HOTTENSTEIN et al v. CITY OF SEA ISLE CITY et al
Filing
137
OPINION. Signed by Judge Joseph E. Irenas on 10/11/2013. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES S. HOTTENSTEIN,
Administrator for the Estate
of Tracy Hottenstein;
CHARLES S. HOTTENSTEIN; and
ELIZABETH K. HOTTENSTEIN,
Plaintiffs,
v.
CITY OF SEA ISLE CITY;
et al.,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 11-740
(JEI/JS)
OPINION
APPEARANCES:
THE WESTCOTT LAW FIRM, P.C.
By: Lynanne B. Wescott, Esq.
239 South Camac Street
Philadelphia, Pennsylvania 19107
Counsel for Plaintiffs
POWELL, BIRCHMEIER & POWELL, P.C.
By: James R. Birchmeier, Esq.
1891 State Highway 50
P.O. Box 582
Tuckahoe, New Jersey 08250
Counsel for Defendants City of Sea Isle City, Harold
Boyer, Thomas McQuillen, and Vincent Haugh
LAW OFFICES OF JAY J. BLUMBERG, ESQ.
By: Christopher M. Wolk, Esq.
158 Delaware Street
P.O. Box 68
Woodbury, New Jersey 08096
Counsel for Defendants Zaki Khebzou and Atlantic
Emergency Associates
1
MAYFIELD TURNER O’MARA & DONNELLY, P.C.
By: Michael J. O’Mara, Esq.
Robert J. Gillespie, Jr., Esq.
2201 Route 38, Suite 300
Cherry Hill, New Jersey 08002
Counsel for Defendants Sea Isle Ambulance Corps and
Phyllis Linn
FOX ROTHSCHILD, L.L.P.
By: Peter Sarkos, Esq.
Epiphany McGuigan, Esq.
1301 Atlantic Avenue, Suite 400
Atlantic City, New Jersey 08401
Counsel for Defendants Atlanticare Regional Medical
Center, Atlantic City Medical Center, Atlanticare MICU
Medics at Base 3
IRENAS, Senior United States District Judge:
This wrongful death / survivorship suit arises out of the
untimely and tragic death of Tracy Hottenstein. 1
Presently
before the Court are three Motions for Summary Judgment pursuant
to Federal Rule of Civil Procedure 56(a) filed by: (1)
Defendants Sea Isle Ambulance Corps (SIAC) and Phyllis Linn; (2)
Defendants City of Sea Isle City, Thomas McQuillen, Vincent
Haugh, and Harold Boyer; and (3) Defendants Zaki Khebzou and
Atlantic Emergency Associates (AEA).
The Court notes that
Defendants Atlanticare Regional Medical Center, Atlanticare MICU
Medics at Base 3, and Atlantic City Medical Center have not
moved for Summary Judgment at this time, but have moved to limit
1
The Court exercises federal question subject matter jurisdiction pursuant to
28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
2
damages as to their liability, which was decided in an Order and
Opinion dated October October 3, 2013.
(Dkt. nos. 135, 136.)
I.
Sometime after 2:15 a.m. on February 15, 2009, in Sea Isle
City, Tracy Hottenstein, who was intoxicated at the time, fell
off a public dock into the ocean below. 2
As a result of some of
the events that occurred after her disappearance, Tracy died.
Tracy was discovered less than six hours after her fall, at
approximately 7:52 a.m., when Francis Haney placed a 911 call to
report a body found on the Sea Isle City Marina boat launching
ramp.
(Pls.’ Ex. 15; Pls.’ Ex. 16 at 1.)
At the instruction of
the 911 dispatcher, Haney got “pretty close” to Tracy’s body and
ascertained that she was not breathing because he could not see
her chest moving, but he did not check her pulse because he was
unsure how to do so.
(Pls.’ Ex. 20 at 30-31; Pls.’ Ex. 16 at 1-
3.)
2
On February 14, 2009, Tracy attended the Polar Bear Plunge in Sea Isle City
with friends, and afterwards went to LaCosta Lounge and Ocean Drive bars.
She was last seen departing the Ocean Drive bar on surveillance video
sometime around 2:15 a.m., and was not seen again until a bystander, Francis
Haney, discovered her body early the next morning. For further details on
Tracy’s activities following the Polar Bear Plunge, see Hottenstein v. Sea
Isle City, 768 F.Supp.2d 688 (D.N.J. 2012).
3
Over the course of the next thirty minutes, police and
rescue personnel responded to the scene.
Shortly after Haney’s
911 call, Sea Isle City police officers arrived - Officer Thomas
McQuillen was first to respond, and Officer Vincent Haugh and
Sergeant Harold Boyer arrived fifteen to twenty seconds later.
(Defs.’ Sea Isle City Br. Ex. A at 53-54.)
Upon his arrival at
the scene, McQuillen immediately brought out his first aid
materials to render aid to Tracy.
at 68.)
(Defs.’ Sea Isle City Ex. A
McQuillen first attempted to locate a pulse at her
carotid artery but failed to find one. (Id. at 72-73.)
