1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

Estate of Hiram A. Gonzalez v. City of Jersey City (A-19-20) (084381)

Argued April 27, 2021 -- Decided August 4, 2021

SOLOMON, J., writing for a unanimous Court.

The Court considers whether officers responding to a one-vehicle accident on a 

highway bridge may be entitled, under the particular facts and circumstances of this case, 

to any of the immunities from liability provided by the New Jersey Tort Claims Act 

(TCA), the Good Samaritan Act, or N.J.S.A. 26:2B-16, a statute that immunizes officers 

from liability for assisting persons intoxicated in a public place to an appropriate location.

On August 3, 2014, at approximately 2:26 a.m., Hiram Gonzalez was involved in a 

one-vehicle accident. Officers Leon Tucker and Saad Hashmi of the Jersey City Police 

Department (JCPD) were dispatched to the scene. They determined Gonzalez’s vehicle

was inoperable and called for a tow truck. Officer Tucker offered to drive Gonzalez to a 

nearby gas or PATH station, but Gonzalez refused, saying he would wait for his brother.

Officer Hashmi acknowledged that the standard police practice is to leave a 

stranded motorist in a safe place or offer them a ride within the city’s limits, but he 

claimed there is no standard practice for when a stranded motorist refuses a ride but is not 

in a safe place. Officer Hashmi also stated that he and Officer Tucker could have waited 

with Gonzalez until he had a ride, but they did not because it was a busy Saturday night 

in the summer and “there were a lot of calls going out.”

A call transcript shows that at 3:24 a.m., Officer Tucker told a dispatcher the

“driver is gonna wait for his brother in the same location where he was. He refused to get 

in the car with us to head to the [S]hell station.” The dispatcher responded “ok.” Before 

leaving the scene after that call, the officers told Gonzalez to remain in the pedestrian 

walkway, which had a guardrail between the roadway and the sidewalk. Gonzalez was 

struck at around 3:42 a.m. According to a toxicology report, he had a BAC of .209% at 

the time he died. The officers claimed that Gonzalez did not appear intoxicated.

Gonzalez’s Estate filed a complaint against the City of Jersey City, the JCPD, 

and Officers Tucker and Hashmi. The trial court granted summary judgment for 

defendants, finding that the officers undertook their duties in good faith and were 

therefore immune from liability under the TCA. The Appellate Division reversed, 
2

holding that defendants were not entitled to TCA immunities. The court found that 

“because the officers were called to the scene of a motor vehicle accident, the officers’ 

duty was ministerial in nature.” The Court granted certification. 244 N.J. 341 (2020).

HELD: The immunities from liability provided by the Good Samaritan Act, N.J.S.A. 

26:2B-16, and most TCA provisions invoked by defendants do not apply here. 

Defendants’ actions may be entitled to qualified immunity under certain TCA provisions 

on which defendants rely, however, if the involved officers’ actions were discretionary, 

rather than ministerial, in nature. In this instance, because of a factual dispute, that 

determination is for the jury to make upon remand.

1. The Good Samaritan Act’s purpose is to encourage bystanders to provide affirmative 

aid to an injured person, even where there is no duty to do so. N.J.S.A. 2A:62A-1.1 

immunizes law enforcement officers -- absent gross negligence -- “for any civil damages 

as a result of any acts or omissions undertaken in good faith in rendering care at the scene 

of an accident or emergency to any victim thereof.” (emphasis added). Significantly, 

although the section provides immunity for certain “omissions” as well as “acts,” 

omissions must occur “in rendering care” to be immunized. In this matter, the officers’ 

actions do not implicate the Good Samaritan Act. (pp. 14-16)

2. N.J.S.A. 26:2B-16 is similarly inapplicable here. That statute imposes a duty upon an

officer to remove an incapacitated individual from a public place to an intoxication 

treatment center. However, if an individual is intoxicated but not incapacitated, an 

officer is permitted, in his discretion, to remove the individual from a public place to an 

intoxication treatment center. The statute provides immunity that applies to both the 

decision to remove an intoxicated individual and the determination as to his 

incapacitation. Here, because neither officer believed that Gonzalez was intoxicated, 

they did not make the necessary determination that would allow their actions to be 

immunized under N.J.S.A. 26:2B-16. Additionally, they provided no assistance to 

Gonzalez, but rather left him on the same part of the bridge where they first encountered 

him. This is not action or assistance as contemplated by N.J.S.A. 26:2B-16. (pp. 16-19)

3. Liability under the TCA depends on whether the conduct of individuals acting on 

behalf of the public entity was ministerial or discretionary. When a public entity’s or 

employee’s actions are discretionary, liability is imposed only for palpably unreasonable 

conduct. Liability for ministerial actions, in contrast, is evaluated based on an ordinary 

negligence standard. Ministerial acts are those which a person performs in a given state 

of facts in a prescribed manner in obedience to the mandate of legal authority. One such 

ministerial act is a police officer responding to the scene of an accident. Such actions are 

not immunized even when they may entail operational judgments, such as when, where 

and how to carry out a required duty. In Suarez v. Dosky, the Appellate Division found 

that officers responding to the scene of a car accident were not insulated from liability 

under the TCA because they “negligently executed ministerial duties” when they 
3

declined a request from the car’s passengers to be escorted from the highway and two of 

those passengers were struck by vehicles and killed. 171 N.J. Super. 1, 5-10 (App. Div. 

1979). Conversely, in Morey v. Palmer, the appellate court found that an officer’s 

discretionary determination that a pedestrian who had been standing in a roadway was 

intoxicated but not incapacitated meant that the officer was immunized under the TCA. 

