On Appeal from the Superior Court, Law Division, Burlington County.
King, Long and Stern. The opinion of the court was delivered by Long, J.A.D.
[248 NJSuper Page 493] Plaintiff Raul Bustamante lost the sight in his left eye when he was struck by a wax bullet during training exercises of Pemberton Township Emergency Response Team (ERT). After accepting workers' compensation benefits, Bustamante filed a complaint against the Township of Pemberton and his fellow officer, Paul Tuliano, pursuant to N.J.S.A. 34:15-8 in which he contended that Tuliano intentionally shot him during the training
exercises.*fn1 After a trial during which the Township was dismissed, the jury found that Tuliano had intentionally injured Bustamante and accordingly awarded him damages. The trial judge entered judgment on the jury verdict. Tuliano moved for a new trial or, alternatively, for judgment notwithstanding the verdict, which motions were denied.
Tuliano appeals, claiming that there was no evidence to support the jury verdict that he committed an intentional wrong, and that he should have been dismissed at the close of Bustamante's case or at the end of trial. We agree that the case should not have gone to the jury, that the acts committed by Tuliano did not rise to the level of an intentional wrong, and that Bustamante was thus limited to the workers' compensation remedy. Thus, we reverse.
The facts adduced at trial are as follows: Following a number of township emergencies, the Township of Pemberton recruited volunteers from among members of the police department to staff an ERT. The members were to develop physical skills and abilities with firearms to deal with special police situations such as mentally ill offenders, barricaded suspects and persons with weapons. Bustamante volunteered and became a member of the first ERT team, which was headed by Tuliano.
In April or May 1984, the six members of the first ERT team went to Picatinny Arsenal for special training by the U.S. Defense Department Police Department. At Picatinny, the officers participated in exercises with rubber bullets, which were used because they left a hole or indentation on the paper targets so that participants could see where their shots hit. Bustamante testified at trial that he never used wax bullets at Picatinny and stated that he was aware of no instructions or
even discussion about using wax bullets while he attended the training there.
The Pemberton Police Department required the ERT teams to train monthly following their return. These sessions were in addition to regular police department shifts. An ERT member who was assigned to duty and couldn't find a substitute was unable to attend training. Because the Township did not give the teams sufficient money to buy rubber bullets, participants began to manufacture wax bullets. These bullets were made of hard beeswax that did not ricochet or deform, but disintegrated upon hitting a barrier. Bustamante testified that wax bullets were used because they made "the noise of a real bullet" and because team members considered it important that the person "shot" could not deny being hit. According to Bustamante, if you had been hit by a wax bullet, "you [knew] you'[d] been hit." Wax bullets had hit ERT team members in prior exercises. Bustamante himself had previously shot Sergeant Bud Fifield in the leg while the teams were "horsing around." Following that incident, Fifield gathered the team members and instructed them to discontinue horsing around because someone could be hurt.
On February 19, 1985, the ERT teams convened at a municipal beach facility in Browns Mills called the BMIA building. Team members obtained wax bullets for their pistols from the ERT van. After exercises outside the building, it was determined that the teams would clear the building of two "bad guys." Bustamante and Fifield volunteered to play these parts. The BMIA building is a multi-purpose recreational facility with a stage and movable chairs that can be set up as a theater or used for other purposes. Bustamante testified that Fifield hid in an upstairs kitchen, while he crouched on top of an air conditioning duct suspended above the stage. The teams found Fifield quickly. Bustamante testified that Tuliano then snuck towards the stage with his weapon in "port arms" position, that is, ready to fire. When Tuliano was 15 to 19 feet from Bustamante, Bustamante fired his weapon against the
wall, hitting it about ten feet from Tuliano. Tuliano then shot back at Bustamante, ...