(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 27, 1995 -- Decided July 6, 1995
WILENTZ, C.J., writing for the Court.
On July 27, 1989, Officer Frederick Jenkins of the Neptune Police Department was operating a
police car involved in the pursuit of a motorcycle heading toward the heavily travelled intersection of Routes
33 and 35. A signal light controls the flow of traffic through that intersection. The motorcycle and two
police vehicles proceeded through the intersection under a green light. By the time Officer Jenkins reached
the intersection, the light had turned red. Noelle Stonack was driving a car southbound on Route 35. As the
Stonack vehicle entered the intersection under a green light, it collided with Officer Jenkins's vehicle,
resulting in severe injury to Robin Fielder who was seated in the front passenger seat of Stonack's car.
Fielder sued, among others, Officer Jenkins, the Neptune Police Department and the Township of
Neptune (defendants) to recover damages for her injuries. Defendants filed a motion for summary
judgment, claiming immunity under the New Jersey Tort Claims Act (Act). The trial court granted the
motion and, relying on the Appellate Division decision in Tice v. Cramer, held that defendants were immune
from liability under the Act as a matter of law.
The Appellate Division, in Fielder I, reversed the decision of the trial court, finding that the sections
of the Act relied on in Tice, N.J.S.A. 59:5-2b and 3-3, were inapplicable since Tice involved an injury that
resulted from a collision between the pursued vehicle and an innocent third party. The court held that
N.J.S.A. 59:5-2(b) (section 5-2b), which immunizes a public entity or public employee from liability for any
injury caused by an escaping person or person resisting arrest, does not apply when the injury was caused by
the pursuing officer. The court also found that N.J.S.A. 59:3-3 (section 3-3), which provides immunity for a
public employee who "acts in good faith in the execution or enforcement of any law," does not apply to the
negligent operation by a police officer of his patrol car.
On July 28, 1993, four months after Fielder I was decided, this Court affirmed the Appellate
Division decision in Tice, holding "that police officers are absolutely immune under [5-2b(2)] for injuries
resulting from their pursuit of a person who has failed to stop at police command even though the injuries
would not have occurred but for the negligence of the police." Defendants filed a second summary judgment
motion, arguing that Tice effectively overruled the Appellate Division's holding in Fielder I. The trial court
denied the motion.
On appeal, the Appellate Division, in Fielder II, affirmed the trial court's denial of summary
judgment, concluding that, among other things, the common law and relevant statutes prior to the Act
recognized the same distinctions that it drew in Fielder I and that the Act adopted this distinction as
supported by section 5-2b.
The Supreme Court granted defendants' motion for leave to appeal.
HELD: Absent willful misconduct, N.J.S.A. 59:5-2b(2) provides absolute immunity to a police officer whose
negligence in pursuing a fleeing automobile causes injury to a third party. Because genuine issues of
material fact exist as to whether the officer's conduct during the pursuit constituted willful
misconduct, summary judgment is inappropriate.
1. The distinction adopted by the Appellate Division departs from tort law concerning automobile
negligence, wherein liability ordinarily depends on negligence and causation, not on which cars were involved
in the actual collision. This is an automobile negligence case, although liability is ultimately governed by the
Act. It is unlikely that the Legislature would alter tort law without some clear indication of legislative intent
to do so. (pp. 10-12)
2. The Legislature's intent in codifying the immunity found in section 5-2b was to ensure that police officers'
pursuits of escaping drivers not be inhibited by the threat of civil liability, if there is an accident; the goal was
to free law enforcement from the threat of civil liability, so that it can function effectively to protect the
public in difficult and dangerous situations, absent willful misconduct. That immunity, now firmly established
in Tice as serving the legislative goal of effective police pursuit, must be given the scope intended by the
Legislature. The Appellate Division decision clearly diminishes the effectiveness of pursuit and cancels the
purpose found as a basis for immunity in Tice. Moreover, the effect of the decision below would not be
limited to high-speed pursuit. (pp. 14-20)
3. There is no meaningful distinction between Tice and this case. The language of section 5-2b(2)
encompasses injuries caused directly by either the pursuing officer or the escaping person. To deny the
officer immunity would render the Act meaningless and would defeat the purpose of section 5-2b(2). The
Legislature could not have intended to confer immunity when the pursued vehicle is involved in the collision
but to deny immunity when the collision involves the police vehicle.
(pp. 20-29)
4. Section 5-2b(2) provides absolute immunity, absent willful conduct. In defining willful misconduct
pursuant to section 5-2b(2), the Court is mindful of the legislative goal. In the context of a police officer's
enforcement of the law, including the pursuit of a fleeing vehicle, willful misconduct is ordinarily limited to a
knowing violation of a specific command by a superior, or a standing order, that would subject the officer to
discipline. Willful misconduct in a police vehicular chase has two elements: (1) disobeying either a specific
lawful command of a superior or a specific lawful standing order and (2) knowing of the command or
standing order, knowing that it is being violated and, intending to violate it. The defense of good faith in the
enforcement or execution of the law is unavailable when the public employee is guilty of willful misconduct.
However, proof of lack of good faith does not equate with willful misconduct but may be relevant to the
employee's state of mind. (pp. 29-36)
5. Although Officer Jenkins is entitled to immunity under section 5-2b(2), in order to justify summary
judgment, he must establish that there is no genuine issue of material fact in respect of any of the elements
of the willful misconduct standard. Here, genuine issues of material fact may exist in respect of: 1) Officer
Jenkins' apparent violation of an internal department policy when he left his designated zone of patrol to
participate in the pursuit of the motorcycle; and 2) his continuing pursuit after a radio transmission from his
supervisor ordering Neptune Township officers to terminate the pursuit should the situation become
dangerous to themselves or others. Therefore, summary judgment on behalf of Officer Jenkins is not
warranted. Neptune Township, however, is entitled to summary judgment. (pp. 36-40)
6. Police officers engaged in pursuit of fleeing drivers are acting within the scope of their duty to uphold
motor vehicle laws and are, therefore, executing or enforcing the law within the meaning of section 3-3. To
obtain summary judgment under that section, a public employee must establish that his or her conduct is
objectively reasonable, and, if not objectively reasonable, the employee can raise the defense of subjective
good faith at trial. Although section 3-3 applies to police officers engaged in pursuits, section 5-2b(2), which
is specifically aimed at encouraging pursuit, better serves that purpose. Therefore, the Court bases its
holding only on section 5-2b(2). (pp. 40-47)
Judgment of the Appellate Division is AFFIRMED in part and REVERSED in part and the matter
is REMANDED to the trial court for proceedings consistent with this opinion.