232 N.J. Super. 144, 147-52 (App. Div. 1989). Whether an officer’s conduct was

ministerial or discretionary is a fact-sensitive analysis. (pp. 20-25)

4. Here, if the facts in dispute are necessary to resolve whether conduct is discretionary 

or ministerial, summary judgment is improper; resolution of those facts requires 

submission to the jury. At least some of the officers’ actions in this case were ministerial, 

to which an ordinary negligence standard applies. However, the decision when to leave 

the accident scene and where to leave Gonzalez is a closer question. N.J.S.A. 59:2-3(d) 

and :3-2(d) provide qualified immunity “for the exercise of discretion when, in the face 

of competing demands, [the public entity or employee] determines whether and how to 

utilize or apply existing resources” unless “a court concludes that the determination . . . 

was palpably unreasonable.” Whether or not conduct is palpably unreasonable is a jury 

determination. In the present case, there are genuine issues of material fact as to whether 

the officers were called away from the scene or decided on their own to leave, and 

whether they considered allocation of resources in reaching their decision. (pp. 26-29)

5. The Court reviews Model Civil Jury Charge 5.10A and provides guidance as to how 

that charge should be tailored and applied in this case. Only after determining whether 

the officers’ actions were ministerial or discretionary should the jury apply the 

appropriate standard to evaluate the officers’ conduct. If the jury determines that the 

decision to leave Gonzalez was ministerial, then the officers are not entitled to immunity 

under any provision of the TCA. The jury should therefore apply ordinary negligence 

principles, like those in Model Charge 5.10A, to the officers’ conduct to determine 

whether defendants are liable. However, should the jury determine that the officers’ 

decision to leave was discretionary, then qualified immunity exists in favor of defendants 

under N.J.S.A. 59:2-3(d) and :3-2(d), and the jury must then resolve any material facts at 

issue bearing upon whether defendants’ conduct was palpably unreasonable. (pp. 30-31)

6. The Court explains why other sections of the TCA cited by defendants in asserting 

immunity from liability -- N.J.S.A. 59:2-4 and :3-5 (failure to enforce a law), :3-3 (good 

faith enforcement of a law), :5-5 (failure to make an arrest), and :5-4 (failure to provide 

police protection) -- do not apply here. (pp. 31-33)

AFFIRMED AS MODIFIED. REMANDED to the trial court.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, 

and PIERRE-LOUIS join in JUSTICE SOLOMON’S opinion. JUSTICE 

FERNANDEZ-VINA did not participate.
1

SUPREME COURT OF NEW JERSEY

A-19 September Term 2020

084381

Estate of Hiram A. Gonzalez,

by Iraideliz Gonzalez,

Administrator Ad Prosequendum,

Plaintiff-Respondent,

v.

The City of Jersey City,

the Jersey City Police 

Department, Police Officer

Leon Tucker, Jr., and Police

Officer Saad Hashmi,

Defendants-Appellants,

and

Eman S. Ahmed and Elham M. Mansour,

Defendants.

On certification to the Superior Court, 

Appellate Division.

Argued

April 27, 2021

Decided

August 4, 2021

Philip S. Adelman, Assistant Corporation Counsel, 

argued the cause for appellants (Peter J. Baker, 

Corporation Counsel, Jersey City Law Department, 

attorneys; Philip S. Adelman and Stevie D. Chambers, 

Assistant Corporation Counsel, on the briefs).
2

Lawrence D. Minasian argued the cause for respondent 

(Greenberg Minasian, attorneys; Lawrence D. Minasian 

and William S. Greenberg, on the briefs).

Robert F. Renaud argued the cause for amici curiae New 

Jersey State League of Municipalities and the New Jersey 

Institute of Local Government Attorneys (Renaud 

DeAppolonio, attorneys; Robert F. Renaud, on the brief).

Kenneth G. Andres, Jr., argued the cause for amicus 

curiae New Jersey Association for Justice (Andres & 

Berger, attorneys; Kenneth G. Andres, Jr., of counsel and 

on the brief, and Tommie Ann Gibney, on the brief).

Jonathan Testa submitted a brief on behalf of amicus 

curiae New Jersey Municipal Excess Liability Joint 

Insurance Fund (Dorsey & Semrau, attorneys; Fred C. 

Semrau, of counsel, and Jonathan Testa, on the brief). 

JUSTICE SOLOMON delivered the opinion of the Court.

In this appeal we are called upon to determine whether officers

responding to a one-vehicle accident on a highway bridge may be entitled, 

under the particular facts and circumstances of this case, to any of the 

immunities from liability provided by the New Jersey Tort Claims Act (TCA), 

N.J.S.A. 59:1-1 to :12-3, the Good Samaritan Act, N.J.S.A. 2A:62A-1 to -35, 

or N.J.S.A. 26:2B-16, a statute that immunizes officers from civil or criminal 

liability for assisting persons intoxicated in a public place to an appropriate 

location.
3

Hiram Gonzalez was in a one-vehicle accident on the Lincoln Highway 

Bridge in Jersey City. Officers Leon Tucker and Saad Hashmi of the Jersey 

City Police Department responded to the scene. After Gonzalez’s pickup truck

was towed, and he rejected offers from the officers to drive him to a nearby 

location off of the bridge, he called a friend to pick him up. The officers left 

before Gonzalez’s ride arrived, leaving him behind a guardrail on the bridge. 

After the officers left, Gonzalez walked onto the road, where he was struck by 

a car and killed. Gonzalez had a blood alcohol content (BAC) of .209% at the 

time he died.

The Estate of Hiram Gonzalez filed a negligence action against

defendants -- the City of Jersey City, the Jersey City Police Department, and 

Officers Tucker and Hashmi. The trial court granted summary judgment in 

favor of defendants, finding they were entitled as a matter of law to immunity 

from liability under the TCA. The Appellate Division reversed, holding that 

the officers’ actions were ministerial and therefore the defendants are not 

entitled to the TCA’s protections. 

We modify and affirm the judgment of the Appellate Division. The

immunities from liability provided by the Good Samaritan Act, N.J.S.A. 

26:2B-16, and most TCA provisions invoked by defendants do not apply here. 

Defendants’ actions may be entitled to qualified immunity under certain TCA 
4

provisions on which defendants rely, however, if the involved officers’ actions 

were discretionary, rather than ministerial, in nature. In this instance, because 

of a factual dispute, that determination is for the jury to make upon remand.

I.

A.

The trial and appellate records, including the depositions of the officers,

reveal the following facts, which we review in a light most favorable to 

plaintiff, the non-moving party. See Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 540 (1995).

On August 3, 2014, at approximately 2:26 a.m., Gonzalez was involved 

in a one-vehicle accident on the Lincoln Highway Bridge in Jersey City.

