Estate of Hiram Gonzalez v. City of Jersey City

Annotate this Case

In August 2014, at approximately 2:26 a.m., Hiram Gonzalez was involved in a one-vehicle accident. Officers Leon Tucker and Saad Hashmi of the Jersey City Police Department (JCPD) were dispatched to the scene. They determined Gonzalez’s vehicle was inoperable and called for a tow truck. Officer Tucker offered to drive Gonzalez to a nearby gas or PATH station, but Gonzalez refused, saying he would wait for his brother. Officer Hashmi acknowledged that the standard police practice is to leave a stranded motorist in a safe place or offer them a ride within the city’s limits, but he claimed there was no standard practice for when a stranded motorist refuses a ride but was not in a safe place. Officer Hashmi also stated that he and Officer Tucker could have waited with Gonzalez until he had a ride, but they did not because it was a busy Saturday night in the summer and “there were a lot of calls going out.” Before leaving the scene, the officers told Gonzalez to remain in the pedestrian walkway, which had a guardrail between the roadway and the sidewalk. Gonzalez was struck at around 3:42 a.m. According to a toxicology report, he had a BAC of .209% at the time he died. The officers claimed that Gonzalez did not appear intoxicated. The issue this case presented for the New Jersey Supreme Court's review centered on whether the officers were entitled, under the particular facts and circumstances of this case, to any of the immunities from liability provided by the New Jersey Tort Claims Act (TCA), the Good Samaritan Act, or N.J.S.A. 26:2B-16, a statute that immunized officers from liability for assisting persons intoxicated in a public place to an appropriate location. The Court determined the immunities from liability provided by the Good Samaritan Act, N.J.S.A. 26:2B-16, and most TCA provisions invoked by defendants did not apply here. Defendants’ actions might be entitled to qualified immunity under certain TCA provisions on which defendants relied, however, if the involved officers’ actions were discretionary, rather than ministerial, in nature. In this instance, because of a factual dispute, that determination was for the jury to make upon remand.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

Estate of Hiram A. Gonzalez v. City of Jersey City (A-19-20) (084381)

Argued April 27, 2021 -- Decided August 4, 2021

SOLOMON, J., writing for a unanimous Court.

The Court considers whether officers responding to a one-vehicle accident on a
highway bridge may be entitled, under the particular facts and circumstances of this case,
to any of the immunities from liability provided by the New Jersey Tort Claims Act
(TCA), the Good Samaritan Act, or N.J.S.A. 26:2B-16, a statute that immunizes officers
from liability for assisting persons intoxicated in a public place to an appropriate location.

On August 3, 2014, at approximately 2:26 a.m., Hiram Gonzalez was involved in a
one-vehicle accident. Officers Leon Tucker and Saad Hashmi of the Jersey City Police
Department (JCPD) were dispatched to the scene. They determined Gonzalez’s vehicle
was inoperable and called for a tow truck. Officer Tucker offered to drive Gonzalez to a
nearby gas or PATH station, but Gonzalez refused, saying he would wait for his brother.

Officer Hashmi acknowledged that the standard police practice is to leave a
stranded motorist in a safe place or offer them a ride within the city’s limits, but he
claimed there is no standard practice for when a stranded motorist refuses a ride but is not
in a safe place. Officer Hashmi also stated that he and Officer Tucker could have waited
with Gonzalez until he had a ride, but they did not because it was a busy Saturday night
in the summer and “there were a lot of calls going out.”

A call transcript shows that at 3:24 a.m., Officer Tucker told a dispatcher the
“driver is gonna wait for his brother in the same location where he was. He refused to get
in the car with us to head to the [S]hell station.” The dispatcher responded “ok.” Before
leaving the scene after that call, the officers told Gonzalez to remain in the pedestrian
walkway, which had a guardrail between the roadway and the sidewalk. Gonzalez was
struck at around 3:42 a.m. According to a toxicology report, he had a BAC of .209% at
the time he died. The officers claimed that Gonzalez did not appear intoxicated.

Gonzalez’s Estate filed a complaint against the City of Jersey City, the JCPD,
and Officers Tucker and Hashmi. The trial court granted summary judgment for
defendants, finding that the officers undertook their duties in good faith and were
therefore immune from liability under the TCA. The Appellate Division reversed,
1
holding that defendants were not entitled to TCA immunities. The court found that
“because the officers were called to the scene of a motor vehicle accident, the officers’
duty was ministerial in nature.” The Court granted certification. 244 N.J. 341 (2020).

HELD: The immunities from liability provided by the Good Samaritan Act, N.J.S.A.
26:2B-16, and most TCA provisions invoked by defendants do not apply here.
Defendants’ actions may be entitled to qualified immunity under certain TCA provisions
on which defendants rely, however, if the involved officers’ actions were discretionary,
rather than ministerial, in nature. In this instance, because of a factual dispute, that
determination is for the jury to make upon remand.

