On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9390-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and S.L. Reisner.
Plaintiffs' decedent, Andrew Crawford, Jr., was killed in an automobile collision with a carjacked vehicle. In addition to the criminal defendants, plaintiffs sued the City of Newark and its police department for wrongful death resulting from the police pursuit, but did not timely sue the two police officers involved in the chase, nor name the officers as fictitious party defendants. Consequently, plaintiffs' later amended complaint against the two officer defendants was dismissed as barred by the applicable two-year statute of limitations, N.J.S.A. 59:8-9, which the Law Division found was not tolled by the discovery rule. Plaintiffs appeal, and for the following reasons, we affirm.
The pertinent facts are not substantially in dispute. On the evening of November 14, 2002, Isaac Dykes and Antwan Smith carjacked a Lexus vehicle in Jersey City and were pursued by Jersey City police to the Newark city limits, where Newark police officers Emanuel Miranda and Feliberto Padilla, who were alerted by radio dispatch that the carjackers were armed, took over the chase in their marked patrol car. Miranda and Padilla spotted the carjacked vehicle on McCarter Highway at a red light at the intersection of Emmet Street. When the light turned green, the vehicle turned off its headlights, turned left proceeding the wrong way down one way non-divided Emmet Street and accelerated. With their lights and sirens turned on, Miranda and Padilla followed down Emmet Street where, within seconds, the carjacked vehicle collided with Crawford's car at the intersection of Emmet Street and Pennsylvania Avenue, two blocks from Emmet's intersection with McCarter Highway. Crawford died fourteen days later from injuries sustained in the accident.
Shortly thereafter, plaintiffs*fn1 filed a notice of claim for damages under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, against the City of Newark Police Department, alleging that the Newark police operated their police vehicle in "[a] high speed pursuit of a stolen vehicle [that] . . . caused a high speed collision with [Crawford's] vehicle" that resulted in Crawford's death, and claiming that the pursuit was "[u]nnecessary and dangerous." Plaintiffs subsequently filed a second notice of claim against the City of Newark.*fn2
On November 3, 2004, shortly before the expiration of the TCA's two-year statute of limitations, plaintiffs filed a twelve-count wrongful death complaint against the City of Newark and its police department.*fn3 The complaint alleged, among other things, that (1) the City of Newark Police Department operated its police vehicles in a negligent, careless and reckless manner that caused a collision of the carjacked vehicle being pursued and resulted in Crawford's death; (2) the City of Newark, as owner of the police vehicles driven by its employees, gave permission and approval to its employees to operate the police vehicle and is liable for its employees' actions while operating the police vehicles; and (3) defendants John Does 1-10 controlled their vehicle in a negligent manner, which ultimately caused the fatal collision with Crawford's vehicle. Officers Miranda and Padilla were not named in either the original or first amended complaint; nor did plaintiffs preserve any action against any unidentified officers by way of a fictitious "John Doe" designation.
Following discovery,*fn4 which had been delayed presumably on account of the criminal matters pending against Dykes and Smith, plaintiffs, on April 3, 2006, were granted leave to amend their complaint to include Miranda and Padilla. In doing so, the motion judge reasoned that statute of limitations issues are affirmative defenses that are more properly raised after a defendant is joined. Consequently, plaintiffs filed their amended complaint on April 7, 2006, alleging in counts 13 through 16 that Miranda and Padilla committed willful misconduct in their pursuit of the carjacked vehicle, thereby removing them from the immunity that otherwise shields the simply negligent acts of public employees acting within the course of their official employment. See N.J.S.A. 59:3-3; N.J.S.A. 59:3-14(a).
Thereafter Miranda and Padilla filed a motion to dismiss the amended complaint, pursuant to Rule 4:6-2, on statute of limitations grounds.*fn5 In granting the motion, the judge found that plaintiffs were not entitled, under the discovery rule, to toll the two-year statute of limitations because they were aware of an injury and knew, or should have known, that such injury was the fault of these identifiable police officers. Specifically, the judge concluded:
Plaintiffs [argue] that they didn't know that there was willful misconduct, until . . . October 2005, and by reasonable diligence they could not have known before . . . and . . . they took . . . the testimony of . . . defendants now, the two officers, to . . . bolster . . . and . . . an expert report saying that [the officers] . . . did violate police procedures and . . . it is not too late to now join them on the discovery rule.
[T]he case law is very clear that it's simply knowledge of an injury, and that such injury is the fault of another, and that it's the fault of another simply means it's a possibility or reason to suspect that somebody was a contributing cause, or for the fault.
[I]t's admitted that the City was brought in on theories that they were at fault . . . and . . . [plaintiff brought] them in . . . [under] negligent training and supervision. . . .
[Plaintiffs] started the suit . . . because if there's a high speed [chase] that contributes to an accident, I think that's enough that that would be the fault of those parties responsible for the high speed chase . . . [and] I think the people responsible ...