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Corrie A. Allen, Latonya Ingram, Federico Caballero A/K/A Jose Rivera v. Patrick B. Flynn


August 8, 2011


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-1165-06, L-3577-07 and L-2358-07.

Per curiam.


Argued April 12, 2011

Before Judges Carchman and Waugh.

We granted the motion of defendant/third-party plaintiff Waterview Pavilion, Inc. (Waterview), for leave to appeal the order of the Law Division dismissing its third-party complaint against third-party defendant Point Pleasant Beach Police Department (Department) and six of its members, third-party defendants Daniel DePolo, Scott Alan Nase, Richard Otto, Andrew T. Meany, Michael T. Fioretti, and William Ippolito. The appeal also includes the subsequent order denying Waterview's motion for reconsideration. We affirm the dismissal as to all defendants except Ippolito and the Department as to his conduct, as to which we reverse.

This litigation arose out of an automobile accident that occurred on June 25, 2005. In March 2006, plaintiff Corrie A. Allen filed suit against Defendant Patrick B. Flynn, seeking damages for injuries attributable to the accident.*fn1 Flynn, who was a member of the Department at the time of the accident, was the driver of the vehicle that hit Allen's vehicle from behind. Allen alleged that Flynn was intoxicated at the time of the accident. Allen added Waterview and other defendants in an amended complaint filed in May 2006. He alleged that Flynn had become intoxicated at a wedding reception held at Waterview's banquet facility.

Waterview filed an amended third-party complaint in August 2008, alleging that the individual third-party defendants attended the reception, observed that Flynn was intoxicated, and failed to take appropriate police action to prevent Flynn from driving his car. It further alleged that the Department is liable for the wrongful conduct of its employees.

In support of its position, Waterview relies on deposition testimony by DePolo, who was the Chief of Police for Point Pleasant Beach at the time of the accident.

Q: At the wedding itself was there any discussion about somebody taking [Flynn's] keys or otherwise preventing him from driving?

A: Yes.

Q: And with whom was that?

A: First would have been Sergeant William Ippolito from my department.

Q: What was discussed in that conversation?

A: I believe I was leaving the wedding and I remember having a face-to-face conversation with Sergeant Ippolito. I just said, hey, make sure he doesn't drive or attempt to drive tonight.

Q: And what did Sergeant Ippolito say?

A: He assured me that wouldn't happen.

Q: And that is the last of the conversation, right, was there anything more than . . . ?

A: No, that was basically it.

Waterview also relies on Ippolito's testimony that he told Flynn not to drive, but took no other steps to prevent him from doing so.

Rather than answer, the third-party defendants filed a motion to dismiss or, in the alternative, for summary judgment. Waterview opposed the motion, which was argued on October 17, 2008. The motion judge granted summary judgment and dismissed the claims against the third-party defendants, concluding that the Department and its employees were immune from suit. Waterview's subsequent motion for reconsideration was denied on November 21, 2008.

In granting the third-party defendants' motion, the motion judge relied on the Tort Claims Act, N.J.S.A. 59:3-5, which provides that "[a] public employee is not liable for an injury caused by his . . . failure to enforce any law." N.J.S.A. 59:2- 4 confers the same immunity on a public entity. Waterview argues that those sections are not applicable for two reasons.

First, it argues that there were "special circumstances" providing an exception to the immunity provided by those sections of the Tort Claims Act, relying on Campbell v. Campbell, 294 N.J. Super. 18, 25 (Law Div. 1996). Second, Waterview argues that DePolo, the Chief of Police, had sought to enforce the law by directing Ippolito to prevent Flynn from driving, so that the immunity for failing to enforce the law was inapplicable.

Before addressing those issues, we outline the legal principles that govern our determination of this appeal.


It is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Consequently, we review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2(c). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)).

In addressing a motion for summary judgment, a court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540; see also R. 4:46-2(c). Because the motion judge granted summary judgment to the third-party defendants, we must construe the facts in the light most favorable to Waterview. Liberty Surplus, supra, 189 N.J. at 445.

