Opinion
DOCKET NO. A-2173-14T4
04-14-2016
ESTATE OF JUAN LOPEZ by its Executrix and/or Administratrix Ad Prosequendum and/or Personal Representative, CARMEN D. LOPEZ, and CARMEN D. LOPEZ, Individually, and EMELIA LEBRON, and LUISA DIAZ and JOSE MARTINEZ, Plaintiffs-Appellants, v. CITY OF CAMDEN and OFFICER RAYMOND RUSI #1214, Defendants-Respondents, and OFFICER WARREN BROWN #289, Defendant.
Saul J. Steinberg argued the cause for appellants (Zucker, Steinberg & Wixted, P.A., attorneys; Mr. Steinberg, on the briefs). John C. Eastlack, Jr., argued the cause for respondent City of Camden (Weir & Partners LLP, attorneys; Mr. Eastlack and Daniel E. Rybeck, on the brief). James H. Waller argued the cause for respondent Raymond Rusi.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Rothstadt, and Currier. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0116-11. Saul J. Steinberg argued the cause for appellants (Zucker, Steinberg & Wixted, P.A., attorneys; Mr. Steinberg, on the briefs). John C. Eastlack, Jr., argued the cause for respondent City of Camden (Weir & Partners LLP, attorneys; Mr. Eastlack and Daniel E. Rybeck, on the brief). James H. Waller argued the cause for respondent Raymond Rusi. PER CURIAM
In this tragic case, plaintiffs, Carmen D. Lopez, individually and on behalf of her deceased father's estate, and Emelia Lebron, Luisa Diaz, and Jose Martinez, individually, appeal from the entry of summary judgment in favor of defendants, City of Camden (City) and Police Officer Raymond Rusi. Because we find that both defendants are entitled to immunity under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, we affirm.
We refer to all plaintiffs collectively.
A stipulation of dismissal was entered as to defendant Warren Brown.
The salient facts are derived from the evidence in the parties' submissions in support of and in opposition to the summary judgment motions and are viewed in the "light most favorable to plaintiffs, the non-movants." Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div. 2015), certif. denied, 224 N.J. 124 (2016) (citation omitted).
Following a report of gunshots, Officers Smith and Brown responded to the area where they observed a man come out of a house and collapse to the ground. Two other individuals also ran out of the house, "screaming . . . that the shooter was in[side]." They informed Brown that the man on the ground had been shot and the assailant, Jose Feliciano, remained inside the house.
Smith escorted those individuals and decedent into a neighboring house and instructed the three to remain there. From the front porch, Smith saw Feliciano in the street, she drew her gun, and ordered him to show his hands. Feliciano instead "pulled out a weapon" and proceeded to fire "at least two rounds" in Smith's direction, forcing her to return fire and retreat inside the house, where she instructed "everyone to crawl towards the back" as Feliciano continued to shoot. A responding officer located behind the house told Smith to close the door and stay inside. Brown, who had also been monitoring the rear of the home, overheard the encounter between Smith and Feliciano, and exchanged gunfire with Feliciano in the street. Feliciano fled from Brown's view.
Meanwhile, Rusi was dispatched to the scene when he "hear[d] the shots being fired" on his radio. Upon his arrival, Rusi took cover behind a police cruiser. He then saw Brown point to a house, and thought Brown was indicating the shooter's location. Rusi continued to focus on the house after he believed he heard Brown "sa[y] something about the windows." Rusi testified that he "saw a gun in the window" as "[t]he sun was hitting the house." He recalled the gun as being "shiny [and] metallic" and stated he "just saw the gun pointed." Rusi "yelled gun and . . . shot at the window" to "take care of" a perceived threat. Despite Smith's cries over the radio to "stop shooting," Rusi fired multiple shots in the direction of the window, striking the decedent twice and causing his death.
Brown, in fact, stated that he was gesturing towards the area where Feliciano had fled.
Prior to Rusi firing his gun, Smith had instructed everyone inside the house to stay away from the windows and remain in the hallway. She then approached the window, pulling the blinds and window up with her left hand as she held her weapon on her opposite hip. As she began to open the window, the decedent moved in front of her and was hit by Rusi's gunfire.
Plaintiffs' wrongful death complaint alleged negligence against Rusi in the performance of his duties and in the City's failure to properly train its officers in situations involving the use of force. Both defendants moved for summary judgment and, after argument, the judge rendered an oral decision granting summary judgment in favor of defendants, dismissing all claims with prejudice pursuant to N.J.S.A. 59:5-2(b). Although finding there might be a question of fact as to Rusi's conduct, he stated that a resolution of any disputed facts in plaintiffs' favor would only establish negligence and not willful misconduct. He further found, that as Rusi saw what he believed to be a gun, he was acting with subjective good faith entitling him to absolute immunity.
On appeal, plaintiffs argue that there are questions of fact precluding the entry of summary judgment that should be considered by a jury as to whether Rusi's actions of intentionally shooting his gun constituted willful misconduct.
