On appeal from Superior Court, Law Division, Atlantic County.
Petrella, Baime and Conley. The opinion of the court was delivered by Petrella, P.J.A.D.
Judgment was entered in favor of defendant, Mullica Township, and two of its police officers, defendants Sergeant Larry Surkin and Patrolman James Wild, on the basis of the immunity provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. Specifically, the trial Judge held that N.J.S.A. 59:3-2(b) and N.J.S.A. 59:6-6 gave immunity from tort liability to the police officers in the exercise of their police functions and the performance of their duties in this case.
Plaintiffs Deanna Perona, her husband Frank Perona III, and their daughter Jacquelin Perona, appeal arguing that (1) N.J.S.A. 59:3-2(b) does not apply to police officers in the exercise of their police function; (2) the motion Judge misapplied N.J.S.A. 59:6-6, which they contend does not even apply to police officers in the
performance of their duties; (3) the motion Judge should have applied the standards contained in N.J.S.A. 30:4-27.6-.7; and (4) the police officers were required, given the circumstances, to take Deanna Perona into custody, especially when there was concern by the husband that she might be suicidal.
The incident involved in this case occurred on January 4, 1990, when Officers Surkin and Wild responded to a domestic violence complaint at the residence of Frank and Deanna Perona in Mullica Township. Upon arrival, Deanna Perona told Officer Surkin that there was no domestic dispute, though she was having a problem. As stated by Surkin at his deposition:
She [Deanna Perona] wanted to go for a walk, and her husband [Frank Perona] chased her, and brought her back to the house, and she just wanted him to understand that she is old enough that if she wants to go for a walk, she can be left alone and go for a walk.
According to Surkin, he explained to Frank Perona that the officers could not prohibit Deanna from taking a walk.
Frank Perona then told Surkin that he observed Deanna walking near traffic on Route 30. He also gave Surkin a handwritten note, which Deanna wrote, that provided in part:
Frankie, I love you and I always will. Please give my daughter the best of every thing[.] Please[,] that[']s my last wish. Please. Send her to Catholic school and get her into ballet. Make her a little lady. And find her a mother who cares for her honestly. Please have my dogs put to sleep[,] please. If you love me you will. Tell Joe and Mom and all my family I love them. Not my dad.
Please live your life for my daughter. Tell Kimmy I'm sorry and I love her and tell Dave he meant a lot to me. Please give Jacqueline every thing she wants.
Deanna Perona also wrote on the margin: "I loved you more than I ever showed it. I'm sorry but you just deserve better."
Frank Perona says he told the officers that he was concerned about Deanna's safety and welfare because she might commit suicide and, further, asked the police "to take whatever steps were necessary to detain her." As Surkin testified at his deposition:
He was upset over the contents of the note, stating that, and I can't quote him exactly, to the effect that he was worried about what the contents of the note were referring to.
After reading the note, Surkin asked Deanna Perona what she meant by it and why she wrote it. Deanna told him that the note reflected her wishes in case she decided to hitchhike and something happened to her.
Surkin did not ask either Frank or Deanna any further questions about the note because he was "fairly satisfied" with her response. Surkin stated: "She was very straightforward, very blunt with her answer. It didn't appear as if she was trying to cover up anything, or to side step the issue."
Neither officer followed up with further questions about the note. Surkin stated at his deposition, "[t]his could have easily been a statement made by a person who was going to go somewhere and maybe not return." Moreover, he considered the note as consistent with someone who "was intending to meet somebody, or get in the car with somebody and go, and not return to the residence and was leaving."
Surkin then inquired of Deanna Perona whether she was on any medication. Deanna responded that, although she had unfilled prescriptions, she was not on any medication. Her husband did tell Surkin that Deanna had been treated and released from a hospital several weeks before for depression. Surkin did not inquire further about her hospitalization because, according to him, Deanna did not seem depressed in the few minutes that he and Officer Wild spoke to her.
Based upon his conversation with and personal observations of Deanna Perona, as well as his belief that she could have simply intended to never return, Surkin concluded that there was nothing ...