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Police Officers Found Not to Be Immunized in Alleged Failure to Render Assistance to Injured Plaintiff at Motor Vehicle Accident Scene

Two Jersey City Police Officers were dispatched to a motor vehicle accident in Jersey City at 2:26 am involving the truck of the decedent Hiram Gonzalez (“Gonzalez”), which he advised them had spun out of control. After responding to the accident, Gonzalez was left at the scene of the accident by the officers after he turned down the offer of a ride and, instead, allegedly advised them that he would wait for his brother to give him a ride. The facts were in dispute as to whether they should have known he was intoxicated at the time. At about 3:42 am, he was struck and killed while walking in the middle of the roadway. The issue in Estate of Gonzalez v. City of Jersey City, 2020 N.J. Super. Unpub. LEXIS 689 (App. Div. April 17, 2020), was whether the officers and the City were immune from tort liability for his fatal accident.

Both officers denied noting any signs that Gonzalez was intoxicated. Based upon an autopsy performed, Gonzalez’s blood alcohol level was a .215. Plaintiff’s toxicology expert opined that Gonzalez’s blood alcohol level when he encountered the officers was a .20, which was 2 ½ times higher than the legal limit for driving.

At the trial court level, the defendants filed for a summary judgment based upon various Tort Claims Act immunities, including N.J.S.A. 59:3-(2)(a), absolute immunity for injuries resulting from the exercise of judgment or discretion. The plaintiff argued that the officers’ acts were ministerial and, under N.J.S.A. 59:2-3 and N.J.S.A. 59:3-2, the officers were not immunized for the negligent performance of a ministerial act.

The trial court judge granted the defendants’ summary judgment motion. He found that the officers had conducted their duties in good faith and that they had no duty to remove Gonzalez from the highway. They offered to give him a ride and secured a ride with a family member before leaving him behind the guardrail. The judge found that the defendants’ actions were immunized under N.J.S.A 59:3-3 (good faith enforcement of laws). He also found that there was no statutory duty to take Gonzalez to a treatment facility because he had no outward signs of intoxication.

The plaintiff appealed, arguing that an officer may be liable for the negligent performance of his or her ministerial act and, therefore, the officers were not immune from liability under the Tort Claims Act. Further, plaintiff argued that the court erred in finding the “officers had the discretion to abandon an intoxicated victim of a motor vehicle accident on a dark, rainy highway bridge.”

The Appellate Division disagreed with the trial court’s ruling and reversed. The Court noted that police offers have a duty to respond to accident scenes and render assistance. In responding to this motor vehicle accident, the Court found that the officers were performing a ministerial duty and would be subject to liability for the negligent performance of this duty. The police do not enjoy immunity for negligent performance of ministerial duties.

The Appellate Division found that there were factual issues that must be resolved by a jury as to whether the officers were negligent. There was conflicting factual evidence as to Gonzalez’s behavior, his conversations with the officers, the circumstances of the inoperability of his car, the officers’ version of their exchange with the dispatcher (as to why they left him at the scene),  and the assessment the area where he was left. The Court ruled that these issues could not be made on a summary judgment record. Thus, the Appellate Division reversed and remanded the matter back to the trial court.

Claim Against City of Newark Due to Failure to Provide Police Protection Barred by Immunity under Tort Claims Act

By: Jack Hagerty, Law Clerk

On August 4, 2012, plaintiff, Patricia Ruff, was walking with her daughter and grandchildren to a reunion hosted by Hayes Home Family Organization (Hayes) at the West Kinney Vocational High School playground in Newark, New Jersey, when disaster struck. Plaintiff was shot by an unknown assailant. Plaintiff later sued Newark in tort, asserting the City was responsible for a lack of police protection. Ruff v. Gardens, 2017 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 11, 2017).

As plaintiff approached the playground, two women yelled somebody had a gun and everyone began to run. Feeling “a pinch” in her arm, plaintiff yelled for her grandchildren to keep running before feeling the bullet, which left her “knocked out cold.” In all, plaintiff was shot three (3) times: once in the arm, once in the breast, and once in the back.

Newark had issued a permit for the Hayes reunion to be held at the playground and had also arranged for a police officer to be present from 12:00 p.m. to 8:30 p.m. When plaintiff was shot, she was not on Newark property. Plaintiff could neither identify her shooter, nor indicate from where the shots originated. However, she argued the shooter was located on Newark property at the time of the shooting; thus, exposing Newark to liability.

Newark moved for summary judgment. The trial court denied Newark’s motion, identifying the disputed location of the shooter at the time of the incident as a material fact which precluded the court from granting summary judgment. Newark moved for reconsideration. The trial court also denied that motion. Finally, Newark moved for leave to appeal the order denying summary judgment and the Appellate Division granted Newark’s motion for leave.

On appeal, Newark argued the trial judge’s denial of summary judgment was error because Newark was entitled to immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The statute provides, in relevant part: “[n]either a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” N.J.S.A. 59:5-4. This exception has been interpreted to preclude suits against public entities “based upon contentions that damage occurred from the absence of a police force or from the presence of an inadequate one.” Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979). Accordingly, Newark contended, the location of the shooter was not a material fact. Therefore, the dispute in question could not warrant a denial of summary judgment, because even if the shooter were on Newark property, the statutory immunity would apply.

Turning to case law, the Appellate Division noted the guiding principle of the Tort Claims Act is that “immunity from tort liability is the general rule and liability is the exception.” Coyne v. Dep’t of Transp., 182 N.J. 481, 488 (2005). Further, the court noted that, in New Jersey, it is public policy that a public entity will only be liable for negligence as set forth in the Tort Claims Act. Finally, the court restated the legislative purpose behind the Tort Claims Act “is to protect the public entity’s essential right and power to allocate its resources in accordance with its conception of how the public interest will best be served, an exercise of political power which should be insulated from interference by judge or jury in a tort action.” Rodriguez v. N.J. Sports & Exposition Auth., 193 N.J. Super. 39, 43 (App. Div. 1983).

At oral argument, Plaintiff conceded her claim against Newark was based on the alleged failure to provide police protection at the time of the incident. In light of this concession (which squarely placed plaintiff’s claim within the Tort Claims Act immunity) and the court’s finding that the location of the shooter was not a material fact for purposes of denying summary judgment, the Appellate Division reversed and remanded for the entry of judgment of dismissal in favor of Newark.