APPEARS COUNSEL. PHILIP S. ADELMAN: PHILIP S. ADELMAN, FOR JERSEY CITY LAW
DEPARTMENT, CITY OF JERSEY CITY PETITIONERS CITY OF JERSEY CITY, JER CITY CITY MOOED AND
POLICE OFFICERS TUCKER AND HASHMI. ROBERT F. RENAUD: ROBERT F. RENAUD, RENAUD
DEAPPOLONIO, FOR NEW JERSEY LEAGUE OF MUNICIPALITIES AND NEW JERSEY INSTITUTE OF
LOCAL GOVERNMENT ATTORNEYS. LAWRENCE D. MINASIAN: RS (FIRM (GONZALEZ.
RESPONDENT. KENNETH G. ANDRES, JR.: MR. KENNETH G. ANDRES, JR.:
ANDRES & BERGER, FOR NEW JERSEY ASSOCIATION FOR JUSTICE PT IS. CHIEF JUSTICE
RABNER: GOOD MORNING COUNSEL AND WELL CUP, MR. ADELMAN PLEASE GO AHEAD. PHILIP
S. ADELMAN: 1ST I WANT TO SAY BEFORE I BEGIN THANK YOU FOR THE OPPORTUNITY TO SPEAK AND
WOULD LIKE TO RESERVE THREE MINUTES FOR REBUTTAL. CHIEF JUSTICE RABNER:
THAT'S FINE GDZ. LAWRENCE D. MINASIAN: THANK YOU THE ISSUES BEFORE THIS
COURT ARE WHETHER THE OCCURRENCE OF A CAR ACCIDENT DEEMS ALL CONDUCT OF RESPONDING
OFFICERS AS MINIMUM MATERIAL OR SOME OF THEIR ACTS LIKE HANDLING THE PUBLICLY INTOXICATED
DRIVER LIKE IN THIS CASE ARE CONSIDERED TO BE DISCRETIONARY. AND IMMUNE FROM LIABILITY.
THE APPELLATE DIVISION IN THE MUR MOUR MAURER REV PALMER CASE THESE SAKTS
ARE DISCRETIONARY AND IMMUNE FROM LIABILITY UNDER THE NEW JERSEY TORT CLAIMS ACT, 59:2
-3, 33-2 AND 3-3 AND ARE N.J.S.A. 26:2B-16. MAURER REGUFS THE OUTCOME OF THE MATTER NAKT
S IN BOTH CASE ARE VIFRJ WL IDENTICAL SINCE STS OFFICERS IN BOTH CASES HANDLED PUBLICLY
INTOXICATED PERSONS. THAT, THOSE ACCIDENTS IN AND OF THEMSELVES WERE DISCRETION NAESH
(THOSE ACTS (PRN AND THE MAURER RECOURT FOUND THERE WAS MANY MINE IN THE THE PLAINTIFF
NN CASE ADDS MITS THE INTOXICATED DRIVER TURNED PEDESTRIAN AND THE TASK OF THE DETERMINING
SOMEONE'S CAPACITY LIKE INTOXICITY REQUIRES THE USE OF DISCRETION SO THE TRIAL COURT PRESUMES
MR. GONZALEZ WAS INTOXICATED AND WAS INVOLVED IN A 1 CAR ACCIDENT AND THE PLAINTIFF'S
ADMITTED HE WAS NOT INCAPACITATED. WHEN THE OFFICERS ARRIVED, THEY DETERMINED THE CAR
WAS NOT OPERABLE AND HAD IT TOWED. THEY ARE DETERMINED THAT MR. GONZALEZ DID NOT NEED
ANY MEDICAL TREATMENT AND HE DIDN'T ASK FOR ANY AND THERE WAS REALLY NO BASIS TO DETAIN
OR ARREST HIM. SO AT THAT POINT, THEY HAD THE CAR TOWED FRN IT WAS AT THAT
POINT AFTER THE CAR WAS TOWED WHERE THEIR ACTS WERE CONSIDERED TO BE DISCRETIONARY. THE
OFFICERS USED THEIR DISCRETION FIRST TO ASK THE TOW TRUCK DRIVER TO GIVE MR. GONZALEZ
A RIDE WHICH HE DECLINED SEVERAL TIMES MUCH THE OFFICERS THEN TRIED REPEATEDLY TO GIVE
MR. GONZALEZ A RIDE WHICH HE ALSO DECLINED AND HE EXPRESSLY STATED THAT HE DOES NOT LIKE
COPS AND DIDN'T WANTS HELP. SO INSTEAD HE ARRANGED FOR A FRENTD TO PICK HIM UP. SINCE
MR. GONZALEZ REFUSED THEIR HELP THE OFFICERS USED THEIR DISCRETION TO FORM 38 ANOTHER
PLAN, THEY KNEW THEY COULDN'T PUT HIM IN HIR CAR BECAUSE IT WOULD VIOLATE HIS CIVIL RIGHTS.
THEY CONFIRMED HE WAS BEING PICKED UP BY HIS FRIEND, THEY ENSURED HIS SAFETY BY PUTS HIM
ON A PEDESTRIAN WALKWAY BEHIND A GUARDRAIL. THEY FOUND HE WAS NOT A DANGER TO HIMSELF,
HE WAS COMPLYING WITH THEIR INSTRUCTIONS, THEY STAYED WITH HIM FOR 15 TO 20 MINUTES AND
THEN THEY USED THEIR DISCRETION AFTER DETERMINING HE WAS SAFE TO RESUME PATROL.
LIKEWISE, THE OFFICERS IN MAURER REALSO HANDLED A PUBLICLY INTOXICATED PERSON AND IN THAT
CASE, THE OFFICER DETERMINED THAT THE PEDESTRIAN WAS INTOXICATED, BROUGHT HIM TO THE SHOULDER
OF THE ROAD AND LEFT AND HE DETERMINED THAT THE OBSTRUCTION OF TRAFFIC HAD BEEN ELIMINATED.
WHICH IS EXACTLY WHAT HAPPENED IN THIS MATTER. THE TRIAL COURT CORRECTLY
FOUND THAT ONCE THE CAR WAS TOWED, THE CIRCUMSTANCES IN BOTH MAURER AND IN THIS CASE
WERE THE SAME AND OFFICERS IN BOTH CASES USED THEIR DISCRETION IN GOOD FAITH TO ASSESS
THE PEDESTRIANS', THEIR TOXICITY LEVEL AND TO GET THEM TO A SAFE AREA. IN
MAURER THEY WERE FOUND INMUM THAT THE KWORT CLAIMS ACT 22B-16 WHICH EXPRESS THE STATES
THERE'S NO CIVIL LIABILITY FOR ASSISTING PUBLICLY INTOXICATED PERSONS. IN THIS
CASE, A CAR SKWT ITSELF WAS A RED HERRING AND THE APPELLATE DIVISION INCORRECTLY FOUND
THAT THE OFFICERS DUTY AND CONDUCT WERE MINISTERIAL SIMPLY BECAUSE OF THIS EVENT.
IT'S REALLY THE ACTS THAT HAPPENED AFTER THE CAR ACCIDENT THAT ARE AT ISSUE. THE OFFICERS
TOOK CARE OF THE MINISTERIAL DUTIES BY HANDLING THE CAR ACCIDENT AND THEN THOSE ACTS AFRT
CAR WAS TOWED BECAME DISCRETIONARY. THE AMOUNT OF TIME THEY REMAINED WITH MR. GONZALEZ
IS A SUBJECTIVE DECISION. IT'S NOT SOMETHING THAT'S MINISTERIAL, HAS TO BE SOMETHING
THAT'S DISCRETIONARY WHERE THE OFFICERS HAVE THE ABL TO DETERMINE HOW MUCH TIME TO SPEND
WITH HIM. IN FACT, THESE INMUM NTS FOR DISCRETION ARE CODIFIED UNDER THE TORT CLAEMS
ACT FOR THIS PRESIDES REASON SO THAT THEY CAN HAVE THE POWER AND AUTHORITY TO DETERMINE
WHEN SOMEONE IS SAFE AND WHEN TO RESUME PATROL. IT'S NOT SIMPLY MATTER WHERE
OFFICERS HAVE TO STAY THERE INDEFINITELY UNTIL THEY GET ANOTHER CALL. ONCE THEY DETERMINE
SOMEBODY IS SAFE, THEY THEN HAVE THE DISCRETION TO GO BACK ON PATROL AND PATROL WHICH
IS WHAT THEY DO. THEY COULD SEE, ON PATROL THEY'RE ALLOCATING THEIR RESOURCES TO
POSSIBLY STOP A CRIME, POSSIBLY COME UPON ANOTHER ACCIDENT, ASSIST ANOTHER OFFICER, THOSE
ARE RESOURCES THAT THEY'RE PERMITTED TO USE OR DECIDE TO USE IN ALLOCATE THEMSELVES AND
TSDZ' NOT LIMITED TO HIGH LEVEL SIGS POSITION TOGS MAKE POLICY DECISIONS. SNOW
CLEFG THE APPELLATE DIVISION'S DECISION CONFLICTS WITH MAURER REAND THE LADIES AND GENTLEMEN
CHER'S LEGISLATURE IN10 THE TORT CLAIMS ACT AND AFTER FIRMING THIS DOES WOULD ESSENTIALLY
OPEN THE FLOODGATES TO MORE LAWSUITS AGAINST THE MUNICIPALITIES IN CIRCUMSTANCES LIKE
THIS. AND IT'S FOR THESE REASONS SO THE COURTS DECISION FOR SUMMARY JUDGMENT SHOULD BE
REINSTATED BECAUSE THE PETITIONS IN THIS OCCASION ARE EM MUNICIPAL UPTDZ THE COURT CLAIMS
ART AND 2 B 16. THAT'S THE CONCLUSION OF MY OPENING AND I'M HAPPY TO ANSWER ANY QUESTIONS
OR ISSUES THAT JUSTICES HAVE. JUSTICE ALBIN: HOW ABOUT THIS. IN THE MORE
MAURER CASE, THE INTOXICATED PERSON WAS FOUND ON DOVER ROAD, 530 IN BERKELEY TOWNSHIP.
PRESUMABLY WITHIN A, WITHIN A CLOSE WALKING DISTANCE OF A RES DEM AREA, IF NOT IN A
RESIDENTIAL AREA ITSELF, CORRECT? FRPT. PHILIP S. ADELMAN: CORRECT.
JUSTICE ALBIN: SO LINCOLN HIGHWAY BRIDGE, OKAY, LEAVES NO METHOD OF GETTING OFF OF IT
AND IT'S MY UNDERSTANDING, ATS LEAST BASED UPON THE SUMMARY JUFLT RECORD WHICH HAS TO BE
VIEWED IN LIGHT MOST FAVOR ABLG TO FRPT THE PLAINTIFF HERE, THERE WAS AN OBSTRUCTION ON
THE PATHWAY THAT WOULD HAVE REQUIRED THIS PERSON WITH A 20 BLOOD ALCOHOL CONTENT TO MANEUVER
HIMSELF UNDER SO IT WASN'T A CLEAR PATHWAY THAT COMPANY WALK, AM I MISTAKEN BASED ON THE
RECORD? PHILIP S. ADELMAN: RESPECTFULLY, YOUR HONOR, THAT IS A MISTAKE.
