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Morey v. Palmer

Decided: April 12, 1989.

LINDA MOREY, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ALBERT H. MOREY, DECEASED, PLAINTIFF-APPELLANT,
v.
JOSEPH C. PALMER, JR. AND JERSEY CENTRAL POWER & LIGHT CO., DEFENDANTS, AND PATROLMAN JOSEPH VINCI AND BOROUGH OF SOUTH TOMS RIVER, DEFENDANTS-RESPONDENTS



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

Petrella, Gruccio and Landau. The opinion of the court was delivered by Gruccio, J.A.D.

Gruccio

Plaintiff Linda A. Morey, Administratrix of the Estate of Albert H. Morey, Deceased, appeals the trial court's grant of summary judgment in favor of defendants dismissing her complaint. Plaintiff settled with the two other defendants and attempts to recover damages from defendants Joseph Vinci and Borough of South Toms River for the death of her husband, Albert H. Morey. Plaintiff alleges that Vinci's negligent performance of his duties as a Toms River police officer was a direct or proximate cause of decedent's death. The events leading to decedent's death are essentially undisputed.

On October 3, 1984, at approximately 5:15 p.m., Patrolman Vinci responded to a call that there was a pedestrian in the middle of Route 530, Dover Road, Berkeley Township, constituting a traffic hazard. Upon arrival at the scene, he observed decedent staggering in the middle of the road. Vinci ascertained that decedent was intoxicated and ordered him to leave the roadway -- decedent complied. Vinci then determined that the traffic hazard had been eliminated and left the scene. At approximately 8:55 p.m., decedent was struck and killed by a truck one-quarter of a mile from the place where Vinci had ordered him out of the roadway 3 hours and 40 minutes earlier.

Defendants moved for summary judgment asserting that Vinci had no duty to decedent and alternatively, that both defendants are immune from liability under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et. seq. The trial court agreed and granted the motion.

A trial court may grant a motion for summary judgment if there is no issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2. Inferences are to be drawn against the movant in favor of the party opposing the motion. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954). Specifically, with respect to summary judgment motions based on municipal tort immunities,

[i]t is well established that the burden is on the public entity both to plead and prove its immunity under our Act, see Ellison v. Housing Auth. of South Amboy, 162 N.J. Super. 347, 351 (App.Div.1978); and that to succeed on a motion for summary judgment, the entity must "come forward with proof of a nature and character [that] would exclude any genuine dispute of fact . . ." Id. However, once a moving party has met that burden, summary judgment is warranted and, indeed, desirable, as a matter of judicial economy. [ Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985)].

Here, the trial judge ruled that the New Jersey Tort Claims Act precluded any further responsibility on the part of defendants. Although the court failed to specify which particular provision of the Tort Claims Act it relied upon to reach its conclusion, this court is capable of making such a determination.

To the extent that the trial court found no source of a duty, we find a lack of support for the grant of summary judgment. N.J.S.A. 26:2B-16 states: "Any person who is intoxicated in a public place may be assisted to his residence or to an intoxication treatment center or other facility by a police officer or other authorized person." (Emphasis supplied). This permits an officer, in his discretion, to remove an individual from a public place to an intoxication treatment center if the officer determines that the person is intoxicated. The next paragraph of N.J.S.A. 26:2B-16 provides: "Any person who is

intoxicated in a public place and who a police officer has reason to believe is incapacitated shall be assisted by the police officer to an intoxication treatment center or other facility." (Emphasis supplied). Therefore, when an officer determines that an individual is not only intoxicated but also incapacitated, the statute imposes a duty upon the officer to remove an individual from a public place to an intoxication treatment center.*fn1 This statute, however, also provides a specific immunity. N.J.S.A. 26:2B-16.

Under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq., immunity for governmental entities "is the dominant consideration." Hake v. Manchester Tp., 98 N.J. 302, 317 (1985). The general immunity under this act is found in N.J.S.A. 59:2-1. However, N.J.S.A. 59:2-2 makes municipalities liable to the same extent as an individual employee. Properly applied, N.J.S.A. 59:2-2 qualifies the general immunity of N.J.S.A. 59:2-1 by focusing on the type of conduct enjoying the immunity. "We have held that the plain meaning of N.J.S.A. 59:2-1 firmly establishes that 'immunity is the dominant consideration of the Act.' (Citations omitted). Even when one of the Act's provisions establishes ...


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