On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4075-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Alvarez.
Plaintiff, Richard Dayton, a Detective with the Camden Police Department, was allegedly injured while participating in an undercover narcotics investigation conducted by the Camden Police Department's High Intensity Drug Trafficking Area Task Force (Task Force). Defendant, Edward Simpson, a State Trooper, was assigned to assist the Task Force and its members who were involved in the operation.*fn1 Simpson backed his vehicle into Dayton while Dayton was standing on the roadway after effectuating the arrest of an occupant in one of the targeted vehicles. Simpson was driving an undercover leased Dodge Mini Van. Although equipped with a portable emergency teardrop light, which was on the dashboard, the van did not have an audible device. Immediately before striking Dayton, Simpson had placed the van in reverse and backed up to negotiate a turn, in order to pursue perpetrators in another vehicle he perceived were escaping. According to Dayton's version, after he was struck, Simpson then "aggressively (wheels screeching and engine racing) backed the Dodge Mini Van up again, and then went forward" in pursuit of the other vehicle.
Dayton and his wife filed suit, naming several John Does, Clinton Leasing, Incorporated, and the State of New Jersey, Department of Law and Public Safety, and the State Police.*fn2 On April 27, 2007, summary judgment was granted in favor of Simpson and the State, based upon immunity afforded under N.J.S.A. 59: 5-2c. Dayton and his wife appeal, and we reverse the order for summary judgment and remand for further proceedings.*fn3
At the time of the incident, Section III D of the Attorney General's New Jersey Vehicular Pursuit Policy (Pursuit Policy) provided:
An unmarked police vehicle will not participate in a vehicular pursuit unless it is equipped with an emergency light and an audible device. The unmarked car shall relinquish primary unit status immediately upon the participation of a marked vehicle.
Section II B of the Pursuit Policy stated:
Upon the commencement of a pursuit, the pursuing officer will immediately activate emergency lights, audible device and headlights.
On April 7, 1999, referencing the Pursuit Policy, the Superintendent of the State Police established the New Jersey Standard Operating Procedure (SOP) for vehicular pursuit. The SOP had a similar provision precluding use of an unmarked car for pursuit if not equipped with both an emergency light and an audible device, but allowing its use to effect a stop. Both the SOP and Pursuit Policy contained the following pertinent introductory statement:
The primary purpose of this policy is to secure a balance between the protection of the lives and safety of the public, members and other police officers, and law enforcement's duty to enforce the law and apprehend violators. Since there are numerous situations which arise in law enforcement that are unique, it is impossible for this policy to anticipate all possible circumstances. Therefore, this policy is intended to guide a member's discretion in matters of vehicular pursuit.
Simpson filed an affidavit in support of the State's motion for summary judgment. According to Simpson, at the time of the incident, he "was driving . . . an unmarked State Police 2002 Dodge Mini Van." He acknowledged that it was not equipped with an audible device. He asserted that the circumstances required him "to make split second decisions to preserve [his] own safety as well as the safety of other officers present," and "to use his best judgment as to what actions to take in [his] attempt to prevent the fleeing suspect from escaping." He maintained that because he was faced with a split-second decision, the thought that he might violate the pursuit policy regarding the absence of an audible device "did not enter [his] mind," and he did not "knowingly or intentionally violate" the policies.
Although Simpson stated that the pursuit began "[w]hile [he was] effecting an arrest on the suspect in the undercover officer['s] vehicle," Dayton stated that the arrest had already been made and the scene secured. In the special report Simpson filed on April 28, 2004, he wrote that he inspected his vehicle for damage but found none. Dayton, however, observed a broken ...