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.