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McAndrew v. Mularchuk

Decided: June 28, 1960.

WILLIAM F. MCANDREW, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF ROBERT MCANDREW, AN INFANT, AND FRANCES MCANDREW, PLAINTIFFS-RESPONDENTS,
v.
ANDREW MULARCHUK, ET AL., DEFENDANTS, AND BOROUGH OF KEANSBURG, A MUNICIPALITY, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Francis, J. Burling, J. (concurring). Burling, J., concurring in result.

Francis

The infant plaintiff sued the Borough of Keansburg and Andrew Mularchuk to recover damages on account of a gunshot wound inflicted by Mularchuk, allegedly during the course of his duties as a reserve patrolman of the municipality. His mother and father joined as plaintiffs to present their claim for consequential losses. The action was predicated upon charges of atrocious assault and battery and negligence against the individual defendant; the borough's liability was based upon (1) negligence in authorizing and sanctioning the arming of Mularchuk with a dangerous weapon without having adequately trained and instructed him in its use, and (2) a claim that the doctrine of respondeat superior imposed responsibility for an unlawful or negligent shooting committed in the course of Mularchuk's duty as a reserve patrolman.

The trial court dismissed the action against the borough at the close of the trial on the ground that in the present state of the law any negligence of Mularchuk in shooting the plaintiff was not imputable to it under the principle of respondeat superior, and that the evidence had failed to disclose any independent negligence directly engaged in or chargeable to the municipality itself which would justify a recovery by the plaintiff. The Appellate Division reversed the dismissal and ordered a new trial. 56 N.J. Super. 219 (App. Div. 1959). It held that the proof was susceptible

of the inference that the borough itself, through its responsible officials in a sufficiently high echelon of authority, was guilty of active wrongdoing in allowing and directing a person untrained or inadequately trained in the handling and use of a revolver to engage in public police duties while carrying such a dangerous instrument. We granted certification because of the importance of the problem involved. 30 N.J. 600 (1959).

In 1926 Keansburg, by ordinance, established a police department to consist of a "Chief of Police, two Sergeants, and such number of regular and reserve patrolmen as may be necessary to properly patrol and police the Borough." Article 4 provided that "the Department shall be under the control of the Chief of Police, subject to the control, supervision and regulation as provided by the laws of this state." According to Mularchuk he was appointed a reserve patrolman under this ordinance around 1940 and reappointed annually thereafter (except for 1951 when he was designated as a "special" policeman) down to and including 1956. The formal resolution of the council for his 1956 reappointment was received in evidence. Upon appointment, Mularchuk took the oath of office and filed a bond in the amount of $2,500 conditioned upon the faithful performance "of all the duties enjoined upon him as Reserve Patrolman * * *." In the pretrial order the borough asserted that the first appointment occurred in 1946 but no proof was offered to that effect. The conflict is of no great moment. The parties stipulated that Mularchuk was legally appointed a reserve officer on January 3, 1956 "under the ordinance and the statutes." Authority to create the police department and to provide for reserve patrolmen is not questioned. See R.S. 40:47-1; N.J.S.A. 40:47-19.

Reserve officers were pressed into service by the chief of police when needed, and while on duty for the borough they were paid at the rate of $1.25 per hour. When called in, they engaged in regular patrol activity on foot and in police cars; they worked at election times (Mularchuk had been

on duty at the primary election, just shortly before the incident which forms the basis for this suit); on parade days; as bank guards (for which the borough paid them); and when on active police duty they were obliged to maintain order everywhere in the municipality. The evidence also reveals that, upon request to the chief of police, an operator of a place such as a night club who expected a crowd could obtain the assignment of a reserve patrolman for the evening to keep order on his premises. In such event, the indication is that the borough did not pay the officer his hourly wage. Apparently the club operator was expected to do so. Mularchuk said there was no fixed or agreed basis for payment in such cases; he accepted whatever gratuity was tendered to him. Keansburg, being a shore resort, is more active in the warm weather and during that period Mularchuk averaged about 16 hours of duty a week. Of course, he had regular employment also; he was produce manager of a local supermarket.

A reserve patrolman, when on duty, wore a regular police uniform; dark blue trousers, lighter blue shirt, and a police hat with a badge on it. He carried a nightstick and a .38-caliber Smith & Wesson revolver in a holster attached to a Sam Browne belt, and he wore a regular police badge on his shirt. Reservemen were required to furnish their own firearms and ammunition. They were not allowed to carry the guns when off duty. This accords with the statute. N.J.S.A. 40:47-19, supra.

