DOCKET NO. A-1751-12T4
D'Alessandro & Jacovino, attorneys for appellants (Edward G. D'Alessandro, Jr., on the briefs). DeCotiis, FitzPatrick & Cole, LLP, attorneys for respondents (Benjamin Clarke, of counsel; Jason D. Attwood, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5972-07.
D'Alessandro & Jacovino, attorneys for appellants (Edward G. D'Alessandro, Jr., on the briefs).
DeCotiis, FitzPatrick & Cole, LLP, attorneys for respondents (Benjamin Clarke, of counsel; Jason D. Attwood, on the brief). PER CURIAM
Plaintiff Susan Zeller, administratrix of the estate of her deceased husband David Zeller, appeals from the summary judgment dismissal of her wrongful death negligence lawsuit against defendants New Jersey State Police and the New Jersey Turnpike Authority (collectively defendants). We affirm.
The facts, considered in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. On December 20, 2005, David Zeller (David) went to the Monmouth Park racetrack. About 8:30 p.m. that evening, he called his wife Susan, and told her that he would be leaving to return home in about an hour. At some point later that evening, he left the racetrack and drove home on the Garden State Parkway (Parkway). He was driving a truck owned by his family's roofing company.
Because David and Susan Zeller share the same last name, we use their first names in this opinion for ease of understanding. We mean no disrespect.
Around Exit 117 of the Parkway, David drove off the roadway, onto an embankment and then collided with a guiderail. After this collision, David exited his vehicle. He left the truck still in drive with the engine running. He also left his cell phone and sweatshirt in the truck, even though the temperature was between twenty-one and thirty-six degrees Fahrenheit.
After exiting his truck, David proceeded on foot, crossing over the Parkway, and walking across a grassy area for about 150 yards. He then approached a drainage basin, surrounded by a six-foot chain link fence. This much is undisputed. The parties differ, however, as to David's means of entry into the basin. Defendants claimed, based on shoe prints at the scene, that David climbed over the six-foot chain link fence. Moreover, his flannel shirt was discovered on the ground outside the fence. Footprints were also found on the inside of the basin, indicating that David walked around its interior. Plaintiff, on the other hand, surmised that David may have fallen through an open gate nearby.
At some point earlier that evening David had ingested cocaine; in fact, he was later found to have a cocaine blood level of .394. He had also taken Percocet, which had been prescribed by his physician due to back problems. There was also evidence that he had consumed alcohol, since an autopsy later performed on his body uncovered cocaine metabolite Benzoylecgonine Ethyl Ester, which "is formed when cocaine and ethanol are co-administered."
Around 11:45 p.m. that evening, New Jersey State Police Troopers Christopher Mitchell and Kevin Brophy responded to a report from a motorist of a car accident near Exit 117, involving an abandoned truck. Per protocol, the troopers turned on their dashboard camera when responding to the call. The troopers arrived at the scene about 11:47 p.m. and found the truck still running. They observed that the driver's door was open and that a blue sweatshirt was sitting on the driver's seat. The airbags had not deployed, the windshield of the truck had not shattered, and the steering column was intact. The troopers did not observe any signs of blood in the truck. They also noted that the driver had left his cellphone in the truck. Moreover, there were marks on the ground behind the wheels, as though the driver had attempted to back the truck up after the accident.
The motorist who had reported the accident was still at the scene. He advised Mitchell that he had not observed the actual accident. Mitchell then returned to the patrol car and called a tow truck.
At 11:59 p.m., Brophy dialed a number on the driver's cellphone that was saved as "Home." Plaintiff answered. Brophy informed her of the accident and asked a number of questions aimed at finding David's whereabouts. Plaintiff responded that David had gone to the Monmouth Mall earlier that evening and gave them a description of her husband to aid in their search. She further informed the troopers that she lived near Exit 117, which was within walking-distance of the accident scene. Brophy then told plaintiff that they would drive to the exit ramp to try to locate David and that if her husband returned home to have him contact the State Police to give a statement about the accident. The conversation ended at 12:05 a.m., the morning of December 21, 2005.
The troopers then waited for the tow truck to arrive. At one point, one of the troopers left the patrol car and walked up the parkway to check the scene; this lasted about two minutes. While in the car, the troopers discussed whether David might have walked along the railroad tracks, which were located past the basin. The tow truck then arrived at the scene. After the truck was towed away, the troopers left the scene at about 12:40 a.m.
