LAURA PAPPAS v. UNION TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5850-08T25850-08T2

LAURA PAPPAS, Executrix of the

Estate of Johanna Trimmer, deceased,

LAURA PAPPAS, Individually,

and VIRGINIA SMITH, Individually,

Plaintiffs-Appellants/

Cross-Respondents,

v.

UNION TOWNSHIP, a municipal corporation

in Union County, and OFFICER EUGENE

FISHER,

Defendants-Respondents/

Cross-Appellants.

________________________________________

 

Argued: March 10, 2010 - Decided:

Before Judges Stern and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, Docket No. L-0228-08.

Thomas W. Sweet argued the cause for appellants/cross-respondents.

Alan J. Baratz argued the cause for respondents/cross-appellants (Weiner Lesniak LLP, attorneys; Mr. Baratz, of counsel; Jacqueline A. DeGregorio and Emily J. Weiner, on the brief).

PER CURIAM

Plaintiffs appeal from a final judgment flowing from orders of May 28 and July 17, 2009 granting summary judgment to defendant Township and its police officer Eugene Fisher (based on the performance of discretionary acts) and denying reconsideration. Plaintiffs argue "the trial court erred in holding that the defendants, police officer Eugene Fisher and Union Township, are immune from liability for their abandonment of Johanna Trimmer at the site of the first accident" and that N.J.S.A. 59:3-2(d) does not provide immunity in this case. The defendants filed a protective cross-appeal asserting other bases for affirmance.

I.

On October 8, 2006, an accident occurred in Union at the intersection of Morris and Rahway Avenues. The accident involved the plaintiff deceased, Johanna Trimmer, who was driving a Chevy Cavalier, and Franklin Vega, who was riding a motorcycle. As a result, defendant Fisher, who was employed by the Union Township Police Department as a patrolman and a Crash Investigator, was dispatched to the scene of the accident.

When Fisher arrived at the scene, he observed that Vega was lying face down on the ground. According to Fisher, he believed the accident was fatal because Vega had been thrown over Trimmer's car and had landed, head first, on the street. Other police officers were already at the scene when he arrived.

Fisher conducted an investigation of the accident. Trimmer told Fisher that the motorcycle had hit her as she was making a left turn from Morris Avenue westbound onto Rahway Avenue. Fisher maintains Trimmer told him she was not injured. However, she was "maybe a little shaken up, but [she] was not hysterical or anything like that." Otherwise, Fisher asserts Trimmer "seemed to be perfect, within her faculties."

After transcribing the information Trimmer had given him, Fisher states that he gave her back her license, registration, and insurance card which he had taken, and asked how she was doing, to which Trimmer answered she was fine. Trimmer then inquired about what to do with her car, which was disabled. Fisher suggested that she could leave her car at the parking lot of a Getty gas station which was located on Morris Avenue, not too far from the scene of the accident. Thereafter, Fisher returned to the police car and continued his paperwork.

According to Sabri Seckin (Seckin), an attendant at the Getty gas station, Trimmer drove her car to the station and asked if she could park it there, to which Seckin consented.

Fisher asserts in his deposition testimony that the Union Township Police Department had no operating procedure requiring an investigating officer to ensure that an accident victim whose car had been disabled returned home safely. Fisher maintained that in situations where the victim had no way of making such arrangements, the police could take them to the police headquarters or call a taxi, as a courtesy. However, in this case, Fisher acknowledged that he did not inquire as to how Trimmer was getting home, or whether she had any relatives who could pick her up. Nevertheless, according to Fisher, he wanted one of the other officers to assist Trimmer so that she could get home. This is because he had a mother who was around Trimmer's age and he knew "how [he] would feel if [his mother was in the same situation] and didn't get a ride home." He also maintains that he did not see Trimmer at the gas station. However, he admitted that he "did [not] make any inquiry as to where [Trimmer] went." Although Fisher asserts that he looked for, but could not find, Trimmer, Seckin's uncertified statement maintained that she remained at the gas station for "approximately [twenty] minutes" after her interview with Fisher.