JUSTICE ALBIN: GO AHEAD. PHILIP S. ADELMAN: THE PATHWAY
ITSELF IS A PATHWAY THAT WAS CREATED FO PEOPLE TO WALK ON. THERE'S A BUS STOP SEVERAL
HUNDRED, A FEW HUNDRED YARDS AFTER WAY FROM WHERE THE DECEDENT WAS PLACED. THE GUARDRAIL
DOES COME TO AN ENDING POINT WHICH IS WHERE THE DECEDENT WAS PLACED, HE WAS PLACED BEHIND
THE GUARDRAIL AND IF HE CONTINUED TO WALK FORWARD TOWARDS JERSEY CITY, HE WOULDN'T HAVE
TO GO UPD A GUARDRAIL OR MANEUVER HIMSELF, THE GUARDRAIL DISCONTINUES AND THE PERSON PICKING
HIM UP, HE WOULD THEN BE ABLE TO JUST GET INTO THE CAR. AND AT THAT TIME OF NIGHT, THERE'S
REALLY NO TRAFFIC. SO THERE'S REALLY NO, NARS NO WORRY FOR OTHER CARS TO BE COMING.
PLUS -- JUSTICE ALBIN: THERE WAS ENOUGH TRAFFIC TO KILL HIM. I MEAN THERE WAS
ONE CAR THAT MISSED HIM AND ANOTHER CAR THAT STRUCK HIM. PHILIP S. ADELMAN:
THAT'S CORRECT. JUSTICE ALBIN: THAT WAS SUFFICIENT. PHILIP S.
ADELMAN: THAT IS CORRECT HOWEVER THE CAR THAT WAS SUPPOSED TO #3IK HIM UP WAS A POLICE
OFFICER WHO COULD HAVE EASILY FLASHED HIS LIGHTS OR DONE SOMETHING TO ALERT OTHER PEOPLE
TO GIVE THEM, YOU KNOW, THE ROOM THEY NEEDED FOR THIS DECEDENT TO GET INTO HIS CAR.
CHIEF JUSTICE RABNER: LET'S PAUSE FOR JUST A MINUTE, PAUSE THE RECORDING.
ROB ROB THAT'S BA I WANT YOUR CAMERA WENT OFF. JUSTICE SOLOMON: ON.
CHIEF JUSTICE RABNER: LET'S HEAD BACK AND JUST, REAR NOT LEAVE YET AL AM I'M SORRY.
CHIEF JUSTICE RABNER: GO AHEAD. JUSTICE ALBIN: GIVEN THE
FACT WE'RE ON SUMMARY JUDGMENT ROSHD AND WE KNOW THAT THE BLOOD ALCOHOL CONTENT OF THE
GONZALEZ WAS ABOVE .20, CAN WE INFER THAT HE WAS VISIBLY INTOXICATED JUST BASED UPON
READING? FOR PURPOSES OF A SUMMARY JUDGMENT RECORD INFERGING INS FRENSS MOST FAVORABLE
TO THE PLAINTIFF? PHILIP S. ADELMAN: YES, WE CAN INFER THAT. THE ONE
THING I WILL SAY IS THAT UT DISPUTED TESTIMONY OF THE OFFICERS WAS THEIR OBSERVATIONS FOR THAT,
WERE THAT THERE WERE NO SIGNS OF INTOXES CASE. BUT I DO ON CONCEDE TO YOUR HONOR'S COMMENT,
YES. HAL AL EVEN LEAVING SOMEONE AT 3:00 NTS MORNING EVEN BEHIND A GUARDRAIL IN THE MIDDLE
OF A BRIDGE ON A TYPICALLY WELL-TRAVELED ROAD, EVEN THOUGH LESS TRAVEL AT 3:00, WOULD
THAT NOT GIVE RISE TO AN OBJECTIVELY REASONABLE PERSON THAT THIS PERSON LEFT ALONE TO
HIS OWN DEVICES MAY WIND UP GETTING SERIOUSLY INJURED IF NOT KILLED? PHILIP
S. ADELMAN: NOT UNDER THE CIRCUMSTANCES AND IF YOU CONSIDER THE TESTIMONY OF THE OFFICERS.
THEY BEGGED HIM TO GET NIR THEIR CAR, HE REFUSED ANY ASSISTANCE FROM THEM. THERE WAS
NO BASIS IN HIR OPINION TO ARREST HIM. THE ONLY WAY THAT THEY COULD HAVE REMOVED HIM
OR TAKEN HIM SOMEWHERE ELSE WAS TO FORCE HIM INTO THEIR VEHICLE, AND IF THAT HAD HAPPENED
WE'D BE HERE FOR CIVIL RIGHTS VIOLATIONS INSTEAD OF THIS ACTION. THE OFFICERS
DID ERG THEY COULD HAVE POSSIBLY DONE, THEY OFFERED HIM A RIGHT RIDE, THEY MADE SURE HE
WAS SAFE, THEY MADE SURE HE WAS COMPLYING WITH INSTRUCTIONS, THEY PLAYED SURE HE WAS BEHIND
THE GUARDRAIL. FRONG FRAJLY, IN THERE KMAURER CASE THERE'S NO EVIDENCE IN THAT CASE WHERE
THE PEDESTRIAN WAS PLACED IN A SAFE PLACE SUCH AS BEHIND A GUARDRAIL. HE WAS ONLY BROUGHT
TO THE SHOULDER OF THE ROAD AND HE HIMSELF WANDERED INTO THE MIDDLE OF ROAD. WHERE AS
HERE, AS THE DECEDENT WAS TOLD AND SHOWED COMPLIANCE, HE WAS PLACED IN THAT PATHWAY
BEHIND THE GUARDRAIL WHERE HAD HE STAYED AND HAD HE, AND COMPLIED AS HE HAD SHOWED TO THE
OFFICERS, HE WOULD HAVE BEEN SAFE UNTIL HIS RIDE ARRIVED. SO WHILE THE OFFICERS,
THE ONLY THEY KNOW THEY COULD HAVE DONE WAS ARREST THE HIM AND SLIGHTED HIS RIGHTS AT
THAT POINT. JUSTICE ALBIN: OR STAYED WITH HIM. IS THIS CASE IN ANY WAY
COMPARABLE TO SUAREZ, SUAREZ IS THE CASE ON ROUTE 80 WHERE A FAMILY IS STRANDED BECAUSE
THEIR CAR BREAKS DOWN, STATE TROOPERS ARRIVE AND REFUSE TO GIVE THEM A LIFT. I KNOW THOSE
FACTS ARE DIFFERENT, AND THEN THEY WIND UP, THEY SAY YOU CAN WALK TO THE HE CAN SIT,
THEY WIND UP WALKING AND ONE OF THE CHILDREN GETS STRUCK AND KILLED AND THEN ONE OF THE
PARENTS GETS STRUCK AND KILLED. WHY ISN'T THIS CASE SOMEWHAT SIMILAR TO SUAREZ? SOMEONE
IS STRANDED ON A ROADWAY, TRYING TO MAKE HIS, A FAMILY'S WAY BACK TO AN EXIT. GO AHEAD
V. PHILIP S. ADELMAN: THERE'S A NUMBER OF REASONS. IN SUAREZ, THE ACCIDENT
VICTIMS EXPRESSLY ASKED FOR ASSISTANCE FROM THE STATE TROOPERS WHO REFUSED TO GIVE THEM
HELP. AND AS YOUR HONOR SAID, THEY WERE ORDERED TO WALK, THIS WAS ON ROUTE 80 WHICH IS
MUCH MORE HIGH TRAFFIC THAN THE LINCOLN HIGHWAY BRIDGE AND THEY WERE ORDERED TO WALK TO
AN EXIT. THE OFFICERS REFUSED TO HELP THEM. HERE, IN THIS CASE, ALSO THOSE VICTIMS
WERE NOT INTOXICATED. AND THEY HAD ASKED FOR HELP. HERE, THE DECEDENT IN THIS CASE
REFUSED HELP. HE WOULD NOT ACCEPT HELP. THE OFFICERS IN OUR CASE HAD THE OFFICERS IN
SUAREZ DONE WHAT OUR OFFICERS HAD DONE, THEN THE OFFICERS IN SUAREZ WOULD HAVE BEEN, THERE
WOULDN'T A PROBLEM BECAUSE THEY GOVERN GIVEN THEM A RIDE AS THOSE ACCIDENT VICTIMS HAD
REQUESTED. IN OUR CASE THOSE OFFICERS BEGGED THAT PERSON TO GET INTO THEY ARE CAR SO
THEY COULD DRIVE HIM ANYWHERE HE REQUESTED, EVEN A FEW HUNDRED FEET TO A GAS STATION,
SOMEWHERE ELSE. HE ABSOLUTELY REFUSED RT. HE SHOWED THAT HE WAS AT LEAST COMPLIANT WITH
STAYING IN THAT AREA AND THAT HE WAS NOT GOING TO MOVE AND WALK ELSEWHERE BECAUSE HE WAS
WAITING FOR -- JUSTICE ALBIN: BUT YOU. JUSTICE LAVECCHIA:
IF I COULD JUST FOLLOW UP ON THE SUAREZ. PHILIP S. ADELMAN: (I CAN'T HEAR
YOU. I THINK YOU'RE MUTED. FRPT. JUSTICE LAVECCHIA: CAN YOU HEAR ME NOW?
PHILIP S. ADELMAN: NOW I CAN HEAR YOU. KAREN D. THOMPSON:
I STOPPED THE LIVE STREAM I WASN'T SURE IF WE WERE HAVING THE SAME ISSUES.
JUSTICE LAVECCHIA: WE WERE, TOM. MY MICROPHONE IS SHOWING HALF GREEN FOR SOME REASON.
KAREN D. THOMPSON: IT FLIPPED VEK YOU BEGAN YOUR POINT EARLIER IN YOUR
PRESENTATION BY SAYING THIS CASE IS CLOSEST TO MORE RAY AND NOT GIVING INTO SUAREZ WHICH
JUSTICE ALBIN MENTIONED. BUT SUAREZ SEEMS CLOSE, NOT JUST FACTUALLY BUT ALSO IN TERMS
OF DIRECTION IT GOES FOR THE ANALYSIS AND I WANT TO JUST PROBE THAT A LITTLE BIT WITH
YOU. MAURER WAS A TRAFFIC DISTURBANCE, NOT AN AUTO ACCIDENT. SUAREZ
WAS AN AUTO ACCIDENT THAT CALLED THE OFFICERS TO THE LOCATION WHERE THE VICH WULGS WERE
ON ROUTE 80. AS WE HAVE HERE. IT WAS MINISTERIAL DUTY, PREEXISTING DUTY THAT THE
OFFICERS WERE EXECUTING I THINK IN BOTH SUAREZ AND HERE, THE RESPONDING TO WHAT WAS REPORTED
AS AN AUTO ACCIDENT INCIDENT. YOUR ANALYSIS THEN I THINK IS GOING INTO PARSING WHAT HAS
TO BE VIEWED AT THE OUTSET AS THE DISCHARGE OF A MINISTERIAL DUTY AND WHETHER OR NOT,
YOU KNOW, HOW WE COULD INTERPRET ANY APPLICATION OF IMMUNITY IN THAT SETTING. YOU'VE
MOVED TO A DISCRETIONARY ACTIVITY BY PARSING LITTLE INDIVIDUAL PARTS OF THE LATTER ASPECT
OF THE OFFICERS' ACTIVITY AND THAT APPROACH SEEMED TO BE DISAPPROVED BY THE COURT IN
SUAREZ. OOM TROUBLED BY THN IEDZ LIKE TO YOU ADDRESS THAT. AND WHEN YOU
DO, I KNOW YOU'RE GOING TO MENTION HIS RESPONSE, NOT WANTING TO GO WITH THE OFFICERS,
BUT THAT SEEMS TO ME TO BE A FACT QUESTION OF WHETHER OR NOT THE WAY THE OFFICERS DID
CONTINUE TO EXECUTE THEIR MINISTERIAL TASK OF SEEING THIS PERSON ALL THE WAY THROUGH TO
THEIR WL BEING BEING SAFE, WHETHER OR NOT THEIR ACTIVITIES WERE PALPABLY UNREASONABLE.
