On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Before Judges Shebell, D'Annunzio and A.a. Rodr¡guez.
The opinion of the court was delivered by: Shebell, P.j.a.d.
This appeal and cross-appeal are from the several grants of summary judgment that resulted in the dismissal of all claims against all defendants. We affirm.
On February 7, 1992, plaintiff filed a complaint seeking damages for injuries he suffered as a result of his being shot. Specifically, he alleged that defendant, Police Lieutenant, J.W. Corney and his employer, Township of Pennsauken, violated a special duty of care they owed to him because of Corney's alleged insufficient training and supervision in the removal of barricaded persons and in the utilization of civilian support services. He further alleged that defendant, Borough of Merchantville, negligently allowed one of its police officers to serve the summonses in a different municipality, thereby instigating a confrontation with the shooter, defendant, David Wirtz; that Wirtz was negligent in shooting him without just cause; and that defendant, Anna Klapproth, now deceased, was negligent in the storage of the weapon and in not knowing that her grandson, Wirtz, had removed the weapon from her home. The complaint was answered by all defendants except Wirtz.
On November 10, 1993, Klapproth filed a motion for summary judgment which was argued on December 17, 1993. The motion was granted. We denied plaintiff's motion for leave to appeal, and the Supreme Court denied certification.
On February 15, 1995, Merchantville moved for summary judgment. This motion was granted. Plaintiff then, on March 20, 1995, moved for reconsideration of the 1993 order granting Klapproth summary judgment. This was denied. On March 31, 1995, a summary judgment motion brought by Pennsauken and Corney was denied. Subsequently, plaintiff moved for reconsideration as to Merchantville. This was denied on April 28, 1995. On July 14, 1995, Pennsauken and Corney's second motion for summary judgment was denied.
On August 7, 1995, plaintiff moved for summary judgment as to all remaining defendants, and Pennsauken and Corney filed a cross-motion for summary judgment. Argument on the motions was held on September 11, 12 and 13, 1995, at the Conclusion of which Pennsauken and Corney's motion was granted. On October 20, 1995, plaintiff's motion for reconsideration with respect to Pennsauken and Corney was denied. Plaintiff sought leave to appeal with respect to this order for summary judgment, which was denied on December 8, 1995. A proof hearing was held, and on November 14, 1996, judgment was entered against Wirtz for damages in the amount of $2,348,307.96.
Plaintiff appeals and Merchantville, Pennsauken, Corney, and Klapproth cross-appeal.
The relevant facts begin on January 11, 1990, when Officers John Seeley and Bruce Bianchi of the Merchantville Police Department observed David Wirtz walking erratically in the street two feet from the curb. They had contact with Wirtz before and were aware that he exhibited erratic behavior. The officers told Wirtz to stop walking in the street, but shortly thereafter, they observed him continuing to walk in the street. Seeley told Wirtz to approach the vehicle and produce identification. Wirtz did this without incident. Seeley then conducted a pat-down search of Wirtz because he observed that Wirtz's pockets were bulging. Wirtz removed a four to five inch screwdriver from his pocket. Stepping back in a defensive position, he raised the screwdriver in a threatening manner, moving his arm up and down. According to Seeley, Wirtz was "raving," saying, "I'm not going to be touched by any faggot cops . . . . If they do, I'll kill them." Wirtz also threatened to kill Lieutenant Silvers, his former father-in-law, who, he claimed, had broken up his marriage. Wirtz asked if he was under arrest and then ran from the police, who were unable to find him.
The officers filed simple assault and resisting arrest charges against Wirtz. On February 5, 1990, two summonses ordering Wirtz to appear on March 5, 1990 in the Merchantville Municipal Court to answer the charges were issued.
On February 7, 1990, at approximately 5:30 p.m., a Merchantville patrol officer observed Wirtz walking on the street. He contacted his department and was instructed to proceed against Wirtz. When he called to Wirtz, Wirtz screamed "stay away from me" and ran towards his boarding house in Pennsauken, which was just across the border from Merchantville. The officer followed him and discovered that Wirtz had locked himself in his apartment. He refused to open the door and screamed repeatedly that the officer should go away and that he had been raped by various individuals, including the police.