Officers Tucker and Hashmi were dispatched to the scene. When they arrived, 

Gonzalez’s truck was facing the wrong direction against the curb. Gonzalez 

told them that the vehicle had spun out of control. The officers did not recall

seeing any external damage to the car.

1

 The officers pushed Gonzalez’s 

vehicle to the side of the road and determined that it was inoperable.

1

 Photographs later revealed fresh damage to the front left of Gonzalez’s 

vehicle.
5

The officers called for a tow truck, and after its arrival the driver was 

asked to take Gonzalez to the tow company’s lot, but the driver refused. 

Officer Tucker then offered to drive Gonzalez to a nearby Shell gas station or 

the Journal Square PATH station, but Gonzalez refused. Officer Tucker 

repeated the offer several times and told Gonzalez the bridge was not a safe 

place to wait -- noting several places on the bridge with dim lighting -- but 

Gonzalez stated, “I am not riding with no Jersey City cops.” At his deposition, 

Officer Hashmi testified that picking up Gonzalez from the poorly lit shoulder

would be “dangerous,” and neither he nor Officer Tucker believed the decision 

to remain on the bridge was wise. However, Gonzalez told the officers at the 

scene that he would wait for his brother, who was a detective with the Newark 

Police Department.2 

David Martinez testified at his deposition that when Gonzalez called him 

at around 3 a.m., he was irate, and Martinez believed that Gonzalez was drunk. 

Gonzalez told Martinez that officers pulled him over and were trying to arrest 

him. Martinez testified he then spoke with an officer. According to Martinez, 

the officer on the phone told him that Gonzalez had been drinking and could 

2 Gonzalez was waiting for David Martinez, who is a police officer with the 

Newark Police Department. However, Martinez is a friend of Gonzalez’s 

sister, rather than Gonzalez’s brother. 
6

not drive, and it would “be nice if somebody could come pick him up.” When 

Martinez asked whether Gonzalez was under arrest, the officer said Gonzalez 

was not under arrest but needed a ride home. Martinez told the officer he 

would pick up Gonzalez. Neither officer recalled speaking with Martinez. 

The officers waited with Gonzalez for Martinez for about fifteen to 

twenty minutes. Officer Hashmi acknowledged that the standard police 

practice is to leave a stranded motorist in a safe place or offer them a ride 

within the city’s limits, but he claimed there is no standard practice for when a 

stranded motorist refuses a ride but is not in a safe place. Officer Hashmi also 

stated that he and Officer Tucker could have waited with Gonzalez until he had 

a ride, but they did not because it was a busy Saturday night in the summer and 

“there were a lot of calls going out.” 

Both officers stated that a dispatcher told them to resume patrol. The 

call transcript shows, however, that at 3:24 a.m., Officer Tucker told a

dispatcher, “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 in the car with us 

to head to the [S]hell station.” The dispatcher responded “ok.” Before leaving 

the scene after that call, the officers told Gonzalez to remain in the pedestrian 

walkway, which had a guardrail between the roadway and the sidewalk. 
7

After the officers left the scene, at approximately 3:42 a.m., a 9-1-1 call 

reported a crash involving a pedestrian. Gonzalez had been hit by a car 

driving in the center lane of the eastbound section of the Lincoln Highway 

Bridge.

3

 The accident occurred on a dark area of the bridge, around 1,500 feet 

from where the officers left Gonzalez behind the guardrail. 

Earlier in the evening, Gonzalez had posted pictures of alcoholic drinks 

on his social media, and an opened bottle of Hennessy was found in his truck 

after the accident. According to a toxicology report, Gonzalez had a BAC of 

.209% at the time he died, and when he was with the officers his BAC would 

have been between .20% and .226% -- more than twice the legal limit. The 

toxicologist concluded that Gonzalez would have been “markedly intoxicated” 

when speaking with the police. 

The officers claimed, however, that Gonzalez did not appear intoxicated. 

Officer Hashmi stated that he did not detect the smell of alcohol and Gonzalez 

was not staggering or slurring his words. Officer Tucker noted that he did not 

observe behaviors indicating that Gonzalez was intoxicated. Furthermore, 

Officer Tucker stated that he would have let Gonzalez drive away from the 

3

 Another driver had noticed Gonzalez on the right lane of the bridge walking 

into the middle of the street. The driver described Gonzalez as “stumbling” 

and believed he was drunk due to his behavior and lack of reaction to 

oncoming cars.
8

scene had his vehicle been working, and he expressed surprise when he learned 

the level of Gonzalez’s BAC. 

B.

Gonzalez’s Estate filed a complaint against defendants.4 Defendants 

moved for summary judgment, arguing that various provisions of the TCA 

immunized them from liability. The trial court granted summary judgment for 

defendants and dismissed the Estate’s complaint with prejudice, finding that 

the officers undertook their duties in good faith and were therefore immune 

from liability under N.J.S.A. 59:3-3. In doing so, the trial court analogized the 

facts of this case to those in Morey v. Palmer, 232 N.J. Super. 144 (App. Div. 

1989), but distinguished them from Suarez v. Dosky, 171 N.J. Super. 1 (App. 

Div. 1979). 

The Appellate Division reversed the grant of summary judgment, 

holding as a matter of law that defendants were not entitled to the immunities 

provided by the TCA. Relying on Suarez, the appellate court found that 

“because the officers were called to the scene of a motor vehicle accident, the 

4

 The Estate also brought claims against both the driver and the owner of the 

car that struck Gonzalez. Prior to the motion for summary judgment, the 

Estate stipulated that its claims against the driver and the owner were 

dismissed with prejudice. 
9

officers’ duty was ministerial in nature -- they had a ministerial duty to render 

assistance to Gonzalez.” 

The Appellate Division framed the “controlling issue” in this case as 

“whether the officers satisfied their ministerial duty to render assistance to 

Gonzalez after his motor vehicle accident.” In considering that issue, the 

Appellate Division noted “conflicting factual evidence” on issues such as how 

Gonzalez behaved; the conversations between Gonzalez, the officers, and 

Martinez; the condition of Gonzalez’s car; the officers’ exchange with the 

dispatcher; and the officers’ assessment of where they left Gonzalez. The 

Appellate Division therefore determined that the factfinder at trial should 

resolve “whether the officers executed their ministerial duties negligently.” 

