On appeal from Superior Court, Law Division, Monmouth County.
Bischoff, Petrella and Brody. The opinion of the court was delivered by Brody, J.A.D.
Stanley Stone (plaintiff) and his wife brought this tort action to recover damages for injuries he received when shot by Keyport Police Officer John Dayback (defendant). It was agreed at trial that despite the caption of the case, the Borough of Keyport and its Chief of Police William Geiger would be considered the only other defendants. The trial judge submitted to the jury the issues of negligence*fn1 and damages after dismissing all other claims. By answers to special interrogatories, the jury found defendant 40% negligent and plaintiff 60% negligent. Accordingly, the judge entered judgment for defendant. We affirm.
We state the facts in a manner consistent with the finding that both parties were negligent. Fearing that plaintiff was about to commit suicide behind a locked door of their bedroom, his wife summoned the police. Defendant and Officer Albert Hafner responded in separate cars. Defendant arrived first. Mrs. Stone took him upstairs to the locked door. Defendant broke open the door. Plaintiff was standing inside facing the door and brandishing a machete over his head. Mrs. Stone unsuccessfully tried to calm her husband while defendant retreated to a daughter's bedroom. Hafner reached the top of the stairs just as plaintiff, now in the hall, began to swing the machete at Mrs. Stone. Hafner pulled her out of the way and carried her downstairs.
Plaintiff then turned his attention to defendant who was in the daughter's bedroom. A piece of equipment which defendant had dropped kept the door from fully closing. Before defendant was able to kick it away, plaintiff began to strike the door with the machete. Defendant was leaning his weight against the partially open door when plaintiff swung the machete through the open portion of the doorway. Defendant fired a warning shot into the ceiling. Its only effect was to plunge the room into darkness. Plaintiff kept swinging the machete at the door and through the doorway. Unable to see what was happening in the dark and fearing for his safety, defendant fired his gun through the door. The bullet severely wounded plaintiff. All these events occurred in very rapid succession.
Plaintiff's major points turn on whether the trial judge erred in receiving as evidence a prior sworn oral statement in which, contrary to his trial testimony, plaintiff admitted having assaulted defendant. Plaintiff made the statement in a criminal proceeding to establish a factual basis for his guilty plea to an assault charge arising out of this incident. In accepting the plea, the judge in the criminal case ordered that neither the plea of guilty nor "any statements made by the defendant, Stanley Stone, at the time of this plea, shall . . . be evidential in any civil proceeding." The authority for entering that kind of order is found in R. 3:9-2 which provides in relevant part:
For good cause shown the court may, in accepting a plea of guilty, order that such plea not be evidential in any civil proceeding.
When the plea was accepted, this action had not yet been commenced.
The judge in the criminal case died before trial. The assignment judge, acting in his stead, modified the order on defendant's motion to permit the following portion of plaintiff's statement to be admitted solely to affect plaintiff's credibility:
Question: Will you tell me what happened insofar as the assault with the machete is concerned?
Answer: I had in my hand a machete and assaulted a police officer that had broken through ...