                                NOT FOR PUBLICATION WITHOUT THE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-4286-16T3

LENNOX A. CHUNKOO,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

CITY OF NEWARK POLICE
DEPARTMENT, CITY OF
NEWARK, P.O. R. MACIERA,
and SGT. CELSO VELEZ,

          Defendants-Respondents/
          Cross-Appellants,

and

P.O. KYLE W. FERREIRA,

          Defendant-Respondent,

and

SGT. THOMAS ROE, DET. JOSUE
DURAN, CAPT. YABLONSKY, SGT.
M. MILTON, LT. J. ALBERTO, LT. J.
MINTZ, SGT. HILL, DET. M.
MUHAMMAD, DET. HENDERSON,
HASSAN TODD, STANZIALE
CONSTRUCTION, VICTOR
STANZIALE, MARCIA GRIER
and ROBERT HICKS, JR.,

     Defendants.
__________________________________

            Argued October 3, 2018 – Decided April 4, 2019

            Before Judges Ostrer and Mayer.

            On appeal from Superior Court of New Jersey, Law
            Division, Essex County, Docket No. L-3751-12.

            Mitchell J. Makowicz, Jr., argued the cause for
            appellant/cross-respondent (Blume, Forte, Fried,
            Zerres & Molinari, attorneys; Mitchell J. Makowicz,
            Jr., on the briefs).

            Avion M. Benjamin, First Assistant Corporation
            Counsel, argued the cause for respondents/cross-
            appellants City of Newark Police Department, City of
            Newark, and P.O. R. Maciera (Kenyatta K. Stewart,
            Acting Corporation Counsel, attorney; Avion M.
            Benjamin, of counsel and on the briefs).

            Diego F. Navas argued the cause for respondent/cross-
            appellant Sgt. Celso Velez.

PER CURIAM

      This appeal arises out of a 2010 police pursuit that ended when a fleeing

stolen vehicle struck a third-party vehicle at a Newark intersection, severely

injuring its passenger, plaintiff, Lennox A. Chunkoo. He sued the two officers

in the pursuing police vehicle – Kyle Ferreira and R. Maciera – and their

                                                                       A-4286-16T3
                                      2
supervising sergeant, Celso Velez – claiming they were reckless and engaged in

willful misconduct. Plaintiff also sued the City of Newark under a theory of

vicarious liability.1 Maciera, Velez and the City (defendants)2 each claimed

immunity under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to

12-3. On the first day of trial in April 2016, the court granted defendants' oral

motion to dismiss the case.3

        Plaintiff now appeals. Procedurally, he argues that the court should not

have dismissed the case because he was not given sufficient time to respond to

the dispositive motion, in violation of Rule 4:46-1. Substantively, he argues that

dismissal was improper because defendants were not immune under the Act.




1
   Plaintiff voluntarily dismissed his complaint against several other officers,
and the owners of the stolen vehicle. He named the City's police department as
a defendant, although the City contends the department is not a separate entity
subject to suit. Defendant also sued the fleeing driver, who defaulted, and the
driver of the vehicle in which he was a passenger. In his complaint, p laintiff
alleged the department negligently supervised and trained its officers. However,
plaintiff has not briefed that claim and we consider it waived. N.J. Dep't of
Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015).
Instead, plaintiff's sole claim against the City is based on a theory of vicarious
liability.
2
    Ferreira did not answer the complaint and default was entered.
3
    The order dismissed the complaint against Ferreira as well.


                                                                          A-4286-16T3
                                         3
        Defendants cross-appeal from two earlier orders that a previous judge

entered. The first, in 2014, denied a motion for summary judgment on behalf of

all three defendants. The second order, in 2015, denied a summary judgment

motion solely on behalf of the City. The court relied in part on its concern that

the City's corporation counsel had a conflict of interest in simultaneously

representing the officers, although the court never entered an ordering

disqualifying counsel.4 Defendants contend no conflict existed, and the court

erred in denying summary judgment. Velez adds that the trial court, in denying

his earlier motion for summary judgment, erred in relying on an internal affairs

report of the incident, which Velez contends contained inadmissible hearsay.

        Having considered the parties' respective arguments in light of the record

and applicable law, we reverse the summary judgment dismissal as to the

officers, and affirm as to the City.

                                         I.

        We discern the following facts from the record, granting plaintiff "all

reasonable and favorable inferences." Thiedemann v. Mercedes-Benz USA,

LLC, 183 N.J. 234, 240 (2005) (citing Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 536 (1995)).