ALL OF THOSE DECISIONS WOULD NORMALLY GO TO A JURY AND YET YOU'RE
SUGGESTING THAT WE MOVE TO A DISCRETIONARY ANALYSIS TO GET THE IMMUNITY AND THE CASE
NOW. AND TO ME THAT, SEEMS INCONSISTENT WITH THE SUAREZ APPROACH. COULD YOU ADDRESS THAT,
PLEASE. FILL FELL ABSOLUTE. PHILIP S. ADELMAN: ABSOLUTELY. I'LL TRY AND
TAKE THIS IN PARTS. JUSTICE LAVECCHIA: PLEASE. PHILIP S.
ADELMAN: THE MINISTERIAL ASPECT OF THIS CASE, IN OUR CASE CONCERNED A MOTOR VEHICLE ACCIDENT.
THE OFFICERS WERE DISPATCHED, THEY HANDLED THE MOTOR VEHICLE ACCIDENT WHICH THEY DETERMINED
THAT THE CAR WAS NOT OPERABLE, THEY HAD THE CAR TOWED. THEY THEN DETERMINED THAT MR.
GONZALEZ, WHAT THEY DETERMINED WHETHER OR NOT HE NEEDED ANY KIND OF MEDICAL ATTENTION
OR ANY ASSISTANCE. THEY FOUND THAT HE DID NOT NEED ASSISTANCE AND DECLINED ANY ASSISTANCE.
THAT'S THE MINIMUM MATERIAL PART OF THIS CASE. JUSTICE LAVECCHIA: DO YOU FEEL
THAT SUAREZ ENDED IT THERE? IN SUAREZ, I BELIEVE THE APPELLATE DIVISION DISCUSSED THE
MINISTERIAL ASPECT AS EXTENDING ALL THE WAY THROUGH TO SEEING THE INDIVIDUALS BEING LEFT
IN A SAFE LOCATION. PHILIP S. ADELMAN: CORRECT. AND IN SUAREZ, THE
OFFICERS REFUSED TO ACTUALLY BRING THEM TO A SAFE LOCATION BECAUSE, SEE, IN SUAREZ, THE
ACCIDENT VICTIMS WERE LEFT ON THE HIGHWAY. WHEN THEY ASKED TO BE BROUGHT TO AN EXIT.
VEK VK THE FACTS. PHILIP S. ADELMAN: WHERE AS HERE THE OFFICERS DID
BRING THE DECEDENTS TO A SAFE PLACE. THEY TRIED TO DRIVE HIM SOMEWHERE ELSE UNLIKE THE
OFFICERS IN SUAREZ, THE OFFICERS IN OUR CASE, THE DECEDENT IN OUR CASE REFUSED TO BE DRIVEN
ANYWHERE ELSE. HE ARRANGED FOR HIS OWN OTHER TRAVEL ARRANGEMENTS AND THE OFFICERS THEN
PLACED HIMENT BEHIND THE GUARDRAIL IN A SAFE PLACE. JUSTICE LAVECCHIA:
THE OFFICERS MADE A DECISION AS TO WHAT THEY THOUGHT WAS THE REASONABLE STEP TO TAKE IN
THIS UMBRELLA OF MINISTERIAL TASKS. BUT THE FACT THAT THERE MAY HAVE BEEN MORE THAN ONE
THING THAT CAN BE DONE DOESN'T PREVENT THE ISSUE FROM BEING PRESENTED TO A JURY. IN MASON
VS. N.J. TRANSIT JUST RECENTLY OUR COURT SAID THAT SAME THING, THAT THE BUS DRIVER COULD
HAVE HAD NUMEROUS COURSES OF ACTION, DIDN'T MAKE IT A DISCRETIONARY ACT, KEPT IT STILL
WITHIN THE MINISTERIAL DUTY SUBJECT TO BEING REVIEWED AND DECIDED ULTIMATELY BY A JURY,
INCLUDING THE PAL PALLY UNREASONABLE DETERMINATION THAT THE JURY COULD MAKE IN
THAT SITUATION AND COULD MAKE HERE. PHILIP S. ADELMAN: WELL, HERE, THE OFFICERS
MADE A DETERMINATION AND TOOK IT TO ITS FINAL CONCLUSION BY BRINGING MR. GONZALEZ TO THE
SAFEST PLACE THEY COULD BRING HIM. THE ONLY ODD OPTION THEY HAD WAS ECHT ARREST HIM OR
FORCE HIM NO THEIR CAR OR, YES, THERE'S AN ARGUMENT THAT COULD BE MADE THEY COULD HAVE
WAITED. BUT TO WHAT END? THERE'S NO BRIGHT LINE TEST THAT SAYS HOW LONG THEY'RE SUPPOSED
TO WAIT. ARE THEY SUPPOSED TO WAIT FIVE MINUTES, TWO HOURS, THREE HOURS, I MEAN THE
IMMUNITIES WERE CODIFIED SO THEY COULD HAVE DISCRETION TO DETERMINE WHEN SOMEONE IS SAFE.
AND WHEN THEY BELIEVE SOMEONE IS -- JUSTICE LAVECCHIA: EXCUSE ME. THE
DISCRETIONARY IMMUNITY HAS BEEN INTERPRETED UNDER COIN HAS BEING LIMITED TO HIGH LEVEL
POLICYMAKING DECISIONS. NOT TO EVERY CHOICE THAT'S MADE IN A MINISTERIAL TASK SETTING.
FRPT I THOUGHT OUR COURT WAS VERY CLEAR ABOUT THAT. ARE YOU SUGGESTING WE HAVE. A
DIFFERENT STANDARD FWOOR IS A DISCRETIONARY ACT THAN CONE SUGGESTS? PHILIP S.
ADELMAN: YES. ACTUALLY, MAURER AND BROWN V BROWN ACTUALLY SAY THAT IT'S NOT LIMITED TO
HIGH LEVEL DECISIONS AND POLICYMAKING IN THAT IT DOES APPLY TO LOWER LEVEL DECISIONS SUCH
AS PATROL OFFICERS. 93 FACT, IF YOU'LL JUST BEAR WITH ME ONE SECOND HERE, IN MAURER,
THE COURT STATED THAT WHILE ON PATROL OFFICERS MUST CONSTANTLY BALANCE THE EXTENT TO WHICH
THEY PURSUE POSSIBLE MINOR OFFENSES AND OTHER ROUTINE DAILY PROBLEMS OR REMAEN AVAILABLE
FOR PATROLLING MORE URGENT OFFENSES. INHERENT IN THAT IS THE DISCRETION IS THE REALIZATION
POLICE OFFICERS ARE THEMSELVES A SCARCE RESOURCE AND IN A LARGE MEASURE THEY'RE DUTIES
STRETCH THEM TO THE OUTER LIMITS OF HUMAN CAPABILITIES. JUSTICE
PATTERSON: IS YOUR ARGUMENT HERE WHICH WE LOOK ATS DISCRETIONARY VERSE MINISTERIAL WREER
LOOKING AT THE TYPE OF DECISION MAKING THAT WAS MADE, WOULD YOU AGREE WITH THAT?
PHILIP S. ADELMAN: CORRECT PATS PAT WHAT IS THE DECISION MAKING. IS YOUR ARGUMENT THAT
WHEN THEY, WHEN THE OFFICERS DECIDED WE'VE DONE EVERYTHING WE CAN HERE AND WE NEED TO
GO OUT ON PATROL AT THIS POINT BECAUSE WE CAN'T FORCE HIM TO BE IN OUR CAR, WEAVER DONE
THE BEST WE COULD AS TO PUTTING HIM IN A SAFE PLACE THAT, A THAT POINT THEY ARE MAKING
A DECISION ABOUT THE DISTRIBUTION OF POLICE RESOURCES WENT INJURES SEE CITY. IN OTHER
WORDS, SAYING WE HAVE TO GO DEAL WITH OTHER PROBLEMS BECAUSE WE CANNOT DO ANYTHING BEYOND
WHAT WE HAVE DONE HERE. IS THAT YOUR ARGUMENT? PHILIP S. ADELMAN: YES,
THAT'S CORRECT, THAT'S PART OF MY ARGUE. JUSTICE PATTERSON: SO YOU'RE SAYING
THAT THE POINT, WHEN AN AUTO, THE AFTERMATH OF AN AUTO ACCIDENT REACHES THE POINT WHERE
THE OFFICERS ARE TRYING TO DECIDE WHETHER DO WE STAY HERE ALL NIGHT WITH HIM OR DO WE
GO ON TO SOMETHING ELSE, WHERE THEY'RE NO LONGER DOING ANYTHING ABOUT THE ACCIDENT, ATS
THAT POINTS THEY ARE MAKING A DISCRETIONARY DECISION ON HOW LIMITED POLICE RESOURCES
SHOULD BE ALLOCATED? PHILIP S. ADELMAN: THAT'S CORRECT, JUSTICE, YES.
JUSTICE ALBIN: IS THAT NTS CONTEXT OF A CASE LIKE THIS A JURY, I THINK WHAT
JUSTICE PATTERSON IS SAYING IS CLEARLY A CONCERN AND MAY BE A COMPLETE DEFENSE, IF THERE
IS A QUESTION OF WHETHER OR NOT THERE WAS ISSUE OF REALLOCATION OF RESOURCES. AND I THOUGHT
THERE WAS A DEBATE ABOUT WHETHER OR NOT ONE OF THE DISPATCHERS TOLD THEM TO LEAVE OR WHETHER
OR NOT THEY DECIDED ON THEIR OWN, WELL, THERE'S OTHER ACTIVITIES IN JERSEY CITY TO WHICH
WE CAN ATTEND. SO MY QUESTION TO YOU IS IF THERE IS A FACTUAL ISSUE THAT
IS CONTESTED ON THAT SHOSHGS THAT GO TO A JURY AS OPPOSED TO BEING DECIDED ON SDUM REJUDGMENT.
PHILIP S. ADELMAN: THE FACTUAL ISSUE CONCERNING THE DECISION WHETHER TO RESUME
PATROL OR? JUSTICE ALBIN: YEAH, WHETHER IT MAKES A DIFFERENCE WHETHER OR NOT
THEY WERE TOLD THROUGH TO RESUME PATROL BY DISPATCHER BECAUSE THERE WERE OTHER ACTUAL
EVENTS GOING ON IN JERSEY CITY OR WHETHER OR NOT AT THE END OF 20 MINUTES THEY DECIDED
LET'S RESUME PATROL. PHILIP S. ADELMAN: THAT'S A DISCRETIONARY ISSUE.
EVEN, IN THIS CASE, OF DISPATCH WE ACKNOWLEDGE DID NOT SPECIFICALLY TELL THEM TO GO
SOMEWHERE TO RESUME PATROL T THE OFFICER TUCKER DAWDLE DISPATCH, ADVISED THEM OF THE
CIRCUMSTANCES AND DISPATCH BASICALLY JUST SAID OKAY. THEY DIDN'T GIVE THEM INSTRUCTIONS.
HOWEVER, ATS THAT POINT THE IT WAS WHEN THE OFFICERS USED THEIR DISCRETION IT'S TIME
TO GO BACK ON PATROL. JUSTICE ALBIN: SO THE HYPOTHETICAL, LETS LET' JUST
SAY THAT THERE WAS INSTEAD OF MR. GONZALEZ UNDER THE INFLUENCE THERE WAS, HE WAS DHULLY
STRUCK AND HE WAS LIKE BLEEDING AND THEY WERE WAITING FOR AN AMBULANCE OR THEY WERE WAITING
FOR SOME SORT OF ASSISTANCE, COULD THEY HAVE MADE THE DECISION, WELL, YOU KNOW, NO ONE
IS HERE IN 20 MINUTES, THERE WERE OTHER THINGS GOING ON IN JERSEY CITY, MAYBE THERE'S
A HOUSE THAT'S GOING TO BE BERG RIEFD AND LEAVE THE PERSON STANDED WHO IS BLEEDING ON
THE SIDE OF THE ROAD, COULD THEY DO THAT AND BE ENTITLED TO THE IMMUNITY UNDER ALLOCATION
OF RESOURCES? PHILIP S. ADELMAN: JUST SO I'M CLEAR YOU MEAN CALL AN AMBULANCE
AFTER AND LEAVE? IS THAT. JUSTICE ALBIN: LEAVE THE PERSON BECAUSE THERE
ARE OTHER MATTERS GOING ON NTS CITY. PHILIP S. ADELMAN: NO, IF THE PERSON
IS INJURE, THAT'S MINISTERIAL, THERE'S NO THOUGHT INVOLVED. THE PERSON IS INJURED THEY
NEED MEDICAL TREATMENT, THAT'S MINISTERIAL. MINISTERIAL MEANS THERE'S NO JUDGMENT USED.