Next, he
looked at Tracy’s chest and observed that it was not rising and
falling.
(Id.)
In McQuillen’s recollection, Boyer then
attempted to locate Tracy’s pulse, also at her carotid artery,
but failed to find it as well.
(Id.; Pls.’ Ex. 2.)
At his
deposition, Haugh also reported that he checked for Tracy’s
pulse, and like his fellow officers, failed to find her pulse
and recorded that fact in his report.
E at 30:10-16; Pls.’ Ex. 4.)
(Defs.’ Sea Isle City Ex.
All three officers also recorded
that Tracy’s body was a pale, grayish color and was obviously
cold.
(See Pls.’ Ex. 2-4.)
With these observations in hand, McQuillen and Boyer
consulted with one another and concluded that Tracy was
4
deceased. 3
(Defs.’ Sea Isle City Ex. A at 77)
After making this
determination, McQuillen, Boyer, and Haugh closed off the area
around Tracy’s body for preservation, treating it as a crime
scene.
(Id. at 106.)
Shortly after the scene around Tracy was cordoned off,
Phyllis Linn, Assistant Chief of the Sea Isle Ambulance Corps,
arrived in her personal vehicle, even before an SIAC ambulance
arrived.
(Pls.’ Ex. 1 at 39; Defs.’ Sea Isle Ambulance Corps
Ex. D at 8.)
However, because the area around Tracy was treated
as a crime scene, neither Linn nor SIAC personnel were permitted
to treat Tracy or approach her body.
(Defs.’ SIAC Br. at 5.)
Linn was prohibited from getting any closer than fifteen to
twenty feet from Tracy because of the yellow tape that the
officers strung to preserve the scene.
Defs.’ SIAC Ex. D at 8.)
(Pls.’ Ex. 1 at 41;
For the same reason, other members of
the SIAC who arrived with the ambulance also failed to
physically examine Tracy because they also could not cross the
yellow tape; the SIAC report indicates that SIAC personnel were
twenty feet away, and “EMS did not come in contact with the PT
3
Though they failed to include it in their reports, Boyer and McQuillen each
noted that they observed additional discoloration on Tracy’s body when
recalling the scene at their depositions. (See Pls.’ Ex. 2-4.).
Specifically, they observed areas of redness on Tracy’s back and side, which
they believed to be lividity, a condition where blood pools at the lowest
lying portion of the body, and a sign that both understood as a condition
indicating death. (Defs.’ SIAC Ex. B at 128-29; Defs.’ SIAC Ex. C at 15053.).
5
[patient].”
(Pls.’ Ex. 12 at 1.)
In spite of the distance, the
SIAC report recorded that Tracy’s body showed lividity.
(Id.).
From her vantage point at the perimeter, Linn also observed
lividity, which she confirmed in a conversation with Boyer,
leading her to the conclusion that Tracy was deceased.
(Pls.’
Ex. 1 at 41, 45.)
Shortly after the arrival of the SIAC ambulance and
personnel, paramedics also arrived at the scene.
Ex. D at 9.)
(Defs.’ SIAC
Like all the others at the scene, paramedics
Michael Senisch and Frank Rocco were not permitted to come into
physical contact with Tracy.
(Defs.’ Khebzou Ex. F at 78-81.)
Senisch was, however, permitted to approach Tracy’s body more
closely, coming within six feet of her, according to his
recollection.
(Pls.’ Ex. 17 at 46:10-11.)
As described at his
deposition, Senisch was called to the scene for a
“pronouncement,” which was reiterated to Senisch when he arrived
at the scene, where Boyer informed him that Tracy was “pulseless
and apneic,” and “that [the paramedics] were called there for a
pronouncement.”
(Id. at 44-45.)
At 8:21 a.m., nine minutes
after the paramedics’ arrival at the scene, Senisch called Dr.
Zaki Khebzou for the official death pronouncement.
Khebzou Ex. E-F)
(Defs.’
Following Senisch’s description of Tracy’s
condition, Dr. Khebzou pronounced Tracy deceased by telephone at
6
8:22 a.m.
(Pls.’ Ex. 5.)
It is unclear precisely when Tracy’s
body was finally removed from the scene on February 15.
In spite of this declaration of death, Tracy may not have
been deceased at 8:22 a.m.
Two experts, upon review of the
facts and circumstances of the case, concluded that severe
hypothermia may manifest symptoms that look akin to death.
(Pls.’ Ex. 7 at 11; Pls.’ Ex. 6 at 10.)
Moreover, the
Plaintiffs point to inconsistencies between observations
recorded in police reports (which omit statements regarding
lividity, for example), as compared with the recollection of
police officers, to suggest that Tracy’s condition was not
properly diagnosed.
Regardless, there is no dispute that even
prior to Dr. Khebzou’s pronouncement, Tracy’s body was cordoned
off while the police investigated the scene and surroundings.
Defendants presently move for summary judgment on the
claims remaining against them, including those asserted under
state law theories of negligence and both federal and New Jersey
state law civil rights claims.
II.
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
7
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
In deciding a motion for summary judgment, the
court must construe all facts and inferences in the light most
favorable to the nonmoving party.
