Before Judges D'Annunzio, Newman and Fall.
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
This is an automobile personal injury negligence action against a police officer and his employer, the City of Perth Amboy. Plaintiff appeals from a summary judgment entered in favor of all defendants based on the "pursuit" immunity contained in N.J.S.A. 59:5-2b(2). We now reverse.
Officer Montalvo was on routine patrol operating a marked police vehicle on January 29, 1996. He was proceeding southbound on Convery Boulevard in Perth Amboy when he observed a van traveling northbound. Montalvo's radar device reported a 57 mile-per-hour speed for the van, 22 miles-per-hour above the posted speed limit. Montalvo made a U-turn and proceeded north on Convery Boulevard to stop the van. Montalvo reported that he had activated his vehicle's overhead lights.
Montalvo stated that as he approached the intersection of Convery Boulevard and Smith Street, he noticed plaintiff, a pedestrian, running across Convery from west to east against a red light. Plaintiff was looking north. Montalvo reported that he activated his siren to attract plaintiff's attention, but could take no evasive action due to southbound traffic and obstructions on his right. Montalvo's vehicle struck plaintiff, who sustained a comminuted fracture of his right leg and two fractures of his cervical vertebrae.
Plaintiff contends that he crossed Convery with a green light in his favor and that the overhead lights on Montalvo's vehicle were not on. He also stated that he heard no siren.
On the date of plaintiff's injury, N.J.S.A. 59:5-2b(2) (section 2b(2)) provided:
Neither a public entity nor a public employee is liable for: . . . any injury caused by . . . an escaping or escaped person[.]
In Fielder v. Stonack, 141 N.J. 101 (1995), and Tice v. Cramer, 133 N.J. 347 (1993), the New Jersey Supreme Court expansively applied section 2b(2) to provide absolute immunity for injuries sustained by third persons due to vehicular pursuits, whether the injuries were caused by the pursued, as in Tice, or the pursuer, as in Fielder. The only exception to this immunity is for "willful misconduct." N.J.S.A. 59:3-14a; Tice, supra, 133 N.J. at 367.
The core issue in the present case is whether Montalvo was engaged in a "pursuit" to which the immunity attaches. Tice and Fielder involved police chases of persons who had been ordered to stop, but elected to flee. The rationale of the immunity in those circumstances is to permit the police to perform their duties uninhibited by concerns regarding civil actions in the event of injury. Tice, supra, 133 N.J. at 351, 363; Fielder, supra, 141 N.J. at 113, 115. One impact of this immunity is to shift the burden of underwriting the cost of police pursuits to injured third parties.
The New Jersey Police Vehicular Pursuit Policy (Pursuit Policy), revised in January 1993, see Fielder, supra, 141 N.J. at 125, n. 5, informs our consideration of the issue. It defines a pursuit:
Pursuit driving is an active attempt by a law enforcement officer operating a motor vehicle and utilizing emergency warning lights and an audible device to apprehend one or more occupants of another moving vehicle when the officer reasonably believes that the driver of the fleeing vehicle is aware of the officer's attempt to stop the vehicle and is resisting apprehension ...