WHERE AS HERE, THERE WAS NO INJURIES, AND THEY HAD TO USE THEIR DISCRETION TO DETERMINE
THAT HE WAS SAFE AND IT WAS TIME TO MOVE ON. IF HE WAS INJURED OR NEEDED SIFRT TANS,
MEDICAL STREEMENT, SOMETHING OF THAT NATURE, THEN, YES, THEY SHOULD STAY TLN WAITS FOR
AN AMBULANCE OR GIVE ANY KIND OF TREEM THEY COULD GIVE. PATS THAERS MORE THAN THAT BECAUSE
YOU HAVE HERE A COMBINATION HE'S UNINJURED, THE AUTO ACCIDENT IS NOW RESOLVED AND HE IS
SAYING HE IS IT NOT WANT TO GET INTO A POLICE CAR AND HE HAS THE RIGHT TO SAY I DON'T WANT
TO GET INTO A POLICE CAR. GOOD BUY. BYE. UNLESS THEY HAVE POSSIBLE CAUSE TO ARREST
HIM AND EVERYBODY AGREES THEY DID NOT. SO THEY HAVE A SITUATION WHERE THERE
IS ONLY ONE OPTION TO, FOR THEM OR TWRO OPTIONS, WLUN IS TO LEAVE AND THE OTHER IS TO
STAY INDEFINITELY WITH HIM WHEN HE DOESN'T PARTICULARLY WANT THEIR COMPANY WITH THEM,
INTO THE NIGHT AND PERHAPS UNTIL THE NEXT DAY WAITING FOR A RIDE THAT PROBABLY WILL AR
RISER BUT MAY NOT. PHILIP S. ADELMAN: THAT'S CLUTS SLOOUTLY CORRECT. T
T ABSOLUTELY CORRECT. JUSTICE PATTERSON: JUSTICE ALBIN'S HYPOTHETICAL THE
BLEEDING INDIVIDUAL THERE, YOU'RE IN FULL CAR ACCIDENT MODE HERE. YOU HAVE AN INJURED
PERSON, THERE'S AN ABSOLUTE ABL GAGS TO REMAIN. WE'RE TALKING K ABOUT A DIFFERENT SITUATION
LATER AS THIS TRANSPIRED. PHILIP S. ADELMAN: YES. THIS NOT A SITUATION
WHERE YOU HAVE AN INJURED PERSON THAT NEEDS MEDICAL TREATMENT AS JUSTICE ALBIN'S
HYPOTHETICAL SUGGESTED. OUR CIRCUMSTANCES HERE ARE COMPLETELY DIFFERENT,
AS YOUR HONOR JUST DESCRIBED. JUSTICE PIERRE-LOUIS: WE DO HAVE SOMEONE
HERE WHO WE FOUND OUT PRETTY SIGNAL KAVEN THE INTOXICATED AND AS WAS DISCUSSED WITH JUSTICE
AL BIP EARLIER IN VUG THE LIGHTS MOST FAVORABLE THE NONMOVING PARTY WE DO HAVE SOMEONE
WHO APPEARED TO BE EXTREMELY INTOXICATED ALTHOUGH THE OFFICERS INDICATED THEY DO RECALL
BELIEVING HE WAS IMPAIRED. PHILIP S. ADELMAN: THAT'S CORRECT. THE PRESUMPTION
IS THAT THIS INDIVIDUAL IS INTOXICATED. JUSTICE PIERRE-LOUIS: NOT SOMEBODY
WHO IS INTOX DATED WHO IS ON A ROAD IN THE MIDDLE OF THE NIGHT WHO LIVES, SAID HE'S GETTING
A RIDE, THE OFFICERS DON'T REMEMBER TALKING TO HIS RIDE, YOU KNOW, WE UNDERSTAND LATER
THAT THE VICTIM PROVIDED THE INCORRECT LOCATION. SO, YOU KNOW, THERE WAS NO CONFIRMATION
THAT BY THE OFFICERS THAT THE RIDE WAS COMING. IF YOU HAVE SOMEONE WHO IS INTOXICATED
IN THE OFFICE, YOU KNOW, PERFORMING THEIR MINISTERIAL DUTY AS POORTS OF A CAR ACCIDENT,
SIMILAR TO IF SOMEBODY IS INJURED, YOU KNOW, IS ANOTHER QUESTION THAT GOES TO THE JURY
WHETHER THEY EXECUTED THEIR, THE PERFORMANCE OF THOSE MINISTERIAL DUTIES NEGLIGENTLY BY
LEAVING SOMEONE IN THAT CONDITION ON THE ROADWAY IN THE MIDDLE OF THE NIGHT WITH NOWHERE
TO GO. FILL FULLY I RESPECTFULLY DISAGREE WAS BECAUSE IT'S TILL A DISCRETIONARY AFBLTH
EVEN IF YOU TAKE THE COURT CLAMGS ACT OFF THE TABLE WE STILL HAVE N.J.S.A. 26:2 B 16 WHICH
SAYS OFFICERS IN THEIR DISCRETION MAY REMOVE AN INDIVIDUAL FROM A PUBLIC PLACE FTS OFFICER
DETERMINES THE PERSON IS EN TOX KATSED. THERE'S NO OBLIGATION THERE. THEY SHALL REMOVE
THEM IF THEY DETERMINE THAT THE INDIVIDUAL'S ENCOMPASS SIT AT ANY TIMED, LIKE PASSED
OUT, NEEDS MEDICAL ATTENTION (INCAPACITATED) AND THIS STATUTE SPECIFICALLY SAYS THAT OFFICERS
SHALL NOT BE HELD CRIMINAL OR CIVILLY LIABLE FOR THESE ACTS. AND IN THIS CASE ALL PARTIES
HAVE ADMITTED IN THE RECORD THAT MR. GONZALEZ WAS NOT INCAPACITATED AND THEREFORE EVEN
IF YOU PUT THE TORT CLAIMS ACT ON THE SIDE, THEY'RE STILL IMMUNE UNDER THIS STATUTE AND
WHERE THEY SHALL NOT BE HELD SIMPLY LIABLE FOR SUCH ACTS BECAUSE THEY IN THEIR DISCRETION
AS THE STATUTE SAYS, MAY OR MAY REMOVE OR MAY ASSIST AN INDIVIDUAL AND THOSE CIRCUMSTANCES
FIT INTO THAT STATUTE AS WELL AND THAT COMBINED WITH THE FACT THE COURT IS SUPPOSED TO
DETERMINE ISSUES OF IMMUNITY BECAUSE IT'S AN ISSUE OF LAW, IT'S NOT NECESSARY TO GO TO THE
JURY. IT'S AND ISSUE THAT SHOULD BE DETERMINED BY THE COURT. JUSTICE ALBIN:
I'M TRYING TO WORK MY WAY TO THAT STATUTE. 26-2 B 16. DOES THE IMMUNITY, DOES THE IMMUNITIES
ONLY KICK IN IF HE THEY ACTUALLY GIVE THE ASSISTANCE, IF THEY ACTUALLY TRANSPORT THE
PERSON? OR ARE YOU SAYING THAT IF THEY SEE SOMEONE INTOXICATED ON THE SIDE OF THE ROAD
AND DECIDE TO DRIVE AWAY, THEY GET THE IMMUNITY UNDER 26-2 B 16? FILL NEL NO,' NOT IMMUNITY,
NO, THEY HAVE TO CONDUCT SOME SORT OF ACT, IT'S NOT THAT THEY'RE DRIVING, THEY SEE SOMEONE
WHO IS STAGGERING AND CONTINUE DRIVING. THOEF TO ACTUALLY ENGAGE IN SOME SORT OF ACTIVITY.
JUSTICE ALBIN: OKAY. SO LET'S SAY, THEY SEE THE PERSON ON THE SIDE FTD
ROAD, HE'S INTOXICATED, HOW YOU DOING BUD, I'M DOING FINE, THEY PAT HIM ON THE BACK AND
THEY DRIVE ON. AND HE STUMBLES NOOTS ROADWAY AND GETS KILLED. ARE YOU SAYING THAT THAERS
IMMUNITY UNDER 262 B 16 UNDER THOSE CIRCUMSTANCES? PHILIP S.
ADELMAN: IF THEY ASSESS HIM AND LOOK HIM OVER AND DETERMINE HE IS INTOXICATED BIT NOT
INI AM ENCOMPASS SITSED YES THEY'RE EM MUNICIPAL, THEY'RE NIT REQUIRED TO TAKE HIM ANY
WRI, IT'S MAY REMOVER HIM, IT'S NOT SHALL. IF THEY DETERMINE HE'S ONLY INTOX KATSDZ AND
NOT INCAPACITATED, NARS NO DUTY THERE AND THEY ARE IMMUNE UNT THAT STATUTE.
JUSTICE ALBIN: ACTING UNDER THE PROVISIONS OF THIS SECTION, IS AKTSING UNDER THE PROVISION
ACTUALLY GIVING THE PERSON ASSISTANCE, LIKE WE WON'T HOLD YOU LIABLE IF YOU WIND UP TAKING
THEM TO HIS RESIDENCE AND HE WINDS UP GETTING HURT OR TAKING HIM TO SOME TREATMENT CENTER,
YOU'RE GIVING THIS STATUTE A VERY ARE BROUGHT READING FOR THE EM MUNICIPAL IN THE.
PHILIP S. ADELMAN: WHAT I'M SAYING IS THE OFFICERS EN GHACHD SOME SORT OF CONDUCT
TO DETERMINE WHETHER OR NOT THEY WANT TO HELP THIS PERSON AND IF THIS PERSON NEEDS HELP.