1. The Good Samaritan Act’s purpose is to encourage bystanders to provide affirmative
aid to an injured person, even where there is no duty to do so. N.J.S.A. 2A:62A-1.1
immunizes law enforcement officers -- absent gross negligence -- “for any civil damages
as a result of any acts or omissions undertaken in good faith in rendering care at the scene
of an accident or emergency to any victim thereof.” (emphasis added). Significantly,
although the section provides immunity for certain “omissions” as well as “acts,”
omissions must occur “in rendering care” to be immunized. In this matter, the officers’
actions do not implicate the Good Samaritan Act. (pp. 14-16)

2. N.J.S.A. 26:2B-16 is similarly inapplicable here. That statute imposes a duty upon an
officer to remove an incapacitated individual from a public place to an intoxication
treatment center. However, if an individual is intoxicated but not incapacitated, an
officer is permitted, in his discretion, to remove the individual from a public place to an
intoxication treatment center. The statute provides immunity that applies to both the
decision to remove an intoxicated individual and the determination as to his
incapacitation. Here, because neither officer believed that Gonzalez was intoxicated,
they did not make the necessary determination that would allow their actions to be
immunized under N.J.S.A. 26:2B-16. Additionally, they provided no assistance to
Gonzalez, but rather left him on the same part of the bridge where they first encountered
him. This is not action or assistance as contemplated by N.J.S.A. 26:2B-16. (pp. 16-19)

3. Liability under the TCA depends on whether the conduct of individuals acting on
behalf of the public entity was ministerial or discretionary. When a public entity’s or
employee’s actions are discretionary, liability is imposed only for palpably unreasonable
conduct. Liability for ministerial actions, in contrast, is evaluated based on an ordinary
negligence standard. Ministerial acts are those which a person performs in a given state
of facts in a prescribed manner in obedience to the mandate of legal authority. One such
ministerial act is a police officer responding to the scene of an accident. Such actions are
not immunized even when they may entail operational judgments, such as when, where
and how to carry out a required duty. In Suarez v. Dosky, the Appellate Division found
that officers responding to the scene of a car accident were not insulated from liability
under the TCA because they “negligently executed ministerial duties” when they
2
declined a request from the car’s passengers to be escorted from the highway and two of
those passengers were struck by vehicles and killed. 171 N.J. Super. 1, 5-10 (App. Div.
1979). Conversely, in Morey v. Palmer, the appellate court found that an officer’s
discretionary determination that a pedestrian who had been standing in a roadway was
intoxicated but not incapacitated meant that the officer was immunized under the TCA.
232 N.J. Super. 144, 147-52 (App. Div. 1989). Whether an officer’s conduct was
ministerial or discretionary is a fact-sensitive analysis. (pp. 20-25)

4. Here, if the facts in dispute are necessary to resolve whether conduct is discretionary
or ministerial, summary judgment is improper; resolution of those facts requires
submission to the jury. At least some of the officers’ actions in this case were ministerial,
to which an ordinary negligence standard applies. However, the decision when to leave
the accident scene and where to leave Gonzalez is a closer question. N.J.S.A. 59:2-3(d)
and :3-2(d) provide qualified immunity “for the exercise of discretion when, in the face
of competing demands, [the public entity or employee] determines whether and how to
utilize or apply existing resources” unless “a court concludes that the determination . . .
was palpably unreasonable.” Whether or not conduct is palpably unreasonable is a jury
determination. In the present case, there are genuine issues of material fact as to whether
the officers were called away from the scene or decided on their own to leave, and
whether they considered allocation of resources in reaching their decision. (pp. 26-29)

5. The Court reviews Model Civil Jury Charge 5.10A and provides guidance as to how
that charge should be tailored and applied in this case. Only after determining whether
the officers’ actions were ministerial or discretionary should the jury apply the
appropriate standard to evaluate the officers’ conduct. If the jury determines that the
decision to leave Gonzalez was ministerial, then the officers are not entitled to immunity
under any provision of the TCA. The jury should therefore apply ordinary negligence
principles, like those in Model Charge 5.10A, to the officers’ conduct to determine
whether defendants are liable. However, should the jury determine that the officers’
decision to leave was discretionary, then qualified immunity exists in favor of defendants
under N.J.S.A. 59:2-3(d) and :3-2(d), and the jury must then resolve any material facts at
issue bearing upon whether defendants’ conduct was palpably unreasonable. (pp. 30-31)

