Cross-Appellants, v. Cross-Respondent. (2010)

This appeal requires us to decide a question left unresolved in our prior opinion in this case, Massachi v. AHL Services, Inc., 396 N.J.Super. 486, 508 (App.Div.2007), certif. denied, 195 N.J. 419 (2008).   In particular, we now decide whether N.J.S.A. 52:17C-10, commonly known as the 9-1-1 immunity statute, provides immunity to employees of defendant City of Newark's (City) 9-1-1 emergency communications center for the employees' bungled response to a call for emergency police assistance.   Their negligent mishandling of the call, and failure to properly dispatch police, contributed to the murder of Sohayla Massachi by her former boyfriend.   After an Essex County judge denied the City's motion for summary judgment by concluding that the 9-1-1 statute did not provide immunity, the case proceeded to trial, resulting in a jury award of $5,512,000 to plaintiff, the estate of Sohayla Massachi.

We now hold that N.J.S.A. 52:17C-10 does not afford immunity to a 9-1-1 emergency communications center and to its employees for the negligent rendering of 9-1-1 services, including dispatching police to an incorrect location, failing to keep the caller on the line so she could update the 9-1-1 employee on the location of the perpetrator and failing to broadcast an alert to surrounding municipalities.   We also reject the City's claim that the “increased risk/substantial factor” jury charge was improper.   We do, however, agree that the judge's omission of special jury interrogatories asking the jury to apportion damages had a clear capacity to produce an unjust result.   In particular, not asking the jury to determine, in percentages, what portion of the ultimate injury (Massachi's death) was the result of her pre-existing condition as an abductee, and what portion of the ultimate injury was the result of the City's negligent handling of the 9-1-1 call, created reversible error.   We therefore reverse the May 22, 2008 order entering judgment in plaintiff's favor and remand for a new trial;  however, as the error did not affect the quantum of damages, the retrial shall be limited to liability and proximate cause.

I.

Although the facts are set forth in considerable detail in our prior opinion, id. at 491-93, we now briefly recite the pertinent facts, as drawn from the trial record, to provide context for the legal issues we address today.   On May 10, 2000, two high school girls saw Christopher Honrath force Massachi, who was screaming and crying for help, into his car.   The girls reported the incident and the car's license plate number to an Argenbright Security (Argenbright) guard who was stationed at the guard booth at the main gate of Seton Hall University (Seton Hall).   When the guard stated there was nothing he could do because the incident did not occur on University property, the girls telephoned the South Orange Police Department to report the abduction and provided the license plate number and a description of the car and its occupants.

At approximately the same time, two off-duty Essex County Sheriff's Officers, Melissa Lester and Elwood Thompson, witnessed Honrath pull Massachi into his car.   Lester called 9-1-1, and the call was routed to the City's 9-1-1 emergency communications center.   Lester provided a description of the incident, the car, and the car's direction of travel to 9-1-1 operator Debony Venable.

Although Venable was unsure how to handle the call, she consulted a co-worker instead of her supervisor, as was required by police department guidelines.   Venable put the information into the 9-1-1 computer system, but failed to note the last known location of Honrath's car or that the car was in motion;  misidentified the car as a Chevrolet Blazer instead of a Plymouth Laser;  failed to record the vehicle's path of travel, which resulted in a police unit being erroneously dispatched to the original location even though Honrath was already gone;  and failed to keep Lester on the line so that Lester would be able to update the responding units on the vehicle's path of travel.

Dispatcher George Mike “ran” the license plate and printed out the name and address of the vehicle's owner, Honrath.   However, although Mike was required by police procedures to also issue a general alert to all Newark police units and to neighboring municipalities, he failed to do so.   Mike also had the capacity to contact Westfield police, where Honrath lived, but did not do so.

A short time later, Westfield police were notified by Gary Powell, who shared a Westfield house with Honrath, that Honrath had pulled a woman into his room and that she was screaming that Honrath had a gun.   Westfield police responded to the house, knocked on Honrath's door, and yelled “police.”   Two gunshots were then heard from inside Honrath's room.   The officers did not enter the room, but instead waited thirty minutes for the arrival of an Emergency Response Team. The Response Team found Honrath dead and Massachi unconscious with a bullet wound to the head;  Massachi was transported to a Newark hospital where she died two days later.

Disciplinary sanctions were imposed against Venable for her violation of police department policies and procedures in her handling of the 9-1-1 call.

To place in context the 9-1-1 immunity issue, we first describe the procedural posture of the case at the time we issued our published opinion in 2007.   On August 26, 2005, prior to commencement of trial, the judge had granted summary judgment to the City, finding that it was entitled to immunity under a portion of the Tort Claims Act, N.J.S.A. 59:5-4.   Plaintiff appealed.   We held that the Tort Claims Act did not provide immunity to Newark under these circumstances, reversed the trial court's grant of summary judgment and remanded plaintiff's claim against Newark for trial.   Massachi, supra, 396 N.J.Super. at 507-08.   We did not rule upon Newark's argument that it was entitled to immunity under the 9-1-1 statute, N.J.S.A. 52:17C-10, as the issue had not been squarely addressed in the Law Division in light of the grant of summary judgment based upon the Tort Claims Act. Id. at 508.   We preserved the issue for remand.  Ibid.

On April 29, 2008, a few days before the trial was scheduled to commence, the City again moved for dismissal of plaintiff's complaint pursuant to the 9-1-1 immunity statute, N.J.S.A. 52:17C-10.   The City argued that a plain reading of the statute afforded immunity to the City for Venable's and Mike's actions in delivering 9-1-1 services unless their actions were wanton, willful, or malicious, which plaintiff had not alleged.   Plaintiff opposed the City's motion, arguing that the 9-1-1 statute provided immunity only for negligence in the mechanical delivery of services and not for Venable's and Mike's “rendering” of services.   The judge denied the City's motion on procedural grounds, but did find that the City had not provided the court with any precedent, from New Jersey or elsewhere, to support its argument that the City should be afforded immunity under N.J.S.A. 52:17C-10.   The case proceeded to trial, resulting in the verdict we have already described.

On appeal, the City argues the judge committed reversible error when she charged the jury by using the increased risk of harm/lost chance standard because that standard applies solely to medical malpractice cases and a narrow class of cases involving pre-existing medical diseases or conditions.   The City also maintains that even if the increased risk/lost chance jury charge was not error, the verdict sheet was fatally defective because it did not ask the jury to apportion damages between plaintiff's pre-existing condition as an abductee and the City's negligence.   As a second point on appeal, the City maintains the judge erred when she denied the City's motion to bar the testimony of plaintiff's expert, Seamon, as an impermissible net opinion.   Last, the City maintains the judge erred when she denied its motion to dismiss plaintiff's complaint based upon the 9-1-1 immunity statute, N.J.S.A. 52:17C-10(d).

II.

We turn first to the City's claim that the Law Division's denial of its motion for judgment under the 9-1-1 immunity statute was error, because, according to the City, both N.J.S.A. 52:17C-10(d) and (e) provide immunity for the very type of negligent acts and omissions that Venable and Mike committed.   In particular, the City maintains that subsection (d) provides immunity to a public safety answering point ^{:  Double} (PSAP) such as Newark's 9-1-1 emergency communications center for a wide array of design or mechanical failures at a PSAP and for “ ‘any other aspect of delivering enhanced 9-1-1 service, wireless 9-1-1 service or wireless enhanced 9-1-1 service.’ ” (quoting N.J.S.A. 52:17C-10(d)) (emphasis added).   The City relies heavily on the immunity from liability for errors in “delivering” PSAP services.   The City also relies on subsection (e), which immunizes a PSAP for errors committed while providing assistance to any law enforcement officer.

Plaintiff urges us to reject the City's subsection (d) argument, contending that the immunity conferred by that subsection is confined to a “technical failure of a 9-1-1 call service” such as the “failure of a 9-1-1 call to connect because of a service provider's faulty hardware.”   Plaintiff also maintains that the City's subsection (e) argument ascribes functions to a PSAP that it does not actually perform.

Because the parties' arguments rely heavily on the legislative history of the statute-from its initial form in 1989 through the 1999 amendments that resulted in the current version-we begin our analysis by turning first to the legislative history of N.J.S.A. 52:17C-10.

A. The 1989 statute

The 1989 statute was adopted as part of a comprehensive legislative enactment that created an Emergency Response System in the State of New Jersey.   The entire package of bills was the culmination of the work of the Emergency Response System Study Commission (the Commission), which was established in January 1986, by L. 1985, c. 542, “to study and make recommendations concerning appropriate legislation to create a Statewide enhanced 9-1-1 emergency telephone system;  and to study and make recommendations concerning the emergency response system in the State with a view to improving and facilitating the provisions of emergency service ․ and ․ remedying defects in the present system.”   After holding a series of public hearings, the Commission issued its report, Emergency Response System Study Commission, First Phase Report (Dec. 30, 1986) (Report ), calling for the creation of an “enhanced” 9-1-1 system,^{:  Double} which had three components:  1) a series of technical recommendations designed to address the “overlap” and “underlap” problems in the emergency 9-1-1 telephone service that had been in place since 1967;  2) development of a proposed funding source for the new switching equipment that would be required;  and 3) recommendations for a package of proposed legislation to implement the enhanced 9-1-1 system.

Notably, although none of the witnesses at any of the three public hearings the Commission conducted in Blackwood, Trenton or Paterson had recommended, or even discussed, providing telephone companies or PSAPs with immunity from liability for negligently handled 9-1-1 calls, the 1986 Report contained a section recommending immunity for any acts or omissions committed while rendering PSAP services.   In a section of its Report entitled “Liability of the Telephone Companies and PSAPs,” the Commission recommended:

No liability would be incurred by any telephone company or PSAP for the release of the information specified in the legislation, including non-published telephone numbers, or for the failure of any equipment or procedure in connection with the enhanced 9-1-1 service.   Furthermore, no liability would be incurred by any telephone company or PSAP for any act or omission of an act committed while training for or rendering PSAP services in good faith and in accordance with the legislation.

[Id. at 21 (emphasis added).]

In furtherance of its immunity recommendation, the Commission included proposed legislation immunizing PSAPs for “any act or ․ omission of an act committed ․ in rendering PSAP services.”   The legislation proposed by the Commission was as follows:

No telephone company, public safety answering point, or agents of a telephone company or PSAP, shall be liable to any person who uses the enhanced 9-1-1 service established under this act for release of the information specified in this section, including non-published telephone numbers, or for failure of any equipment or procedure in connection with the enhanced 9-1-1 service or for any act or the omission of an act committed while in the training for or in rendering PSAP services in good faith and in accordance with this act.

