United States District Court, D. New Jersey
June 14, 2005.
ERVIN BILBILI, et al., Plaintiffs,
CHARLES E. KLEIN, III, et al., Defendants.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
This matter arises from a fatal automobile collision between
Plaintiffs and an off-duty police officer, Defendant Charles E.
Klein, III, who, at the time of the accident, was allegedly
intoxicated. Before the Court are the motions for summary
judgment by Defendants City of Egg Harbor City, the Egg Harbor
City Police Department, and Mayor James E. McGeary (collectively
"Municipal Defendants") [Docket Item 74,] Defendant Richard
Jankowski, Director of Public Safety for Egg Harbor City from
1996 to 2001*fn1 [Docket Item 75,] and Defendant Patrolman
Keron Kevin Derod Craig. [Docket Item 73.]
For the reasons now explained, the motions for summary judgment
will be granted in their entireties and judgment will be entered
in favor of these Defendants and against Plaintiffs. I. BACKGROUND
A. Traffic Stop
On the night of May 21, 2000, Defendant Patrolman Keron Kevin
Derod Craig, a part-time/full-time officer with the Egg Harbor
City Police Department, was "out on patrol" alone. (Craig Dep.
Tr. at 38, 41.) At approximately 1 a.m., Craig made a routine
traffic stop of a car operated and owned by Defendant Charles E.
Klein, III, an off-duty police officer with the Egg Harbor City
Police Department. (Id. at 46:1-4.) Craig pulled Klein over,
without any apparent difficulty on Klein's part, after visually
observing his car to be speeding roughly 20 miles per hour over
the posted speed limit. Craig did not observe Klein's car to be
swerving, and did not believe at the time that Klein was
intoxicated. (Id. at 47:19-21.) Plaintiffs allege, however,
that Klein was visibly intoxicated.
As Patrolman Craig pulled over Klein's car, Klein held his
police badge out of the window for Craig to see. (Id. at
48:21-49:4) Craig then exited his car and approached Klein's, at
which point Klein stuck his head out of the window and said
"what's up." (Id. at 49:1-4.) Craig, recognizing the driver to
be Klein, issued a verbal warning to slow down and then returned
to his patrol car. (Id. at 49:5-8.) During this brief
encounter, Craig never got closer than 30 feet to Klein. (Id.
at 52:4-5.) Craig testified that he at no point believed that
Klein was intoxicated. (Id. at 41:9-12.) Craig testified at his deposition that it would have been "a
problem" for him within the department to have issued a ticket to
a superior police officer, such as Klein. (Id. at 54:16-20.)
According to Patrolman Craig, there was an unwritten
understanding in the Egg Harbor City Police Department that
professional courtesy would be extended to other officers who
were pulled over for minor vehicle violations. (Id.
B. Fatal Collision
About one hour later that same evening, Plaintiffs Freddi
Bilbili and Pjerim Gjecaj were passengers in an automobile
operated by Gazmend Cena. Freddi Bilbili's brother, Plaintiff
Ervin Bilbili, was seated in the passenger seat, (F. Bilbili Dep.
Tr. at 23; 2-4,) and Freddi Bilbili was seated in the rear seat
along with Mr. Gjecaj. (Id. at 23; 2-4.) Freddi Bilbili was
seated directly behind Mr. Cena and Mr. Gjecaj was seated behind
the passenger seat. (Id. at 17; 14-15.) At approximately 2:12
a.m., the automobile operated by Mr. Cena was struck from behind
by Klein's car. Mr. Cena died following the crash he was
pronounced dead at the Atlantic City Medical Center at 4:10 a.m.
The other passengers in the car sustained serious
injuries.*fn2 C. History of Klein's Misconduct and Related Discipline
Defendant Klein has a long history of poor driving. (Pls. Ex.
A.) Among other things, Defendant Klein has been involved, as the
driver, in at least five accidents and has committed several
moving violations. (Id.) On or about November 5, 1996, for
example, Klein was served with a written notice of disciplinary
action for failing to notify his commanding officer that his
personal car registration and New Jersey driver's license had
been suspended. On December 19, 1996, a hearing was conducted at
which Klein was represented by counsel. (Mun. Def. Stat. Facts ¶
15(a).) Klein was ultimately found guilt of "misconduct,"
"driving while driving privileges suspended" and "allowing his
vehicle to be operated on the public highways while his
registration privileges were suspended," for which he was
suspended for a 30 day period beginning on February 1, 1996.
(Pls. Ex. B.) A three-page decision accompanying the suspension
order was issued by Defendant Jankowski. (Id.)
Defendant Klein has been disciplined for other conduct as well.
On or about August 4, 1997, Defendant Jankowski filed a
Preliminary Notice of Disciplinary Action against Klein, seeking
his removal effective September 13, 1997, based on charges
arising from an off-duty incident whereby Klein discharged his
gun at his home. (Mun. Def. Stat. Facts ¶ 15(b).) A hearing was
convened, at which Klein was represented by counsel, and Klein was found guilty of conduct unbecoming an officer, and of
violating police department rules regarding the handling of
firearms. Klein was suspended for 45 days. (Id.)
On or about April 5, 2000, Director Jankowski again filed a
Preliminary Notice of Disciplinary Action against Klein, seeking
his removal, based on charges that he was in possession of a
controlled dangerous substance. (Id. at ¶ 15(c).) A hearing was
scheduled for May 11, 2000 at which Klein was represented by
counsel. Meanwhile, on or about April 26, 2000, Director
Jankowski issued another Notice of Disciplinary Action against
Klein based on an incident involving reckless driving while
off-duty.*fn3 (Id. at ¶ 15(d).) A disciplinary hearing on
this matter seeking Klein's suspension or removal was scheduled
for June 8, 2000.*fn4 The fatal accident at issue here
occurred on May 21, 2000.
In total, Klein was disciplined on roughly 17 different
occasions between 1992 and 2000. (Mun. Def. Ex. 6.) There is,
however, no dispute in this case that Klein was off duty at the time of this accident, and there is no evidence that any
Municipal Defendant had knowledge that Klein was drinking and
driving on the night of the accident.
D. Procedural History
Plaintiffs here are Freddi Bilbili, Ervin Bilbili, Pjerim
Gjecaj, Anjaeza Bilbili (the wife of the Ervin Bilbili) and
Shygyrie Cena, both as Administratrix of the Estate of Gazmend
Cena and in her individual capacity. Plaintiffs filed two
separate complaints in Superior Court, Atlantic County, on May
20, 2002, alleging federal § 1983 causes of action and
supplemental state law claims. Notice of removal pursuant to
28 U.S.C. § 1446 was filed by Defendant Egg Harbor City on or about
June 21, 2002. The two actions were consolidated in this Court by
order dated August 14, 2002. [Docket Item 13.] This Court has
subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate when the materials of record
"show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the
evidence is such that a reasonable jury could return a verdict
for the non-moving party." See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it
might affect the outcome of the suit under the applicable rule of law.
Id. Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact,
the court must view the evidence in favor of the non-moving party
by extending any reasonable favorable inference to that party; in
other words, "the nonmoving party's evidence `is to be believed,
and all justifiable inferences are to be drawn in [that party's]
favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting
Liberty Lobby, 477 U.S. at 255). The threshold inquiry is
whether there are "any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party." Liberty Lobby,
477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326,
329-30 (3d Cir. 1995) (citation omitted).
The moving party always bears the initial burden of showing
that no genuine issue of material fact exists, regardless of
which party ultimately would have the burden of persuasion at
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Country Floors v. Partnership of Gepner and Ford,
930 F.2d 1056, 1061-63 (3d Cir. 1991). III. DISCUSSION
A. Section 1983 Substantive Due Process Claims*fn5
Plaintiffs here claim a violation of the Fourteenth Amendment
Substantive Due Process Clause under 42 U.S.C. § 1983, alleging
that Defendants failed to protect them from a drunk
driver.*fn6 Because Plaintiffs have failed to point to
sufficient evidence of the requisite "predicate
conscience-shocking behavior," their constitutional claims must
be dismissed. Miller v. City of Philadelphia, 174 F.3d 368, 377
(3d Cir. 1999).
"[N]othing in the language of the Due Process Clause itself
requires the State to protect the life, liberty, and property of
its citizens against invasion of private actors. The Clause is
phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security."
Id. at 195. In other words, the Due Process Clause "forbids the
State itself to deprive individuals of life, liberty, or property
without `due process of law,' but its language cannot fairly be
extended to impose an affirmative obligation on the State to
ensure that those interests do not come to harm through other
Rather, the "core of the concept" of due process is "the
protection against arbitrary action." County of Sacramento v.