See Boyle v. Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).
The moving
party bears the burden of establishing that no genuine issue of
material fact remains.
317, 322-23 (1986).
See Celotex Corp. v. Catrett, 477 U.S.
A fact is material only if it will affect
the outcome of a lawsuit under the applicable law, and a dispute
of a material fact is genuine if the evidence is such that a
reasonable fact finder could return a verdict for the nonmoving
party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986).
III.
The Court first addresses the Motions for Summary Judgment
regarding the civil rights claims under both § 1983 and the New
Jersey Civil Rights Act.
Next, the Court addresses the Motions
for Summary Judgment regarding claims of negligence asserted
against the City of Sea Isle City and individual police officers
(the “municipal Defendants”).
Third, the Court addresses the
claims for negligence asserted against Dr. Zaki Khebzou and
Atlantic Emergency Associates, and then separately addresses
8
claims for negligent hiring, supervision, and retention alleged
against Sea Isle City and AEA.
Fourth, the Court addresses the
Motions for Summary Judgment on punitive damages.
Finally, the
Court addresses claims of premises liability asserted against
Sea Isle City. 4
A.
The Plaintiffs’ Amended Complaint alleges three separate
claims of civil rights violations under 42 U.S.C. § 1983.
Count
Ten alleges the municipal Defendants violated § 1983, Count
Eleven brings a wrongful death and survival action pursuant to
the statute against both the municipal Defendants and Linn and
the Sea Isle Ambulance Corps, and Count Twelve alleges the
municipal Defendants are liable under a theory of state-created
danger.
The Court considers these three claims and the
corresponding Motions for Summary Judgment together.
Consideration of the Defendants’ Motions for Summary
Judgment on the Plaintiffs’ § 1983 claims ordinarily presents
two separate legal issues for liability – first, whether the
4 The Court will not permit the reinstatement of New Jersey Civil Rights Act
claims as to Defendant Khebzou. While Rule 15(a) permits the amendment of
pleadings before trial, the Plaintiffs have requested reinstatement of their
NJCRA claim without the consent of the opposing party. Fed. R. Civ. P.
15(a)(2). The Plaintiffs have not provided any rationale for why “justice so
requires” the reinstatement of the claim. Id. Because the Plaintiffs cannot
provide a rationale for the reinstatement of this claim at the close of
discovery, even if this request for reinstatement were made in a Motion to
Amend, it would be denied.
9
Defendants acted under color of law, and second, whether the
Defendants violated a constitutional right.
Because the
evidence produced in discovery does not demonstrate that a
constitutional violation occurred, the Court need not consider
the color of state law analysis and grants summary judgment for
all Defendants on each count alleged under § 1983.
The Due Process Clause of the Fourteenth Amendment does not
impose an affirmative right to governmental aid, “even where
such aid may be necessary to secure life, liberty, or property
interest of which the government itself may not deprive the
individual.”
DeShaney v. Winnebago Cnty. Dept. of Social Svs.,
489 U.S. 189, 196 (1989).
In particular, “there is no federal
constitutional right to rescue services, competent or
otherwise.”
Brown v. Commonwealth of Pa. Dep’t of Health, 318
F.3d 473, 478 (3d Cir. 2003).
In light of DeShaney, there are
two exceptions to the general “non-liability rule.”
Id.
“First, the state has a duty to protect or care for individuals
when a ‘special relationship’ exists.
Second, the state has a
duty when a ‘state-created danger’ is involved.”
Sanford v.
Stiles, 456 F.3d 298, 304 (3d Cir. 2006) (internal footnote
omitted).
Special relationships generally arise in custodial
relationships; thus, the state and its “incarcerated or
involuntarily committed citizens is the kind of ‘special
10
relationship’” that might require the state to provide adequate
medical care and ensure the “reasonable safety” of involuntarily
committed mental patients.
Morrow v. Balaski, 719 F.3d 160, 167
(3d Cir. 2013) (citing Estelle v. Gamble, 429 U.S. 97, 103
(1976); Youngberg v. Romeo, 457 U.S. 307, 324 (1982)).
In other
words, the state must affirmatively deprive the individual of
the freedom to act “on his own behalf.”
Morrow, 719 F.3d 168
(citing DeShaney, 489 U.S. at 200).
Here, the Plaintiffs have failed to provide evidence that
any of the Defendants entered into a comparable custodial
relationship with Tracy.
In particular, Linn testified at her
deposition that by the time she arrived, the police had already
cordoned off Tracy’s body and did not permit her to pass.
(Pls.’ Ex. 1 at 41.)
The SIAC ambulance run report, summarizing
the actions of the SIAC personnel, reflects the same.
Ex. 12.)
(Pls.’
Though the Plaintiffs argue that Linn and SIAC
personnel treated “Tracy’s situation . . . like that of a
pretrial detainee, a prisoner or an involuntary commitment,”
there is no actual indication that Linn or SIAC were the ones
who were responsible for the cordon.
(Pls.’ Br. at 22.)
In
other words, there is no evidence to suggest that Linn and SIAC
were Tracy’s custodians when they arrived at the scene.