[Id. at 31.]

The package of bills introduced in the General Assembly and Senate in response to the Commission's Report contained an immunity section that was identical to the immunity legislation the Commission recommended in its 1986 Report;  however, the Sponsor's Statement made no reference to the immunity provisions.   See Sponsor's Statement, Statement to A.B. No. 1576 (pre-filed for 1988).   Instead, the Sponsor's Statement was confined to a description of the features of the enhanced 9-1-1 system and the ways in which the new system was superior to the system then in place.  Ibid.

After introduction, A-1576 was considered by three legislative committees, the Assembly Transportation and Communications Committee, the Assembly Appropriations Committee and the Senate Committee on Revenue, Finance and Appropriations.   The legislative history of the proceedings of those three committees includes no reference to the portion of the legislation establishing immunity from liability.

When Governor Thomas H. Kean signed A-1576 into law on January 18, 1989, he commented that the legislation establishing the Statewide emergency 9-1-1 telephone system would “greatly enhance the State's emergency response capabilities” by establishing a “network of ‘Public Safety Answering Points' with specialized computers to receive 911 calls and locate their source.   The call will the[n] be routed to the appropriate emergency response agency nearest to the location of the call.”   Press Release, Office of the Governor, Press Release for A-135 and A-1576 (Jan. 19, 1989).   The Governor's Press Release made no mention of the immunity section contained in the legislation.  Ibid.

The legislation signed into law on January 18, 1989

contained an immunity provision later codified as N.J.S.A. 52:17C-10.   The statute provided:

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 or incidents requiring emergency service.

b. No telephone company, public safety answering point, agents of, or manufacturer supplying equipment to a telephone company or PSAP, shall be liable to any person who uses the enhanced 9-1-1 service established under this act for release of the information specified in this section, including non-published telephone numbers, or for failure of any equipment or procedure in connection with the enhanced 9-1-1 service or for any act or the omission of any act committed while in the training for or in rendering PSAP services in good faith and in accordance with the act.

[N.J.S.A. 52:17C-10 (emphasis added).]

As is clear from the version of N.J.S.A. 52:17C-10 that was enacted in 1989, the statute provided three distinct types of immunity:  1) immunity for the release of non-published telephone numbers;  2) immunity for failure of any equipment or procedure used in connection with the enhanced 9-1-1 service;  and 3) immunity for any act or omission in rendering PSAP services in good faith.

However, whether intentionally or unintentionally, the 1989 version of the statute conferred immunity from liability only to claims asserted by the “person who uses the enhanced 9-1-1 service.”   Thus, N.J.S.A. 52:17C-10, in its original form, would not have established any immunity from liability if the intended recipient of the 9-1-1 emergency service was not the person who placed the call.   That is because the immunity was extended only to claims asserted by the person who actually “use[d] the enhanced 9-1-1 service established” under the statute.

Consequently, in a situation such as the one presented by this appeal, the immunity section of the statute that existed in 1989 would have provided no benefit to the City of Newark for the claims asserted by the estate of Sohayla Massachi, as it was not Massachi who made the telephone call to the City's PSAP. As we have already noted, the person “who use[d] the enhanced 9-1-1 service” was Melissa Lester, the person who witnessed Massachi's abduction.

B. The 1996 amendment

In 1996, as required by 47 U.S.C. § 332(c), the Legislature amended N.J.S.A. 52:17C-10 to provide immunity to commercial mobile communications providers similar to the immunity already afforded to telephone companies.   The amendment made no revision to the language in subsection (a).   The only revision to subsection (b) was the addition of the words “person providing commercial mobile radio service as defined in 47 U.S.C. § 332(d)” ^{:  Double} after the words “No telephone company.”   As is evident, the 1996 amendment was merely a technical revision to add mobile radio service providers.   Thus, the 1996 amendment made no substantive change to the immunity provisions that were already in place.

C. The 1999 amendment

The 1999 amendments revised five of the sixteen statutes that comprised the 1989 legislation.   The statutory amendments added wireless telephone companies to the 9-1-1 network, N.J.S.A. 52:17C-1(p), -1(q), -1(r), -3, -4;  established a permanent Enhanced 9-1-1 Commission and expanded its membership, N.J.S.A. 52:17C-2;  and created the present version of N.J.S.A. 52:17C-10.   The Legislature's 1999 amendments to N.J.S.A. 52:17C-10 deleted subsection (b) and added subsections (c) through (e).   The 1999 version of the 9-1-1 immunity statute, which remains operative, provides:

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 by amendment P.L.1999, c. 125).

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.

[N.J.S.A. 52:17C-10 (emphasis added).]

The Sponsors' Statement accompanying the 1999 legislation is significant.   After commenting that the 1999 amendments were designed to reestablish the 1986 9-1-1 Commission as a permanent Commission, as required by the Federal Communications Commission, and add wireless telephone providers to the 9-1-1 network, the sponsors commented that the 1999 revisions to the immunity provisions that had existed since 1989 had another objective, namely:  “expand [ing][the] limitation of liability.”   Sponsors' Statement, Statement to S.B. No. 1495 (Nov. 16, 1998).   The Sponsors' Statement provided:

The bill makes additional changes in existing law in order to recognize the FCC requirement that E9-1-1 service be provided by wireless telephone companies.   The bill requires each wireless telephone company providing service within the State to provide wireless enhanced 9-1-1 service pursuant to FCC wireless E9-1-1 requirements and includes wireless telephone companies and wireless enhanced 9-1-1 service in the original legislation.   The bill also provides for an expanded limitation of liability for telephone companies, wireless telephone companies and other entities in connection with enhanced 9-1-1 service or wireless enhanced 9-1-1 service and in connection with supplying assistance to investigative or law enforcement officers.

[Ibid.]

After its introduction, S-1495 was reviewed by a total of three legislative committees, the Senate Law and Public Safety Committee, the Assembly Policy and Regulatory Oversight Committee and the Assembly Appropriations Committee.   On the immunity issue, both of the Assembly Committee Statements made the same observation:

Finally, the bill alters the existing limitation of liability language to include wireless enhanced 9-1-1 service, except in the event of wanton or willful disregard for the safety of persons or property.

[Assembly Policy & Regulatory Oversight Committee, Statement to Senate, No. 1495, 1-2 (March 18, 1999);  Assembly Appropriations Committee, Statement to Senate, No. 1495, 1-2 (May 3, 1999).]

The Senate Law and Public Safety Committee described the purpose of the 1999 amendment to the immunity provisions somewhat differently:

The committee also amended the bill by adding a definition of wireless 9-1-1 service, by altering the limitation of liability language to include wireless 9-1-1 service, in addition to enhanced 9-1-1 service and wireless enhanced 9-1-l service, and by providing that the limitation of liability would be inapplicable in the event of wanton or willful disregard for the safety of persons or property.

[Senate Law & Public Safety Committee, Statement to Senate, No. 1495 with committee amendments, 2 (January 25, 1999) (emphasis added).]

Although we will discuss the significance of the legislative history of N.J.S.A. 52:17C-10 in greater detail later in this opinion, several initial themes are clear:  1) the sponsors of the 1999 revision observed that expanding the immunity provisions of the statute was one of two principal purposes underlying the 1999 amendment, the other being the addition of wireless telephone service providers as one of the entities entitled to immunity;  2) the 1999 amendments deleted subsection (b), which was part of the 1989 version of the statute, and which had broadly conferred immunity for acts or omissions in the “rendering” of the PSAP services;  3) the 1999 amendments replaced subsection (b) with a more detailed immunity provision describing the circumstances under which immunity would attach;  4) the immunity for PSAPs and providers was broadened in 1999 to include an immunity from criminal liability, rather than merely the civil liability that was included in the 1989 version of the statute;  5) the threshold for forfeiting the benefit of the immunity was changed from acts not committed in “good faith,” in the 1989 version, to “wanton and willful disregard for the safety of persons or property,” in the 1999 version;  and 6) the immunity was broadened in the 1999 amendments so that it now extends to “any person” filing a claim for damages, see N.J.S.A. 52:17C-10(d) and (e), rather than merely those persons who seek damages after their own “use[ ]” of the 9-1-1 system, which is how the immunity was described in the 1989 version of the statute.   This last change now entitles a PSAP to assert immunity even if the person who is actually involved in the emergency and in need of the 9-1-1 service is not the same person who, in the 1989 parlance, “use[d]” the 9-1-1 system by initiating the telephone call.

The language of N.J.S.A. 52:17C-10 demonstrates, and the parties do not dispute, that its obvious purpose is to afford immunity for various aspects of providing enhanced 9-1-1 services.   Subsection (a) does not itself establish any immunity.   Instead it sets the stage for the three subsections that follow by requiring telephone companies to release to PSAPs the telephone number and street address “of any telephone used to place a 9-1-1 call.”   Subsection (a) limits the uses to which such subscriber information can be put:  “responding to emergency calls” or “investigat[ing] ․ false or intentionally misleading” 9-1-1 calls.  N.J.S.A. 52:17C-10(a).

With the stage thus set, the statute proceeds to subsections (c), (d) and (e).   In subsection (c), the Legislature has granted immunity to providers of telephone service ^{:  Double} and to PSAPs for the release of the caller's subscriber information, as described in subsection (a), unless such release of information was for a “malicious purpose” or done in “willful disregard for the safety of persons or property.”  N.J.S.A 52:17C-10(c).  Subsection (c) has no bearing on this appeal and requires no further discussion.

Subsection (d), in contrast, is the section upon which the City principally relies.   Subsection (d) begins by granting immunity to telephone companies and to PSAPs and to their employees for liability caused by a wide array of technical and mechanical failures.   In particular, subsection (d) grants criminal and civil immunity from the consequences of any “act, failure or omission in the development, design, installation, operation, maintenance, performance or provisioning of any hardware [or] software․”  N.J.S.A. 52:17C-10(d).

As is evident from the language it chose, the Legislature sought, at least in this portion of subsection (d), to confer immunity for what can broadly be described as equipment failures or defects in product design.   None of the language we have just quoted from subsection (d) is remotely suggestive of a legislative intent to immunize a call taker such as Venable, or a dispatcher such as Mike, from the consequences of their mishandling of a 9-1-1 call.   Stated differently, the language we have quoted would not immunize a PSAP from liability for the negligence of the PSAP employees in their response to, and the handling of, an incoming 9-11 call, which the City concedes.

The City argues, however, that the next phrase, which immediately follows the language we have already quoted, does provide such immunity.   The phrase upon which the City relies is:

No ․ PSAP ․ shall be liable ․ for ․ any other aspect of delivering enhanced 9-1-1 service, wireless 9-1-1 service or wireless enhanced 9-1-1 service.

