Fielder v. Jenkins

• Decision Date: 30 June 1994
• Parties: Robin FIELDER, Plaintiff-Respondent, v. Frederick S. JENKINS, Township of Neptune Police Department and Township of Neptune, Defendants-Appellants, and Noelle E. Stonack, Kevin McGhee and Bennie T. McGhee, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 485

274 N.J.Super. 485

644 A.2d 666

Robin FIELDER, Plaintiff-Respondent, v. Frederick S. JENKINS, Township of Neptune Police Department and Township of Neptune, Defendants-Appellants and Noelle E. Stonack, Kevin McGhee and Bennie T. McGhee Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued May 3, 1994.

Decided June 30, 1994.

Martin J. McGreevy, Asbury Park, for appellants (Carton, Witt, Arvanitis & Bariscillo, attorneys; Martin J. McGreevy, of counsel; James D. Carton, IV and Aaron J. Rosenfeld, on the brief).

William B. Gallagher, Jr., Asbury Park, for respondent Robin Fielder (Klitzman & Gallagher, attorneys; Austin M. Kenny, on the letter brief).

Michael F. Carnevale, II, Princeton, for respondent Noelle E. Stonack.

Lombardi and Lombardi, Edison, for respondent Kevin McGhee, did not submit a brief.

Before Judges PRESSLER, DREIER and KLEINER.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

This appeal on leave granted requires us once again to address the tort liability of police officers who, while engaged in the vehicular pursuit of violators or suspected violators of the law, disregard the rules of the road, become involved in motor vehicle accidents, and inflict injury and loss upon innocent members of the driving public. In our first consideration of this case, Fielder v. Jenkins, 263 N.J.Super. 231, 622 A.2d 906 (App.Div.1993) (Fielder I ), we distinguished, for immunity purposes, between an accident directly involving the pursued person and an accident directly involving the pursuing officer, and we concluded that the immunities afforded by N.J.S.A. 59:5-2b and N.J.S.A. 59:3-3 do not apply when it is the pursuing police officer rather than the pursued violator whose vehicle is involved in the accident. Dictum in the subsequent opinion of the Supreme Court in Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090 (1993), raised questions about the correctness of that holding, and we have reconsidered it in the light of Tice. We continue, however, to adhere to our original view.

The present factual and procedural posture of the matter now before us is simple. In Fielder I, we summarized the facts then before us as follows:

Plaintiff Robin Fielder was a passenger in an automobile operated by defendant Noelle E. Stonack, which was proceeding south on Route 35 in Neptune Township. As the car approached the intersection of Routes 35 and 33, the light was green, and Stonack proceeded. Her vehicle was struck in the intersection by a patrol car of defendant Neptune Township being driven by defendant, Officer Frederick S. Jenkins. Jenkins, who had entered the intersection at a high rate of speed and against the light, was engaged in official duties. It appears that some short time earlier, defendant Kevin McGhee, driving a motorcycle owned by defendant Bennie T. McGhee, had been stopped for speeding in the neighboring town of Tinton Falls, and instead of submitting to the arrest, he rode off at high speed. The Tinton Falls officer pursued, requesting assistance from Neptune. Two other Neptune patrol cars responded before Jenkins did. Jenkins's was consequently the fourth police car in the chase when this accident occurred. [263 N.J.Super. at 233-234, 622 A.2d 906.]

Based on these facts, Neptune Township and Jenkins moved for summary judgment dismissing plaintiff's ensuing complaint against them. They argued that they were immunized from liability to plaintiff for her ensuing injuries by N.J.S.A. 59:5-2b and N.J.S.A. 59:3-3. The trial judge agreed. We reversed, holding that those statutory immunities do not apply when it is the police officer rather than the pursued person who collides with the vehicle of an innocent motorist during the high-speed chase. We hence concluded that the usual rule of negligence defining the standard of care for drivers of emergency vehicles in emergency situations obtained. Accordingly, we remanded to the trial court for further proceedings. When the Supreme Court issued its opinion in Tice, Neptune and Jenkins renewed their motion for summary judgment, claiming that the principles there articulated afforded them immunity as a matter of law. The trial judge denied relief. We granted defendants' ensuing motion for leave to appeal, and now affirm the denial of the motion for summary judgment.