N.J.S.A. 59:2-2(a) provides that a public entity is "liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:3-1(a) contains similar language with respect to public employees. Nevertheless, the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, provides several types of immunity to public entities and their employees, some specific and others more general. "[T]he general rule [is] that public entities are immune from tort liability unless there is a specific statutory provision imposing liability." Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002).


We find no merit in Waterview's special circumstances argument. Campbell, a Law Division decision that relied on California cases interpreting its Tort Claims Act, has been overruled. In Macaluso v. Knowles, 341 N.J. Super. 112, 116 (App. Div. 2001) and Blunt v. Klapproth, 309 N.J. Super. 493, 504 (App. Div.), certif. denied, 156 N.J. 387 (1998), we questioned the applicability of the "special circumstances" exception in New Jersey. In Macaluso, we held that there was no such exception and that Campbell should be disregarded:

In Blunt v. Klapproth, 309 N.J. Super. 493, 507 (App. Div.), certif. denied, 156 N.J. 387 (1998), we questioned whether a "special relationship" exception existed in New Jersey case law. We observed that in Lee v. Doe, 232 N.J. Super. 569 (App. Div. 1989), there was a discussion of California cases that interpreted that state's version of the TCA and established the special relationship exception. Id. at 505. In Blunt we concluded that a special relationship exception was important to California because "'[t]he question of the applicability of a statutory immunity does not even arise [under California law] until it is determined that a defendant otherwise owes a duty of care to the plaintiff and would thus be liable in the absence of such immunity.'" Id. at 506 (citing Davidson v. City of Westminster, 649 P.2d 894[, 896] ([Cal.] 1982)). . . .

However, in New Jersey, "[d]uty is not a consideration and the initial determination is whether an immunity applies and, if not, then whether liability should attach." Id. at 506-07. Ultimately, we concluded that the discussion in Lee about California's special relationship exception was dicta and not a holding that such exception should be considered by the New Jersey courts when applying the TCA. Id. at 507. It is noteworthy that in Lee we upheld the public entity's immunity. Lee, supra, 232 N.J. Super. at 581. The assertion to the contrary in Campbell v. Campbell, 294 N.J. Super. 18, 25 (Law Div. 1996), is clearly erroneous and should be disregarded.

[Macaluso, supra, 341 N.J. Super. at 116.] Consequently, we reject Waterview's special relationship argument.


Waterview's argument that the immunity is not applicable because DePolo ordered Ippolito to prevent Flynn from driving and therefore started to enforce the law has merit. Although a police officer and his or her employer are immune from suit for failing to enforce the law, they are not immune from damages resulting from enforcing it negligently. In Suarez v. Dosky, 171 N.J. Super. 1, 9-10 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980), we held:

Although a police officer may not be liable for failing to respond (if, for example, he was performing some other official duty), if he does respond he will be subject to liability for negligence in the performance of his ministerial duties. N.J.S.A. 59:5-4 does not insulate police officers from unfortunate results of their negligently executed ministerial duties. NeCasek v. Los Angeles, 43 Cal. Rptr. 294, 297 ([Cal. Dist.] Ct. App. 1965).

In Suarez, the defendant state troopers responded to the scene of a minor accident on I-80, issued a ticket to one of the drivers, and summoned a tow truck. They refused requests to escort the individuals involved in the accident off of the highway or to radio for a taxi. Two of those individuals were subsequently killed while trying to walk off of the highway. We affirmed a jury verdict in favor of the estate of one of the decedents. Suarez, supra, 171 N.J. Super. at 5-6.

We relied on Suarez in Massachi v. AHL Services, Inc., 396 N.J. Super. 486, 499 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008), in which we reversed summary judgment dismissing a complaint against a police dispatcher and her public entity employer for negligent handling of an emergency call.

We have held that police officers are entitled to immunity under N.J.S.A. 59:5-4 when their failure to provide police protection or sufficient police protection results from a discretionary decision: "[d]iscretionary decisions of officers in the field may subject a municipality to claims equal to or in excess of those resulting from the errors in judgment or discretion exercised by high-ranking public employees. Their decisions may materially affect the efficient distribution of a scarce police personnel resource." Morey v. Palmer, 232 N.J. Super. 144, 152 (App. Div. 1989). In instances, however, where police officers negligently perform ministerial duties, we have concluded that "N.J.S.A. 59:5-4 does not insulate police officers from [the] unfortunate results of their negligently executed ministerial duties." Suarez v. Dosky, 171 N.J. Super. 1, 10 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980).