[N.J.S.A. 52:17C-10(d) (emphasis added).]

We must decide whether the term “any other aspect of delivering enhanced 9-1-1 service” means the actual handling of the 9-1-1 call, as the City argues, or whether, instead, it merely refers to other, but unnamed, forms of equipment failure similar to those that have already been listed in subsection (d), which is what plaintiff contends.

The City argues that the term “delivering” in subsection (d) immunizes a broad spectrum of negligent conduct and that the word's placement in proximity to language such as “design,” “installation,” “operation,” “maintenance” and “provisioning of ․ hardware”-all of which apply merely to the mechanical operation of a PSAP-nonetheless immunizes a PSAP for the negligent “delivery,” or rendering, of PSAP services.

At appellate oral argument, we asked the City whether there was any significance to the Legislature's 1999 substitution of the phrase “delivering ․ 9-1-1 service” for the phrase “rendering PSAP services,” which appeared in both the 1989 and 1996 versions of the statute.   In its post-argument brief,^{:  Double} the City answered in the negative, arguing that none of the versions of the 9-1-1 statute has ever made a distinction between the terms “delivering” and “rendering” of 911 services.   The City argues that a review of the statute's legislative history does not support the contention that immunity is only applicable to individuals and entities responsible for the mechanics of 9-1-1 services, such as hardware, software or computerized release of information.

The City also maintains that a PSAP employee is not responsible for the mechanical transmission of 9-1-1 information, as distinguished from employees of a telephone or mobile telephone company.   Instead, PSAP employees decide which emergency entity should receive the information garnered from a 9-1-1 call.   This decision-making duty, according to the City, is encompassed in the “delivery” of the 9-1-1 services rendered by a PSAP employee.   Thus, because the statute's legislative history does not show any material difference between the terms “rendering” and “delivering,” the City argues that we should “apply the plain meaning and logical interpretation of the term ‘delivery’ to find that N.J.S.A. 52:17C-10(d) provides immunity to the City of Newark for the acts or omissions of its PSAP employees, Venable and Mike.”

The City also relies upon subsection (e), urging us to conclude that the subsection's provision of immunity for a PSAP's “lawful assistance to any investigative or law enforcement officer ․ in connection with any [police] investigation” immunizes the City for Venable's and Mike's activity.   In particular, the City maintains that by dispatching a “walking unit,” “running” Honrath's license plate and “producing a print-out of the make, model and ownership of the vehicle,” Mike rendered “lawful assistance,” N.J.S.A. 52:17C-10(e), to police in their investigation of Masschi's abduction.   The same is true, the City maintains, for Venable, who “inputted the information for transmittal to the police,” even though she did so incorrectly.

Plaintiff disagrees and argues:

Essentially, subsections (d) and (e) address the technical failure of the 9-1-1 system at different points in time during the process of a 9-1-1 call.   Subsection (d) relates to the first part of a 9-1-1 call where the information is being provided to the PSAP and subsection (e) addresses the next step in the 9-1-1 process, where the PSAP may be providing information to police departments or other entities, depending on the nature of the call.

Plaintiff also maintains that if the immunity provisions of subsections (d) and (e) were meant to be applied to the negligent handling of the 9-1-1 call itself, then there would be no reason to include the following entities within those immunity provisions:  “telephone company,” “person providing commercial mobile radio services,” “manufacturer supplying equipment to a telephone company,” or “wireless telephone company.”   According to plaintiff, “these entities are included collectively with PSAPs, as the immunity provided under these subsections relates solely to mechanical delivery of the 9-1-1 service, as opposed to the proper processing of the call itself.”

Plaintiff also argues that the legislative history does not support the expansive reading of subsections (d) and (e) that the City urges.   Plaintiff maintains that the legislation must be construed in light of the purposes for which the 1986 Commission's proposed package of legislation was drafted, which the Commission's cover letter to Governor Kean described as:  to “provide for a single, universal Statewide 9-1-1 emergency reporting system in New Jersey which will reduce response time to emergencies, thereby saving lives and property.”  Report, supra, at i. In the same vein, plaintiff points out that when Governor Kean signed N.J.S.A. 52:17C-1 to -16 into law in 1989, his News Release described the benefits of the new 9-1-1 emergency system but made no mention of N.J.S.A. 52:17C-10's immunity provisions.

Plaintiff notes that although subsection (b) of the 1989 version of N.J.S.A. 52:17C-10 provided expansive immunity for any “act or ․ omission ․ while ․ rendering PSAP services,” that broad immunity was abrogated when the Legislature amended the statute in 1999 and deleted subsection (b).  Plaintiff maintains that the 1999 amendments, which resulted in the current version of the statute, were not intended to provide “blanket” immunity.   Plaintiff argues:

If the Legislature intended such a sweeping expansion of immunity for 9-1-1 operators, then it would have been prominently stated in the legislative history.   It is also significant, to the extent that former subsection (b) arguably could have been interpreted as providing immunity in the processing of the 9-1-1 call itself, that subsection was deleted and replaced with subsections (d) and (e).

Plaintiff also argues that the placement of this statute in an entirely different Title of the statutes than the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, is significant.   Plaintiff observes that the Tort Claims Act provides specific immunities in the area of police activities and other public entity action and it “does not make any sense that subsection (e) of the subject statute buried in Title 52 would provide a greater immunity for police personnel, such as Ms. Venable and dispatcher George Mike, than that provided by Title 59.”   According to plaintiff, it is more likely that this immunity provision contained in N.J.S.A. 52:17C-10(e) was “meant to apply to similar factual scenarios contemplated by the Tort Claims Act immunity where the various entities would not be responsible for inadequate or faulty equipment.”

Last, plaintiff maintains that Venable and Mike were acting not only as a PSAP, but also as a “public safety agency,” see N.J.S.A. 52:17C-1(j), for which N.J.S.A. 52:17C-10 affords no immunity.

III.

“Our task in statutory interpretation is to determine and effectuate the Legislature's intent.”  Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009) (citation omitted).   In determining legislative intent, we remain mindful of the command of N.J.S.A. 1:1-1, which requires us, when construing a statute, to give words and phrases “their generally accepted meaning” unless doing so is plainly “inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated.”   Therefore, we must “ ‘look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen.’ ”  In re Petition for Referendum on Trenton Ordinance 09-02, 201 N.J. 349, 358-59 (2010) (quoting Bosland, supra, 197 N.J. at 553).

As the Court observed in Trenton Ordinance, “ ‘[a] court should not resort to extrinsic interpretative aids when the statutory language is clear and unambiguous, and susceptible to only one interpretation.’ ”  Id. at 359 (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

However, when the language of a statute is susceptible to more than one meaning or interpretation, we will look to “extrinsic secondary sources to serve as [a] guide.”  Bosland, supra, 197 N.J. at 553.   The sources to which we look as aids in interpretation of a statute include “legislative history, statements of the sponsor or sponsors of bills that were enacted, and, where relevant, a Governor's press release or ․ conditional veto message.”  Id. at 553-54 (internal citations omitted).  “Regardless of whether the language is plain or whether ambiguities cause us to seek guidance from sources other than words the Legislature has chosen, our ‘primary task ․ is to effectuate the legislative intent in the light of the language used and the objects sought to be achieved.’ ”  Id. at 554 (quoting State v. Hoffman, 149 N.J. 564, 578 (1997)) (alteration in the original).

As Trenton Ordinance requires, our starting point must be the actual language of the statute.  Supra, 201 N.J. at 358-59.   We view the statute as a whole, and do not analyze any one section in isolation.  Id. at 359.

With these principles as a backdrop, we turn to the task of interpreting N.J.S.A. 52:17C-10(d) and (e) to determine whether either, or both, subsections immunize the City for Venable's and Mike's negligence in their handling of the 9-1-1 call that described Sohyla Massachi's abduction.   In subsection (d), we must determine whether the word “delivering” contained in the phrase “any other aspect of delivering enhanced 9-1-1 service” is “susceptible to only one interpretation.”  Trenton Ordinance, supra, 201 N.J. at 359 (internal quotation omitted).   Specifically, we must determine whether the term has a “generally accepted meaning” in the context in which it is used in the statute.  N.J.S.A. 1:1-1.

The word “delivery” can mean “to send ․ to an intended ․ destination” as well as “to produce the promised, desired or expected results.”   Webster's Ninth New Collegiate Dictionary 336 (1985).   Thus, as applied to the statute under review, the term “delivering” could signify the mechanical transmission of the 9-1-1 call, if the first meaning, urged by plaintiff, is applied.   However, if the second meaning, urged by the City is applied, “delivering” would mean the qualitative manner in which the 9-1-1 calltaker chooses to respond to the call, i.e., the manner in which the 9-1-1 service is rendered by the 9-1-1 calltaker and dispatcher.

However, we must not view the term “delivery” in isolation.   We must instead consider the entire phrase.   The Legislature has conferred immunity for “any other aspect of delivering enhanced 9-1-1 service, wireless 9-1-1 service or wireless enhanced 9-1-1 service.”  N.J.S.A. 52:17C-10(d).  It did not confer immunity for “any other aspect of delivering” PSAP services.   We view this distinction as significant.   See Bd. of Educ. v. Bd. of School Estimate, 95 N.J.Super. 284, 287 (App.Div.1967) (holding “the difference in the choice of words reflects the intention of the Legislature”).   The terms “enhanced 9-1-1 service,” “wireless 9-1-1 service” and “wireless enhanced 9-1-1 service” are all defined so as to apply only to the actual telephone components that constitute the 9-1-1 service and not to the calltakers' response to the call.   N.J.S.A. 52:17C-1 defines “enhanced 9-1-1 service” as follows:

a service consisting of telephone network features and public service answering points provided for users of the public telephone system enabling the users to reach a public service answering point by dialing the digits “9-1-1.”   The service directs 9-1-1 calls to appropriate public safety answering points by selective routing based on the location from which the call originated and provides for automatic number identification and automatic location identification features[.]

[N.J.S.A. 52:17C-1(g).]

“Wireless 9-1-1 service” is defined as:

the service which enables wireless telephone company customers to dial the digits 9-1-1 and be connected to a public safety agency[.]

[N.J.S.A. 52:17C-1(r).]

“Wireless enhanced 9-1-1 service” is defined as:

the service required to be provided by a wireless telephone company pursuant to FCC wireless E9-1-1 requirements[.]

[N.J.S.A. 52:17C-1(s).]

The City maintains that none of these functions, selective routing, automatic telephone number identification or automatic location identification, are performed by a PSAP. Therefore, according to the City, the Legislature's decision to include PSAPs in the list of entities entitled to immunity in subsection (d) would make no sense unless the words “or any other aspect of delivering enhanced 9-1-1 service” were to be construed as affording immunity for the bungled response to a 9-1-1 call.   The premise of the City's argument is flawed because, contrary to the City's contention, PSAPs do have responsibility for operating and maintaining the actual telephone network.   That obligation is imposed by N.J.S.A. 52:17C-8(c), which specifically requires “[e]ach entity operating a public safety answering point” to “be responsible for operating[ ] and maintaining” the actual 9-1-1 equipment.   The statute provides:

Each entity operating a public safety answering point shall be responsible for obtaining, operating, and maintaining enhanced 9-1-1 termination equipment.   The operations and maintenance of this equipment shall be in accordance with standards set forth by the office :  Double pursuant to section 3 of this act[.]

[N.J.S.A. 52:17C-8(c).] :  Double

Thus, PSAPs play a central role in the mechanical delivery of PSAP services.   For that reason, we squarely reject the City's claims that:  “[a] PSAP, unlike a telephone company, does not provide the mechanism for delivery of 911 services”;  “a PSAP employee is not responsible for the mechanical transmission of 9-1-1 information, as distinguished from employees of a telephone or mobile company”;  and “[i]nstead, PSAP employees [merely] decide what emergency entity should receive the information garnered from a 911 call.”   As is evident from the language of N.J.S.A. 52:17C-8, the City's PSAP does far more than merely route the call.   The City's PSAP also “operat[es] and maintain[s]” the very 9-1-1 equipment that the PSAP uses in receiving and handling the 9-1-1 call.

No doubt, it was because PSAPs are involved in operating and maintaining the telephone equipment that the Legislature included PSAPs in its listing of parties who are granted immunity in subsection (d) for equipment and maintenance failures.   Subsection (d) begins by designating the parties entitled to such immunity and lists them as follows:

telephone company, person providing commercial mobile radio service as defined in 47 U.S.C.s 332(d), public safety answering point, or manufacturers supplying equipment to a telephone company, wireless telephone company, or PSAP, or any employee, director, officer or agent of any such entity․

[N.J.S.A. 52:17C-10(d) (emphasis added).]

After this listing of parties entitled to immunity, subsection (d) proceeds to a description of the scope of that immunity:

damages ․ 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.

[N.J.S.A. 52:17C-10(d).]

Thus, when we consider the fact that, pursuant to N.J.S.A. 52:17C-8, PSAPs play as much of a role in the mechanical “delivering” of 9-1-1 services as do the other entities that are listed in subsection (d), it stands to reason that the phrase “or any other aspect of delivering enhanced 9-1-1 service” in subsection (d) would apply with equal force to PSAPs and to the telephone companies and manufacturers that are listed along with PSAPs in that subsection.   It also stands to reason that the Legislature would not have ascribed a different meaning to the term “delivering” when applied to telephone companies and manufacturers, than it applied to PSAPs.

In particular, telephone companies and manufacturers “deliver” the 9-1-1 services enumerated in subsection (d) because, in the words of subsection (d), they “design, install[ ], operat[e], [and] maint[ain]” 9-1-1 services.   It is those tasks for which they are granted immunity by N.J.S.A. 52:17C-10(d).  But, PSAPs likewise design, install, operate and maintain the telephone equipment, as required by N.J.S.A. 52:17C-8.   Thus, the phrase “or any other aspect of delivering enhanced 9-1-1 service” in subsection (d) likely has the same meaning for PSAPs as it does for the other entities listed there.   We will not ascribe to the Legislature-especially in the absence of any legislative history so stating-an intention to have created such a radical shifting of meanings in a single portion of one subsection.

Were we to accept the City's argument, we would be forced to conclude that the Legislature intended the term “delivering” in subsection (d) to refer to mechanical delivery of services when the term “delivering” is applied to telephone companies and manufacturers, but intended the term “delivering” to mean the actual response to the call when applied to PSAPs.   We will not accept such a tortured interpretation of the statute.   See State v. Serrone, 95 N.J. 23, 29-30 (1983).

Moreover, were we to accept the City's argument that “delivery” in subsection (d) means only the handling of the call and the dispatching of the needed emergency service-which are functions that are not performed by telephone companies and manufacturers and are only performed by PSAPs-we would be forced to conclude that the phrase “or any other aspect of delivering enhanced 9-1-1 service” only applies to PSAPs even though nothing in the language of subsection (d) remotely suggests an intention to afford different immunities to PSAPs than to the other entities listed there.

For all of these reasons, we conclude that the phrase “or any other aspect of delivering enhanced 9-1-1 service, wireless 9-1-1 service or wireless enhanced 9-1-1 service” in subsection (d) refers to any other aspect of the very same functions that are described in the phrases that immediately precede it:  “the development, design, installation, operation, maintenance, performance or provisions of any hardware, software․”  N.J.S.A. 52:17C-10(d).

Such a construction of subsection (d) is also consistent with one of the leading canons of statutory construction, ejusdem generis, which specifies that “ ‘where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.’ ”  Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 367 (2007) (quoting 2A Norman J. Singer, Sutherland Statutory Construction § 47:17 (6th ed.2000)).

Applying the ejusdem generis canon leads to the conclusion that the phrase “or any other aspect of delivering enhanced 9-1-1 service” in subsection (d) should be interpreted in like fashion as the words that immediately precede it, which are “development, design, installation, operation, maintenance, performance or provisioning of any hardware[ ] [or] software,” N.J.S.A. 52:17C-10(d).  All of these words pertain to the mechanical or logistical aspects of delivering 9-1-1 service, and not to the handling of the 9-1-1 call and the dispatching of emergency police, fire or ambulance services.

Thus, under the ejusdem generis canon, the term “delivery” could only refer to immunity from liability for any mechanical failures in the delivery of a 9-1-1 call, and not to negligence in the actual rendering of the 9-1-1 emergency dispatch service.   However, we do not apply a canon of statutory interpretation in a vacuum because our “ ‘primary task ․ is to effectuate the legislative intent in light of the language used and the objects sought to be achieved.’ ”  Bosland, supra, 197 N.J. at 554 (quoting Hoffman, supra, 149 N.J. at 578) (alteration in original).   Therefore, before reaching any final conclusions on the interpretation of subsection (d), we turn to an analysis of the “ ‘objects sought to be achieved,’ ” ibid., by the 1999 amendments to N.J.S.A. 52:17C-10.

The principal method of ascertaining legislative intent, when the language of the statute is ambiguous, is by analyzing the legislative history.  Id. at 553.   As we have already observed, the sponsors, as well as the three Committees that considered the amendments to the immunity legislation, all commented that the 1999 amendment was designed to expand the immunity provision.   Indeed, the 1999 amendments accomplish the very objectives that the sponsors and the two Committee statements describe-expanding the immunity provisions.   The 1999 amendments expanded the immunity provisions in six critical respects.   In particular, subsections (d) and (e) of the 1999 amendments:  1) added immunity from criminal liability to supplement the civil liability that was established in 1989;  2) narrowed the conduct that would cause a forfeiture of statutory immunity, by changing lack of “good faith” in the 1989 version to “act[ing] in a manner exhibiting wanton and willful disregard for the safety of persons or property” in the 1999 amendments;  and 3) extended the persons against whom PSAPs, manufacturers and telephone companies can assert the immunity by changing “any person who uses the enhanced 9-1-1 service” in the 1989 version to “any person” in the 1999 amendments.

The 1999 amendments also 4) broadened the type of conduct for which PSAPs and other entities could claim immunity, by changing “failure of any equipment or procedure” and “act or omission committed while in the training for or in rendering PSAP services” in the 1989 version to “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 service” in the 1999 amendments;  5) added the delivery of wireless 9-1-1 services to the types of telephone service for which the immunity applied;  and 6) added an entirely new subsection, namely subsection (e), which extends immunity for damages resulting from an “entity's provision of any lawful assistance to any investigative or law enforcement officer.”

As is evident from the six factors we have identified, the 1999 amendments to N.J.S.A. 52:17C-10 effectuated a wide-ranging expansion of the immunity conferred by N.J.S.A. 52:17C-10.   We therefore do not agree with the City's argument that interpreting the phrase “or any other aspect of delivering enhanced 9-1-1 service” as meaning only the mechanical delivery of services would narrow the immunity that was contained in the 1989 version of the statute.

Moreover, if we broaden our inquiry to consider the purposes of the adoption of the 9-1-1 legislation in 1989, our conclusion that the City's arguments misconstrue subsection (d) becomes even stronger.   The Legislature's objective in enacting the entire package of bills in 1989 was to improve the provision of emergency response service in the State by eliminating the defects in the emergency response system that had existed since 1967.  Report, supra, at 4-7.   That objective was accomplished by adding the enhanced 9-1-1 features we have already described.   See supra, note 3. The Legislature's goal of providing enhanced emergency response capability to the citizens of this State would not have been advanced by a statute that immunized municipalities from liability for the mishandling, or the bungling, of an emergency call.

To the contrary, the purposes the Legislature sought to achieve when it enacted the package of enhanced 9-1-1 service legislation in 1989 would indeed have been undermined by an interpretation of subsection (d) that would immunize PSAPs for their negligent response to 9-1-1 calls.   Therefore, we conclude that the “ ‘objects sought to be achieved’ ” by the legislation, Bosland, supra, 197 N.J. at 554 (quoting Hoffman, supra, 149 N.J. at 564), support the conclusion that the immunity conferred by subsection (d) for “any other aspect of delivering enhanced 9-1-1 service,” N.J.S.A. 52:17C-10(d), is limited to acts or omissions in the mechanical delivery of the call, such as wiring problems, software defects, dropped calls, power outages, switching problems and similar maintenance or operational problems.

The City argues that such a construction of subsection (d) would result in a narrowing of the immunity afforded by the 1989 version of the statute, which conferred immunity for “failure of any equipment or procedure in connection with the enhanced 9-1-1 service” and-more importantly-“for an act or omission of an act committed ․ in rendering PSAP services in good faith and in accordance with the act.”  N.J.S.A. 52:17C-10(b) (repealed by L. 1999, c. 125.) (emphasis added).   The City argues that:  the term “rendering” included the mechanical delivery of 9-1-1 service and the actual handling of the call and dispatch of emergency services;  and that nothing in the legislative history of the 1999 amendments evinces a legislative intent to narrow the broad immunity conferred by the 1989 statute.

We agree that the term “any act committed ․ in rendering PSAP services” in the repealed subsection (b) of the 1989 statute might theoretically be susceptible of a broader interpretation than “or any other aspect of delivering enhanced 9-1-1 service, wireless 9-1-1 service or wireless 9-1-1 enhanced service,” as subsection (d) now provides.   But that is only true if the “rendering” language of the 1989 statute is viewed in isolation.   If, however, the “rendering” language in the 1989 statute is read in conjunction with the balance of subsection (b) of the 1989 version of the statute, and compared to the entirety of the 1999 amendments to N.J.S.A. 52:17C-10, it is clear that interpreting subsection (d) in the fashion we have discussed would not narrow the immunity conferred by the statute.   We now compare the 1989 and the 1999 versions of N.J.S.A. 52:17C-10.

Subsection (b) of the 1989 statute began by immunizing telephone companies, PSAPs and manufacturers for damages caused by the release of information such as non-published telephone numbers.   That immunity was carried forward into what is now subsection (c), which affords immunity for the “release of the information specified in this section, including non-published telephone numbers.”  N.J.S.A. 52:17C-10(c).

The next portion of the former subsection (b) extended immunity “for failure of any equipment or procedure in connection with the enhanced 9-1-l service.”   That section is the source for the present subsection (d), which likewise affords immunity for negligence in connection with the failure of any equipment or procedure, because it affords immunity in connection with the “development, design, installation, operation, maintenance, performance or provisioning of any hardware, software or any other aspect of delivering enhanced 9-1-1 service․”  N.J.S.A. 52:17C-10(d).

The remaining portion of the former subsection (b)-“in rendering PSAP services in good faith” is the source for the present subsection (e), which affords immunity for assistance provided to law enforcement.   While the “rendering PSAP services” of the 1989 version is not entirely congruent with the present subsection (e), we would not expect it to be so, or there would have been no need to amend the statute in 1999.   Our side-by-side comparison of the 1989 and 1999 versions satisfies us that the “rendering PSAP services” language in the 1989 version of subsection (d) has not been narrowed or restricted by the 1999 amendments.

There is a final reason why we conclude that the immunity conferred by N.J.S.A. 52:17C-10(d) is limited to negligence in the mechanical aspects of delivering 9-1-1 service.   The interpretation urged by the City-that the immunity conferred by subsection (d) broadly extends to a calltaker's negligent inputting of data and the dispatcher's error in the dispatch of police responders-would, if accepted, result in an enormous abridgement of the common law right to seek redress for injury caused by the negligence of others.   When two interpretations of a statute are possible, the one that has the lesser impact on the common law right to seek redress through the courts is the interpretation we should generally adopt because “ ‘a statute in derogation of the common law’ ” must be “ ‘strictly construed,’ ” In re Estate of Cosman, 193 N.J.Super. 664, 671 (App.Div.1984) (quoting Dacunzo v. Edgye, 19 N.J. 443, 451 (1955)), unless the Legislature plainly intended a broader scope.   Ibid.

For all of these reasons, we hold that the immunity N.J.S.A. 52:17C-10(d) affords PSAPs and their employees is limited to negligence in the mechanical delivery of 9-1-1 services, such as errors or omissions in the operation, maintenance, design or performance of the 9-1-1 telephone equipment.   The immunity afforded by subsection (d) does not extend to the conduct at issue here, namely, the bungled response to an incoming 9-1-1 call.

We turn next to the interpretation of subsection (e).   The text of subsection (e) provides immunity to PSAPs for negligence in the “provision of any lawful assistance to any investigative or law enforcement officer ․ in connection with any lawful investigation ․ or other law enforcement activity․”  N.J.S.A. 52:17C-10(e).   Such “assistance” could include responding to a police request that additional police units be dispatched, that an ambulance be sent to the scene, that a warrant check be performed or that a license plate be “run” to determine to whom a car is registered.   Subsection (e) is obviously intended to immunize PSAPs for any negligence in rendering such assistance to police once police have commenced an investigation.

Such an interpretation of subsection (e) is congruent with the Sponsors' Statement that the 1999 amendments “provide[d] for an expanded limitation of liability for telephone companies ․ and other entities ․ in connection with supplying assistance to ․ law enforcement officers.”   Sponsors' Statement, Statement to S.B. No. 1495 (Nov. 16, 1998).   Prior to the 1999 amendments, immunity was provided only in connection with liability for release of unpublished telephone numbers, equipment failures and the “rendering” of PSAP services.  N.J.S.A. 52:17C-10(b) (repealed by L. 1999, c. 125).   The 1989 version of the statute would not have included immunity for any negligence in assisting law enforcement in any investigation.   Thus, the 1999 amendment to the statute, which added subsection (e), represents an “expanding” of the immunity provisions of the statute, exactly as the sponsors commented.   We therefore conclude that in the absence of the “wanton” behavior that leads to a forfeiture of immunity, subsection (e) immunizes a PSAP and its employees from negligence in the assistance provided by the PSAP to law enforcement in connection with any lawful police activity or law enforcement investigation.

We turn now to the task of applying our interpretation of subsections (d) and (e) to the facts that existed at the time the judge denied the City's motion for summary judgment based on N.J.S.A. 52:17C-10.   We have concluded that subsection (d) does not provide immunity from the consequences of a PSAP's negligence in responding to a request for emergency services, and does not provide immunity for negligence in the way the PSAP employees input the information received from the caller and the way they dispatch police units in immediate response to the 9-1-1 call.   Therefore, N.J.S.A. 52:17C-10(d) does not include immunity for the negligent acts committed by Venable and Mike:  inputting an incorrect description of Honrath's vehicle;  failing to note that Honrath's vehicle was in motion;  failing to keep Lester on the telephone so she could update Venable on the vehicle's route of travel;  failing to issue a general alert;  and failing to notify Westfield police of the abduction.   We hold that the City and its PSAP were not afforded immunity under N.J.S.A. 52:17C-10(d) for any of these negligent acts.

Nor does subsection (e) afford any benefit to the City under the facts presented here.   At the time Venable and Mike mishandled the incoming call from Lester concerning Massachi's abduction, there was no police investigation underway.   Nor had police requested any assistance from Venable or Mike. Indeed, not until Honrath's roommate called Westfield police, by which time Honrath had already arrived at the apartment with Massachi, were police even notified.   Thus, although Venable and Mike were negligent, their negligence did not arise while providing “assistance to law enforcement ․ in connection with any lawful investigation by or other law enforcement activity of the law enforcement officer.”  N.J.S.A. 52:17C-10(e).   The City is consequently not afforded immunity under subsection (e).   Therefore, the Law Division correctly denied the City's motion to dismiss plaintiff's complaint because neither subsection (d) nor subjection (e) provide immunity under the facts presented here.   We affirm the order so providing.

IV.

We turn now to the City's arguments respecting the judge's charge to the jury.   Before evaluating this claim, we describe the testimony the jury heard that bears on this issue.

Thomas Seamon testified for plaintiff as an expert in police procedures, 9-1-1 communications and dispatch.   Seamon opined that Venable's handling of the 9-1-1 call and dispatcher Mike's actions violated accepted standards in 9-1-1 communications and deviated from the City's own 9-1-1 procedures.   Seamon further opined that, had these violations not occurred, Honrath would have been apprehended before reaching his apartment, and that Venable's and Mike's acts and omissions increased the risk of harm and the likelihood of death to Massachi.

During cross-examination, Seamon read from his report, and the following exchange occurred:

Q: But you didn't say that it increased the risk of harm, correct?

A: Well, I think that paragraph indicates that.

Q: And you indicated that the police would have been able to locate the fleeing vehicle?

A: I believe they would have been.

Q: Well, you don't have any facts to rely and support that, correct?

․

A: I only have my experience.

Q: Just your opinion?

A: Yes, sir.

Plaintiff also presented former Westfield Police Lieutenant Frank Brunelle, who testified that Honrath was well known to his department as a violent offender.   Brunelle explained that if dispatcher Mike had notified the Westfield Police Department of the abduction, Westfield officers would have been immediately dispatched to Honrath's residence and likely would have arrived before Honrath, thereby thwarting Honrath's ability to drag Massachi upstairs where he ultimately murdered her.

The City presented only one witness, Lloyd Pearson, who was the Assistant Director of Public Safety at Seton Hall at the time of Massachi's abduction.   Pearson was responsible for overseeing “the contract security agency officers,” namely Argenbright.   Pearson testified that his supervisor, the Director of Public Safety, instructed him that the Seton Hall Department of Public Safety should “not ․ get involved with anything off campus.   Only on campus incidents.”   When asked whether there was a reason why the Seton Hall Department of Public Safety and Argenbright was told “not to get involved with anything off campus,” Pearson responded “[b]ecause we were employed by Seton Hall University.   And we were there to ․ protect the students and faculty staff at Seton Hall University[ ][o]n the campus.”   Pearson explained that neither he nor anyone else in the Public Safety Department or in the employ of Argenbright carried weapons.

Pearson also explained that although there was a telephone in the guard booth, that telephone did not have an outside line, but instead was limited to calling other campus extensions, such as the main security office.   By using that “in-house phone,” the Argenbright security guard in the guard booth would have been able to contact the University's dispatcher, who in turn, could have directed security officers to various positions on the University grounds.   The dispatcher also had the ability to contact local police.

Pearson was asked whether the officer at the booth contacted him to describe Massachi's abduction by Honrath.   Pearson recalled that because the Argenbright security guard did not know the vehicle's path of travel and did not, according to Pearson, have the full license plate number, he, Pearson, had instructed the security guard to direct the two teenage girls to go to the South Orange police station, “which was not far down the road and let them [South Orange police] know.”

At another point in his testimony, Pearson acknowledged that if a violent incident was in progress right outside the Seton Hall gates, “if someone was being attacked or ․ was getting beat up, we would act on it” by notifying the South Orange police.   When asked whether Argenbright or Seton Hall personnel would “actually intervene,” Pearson responded “No, no way, no sir.”   On cross-examination, Pearson explained that the dispatch officer located on campus did not have the capability of directing Seton Hall Public Safety officers to report to a location “outside” Seton Hall University, because “that dispatch [system] is [only] for the purpose of sending people out for things that are ongoing on campus.”

On May 9, 2008, the court discussed potential jury charges.   The City proposed, among others, using Model Jury Charge (Civil), § 6.14, Proximate Cause-Where There is Claim of Intervening or Superseding Cause for Jury's Consideration.   Plaintiff objected, arguing that this jury charge was not applicable because Honrath's actions preceded the City's negligence.   The City also requested that the judge instruct the jury using Model Jury Charge (Civil), § 5.10B, Foreseeability (As Affecting Negligence).   The court declined to issue either instruction.