We review the disposition of a summary judgment motion de novo, applying the same standard used by the motion judge under Rule 4:46-2(c). Cuiyun Qian v. Toll Bros., 223 N.J. 124, 135 (2015) (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)). Thus, this court considers, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, this court must then determine whether the trial court correctly interpreted the law. DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008)). "When 'summary judgment is based on an issue of law, we owe no deference to an interpretation of law that flows from established facts.'" Ross v. Lowitz, 222 N.J. 494, 504 (2015) (quoting State v. Perini Corp., 221 N.J. 412, 425 (2015)).
Rusi argues that as a police officer in pursuit of an escaping person, he is entitled to immunity for his actions pursuant to both N.J.S.A. 59:5-2(b)(2) and (c). The issue of immunity is an issue well-suited for summary judgment and one that should be decided before trial. See Morillo v. Torres, 222 N.J. 104, 119 (2015). In Tice v. Cramer, 133 N.J. 347 (1993), the Court addressed the issue of immunity of a police officer in the context of a police pursuit. The Court found that absent willful misconduct, N.J.S.A. 59:5-2(b)(2) conferred absolute immunity to all injuries arising out of the police officer's pursuit, even though those injuries would not have occurred but for the negligence of the pursuing officer. Id. at 363. "The immunity relieves the officer (and the public entity — the immunity applies to both) of whatever liability would otherwise attach for the officer's negligent conduct in connection with the pursuit." Ibid.
Neither a public entity nor a public employee is liable for . . . b. any injury caused by an (2) escaping or escaped person; . . . or c. any injury resulting from or caused by a law enforcement officer's pursuit of a person.
[N.J.S.A. 59:5-2(b)(2), (c).]
The Court considered the issue of pursuit immunity and its applicability to a shooting of an innocent bystander that occurred during a pursuit in Alston v. Camden, 168 N.J. 170 (2000). In that case, the police officer was chasing a suspect on foot when he felt his gun dislodging from its position in his holster. Id. at 174. The gun hit the ground and discharged, causing injury to an innocent victim. Ibid. The gun's safety device was on the "fire" position due to a prior, unrelated police encounter earlier that day. Ibid. The officer had inadvertently failed to return the safety device to the "non-fire" position when he was carrying it, contrary to police department policy. Ibid. The Court considered its ruling in Tice and found that "in order for pursuit immunity to apply[,] the negligence implicated by the pursuit must be connected to the pursuit in a significant manner." Id. at 180. We find that Rusi's actions fall within those parameters.
Rusi could hear gunshots from the incident as he responded to the scene. When he arrived and took cover behind his vehicle, he interpreted Brown's gestures as indicating that the suspect was in that house. Thinking Brown had said something about the windows of the house, he looked that way and believed he saw a gun at the window. He mistakenly fired his weapon into the window, tragically striking the decedent. His actions took place as he and other officers were in pursuit of a suspect who had already shot one man and exchanged gunfire with several officers.
Absent a showing of willful misconduct, the defendants are entitled to immunity under N.J.S.A. 59:5-2(b)(2) and (c). The limits of a public employee's immunity are established under N.J.S.A. 59:3-14(a), which provides that an employee cannot be exonerated "from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." (Emphasis added). For the "purposes of the TCA, willful misconduct has been defined as the 'commission of a forbidden act with actual knowledge that the act is forbidden.'" Bernstein v. State, 411 N.J. Super. 316, 332 (App. Div. 2010) (quoting Kollar v. Lozier, 286 N.J. Super. 462, 470 (App. Div.), certif. denied, 145 N.J. 373 (1996)). A finding of willful misconduct has traditionally required a demonstration "that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 584 (2009) (quoting Berg v. Reaction Motors Div., Thiokol Chem. Corp., 37 N.J. 396, 414 (1962)). While it is characterized as falling "between simple negligence and the intentional infliction of harm," ibid. (quoting Fielder v. Stonack, 141 N.J. 101, 123 (1995)), "'much more' than mere negligence" is required to establish willful misconduct. Alston, supra, 168 N.J. at 185 (quoting Fielder, supra, 141 N.J. at 124). It necessitates "some knowledge that the act is wrongful." Leang, supra, 198 N.J. at 584 (emphasis added) (quoting Fielder, supra, 141 N.J. at 124).
The undisputed facts are that Rusi arrived at the scene with the knowledge of a gunfire exchange between a suspect and officers. Upon a gesture from a fellow officer at the scene and hearing the word "windows" he focused on a house, believing that the suspect was inside. He had no knowledge that there were civilians or a police officer inside that house. Upon seeing what he believed to be a weapon in the window, he fired his gun. There are no facts that could support a finding that Rusi had knowledge of the situation inside the house and fired his weapon knowing that he was committing a wrongful act. See Fielder, supra, 141 N.J. Super. at 124.
Because we find that the judge did not err in granting summary judgment to Rusi, we must also affirm his decision to dismiss plaintiffs' claims against the City pursuant to N.J.S.A. 59:2-2(b) (providing that "[a] public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable"); see also Hart v. City of Jersey City, 308 N.J. Super. 487, 493 (App. Div. 1998) (immunizing the city when police officers were immunized from suit).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION