Kolovsky, Fritz, and Crane.
Defendant City of Bayonne appeals from a judgment entered on an adverse jury verdict in a negligence action founded upon the fatal shooting of decedent by defendant Solan, a police officer employed by the city who was not on duty at the time of the occurrence. Solan "cross appeals," obviously only as a protective measure, for in the conclusion of his brief he asks for affirmance of the judgment entered against the city and him.
The sole ground for Bayonne's appeal is the argument that a municipality has no liability for damages "caused by the unlawful conduct of an off-duty policeman." The difficulty with such an overly broad statement is that it fails at the threshold to distinguish between responsibility of the municipality for its primary negligence and that imposed upon it under the doctrine of respondeat superior. The distinction is important here because the record is totally devoid of any evidence proving, directly or by inference, that Solan was acting within the scope of his employment.*fn1 In considering
the city's attack on the sufficiency of the evidence we need concern ourselves only with plaintiff's charge against the city of primary negligence.*fn2
The facts may be succinctly stated: Solan, in uniform, had volunteered to participate earlier in the day in question, along with a contingent of Bayonne police, in a Pulaski Day parade in New York. After the parade he had returned to a buffet at a Polish-American Home in Bayonne. It was not until he had left there much later in the evening, and was presumably on the way home -- Solan had no recollection of events after the buffet until he was being transported to headquarters in a squad car after the shooting -- that the event occurred. Solan, apparently then intoxicated, stopped in another bar and there, during an apparently normal conversation with James F. Corridon, drew his service revolver, put it to Corridon's head and shot him dead.
As has been noted, despite the fact Solan was in uniform and armed with his service revolver (as indeed the regulations required him to be at all times, even when off duty), there was no evidence to place him within the scope of his employment or to suggest he was in the furtherance of his employer's business when the shooting occurred.
On the other hand there is credible evidence which, if believed by the jury, proved that the city knew or might reasonably have known of Solan's intoxication in public places on a number of occasions between his employment in 1963 and the shooting in 1969. It may readily be inferred that, pursuant to regulation, Solan was armed at those times as he was at the time in question. There is direct evidence of his being armed on at least some occasions when he drank
to a point of falling asleep at the bar. A witness testified that it was "standard procedure" for one bartender to take Solan's gun and put it away when he started drinking.
These facts, if credited, demonstrate a breach of duty by the city. It is clear that the hazard of firearms is so extraordinarily great that a municipality has a plain duty of care in its supervision of those whom it arms. McAndrew v. Mularchuk, 33 N.J. 172 (1960). If a municipality is required "to use care commensurate with the risk" in providing adequate training and experience in the proper handling and use of weapons, as in McAndrew, it certainly is no less responsible for appropriate action when situations unreasonably increasing the already great hazard become known to it. The duty is one to abate such an extraordinary risk if in related circumstances danger to others is reasonably to be perceived. McCrink v. City of New York, 296 N.Y. 99, 71 N.E. 2d 419 (1947); cf. Stoelting v. Hauck, 32 N.J. 87, 95-96 (1960).
We have no doubt that under the evidence adduced in this case a jury question was made out as to Bayonne's negligence in its apparent neglect of this duty. Had this been all that was given to the jury for its consideration we would have no trouble affirming.
However, the judge submitted the matter of Bayonne's liability to the jury on the alternate theory of respondeat superior as well. Since there was no competent evidence or reasonable inference therefrom that Solan was within the scope of his employment at the time of the shooting, the jury should not have been permitted to consider this theory in its deliberations ...