4
    Shortly before trial, Velez obtained separate counsel.
                                                                          A-4286-16T3
                                         4
        The accident occurred on May 29, 2010. At around 6:45 p.m., Ferreira

and Maciera spotted a Ford Explorer speed through a red light, weave between

vehicles and go against the traffic flow. The Explorer matched the description

of a stolen vehicle that had eluded another officer the previous day. Ferreira

and Maciera activated their sirens and warning lights, but the Explorer did not

stop.    The officers read the license plate to Communications officers and

initiated pursuit.    Twenty seconds later, Ferreira and Maciera received

confirmation that the Explorer was the vehicle from the previous day. Velez

joined the Communications officers shortly after the pursuit started.

        The pursuit lasted five minutes and thirty-seven seconds, and the vehicles

traveled a distance of 4.12 miles. The officers averaged around 44 mph on

streets with a 25 mph posted limit, but their speed varied considerably, as they

passed through fifteen streets and changed direction fourteen times. During the

pursuit, the officers updated Communications about their location. But they said

nothing about their speed, until around five minutes into the pursuit, when

Communications asked about it for the first time. The officers said they were

approaching 50 mph. Ten seconds later, the officers said they were going 70

mph. Soon after, Velez and a Lieutenant in Communications decided to end the




                                                                          A-4286-16T3
                                         5
pursuit. The Lieutenant's command to stop went over the radio. Velez asserted

he gave a similar order, but his transmission was not received.

      The order to stop the pursuit was too late. Within seconds, the fleeing

Explorer entered an intersection against the light, and struck, at a right angle,

the vehicle in which plaintiff was traveling.

      Following an investigation, a sergeant of the Internal Affairs Division

(IAD) concluded that the three officers failed to comply with the City's Vehicle

Pursuit Policy (the Policy). The IAD sergeant found that the officers had good

cause to try stopping the Explorer, because it was driven recklessly. However,

once it became clear that the Explorer would not stop, the Policy required that

the officers terminate the pursuit. The IAD sergeant concluded the officers

failed to properly weigh the need to apprehend the suspect against the risk to

public safety.

      The Policy established guidelines governing vehicular pursuits, in

conformity with the Attorney General's New Jersey Vehicular Pursuit Policy

(the AG Policy). The AG Policy authorized a pursuit if an officer reasonably

believed the suspect had committed a second- or first-degree offense, or certain

other specified offenses, including automobile theft, or if the officer reasonably

believed the suspect posed an immediate threat to public safety.           Before


                                                                          A-4286-16T3
                                        6
engaging in the pursuit, the pursuing and supervising officer must also consider

the risk to public danger and the pursuing officer characteristics.

      Once the decision to pursue is made, the Policy requires officers to

activate their emergency sirens and signals and continually apprise

Communications officers of "pertinent information" including their speed.

            If the decision to initiate and/or continue a pursuit is
            made the officer must:

            1.     Immediately activate the vehicle's emergency
            lights, audible device and headlights. The officer must
            then notify Communications of pertinent information,
            i.e.,

                   a. Reason for the pursuit.

                   b. Direction of travel.

                  c. Identification of the violator's vehicle: year,
            make, model, color, vehicle registration number, and
            other identifying characteristics.

                   d. Number of occupants.

                   e. The speed of the pursued vehicle.

                  f. Other information that may be helpful in
            terminating the pursuit or resolving the incident.

            [Policy, § I(B)(1) (Emphasis added).]

The AG Policy includes an essentially verbatim provision. AG Policy, § II(B) -

(C). The pursuing officer must terminate the pursuit if, among other reasons,

                                                                        A-4286-16T3
                                         7
"the officer believes that the danger to the pursuing officers or the public

outweighs the necessity for the immediate apprehension of the violator," or "[i]f

instructed to do so by a Supervisor." Policy, § I(D).

      The AG Policy requires that supervising officers "ensure, for the duration

of the pursuit, that this policy and agency procedures are followed by all

officers." AG Policy, § V(E). The supervisor must "decide as quickly as

possible whether or not the pursuit should continue." Id. at § V. The supervisor

must be satisfied that the suspect has committed an enumerated offense or

reasonably believes the violator poses an immediate threat to public or officer

safety. Id. at § V(A). The pursuit must also be terminated if the supervisor

concludes "the danger to the pursuing officers or the public outweighs the

necessity for immediate apprehension of the violator." Id. at § V(B). The AG

Policy acknowledges the risk of "protracted" pursuits in densely populated

areas, stating:

             In recognition of the overall population density and
             volume of vehicular traffic in this State, and the
             increased risk attendant to prolonged vehicular
             pursuits, a supervisor shall order the termination of any
             pursuit of protracted duration unless the supervisor
             determines that further pursuit is justified to respond to
             an immediate threat to public safety.

