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Tice v. Cramer

Decided: July 28, 1993.

JOHN W. TICE, SR., ADMINISTRATOR AD PROSEQUENDUM OF JOHN W. TICE, JR., DECEASED, JOHN W. TICE, SR., GENERAL ADMINISTRATOR OF THE ESTATE OF JOHN W. TICE, JR., DECEASED, AND JOHN W. TICE, SR., AND RITA TICE, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ROBERT CRAMER, CITY OF WILDWOOD POLICE DEPARTMENT, AND CITY OF WILDWOOD, JOINTLY, INDIVIDUALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS, AND WILLIAM G. LOGAN, JR., DEFENDANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 254 N.J. Super. 641 (1992).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- none. The opinion of the Court was delivered by Wilentz, C.J. O'Hern, J., Concurring. Clifford, J., Concurring in judgment. Justices Handler and Pollock join in this opinion. Justices Clifford, Handler, Pollock and O'Hern concur in result.

Wilentz

[133 NJ Page 350] We face the question whether police officers in pursuit of a vehicle that has failed to heed their command to stop are immune from liability for injuries resulting from the pursuit. The same question was raised in Roll v. Timberman, 94 N.J. Super. 530, 229 A.2d 281 (App.Div.), certif. denied, 50 N.J. 84, 232 A.2d 147 (1967), in a common law context; here the officer's immunity is asserted under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :14-4

(the Act). We hold that police officers are absolutely immune under N.J.S.A. 59:5-2b(2) for injuries resulting from their pursuit of a person who has failed to stop at police command even though the injuries would not have occurred but for the negligence of the police.

We note the controversy surrounding the matter: the claim that unless there is such immunity, police officers will be reluctant to enforce the law vigorously for fear of liability, and the opposing claim that such pursuits result in a large number of unjustified injuries that can be diminished only by the imposition of liability. That policy question is for the Legislature, which, as we read the law, has answered it in favor of absolute immunity, absent willful misconduct on the part of the police officer.

I

John W. Tice, Sr., acting on behalf of the estate of John W. Tice, Jr., (Tice or plaintiffs) sued defendants City of Wildwood and Robert Cramer, the pursuing officer, and defendant William G. Logan, driver of the fleeing vehicle that ultimately crashed into Tice's pickup truck. Suits were also brought by passengers in the Logan and Tice vehicles and the survivors of one passenger who was killed, as well as by Logan, all of which were settled and are not involved in this appeal. Tice obtained a consent judgment against Logan. We deal only with the claims arising from Tice's death asserted against the City of Wildwood and its police officer Robert Cramer.

The critical facts are largely undisputed. The pursuit started about 8:30 p.m. on November 12, 1985, in the City of Wildwood. Officer Cramer had been dispatched by the police to investigate a melee at a tavern in the City. As he approached the tavern, he noticed a car with its lights out, operated by Logan, with three male occupants pull out of a parking lot across the street from the tavern. Officer Cramer alleged that the car nearly hit his, and that after he started to follow it, a hammer was thrown out of the car in his direction. The pursuit began, and continued through

the streets of Wildwood until the Logan vehicle, having gone through three stop signs, went through a fourth and at that fourth intersection crashed into the Tice vehicle, resulting in Tice's death.

Cramer and the City moved for summary judgment. Based on the materials before the trial court on the motion, a jury could have found that Cramer had no sound reason to believe Logan or his passengers had been involved in the disturbance at the tavern or had thrown any hammer out of the car. It could also have found that initially the Logan vehicle had been traveling at a normal rate of speed; that Cramer had initiated the pursuit; that he had done so despite the fact that the Logan vehicle, with its lights out, traveling on a foggy night, had shown no signs that it would stop as a result of the pursuit; and that he had continued the pursuit nevertheless at very high rates of speed, coming within one or two car lengths of the Logan vehicle, through stop signs, going the wrong way on a one-way street for one block, for a period of almost five minutes until the tragedy occurred. Defendant Cramer's version of the situation is quite different, but for the purpose of the summary judgment motion and this appeal plaintiffs are entitled to the most favorable view of the evidence that a jury might take.

The record indicates that Officer Cramer activated the sirens and flashing lights of the patrol car for the purpose of compelling Logan to stop. Logan admits that he was aware that he was being pursued by police. Logan claims that the only reason he did not stop was that one of his passengers held a tire iron to his throat and threatened to kill him if he did.