Clearly, our holding in Suarez distinguished between the performance of low-level ministerial tasks such as the one the troopers made there, and higher level policy decisions concerning the number of officers a town should employ and how police officers and equipment should be distributed. The latter fall within the protected area of immune decisions that should be insulated from interference by a judge or jury. Id. at 9.

We find the doctrinal underpinnings of Suarez persuasive, and believe its rationale is fully applicable here. Accordingly, the City's "essential right and power to allocate its resources in accordance with its conception of how the public interest will be best served," id. at 9, would immunize the City from liability if it had employed an inadequate number of 9-1-1 operators or if it had provided equipment that was inadequate. Applying the logic of Suarez, we conclude that once the City made a decision to hire 9-1-1 operators and provide them with specific procedural regulations governing the manner in which they must respond to calls, then the negligent performance of those 9-1-1 operator duties is not entitled to any immunity under N.J.S.A. 59:5-4.

Here, the motion judge concluded that the reasoning in Suarez was not applicable to the facts before him because Suarez, unlike the instant matter, did not involve the criminal conduct of a third party. For that reason, the motion judge held that Suarez was distinguishable. We believe his approach constitutes an incorrect reading of Suarez. In Suarez, we specifically addressed the public entity's contention that the defendant troopers in its employ were afforded complete immunity from tort liability in the circumstances of that case. In Suarez, the State argued that N.J.S.A. 59:5-4 provides a "full and complete immunity from all tort liability arising out of any acts or omissions of the police in the performance of their official duties." Id. at 7. We reasoned, in part, that the "broad and pervasive immunity" that the State argued was inherent in N.J.S.A. 59:5-4 would make the immediately following provision, N.J.S.A. 59:5-5, "entirely superfluous." Id. at 8.

The same is true here. N.J.S.A. 59:5-5 provides immunity for the failure of police to "make an arrest" or "retain an arrested person in custody." If, as the motion judge held, N.J.S.A. 59:5-4 provides full immunity to police for the criminal conduct of third parties, then the Legislature would have had no reason to provide a specific immunity in N.J.S.A. 59:5-5 for the failure of police to make an arrest. Thus, we reject the motion judge's conclusion, as we did in Suarez, that N.J.S.A. 59:5-4 immunizes a public entity based upon any and all negligent conduct of police. While Suarez did not address a public entity's potential liability for the criminal conduct of a third party, we rely on its conclusion that N.J.S.A. 59:5-4 cannot be read as broadly as the City does here, or as the State did in Suarez, because to do so would render an entire statutory section superfluous. A construction that will render any part of a statutory enactment superfluous is to be avoided. Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 603 (App. Div. 1994).

Additionally, as we have already discussed, we rely on our holding in Suarez that N.J.S.A. 59:5-4 only immunizes an entity for its discretionary police actions that result in a failure to provide police protection. Suarez, supra, 171 N.J. Super. at 9. The statute does not protect them from the results of the negligent performance of their ministerial duties. Id. at 10.

[Massachi, supra, 396 N.J. Super. at 496-500.]

In Wilson ex rel. Manzano v. City of Jersey City, 415 N.J. Super. 138, 154-55 (App. Div. 2010), certif. granted, 205 N.J. 80 (2011), we held:

Our appraisal of the record, when viewed under the lens of Brill's generosity to the non-movant plaintiffs, convinces us that there were genuine disputed facts relating to the two Jersey City call takers' performance of ministerial--not discretionary--acts. We take our lead from Massachi v. AHL Serv., Inc., 396 N.J. Super. 486 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008), which held that "where police officers negligently perform ministerial duties, . . . 'N.J.S.A. 59:5-4 does not insulate [them] from [the] unfortunate results of their negligently executed ministerial duties.'" Id. at 496 (quoting Suarez v. Dosky, 171 N.J. Super. 1, 10 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980)).

