On Appeal from Superior court of New Jersey, Law Division, Hudson County.
Brody, Gaynor and Baime. The opinion of the court was rendered by Gaynor, J.A.D.
This case presents the question of whether the immunity granted under N.J.S.A. 59:5-4 for liability arising from a public entity's failure to provide sufficient police protection service extends to liability resulting from negligence committed by a housing authority security guard during the performance of his assigned duties. We decide that it does not.
Pursuant to leave granted, plaintiff appeals from the grant of defendants' motions for summary judgment dismissing the first count of her complaint on the basis of the immunity provided by N.J.S.A. 59:5-4. In the complaint plaintiff sought recovery for injuries allegedly sustained on the premises of a housing project operated by defendant, Housing Authority of Harrison (Authority), when she fell while attempting to dodge a firecracker thrown at her by a juvenile. She alleged in the first count that defendant, Michael Henry, was negligent in the performance of his duties as a project security guard thereby enabling the juvenile to play with firecrackers and to throw one at her which resulted in her injury. Henry's alleged negligent conduct was imputed to the Authority as his employer.
For the purposes of the summary judgment motion, the facts giving rise to this action were undisputed. The Authority, a public entity, operates two adjoining public housing projects, Harrison Gardens and Kingsland Court. The security service provided by the Authority consisted of a patrol of the two projects by a security guard between 7 p.m. and 11 p.m. Although the guards were nonpolice personnel borrowed from the Harrison Police Department, it was acknowledged that their relationship with the Authority was that of employer and employee. On July 4, 1981 juveniles were setting off firecrackers
in and around the projects during the entire day and more frequently in the evening between the hours of 7 p.m. and 9 p.m. At approximately 9 p.m. plaintiff heard a loud explosion on the front steps of her apartment in Harrison Gardens. Upon opening the door, she saw that a firecracker had been detonated inside a glass jug on the steps and noticed a group of youths running away. She started after the boys whereupon one of them threw a large firecracker in her direction. As she ran back to her apartment to avoid the impending explosion, she slipped on a spent firework tube and fell backwards onto the steps thereby sustaining serious injuries. The security guard was not in the area of plaintiff's apartment at the time of this incident and was not aware of the accident until after the arrival of a police officer. Plaintiff asserted that Henry, who was the security guard on duty, had been negligent in failing to properly patrol the area and suggested that, as on prior occasions, he had been "goofing off" in socializing with his girl friend who lived in Kingsland Court when he should have been controlling or chasing away the offensive juveniles.
In granting the summary judgment motion, the court concluded that Henry's negligent performance of his patrol duties was nothing more than the failure of the Authority to provide police protection service and thus subject to the immunity from suit by reason of N.J.S.A. 59:5-4. This statute provides:
Neither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.
In so ruling, the judge analogized the condition complained of by plaintiff to a municipality "having only thirty six police officers instead of forty or having three cars in a neighborhood and only two cars in another neighborhood or something like that." We disagree with this conclusion as in our view there is a distinction between the failure to provide police protection service, or sufficient police protection service, and the negligent performance by a police officer of his assigned duties. The latter is not immunized by N.J.S.A. 59:5-4.
This distinction was comprehensively analyzed by this court in Suarez v. Dosky, 171 N.J. Super. 1 (App.Div.1979) and found to be valid. There, we observed that the protection afforded by N.J.S.A. 59:5-4 concerned the right and power of the public entity "to allocate its resources in accordance with its conception of how the public interest will be best served, an exercise of political power which should be insulated from interference by judge or jury in a tort action." Id. at 9. In holding that this protection does not extend to liability arising from a police officer's negligent performance of his duties after having responded to an automobile accident, we said:
We conclude, therefore, that N.J.S.A. 59:5-4, precludes suits against municipalities and their responsible officers based upon contentions that damage occurred from the absence of a police force or from the presence of an inadequate one. How many officers a town should employ, how each should be equipped and whether a town should have any ...