AND IF THEY ENGAGE WITH THIS PERSON IF, THEY TALK WITH THIS PERSON, IF THEY ASSESS THIS
PERSON'S CAPACITY AND CONDITION AND THEN THEY DETERMINE, WELT, HE'S NOT INCAPACITATED,
HE SEEMS OKAY TO CONTINUE WALKING HOME. I MEAN IF THIS CASE IS AFFIRMED, THEN YOU'RE
BASICALLY SAYING THE EVERY OFFICER AT MET LIFE STADIUM HAS TO ASSIST EVERYONE UNDER WHO
HAS DRANK ANY ALCOHOL, THEY HAVE TO MAKE SURE EVERYONE GETS HOME. AND HAS NO DISCRETION
TO DETERMINE WHO NEEDS THE MOST HELP OR NOT. SO -- JUSTICE LAVECCHIA: THAT'S
A BROAD INTERPRETATION OF WHAT'S GOING ON HERE. I MEAN LET'S REMEMBER THIS INTERACTION
BEGAN WITH THE OFFICERS RESPONDING TO A TRAFFIC ACCIDENT, TO A CAR ACCIDENT WHICH IS PARTS
OF THEIR LAWFUL DUTIES AND MEN MATERIAL TASKS WHICH IN SUAREZ SAYS DOESN'T ENDS WHEN THE
CAR IS REMOVED, IT CONTINUES UNTIL THE INDIVIDUALS ARE IN THE SAFE PLACE. SUAREZ
DID NOT PARSE THOSE PIECES AS YOU ARE INTO INDIVIDUAL SIZE LATED ACTS THAT CAN BE DEEMED
DISCRETIONARY AND THEREFORE JUDGED BY A DIFFERENT STANDARD. EFT FILL FULLY WELL, SUAREZ,
THE COURT IN THAT CASE DOESN'T KR HAVE TO BECAUSE THE OFFICERS SIMPLY DIDN'T DO WHAT THEY WERE
SUPPOSED TO DO. OUSH OFFICERS DID. THEY DID EVERYTHING THEY COULD, THEY PUT THIS DECEDENT
IN A SAFE PLACE. THE OFRGS IN SUAREZ DID NOT, THERE WAS NO, ONCE THE COURT REALIZED THAT
THIS OFFICER REFUSED TO GIVE ASSISTANCE AND FORCED THESE PEOPLE TO WALK ON INTERSTATE
80 BY THEMSELVES AS OH POEFDZ TO TAKE THEM SOMEWHERE SAFE OR EVEN JUST ESCORTING THEM
TO THE EXIT, IT WAS AT THAT POINTS THEY DETERMINED THAT THEIR MINISTERIAL DUTIES WERE
NOT CARRIED SHOUT AS THEY'RE SUPPOSED TO IN TAKING THE CAR SKWT TO ITS FULL COMPLETION
WHERE AS HERE, IT'S DIFFERENT BECAUSE THE CAR ACCIDENT WAS RESOLVE. I'M SORRY, GO AHEAD,
YOUR HONOR. JUSTICE ALBIN: NO, FINISH. I DIDN'T MEAN TO THUPT INTERRUPT
YOU FINISH YOUR STATEMENT. PHILIP S. ADELMAN: THANK YOU. WHERE AS IN THIS
CASE, THE OFFICERS ASSESS THE SITUATION, THEY DETERMINED THE CAR WAS INOPERABLE AND HAD
ET TOWED, THEY DID EVERYTHING THEY COULD TOFRT FIEP ANY WAY TO BRING THIS AMERICAN, MR.
GONZALEZ, TO A SAFE PLACE. PATS PAT WHEN IS A CAR ACCIDENT RESOLVED? THAT'S AN AREA OF
YOUR ARGUE. I HAVE SOME CONCERNS WITH. THEY SHOW UP, THEY'RE SUMMONED, THEY'RE A CAR
ACCIDENT, THERE'S A LOT OF DIFFER THINGS THAT HAS TO BE DONE DEPENDING ON THE COMPLEXITIES
OF THE SITUATION, WHERE IT HAPPENS. WHY IS A CAR ACCIDENT RESOLVED AND THEN SOMETHING
ELSE STARTS WHEN THEY ARE TRYING TO, YOU KNOW, IN THIS CASE UNSUCCESSFULLY BRING THIS
PERSON TO A SAFE PLACE? ISN'T ETS REALLY RESOLVED WHEN EVERYTHING IS DONE, AULG THE
LOOSE ENDS ARE TIED UP AND EFG THEY HAVE A DUT TEE TO DO IN THAT CAR ACCIDENT IS DONE?
PHILIP S. ADELMAN: WESHLGS I AGREE WITH YOUR HONOR NTS SENSE THAT EVERYTHING
RELATED TO THE CONSIDER ACCIDENT AND ALL THE LOOSE ENDS ROW LATESED TO THE CAR ACCIDENT
HAVE TO BE HAMMED FROM A MINISTERIAL PERSPECTIVE BY THE OFFICERS. THAT BEING TAKING A
POLICE REPORTS, TAKING STATEMENTS, LOOKING AT THE CARS, TOWING WHATEVER CARS ARE NECESSARY,
SEEING IF ANYBODY NEEDS MEDICAL ATTENTION. THE GETTING PEOPLE OFFER THE ROAD, GETTING
THE DEBRIS OFF THE ROAD, THINGS OF THAT NATURE, MAKING THE STREET ABLE TO BE USED BY OTHER
DRIVERS PATS PAT YEAH, BUT ISN'T, IS HIS SITUATION PART OF MAKING, FINING OUT HOW MUCH
IF SOMEONE NEEDS ATTENTION? HE'S GIVEN US THE INTOXICATION SITUATION. RFT.
PHILIP S. ADELMAN: FINDING OUT IF HE NEEDS ATTENTION. EEJ THAT ONCE THE CAR ACCIDENT
AND THE CAR IS REMOVED, THEN THEIR DUTIES ARE LIKE IN MAURER ASSESSING A PUP CLEE
INTOXICATED PERSON AND THEY DEALT WITH THE CIRCUMSTANCES' THAT KOCHLT THIS PERSON DID
NOT WANT HELP. THEY REMOVED. JUSTICE ALBIN: THERE WAS A ELEMENT OF FOR
SEE ABILITY, GOING BACK TO SUAREZ. IF THEY. WALK ON GRASS MEDIAN, NAR FINE BUT THEY WERE
CHILDREN, THERE WERE CHILDREN FL, TOO. SO A CHILD WOUND UP RUNNING ONTO THE HIGHWAY AND
BEING HIT. SO IN TERMS OF FORESEEABILITY, ARE THEY SUPPOSED TO TAKE INTO ACCOUNT THE
STATE OF INTOXICATION OF THE PERSON WHO QUOTE SAFELY LEFT ON TSDZ SIDE OF THE ROAD TAKEN
INTO ACCOUNT A PERSON WITH A .20, MAY NOT BE FOLLOWING INSTRUCTIONS, HE WAS BELLIGERENT
AT THE SCENE. MIGHT ACTUALLY DRIFT ONTO THE HIGHWAY, ARE THOSE NOT FACTORS THEY SHOULD
HAVE TAKEN INTO CONSIDERATION? PHILIP S. ADELMAN: I THINK THEY WERE TAKEN
INTO CONSIDERATION. HIS BY LICH RENS WAS ALSO DOESN'T NECESSARILY MEAN THAT WAS
INTOXICATED, HE WAS ANGRY BECAUSE THE OFFICER, HE WAS ANGRY BECAUSE THE EFRPTS TOW TRUCK
DRIVER WOULD NOT GIVE HEM A RIDE. THERE WAS ALSO TESTIMONY FROM DETECTIVE MARCH MARTINEZ
WHO WAS THE FRIEND THAT WAS CALLED SAYING THAT MR. GONZALEZ SAID TO HIM SOMETHING THAT,
YOU KNOW, I DON'T WANT TO GET ARRESTED, OR HE WAS ANGRY AT THE SITUATION SO HE WAS BELLIGERENT
AND THERE'S TESTIMONY BY MR. MARTINEZ THAT HE GENERALLY IS, YOU KNOW, A HOTS HEADED PERSON
HOT HEADED PERSON. HIS LEVEL OF INTOXICATION WAS SOMETHING THAT AT THE OFFICERS USED
THEIR DISCRETION TO MAKE A DETERMINATION HAS TO HOW TO BEST HAM HIM. THEY DETERMINED
THAT HE WAS FUNCTIONAL, HE WAS CLEAN, HE WAS SPEAKING CLEARLY, HE WAS TAKING INSTRUCTIONS.
HE WENT INTO THE PLACE WHERE THEY THOUGHT HE WAS BEST SAFE, ESPECIALLY AFTER HE BASICALLY
TOLD THEM TO F OFF, AND THAT HE HATES COPS AND HE DOESN'T WANT TO RIDE WITH THEM, AND
ATS THAT POINT, THE POLICE OFFICERS, THEY CAN'T WAIT THERE INDEFINITELY. THEY CAN'T FORCE
HIM INTO THEIR CAR. ONCE THEY BELIEVE AND USE THEIR DISCRETION AND DETERMINE THAT THEY,
THAT HE IS IN A SAFE PLACE, BEHIND THIS GUARDS RAIL WHICH WAS PLACED THERE FOR, TO PROTECT
PEDESTRIANS, ONCE HE IS THERE AND AGREES TO STAY THERE, TN AFTER THEY WAITED, THEY DIEDZED
TO GO BACK ON PATROL. THEY CALL DISPATCH, THEY TOLD THEM WHAT WAS HAPPENING, DISPATCH
SEDZ OKAY, DISPATCH DIDN'T TELL THEM TO STAY THERE. DISPATCH DIDN'T GIVE THEM
INSTRUCTIONS TO REMAIN THERE. SO THEY MADE THE DETERMINATION WITH THEIR DISCRETION THAT
IT WAS TIME TO GO AND THERE WAS NOTHING THAT THEY COULD DO OTHER THAN SIT THERE INDEFINITELY.
CHIEF JUSTICE RABNER: ARE THERE ANY NEW AREAS OF QUESTIONS THE JIS TISZ
HAVE? JUSTICE SOLOMON: I HAVE JUST A COUPLE OF THINGS, CHIEF I WANTED TO WAIT
FOR THE DIE LA LOG AND STICK WITH THE FACTS OF THIS CASE. THERE'S NO DISPUTE THAT HE WAS
NOT INCAPACITATED, YEKT? FILL FELL CORRECT. JUSTICE SOLOMON: UNDER THE
INTOX CASE STATUTE IF HE'S NOT INCAPACITATED YOUR ARGUMENT I TAKE IT IS THAT BASED ON
THEIR CONDUCT HERE, THEY ARE IMMUNE? UNDER THE INTOXICATION STATUTE? PHILIP S.
ADELMAN: THAT'S CORRECT, JIS TIS. JUSTICE SOLOMON: HOWEVER, THAT DOESN'T
MEAN THEY'RE STILL NOT OBL GHATED UNDER THE TORT CLAIMS HAKT TO ACT EITHER REASONABLY
OR NOT TO HAKT JOUTS WARDLY UNREASONABLY, CORRECT? . NIL FILL CORRECT. BUT FILL THAT
FALLS INTO HIR ISS DISCRETION. JUSTICE SOLOMON: HOLD ON I'M NOT THERE.
ASSUME FOR A MINUTE THAT EVERYTHING THEY DID IN RESPONDING TO THE TRAFFIC ACCIDENT, WHATEVER
THAT ENTAILS, WAS MINISTERIAL. WHAT'S THE STANDARD OF CARE, IF ANY, THAT THEY OWED?
PHILIP S. ADELMAN: I'M SORRY, STANDARD OF CARE THAT THEY?
JUSTICE SOLOMON: THAT THE POLICE OFFICER OWED IN THE CIRCUMSTANCES ASSUMING EVERYTHING
THEY DID, RESPONDING TO THE TRAFFIC ACCIDENT WAS MRIN STEERL. PHILIP S. ADELMAN:
THE STANDARD OF CARE WAS FOR THEM TO PT ASSESS THE SISHSS, THE STATUS OF THE CAR.
JUSTICE SOLOMON: NO, I'M NOT GET INTO WEEKS. PHILIP S. ADELMAN: I'M
MISUNDERSTANDING KOLG. JUSTICE SOLOMON: I MAY BE I THINK NOT ALWAYS CLEAR.