The troopers then drove up to the tollbooths at Exit 117 but discovered that no one was on duty at that time of morning. They then drove to David's home to see if he had returned there. En route, they met plaintiff, who was driving in her car toward the scene of the accident, around 1:00 a.m. She informed them that David had not returned home and offered to let them search the house, if necessary. They declined, and reiterated that David should contact the police when he returned. The troopers then proceeded to the local bars in search of David. On the way, they met a Hazlet police officer and informed him of the accident; they asked him to look out for David during his patrol.
The next day, December 22, 2005, plaintiff called the State Police and informed them that her husband still had not returned home. Troopers were sent to plaintiff's home to speak with her, as well as to the scene of the accident. They discovered David's body in the basin, about 150 yards south from the accident scene. His body was face up in about twelve inches of water.
An autopsy was performed the following day. As noted, David tested positive for Percocet, cocaine and alcohol. The medical examiner concluded that death occurred due to "acute cocaine toxicity" with "environmental hypothermia" being listed as another significant contributing factor. The medical examiner did not find any significant injuries to the body.
Plaintiff's medical expert, Dr. Louis Roh, opined that the amount of cocaine in David's blood was consistent with "one time recreational use." He suggested that David "became disoriented" due to the accident, "struggled to get out" of the basin and "gradually succumbed to cold temperature." Dr. Roh ultimately concluded that David "expired due to hypothermia," and that his death occurred three to four hours after he fell into the basin.
Defendant's expert, Dr. Donald Jason, on the other hand, attributed David's death to acute cocaine toxicity and hypothermia, the combination of which "would have hastened" the result. Dr. Jason disagreed with Dr. Roh's time frame and opined instead that death could have occurred less than one hour after David entered the basin since his chance of survival would have been marginal in that period of time. The expert therefore concluded that David was "most probably already dead" when the troopers arrived at the scene of the accident.
Plaintiff also retained a police practices expert, Francis Murphy, who opined that Troopers Mitchell and Brophy did not perform an adequate ground search. Although he acknowledged that there are no formal guidelines governing police practice in such instances and, furthermore, that the scope of the search is left to the judgment of the individual trooper, nevertheless the expert believed the search in this case was not extensive enough.
As noted, plaintiff individually and as guardian ad litem for her minor son sued defendants for negligence and wrongful death. Following defendants' answer and exchange of discovery, defendants moved for summary judgment, claiming immunity under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3. The motion court agreed, holding defendants were immune under N.J.S.A. 59:3-2(d) and N.J.S.A. 59:3-3, and therefore granted summary judgment in their favor. The judge reasoned:
The Defendants argue and the Court finds persuasive that the Troopers exercised reasonable discretion during their investigation, they acted in an objectively reasonable manner in their search, and they were under no mandatory duty to conduct a more extensive search.The motion judge also found that plaintiff could not prove, as a matter of law, that David was not the proximate cause of his own death, due to his consumption of cocaine, alcohol and a prescription drug earlier that evening.
The Court finds persuasive in this case the analysis as set forth by the Appellate Division in [Morey] v. Palmer, 232 N.J. Super. [144 (App. Div. 1989)], which indicates essentially that police officers, while not immune from their ministerial duties, do have immunity . . . in the exercise of discretionary decisions.
[Morey] describes ministerial duties as one by a person performs in a given set of facts in obedience to the mandate of legal authority without regard to the exercise of judgment, and that's contained at Page 155 of [Morey,] actually quoting Black's Law Dictionary.
The Court finds that this is exactly the kind of circumstance delineated by [Morey,] and that the nature, extent and the breadth of the search that was executed by
the police officers implicitly calls into operation the exercise of discretion.
Were it not the case, then every time that the police officers were confronted with an analogous circumstance, there would be no immunity and they would be subject to lawsuits, and here, the Court finds that this is the kind of circumstance that is contemplated by the provisions of the Tort Claims Act as more fully described in the [Morey] decision.
. . . .
Here, you had the police on the scene for an hour, you had them searching the area. You had them contact the decedent's wife immediately with the cell phone, you had them contact the local Hazlet police department. You had them search two bars, you had them go to the scene of the decedent's house and the area where they thought he may have come from.
It wasn't a successful search, obviously, . . . but it was not a cursory search, and I think factually it's really distinguishable from the circumstances presented [in Ojinnaka v. City of Newark, 420 N.J. Super. 22 (Law Div. 2010)].
. . . .
The Tort Claims Act, as I indicated, is structured in such a way as to presume that immunity is favored under 59:2-1 and this Court finds that the immunity provisions set forth under both 59:3-2 and 59:3-3 really are applicable in this case.
You know, 59:3-2d indicates that a public employee is not liable for the exercise of discretion when in the face of competing demands, he determines whether and how to utilize or apply existing resources
unless the Court concludes that the determination of the public employee was palpably unreasonable.
