Tice v. Cramer

CLIFFORD, J.,

concurring in judgment.

The Court and I reach the same result by different routes. The majority opinion holds that the public employee, defendant Cram-er, and the public entities, defendants City of Wildwood and its Police Department, gain immunity under N.J.S.A. 59:5 — 2b(2). That statute affords immunity when an injury is “caused by an escaping or escaped person.” Because I disagree with the Court’s characterization of defendant Logan, whom Cramer was chasing, as an “escaping or escaped person,” I conclude that one must look elsewhere in the Tort Claims Act for an “immunity” provision. I find it in N.J.SA 59:5 — 2b(3), which provides immunity for “any injury caused by * * * a person resisting arrest.” Had I not concluded that Logan was “resisting arrest,” I would nonetheless find immunity in N.J.SA 59:2-lb and N.J.SA 59:3-lb, which incorporate existing common-law public-entity and public-employee immunity, when an innocent third party is injured by a suspect evading police pursuit.

I

The definition of “escape” as first codified under N.J.SA. 2A:104-1 to -12, and later defined under the New Jersey Criminal Code, N.J.SA 2C:29-5, requires “confinement” or “official detention.” Before the pursuit Logan had not been under the control of any law-enforcement agency; therefore he fails to qualify as an “escaping” person under N.J.SA 59:5-2b(2).

On the other hand, “purposely preventing] a law enforcement officer from effecting a lawful arrest” constitutes resisting arrest. N.J.SA. 2C:29-2a; State v. Battle, 256 N.J.Super. 268, 284 , 606 A.2d 1119 (App.Div.), certif. denied, 130 N.J. 393 , 614 A.2d 616 (1992); see, e.g., State v. Doss, 254 N.J.Super. 122, 130 , 603 A.2d 102 (App.Div.) (concluding that defendant resisted arrest when police, with articulable suspicion, attempted to stop him and he refused to obey commands to halt), certif. denied, 130 N.J. 17 , 611 A.2d 655 (1992). Officer Cramer had the necessary probable *386 cause to arrest because he believed that a hammer had been thrown at him from the Logan vehicle. Moreover, pursuant to N.J.S.A. 39:5-25, an officer may make an arrest without a warrant for violations of any provision of chapter 3 or, with but few exceptions, chapter 4 of Title 39 (Motor Vehicle and Traffic Regulations) committed in that officer’s presence. Logan violated both N.J.S.A 39:3^47, by not having his headlights illuminated at night, and N.J.S.A. 39:4-64, by his presumptive responsibility for the throwing of an “object” from his vehicle. In some different context I might require, for summary-judgment purposes, a categorical statement by the pursuing officer of his intention to effect an arrest; but in the situation presented by this case, so graphically portrayed in the Court’s opinion, ante at 351-352, 627 A.2d at 1092-1093, we can safely conclude as a matter of law that Cramer most surely would have placed Logan under arrest. Therefore, because Logan continued' to flee while knowing that a police officer was chasing him, and because that officer had probable cause to arrest Logan and intended to do so, public-entity and public-employee immunity is more appropriately found under N.J.S.A. 59:5-2b(3).

In police-pursuit cases in which the circumstances are not so clear that the pursued is “resisting arrest,” I would turn to existing case law. Under Roll v. Timberman, 94 N.J.Super. 530 , 229 A.2d 281 (App.Div.), certif. denied, 50 N.J. 84 , 232 A.2d 147 (1967), incorporated into the Tort Claims Act under N.J.S.A. 59:2-lb and N.J.S.A. 59:3-lb, a public entity and public employee are immunized when an innocent third party is injured by a suspect fleeing a pursuing police officer. In that limited respect, I support so much of the Court’s analysis of Roll as appears ante at 357-359, 627 A.2d at 1095-1096 (but not as paraphrased later, ante at 379, 627 A.2d at 1107), and the Court’s application of Roll to this case, ante at 358-359, 627 A.2d at 1096-1097.

II

The Court sweeps into the immunity provided in N.J.S.A. 59:5-2b(2), the situation in which the third-party’s injury is caused by *387 the escape rather than the escaping person. Discussing Burg v. State, 147 N.J.Super. 316 , 371 A.2d 308 (App.Div.), certif. denied, 75 N.J. 11 , 379 A.2d 242 (1977), the majority concludes that public-employee and public-entity immunity exists for “all acts of negligence related to the injuries caused by the escape, whether those of the employee or the entity * * Ante at 365, 627 A2d at 1106. The Court offers Burg “in response to the language (and sometimes the holding) of other cases suggesting that such immunity exists * * * only when there is no negligence on the part of either the public entity or employee.” Ante at 377, 627 A.2d at 1106.

Although I agree with the Court’s point that immunity may exist when both the pursued and the public entity or public employee act negligently, I do not agree with the Court’s sweeping application of that point and its overbroad interpretation of Burg .

In Burg , a convicted felon who was serving a life term was on vocational, noncustodial release when he assaulted the plaintiff. 147 N.J.Stiper. at 318, 371 A.2d 308 . The plaintiff then sued the State as well as State employees. The plaintiffs cause of action was based on the State’s handling of the prisoner. Evaluating the applicability of N.J.S.A. 59:5-2a and -2b(l), the court looked for guidance to two California decisions, because our Tort Claims Act was modeled after California’s statute. In both California cases the defendants had caused the injuries and damage. In one of the cases immunity was founded on a section similar to N.J.S.A. 59:5-2a, and in the other immunity was based on a section similar to N.J.S.A 59:5-2b(2). Applying immunity, the California courts refused to distinguish between ministerial and discretionary acts or between acts of omission or commission. The Burg court concluded that

since the facts alleged by plaintiffs amount essentially only to an assertion that [the prisoner] should not have been permitted to participate in the work release program, liability should not attach for any injury resulting from his release. It is clear that N.J.S.A. 59:5-2(a) expressly excludes such a claim as the basis for a cause of action.

*388 [147 N.J.Super, at 325, 371 A.2d 308 .]

The court further noted that alternative immunity existed under N.J.S.A. 59:5-2b.

The Court correctly concludes that Burg “indicated it would immunize all acts of a public entity or a public employee in connection with section 5-2b — there ‘an escaping or escaped prisoner.’ ” Ante at 365, 627 A.2d at 1100. However, that conclusion does not lead to the further proposition that immunity exists for “all acts of negligence related to the injuries caused by the escape.” Ibid, (second emphasis added). What does follow is that immunity exists for all acts of negligence, whether those of the escapee independently or in conjunction with those of the public employee, related to the injuries caused by, in the language of the statute, the escaping or escaped person.

N.J.S.A. 59:5-2a provides immunity for “[a]n injury resulting from the parole or release of a prisoner * * (Emphasis added.) On the other hand, N.J.S.A 59:5-2b(2) provides immunity for “any injury caused by * * * an escaping or escaped person.” (Emphasis added.) In the first instance, I would conclude that the Legislature sought to provide a more expansive immunity to public entities and public employees than would be afforded had the language been limited to “an injury caused by a parolee or releasee.” The Legislature’s use of the phrase “caused by * * * an escaping or escaped person” in section 5-2b, rather than the phrase “resulting from the escape,” represents a considered choice. I would recognize that choice by holding that in N.J.S.A. 59:5-2b the Legislature carved out a narrower immunity than is provided by N.J.S.A. 59:5-2a: public-entity and public-employee immunity exists only if the injury is caused by the escaping or escaped person, whether or not the public employee was concurrently negligent; such immunity is not afforded if the injury resulted from the escape.

Ill

I concur in the Court’s judgment affirming the judgment of the Appellate Division.

Justices HANDLER and POLLOCK join in this opinion.

*389 Justices CLIFFORD, HANDLER, POLLOCK and O’HERN concur in result.

For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 7.

Opposed —none.