Tice's claim against the City is based not only on Cramer's alleged negligence but on the alleged failure of the City to establish adequate pursuit rules to train and instruct its officers about pursuit, the only standard promulgated by the City alleged to be so general as to be meaningless. Tice proffered expert testimony on the need for police training based on the large number of injuries that result from pursuits.

It is clear that a jury could have found the police officer negligent in having failed to terminate the pursuit and in the manner in which it was conducted. The basic premise of such a finding would have been that the officer, obliged to exercise reasonable care for the safety of the public, should have known that the risk of injury involved in the pursuit was not justified by the need to stop or capture Logan. And, under similar common law principles, the City could have been found negligent for failing adequately to train and instruct its officers on the subject of pursuit. Furthermore, in both cases, a jury could have found that but for the officer's negligence, and but for the City's negligence, the accident would not have occurred.

The trial court granted defendants' motion for summary judgment on two bases. First, it ruled that Roll, supra, 94 N.J. Super. at 536-37, 229 A.2d 281, established immunity of police officers under these circumstances and that this common law immunity was incorporated in and continued by the Act. See N.J.S.A. 59:3-1b and 2-2b, discussed later. Second, it ruled that N.J.S.A. 59:5-2b(2) and :5-2b(3) expressly provided the same immunity. Those sections immunize public entities and public employees for "any injury caused by . . . an escaping or escaped person," N.J.S.A. 59:5-2b(2), and "a person resisting arrest." N.J.S.A. 59:5-2b(3). On appeal, the Appellate Division affirmed, relying on Roll and section 5-2b(2), holding further that N.J.S.A. 59:3-3 provides an additional basis for immunity. Tice v. Cramer, 254 N.J. Super. 641, 646, 649, 604 A.2d 183 (1992). That latter section of the Act affords a public employee immunity "if he acts in good faith in the execution or enforcement of any law." N.J.S.A. 59:3-3.

Before us, plaintiffs renew the same claims of liability: that Officer Cramer is liable under the Act's general liability provision that "[e]xcept as otherwise provided by this act, a public employee is liable for injury caused by his act or omission to the same extent as a private person," N.J.S.A. 59:3-1a, and that the City is liable under the cognate section, N.J.S.A. 59:2-2a ("A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same

manner and to the same extent as a private individual under like circumstances."). Plaintiffs also claim that the immunities provided by N.J.S.A. 59:5-2b(2) ("an escaping or escaped person") and N.J.S.A. 59:5-2b(3) ("a person resisting arrest") are inapplicable, and in any event do not protect an employee whose negligence contributed to the injury; and finally they argue that the immunity provided for by N.J.S.A. 59:3-3 (the good faith protection) could not be adjudicated as a matter of law on summary judgment motion but required trial by jury.

Plaintiffs further claim that N.J.S.A. 39:4-91 imposed a liability on Cramer that "must take precedence over the general immunity provisions of Title 59." That section of the Motor Vehicle laws, in addition to providing that emergency vehicles have the right of way when responding "to an emergency call or in the pursuit of an actual or suspected violator of the law," also provides that "[t]his section shall not relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall it protect the driver from the consequences of his reckless disregard for the safety of others." Finally, plaintiffs contend that to the extent that Roll was the basis for the Appellate Division's holding that N.J.S.A. 59:5-2b(2) immunized Officer Cramer (it did not rule on N.J.S.A. 59:5-2b(3)), it had been misread by the Appellate Division -- it provided no immunity at all, it simply dispelled any notion that a police officer was the insurer of the conduct of a fleeing culprit regardless of the officer's negligence.

Defendants continue to maintain that N.J.S.A. 59:5-2b(2) absolutely immunizes both the police officer pursuing the fleeing vehicle and the public entity, the City. They claim that that section, expressly applicable to both the public entity and the public employee, immunizes the City not only for any respondeat superior liability but for liability on any theory, including a theory that asserts independent negligence apart from respondeat superior. They continue to assert that in addition to this explicit statutory provision, the common law ruling in Roll was adopted by the Act, providing a further basis for immunity. They also rely on

N.J.S.A. 59:3-3 (the good faith law enforcement defense) as interpreted and applied by the Appellate Division.