According to Seckin, because the police made no "arrangement for taking the elderly woman home," he asked her "if she would wait until 7:00 pm, when [he] was required to close up the gas station, and [he] would drive her home." Trimmer declined the offer, and told Seckin that she lived nearby, on Liberty Avenue, "and that she would walk home." According to plaintiffs' responses to interrogatories she lived approximately 1.2 miles away.

After his unsuccessful attempts to locate Trimmer, Fisher proceeded to the University of Medicine and Dentisry (UMDNJ) where Vega was taken to inquire about his condition. Fisher was not accompanied by any of the other police officers from the accident scene. He also acknowledged that none of those officers were at UMDNJ when he arrived.

There is no dispute as to what happened thereafter. According to plaintiffs' answers to interrogatories:

On the evening of October 8, 2006, Mrs. Trimmer was walking home and she was crossing Liberty Avenue in Union Township when she was struck by a hit and run driver. Upon impact, Mrs. Trimmer was thrown approximately 25-30 feet before hitting the road surface and sustaining multiple serious injuries.

Mrs. Trimmer was taken to the Trauma Receiving Area of The University Hospital in Newark, New Jersey.

During the time Mrs. Trimmer was in the intensive care unit at the hospital, she underwent multiple medical procedures and multiple surgeries as a result of her injuries. She remained on a ventilator, was managed for persistent respiratory failure and on October 10, 2006[,] she underwent a tracheostomy for continued ventilator management.

On November 22, 2006[,] Mrs. Trimmer was transferred to Rolling Hills Hunterdon Care Center in Lebanon, New Jersey for treatment. Mrs. Trimmer remained at this facility until her death on December 20, 2006.

On appeal from a grant of summary judgment, we apply the same standard as the trial court: we first determine whether there is a genuine issue of material fact. If there is not, then we decide whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Plaintiffs argue that "the trial court erred in holding that defendants are immune from liability for their abandonment of Trimmer at the site of the first accident." On the other hand, defendants assert that "summary judgment was appropriate because they are immune from suit."

The trial court granted summary judgment, apparently pursuant to N.J.S.A. 59:3-2(d), because it found defendants' actions to be "discretionary." According to the judge, Fisher made a "discretionary choice" in "continu[ing] the investigation concerning the certainly serious if not the death of the gentleman on the motorcycle" instead of "trying to find" Trimmer and tend to her trip home. See also Suarez v. Dosky, 171 N.J. Super. 1, 7-10 (App. Div. 1979) (discussing N.J.S.A. 59:5-4), certif. denied, 82 N.J. 300 (1980).

The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act) specifies that, "[e]xcept as otherwise provided[,]" "a public entity is not liable for any injury, whether such injury arises out of an act or omission of the public entity or a public employee . . . . " N.J.S.A. 59:2-1(a). Thus, the Act's dominant theme is immunity, with liability as the exception. Rochinsky v. Dep't of Transp., 110 N.J. 399, 408 (1988). Additionally, a public entity is entitled to immunity unless there is a specific provision in the Act imposing liability. N.J.S.A. 59:2-1 Task Force Comment; Malloy v. State, 76 N.J. 515, 518-19 (1978). Hence, even if a provision of the Act establishes liability, a corresponding provision of the Act may provide the public entity with immunity. Malloy, supra, 76 N.J. at 521.

N.J.S.A. 59:5-4 provides that "[n]either a public entity nor a public employee is liable for failure to provide police protection service, or if police protection service is provided, for failure to provide sufficient police protection service." The purpose of this statute is to recognize "the judicially accepted principle that the allocation of equipment and personnel by public entities involves the type of governmental policy determination which must remain free from the threat of tort liability." Suarez, supra, 171 N.J. Super. at 8-9 (quotation omitted). Thus, decisions concerning "[h]ow many officers a town should employ, how each should be equipped and whether a town should have any police at all are political decisions which should not be made the subject of any tort liability." Id. at 9. We have held that this section applies to the acts of "rank and file employees." Sczyrek v. County of Essex, 324 N.J. Super. 235, 242-43 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000).