When Mularchuk was first appointed by the borough neither the then chief of police nor any other police official nor any member of the governing body asked him if he had any experience in the handling of revolvers, or examined him orally or by any kind of test to ascertain his skill or lack of it with police small-arms. Nor did anyone give, or offer to give, or require that he have, any training with such arms. Throughout his entire period of yearly appointments, the situation remained the same. He was never given any education nor was he required to submit to any training

with respect to the revolver he carried. He did say he was instructed that the gun could be used if his life was threatened, or in a hold-up, and he was told that he could use force when an arrest was being resisted. Whether the latter advice meant that he was authorized to use his gun in the face of resistance to arrest was not explained at the trial.

At one point in the trial, counsel for the borough undertook to question the chief of police as to his knowledge of Mularchuk's proficiency in the use of a gun. An objection was interposed and sustained. On an issue of inadequate training or experience in the handling of firearms, such inquiry is relevant and should be allowed.

The evidence discloses that at the time of the shooting incident Mrs. Shirley Siegel was the owner of the Club Miami, a night club in Keansburg. During the day of Saturday, May 19, 1956, her husband, the manager of the Club, had telephoned the chief of police and requested that a policeman be assigned to his premises that night because he had engaged an extra band and expected a crowd. The chief agreed, and requested Mularchuk to undertake the assignment. Mularchuk put on his uniform, took his night stick and revolver, and went to police headquarters. From there, in accordance with what appeared to be the custom, he was driven in a police car to the Club. His duties there were to maintain order, prevent disturbances, keep the aisles clear, and to see that the law was observed, both inside and outside the premises and "anywhere in the Borough of Keansburg." Closing time was 2:00 A.M. on Sunday, and the evening passed uneventfully until then. Upon termination of the festivities there, Siegel closed up. Mularchuk stepped out onto the public sidewalk, and into this unfortunate event.

Plaintiff Robert McAndrew was 17 years of age and resided in Jersey City. On this day he and a friend, one Fordi, decided to drive in his (Fordi's) car to Keansburg. They arrived at about 10:00 P.M. and thereafter visited two night clubs, the last one being the Club Miami. They left [33 NJ Page 179] there at about 12:30 A.M. It was raining at the time, as it had been during the evening, and when Fordi was about five blocks away from the Club he undertook to make a U-turn and got stuck in the mud in the shoulder of the road. Thereafter, the services of a tow truck were obtained, seemingly through a call to police headquarters, and the car was put back on the roadway. The charge for the service was not only considered exorbitant by them but it was more money than they had. As a result they went back to the Club Miami with the tow truck driver, who had retained the keys to the car, to ascertain if some further money could be borrowed from friends who were still there. Two of the friends came out of the Club and all four, standing on the public sidewalk, undertook to bargain with the tow car driver about his charge. Apparently the discussion became heated and it was at this point that Mularchuk left the then closing Club. He was accompanied by David Carman, another reserve policeman of the borough, who had been assigned to active patrol duty on the beachfront that night. There is a dispute in the testimony as to whether Carman came out of the tavern with Mularchuk or met him on the street in front of it, but the conflict is of no particular significance, except perhaps on the general issue of credibility of the various witnesses. In any event, the officers intervened in the discussion between the tow car driver and plaintiff and his friends. According to McAndrew, the officers took hold of Fordi and started to walk him toward the patrol car; Carman then "cornered" another of the young men in a doorway. McAndrew said that at this juncture he suggested to the officers that they "forget the whole thing," but Mularchuk started after him with the nightstick in his hand. He became frightened and started to run. After proceeding a short distance along the sidewalk, he turned into the street and, when half way across, he was shot in the back by Mularchuk. The bullet entered his back in the scapula region and, except for some particles which remained lodged along the seventh rib, it came out through the chest in the nipple

area. The right lung was collapsed and the seventh rib was fractured. According to some disinterested testimony, when McAndrew fell to the street Mularchuk took him by the collar of his coat and pulled him back to the gutter on the Club side of the street.

Mularchuk's version of the circumstances leading to the shooting was in conflict with that of the plaintiff and his witnesses. He said that as he and Carman were walking Fordi and two of the other young men to the patrol car and putting them in it, other young men were cursing at them and using obscene language. After they got the arrested persons in the car, he saw McAndrew and two others walking toward them. He heard McAndrew say: "Get that * * * and I'll cut his * * * throat." He ordered McAndrew to halt but the order was disobeyed. Instead, plaintiff kept coming toward him, putting his right hand into his pocket as he did so. Mularchuk "got scared" at this, drew his gun and shot at the sidewalk "towards him to scare him off." But as he fired, McAndrew turned, stepped off the curb, took "two or three steps and fell in the street." He did not fire in the air because he was frightened and was not going to take any chances.

