LOIS CHIPEPO, ETC. VS. STATE OF NEW JERSEY (L-7853-14, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4957-16T3
LOIS CHIPEPO, Administrator
ad Prosequendum and General
Administrator of the ESTATE OF
KEITH CHIPEPO, deceased,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, NEW
JERSEY STATE POLICE, STATE
TROOPER VICTOR PEREIRA,
STATE TROOPER ANTHONY
SARDANOPOLI, STATE TROOPER
WILLIAM LEGG, and STATE
TROOPER RODRIGO NIVIA,
Defendants-Respondents,
and
GRAND MEDICAL TRANSPORTATION,
LLC, TRAVERN HUMPHREY, NOEL
GAYLE, COUNTY OF ESSEX, ANDRES
ULERIO, and JAMES STERLING,
Defendants.
_________________________________________
Argued October 16, 2018 – Decided November 15, 2018
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-7853-14.
Alan Roth argued the cause for appellant (Bendit
Weinstock, PA, attorneys; Alan Roth and Eryn
Fernandez-Ledon, on the briefs).
Daniel M. Vannella, Deputy Attorney General, argued
the cause for respondents (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Randall B. Weaver,
Deputy Attorney General, on the brief).
PER CURIAM
Plaintiff Lois Chipepo appeals from an order entered by the Law Division
on June 9, 2017, which granted summary judgment in favor of defendants State
of New Jersey, New Jersey State Police (NJSP), and State Troopers Victor
Pereira, William Sardanopoli, William Legg, and Rodrigo Nivia. We affirm.
I.
This appeal arises from the following facts. On the morning of November
19, 2012, troopers Nivia and Legg were on patrol driving west on Clinton
Avenue in Newark. They noticed a blue Chrysler Pacifica driving erratically in
the opposite direction. James Sterling was driving the blue Pacifica. Nivia and
Legg activated the emergency lights on their police vehicle, made a U-turn, and
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attempted to follow the blue Pacifica. After completing the U-turn, Nivia and
Legg lost sight of the car. They called in a description of the vehicle over the
police radio to alert other police officers in the area.
Troopers Pereira and Sardanopoli were on patrol nearby and heard the
radio transmission. Pereira was driving the police vehicle. Within minutes, the
troopers observed a vehicle drive past them at a high rate of speed heading north
on South 9th Street. The troopers were stopped at a red light at the intersection
of 15th Avenue and South 9th Street. They recognized the vehicle as the one
described in the radio transmission and decided to follow.
Pereira and Sardanopoli activated the emergency lights on their vehicle
and made a left turn onto South 9th Street, heading north. Plaintiff claims the
troopers did not activate their sirens, but the record does not indicate whether
the Troopers did or did not do so. While making the turn, Sardanopoli issued a
radio transmission explaining that they had observed the blue Pacifica and
reported its location.
At his deposition, Sardanopoli testified that, after they completed the turn
onto South 9th Street, he and Pereira saw that the blue vehicle had already
traveled more than one-and-one-half blocks ahead of them on South 9th Street
and was approaching South Orange Avenue "at a high rate of speed." Seconds
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later, Sterling drove the blue Pacifica through a red light at South Orange
Avenue and struck an ambulance that was traveling east through a green light.
Following the impact, the ambulance spun counterclockwise and was struck by
a truck that was also traveling east through the green light. The ambulance
rolled on its side and struck another vehicle.
Pereira and Sardanopoli witnessed the collision. They immediately issued
a second radio transmission reporting the blue Pacifica had crashed at the
intersection of South 9th Street and South Orange Avenue. The troopers
approached the accident scene. Sterling abandoned his car and attempted to flee
the scene on foot. The troopers exited their vehicle, chased Sterling, and
apprehended him. The troopers then returned to the accident scene to respond
to the emergency.
Attendant Keith Chipepo (Chipepo) and patient Martha Conley were
riding in the ambulance when it was struck by the blue Pacifica. Chipepo,
Conley, and others were injured in the crash. They were transported to a
hospital. Chipepo and Conley died as a result of the injuries they sustained in
the accident.
After he was taken into custody, Sterling provided a statement to the Essex
County Prosecutor's Office. Sterling said that before the crash, he did not see a
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police vehicle following him or hear any sirens. He stated that if he had heard
the sirens, he would have pulled over. Sterling admitted he had been driving
with a suspended license, but said he had no reason to run from the police.