Lewis, 523 U.S. 833, 845 (1998). It is well-settled that "only
the most egregious official conduct can be said to be `arbitrary
in the constitutional sense.'" Id. at 846 (citing Collins v.
Harker Heights, 503 U.S. 115, 129 (1992)). DeShaney v.
Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989).
And, substantive due process is violated by executive action only
when it "can be properly characterized as arbitrary, or
conscience shocking, in a constitutional sense." Collins,
503 U.S. at 128.
"While the measure of what is conscience-shocking is no
calibrated yardstick," Lewis, 523 U.S. at 847, those actions
that would violate the "decencies of civilized conduct," Rochin
v. California, 342 U.S. 165, 172-73 (1952), and which are so
"`brutal' and `offensive' that [they] do not comport with
traditional ideas of fair play and decency," Breithaupt v.
Abram, 352 U.S. 432, 435 (1957), certainly satisfy that
standard. The Third Circuit has "suggested" that the "shocks the conscience"
test applies to all substantive due process cases. Smith v.
Marasco, 318 F.3d 497, 507 (3d Cir. 2003) (citing Miller v.
City of Philadelphia, 174 F.3d 368, 374-75 (3d Cir. 1999)).
Far from shocking the conscience, the behavior of the
Defendants here was at most negligent. As to Defendant Craig,
this Court has already held that
although Klein was intoxicated on the night of the
accident, no evidence suggests Patrolman Craig was
aware of that fact. Not only did Craig not observe
Klein swerving, but when he approached Klein's
vehicle Craig did not observe anything that would
have indicated Klein was not sober. For these
reasons, Craig's failure to approach Klein's vehicle
to assess whether Klein was, in fact, inebriated, was
at most negligent. See Egan, 148 A.2d at 836;
Mantz, 239 F. Supp. 2d at 508 (a showing of willful
misconduct requires "`much more' than negligence").
To be sure, Craig testified that he never got closer
than 30 feet to Klein. As a result, Craig was not
able to, for example, detect the smell of alcohol on
Klein's breath or look for open alcoholic beverages
in the vehicle. However, his failure to do those
things can, at best, be characterized as negligence
as he had no knowledge of any fact indicating that
Klein was drunk.
(Feb. 15, 2005 Slip Op. at 25-26 (footnote omitted).) And,
"[l]iability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process." County of
Sacramento v. Lewis, 523 U.S. 833
, 848-49 (1998); Fagan v. City
of Vineland, 22 F.3d 1296, 1305 (3d Cir. 1994). Moreover, if
Craig's failure to remove Klein from the road on the night of
fatal accident does not shock the conscience, that the Municipal
Defendants may have condoned Craig's decision can likewise not be unconstitutionally arbitrary. Just like Craig, the Municipal
Defendants were not "deliberately indifferent," Miller,
174 F.3d at 375, to the Plaintiffs' safety.*fn7
Plaintiffs additionally argue that the defendants created the
danger which allegedly caused their injuries. The statecreated
danger doctrine is "an exception to the general rule that the
state does not have a general affirmative obligation to protect
its citizens from the violent acts of private individuals."
Smith, 318 F.3d at 506. Plaintiffs here maintain that the
Municipal Defendants and Defendants Jankowski and Craig caused
the Plaintiffs to be injured by failing to prevent an off-duty
police officer with a history of misconduct from driving while
intoxicated.*fn8 Because the acts or omissions complained of by these defendants are not sufficiently shocking or foreseeable,
Plaintiffs' argument fails. Fagan v. City of Vineland,
22 F.3d 1296, 1305 (3d Cir. 1994) (holding "shocks the conscience"
standard is the same in cases of government action and government
Although, as noted above, "nothing in the language of the Due
Process Clause itself requires the State to protect the life,
liberty, and property of its citizens against invasion of private
actors," DeShaney, 489 U.S. at 195, state actors may be liable
under § 1983 in instances of "state-created danger." A
statecreated danger is established upon showing: (1) the harm
caused was foreseeable and fairly direct; (2) the state actor
willfully disregarded the safety of others; (3) there existed
some relationship between the state actor and the plaintiff; and
(4) the state actor used his authority to create an opportunity
for the third party's crime to occur that otherwise would not
have existed. See Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.
