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Kollar v. Lozier

January 17, 1996

ELMER KOLLAR AND PATRICIA KOLLAR, CO-ADMINISTRATORS AD PROSEQUENDUM OF THE ESTATE OF MARK KOLLAR, AND ELMER KOLLAR AND PATRICIA KOLLAR, PLAINTIFFS-APPELLANTS,
v.
KENNETH LOZIER, DONALD DAWSON, MARIO MUSSO, ROBERT BUCHANAN, PRINCETON BOROUGH, PRINCETON TOWNSHIP, AND PRINCETON TESTING LABORATORIES, INC., DEFENDANTS-RESPONDENTS, AND CIRTON, INC., T/A CONTE'S BAR AND JOHN DOES I THROUGH X, DEFENDANTS. *FN1



On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

Approved for Publication January 17, 1996.

Before Judges Dreier, A.m. Stein and Cuff. The opinion of the court was delivered by Cuff, J.A.D.

The opinion of the court was delivered by: Cuff

The opinion of the court was delivered by CUFF, J.A.D.

Mark Kollar died in a one-car accident soon after midnight on May 1, 1986. His parents, plaintiffs Elmer and Patricia Kollar, as co-administrators ad prosequendum and individually, commenced this action against the Princeton Borough police officers (defendants Kenneth Lozier and Donald Dawson) who had commenced a chase prior to the accident, Princeton Borough, the Princeton Township police officers who investigated the accident (defendants Mario Musso and Robert Buchanan), Princeton Township, their son's employer (defendant Princeton Testing Laboratories, Inc.), and the bar where he had been prior to the accident (defendant Cirton, Inc., t/a Conte's Bar). The bar settled. After a protracted procedural history, several motions for summary judgment were granted and all state and federal claims against all defendants were dismissed.

On appeal, plaintiffs contend that the motion Judges erred by applying the immunity provisions of the Tort Claims Act to bar their claims against Princeton Borough and its officers. They argue that the motion Judges erred by dismissing their federal civil rights claims against defendant Princeton Borough and its officers and the respondent superior claims against the Borough. They also contest the dismissal of the commercial host liability claims against decedent's employer and the dismissal of all state and federal claims against defendant Princeton Township and its investigatory officers. We affirm.

During the evening of April 30, 1986, Mark Kollar and some of his co-workers at Princeton Testing Laboratories participated in a softball game at a field in Princeton. After the game, they adjourned to Conte's Bar on Witherspoon Street in Princeton where they ate pizza and drank beer from approximately 8 p.m. until midnight.

Shortly before midnight, Kollar left the bar and mounted his motorcycle. At approximately 12:15 a.m., Kollar was travelling on Mercer Street in Princeton behind two cars. At about the same time that Kollar and the two preceding cars turned onto Alexander Road heading towards Route 1, defendants Lozier and Dawson of the Princeton Borough police were approaching the same intersection from the other direction. They also turned onto Alexander Road and were travelling behind Kollar.

The officers observed Kollar's motorcycle weave from side to side, crossing into the opposite lane several times. As the four vehicles approached the intersection of Alexander Road and University Place, the first car turned left onto University Place and the officers activated their overhead lights to pull Kollar to the side of the road. Kollar, however, tried to pass the car immediately in front of him, narrowly avoided a collision with oncoming traffic, and swerved back behind the preceding car.

With lights and sirens activated on the police car, Kollar, the preceding car, and the police vehicle continued to travel on Alexander Road towards Princeton Township and Route 1. As the three vehicles approached the intersection of Alexander Road and Faculty Road, the first car pulled to the side of the road, but Kollar accelerated rapidly and ran a red light at the Alexander Road-Faculty Road intersection. The Princeton Borough officers continued their pursuit with siren and lights activated and radioed their headquarters to alert the West Windsor Township police that Kollar was headed in their direction. Within seconds, however, Kollar again accelerated his motorcycle to a speed estimated by onlookers as over 80 m.p.h., failed to negotiate the first turn, crossed the oncoming traffic lane and crashed into a guardrail.

When defendants Lozier and Dawson arrived at the scene, they found Kollar pinned face down to the ground and onto part of the guardrail by the motorcycle. Lozier radioed for help and obtained the first aid box. Dawson remained with Kollar trying to detect a pulse. Kollar was transported to a nearby hospital but was declared dead at 1:47 a.m.

Princeton Borough Police Sergeant William T. Clark, Lozier and Dawson's supervisor, arrived at the scene with the first aid squad. Soon thereafter, defendant Princeton Township Police Officer Buchanan and his supervisor, defendant Lieutenant Musso, arrived at the scene and began an investigation. Toxicology reports revealed that Kollar had a blood alcohol level of 0.108 percent and a brain alcohol level of 0.159 percent.

Plaintiffs contend that Judge Judith Yaskin erroneously applied the immunity provisions of the Tort Claims Act, specifically N.J.S.A. 59:5-2b(2), to dismiss their state claims against Princeton Borough, Lozier and Dawson. They argue that their pursuit of Kollar violated a general order and, therefore, constituted willful misconduct.

General Order 83-3 of the Princeton Borough Police Department was promulgated to guide officers concerning pursuit of violators of the motor vehicle code. Generally, police officers are prohibited from initiating a high-speed pursuit based solely on a non-moving motor vehicle violation. If, however, the motor vehicle offender "presents a condition hazardous to the population at large because of the nature of the crime ... ...


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