At the time of the accident, Noel Gayle also was driving a vehicle on South
Orange Avenue, on the left of the ambulance. Gayle said she saw the blue
Pacifica run the red light at the intersection of South 9th Street and South Orange
Avenue. Gayle saw the blue Pacifica strike the ambulance on the right.
On November 3, 2014, plaintiff, the Administrator of Chipepo's Estate,
filed a complaint in the Law Division and asserted claims against defendants
pursuant to the New Jersey Tort Claims Act (TCA or the Act), N.J.S.A. 59:1-1
to 12-3.1 Plaintiff alleged defendants were negligent in their investigation, and
negligent and careless in failing to follow appropriate NJSP vehicle pursuit
policies. Plaintiff further alleged that defendants were negligent and careless in
failing to provide and receive adequate training regarding police chases,
including the failure to follow standards and methods for a police chase.
Plaintiff claimed defendants' negligence and carelessness caused Chipepo's
death. Defendants filed an answer denying liability.
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Plaintiff also named Grand Medical Transportation, LLC, Travern Humphrey,
Noel Gayle, the County of Essex, Andres Ulerio, and Sterling as defendants. It
appears that the claims against these other defendants have been resolved.
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Thereafter, defendants filed a motion for summary judgment. Defendants
argued that plaintiff had not presented competent evidence to support a finding
that Sterling knew the troopers were pursuing him, and therefore, any actions or
omissions by the troopers could not have been a proximate cause of Chipepo's
death. Defendants also argued that even if the troopers' actions were a proximate
cause of Chipepo's death, they were entitled to immunity from liability under
the TCA.
In January 2017, after hearing oral arguments, the motion judge denied
defendants' motion for summary judgment. The judge found there was a genuine
issue of material fact as to whether Sterling knew the troopers were pursuing
him before the collision.
Defendants later filed a motion for reconsideration. In June 2017, the
judge heard oral arguments on the motion, and placed his decision on the record.
The judge found that defendants were entitled to immunity under the TCA. The
judge filed an order dated June 9, 2017, granting defendants' motion for
reconsideration and for summary judgment. This appeal followed.
On appeal, plaintiff argues: (1) the trial court erred by granting summary
judgment to defendants because there are genuine issues of material fact; (2) the
applicability of the TCA immunity for police pursuits should have been
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submitted to the jury; and (3) defendants' motion for reconsideration was
improperly granted because there was no rational basis to reconsider the denial
of defendants' summary judgment motion.
II.
We turn first to plaintiff's contention that the trial court erred by granting
summary judgment. Plaintiff contends there are genuine issues of material fact
as to whether defendants were entitled to immunity from liability under the TCA
for the fatal injuries Chipepo sustained in the collision.
When reviewing a trial court's order of summary judgment, we apply the
same standards the trial court applies. Prudential Prop. & Cas. Ins. Co. v.
Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). The trial court should grant
summary judgment when there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is
genuine only if, considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require submission of the issue
to the trier of fact." R. 4:46-2(c).
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The TCA provides in pertinent part that "[a] public entity is liable for
injury proximately caused by an act or omission of a public employee within the
scope of his employment in the same manner and to the same extent as a private
individual under like circumstances." N.J.S.A. 59:2-2(a). The TCA further
provides that "[e]xcept as otherwise provided by this [A]ct, a public employee
is liable for injury caused by his act or omission to the same extent as a private
person." N.J.S.A. 59:3-1(a). A public employee's liability for injury is,
however, "subject to any immunity of a public employee provided by law[.]"
N.J.S.A. 59:3-1(b).
The TCA grants immunity from liability to police officers for "any injury
resulting from or caused by a law enforcement officer's pursuit of a person."
N.J.S.A. 59:5-2(c). However, N.J.S.A. 59:3-14(a) states that, "Nothing in this
[A]ct shall exonerate a public employee from liability if it is established that his
conduct was outside the scope of his employment or constituted a crime, actual
fraud, actual malice or willful misconduct."
In Fielder v. Stonack, 141 N.J. 101, 126 (1995), the Court held that
"willful misconduct in a police vehicular chase has two elements: (1) disobeying
either a specific lawful command of a superior or a specific lawful standing
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order and (2) knowing of the command or standing order, knowing that it is
being violated and, intending to violate it." Ibid.On appeal, plaintiff argues that there is a genuine issue of material fact as
to whether the troopers violated a standing order of the NJSP when they pursued
Sterling's blue Pacifica. Plaintiff contends the troopers violated the "New Jersey
Police Vehicular Pursuit Policy," dated November 5, 2010, which was issued by
the Attorney General, and thereafter adopted by the NJSP as a Standard
Operating Procedure (SOP). Plaintiff asserts that the SOP is a lawful "standing
order," as that term is used in Fielder. Plaintiff also contends there is sufficient
evidence to show the troopers knew of this policy, knew they were violating it,
and intended to violate it.
The NJSP's SOP states in pertinent part that a member of the NJSP has
the authority to attempt to stop any person "suspected of having committed any
criminal offense or traffic violation." The SOP provides that the decision to
pursue "should always be undertaken with an awareness of the degree of risk to
which the member exposes themselves and others." The SOP states that a
member may only engage in a pursuit if at least one of the following conditions
exists:
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a. The member reasonably believes that the violator has
committed an offense of the first or second degree, or
an offense enumerated in . . . this order[, or]
b. The member reasonably believes that the violator
poses an immediate threat to the safety of the public or
other police officers which is greater than the threat
posed by the pursuit itself.
The SOP also states, "[p]ursuit for motor vehicle offenses alone is not authorized
unless the violator's vehicle is being operated so as to pose an immediate threat
to the safety of any person."
The SOP further provides that even if authorized, "a pursuit should not be
automatically undertaken." In deciding whether to pursue, the trooper should
consider:
1. Whether the identity of the violator is known to the
point where later apprehension is possible
2. Likelihood of successful apprehension
3. Degree of risk created by the following:
a. Volume, type, speed, and direction of vehicular
traffic
b. Nature of the area: residential, commercial,
school zone, open highway, etc.
c. Population density and volume of pedestrian
traffic
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d. Environmental factors, such as weather,
darkness, lighting, and visibility
e. Road conditions, such as construction, poor
repair, extreme curves, intersections controlled
by traffic signals or signs, ice, etc.
4. Experience with emergency vehicle operation
5. Familiarity with the area
6. Knowledge of police vehicle condition
In addition, the SOP states that upon commencement of a pursuit, the
pursuing officer "will immediately activate emergency lights, audible device,
headlights, MVR unit and microphone(s)." These devices will "remain activated
for the duration of the pursuit."
The SOP also establishes certain restrictions on vehicular pursuits. It
provides, in part, that "[to] diminish the likelihood of a pursuit, a member
intending to stop a vehicle for any violation of the law shall, when possible and
without creating a threat to public safety, close the distance between the two
vehicles prior to activating emergency lights and an audible device." The SOP
states that while attempting to close the distance and before initiating a pursuit,
the officer "shall recognize" that "they are subject to all motor vehicle laws
governing the right of way."
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Here, the trial court correctly determined that plaintiff failed to present
sufficient evidence to establish defendants engaged in "willful misconduct."
The evidence does not support a finding that the troopers disobeyed a lawful
command or standing order, as explained in Fielder.
To establish that a law enforcement officer engaged in "willful
misconduct" during a police chase, the plaintiff must show that the officer
knowingly and intentionally violated a "specific lawful command of a superior"
or a "specific lawful standing order." Fielder, 141 N.J. at 126. A policy
guideline constitutes such a "lawful command of a superior" or a "lawful
standing order" if it is specific and does not permit the officer to exercise
discretion. See id. at 128 (implying that police department policy would not
constitute a standing order if it "allowed individual officers to exercise
discretion based on their assessment of a given situation").
In this case, it is undisputed that the troopers observed Sterling driving
erratically and at a high rate of speed on a street in a densely-populated area of
Newark. The SOP permits troopers to pursue a vehicle for a motor vehicle
offense if it "is being operated so as to pose an immediate threat to the safety of
any person." Moreover, the SOP expressly gives troopers discretion to
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determine whether the operation of the vehicle presents an immediate threat to
the public safety that is "greater than the threat posed by the pursuit itself."
Nothing in the SOP precluded the troopers from exercising that discretion
and choosing to pursue Sterling's vehicle. Plaintiff failed to present sufficient
evidence to show that, when doing so, the troopers disobeyed any specific lawful
command or standing order. Therefore, a reasonable fact-finder could not
determine that the troopers' exercise of discretion constituted "willful
misconduct" under N.J.S.A. 59:3-14.
Plaintiff argues, however, that the troopers violated the SOP in pursuing
Sterling's vehicle. In support of this argument, plaintiff relies on a report of her
expert, Francis R. Murphy, a forensic consultant in the fields of public law
enforcement and private security. In his report, Murphy concludes the troopers
did not adequately evaluate the increased risk to the general public before
commencing their chase. Murphy states that the SOP requires troopers to
conduct "a mandatory risk assessment" in determining whether to pursue a
vehicle, and must consider, among other factors, population density, traffic, time
of day, speeds, vehicular traffic, and the type of roadways involved.
Murphy asserts that Pereira and Sardanopoli "did not appear to have given
any of the factors due consideration or weight to capture a speeder." He opines
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that this amounts to "a gross deviation" from the NJSP's police pursuit policy
and generally accepted law enforcement practices. He asserts that the four
troopers engaged in a pursuit, without making "any deliberative assessment of
an increased risk to public safety[.]" He states that the troopers' actions were
"intentional violations of the policy."
We are convinced, however, that the troopers' alleged failure to properly
evaluate the risk to the public of engaging in a vehicular pursuit does not
constitute a violation of a specific lawful standing order or command for
purposes of determining if the troopers engaged in "willful misconduct" under
N.J.S.A. 59:3-14(a). The evidence does not support an inference that the
troopers failed to adequately assess the risk to the public of pursuing the Sterling
vehicle.
Moreover, as we have explained, the SOP gives troopers discretion to
engage in a pursuit if they "reasonably believe that the violator poses an
immediate threat to the safety of the public or other police officers which is
greater than the threat posed by the pursuit itself." Under Fielder, an error in
judgment or even a technical violation of such a discretionary guideline does
not constitute "willful misconduct" under N.J.S.A. 59:3-14(a). See Fielder, 141
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N.J. at 128. Therefore, defendants are entitled to immunity under N.J.S.A. 59:5-
2(c).
Plaintiff further argues that there is some evidence in the record that the
troopers failed to comply with the SOP because they allegedly did not activate
the sirens on their vehicles while pursuing Sterling's blue Pacifica. As noted,
the SOP states that a trooper must activate emergency lights and audible devices
when beginning a vehicle pursuit. The record is not clear as to whether the
troopers did, in fact, activate their sirens. Assuming that the troopers did not
activate their sirens when they began their pursuit, there is insufficient evidence
to support the conclusion that they knowingly and willfully failed to do so.
We note that plaintiff also argues that there was sufficient evidence to
support an inference that Sterling knew he was being pursued by the police.
That fact is not, however, material to whether defendants are entitled to
immunity under the TCA. Whether Sterling knew he was being pursued or not,
the evidence does not support a finding that defendants engaged in "willful
misconduct" when they pursued Sterling's vehicle.
We conclude the motion judge correctly determined that there was no
genuine issue of material fact and defendants were entitled to judgment as a
matter of law. R. 4:46-2(c). The record supports the judge's determination that
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defendants were entitled to immunity under N.J.S.A. 59:5-2(c), and plaintiff
failed to present sufficient evidence to show defendants' conduct constitutes
"willful misconduct."
In view of our decision, we need not address defendants' argument that
they are also entitled to immunity under N.J.S.A. 59:3-3 for the good faith
enforcement of the law.
III.
On appeal, plaintiff also argues that the judge erred by reconsidering its
earlier decision denying defendants' motion for summary judgment. The
contention lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
However, we note the following.
Rule 4:49-2 permits a party to move for rehearing or reconsideration of a
judgment or order, and a motion to reconsider an interlocutory order may be
made at any time until final judgment. Johnson v. Cyklop Strapping Corp., 220
N.J. Super. 250, 262-63 (App. Div. 1987). A motion for reconsideration is
committed to the sound discretion of the court, and the court should exercise
such discretion in the interest of justice. Id. at 263-64.
Reconsideration under Rule 4:49-2 is warranted when "(1) the [c]ourt has
expressed its decision based upon a palpably incorrect or irrational basis, or (2)
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it is obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." Cummings v. Bahr, 295 N.J.
Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990)).
Here, the motion judge reconsidered his earlier decision denying
defendant's motion for summary judgment, which was based on the conclusion
that there was a genuine issue of material fact as to whether Sterling knew the
troopers were pursuing him when the collision occurred. The judge later
recognized that defendants had established they were entitled as a matter of law
to immunity under the TCA, regardless of whether Sterling knew he was being
pursued. Therefore, reconsideration of the earlier decision was not a mistaken
exercise of discretion.
Affirmed.
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