JUSTICE STEIN, concurring in the Court's judgment, writes separately to state his view that relying
on section 3-3 as a basis for the police officer's immunity better comports with the plain language of the Act.
The plain language of section 3-3, as well as the judicial construction of that provision, provides immunity to
those officers who injure others in the course of a pursuit executed in good faith. Rather than extend the
application of section 5-2b(2) to situations not within the plain and clear purview of the statutory language,
Justice Stein would apply section 3-3, which specifically provides for such immunity.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in CHIEF
JUSTICE WILENTZ'S opinion. JUSTICE STEIN concurs in the judgment of the Court and wrote a
separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
115 September Term 1994
ROBIN FIELDER,
Plaintiff-Respondent,
v.
NOELLE E. STONACK,
Defendant-Respondent,
and
FREDERICK S. JENKINS,
TOWNSHIP OF NEPTUNE POLICE
DEPARTMENT and TOWNSHIP OF NEPTUNE,
Defendants-Appellants,
and
KEVIN MC GHEE and BENNIE T.
MC GHEE,
Defendants.
Argued March 27, 1995 -- Decided July 6, 1995
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
274 N.J. Super. 485 (1994).
Martin J. McGreevy argued the cause for
appellants (Carton, Witt, Arvanitis &
Bariscillo, attorneys; Mr. McGreevy and James
D. Carton, IV, on the briefs).
William B. Gallagher, Jr., argued the cause
for respondent Robin Fielder (Klitzman &
Gallagher, attorneys; Austin M. Kenny, on the
brief).
Michael F. Carnevale, II, argued the cause
for respondent Noelle E. Stonack.
Boris Moczula, Deputy Attorney General, argued the cause for amicus curiae, Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General, attorney).
The opinion of the Court was delivered by
WILENTZ, C.J.
In Tice v. Cramer,
133 N.J. 347 (1993), we decided that
the Tort Claims Act provides immunity to police officers whose
negligence in pursuing a fleeing automobile causes it to
injure third parties. We based our conclusion on the history
of the Act, its New Jersey common-law antecedents, its
California precedents, and the legislative intent not to
impede such pursuit by the threat of civil liability if
accidents occur. In this case, the material facts are
essentially the same except for the coincidence that the
officer's negligence led to a collision in which his car,
rather than the escaping person's car, collided with the third
party's vehicle. The Appellate Division held that Tice
immunity did not apply; that the result depended on which car
hit the third party's car; that despite similar exigencies of
the pursuit and the extent of the officer's negligence, if the
fleeing car hit a third party because of that negligence, the
officer was immune, but if his car hit it, he was liable. We
reverse on that issue. The officer is immune in both cases.
On July 27, 1989, Officer Susan Wallace of the Tinton
Falls Police stopped a motorcycle for speeding. The vehicle,
owned by Bennie McGhee and driven by his son Kevin McGhee, had
been recorded by radar travelling at 78 miles per hour on
Route 33. The driver did not have a license or registration
with him but gave the officer his name and address. When
Officer Wallace returned to her patrol car to see if there was
a record of the driver's license, Kevin McGhee jumped on the
motorcycle and drove east on Route 33 towards Neptune Township
at a high rate of speed. Officer Wallace requested assistance
from the Neptune Police and proceeded to chase the McGhee
motorcycle. She was promptly joined in the pursuit by two
additional patrol cars.
Officer Frederick Jenkins of the Neptune Police Department was on routine patrol in the Shark River Hills section of the township when he heard the dispatcher relay the request for assistance. Although the motorcycle was not fleeing through his zone of patrol, and department policy apparently provided that officers not leave their zone unless instructed to do so by a commanding officer, Officer Jenkins proceeded to Route 33 with the intention of joining the pursuit. According to Officer Jenkins, while waiting to turn onto Route 33, he observed the motorcycle followed by two Tinton Falls patrol cars. He turned onto Route 33 and joined the pursuit behind these two patrol cars. A short time later,
in the vicinity of Jersey Shore Medical Center, another
Neptune patrol car joined the chase in front of him. There is
some disagreement among the witnesses about the identity and
number of the patrol cars ahead of Officer Jenkins. The
undisputed fact, however, is that by the time the chase
reached Jersey Shore Medical Center, Officer Jenkins' vehicle
was either the third or fourth police car involved in the
pursuit of the motorcycle.
Prior to Officer Jenkins reaching the intersection of Routes 33 and 35, Sergeant Blecki, the Neptune shift commander, radioed all Neptune mobile units participating in the pursuit and ordered that they terminate pursuit if there was a risk of danger to themselves or others. The intersection of Routes 33 and 35 is one of the most heavily traveled in Monmouth County. A signal light controls the flow of traffic. The motorcycle and the first two or three pursuing patrol cars sped through the intersection with the green light in their favor. A witness at the scene stated that these vehicles were about a minute ahead of Officer Jenkins. Jenkins himself stated that at this point he could not see the motorcycle, but could see the rear of the last patrol car. Before Officer Jenkins entered the intersection, the light turned red. Officer Jenkins stated that he activated both siren and warning lights, slowed down and looked for cross traffic before entering the intersection.
There is disagreement, however, among the parties and other
witnesses about whether, and if so, when the siren was
activated. Defendant Noelle Stonack was driving Southbound on
Route 35 with plaintiff Robin Fielder in the front passenger
seat. As the Stonack vehicle entered the intersection with
the green light in her favor, her vehicle and Officer Jenkins'
patrol car collided, resulting in severe injury to Fielder.