IS IT REASONABLE NESHGS IS IT GROSS NEGLIGENCE, IS IT WILLFUL WANT TORE MISS KUK, WHAT
STANDARD OF CARE ARE THEY OBLIGATED TO YULTS LIES IN RESPONDING IN THIS MINISTERIAL
CIRCUMSTANCE? WHAT'S THE STANDARD OF CARE? . PHILIP S. ADELMAN: I BELIEVE
THE A GROSS NEGLIGENCE I BELIEVE AETS HIGHER TREASURE HOLD. JUSTICE SOLOMON:
IT'S RECKLESSNESS. PHILIP S. ADELMAN: P HIGHER TLESH HOW OLD THAN GENERAL
NEGLIGENCE THAT HAS TO BE SATISFIED. JUSTICE SOLOMON: ASSUMING THE A MINISTERIAL
FUNCTION, ASSUMING INTAX OCCASION DOESN'T PARTICULARLY HELP THE VICTIM, BASED UPON THE
FACTS THAT WE'RE ASSUMING BASED ON THE RECORD, SO THE QUESTION IS IF WE'RE APPLYING THE
TORT CLAIMS ACT TO THIS MINISTERIAL FUNCTION, AS YOU'RE ARGUING IT IS OR AS THE JUSTICES
ARE ARGUING IT IS, THEN THERE WOULD HAVE TO BE A FINING OR ATS LEAST AN ISSUE OF FACT
AS TO WHETHER THEY WERE RECKLESS; CORRECT? TO GET BAFT SUMMARY JUDGMENT? EPT FILL FELL
YES, BUT THERE'S ALSO, THEY'RE ALSO IMMUNE UNDER 3-3 FOR ACTING IN GOOD FAITH WHICH THEY
DID IN EN FOR IDENTIFICATION THE LAW. JUSTICE SOLOMON: NOW WE'RE GETTING
INTO ENFORCING THE LAW, NOW WE'RE GETTING INTO THE STATUTE COVERING THE ACCIDENTS AND
WE'RE GETTING INTO THE STATUTE COVERING INTOX KASHGS I'M NOT THERE YESHTHS I'M JUST TALK
ABOUT THE OTHER STATUTES THAT APPLY COURT CLAIMS AKTS DOES APPLY, WERE THEY RECKLESS IN
THEIR CONDUCT IS THE QUESTION BECAUSE YOUR ARGUMENT IS THEY'RE AKTSING MINIMUM
MATERIALLY OR NO, THEY'RE -- THE SUGGESTING THEY'RE ACTING MINISTERIALLY, CORRECT? PT.
PHILIP S. ADELMAN: THAT'S WHAT'S JUSTICES HAVE BEEN SUGGESTING CORRECT.
JUSTICE SOLOMON: THEY'RE THE STANDARD WOULD BE RECKLESSNESS AND I TAKE IT
YOUR NO REASONABLE CAN AND DLU RECKLESSLY UPD AULT CIRCUMSTANCES BECAUSE HE REFUSED
ASSISTANCE, BECAUSE HE WAS NOT INCAPACITATED, BECAUSE FRANKLY ACCORDING TO THE ONLY
EVIDENCE WHEN HE HE WAS NOT VISIBLY INTOXICATED, THEREFORE NO REASONABLE JURY COULD CONCLUDE
RECOLLECTION LESZNESS, IS THAT CORRECT? FILL FELL THAT'S CORRECT YOUR HONOR. FILL.
JUSTICE SOLOMON: NOW, ASSUMING ATS SOME POINT GETTING AWAY FROM MAURER AND
INTO SUAREZ, ASSUMING AT ONE, FOR GET CASE FOR A MINIMUM. ASSUMING AT SOME POINT THEIR
CONDUCT IS NO LONGER MINISTERIAL, CAR HAS BEEN TOWED NIECE A SAFE PLACE ALONG THE ROADWAY,
THAT WAIT FOR 15 MINUTES FOR A DRIVER WHO TURNS OUTS NEVER COMES, AND HE GETS INJURED.
AT THAT POINT, YOUR ARGUMENT I TAKE IT IS THE DECISION WHETHER TO STAY OR LEAVE EVERYTHING
SELLS DONE, ACCIDENTS, THE CONJUGATION, THAER AL DEALT WITH NEFZ TO MAKE A DECISION WHETHER TO
STAY OR GO. THEY MAKE THE DECISION TO GO, WE WAITED 15 MINUTES, GOT A RIDE KORJS WE CAN'T
WALT FOREVER, IT'S A BUSY NIGHT THEY MAKE A DISQUESTIONNAIRE DECISION. WHAT IS THE
STANDARD OF CARE THEY OWE, IF ANY, UNDER THE TORT CLAIMS ACT IN MAKING THAT DECISION?
FILL FELL ETS A JUST THEIR DISCRETION. THE STARRED DASHGSD I MEAN THAT'S THE STAVEN DARD
IS USING THEIR DISCRETION. FRPT. JUSTICE SOLOMON: AUB BUS OF DISCRETION,
DO THEY -- PHILIP S. ADELMAN: I'M SORRY I MISS UNDERSTOOD.
JUSTICE SOLOMON: ARE THEY ABSOLUTELY IMMUNE. PHILIP S. ADELMAN: THEY ARE
IMMUNE FOR USING THEIR DISCRETION. IF THERE'S SOME SORTS OF ABUSE OF DISCRETION OR THIS
WAS FOUNDZ TO BE ARBITRARY OR CAPRICIOUS OR SOMETHING THAT WAS COMPLETELY OUTRAGEOUS,
THEN THAT MAY BE CONSIDERED AN ABUSE OF DISCRETION. JUSTICE SOLOMON:
BUT THAT DOESN'T AFFECT THE EN MUNICIPAL IN THE UNDER THE TORT TORT CLAMENTS ABLTH. ON
THE 1 HANDS WE HAVE ARGUMENT THAT'S GOING ON HERE THAT THE STANDARD IS THE RECKLESSNESS,
COULD A JURY CONCLUDE THAT THEIR CONDUCT WAS RECKLESS UNDER THE CIRCUMSTANCES, A REASON
ABLG JURY. ON THE OTHER HAND, DISCRETION IN WHICH THEY'RE THEY'RE PROBABLE ABSOLUTELY
IMMUNE, RT. PHILIP S. ADELMAN: THAT'S CORRECT. JUSTICE SOLOMON:
ISN'T THAT REALLY THE ARGUMENT YOU'RE MAKING COULDN'T TWOEF DECIDE KOSHGS A REASONABLE
JURY CONCLUDE THAT THEY ACTED RECKLESSLY UNDER THESE CIRCUMSTANCES OR COULD NO REASON
AR JURY KWON CLUED THAT IN WHICH CASE THE TRIAL COURT WOULD BE RIGHT OR WERE THEY EXERCISING
DISDMREGS WHICH CASE THEY'RE ABSOLUTELY IMMUNE HERE IN THIS CIRCUMSTANCE NRJ CASE. THOSE
ARE YOUR TWRO ARGUMENTS, RIGHT? FILL FELL ESSENTIALLY S YOUR HONOR, THAT'S THE DECISION
THE JUSTICES HAVE TO MAESHG, YES. JUSTICE SOLOMON: THAT'S UNDER THE FACTS
OF THIS CASE AS THEY EXIST AND THE LAW AS YOU UNDERSTAND IT, THAT'S WHAT YOU'RE GOING
TO FEG OUT. FILL FELL CORRECT. JUSTICE SOLOMON: NOT A SIMPLE NEGLIGENCE.
R WE SRNLY I THINK ALTHOUGH THIS IS RAISED QUITE A BIT, HE DID HAVE A 20 BUT THERE'S NO
EVIDENCE OR SUKS THAT HE WAS ENCOMPASS INCAPACITATED IN ANY WAY, IN FAKTS THEY MIGHT
HAVE HAD TO DO SOMETHING, TAKE HIM TO A CENTER TO DRY OUT OR DO SOMETHING UNDER STATUTE
BUT HE'S NOT TIN COMPASS TATSED TILL. PHILIP S. ADELMAN: FILL NO, AND AUMG
THE PARTIES HAVE STATES THE THAT IN THEIR PAPERS THAT HE WAS NOT INCAPACITATED AT ALL.
SOL SOM I'M JUST TRY. JUSTICE SOLOMON: I'M JUST TRYING TO FIGURE OUT HOW
DO ANY OF THESE STACHS APPLY EXCEPT THE GENERAL PRINCIPLES OF THE COURT CLAMENTS CLAMGS
ACT WHICH RESULT IN A EFTS RAISE, A LEGAL QUESTION TOOGS WHETHER THEIR KUNTHSD THE
CIRCUMSTANCES AND CIRCUMSTANCES COULD BE CONSTRUED BY A REASONABLE JURY AS RECKLESS. THAT'S
REALLY WHAT WE'RE CONFRONTED WITH, I THINK. MR. ANDREWS OR MR. MENACIN ARE GOING TO ARGUE
THAT POINT, BUT THAT'S WHERE I'VE BEEN ARGUE NOTWITHSTANDING I WAS THESE ODD SUPPOSITIONS
OR ROARED FACTS, ALLEGED FACT, WHATEVER. PHILIP S. ADELMAN: I AGREE EXACTLY
WHAT WITH YOUR HONOR SAYS. JUSTICE LAVECCHIA: MR. ADELMAN CAN I FOLLOW
UP ON THE STARRED DARD YOU'RE SAYING APPLIES. BECAUSE IN THE HEAVY BEM, HEN IN A BEM
MA I MAY HAVE MISPRONOUNCE DZ THAT KASHGS I THOUGHT IT WAS PRETTY CLEAR THAT THE STARRED
DARD FOR LIABILITY UPTSDZ THE TORT CLAIMS ACT FOR MINISTERIAL ACTS IS ORDINARY NEGLIGENCE.
FILL FELL FOR MINISTERIAL ACTS, YES. VEK VK SO WHEN. JUSTICE LAVECCHIA:
SO WHEN JUSTICE SOLOMON WAS ASKING AT THE OUTSIDE OF HIS LINE OF QUESTIONS IF THE CAR
ACCIDENTS IS GOING TO BE REFEUD IN THE CONTEXT OF POLICE OFFICERS RESPONDING AND PERFORMING
A MINISTERIAL ACT, WHAT STANDARDS APPLIES, YOU RESPONDED RECKLESS. AND YONZ WHERE YOU
GET THAT FROM BECAUSE I THOUGHT AGAIN REPEATEDLY MINISTERIAL ACTS ARE GOFRED BY THE ORDINARY
NEGLIGENCE STANDARD. PHILIP S. ADELMAN: JUSTICE I MAY HAVE MISUNDERSTOOD
OR MISCONSTRUED WHAT WAS SAID BUT FOR MINISTERIAL I AGREE WITH WHAT YOUR HONOR IS SAYING.
JUSTICE LAVECCHIA: OKAY. AND I THINK PROBLEM PAL PAL UNREASONABLE FRPTS
SKER SIEGS MAKING ABOUT THE ALLOCATION OF PUBLIC RESOURCES WHICH THAT WAS NOT WHAT WAS
BEING DISCUSSED IN THAT LAST LIEVEN QUESTIONING. FILL FULLY CORRECT. JUSTICE
LAVECCHIA: ISN'T RESPONSE TO THE CAR ACCIDENT. WE WERE IN THE REALM OF NEGLIGENCE IN
DETERMINING WHETHER OR NOT THERE IS AN ISSUE OF FACT THAT GOEGS TO A JURY. YEKT? IF
WE VIEW THIS AS A MEN STEERL ACT. PHILIP S. ADELMAN: IF YOU VIEW IT AS
MINISTERIAL, YES. JUSTICE LAVECCHIA: THANK YOU. CHIEF
JUSTICE RABNER: ODD QUESTIONS ANYONE? MR. ADELMAN WOULD YOU LIKE TO CLOSE YOUR ARGUMENT
OUT I WANT TO. PHILIP S. ADELMAN: I WARN TO OFFER A FEW OTHER QUICK STATES
IF YOU'LL JUST BEAR WITH ME HERE. CHIEF JUSTICE RABNER: I WAS HOPING FOR
A CONCLUSORY SUMMING UP. PHILIP S. ADELMAN: NO NTS FINE. WELL.