We granted defendants’ petition for certification and allowed the parties 

to address immunity from civil liability under the Good Samaritan Act, an 

argument raised by amici. 244 N.J. 341 (2020). We also granted amicus 

curiae status to the New Jersey Municipal Excess Liability Joint Insurance 

Fund (NJMEL); the New Jersey State League of Municipalities (NJLOM) and

the New Jersey Institute of Local Government Attorneys (NJILGA), 

participating jointly; and the New Jersey Association for Justice (NJAJ). 
10

II.

A.

Defendants argue that Morey is the controlling precedent in this case, 

rather than Suarez, and that the trial court therefore correctly granted summary 

judgment. They assert that the officers used their discretion in good faith to 

assist an intoxicated Gonzalez. According to defendants, the officers’ conduct 

was not ministerial simply because they were responding to a motor vehicle 

accident, and the Appellate Division’s decision to reverse summary judgment 

has improperly “pre-determined” the officers’ potential liability by deciding

TCA immunities do not apply when responding to a car accident. Defendants 

assert that decision will cause law enforcement officers to avoid liability by 

considering the nature of a call when deciding whether to respond.

Defendants also claim that they are entitled to immunity under various 

provisions of the TCA, including N.J.S.A. 59:2-3(a), immunity for 

discretionary activities (public entity); N.J.S.A. 59:2-4, immunity for adoption 

or failure to adopt or enforce a law (public entity); N.J.S.A. 59:3-2(a) and (d), 

immunity for discretionary activities (public employee); N.J.S.A. 59:3-3,

immunity for execution or enforcement of laws (public employee); N.J.S.A. 

59:3-5, immunity for adoption or failure to adopt or enforce any law (public 

employee); N.J.S.A. 59:5-4, immunity for failure to provide police protection; 
11

and N.J.S.A. 59:5-5, immunity for failure to arrest or retain a person arrested 

in custody. Defendants further argue they are entitled to immunity under 

N.J.S.A. 26:2B-16 and the Good Samaritan Act.

Amicus NJMEL supports many of defendants’ arguments, contending

that the officers’ actions were not ministerial merely because they responded 

to a motor vehicle accident. The NJMEL further states that the Appellate 

Division’s decision conflicts with both New Jersey case law and the legislative 

purpose of the TCA. Additionally, the NJMEL maintains that cases such as 

Suarez and Praet v. Borough of Sayreville, 218 N.J. Super. 218 (App. Div. 

1987), have been superseded by the legislative amendment to the Good 

Samaritan Act, which immunizes the officers’ actions. The NJMEL also 

argues that the Appellate Division decision in this case construed N.J.S.A. 

26:2B-16 too broadly by imposing a new duty to detain and transport operators 

of disabled vehicles under almost any circumstances.

Amici NJLOM and NJILGA largely repeat the arguments of defendants 

and the NJMEL. They contend the Appellate Division incorrectly found that

N.J.S.A. 59:2-3(d) and N.J.S.A. 59:3-2(d) applied here and negated other, 

applicable TCA immunities. Amici further contend that, in addition to being 

entitled to immunity from liability under N.J.S.A. 26:2B-16 itself, the officers

are entitled to N.J.S.A. 59:2-4’s and N.J.S.A. 59:3-5’s immunities because
12

they failed to enforce N.J.S.A. 26:2B-16’s provisions. Amici also assert that 

N.J.S.A. 59:3-3 applies because the statute requires only “good faith” in 

enforcing N.J.S.A. 26:2B-16. Finally, they contend that the type, manner, and 

extent of assistance that officers choose to render at the scene of an accident 

are discretionary and that the Appellate Division erred by finding the officers’ 

actions ministerial.

B.

The Estate counters that the officers failed to perform their ministerial 

duty to render aid to an individual involved in a motor vehicle accident and

that their actions are therefore not entitled to immunity under the TCA. The 

Estate additionally argues that Morey does not apply to this case because it did 

not involve a motor vehicle accident, and instead asserts that Suarez and 

Ojinnaka v. City of Newark, 420 N.J. Super. 22 (Law Div. 2010), establish 

that the officers had a duty to aid Gonzalez, even if that aid required waiting

until Martinez arrived. Furthermore, the Estate asserts that the TCA 

immunities of N.J.S.A. 59:3-3 and :3-2(d) do not apply because the officers 

here failed to perform their ministerial duties.

The Estate further contends that the Good Samaritan Act does not apply 

in this case because the officers were not providing medical assistance and, if 

it does apply, the officers’ actions were grossly negligent, precluding 
13

immunity under the Good Samaritan Act. The Estate also counters amici’s 

claim that Praet’s holding was abrogated by the amendment of the Good 

Samaritan Act, arguing that only the portion of the opinion concerning on-duty 

police officers is outdated.

Amicus NJAJ supports many of the Estate’s arguments, asserting that 

because the officers were performing a ministerial act when they encountered

Gonzalez, they are not entitled to immunity under the provisions of the TCA. 

The NJAJ asserts that Suarez is similar to this case, and the failure to properly 

perform a ministerial duty is not protected by provisions of the TCA. The 

NJAJ additionally argues that the officers were not engaged in policy 

determinations, thus their acts were ministerial.

The NJAJ claims that the Good Samaritan Act does not apply if a public 

employee has a preexisting ministerial duty to render aid. Additionally, the 

NJAJ contends that the Good Samaritan Act is inapplicable here because the 

officers did not render any care or emergency aid to Gonzalez, and even if the 

Good Samaritan Act did apply, the officers did not act in good faith and should 

not be entitled to immunity from liability. Finally, the NJAJ argues that 

N.J.S.A. 26:2B-16 does not apply since the officers did not determine that 

Gonzalez was intoxicated or incapacitated.
14

III.

Determining whether defendants are immune from liability requires 

consideration of the scope of the asserted grounds for immunity -- the Good 

Samaritan Act, N.J.S.A. 26:2B-16, and the TCA -- followed by application of 

any laws found to be pertinent to the facts of this case. We begin by 

explaining why neither the Good Samaritan Act nor N.J.S.A. 26:2B-16 applies 

here before turning to the TCA, certain provisions of which may apply. 