6. The Court explains why other sections of the TCA cited by defendants in asserting
immunity from liability -- N.J.S.A. 59:2-4 and :3-5 (failure to enforce a law), 3-3 (good
faith enforcement of a law), 5-5 (failure to make an arrest), and :5-4 (failure to provide
police protection) -- do not apply here. (pp. 31-33)

AFFIRMED AS MODIFIED. REMANDED to the trial court.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and PIERRE-LOUIS join in JUSTICE SOLOMON’S opinion. JUSTICE
FERNANDEZ-VINA did not participate.
3
SUPREME COURT OF NEW JERSEY
A-
19 September Term 2020
084381

Estate of Hiram A. Gonzalez,
by Iraideliz Gonzalez,
Administrator Ad Prosequendum,

Plaintiff-Respondent,

The City of Jersey City,
the Jersey City Police
Department, Police Officer
Leon Tucker, Jr., and Police
Officer Saad Hashmi,

Defendants-Appellants,

and

Eman S. Ahmed and Elham M. Mansour,

Defendants.

On certification to the Superior Court,
Appellate Division.

Argued Decided
April 27, 2021 August 4, 2021

Philip S. Adelman, Assistant Corporation Counsel,
argued the cause for appellants (Peter J. Baker,
Corporation Counsel, Jersey City Law Department,
attorneys; Philip S. Adelman and Stevie D. Chambers,
Assistant Corporation Counsel, on the briefs).

1
Lawrence D. Minasian argued the cause for respondent
(Greenberg Minasian, attorneys; Lawrence D. Minasian
and William S. Greenberg, on the briefs).

Robert F. Renaud argued the cause for amici curiae New
Jersey State League of Municipalities and the New Jersey
Institute of Local Government Attorneys (Renaud
DeAppolonio, attorneys; Robert F. Renaud, on the brief).

Kenneth G. Andres, Jr., argued the cause for amicus
curiae New Jersey Association for Justice (Andres &
Berger, attorneys; Kenneth G. Andres, Jr., of counsel and
on the brief, and Tommie Ann Gibney, on the brief).

Jonathan Testa submitted a brief on behalf of amicus
curiae New Jersey Municipal Excess Liability Joint
Insurance Fund (Dorsey & Semrau, attorneys; Fred C.
Semrau, of counsel, and Jonathan Testa, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

In this appeal we are called upon to determine whether officers

responding to a one-vehicle accident on a highway bridge may be entitled,

under the particular facts and circumstances of this case, to any of the

immunities from liability provided by the New Jersey Tort Claims Act (TCA),

N.J.S.A. 59:1-1 to :12-3, the Good Samaritan Act, N.J.S.A. 2A:62A-1 to -35,

or N.J.S.A. 26:2B-16, a statute that immunizes officers from civil or criminal

liability for assisting persons intoxicated in a public place to an appropriate

location.

2
Hiram Gonzalez was in a one-vehicle accident on the Lincoln Highway

Bridge in Jersey City. Officers Leon Tucker and Saad Hashmi of the Jersey

City Police Department responded to the scene. After Gonzalez’s pickup truck

was towed, and he rejected offers from the officers to drive him to a nearby

location off of the bridge, he called a friend to pick him up. The officers left

before Gonzalez’s ride arrived, leaving him behind a guardrail on the bridge.

After the officers left, Gonzalez walked onto the road, where he was struck by

a car and killed. Gonzalez had a blood alcohol content (BAC) of .209% at the

time he died.

The Estate of Hiram Gonzalez filed a negligence action against

defendants -- the City of Jersey City, the Jersey City Police Department, and

Officers Tucker and Hashmi. The trial court granted summary judgment in

favor of defendants, finding they were entitled as a matter of law to immunity

from liability under the TCA. The Appellate Division reversed, holding that

the officers’ actions were ministerial and therefore the defendants are not

entitled to the TCA’s protections.

We modify and affirm the judgment of the Appellate Division. The

immunities from liability provided by the Good Samaritan Act, N.J.S.A.

26:2B-16, and most TCA provisions invoked by defendants do not apply here.

Defendants’ actions may be entitled to qualified immunity under certain TCA

3
provisions on which defendants rely, however, if the involved officers’ actions

were discretionary, rather than ministerial, in nature. In this instance, because

of a factual dispute, that determination is for the jury to make upon remand.

The trial and appellate records, including the depositions of the officers,

reveal the following facts, which we review in a light most favorable to

plaintiff, the non-moving party. See Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995).

On August 3, 2014, at approximately 2:26 a.m., Gonzalez was involved

in a one-vehicle accident on the Lincoln Highway Bridge in Jersey City.

Officers Tucker and Hashmi were dispatched to the scene. When they arrived,

Gonzalez’s truck was facing the wrong direction against the curb. Gonzalez

told them that the vehicle had spun out of control. The officers did not recall

seeing any external damage to the car. 1 The officers pushed Gonzalez’s

vehicle to the side of the road and determined that it was inoperable.

