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Alston v. City of Camden

June 28, 2001


The opinion of the court was delivered by: Zazzali, J.

ON CERTIFICATION TO Appellate Division, Superior Court

Chief Justice Poritz PRESIDING

OPINION BY Justice Zazzali

Argued March 26, 2001

On certification to the Superior Court, Appellate Division, whose opinion is reported at 332 N.J. Super. 240 (2000).

This matter implicates anew the question of whether and under what circumstances the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, affords immunity to a police officer and his public-entity employer. Defendant Ron Conley, a Camden City police officer, was pursuing a drug suspect on foot when his firearm discharged, resulting in plaintiff Robert Alston, an innocent bystander, being struck in the hip by a bullet. Plaintiff sued Conley, the City of Camden, and the Camden Police Department. The trial court held that the pursuit immunity and good faith immunity provisions of the Tort Claims Act applied to the circumstances and that defendants could be liable only if they had engaged in willful misconduct. The Appellate Division reversed, concluding that the Legislature did not intend immunity to apply when the officer's negligent discharge of a firearm causes injury to an innocent third party. We reverse and reinstate the judgment of the Law Division.


On July 3, 1993, at approximately 2:00 p.m., defendant Conley responded to a call that a female was selling drugs in an alley in Camden. Defendant was a shift detective at the time and was not in uniform. He observed a woman near that location engage in what appeared to be a drug sale with two men. After defendant exited his vehicle and identified himself as a police officer, the woman ran away. Defendant pursued her on foot as she proceeded to cross a large puddle that covered the width of the alley. Defendant testified as follows:

As I'm about to exit the puddle, I feel my gun beginning to dislodge –- I feel my gun beginning to dislodge from my holster. But it happened very very quick. I'm running. I feel it dislodging and falling. I try to grab the gun but I never grabbed the gun. The gun dropped, hit the ground. Simultaneously to it hitting the ground, I heard a round discharge.

Defendant emphasized at trial that he was not seeking to draw his gun, a semi-automatic pistol, either to fire at the suspect or to fire a warning shot. He testified: "I did not at any time during this incident . . . remove my gun from my holster. There was no need to. The incident didn't dictate it." Rather, defendant testified that the weapon merely dislodged from his holster.

Defendant also noticed that his weapon's safety device was in the "fire" position. He testified that it was his practice to carry the gun with the safety lock in the "no-fire" position even when pursuing a suspect. At the time of the incident, however, defendant explained that the gun was in the fire position because he had drawn his gun earlier in the day during the course of an unrelated police encounter with pit bulls, after which he inadvertently failed to return the safety device to the non-fire position. Defendant acknowledged that it is not police department policy to have officers carry their guns with the safety lock in the fire position.

After the gun discharged, defendant testified that he heard a commotion behind him, stopped, and saw plaintiff on the ground moaning. Realizing plaintiff had been shot, defendant testified that he discontinued the pursuit, called an ambulance and a back- up unit, and tended plaintiff until the ambulance arrived.

Plaintiff's version of events at trial was slightly different. Plaintiff testified that he was walking with a friend when he noticed a young girl run by him. About two seconds later, plaintiff also saw defendant run by, chasing the girl. After plaintiff witnessed defendant grab his pistol with his hand while he was running, plaintiff focused his attention on the girl who was running. Plaintiff next heard the gun discharge. He felt pain in his hip and realized he had been shot. He then saw defendant's gun "bouncing" on the ground seconds later, although plaintiff had not seen it fall to the ground because he was watching the fleeing girl. Plaintiff testified that defendant noticed he was shot, but continued pursuing the woman and tended to him only after he apparently lost pursuit of the drug suspect.

Plaintiff filed this negligence action against the City of Camden, the Camden Police Department, and Conley. A jury trial commenced in April 1999. At the close of trial, the court instructed the jury that under the pursuit immunity provision of the New Jersey Tort Claims Act, N.J.S.A. 59:5-2b(2), defendants were entitled to immunity during the course of a police pursuit unless the jury determined that defendant Conley's conduct rose to the level of willful misconduct. The court defined willful misconduct in part as requiring "a knowing violation by an officer of a specific command by a superior officer of a standing order that would subject the officer to discipline." Following deliberations, the jury returned a verdict in favor of defendants.

Plaintiff appealed, arguing that pursuit immunity applies only in motor vehicle chases as in Tice v. Cramer, 133 N.J. 347 (1993), and Fielder v. Stonack, 141 N.J. 101 (1995). In the alternative, plaintiff argued that the trial court improperly instructed the jury with respect to the meaning of "willful misconduct." The Appellate Division held that the doctrine of pursuit immunity is inapplicable where, as here, the negligent conduct of the police officer during pursuit involves the use and handling of a police firearm. It also concluded that good faith immunity does not apply where a police officer's unintentional or negligent discharge of a weapon caused injuries. The appellate panel remanded the matter for a new trial, directing that defendant "Conley's liability is to be determined to the same extent as a private person." Alston v. City of Camden, 332 N.J. Super. 240, 249 (2000). This Court granted certification, 165 N.J. 607 (2000).