A.

“Good Samaritan legislation has, at its core, the goal of encouraging the 

rendering of medical care to those who need it but otherwise might not receive 

it (ordinarily roadside accident victims), by persons who come upon such 

victims by chance, without the accoutrements provided in a medical facility 

. . . .” Velazquez ex rel. Velazquez v. Jiminez, 172 N.J. 240, 250 (2002). 

New Jersey’s Good Samaritan Act provides that

[a]ny individual . . . who in good faith renders 

emergency care at the scene of an accident or 

emergency to the victim or victims thereof, or while 

transporting the victim or victims thereof to a hospital 

or other facility where treatment or care is to be 

rendered, shall not be liable for any civil damages as a 

result of any acts or omissions by such person in 

rendering the emergency care.

[N.J.S.A. 2A:62A-1.]
15

The Good Samaritan Act therefore grants immunity to “anyone who rendered 

care at the scene of an accident or emergency,” “in derogation of the basic 

common law principle that one who volunteers to render assistance must do so 

reasonably.” Velazquez, 172 N.J. at 258. The Good Samaritan Act’s purpose 

is to encourage bystanders “to provide affirmative aid to an injured person,” 

even where the common law imposes no duty to do so. Id. at 247-50. 

In 1996, the Legislature added N.J.S.A. 2A:62A-1.1 to the Good 

Samaritan Act. See L. 1996, c. 115, § 5. That section immunizes law 

enforcement officers for certain conduct at the scene of an accident or 

emergency: 

A . . . law enforcement officer is not liable for any civil 

damages as a result of any acts or omissions undertaken 

in good faith in rendering care at the scene of an 

accident or emergency to any victim thereof . . .

provided, however, that nothing in this section shall 

exonerate a law enforcement officer for gross 

negligence.

[N.J.S.A. 2A:62A-1.1 (emphasis added).]

Section 1.1 is part of a “legislative scheme in which police officers . . . 

responding to an emergency are immunized for their negligent acts.” Wilson

ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 573-74 (2012). 

Significantly, although the section provides immunity for certain “omissions” 

as well as “acts,” omissions must occur “in rendering care” to be immunized.
16

In this matter, the officers’ actions do not implicate the Good Samaritan 

Act. The law enforcement provision of the Good Samaritan Act is “one of a 

series of statutes . . . which provide qualified immunity to persons who provide 

medical assistance in emergency situations.” De Tarquino v. City of Jersey 

City, 352 N.J. Super. 450, 455 (App. Div. 2002) (emphasis added). None of 

the officers’ actions here involved such medical or emergency care. Nothing 

in the record indicates that Gonzalez was in need of medical aid at the time of 

his interaction with officers. And the officers, who simply left Gonzalez 

where they first encountered him, did not render affirmative aid, or “care,” to 

Gonzalez within the meaning of the statute. The officers’ failure to act is not 

the kind of “good faith . . . rendering [of] care” immunized by N.J.S.A. 

2A:62A-1.1. Simply put, the Good Samaritan Act does not apply to the 

officers’ interactions with Gonzalez, and defendants are not entitled to 

immunity under N.J.S.A. 2A:62A-1 or -1.1.5

B.

N.J.S.A. 26:2B-16 is similarly inapplicable here. That statute “imposes 

a duty upon [an] officer to remove an [incapacitated] individual from a public 

5

 Because the Good Samaritan Act does not apply to this case, we need not 

determine whether Praet’s holding -- that “the Good Samaritan Act does not 

apply to those, including police officers, who have a preexisting duty to act,” 

218 N.J. Super. at 225 -- has been abrogated by N.J.S.A. 2A:62A-1.1. 
17

place to an intoxication treatment center.” Morey, 232 N.J. Super. at 149

(emphasis omitted). It provides that “[a]ny person who is intoxicated in a 

public place and who a police officer has reason to believe is incapacitated 

shall be assisted by the police officer to an intoxication treatment center or 

other facility.” N.J.S.A. 26:2B-16 (emphasis added).

However, if an individual is intoxicated but not incapacitated, an officer 

is permitted, “in his discretion, to remove [the] individual from a public place 

to an intoxication treatment center.” Morey, 232 N.J. Super. at 149; see 

N.J.S.A. 26:2B-16 (“Any person who is intoxicated in a public place may be 

assisted to his residence or to an intoxication treatment center or other facility 

by a police officer or other authorized person” (emphasis added)). The statute 

thus grants the police “great latitude when determining how to handle a 

publicly intoxicated person.” Morey, 232 N.J. Super. at 153. 

N.J.S.A. 26:2B-16 also provides immunity from liability6to “[a]ll 

persons acting under the provisions of this section,” who “shall be considered 

as acting in the conduct of their official duties and shall not be held criminally 

or civilly liable for such acts.” That immunity “applies to both the decision to 

6

 This immunity has been held to be “similar in operation” to N.J.S.A. 59:3-

3’s immunity for the execution or enforcement of laws, because both “are 

focused on the officer in his law-enforcement function.” Morey, 232 N.J. 

Super. at 154. N.J.S.A. 59:3-3 will be discussed in Section III.C.4., infra.
18

remove an intoxicated individual and the determination as to his 

incapacitation.” Morey, 232 N.J. Super. at 154.

Importantly, the officers here testified that they did not believe that 

Gonzalez was intoxicated or incapacitated at the time of the encounter. 

Rather, both officers expressed their belief that Gonzalez was not intoxicated, 

noting that they did not detect the smell of alcohol, Gonzalez was not 

staggering or slurring his words, and his behaviors did not indicate 

intoxication. Indeed, Officer Tucker stated he would have allowed Gonzalez 

to drive away from the scene had Gonzalez’s vehicle not been disabled. And 

there is no evidence that Gonzalez was incapacitated.

Because neither officer believed that Gonzalez was intoxicated, they did 

not make the necessary determination that would allow their actions to be 

immunized under N.J.S.A. 26:2B-16. We therefore find that N.J.S.A. 26:2B16 does not apply to this case. Additionally, even if the officers believed

Gonzalez to be intoxicated, the statute’s immunity applies only if police 

officers affirmatively act. Here, the officers provided no assistance to 

Gonzalez, but rather left him on the same part of the bridge where they first 

encountered him. This is not action or assistance as contemplated by N.J.S.A. 