1996). To make a showing of state-created danger, a plaintiff
must prove each of these four prongs. Even extending all
favorable inferences to Plaintiffs as the parties opposing
summary judgment, in this case Plaintiffs cannot make the
required factual showing upon which a reasonable jury could rule
in Plaintiffs' favor. (1) Foreseeability
The harm caused to Plaintiffs here was not "foreseeable" or
"fairly direct." The Court summarized the lack of directness in
its February 15, 2005 Slip Opinion:
Plaintiffs argue that if Defendants had properly
disciplined Klein, he would have been removed from
the force long before the accident took place. As
noted above, though, Defendant Klein was off-duty on
the night of the accident. Taking Plaintiffs'
argument to it logical conclusion, then, Plaintiffs
are asserting that if Defendants had acted properly,
Klein would not have been an officer with the Egg
Harbor Police Department on the night in question;
Patrolman Craig would not have extended Klein any
professional courtesy after pulling his vehicle over;
Craig would have approached Klein's vehicle and, more
likely than not, discovered evidence that Klein was
inebriated; Craig would have taken some action to
prevent Klein from further operating his vehicle that
evening; and, finally, the fatal accident would have
been prevented. That argument is attenuated at best.
(Feb. 15, 2005 Slip Op. at 26-27.) For those reasons, Plaintiffs
cannot satisfy the first prong as to Municipal Defendants or
Similarly, Plaintiffs are unable to demonstrate that the harm
caused was a foreseeable consequence of Craig's conduct. Indeed,
Patrolman Craig did not know of Klein's history of misconduct
involving alcohol. (Id. at 25.) As noted above, Craig was not
aware, nor was there any manifestation suggesting that Klein was
inebriated at the time he stopped Klein. (Id.) Craig saw
Klein's vehicle speeding, no more and no less. Thus, the fatal
collision that occurred shortly after he stopped Klein was not
reasonably foreseeable. (2) Willful Disregard
The Third Circuit has made clear that the wilful misconduct
prong can only be satisfied by conduct that shocks the
conscience. Smith, 318 F.3d at 507. This Court has already
determined, though, that none of these Defendants' acts or
omissions at issue meets that standard. That conclusion is
dispositive of this inquiry as well.
In any event, the Court has previously held that the acts of
Municipal Defendants and Defendants Jankowksi and Craig did not
amount to wilful misconduct. (See Feb. 15, 2005 Slip Op.
21-28.) Specifically, the Court examined and rejected, for
purposes of Plaintiffs' state law claims, the argument that the
Municipal Defendants and Defendants Jankowski and Craig willfully
disregarded the safety of the Plaintiffs by ignoring a
foreseeable risk or danger caused by Klein. (Id. at 21-28.)
For these reasons, Plaintiffs can not meet the second
requirement of the state-created danger test.*fn9 The Third Circuit in Hall v. Feigan, No. 03-2784, 2004 U.S.
App. LEXIS 14653, at *1 (3d Cir. July 16, 2004), was presented
with similar facts and legal issues as those before the Court
here.*fn10 There, Plaintiff Elizabeth Hall had brought a
suit against Easthampton Township and certain members of the
Easthampton Township Police Department, as well as others, under
42 U.S.C. § 1983 for injuries resulting from a car accident with
a drunk driver. Shortly before the accident, an on-duty police
officer had, through close contact with the defendant, learned
that she had been drinking. In an unpublished opinion affirming
the district court's decision, Civil No. 00-6254 and 01-1639
(D.N.J.) (Kugler, J.), the court summarized the facts as follows:
On April 10, 1999, at approximately 1:45 a.m.,
[Plaintiff] Hall was backing out of her driveway when
her car was struck by a vehicle driven by [Defendant]
Tracy Feigan. As a result of the accident, Hall
suffered permanent brain damage and is no longer able
to take care of her child. Shortly before crashing
into Hall's car, Feigan, a 27-year-old go-go dancer,
had stopped at a Mobil On the Run gas station
convenience store, having just left work at the
Golden Moon strip club, where she had consumed at
least five alcoholic beverages during her shift. When
Feigan entered the Mobil On the Run, she recognized
defendant Stephen Sawyer, a police officer of
defendant East Hampton Township, who had stopped her
for speeding approximately two months before. Sawyer
was on duty at the time of the convenience store
encounter. Feigan was a recidivist speeder who had been
classified by the State of New Jersey as a
"persistent violator." She had eleven speeding
convictions and her driving privileges had been
suspended ten times. When Officer Sawyer had stopped
Feigan for speeding approximately two months before,
he had downgraded Feigan's offense and had only cited
her for not wearing a seatbelt, a non-moving
violation, because given the excessive number of
points on her license, she would have lost her
driving privileges if she had been convicted of
speeding. Not surprisingly, when Feigan encountered
Sawyer at the convenience store on April 10, 1999,
she went up to him, kissed him on the cheek and
thanked him for not giving her a speeding ticket a
couple of months before. When she did so, Sawyer
smelled alcohol on her breath and hence knew that she
had been drinking.