Similarly, N.J.S.A. 59:3-2(d) and N.J.S.A. 59:2-3(d) do not provide immunity from liability for negligence in performance of ministerial police duties once the police have decided to protect. Suarez, supra, 171 N.J. Super. at 9-10; Massachi, supra, 396 N.J. Super. at 495-96. An act is "ministerial" if it is "[o]ne which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done." Morey, supra, 232 N.J. Super. at 151.

A ministerial act is one which is performed "under a given state of facts in a prescribed manner . . . without regard to or the exercise of . . . judgment upon the propriety of the act being done." Kemp by Wright v. State, 147 N.J. 294, 308 (1997) (citation and internal quotation marks omitted); Massachi, supra, 396 N.J. Super. at 495-96; see also Ritter v. Castellini, 173 N.J. Super. 509, 513-14 (Law Div. 1980). On the other hand, the exercise of discretion contemplated by N.J.S.A. 59:2-3(a) "refers to actual, high-level policymaking decisions involving the balancing of competing considerations." Costa v. Josey, 83 N.J. 49, 55 (1980); see also Coyne v. State Dep't of Transp., 182 N.J. 481, 489-90 (2005). The Court's examination in Costa and Coyne of the application of N.J.S.A. 59:2-3 to decisions and actions taken by the Department of Transportation (DOT) is instructive and helpful to our understanding of that statute's application to the matter at hand.

In Costa, the Court recognized that "courts, utilizing standard tort principles, are ill-equipped to interfere" with decisions that have been "traditionally entrusted to coordinate branches of government[.]" Costa, supra, 83 N.J. at 55. In defining the types of DOT decisions qualifying as immune "high- level policymaking decisions," the Court provided as an example a DOT decision to utilize resources and expend funds to maintain a road in a particular manner. Ibid. By comparison, the Court recognized that once such a decision is made, the manner in which it is carried out will likely not fall within the parameters of N.J.S.A. 59:2-3.

The Court expanded upon this concept in Coyne. There, the plaintiff was injured when his vehicle encountered and could not avoid a DOT roving cleaning operation. In seeking summary judgment, the DOT argued that its crew's actions were at least consistent with, if not even more cautious, than that required by the DOT's Safety Manual. Coyne, supra, 182 N.J. at 491. The Court, however, rejected the contention that "behavior consonant with the DOT's Safety Manual automatically immunizes" the behavior of the DOT and its employees. Ibid. The Court instead concluded that because the DOT's Safety Manual "delegate[d] ultimate authority to the road crew, it cannot, as presently constituted and under these circumstances, trigger the discretionary act immunity provisions of N.J.S.A. 59:2-3." Id. at 492.

Applying the law outlined above to the facts of this case, viewed in the light most favorable to Waterview, Liberty Surplus, supra, 189 N.J. at 445, we conclude that the motion judge erred in granting summary judgment with respect to the claims against Ippolito, and the Department as they relate to Ippolito, on the basis of immunity for failing to enforce the law. DePolo, the Chief of Police, instructed his subordinate Ippolito to enforce the law by making sure Flynn did not drive while he was intoxicated and, arguably, by taking Flynn's keys.*fn2

That instruction did not call for Ippolito to exercise the type of discretion immunized by N.J.S.A. 59:3-2(a), but was more akin to the type of ministerial acts discussed in Suarez, Massachi, and Wilson, as well as Costa and Coyne. However, Waterview has failed to articulate a similar claim against any of the other individual third-party defendants, including DePolo, who left the scene after issuing his specific, "face-to-face" directive to Ippolito. Consequently, we affirm the dismissal of the claims against them and against the Department as it relates to their conduct.

In summary, we affirm the dismissal of the third-party complaint as to all third-party defendants other than Ippolito and the Department as related to Ippolito's conduct. We remand for further proceedings consistent with this opinion. We note, however, that we have decided this appeal solely on the basis of the statutory immunity specifically relied upon by the motion judge, which was the primary basis of the arguments on appeal.

We do not reach any tangential issues mentioned in the briefs because we conclude that such issues have not been considered by the trial court and are not adequately briefed on appeal. Affirmed in part, reversed in part, and remanded.

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