26:2B-16. 
19

In reaching this decision, we note that had the officers determined 

Gonzalez to be intoxicated, whether or not he was also incapacitated, they had 

the authority to remove him from the bridge -- even against his will -- under 

N.J.S.A. 26:2B-16. To do so would not have required the officers to arrest 

Gonzalez. And, even if the officers had to use reasonable force to remove 

him, they would have been immune from liability for their actions. N.J.S.A.

26:2B-16.

C.

Having determined that neither the Good Samaritan Act nor N.J.S.A. 

26:2B-16 applies here, we next consider whether the TCA’s immunity from 

liability applies to defendants. The TCA was enacted after “this Court’s

decision in Willis v. Department of Conservation & Economic Development, 

55 N.J. 534, 537-41 (1970), which overruled the centuries-old common-law 

doctrine of sovereign immunity in tort.” Bombace v. City of Newark, 125 N.J. 

361, 372 (1991). The TCA “was clearly intended to reestablish a system in 

which immunity is the rule, and liability the exception.” Ibid. “When both 

liability and immunity appear to exist, the latter trumps the former.” Tice v. 

Cramer, 133 N.J. 347, 356 (1993). “Even when one of the [TCA’s] provisions 

establishes liability, that liability is ordinarily negated if the public entity 

possesses a corresponding immunity.” Rochinsky v. Dep’t of Transp., 110 
20

N.J. 399, 408 (1988). We begin our analysis with an overview of the

provisions of the TCA relevant to our determination.

1.

“The standard for liability under the TCA depends on whether the 

conduct of individuals acting on behalf of the public entity was ministerial or 

discretionary.” Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 490 

(2014) (citing N.J.S.A. 59:2-3(d)). When a public entity’s or employee’s 

actions are discretionary, liability is imposed only for “palpably unreasonable 

conduct.” Id. at 495. Liability for ministerial actions, in contrast, “is 

evaluated based on an ordinary negligence standard.” Id. at 490.

The TCA does not define “discretionary act” or “ministerial act.” 

Black’s Law Dictionary, however, defines a “discretionary act” as one 

“involving an exercise of personal judgment and conscience.” 586 (11th ed. 

2019). In comparison, a “ministerial act” is one “performed without the 

independent exercise of discretion or judgment.” Id. at 31. This Court has 

recognized that a “literal interpretation of the term ‘discretion’ . . . would in 

effect eliminate most of the liability which the Legislature clearly intended to 

permit when it enacted the [TCA]” because “[a]lmost all official conduct, no 

matter how ministerial, involves the exercise of some judgment and 

decisionmaking.” Costa v. Josey, 83 N.J. 49, 60 (1980). 
21

Instead, to advance the Legislature’s intent in enacting the TCA, we 

have interpreted the phrase “exercise of . . . discretion” in N.J.S.A. 59:2-3(a) 

to refer “to actual, high-level policymaking decisions involving the balancing 

of competing considerations.’” See Coyne v. Dep’t of Transp., 182 N.J. 481, 

489 (2005) (alteration in original) (quoting Costa, 83 N.J. at 55). 

Discretionary immunity is intended to protect policymakers, and those 

protections cannot be delegated to other workers through a policy or manual 

“under the guise of engaging in a discretionary act.” Id. at 492. 

Ministerial acts, in contrast, are those “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.” S.P. v. Newark Police Dep’t, 428 N.J. Super. 

210, 231 (App. Div. 2012) (quoting Morey, 232 N.J. Super. at 151). Such 

actions are not immunized even when they may entail “[o]perational 

judgments,” such as “when, where and how” to carry out a required duty. See

Ojinnaka, 420 N.J. Super. at 37; Morey, 232 N.J. Super. at 149. One such 

ministerial act is a police officer responding to the scene of an accident. E.g., 

Ojinnaka, 420 N.J. Super. at 37 (“[P]olice have a duty to respond to accident 

scenes and render assistance.”); Praet, 218 N.J. Super. at 223 (stating that 
22

officers have “a [ministerial] duty by virtue of their employment to render 

emergency assistance to victims of automobile accidents”). 

“Although it is true that a municipal police officer does not constitute a 

high-ranking public employee, [N.J.S.A. 59:3-2(d) is] not always limited to 

such individuals.” Morey, 232 N.J. Super. at 152. That notion recognizes that 

the “[d]iscretionary decisions of officers in the field may subject a 

municipality to claims equal to or in excess of those resulting from the errors 

in judgment or discretion exercised by high-ranking public employees.” Ibid. 

Thus, immunity from liability under the TCA may apply to police officers’ 

decisions in the field. See, e.g., ibid.; accord O’Connell v. State, 171 N.J. 484, 

498 (2002).

In S.P., for example, the Appellate Division found “that discretionary 

immunity should attach under the TCA” to the decisions made by an officer in 

response to a domestic violence call because those decisions “require[d] a 

significant thoughtful analysis and exercise of personal deliberations regarding 

a variety of factors.” 428 N.J. Super. at 231. That said, this Court held in Tice

that an officer’s conduct during a car chase was not immunized under N.J.S.A.

59:3-2(a) because “[t]he officer’s conduct, comprised of the decision whether 

to pursue, how to pursue, and whether to continue to pursue, is . . . infinitely 

distant from high-level policy or planning decisions.” 133 N.J. at 351, 366-67. 
23

As those cases suggest, the distinction between ministerial and 

discretionary action by police officers is situation-specific and thus can be 

difficult to discern. In essence, where “the circumstances [are] thought to be 

such that reasonable policemen in the position of the defendants could have 

differed about whether or how to act,” the specific decision at issue may be

considered discretionary for the purposes of determining TCA immunity. See

Del Tufo v. Twp. of Old Bridge, 278 N.J. Super. 312, 325 (App. Div. 1995); 

see also S.P., 428 N.J. Super. at 231. 

Suarez and Morey, two cases from the Appellate Division, illustrate the 

difference between ministerial and discretionary police actions in the specific 

context of people killed after being left by police on roadways.