1
Photographs later revealed fresh damage to the front left of Gonzalez’s
vehicle.

4
The officers called for a tow truck, and after its arrival the driver was

asked to take Gonzalez to the tow company’s lot, but the driver refused.

Officer Tucker then offered to drive Gonzalez to a nearby Shell gas station or

the Journal Square PATH station, but Gonzalez refused. Officer Tucker

repeated the offer several times and told Gonzalez the bridge was not a safe

place to wait -- noting several places on the bridge with dim lighting -- but

Gonzalez stated, “I am not riding with no Jersey City cops.” At his deposition,

Officer Hashmi testified that picking up Gonzalez from the poorly lit shoulder

would be “dangerous,” and neither he nor Officer Tucker believed the decision

to remain on the bridge was wise. However, Gonzalez told the officers at the

scene that he would wait for his brother, who was a detective with the Newark

Police Department. 2

David Martinez testified at his deposition that when Gonzalez called him

at around 3 a.m., he was irate, and Martinez believed that Gonzalez was drunk.

Gonzalez told Martinez that officers pulled him over and were trying to arrest

him. Martinez testified he then spoke with an officer. According to Martinez,

the officer on the phone told him that Gonzalez had been drinking and could

2
Gonzalez was waiting for David Martinez, who is a police officer with the
Newark Police Department. However, Martinez is a friend of Gonzalez’s
sister, rather than Gonzalez’s brother.
5
not drive, and it would “be nice if somebody could come pick him up.” When

Martinez asked whether Gonzalez was under arrest, the officer said Gonzalez

was not under arrest but needed a ride home. Martinez told the officer he

would pick up Gonzalez. Neither officer recalled speaking with Martinez.

The officers waited with Gonzalez for Martinez for about fifteen to

twenty minutes. Officer Hashmi acknowledged that the standard police

practice is to leave a stranded motorist in a safe place or offer them a ride

within the city’s limits, but he claimed there is no standard practice for when a

stranded motorist refuses a ride but is not in a safe place. Officer Hashmi also

stated that he and Officer Tucker could have waited with Gonzalez until he had

a ride, but they did not because it was a busy Saturday night in the summer and

“there were a lot of calls going out.”

Both officers stated that a dispatcher told them to resume patrol. The

call transcript shows, however, that at 3:24 a.m., Officer Tucker told a

dispatcher, “We’ve got the, uh, the vehicle, the uh, driver is gonna wait for his

brother in the same location where he was. He refused to get in the car with us

to head to the [S]hell station.” The dispatcher responded “ok.” Before leaving

the scene after that call, the officers told Gonzalez to remain in the pedestrian

walkway, which had a guardrail between the roadway and the sidewalk.

6
After the officers left the scene, at approximately 3:42 a.m., a 9-1-1 call

reported a crash involving a pedestrian. Gonzalez had been hit by a car

driving in the center lane of the eastbound section of the Lincoln Highway

Bridge. 3 The accident occurred on a dark area of the bridge, around 1,500 feet

from where the officers left Gonzalez behind the guardrail.

Earlier in the evening, Gonzalez had posted pictures of alcoholic drinks

on his social media, and an opened bottle of Hennessy was found in his truck

after the accident. According to a toxicology report, Gonzalez had a BAC of

.209% at the time he died, and when he was with the officers his BAC would

have been between .20% and .226% -- more than twice the legal limit. The

toxicologist concluded that Gonzalez would have been “markedly intoxicated”

when speaking with the police.

The officers claimed, however, that Gonzalez did not appear intoxicated.

Officer Hashmi stated that he did not detect the smell of alcohol a nd Gonzalez

was not staggering or slurring his words. Officer Tucker noted that he did not

observe behaviors indicating that Gonzalez was intoxicated. Furthermore,

Officer Tucker stated that he would have let Gonzalez drive away from the

3
Another driver had noticed Gonzalez on the right lane of the bridge walking
into the middle of the street. The driver described Gonzalez as “stumbling”
and believed he was drunk due to his behavior and lack of reaction to
oncoming cars.
7
scene had his vehicle been working, and he expressed surprise when he learned

the level of Gonzalez’s BAC.

Gonzalez’s Estate filed a complaint against defendants. 4 Defendants

moved for summary judgment, arguing that various provisions of the TCA

immunized them from liability. The trial court granted summary judgment for

defendants and dismissed the Estate’s complaint with prejudice, finding that

the officers undertook their duties in good faith and were therefore immune

from liability under N.J.S.A. 59:3-3. In doing so, the trial court analogized the

facts of this case to those in Morey v. Palmer, 232 N.J. Super. 144 (App. Div.

