Before Judges D'Annunzio 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Camden County.
This appeal involves the application of pursuit immunity afforded the police and their public-entity employers, pursuant to N.J.S.A. 59:5- 2b(2), a section of the New Jersey Tort Claims Act. Plaintiff was shot in the hip when Officer Ron Conley's service weapon discharged during Conley's pursuit, on foot, of a female drug suspect. The case was tried to a jury. At trial, the court determined that the immunity statute applied and that defendants could be liable only if they had engaged in "willful misconduct." N.J.S.A. 59:3-14(a). The jury returned a verdict in favor of defendants. Plaintiff appeals.
The incident occurred in Camden at approximately 2:00 p.m. on July 3, 1993. Plaintiff testified that he was walking with a friend when he noticed a young girl run by him. About "two seconds later" plaintiff saw defendant Conley run by, chasing the girl. According to plaintiff, while Conley was running, Conley grabbed his pistol with his right hand. Plaintiff heard the gun discharge and realized he had been shot when he felt pain in his hip. After realizing he had been shot, plaintiff saw the gun on the ground. Plaintiff, however, did not see the pistol fall to the ground because he was watching the fleeing girl.
Conley testified that he was a shift detective at the time of the incident and was not in uniform. Conley was investigating a drug transaction and observed a female engage in what Conley perceived to be a drug sale. Conley began to walk towards the suspect, who began to run. Conley pursued her. As he was running, Conley felt his gun slipping out of his holster. He reached for it to keep it from falling, but it had already fallen to the ground and discharged.
Conley explained that his gun was holstered on his belt on his right side and that the holster had a snap to hold the weapon in place. The weapon had a manual safety device which had to be in the "off" position for the weapon to be fired. At the time of the incident the gun was loaded and a bullet was in the firing chamber. After the gun discharged, Conley picked it up and noticed that the safety was in the off position. He explained that this was unusual because he always carried the gun with the safety lock in the on position, even when pursuing a suspect. He stated that the safety lock was in the off position during this incident because he had drawn his gun earlier in the day during a different incident and he inadvertently left the safety off. Conley conceded that it is not the police department's policy to have officers carry their guns with the safety lock in the off position. He testified that he had no intention of shooting the suspect or even firing a warning shot.
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 construed 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 by 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.
In Canico v. Hurtado, 144 N.J. 361 (1996), our Supreme Court recognized the distinction between pursuit of a fleeing person and other types of aggressive police action. There, Officer Hurtado was operating a police vehicle and was responding to an alarm at a bank. His vehicle collided with Canico's vehicle. The Court determined that section 2b(2) immunity was not applicable because "Hurtado was not pursuing escaping persons." Id. at 364. The Court held, however, that the immunity afforded in N.J.S.A. 59:3-3 (section 3-3) applied. That section provides in relevant part:
A public employee is not liable if he acts in good faith in the execution or ...