Fielder filed a complaint against Stonack, the McGhees,
Officer Jenkins, the Neptune Police Department and the
Township of Neptune to recover damages for her injuries. The
defendantsSee footnote 1 filed a motion for summary judgment claiming
immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1
to 12-3. The court granted the defendants' motion and,
relying on the Appellate Division's decision in Tice v.
Cramer,
254 N.J. Super. 641 (1992), held that they were immune
from liability under the Tort Claims Act as a matter of law.
The Appellate Division granted plaintiff Fielder's motion for leave to appeal and reversed the trial court's order granting summary judgment. Fielder v. Jenkins, 263 N.J. Super. 231 (App. Div. 1993) (Fielder I). The court noted that it was error for the trial judge to rely on the holding of
Tice since that case involved an injury which resulted from a
collision between the pursued vehicle and an innocent third
party. The Appellate Division in Tice had relied on two
separate sections of the Tort Claims Act for its holding,
N.J.S.A. 59:5-2(b) and 3-3,See footnote 2 but the Appellate Division in
Fielder I held that neither section applied to the facts
before it.
The court held that N.J.S.A. 59:5-2(b), which immunizes a
public entity as well as a public employee from liability for
any injury caused by an escaping person or person resisting
arrest, was not applicable to a case in which the injury is
"caused by" the pursuing officer. "[I]f the pursuing police
officer himself is involved in the accident, the proximate
cause of the accident is, if he was driving negligently, his
own conduct as a driver. To that extent he, not the person he
was pursuing, caused the injury." Fielder I, 263 N.J. Super.
at 235. The Appellate Division went on to reject N.J.S.A.
59:3-3, the second provision relied on by the Tice court,
which provides immunity for a public employee who "acts in
good faith in the execution or enforcement of any law."
N.J.S.A. 59:3-3. "We are satisfied . . . that this section
does not apply to negligent operation by a police officer of
his patrol car." Fielder I, 263 N.J. Super. at 236. The
court further noted that N.J.S.A. 39:4-91, which states that
drivers must yield the right of way to emergency vehicles,
nonetheless requires the driver of the emergency vehicle to
"drive with due regard for the safety of all persons." Id. at
235-36 (quoting N.J.S.A. 39:4-91). The Appellate Division
reversed the grant of summary judgment and remanded for trial.
On July 28, 1993, four months after the Appellate Division decided Fielder I, this Court affirmed the Appellate Division decision in Tice v. Cramer, 133 N.J. 347 (1993),
holding "that police officers are absolutely immune under
N.J.S.A. 59:5-2b(2) for injuries resulting from their pursuit
of a person who has failed to stop at police command even
though the injuries would not have occurred but for the
negligence of the police." Tice, supra, 133 N.J. at 351.
The defendants filed another motion for summary judgment in
the trial court on the grounds that Tice effectively had
overruled the Appellate Division's holding in Fielder I. They
asserted that under the holding of Tice a police officer had
absolute immunity from liability, in the absence of willful
misconduct, for injuries sustained in a collision between the
officer's car and an innocent third party, and that they were
therefore immune from liability as a matter of law. While
acknowledging language in the Tice decision which questioned
the conclusion in Fielder I, the trial court held that it did
not amount to an overruling of Fielder I and denied the motion
for summary judgment.
The Appellate Division granted interlocutory appeal and affirmed the trial court's denial of summary judgment. Fielder v. Jenkins, 274 N.J. Super. 485 (App. Div. 1994) (Fielder II). The Appellate Division concluded that prior to the Tort Claims Act, the common law and relevant statutes recognized the same distinction that it drew in its decision below, and that the Tort Claims Act adopted it, granting immunity if collisions involved the escaping vehicle but
imposing ordinary common-law liability if the officer's car
was involved; that the language of N.J.S.A. 59:5-2b supports
that conclusion; that such a conclusion accords with "our
present system of socially responsible jurisprudence," a
"basic tenet" of which is "by insurance coverage[] to spread
the risk of compensating individual victims of negligence,"
id. at 491; that conferring immunity "upon any motorist from
the consequences of his own negligent driving" is inconsistent
with our "long history of legislative solicitude for the
innocent motorist," id. at 492 (emphasis added); that "public
protection requires the imposition upon police officers of a
duty of care commensurate with the circumstances" when they
drive, ibid.; that it was "aware of no situation in which a
person is not charged with liability for the consequences of
his own negligent driving" and that it did "not believe the
Tort Claims Act so requires when the negligent driver is a
police officer," id. at 493; and, finally, that other
jurisdictions make this same distinction. Id. at 493-94.
We treat these views of the Appellate Division, including the underlying theme that there is a difference between the two situations. We address the Appellate Division's rejection of the Act's "good faith" defense. Finally, we deal with that court's holding that apart from the foregoing considerations, all leading the Appellate Division to affirm the trial court's denial of the officer's motion for summary judgment, there was
yet an alternative ground for such denial: that even if the
officer was otherwise immune, the record on the summary
judgment motion did not foreclose a finding of willful
misconduct, id. at 495, a finding which would deny immunity
under the Act. N.J.S.A. 59:3-14.
The distinction adopted by the Appellate Division departs from our tort law concerning automobile negligence. Pursuant to that law, liability ordinarily depends on negligence and causation, not on which cars were involved in the actual collision. We have no doubt there are many cases holding drivers liable even though their car was not involved in a collision, if their negligence caused it, including some reported, e.g., Andreassen v. Esposito, 90 N.J. Super. 170 (App. Div.), certif. denied, 46 N.J. 605 (1966), as well as cases holding drivers whose cars were involved in the collision not liable if their negligence did not cause the collision, e.g., Ryslik v. Krass, 279 N.J. Super. 293 (App. Div. 1995). The Appellate Division's construction of the Tort Claims Act, furthermore, would remove immunity completely on those fairly frequent occasions where neither the pursued vehicle nor the police car is involved in the collision, where innocent motorists crash into each other's cars as a result of the high-speed chase and the concurrent negligence of the drivers of the pursued vehicle and the police vehicle. The
"who hit whom" approach would immunize the negligent police
officer if the pursued vehicle smashed into these other cars,
but not if it escaped the collision that it caused. Given the
necessarily assumed fact that both vehicles caused the
collision, albeit "indirectly," further construction to avoid
the obvious consequence of this interpretation of the statute
would presumably lead to distinctions concerning which
indirect cause was more "direct" than the other.