1989), but distinguished them from Suarez v. Dosky, 171 N.J. Super. 1 (App.

Div. 1979).

The Appellate Division reversed the grant of summary judgment,

holding as a matter of law that defendants were not entitled to the immunities

provided by the TCA. Relying on Suarez, the appellate court found that

“because the officers were called to the scene of a motor vehicle accident, the

4
The Estate also brought claims against both the driver and the owner of the
car that struck Gonzalez. Prior to the motion for summary judgment, the
Estate stipulated that its claims against the driver and the owner were
dismissed with prejudice.
8
officers’ duty was ministerial in nature -- they had a ministerial duty to render

assistance to Gonzalez.”

The Appellate Division framed the “controlling issue” in this case as

“whether the officers satisfied their ministerial duty to render assistance to

Gonzalez after his motor vehicle accident.” In considering that issue, the

Appellate Division noted “conflicting factual evidence” on issues such as how

Gonzalez behaved; the conversations between Gonzalez, the officers, and

Martinez; the condition of Gonzalez’s car; the officers’ exchange with the

dispatcher; and the officers’ assessment of where they left Gonzalez. The

Appellate Division therefore determined that the factfinder at trial should

resolve “whether the officers executed their ministerial duties negligently .”

We granted defendants’ petition for certification and allowed the parties

to address immunity from civil liability under the Good Samaritan Act, an

argument raised by amici. 244 N.J. 341 (2020). We also granted amicus

curiae status to the New Jersey Municipal Excess Liability Joint Insurance

Fund (NJMEL); the New Jersey State League of Municipalities (NJLOM) and

the New Jersey Institute of Local Government Attorneys (NJILGA),

participating jointly; and the New Jersey Association for Justice (NJAJ).

9
II.

Defendants argue that Morey is the controlling precedent in this case,

rather than Suarez, and that the trial court therefore correctly granted summary

judgment. They assert that the officers used their discretion in good faith to

assist an intoxicated Gonzalez. According to defendants, the officers’ conduct

was not ministerial simply because they were responding to a motor vehicle

accident, and the Appellate Division’s decision to reverse summary judgment

has improperly “pre-determined” the officers’ potential liability by deciding

TCA immunities do not apply when responding to a car accident. Defendants

assert that decision will cause law enforcement officers to avoid liability by

considering the nature of a call when deciding whether to respond.

Defendants also claim that they are entitled to immunity under various

provisions of the TCA, including N.J.S.A. 59:2-3(a), immunity for

discretionary activities (public entity); N.J.S.A. 59:2-4, immunity for adoption

or failure to adopt or enforce a law (public entity); N.J.S.A. 59:3-2(a) and (d),

immunity for discretionary activities (public employee); N.J.S.A. 59:3-3,

immunity for execution or enforcement of laws (public employee); N.J.S.A.

59:3-5, immunity for adoption or failure to adopt or enforce any law (public

employee); N.J.S.A. 59:5-4, immunity for failure to provide police protection;

10
and N.J.S.A. 59:5-5, immunity for failure to arrest or retain a person arrested

in custody. Defendants further argue they are entitled to immunity under

N.J.S.A. 26:2B-16 and the Good Samaritan Act.

Amicus NJMEL supports many of defendants’ arguments, contending

that the officers’ actions were not ministerial merely because they responded

to a motor vehicle accident. The NJMEL further states that the Appellate

Division’s decision conflicts with both New Jersey case law and the legislative

purpose of the TCA. Additionally, the NJMEL maintains that cases such as

Suarez and Praet v. Borough of Sayreville, 218 N.J. Super. 218 (App. Div.

1987), have been superseded by the legislative amendment to the Good

Samaritan Act, which immunizes the officers’ actions. The NJMEL also

argues that the Appellate Division decision in this case construed N.J.S.A.

26:2B-16 too broadly by imposing a new duty to detain and transport operators

of disabled vehicles under almost any circumstances.

Amici NJLOM and NJILGA largely repeat the arguments of defendants

and the NJMEL. They contend the Appellate Division incorrectly found that

N.J.S.A. 59:2-3(d) and N.J.S.A. 59:3-2(d) applied here and negated other,

applicable TCA immunities. Amici further contend that, in addition to being

entitled to immunity from liability under N.J.S.A. 26:2B-16 itself, the officers

are entitled to N.J.S.A. 59:2-4’s and N.J.S.A. 59:3-5’s immunities because

11
they failed to enforce N.J.S.A. 26:2B-16’s provisions. Amici also assert that

N.J.S.A. 59:3-3 applies because the statute requires only “good faith” in

enforcing N.J.S.A. 26:2B-16. Finally, they contend that the type, manner, and

extent of assistance that officers choose to render at the scene of an accident

are discretionary and that the Appellate Division erred by finding the officers’

actions ministerial.

The Estate counters that the officers failed to perform their ministerial

duty to render aid to an individual involved in a motor vehicle accident and

that their actions are therefore not entitled to immunity under the TCA. The

Estate additionally argues that Morey does not apply to this case because it did

not involve a motor vehicle accident, and instead asserts that Suarez and

Ojinnaka v. City of Newark, 420 N.J. Super. 22 (Law Div. 2010), establish

that the officers had a duty to aid Gonzalez, even if that aid required waiting

until Martinez arrived. Furthermore, the Estate asserts that the TCA

immunities of N.J.S.A. 59:3-3 and :3-2(d) do not apply because the officers

here failed to perform their ministerial duties.

The Estate further contends that the Good Samaritan Act does not apply

in this case because the officers were not providing medical assistance and, if

it does apply, the officers’ actions were grossly negligent, precluding

12
immunity under the Good Samaritan Act. The Estate also counters amici’s

claim that Praet’s holding was abrogated by the amendment of the Good

Samaritan Act, arguing that only the portion of the opinion concerning on-duty

police officers is outdated.

Amicus NJAJ supports many of the Estate’s arguments, asserting that

because the officers were performing a ministerial act when they encountered

Gonzalez, they are not entitled to immunity under the provisions of the TCA.

The NJAJ asserts that Suarez is similar to this case, and the failure to properly

perform a ministerial duty is not protected by provisions of the TCA. The

NJAJ additionally argues that the officers were not engaged in policy

determinations, thus their acts were ministerial.

The NJAJ claims that the Good Samaritan Act does not apply if a public

employee has a preexisting ministerial duty to render aid. Additionally, the

NJAJ contends that the Good Samaritan Act is inapplicable here because the

officers did not render any care or emergency aid to Gonzalez, and even if the

Good Samaritan Act did apply, the officers did not act in good faith and should

not be entitled to immunity from liability. Finally, the NJAJ argues that

N.J.S.A. 26:2B-16 does not apply since the officers did not determine that

Gonzalez was intoxicated or incapacitated.

13
III.

Determining whether defendants are immune from liability requires

consideration of the scope of the asserted grounds for immunity -- the Good

Samaritan Act, N.J.S.A. 26:2B-16, and the TCA -- followed by application of

any laws found to be pertinent to the facts of this case. We begin by

explaining why neither the Good Samaritan Act nor N.J.S.A. 26:2B-16 applies

here before turning to the TCA, certain provisions of which may apply.

“Good Samaritan legislation has, at its core, the goal of encouraging the

rendering of medical care to those who need it but otherwise might not receive

it (ordinarily roadside accident victims), by persons who come upon such

victims by chance, without the accoutrements provided in a medical facility

. . . .” Velazquez ex rel. Velazquez v. Jiminez, 172 N.J. 240, 250 (2002).

New Jersey’s Good Samaritan Act provides that

[a]ny individual . . . who in good faith renders
emergency care at the scene of an accident or
emergency to the victim or victims thereof, or while
transporting the victim or victims thereof to a hospital
or other facility where treatment or care is to be
rendered, shall not be liable for any civil damages as a
result of any acts or omissions by such person in
rendering the emergency care.

[N.J.S.A. 2A:62A-1.]

14
The Good Samaritan Act therefore grants immunity to “anyone who rendered

care at the scene of an accident or emergency,” “in derogation of the basic

common law principle that one who volunteers to render assistance must do so

reasonably.” Velazquez, 172 N.J. at 258. The Good Samaritan Act’s purpose

is to encourage bystanders “to provide affirmative aid to an injured person,”

even where the common law imposes no duty to do so. Id. at 247-50.

In 1996, the Legislature added N.J.S.A. 2A:62A-1.1 to the Good

Samaritan Act. See L. 1996, c. 115, § 5. That section immunizes law

enforcement officers for certain conduct at the scene of an accident or

emergency:

A . . . law enforcement officer is not liable for any civil
damages as a result of any acts or omissions undertaken
in good faith in rendering care at the scene of an
accident or emergency to any victim thereof . . .
provided, however, that nothing in this section shall
exonerate a law enforcement officer for gross
negligence.

[ N.J.S.A. 2A:62A-1.1 (emphasis added).]

Section 1.1 is part of a “legislative scheme in which police officers . . .

responding to an emergency are immunized for their negligent acts.” Wilson

ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 573-74 (2012).

Significantly, although the section provides immunity for certain “omissions”

as well as “acts,” omissions must occur “in rendering care” to be immunized.

