Tice v. Cramer

• Decision Date: 28 July 1993
• Citation: 133 N.J. 347,627 A.2d 1090
• Parties: John W. TICE, Sr., Administrator ad Prosequendum of John W. Tice, Jr., Deceased, John W. Tice, Sr., General Administrator of the Estate of John W. Tice, Jr., Deceased, and John W. Tice, Sr., and Rita Tice, Individually, Plaintiffs-Appellants, v. Robert CRAMER, City of Wildwood Police Department, and City of Wildwood, jointly, individually and in the alternative, Defendants-Respondents, and William G. Logan, Jr., Defendant.
• Court: New Jersey Supreme Court

Page 347

133 N.J. 347

627 A.2d 1090

John W. TICE, Sr., Administrator ad Prosequendum of John W Tice, Jr., Deceased, John W. Tice, Sr., General Administrator of the Estate of John W. Tice, Jr., Deceased and John W. Tice, Sr., and Rita Tice, Individually Plaintiffs-Appellants, v. Robert CRAMER, City of Wildwood Police Department, and City of Wildwood, jointly, individually and in the alternative, Defendants-Respondents and William G. Logan, Jr., Defendant.

Supreme Court of New Jersey.

Argued Jan. 4, 1993.

Decided July 28, 1993.

Anne P. McHugh, Princeton, for appellants (Pellettieri, Rabstein and Altman, attorneys).

James P. Savio, Absecon, for respondents (Savio, Reynolds & Drake, attorneys).

Kenneth I. Nowak, Newark, for amicus curiae New Jersey State Policemen's Benevolent Ass'n (Zazzali, Zazzali, Fagella & Nowak, attorneys; James R. Zazzali, of counsel).

Boris Moczula, Deputy Atty. Gen., for amicus curiae Atty. Gen. of N.J. (Robert J. Del Tufo, Atty. Gen., attorney; Mr. Moczula and Debra A. Owens, Deputy Atty. Gen., of counsel and on the brief).

The opinion of the Court was delivered by

WILENTZ, C.J.

We face the question whether police officers in pursuit of a vehicle that has failed to heed their command to stop are immune from liability for injuries resulting from the pursuit. The same question was raised in Roll v. Timberman, 94 N.J.Super. 530, 229 A.2d 281 (App.Div.), certif. denied, 50 N.J. 84, 232 A.2d 147 (1967), in a common law context; here the officer's immunity is asserted under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to : 14-4 (the Act). We hold 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.

We note the controversy surrounding the matter: the claim that unless there is such immunity, police officers will be reluctant to enforce the law vigorously for fear of liability, and the opposing claim that such pursuits result in a large number of unjustified injuries that can be diminished only by the imposition of liability. That policy question is for the Legislature, which, as we read the law, has answered it in favor of absolute immunity, absent willful misconduct on the part of the police officer.

I

John W. Tice, Sr., acting on behalf of the estate of John W. Tice, Jr., (Tice or plaintiffs) sued defendants City of Wildwood and Robert Cramer, the pursuing officer, and defendant William G. Logan, driver of the fleeing vehicle that ultimately crashed into Tice's pickup truck. Suits were also brought by passengers in the Logan and Tice vehicles and the survivors of one passenger who was killed, as well as by Logan, all of which were settled and are not involved in this appeal. Tice obtained a consent judgment against Logan. We deal only with the claims arising from Tice's death asserted against the City of Wildwood and its police officer Robert Cramer.

The critical facts are largely undisputed. The pursuit started about 8:30 p.m. on November 12, 1985, in the City of Wildwood. Officer Cramer had been dispatched by the police to investigate a melee at a tavern in the City. As he approached the tavern, he noticed a car with its lights out, operated by Logan, with three male occupants pull out of a parking lot across the street from the tavern. Officer Cramer alleged that the car nearly hit his, and that after he started to follow it, a hammer was thrown out of the car in his direction. The pursuit began, and continued through the streets of Wildwood until the Logan vehicle, having gone through three stop signs, went through a fourth and at that fourth intersection crashed into the Tice vehicle, resulting in Tice's death.