At the time, Feigan was smoking a cigarette in the
store, and Sawyer repeatedly told her to put it out.
It was Sawyer's understanding that Feigan had just
gotten off work at the Golden Moon, where the go-go
dancers are given drinks as tips. Despite this
knowledge, and the fact that he knew Feigan had been
drinking and thought that she was intoxicated, and
also despite the fact that Sawyer knew that she had a
very poor driving record, Sawyer did not attempt to
determine if Feigan was drinking and driving, or
attempt to enforce the driving while intoxicated laws
against her. Feigan testified that while she was
talking to Sawyer in the convenience store, she
probably had her keys in her hand.
After joking around with Officer Sawyer, Feigan left
the store and got behind the wheel of her car, which
was parked in front of the convenience store and
easily visible to Sawyer. Less than five minutes
later she crashed into Hall's car. At the time of the
collision, Feigan did not have her headlights on.
Id. at *1-4.
The District Court held that Hall had not been deprived of a
constitutionally protected right and, thus, granted summary
judgment on the section 1983 cause of action. On appeal, Hall raised two arguments regarding her substantive due process
claims: (1) that the officer's decision not to enforce the
driving while intoxicated laws against Feigan was arbitrary and
capricious and shocked the conscience; and (2) that the policy of
the Easthampton Township of allowing its officers "unfettered
discretion" violated the Due Process Clause and that this policy
authorized and encouraged the unconstitutional arbitrary and
discriminatory enforcement of the law. Id. at *4. The Third
Circuit rejected both arguments and affirmed the decision of the
In rejecting the argument that the failure of Officer Sawyer to
take action against Feigan under the facts described above
satisfied the "shocks the conscience" test, the court held that
"[i]n the absence of a duty to protect Hall, and in the absence
of evidence that Sawyer acted in willful disregard of actual
knowledge of a serious risk of Hall's safety . . ., the case does
not come close to meeting the `shocks the conscience' test."
Hall, 2004 U.S. App. LEXIS 14653, at *8 (citing DeShaney v.
Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989)).
Here, the facts supporting a claim under § 1983 are even weaker
than those in Hall. Indeed, the Court already has held that
Craig's acts on the night of the fatal accident did not amount to
willful disregard of actual knowledge of a serious risk to
Plaintiffs. (See Feb. 15, 2005 Slip Op. at 25.) As noted by the Court, Patrolman Craig testified that he was not aware of any
prior instances of misconduct involving alcohol by Defendant
Klein. (Id.) In Hall, on the other hand, the officer was
aware of multiple violations previously committed by the driver
in fact, the reason he downgraded her offense was because he was
aware of the excessive number of points on her license resulting
from moving violations. Hall, 2004 U.S. App. LEXIS 14653, at
*2-3. Thus, Plaintiffs' attempt to distinguish Hall on the
grounds that the prior speeding incident involving Feigan was far
removed in time from the fatal collision is not persuasive.
Moreover, the officer in Hall knew that Feigan had been
drinking, that she had a very poor driving record and that she
had her keys in her hand. Additionally, he was able to see her
car from where he had been talking with her. Here, on the other
hand, Craig, a part-time patrolman, did not know of Klein's
record on misconduct, especially that involving alcohol; nor did
he have any reason to suspect Klein of being intoxicated on the
night in question. (Feb. 15, 2005 Slip Op. at 25-26.)
The second issue on appeal in Hall was the constitutionality
of the police department's policy allowing "Easthampton Township
police officers [to] exercise their discretion in deciding
whether to charge individuals with certain driving offenses or
whether to downgrade the charges, again solely at the officer's
discretion." Hall, 2004 U.S. App. LEXIS 14653, at *8-9. The court rejected that argument as well, holding that "Hall has no
substantive due process right, as a third party, to be the
beneficiary of non-discriminatory (here preferential) conduct
allegedly directed at Feigan." Id. at *10.