Amicus Policemen's Benevolent Association (PBA) suggests a new defense not raised by any of the parties: that defendants are immunized by the discretionary immunity provided by the Act (N.J.S.A. 59:3-2 and :2-3). But see Bethlehem Township Bd. of Educ. v. Bethlehem Township Educ. Ass'n, 91 N.J. 38, 48-49, 449 A.2d 1254 (1982) (amicus curiae must accept case before court as presented by parties and cannot raise issues not raised by parties).

II

We briefly review some of the general principles of the Act and their application to cases of this kind. Public entities are not liable for an injury, except as such liability may be provided for in the Act. N.J.S.A. 59:2-1; Chatman v. Hall, 128 N.J. 394, 402, 608 A.2d 263 (1992); see Bombace v. City of Newark, 125 N.J. 361, 372, 593 A.2d 335 (1991) (noting Act is intended "to reestablish a system in which immunity is the rule, and liability the exception"). The primary liability imposed on public entities is that of respondeat superior: when the public employee is liable for acts within the scope of that employee's employment, so too is the entity; conversely, when the public employee is not liable, neither is the entity. N.J.S.A. 59:2-2. Public employees are liable under the Act in the same manner as private individuals, N.J.S.A. 59:3-1a, unless there is an immunity "provided by law" (including the Act); and the public employee's liability is "subject to any defenses that would be available" were he a private person. N.J.S.A. 59:3-1b. The liability of the public entity must be found in the Act, and where found, is subject to any immunity found in the Act and further subject to any immunity previously established by common law. Manna v. State, 129 N.J. 341, 347, 609 A.2d 757 (1992); Pico v. State, 116 N.J. 55, 62-63, 560 A.2d 1193 (1989); Rochinsky v. State Dep't of Transp., 110 N.J. 399, 408-09, 541 A.2d 1029 (1988). Liability of the public employee, however,

may be found either in the Act or at common law but it too is subject to the immunities of the Act and the common law. Chatman, supra, 128 N.J. at 404, 608 A.2d 263. When both liability and immunity appear to exist, the latter trumps the former.

Those are the shorthand rules subject to potential variations, permutations, and combinations not yet fully developed by our cases. Rochinsky, supra, 110 N.J. at 408, 541 A.2d 1029; Costa v. Josey, 83 N.J. 49, 61, 415 A.2d 337 (1980) (Clifford, J., Dissenting); see also Chatman, supra, 128 N.J. at 402, 608 A.2d 263 (noting distinction between public-employee and public-entity liability analysis).

The subtleties that have divided this Court in some of those cases are not present here. They relate mainly to the precise scope of liabilities and immunities provided to employees at common law and to the Court's power further to develop the common law in this respect by clarifying, expanding, or restricting those liabilities and immunities and the immunities provided to public entities at common law. They relate also to the extent of flexibility the Legislature intended to vest in this Court in its interpretation of the Act. Chatman, supra, 128 N.J. at 404-05, 608 A.2d 263; Rochinsky, supra, 110 N.J. at 408, 541 A.2d 1029. They can relate also to the question whether an immunity conferred by common law and a liability conferred by the Act are actually in conflict. See Rochinsky, supra, 110 N.J. at 416-17, 541 A.2d 1029 (holding common law snow-removal immunity not in conflict with Act's duty to warn).

We do not have to grapple with these questions, including whether Roll conferred a common law immunity preserved by the Act, because we find that section 5-2b(2) confers absolute immunity, except where the police officer engages in willful misconduct.

III

The three bases for immunity urged by defendants are the common law immunity of Roll, said to be incorporated in the Act by virtue of sections 2-1b and 3-1b, and the express immunities

provided by sections 5-2b(2) and 3-3. Amicus PBA would have us also consider the discretionary immunity given to employees by N.J.S.A. 59:3-2a.

Insofar as immunity under Roll is concerned, we treat the issue since it was dealt with at length by the trial court and the Appellate Division and is the subject of conflicting Appellate Division decisions. Ultimately, it is irrelevant, for we find the statutory immunities applicable (and one of them, section 5-2b(2), dispositive here), their applicability and effect being independent of Roll.

