RICHARD D. DAYTON v. EDWARD SIMPSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5157-06T15157-06T1

RICHARD D. DAYTON and VALERIE A.

DAYTON, h/w,

Plaintiffs-Appellants,

v.

EDWARD SIMPSON; STATE OF NEW JERSEY,

DEPARTMENT OF LAW AND PUBLIC SAFETY,

DIVISION OF STATE POLICE,

Defendants-Respondents,

and

CLINTON LEASING, INC.,

Defendant.

____________________________________

 

Submitted April 21, 2008 - Decided

Before Judges Lintner and Alvarez.

On appeal from the Superior Court of

New Jersey, Law Division, Camden County,

L-4075-05.

Ridgway & Stayton, attorneys for appellants (Herbert J. Stayton, Jr., on the brief).

Anne Milgram, Attorney General, attorney for respondents (Lewis Scheindlin, Assistant Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff, Richard Dayton, a Detective with the Camden Police Department, was allegedly injured while participating in an undercover narcotics investigation conducted by the Camden Police Department's High Intensity Drug Trafficking Area Task Force (Task Force). Defendant, Edward Simpson, a State Trooper, was assigned to assist the Task Force and its members who were involved in the operation. Simpson backed his vehicle into Dayton while Dayton was standing on the roadway after effectuating the arrest of an occupant in one of the targeted vehicles. Simpson was driving an undercover leased Dodge Mini Van. Although equipped with a portable emergency teardrop light, which was on the dashboard, the van did not have an audible device. Immediately before striking Dayton, Simpson had placed the van in reverse and backed up to negotiate a turn, in order to pursue perpetrators in another vehicle he perceived were escaping. According to Dayton's version, after he was struck, Simpson then "aggressively (wheels screeching and engine racing) backed the Dodge Mini Van up again, and then went forward" in pursuit of the other vehicle.

Dayton and his wife filed suit, naming several John Does, Clinton Leasing, Incorporated, and the State of New Jersey, Department of Law and Public Safety, and the State Police. On April 27, 2007, summary judgment was granted in favor of Simpson and the State, based upon immunity afforded under N.J.S.A. 59: 5-2c. Dayton and his wife appeal, and we reverse the order for summary judgment and remand for further proceedings.

At the time of the incident, Section III D of the Attorney General's New Jersey Vehicular Pursuit Policy (Pursuit Policy) provided:

An unmarked police vehicle will not participate in a vehicular pursuit unless it is equipped with an emergency light and an audible device. The unmarked car shall relinquish primary unit status immediately upon the participation of a marked vehicle.

Section II B of the Pursuit Policy stated:

Upon the commencement of a pursuit, the pursuing officer will immediately activate emergency lights, audible device and headlights.

On April 7, 1999, referencing the Pursuit Policy, the Superintendent of the State Police established the New Jersey Standard Operating Procedure (SOP) for vehicular pursuit. The SOP had a similar provision precluding use of an unmarked car for pursuit if not equipped with both an emergency light and an audible device, but allowing its use to effect a stop. Both the SOP and Pursuit Policy contained the following pertinent introductory statement:

The primary purpose of this policy is to secure a balance between the protection of the lives and safety of the public, members and other police officers, and law enforcement's duty to enforce the law and apprehend violators. Since there are numerous situations which arise in law enforcement that are unique, it is impossible for this policy to anticipate all possible circumstances. Therefore, this policy is intended to guide a member's discretion in matters of vehicular pursuit.

Simpson filed an affidavit in support of the State's motion for summary judgment. According to Simpson, at the time of the incident, he "was driving . . . an unmarked State Police 2002 Dodge Mini Van." He acknowledged that it was not equipped with an audible device. He asserted that the circumstances required him "to make split second decisions to preserve [his] own safety as well as the safety of other officers present," and "to use his best judgment as to what actions to take in [his] attempt to prevent the fleeing suspect from escaping." He maintained that because he was faced with a split-second decision, the thought that he might violate the pursuit policy regarding the absence of an audible device "did not enter [his] mind," and he did not "knowingly or intentionally violate" the policies.

Although Simpson stated that the pursuit began "[w]hile [he was] effecting an arrest on the suspect in the undercover officer['s] vehicle," Dayton stated that the arrest had already been made and the scene secured. In the special report Simpson filed on April 28, 2004, he wrote that he inspected his vehicle for damage but found none. Dayton, however, observed a broken tail light on the Dodge Mini Van after Simpson returned to the location where plaintiff was hit.

