                                NOT FOR PUBLICATION WITHOUT THE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-5751-17T2

ESTATE OF HIRAM A. GONZALEZ,
by IRAIDELIZ GONZALEZ,
Administrator Ad Prosequendum,

         Plaintiff-Appellant,

v.

THE CITY OF JERSEY CITY,
THE JERSEY CITY POLICE
DEPARTMENT, POLICE OFFICER
LEON TUCKER, JR., and POLICE
OFFICER SAAD HASHMI,

         Defendants-Respondents,

and

EMAN S. AHMED and
ELHAM M. MANSOUR,

     Defendants.
_______________________________

                   Argued February 4, 2020 – Decided April 17, 2020

                   Before Judges Yannotti, Hoffman and Currier.
            On appeal from the Superior Court of New Jersey, Law
            Division, Hudson County, Docket No. L-2857-16.

            Lawrence D. Minasian argued the cause for appellant
            (Greenberg Minasian, LLC, attorneys; William Seth
            Greenberg and Lawrence D. Minasian, on the briefs).

            Philip Samuel Adelman, Assistant Corporation
            Counsel, argued the cause for respondents (Peter J.
            Baker, Corporation Counsel, attorney; Philip Samuel
            Adelman, on the brief).

PER CURIAM

      In this personal injury action, we consider the conduct of defendant police

officers regarding decedent Hiram Gonzalez under the New Jersey Tort Claims

Act (TCA), N.J.S.A. 59:1-1 to 12-3. The trial court concluded the police were

immune from liability to Gonzalez because their actions, based upon

discretionary decisions, were performed in good faith and therefore protected

under N.J.S.A. 59:3-3.

      The trial court misapprehended the law in its grant of summary judgment

to defendants. Here, because the officers were called to the scene of a motor

vehicle accident, the officers' duty was ministerial in nature – they had a

ministerial duty to render assistance to Gonzalez. A public employee is not

immunized under the TCA if he or she was negligent in carrying out a ministerial

duty. The record reflects multiple disputed issues of material fact regarding the


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                                       2
manner in which the officers executed their duty, precluding the entry of

summary judgment. We reverse.

      On August 3, 2014, at 2:26 a.m., defendants, Jersey City Police Officers

Leon Tucker, Jr. and Saad Hashmi (defendants or officers) were dispatched to a

motor vehicle accident on the Lincoln Highway Bridge in Jersey City. The

bridge, connecting Newark and Jersey City, has three lanes of traffic in each

direction separated by a concrete barrier. In their respective depositions, the

officers differed in their recollection of the scene. Hashmi recalled Gonzalez's

pickup truck being stopped in the left shoulder and left lane, perpendicular to

the lanes of travel. Tucker thought the vehicle was facing oncoming traffic with

its tires against the curb.

      As the officers approached the car, Hashmi said he observed Gonzalez

sitting in the driver's seat talking on his cell phone. Tucker said Gonzalez was

out of the car.

      Gonzalez told Tucker he was on his way to the Holland Tunnel when his

truck spun out of control and he could not get it to reverse. The officers were

able to push the truck to face the proper direction of travel by shifting it into

neutral and steering it. But because the vehicle would not otherwise move, they

requested a tow truck.


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                                       3
      When the tow truck arrived, Tucker asked the driver if he would give

Gonzalez a ride, as it was common for drivers to do.1 Without giving any reason,

the tow truck driver said no. Tucker then offered to drive Gonzalez to a nearby

Shell station.2 Gonzalez refused, stating "I'm not riding with no Jersey City

cops."

      Instead, Gonzalez said he was going to wait for his "brother," David

Martinez, a Newark police officer. Neither officer recalled speaking to Martinez

that night. Tucker did recall telling Gonzalez that the area behind the guardrail

on the bridge was not a safe place to wait.

      Hashmi stated the officers waited fifteen to twenty minutes for Martinez

to arrive. After that point, he said Tucker reached out to dispatch to ask if they

should stay with Gonzalez or leave. Both officers testified that when Tucker

asked the dispatcher whether it was alright to stay with Gonzalez until Martinez

arrived, he was told to "resume [his] patrol."




