Bustamante v. Tuliano

• Citation: 591 A.2d 694,248 N.J.Super. 492
• Parties: Raul E. BUSTAMANTE and Yolanda Bustamante, his wife, Plaintiffs-Respondents, v. Paul TULIANO, Defendant-Appellant, and The Township of Pemberton, Defendant-Respondent, and Edward Carmen, William Hann, Bud Fifield, and John Doe(s), Fictitious name(s), Defendants.
• Decision Date: 06 June 1991
• Court: New Jersey Superior Court – Appellate Division

Page 492

248 N.J.Super. 492

591 A.2d 694

Raul E. BUSTAMANTE and Yolanda Bustamante, his wife Plaintiffs-Respondents, v. Paul TULIANO, Defendant-Appellant and The Township of Pemberton, Defendant-Respondent and Edward Carmen, William Hann, Bud Fifield, and John Doe(s) Fictitious name(s), Defendants.

Superior Court of New Jersey, Appellate Division.

Argued April 10, 1991.

Decided June 6, 1991.

Robert B. Kugler, for defendant-appellant (Moss, Powers & Kugler, attorneys; Robert B. Kugler, on the brief), Moorestown.

Philip T. Ciprietti, Marlton, for plaintiffs-respondents Bustamante.

Stacy L. Moore, Jr., for defendant-respondent Tp. of Pemberton (Parker, McCay & Criscuolo, attorneys; Stacy L. Moore, on the brief), Marlton.

Before Judges KING, LONG and STERN.

The opinion of the court was delivered by

LONG, J.A.D.

Plaintiff Raul Bustamante lost the sight in his left eye when he was struck by a wax bullet during training exercises of Pemberton Township Emergency Response Team (ERT). After accepting workers' compensation benefits, Bustamante filed a complaint against the Township of Pemberton and his fellow officer, Paul Tuliano, pursuant to N.J.S.A. 34:15-8 in which he contended that Tuliano intentionally shot him during the training exercises. ¹ After a trial during which the Township was dismissed, the jury found that Tuliano had intentionally injured Bustamante and accordingly awarded him damages. The trial judge entered judgment on the jury verdict. Tuliano moved for a new trial or, alternatively, for judgment notwithstanding the verdict, which motions were denied.

Tuliano appeals, claiming that there was no evidence to support the jury verdict that he committed an intentional wrong, and that he should have been dismissed at the close of Bustamante's case or at the end of trial. We agree that the case should not have gone to the jury, that the acts committed by Tuliano did not rise to the level of an intentional wrong, and that Bustamante was thus limited to the workers' compensation remedy. Thus, we reverse.

The facts adduced at trial are as follows: Following a number of township emergencies, the Township of Pemberton recruited volunteers from among members of the police department to staff an ERT. The members were to develop physical skills and abilities with firearms to deal with special police situations such as mentally ill offenders, barricaded suspects and persons with weapons. Bustamante volunteered and became a member of the first ERT team, which was headed by Tuliano.

In April or May 1984, the six members of the first ERT team went to Picatinny Arsenal for special training by the U.S. Defense Department Police Department. At Picatinny, the officers participated in exercises with rubber bullets, which were used because they left a hole or indentation on the paper targets so that participants could see where their shots hit. Bustamante testified at trial that he never used wax bullets at Picatinny and stated that he was aware of no instructions or even discussion about using wax bullets while he attended the training there.

The Pemberton Police Department required the ERT teams to train monthly following their return. These sessions were in addition to regular police department shifts. An ERT member who was assigned to duty and couldn't find a substitute was unable to attend training. Because the Township did not give the teams sufficient money to buy rubber bullets, participants began to manufacture wax bullets. These bullets were made of hard beeswax that did not ricochet or deform, but disintegrated upon hitting a barrier. Bustamante testified that wax bullets were used because they made "the noise of a real bullet" and because team members considered it important that the person "shot" could not deny being hit. According to Bustamante, if you had been hit by a wax bullet, "you [knew] you'[d] been hit." Wax bullets had hit ERT team members in prior exercises. Bustamante himself had previously shot Sergeant Bud Fifield in the leg while the teams were "horsing around." Following that incident, Fifield gathered the team members and instructed them to discontinue horsing around because someone could be hurt.