The critical factor in automobile cases is not which cars are involved in the collision, but whose negligence was the cause. This is an automobile negligence tort case, although liability ultimately is governed by the Tort Claims Act. We deem it unlikely that the Legislature would upset this unvarying course of tort law by making the consequences of one's negligence dependent on whether one did or did not actually hit another vehicle. As we suggested in Tice, the happenstance of which car hit the other vehicle is an unsound basis for exculpating or inculpating the negligent driver who caused the accident: that driver is liable whether that car is totalled or emerges without a scratch. The proposition is fundamental and elementary in negligence law, and it would require a clear indication of legislative intent to reverse it. There is no such indication, and the legislative policy considerations point strongly in the other direction. Indeed,
they are a major reason for the results both in Tice and in
this case.
The basis for our reading (and the Appellate Division's)
of the statute in Tice was the same as the basis for the
ruling in Roll v. Timberman,
94 N.J. Super. 530 (App. Div.),
certif. denied,
50 N.J. 84 (1967): police officers' pursuits
of escaping drivers should not be inhibited by the threat of
civil liability if an accident ensues. That was our explicit
conclusion concerning the legislative intent codifying that
immunity in the Tort Claims Act, Tice, supra, 133 N.J. at 363,
365. That immunity, now firmly established in Tice as serving
the legislative goal of effective police pursuit, must be
given the scope intended by the Legislature. The Legislature
not only recognized that the threat of civil liability could
impede police officers engaged in pursuits, but could also
hinder a municipality's efforts to effectively train their
police officers to vigorously enforce the law. Although in
Tice this Court regarded, and now regards, proper training and
standards as paramount, it recognized the problems associated
with training developed under the threat of civil liability.
"[T]he potential of tort liability might encourage standards
and training so restrictive -- for the purpose of avoiding
injuries and liability -- as to impede the ultimate goal of
vigorous law enforcement, including the vigorous pursuit of
suspects." Id. at 365.
That conferring immunity has a price is obvious:
aggressive pursuit will lead to accidents; cautious pursuit
will cause fewer. We accept the Legislature's policy
decision, as we must. It is clearly a matter within
legislative power. The Appellate Division's decision below,
both its outcome and reasoning, appears to favor police
liability in opposition to immunity in police pursuits.
Whatever the wisdom of such policy, it is not the one adopted
by the Legislature.
The Appellate Division justifies its decision by its accord with statutory legislative policies favoring compensation of injured victims through insurance, Fielder II, 274 N.J. Super. at 491-92, an observation accurate enough, but one that we believe is not in accord with the Tort Claims Act and its general purpose, as well as the specific purpose of section 2b(2). The Act is not an insurance plan; it was not designed to assure compensation but to restore sovereign immunity. The section of the statute at issue is similarly not part of an insurance plan but is specifically designed, as we held in Tice, to confer immunity on police officers. The Appellate Division's extensive discussion of the common-law liability of police officers and the limits, prior to the Act, of the statutory protection afforded by N.J.S.A. 39:4-91 to those driving "emergency vehicles" seems similarly inappropriate. It notes that police officers were liable,
before the Act, for their negligence despite such an "emergency vehicle" statute, but that statute does not apply in this case.See footnote 3 As we held in Tice, and as the Appellate Division held in both Roll and Tice, the "emergency vehicle" statute, even under the common law, and especially under the Act, is inapplicable to a police chase -- the only question being whether the Act's immunity is lost if the police car is involved in the collision. Its reliance on "the Varlaro line of cases" includes observations inconsistent with Tice, e.g. that there is nothing in the law that immunizes a police officer for negligent operation of a vehicle in a chase, the opposite of what both that court and this Court held in Tice. In short, the opinion below, despite Tice, seems to seek to
restrict police immunity during pursuit in accord with policy
goals that are inconsistent with those found in Tice.
An officer pursuing an escaping person faces many
difficult decisions: whether to pursue at all; how
aggressively to pursue; how to balance the risk of injury
inevitably involved in the chase against the risk to society
of not pursuing; how to evaluate the apparent minor guilt of
fleeing against the potentially greater guilt implicit in
flight; and how to assess society's interest in enforcing the
law. All of these are difficult law enforcement questions,
amenable to legislative treatment or, in its absence, judicial
treatment. They are most difficult questions. Here, the
Legislature has spoken and we have so ruled: police officers
may pursue without being inhibited by the threat of potential
civil liability for injuries if their actions are thereafter
deemed to have negligently caused them; they need not give up
or moderate the chase because of that threat.See footnote 4 We so ruled in
Tice, holding that even though the officer's negligent pursuit
may have caused the death of two people, the officer was
immune.
That policy cannot be squared with the Appellate
Division's decision. It cuts into the heart of it. The
legislative intent to free officers from the threat of civil
liability is cancelled by the knowledge that if it is their
car that collides, there is no immunity -- they are liable.
The risk of accident, injury, and death, which stems from the
police car and the pursued car, inheres in every inch of the
way in such a pursuit: it inheres in its commencement, its
continuance, its intensity, and its sometimes disastrous
outcome. Officers are told to conduct that pursuit without
regard to civil liability: if aggressive pursuit is otherwise
warranted, notwithstanding the serious risks attendant upon a
high-speed chase, neither the decision to pursue nor the
decision to continue, nor the manner in which it is conducted
should be affected by the threat of civil liability. That
message, and the policy it reflects, is erased if the police
officers are told they will be liable if their cars are
involved in collisions. They cannot be expected to pursue
aggressively and cautiously at the same time; they cannot be
expected to pursue aggressively without fear of liability for
causing the risk of the pursued car's driving if the risk of
their own driving, just as likely to cause injury, each risk
substantially the mirror image of the other, may bring them to
court if they happen to be the one involved in the collisions.