Roll was a standard police pursuit case, a third party injured by the pursued vehicle. While the Appellate Division's Discussion in that matter is phrased in terms of "proximate cause" and the absence of " actionable negligence," 94 N.J. Super. at 538, 229 A.2d 281 (emphasis supplied), we agree with the Appellate Division below that the essence of Roll 's holding was that, as a matter of law, negligent pursuit by a police officer, even if factually a Concurring cause (along with the negligence of the pursued vehicle) of the injury, cannot result in liability. Despite evidence of negligence on the part of the officer, the matter is not to be submitted to a jury: there is no liability as a matter of law. We agree with the Appellate Division that such a holding is the functional equivalent of a grant of immunity to police officers under these circumstances.

Our Conclusion is based on the language of Roll. There, the Appellate Division stated as a general proposition that "[t]he decisive issue in this case is whether a police officer is liable 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," 94 N.J. Super. at 536, 229 A.2d 281, citing cases supporting "the majority view" that "the police officer is not liable." Ibid. Thereafter, the Roll court notes the contrary opinion of what it characterizes as "the minority view," namely, that "liability of pursuing police officers is a jury question," and its "accord with the majority view." Id. at 537, 229 A.2d 281. The result is a general

holding, not dependent on the conduct of the officer in that case, that such liability is not a jury question.

Obviously, other statements by that court make our Conclusion less than certain. See, e.g., id. at 538, 229 A.2d 281 ("We have carefully reviewed the record. We find no evidence of actionable negligence on the part of Officer Martin. His pursuit of Timberman was not the legal or proximate cause of the accident." (emphasis supplied)). As the Appellate Division in this matter observed, " Roll is not a model of clarity." 254 N.J. Super. at 648, 604 A.2d 183.

The cases cited in Roll, supra, 94 N.J. Super. at 536-37, 229 A.2d 281, in support of its holding are likewise ambiguous. However, these cases do reflect Roll 's theme: that as a matter of law a police officer is not liable in such a pursuit situation, that the issue does not even go to the jury. All of those said to be in the minority do not find such immunity and conclude that the matter of negligence should be submitted to the jury. We read the "proximate cause" language to mean only that the police officer's conduct never will be the "proximate cause" under these circumstances.

We therefore agree with the Appellate Division's decision in Blanchard v. Town of Kearny, 153 N.J. Super. 158, 379 A.2d 288 (1977), affirming on the trial court's opinion, 145 N.J. Super. 246, 367 A.2d 464 (Law Div.1976), that Roll immunizes the police officer at common law, and that such immunity continues under the general provision found in section 3-1b (subjecting liabilities of public employees to "any immunity of a public employee provided by law," including, as noted in the comment to the related provision concerning public entities, section 2-1b, "any immunity provisions provided in the act or by common law," Gann, N.J. Statutes Title 59, 1972 Task Force, comment on N.J.S.A. 59:2-1b). We disagree with the contrary Conclusion in Smith v. Nieves, 197 N.J. Super. 609, 485 A.2d 1066 (App.Div.1984), and Wood v. City of Linden, 218 N.J. Super. 11, 526 A.2d 1093 (App.Div.1987), cases that take the other view of Roll, namely, that it simply represents

a fact situation where there was no evidence of negligence whatsoever.

We note that this common law immunity was declared despite the urging of the plaintiffs in Roll that the Legislature through N.J.S.A. 39:4-91 had explicitly imposed a duty on pursuing police officers to act with due care and a consequent liability when their reckless disregard for the safety of others in such pursuit led to injury. The court in Roll simply noted that that statute "has no application in the present case. We are not here concerned with an issue involving the right of way of a police vehicle." 94 N.J. Super. at 535, 229 A.2d 281. (See also the Conclusion of the Appellate Division in this case that the section, adopted in 1928, "has nothing to do with the immunity scheme contemplated by the 1972 Tort Claims Act." 254 N.J. Super. at 651, 604 A.2d 183.) The treatment of that statute by Roll is of some importance here since it is again urged as a basis for police officer liability. Were there nothing else supporting immunity of a police officer in this situation, we would conclude that the common law rule that we find embedded in Roll is consistent with the Act, is incorporated in the Act, and overcomes the argument arising from N.J.S.A. 39:4-91.

The primary sources of immunity relied on by defendants are N.J.S.A. 59:5-2b(2) and N.J.S.A. 59:3-3. They provide as follows:

Neither a public entity nor a public employee is liable for:

a. an injury resulting from the parole or release of a prisoner or from the terms and conditions of his parole or release or from the revocation of his parole or release.

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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