On appeal from judgment of Superior Court of New Jersey, Law Division, Camden County.
O'Brien, Scalera and Stern. The opinion of the court was delivered by Stern, J.A.D.
[232 NJSuper Page 570] This appeal requires us to decide whether police officers and their employing municipalities are immune from civil liability under the Tort Claims Act when the officers decline to take
action in response to claims of wrongdoing made by a complaining witness who is subsequently injured by the alleged perpetrator. Because there are no material facts in dispute and the Tort Claims Act provides such immunity, we affirm the grant of summary judgment in favor of defendants.
On May 27, 1985 plaintiff was hosting a "cook-out" at his home located in Camden. His fiancee's brother, Robert Morgan, was an invited guest. After having several beers, Morgan left the party and returned later with his girl friend, his girl friend's sister and several others, all of whom arrived without invitations.
After the arrival of the uninvited guests, Morgan's nephew, the son of plaintiff's fiancee, criticized Morgan for bringing uninvited guests to the cook-out. An argument ensued during which Morgan produced a knife and threatened to kill his nephew. Plaintiff thereupon grabbed Morgan, told him that he wasn't going to let him go until he calmed down, and ultimately directed him to leave. As Morgan left, he stated that he was going to come back and kill both his nephew and the plaintiff.
As a result of Morgan's threats, the Camden Police were called, and two officers came to the house, but stayed only several minutes. A short while after they left, Morgan returned to the house with a shotgun, went to the front porch, and said that he wanted plaintiff to come outside because he "had something for him." Plaintiff's fiancee again called the police, and Morgan ran off. When two officers responded to the call, plaintiff asked one of them to stay and patrol the area. The officer declined to do so and told plaintiff not to worry.*fn1
A few minutes later Morgan again returned and tried to enter the front door. Plaintiff attempted to slam the door
before Morgan could enter, but Morgan succeeded in sticking the barrel of the gun through the doorway and fired the weapon, severely injuring plaintiff in the leg.
In his complaint, plaintiff specifically alleged that the two police officers who came to the house the second time "failed to respond to a call for aid in a reasonable and professional manner and after responding, acted in a negligent and unprofessional manner, failed to search for and apprehend the defendant Morgan, [and] failed to peruse and secure the area for the defendant Morgan, resulting in plaintiff's injuries. . . ." Plaintiff further charged that this alleged negligence was imputable to the City of Camden and the City of Camden Police Department.
In his preliminary report, plaintiff's expert reviewed the two officers' conduct and concluded that
the Camden Police Officers who responded to the call at the Lewis Street residence acted totally improperly and unprofessionally and in a grossly negligent manner and in violation of accepted standard police practices, therefore causing the injuries suffered by Brad Lee . . .
After hearing oral argument on defendants' motion for summary judgment, Judge Charles A. Little in the Law Division ruled that the police officers were immune from action under N.J.S.A. 59:5-5 and thus dismissed plaintiff's suit with prejudice.*fn2 This appeal follows.
The thrust of plaintiff's argument is that the immunity does not apply under the facts of this case, because once the officers responded to the request for aid they became subject to liability for negligence in the performance of their duties. Plaintiff also asserts the officers were negligent by doing nothing more than telling him not to worry because Morgan probably would not return. Defendants argue that the trial judge properly granted summary judgment based upon the immunity conferred by N.J.S.A. 59:5-5.
The Supreme Court recently reviewed the legislative purpose underlying the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (hereinafter referred to as "Tort Claims Act" or "the Act") as well as the Act's general provisions establishing both liability and immunity. See Rochinsky v. State, Department of Transportation, 110 N.J. 339 (1988). As Justice Stein noted in Rochinsky, the law became effective on July 1, 1972 and contained the following legislative declaration:
The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established ...