Cramer and the City moved for summary judgment. Based on the materials before the trial court on the motion, a jury could have found that Cramer had no sound reason to believe Logan or his passengers had been involved in the disturbance at the tavern or had thrown any hammer out of the car. It could also have found that initially the Logan vehicle had been traveling at a normal rate of speed; that Cramer had initiated the pursuit; that he had done so despite the fact that the Logan vehicle, with its lights out, traveling on a foggy night, had shown no signs that it would stop as a result of the pursuit; and that he had continued the pursuit nevertheless at very high rates of speed, coming within one or two car lengths of the Logan vehicle, through stop signs, going the wrong way on a one-way street for one block, for a period of almost five minutes until the tragedy occurred. Defendant Cramer's version of the situation is quite different, but for the purpose of the summary judgment motion and this appeal plaintiffs are entitled to the most favorable view of the evidence that a jury might take.

The record indicates that Officer Cramer activated the sirens and flashing lights of the patrol car for the purpose of compelling Logan to stop. Logan admits that he was aware that he was being pursued by police. Logan claims that the only reason he did not stop was that one of his passengers held a tire iron to his throat and threatened to kill him if he did.

Tice's claim against the City is based not only on Cramer's alleged negligence but on the alleged failure of the City to establish adequate pursuit rules to train and instruct its officers about pursuit, the only standard promulgated by the City alleged to be so general as to be meaningless. Tice proffered expert testimony on the need for police training based on the large number of injuries that result from pursuits.

It is clear that a jury could have found the police officer negligent in having failed to terminate the pursuit and in the manner in which it was conducted. The basic premise of such a finding would have been that the officer, obliged to exercise reasonable care for the safety of the public, should have known that the risk of injury involved in the pursuit was not justified by the need to stop or capture Logan. And, under similar common law principles, the City could have been found negligent for failing adequately to train and instruct its officers on the subject of pursuit. Furthermore, in both cases, a jury could have found that but for the officer's negligence, and but for the City's negligence, the accident would not have occurred.

The trial court granted defendants' motion for summary judgment on two bases. First, it ruled that Roll, supra, 94 N.J.Super. at 536-37, 229 A.2d 281, established immunity of police officers under these circumstances and that this common law immunity was incorporated in and continued by the Act. See N.J.S.A. 59:3-1b and 2-2b, discussed later. Second, it ruled that N.J.S.A. 59:5-2b(2) and :5-2b(3) expressly provided the same immunity. Those sections immunize public entities and public employees for "any injury caused by ... an escaping or escaped person," N.J.S.A. 59:5-2b(2), and "a person resisting arrest." N.J.S.A. 59:5-2b(3). On appeal, the Appellate Division affirmed, relying on Roll and section 5-2b(2), holding further that N.J.S.A. 59:3-3 provides an additional basis for immunity. Tice v. Cramer, 254 N.J.Super. 641, 646, 649, 604 A.2d 183 (1992). That latter section of the Act affords a public employee immunity "if he acts in good faith in the execution or enforcement of any law." N.J.S.A. 59:3-3.

Before us, plaintiffs renew the same claims of liability: that Officer Cramer is liable under the Act's general liability provision that "[e]xcept as otherwise provided by this act, a public employee is liable for injury caused by his act or omission to the same extent as a private person," N.J.S.A. 59:3-1a, and that the City is liable under the cognate section, N.J.S.A. 59:2-2a ("A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances."). Plaintiffs also claim that the immunities provided by N.J.S.A. 59:5-2b(2) ("an escaping or escaped person") and N.J.S.A. 59:5-2b(3) ("a person resisting arrest") are inapplicable, and in any event do not protect an employee whose negligence contributed to the injury; and finally they argue that the immunity provided for by N.J.S.A. 59:3-3 (the good faith protection) could not be adjudicated as a matter of law on summary judgment motion but required trial by jury.

Plaintiffs further claim that N.J.S.A. 39:4-91 imposed a liability on Cramer that "must take precedence over the general immunity provisions of Title 59." That section of the Motor Vehicle laws, in addition to providing that emergency vehicles have the right of way when responding "to an emergency call or in the pursuit of an actual or suspected violator of the law," also provides that "[t]his 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 reckless disregard for the safety of others." Finally, plaintiffs contend that to the extent that Roll was the basis for the Appellate Division's holding that N.J.S.A. 59:5-2b(2) immunized Officer Cramer (it did not rule on N.J.S.A. 59:5-2b(3)), it had been misread by the Appellate Division--it provided no immunity at all, it simply dispelled any notion that a police officer was the insurer of the conduct of a fleeing culprit regardless of the officer's negligence.

Defendants continue to maintain that N.J.S.A. 59:5-2b(2) absolutely immunizes both the police officer pursuing the fleeing vehicle and the public entity, the City. They claim that that section, expressly applicable to both the public entity and the public employee, immunizes the City not only for any respondeat superior liability but for liability...