Lee v. Doe

• Decision Date: 08 May 1989
• Citation: 232 N.J.Super. 569,557 A.2d 1045
• Parties: Brad LEE, Plaintiff-Appellant, v. John DOE (a fictitious name), Robert Morgan, Officer James Doe (a fictitious name), Officer Joe Doe (a fictitious name), Camden City Police Department and the City of Camden, i/j/s/a, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 569

232 N.J.Super. 569

557 A.2d 1045

Brad LEE, Plaintiff-Appellant, v. John DOE (a fictitious name), Robert Morgan, Officer James Doe (a fictitious name), Officer Joe Doe (a fictitious name), Camden City Police Department and the City of Camden i/j/s/a, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted March 21, 1989.

Decided May 8, 1989.

Console, Marmero, Livolsi, Wood, Curcio, Morelli & Mammano, for plaintiff-appellant (Edward C. Curcio, Berlin, on the brief).

Montano, Summers, Mullen, Manuel, Owens & Gregorio, for defendants-respondents (F. Herbert Owens, III, of counsel; Andrew J. Brekus, Cherry Hill, on the brief).

Before Judges O'BRIEN, SCALERA and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

This appeal requires us to decide whether police officers and their employing municipalities are immune from civil liability under the Tort Claims Act when the officers decline to take action in response to claims of wrongdoing made by a complaining witness who is subsequently injured by the alleged perpetrator. Because there are no material facts in dispute and the Tort Claims Act provides such immunity, we affirm the grant of summary judgment in favor of defendants.

On May 27, 1985 plaintiff was hosting a "cook-out" at his home located in Camden. His fiancee's brother, Robert Morgan, was an invited guest. After having several beers, Morgan left the party and returned later with his girl friend, his girl friend's sister and several others, all of whom arrived without invitations.

After the arrival of the uninvited guests, Morgan's nephew, the son of plaintiff's fiancee, criticized Morgan for bringing uninvited guests to the cook-out. An argument ensued during which Morgan produced a knife and threatened to kill his nephew. Plaintiff thereupon grabbed Morgan, told him that he wasn't going to let him go until he calmed down, and ultimately directed him to leave. As Morgan left, he stated that he was going to come back and kill both his nephew and the plaintiff.

As a result of Morgan's threats, the Camden Police were called, and two officers came to the house, but stayed only several minutes. A short while after they left, Morgan returned to the house with a shotgun, went to the front porch, and said that he wanted plaintiff to come outside because he "had something for him." Plaintiff's fiancee again called the police, and Morgan ran off. When two officers responded to the call, plaintiff asked one of them to stay and patrol the area. The officer declined to do so and told plaintiff not to worry. ¹

A few minutes later Morgan again returned and tried to enter the front door. Plaintiff attempted to slam the door before Morgan could enter, but Morgan succeeded in sticking the barrel of the gun through the doorway and fired the weapon, severely injuring plaintiff in the leg.

In his complaint, plaintiff specifically alleged that the two police officers who came to the house the second time "failed to respond to a call for aid in a reasonable and professional manner and after responding, acted in a negligent and unprofessional manner, failed to search for and apprehend the defendant Morgan, [and] failed to peruse and secure the area for the defendant Morgan, resulting in plaintiff's injuries...." Plaintiff further charged that this alleged negligence was imputable to the City of Camden and the City of Camden Police Department.

In his preliminary report, plaintiff's expert reviewed the two officers' conduct and concluded that

the Camden Police Officers who responded to the call at the Lewis Street residence acted totally improperly and unprofessionally and in a grossly negligent manner and in violation of accepted standard police practices, therefore causing the injuries suffered by Brad Lee ...

After hearing oral argument on defendants' motion for summary judgment, Judge Charles A. Little in the Law Division ruled that the police officers were immune from action under N.J.S.A. 59:5-5 and thus dismissed plaintiff's suit with prejudice. ² This appeal follows.