1
  Hashmi's recollection was that Gonzalez first asked the driver for a ride. When
the driver said no, Tucker then asked the driver several times to take Gonzalez
with him to the tow yard.
2
   The Shell station was located at the intersection of Route 440 and
Communipaw Avenue, approximately a half mile east of where the officers left
Gonzalez.
                                                                         A-5751-17T2
                                        4
      However, in the transcription of the 3:24 a.m. call made to dispatch,

Tucker states: "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 into the car

with us to head to the shell station." Dispatch replies: "ok."

      When the officers left, Gonzalez was standing on a dirt path behind a

guardrail off the right side of the bridge. The officers felt that location was safe.

During their time spent with Gonzalez, neither officer detected any signs that he

was under the influence of alcohol or illegal substances. 3

      Both officers denied seeing any damage to Gonzalez's truck. However,

photographs show damage to the left front and rear bumpers.

      David Martinez was also deposed.          He stated he was not related to

Gonzalez but knew his sister. He recalled seeing Gonzalez approximately four

times. Each time they met, they consumed alcohol and Martinez stated Gonzalez

was drunk on each occasion. He described Gonzalez as "belligerent" with an

"irate attitude," "cursing at people" and "angry" when he is drunk. Gonzalez

had also told him he did not like police officers.




3
  The photographs taken after the accident show a large half-empty bottle of
cognac in the Gonzalez pickup. The officers were not questioned about this
photograph or whether they saw the bottle in the truck when they moved it.
                                                                            A-5751-17T2
                                         5
      At approximately 3 a.m. on August 3, 2014, Martinez recalled getting a

phone call from Gonzalez's sister, telling him Gonzalez was drunk, he had been

pulled over and needed a ride. She asked Martinez if Gonzalez could call him.

Martinez agreed.

      Immediately thereafter, Martinez received a call from Gonzalez. Martinez

said Gonzalez was angry and yelling and told him "Listen, I got f***ing pulled

over. These f*** cops are messing with me. . . . And I think they're going to

arrest me. . . . I didn't do nothing wrong." Gonzalez also said he had been

drinking.

      According to Martinez, neither Gonzalez nor the officer told Martinez

why Gonzalez had been pulled over; Martinez did not ask. Gonzalez told him

he was on the Pulaski Skyway and the tow truck driver would not give him a

ride. Martinez said he would come pick him up.

      Martinez asked Gonzalez to hand the phone to one of the officers.

Martinez did not know who he spoke to, but he did recall telling the officer that

he was a Newark police officer and asking if Gonzalez was under arrest. The

officer told Martinez that Gonzalez was not under arrest, but he needed a ride

home. He also informed Martinez that they had offered Gonzalez a ride which




                                                                        A-5751-17T2
                                       6
he had refused. While Martinez was talking to the officer, he could hear

Gonzalez yelling that he was not going to ride with "Jersey City cops."

      According to Martinez, the officer told him "Listen, he's been drinking a

little bit. . . . He can't drive. We got to tow his vehicle. It'll be nice if somebody

could come pick him up." Martinez said he would pick Gonzalez up in about

ten minutes. Martinez assumed the officers would wait with Gonzalez for him

to arrive although he did not say that to the officer. Before hanging up, Martinez

spoke with Gonzalez again and told him he would be there in about ten minutes.

      Martinez testified that he drove to the Pulaski Skyway Bridge and went

up and down the bridge about five times looking for Gonzalez. He also tried to

call Gonzalez a number of times but there was no answer. When Martinez called

Gonzalez' s sister to tell her he could not find Gonzalez, she told him not to

worry about it, so Martinez went home. Martinez said he assumed Gonzalez

either called someone else for a ride or he was arrested.

      While speaking with Gonzalez, Martinez thought he was intoxicated. He

deduced this because of his prior experiences with Gonzalez when he had seen

him behaving in a belligerent manner while drinking. He conceded that if

someone had never met Gonzalez before, one could conclude that he was just an

angry person and not necessarily intoxicated.


                                                                             A-5751-17T2
                                          7
      Martinez was not told there had been an accident or that the truck was

inoperable. He assumed it was a motor vehicle stop and the officers were not

permitting Gonzalez to drive.

