On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, Docket No. L-0228-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and J. N. Harris.
Plaintiffs appeal from a final judgment flowing from orders of May 28 and July 17, 2009 granting summary judgment to defendant Township and its police officer Eugene Fisher (based on the performance of discretionary acts) and denying reconsideration.*fn1 Plaintiffs argue "the trial court erred in holding that the defendants, police officer Eugene Fisher and Union Township, are immune from liability for their abandonment of Johanna Trimmer at the site of the first accident" and that N.J.S.A. 59:3-2(d) does not provide immunity in this case. The defendants filed a protective cross-appeal asserting other bases for affirmance.
On October 8, 2006, an accident occurred in Union at the intersection of Morris and Rahway Avenues. The accident involved the plaintiff deceased, Johanna Trimmer, who was driving a Chevy Cavalier, and Franklin Vega, who was riding a motorcycle. As a result, defendant Fisher, who was employed by the Union Township Police Department as a patrolman and a Crash Investigator, was dispatched to the scene of the accident.
When Fisher arrived at the scene, he observed that Vega was lying face down on the ground. According to Fisher, he believed the accident was fatal because Vega had been thrown over Trimmer's car and had landed, head first, on the street. Other police officers were already at the scene when he arrived.
Fisher conducted an investigation of the accident. Trimmer told Fisher that the motorcycle had hit her as she was making a left turn from Morris Avenue westbound onto Rahway Avenue. Fisher maintains Trimmer told him she was not injured. However, she was "maybe a little shaken up, but [she] was not hysterical or anything like that." Otherwise, Fisher asserts Trimmer "seemed to be perfect, within her faculties."
After transcribing the information Trimmer had given him, Fisher states that he gave her back her license, registration, and insurance card which he had taken, and asked how she was doing, to which Trimmer answered she was fine. Trimmer then inquired about what to do with her car, which was disabled. Fisher suggested that she could leave her car at the parking lot of a Getty gas station which was located on Morris Avenue, not too far from the scene of the accident. Thereafter, Fisher returned to the police car and continued his paperwork.
According to Sabri Seckin (Seckin), an attendant at the Getty gas station, Trimmer drove her car to the station and asked if she could park it there, to which Seckin consented.
Fisher asserts in his deposition testimony that the Union Township Police Department had no operating procedure requiring an investigating officer to ensure that an accident victim whose car had been disabled returned home safely. Fisher maintained that in situations where the victim had no way of making such arrangements, the police could take them to the police headquarters or call a taxi, as a courtesy. However, in this case, Fisher acknowledged that he did not inquire as to how Trimmer was getting home, or whether she had any relatives who could pick her up. Nevertheless, according to Fisher, he wanted one of the other officers to assist Trimmer so that she could get home. This is because he had a mother who was around Trimmer's age and he knew "how [he] would feel if [his mother was in the same situation] and didn't get a ride home." He also maintains that he did not see Trimmer at the gas station. However, he admitted that he "did [not] make any inquiry as to where [Trimmer] went." Although Fisher asserts that he looked for, but could not find, Trimmer, Seckin's uncertified statement maintained that she remained at the gas station for "approximately [twenty] minutes" after her interview with Fisher.
According to Seckin, because the police made no "arrangement for taking the elderly woman home," he asked her "if she would wait until 7:00 pm, when [he] was required to close up the gas station, and [he] would drive her home." Trimmer declined the offer, and told Seckin that she lived nearby, on Liberty Avenue, "and that she would walk home." According to plaintiffs' responses to interrogatories she lived approximately 1.2 miles away.
After his unsuccessful attempts to locate Trimmer, Fisher proceeded to the University of Medicine and Dentisry (UMDNJ) where Vega was taken to inquire about his condition. Fisher was not accompanied by any of the other police officers from the accident scene. He also ...