The New Jersey Legislature adopted the Tort Claims Act in 1972. L. 1972, c. 45, § 59:1-1 to 12-3. The Act was designed "to re-establish the immunity of public entities while relieving some of the harsh results" of the doctrine of sovereign immunity. Ponte v. Overeem, 337 N.J. Super. 425, 428 (App. Div.), certif. granted, __ N.J. __ (2001). Moreover, "[u]nderlying the reenactment of immunity was the Legislature's concern about that liability on the public coffers." Brooks v. Odom, 150 N.J. 395, 402 (1997) (citing Report of the Attorney General's Task Force on Sovereign Immunity 10 (1972)). Consistent with those purposes, the substance of the Act provides immunity for public entities with liability as the exception. Collins v. Union County Jail, 150 N.J. 407, 413 (1997). See N.J.S.A. 59:2-1a ("Except as otherwise provided by this act, a public entity is not liable for an injury . . . ."). Thus, notwithstanding the Legislature's stated purpose to ameliorate the harsh results of the strict application of the common-law doctrine of sovereign immunity, "the approach of the Act is to broadly limit public entity liability." Harry A. Margolis & Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:1-2 (2001). Given that backdrop, we must consider whether the immunities under the Act, specifically pursuit immunity under N.J.S.A. 59:5-2b and good faith immunity under N.J.S.A. 59:3-3, apply to defendants.*fn1

A. Pursuit Immunity

N.J.S.A. 59:5-2b(2) provides in part: "Neither a public entity nor a public employee is liable for: . . . any injury caused by . . . an escaping or escaped person." (Emphasis added). In Tice v. Cramer, 133 N.J. 347 (1993), this Court was called on to decide whether N.J.S.A. 59:5-2b(2) applies to all injuries arising out of a police pursuit, even those that would not have occurred but for the negligence of the police. In that case a police pursuit ended with the fleeing vehicle colliding with a motorist, resulting in the motorist's death. The decedent's estate brought an action against the police officer, the police department, and the City, among others. Id. at 351. This Court held that N.J.S.A. 59:5-2b(2) "confers absolute immunity except where the police officer engages in willful misconduct," id. at 356, and that such immunity applies to all injuries arising out of the police officer's pursuit even though those acts would not have occurred but for the negligence of the pursuing officer. The Tice Court observed that "[t]he most likely legislative intention evinced by the statutory language in the context of police pursuit is that when the officer suspected someone of having violated the law and was pursing him, the officer's conduct was immune from liability." Id. at 361. Consequently, "[t]he effect of section 5-2b(2) immunity would seem to be clear. The immunity relieves the officer (and the public entity--the immunity applies to both) of whatever liability would otherwise attach for the officer's negligent conduct in connection with the pursuit." Id. at 363.

Chief Justice Wilentz, writing for the Court in Tice, set forth the policy considerations that are the basis for pursuit immunity:

[T]he justification is the encouragement of the police officer diligently and aggressively to enforce the law, thought to be diminished by the specter of tort liability. Not so clear, but equally applicable, is the policy consideration involved when the potential liability is that of the public entity for its "independent" negligence in failing to impose standards regarding pursuit, or in failing to train police officers in the execution of those standards. Obviously, such standards and training could result in greater care on the part of police officers and in fewer injuries. But, equally obviously, the potential of tort liability might encourage standards and training so restrictive–-for the purpose of avoiding injuries and liability–-as to impede the ultimate goal of vigorous law enforcement, including the vigorous pursuit of suspects. It is true there might be much greater care, even better care, but it is also true that there might be less vigorous enforcement. The Legislature has made its choice, and we are bound by it. [Id. at 365.]

Those policy concerns support an interpretation of pursuit immunity that "immuniz[es] both the employee and the entity for all acts of negligence related to the injuries caused by the escape, whether those of the employee or the entity, and whether independent or not." Ibid.

It makes no difference if the injuries caused to third parties in vehicular pursuits are caused by the pursued, as in Tice, or by the pursuer. In Fielder v. Stonack, 141 N.J. 101 (1995), decided two years after Tice, it was the police car that hit a vehicle not involved in the pursuit. This Court rejected a distinction based on whether the car involved in the actual collision is the police car or the escaping vehicle as contrary to tort law concerning automobile negligence because "liability ordinarily depends on negligence and causation, not on which cars were involved in the actual collision." Id. at 111. The critical issue was not which vehicle was involved in the collision, but whether the injury was caused by the escaping person. Id. at 112. This Court noted that the policy decision that officers not be impeded in the vigorous enforcement of laws by the threat of civil liability evinces the Legislature's intent that immunity be conferred without regard to which vehicle was actually involved in the collision giving rise to the negligence claim. Id. at 120. As with Tice, policy was the polestar in Fielder:

Creating an exception to the general rule of immunity, depending on whether the officer is involved in the accident, would swallow the rule of immunity, deterring the officer not from acting negligently but from pursuing at all, subordinating doing what ...

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