Similarly, claims alleging that the police officers or Sea
Isle City resulted in a special relationship are not borne out
11
in the facts produced in discovery.
Though the Plaintiffs argue
that the cordon surrounding Tracy was akin to creating a
custodial relationship, the cause of Tracy’s incapacity was
separate from the actions of the police at the scene.
Pls.’ Ex. 6-7.)
(See
The Plaintiffs’ experts describe a tragic
combination of alcohol and cold weather that resulted in Tracy’s
death from hypothermia.
14.)
(Pls.’ Ex. 6 at 12; Pls.’ Ex. 7 at 13-
As the Plaintiffs’ experts explain, the alcohol and cold
weather were the causes of Tracy’s incapacity, not the stringing
of yellow tape.
Thus, there was no special relationship between
Tracy and the municipal Defendants that would impose a duty to
render aid.
Returning to the state-created danger theory of liability
under § 1983, a constitutional violation “can occur when state
authority is affirmatively employed in a manner that injures a
citizen or renders him ‘more vulnerable to injury’” than he
would have otherwise been.
Bright v. Westmoreland Cnty., 443
F.3d 276, 281 (3d Cir. 2006) (quoting Schieber v. City of
Phila., 320 F.3d 409, 416 (3d Cir.)).
A state-created danger
exists when the plaintiff can demonstrate each of the following
four elements:
(1) the harm caused was foreseeable and fairly
direct, (2) a state actor acted with a degree
of culpability that shocks the conscience, (3)
a relationship between the state and the
12
plaintiff existed such that the plaintiff was
a foreseeable victim of the defendant’s acts
. . . and (4) a state actor affirmatively used
his or her authority in a way that create a
danger to the citizen or that rendered the
citizen more vulnerable to danger than had the
state not acted at all.
Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013).
The requisite culpability for a state-created danger claim,
the “shocks the conscience” standard, depends upon the
circumstances of the state official’s actions.
of Phila., 320 F.3d 409, 417 (3d Cir. 2003).
Schieber v. City
“[C]ustomary tort
liability” is insufficient for demonstrating the necessary
culpability, as the “Constitution does not guarantee due care on
the part of state officials,” while circumstances where state
actors affirmatively intend to cause harm are on the opposite
end of the spectrum, satisfying the “shocks the conscience”
standard.
Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S.
833, 848-49 (1998)).
To determine the level of culpability
necessary to shock the conscience, the Court must consider
whether the state officials had the opportunity to deliberate
and make unhurried judgments.
309 (3d Cir. 2006).
Sanford v. Stiles, 456 F.3d 298,
Where such time exists, conscious disregard
of a great risk of harm is all the culpability necessary.
at 310.
On the other hand, where state officials must make
Id.
decisions in a “hyperpressurized environment,” an intent to
13
cause harm is necessary to satisfy the culpability standard.
Id. at 309.
Under the facts produced during discovery, none of the
municipal Defendants’ actions approach the “shocks the
conscience” standard.
Upon arriving first at the scene,
McQuillen brought out his oxygen and medical bag from his trunk,
(Defs.’ Sea Isle City Ex. A at 63:23-24), and then each of the
police officers attempted to take Tracy’s pulse at the carotid
artery.
(Pls.’ Ex. 2-4.)
Each observed her to be “grayish” in
appearance and all three concluded that she was dead based on
their observations.
(Id.)
Their actions upon arrival at the
scene demonstrate that they attempted to render aid, and when
such attempts appeared futile, treated the area as a crime
scene.
These actions manifest neither a conscious disregard of
risk nor an intent to cause Tracy harm. 5
5 Moreover, even if the Plaintiffs could demonstrate that the municipal
Defendants’ actions shocked the conscience, these Defendants would still be
entitled to the defense of Qualified Immunity, established under Saucier v.
Katz, 533 U.S. 194 (2001). Expanding upon the two-part test for Qualified
Immunity, the Saucier Court explained that “[t]he concern of the immunity
inquiry is to acknowledge that reasonable mistakes can be made as to the
legal constraints on particular police conduct.” Id. at 205. As the Court
continued, “[i]f the officer’s mistake as to what the law requires is
reasonable, . . . the officer is entitled to the immunity defense.” Id. The
Plaintiffs have provided no evidence that the municipal Defendants undertook
any unreasonable acts: the officers (including one who was a certified EMT)
arrived on the scene, immediately checked for a pulse and observed Tracy’s
grayish coloring and lack of movement, and determined that she was not alive.
(Defs.’ Sea Isle City Ex. A at 69:23-24; Pls.’ Ex. 2-4.) Even assuming that
Tracy were alive, as the Plaintiffs’ experts conclude was “possible,” the
police acted reasonably under the circumstances by immediately responding and
checking Tracy’s pulse and breathing, thereby granting them the protection of
Qualified Immunity.
14
Similarly, Linn and SIAC’s actions fail to reach the
“shocks the conscience” culpability standard to satisfy a statecreated danger claim.
As Linn’s deposition testimony explained,
she responded in approximately ten minutes to the initial 911
call.