             [Id. at § V(D).]


                                                                          A-4286-16T3
                                         8
The City's Policy does not reiterate these supervisory duties. But, it requires

dispatchers "[w]hen possible," to "keep the field supervisor apprised of the

duration and progress of the pursuit," Policy, § II(B); and the supervisor "shall

decide as quickly as possible whether or not to terminate the pursuit if

necessary." Policy, § III(A).

      Plaintiff obtained reports from two experts. One expert asserted that

Maciera should have provided more information about the pursuit's speed and

the suspect's reckless driving. The other expert asserted that Velez allowed the

pursuit to proceed over an unduly prolonged period of time. Both experts opined

that the pursuit was inherently risky because of the volume of vehicular and

pedestrian traffic on a holiday weekend. They opined that the pursuit should

have been terminated sooner because it was clear the fleeing vehicle was not

going to stop.

      Maciera explained that he initiated the pursuit because he "he felt [the

suspect] was going to end up hurting somebody, and it happened." Maciera said

he thought the suspect would stop if the chase continued, because some suspects

had stopped for other officers before. But, he admitted he had no prior personal

experience in police pursuits.




                                                                         A-4286-16T3
                                       9
      Velez said that he was unfamiliar with Ferreira and Maciera's pursuit

experience.   He listened to the pursuit with Communications.        He said he

allowed the pursuit to continue because the "officer[s] appeared to be in control

of the pursuit while they were communicating and transmitting their location."

However, Velez admitted that he did not know the vehicle's speed until the end

of the pursuit, and speed was an important factor to consider when deciding to

terminate or not.

                                       II.

      We review de novo the grant of summary judgment, applying the same

standard as the trial court. Henry v. New Jersey Dep't of Human Servs., 204

N.J. 320, 330 (2010). We determine whether the moving party has demonstrated

the absence of genuine issues of material fact and whether the trial court has

correctly determined that the movant is entitled to judgment as a matter of law,

owing no deference to the trial court's legal conclusions. N.J. Dep't of Envtl.

Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div. 2015).

                                       A.

      As a procedural matter, the trial court erred in granting defendants' oral

motion for dismissal on the first day of trial. The motion was, in essence, a

motion for summary judgment. See Seoung Ouk Cho v. Trinitas Reg'l Med.


                                                                         A-4286-16T3
                                      10
Ctr., 443 N.J. Super. 461, 471 (App. Div. 2015). As such, it was subject to the

summary judgment rules, Rule 4:46-1 in particular. Id. at 471. That Rule

requires that summary judgment motions be returnable thirty days before the

scheduled trial date. Ibid. The Rule is designed to assure fair notice and an

opportunity to be heard. Id. at 472-74.

      The court's consideration of the defense motion plainly violated t he Rule.

A court may make an exception to the thirty-day requirement for "good cause

shown," but none was shown here. In particular, defendants presented no reason

why they waited until the first day of trial to seek dismissal.

      Nor was the procedure permissible because plaintiff may have been

familiar with defendants' arguments, which they made supporting motions a

previous judge denied in 2014 and 2015. Defendants provided no warning, by

an appropriate notice of motion, that they sought the court's reconsideration of

those orders. The pre-trial conference transcript reflected the unfair surprise to

plaintiff's counsel. We reiterate our disapproval of such summary procedures to

dismiss a cause of action without proper notice and compliance with the Court

Rules. Id. at 472-74; see also Klier v. Sordoni Skanska Constr. Co., 337 N.J.

Super. 76, 83 (App. Div. 2001).




                                                                          A-4286-16T3
                                       11
      In addition to the procedural infirmity of the court's order, we conclude

for the reasons we set forth below, the trial court substantively erred in

dismissing plaintiff's complaint against the officers. Regarding the complaint

against the City, we conclude that summary judgment dismissal should have

been granted in response to the City's prior, properly noticed motion for

summary judgment. Thus, regarding the City, the trial court's procedural error

is of no consequence.

                                       B.

      The Act 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). Although the immunity is broad, it does not extend to acts

of willful misconduct. N.J.S.A. 59:3-14(a) states, "Nothing in this [A]ct shall

exonerate a public employee from liability if it is established that his [or her]

conduct was outside the scope of his employment or constituted a crime, actual

fraud, actual malice or willful misconduct." See Fielder v. Stonack, 141 N.J.

