On appeal from Superior Court, Law Division, Monmouth County.
Before Judges Pressler, Dreier and Kleiner.
The opinion of the court was delivered by
This appeal on leave granted requires us once again to address the tort liability of police officers who, while engaged in the vehicular pursuit of violators or suspected violators of the law, disregard the rules of the road, become involved in motor vehicle accidents, and inflict injury and loss upon innocent members of the driving public. In our first consideration of this case, Fielder v. Jenkins, 263 N.J. Super. 231, 622 A.2d 906 (App. Div. 1993) (Fielder I), we distinguished, for immunity purposes, between an accident directly involving the pursued person and an accident directly involving the pursuing officer, and we concluded that the immunities
afforded by N.J.S.A. 59:5-2b and N.J.S.A. 59:3-3 do not apply when it is the pursuing police officer rather than the pursued violator whose vehicle is involved in the accident. Dictum in the subsequent opinion of the Supreme Court in Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090 (1993), raised questions about the correctness of that holding, and we have reconsidered it in the light of Tice. We continue, however, to adhere to our original view.
The present factual and procedural posture of the matter now before us is simple. In Fielder I, we summarized the facts then before us as follows:
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 driven by defendant, Officer 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. [263 N.J. Super. at 233-234.]
Based on these facts, Neptune Township and Jenkins moved for summary judgment dismissing plaintiff's ensuing complaint against them. They argued that they were immunized from liability to plaintiff for her ensuing injuries by N.J.S.A. 59:5-2b and N.J.S.A. 59:3-3. The trial Judge agreed. We reversed, holding that those statutory immunities do not apply when it is the police officer rather than the pursued person who collides with the vehicle of an innocent motorist during the high-speed chase. We hence concluded that the usual rule of negligence defining the standard of care for drivers of emergency vehicles in emergency situations obtained. Accordingly, we remanded to the trial court for further proceedings. When the Supreme Court issued its opinion in Tice, Neptune and Jenkins renewed their motion for summary judgment, claiming that the principles there articulated afforded them immunity as a matter of law. The trial Judge
denied relief. We granted defendants' ensuing motion for leave to appeal, and now affirm the denial of the motion for summary judgment.
In addressing potential tort liability arising out of injuries sustained by innocent victims during the course of police pursuit of escapees, we drew, in Fielder I, what we regarded to be a critical distinction between accidents in which the police vehicle was involved and accidents in which only the vehicle of the pursued person was involved. The validity of that distinction was questioned ...