Fielder v. Stonack

Decision Date06 July 1995
Citation661 A.2d 231,141 N.J. 101
PartiesRobin 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 McGhee and Bennie T. McGhee, Defendants.
CourtNew Jersey Supreme Court

Martin J. McGreevy, Asbury Park, for appellants (Carton, Witt, Arvanitis & Bariscillo, attorneys; Mr. McGreevy and James D. Carton, IV, on the briefs).

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

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

Boris Moczula, Deputy Atty. Gen., for amicus curiae, Atty. Gen. of New Jersey (Deborah T. Poritz, Atty. Gen., attorney).

The opinion of the Court was delivered by

WILENTZ, C.J.

In Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090 (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.

I

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 defendants 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, 604 A.2d 183 (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, 622 A.2d 906 (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, 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, 622 A.2d 906. 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, 622 A.2d 906. 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, 622 A.2d 906 (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, 627 A.2d 1090 (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, 627 A.2d 1090. 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, 644 A.2d 666 (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, 644 A.2d 666; that conferring immunity "upon any motorist from the consequences of his own negligent driving" is inconsistent with our ...

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