On June 25, 2005, the defendant, a police officer with the Point Pleasant Beach Police Department (“Department”), hit the plaintiff’s vehicle from behind.  Allen v. Flynn, A-6254-09 (App. Div. Aug. 8, 2011).  Plaintiff alleged that at the time of the accident the defendant was intoxicated.  In an amended complaint, the plaintiff added defendant Waterview Pavilion, Inc. (“Waterview”) and other defendants, as he alleged that the defendant became intoxicated at a wedding reception held at Waterview’s facility.

In turn, Waterview filed a third-party complaint against the Department and six of its members, claiming that the individuals had attended the reception, knew that the defendant was intoxicated, and failed to take appropriate police action to prevent him from driving.  Waterview also alleged that the Department was liable for the conduct of its employees.  Waterview based its allegations on the deposition testimony of one of the individual third-party defendants, the Chief of Police, who stated that at the reception he told third-party defendant William Ippolito to “make sure [defendant] doesn’t drive or attempt to drive tonight” and that Ippolito assured him that would not happen.  Waterview also based its position on Ippolito’s testimony that he told the defendant not to drive but did not do anything further to prevent him from doing so.

The trial court granted the third-party defendants’ motion to dismiss, ruling that the Department and its members were immune from suit under the Tort Claims Act (“TCA”).  The TCA provides several types of immunity to public employees and entities.  Specifically, the court relied on N.J.S.A. 59:3-5, which states that “[a] public employee is not liable for an injury caused by his … failure to enforce any law[,]” and N.J.S.A. 59:2-4, which provides the same immunity to a public entity.  The Appellate Division granted Waterview’s motion for leave to appeal and affirmed the dismissal of the third-party complaint as to all the third-party defendants except for Ippolito and the Department (as to Ippolito’s conduct).

Waterview raised two arguments on appeal.  First, it asserted that it had satisfied the “special circumstances” exception to the TCA’s immunity.  The Appellate Division determined that this argument had “no merit” because in prior cases it had ruled that there was no such exception.

Second, Waterview argued that the Chief of Police sought to enforce the law by directing Ippolito to not permit the defendant to drive; therefore, the immunity provided for failing to enforce the law was not applicable.  In considering that argument, the Appellate Division noted that although a police officer will be immune from suit for failing to enforce the law, he or she is not immune from damages that are caused by his or her negligent enforcement of the law.  The court proceeded to review precedent that had discussed that distinction, as well as cases that explained the differences between the immunity provided by the TCA for the exercise of discretion by an officer and the lack of immunity available when an officer negligently performs a ministerial duty.

Applying those principles, the Appellate Division concluded that “the motion judge erred in granting summary judgment with respect to the claims against Ippolito, and the Department as they relate to Ippolito, on the basis of immunity for failing to enforce the law.  … [T]he Chief of Police, instructed his subordinate Ippolito to enforce the law by making sure [defendant] did not drive while he was intoxicated and, arguably, by taking [defendant’s] keys.  That instruction did not call for Ippolito to exercise the type of discretion immunized by N.J.S.A. 59:3-2(a), but was more akin to the type of ministerial acts discussed in [relevant caselaw].”  However, the Appellate Division affirmed the dismissal as to the other third-party defendants because Waterview had not articulated a similar claim against them.