15
In this matter, the officers’ actions do not implicate the Good Samaritan

Act. The law enforcement provision of the Good Samaritan Act is “one of a

series of statutes . . . which provide qualified immunity to persons who provide

medical assistance in emergency situations.” De Tarquino v. City of Jersey

City, 352 N.J. Super. 450, 455 (App. Div. 2002) (emphasis added). None of

the officers’ actions here involved such medical or emergency care. Nothing

in the record indicates that Gonzalez was in need of medical aid at the time of

his interaction with officers. And the officers, who simply left Gonzalez

where they first encountered him, did not render affirmative aid, or “care,” to

Gonzalez within the meaning of the statute. The officers’ failure to act is not

the kind of “good faith . . . rendering [of] care” immunized by N.J.S.A.

2A:62A-1.1. Simply put, the Good Samaritan Act does not apply to the

officers’ interactions with Gonzalez, and defendants are not entitled to

immunity under N.J.S.A. 2A:62A-1 or -1.1.5

N.J.S.A. 26:2B-16 is similarly inapplicable here. That statute “imposes

a duty upon [an] officer to remove an [incapacitated] individual from a public

5
Because the Good Samaritan Act does not apply to this case, we need not
determine whether Praet’s holding -- that “the Good Samaritan Act does not
apply to those, including police officers, who have a preexisting duty to act,”
218 N.J. Super. at 225 -- has been abrogated by N.J.S.A. 2A:62A-1.1.
16
place to an intoxication treatment center.” Morey, 232 N.J. Super. at 149

(emphasis omitted). It provides that “[a]ny person who is intoxicated in a

public place and who a police officer has reason to believe is incapacitated

shall be assisted by the police officer to an intoxication treatment center or

other facility.” N.J.S.A. 26:2B-16 (emphasis added).

However, if an individual is intoxicated but not incapacitated, an officer

is permitted, “in his discretion, to remove [the] individual from a public place

to an intoxication treatment center.” Morey, 232 N.J. Super. at 149; see

N.J.S.A. 26:2B-16 (“Any person who is intoxicated in a public place may be

assisted to his residence or to an intoxication treatment center or other facility

by a police officer or other authorized person” (emphasis added)). The statute

thus grants the police “great latitude when determining how to handle a

publicly intoxicated person.” Morey, 232 N.J. Super. at 153.

N.J.S.A. 26:2B-16 also provides immunity from liability 6 to “[a]ll

persons acting under the provisions of this section,” who “shall be considered

as acting in the conduct of their official duties and shall not be held criminally

or civilly liable for such acts.” That immunity “applies to both the decision to

6
This immunity has been held to be “similar in operation” to N.J.S.A. 59:3-
3’s immunity for the execution or enforcement of laws, because both “are
focused on the officer in his law-enforcement function.” Morey, 232 N.J.
Super. at 154. N.J.S.A. 59:3-3 will be discussed in Section III.C.4., infra.
17
remove an intoxicated individual and the determination as to his

incapacitation.” Morey, 232 N.J. Super. at 154.

Importantly, the officers here testified that they did not believe that

Gonzalez was intoxicated or incapacitated at the time of the encounter.

Rather, both officers expressed their belief that Gonzalez was not intoxicated,

noting that they did not detect the smell of alcohol, Gonzalez was not

staggering or slurring his words, and his behaviors did not indicate

intoxication. Indeed, Officer Tucker stated he would have allowed Gonzalez

to drive away from the scene had Gonzalez’s vehicle not been disabled. And

there is no evidence that Gonzalez was incapacitated.

Because neither officer believed that Gonzalez was intoxicated, they did

not make the necessary determination that would allow their actions to be

immunized under N.J.S.A. 26:2B-16. We therefore find that N.J.S.A. 26:2B-

16 does not apply to this case. Additionally, even if the officers believed

Gonzalez to be intoxicated, the statute’s immunity applies only if police

officers affirmatively act. Here, the officers provided no assistance to

Gonzalez, but rather left him on the same part of the bridge where they first

encountered him. This is not action or assistance as contemplated by N.J.S.A.

26:2B-16.

18
In reaching this decision, we note that had the officers determined

Gonzalez to be intoxicated, whether or not he was also incapacitated, they had

the authority to remove him from the bridge -- even against his will -- under

N.J.S.A. 26:2B-16. To do so would not have required the officers to arrest

Gonzalez. And, even if the officers had to use reasonable force to remove

him, they would have been immune from liability for their actions. N.J.S.A.

26:2B-16.

Having determined that neither the Good Samaritan Act nor N.J.S.A.

