On appeal from Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Oliphant. The opinion of the court was delivered by William J. Brennan, Jr., J. Heher, J., concurring in result.
The question presented by this case concerns a police officer's liability in negligence to an innocent bystander struck by a deflected bullet fired from the officer's service revolver in an attempt to prevent the escape of a criminal.
The defendant, a Newark mounted policeman, was on traffic duty in West Park Street, a "very narrow" street running from Broad Street to Halsey Street in Newark's central downtown and busiest section. His assignment was to prevent parking in the street and to keep traffic moving. He saw a car parked at the curb near the entrance of Klein's Department Store on the south side of West Park Street. He dismounted and entered the store to locate the owner of the car and have it removed. In the store's liquor department the department manager was engaged in a dispute with a man holding a shopping bag. Seeing the officer come in, the manager called him and charged that the man with the shopping bag had stolen its contents (later discovered to consist of bottles of liquor and a suit of clothing, the property of Klein's, having a total value of $36.87). The defendant attempted an arrest but the man shoved him aside, dropped the bag and fled for the store's West Park Street exit, knocking down a woman patron before he reached the door; gaining the sidewalk, he turned left, or west, and ran down the middle of West Park Street toward Halsey
Street. When the defendant reached the sidewalk he called four times to the thief to "Halt" or "Stop." When the thief paid no heed and continued to run toward Halsey Street the defendant drew his revolver and, he testified, "aimed * * * at his leg, real low" and fired "to see if I could stop him." The bullet did not hit the thief but was deflected to the north side of the street where it struck and injured the infant plaintiff, 19 years of age, who was on the sidewalk walking toward Halsey Street with her aunt.
The number of pedestrians on West Park Street at the time was disputed, but defendant conceded that from his experience on the beat he was aware that there would be some at that hour, just before noon, on any shopping day. Nevertheless he admitted that, intent on stopping the fleeing thief, he "didn't look around to see if there was a lot of people around" but merely looked "to see if anybody was in the direct line" of fire, and seeing no one he fired.
The action was pleaded and tried on the theory of defendant's alleged negligence in shooting his service revolver under the circumstances, and the only issue bearing on liability submitted to the jury for its determination was whether defendant was guilty of the negligence charged. The jury resolved the issue in defendant's favor and returned a verdict of no cause for action. A motion for a new trial was denied. The Appellate Division reversed, holding that it was error to deny a new trial. 37 N.J. Super. 569 (1955). We granted defendant's petition for certification, 20 N.J. 304 (1956).
The Appellate Division's opinion rightly states that "Courts have universally regarded loaded firearms as dangerous instruments and have ascribed an elevated degree of reasonable care and caution to be exercised in their use." 37 N.J. Super. 573. In his notable opinion in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 1253 (Ct. App. 1928), Mr. Justice Cardozo said that "Some acts, such as shooting are so imminently dangerous to any one who may come within reach of the missile
however unexpectedly, as to impose a duty of prevision not far from that of an insurer." Our own decisions are to the same effect. In Moebus v. Becker, 46 N.J.L. 41, 44 (Sup. Ct. 1884), for example, it was set down that, "As fire-arms are more than ordinarily dangerous when loaded, those who handle them are bound to use more than ordinary care to prevent injury to others."
No exception from this strict rule of accountability for want of extraordinary care in the use of firearms is made in favor of a police officer whose act of shooting causes harm to innocent bystanders. A police officer is not even justified in shooting at every escaping criminal to prevent the escape. At the common law it was only when the escaping criminal had committed a common law felony and there was no other way of taking him that the peace officer was justified in shooting at him to prevent his escape. This rule obtains in our State. Charge to Grand Jury, 9 N.J.L.J. 167, at pages 168 and 169. The law does not countenance the act of a police officer in shooting a fleeing offender charged merely with a misdemeanor, breach of the peace or violation of the Disorderly Persons Act, and the peace officer who shoots such a fleeing offender subjects himself to civil liability to the offender and to criminal prosecution as well. Noback v. Town of Montclair, 33 N.J. Super. 420 (Law Div. 1954); 9 N.J.L.J. 167, supra. The reasons underlying this distinction at common law are well expressed in the opinion of the North Carolina Supreme Court in Holloway v. Moser, 193 N.C. 185, 136 S.E. 375, 376, 50 A.L.R. 262, 264, 266 (1927). It was there said:
"By the common law, an officer, in a case of felony, was permitted to use all force necessary to capture the felon, even to slaying him when in flight. In the case of a misdemeanor, however, the rule was different. The officer could defend himself, if resisted, even to the taking of life, but if the offender were simply fleeing and not resisting, he had no right to kill. It was thought that to permit the life of one charged with a mere misdemeanor to be ...