I've indicated that the analysis of that under [Morey] v. Palmer, which this Court finds to be applicable in this case, and the Court finds that what the Troopers did could never be characterized as being palpably unreasonable, that it was clearly the exercise of their discretion in how to locate [decedent].
They clearly at the time that they responded to the accident scene had no way of knowing where he was or where he had gone, and they very clearly exercised logic and pretty straightforward action, actions in trying to determine his whereabouts.
So, the Court finds that summary judgment should be granted to the Defendants in this case, and I'm finding that no one could find that the actions of the officers were anything other than objectively reasonable. They clearly, under the facts and circumstances of the case, were reasonable.
On appeal, plaintiff argues:
I. [THE] JUDGE  ERRED IN GRANTING [DEFENDANTS'] MOTION FOR SUMMARY
JUDGMENT AS THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE.
II. [THE] JUDGE  ERRED IN FINDING THAT [DEFENDANTS] WERE IMMUNE UNDER THE
PROVISIONS OF N.J.S.A. 59:3-2, DISCRETIONARY ACTIVITIES, SUBSECTION d.
III. [THE] JUDGE  ERRED IN FINDING THAT [DEFENDANTS] WERE IMMUNE UNDER THE PROVISION OF N.J.S.A. 59:3-3.
IV. IN THE EVENT [THE] JUDGE'S  DECISION FOUND THAT NO REASONABLE JURY COULD DETERMINE PROXIMATE CAUSE IN FAVOR OF THE PLAINTIFF IN THE INSTANT MATTER, [THE] JUDGE  ERRED.
Plaintiff argues the court erred in its grant of summary judgment dismissing her complaint. We disagree.
We review the grant of summary judgment using the same standard as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must first decide if there was a genuine issue of material fact. Walker v. Alt. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987); see R. 4:46-2(c). There is a genuine issue of material fact only if the evidence presented, "when viewed in the light most favorable to the non-moving party, [is] sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party[.]" Brill, supra, 142 N.J. at 540. If we determine there is no issue of material fact, we must then look to the motion court's ruling on the law involved. Walker, supra, 216 N.J. Super. at 258. The standard of review for legal conclusions by the motion court is de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Defendants here are public entities and, except as expressly provided by the TCA, cannot be held liable "for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." N.J.S.A. 59:2-1(a). The intent of the TCA is to "reestablish a system in which immunity is the rule, and liability the exception." Bombace v. City of Newark, 125 N.J. 361, 372 (1991). The liability of the public entity must be provided for within the TCA and is subject to any statutory or common law immunity that applies. Tice v. Cramer, 133 N.J. 347, 355 (1993); Rochinsky v. State Dep't of Transp., 110 N.J. 399, 408-09 (1988).
Immunity is the "dominant consideration" of the TCA. Kolich v, Landedahl, 100 N.J. 485, 498 (1985) (O'Hern, J., concurring), and "public entities are immune from liability unless they are declared to be liable by an enactment." N.J.S.A. 59:2-1. Task Force Comment; see Rochinsky, supra, 110 N.J. at 408. "[I]mmunity from tort liability is the general rule and liability is the exception." Coyne v. State Dep't of Transp, 182 N.J. 481, 488 (2005) (interna1 citations omitted).
Generally, the liability of a public entity under the TCA tracks that of its public employees with some exceptions. "[W]hen the public employee is liable for acts within the scope of that employee's employment so too is the entity; conversely, when the public employee is not liable, neither is the entity." Tice, supra, 133 N.J. at 355; N.J.S.A. 59:2-2.
Because the claim in this case is that the two State Troopers responding to the scene of the vehicular accident failed to undertake an adequate search for the missing motorist the court's first task is to peruse the TCA to determine if any explicit statutory immunities apply to such police activity.
In this regard, N.J.S.A. 59:3-2(d) provides that
A public employee is not liable for the exercise of discretion when, in the face of competing demands, he determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public employee was palpably unreasonable.The same immunity also applies to a public entity. N.J.S.A. 59:2-3(a).
Nothing in this section shall exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions.
We first determine then whether the function of the State Troopers in this case was ministerial or discretionary in nature. If it is ministerial then no immunity exists under N.J.S.A. 59:3-2(d) and N.J.S.A. 59:2-3(a). If it is discretionary, however, immunity attaches unless the police action or inaction was "palpably unreasonable." N.J.S.A. 59:3-2(d).
