Appellate Division Judge Carmen Messano/Photo by Carmen Natale

An African-American man robbed a bank. He passed a robbery note to a teller, was handed cash and escaped. A second African-American man was on the teller's line at the time, waiting to make a withdrawal. After a lock-down, the police arrived, and a bank employee pointed to the African-American customer. He was questioned and let go. His tort claim for post-traumatic stress disorder was summarily dismissed. The Appellate Division affirmed. Dwight Morris v. T.D. Bank (April 10, 2018).

Not the kind of case that would ordinarily be approved for publication, but it was. The reason is that the appellate panel considered but rejected a new tort that would impose liability for “negligent misidentification.” Citing cases from five other jurisdictions, the Appellate Division refused “to recognize a new cause of action for negligent misidentification that is inconsistent with our State's strong public policy encouraging citizen cooperation with law enforcement officials in the investigation of criminal activity.”

The court's public policy rationale is unassailable. Although intentional misidentification would likely be actionable, and although we could probably imagine some set of facts where negligent misidentification could rise to so reckless a level as to warrant tort compensation, such cases can be faced when they arise. For now, we fully support Judge Messano's analysis. Cooperating New Jersey citizens should not be subject to negligent misidentification lawsuits.