CHIEF JUSTICE RABNER: WELLON THE 30 MINUTES R. PHILIP S. ADELMAN: AND I
APPRECIATE THAT. AND I SINCERELY APPRECIATE THE INDULGENCE. IN THIS CASE,
THE ACTS OF THE OFFICERS AT ISSUE WERE ADDITION KREGS NAER. THE ACTS CONCERNING THE
ACCIDENT MEANING TOWING OF THE CAR AND MAKING SURE THAT MR. GONZALEZ NEEDED MEDICAL TREATMENT
WERE MINISTERIAL. THOSE WERE TAKEN CARE OF AND ONCE THAT WAS CONCLUDED, HE BECAME, THE
SITUATION BECAME THE EXACT SITUATION IN MAURER RE. ONCE THAT SITUATION AROSE, THEIR
DECISION WGS DISCRETIONARY IN DETERMINING HIS TOXICITY LEVEL, HOW TO HELP HIM, HOW BEST
TO HELP HIM, THOSE DECISIONS ARE PROTECTED AND I WILL MUNICIPAL UNDER THE TORT CLAIMS
ACT AND 26:2B-16. AND THEREFORE IT'S AT THAT POINTS THAT THE PETITIONERS ARE MANY
MUNICIPAL UNDER BOTH OF THOSE STATUTES. AND AS I HAD ASKED ASK FOR 3 MINUTES TO REBUT
INITIALLY. THANK YOU YOUR HONOR. CHIEF JUSTICE RABNER: MR. RENAUD. REN
I HAVE TO SAY CAN DIDZLY THAT I LOOK AT THIS ON BEHALF OF THE LEAGUE REASON AND INSTITUTE
FROM A DIFFERENT PERSPECTIVE. I BELIEVE THAT THE STATUTE 262 B 16 IS APPLICABLE. IT
PERTAINS TO 2 DIFFERENT SITUATION SOCIAL SECURITY WERE YOU EVER THEM BEING A PERSON WHO
IS INTOXICATED IN A PUBLIC PLACE WHO MAY BE ASSISTED TO HIS RESIDENCE TORE TO AN EN TOX
KATSED TREATMENT CENTER OR OTHER FACILITY BY A POLICE OFFICER OR OTHER AUTHORIZED PERSON.
ALTERNATIVELY, ANY PERSON WHO IS INTOXICATED IN A PUBLIC PLACE AND WHO A POLICE OFFICER
HAS REASON TO BELIEVE IS INCAPACITATED SHALL BE ASSISTED BY A POLICE OFFICER. SO WE HAVE
A MAY FOR INTOXICATED AND WAVE SHALL FOR INCAPACITATED. THE (THIS RENAUD) THE FACT
THAT THE PLAINTIFF'S DECEDENT IN THIS CASE WAS STIPULATED TO BE INTOXICATED BUT NOT IP
COMPASS AT ANY TIMED IS IMPORTANT BECAUSE NOT EVERY PERSON WHO IS INTOXICATED IS THE NOT
ABLE TO HANDLE HIS OWN AFFAIRS OR TO NOT WALK INTO IS A ROADWAY WHERE HE WILL BE STRUCK.
AND THAT STATUTE HAS A, AN ABSOLUTE INMUNICIPAL IN THE IMMUNITY, NO A CONDITIONAL BUT
ABSOLUTE SIM MUNICIPAL IN THE H. JUSTICE PATTERSON: DOES THAT STAPT MR.
RENAUD GIVE POLICE OFFICERS THE RIGHT TO TRANSPORTS AN UNWILLING PERSON WHO IS
INTOXICATED BUT NOT INCAPACITATED? ROBERT F. RENAUD: YOU KNOW, THAT'S AN
ACTUAL EX LENGTHS QUESTION, JUSTICE PATTERSON, AS TO WHETHER WHERE ITSD SAYS A PERSON,
ANY PERSON WHO IS INTOXICATED MAY BE ASSISTED. I WOULD SAY NO BECAUSE THERE'S, TO ME
THERE'S A DIFFERENCE BETWEEN THE ASSISTING AND REQUIRING OR FORCING. SO.
JUSTICE PATTERSON: IF IN FACT THE ONLY WAY RN I'M NOT SAYING THESE FACTS DO OR DON'T FIT
INTO THIS CATEGORY, BUT IF IN FACT THE ONLY WAY TO KEEP A PERSON SAFE IS TO PUT THEM IN
A PATROL CAR AND TAKE THEM OFF A BRIDGE OR SOMEWHERE OTHER THAN WHERE THEY ARE OR WHERE
THEY WANT TO WAIT, DOES THAT CONFER RIGHTS ON POLICE OFFICERS TO DO WHAT MIGHT OTHERWISE
NOT BE ACCEPTABLE TO DO AND THAT IS TO FORCE SOMEBODY INTO A PATROL CAR WHO IS NOT BEING
ARRESTED? REN IT MAY. I MEAN WE CERTAINLY WOULD ARGUE THAT AND IF, CANDIDLY IF A LAWSUIT
WAS BROUGHT UNDER THE STATUTE FOR LET'S SAY INVOLUNTARILY SAFTING SOMEONE, WE WOULD
CERTAINLY CONTENDS THAT THAT ACTION BY THE POLICE OFFICER WASLY MUNICIPAL. BUT I THINK
IT'S IMPORTANT IN THIS CASE RPT AND TO SOME EXTENT I THINK THAT THE PLAINTIFF DOESN'T
FOCUS ON THIS EITHER, IS THAT THERE'S A DIFFERENCE BETWEEN BEING INTOXICATED AND
INCAPACITATED. IT SEEMS TO ME THAT ONCE WE UNDERSTAND RPT THAT THE PLAINTIFF, IT HAS
BEEN STIPULATED IS NOT INCAPACITATED, THEN DOES THAT NOT TAKE OUT FROM THE OFFICER'S THOUGHT
PROCESS THAT THE PERSON MAY FOR NO REASON, WHEN WE CONSIDER AULG OF THE THINGS THAT THE
POLICE OFFICERS HAVE DONE OR ATTEMPTED TO DO FOR THIS PERSON, THEY ATTEMPTED TO GET HIM
AR RIDE WITH THE TOW TRUCK OPERATOR, THEY OFFERED TO DRIVE HIM OF THE PRILTS TEE MUCH
WHEREVER HE WANTED TO GO TO A SAFE PLACE. THEY TOOK CARE OF MAKING SURE HIS VEHICLE WAS
TAKEN CARE OF AND THEY PUT HIM IN A SAFE PLACE BEHIND A GUARDRAIL. SO IF HE'S NOT, IF
WE UNDERSTAND THAT IT LAB STIPULATED THAT HE'S NOT INCAPACITATED, I THINK THE HASN'T THE
DIDN'T OFFICER DONE EVERYTHING? JUSTICE ALBIN: I WANT TO FOLLOW UP HON
JUSTICE PATTERSON'S QUESTION WHICH I THINK WAS VERY, VERY GOOD. TAKE THIS CASE, BUT IMAGINE
THAT THERE'S NO GUARDRAIL AND THAT THERE'S NO PATHWAY. THAERS JURT ROADWAY. AND THE
PERSON HAS GOT A .20 AND HE REFUSES TO GO WITH THE POLICE OFFICERS, UNDER, WOULDN'T YOU
SAY THAT THE POLICE OFFICERS HAVE THE AUTHORITIES TO PUTS HIM IN THE CAR EVEN AGAINST
HIS WILL TO PROTECT HIM? ROBERT F. RENAUD: JUSTICE ALBIN, DON'T WE HAVE
TO ASSUME NORDZ TO ANSWER THAT QUESTION THAT'S POLICE OFFICERS KNOW THAT HE HAS A .20?
JUSTICE ALBIN: LET'S WE'RE ON A SUMMARY JUFLT RECORD SO LET'S ASSUME THAT
HE'S SHOWING SIGNS OF INTOXICATION, AK SEPTS THAT FOR PURPOSES OF THE RECORD NOW. IT
WOULD SEEM TO ME THAT 26, 2 B 16 GIVES HIM THE PERMISSION TO DO THAT. AND THEN THEY'RE
PROTECTED AND THEY PUT HIM IN THE CAR AND THEY DRIVE HIM TO SOMEWHERE, THEY HAVE ABSOLUTELY
IMMUNITIES UPD THAT STACH. T T SUPTD THAT STATUTE, CORRECT? . ROBERT F.
RENAUD: NOW, ISN'T, WOULDN'T THIS SITUATION THERE BE THAT ANY TIME -- SEE, YOU SORT OF
GET BACK TO THIS OTHER IMMUNITY WHICH IS IF THE PERSON IS OVER A .08, HE PROBABLY IS SUPPOSED
TO BE ARRESTED FOR DWI, NOT TAKEN HOME. HE'S SUPPOSED TO BE ARRESTED IF HE'S ACTUALLY
INTOXICATED. JUSTICE ALBIN: THAT'S A DEFRTS ISSUE. THAT DEELGS WITH ENFORCE
MANY OF LAW. LET'S DEEM WITH THE IMMUNITY 262 B 16, A PERSON WHO IS INTOXICATESED IN
A PUBLIC PLACE MAY BE A CIVILIANED TO HIS DRENS OR INTOXICATION TREATMENT CENTER FALTS
BY A POLICE OFFICER. THE FZ THEY THINK THAT THE INTOXICATED PERSON IS STANNED ON A ROADWAY,
OKAY, AND CAN DMOT TB LEFT ANY OFLY THERE AND TRANSPORT HIM, THIS STATUTE WILL PROVIDE
THE OFFICER'S IMMUNITY. AM I MISTAKEN ABOUT THAT? ROBERT F. RENAUD: I
WOULD, I WILL ACCEPT THAT PROPOSITION. I'M NOT ABSOLUTELY SURE THAT THAT'S THE FACT BECAUSE
OF THE FACT THAT IT SAYS MAY BE ASSISTED. I MEAN I DON'T KNOW THAT SOME --
JUSTICE ALBIN: WELL, IT MAY MEANS IT IS GIVES THEM DISCRETION TO ASSIST. THE.
ROBERT F. RENAUD: THAT'S A I'M SAYING IS MAY BE ASSISTED, IT DOESN'T SAY MAY BE, IT DOESN'T
-- IT IS DOESN'T SAY MAY BE TAKEN INTO CUSTODY OR I MEAN WHEN YOU FORCE SOMEBODY, IF YOU'RE
A POLICE OFFICER AND YOU FORCE SOMEBODY INTO A CAR WITH YOU, WHEN YOU PUTS THEM IN THE
BACK SEATS AND YOU CLOSE THE DOORS, HAVEN'T YOU ARRESTED HIM? JUSTICE ALBIN:
NO, NOT NECESSARILY, HE WOULDN'T BE UPTDZ ARREST RS HE HADN'T COMMITTED A CRIME. YOU
PLACED HIM IN THE CAR FOR HIS SAFETY AND PROTECTION. STH WOULDN'T CONSTITUTES AN
ARREST. ROBERT F. RENAUD: ISN'T THAT WHAT THE PROBLEM THOUGH WHEN YOU TAKE
SOMEONE INTO CUSTODY INVOLUNTARILY, AND WHO IS NOT, WHO HASN'T CHETTED ANY CRIME COMMITTED
I CRIME. JUSTICE ALBIN: I'M TRYING TO UNDERSTAND, IS YOUR POSITION THAT
IF THERE WERE NO PATHWAY, THERE IS, THERE WAS, IT WAS JUST HIGHWAY AND HE DIDN'T WANT
TO GO, HE SAID CAN'T STANDS THE POLICE, DON'T WANTS TO GO WITH ANYONE, THEY COULD JUST
LEAVE HIM WALKING ON LINCOLN HIGHWAY ATS 5:00 NTS MORNING? ROBERT F. RENAUD:
LET ME ANSWER IT IS THIS WAY. IF WE HAVE A HIGHWAY AND IT'S GOT ONLY 2 LANES OF TRAVEL
AND THERE'S ABSOLUTELY NO SAFE PLACE, THERE'S NO WALKWAY, THERE'S NO GUARDS RAIL, THERE'S
NO ANYTHING, THE I WAS GOING TO GETS TO THIS LATER BUT THAT, COULD YOU ARGUE AND I THINK
THIS IS ANSWER TO THE QUESTION I THINK THAT JUSTICE PATTERSON ASKED OR MAYBE JUST TIS
SOL MOAN THE STARPDZ DAR WOULD BE WILLFUL MISS KUKTS BECAUSE THAT IS THE EXCEPTION, WHEN
YOU RPT UNDER 3 EPT 14, AULG THE IMMUNITIES ARE SUSHT TO 314. SO. CHIEF JUSTICE
RABNER: WITH BEFORE WE GET TO THAT, LOOKING AT 262 B 16 AND THE QUESTION THAT JUSTICE
PATTERSON POSEDED A LEL WHILE ABOUT WE HAD A AN OFFICER COULD FORCE SOMEONE INTO A PATS
TROEL CAR NOT INCAPACITATED BUT INTOXICATED DOES THE 1ST SENTENCE OF THIRD PARAGRAPH OF THE
STATUTE HELP IT SAYS AN OFFICER ACTING IN ACCORDANCE WITH THIS SECTION MAY USE SUCH
FORCE DOT DOT DOT AS HIS REASONABLY NECESSARY TO CARRY OU HIS AUTHORIZED RESPONSIBILITIES,
IS AN OFFICER RESPONSIBLE TO ASSIST AN INTOXICATED PERSON IN A PUBLIC PLACE? P.