In Suarez, police officers arrived at the scene of a minor motor vehicle 

accident. 171 N.J. Super. at 5. The accident had disabled the victims’ car, 

which was resting on the shoulder of a highway. Ibid. After a truck removed 

the car from the road, the officers declined a request from the car’s passengers 

to escort them from the highway. Id. at 5-6. The officers instead advised the 

passengers to walk to the nearest exit and departed. Id. at 6. While the 

passengers were walking, one of the children in the party wandered onto the 

highway and was struck and killed by a vehicle, and another member of the 

party who ran after the child was also killed. Ibid.
24

In finding that the TCA immunity asserted7 did not apply, the Appellate 

Division held that “[a]lthough a police officer may not be liable for failing to 

respond (if, for example, he was performing some other official duty), if he 

does respond he will be subject to liability for negligence in the performance 

of his ministerial duties.” Id. at 9-10. In reaching that decision, the Appellate 

Division acknowledged that “police officers[’] . . . duties embrace protection 

of the public’s safety on the highways.” Id. at 10. Accordingly, the Appellate 

Division found that the police officers in that case were not “insulate[d] . . . 

from unfortunate results of their negligently executed ministerial duties.” Ibid.

Conversely, in Morey, a police officer responded to a call regarding a 

pedestrian in the middle of a roadway. 232 N.J. Super. at 147. The police 

officer determined the pedestrian was intoxicated, and the pedestrian complied 

with the officer’s order to leave the roadway. Ibid. The officer “determined 

that the traffic hazard had been eliminated and left the scene.” Ibid. Three 

hours and forty minutes later, the pedestrian was “struck and killed by a truck 

one-quarter of a mile from” where the officer had ordered the pedestrian “out 

of the roadway.” Ibid. 

7

 The Appellate Division’s decision involved N.J.S.A. 59:5-4, which provides 

immunity for failure to provide police protection. Suarez, 171 N.J. Super. at 9. 

This TCA provision is described in more detail in Section III.C.4., infra.
25

The court found the TCA “precluded any further responsibility on the 

part of defendants.” Id. at 148. In doing so, the court distinguished Suarez, 

noting that the officer in the case before it “was not responding to an accident 

scene.” Id. at 150. Furthermore, the pedestrian understood and complied with 

the officer’s orders; it was not until hours after the officer’s interactions with 

the pedestrian that the pedestrian was struck and killed. Ibid. The Morey

court further concluded that the defendants were immune because of the 

officer’s “discretionary determination that decedent was not incapacitated.” 

Ibid. And the officer’s only mandatory duty under N.J.S.A. 26:2B-16 was to 

“remove decedent to an intoxication treatment facility if he determined that 

decedent was incapacitated.” Ibid. Because the officer concluded the

decedent was merely intoxicated, not incapacitated, the court found that the 

officer’s “decisions in the field were protected [as discretionary] under 

N.J.S.A. 59:3-2(d) and N.J.S.A. 59:3-5.” Id. at 152.

Suarez and Morey are the cases factually closest to the scenario here and 

turned on whether the officers’ conduct was ministerial or discretionary. 

Resolution of whether a police officer’s actions are ministerial or discretionary 

depends upon the particular facts and circumstances bearing upon the question;

it is a fact-sensitive analysis. We therefore turn to the facts of this case.
26

2.

Here, the trial court granted summary judgment in favor of defendants, 

concluding that the TCA’s immunity from liability applied as a matter of law. 

We review that conclusion applying the same standard as “the trial court, that 

is, ‘we must view the facts that may be inferred from the pleadings and 

discovery in the light most favorable to plaintiffs.’” Coyne, 182 N.J. at 491

(quoting Strawn v. Canuso, 140 N.J. 43, 48 (1995)). We determine “whether 

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

favorable to the non-moving party, are sufficient to permit a rational factfinder 

to resolve the alleged disputed issue in favor of the non-moving party.” Brill, 

142 N.J. at 540. Summary judgment should be granted only “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).

Thus, if the facts in dispute are necessary to resolve whether conduct is 

discretionary or ministerial, summary judgment is improper; resolution of 

those facts “requires submission to the jury.” Henebema v. S. Jersey Transp. 

Auth., 430 N.J. Super. 485, 506 (App. Div. 2013), aff’d on other grounds, 219 

N.J. 481 (2014). 
27

[W]hen the evidence establishes a genuine issue of 

material fact regarding whether the alleged failures of 

a public entity were the result of discretionary 

decisionmaking as to how to use its resources, or 

instead involved ministerial acts mandated by law or 

practice, then that fact issue must be submitted to the 

jury.

[Id. at 491.]

As we have noted, responding to the scene of an accident is a ministerial

duty for police officers. See, e.g., Ojinnaka, 420 N.J. Super. at 37; Praet, 218 

N.J. Super. at 223. Thus, at least some of the officers’ actions in this case, 

such as moving Gonzalez’s car off the roadway and deciding to tow the 

disabled vehicle, were ministerial, to which an ordinary negligence standard 

applies. However, the decision when to leave the accident scene and where to 

leave Gonzalez is a closer question; the officers maintain that competing 

demands caused them to leave Gonzalez on the bridge that evening.

N.J.S.A. 59:2-3(d) and :3-2(d) provide qualified immunity “for the 

exercise of discretion when, in the face of competing demands, [the public 

entity or employee] determines whether and how to utilize or apply existing 

resources” unless “a court concludes that the determination . . . was palpably 

unreasonable.” “‘Palpably unreasonable’ means more than ordinary 

negligence . . . ‘[I]t must be manifest and obvious that no prudent person 

would approve of its course of action or inaction.’” Coyne, 182 N.J. at 493 
28

(quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). It “implies behavior 

that is patently unacceptable under any given circumstance.” Kolitch, 100 N.J. 

at 493. Whether or not conduct is palpably unreasonable is a jury 

determination. Henebema, 430 N.J. Super. at 506.

Unlike in Morey, 232 N.J. Super. at 150, the officers here were 

responding to an accident scene. Their response thus involved the ministerial 

duty to render aid to Gonzalez. Additionally, the officer in Morey exercised

discretion after determining the decedent was intoxicated. Id. at 147. Here,

the officers did not act believing Gonzalez was intoxicated. 