The officers summoned back-up from the Merchantville and Pennsauken Police Departments. Upon arrival, Officer Whitmore of Merchantville attempted to speak with Wirtz. Whitmore was concerned because Wirtz had constantly been seen outside the back of the Merchantville police station watching the police at shift changes. Whitmore told Sergeant Cox of Pennsauken about the January 11 incident when Wirtz "had threatened to kill any cop that came near him," and that the Merchantville municipal Judge wanted Wirtz arrested. Whitmore and Cox agreed that a crisis worker should be called. Cox then called the Steininger crisis center, as well as the defendant, Lieutenant J.W. Corney, of the Pennsauken Police Department, for assistance.
Whitmore and Cox told Corney that it was the Judge's desire that Wirtz be arrested. However, Corney told them he was not inclined to do so because of Wirtz's mental state. He suggested the summons should be thrown under the door. He did not believe Wirtz posed a threat to anybody, including himself. Corney repeated this to his captain, who arrived at the scene. He told the captain: "f they want to get a warrant and bring a warrant over, got a new ball game. Got a summons, I'm not bringing him in. . . ." Whitmore, Cox and Corney then agreed to wait until the crisis worker arrived.
Plaintiff, certified by the State Division of Mental Health as a crisis intervention specialist, had previously instructed both Merchantville and Pennsauken police in handling crisis situations. He, together with another crisis worker, Paul Snyder, arrived at the scene and Corney explained what had happened. According to Corney, he told them that Merchantville had a summons for Wirtz and that it was impossible to communicate with Wirtz because he kept claiming everyone was trying to rape him. Plaintiff claims he was told that there was an outstanding warrant for Wirtz's arrest. Plaintiff told Corney that because Wirtz had threatened a police officer, Wirtz needed to be taken into custody and evaluated, which could be done after Wirtz was taken to jail. Plaintiff attempted to speak with Wirtz, but Wirtz kept repeating that he did not "talk to niggers because niggers raped him." Snyder then attempted to talk to Wirtz, but Wirtz refused claiming that Snyder was a white doctor and that white doctors had raped him. From these encounters, plaintiff concluded that Wirtz was suffering from "bizarre delusional behaviors and thoughts," which was an additional reason for Wirtz to be "brought in" for evaluation.
Corney checked with other residents of the boarding house and was told that Wirtz was sometimes seen with a knife in his possession, but that he had not been seen with a knife that day. Corney obtained a key to Wirtz's room from the landlord, and the officers and plaintiff then planned the strategy they would use to apprehend Wirtz. Corney said they would need some sort of protection, and plaintiff suggested using a rolled-up rug, which plaintiff said he had used several times in subduing individuals. Corney agreed to enter the room and if there was a problem, plaintiff could throw the rug on Wirtz.
Corney unlocked the door and it opened only a short distance because there was a chain on the door. Plaintiff told Corney to step aside, and plaintiff forced the door open. As Corney and plaintiff entered the darkened room, Wirtz fired a .22 caliber rifle he had stolen from the Klapproth house. The bullet struck plaintiff, exited through his back, and then struck another officer. Wirtz was eventually apprehended.
In arguing it was error to grant Pennsauken and Corney summary judgment, plaintiff maintains that immunity under N.J.S.A. 59:5-2b(3) is not applicable because Pennsauken and Corney did not offer evidence that an arrest was intended. In the alternative, plaintiff claims summary judgment was inappropriate because there is a factual dispute as to whether an arrest was intended.
We are satisfied that Pennsauken and Corney are entitled to immunity under N.J.S.A. 59:5-2b(2) and (3), because Wirtz was avoiding detention. Under N.J.S.A. 59:5-2b, neither a public entity nor a public employee is liable for 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 prisoner.
Because Wirtz was not a prisoner, b(1) and b(4) are not applicable. Pennsauken and Corney are, however, entitled to immunity under b(2) and b(3).
In granting summary judgment to Pennsauken and Corney, the Judge addressed the issue of whether an arrest was intended for purposes of the resisting arrest immunity under N.J.S.A. 59:5-2b(3):
This Court must look at the acts and the actions as to what was transpiring at the time of the event rather than the language that was used by an of the individuals at the time of the event.
Recognizing the situation where they first attempted to talk Mr. Wirtz into coming out from the room where he had barricaded himself and then decided to break down the door and forcibly take him into custody and restrain his freedom, it is this Court's determination that that language and those actions equal the actions anticipated by the legislature when they use the term a person resisting arrest.
Mr. Wirtz obviously was resisting being taken into custody. When the police authorities take one's physical being into custody and restrain that physical being from utilizing his freedom, that is an arrest. No ...