When Is a Sovereign Not a Sovereign? When a NJ Judge Says So.

A general principle of English common law (and thus US law) is that a sovereign — the government — is immune from suit when it is acting in its sovereign — government — capacity. Over time, however, the scope of sovereign immunity has been eroded by statute and there are many things for which a sovereign can now be sued (e.g. sidewalk liability) that would have been unfathomable in the 1400s — or even 1950.

In New Jersey, the scope of sovereign immunity is regulated (in part) by the Tort Claims Act. In the case of Ojinnaka v. City of Newark, ESX-L-1473-07, trial court Judge John Kennedy was confronted with the scope of immunity under the act given a fact pattern where on December 21, 2005, a 911 call advised police of a car accident. When police arrived on the scene, they found a running car, but no driver. They assumed that the car had been abandoned — a frequent occurrence in Newark NJ at that time — and thus did not notice that the driver was lying in bush some 20 feet away from the accident site. Indeed, the body of the driver was discovered 6 days after police first arrived on the scene and it appears that if the police had found the body when they arrived on the scene, the driver may have survived. A lawsuit from the driver’s family ensued. At the close of discovery, the City of Newark moved for summary judgment — citing the Tort Claims Act. The trial court denied summary judgement and held that “a police officer’s negligence in fulfilling a ministerial, operational function he has undertaken, thereby causing injury or contributing to a death, is not immunized.” The trial is now set to begin in March.