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NOT FOR PUBLICATION WITHOUT THE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-1449-08T21449-08T2

RICHARD D. DAYTON and VALERIE

A. DAYTON, husband and wife,

Plaintiffs-Appellants,

v.

EDWARD SIMPSON, STATE OF NEW

JERSEY, DEPARTMENT OF LAW AND

PUBLIC SAFETY, and DIVISION OF

STATE POLICE,

Defendants-Respondents,

and

CLINTON LEASING INC.,

Defendant.

__________________________________

 

Submitted December 1, 2009 - Decided

Before Judges Skillman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4075-05.

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

Anne Milgram, Attorney General, attorney for respondents (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Rahat N. Babar, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiffs Richard Dayton (Dayton) and Valerie Dayton appeal the October 10, 2008 Law Division order granting summary judgment to defendants. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On April 28, 2004, Dayton, a detective with the Camden Police Department, was engaged in an undercover narcotics investigation conducted by the High Intensity Drug Trafficking Area Task Force (Task Force) in the area of 400 Raritan Street, near its intersection with Somerset Street in Camden. Defendant Edward Simpson, a Detective Sergeant with the New Jersey State Police, was also assigned to the Task Force. He was parked at the scene in an unmarked Dodge mini van, which was equipped with an emergency teardrop light but no audible device.

At approximately 7:30 p.m., an undercover officer, who was sitting in a parked vehicle (the target vehicle) and wearing an audio device, met with an individual (the suspect) to purchase a significant amount of cocaine. The police had made previous drug purchases from the suspect. The suspect arrived at the scene and entered the target vehicle on the passenger side. Dayton and another officer were parked nearby in an unmarked police vehicle listening to the conversation between the suspect and undercover officer. Other unmarked police vehicles were strategically parked in the immediate area, ready to converge on the target vehicle on Dayton's command.

The undercover officer eventually gave a verbal signal to Dayton, who then instructed "everyone to move in" and arrest the suspect. Dayton pulled his vehicle in front of the target vehicle, exited and arrested the suspect.

According to Simpson, during the arrest he became aware of another possible suspect (the second suspect) sitting in a vehicle parked approximately twenty feet behind his vehicle. He "immediately placed [his] vehicle in reverse in an attempt to pursue the second suspect, however the second suspect['s] vehicle began driving in [his] direction at a high rate of speed. The second suspect swerved around [his] vehicle and fled the area." Simpson placed his emergency teardrop light on his dashboard and activated it. Simpson could not locate the second suspect's vehicle and returned to the scene of the arrest, where Dayton advised him that "[Dayton] had inadvertently been struck by [Simpson's] vehicle when [Simpson] placed the vehicle in reverse in pursuit of the second suspect's vehicle."

Dayton admitted that Simpson could not locate the second suspect's vehicle and returned to the scene of the arrest. However, he denied that the second suspect was driving at a high rate of speed, swerved around Simpson's van and fled the area. In his interrogatory answers, Dayton gave a different version of the incident:

[A]fter the arrest was complete and the scene was secure, the Plaintiff, Dayton heard a commotion on Raritan Street, in the direction of Somerset Street. Dayton went back around the front of the target vehicle and his vehicle and was going down the middle of Raritan Street toward Somerset Street. As he was approaching Somerset Street, on Raritan Street, he noticed [the second suspect's] vehicle coming toward him on Raritan Street. The car was not being driven in an erratic manner, was not speeding nor being driven in an aggressive way. Plaintiff saw the car turn right on to Somerset Street and was immediately struck from behind and knocked to the ground . . . by [Simpson's van]. When Dayton got back on his feet, the [second suspect's vehicle] that had turned onto Somerset was no where in sight and [Simpson's van] was attempting to make a right turn on to Somerset Street; but, had not backed up far enough to negotiate the turn, and wound up on the front lawn of the home on the corner of Raritan and Somerset Streets. . . . Simpson, aggressively (wheels screeching and engine racing) backed the . . . [v]an up again, and then went forward on to Somerset Street. After that, the Plaintiff told his supervisors . . . that . . . Simpson, had run him down/over.

