On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4075-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Skillman and Simonelli.
Plaintiffs Richard Dayton (Dayton) and Valerie Dayton appeal the October 10, 2008 Law Division order granting summary judgment to defendants. We affirm.
The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On April 28, 2004, Dayton, a detective with the Camden Police Department, was engaged in an undercover narcotics investigation conducted by the High Intensity Drug Trafficking Area Task Force (Task Force) in the area of 400 Raritan Street,*fn1 near its intersection with Somerset Street in Camden. Defendant Edward Simpson, a Detective Sergeant with the New Jersey State Police, was also assigned to the Task Force. He was parked at the scene in an unmarked Dodge mini van, which was equipped with an emergency teardrop light but no audible device.
At approximately 7:30 p.m., an undercover officer, who was sitting in a parked vehicle (the target vehicle) and wearing an audio device, met with an individual (the suspect) to purchase a significant amount of cocaine. The police had made previous drug purchases from the suspect. The suspect arrived at the scene and entered the target vehicle on the passenger side. Dayton and another officer were parked nearby in an unmarked police vehicle listening to the conversation between the suspect and undercover officer. Other unmarked police vehicles were strategically parked in the immediate area, ready to converge on the target vehicle on Dayton's command.
The undercover officer eventually gave a verbal signal to Dayton, who then instructed "everyone to move in" and arrest the suspect. Dayton pulled his vehicle in front of the target vehicle, exited and arrested the suspect.
According to Simpson, during the arrest he became aware of another possible suspect (the second suspect) sitting in a vehicle parked approximately twenty feet behind his vehicle. He "immediately placed [his] vehicle in reverse in an attempt to pursue the second suspect, however the second suspect['s] vehicle began driving in [his] direction at a high rate of speed. The second suspect swerved around [his] vehicle and fled the area." Simpson placed his emergency teardrop light on his dashboard and activated it. Simpson could not locate the second suspect's vehicle and returned to the scene of the arrest, where Dayton advised him that "[Dayton] had inadvertently been struck by [Simpson's] vehicle when [Simpson] placed the vehicle in reverse in pursuit of the second suspect's vehicle."
Dayton admitted that Simpson could not locate the second suspect's vehicle and returned to the scene of the arrest. However, he denied that the second suspect was driving at a high rate of speed, swerved around Simpson's van and fled the area. In his interrogatory answers, Dayton gave a different version of the incident:
[A]fter the arrest was complete and the scene was secure, the Plaintiff, Dayton heard a commotion on Raritan Street, in the direction of Somerset Street. Dayton went back around the front of the target vehicle and his vehicle and was going down the middle of Raritan Street toward Somerset Street. As he was approaching Somerset Street, on Raritan Street, he noticed [the second suspect's] vehicle coming toward him on Raritan Street. The car was not being driven in an erratic manner, was not speeding nor being driven in an aggressive way. Plaintiff saw the car turn right on to Somerset Street and was immediately struck from behind and knocked to the ground . . . by [Simpson's van]. When Dayton got back on his feet, the [second suspect's vehicle] that had turned onto Somerset was no where in sight and [Simpson's van] was attempting to make a right turn on to Somerset Street; but, had not backed up far enough to negotiate the turn, and wound up on the front lawn of the home on the corner of Raritan and Somerset Streets. . . . Simpson, aggressively (wheels screeching and engine racing) backed the . . . [v]an up again, and then went forward on to Somerset Street. After that, the Plaintiff told his supervisors . . . that . . . Simpson, had run him down/over.
Dayton refused medical treatment at the scene, stating that he felt stiff but had no pain. However, in the days following the incident, he developed increasingly severe pain in his neck and back. On December 27, 2005, he underwent an anterior cervical discectomy with plate and screw fixation, bone bank fusion, C5-6 and C6-7.
On May 9, 2005, Dayton filed a complaint, alleging that Simpson "operated his [van] in a negligent, careless and reckless manner[.]"*fn2 Dayton also alleged that Simpson disregarded the New Jersey Attorney General's guidelines on vehicular pursuits (the Pursuit Policy), which prohibit pursuits by unmarked police vehicles without an emergency light and audible device, and that Simpson's actions constituted willful misconduct, negligence and recklessness.
The Pursuit Policy defines pursuit driving as an active attempt by a law enforcement officer operating a motor vehicle and utilizing emergency warning lights and an audible device to apprehend one or more occupants of another moving vehicle when the officer reasonably believes that the driver of the fleeing vehicle is aware of the officer's attempt to stop the vehicle and his resisting ...