We recently held, in a slightly different context, that when the evidence establishes a "genuine issue of material fact regarding whether the alleged failures of a public entity were the result of discretionary decision making as to how to use its resources, or instead involved ministerial acts mandated by law or practice, then that fact issue must be submitted to the jury." Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 491 (App. Div.), certif. granted, 215 N.J. 487 (2013). However, in this case, plaintiff's expert in police practices testified in his deposition that there are no written procedures or guidelines governing the conduct of this search, which necessarily involves the judgment of the individual police officer. Absent any genuine issue of material fact, it was therefore appropriate for the judge to decide the matter as one of law.
In Morey v. Palmer, 232 N.J. Super. 144 (App. Div. 1989), a pedestrian was struck and killed by a truck some three hours and forty minutes after a police officer observed him staggering in the middle of the road and ordered him to leave the roadway. Id. at 147. Decedent's estate sued the police officer and borough. Ibid. We affirmed the grant of summary judgment dismissing the plaintiff's complaint, holding the defendants were immune under N.J.S.A. 59:3-2(d) because the officer's decision that the pedestrian was not incapacitated, so as to require the officer to remove the pedestrian to an intoxication treatment facility pursuant to statute, was discretionary, not ministerial. Id. at 152-53. We also found immunity under N.J.S.A. 59:3-5, shielding from liability public employees who act in good faith in the execution or enforcement of any law. Id. at 154-55.
Despite plaintiff's reliance thereon, Suarez v. Dosky, 171 N.J. Super. 1 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980), is not to the contrary. In Suarez, two State Troopers came across a stranded motorist and his family at 10:30 p.m. on Route 80. Id. at 5-6. After arranging for their van to be towed, the troopers refused to escort the stranded family off the highway or radio for a taxi. Ibid. After the troopers left, the family began walking along the highway toward an exit and two individuals, a mother and small child, were struck and killed by passing vehicles. Ibid.
In the lawsuit that inevitably followed, the State sought immunity under N.J.S.A. 59:5-4, which 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." We held that the immunity did not apply, finding that the police were under a duty to aid the victims in this case, and further explaining that "[a]lthough a police officer may not be liable for failure to respond (if, for example, he was performing some other official duty), if he does respond he will be subject to liability for negligence in the performance of his ministerial duties." Suarez, 171 N.J. Super. at 9-10. N.J.S.A. 59:5-4 does not insulate police officers from unfortunate results of their negligently executed ministerial duties. Ibid.
Significant for present purposes, Suarez was decided under the immunity provision of N.J.S.A. 59:5-4, and not N.J.S.A. 59:3-2(d) and N.J.S.A. 59:2-3(a), which are implicated here. More importantly, the difference between the present factual scenario and that found in Suarez is that the police officers in Suarez were duty-bound to render aid, particularly when they were requested to do so.
More apposite is Aversano v. Palisade Interstate Parkway Comm'n, 363 N.J. Super. 266 (App. Div. 2003), modified, 180 N.J. 329 (2004). In Aversano, the decedent had fallen over a 300 foot cliff while sunbathing at Palisades Interstate Park. Id. at 268. Park police arrived and simply assumed that the individual could not have survived the fall and they therefore undertook a far less emergent "recovery operation" rather than an acute "rescue operation." Ibid. When the individual was reached three hours later, he was still breathing but died sometime thereafter. Id. at 268-69. The plaintiffs were prepared to prove that had an immediate rescue operation been mounted, the individual would likely have survived. Id. at 26870.
We reversed the grant of summary judgment to the defendants, holding that the immunity for unimproved property, N.J.S.A. 59:4-8, and any Landowner Liability Act (N.J.S.A. 2A:42A-3) immunities would not insulate the defendants "if the cliff's dangerous natural condition was not the sole cause of death, and the same public entity's acts or omissions contributed substantially to reducing [Aversano's] chance of survival." Id. at 275. However, the Supreme Court modified our decision and remanded the case to the trial court to determine if the discretionary act immunity under N.J.S.A. 59:2-3(a) and N.J.S.A. 59:3-2(a) "might apply to limit or eliminate defendants' potential liability." 180 N.J. at 332.
Aversano is instructive on the issue at bar insofar as it recognizes the applicability of the discretionary act immunities under N.J.S.A. 59:3-2 and N.J.S.A. 59:2-3 to the conduct of police officers searching for accident victims, leaving for remand to the trial court the question of whether the officers' conclusion that the victim could not have survived the fall was "palpably unreasonable." 180 N.J. at 332.
Plaintiff also relies on the Law Division decision in Ojinnaka v. City of Newark, 420 N.J. Super. 22 (Law Div. 2010), which is clearly distinguishable.