The Appellate Division decision clearly diminishes the
risk of negligently caused accidents, but just as clearly
diminishes the effectiveness of pursuit. As a practical
matter, it cancels the purpose found as the basis of immunity
in Tice and Roll. The impact on the officer's willingness to
pursue and aggressiveness in pursuit may be more complex than
what we have described above, but it makes for a scheme of
policy and immunity that would be most difficult for an
officer to understand. It tells officers to pursue
aggressively if the other car is going to get in an accident,
but to pursue carefully if they are going to get into an
accident, when they have not the slightest idea who is going
to get into an accident, during the very same indivisible
pursuit. It makes sense only if you wish to limit or
terminate the immunity; it makes sense only if you believe the
policy is wrong.
Perhaps it is. But that is not for us to decide. We do
not seek a means of finding compensation in an immunity
statute any more than we seek a means of finding immunity in a
compulsory insurance statute.
We believe that the effect of the decision below, if followed, is not limited to high-speed vehicle pursuit cases. Its distinction granting law enforcement immunity only when the offender makes contact but not when the police do
apparently would apply to apprehending not just "escaping
persons," but escaping prisoners and those resisting arrest.
No great imagination is needed to demonstrate its
consequences: when police are quelling a bar room brawl, or
are involved in the apprehension of one or more armed and
highly dangerous criminals, or are attempting to arrest
violent assaultive people embedded in a large crowd of
demonstrators, the inevitable risk of injury from both police
and offenders is apparent. The threat to law enforcement of
civil liability in this melee in the event of police-caused
injury would destroy the purpose of the immunity. Using part
of the same quotation relied on by the Appellate Division in
Roll: "`[S]uch thinking would place a police officer in the
same category as the Marquis of Queensbury in a pier six
brawl.'" Roll, supra, 94 N.J. Super. at 537 (quoting Wrubel
v. State of New York,
174 N.Y.S.2d 687, 689 (N.Y. Ct. Cl.
1958)).
We do not suggest the Legislature favors law enforcement without concern for injuries to third parties, injuries to the public. The Legislature assumed, as we do, that police try and will continue to try to avoid causing any such injuries, either directly or indirectly. The legislative goal simply was to free law enforcement from the threat of civil liability, so that it could function effectively to protect the public in these most difficult and dangerous situations,
guided always by established professional standards, and
substantially constrained by the criminal law, see, e.g.,
N.J.S.A. 2C:3-7, 3-9, and 30-2, but not inhibited by the
threat of civil lawsuits, absent willful misconduct. The
decision below could impair that effectiveness not just in a
car chase, but in this entire area of law enforcement
involving apprehending and arresting offenders, involving
situations when their effectiveness may be critical to the
safety of many people.
Under the New Jersey Tort Claims Act (the "Act"), a public entity is immune from liability for injury unless there is a specific exception included in the Act itself which provides for liability. N.J.S.A. 59:2-1a; Tice, supra, 133 N.J. at 355; Chatman v. Hall, 128 N.J. 394, 404 (1992). When liability is established under the Act, it is still subject to immunity specified in the Act as well as any common-law immunity which predated the Act. Tice, supra, 133 N.J. at 355. With respect to public entities, "the Act was clearly intended to reestablish a system in which immunity is the rule, and liability the exception." Bombace v. City of Newark, 125 N.J. 361, 372 (1991). "When both liability and immunity appear to exist, the latter trumps the former." Tice, supra, 133 N.J. at 356; Rochinsky v. New Jersey Dep't of Transp., 110 N.J. 399, 408 (1988).
The primary liability imposed upon public entities by the
Act results from the application of the doctrine of respondeat
superior. Tice, supra, 133 N.J. at 355. "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.
59:2-2a. The Act further provides, however, that the "public
entity is not liable for an injury resulting from an act or
omission of a public employee where the public employee is not
liable." N.J.S.A. 59:2-2b. The liability of Neptune Township
then depends on whether Officer Jenkins can be held liable for
Robin Fielder's injury. If Officer Jenkins is protected by
any immunity, either under the Act or from some other source,
that immunity extends to any respondeat superior liability on
the part of Neptune Township as well.
Unlike the immunity of public entities, the immunity of
public employees under the Act is the exception rather than
the rule. "Except as otherwise provided in this [A]ct, a
public employee is liable for injury caused by his act or
omission to the same extent as a private person." N.J.S.A.
59:3-1a. However, the Act also provides that the public
employee's liability for injury "is subject to any immunity of
a public employee provided by law . . . ." N.J.S.A.
59:3-1b. Therefore, although the Act itself provides for
liability as a general rule, the use of the term "any immunity
. . . provided by law" suggests that the source of immunity
could be the Act itself, some other statute, or common law.
Chatman, supra, 128 N.J. at 404-05.
In several respects, our holding today was presaged by Tice, where we found that the policy considerations that form the basis for immunity under section 5-2b supported a construction immunizing both the employee and the public entity for all acts of negligence related to the pursuit of an escaping person. There we found that as the negligent actions of a public employee or entity in connection with parole are immune, so are the negligent actions of a public employee or entity in connection with the pursuit of an escaping person. Tice, supra, 133 N.J. at 367, 380.
We find no meaningful distinction between Tice and this case. The language of section 5-2b encompasses injuries caused directly by either the pursuing officer or the escaping person. In construing the statute, the negligence of the police officer must be assumed, for without such negligence, any injuries would be caused solely by the escaping person, and there would be no need for immunity. Id. at 363. The statute is implicated only when the negligence of both the
officer and the escaping person have caused the accident and
the resulting injuries: the escaping person has initiated the
need for pursuit by failing to obey a police command, and the
officer has, in some manner, negligently effectuated the
pursuit. In effect, whenever the statute applies, the officer
and the escaping person may be deemed concurrent causes of any
injuries that result from the pursuit.