It is uncontradicted that the infant plaintiff did not have in his possession a knife, or a gun, or any other weapon.

The statement given to the prosecutor's office by Mularchuk was somewhat at odds with his testimony. He said, "When I seen he wasn't going to stop, he turned around and he started to head across the street. So I pulled my gun out and I shot at him. When I did, when I shot at him, he fell on the curb." He said also that there was a car parked across the street and he thought McAndrew was going to run to the car and get a gun or a knife "because he threatened to cut my throat." So he fired a shot at the running boy's legs.

It seems obvious that the jury did not regard Mularchuk's defense as very substantial. After the trial court dismissed the claim against Keansburg, verdicts were returned against

him for the infant plaintiff for both compensatory and punitive damages and of compensatory damages for the parents. They remain unpaid. It is not suggested on this appeal that the borough has any liability in punitive damages.

Our review calls for consideration of two problems. First: viewing the proof in the light most favorable to the plaintiffs (as we are required to do in this type of appeal), does it create a factual issue for determination by the jury, within the doctrine of Kelley v. Curtiss, 29 N.J. Super. 291 (App. Div. 1954), reversed on other grounds 16 N.J. 265 (1954), as to whether the borough itself was guilty of such negligence as would render it liable to the infant plaintiff? Second: assuming that Mularchuk, an ordinary agent or servant of the municipality (as distinguished from one of such high echelon of general authority in the management or control of the police department that it could be said that action by him was action by the municipality) was guilty of negligence in shooting McAndrew, should the borough be held under ordinary principles of respondeat superior ?

So much has been said in recent years concerning the subject of liability of municipalities for negligence that extended discussion is unnecessary. The present state of the matter in New Jersey can be summed up in this fashion. Complete immunity does not exist. Liability is imposed for injurious acts performed by a municipality in its governmental capacity when they constitute active wrongdoing. That is, when a person suffers an injury through a negligent act of commission, as distinguished from a negligent failure to act, an obligation to respond in damages is recognized. It is not necessary that the negligent act of commission be the most proximate or nearest in time in a sequence of causes to the injury sustained; it is sufficient if, in the sequence, there is such an affirmative wrongful act even though the cause nearest in the succession of causes may be a mere omission to act. Hartman v. City of Brigantine, 23 N.J. 530, 533 (1957); Cloyes v. Delaware Tp., 23 N.J. 324, 329 (1957); Taverna v. City of Hoboken, 43 N.J. Super. 160, 165

(App. Div. 1956), certification denied 23 N.J. 474 (1957); Kelley v. Curtiss, supra.

But despite the fact that our courts have exhibited a "just readiness" to find active wrongdoing on the part of local government, Hartman v. City of Brigantine, supra, 23 N.J., at p. 533, an anomalous aspect of the partial immunity doctrine has remained undisturbed. The existing qualification on liability for an act of commission is that the act must have been performed by the municipality itself, i.e., that it was directed, or committed, or participated in, by an agent of such general or superior authority and responsibility as to justify the conclusion that the corporate entity itself had acted. Hartman v. City of Brigantine, 42 N.J. Super. 247, 256 (App. Div. 1956), affirmed 23 N.J. 530 (1957); Casale v. Housing Authority, City of Newark, 42 N.J. Super. 52, 57 (App. Div. 1956); Kelley v. Curtiss, supra. It has not been considered sufficient to warrant imposition of liability that an ordinary employee was guilty of the active wrongdoing. The doctrine has been described as "controversial," Cloyes v. Delaware Tp., supra, 23 N.J., at p. 330; as "unsatisfactory," Milstrey v. City of Hackensack, 6 N.J. 400, 407 (1951); and as "injustice," Casale v. Housing Authority, City of Newark, supra, 42 N.J. Super., at p. 61, but it stands as the present state of the law. Consequently, in the determination of this case we shall first deal with the question whether the proof shows a negligent act of commission on the part of an agent or agents of the borough high enough in the echelon of general authority in the administration of the police department to justify a finding by a jury that the borough itself committed or participated in the commission of the act.

In any discussion of the problem it must be accepted that Mularchuk, in his capacity as a reserve patrolman, does not have the status of such a high-ranking agent. Thus, under the existing law, absent some culpable involvement by a person of sufficiently superior rank to satisfy the ...


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