(Pls.’ Ex. 1 at 38:25.)
Upon arriving at the scene, Linn
walked up to the cordon, attempted to cross it and reach Tracy,
but was stopped by a police officer before Sergeant Boyer
approached her to relay the news that the area had been deemed a
crime scene.
(Id. at 41:2-19.)
Linn and Boyer discussed their
observations of lividity on Tracy’s body, and Linn knew that
Boyer was a certified EMT who had been on scene for some time
already.
(Id. at 41:14–44:19.)
None of these actions manifest
a level of culpability suggesting that Linn consciously
disregarded a great risk of harm to Tracy, nor do they suggest
that Linn intended to harm Tracy.
Similarly, the SIAC Report
indicates that SIAC personnel received a report from the police
that Tracy was dead upon their arrival.
(Pls.’ Ex. 12.)
The
police reported to SIAC personnel that Tracy displayed lividity,
had “foam coming from mouth, [and] eyes extremely dilated.”
(Id.)
Their failure to render aid was a result of the police
judgment that the area should be a crime scene, not because SIAC
personnel sought to consciously put Tracy at risk, nor because
of an intent to harm her.
In other words, the Plaintiffs have
failed to produce any evidence suggesting that Linn or SIAC
15
personnel manifest the culpability necessary to constitute a
state-created danger.
In short, at the close of discovery, the Plaintiffs have
failed to produce evidence that any of the Defendants held the
culpable mindset necessary to commit a constitutional violation.
In light of this, the Court will grant summary judgment in favor
of all Defendants in the civil rights claims in Counts Ten,
Eleven, and Twelve.
B.
Count Thirteen asserts a claim against the municipal
Defendants, Linn, and SIAC for a violation of the New Jersey
Civil Rights Act.
Because the NJCRA is interpreted analogously
with § 1983 and the foregoing analysis explains that no
predicate § 1983 claim exists, summary judgment will be granted
in favor of all the Defendants.
In relevant part, the New Jersey Civil Rights Act provides:
Any person who has been deprived of any
substantive due process or equal protection
rights, privileges or immunities secured by
the Constitution or laws of the United States,
or any substantive rights, privileges or
immunities secured by the Constitution or laws
of this State, or whose exercise or enjoyment
of those substantive rights, privileges or
immunities has been interfered with or
attempted to be interfered with, by threats,
intimidation or coercion by a person acting
16
under color of law, may bring a civil action
for damages and for other injunctive or other
appropriate relief.
N.J.S.A. 10:6-2(c).
“This district has repeatedly interpreted
NJCRA analogously to § 1983.”
Pettit v. New Jersey, 2011 WL
1325614, at *3 (D.N.J. 2011).
The Plaintiffs properly point out
that the NJCRA has a “broad remedial purpose.” Owens v. Feigin,
947 A.2d 653, 656 (N.J. 2008).
However, the NJCRA and § 1983,
when pled together, are analyzed under the same standard; first,
the Defendant must have acted under color of state law, and
second, the Defendant must have violated a constitutional right.
Pettit, 2011 WL 1325614 at *4; see also Hottenstein v. Sea Isle
City, 793 F.Supp. 2d 688, 695 (D.N.J. 2011).
Putting aside the color of state law analysis, the record
and foregoing analysis do not demonstrate that any of the
municipal Defendants nor Linn and the SIAC deprived Tracy of her
constitutional rights.
Thus, just as the Defendants have
demonstrated they are entitled to summary judgment on Counts
Ten, Eleven, and Twelve, they are similarly entitled to summary
judgment on the accompanying NJCRA claim in Count Thirteen.
C.
Counts One, Six, and Seven allege claims of negligence
against each of the municipal Defendants.
17
Specifically, Count
One alleges negligence against each Defendant, Count Six alleges
a survival action based upon negligence, and Count Seven alleges
a wrongful death action based upon negligence.
The municipal
Defendants argue that they are entitled to summary judgment on
each of these counts because their actions are protected by the
Good Faith Immunity provision of the New Jersey Tort Claims Act.
Because the record demonstrates that the Defendants acted in an
objectively reasonable fashion and with subjective good faith,
they are entitled to the protection of good faith immunity and
summary judgment is granted in favor of the municipal Defendants
on these three claims alleging negligence.
The New Jersey Tort Claims Act provides public employees
immunity from suit.
N.J.S.A. 59:3-3.
Specifically, “[a] public
employee is not liable if he acts in good faith in the execution
or enforcement of any law.
Nothing in this section exonerates a
public employee from liability for false arrest or false
imprisonment.”
Id.
A public employee can satisfy the good
faith requirement either by demonstrating “objective
reasonableness,” or that the public employee behaved with
“subjective good faith.”
Alston v. City of Camden, 773 A.2d
693, 703 (N.J. 2001) (quoting Fielder v. Stonack, 661 A.2d 231,
246 (N.J. 1995)).
However, even in spite of good faith immunity, public
employees may lose the protection of immunity when they fail to
18
provide emergency medical treatment to individuals in their
custody.
See Del Tufo v. Twp. of Old Bridge, 650 A.2d 1044
(N.J. Super. App. Div. 1995).