At another point in the charge conference, the judge asked counsel for the City whether, in his cross-examination of plaintiff's expert Seamon or at any other time, he had elicited any testimony that would enable the jury to apportion damages between Honrath and the City. The following discussion occurred:

THE COURT:  Have you ever stated or intimated that if your client were to be found liable what percentage of liability, the maximum percentage of liability that could be assigned to your client, if at all?

[COUNSEL FOR THE CITY]:  Have I ever made that assessment?   No, I have not, Your Honor, in this case.   I mean we've taken the position that we would not be liable, so I mean, I didn't say whether we would be ten percent, twenty percent.   Our position has always been that we're not responsible, primarily due to the intervening conduct of Christopher Honrath on-- because it was not foreseeable, and that negligence of the police officers were not the proximate cause of the ultimate harm.   And, of course, that gets into the substantial factor test.   And, certainly, our position was if anyone was going to be at fault it would be Seton Hall and Arg[e]nbri[ght].  So our position's, always been the City of Newark shared-- did not share any negligence in this case.

During the charge conference, the judge also discussed the verdict sheet, noting that the City had not submitted one.   The only proposed verdict sheet provided by either side was presented by plaintiff, whose verdict sheet did not ask the jury to apportion a percentage of damages between Honrath and the City. The only apportionment issue presented on plaintiff's verdict sheet was, in keeping with the judge's earlier order, between the City, Seton Hall and Argenbright.   The verdict sheet did not contain any reference to either intervening or superseding causes or increased risk of loss.   Instead, in relevant part, the verdict sheet simply asked the jury whether the City, through the action or inaction of Venable and Mike, was negligent.   If that question was answered in the affirmative, the jury was asked to decide whether the City's negligence was a proximate cause of the death of Sohayla Massachi.   The jury was asked identical negligence and proximate cause questions concerning Seton Hall University and Argenbright.   The City made no objection to the use of that verdict sheet.

On May 14, 2008, the judge charged the jury.   Before doing so, she indicated to the parties that she intended to issue a “modified charge under 6.14,” as well as using the “fact specific ․ language under [the] preexisting condition and increased risk, loss of chance charge,” Model Jury Charge (Civil), § 5.50E, Pre-Existing Condition - Increased Risk/Loss of Chance - Proximate Cause.   The jury charge the judge provided to the jury did not, however, contain the section 6.14 language regarding intervening or superseding causes.   Rather, the jury charge contained the language of section 5.50E concerning “Pre-Existing Condition - Increased Risk/Loss of Chance - Proximate Cause” and Model Jury Charge (Civil), § 5.50A, Duty and Negligence.   The judge charged the jury, in relevant part, as follows:

If you determine that the defendant, Newark City Police Department, was negligent [then] you must also decide what is the chance that the plaintiff Ms. Massachi would have been rescued if the defendant had not been negligent.   Thus, if you decide that the defendant, City of Newark Police Department, was negligent [then] you must decide to what extent ․ was the plaintiff's ultimate injury caused by the preexisting condition, specifically, her condition, her status as an abductee in a car being driven by Mr. Honrath.   And to what extent her ultimate injury [was] caused by any negligence on the part of the employees of the defendant, City of Newark, specifically Debony Venable and/or ․ George Mike.

It is acknowledged that when Melissa Lester placed the call to the defendant calltaker, Ms. Massachi was, already, in the car that was being driven by her abductor.   Which by itself, that status by itself had a risk of causing the plaintiff the harm she ultimately experienced in this case, however, the plaintiff claims that the [City's] negligence increased that risk of harm and contributed to her ultimate demise.

To establish that the defendant's negligence was a cause of her injury - ultimate injury or damage, the plaintiff must first prove that the defendant's negligence increased the risk of harm posed by the plaintiff's preexisting condition.   Specifically, placed her in a position that decreased the possibility that she would be rescued.

Second, the plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm.

The judge then instructed the jury that the City's negligence need not be the only cause or even a primary cause of Massachi's death so long as any negligence by the City was a “substantial factor in producing the ultimate harm.”   The judge explained:

If you find that the defendants were negligent, and you find those ․ acts of negligence were only remotely or insignificantly related to the ultimate harm, th[e]n the negligent act does not constitute a significant substantial factor.   However, the [City's] negligence need not be the only cause nor even a primary cause for the negligence to be a substantial factor in producing the ultimate harm.   Whether the increased risk was a substantial factor is to be reflected in the apportionment of damages between the increased risk and the pre-existing conditions.

If under all the circumstances here you find that the plaintiff may have had a greater probability of rescue and would have suffered less injuries if the [City] had not been negligent th[e]n the City is liable for the plaintiff's ultimate harm.

On the other hand if you find that the plaintiff would have suffered the same injuries even if the [City] was not negligent, th[e]n the [City] is not liable to the plaintiff.

If you find that the plaintiff has proven that the defendants were negligent, the plaintiff is not required to quantify or put a percentage on the extent to which the [City's] negligence added to the plaintiff's final injury.

[Emphasis added.]

The judge continued her charge with a definition of negligence, derived from section 5.50A, in which she stated:

Negligence is conduct which deviated from a standard of care required by law for the protection of persons from harm.   Negligence may result from the performance of an act, or the failure to act.   The determination of whether a defendant was negligent requires a comparison of the defendant's conduct against a standard of care.   If the defendant's conduct is found to have fallen below an accepted standard of care, then, he or she was negligent.

At that point, the judge explained that if the jury found the City was negligent and also found that the City's negligence “accelerated or worsened the plaintiff's pre-existing condition,” the jury should find the City responsible for all of the plaintiff's injuries “unless the [City] presented evidence enabling the jury to apportion the damages” between Massachi's pre-existing condition as an abductee and the City's negligence.   The judge explained:

In cases ․ where the defendant's negligence accelerated or worsened the plaintiff's pre-existing condition, the defendant is responsible for all of the plaintiff's injuries unless the [City] is able to reasonably apportion the damages.   If the defendant claims that all or a part of the plaintiff's injuries would have occurred anyway, then the defendant and not the plaintiff has the burden of proving what percentage of plaintiff's injuries-ultimate injury would have occurred even if the defendant had not been negligent.

[Emphasis added.]

Before the jury retired to deliberate, the judge clarified her instruction regarding increased risk of loss and pre-existing conditions, stating:

Finally, we gave you - I gave you some instructions on increased risk and pre-existing condition and it continued for quite some time.   We have determined that that might be a little more confusing and direct your attention to only the instructions that I've given you on proximate cause.   We will, again, say at the outset that at the preliminary to the involvement [sic] of the City of Newark Police Department is that fact that Ms. Massachi was already in the car, as an abductee of her former boyfriend Mr. Honrath.

․

Plaintiff has submitted that defendant's negligent actions or inactions effectively terminated Ms. Massachi's chance of survival.   If you determine that there was any substantial possibility of Ms. Massachi's survival, and that defendant has destroyed it, [then] defendant is answerable and you have found that defendant's negligence was, in fact, a proximate cause of Ms. Massachi's death.

The jury returned a verdict finding that the City, through the actions of Venable and Mike, was negligent and that such negligence was a proximate cause of Massachi's death.   It awarded a total of $5,512,000 to plaintiff and attributed seventy-five percent liability to the City, fifteen percent to Seton Hall and ten percent to Argenbright.   The jury's verdict was memorialized in an order of judgment on May 22, 2008.   The judge denied the City's subsequent motion for a new trial and for a stay of judgment.

The City first argues that the jury charge provided at trial constituted reversible error.   The City points to three distinct errors:  1) the increased risk of loss charge was not applicable to this case;  2) the jury verdict sheet was deficient in light of the jury charge;  and 3) the court erred in not charging the substantial factor negligence standard.   Plaintiff contends that the jury charge was proper.

When reviewing a jury charge, we must read the charge as a whole.  Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 107 (1999) (citing State v. Wilbely, 63 N.J. 420, 422 (1973)).  “ ‘Appropriate and proper charges to a jury are essential for a fair trial.’ ”  Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002) (quoting State v. Green, 86 N.J. 281, 287 (1981)).   These jury charges must provide a “ ‘comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.’ ”  Dubak v. Burdette Tomlin Mem'l Hosp., 233 N.J.Super. 441, 456 (App.Div.) (quoting Green, supra, 86 N.J. at 287-88), certif. denied, 117 N.J. 48 (1989).   However, no party is entitled to a jury charge in his own words;  a trial court need only provide a charge that is accurate as a whole.  Kaplan v. Haines, 96 N.J.Super. 242, 251 (App.Div.1967), aff'd, 51 N.J. 404 (1968), overruled on other grounds, Largey v. Rothman, 110 N.J. 204, 206 (1988).

Newark first argues that the jury charge regarding increased risk of loss was inappropriate in this case because such charge is only applicable in cases of medical negligence.   Plaintiff argues that this charge can be utilized in cases outside of the medical negligence context.

Model Jury Charge (Civil), § 5.50E, Pre-Existing Condition - Increased Risk/Loss of Chance - Proximate Cause, is listed under the category of “Medical Negligence” in the model jury charges.   It has traditionally been applied in instances of medical negligence and malpractice.  Fosgate v. Corona, 66 N.J. 268 (1974);  Evers v. Dollinger, 95 N.J. 399 (1984);  Scafidi v. Seiler, 119 N.J. 93 (1990);  Gardner v. Pawliw, 150 N.J. 359 (1997);  Reynolds v. Gonzales, 172 N.J. 266 (2002).

The Supreme Court and this court have held, however, that this instruction is not only applicable in cases of medical negligence, but that it can also be applied to cases where a defendant's negligence was a substantial factor in bringing about the plaintiff's injury because the defendant's negligence exposed the plaintiff to an increased risk of loss or an increased chance of harm.  Hake v. Manchester Twp., 98 N.J. 302, 311 (1985) (holding that plaintiffs were permitted to introduce an expert to prove that police, who made no effort to resuscitate their son after he hanged himself while in custody, had a duty to rescue and that there was a substantial possibility that such rescue would have saved their son's life);  Battista v. Olson, 213 N.J.Super. 137, 151 (App.Div.1986) (holding that the substantial factor test was applicable to a mother's wrongful death suit for police's failure to call for prompt medical assistance for her son).   See also Aversano v. Palisades Interstate Parkway Comm'n, 363 N.J.Super. 266, 273 (App.Div.2003), aff'd as modified, 180 N.J. 329 (2004).   But see Del Tufo v. Twp. of Old Bridge, 147 N.J. 90, 110-11 (1996) (holding that the “lost chance” analysis was inappropriate where plaintiff's own negligence contributed to the accident or harm).

Hake is the leading case extending the lost chance theory beyond the realm of medical negligence.   In Hake, plaintiff parents sued Manchester Township for police negligence they believed contributed to the death of their son, who committed suicide while in police custody.  Hake, supra, 98 N.J. at 304.   The Court described the application of the “lost chance” principle to the case in the following terms:  “[c]ourts have struggled to discover workable principles to resolve claims of a lost chance.   Tort claims based on ‘lost chance’ in terms of the causation of ultimate injury present unique conceptual and analytical problems not presented in other more typical negligence cases.”  Id. at 309 (internal citation omitted).

Despite this difficulty, the Court held it was appropriate to allow plaintiffs to present a theory of causation where “failure to act [was] ․ a ‘substantial factor contributing to the loss.’ ”  Id. at 311 (quoting Francis v. United Jersey Bank, 87 N.J. 15, 44 (1981)).   The Court delineated the proofs required for the Hake plaintiffs to establish their “lost chance” claim, stating, “[t]o make out a claim in this narrow class of cases of lost chance of survival, plaintiffs here need establish only that defendants had a duty to try to save [decedent's] life and that there was a substantial possibility of the rescue of their son from death.”  Ibid. The Court acknowledged that such “lost chance” cases were problematic, as it was impossible to determine what would have happened had the defendant's conduct been different, but that “[a]ll that can be done at this point is to try to resolve whether there was a substantial possibility of rescue.”  Id. at 312.

Hake and Battista clearly delineate an extension of the increased risk of harm/lost chance concept beyond the realm of medical negligence cases, thus supporting the judge's use of the section 5.50E jury charge in this case.   The City argues, however, that these cases are distinguishable because each of these cases involved a special relationship between the parties and a duty to rescue, while 9-1-1 operator Venable only owed a duty to correctly input data.   This argument is unpersuasive.

While Hake and Battista involved police officers, who had a duty to rescue, the underlying reasoning is not that the lost chance theory should only be implicated where a duty to rescue is breached.   Rather, the general negligence language used in describing the lost chance theory indicates that this principle can be applied whenever a defendant's breach of a duty was a substantial factor in the harm.   In Hake, the Court concluded that “in establishing causation it suffices for plaintiffs to show that defendants' negligent conduct negated a substantial possibility that prompt rescue efforts would have been successful, thereby constituting a substantial factor in causing decedent's death.”  Hake, supra, 98 N.J. at 306 (emphasis added).   The Court reasoned:

“When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he had put beyond the possibility of realization.   If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.”

[Hake, supra, 98 N.J. at 310 (quoting Evers, supra, 95 N.J. at 417) (emphasis added).]

This language suggests that the lost chance theory is not limited only to cases involving a police department's duty to rescue.   A plaintiff need not prove that the defendant had a duty to rescue, but rather must prove that defendant had some duty, breached that duty, and that the breach was a substantial factor in the harm.   Accordingly, even though Venable may not have had a duty to rescue Massachi per se, her duty to correctly input essential data into the 9-1-1 system and her breach of this duty can be evaluated under the lost chance theory.   In fact, we view Venable's and Mike's duties as akin to a duty to rescue, as the purpose being served by a PSAP often involves the dispatch of emergency services to aid those who find themselves in life-threatening circumstances.

Cases decided after Hake, although many have arisen in the medical malpractice context, demonstrate why the increased risk/substantial factor test was appropriate here.   As the Court commented in the medical malpractice case of Anderson v. Picciotti, 144 N.J. 195 (1996), the increased risk/substantial factor approach is designed for cases in which the plaintiff is “on a downward course and defendant negligently fails to alter that course,” id. at 210, thereby “effectively depriv[ing] the plaintiff of a greater chance to survive or avoid deterioration,” id. at 211.   This “more flexible standard of causation,” sometimes also described as a “lost chance,” has been “deemed essential due to the difficulties and unfairness of identifying, defining, and proving injury with a substantial ‘but for’ proximate cause charge” in the “lost chance” context.  Id. at 210.   For all of these reasons, we conclude that the section 5.50E jury charge was applicable in this case and reject the City's argument that so instructing the jury was error.

The City next argues that, even if this court accepts plaintiff's argument that the use of section 5.50E was proper, the judge nonetheless committed reversible error by failing to require the jury to apportion the damages between Massachi's “pre-existing condition,” namely her abduction by Honrath, and the City's negligence.   As authority for this claim of error, the City cites to the Jury Interrogatories attached to Model Jury Charge (Civil), § 5.50E, noting that none of these questions, or forms of them, were included in the jury verdict sheet.^{:  Double} As we have already noted, the judge did not include any questions on the verdict sheet asking the jury to perform the very apportionment she had described.   Instead, the verdict sheet merely asked the jury to determine if the City, through the conduct of Venable and Mike was negligent, and, if so, whether such negligence was a proximate cause of Massachi's death.   We now evaluate whether such omission was reversible error.

The City did not object to the questions on the verdict sheet proposed by plaintiff and did not ask that such apportionment questions be added.   Therefore, we evaluate any such claim of error under the plain error standard and will not reverse on this ground unless the error was “clearly capable of producing an unjust result,” R. 2:10-2, or of “ ‘prejudicing substantial rights,’ ” Boryszewski v. Burke, 380 N.J.Super. 361, 374 (App.Div.2005) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997)), certif. denied, 186 N.J. 242 (2006).

In return for obtaining the benefit of the more indulgent “lost chance” standard for proving causation, a plaintiff “cannot avoid apportionment of damages ․ because a plaintiff's recovery is ‘limited to the value of the lost chance of avoiding harm.’ ”  Anderson, supra, 144 N.J. at 211. (quoting Scafidi, supra, 119 N.J. at 111).   For that reason, the jury must be asked to apportion “ ‘the extent to which the pre-existing condition reduced the value of the chance-interest adversely affected by the defendant's tortious conduct.’ ”  Ibid. (quoting Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1393 (1981)).   Stated differently, the “tortfeasor should be charged only with the value of the interest he destroyed.”  King, supra, 90 Yale L.J. at 1356.

The only exception to the rule that the jury must be asked to apportion the extent to which the pre-existing condition and the tortious conduct of the defendant each contributed to the ultimate injury is where the defendant fails to produce any evidence supporting such an apportionment.   See Fosgate, supra, 66 N.J. at 272-73;  Golinski v. Hackensack Med. Ctr., 298 N.J.Super. 650, 656 (App.Div.1997).   Indeed, Model Jury Charge (Civil), § 5.50E n.6 instructs judges to “eliminate” the apportionment language from the jury charge “as well as ․ from the verdict sheet” whenever there is “no evidence submitted as to apportionment of damage.”   In such instances, “the defendant is responsible for the full injury and all damages.”  Ibid.

We must now decide whether the City had produced enough evidence to require the judge to have included on the verdict sheet a set of jury interrogatories asking the jury to determine what percentage of plaintiff's damages was attributable to Massachi's pre-existing condition as an abductee and what percentage of the damages was attributable to Massachi's lost chance of survival due to Venable's and Mike's negligence.   Plaintiff urges us to conclude that the City produced no evidence that would support any such apportionment and therefore the omission of apportionment questions on the verdict sheet was harmless error.   We do not agree.

Among the fact questions facing the jury were these:  whether Honrath had a gun in the car and would have shot Massachi before police arrived even if Venable and Mike had properly dispatched police;  even if Honrath had no gun in the car, and only had a gun in his apartment, whether he would have been able to murder Massachi before police arrived even if Venable and Mike had done their jobs properly;  and whether the information provided by Lester about Honrath's path of travel would have enabled police to apprehend Honrath even if Venable had kept Lester on the line.

Each of these questions of fact provided a basis for apportionment of damages.   The jury could have determined, for example, that there was only a sixty percent chance of survival even if Venable and Mike fielded the call properly because of the possibility that Honrath might have reached his apartment before police arrived.   The evidence in the record concerning the time and distances involved would have informed the jury's analysis.   Seamon testified that it was a little more than eleven miles from the abduction location to Honrath's apartment and that it would take twenty-three to twenty-five minutes to travel in normal traffic.   This is only one example, but it illustrates why the omission of such apportionment questions was not harmless, why this omission “ ‘prejudice[ed] substantial rights,’ ” Boryszewski, supra, 380 N.J.Super. at 374 (quoting Sons of Thunder, supra, 148 N.J. at 418), of the City and why a new trial is required.

Before leaving this subject, we turn to a discussion of the City's alternate claim that the trial court committed reversible error by failing to charge the jury using Model Jury Charge (Civil), § 6.14, Proximate Cause-Where there is Claim of Intervening or Superseding Cause for Jury's Consideration.   The City maintains that the following acts of negligence were intervening or superseding causes that were present:

1. The failure of the Argenbright security guard, working at Seton Hall, to contact 911 immediately after being informed of Massachi's abduction.

2. The security guard's instruction to the teenage eyewitnesses to the abduction to contact the South Orange police rather than immediately calling 9-1-1 himself.

3. Honrath's shooting of Massachi.

4. The Westfield Police Department's determination to wait thirty minutes before entering the bedroom where Massachi was found alive after gunshots were heard.

This claim is meritless.   Suffice it to say, numbers 1 and 2 occurred before the negligence of the City and, by definition, could not serve as an intervening or superseding cause that would break the chain of causation resulting from the City's negligence.   See Lynch v. Scheininger, 162 N.J. 209, 226-28 (2000).

As to number 3, Honrath's murder of Massachi is the very result the City's negligence should have avoided.   It is not an independent or superseding cause of the harm within the meaning of Lynch.

As to number 4-that the thirty-minute delay by the Westfield police in entering the apartment after they heard gunshots caused the shooting of Massachi to be fatal-this claim was never raised at trial.   It is raised for the first time on appeal.   We nonetheless consider it for the sake of complete appellate review.   We conclude that the record is devoid of any lay or expert testimony demonstrating that the officers of the Westfield Police Department deviated either from their own policies and procedures or standard police procedures in addressing the barricaded situation with which they were confronted.   Nor was there any evidence that had Westfield police entered the apartment immediately after hearing gunshots, rather than waiting thirty minutes, that Massachi would have survived the shooting.   For these reasons, the actions of Westfield police cannot be deemed a superseding cause.   We thus reject the City's claim that the judge's refusal to charge the jury on section 6.14, intervening and superseding causes, was error.