Dayton refused medical treatment at the scene, stating that he felt stiff but had no pain. However, in the days following the incident, he developed increasingly severe pain in his neck and back. On December 27, 2005, he underwent an anterior cervical discectomy with plate and screw fixation, bone bank fusion, C5-6 and C6-7.

On May 9, 2005, Dayton filed a complaint, alleging that Simpson "operated his [van] in a negligent, careless and reckless manner[.]" Dayton also alleged that Simpson disregarded the New Jersey Attorney General's guidelines on vehicular pursuits (the Pursuit Policy), which prohibit pursuits by unmarked police vehicles without an emergency light and audible device, and that Simpson's actions constituted willful misconduct, negligence and recklessness.

The Pursuit Policy defines pursuit driving as

an active attempt by a law enforcement officer operating a motor vehicle and utilizing emergency warning lights and an audible device to apprehend one or more occupants of another moving vehicle when the officer reasonably believes that the driver of the fleeing vehicle is aware of the officer's attempt to stop the vehicle and his resisting apprehension by increasing vehicle speed, ignoring the officer or otherwise attempting to elude the officer.

The Pursuit Policy, Sections III.D. and E., titled "Vehicular Pursuit Restrictions," provides as follows:

D. 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.

E. To diminish the likelihood of a pursuit, a police officer intending to stop a vehicle for any violation of the law shall, when possible and without creating a threat to public safety, close the distance between the two vehicles prior to activating emergency lights and an audible device.

In addition to the Pursuit Policy, the SOP defines pursuit driving as follows:

5. Pursuit driving: Pursuit driving is an active attempt by a member operating a motor vehicle to apprehend one or more occupants of another moving vehicle(s) when the member reasonably believes that the driver(s) of the fleeing vehicle(s) is aware of the member's attempt to stop the vehicle(s) and is resisting apprehension by increasing vehicle speed, ignoring the member or otherwise attempting to elude the officer. Members will use emergency warning lights, headlights and audible devices during pursuit driving.

At the time of the incident, both the SOP and Pursuit Policy contained the following 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.

Defendants filed a summary judgment motion based on pursuit immunity and good faith immunity. In an affidavit submitted in support of the motion, Simpson explained his actions as follows:

Given the dangerous circumstances involved in this situation I was forced to make split-second decisions to preserve my own safety as well as the safety of the other officers present on the scene.

In light of the dangerous circumstances I was confronted with, I was forced to use my best judgment as to what actions to take in my attempt to prevent the fleeing suspect from escaping.

When I made this split second decision to stop the fleeing narcotics suspect, the thought that I might be violating S.O.P. [F]15 by using an unmarked vehicle without an audible device did not enter my mind. I did not knowingly or intentionally violate any State Police Policies and Procedures during my pursuit of the fleeing suspect.

On April 27, 2007, the trial court granted the motion based on pursuit immunity. The judge concluded that Dayton could not establish willful misconduct because the Pursuit Policy permitted Simpson to use an unmarked vehicle. The judge did not address good faith immunity.

Dayton appealed. Another panel of this court addressed N.J.S.A. 59:5-2c, which provides absolute immunity for any injury resulting from a police officer's pursuit of a person except in the event of the officer's willful misconduct. Dayton v. Simpson, No. A-5157-06 (App. Div. May 2, 2008) (slip op. at 6). The panel noted that in the context of police pursuits, willful misconduct occurs when an officer disobeys either a specific lawful command of a superior or a specific lawful standing order and knows of the command or standing order, knows that it is being violated, and intends to violate it. Id. at 7. The panel reversed and remanded, concluding that whether Simpson intentionally violated the policies required a determination of his state of mind at the time of the incident. Id. at 9-10.

The panel also addressed N.J.S.A. 59:3-3, which provides immunity to police officers who act with objective reasonableness or subjective good faith in police pursuits except in the event of recklessness. Id. at 11 The panel noted that "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 the same culpability[,]" thus precluding immunity under both N.J.S.A. 59:3-3 and N.J.S.A. 59:5-2c. Id. at 12. The panel concluded that the trial judge could address on remand the issue of whether Simpson's conduct was reckless. Ibid.

