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,
v.
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.
I.
A.
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.
B.
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.
C.
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.
1.
“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);
see also S.P., 428 N.J. Super. at 231.
Suarez and Morey, two cases from the Appellate Division, illustrate the
difference between ministerial and discretionary police actions in the specific
context of people killed after being left by police on roadways.
In Suarez, police officers arrived at the scene of a minor motor vehicle
accident. 171 N.J. Super. at 5. The accident had disabled the victims’ car,
which was resting on the shoulder of a highway. Ibid. After a truck removed
the car from the road, the officers declined a request from the car’s passengers
to escort them from the highway. Id. at 5-6. The officers instead advised the
passengers to walk to the nearest exit and departed. Id. at 6. While the
passengers were walking, one of the children in the party wandered onto the
highway and was struck and killed by a vehicle, and another member of the
party who ran after the child was also killed. Ibid.
23 In finding that the TCA immunity asserted 7 did not apply, the Appellate
Division held that “[a]lthough a police officer may not be liable for failing 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.” Id. at 9-10. In reaching that decision, the Appellate
Division acknowledged that “police officers[’] . . . duties embrace protection
of the public’s safety on the highways.” Id. at 10. Accordingly, the Appellate
Division found that the police officers in that case were not “insulate[d] . . .
from unfortunate results of their negligently executed ministerial duties.” Ibid.
Conversely, in Morey, a police officer responded to a call regarding a
pedestrian in the middle of a roadway. 232 N.J. Super. at 147. The police
officer determined the pedestrian was intoxicated, and the pedestrian complied
with the officer’s order to leave the roadway. Ibid. The officer “determined
that the traffic hazard had been eliminated and left the scene.” Ibid. Three
hours and forty minutes later, the pedestrian was “struck and killed by a truck
one-quarter of a mile from” where the officer had ordered the pedestrian “out
of the roadway.” Ibid.
7 The Appellate Division’s decision involved N.J.S.A. 59:5-4, which provides immunity for failure to provide police protection. Suarez, 171 N.J. Super. at 9. This TCA provision is described in more detail in Section III.C.4., infra. 24 The court found the TCA “precluded any further responsibility on the
part of defendants.” Id. at 148. In doing so, the court distinguished Suarez,
noting that the officer in the case before it “was not responding to an accident
scene.” Id. at 150. Furthermore, the pedestrian understood and complied with
the officer’s orders; it was not until hours after the officer’s interactions with
the pedestrian that the pedestrian was struck and killed. Ibid. The Morey
court further concluded that the defendants were immune because of the
officer’s “discretionary determination that decedent was not incapacitated.”
Ibid. And the officer’s only mandatory duty under N.J.S.A. 26:2B-16 was to
“remove decedent to an intoxication treatment facility if he determined that
decedent was incapacitated.” Ibid. Because the officer concluded the
decedent was merely intoxicated, not incapacitated, the court found that the
officer’s “decisions in the field were protected [as discretionary] under
N.J.S.A. 59:3-2(d) and N.J.S.A. 59:3-5.” Id. at 152.
Suarez and Morey are the cases factually closest to the scenario here and
turned on whether the officers’ conduct was ministerial or discretionary.
Resolution of whether a police officer’s actions are ministerial or discretionary
depends upon the particular facts and circumstances bearing upon the question;
it is a fact-sensitive analysis. We therefore turn to the facts of this case.
25 2.
Here, the trial court granted summary judgment in favor of defendants ,
concluding that the TCA’s immunity from liability applied as a matter of law.
We review that conclusion applying the same standard as “the trial court, that
is, ‘we must view the facts that may be inferred from the pleadings and
discovery in the light most favorable to plaintiffs.’” Coyne, 182 N.J. at 491
(quoting Strawn v. Canuso, 140 N.J. 43, 48 (1995)). We determine “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.” Brill,
142 N.J. at 540. Summary judgment should be granted only “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).
Thus, 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.” Henebema v. S. Jersey Transp.
Auth., 430 N.J. Super. 485, 506 (App. Div. 2013), aff’d on other grounds, 219
N.J. 481 (2014).
26 [W]hen the evidence establishes a genuine issue of material fact regarding whether the alleged failures of a public entity were the result of discretionary decisionmaking 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.
[Id. at 491.]
As we have noted, responding to the scene of an accident is a ministerial
duty for police officers. See, e.g., Ojinnaka, 420 N.J. Super. at 37; Praet, 218
N.J. Super. at 223. Thus, at least some of the officers’ actions in this case,
such as moving Gonzalez’s car off the roadway and deciding to tow the
disabled vehicle, 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; the officers maintain that competing
demands caused them to leave Gonzalez on the bridge that evening.
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.” “‘Palpably unreasonable’ means more than ordinary
negligence . . . ‘[I]t must be manifest and obvious that no prudent person
would approve of its course of action or inaction.’” Coyne, 182 N.J. at 493
27 (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). It “implies behavior
that is patently unacceptable under any given circumstance.” Kolitch, 100 N.J.
at 493. Whether or not conduct is palpably unreasonable is a jury
determination. Henebema, 430 N.J. Super. at 506.
Unlike in Morey, 232 N.J. Super. at 150, the officers here were
responding to an accident scene. Their response thus involved the ministerial
duty to render aid to Gonzalez. Additionally, the officer in Morey exercised
discretion after determining the decedent was intoxicated. Id. at 147. Here,
the officers did not act believing Gonzalez was intoxicated.
This case is also distinguishable from Suarez. The officers in Suarez
declined the victims’ request to escort them off the highway after their car
became disabled. 171 N.J. Super. at 5-6. The allocation of resources was thus
never a consideration for the officers in Suarez. In the present case, Gonzalez
refused offers of a ride away from the highway, and there is a genuine issue of
material fact as to whether the officers were called away from the scene or
decided on their own to leave after their offers of a ride were declined.
In addition, the officers here testified that they were directed by dispatch
to resume their patrol, and Officer Hashmi stated that they did not wait with
Gonzalez until Martinez arrived because it was a busy Saturday night.
However, the transcript of the call shows that Officer Tucker told the
28 dispatcher that Gonzalez would wait on the bridge after refusing the officers’
offer of a ride, to which the dispatcher replied “ok.” Whether the officers were
directed to leave the scene or made the decision to leave themselves is thus a
genuine issue of material fact. Whether the officers in fact exercised
discretion and considered allocation of resources in reaching their decision to
leave is also an issue of material fact.
In Henebema, the Appellate Division sent the ministerial/discretionary
determination to the jury because “the record contain[ed] evidence that
defendants ‘consciously considered’ the action they took that night in light of
conflicting or competing demands where resources were obviously pushed to
the limit.” 430 N.J. Super. at 505. A similar question exists here: were
Officers Tucker and Hashmi faced with competing demands upon police
resources, or not? That question is properly one for the jury here, as it was in
Henebema.
3.
In sum, the unique circumstances of this case and the material facts that
are in dispute warrant presentation to a jury of the threshold factual questions
essential to determine whether the officers’ conduct was ministerial, for which
the ordinary negligence standard applies, or discretionary and, if discretionary,
whether the officers’ conduct was palpably unreasonable.
29 When these issues are presented to the jury, it must be with appropriate
instructions. Currently, the Model Jury Charge for general negligence
acknowledges that
[i]f at trial there is a genuine dispute of material fact as to whether one or more of the parties performed a discretionary function (subject to a “palpably unreasonable” standard) or ministerial function (subject to “ordinary negligence principles”), N.J.S.A. 59:2-3, N.J.S.A. 59:3-2, [the judge] must tailor both the final jury charge and the verdict sheet so the jury can make the appropriate fact findings and evaluate the party’s liability exposure using the proper standard of care.
[Model Jury Charge (Civil), 5.10A, “Negligence and Ordinary Care -- General” (rev. May 2019).]
When judges tailor the charge and verdict sheet, they must do so in a
way that will allow the jury to distinguish between the predicate facts that tend
to show that a defendant engaged in a ministerial act from those that tend to
show the exercise of discretion. See Henebema, 430 N.J. Super. at 506. We
adopt the guidance of Henebema that “the jury verdict sheet [should] contain
questions for each disputed predicate fact.” Id. at 507. In this case, for
example, we suggest that the jury verdict sheet ask whether the decision to
leave the scene of Gonzalez’s accident was the result of a conscious
consideration and balancing of Gonzalez’s relative safety when left and police
department resources in the face of competing demands.
30 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, such as those established in Model Jury Charge 5.10A, to the
officers’ conduct to determine whether the 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 the defendants’ conduct was palpably
unreasonable -- whether “no prudent person would approve of [their] course of
action or inaction,” Coyne, 182 N.J. at 493 (quoting Kolitch, 100 N.J. at 493),
and whether their conduct “implies behavior that is patently unacceptable
under any given circumstance,” Kolitch, 100 N.J. at 493.
4.
For completeness, we review briefly other sections of the TCA cited by
defendants in asserting immunity from liability -- N.J.S.A. 59:2-4, :3-3, :3-5,
:5-4, and :5-5.
31 For the same reasons that N.J.S.A. 26:2B-16 does not apply to this case,
we find that neither the immunity for failure to enforce a law, N.J.S.A. 59:2-4
and :3-5, nor the immunity for good-faith enforcement of a law, id. at :3-3,
applies here. The officers made no determination that Gonzalez was
intoxicated, and there is no indication that Gonzalez was incapacitated. As
such, although the officers could have assisted Gonzalez to his home or to a
treatment center, they were under no duty to do so under N.J.S.A. 26:2B-16,
and there was therefore no applicable law to enforce or fail to enforce .
We similarly find that the immunity for failure to make an arrest,
N.J.S.A. 59:5-5, does not apply. N.J.S.A. 26:2B-16 would have given the
officers the authority to remove Gonzalez from the bridge without the need to
arrest him.
Additionally, immunity for failure to provide police protection, N.J.S.A.
59:5-4, does not apply. N.J.S.A. 59:5-4 applies generally to “political
decisions,” such as a town’s decision to staff and equip a police force , Suarez,
171 N.J. Super. at 9, or other “higher-level discretionary acts,” see Wuethrich
v. Delia, 134 N.J. Super. 400, 412 (Law Div. 1975). Such immunity does not
encompass the kind of decisions the officers made in responding to Gonzalez’s
accident.
32 IV.
For the reasons set forth above, we affirm and modify the judgment of
the Appellate Division. We leave the determination of whether the officers’
actions were ministerial or discretionary to the jury. After making that
determination, the jury should then consider defendants’ conduct under the
appropriate standard -- ordinary negligence or palpable unreasonableness. We
remand to the trial court for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and PIERRE-LOUIS join in JUSTICE SOLOMON’S opinion. JUSTICE FERNANDEZ-VINA did not participate.