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Fielder v. Jenkins

Decided: March 25, 1993.

ROBIN FIELDER, PLAINTIFF-APPELLANT,
v.
FREDERICK S. JENKINS, TOWNSHIP OF NEPTUNE POLICE DEPARTMENT AND TOWNSHIP OF NEPTUNE, DEFENDANTS-RESPONDENTS, AND NOELLE E. STONACK, KEVIN MCGHEE AND BENNIE T. MCGHEE, DEFENDANTS



On appeal from Superior Court, Law Division, Monmouth County.

Pressler, R.s. Cohen and Kestin. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

N.J.S.A. 59:5-2b insulates public entities and their employees from liability for injury caused by an escaping person. In Tice v. Cramer, 254 N.J. Super. 641, 604 A.2d 183 (App.Div.), certif. granted, 130 N.J. 11, 611 A.2d 650 (1992), we held that this immunity protects police officers from claims of members of the travelling public who are injured by persons being pursued by police in a high-speed chase. We based this holding on our Conclusion that the statutory immunity afforded by N.J.S.A. 59:5-2b was intended to preserve the common-law immunity recognized in Roll v. Timberman, 94 N.J. Super. 530, 536, 229 A.2d 281 (App.Div.), certif. denied, 50 N.J. 84, 232 A.2d 147 (1967), in which we had ruled that a police officer is not answerable in tort "for damage caused by a vehicle operated by a fleeing law violator who is being pursued by the officer in the performance of his duty." In this case, the trial Judge applied the holding in Tice to insulate the pursuing officer and the township from liability for damage caused by the officer's alleged negligent driving, not the driving of the person being pursued. This was error.

The relevant facts of record on this improvidently granted defense motion for summary judgment are simple. Plaintiff Robin Fielder was a passenger in an automobile operated by defendant Noelle E. Stonack, which was proceeding south on Route 35 in Neptune Township. As the car approached the intersection of Routes 35 and 33, the light was green, and Stonack proceeded. Her vehicle was struck in the intersection by a patrol car of defendant Neptune Township being operated

eastbound on Route 33 by one of its police officers, defendant Frederick S. Jenkins. Jenkins, who had entered the intersection at a high rate of speed and against the light, was engaged in official duties. It appears that some short time earlier, defendant Kevin McGhee, driving a motorcycle owned by defendant Bennie T. McGhee, had been stopped for speeding in the neighboring town of Tinton Falls, and instead of submitting to the arrest, he rode off at high speed. The Tinton Falls officer pursued, requesting assistance from Neptune. Two other Neptune patrol cars responded before Jenkins did. Jenkins's was consequently the fourth police car in the chase when this accident occurred.

Plaintiff brought suit against, among others, Jenkins and Neptune Township, alleging that Jenkins had operated his motor vehicle negligently in the course of pursuing McGhee, even given the context of the emergency situation to which Jenkins was responding. Relying on the statutory immunity and Tice, Jenkins and Neptune moved for summary judgment dismissing the complaint against them. Plaintiff appeals from the order granting the motion. We reverse. In our view, the statutory immunity does not and was not intended to apply to the negligent driving of the pursuing officer. We base this Conclusion on the relevant section of the Tort Claims Act, N.J.S.A. 59:1-1 to 59:9-7, and on the public policies which underlie it.

To begin with, N.J.S.A. 59:5-2b, by its express terms, affords immunity from liability for the actions of the pursued person, not the pursuing person. It states that "Neither a public entity nor a public employee is liable" for:

b. any injury caused by:

(1) an escaping or escaped prisoner;

(2) an escaping or escaped person; or

(3) a person resisting arrest; or

(4) a prisoner to any other ...


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