In Del Tufo, a decedent’s estate
brought a wrongful death action against the police officers who
arrested the decedent, on the theory that officers’ failure to
provide emergency aid to the decedent was the proximate cause of
death.
Id. at 1046-47.
In particular, the police observed the
decedent’s erratic behavior and injuries, yet waited nearly an
hour to summon medical care for treatment.
Id. at 1046-47.
The
New Jersey Supreme Court rejected the police officers’
contention that they were entitled to good faith immunity,
holding that “[t]heir duty to execute or enforce the law did not
preclude them from providing emergency medical assistance to
their arrestee.
The immunity for enforcing and executing the
law does not protect defendants.”
Id. at 1051; see also Rosario
v. City of Union City Police Dept., 131 Fed. Appx. 785, 790 (3d
Cir. 2005) (explaining application of good faith immunity).
The municipal Defendants have credibly demonstrated that
they acted with subjective good faith and objectively reasonable
under the circumstances.
For example, McQuillen was first to
arrive on the scene and responded with oxygen and a medical bag
that he carried in his trunk.
(Defs. Ex. A at 69-70.)
All
three attempted to take Tracy’s pulse, and after failing to find
one and observing her body to be “cold” and “grayish,” the
19
officers determined that Tracy was deceased and began preserving
the area as a crime scene.
(Pls.’ Ex. 2-4.)
Moreover, in viewing the facts in the light most favorable
to the Plaintiffs, there is no ground to reject the Defendants’
claim for good faith immunity.
There is no allegation in the
record that the officers affirmatively ignored Tracy’s
condition.
Rather, the record reflects that the officers
immediately responded to the 911 call and attempted to render
the necessary care to an unconscious victim, and after
determining that Tracy lacked a pulse, they provided that
information to Linn and the SIAC, as well as the paramedics when
they arrived on scene.
at 43.)
(See Pls.’ Ex. 1 at 41; Ex. 2-4; Ex. 17
In light of these circumstances, the officers did not
fail to render medical care nor did they withhold medical care
from an individual in their custody that obviously required such
care.
Thus, the officers are entitled to the protections of
good faith immunity provided by N.J.S.A. 59:3-3 and therefore
the Court will grant summary judgment in favor of McQuillen,
Boyer, Haugh, and the City of Sea Isle City on Counts One, Six,
and Seven.
D.
Defendant Zaki Khebzou seeks summary judgment in his favor
on Counts One, Six, Seven, and Nine, each of which alleges that
20
Kebzou was negligent.
The facts produced in discovery do not
provide grounds for granting Khebzou summary judgment on any of
these claims.
Under New Jersey law, a plaintiff in a medical malpractice
action must prove three elements: (1) there is an applicable
standard of care, (2) a deviation from that standard occurred,
and (3) the deviation was the proximate cause of the harm
sustained by the plaintiff.
1055-56 (N.J. 2004).
Verdicchio v. Ricca, 843 A.2d 1042,
Where a “defendant’s negligence combines
with a preexistent condition to cause harm,” New Jersey has
adopted the substantial factor standard.
Id.; Flood v. Aluri-
Vallabhaneni, 70 A.3d 665, 571 (N.J. Super. Ct. App. Div. 2013).
The substantial factor test requires the Court to inquire
“whether the defendants’ deviation from the standard medical
practice increased a patient’s risk of harm or diminished a
patient’s chance at survival and whether such increased risk was
a substantial factor in producing the ultimate harm.”
Verdicchio, 843 A.2d at 1056 (quoting Gardner v. Pawliw, 696
A.2d 599, 608 (N.J. 1997)).
When appropriately applied, the substantial factor test
requires the plaintiff to first demonstrate that the defendant’s
negligence “actually increased the risk of an injury that later
occurs.”
Verdicchio, 843 A.2d at 1056.
Following that, the
jury must then determine whether “the increased risk was a
21
substantial factor in bringing about the harm that occurred.”
Id.
In Verdicchio, the decedent and his survivors filed a
lawsuit alleging medical malpractice in failing to provide a
timely diagnosis of the decedent’s cancer.
Id. at 1046.
To
satisfy the substantial factor test, the plaintiffs “were
required only to show that [the doctor’s] failure to perform an
examination that would have led to the discovery of the cancer
increased the risk that [the decedent] would lose the
opportunity for treatment at an earlier stage.”
Id. at 1062.
In other words, plaintiffs asserting a medical malpractice claim
in a substantial factor case need to demonstrate that the
defendant’s actions increased the plaintiff’s risk of harm;
whether the defendant actually was a substantial factor in that
harm is left to the jury.
Despite Khebzou’s arguments, the Plaintiffs have produced
sufficient evidence in discovery to suggest that Khebzou’s
behavior may constitute negligence increasing Tracy’s risk of
harm.
To pronounce a patient deceased outside of a hospital,
“[a] physician may specify another physician or may arrange with
a professional nurse (R.N.) or a paramedic in accordance with
N.J.A.C. 8:41-3.9, which requires the relay of findings,
including telemetered electrocardiograms, if feasible to attend
to the presumed decedent and make the determination and
pronouncement.” N.J.A.C. 13:35-6.2(d) (emphasis added).