101, 123 (1995) (concluding that N.J.S.A. 59:5-2(b) "provides absolute

immunity, absent willful misconduct"); Tice v. Cramer, 133 N.J. 347, 367




                                                                         A-4286-16T3
                                      12
(1993) (stating that pursuit immunity under N.J.S.A. 59:5-2(b) is "absolute

except in the event of willful misconduct").5

      There is no genuine dispute that the officers here engaged in a pursuit,

implicating 5-2(c) immunity. Although the Act does not define "pursuit," we

held in Torres v. City of Perth Amboy, 329 N.J. Super. 404, 407 (App. Div.

2000) that a pursuit as defined in the AG Policy constitutes a pursuit under 5 -

2(c). The AG Policy defines pursuit as

            an active attempt by a law enforcement officer
            operating a motor vehicle and utilizing emergency
            warning lights and an audible device to apprehend one
            or more occupants of another vehicle when the officer
            reasonably believes that the driver of the fleeing vehicle
            is aware of the officer's attempt to stop the vehicle and
            is resisting apprehension by increasing vehicle speed,
            ignoring the officer or otherwise attempting to elude the
            officer.

Maciera and Ferreira engaged in such a pursuit.

      Thus, the critical issue is whether the officers engaged in willful

misconduct. The concept of willful misconduct "takes its meaning from the

context and purpose of its use." Fielder, 141 N.J. at 124. Willful misconduct

involves "the commission of a forbidden act with actual (not imputed)


5
  Fielder addressed a pursuit before adoption of N.J.S.A. 59:5-2(c). However,
the Supreme Court subsequently considered 5-2(c) a codification of Fielder and
Tice. Alston v. City of Camden, 168 N.J. 170, 178-79 (2001).
                                                                         A-4286-16T3
                                       13
knowledge that the act is forbidden." Ibid. In the police pursuit context, the

Supreme Court said "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 order and (2) knowing of the command or standing

order, knowing that it is being violated and, intending to violate it." Id. at 126.

This definition shields officers from a jury trial when the facts establish mere

"gross negligence or even recklessness." Id. at 127. But see Alston v. City of

Camden, 168 N.J. 170, 185 (2001) (describing willful misconduct as

"intentionally do[ing] some wrongful act" with "reckless indifference to the

consequences") (quoting McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305

(1970)).

      When Fielder was decided, the AG Policy had just been implemented.

The Court described how willful misconduct could be established under the

policy, which constituted a standing order. Id. at 125 n.5. Courts should first

consider whether the policy left a choice to an officer's discretion. Ibid. For

instance, the AG Policy prohibits two police vehicles from engaging in the same

pursuit, unless otherwise directed by supervisors. Ibid. Such a rule leaves no

discretion and a knowing violation would constitute willful misconduct.




                                                                           A-4286-16T3
                                       14
      Conversely, the AG Policy tells an officer that it may pursue a suspect if

the officer "reasonably believes [the suspect] poses an immediate threat to the

public." Ibid. Because the directive gives officers discretion, "a mere error in

judgement under such circumstances, although technically a violation of the

guideline, would not constitute willful misconduct."      Ibid.   In sum, where

officers are allowed decision-making discretion, the law will grant them

substantial leeway and immunity.

      Applying these principles, we are satisfied that plaintiff established a

genuine issue of fact as to whether the officers engaged in willful misconduct.

We recognize that the officers cannot be found to have committed willful

misconduct in initiating the pursuit. Both the AG Policy and the City Policy

gave the officers discretion to engage in the pursuit if they reasonably believed

the suspect committed automobile theft, or the suspect posed an immediate

threat to the public's safety.

      However, the two policies imposed a non-discretionary duty on the two

officers in the vehicle to "provide the speed of the pursued vehicle." The

policies state unqualifiedly that the officers "must" do so. As for Velez, the

supervising officer, the AG Policy directed him to "ensure, for the duration of




                                                                         A-4286-16T3
                                      15
the pursuit, that this policy and agency procedures are followed by all officers."

That obliged Velez to assure the officers reported their speed.

       Yet, neither Maciera nor Ferreira gave a report of their speed for the first

five minutes or so of the pursuit, and Velez did not ask for one. Without this

information, Velez could not make a fully informed decision to terminate the

pursuit, or not. The officers admittedly received training in the pursuit policy.

A jury could reasonably find that the officers knew the standing order required

the pursuing officers to report their speed; the officers knew they were violating

that aspect of the order; and they intended to do so. In sum, the jury could find,

consistent with Fielder, 141 N.J. at 126, that they committed willful misconduct.