      At 3:42 a.m., 9-1-1 received a call reporting a motor vehicle accident on

the eastbound side of the Lincoln Highway Bridge. Gonzalez had been struck

by defendant Eman Ahmed4 as she was driving her car in the middle lane on the

eastbound side of the bridge.

      During her deposition, Ahmed stated it was drizzling and she was using

her wipers. She first noticed Gonzalez when he was about four feet from her

vehicle – walking in a westbound direction towards her car in the middle of the

road. Ahmed applied her brakes and swerved her car to the left in an attempt to

avoid hitting Gonzalez. However, the right passenger side of Ahmed's vehicle

struck Gonzalez, killing him. The investigating officers estimated that the

accident occurred approximately 1500 feet east of where the officers had left

Gonzalez twenty minutes earlier. Gonzalez was 900 feet away from the Shell

station.




4
  Plaintiff resolved its claims with defendants Ahmed and Mansour, the owner
of the vehicle, prior to the summary judgment motion.
                                                                       A-5751-17T2
                                      8
      Prior to Ahmed, occupants of another car travelling on the bridge had

noticed Gonzalez on the highway. Andrew Rodriguez stated he saw Gonzalez

in the right-hand lane walking into the middle of the road.      He described

Gonzalez as "stumbling," and not of his "proper mind." He assumed Gonzalez

was drunk. Rodriguez moved to the left to avoid striking Gonzalez. As he did

so, he saw a car coming up behind him on the right side, pass his car and hit

Gonzalez.

      The autopsy performed on Gonzalez revealed that his blood alcohol level

was 0.215. Plaintiff's expert toxicologist opined that Gonzalez's blood alcohol

level was 0.20 when he encountered the officers on the bridge. At this level,

two-and-a-half times higher than the legal limit for driving, the toxicologist

concluded that Gonzalez would have been visibly intoxicated.

      Defendants moved for summary judgment, contending they were immune

from liability under several provisions of the TCA – N.J.S.A. 59:2-4 and

N.J.S.A. 59:3-5, absolute immunity for the failure to adopt or enforce the law;

N.J.S.A. 59:2-3(a) and N.J.S.A. 59:3-2(a), absolute immunity for injuries

resulting from the exercise of judgment or discretion; N.J.S.A. 59:5-5,

unqualified immunity from claims for the failure to arrest or detain; N.J.S.A.

59:5-4, immunity for claims alleging the failure to provide protection; and


                                                                       A-5751-17T2
                                      9
N.J.S.A. 59:3-3, qualified immunity for acts performed in good faith to enforce

the law. Plaintiff asserted the acts taken by the officers were ministerial and,

under N.J.S.A. 59:2-3 and N.J.S.A. 59:3-2, the officers and the public entities

were not immunized for the negligent performance of a ministerial act.

      In a written opinion and order of August 8, 2018, the trial judge granted

summary judgment, finding the officers had conducted their duties in good faith.

The judge relied on Morey v. Palmer, 232 N.J. Super. 144, 152-53 (App. Div.

1989), in concluding the officers had no duty to remove Gonzalez from the

highway. He stated, "They offered to give Mr. Gonzalez a ride and secured a

ride with a family member before leaving him behind the guard rail." Therefore,

defendants' actions were immunized under N.J.S.A. 59:3-3. The judge further

found the officers were not required to take Gonzalez to an intoxication

treatment facility under N.J.S.A. 26:2B-16 because there were no outward signs

that he was intoxicated.

      On appeal, plaintiff contends the trial court erred in granting summary

judgment because under the TCA, a police officer may be liable for the negligent

performance of his or her ministerial acts; therefore, the officers were not

immune from liability under any of the provisions of the TCA. Plaintiff further




                                                                         A-5751-17T2
                                      10
asserts the court erred in finding the "officers had the discretion to abandon an

intoxicated victim of a motor vehicle accident on a dark, rainy highway bridge."

      In our de novo review of an order granting summary judgment, we apply

the same standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516,

529 (2019) (quoting Davis v. Devereux Found., 209 N.J. 269, 286 (2012)).

Summary judgment must be granted "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). To determine whether there was a genuine issue of fact, we "consider

whether the competent evidential materials presented, when viewed in the light

most favorable to the non-moving party in consideration of the applicable

evidentiary standard, are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 523 (1995).

