Is the City of Newark liable for bullet wounds sustained by plaintiff gambler in a "friendly dice game" when confronted by a drunken Newark police officer who, with gun in hand, extorted the proceeds of the game? This novel question is presented by way of a motion for summary judgment made by defendant city. The test for determining the granting of a summary judgment motion is found in Judson v. People's Bank & Trust Co. of Westfield , 17 N.J. 67:
The standards of decision governing the grant or denial of a summary judgment emphasize that a party opposing a motion is not to be denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. At
the same time, the standards are to be applied with discriminating care so as not to defeat a summary judgment if the movant is justly entitled to one.
Thus it is the movant's burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact, 6 Moore's Federal Practice, par. 56.15(3). The phrasing of our rule, R.R. 4:58-3, slightly different from Federal Rule 56(c), underscores this in the requirement that the absence of undisputed material facts must appear 'palpably.' All inferences of doubt are drawn against the movant in favor of the opponent of the motion. The papers supporting the motion are closely scrutinized and the opposing papers indulgently treated, Templeton v. Borough of Glen Rock , 11 N.J. Super. 1, 4 (App. Div. 1950). * * * (at 74-75)
The facts, as narrated by plaintiff, are:
A few friends of mine and myself were having a little friendly dice game when some time between 4:30 and 5:00 A.M. the door was banged open and I saw a man I knew as 'Murray' standing in the doorway. He seemed a little high * * * I knew he was a policeman, he pulled his gun out and said 'I'm Lieutenant Murray, don't nobody move,' then he threw his badge on the table. He told us to put all our money on the table. We did. He told Eddie Little that he had seen a ten dollar bill in his hand and that the bill had better be in his pile of money on the table. He leaned over the table, looking at us, and scooped up the money that was in front of each man except one fellow that said he didn't have any money. About this time the gun went off, I cried out that I was shot, and Murray said I wasn't shot. Murray took the money off the table, and there was a click after Murray pulled the gun.
The parties agree that Murray was indicted and pleaded guilty to charges that he unlawfully and corruptly did solicit, by color of his office, a fee or reward not allowed by the laws of the State of New Jersey for performing his duties. Upon this plea, sentence was suspended and Murray was placed on probation for three years. So ends Snell's saga of the "friendly dice game."
Now for a look at the law. Clearly, a municipality may be held liable for the negligent commission of an act by its agent, while acting within the scope of his employment under the theory of respondeat superior. McAndrew v. Mularchuk , 33 N.J. 172 (1960). McAndrew has been discussed in law review articles which nonetheless follow the
doctrine of respondeat superior in municipal tort area, as seen from the ...