On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7968-97.
Before Judges Pressler*fn1, Wefing and Ciancia.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Elizabeth Dunlea appeals the dismissal of her automobile negligence action against defendant, Belleville Police Officer Joseph Zarello and his employer, defendant Township of Belleville. The litigation went to trial before a jury, but at the close of all the evidence defendants successfully renewed a motion pursuant to R. 4:37-2(b) for an involuntary dismissal on the theory that N.J.S.A. 59:3-3 provided immunity to Officer Zarello and to the Township, which had been brought into the litigation on a vicarious liability claim. We now reverse that dismissal and reinstate plaintiff's cause of action. In our view plaintiff's proofs, if credited, were sufficient to permit a reasonable jury to conclude that Zarello's conduct was not objectively or subjectively reasonable. A jury question having been presented, defendants' motion for involuntary dismissal should have been denied.
It is, of course, now firmly established that on a motion for involuntary dismissal pursuant to R. 4:37-2(b), or a motion for judgment at the close of all the evidence pursuant to R. 4:40-1, the court must accept as true all evidence that supports the position of the party opposing the motion and must accord that party the benefit of all legitimate inferences that can be deduced therefrom. If reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969); Baliko v. Union of Oper. Eng'rs, 322 N.J. Super. 261, 272-273 (App. Div.), certif. denied, 162 N.J. 199 (1999). Viewing the evidence in the present case pursuant to that standard, the jury could reasonably have found the following.
On July 25, 1996, at about 10:30 p.m., plaintiff was driving south on Washington Avenue, an undivided highway consisting of two lanes of traffic in each direction. Plaintiff was in the left lane going slower than the permitted speed limit. Defendant Zarello was traveling north on Washington Avenue with another officer. They were responding to a report of a burglary in progress at a location near the intersection of Washington Avenue and Van Houten Avenue. Zarello was driving a marked police car equipped with siren, overhead lights, grill lights and "wig-wag" headlights. At Van Houten Avenue defendant attempted to turn left and proceed across the path of oncoming traffic, when he collided with plaintiff's vehicle. Plaintiff's proofs were that the police car siren was not on, the overhead lights were not on, the headlights were on but not flashing, and there were no blinking lights. There was not even a turn signal. Defendant was going "fast" and turned "abruptly," "very sharply" into plaintiff's vehicle.
Defendants argued that Zarello's conduct was immune from liability pursuant to N.J.S.A. 59:3-3, which provides:
A public employee is not liable if he acts in good faith in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.
Defendants erroneously argued that plaintiff had to show willful misconduct in order to defeat defendant's claim that he acted in good faith.
On the facts here presented, it is clear that N.J.S.A. 59:3- 3 is the relevant immunity. Canico v. Hurtado, 144 N.J. 361 (1996). In order to succeed under that immunity, a public employee must show that the challenged conduct was undertaken with objective or subjective good faith. Bombace v. City of Newark, 125 N.J. 361, 374 (1991).
It is clear under our case law that mere negligence on the part of a public employee is generally not sufficient to defeat the good-faith immunity provided by N.J.S.A. 59:3-3. We disagree, however, with the position espoused by defendants' trial counsel that a plaintiff must demonstrate willful misconduct in order to avoid the statutory immunity. Counsel relied on Marley v. Palmyra Borough, 193 N.J. Super. 271 (Law Div. 1983), but that case does not stand for the proposition that only willful misconduct will defeat a claim of good-faith immunity. The misconception is apparently also fostered by a misinterpretation of N.J.S.A. 59:3-14a, which states:
Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.
That statute should not be read as supporting immunity absent a demonstration that the public employee's conduct was criminal, constituted actual ...