There is also sufficient evidence in the record for a jury to conclude that had the

officers timely complied with the order to report their speed, the pursuit would

have been terminated sooner. On this basis, we reverse summary judgment as

to the officers. 6




6
   We recognize that plaintiff's experts also generally criticize the officers'
balancing of the risks to the public safety with the benefits to law enforcement,
in prolonging the pursuit. However, that balancing is ordinarily the sort of
judgment call that the Supreme Court concluded would not constitute willful
misconduct, "even though technically a violation of the guideline." Id. at 125
n.5.
                                                                           A-4286-16T3
                                       16
      While we discern sufficient evidence in the record to create a genuine

issue as to the officers' willful misconduct, we reject plaintiff's contention that

the officers' immunity may also be overcome by proof that they acted recklessly

or without good faith. Plaintiff cites N.J.S.A. 59:3-3, which provides immunity

for good faith execution or enforcement of the law.         Although good faith

immunity under N.J.S.A. 59:3-3 and the more extensive immunity under

N.J.S.A. 59:5-2 both apply to police pursuits, the Supreme Court based its

holding on the more extensive immunity.           Fielder, 141 N.J. at 132-33.

Consequently, plaintiff must prove willful misconduct. Id. at 123. Proof of

mere recklessness or lack of good faith is not enough, although "[l]ack of good

faith may be factually relevant . . . to the state of mind that is part of the

definition of willful misconduct." Id. at 126.

                                        C.

      The trial court erred in denying the City's motions for summary judgment

in 2014 and 2015. As we have discussed, plaintiff seeks to hold the City liable

solely on the basis of vicarious liability. A public entity is not liable "for an

injury resulting from an act or omission of a public employee where the public

employee is not liable." N.J.S.A. 59:2-2. As we have discussed at length, the

only basis for establishing an employee's liability in a pursuit case is proof of


                                                                           A-4286-16T3
                                       17
willful misconduct. However, a public entity is also "not liable for the acts or

omissions of a public employee constituting a crime, actual fraud, actual malice,

or willful misconduct." N.J.S.A. 59:2-10. Thus, the only basis for establishing

an employee's liability in a pursuit case precludes the City's vicarious liability.

See Fielder, 141 N.J. at 130. Therefore, the City was entitled to summary

judgment as a matter of law.

                                        D.

      The corporation counsel's dual representation of officers and the City

should not have been a basis for denying the City's summary judgment motions

in 2014 and 2015. The City's motions did not present "a substantial risk that the

[corporation counsel's] responsibilities to the public entity would limit the

lawyer's ability to provide independent advice or diligent and competent

representation to either the public entity or the [other] client[s]," the officers.

RPC 1.8(k). Counsel could freely argue the legal point that the City would be

immune even if the officers engaged in willful misconduct without impairing in

any way the officers' contention that they did not.         Nor would disputing

plaintiff's claim of willful misconduct by the officers impair the City's

contention that it was immune. See In re Petition for Review of Opinion 552 of

Advisory Comm. of Prof'l Ethics, 102 N.J. 194, 205 (1986) (stating that "joint


                                                                           A-4286-16T3
                                       18
representation will be permissible if it does not appear . . . that the claims against

the governmental entity and its individual employees will result in different and

inconsistent defenses").

      Furthermore, the corporation counsel stated to the court that the City had

agreed to indemnify the officers. "[W]here compensatory damages are claimed

alone," as they are here, "no conflict will be found to exist if the responsibilit y

for effectuating or providing such relief devolves upon the governmental body."

Id. at 200. No further comment on the conflict of interest issue is warranted. R.

2:11-3(e)(1)(E).

                                         E.

       Finally, we briefly address Velez's contention on cross-appeal that the

trial court, in denying his motion for summary judgment in 2014, improperly

relied on the IAD report.      He argues the IAD sergeant's conclusions were

inadmissible hearsay that did not satisfy a hearsay exception.

      The IAD sergeant's conclusions are not essential to our holding that the

trial court erred in granting the officers summary judgment. The evidence

regarding the reporting of the officers' speed and the role it played in prolonging

the pursuit, is found in the radio communications transmitted during the pursuit,

and the officers' deposition testimony. In any event, on the eve of trial in 2016,


                                                                              A-4286-16T3
                                         19
another trial judge determined that the report should be excluded under N.J.R.E.

403. Plaintiff did not cross-appeal from that determination. Therefore, we need

not reach Velez's hearsay-based objections to the IAD sergeant's conclusions

about the appropriateness of the officers' actions.

                                        F.

      In sum, we affirm summary judgment as to the City, and reverse summary

judgment as to Maciera, Velez, and Ferreira, and remand. We do not retain

jurisdiction.




                                                                        A-4286-16T3
                                       20