On appeal, Dayton argues that the motion judge erred in relying on the immunity provided by N.J.S.A. 59:5-2c, because Simpson's violation of the policy proscribing the use of a vehicle without an audible device created a jury question as to whether his actions constituted willful misconduct. Plaintiff also argues that a per se violation of the pursuit policy amounts to a lack of good faith, precluding immunity under N.J.S.A. 59:3-3, good faith execution or enforcement of the law.

In reaching his decision, the judge acknowledged the different versions given by Simpson and Dayton but determined that, because under the pursuit rules an unmarked vehicle may pursue, Simpson's conduct was not willful. He did not decide whether Simpson acted recklessly.

We first address immunity under N.J.S.A. 59:5-2, which provides:

Neither a public entity nor a public employee is liable for: . . .

c. any injury resulting from or caused by a law enforcement officer's pursuit of a person.

The statute immunizes both a public employee and entity for all acts of negligence resulting in injuries arising from police pursuits. Tice v. Cramer, 133 N.J. 347, 365 (1993). N.J.S.A. 59:3-14a provides that "[n]othing in this act shall exonerate a public employee from liability if it is established that his conduct . . . constituted . . . willful misconduct." N.J.S.A. 59:2-10 provides that "[a] public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct." The immunity afforded by N.J.S.A. 59:5-2c for injuries arising from police pursuit is "absolute except in the event of willful misconduct on the part of a public employee." Tice, supra, 133 N.J. at 367.

In Fielder v. Stonack, 141 N.J. 101, 125-26 (1995), the Court defined willful misconduct in the context of a police pursuit:

[W]illful misconduct is ordinarily limited to a knowing violation of a specific command by a superior, or a standing order, that would subject that officer to discipline. . . .

. . . .

More particularly, willful misconduct in a police vehicular chase has two elements: 1) disobeying either a specific lawful command of a superior or a specific lawful standing order and 2) knowing of the command or standing order, knowing that it is being violated and, intending to violate it. Where the command or order is not only specific but clearly has no exceptions expressed or implied willful misconduct is not affected by the good faith of the public employee who believes he or she somehow had a right to knowingly and willfully disobey.

See also Alston v. City of Camden, 168 N.J. 170, 183 (2001).

In his appellate brief, Dayton argues that Simpson's operation of a leased van not equipped with the proper emergency devices and his initiation of pursuit without activating the required devices is conduct amounting to willful misconduct. Dayton essentially argues that Simpson's per se violation of the policy against using a properly equipped van is sufficient to present a genuine issue of material fact of willful misconduct to preclude summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

The judge mistakenly concluded that Simpson's actions could not be willful misconduct because the policies permitted unmarked vehicles to participate in police pursuits. The policies allowing pursuit are conditioned on unmarked vehicles taking a secondary position and having the proper audio and light emergency signals. Here, Simpson concedes that the van did not have the required audio device.

While Simpson's aggressive operation of the van after striking Dayton may bespeak negligence, it does not, in our view, indicate intentional conduct. Violation of the SOP and Pursuit Policy, alone, does not necessarily establish intent on the part of Simpson to violate the policy. Indeed, the circumstances facing Simpson, as described in his affidavit, were just the type of circumstance recognized by Justice O'Hern's concurrence in Tice and quoted with approval in Fielder, supra, 141 N.J. at 120.

In their routine work, police officers must be free to make split-second judgments in good faith based on their experience and training without fear of personal liability.

[Tice, supra, 133 N.J. at 384, (O'Hern, J., concurring) (quotations omitted).]

Moreover, a mere error in judgment, even though a technical violation of the Pursuit Policy, does not constitute willful misconduct where the policy provides an individual officer with discretion to determine whether to initiate a pursuit. See Fielder, supra, 141 N.J. at 124.

During oral argument before the motion judge, Dayton's counsel argued that the different versions given, respecting the incident and Simpson's failure to file a pursuit incident report as required by Section IX A of the Pursuit Policy, raise questions of Simpson's credibility concerning his claim that he did not knowingly violate the proscription against unmarked cars participating in pursuits. The issue of willful misconduct, in the context of Simpson's statement that he did not intend to violate policy, involves a determination of state of mind, normally reserved for the jury. See id. at 129. However, that determination does not necessarily preclude summary judgment, so long as the motion judge entertains a careful analysis. Ibid.