On the other hand, this section does not provide immunity from liability for negligence in performance of ministerial police duties once the police have decided to protect. Suarez, supra, 171 N.J. Super. at 7-10. See also Massachai v. AHL Servs., Inc., 396 N.J. Super. 486, 495-96 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008); Massachi v. City of Newark, ___ N.J. Super. ___ (App. Div. 2010) (where the court found there was no immunity but which, unlike in this case, involved written guidelines). An act is "ministerial" if it is "one which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done." Morey v. Palmer, 232 N.J. Super. 144, 151 (App. Div. 1989). According to plaintiffs, N.J.S.A. 59:5-4 does not make defendants immune from liability because defendants' actions were "ministerial."

In Suarez, a group of eight people (including two young children) were riding in a car on Route 80, an eight-lane road with four lanes in each direction, when they became involved in a minor accident. Suarez, supra, 171 N.J. Super. at 5-6. "Adjacent to the right lane of the eastbound side [wa]s a ten-foot paved shoulder ending in a curb, beyond which [wa]s a grassy berm[,]" about five hundred feet from an exit ramp. Id. at 5-6. After the accident, two New Jersey State Troopers arrived at the scene, removed the damaged vehicle, and issued a summons to the driver. Id. at 5. The group, now stranded, requested the troopers to escort them from Route 80 or to call a taxi cab. Id. at 6. However, the troopers declined to do so and advised them to walk to the nearest exit off the highway. Ibid. While walking to the exit two members of the group were struck and killed by vehicles on the highway. Ibid.

The court, in finding that defendants, the troopers and the State, had no immunity under N.J.S.A. 59:5-4, stated that the statute did "not insulate police officers from unfortunate results of their negligently executed ministerial duties. Suarez, supra, 171 N.J. Super. at 10. According to the court:

[c]learly, police officers, whose duties embrace protection of the public's safety on the highways, and who are expert or are supposed to be in that endeavor, could and should have foreseen danger to that group of adults and children stranded on Route 80 during the night hours.

Plaintiffs assert that defendants should not be afforded immunity under the court's holding in Suarez because both cases involve similar facts relating to the negligent performance of ministerial acts. However, as the trial court indicated, in this case

[t]he defendant officer was not requested by decedent to render aid. And that's a distinction in the Suarez case. This was a -- not a major highway, though a busy area. Apparently, the plaintiff decedent took it upon herself to walk home. And, apparently, there is some evidence to indicate that these were areas with sidewalks. This was not having to walk home on the street.

Although defendants did not provide Trimmer with transportation to her house, she was not in a position of obvious peril. As defendant Fisher maintained, while Trimmer was "shaken up" by the accident, there is no evidence that she was injured or that she was not in control of her faculties. Additionally, as the trial court stated, the first accident did not occur on a highway; Trimmer did not request transportation and she even declined Seckin's offer to take her home. Moreover, there is no evidence of any condition resulting from the accident with Vega which contributed to decedent being hit by a "hit and run" driver while crossing a busy street.

Clearly, Trimmer was able to converse with Fisher, ask what she was to do with her disabled car, drive it to the gas station, and make arrangements for it while having cogent and coherent conversation. Furthermore, even though it was concededly getting dark, Trimmer was walking on a street, which unlike Route 80, was well lit.

