Presented by the Public Entity & Civil Rights Litigation Practice Group

Unanimous New Jersey Supreme Court Holds a Jury Must Decide If Police Officers’ Actions Were Discretionary or Ministerial

In Estate of Hiram A. Gonzalez v. City of Jersey City, Hiram Gonzalez was involved in a one-vehicle accident. Two police officers responded to the scene at approximately 2:30 a.m. and called for a tow truck for the vehicle. Mr. Gonzalez refused a ride offered by one of the police officers, instead deciding to stay on the bridge and wait for his brother to pick him up. The officers testified that usually they drive a person to a safe location, but in this case, Mr. Gonzalez refused the ride and there was no policy in the police department as to what to do in those circumstances. The officers told Mr. Gonzalez to remain in the pedestrian walkway until his brother arrived.

Over an hour later, Mr. Gonzalez walked in to the roadway and was struck and killed. According to the toxicology report, Mr. Gonzalez’s BAC was .209% at the time of his death. Both officers testified that Mr. Gonzalez did not appear to be intoxicated when they left him at the scene.

However, a friend of Mr. Gonzalez testified that Mr. Gonzalez called him after the police arrived and sounded drunk to him. Furthermore, the friend testified that he spoke to one of the police officers who said that Mr. Gonzalez had been drinking.

The City and the police officers argued that they were entitled to immunity based on the Tort Claims Act, specifically, N.J.S.A. 59:2-3 (immunity for discretionary activities for the public entity) and N.J.S.A. 59:3-2 (immunity for discretionary activities for public employees). The Supreme Court held that a jury must decide the threshold issue as to whether the actions of the police officers were ministerial or discretionary. If a jury concludes that the actions were ministerial, the Act does not apply and the jury will be instructed on an ordinary negligence standard. On the other hand, if the jury concludes that the actions were discretionary, the police officers would be entitled to qualified immunity and the judge must provide a jury instruction that the officers can only be liable if their actions were palpably unreasonable.

The defendants also sought immunity based on N.J.S.A. 59:2-4 (immunity for adoption or failure to adopt or enforce a law as to a public entity), N.J.S.A. 59:3-3 (immunity for execution or enforcement of laws as to public employee), 59:3-5 (failure to enforce a law as a public employee), N.J.S.A. 59:5-4 (failure to provide police protection) and N.J.S.A. 59:5-5 (failure to make an arrest). The court rejected all of these arguments and found that none of the sections applied to the facts of the case.

Additionally, the Supreme Court also rejected the police officers’ arguments that they were immune based on the Good Samaritan Act, N.J.S.A. 2A:62A-1, et seq., or N.J.S.A. 26:2B-16. N.J.S.A. 26:2B-16 is a statue that immunizes police officers from criminal or civil liability for assisting persons intoxicated in a public place to an appropriate location.

It is important to consult an attorney regarding all available defenses under the Tort Claims Act if your public entity or your public employee has been sued. Please do not hesitate to contact me to discuss any issue under the Tort Claims Act. I can be reached at 856-414-6048, or please email me at



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