While Officer Sawyer's decision not to investigate
the state of intoxication of a go-go dancer who
kissed him in gratitude for previously having not
ticketed her for speeding may seem unsavory, Officer
Sawyer had no specific duty to conduct such an
investigation under the circumstances of this case.
Despite her protestations to the contrary, Hall can
point to no cognizable substantive due process right
that was violated in this situation.
Id. at * 10-11.
Here, Plaintiffs allege the existence of an inadequate training
program giving officers the discretion to extend professional
courtesies to other officers within the department during routine
traffic stops. Like in Hall, Craig's decision not to further
investigate Klein pursuant to that alleged policy may have been
"unsavory." However, for the same reasons as the court
articulated in Hall, Craig's failure to further investigate
Klein's level of intoxication did not result in a deprivation of
Plaintiffs' due process rights.*fn11 B. State Law Claims New Jersey Tort Claims Act Immunity
There remain a number of state law claims pending against the
Municipal Defendants and Defendants Jankowski and Craig. Because
those defendants are entitled to immunity under the New Jersey
Tort Claims Act, N.J.S.A. 59:1-1 et seq. ("NJTCA" or "Act"),
the state claims must be dismissed as well.
In 1972, in response to the judicial abrogation of sovereign
immunity in Willis v. Department of Cons. & Econ. Dev.,
264 A.2d 34 (N.J. 1970), the New Jersey State Legislature adopted the
Tort Claims Act.
The overall purpose of the Act was to reestablish the
immunity of public entities while coherently
ameliorating the harsh results of the doctrine. The
theme of the Act is immunity for public entities with
liability as the exception. Even where liability is
present, the Act sets forth limitations on recovery.
One is the limitation on the recovery of pain and
Gilhooley v. County of Union, 753 A.2d 1137
, 1140 (N.J. 2000)
(internal citations omitted). "The guiding principle of the Tort
Claims Act is that `immunity from tort liability is the general
rule and liability is the exception'. . . ." Coyne v. New
Jersey, 867 A.2d 1159
, 1163 (N.J. 2005) (citing Garrison v. Tp.
of Middletwon, 712 A.2d 1101
, 1103 (N.J. 1998)).
Here, Defendant Craig is immune from liability under N.J.S.A.
59:3-2(b). In Perona v. Tp. of Mullica, 636 A.2d 535 (N.J.
Super. Ct. App. Div. 1994), the court held that 59:3-2(b)
provided immunity to "police officers in the exercise of their police function." There, a husband and wife sued Mullica Township
and two of its officers after the officers failed to take the
wife, who was mentally disturbed, to a screening facility
following their response to a domestic disturbance complaint.
Upon arrival at the plaintiffs' residence, the husband informed
the officers that he had observed his wife walking near traffic
on a nearby highway. The husband also told the officers that his
wife had left a handwritten note addressed to him stating, in
essence, that he would never see her again and that he should
take care of their daughter. The note also stated in the margin
that "I loved you more than I ever showed it."
The husband informed the officers that he was concerned his
wife may commit suicide, especially considering that she had been
treated several weeks before for depression. Despite that
information, the officers concluded (based in part on their
observation that she did not seem depressed) that they could not
offer assistance. Shortly after the officers departed the
residence, the wife left her home and apparently attempted
suicide by placing herself in front of traffic on the same nearby
highway on which her husband had found her earlier.
The court in Perona held that the officers had made a
"discretionary determination?" in deciding not to take the wife
to the screening facility, thereby entitling them to immunity
under 59:3-2(b). Id. at 29. The court reasoned that because "operational decisions," such as those made by the officers, are
covered by 59:3-2(b), the officers were protected from liability.
To be sure, N.J.S.A. 59:3-2 includes a limitation on immunity,
stating that: "Nothing in this section shall exonerate a public
employee for negligence arising out of acts or omissions in
carrying out his ministerial functions." "A ministerial act is
one which public officials are required to perform upon a given
state of facts in a prescribed manner, in obedience to the
mandate of legal authority and without regard to their own
judgment or opinion concerning the propriety or impropriety of
the act to be performed." Ritter v. Castellini, 414 A.2d 614,
(N.J.Super.Ct. Law Div. 1980); see Morey, 556 A.2d at 815
(same) (citing Black's Law Dictionary 1148 (4th ed. 1968)).
Thus, for example, in Wuethrich v. Delia, 341 A.2d 365 (N.J.