On remand, the judge should charge the jury using section 5.50E, lost chance, and, if defendant's apportionment proofs so warrant, should use the jury interrogatories that are attached to section 5.50E, albeit modified to fit the facts of this case.   We thus reject the City's claim that the jury instruction was erroneous;  however, we agree that the defects in the verdict sheet that we have described created reversible error warranting a new trial.   We shall describe the scope of that new trial shortly.

V.

Next, we consider the City's claim that the judge erred by denying its in limine motion to bar the expert testimony of plaintiff's expert, Seamon, as an inadmissible net opinion.   Although we have already concluded that a new trial is required, we deem it desirable to set forth the evidentiary parameters of that retrial.

The admission of expert evidence is governed by the New Jersey Rules of Evidence.   See N.J.R.E. 702-705.   Pursuant to N.J.R.E. 703, an expert's opinion must be based on “facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial.”   Rosenberg v. Tavorath, 352 N.J.Super. 385, 401 (App.Div.2002).   Furthermore, the facts or data relied on by the expert need not be admissible, so long as of a type reasonably relied on by experts in the field.  N.J.R.E. 703.

The bare conclusions of an expert, which are unsupported by factual evidence, i.e., a “net opinion,” are inadmissible.  Myrlak v. Port Auth. of N.Y. & N.J, 302 N.J.Super. 1, 8 (App.Div.1997), rev'd in part on other grounds, 157 N.J. 84 (1999).   An expert must give the “ ‘why and wherefore’ ” supporting his or her opinion, “ ‘not just a mere conclusion.’ ”  Ibid. (quoting Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 540 (App.Div.), certif. denied, 145 N.J. 374 (1996)).   Expert testimony which does not relate to generally-accepted standards, but instead references a standard that is personal to the expert, is the same as a net opinion.  Taylor v. DeLosso, 319 N.J.Super. 174, 180 (App.Div.1999).   However, so long as the opinion relates to generally-accepted standards, includes the “why and wherefore,” and is not simply a baseless conclusion, the opinion will not be deemed an inadmissible net opinion.   Jimenez, supra, 286 N.J.Super. at 540.

Applying these standards, we note that Seamon's testimony was purportedly based upon factual bases and objective standards of practice.   His years of experience in police work qualified him, without objection, as an expert in police procedures, 9-1-1 communications, and dispatch.   Furthermore, Seamon testified that his opinions on the negligence of 9-1-1 operator Venable and dispatcher Mike were based upon both the policies and procedures of Newark Police Department, as well as the objective procedures of police departments in general.   Based on these same standards, Seamon testified that this negligence increased the risk of harm to Massachi.

The City asserts that Seamon's opinion was nonetheless a net opinion because Seamon had no facts “upon which to base his assertion that the police would have been able to locate Honrath's fleeing vehicle or prevented Massachi's murder had police procedures been followed.”   We do not agree.   Seamon opined that in light of the time and distance involved, there was a likelihood that if Venable and Mike had done their jobs properly, police, especially Westfield, would have arrived at Honrath's apartment before he did.   In light of this, Seamon's testimony was proper.   While it was impossible for him to testify definitively that Massachi would certainly have lived had Venable and Mike followed proper policies and procedure, by using his knowledge of both Newark's policies and general police policies, he was able to testify both as to Newark's negligence and to the substantial possibility of rescue that was denied to Massachi by this negligence.   His testimony, which included opinions as to what procedures would have been implemented had Venable and Mike not been negligent, was proper expert testimony and its admission does not constitute error.

VI.

We turn to plaintiff's cross-appeal.   During the charge conference, plaintiff argued that the City had not presented evidence demonstrating that either Argenbright or the University deviated from accepted standards governing a university public safety department or a private security firm.   For that reason, plaintiff maintained that the City was not entitled to the benefit of the jury being asked to apportion a percentage of negligence to the settling defendants, Seton Hall and Argenbright.   The judge disagreed, reasoning that the City was not obligated to produce expert testimony on the standard of care governing Seton Hall's Public Safety Department and Argenbright Security and that the jury would be permitted to evaluate the possible negligence of the two settling defendants based upon general negligence principles.

Our conclusion that a new trial is required makes it unnecessary for us to consider whether the evidence was sufficient to require the molding of the verdict to account for the jury's apportionment of twenty-five percent of the damages to the negligence of the settling defendants, Argenbright and Seton Hall. That issue is best left to the judgment of the trial court on remand based on the proofs adduced during the retrial.

Last, we consider plaintiff's argument that “in the event a new trial is ordered, the damage verdict should be left undisturbed” and the new trial should be confined to the “liability/proximate cause portion of the trial” because none of the City's arguments on appeal affect the quantum of damages.   In particular, plaintiff maintains that “[t]he damages award, allocated between the survival claim, wrongful death and funeral expenses is distinct and separate from the issues [the City has] raised on appeal.”   Plaintiff also observes that the City has not challenged “the validity of the damage award in its motion for a new trial or on this appeal.  [The City] has never claimed that the damage verdict was against the weight of the evidence, and has not claimed any error in the charge to the jury regarding damages.”

As we have noted, the City did allege, as part of its new trial motion, that the verdict was excessive, but the judge declined to consider the motion on the merits because the motion was substantially out of time, having been filed forty-nine days after the return of the verdict, rather than within the twenty-day period required by Rule 4:49-1(b).  The City's cross-appeal does not include a claim that the judge's refusal to hear its new trial motion was error.   Thus, because the motion was not considered on the merits, the City is in the same posture as it would have been had the motion never been filed.

Moreover, neither the City's notice of appeal nor its points on appeal contain a claim that the verdict was excessive.   Instead, in its reply brief-for the first time-the City argues that the damages award was excessive and that any new trial should encompass both liability and damages.   We decline to consider the City's claim that the jury's award was excessive.   See A.D. v. Morris County Bd. of Soc. Servs., 353 N.J.Super. 26, 30 (App.Div.2002) (holding that it is “improper to raise an argument for the first time in a reply brief” and “[t]ypically, such an argument will not be recognized”).   See also Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J.Super. 590, 596 (App.Div.) (holding the same), certif. denied, 168 N.J. 294 (2001).   Moreover, where, as here, a party fails to perfect its motion for a new trial on the grounds that the verdict was excessive, the claim that the damages verdict was against the weight of the evidence is not cognizable on appeal.   R. 2:10-1.

We now return to plaintiff's argument that any new trial should be limited to liability and proximate cause.   As plaintiff correctly argues, “[w]hen the damages award is not tainted by the error in the liability portion of the case and is fairly separable, retrial need not include the issue of damages,” Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009), because “ ‘[t]he scope of the new trial depends on the nature of the injustice,’ ” ibid. (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490 (2001)) (alteration in original).   In Ogborne, the Court issued considerable guidance on this subject, stating that “remand on liability and comparative negligence should not include the issue of damages”;  “failure to apportion responsibility [does] not affect [a] damages award”;  “liability issues and damages issues are ‘fairly separable,’ so [there is] no reason to retry damages” when the errors are limited to the liability phase.  Id. at 462-63. (internal quotations and citations omitted).

Other than its argument that the damages award was excessive-which we will not consider-the City makes no other response to plaintiff's argument that any errors made at trial had no bearing on the quantum of damages the jury awarded.   We have carefully reviewed the record in light of the principles articulated in Ogborne, and we are satisfied that the sole error we have identified-the failure to provide the jury with interrogatories for the apportionment of damages on the “lost chance” issue-did not taint the dollar amount of the damages the jury awarded.   We thus conclude that the retrial should be limited to liability and proximate cause.   The award of $5,512,000 shall remain undisturbed on retrial.

On remand, if plaintiff again prevails, the judge should adjust the award to account for any “lost chance” apportionment the jury may make.   Whether the verdict should be further molded to account for any liability of the settling defendants will depend on whether the proofs the City presents at retrial concerning the liability of Argenbright and Seton Hall are sufficient to warrant presenting that issue to the jury.

VII.

On the appeal, affirmed in part, reversed in part and remanded for a new trial on liability and proximate cause only.

On the cross-appeal, affirmed in part.

FOOTNOTES

FOOTNOTE.  FN:  Double.  N.J.S.A. 52:17C-1(l) defines a PSAP as “the first point of reception by a public safety agency of 9-1-1 calls and serves the jurisdictions in which it is located or other participating jurisdictions.”

FOOTNOTE.  FN:  Double.  The “enhanced” 9-1-1 system the Commission recommended had three new features:  automatic number identification, which enables the automatic display of the seven-digit telephone number from which the 9-1-1 call originated;  “automatic location identification,” which automatically displays the geographic location from which the 9-1-1 call was made;  and “selective routing,” which is the method employed to direct 9-1-1 calls to the appropriate PSAP based on the location from which the call originated.  Report, supra, at 7.

FOOTNOTE.  FN:  Double.  47 U.S.C. § 332(d) defines a “commercial mobile service” as “any mobile service ․ that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public[.]”

FOOTNOTE.  FN:  Double.  The enumerated providers include telephone companies, commercial mobile radio service companies, telephone equipment manufacturers and wireless telephone companies.

FOOTNOTE.  FN:  Double.  We requested the parties submit post-argument supplemental briefs addressing the legislative history of N.J.S.A. 52:17C-10.

FOOTNOTE.  FN:  Double.  N.J.S.A. 52:17C-3 designates the Office of Emergency Telecommunications Services as the “office” responsible for issuing a Statewide 9-1-1 service plan and for developing “[t]echnical and operational standards.”

FOOTNOTE.  FN:  Double.  Those model jury interrogatories are as follows:1) Did the defendant, Dr. _, deviate from accepted standards of medical practice?Yes _ If your answer is “Yes,” proceed to question 2.No _ If your answer is “No,” return your verdict for the defendant.2) Did the defendant's, Dr. _'s, deviation increase the risk of harm posed by the plaintiff's preexisting condition?Yes _ If your answer is “Yes,” proceed to question 3.No _ If your answer is “No,” return your verdict for the defendant.3) Has the defendant proven that some portion of the plaintiff's ultimate injury would have occurred, even if the defendant's treatment was proper?Yes _ If your answer is “Yes,” proceed to question 4.No _ If your answer is “No,” proceed to question 5.4) State whether the increased risk was a substantial factor in causing the plaintiff's damages by stating, in percentages, what portion of the ultimate injury is a result from:A.  The pre-existing condition _%B. Dr. _'s deviation from thestandard of care _%Total 100 %(The total must equal 100%.   If 100% of the damages are determined to be due to the preexisting condition, then return your verdict for the defendant.   If any percentage of the damages are the result of the defendant(s) fault, then proceed to interrogatory 5.)Model Jury Charge (Civil), § 5.50E, Jury interrogatories, at 8.

The opinion of the court was delivered by BAXTER, J.A.D.