There the police officers discovered a van crushed into a barrier wall on the road, with the window closest to the barrier broken and the keys still in the ignition. Id. at 29. The officers did not attempt to search the surrounding area nor did they try to contact the owner of the van, the victim's father. Id. at 27-28. Rather, the officers simply concluded that the van had been stolen and crashed into the wall and that the driver (the thief) had fled the scene. Id. at 26. Investigation later revealed that the victim had been thrown out of the passenger window and over the wall by the impact and had been lying on the other side of the wall while the officers were at the scene. Id. at 29.
Based on these circumstances, the Law Division found a fact question as to the negligence of the officers in responding to the single vehicle accident in which the motorist died after being ejected from the car, stating that "[o]perational judgments such as those made here — when, where and how to search for parties potentially injured in a highway crash — do not entail the type of discretionary planning or high level policy decisions insulated [by the statute.]"). Id. at 36-37.
Ojinnaka, however, expressly did not address the potential immunity under N.J.S.A. 59:3-2(d) and N.J.S.A. 59:2-3(a) because these issues were not raised below. Id. at 38. Moreover, to the extent the Law Division intimated that the immunities afforded by N.J.S.A. 59:3-2(d) and N.J.S.A. 59:2-3(a) are exclusively limited to high level discretionary policy decisions, we are constrained to disagree. The aforecited provisions of the TCA reach discretionary determinations on an operational level, see, e.g., Perona v. Twp. of Mullica, 270 N.J. Super. 19, 30 (App. Div. 1994) (police immune from negligence claims where they failed to confine suicidal woman), and are not limited to high ranking public employees, Morey, supra, 232 N.J. Super. at 152 ("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 police personnel resource."); see also Brown v. Brown, 86 N.J. 565, 577 (1981) (considering the application of N.J.S.A. 59:2-3(a)).
Furthermore, although addressing the differences between ministerial and discretionary duties, the court in Ojinnaka, supra, never discussed the Morey case nor explained why procedures at the scene of an accident should be considered ministerial when they are not governed by either formal internal guidelines or statutory mandates. Rather, the Law Division's analysis seems predicated more on the likelihood that a jury could find the police officers' conduct to be "palpably unreasonable."
Indeed, unlike the police conduct in the instant matter, in Ojinnaka, the extensive damage to the vehicle, along with its position along the barrier wall, with the window closest to the wall broken, all suggested that there was an injured driver who might need aid. Moreover, the officers in Ojinnaka did not even conduct a preliminary searching around the scene and over the wall or contacting the vehicle's owner, even though they believed the vehicle to be stolen.
Here, in stark contrast, the driver door was open and a sweatshirt and cellphone had both been left in the truck. In fact, there was evidence from certain tire marks that the driver had attempted to move the truck after the accident occurred. There was also no extensive damage to the truck, nor any evidence of blood to indicate that the driver had been injured. Moreover, the troopers scanned the scene of the crash, contacted decedent's wife to identify the driver of the truck and obtain a description of him, drove to her home, checked local bars, and alerted Rahway police as part of their investigation. And lastly, unlike Ojinnaka, where the victim's body was located just over the barrier wall that the van had crashed into, in this present case, the driver had walked across the parkway, and then 150 yards across a grassy area and climbed a fence into the drainage basin, evidently in a highly intoxicated state.
Clearly, the facts in Ojinnaka explain the result reached there and serve to distinguish that case from the present matter. Absent specific guidelines, standard operating procedures or express statutory mandates, the determination of how extensive the scope of the search of a single vehicle accident scene should be, especially one in which there is no indication of resultant serious injury, necessarily involves an element of discretionary judgment on the part of the responding police officers. Indeed even plaintiff's police practices expert, acknowledged as much. And unlike Suarez, where the police officers knew that the victims were at the scene, needed and in fact requested assistance, giving rise to a specific duty to assist, here the driver of the vehicle had departed the scene under circumstances that reasonably led the troopers to believe he left voluntarily and without the need for assistance. As the motion judge properly concluded, based on these facts and circumstances, considered most favorably to plaintiff, no jury could reasonably find that the troopers' conduct was "palpably unreasonable."
We are therefore satisfied that the troopers' discretionary determinations in their investigation of the single vehicle accident in this case involved no palpably unreasonable conduct and therefore are immunized under N.J.S.A. 59:3-2(d). Accordingly, the defendant-public entities are similarly shielded from liability. Having so found, we need not determine, as did the motion judge, whether defendants were also immune from liability under N.J.S.A. 59:3-3 ("act[ing] in good faith in the execution or enforcement of any law"), or whether no reasonable jury could find that the troopers' actions or omissions proximately caused decedent's demise.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION