NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1100-22
RICARDO M. MELENDEZ,
Plaintiff-Appellant,
v.
ANTHONY P. ROTONDO, CITY OF JERSEY CITY, and JERSEY CITY POLICE DEPARTMENT,
Defendants-Respondents. ____________________________
Submitted February 26, 2024 – Decided March 6, 2024
Before Judges Mawla and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4283-20.
Benevento Law Firm, LLC, attorneys for appellant (Christopher Lee Benevento, on the brief).
Peter J. Baker, Corporation Counsel, attorney for respondents (Brittany M. Murray, First Assistant Corporation Counsel, on the brief).
PER CURIAM Plaintiff Ricardo M. Melendez appeals from a November 3, 2022 order
granting summary judgment in favor of defendants Officer Anthony P. Rotondo,
the City of Jersey City, and the Jersey City Police Department. Based on our
review of the record and the applicable principles of law, we affirm.
Plaintiff was injured when the bicycle he was riding struck a marked
Jersey City police vehicle operated by Officer Rotondo. Plaintiff was traveling
eastbound downhill on Newark Avenue in Jersey City. Prior to the accident,
Officer Rotondo was also traveling eastbound on Newark Avenue.
Officer Rotondo received a dispatch call directed to another unit seeking
an officer to respond to a nearby Dunkin' Donuts. He believed the call was in
connection with an irate and angry individual at the Dunkin' Donuts. Officer
Rotondo's unit was not the primary vehicle dispatched to the Dunkin' Donuts,
but he responded to the call as backup to assist the primary vehicle.
Plaintiff contends the police event information form relating to the call
states, "caller needs an officer at the Dunkin['] Donuts to see video footage of
how they treated him yesterday and to see who stole his belongings . . . male is
very ir[]ate and angry towards police." Plaintiff does not dispute that Officer
Rotondo received the dispatch call.
A-1100-22 2 To get to the Dunkin' Donuts, Officer Rotondo needed to make a U-turn
to proceed westbound on Newark Avenue. The officer turned into the wide
center median area between the eastbound and westbound lanes. His car was
perpendicular to the lanes of traffic as he waited in the median for westbound
traffic to stop and allow him to turn into the westbound lane. Officer Rotondo
contends he activated his overhead lights and manually, intermittently sounded
his siren to stop traffic. Plaintiff neither recalls seeing the overhead lights nor
hearing the siren.
As plaintiff was riding eastbound on Newark Avenue approaching the
point where Officer Rotondo was waiting in the median, traffic stopped in front
of him. Plaintiff swerved left into the westbound lane to avoid the stopped
eastbound traffic and attempted to ride in front of Officer Rotondo's vehicle
which was, by that time, moving forward into the westbound lane. Plaintiff
struck the driver-side front quarter panel of the police vehicle near the front tire.
He was thrown from the bike and suffered a dislocated and fractured left elbow.
Plaintiff filed his complaint in this matter alleging Officer Rotondo
operated his vehicle in a negligent, careless, and reckless manner, and the City
of Jersey City is vicariously liable for his actions. Following discovery,
defendants moved for summary judgment based on "good-faith immunity" under
A-1100-22 3 the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:3-3. On October 21,
2022, the court heard oral argument and ordered an evidentiary hearing because
the facts were "a little confusing."
On November 3, 2022, the court conducted an evidentiary hearing at
which Officer Rotondo and plaintiff testified. At the conclusion of the hearing,
the court noted there was "not a . . . significant difference between the testimony
of the parties." For example, Officer Rotondo testified he activated his overhead
lights and siren, while plaintiff was unable to recall if he saw the lights or heard
the siren. The court found credible Officer Rotondo's testimony regarding the
dispatch call for an irate and angry individual at Dunkin' Donuts but noted what
the officer heard or did not hear "is really irrelevant." The court found Officer
Rotondo was responding to a call involving emergent circumstances that
required quick action noting, "[o]bviously you [can] tell that from the
dispatcher's [police event information] report." It also found Officer Rotondo
was "acting objectively reasonably[,]" and granted defendants' motion based on
good-faith immunity.
On appeal, plaintiff contends: (1) the court erred by granting summary
judgment because whether Officer Rotondo was executing or enforcing the law
is a question of fact for the jury; and (2) the court improperly usurped the jury's
A-1100-22 4 role as fact finder with respect to whether Officer Rotondo activated his
overhead lights and siren, was engaged in executing or enforcing the law, and
acted objectively reasonably.
We review a grant of summary judgment de novo, using the same standard
that governed the trial court's decision. Samolyk v. Berthe, 251 N.J. 73, 78
(2022). We owe no special deference to the motion judge's legal analysis. RSI
Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (quoting
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016)). Summary judgment should be granted when "the competent evidential
materials submitted by the parties," viewed in the light most favorable to the
non-moving party, show that there are no "genuine issues of material fact
and . . . the moving party is entitled to summary judgment as a matter of law."
Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24 (2017) (quoting Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014)).
"The most basic duty of a police officer is to enforce the law. In
discharging this duty, police officers may use all reasonable means to uphold
the law and apprehend perpetrators." Canico v. Hurtado, 144 N.J. 361, 365
(1996) (internal citation omitted). Under the TCA, "[a] public employee is not
liable if [the employee] acts in good faith in the execution or enforcement of any
A-1100-22 5 law." N.J.S.A. 59:3-3. This immunity applies to a police officer's operation of
a motor vehicle "within the scope of [the officer's] duties" and in response to
emergent circumstances, such as a crime in progress, where the officer acted
with "objective reasonableness" or with subjective "good faith." Canico, 144
N.J. at 365-67.
The Court in Canico explained:
Although we recognize that people ordinarily do not use the term "good faith" to describe the operation of motor vehicles, we believe that the Legislature intended that the term could encompass the operation of police vehicles. A public employee, although negligent, may still act in good faith. Marley v. Palmyra Bor., 193 N.J. Super. 271, 295 (Law Div. 1983). To pierce [N.J.S.A.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1100-22
RICARDO M. MELENDEZ,
Plaintiff-Appellant,
v.
ANTHONY P. ROTONDO, CITY OF JERSEY CITY, and JERSEY CITY POLICE DEPARTMENT,
Defendants-Respondents. ____________________________
Submitted February 26, 2024 – Decided March 6, 2024
Before Judges Mawla and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4283-20.
Benevento Law Firm, LLC, attorneys for appellant (Christopher Lee Benevento, on the brief).
Peter J. Baker, Corporation Counsel, attorney for respondents (Brittany M. Murray, First Assistant Corporation Counsel, on the brief).
PER CURIAM Plaintiff Ricardo M. Melendez appeals from a November 3, 2022 order
granting summary judgment in favor of defendants Officer Anthony P. Rotondo,
the City of Jersey City, and the Jersey City Police Department. Based on our
review of the record and the applicable principles of law, we affirm.
Plaintiff was injured when the bicycle he was riding struck a marked
Jersey City police vehicle operated by Officer Rotondo. Plaintiff was traveling
eastbound downhill on Newark Avenue in Jersey City. Prior to the accident,
Officer Rotondo was also traveling eastbound on Newark Avenue.
Officer Rotondo received a dispatch call directed to another unit seeking
an officer to respond to a nearby Dunkin' Donuts. He believed the call was in
connection with an irate and angry individual at the Dunkin' Donuts. Officer
Rotondo's unit was not the primary vehicle dispatched to the Dunkin' Donuts,
but he responded to the call as backup to assist the primary vehicle.
Plaintiff contends the police event information form relating to the call
states, "caller needs an officer at the Dunkin['] Donuts to see video footage of
how they treated him yesterday and to see who stole his belongings . . . male is
very ir[]ate and angry towards police." Plaintiff does not dispute that Officer
Rotondo received the dispatch call.
A-1100-22 2 To get to the Dunkin' Donuts, Officer Rotondo needed to make a U-turn
to proceed westbound on Newark Avenue. The officer turned into the wide
center median area between the eastbound and westbound lanes. His car was
perpendicular to the lanes of traffic as he waited in the median for westbound
traffic to stop and allow him to turn into the westbound lane. Officer Rotondo
contends he activated his overhead lights and manually, intermittently sounded
his siren to stop traffic. Plaintiff neither recalls seeing the overhead lights nor
hearing the siren.
As plaintiff was riding eastbound on Newark Avenue approaching the
point where Officer Rotondo was waiting in the median, traffic stopped in front
of him. Plaintiff swerved left into the westbound lane to avoid the stopped
eastbound traffic and attempted to ride in front of Officer Rotondo's vehicle
which was, by that time, moving forward into the westbound lane. Plaintiff
struck the driver-side front quarter panel of the police vehicle near the front tire.
He was thrown from the bike and suffered a dislocated and fractured left elbow.
Plaintiff filed his complaint in this matter alleging Officer Rotondo
operated his vehicle in a negligent, careless, and reckless manner, and the City
of Jersey City is vicariously liable for his actions. Following discovery,
defendants moved for summary judgment based on "good-faith immunity" under
A-1100-22 3 the New Jersey Tort Claims Act ("TCA"), N.J.S.A. 59:3-3. On October 21,
2022, the court heard oral argument and ordered an evidentiary hearing because
the facts were "a little confusing."
On November 3, 2022, the court conducted an evidentiary hearing at
which Officer Rotondo and plaintiff testified. At the conclusion of the hearing,
the court noted there was "not a . . . significant difference between the testimony
of the parties." For example, Officer Rotondo testified he activated his overhead
lights and siren, while plaintiff was unable to recall if he saw the lights or heard
the siren. The court found credible Officer Rotondo's testimony regarding the
dispatch call for an irate and angry individual at Dunkin' Donuts but noted what
the officer heard or did not hear "is really irrelevant." The court found Officer
Rotondo was responding to a call involving emergent circumstances that
required quick action noting, "[o]bviously you [can] tell that from the
dispatcher's [police event information] report." It also found Officer Rotondo
was "acting objectively reasonably[,]" and granted defendants' motion based on
good-faith immunity.
On appeal, plaintiff contends: (1) the court erred by granting summary
judgment because whether Officer Rotondo was executing or enforcing the law
is a question of fact for the jury; and (2) the court improperly usurped the jury's
A-1100-22 4 role as fact finder with respect to whether Officer Rotondo activated his
overhead lights and siren, was engaged in executing or enforcing the law, and
acted objectively reasonably.
We review a grant of summary judgment de novo, using the same standard
that governed the trial court's decision. Samolyk v. Berthe, 251 N.J. 73, 78
(2022). We owe no special deference to the motion judge's legal analysis. RSI
Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (quoting
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016)). Summary judgment should be granted when "the competent evidential
materials submitted by the parties," viewed in the light most favorable to the
non-moving party, show that there are no "genuine issues of material fact
and . . . the moving party is entitled to summary judgment as a matter of law."
Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24 (2017) (quoting Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014)).
"The most basic duty of a police officer is to enforce the law. In
discharging this duty, police officers may use all reasonable means to uphold
the law and apprehend perpetrators." Canico v. Hurtado, 144 N.J. 361, 365
(1996) (internal citation omitted). Under the TCA, "[a] public employee is not
liable if [the employee] acts in good faith in the execution or enforcement of any
A-1100-22 5 law." N.J.S.A. 59:3-3. This immunity applies to a police officer's operation of
a motor vehicle "within the scope of [the officer's] duties" and in response to
emergent circumstances, such as a crime in progress, where the officer acted
with "objective reasonableness" or with subjective "good faith." Canico, 144
N.J. at 365-67.
The Court in Canico explained:
Although we recognize that people ordinarily do not use the term "good faith" to describe the operation of motor vehicles, we believe that the Legislature intended that the term could encompass the operation of police vehicles. A public employee, although negligent, may still act in good faith. Marley v. Palmyra Bor., 193 N.J. Super. 271, 295 (Law Div. 1983). To pierce [N.J.S.A. 59:]3-3's qualified immunity, a plaintiff must prove more than ordinary negligence. See id. at 294 (stating that recklessness usually denies good faith).
[Id. at 365.]
The Court also held, "[i]n many cases, the question of 'good faith' presents
a question of fact to be resolved at a plenary hearing." Ibid. (citing Fielder v.
Stonack, 141 N.J. 101, 132 (1995)). "Summary judgment under [N.J.S.A. 59:3-
3], however, is appropriate if public employees can establish that their acts were
objectively reasonable or that they performed them with subjective good faith. "
Ibid. (citing Hayes v. Mercer Cnty., 217 N.J. Super. 614, 622 (App. Div. 1987)).
A-1100-22 6 We are satisfied the court correctly determined Officer Rotondo was
entitled to immunity and granted defendants' motion for summary judgment. We
affirm substantially for the reasons set forth in the court's oral opinion. We add
the following comments.
Plaintiff's contention that the court usurped the function of the jury by
conducting a plenary hearing to determine the applicability of good-faith
immunity is not persuasive. Canico held that when the determination of "good
faith" presents a question of fact, the applicability of good-faith immunity
should be resolved at a plenary hearing. 144 N.J. at 365. Here, the court
properly conducted a plenary hearing to resolve the factual questions presented
in this case.
Moreover, as the court recognized, the factual disputes identified by
plaintiff were not relevant to the good-faith immunity analysis. Plaintiff does
not dispute that Officer Rotondo received a call for assistance directed to another
unit and responded to the location as backup. Because Officer Rotondo was
responding to a call for police assistance, he was entitled to the protection of
Plaintiff's reliance on Caicedo v. Caicedo, 439 N.J. Super. 615 (App. Div.
2105), is misplaced. In Caicedo, a police officer was involved in a motor vehicle
A-1100-22 7 accident while transporting a prisoner to the police station. Id. at 620. We held
that under the facts of that case, the officer was not acting in the execution or
enforcement of any law so as to afford good-faith immunity. Id. at 626. We
noted, if the officer "was responding . . . to a crime scene, to an accident call
with unknown injuries, or to some other situation requiring . . . immediate
attention, we have little doubt that the result we reach would be different." Id.
at 627.
In this case, Officer Rotondo made the decision to respond to the dispatch
call for police assistance. He was not engaged in a ministerial act such as
transporting a prisoner. Officer Rotondo was entitled to good-faith immunity
because he was responding to a call for assistance even if, as plaintiff contends,
the call turned out to be non-emergent in nature.
Likewise, the alleged factual dispute over Officer Rotondo's use of his
lights and siren was not material for two reasons. First, plaintiff did not offer
any competent evidence to raise a genuine issue of material fact. In response to
Officer Rotondo's testimony that he engaged his overhead lights and siren,
plaintiff testified he did not "recall" seeing the lights or hearing the siren.
Plaintiff failed to offer competent evidence to contradict Officer Rotondo's
testimony and, therefore, failed to establish a genuine issue of material fact.
A-1100-22 8 Second, to defeat the claim of immunity, plaintiff must prove more than
ordinary negligence. Plaintiff did not offer any evidence that Officer Rotondo
operated his vehicle in a careless or reckless manner. Even if plaintiff could
prove Officer Rotondo did not activate his overhead lights and siren, plaintiff
would not be able to prove more than ordinary negligence under the facts of this
case.
To the extent we have not addressed any remaining arguments, it is
because they lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-1100-22 9