22
At his
deposition, Khebzou acknowledged that he knew of the N.J.A.C.
provision requiring that he receive such test results, if they
could feasibly be provided.
(Pls.’ Ex. 25 at 140-41.)
Nonetheless, Khebzou declared Tracy deceased at 8:22 a.m., after
Boyer, Haugh, and McQuillen checked unsuccessfully for a pulse,
but without any physical contact or examination by SIAC
personnel or paramedics.
(Pls.’ Ex. 2-4.)
Khebzou’s
pronouncement was based upon a phone call from the paramedics,
who indicated that “[p]olice wishes us to preserve the scene. .
. . We have not hooked the patient up but I do see irreversible
signs of death.”
(Pls.’ Ex. 5).
Given that Tracy may have been
alive at 8:22 a.m., (Pls.’ Ex. 6 at 11; Pls.’ Ex. 7 at 11)
Khebzou’s pronouncement of death may have been premature and cut
off Tracy’s opportunity to receive medical care. 6
The Plaintiffs
therefore have produced sufficient evidence to suggest that
Khebzou’s actions were a substantial cause of Tracy’s harm,
6
For similar reasons, Khebzou’s argument that any liability should be reduced
based on his portion of the fault is not appropriate for summary judgment.
Assuming that the fact finder at trial determines that Khebzou’s negligence
was a substantial factor in the Plaintiffs’ harm, “a defendant nonetheless
has the ‘burden of segregating recoverable damages from those solely incident
to the preexisting disease.’” Anderson v. Picciotti, 676 A.2d 127, 212 (N.J.
1996) (quoting Fosgate v. Corona, 330 A.2d 355, 358 (N.J. 1974)). Khebzou
argues that the Plaintiffs’ expert put Tracy’s chance of survival at 10-33%
and thus Khebzou’s liability should be limited to this range. (Pls.’ Ex. 12
at 5; Defs. Br. at 22.). However, such a judgment would be inappropriate at
this time, as the defendant clearly bears the burden of segregating such
damages and Khebzou has failed to produce any facts of his own apportioning
liability.
23
thereby satisfying the substantial factor test.
Summary
judgment in Khebzou’s favor would therefore be inappropriate.
E.
Khebzou’s employer, Defendant Atlantic Emergency
Associates, also moves for summary judgment on Counts One,
Three, Six, and Seven.
Counts One, Six, and Seven allege
negligence, a survival action premised upon negligence, and
wrongful death premised upon negligence.
Count Three alleges
vicarious liability for AEA’s employee, Khebzou.
Because the
material facts regarding Khebzou’s negligence are still in
dispute and principles of respondeat superior may apply to such
claims, summary judgment for vicarious liability is
inappropriate at this time.
However, summary judgment will be
granted in AEA’s favor as to all direct claims of negligence.
Respondeat superior permits the imposition of liability on
an employer for the negligence of an employee that causes harm
to a third party, “if, at the time of the occurrence, the
employee was acting within the scope of his or her employment.”
Carter v. Reynolds, 815 A.2d 460, 463 (N.J. 2003) (citing
Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 462 (N.J. 1993)).
To properly establish such liability, a plaintiff must establish
two elements: (1) a master-servant relationship existed, and (2)
24
“the tortious act of the servant occurred within the scope of
that employment.”
Carter, 815 A.2d at 463.
At this time, there are no facts in dispute regarding the
vicarious liability of AEA.
AEA acknowledges that it was
Khebzou’s employer “at the time of the incident at issue in this
case and therefore may be vicariously liable for the defendant’s
[Khebzou’s] actions.”
(Def. Br. at 26 n.3.)
In the event
Khebzou is held liable for his own negligent acts at trial, the
Plaintiffs may pursue claims of vicarious liability against AEA
as Khebzou’s employer at the time of Khebzou’s negligent acts.
Therefore, this Court cannot grant summary judgment in favor of
the Defendants for claims of vicarious liability for the acts of
Khebzou that may ultimately be deemed negligence.
However, even viewing the evidentiary record in the light
most favorable to the Plaintiffs, the record fails to
demonstrate a link between AEA’s allegedly negligent behavior
and the harm sustained by the Plaintiffs.
The Plaintiffs point
to the conclusions of their expert, Dr. Paul Auerbach, asserting
that AEA “negligently breached [its] duty to implement policies
to assure the proper treatment of this hypothermic patient.”
(Pls.’ Ex. 7 at 13.)
Dr. Auerbach’s conclusion, however, only
acknowledges that it is “possible that [AEA] unnecessarily
allowed the progression of a grievous medical situation,” and
contributed to Tracy’s death.
(Id.)
25
This conclusion falls
short of explaining how AEA’s missing policies were a
substantial cause of the hypothermia, contracted between 2:15
a.m. and 7:52 a.m., which was ultimately determined to be the
cause of Tracy’s death.
(Pls.’ Ex. 6 at 12, ¶ 1.)
