DAVID E. SHEARER v. CORDELL HARRIS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5851-03T25851-03T2

DAVID E. SHEARER,

Plaintiff-Appellant,

v.

CORDELL HARRIS and MONROE TOWNSHIP

POLICE DEPARTMENT, jointly,

individually and in the alternative,

Defendants-Appellants.

___________________________________

 

Argued: January 24, 2006 - Decided March 10, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-3228-99.

Edward Slaughter, Jr., argued the cause for appellant (Pellettieri, Rabstein and Altman, attorneys; Mr. Slaughter, on the brief).

Nancy Stewart argued the cause for respondents (Shain, Schaffer & Rafanello, attorneys; Richard A. Rafanello, of counsel; Ms. Stewart, on the brief).

PER CURIAM

This appeal arises out of a judgment rendered on a jury verdict for damages sustained by plaintiff David Shearer when his motorcycle was struck by a police cruiser operated by defendant Cordell Harris while on duty with defendant Monroe Township Police Department.

The matter was first tried in December 200l. Plaintiff testified that on August 29, 1998, he consumed approximately six ten-ounce glasses of draft beer while having dinner in a Jamesburg restaurant. At about 11:30 p.m., he left the restaurant on his motorcycle. Shortly before midnight, while traveling westerly on Route 522 into Monroe Township at about fifty miles an hour, he suddenly observed a "flash" of a police decal on the door of a vehicle, which was blocking the roadway in front of his motorcycle. Plaintiff jammed on his brakes, but was unable to prevent a collision with the passenger side of the police vehicle. Plaintiff suffered multiple, severe injuries and was unable to work for a considerable period of time.

Officer Harris testified that shortly after midnight while on routine patrol traveling eastbound on Route 522, he observed a speeding car traveling in the westbound direction. After verifying the vehicle's excessive speed with radar, Officer Harris decided to perform a traffic stop of that vehicle. He pulled into a nearby gravel driveway, intending to make a K-turn and then proceed in a westerly direction in pursuit of the speeding motorist. Officer Harris was almost completely out of the turn when plaintiff's motorcycle struck the passenger side of his patrol car. According to the officer, while questioning plaintiff at the scene, he detected the "odor of an alcoholic beverage" on plaintiff's breath.

At the close of all evidence, defendants moved for a judgment of dismissal under Rule 4:40-1, asserting they were entitled to good-faith immunity under N.J.S.A. 59:3-3, which provides that "a public employee is not liable if he acts in good faith in the execution or enforcement of any law." The court denied the motion. The court also denied defendants' request to instruct the jury on this defense.

The jury found in plaintiff's favor and apportioned negligence at 97% to the officer and 3% to the motorcyclist. The trial court molded the verdict accordingly, and judgment was entered in plaintiff's favor in the sum of $690,740.95. Defendants appealed, asserting as error denial of their motion for a judgment of dismissal at the close of the evidence and, as alternative error, denial of the jury instruction as to their good-faith immunity defense. Defendants also contended the court erred in precluding their accident reconstructionist from testifying that physical evidence at the accident scene demonstrated that plaintiff's driving skills were impaired by the consumption of alcoholic beverages.

In a per curiam opinion of April l0, 2003 (A-2735-01), we rejected defendants' challenge to the court's order barring the testimony of their accident reconstructionist, finding it was within the trial court's discretion to determine that the witness lacked the expertise to testify as to the effect of the consumption of the alcohol on plaintiff's driving. We did find error, however, in the trial court's refusal to instruct the jury on the good-faith immunity defense. We concluded:

[T]he facts amply supported defendants' request that a jury instruction be given on the good-faith immunity defense. Accepting Officer Harris' testimony as true, he was not, as the trial court observed, merely "patrolling [the] streets" when the accident occurred. He had initiated a pursuit of a speeding vehicle by making a K-turn, in the course of which plaintiff's motorcycle collided with the officer's patrol car. . . .

. . . .

Here, as in Torres [v. City of Perth Amboy, 329 N.J. Super. 404 (App. Div. 2000)] and [Canico v.] Hurtado, [ 144 N.J. 361 (1996)], the good-faith immunity [defense] applies because Officer Harris was acting "in the execution or enforcement of any law." N.J.S.A. 59:3-3. Indeed, police officers are charged with the enforcement of the motor vehicle laws, and may arrest any person who commits a motor vehicle violation in the officer's presence. . . .

We were not satisfied, however, that defendants were entitled to a judgment of dismissal as a matter of law, noting that the non-moving party must be accorded the benefit of all favorable inferences, and if reasonable minds could differ, the motion must be denied. R. 4:40-1; Dolson v. Anastasia, 55 N.J. 2, 4-6 (1969). We set forth what Officer Harris was required to demonstrate for entitlement to this defense:

To prevail under good faith immunity, "[a] public employee either must demonstrate 'objective reasonableness' or that he behaved with 'subjective good faith.'" Alston [v. City of Camden, 168 N.J. 170, 186 (2001)] (quoting Fielder [v. Stonack, 141 N.J. 101, 132 (1995))]. A public employee need only show one of the aforementioned standards, and if they do so successfully, good faith immunity will attach. Ibid.

Presence of negligence does not negate a finding of good faith; even if a public employee is negligent, immunity is afforded as long as the public employee is acting in good faith. Fielder, supra, 141 N.J. at 138. However, if the employee acts recklessly, this will negate a finding of good faith. Dunlea v. Township of Belleville, 349 N.J. Super. 506, 512 (App. Div.), certif. denied, 174 N.J. 189 (2002). "Reckless conduct" is defined as "an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent." Id. at 513.