On February 19, 1985, the ERT teams convened at a municipal beach facility in Browns Mills called the BMIA building. Team members obtained wax bullets for their pistols from the ERT van. After exercises outside the building, it was determined that the teams would clear the building of two "bad guys." Bustamante and Fifield volunteered to play these parts. The BMIA building is a multi-purpose recreational facility with a stage and movable chairs that can be set up as a theater or used for other purposes. Bustamante testified that Fifield hid in an upstairs kitchen, while he crouched on top of an air conditioning duct suspended above the stage. The teams found Fifield quickly. Bustamante testified that Tuliano then snuck towards the stage with his weapon in "port arms" position, that is, ready to fire. When Tuliano was 15 to 19 feet from Bustamante, Bustamante fired his weapon against the wall, hitting it about ten feet from Tuliano. Tuliano then shot back at Bustamante, hitting him in the eye.

Officer David Patriarca, who was also involved in the exercise, testified for the plaintiff and denied firing at Bustamante, claiming he didn't even know where Bustamante was until the exercise ended. Patriarca recalled hearing "a couple shots" when Bustamante was hit but couldn't remember how many shots had been fired.

After the team first-aider determined that Bustamante had to be taken to the hospital, Fifield drove there in an unmarked detective's car, and Tuliano rode along to keep Bustamante alert so that he would not go into shock. Bustamante testified that Fifield and Tuliano initially discussed telling the hospital that Bustamante had hit his own eye on a portion of the air conditioner. Bustamante agreed to do so. However, according to Bustamante, when the three arrived at the hospital, Fifield and Tuliano decided to tell the truth that Bustamante had been shot in the eye with a wax bullet. Bustamante recalled that during the trip to the hospital, Tuliano told him he was sorry, and that he had only meant to "sting" Bustamante so that Bustamante would know he had been hit. Bustamante testified that he did not believe Tuliano intended to hurt him.

Tuliano testified in defense that in addition to rubber bullets, the first ERT team used wax bullets which were introduced by another police department who was also training at the Picatinny Arsenal. Tuliano testified that the only reason why wax bullets were used was because their sound was much more realistic than blanks. Although he had not been hit by a wax bullet himself, Tuliano understood that it felt like being hit by a BB. Tuliano stated that he had never fired a wax bullet at anyone.

As to the events of February 19, 1985, Tuliano testified that he and Patriarca simultaneously approached the stage from opposite sides. Following Bustamante's shot, Tuliano fired up, but away from Bustamante. At the same time, Tuliano heard a volley of rounds throughout the room. Tuliano described everything as happening in a "split second" and said he knew he fired in a split second because once you identify the target, you must immediately take action. He also stated that when he shot, his gun was pointing up, in a natural reaction to being shot at from above. He testified that he saw Bustamante before he fired the shot and fired away from him. Tuliano was highly trained with firearms. He testified that at 10 to 12 feet, he could put all ten shots into a circle the same diameter as a pencil.

Fifield's investigative report stated that Tuliano told Fifield that Tuliano's wax bullet hit Bustamante. Tuliano dismissed the Fifield report as being prepared solely as a way for Fifield to protect himself, but Fifield testified, as a rebuttal witness, that he had accurately tried to reflect his understanding of the incident when requested to investigate it. Fifield acknowledged that his report also stated that Bustamante told Fifield that both Tuliano and Patriarca were sneaking up on the stage and that Bustamante had first shot at Patriarca before he got hit. Bustamante testified on rebuttal that he never made this statement to Fifield and that, in fact, he "didn't even know that Patriarca was there when [he] fired the first shot to Sergeant Tuliano." He also stated that he understood that the purpose of the wax cartridges was "[t]o hit the target" which was not a human being because, as he stated, "we were told not to hit ourselves."

Correspondence from Dr. James G. Nachbar confirmed that as a result of the incident, Bustamante had permanently lost the vision in his left eye. The jury returned a verdict in Bustamante's favor. This appeal followed.

N.J.S.A. 34:15-8, which is the basis for this action, provides in pertinent part:

If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

It is undisputed that Bustamante qualified for and received workers' compensation benefits. The controversy here is whether the Legislature intended that the Workers' Compensation Act would serve as his sole and exclusive remedy under the facts proved at trial. We think it did.

The term "intentional wrong" as used in N.J.S.A. 34:15-8 is a narrowly defined concept. It requires a showing of deliberate intention to injure. Copeland v. Johns-Manville Prods. Corp., 492 F.Supp. 498, 501 (D.N.J.1980); Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 170, 501 A.2d 505 (1985); Bryan v. Jeffers, 103 N.J.Super. 522, 523-24, 248 A.2d 129 (App.Div.1968), certif. denied, 53 N.J. 581, 252 A.2d 157 (1969); Arcell v. Ashland Chem. Co.,...