We find this case is controlled by Morey. In Morey, the decedent was obstructing traffic in the middle of a road, apparently intoxicated, and directed to leave by Officer Vinci at approximately 5:15 p.m. Morey, supra, 232 N.J. Super. at 147. At about 8:55 p.m., "decedent was struck and killed by a truck one-quarter of a mile from the place were Vinci had ordered him out of the roadway." Ibid. As Judge Gruccio put it:

The difference between the present factual scenario and that found in Suarez is that the officers in Suarez were duty-bound to render aid, particularly when they were requested to do so. Vinci was not responding to an accident scene. Decedent was evidently able to understand, respond to and comply with Vinci's orders to leave the highway. Ultimately, he was struck and killed 3 hours and 40 minutes later. Vinci was only duty-bound to remove decedent to an intoxication treatment facility if he determined that decedent was incapacitated. The basis of defendants' immunity arises from Vinci's discretionary determination that decedent was not incapacitated. The officers in Suarez simply were required to perform a ministerial act to comply with their duty. Here, any duty to physically remove decedent and thus substantially interfere with his liberty would arise only after the officer made a judgment decision respecting his incapacity. If there is causality, it would have to arise from that asserted error in judgment, 3 hours and 40 minutes before the accident but not from a ministerial act.

[Id. at 150-51 (footnote omitted).]

We recognize that Morey was decided under N.J.S.A. 59:3-2(d) and N.J.S.A. 59:3-5, and not N.J.S.A. 59:5-4:

Vinci's decisions in the field were protected under N.J.S.A. 59:3-2(d) and N.J.S.A. 59:3-5. Although it is true that a municipal police officer does not constitute a high-ranking public employee, these provisions of the New Jersey Tort Claims Act are not always limited to such individuals. Brown v. Brown, 86 N.J. 565, 577 (1981). Discretionary decisions of officers in the field may subject a municipality to claims equal to or in excess of those resulting from the errors in judgment or discretion exercised by high-ranking public employees. Their decisions may materially affect the efficient distribution of a scarce personnel resource.

This fact gives rise to the immunity under N.J.S.A. 59:3-2(d) and N.J.S.A. 59:3-5.

. . . .

We hold that on these facts, Vinci had no mandatory duty beyond that of physically getting decedent off the highway at 5:15 p.m. Absent special circumstances a general duty to render aid arises only in instances where the failure to render aid is palpably unreasonable. Under the present facts no such argument can be posited. Any connection between decedent's physical state at the time Officer Vinci responded and 3 hours and 40 minutes later is tenuous at best.

[Id. at 153-54 (footnotes omitted).]

We believe the same rationale applies here, and that even if Fisher was not exercising discretion, there is no proof he negligently performed a ministerial task.

We recently affirmed the dismissal of a complaint against two Jersey City police officers who abandoned efforts to find the location of a 9-1-1 caller, possibly contributing to the death of two children and their mother. Wilson v. Jersey City, ___ N.J. Super. ___ (App. Div. 2010). We did so while recognizing that "N.J.S.A. 59:5-4 does not insulate [them] from [the] unfortunate results of their negligently executed ministerial duties," id. at 14 (quoting Massachi, 396 N.J. Super. at 496 (quotation omitted)) and, similarly that "N.J.S.A. 59:3-2(d) and N.J.S.A. 59:2-3(d) do not provide immunity from liability for negligence in performance of ministerial police duties once the police have decided to protect." Id. at 19. We nevertheless found immunity, and what we said there applies here: "[W]e determine that the competing demands associated with protecting and serving the public and the need to be available for general police services made the police officers' conduct in those circumstances reasonable, discretionary, and immune from liability." Id. at 20-21.

We are satisfied that Morey is applicable in this case, and we uphold the dismissal of plaintiffs' complaint either because the issue involved the exercise of discretion or the non-negligent performance of a ministerial act. Having done so, we need not consider the impact of other sections of the Act.

 
Affirmed.

Finality was achieved by the stipulated dismissal of the "Union Township Police Department." The other defendants named as "John Does 1-10, Richard Roes 1-10 and Doe Corporations 1-10" were dismissed by plaintiffs.

Plaintiffs discuss the application of N.J.S.A. 59:5-4 in their brief. They also contend that while defendants initially relied on that section, defendants "abandoned" reliance on that section.

(continued)

(continued)

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A-5850-08T2

August 20, 2010