We concluded that fact issues existed as to whether Officer Harris was objectively reasonable in his conduct, whether he behaved with subjective good faith, or whether he acted recklessly. Accordingly, we reversed and remanded for further proceedings.

Following remand, defendants sought an updated medical examination and deposition of plaintiff, which request was apparently declined premised upon plaintiff's assertion that the remand trial was limited to the issue of liability. Defendants then filed a motion to compel plaintiff's deposition. At the trial court's direction, plaintiff's counsel filed a motion with us for clarification of the scope of the remand. By order of October 16, 2003 we held that since defendants did not challenge the jury verdict as to damages, the retrial should be limited to liability only.

Trial was scheduled for December 8, 2003, precipitating a series of in limine motions by plaintiff. Plaintiff moved to: (1) limit retrial to the issue of whether Harris was acting in good faith in the enforcement of the law at the time of the collision; (2) on retrial preclude admission of evidence concerning plaintiff's use of alcohol and his comparative negligence, because no appeal had been taken with respect to these issues, and because there was no evidence that plaintiff's consumption had negatively affected his ability to operate a motor vehicle; and (3) require that defendants have an affirmative burden of proof and must present their proof first at retrial. Apparently by agreement, the motion did not go forward, and plaintiff filed the motion with us in the context of a further motion for clarification of our April 10, 2003 opinion. We denied the motion by order of January 27, 2004.

The case was retried in its entirety on liability in May 2004. The jury returned a verdict finding Officer Harris reckless at the time of the accident. Because Officer Harris was found to have been reckless, the immunity provided under N.J.S.A. 59:3-3 did not apply. The jury apportioned fault at 53% against Officer Harris and 47% against plaintiff. The trial court entered a molded judgment in plaintiff's favor, based on the initial award, in the amount of $377,415.16.

Plaintiff appeals from the re-apportionment of liability. He argues that because his negligence and comparative fault were admeasured in the initial trial and no appeal was taken with respect to those issues, they should have been considered res judicata, and our remand should have been limited to the question of whether Officer Harris was entitled to the immunity provided by N.J.S.A. 59:3-3. Plaintiff submits that once the jury found the officer to have been reckless, and defendants were thereby not entitled to the good-faith immunity defense as a matter of law, he was entitled to revert to the apportionment of 97% negligence to the officer found by the jury in the first trial.

We disagree. Our decision, however, is not based on the law of the case doctrine resulting from our interlocutory order denying clarification, as advanced as a ground by defendants. "For the determination of an issue to constitute the law of the case, . . . the issue must have been contested and decided." Lanzet v. Greenberg, 126 N.J. 168, 192 (1991). On the contrary, the only determination we made as to the scope of the remand subsequent to our opinion was that defendant was not entitled to re-litigate damages and that the trial would be limited to the issue of liability. Our denial of plaintiff's subsequent motion to clarify was not a ruling on the merits of whether the remand trial should be limited to the questions of whether the police officer was entitled to the immunity provided by N.J.S.A. 59:3-3, whether defendants could re-litigate the issues of negligence, comparative negligence, proximate cause or damages, or whether defendant had to proceed first in the presentation of proofs. To that extent, our denial was akin to a denial of a motion for summary judgment. See Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004) (recognizing that an order denying summary judgment is not subject to the law of the case doctrine because it decides nothing and merely reserves issues for future disposition), certif. denied, 182 N.J. 427 (2005).

We reject plaintiff's argument that by not expressly appealing the issues of his negligence, comparative fault and proximate cause, defendants waived their right to address these issues on remand. Defendants appealed from the judgment entered against them following the initial jury trial, focusing on several legal issues, as we have previously discussed. See R. 2:2-3(a)(1) (appeals may be taken to the Appellate Division as of right from final judgments of the Superior Court trial divisions). Implicit in defendants' appeal was the argument that the entire liability verdict was tainted by errors pertaining to the good-faith immunity defense.

As noted in our April 2003 opinion, the good-faith immunity defense includes three components: objective reasonableness, subjective good faith and a consideration of whether the actions taken constituted recklessness. Critical to this case, our Supreme Court has recognized the necessity of analyzing these elements in light of all of the circumstances surrounding the underlying incident against which the defense is being asserted. Thus, as to objective reasonableness, the Court in Alston v. City of Camden, 168 N.J. 170, 187 (2001) held that "[t]he question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them." Similarly, in Canico v. Hurtado, 144 N.J. 361, 366 (1996), the Court stated, "Even if [the officer's] operation of the police van might otherwise be considered negligent, under the circumstances his response . . . remained objectively reasonable." As to the issue of subjective good faith, the Court in Alston held that:

The question is whether defendant's conduct was subjectively reasonable based on the totality of circumstances, including those events preceding and following the chase, as well as the pursuit itself.

[Id. at 187-88.]

Officer Harris had the right to have his good-faith immunity defense considered in light of all the circumstances that led to the accident in which plaintiff was injured. It is clear under the case law that the jury could not evaluate the officer's actions without considering plaintiff's own role in the incident, which necessarily included, among other items, plaintiff's alcohol use immediately prior to the accident, his excessive speed on the motorcycle and his comparative negligence. Accordingly, there was no basis in law to limit the scope of the remand trial. Defendants were bound by the jury's findings that Officer Harris was reckless in the performance of his duties and they were thus not entitled to the good-faith immunity defense. Plaintiff received the benefit of a favorable verdict but was similarly bound by the apportionment of 47% comparative negligence to him.

Affirmed.

 

The trial court denied the relief sought without prejudice by order of December 26, 2003.

We note there is no point heading of appellant's specific argument as required by Rule 2:6-2(a)(5). We glean his argument from the body of his brief and oral argument.

(continued)

(continued)

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A-5851-03T2

March 10, 2006