To deny immunity when the officer is negligent would be
to "read the statute as if it said . . . `caused solely by an
escaping or escaped person.'" Id. at 366. Such a reading
would drain the statute of all meaning, for if caused solely
by the escaping person, there would be no need for the
immunity. Ibid. Although a concurrent cause of the injuries,
the officer is immune because the statute applies to those
injuries caused by both the escaping person and the police
officer. Id. at 367. In Tice, although the officer was not
involved in the accident, we did not ignore the causative role
of the officer. Here, although the officer was involved in
the accident, we likewise do not ignore the causative role of
the escaping person. Consistent with the treatment of the
words "caused by" in Tice, section 5-2b applies to any
injuries resulting from the pursuit of an escaping person,
whether the result of a collision with the pursuing officer or
the escaping person.
To grant immunity where the escaping person collides, but
to deny immunity where the officer collides, moreover, defeats
the purpose of section 5-2b, grounding immunity solely on
chance, rather than the conduct of the officer. As we noted
in Tice, such a distinction is "based on a circumstance
dependent totally on chance -- the chance that the innocent
vehicle will get to the intersection when the pursuing police
car is crossing it rather than when the suspect's car is."
Id. at 371. Although the officer who collides with a third
party directly causes injuries, that officer's negligence may
be no different than that of an officer who avoids a
collision. As noted by Justice O'Hern, to deny immunity
generally would
force officers into a position where doing what is
right is subordinated to doing what is most
insulated in terms of exposure to liability. "In
their routine work, police officers must be free to
make split-second judgments in good faith based on
their experience and training without fear of
personal liability."
[Tice, supra, 133 N.J. at 384 (O'Hern, J.,
concurring) (quoting Report of the
Attorney General's Task Force on Police
Vehicular Pursuit 8 (April 1993) (quoting
Travis v. Mesquite,
830 S.W.2d 94, 103
(Tex. 1992) (Coryn, J., concurring))).]
Creating an exception to the general rule of immunity, depending on whether the officer is involved in the accident, would swallow the rule of immunity, deterring the officer not
from acting negligently but from pursuing at all,
subordinating doing what is right to doing what is most
insulated from liability.
It has been suggested that the Legislature intended the immunity of 5-2b to be narrower than 5-2a. Certainly, the difference in language suggests that possibility. We believe, however, that the difference is not at all attributable to such intent but rather attributable solely to the Legislature's clear focus on the well-defined source of potential liability that it wished to immunize. The Legislature did not use the language of 5-2b in drafting 5-2a -- which would have resulted in defining the immunity in terms of "any injury caused by a paroled or released prisoner" - because its concern was not with prisoners as such but with a very specific class of lawsuits: those based on alleged negligence in deciding to parole or release prisoners, or in setting terms and conditions of parole or release that were not sufficiently restrictive, or in deciding not to revoke parole. (We suspect that this is the intended legislative meaning despite the subsection's language.) The Legislature apparently wished to relieve public employees making discretionary decisions of concerns that otherwise sound determinations might lead to civil liability. More specifically, if the authorities in their best judgment thought that parole or release was warranted, the Legislature
did not want it denied just to avoid a lawsuit; and the same
reasoning applies where sound judgment of the authorities
called for terms and conditions not as restrictive as those
that might better protect against civil liability, or where
sound judgment called for a decision not to revoke parole, but
the possibility of a lawsuit might argue for revocation.
Given that clear purpose of 5-2a, we do not find any
intent, one way or the other, concerning public employees
whose direct contact with someone causes injuries -- that
apparently being the thrust of the argument describing the
5-2a immunity as "broader" than 5-2b (where such direct
contact is supposedly not immunized) -- because the relative
infrequency of such direct contact injuries in this context
makes it unlikely that the Legislature would have even
considered the possibility. More than that, however, we find
it unlikely that the Legislature would have intended a broader
grant of immunity in order to encourage public entities and
employees to parole or release prisoners than that grant of
immunity designed to encourage them to capture and arrest
escaping prisoners. Stated bluntly, we doubt that the
Legislature in granting immunity was more committed to the
encouragement of liberal parole than the encouragement of
vigorous law enforcement.
We acknowledge room for debate on this issue based on the language of the Act. As in Tice, where the Court decided the critical question whether "escaping person" included someone eluding the police in a vehicle pursuit, so here, the language "any injury caused by an escaping or escaped person" could be construed to mean "caused directly" by such person rather than "caused by" in the usual tort negligence sense -- generally including injuries directly or indirectly caused. And although we disagree, we understand that the language difference of 5-2b and 5-2a suggests some difference in the nature of the immunities granted. Given our conclusion in Tice, however, that the legislative goal of 5-2b(2) was to encourage vigorous law enforcement free of the inhibition of potential civil liability, we remain convinced that the Legislature could not have intended to grant immunity when the pursued vehicle was involved in the collision but to deny immunity when the collision involves the police vehicle. It makes no sense unless one rejects that legislative purpose and assumes that the immunity has nothing to do with vigorous law enforcement and is concerned only with saving money by depriving victims of compensation, in other words immunity whose only purpose is immunity. If, however, we agree that this was the legislative purpose (presumably accompanied by financial motivation) then just as we are adjured by the Act not to devise inventive causes of action to avoid the fair legislative intent to confer immunities, Comment to N.J.S.A.
59:2-1, for the same reason we should not let imprecision of
legislative expression defeat this legislative purpose.
We note that Roll was based on the same law enforcement
policy in granting immunity to pursuing police officers when
the pursued vehicle was involved in the collision. Those who
agreed with our analysis of Roll as a common-law source of
immunity independent of 5-2b(2) but who, given the section's
language, disagree with the applicability of 5-2b(2) when the
officer's car is involved in the collision, must decide
whether Roll is to be confined strictly to its facts. In
Tice, we unanimously found that Roll conferred law enforcement
immunity, and we believe that immunity, given its policy
basis, applies regardless of which car hits which. No
reasoned distinction can immunize the police if the pursued
car crashes but yet expose them to liability if it is their
car that crashes, at least if the Roll immunity is read as it
was in Tice. We question whether the Act's mandate, importing
common-law immunity not provided for in the Act, is honored
when it is restricted to the facts of the common-law case in
disregard of its immunity policy that, we believe, is
frustrated by such restriction.
