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Wood v. City of Linden

Decided: May 26, 1987.

DOROTHY WOOD, PLAINTIFF-APPELLANT,
v.
CITY OF LINDEN, CITY OF LINDEN DEPARTMENT OF POLICE AND PTL. JOSEPH W. BUTCHKO, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Coleman and Cohen. The opinion of the court was delivered by J. H. Coleman, J.A.D.

Coleman

The issue presented in this appeal is whether a jury question is raised concerning the "good faith" immunity, N.J.S.A. 59:3-3, of a policeman who intentionally rams a police vehicle into the vehicle of a fleeing suspect who is trying to avoid apprehension.

Plaintiff, Dorothy Wood, brought suit against the City of Linden, the Linden Police Department and two police officers as a result of injuries she sustained when the vehicle in which she was riding as a passenger was allegedly rammed by a police car and pushed into a parked van during a high speed chase. The

pursuit resulted from an unsuccessful attempt by the policemen to serve the driver of the vehicle in which plaintiff was a passenger with a no bail arrest warrant. At the close of all the evidence, the trial judge granted the police officers' motion for an involuntary judgment of dismissal on the ground that they were immune from liability under the New Jersey Tort Claims Act, N.J.S.A. 59:3-3. Plaintiff has appealed. We now reverse because plaintiff established a prima facie case.

Plaintiff filed a complaint and an amended complaint in which she alleged that while she was riding as a passenger in a vehicle being operated by James Cecil, defendants Joseph Butchko and Edwin Gergich, Linden policemen acting within the course of their employment, negligently collided with the vehicle which Cecil operated causing it to strike a parked van. One or both of the impacts caused plaintiff to sustain serious personal injuries. Plaintiff also alleged negligent instruction and training of Butchko and Gergich. Plaintiff settled with Cecil before trial and the claims as to him were dismissed.

The facts essential to our decision are not complicated.*fn1 On the evening of February 26, 1983, plaintiff and Cecil went out on a date with another couple in plaintiff's car. Plaintiff and Cecil eventually ended up at the St. George Diner in Linden at about 5:30 a.m. on February 27, 1983. Patrolman Gergich was on duty during the early morning hours of February 27, 1983. The Linden Police Department was in possession of a no bail detainer warrant for Cecil's arrest from the Township of Woodbridge. The reason for the arrest warrant was not known by the police. Gergich had received information that Cecil might be driving a 1979 blue Chevrolet bearing New Jersey registration 352-NPF. While on patrol, Gergich observed this vehicle

approximately four or five blocks from the St. George Diner being operated by a male with a female passenger. Believing that Cecil might be the driver, Gergich radioed police headquarters and advised that he had the suspect vehicle in sight and requested assistance.

Gergich, who was alone in his patrol car, followed the Cecil vehicle to the St. George Diner. Patrolman Butchko was dispatched to assist Gergich in serving the arrest warrant.

Cecil, who was driving plaintiff's car, entered the driveway of the St. George Diner and pulled into a parking space in the rear of the lot. Butchko, who was alone in his patrol car, arrived at the diner at about 5:45 a.m. He observed Cecil, whom he knew from prior contacts with the police department, seated behind the wheel with a female companion, later identified as plaintiff. Butchko and Gergich blocked the two exits with their patrol cars. After spotlights were directed into plaintiff's vehicle, she told Cecil "Lets get out [sic] here." Cecil pulled out of the lot and drove down St. George Avenue. As Cecil pulled out of the lot, plaintiff realized the spotlights were from police vehicles. Cecil proceeded down St. George Avenue at high speed in the direction of plaintiff's home.

Shortly after leaving the parking lot of the diner, plaintiff saw flashing red lights and realized that a police car was behind them. She testified that she did not realize that the police wanted Cecil to stop. After traveling on St. George Avenue for approximately four minutes, Cecil made a left-hand turn onto Valley Road which runs through Warinanco Park. Plaintiff testified that several police cars were following them at this time. She felt scared and started to scream. Plaintiff heard the sound of gunshots coming from the rear while they were driving through the park. Cecil pushed plaintiff onto the floor of the car and plaintiff's vehicle was rammed from behind by a police car. ...


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