      In granting summary judgment, the motion judge determined that

defendants enjoyed the benefits of the TCA. The TCA extends immunity to

public employees for various activities including: the exercise of judgment or

discretion vested in him or her, N.J.S.A. 59:3-2; the good faith execution or


                                                                          A-5751-17T2
                                       11
enforcement of law, N.J.S.A. 59:3-3; and the failure to adopt or enforce any law,

N.J.S.A. 59:3-5. These specific grants of immunity are subject to a general

exception that withholds immunity when the public employee's conduct "was

outside the scope of his [or her] employment or constituted a crime, actual fraud,

actual malice or willful misconduct." N.J.S.A. 59:3-14(a). Also, the TCA does

not "exonerate a public employee for negligence arising out of his [or her] acts

or omissions in carrying out his [or her] ministerial functions." N.J.S.A. 59:3-

2(d).

        Plaintiff asserts the evidence presents numerous issues of fact that

precluded the grant of summary judgment. Plaintiff further contends that when

the officers responded to the scene of a motor vehicle accident, they were

performing a non-discretionary ministerial act – the requirement to render aid to

Gonzalez. The duty to assist Gonzalez included staying with him until he was

safe. In failing to do so, and instead leaving Gonzalez – an intoxicated person

on a dark bridge on a heavily-traveled highway in the early morning hours of a

rainy night – the officers were negligent in the execution of their duties.




                                                                          A-5751-17T2
                                       12
      Defendants contend that the officers engaged in discretionary conduct

because they used their judgment in handling a publicly intoxicated person.5

They assert there were no disputes of any material facts.

      A "discretionary act . . . calls for the exercise of personal deliberations

and judgment, which in turn entails examining the facts, reaching reasoned

conclusions, and acting on them in a way not specifically directed." S.P. v.

Newark Police Dep't, 428 N.J. Super. 210, 230 (App. Div. 2012) (alteration in

original) (citation omitted). "In contrast, a ministerial act is 'one 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.'" Id. at 231 (quoting Morey, 232 N.J.

Super. at 151).

      We have stated that police have a duty to respond to accident scenes and

render assistance. Praet v. Sayreville, 218 N.J. Super. 218, 223 (App. Div.

1987). In executing this duty, police officers "are as much liable for their

negligence . . . as they would be for the negligent performance of any other



5
   Although both officers stated they did not detect any signs of intoxication,
defendants conceded Gonzalez was intoxicated for the purposes of the summary
judgment application and the motion judge presumed Gonzalez was intoxicated
in his consideration of the case.
                                                                           A-5751-17T2
                                        13
administrative or ministerial duty imposed upon them by their employment."

Ibid.

        Here, defendant officers both stated they were dispatched to a motor

vehicle accident. Therefore, their response to the 911 call and arrival at the

scene was a ministerial duty and triggered an exposure to liability if their

performance of the ministerial duty was negligent. Suarez v. Dosky, 171 N.J.

Super. 1, 9-10 (App. Div. 1979). "[P]olice officers do not enjoy immunity for

negligent performance of ministerial duties." Morey, 232 N.J. Super. at 149

(citing Praet, 218 N.J. Super. at 223).

        The motion judge did not make a determination whether the officers'

actions regarding Gonzalez were ministerial or discretionary.         He instead

compared the circumstances to the factual presentations in Morey and Suarez

and concluded that Morey was analogous. We disagree and conclude Suarez is

the controlling precedent.

        In Suarez, state troopers responded to an accident which occurred at 10:30

p.m. on Interstate 80. 171 N.J. Super. at 5. The vehicle was inoperable, and the

troopers called a tow truck. Id. at 5-6. The family requested the troopers escort

them from the highway or call for a taxi. Id. at 6. The officers refused. Ibid.

After the troopers left, the family began to walk along the highway toward an


                                                                         A-5751-17T2
                                          14
exit. Ibid. The mother and a small child were struck and killed by passing cars

minutes after the officers refused to assist them. Ibid.

