On appeal from the Superior Court, Appellate Division, whose opinion is reported at 274 N.J. Super. 485 (1994).
The opinion of the Court was delivered by Wilentz, C.j. Justices Handler, Pollock, O'Hern, Garibaldi and Coleman join in Chief Justice Wilentz's opinion. Justice Stein has filed a separate Concurring opinion.
The opinion of the court was delivered by: Wilentz
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
ROBIN FIELDER V NOELLE E. STONACK ET AL (A-115-94)
Argued March 27, 1995 -- Decided July 6, 1995
WILENTZ, C.J., writing for the Court.
On July 27, 1989, Officer Frederick Jenkins of the Neptune Police Department was operating a police car involved in the pursuit of a motorcycle beading toward the heavily travelled intersection of Routes 33 and 35. A signal light controls the flow of traffic through that intersection. The motorcycle and two police vehicles proceeded through the intersection under a green light. By the time Officer Jenkins reached the intersection, the light had turned red. Noelle Stonack was driving a car southbound on Route 35. As the Stonack vehicle entered the intersection under a green light, it collided with Officer Jenkins's vehicle, resulting in severe injury to Robin Fielder who was seated in the front passenger seat of Stonack's car.
Fielder sued, among others, Officer Jenkins, the Neptune Police Department and the Township of Neptune (defendants) to recover damages for her injuries. Defendants filed a motion for summary judgment, claiming immunity under the New Jersey Tort Claims Act (Act). The trial court granted the motion and, relying on the Appellate Division decision in Tice v. Cramer, held that defendants were immune from liability under the Act as a matter of law.
The Appellate Division, in Fielder I, reversed the decision of the trial court, finding that the sections of the Act relied on in Tice, N.J.S.A. 59:5-2b and 3-3, were inapplicable since Tice involved an injury that resulted from a collision between the pursued vehicle and an innocent third party. The court held that N.J.S.A. 59:5-2(b) (section 5-2b), which immunizes a public entity or public employee from liability for any injury caused by an escaping person or person resisting arrest, does not apply when the injury was caused by the pursuing officer. The court also found that N.J.S.A. 59:3-3 (section 3-3), which provides immunity for a public employee who "acts in good faith in the execution or enforcement of any law," does not apply to the negligent operation by a police officer of his patrol car.
On July 28, 1993, four months after Fielder I was decided, this Court affirmed the Appellate Division decision in Tice, holding "that police officers are absolutely immune under [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." Defendants filed a second summary judgment motion, arguing that Tice effectively overruled the Appellate Division's holding in Fielder I. The trial court denied the motion.
On appeal, the Appellate Division, in Fielder II, affirmed the trial court's denial of summary judgment, concluding that, among other things, the common law and relevant statutes prior to the Act recognized the same distinctions that it drew in Fielder I and that the Act adopted this distinction as supported by section 5-2b.
The Supreme Court granted defendants' motion for leave to appeal.
HELD : Absent willful misconduct, N.J.S.A. 59:5-2b(2) provides absolute immunity to a police officer whose negligence in pursuing a fleeing automobile causes injury to a third patty. Because genuine issues of material fact exist as to whether the officer's conduct during the pursuit constituted willful misconduct, summary judgment is inappropriate.
1. The distinction adopted by the Appellate Division departs from tort law concerning automobile negligence, wherein liability ordinarily depends on negligence and causation, not on which cars were involved in the actual collision. This is an automobile negligence case, although liability is ultimately governed by the Act. It is unlikely that the Legislature would alter tort law without some clear indication of legislative intent to do so. (pp. 10-12)
2. The Legislature's intent in codifying the immunity found in section 5-2b was to ensure that police officers' pursuits of escaping drivers not be inhibited by the threat of civil liability, if there is an accident; the goal was to free law enforcement from the threat of civil liability, so that it can function effectively to protect the public in difficult and dangerous situations, absent willful misconduct. That immunity, now firmly established in Tice as serving the legislative goal of effective police pursuit, must be given the scope intended by the Legislature. The Appellate Division decision clearly diminishes the effectiveness of pursuit and cancels the purpose found as a basis for immunity in Tice. Moreover, the effect of the decision below would not be limited to high-speed pursuit. (pp. 14-20)
3. There is no meaningful distinction between Tice and this case. The language of section 5-2b(2) encompasses injuries caused directly by either the pursuing officer or the escaping person. To deny the officer immunity would render the Act meaningless and would defeat the purpose of section 5-2b(2). The Legislature could not have intended to confer immunity when the pursued vehicle is involved in the collision but to deny immunity when the collision involves the police vehicle. (pp. 20-29)
4. Section 5-2b(2) provides absolute immunity, absent willful conduct. In defining willful misconduct pursuant to section 5-2b(2), the Court is mindful of the legislative goal. In the context of a Police officer's enforcement of the law, including the pursuit of a fleeing vehicle, willful misconduct is ordinarily limited to a knowing violation of a specific command by a superior, or a standing order, that would subject the officer to discipline. Willful misconduct in a police vehicular chase has two elements: (1) disobeying either a specific lawful command of a superior or a specific lawful standing order and (2) knowing of the command or standing order, knowing that it is being violated and, intending to violate it. The defense of good faith in the enforcement or execution of the law is unavailable when the public employee is guilty of willful misconduct. However, proof of lack of good faith does not equate with willful misconduct but may be relevant to the employee's state of mind. (pp. 29-36)
5. Although Officer Jenkins is entitled to immunity under section 5-2b(2), in order to justify summary judgment, he must establish that there is no genuine issue of material fact in respect of any of the elements of the willful misconduct standard. Here, genuine issues of material fact may exist in respect of: 1) Officer Jenkins' apparent violation of an internal department policy when he left his designated zone of patrol to participate in the pursuit of the motorcycle; and 2) his continuing pursuit after a radio transmission from his supervisor ordering Neptune Township officers to terminate the pursuit should the situation become dangerous to themselves or others. Therefore, summary judgment on behalf of Officer Jenkins is not warranted. Neptune Township, however, is entitled to summary judgment. (pp. 36-40)
6. Police officers engaged in pursuit of fleeing drivers are acting within the scope of their duty to uphold motor vehicle laws and are, therefore, executing or enforcing the law within the meaning of section 3-3. To obtain summary judgment under that section, a public employee must establish that his or her conduct is objectively reasonable, and, if not objectively reasonable, the employee can raise the defense of subjective good faith at trial. Although section 3-3 applies to police officers engaged in pursuits, section 5-2b(2), which is specifically aimed at encouraging pursuit, better serves that purpose. Therefore, the Court bases its holding only on section 5-2b(2). (pp. 40-47)
Judgment of the Appellate Division is AFFIRMED in part and REVERSED in part and the matter is REMANDED to the trial court for proceedings consistent with this opinion.
JUSTICE STEIN, Concurring in the Court's judgment, writes separately to state his view that relying on section 3-3 as a basis for the police officer's immunity better comports with the plain language of the Act. The plain language of section 3-3, as well as the judicial construction of that provision, provides immunity to those officers who injure others in the course of a pursuit executed in good faith. Rather than extend the application of section 5-2b(2) to situations not within the plain and clear purview of the statutory language, Justice Stein would apply section 3-3, which specifically provides for such immunity.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in CHIEF JUSTICE WILENTZ'S opinion. JUSTICE STEIN concurs in the judgment of the Court and wrote a separate Concurring opinion.
In Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090 (1993), we decided that the Tort Claims Act provides immunity to police officers whose negligence in pursuing a fleeing automobile causes it to injure third parties. We based our Conclusion on the history of the Act, its New Jersey common-law antecedents, its California precedents, and the legislative intent not to impede such pursuit by the threat of civil liability if accidents occur. In this case, the material facts are essentially the same except for the coincidence that the officer's negligence led to a collision in which his car, rather than the escaping person's car, collided with the third party's vehicle. The Appellate Division held that Tice immunity did not apply; that the result depended on which car hit the third party's car; that despite similar exigencies of the pursuit and the extent of the officer's negligence, if the fleeing car hit a third party because of that negligence, the officer was immune, but if his car hit it, he was liable. We reverse on that issue. The officer is immune in both cases.
On July 27, 1989, Officer Susan Wallace of the Tinton Falls Police stopped a motorcycle for speeding. The vehicle, owned by Bennie McGhee and driven by his son Kevin McGhee, had been recorded by radar travelling at 78 miles per hour on Route 33. The driver did not have a license or registration with him but gave the officer his name and address. When Officer Wallace returned to her patrol car to see if there was a record of the driver's license, Kevin McGhee jumped on the motorcycle and drove east on Route 33 towards Neptune Township at a high rate of speed. Officer Wallace requested assistance from the Neptune Police and proceeded to chase the McGhee motorcycle. She was promptly joined in the pursuit by two additional patrol cars.
Officer Frederick Jenkins of the Neptune Police Department was on routine patrol in the Shark River Hills section of the township when he heard the dispatcher relay the request for assistance. Although the motorcycle was not fleeing through his zone of patrol, and department policy apparently provided that officers not leave their zone unless instructed to do so by a commanding officer, Officer Jenkins proceeded to Route 33 with the intention of joining the pursuit. According to Officer Jenkins, while waiting to turn onto Route 33, he observed the motorcycle followed by two Tinton Falls patrol cars. He turned onto Route 33 and joined the pursuit behind these two patrol cars. A short time later, in the vicinity of Jersey Shore Medical Center, another Neptune patrol car joined the chase in front of him. There is some disagreement among the witnesses about the identity and number of the patrol cars ahead of Officer Jenkins. The undisputed fact, however, is that by the time the chase reached Jersey Shore Medical Center, Officer Jenkins' vehicle was either the third or fourth police car involved in the pursuit of the motorcycle.
Prior to Officer Jenkins reaching the intersection of Routes 33 and 35, Sergeant Blecki, the Neptune shift commander, radioed all Neptune mobile units participating in the pursuit and ordered that they terminate pursuit if there was a risk of danger to themselves or others. The intersection of Routes 33 and 35 is one of the most heavily traveled in Monmouth County. A signal light controls the flow of traffic. The motorcycle and the first two or three pursuing patrol cars sped through the intersection with the green light in their favor. A witness at the scene stated that these vehicles were about a minute ahead of Officer Jenkins. Jenkins himself stated that at this point he could not see the motorcycle, but could see the rear of the last patrol car. Before Officer Jenkins entered the intersection, the light turned red. Officer Jenkins stated that he activated both siren and warning lights, slowed down and looked for cross traffic before entering the intersection. There is disagreement, however, among the parties and other witnesses about whether, and if so, when the siren was activated. Defendant Noelle Stonack was driving Southbound on Route 35 with plaintiff Robin Fielder in the front passenger seat. As the Stonack vehicle entered the intersection with the green light in her favor, her vehicle and Officer Jenkins' patrol car collided, resulting in severe injury to Fielder.
Fielder filed a complaint against Stonack, the McGhees, Officer Jenkins, the Neptune Police Department and the Township of Neptune to recover damages for her injuries. The defendants *fn1 filed a motion for summary judgment claiming immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The court granted the defendants' motion and, relying on the Appellate Division's decision in Tice v. Cramer, 254 N.J. Super. 641, 604 A.2d 183 (1992), held that they were immune from liability under the Tort Claims Act as a matter of law.
The Appellate Division granted plaintiff Fielder's motion for leave to appeal and reversed the trial court's order granting summary judgment. Fielder v. Jenkins, 263 N.J. Super. 231, 622 A.2d 906 (App. Div. 1993) (Fielder I). The court noted that it was error for the trial Judge to rely on the holding of Tice since that case involved an injury which resulted from a collision between the pursued vehicle and an innocent third party. The Appellate Division in Tice had relied on two separate sections of the Tort Claims Act for its holding, N.J.S.A. 59:5-2(b) and 3-3, *fn2 but the Appellate Division in Fielder I held that neither section applied to the facts before it.
The court held that N.J.S.A. 59:5-2(b), which immunizes a public entity as well as a public employee from liability for any injury caused by an escaping person or person resisting arrest, was not applicable to a case in which the injury is "caused by" the pursuing officer. "If the pursuing police officer himself is involved in the accident, the proximate cause of the accident is, if he was driving negligently, his own conduct as a driver. To that extent he, not the person he was pursuing, caused the injury." Fielder 1, 263 N.J. Super. at 235. The Appellate Division went on to reject N.J.S.A. 59:3-3, the second provision relied on by the Tice court, which provides immunity for a public employee who "acts in good faith in the execution or enforcement of any law." N.J.S.A. 59:3-3. "We are satisfied . . . that this section does not apply to negligent operation by a police officer of his patrol car." Fielder I, 263 N.J. Super. at 236. The court further noted that N.J.S.A. 39:4-91, which states that drivers must yield the right of way to emergency vehicles, nonetheless requires the driver of the emergency vehicle to "drive with due regard for the safety of all persons." Id. at 235-36 (quoting N.J.S.A. 39:4-91). The Appellate Division reversed the grant of summary judgment and remanded for trial.
On July 28, 1993, four months after the Appellate Division decided Fielder I, this Court affirmed the Appellate Division decision in Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090 (1993), holding "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." Tice, supra, 133 N.J. at 351. The defendants filed another motion for summary judgment in the trial court on the grounds that Tice effectively had overruled the Appellate Division's holding in Fielder I. They asserted that under the holding of Tice a police officer had absolute immunity from liability, in the absence of willful misconduct, for injuries sustained in a collision between the officer's car and an innocent third party, and that they were therefore immune from liability as a matter of law. While acknowledging language in the Tice decision which questioned the Conclusion in Fielder I, the trial court held that it did not amount to an overruling of Fielder I and denied the motion for summary judgment.
The Appellate Division granted interlocutory appeal and affirmed the trial court's denial of summary judgment. Fielder v. Jenkins, 274 N.J. Super. 485, 644 A.2d 666 (App. Div. 1994) (Fielder II). The Appellate Division concluded that prior to the Tort Claims Act, the common law and relevant statutes recognized the same distinction that it drew in its decision below, and that the Tort Claims Act adopted it, granting immunity if collisions involved the escaping vehicle but imposing ordinary common-law liability if the officer's car was involved; that the language of N.J.S.A. 59:5-2b supports that Conclusion; that such a Conclusion accords with "our present system of socially responsible jurisprudence," a "basic tenet" of which is "by insurance coverage to spread the risk of compensating individual victims of negligence," id. at 491; that conferring immunity "upon any motorist from the consequences of his own negligent driving" is inconsistent with our "long history of legislative solicitude for the innocent motorist," id. at 492 (emphasis added); that "public protection requires the imposition upon police officers of a duty of care commensurate with the circumstances" when they drive, ibid.; that it was "aware of no situation in which a person is not charged with liability for the consequences of his own negligent driving" and that it did "not believe the Tort Claims Act so requires when the negligent driver is a police officer," id. at 493; and, finally, that other jurisdictions make this same distinction. Id. at 493-94.
We treat these views of the Appellate Division, including the underlying theme that there is a difference between the two situations. We address the Appellate Division's rejection of the Act's "good faith" defense. Finally, we deal with that court's holding that apart from the foregoing considerations, all leading the Appellate Division to affirm the trial court's denial of the officer's motion for summary judgment, there was yet an alternative ground for such denial: that even if the officer was otherwise immune, the record on the summary judgment motion did not foreclose a finding of willful misconduct, id. at 495, a finding which would deny immunity under the Act. N.J.S.A. 59:3-14.
The distinction adopted by the Appellate Division departs from our tort law concerning automobile negligence. Pursuant to that law, liability ordinarily depends on negligence and causation, not on which cars were involved in the actual collision. We have no doubt there are many cases holding drivers liable even though their car was not involved in a collision, it their negligence caused it, including some reported, e.g., Andreassen v. Esposito, 90 N.J. Super. 170, 216 A.2d 607 (App. Div.), certif. denied, 46 N.J. 605 (1966), as well as cases holding drivers whose cars were involved in the collision not liable if their negligence did not cause the collision, e.g., Ryslik v. Krass, 279 N.J. Super. 293, 652 A.2d 767 (App. Div. 1995). The Appellate Division's construction of the Tort Claims Act, furthermore, would remove immunity completely on those fairly frequent occasions where neither the pursued vehicle nor the police car is involved in the collision, where innocent motorists crash into each other's cars as a result of the high-speed chase and the concurrent negligence of the drivers of the pursued vehicle and the police vehicle. The "who hit whom" approach would immunize the negligent police officer if the pursued vehicle smashed into these other cars, but not if it ...