In construing the section to apply to injuries caused by officers in pursuit of an escaping person, we reiterate our conclusion that section 5-2b provides absolute immunity,
absent willful misconduct. "Our sense of the intent of the
section is that it immunizes absolutely all negligence of the
public entity or the public employee that when combined with
the conduct of an escaping or escaped prisoner or person leads
to an injury." Tice, supra, 133 N.J. at 367. Whether the
negligent conduct involves the initiation, continuation, or
conduct of the pursuit makes no difference: it is immune.
As we recognized in Tice, the only limitation on section 5-2b(2) immunity is that found in the Act itself. N.J.S.A. 59:3-14 provides, "Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." Section 2-10 of the Act further provides that "[a] public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct." There have been no allegations of fraud, malice, or criminal conduct. However, the opinion of the Appellate Division suggests that the record in this case provides "a potential basis for a finding" of willful misconduct. Fielder II, 274 N.J. Super. at 495.
This Court has not previously had the occasion to define what constitutes "willful misconduct" in the context of a
police pursuit. However, in deciding that parental immunity
did not apply in the face of "willful and wanton misconduct,"
we analyzed the difference between willful misconduct and
negligence. Foldi v. Jeffries,
93 N.J. 533 (1983). "The
standard is . . . [an] intermediary position between simple
negligence and the intentional infliction of harm." Id. at
549. Although it is clear that willful misconduct is
something more than mere negligence, "[t]here is no simple
formula which will describe with exactness the difference
between negligence and willful and wanton misconduct. The
concept of misconduct ranges in a number of gradations from
slight inadvertence to malicious purpose to inflict injury."
McLaughlin v. Rova Farms, Inc.,
56 N.J. 288, 305 (1970).
Prior decisions have suggested that willful misconduct is
the equivalent of reckless disregard for safety. In
McLaughlin, supra, we held that
in order to recover for injuries allegedly produced
by willful and wanton misconduct, it must appear
that the defendant with knowledge of existing
conditions, and conscious from such knowledge that
injury will likely or probably result from his
conduct, and with reckless indifference to the
consequences, consciously and intentionally does
some wrongful act or omits to discharge some duty
which produces the injurious result.
[Id. at 305 (citations omitted).]
Although willful misconduct need not involve the actual intent to cause harm, Mahoney v. Carus Chemical Co., 102 N.J. 564,
574 (1986), there must be some knowledge that the act is
wrongful.
[I]n order to satisfy the requirement of willfulness
or wantonness there must be a "positive element of
conscious wrongdoing." Our cases indicate that the
requirement may be satisfied upon a showing that
there has been a deliberate act or omission with
knowledge of a high degree of probability of harm
and reckless indifference to consequences.
[Berg v. Reaction Motors Division, Thiokol
Chemical Corp.,
37 N.J. 396, 414 (1962)
(citations omitted).]
"`Willful misconduct' is the commission of a forbidden act
with actual (not imputed) knowledge that the act is forbidden.
It is more than an absence of `good faith.' `Willful
misconduct' does not refer to negligence; it is much more."
Marley v. Borough of Palmyra,
193 N.J. Super. 271, 294-95 (Law
Div. 1983).
Like many legal characterizations, willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use. While its general contours, given its language, are similar in all contexts, it may differ depending on the common-law rule or the statute to which it is relevant, and perhaps even within such rule or statute different depending on the facts. For instance, the definition of willful misconduct in Foldi, supra, a parent/child tort case, may or may not accord with the meaning intended by the
Legislature in an unrelated statute. And within a statute
like the Tort Claims Act, the precise definition might differ
where the role of willful misconduct is to impose liability in
numerous situations where it would otherwise not exist, for
the reasons and purposes of imposing liability may differ in
those situations and call for differences in the definition
and application of willful misconduct. We therefore do not
presume to define willful misconduct in any context other than
police vehicular pursuit under 5-2b(2).
There is no question that police vehicular pursuits involve the risk of harm, not only to those involved in the pursuit but, as this case so clearly illustrates, to innocent bystanders as well. We acknowledge that conduct of police officers during vehicular pursuits could easily be classified as reckless under more conventional circumstances. However, in defining this standard we are mindful of the legislative goal of promoting vigorous law enforcement by removing the threat of civil liability. We therefore hold that in the context of a police officer's enforcement of the law, including the pursuit of a fleeing vehicle, willful misconduct is ordinarily limited to a knowing violation of a specific command by a superior, or a standing order, that would subject that officer to discipline. Because a direct order to terminate a pursuit, or not to pursue at all under certain circumstances, would be intended to minimize the potential
harm, officers who willfully disregard such commands would be aware that to do so would be to greatly enhance the risk of injury, not only to themselves but to the public at large.See footnote 5 The phrase "willful misconduct" in this context naturally commands the meaning we here attribute to it: the knowing failure to follow specific orders, "knowing" that there is an order and willfully failing to follow it, i.e., intentionally failing to obey the order. More particularly, willful
misconduct in a police vehicular chase has two elements: 1)
disobeying either a specific lawful command of a superior or a
specific lawful standing order and 2) knowing of the command
or standing order, knowing that it is being violated and,
intending to violate it. Where the command or order is not
only specific but clearly has no exceptions -- expressed or
implied -- willful misconduct is not affected by the good
faith of the public employee who believes he or she somehow
had a right to knowingly and willfully disobey.
By virtue of the Act, the defense of good faith in the
enforcement or execution of the law is unavailable when the
public employee is guilty of willful misconduct. Proof of
lack of good faith, however, does not equate with willful
misconduct, because the situation may not even involve
specific commands or standing orders. Lack of good faith may
be factually relevant, however, to disputes over public
employees' claims that they did not know of the order, or that
they did not know they were violating it, in other words,
relevant to the state of mind that is part of the definition
of willful misconduct.