      In our decision affirming the jury verdict in favor of plaintiffs, we found

the troopers were performing a ministerial duty in responding to the accident,

which included rendering aid. Id. at 9-11. Therefore, N.J.S.A. 59:5-4 was not

applicable and the TCA did not provide them immunity from liability for the

"unfortunate results of their negligently executed ministerial duties." Id. at 9-

10 (citation omitted); see also Ojinnaka v. City of Newark, 420 N.J. Super. 22,

34-37 (Law. Div. 2010) (finding that a police officer has a duty to render

emergency assistance to victims of automobile accidents and any negligence in

the officer's actions is not immunized under N.J.S.A. 59:5-4 or as a discretionary

decision under N.J.S.A. 59:2-3(a) or 59:3-2(a)).

      In contrast, in Morey, the police were not responding to a motor vehicle

accident.   232 N.J. Super. at 147.     There, they reported to a call that an

intoxicated pedestrian was in the middle of the road causing a "traffic hazard."

Ibid. Upon arrival at the scene, the officer observed a person staggering in the

middle of the road. Ibid. The officer concluded the person was intoxicated and

ordered him to leave the roadway. Ibid. The person did so. Ibid. The officer

left the scene. Ibid. Over three and a half hours later, the same individual was


                                                                         A-5751-17T2
                                       15
struck and killed by a truck – a quarter of a mile from the place where the officer

had earlier encountered him. Ibid.

      Plaintiff's administratrix filed suit against the police officer and the

municipality. Ibid. The trial court granted the defendants' summary judgment

motion. Ibid.

      On appeal, this court affirmed, finding the police officer acted within his

discretion when he determined the decedent was not incapacitated and ordered

him out of the roadway. Id. at 150, 154-55. The court noted that the officer

"was not responding to an accident scene. Decedent was evidently able to

understand, respond to and comply with [the officer's] orders to leave the

highway." Id. at 150. We stated that the officer "was only duty-bound to remove

decedent to an intoxication treatment facility if he determined that decedent was

incapacitated." Ibid. (emphasis in original).

      In analyzing the officer's conduct in Morey under the TCA, we found the

officer's conduct was immunized under N.J.S.A. 59:3-3 (extending immunity to

public employees for the good faith execution or enforcement of law), N.J.S.A.

59:3-2(d) (extending immunity to public employees for the exercise of

discretion of how to utilize or apply existing public resources in the face of

competing demands) and N.J.S.A. 59:3-5 (extending immunity to public


                                                                          A-5751-17T2
                                       16
employees for the failure to adopt or enforce laws). Id. at 152, 154. We also

considered the specific immunity under N.J.S.A. 26:2B-16. Id. at 154. We

reasoned that, "even if [the officer] was negligent in determining whether

decedent was incapacitated, so long as he made that determination in good

faith[,] N.J.S.A. 59:3-3 . . . protect[s] him from liability."      Ibid. (citation

omitted).

      As noted, the trial judge relied on Morey and found defendants' actions

were immunized under N.J.S.A. 59:3-3 because the officers performed their

duties in good faith. However, Morey was not the applicable law as it does not

address the ministerial duty owed by police officers when responding to a motor

vehicle accident.    Moreover, N.J.S.A. 59:3-3 is inapplicable under these

circumstances where the officers were performing ministerial acts. There was

no issue presented here of executing or enforcing a law. See Del Tufo v. Twp.

of Old Bridge, 278 N.J. Super. 312, 326 (App. Div. 1995).

      The controlling issue is whether the officers satisfied their ministerial duty

to render assistance to Gonzalez after his motor vehicle accident. In light of the

extensive conflicting factual evidence regarding Gonzalez's behavior, his

conversations with the officers and Martinez, the circumstances of the

inoperability of his car, the officers' version of their exchange with the


                                                                           A-5751-17T2
                                       17
dispatcher and the assessment of the area where Gonzalez was left, a

determination whether the officers executed their ministerial duties negligently

could not be made on the summary judgment record.          That issue must be

resolved by a factfinder at trial. For the reasons stated, the immunities under

N.J.S.A. 59:2-3(a), 59:2-4, 59:3-2(a) and (d), 59:3-3, 59:3-5, 59:5-4 and 59:5-5

are not available to defendants.

      Reversed and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.




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                                      18