Super. Ct. App. Div. 1975), the court declined to extend the
protections of N.J.S.A. 59:2-3 to a township where a police
department failed to respond to a report of violent behavior by a
man carrying a gun.*fn12 In that case, less than 12 hours
after the first report was made to the police department, that
same individual shot and killed a man. The court in Wuethrich
concluded there that "once the police had received warnings as alleged by plaintiff, their obligation to investigate was clear.
It was not discretionary but ministerial." Id. at 411.
In this case, though, unlike Wuethrich, Defendant Craig's
obligation to investigate whether Klein was intoxicated was not
clear. As noted several times above, Craig had no reason to
believe that Klein was intoxicated when he pulled over Klein's
vehicle. For that reason, Craig's obligation to detain Klein was
far from clear and, thus, he was acting primarily with regard to
his "own judgment or opinion concerning the propriety or
impropriety of the act to be performed." Craig did testify, to be
sure, to a policy of professional courtesy that patrolmen in
Craig's position would generally extend to off-duty officers who
were the subject of routine traffic stops. At best, though, if
such a policy existed it was an "unofficial" policy that would
not have "required [him] to perform upon a given state of facts
in a prescribed manner." Accordingly, Craig is immune from
liability under N.J.S.A. 59:3-2(b) for his failure to detain
Klein or otherwise prevent him from driving while intoxicated on
the night in question.
Additionally, Officer Craig is protected from liability by
N.J.S.A. 59:3-3, which provides that "[a] public employee is not
liable if he acts in good faith in the execution or enforcement
of any law." This provision of New Jersey law is quite forgiving
of the police officer who makes an imperfect response to a situation encountered on patrol where an accident later occurs
that might have been prevented by a more diligent law enforcement
effort. In Morey v. Palmer, 556 A.2d 811 (N.J.Super.Ct. App.
Div. 1989), for example, the court applied 59:3-3 to protect an
officer from liability for failing to prevent an accident. In
that case, a patrolman responded to a call that there was a
pedestrian in the middle of a street. Upon arrival at the scene,
the officer observed the individual to be intoxicated and ordered
the individual to leave from the middle of the road, which the
individual did. The officer then left the scene and, almost 4
hours later, the individual was struck and killed by a truck not
far from the location where the officer had encountered him
earlier. The decedent's representative sued, among others, that
officer. The court there held that the officer was entitled to
immunity under N.J.S.A. 59:3-3, explaining:
So long as Officer Vinci performed some enforcement
act in the chain of events leading to plaintiff's
injury, subsequent omissions will also be protected
under the immunity. When a sequence of events is
involved, one enforcement event which constitutes an
"act" will stamp the entire sequence as an "act"
regardless of other events which involve failures to
act. Here, Officer Vinci's discretionary election to
limit his response to ordering and escorting decedent
off the roadway is a sufficient "act" to secure the
immunities of N.J.S.A. 59:3-3. . . . Therefore, even
if Officer Vinci was negligent in determining whether
decedent was incapacitated, so long as he made that
determination in good faith N.J.S.A. 59:3-3 will
protect him from liability.
Id. at 816. Similarly here, Craig's "discretionary election" to limit his response to verbally ordering Klein to drive slower is
sufficient to entitle him to the immunity provided in N.J.S.A.
Defendants McGeary and Jankowski are also entitled to immunity
under the New Jersey Tort Claims Act. Plaintiffs allege that
Defendants Klein and Jankowski failed to properly discipline
Klein prior to the accident, thereby indirectly allowing the
accident to occur.*fn13 See Corridan v. City of Bayonne,
324 A.2d 42 (N.J.Super.Ct. App. Div. 1974) (holding a jury
could have held the defendant city liable for the unlawful use of
a police department issued firearm by an off-duty intoxicated
police officer where the city had prior knowledge of the
officer's alcohol problems and violent tendencies, though not
discussing questions of immunity). "Whether to discharge or
retain a police officer after he or she has been charged with
official misconduct is, of course, a discretionary decision."
Denis v. City of Newark, 704 A.2d 1003, 1009 (N.J.Super.Ct.
App. Div. 1998). New Jersey courts have not answered the
question, however, "whether a public entity should be immunized
from liability for exercising that discretion. . . ." Id. For
the following reasons, this Court believes that if a New Jersey
state court were to resolve this issue as it relates to this case, it would
conclude that McGeary and Jankowski should be immune from
Subsection (b) of N.J.S.A. 59:2-3 "deals with the operational
level of decisionmaking and does not implicate high level policy
making decisions." Denis, 704 A.2d at 316 (citing Costa v.