The motion judge did not address the state of mind issue or whether Dayton's proofs demonstrated a mere error in judgment on the part of Simpson, as opposed to an intentional violation. There is also nothing in the record before us shedding light on the circumstances under which the van was leased, who entered into the lease on the part of the State, how Simpson acquired it, or whether there was notice that the van was not sufficiently equipped at the time it was acquired. We are, therefore, constrained to reverse and remand the matter for further consideration concerning Simpson's state of mind at the time of the incident. In doing so, we do not pass upon whether Simpson should ultimately prevail on summary judgment.

We briefly address the parties' contentions as to whether Simpson is entitled to N.J.S.A. 59:3-3, qualified immunity for good faith execution or enforcement of the law. Simpson asserts that he is entitled to summary judgment on good faith immunity, while plaintiff asserts that he is not. The motion judge did not decide the issue of good faith immunity but only decided that Dayton failed to establish willful misconduct on the part of Simpson.

In order to succeed on good faith immunity, a public employee must establish "'objective reasonableness' or that [the employee] behaved with 'subjective good faith.'" Alston, supra, 168 N.J. at 186 (quoting Fielder, supra, 141 N.J. at 132). In Alston, the Court pointed out that "'[a]lthough [the "good faith" pursuant to N.J.S.A. 59:3-3, and the Legislature's refusal to grant the officer immunity in those cases in which the officer acts with "willful misconduct" are not necessarily two sides of the same coin,' the distinction between the two 'is a narrow one.'" Id. at 187 (quoting Fielder, supra, 141 N.J. at 137 (Stein, J. concurring)). While willful misconduct is "'more than an absence of good faith,'" Fielder, supra, 141 N.J. at 124 (quoting Marley v. Bor. of Palmyra, 193 N.J. Super. 271, 294-95 (Law Div. 1983)), lack of good faith does not necessarily "equate with willful misconduct." Id. at 126. The Court in Alston determined, as it did in Fielder, that "good faith immunity may be applied to police pursuits." Alston, supra, 168 N.J. at 186 (citing Fielder, supra, 141 N.J. at 132).

In Dunlea v. Twp. of Belleville, 349 N.J. Super. 506 (App. Div.), certif. denied, 174 N.J. 189 (2002), the police, while responding to a report of a burglary, made a left turn, striking the plaintiff's vehicle. The overhead lights and siren on the police vehicle were not activated at the time of the accident. We held "in order to defeat a claim of good-faith immunity, [on the facts presented], it is sufficient that plaintiff shows defendant acted recklessly." Id. at 512 Noting that "'[r]ecklessness, unlike negligence, requires a conscious choice of a course of action with knowledge or a reason to know that it will create serious danger to others,'" the panel in Dunlea found that there was a jury question presented by the failure of the police to activate their signal when turning into oncoming traffic at a fast rate of speed, notwithstanding the defendants' assertion that the officers turned off the signal so as not to warn the perpetrators they were approaching. Id. at 513-14 (quoting Schick v. Ferolito, 167 N.J. 7, 19-20 (2001)).

Depending on the facts, the conscious choice element of reckless conduct may be sufficiently similar to an intentional violation of a known standing order to result in essentially the same culpability. In other words, reckless conduct, depending on the circumstances, may be equivalent to intentional misconduct and, thus, preclude immunity under both N.J.S.A. 59:3-3 and N.J.S.A. 59:5-2c.

The motion judge did not address the proofs respecting Simpson's state of mind nor resolve the issue of the alleged reckless conduct. Instead, he stated that he did not know whether Simpson's conduct was reckless. Because we are remanding for further proceedings on the issue of willful misconduct, we see no reason to exercise original jurisdiction to decide whether Dayton's proofs establish the type of reckless conduct that can be said to be interchangeable with intentional misconduct. See Maisonet v. N.J. Dept. of Human Servs., Div. of Family Dev., 274 N.J. Super. 228, 232 (App. Div. 1994), aff'd 140 N.J. 214 (1995); R. 2:10-5.

Accordingly, the order granting summary judgment is reversed and the matter is remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

Lieutenant John Sosinavage, Lieutenant Scott Thomson, Sergeant Jeffrey Framptom, and Sergeant Gregory Carlin of the Camden Police Department were members of the Task Force and submitted affidavits indicating that Simpson, a member of the State Police "was assigned to assist" the Task Force.

Because the Department of Law and Public Safety and State Police are departments of the State of New Jersey, we refer to them collectively as the State.

Plaintiffs' negligence action against Clinton Leasing, Inc., the purported owner of the van, was dismissed without prejudice on November 23, 2005, apparently for lack of prosecution. Because the two-year statute of limitations has expired, we deem the order for summary judgment as a final order.

(continued)

(continued)

10

A-5157-06T1

May 2, 2008