Estate of Gonzalez v. Jersey City

Appellate Docket No.: A-5751-17T2

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

In an unpublished opinion, the Appellate Division of New Jersey heard argument on the issue of a dismissed complaint brought against police who left a pedestrian at a scene where the pedestrian was later struck and killed by a car.

In Gonzalez, police were dispatched to a motor vehicle accident. At the scene, Gonzalez’s truck spun out of control and crashed.  The police helped him push the truck out of traffic.  The police offered Gonzalez a ride to the gas station, but Gonzalez refused. The police left Gonzalez at the scene.

Gonzalez was later struck and killed by a vehicle at a spot not far from where the police left him.  Gonzalez’s estate brought a lawsuit against the police for leaving Gonzalez at the scene, and causing him to be struck and killed.  Gonzalez’s autopsy revealed he was two and a half times above the legal limit for blood alcohol. Gonzalez’s estate argued that the police left Gonzalez at the scene while he was intoxicated and unable to get to safety himself.  The police stated that Gonzalez showed no signs of visible intoxication.

The trial court dismissed the complaint on summary judgment and held the police had immunity under the Tort Claims Act.  The estate appealed.

The Appellate Division reversed the trial court’s dismissal of the complaint and allowed the case to go to a jury.  The case came down to the difference of a discretionary act – one in which the police used their own personal judgment – and a ministerial act – one in which the police are following their duty and not exercising their own judgment.  Under the Tort Claims Act, if a police officer carries out their ministerial duties negligently, they can be held liable. To the contrary, if it is deemed the police officers were acting discretionary, they will be immune from liability.

An example of ministerial duty is when officers are called to a motor vehicle accident.  In that instance, until the motor vehicle accident is cleared, the officers are responding under their ministerial duties.  An example of discretionary duty is when officers respond to an intoxicated individual in public. The officers escort the individual to a safe location, determine the person is not a danger to themselves, and later the individual wanders into traffic and his struck by a car. The officers would be immune because their ministerial duties ended after getting the individual to safety, then they used their discretion to determine whether the person was a danger to themselves.

In this case, the Appellate Division found that there were too many factual discrepancies to dismiss the case on summary judgment. For instance, Gonzalez’s intoxication and the police’s statements that they did not believe Gonzalez was intoxicated at the time are issues that a jury must decide.  Once a jury figures out the facts of the case and who is telling the truth, then jury will also decide whether the officers were acting under ministerial duties or discretionary when leaving Gonzalez at the scene.

The Tort Claims Act is a shield to control the amount of lawsuits that are brought against public officials and entities.  If you or someone you know has been injured by a public official or entity, contact Hark & Hark today. Our experienced attorneys have dealt with the Tort Claims Act many times and understand what is necessary to bring a successful lawsuit against public officials for personal injury.

It should also be noted that under the Tort Claims Act, a notice must be sent within 90 days of the date of injury.  If this step is not performed, you cannot bring a lawsuit against a public official. Do not hesitate. Contact us today!

For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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