26:2B-16 applies here, we next consider whether the TCA’s immunity from

liability applies to defendants. The TCA was enacted after “this Court’s

decision in Willis v. Department of Conservation & Economic Development,

55 N.J. 534, 537-41 (1970), which overruled the centuries-old common-law

doctrine of sovereign immunity in tort.” Bombace v. City of Newark, 125 N.J.
361, 372 (1991). The TCA “was clearly intended to reestablish a system in

which immunity is the rule, and liability the exception.” Ibid. “When both

liability and immunity appear to exist, the latter trumps the former.” Tice v.

Cramer, 133 N.J. 347, 356 (1993). “Even when one of the [TCA’s] provisions

establishes liability, that liability is ordinarily negated if the public entity

possesses a corresponding immunity.” Rochinsky v. Dep’t of Transp., 110

19 N.J. 399, 408 (1988). We begin our analysis with an overview of the

provisions of the TCA relevant to our determination.

“The standard for liability under the TCA depends on whether the

conduct of individuals acting on behalf of the public entity was ministerial or

discretionary.” Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 490

(2014) (citing N.J.S.A. 59:2-3(d)). When a public entity’s or employee’s

actions are discretionary, liability is imposed only for “palpably unreasonable

conduct.” Id. at 495. Liability for ministerial actions, in contrast, “is

evaluated based on an ordinary negligence standard.” Id. at 490.

The TCA does not define “discretionary act” or “ministerial act.”

Black’s Law Dictionary, however, defines a “discretionary act” as one

“involving an exercise of personal judgment and conscience.” 586 (11th ed.

2019). In comparison, a “ministerial act” is one “performed without the

independent exercise of discretion or judgment.” Id. at 31. This Court has

recognized that a “literal interpretation of the term 'discretion’ . . . would in

effect eliminate most of the liability which the Legislature clearly intended to

permit when it enacted the [TCA]” because “[a]lmost all official conduct, no

matter how ministerial, involves the exercise of some judgment and

decisionmaking.” Costa v. Josey, 83 N.J. 49, 60 (1980).

20
Instead, to advance the Legislature’s intent in enacting the TCA, we

have interpreted the phrase “exercise of . . . discretion” in N.J.S.A. 59:2-3(a)

to refer “to actual, high-level policymaking decisions involving the balancing

of competing considerations.’” See Coyne v. Dep’t of Transp., 182 N.J. 481,

489 (2005) (alteration in original) (quoting Costa, 83 N.J. at 55).

Discretionary immunity is intended to protect policymakers, and those

protections cannot be delegated to other workers through a policy or manual

“under the guise of engaging in a discretionary act.” Id. at 492.

Ministerial acts, in contrast, are those “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.” S.P. v. Newark Police Dep’t, 428 N.J. Super.
210, 231 (App. Div. 2012) (quoting Morey, 232 N.J. Super. at 151). Such

actions are not immunized even when they may entail “[o]perational

judgments,” such as “when, where and how” to carry out a required duty. See

Ojinnaka, 420 N.J. Super. at 37; Morey, 232 N.J. Super. at 149. One such

ministerial act is a police officer responding to the scene of an accident. E.g.,

Ojinnaka, 420 N.J. Super. at 37 (“[P]olice have a duty to respond to accident

scenes and render assistance.”); Praet, 218 N.J. Super. at 223 (stating that

21
officers have “a [ministerial] duty by virtue of their employment to render

emergency assistance to victims of automobile accidents”).

“Although it is true that a municipal police officer does not constitute a

high-ranking public employee, [ N.J.S.A. 59:3-2(d) is] not always limited to

such individuals.” Morey, 232 N.J. Super. at 152. That notion recognizes that

the “[d]iscretionary 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.” Ibid.

Thus, immunity from liability under the TCA may apply to police officers’

decisions in the field. See, e.g., ibid.; accord O’Connell v. State, 171 N.J. 484,

498 (2002).

In S.P., for example, the Appellate Division found “that discretionary

immunity should attach under the TCA” to the decisions made by an officer in

response to a domestic violence call because those decisions “require[d] a

significant thoughtful analysis and exercise of personal deliberations regarding

a variety of factors.” 428 N.J. Super. at 231. That said, this Court held in Tice

that an officer’s conduct during a car chase was not immunized under N.J.S.A.

59:3-2(a) because “[t]he officer’s conduct, comprised of the decision whether

to pursue, how to pursue, and whether to continue to pursue, is . . . infinitely

distant from high-level policy or planning decisions.” 133 N.J. at 351, 366-67.

22
As those cases suggest, the distinction between ministerial and

discretionary action by police officers is situation-specific and thus can be

difficult to discern. In essence, where “the circumstances [are] thought to be

such that reasonable policemen in the position of the defendants could have

differed about whether or how to act,” the specific decision at issue may be

considered discretionary for the purposes of determining TCA immunity. See

Del Tufo v. Twp. of Old Bridge, 278 N.J. Super. 312, 325 (App. Div. 1995);