistency between a statutory provision and its associated

administrative regulation, not the interpretation of a statutory

provision in conjunction with other related statutory

provisions. In such instances,

[d]espite the presumptions and weight accorded

a duly enacted administrative regulation . .

. [it] must often coexist alongside provisions

of superior legal effect, namely state

statutes. Statutes, when they deal with a

specific issue or matter, are the controlling

authority as to the proper disposition of that

23

issue or matter. Thus, any regulation or rule

which contravenes a statute is of no force,

and the statute will control.

[Terry v. Harris, 175 N.J. Super. 482, 496

(App. Div. 1980).]

Further, as the Appellate Division noted:

[R]egulations 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.

[Parsons, supra, 440 N.J. at 88-89.]

Therefore, we conclude that extending immunity to

defendants under N.J.S.A. 59:6-4 does not “render meaningless”

N.J.A.C. 6A:16-2.2(1)(6).

IV.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON and

SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE

FERNANDEZ-VINA’s opinion.

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