The thrust of plaintiff's argument is that the immunity does not apply under the facts of this case, because once the officers responded to the request for aid they became subject to liability for negligence in the performance of their duties. Plaintiff also asserts the officers were negligent by doing nothing more than telling him not to worry because Morgan probably would not return. Defendants argue that the trial judge properly granted summary judgment based upon the immunity conferred by N.J.S.A. 59:5-5.

The Supreme Court recently reviewed the legislative purpose underlying the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (hereinafter referred to as "Tort Claims Act" or "the Act") as well as the Act's general provisions establishing both liability and immunity. See Rochinsky v. State, Department of Transportation, 110 N.J. 339, 541 A.2d 1029 (1988). As Justice Stein noted in Rochinsky, the law became effective on July 1, 1972 and contained the following legislative declaration:

The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaration. [110 N.J. at 406-07, 541 A.2d 1029, quoting N.J.S.A. 59:1-2 (emphasis supplied) ].

The first substantive section of the Act, N.J.S.A. 59:2-1, more generally expresses this public policy and "establishes the analytical framework to be used in resolving questions of governmental immunity." Rochinsky, supra, 110 N.J. at 407, 541 A.2d 1029. It provides:

a. Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person. [ N.J.S.A. 59:2-1].

The Comment to this section reveals the Legislature's goal in passing the Act. As Justice Stein explained in Rochinsky, supra, 110 N.J. at 407, 541 A.2d 1029:

The Comment to this section reveals the Legislature's overriding objective. It states that N.J.S.A. 59:2-1(a) "provides that the basic statutory approach of the [Act] shall be that immunity of all governmental bodies in New Jersey is re-established." In drafting section 2-1(a) the Legislature expressly adopted the reasoning of the California Law Revision Commission which is embodied in the California Tort Claims Act, Cal. Gov't Code § 810 et seq. The paramount concern was that a statute imposing general liability, limited only by specific statutory immunities, would provide public entities with little basis on which to budget for the payment of claims and judgments for damages. The Comment rejected the concept of a statute that imposed liability with specific exceptions, expressing concern that such a statute would greatly increase the amount of litigation and the attendant expense that public entities would face. Instead, the Attorney General's Report recommended legislation providing "that public entities are immune from liability unless they are declared to be liable by an enactment." N.J.S.A. 59:2-1 Task Force Comment.

The Legislature specifically rejected the rationale favoring governmental liability expressed in B.W. King [v. West New York], 49 N.J. 318 [ (1967) ] observing that this approach is no longer necessary in light of this comprehensive Tort Claims Act. Rather the approach should be whether an immunity applies and if not, should liability attach. It is hoped that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities.' [ N.J.S.A. 59:2-1 Task Force Comment (emphasis supplied).]

Subsection 2-1(b) reflects the Legislature's intent to preserve common-law immunities:

Subsection (b) is intended to insure that any immunity provisions provided in the act or by common-law will realistically interpret both the statutory and common law immunities in order to effectuate their intended scope. [ N.J.S.A. 59:2-1 Task Force Comment (emphasis supplied).]

[110 N.J. at 407-408, 541 A.2d 1029 (emphasis in original; footnote omitted) ]. ³

Accordingly, the Supreme Court has made clear our obligation in terms of review of issues under the Tort Claims Act:

We have held that the plain meaning of N.J.S.A. 59:2-1 firmly establishes that "immunity is the dominant consideration of the Act." Kolitch v. Lindedahl, 100 N.J. 485, 498 (1985) (O'Hern, J., concurring); accord Birchwood Lakes Country Club v. Medford Lakes, 90 N.J. 582, 596 (1982). Even when one of the Act's provisions establishes liability, that liability is ordinarily negated if the public entity possesses a corresponding immunity. See Malloy v. State, 76 N.J. 515, 521 (1978) (giving priority to licensing function immunity provided by N.J.S.A. 59:2-5 over liability established by N.J.S.A. 59:2-2); see also Costa v. Josey, 83 N.J. 49, 61 (1980) (Clifford, J., dissenting) (finding Comment to section 2-1(b) to be "as explicit as possible").

Section 2-1(b) establishes the principle that...