ROBERT F. RENAUD: WELL, IN ANSWER TO THAT QUESTION THEN PERHAPS IF WE LOOK ATS
THAT SECTION, BUT IT MAY BE THAT THAT SECTION APPLIES ONLY TO THE THE SECOND PART WHICH
IS WHERE HE BELIEVES THAT HIS INCAPACITATED I ALSO HAVE SAY SHALL BE ASSISTED. SO SHALL
BE A ASSISTED IMPLIES MANDATORY AND AND IS MANDATORY BUT EVEN THOSE SECTIONS I KEEP
GOING DOWN FURTHER TO THE OF THE IMMUNITIES PART WHICH IS? LESS' ASSUME, LET'S A ASSUME
THAT THEY COULD PUT THE PLAINTIFF, THEY COULD HAVE PUT THE PLAINTIFF'S DECEDENT IN A CAR
AND TAKEN HIM SOMEPLACE INVOLUNTARILY. THE IMMUNITY STILL DOESN'T GO AWAY. THE IMMUNITY
IS EMBEDDED IN THE STATUTE AND AND I GUESS WE'RE NOT GOING TO GET THERE BUT WHERE I FRANKLY
HAD PLANNED TO START WAS TO REMINE THE COURT THAT NEITHER THE PLAINTIFF IN HIS, IN THEIR
BRIEF NOR THE APPELLATE DIVISION REFERRED TO A SINGLE THE CASE OF THIS COURT HAVING TO
DO WITH THE COURT CLAIMS ACT. THE APPELLATE DIVISION DECISION DOESN'T MENTION A SING
LE SUPREME COURT CASE. YOU, THIS COURT, HAS REPEATEDLY FOUNDZ IMMUNITIES AND WHERE
IMMUNITIES ARE APPLICABLE, THE EN OF THE CASE, THAT'S THE END OF THE CASE, THAT'S WHERE
THE INQUIRY ENDS. I WOULD SAY THE OSBORN CASE, MERCER CEMETERY, LEE VS. BROWN, KOL SO
2 AGAINST ESSEX COUNTY, PIE COMPANY VS. STATE AND I WOULD ALSO MENTION THAT I DON'T, I THINK
THAT THE MINISTERIAL DISCRETIONARY ADDITION TINGS THAT DISTINCTION THAT IS BEING MAIDS
MADE IN THIS CASE AND I HAVE TO CONCEDE EVEN BY THE PLAINTIFF, I DON'T THINK APPLIES BECAUSE
THE MINISTERIAL DISCRETIONARY DICHOTOMY DOES NOT APPLY TO ALL BUT A FEW IMMUNITIES UNDER
THE TORT CLAIMS ACT. THOSE; THIS COURT HAS FOUNDZ WUFRT THE EARLIER OCCASION MILLION
LOI VS. STATE, 1979 THAT I'M SORRY EARLIER, '78, THAT THE COURT CLAIMS ACT IMMUNITIES
APPLY TO BOTH DISCRETIONARY AND MINISTERIAL ACTS. YOU SAID THE SAME THING OR THIS COURT
SAID THE SAME THING IN PIKE COMPANY VS. STATE, IT SAID THE SAME THING IN RA SKIN CHEE
VS. STATE. THIS COURT HAS REPEATEDLY SAID THAT. THE THAT IT DOESN'T MATTER IF THERE'S
AN IMMUNITY THERE, SAN THERE IS AN IMPUNITY AND IT DOESN'T MATTER WHETHER IT'S DISCRETIONARY
OR WHETHER IT IS MINISTERIAL. . THE PLACE WHERE DISCRETIONARY AND MINISTERIAL
COMES IN IS IN SECTION 2-3 THAT HAS TO DO WITH ENTITIES AND 3-2 CLE HAS TO DO WITH PUBLIC
EMPLOYEES BUT IT DOESN'T HAVE TO DO WITH THE OTHER RNGSZ THE THE 0 PORTIONS OF THE TORT
CLAIMS ACT. SO THAT WHERE THERE'S A SPECIFIC IMMUNITIES SUCH AS FAILURE TO ENFORCE A
LAW OR THE PERMANENT IMMUNITY AS FAILURE TO MAKE AN EN SPEKZ, FOR EXAMPLE, ALL OF THOSE
ARE ABSOLUTE IMMUNITIES AND THEY HAVE NOTHING TO DO WITH WHETHER THE ACT IS ALLEGED TO BE
MINISTERIAL OR BETTER IT'S AL LEECHED RLECHD TO BE DISCRETIONARY. SO I THINK
THAT THAT IS, I THINK THAT IS NOT THE WAY TO APPROACH THIS, AS TO WHETHER IT'S A
DISCRETIONARY OR A MINISTERIAL ACT. I WOULD ALSO ADD THAT THE UNDER 3-3, ABOVE THE TREEL
COURT OR THE MOTION COURT AND THE APPELLATE DIVISION DISCUSSED THAT IT IS NOT MINISTERIAL
OR DISCRETIONARY, IT'S GOOD FAITH. SO IT'S EITHER GOOD FAITH WHICH HAS NOTHING TO DO
WITH MINISTERIAL OR DISCRETIONARY, I THINK THAT'S WHERE THE APPELLATE DIVISION FRANKLY
WAS IN ERROR BECAUSE THE WHAT IT MOSTLY BASED ITS DECISION ON IS IF THE APPELLATE DIVISION
DECISION SAYS SPECIFICALLY THE TORT CLAIMS ACT IMMUNE NTSZ DO NTS APPLY TO MINISTERIAL
ACTS. HAVING SAID THAT, I DON'T THINK THAT WHAT THE POLICE OFFICERS DID
IN THIS CASE WAS MINISTERIAL. YES, THEY HAVE TO RESPOND TO THE SCENE OF AN ACCIDENT
AND THEY HAVE TO DO CERTAIN BASIC DUTIES BUT I THINK THAT THE JUST THE THINGS THAT THEY
TRY TO DO MINISTERIAL MEANS THERE'S ONLY ONE COURSE OF ACTION THAT YOU CAN POSSIBLY TAKE.
IT'S OTHERWISE IT'S NOT MINIMUM MATERIAL STEERL, THEN IT'S DISCRETIONARY, YOU HAVE TO
DECIDE CHF THEY SAY THINGS SHOULD I DO. SO, FOR EXAMPLE, IN THIS CASE, THE OFFICERS MADE
A NUMBER OF DIFFERENT DECISIONS AND I THINK, YOU KNOW, IS IT FRPT, COULD THEY HAVE TAKEN
HIM INTO CUSTODY WHETHER HE WANTED TO BE OR NOT? WHETHER HE WANTED TO GET IN THE CAR
OR NOT? LET'S ASSUME FOR THE SAKE OF ARGUMENT THAT THEY COULD, IT SEEMS TO KNEE THAT
IS NOT A PT, THAT IS A DISCRETIONARY ACT, PARTICULARLY AGAIN WHEN WE REMEMBER WHAT THE
STEP LAGS WAS, WHICH WAS THAT HE WAS INTOXICATED BUT HE WASN'T INCAPACITATED. THAT HAS
TO BE CONSIDERED TO BE DISCRETIONARY BECAUSE THERE WERE SO MANY DIFFERENT THINGS THAT
THEY OFFERED AND THEN A NUMBER OF THINGS THAT COULD HAVE BEEN DONE. RT. THE
COURT COULD ALSO CONSIDER, YOU KNOW, WE HAVE THE OTHER STATUTES THAT WERE DISCUSSED AND
WE HAVEN'T REALLY SPENT ANY TIME TALKING ABOUT WHICH WAS 2-4 AND 3-5 WHICH WAS FAILURE
TO ENFORCE THE LAW, 5-5, FAILURE TO ARREST OR DETAIN. THOSE ARE REALLY AND THAT'S, IS THAT
REALLY WHAT WE'RE TALKING ABOUT. JUSTICE PATTERSON: THEY FAILED TO, I'M
SORRY, WHAT LAW DO YOU COULDN'T 10 THEY FAIL TO ENFORCE? ROBERT F. RENAUD:
I THINK THE UNSPOKEN OOL GAGS IS THEY SHOULD HAVE AR REFERRED HMENT FOR DWI BECAUSE HE WAS
INTOXICATEDED OR IF HE WAS INCAPACITATED, THEY THEY CERTAINLY SHOULD HAVE AR REFRTDED
ARRESTED HIM. BUT ESSENTIALLY WHAT IS BEING SUGGESTED IS THAT THEY SHOULD HAVE PERHAPS
TAKEN HIM FORCIBLY INTO THE CAR. JUSTICE PATTERSON: IS THERE A THEORY HERE
THAT THEY FAILED TO ENFORCE N.J.S.A. 2 B 16? ROBERT F. RENAUD: THE PLAINTIFF
IS WALKING AWAY FROM IT BECAUSE THE PLAINTIFF KNOWS THERE'S AN IMMUNITY IN THAT STATUTE
BUT I OBJECT THAT APPLIES. AND, YOU KNOW, IT IS OCCURS TO ME AS WE SPEAK THAT THE 5-5,
59:5-5 WHICH IS IMMUNITIES FOR FAILURE TO ARREST OR DETAIN SO THERE IS AN IMMUNITIES FOR
FAIL DWROER DETAIN WHICH WOULD BE THE INVOLUNTARY PUTTING IN THE CAR. AND SO, YES, THERE
IS ANOTHER POSHL I AM MINE IN THE THERE OF THE APPLY TO THE -- JUSTICE
PATTERSON: IS THERE A THEORY ON FAILURE TO ENFORCE A LAW THAT DOES NOT DEPEND ON A
FINDING THAT THAT THE SPDZ DECEDENT ACTUALLY VIOLATED THE LAW. IN OTHER WORDS DOESN'T
IT DEPENDS ON THERE BEING PROBABLE CAUSE TO AR REFRTS HIM FOR DWI? THE. ROBERT
F. RENAUD: YES, YOU MAY RECALL I DON'T KNOW WE HAD YOU DO OR NOT, BUT I MADE THAT VERY
ARGUMENT IN LEE VS. BROWN CASE, THAT THAT, YES, I AGREE WITH THAT PROPOSITION. THE.
CHIEF JUSTICE RABNER: MR. RENAUD I'M GIING TO ASK YOU TO TRY TO WRAP UP YOUR
ARGUE MANY PLEASE. ROBERT F. RENAUD: I THINK I HAVE CHIEF JUGS TIS.
THANK YOU VERY MUCH.