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Jeanne Liburdi v. Township of Toms River


June 22, 2012


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3763-09.

Per curiam.


Argued May 7, 2012 -

Before Judges Parrillo and Alvarez.

Plaintiff Jeanne Liburdi appeals the October 20, 2011 Law Division order granting summary judgment to defendants Township of Toms River, the Toms River Police Department, and Adam Koeppen (collectively, defendants).*fn1 Plaintiff had sued for damages resulting from an automobile accident with Koeppen while he was acting in his official capacity. We affirm.

The following facts are taken from the parties' submissions on defendants' motion. On July 19, 2008, Koeppen, an officer in the Toms River Police Department, responded to a dispatch of an automobile accident with unknown injuries. In accord with the Toms River Police Department Policies and Procedures Manual, Section IV, Koeppen drove his patrol car while using the emergency lights, siren, and opticom, on a code 2 basis, at between thirty-five and fifty miles per hour in a fifty-mile-per-hour zone. The "call detail report"*fn2 attached to his certification confirmed that the dispatch regarding the accident issued on a code 2 basis, as are all accidents with unknown injuries. Similarly, the computer screen in the patrol vehicle automatically indicated the call was a code 2 or priority level 2 call.

The accident at issue occurred while plaintiff, who had been traveling south on Reflection Road, made a left turn onto Silver Bay Road, which is marked with a stop sign. Because of her injuries, plaintiff does not recall the manner in which the accident occurred.

When deposed, Koeppen said at the time of the accident at issue he was responding to an automobile accident with unknown injuries, meaning a code 2 call, albeit the original dispatch directed him to an incorrect address. He said that as he approached the intersection at which the accident with plaintiff occurred, he saw plaintiff's "entire car" pulling out. As Koeppen described it, plaintiff "roll[ed] into the intersection[,]" and despite immediately applying his brakes, he was unable to avoid the collision. The front of his vehicle struck the driver's side of plaintiff's vehicle.

The trial judge found, despite plaintiff's assertions to the contrary, that Koeppen's deposition testimony regarding the accident did not give rise to any material issue of fact. Even though the dispatcher may never have specifically said the call required a code 2 response, the absence of such a statement was inconsequential. The computer-generated records supported Koeppen's certification, in which he referred to the Toms River written policies and procedures providing that any motor vehicle accident with unknown injuries was a "code 2" call. That level of response is indicated and recorded on the patrol vehicle's computer monitor even if the words are not explicitly said by the dispatcher. Accordingly, the judge concluded that Koeppen acted in compliance with departmental requirements, in good faith, and was therefore entitled to statutory immunity. See N.J.S.A. 59:3-3. We agree.

Summary judgment should be granted if viewing the materials in the light most favorable to the non-moving party, a rational factfinder could not "resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

Chapter 3 of the New Jersey Tort Claims Act governs the liability of public employees. N.J.S.A. 59:3-1 to -14. Where a public entity is immune from liability for injury, so too is the public employee. N.J.S.A. 59:3-1(b), (c). The Act provides that "[a] public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him . . . ." N.J.S.A. 59:3-2(a). N.J.S.A. 59:3-3 specifically provides that "[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law." The Act thus establishes a presumption that a public entity and its employees are "immune from liability for an injury caused by it or an employee unless made liable by some express provision of the Act." Clarke v. Twp. of Mt. Laurel, 357 N.J. Super. 362, 368 (App. Div. 2003). Indeed, "[t]he liability provisions of the Act are subordinate to the immunity provisions . . . ." Ibid.

"Good faith immunity under [N.J.S.A. 59:3-3] has two alternate components." Alston v. City of Camden, 168 N.J. 170, 186 (2001) (quoting Fielder v. Stonack, 141 N.J. 101, 131 (1995)). To obtain summary judgment, "a public employee must establish that [his or] her conduct was 'objectively reasonable[,]'" Fielder, supra, 141 N.J. at 132 (quoting Hayes v. Mercer Cnty., 217 N.J. Super. 614, 622 (App. Div.), certif. denied, 108 N.J. 643 (1987)), "in light of clearly established laws[,]" Lascurain v. City of Newark, 349 N.J. Super. 251, 287 (App. Div. 2002), or that he or she acted with "subjective good faith." Alston, supra, 168 N.J. at 186 (citing Fielder, supra, 141 N.J. at 132).

With the caveat in mind regarding determinations of subjective good faith in a context that is not plenary, Fielder, supra, 141 N.J. at 132, summary judgment is appropriate if the employee can establish either factor. Canico v. Hurtado, 144 N.J. 361, 365 (1996); Kelty v. State of N.J., Dep't of Law & Pub. Safety, Div. of State Police, 321 N.J. Super. 84, 94 (App. Div. 1999). "[O]rdinary negligence is an insufficient basis for holding a public employee liable under N.J.S.A. 59:3-3." Lascurain, supra, 349 N.J. Super. at 287 (citing Fielder, supra, 141 N.J. at 101); accord, Kelty, supra, 321 N.J. Super. at 94.

Although not entirely clear, plaintiff appears to be contending that the immunity extended by N.J.S.A. 59:3-3 is in some fashion limited to situations in which an officer is engaging in "enforcement of the law." To the contrary, as the Supreme Court has stated in Canico, supra, 144 N.J. at 366-367:

[T]he Legislature has chosen to immunize law enforcement officers from liability for the negligent operation of their vehicles in response to emergencies. In this sense, "good faith" in section 3-3 and "objective reasonableness" encompass the operation of police vehicles by police officers acting within the scope of their duties and in response to an emergency.

When the accident at issue occurred, Koeppen was responding to an accident call with unknown injuries, a classic example of police meeting their public safety responsibilities and responding to an emergency within the meaning of Canico. He did so in compliance with departmental policies and procedures. Plaintiff does not provide us with any law or fact which would distinguish Koeppen's conduct from the circumstances under Canico, or which would otherwise exempt him from statutory immunity.

Plaintiff also appears to suggest that in some unspecified fashion Koeppen was not acting in good faith, or not in a fashion that was objectively reasonable. The suggestion, however, has not been substantiated. Nothing in the record refutes the conclusion that Koeppen was responding in good faith and reasonably to an automobile accident call.

Lastly, plaintiff contends that Koeppen's deposition testimony was contradicted by two fact witnesses who said that only seconds passed between the sound of the siren and the sound of the crash. Even if true, however, this does not create an issue of material fact compelling denial of defendant's motion for summary judgment. Whether witnesses heard the siren and then the crash immediately thereafter simply does not weaken the credibility of Koeppen's statements nor does it carve out an exception to statutory immunity. Since there is no material fact in dispute, the motion for summary judgment was properly granted.


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