Josey, 415 A.2d 337 (N.J. 1980)). The sorts of discretionary
acts which are covered by subsection (b) are those which "call?
for the exercise of personal deliberations and judgment, which in
turn entail? examining the facts, reaching reasoned conclusions,
and acting on them in a way not specifically directed." Berel
Co. v. Sencit F/G McKinley Assocs., 710 F.Supp. 530, 541 (D.N.J.
1989) (quoting Kolitch v. Lindedahl, 497 A.2d 183 (N.J. 1985)
(emphasis in original omitted)). The disciplinary actions taken
by Defendants McGeary and Jankowski in this case required exactly
that sort of personal deliberation and, thus, give rise to their
As noted above, Jankowski issued a Notice of Disciplinary
Action against Klein on April 26, 2000, based on an incident
involving reckless driving while off-duty. (Mun. Def. Stat. Facts
¶ 15(d). A disciplinary hearing on this matter seeking Klein's
removal was scheduled for June 8, 2000. Plaintiffs here argue
that Klein should at the very least have been suspended from the
Egg Harbor City police force prior to the night of the fatal accident. Plaintiffs' argument, then, must hinge on
N.J.A.C. § 4A:2-2.5(a), providing for immediate suspension of
Pursuant to N.J.A.C. § 4A:2-2.5(a), an employee may be
suspended immediately, without the opportunity for a hearing, in
certain limited circumstances.*fn14 Under subsection (a)(1):
An employee may be suspended immediately and prior to
a hearing where it is determined that the employee is
unfit for duty or is a hazard to any person if
permitted to remain on the job, or that an immediate
suspension is necessary to maintain safety, health,
order or effective direction of public services.
However, a Preliminary Notice of Disciplinary Action
with opportunity for a hearing must be served in
person or by certified mail within five days
following the immediate suspension.
N.J.A.C. § 4A:2-2.5(a)(1). Under the clear language of this
provision, an employer having the authority to suspend an
employee must necessarily exercise personal discretion and
judgment in making his decision. Because suspension under
subsection (a)(1) is not specifically directed but, rather, is
left up to reasoned judgment, the immunity afforded by N.J.S.A.
59:2-3(b) is applicable to the decision by McGeary and Jankoswki
not to suspend Klein prior to the June 8, 2000 hearing. "The philosophical foundation" for the "expansive insulation
from suit" afforded by N.J.S.A. 59:2-3(b), is essentially the
theory that "it can not be a tort for government to govern."
Berel Co., 710 F.Supp. 541 (citing Amelchenko v. Freehold
Borough, 201 A.2d 726
, 731 (N.J. 1964)). By seeking to have this
Court impose liability on Defendants McGeary and Jankoswki for
not immediately suspending Klein prior to a hearing, however,
that is exactly what Plaintiffs here seek to do. Such an outcome
would contravene the immunity conferred by N.J.S.A. 59:2-3(b).
Plaintiffs' negligence claims against Defendants McGeary and
Jankowski will be dismissed.
Finally, because Defendants Craig, McGeary and Jankowski are
immune from liability under the Act, the municipality is immune
from liability as well.*fn15 N.J.S.A. 59:2-2(b) ("A public
entity is not liable for an injury resulting from an act or
omission of a public employee where the public employee is not
liable."); see Ernst v. Borough of Ft. Lee, 739 F.Supp. 220
(D.N.J. 1990) (holding where officers were immune from liability,
borough was also entitled to immunity). Therefore, as required by
New Jersey law, the state law claims against Defendants Egg
Harbor City and the Egg Harbor City Police Department will also
be dismissed. III. CONCLUSION
For the reasons explained above, the Court will grant the
motions for summary judgment by Defendant Keron Kevin Derod Craig
[Docket Item 73], Defendants Egg Harbor City, the Egg Harbor City
Police Department, and James E. McGeary [Docket Item 74] and
Defendant Jankowski [Docket Item 75.] The Court will dismiss all
counts of the Complaint against Egg Harbor City, the Egg Harbor
City Police Department, Defendant McGeary, Defendant Jankowski
and Defendant Craig and enter judgment in their favor and against
The accompanying Order is entered. A trial date of July 18,
2005 has been set for the claims against the remaining