In addressing potential tort liability arising out of injuries sustained by innocent victims during the course of police pursuit of escapees, we drew, in Fielder I, what we regarded to be a critical distinction between accidents in which the police vehicle was involved and accidents in which only the vehicle of the pursued person was involved. The validity of that distinction was questioned by Tice, which involved an accident between the innocent victim and the pursued person, as follows:

The denial of immunity in Fielder was based on the fact that the officer's car, rather than the car of the pursued party, struck the plaintiff's car. The distinction justified by the Appellate Division on the basis of the statutory language seems unrelated to the need for police immunity, a distinction based on a circumstance dependent wholly 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. We express no view, however, on that issue of statutory construction.

Having reconsidered the distinction we relied on in Fielder I in the light of the Court's dictum in Tice, we remain convinced that as a matter of statutory construction and public policy, that distinction remains sound.

We start with the proposition that but for the specific immunities accorded by the Tort Claims Act, N.J.S.A. 59:1-1, et seq., there would be no question that a police officer, even while engaged in his official duties and even if those duties involve the need to respond to an emergency, is required to drive his motor vehicle with due regard to the safety of the public and that he will be actionably negligent if he fails to comply with a standard of care commensurate with the circumstances of the emergency to which he is responding. That is the express mandate of N.J.S.A. 39:4-91, which accords the right of way to emergency vehicles, including, specifically, emergency vehicles "in the pursuit of an actual or suspected violator of the law ..." but nevertheless also imposes upon the drivers of such vehicles "the duty to drive with due regard for the safety of all persons ..." and responsibility for "the consequences of ... [their] reckless disregard for the safety of others."

Construing N.J.S.A. 39:4-91 in the light of common-law liability principles, Judge Goldmann, writing for this court in Varlaro v. Schultz, 82 N.J.Super. 142, 150, 197 A.2d 16 (App.Div.1964), explained that while the operator of an emergency vehicle responding to an emergency cannot be expected to exercise the same degree of care as an ordinary motorist, he is nevertheless obliged to exercise such due care as is commensurate with the totality of the circumstances. This circumstantial test of due care is, moreover, basic in the law of negligence in which "conduct is customarily tested contextually--in terms of how a reasonable man would act under like circumstances." The principles enunciated in Varlaro, in which police conduct was in issue, have been followed in respect of other emergency vehicles, including ambulances and fire engines. See, e.g., Rekiec v. Zuzio, 132 N.J.Super. 71, 332 A.2d 222 (App.Div.1975); April v. Collings Lakes Ambulance Ass'n, 109 N.J.Super. 392, 263 A.2d 481 (App.Div.1970); Finderne Engine Co. v. Morgan Trucking Co., 98 N.J.Super. 421, 237 A.2d 624 (App.Div.1968). Indeed these principles are so clearly understood that they have been incorporated in the emergency-vehicle section of the Model Civil Jury Charges on automobile negligence. See § 5.20L., reading in full as follows:

On the other hand, drivers of emergency vehicles must also exercise reasonable care under the circumstances in the operation of an emergency vehicle. The degree of care required of the driver of such vehicle is that he/she must exercise reasonable care to prevent injury or damage to himself/herself or others in light of the emergency circumstances.

The statute in question, N.J.S.A. 39:4-91 which I have previously referred to further states that:

This section shall not relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall it protect the driver from the consequences of his/her reckless disregard for the safety of others.

In considering the standard of care required under this statute of the driver of an emergency vehicle, keep in mind that by necessity, the driver of an emergency vehicle, responding to an emergency situation, may be required to take risks which would constitute negligent conduct if performed by a motorist under ordinary conditions. The driver may be required to go through a red light or stop sign or other traffic control device; proceed at a speed above the fixed limits, or drive on the wrong side of the road. As such, the driver of an emergency vehicle, on an emergency call, cannot be expected to exercise the same care that the law requires of the ordinary motorist, who has no emergency duty to perform.

Accordingly, the driver of an emergency vehicle, taking such risks, is bound to take reasonable precaution to protect others from the extraordinary dangers of the situation that proper performance of his/her duties compels him/her to create. Furthermore, the statute I have read to you requires that the driver of an emergency vehicle must not drive with reckless disregard for the safety of others. That is, he/she must anticipate the dangers his/her operation of the vehicle involves and exercise reasonable care for the safety of others under the circumstances.

Violation of the standard of care as set...