This case is also distinguishable from Suarez. The officers in Suarez

declined the victims’ request to escort them off the highway after their car 

became disabled. 171 N.J. Super. at 5-6. The allocation of resources was thus 

never a consideration for the officers in Suarez. In the present case, Gonzalez 

refused offers of a ride away from the highway, and there is a genuine issue of 

material fact as to whether the officers were called away from the scene or 

decided on their own to leave after their offers of a ride were declined.

In addition, the officers here testified that they were directed by dispatch 

to resume their patrol, and Officer Hashmi stated that they did not wait with 

Gonzalez until Martinez arrived because it was a busy Saturday night. 

However, the transcript of the call shows that Officer Tucker told the 
29

dispatcher that Gonzalez would wait on the bridge after refusing the officers’ 

offer of a ride, to which the dispatcher replied “ok.” Whether the officers were 

directed to leave the scene or made the decision to leave themselves is thus a 

genuine issue of material fact. Whether the officers in fact exercised 

discretion and considered allocation of resources in reaching their decision to 

leave is also an issue of material fact.

In Henebema, the Appellate Division sent the ministerial/discretionary 

determination to the jury because “the record contain[ed] evidence that 

defendants ‘consciously considered’ the action they took that night in light of 

conflicting or competing demands where resources were obviously pushed to 

the limit.” 430 N.J. Super. at 505. A similar question exists here: were 

Officers Tucker and Hashmi faced with competing demands upon police 

resources, or not? That question is properly one for the jury here, as it was in 

Henebema. 

3.

In sum, the unique circumstances of this case and the material facts that 

are in dispute warrant presentation to a jury of the threshold factual questions 

essential to determine whether the officers’ conduct was ministerial, for which 

the ordinary negligence standard applies, or discretionary and, if discretionary, 

whether the officers’ conduct was palpably unreasonable.
30

When these issues are presented to the jury, it must be with appropriate 

instructions. Currently, the Model Jury Charge for general negligence 

acknowledges that 

[i]f at trial there is a genuine dispute of material fact as 

to whether one or more of the parties performed a 

discretionary function (subject to a “palpably 

unreasonable” standard) or ministerial function 

(subject to “ordinary negligence principles”), N.J.S.A. 

59:2-3, N.J.S.A. 59:3-2, [the judge] must tailor both the 

final jury charge and the verdict sheet so the jury can 

make the appropriate fact findings and evaluate the 

party’s liability exposure using the proper standard of 

care.

[Model Jury Charge (Civil), 5.10A, “Negligence and 

Ordinary Care -- General” (rev. May 2019).]

When judges tailor the charge and verdict sheet, they must do so in a 

way that will allow the jury to distinguish between the predicate facts that tend 

to show that a defendant engaged in a ministerial act from those that tend to 

show the exercise of discretion. See Henebema, 430 N.J. Super. at 506. We 

adopt the guidance of Henebema that “the jury verdict sheet [should] contain 

questions for each disputed predicate fact.” Id. at 507. In this case, for 

example, we suggest that the jury verdict sheet ask whether the decision to 

leave the scene of Gonzalez’s accident was the result of a conscious 

consideration and balancing of Gonzalez’s relative safety when left and police 

department resources in the face of competing demands.
31

Only after determining whether the officers’ actions were ministerial or 

discretionary should the jury apply the appropriate standard to evaluate the 

officers’ conduct. If the jury determines that the decision to leave Gonzalez 

was ministerial, then the officers are not entitled to immunity under any 

provision of the TCA. The jury should therefore apply ordinary negligence 

principles, such as those established in Model Jury Charge 5.10A, to the 

officers’ conduct to determine whether the defendants are liable. 

However, should the jury determine that the officers’ decision to leave 

was discretionary, then qualified immunity exists in favor of defendants under 

N.J.S.A. 59:2-3(d) and :3-2(d), and the jury must then resolve any material 

facts at issue bearing upon whether the defendants’ conduct was palpably 

unreasonable -- whether “no prudent person would approve of [their] course of 

action or inaction,” Coyne, 182 N.J. at 493 (quoting Kolitch, 100 N.J. at 493), 

and whether their conduct “implies behavior that is patently unacceptable 

under any given circumstance,” Kolitch, 100 N.J. at 493. 

4.

For completeness, we review briefly other sections of the TCA cited by 

defendants in asserting immunity from liability -- N.J.S.A. 59:2-4, :3-3, :3-5,

:5-4, and :5-5.
32

For the same reasons that N.J.S.A. 26:2B-16 does not apply to this case, 

we find that neither the immunity for failure to enforce a law, N.J.S.A. 59:2-4 

and :3-5, nor the immunity for good-faith enforcement of a law, id. at :3-3, 

applies here. The officers made no determination that Gonzalez was 

intoxicated, and there is no indication that Gonzalez was incapacitated. As 

such, although the officers could have assisted Gonzalez to his home or to a 

treatment center, they were under no duty to do so under N.J.S.A. 26:2B-16, 

and there was therefore no applicable law to enforce or fail to enforce. 

We similarly find that the immunity for failure to make an arrest, 

N.J.S.A. 59:5-5, does not apply. N.J.S.A. 26:2B-16 would have given the 

officers the authority to remove Gonzalez from the bridge without the need to 

arrest him. 

Additionally, immunity for failure to provide police protection, N.J.S.A. 

59:5-4, does not apply. N.J.S.A. 59:5-4 applies generally to “political 

decisions,” such as a town’s decision to staff and equip a police force, Suarez, 

171 N.J. Super. at 9, or other “higher-level discretionary acts,” see Wuethrich

v. Delia, 134 N.J. Super. 400, 412 (Law Div. 1975). Such immunity does not 

encompass the kind of decisions the officers made in responding to Gonzalez’s 

accident. 
33

IV.

For the reasons set forth above, we affirm and modify the judgment of 

the Appellate Division. We leave the determination of whether the officers’ 

actions were ministerial or discretionary to the jury. After making that 

determination, the jury should then consider defendants’ conduct under the 

appropriate standard -- ordinary negligence or palpable unreasonableness. We 

remand to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, and PIERRE-LOUIS join in JUSTICE SOLOMON’S opinion. 

JUSTICE FERNANDEZ-VINA did not participate.