This definition of willful misconduct in police pursuits, conforming generally to many of the sources cited above, accords with the purpose of 5-2b(2) in providing immunity. It is a definition not likely to result in jury trials in which
the claims are really based on gross negligence or even
recklessness. It should not be interpreted to conflict with
the legislative purpose of removing the inhibiting threat of
civil liability from effective law enforcement, for there is
nothing effective in "law enforcement" that results from
willful misconduct so defined. Given its definition, police
officers pursuing their duties will rarely be concerned with
its applicability to them. It will have some inhibiting
effect, but only the one intended by the Legislature, and for
good reason.
Having defined the standard for willful misconduct we must determine whether the requirements for summary judgment have been met. Summary judgment shall be granted if the pleadings, depositions, admissions, along with any affidavits, establish no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2; Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 167 (1985) (citing Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954)). On a motion for summary judgment, "[a]ll inferences of doubt are drawn against the moving party and in favor of the opponent of the motion." Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 211 (App. Div. 1987); Allstate Redevelopment v. Summit Assoc., 206 N.J. Super. 318, 326 (App. Div. 1985). "[A] party opposing a motion is not to be denied a trial unless the moving party
sustains the burden of showing clearly the absence of a
genuine issue of material fact." Allstate Redevelopment,
supra, 206 N.J. Super. at 327. Our role in reviewing a motion
for summary judgment is merely to determine whether there is a
genuine issue of material fact, but not to decide it. Judson,
supra, 17 N.J. at 73; Baran v. Clouse Trucking, Inc.,
225 N.J.
Super. 230, 233 (App. Div.), certif. denied,
113 N.J. 353
(1988).
Although we are satisfied that Officer Jenkins is
entitled to immunity under N.J.S.A. 59:5-2b(2) as a matter of
law, in order to justify summary judgment, he must establish
that there is no genuine issue of material fact of whether his
conduct constituted willful misconduct as we have defined it
today. More specifically, Officer Jenkins must prove that
there is no genuine issue of material fact with regard to any
of the elements of the willful misconduct standard: whether
there was a direct order not to engage in the pursuit or not
to continue the pursuit, whether Officer Jenkins knew of such
an order, and whether he knowingly and willfully violated that
order.
When viewed in the light most favorable to the parties opposing summary judgment, we conclude that a genuine issue of material fact may exist with respect to Officer Jenkins' apparent violation of an internal department policy when he
left his designated zone of patrol to participate in the
pursuit of the McGhee motorcycle. It is not clear from the
record whether that policy was the equivalent of an
unqualified standing order or whether that policy allowed
individual officers to exercise discretion based on their
assessment of a given situation. Both of these elements are
material to determining whether Officer Jenkins' conduct
constituted willful misconduct, for if there was such an
order, and if he knew he was violating it and that it
permitted no discretion, his conduct in joining the pursuit
was a violation of a direct command. This issue is a close
one, but we conclude that summary judgment is not warranted.
The record also demonstrates, according to Jenkins' own description of the pursuit, that he was travelling eastbound on Route 33 at speeds up to sixty-five miles per hour between intersections and going through red lights. At some point during the pursuit, Officer Jenkins heard Sergeant Blecki's radio transmission ordering Neptune Township officers engaged in the pursuit to terminate the pursuit should the situation become dangerous to themselves or others. It is not clear from the record exactly when he heard the transmission but he stated that he heard it before entering the intersection where the accident occurred. Based on this record, a reasonable fact finder could conclude that Officer Jenkins heard Sergeant Blecki's message when the pursuit was in full swing -- while
he was exceeding the posted speed limit and proceeding through
red traffic signals without stopping. A fact finder could
conclude not only that his conduct was dangerous but that he
knew it was dangerous, to himself as well as to innocent third
parties, and that he continued the pursuit in knowing and
willful violation of Sergeant Blecki's instructions.
Obviously, given the implied discretion allowed to the officer
by the command (to decide whether further pursuit was
dangerous to himself or others), the fact finder could find
that Officer Jenkins honestly, no matter how mistakenly,
believed there was no such danger and that he was not
violating the command. In that case, there would be no
willful misconduct.
Because we cannot conclude based on this record that
there is no genuine issue of material fact concerning whether
Officer Jenkins' conduct constituted willful misconduct,
summary judgment is not warranted.
In both of these instances (leaving his zone; continuing
pursuit after Blecki's command), resolution of the issue of
willful misconduct necessarily involves a determination of
Officer Jenkins' state of mind. That fact does not preclude
summary judgment, but requires the most careful analysis
before granting it. See Sisselman, supra, 215 N.J. Super. at
212 (citing Ruvolo v. American Casualty Co.,
39 N.J. 490, 500
(1963)) (concluding that courts should be "particularly
hesitant in granting summary judgment where questions dealing
with subjective elements such as intent, motivation and duress
are involved"). The summary judgment question in both
instances is close; while we have decided plaintiff should
have the opportunity to present her evidence, the trial court
may nevertheless decide, after hearing all of the evidence,
not to submit either of these issues to the jury.
Therefore, although defendants are otherwise entitled to
immunity under section 5-2b(2), summary judgment for Officer
Jenkins is not warranted because there is a genuine issue of
material fact concerning whether Officer Jenkins' conduct
amounted to willful misconduct. However, Neptune Township is
entitled to summary judgment. If Officer Jenkins' conduct is
found to constitute willful misconduct, the Township is not
liable for his actions. N.J.S.A. 59:2-10. If, however, his
conduct does not rise to the level of willful misconduct, both
he and the Township are granted immunity under section 5-2b(2).
Having determined the applicability of N.J.S.A.
59:5-2b(2), we now address an alternate basis for immunity: the qualified immunity afforded by N.J.S.A. 59:3-3. Under that section, "[a] public employee is not liable if he acts in
good faith in the execution or enforcement of any law." N.J.S.A. 59:3-3. The court below concluded that section 3-3 "can[not] be reasonably applied to behind-the-wheel conduct," Fielder II, 274 N.J. Super. at 494, and that it "does not apply to negligent operation by a police officer of his patrol car." Fielder I, 263 N.J. Super. at 236.