Thereafter, Simpson testified at his deposition that: the second suspect's vehicle left the scene at a high rate of speed in violation of New Jersey motor vehicle laws; he backed up his van in an attempt to follow the vehicle but lost sight of it almost immediately after it left the scene; he activated his teardrop light after traveling "a couple of streets up and down;" he was not involved in a pursuit and only intended to identify the vehicle's tags and its occupant; there was no way he could stop the vehicle; and he never intended to initiate a motor vehicle stop.

Defendants filed another summary judgment motion. The trial judge denied the motion as to qualified immunity, finding there was a genuine issue of material fact as to whether Simpson acted recklessly. The judge granted the motion as to pursuit immunity and dismissed the complaint, finding that no willful misconduct occurred. This appeal followed.

We use the same standard as the trial court to conduct our own de novo review of summary judgment motions. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then decide whether the lower court's ruling on the law was correct. Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).

Applying these standards, we conclude that the judge improperly granted summary judgment based on pursuit immunity. The Pursuit Policy makes clear that the elements of a pursuit are: (1) an attempt by a police officer to apprehend someone; (2) the officer has a reasonable belief that the suspect is aware of the attempt to stop him; and (3) the suspect ignores the officer's attempt to stop him and decides to initiate a pursuit. "The critical element in this definition is the officer's reasonable belief that the pursued driver is aware of a police attempt to stop the vehicle and the pursued driver 'is resisting apprehension by increasing vehicle speed, ignoring the officer or otherwise attempting to elude the officer.'" Torres v. City of Perth Amboy, 329 N.J. Super. 404, 407 (App. Div. 2000).

The evidence in this case does not establish the elements of a pursuit. Simpson had no reasonable belief that the second suspect was aware that the officer was following him. Moreover, Simpson never attempted to apprehend the second suspect. He merely followed that suspect's vehicle in order to identify the occupant and the vehicle's tags.

However, we affirm the grant of summary judgment on the alternative ground of good faith immunity. "The most basic duty of a police officer is to enforce the law. In discharging this duty, police officers may use all reasonable means to uphold the law and apprehend perpetrators." Canico v. Hurtado, 144 N.J. 361, 365 (1996). Police officers will not be held liable for their actions if they "act in good faith in the execution or enforcement of any law." N.J.S.A. 59:3-3. This immunity applies to a police officer's operation of a motor vehicle within the scope of his or her duties and in response to an emergency where the officer acted with objective reasonableness or with subjective good faith. Canico, supra, 144 N.J. at 365.

To pierce good faith immunity, "a plaintiff must prove more than ordinary negligence." Ibid. The plaintiff must prove recklessness. Dunlea v. Twp. of Belleville, 349 N.J. Super. 506, 512 (App. Div.), certif. denied, 174 N.J. 189 (2002). "'Recklessness, unlike negligence, requires a conscious choice of a course of action with knowledge or a reason to know that it will create a serious danger to others.'" Id. at 513-14 (quoting Schick v. Ferolito, 167 N.J. 7, 19-20 (2001)). Recklessness is characterized by "an extreme departure from ordinary care, in a situation in which a high degree of danger is present." Id. at 513. In differentiating between recklessness and negligence, the latter "may consist of an intentional act done with knowledge that it creates a risk of danger to others, but recklessness requires a substantially higher risk. The quantum of the risk is the important factor." Schick, supra, 167 N.J. at 19-20.

The evidence in this case does not establish that Simpson acted recklessly. Rather, the evidence clearly shows that Simpson was performing a police activity under emergent circumstances requiring him to act quickly to protect public safety, and that he acted pursuant to his reasonable and good faith belief that the second suspect was engaged in unlawful activity. Accordingly, defendants are entitled to good faith immunity.

 
Affirmed.

Raritan Street is a one-way street in a residential neighborhood.

Dayton's wife asserted a per quod claim.

Section D.3. of the New Jersey State Police Standard Operating Procedure F15 (SOP) for vehicular pursuits contains identical language, except it includes the following language: "This does not preclude the use of unmarked vehicles to effect a stop."

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A-1449-08T2

April 19, 2010