Because the
evidentiary record fails to demonstrate that AEA’s missing
policies were a substantial cause of Tracy’s death from
hypothermia, the Court will grant summary judgment in favor of
Defendants for all direct claims of negligence alleged in Counts
One, Six, and Seven.
F.
Defendants Sea Isle City and AEA each move for summary
judgment in their favor on Count Two, which alleges a claim of
negligent hiring, supervision, and retention.
Because the
Plaintiffs have failed to demonstrate that the Defendants had
any knowledge about the unfitness or incompetence of their
employees, summary judgment will be granted in their favor on
Count Two.
Under New Jersey law, the tort of negligent hiring,
supervision, and retention requires the satisfaction of two
elements.
First, the plaintiff must demonstrate that the
employer “knew or had reason to know of the particular
unfitness, incompetence or dangerous attributes of the employee
and could reasonably have foreseen that such qualities created a
26
risk of harm to other persons.”
Di Cosala v. Kay, 450 A.2d 508,
516 (N.J. 1982); Lingar v. Live-In Companions, Inc., 692 A.2d
61, 65-65 (N.J. Super. App. Div. 1997).
Second, the plaintiff
must show that as a result of the employer’s negligent hiring,
the employee’s “incompetence, unfitness or dangerous
characteristics,” were the proximate cause of the plaintiff’s
injuries.
Di Cosala, 450 A.2d at 516.
At the close of discovery, the Plaintiffs have failed to
produce any evidence demonstrating AEA’s knowledge of Khebzou’s
unfitness, incompetence, or dangerous attributes as an employee.
At most, the Plaintiffs have shown that their experts believe
AEA failed to impose appropriate policies for treating
hypothermic patients, thereby breaching AEA’s duty of care to
Tracy.
(Pls.’ Ex. 7 at 13.)
However, even assuming that AEA
did breach such a duty of care, any such breach would still fail
to make out a prima facie case of negligent hiring, supervision,
and retention.
Therefore, the Court will grant summary judgment
in favor of AEA on Count Two.
Similarly, the Plaintiffs have failed to produce any
evidence demonstrating the City of Sea Isle City’s knowledge of
its employees’ unfitness, incompetence, or dangerous attributes
as employees.
While the evidentiary record reflects the
Plaintiffs’ expert’s opinion that the Sea Isle City Police
Department failed put in place certain policies regarding the
27
treatment of hypothermia victims, nothing in the record reflects
any knowledge of McQuillen, Haugh, or Boyer’s unfitness,
incompetence, or dangerous attributes as employees of the police
department.
Thus, the Plaintiffs have failed to demonstrate the
prima facie case for the tort of negligent hiring, and Defendant
Sea Isle City must be granted summary judgment in its favor on
Count Two.
G.
Defendants Khebzou, AEA, Sea Isle City, Boyer, McQuillen,
and Haugh seek summary judgment in their favor on claims seeking
punitive damages.
The Defendants argue that the Plaintiffs have
produced no facts supporting a punitive damages award.
The
Court is skeptical of the Plaintiffs’ ultimate success on claims
for punitive damages, but viewing the facts in the light most
favorable to Plaintiffs, declines to grant summary judgment at
this time.
Under New Jersey’s Punitive Damages Act,
[p]unitive damages may be awarded to the
plaintiff only if the plaintiff proves, by
clear and convincing evidence, that the harm
suffered was the result of the defendant’s
acts or omissions, and such acts or omissions
were actuated by actual malice or accompanied
by a wanton and willful disregard of persons
who foreseeably might be harmed by those acts
or omissions. This burden of proof may not be
satisfied by proof of any degree of negligence
including gross negligence.
28
N.J.S.A. 2A:15-5.12(a).
Negligence, “no matter how gross,”
cannot form the basis of an award for punitive damages, and
therefore a plaintiff must demonstrate that the defendant’s act
was “wanton and willful” by showing “a deliberate act or
omission with knowledge of a high degree of probability of harm
and reckless indifference to the consequences.”
Smith v.
Whitaker, 734 A.2d 243, 254 (N.J. 1999); see also Cruz v. Atco
Raceway, 2013 WL 3283964, at *6-7 (D.N.J. June 27, 2013)
(holding that defendant’s deliberate indifference to New Jersey
safety regulations and knowledge of the severe consequences for
failure to follow such regulations would permit a reasonable
jury to find wanton and willful conduct).
The record evidence, viewed in the light most favorable to
the Plaintiffs, supports a reasonable conclusion that Khebzou
deliberately ignored New Jersey regulations for the
pronouncement of death outside of a hospital. 7
140-41.)
(Pls.’ Ex. 25 at
Khebzou learned from the paramedic that Tracy
displayed signs of death, but had not been “hooked up.”
Ex. 5)
(Pls.’
Without asking any further questions, Khebzou elected to
declare Tracy deceased anyway, even though he knew New Jersey
regulations for declaring a patient deceased required such test
results, if feasible, and therefore did not follow those
7 N.J.A.C. 13:35-6.2 requires a paramedic or other medical professional to
relay the findings of “telemetered electrocardiograms, if feasible” to the
physician making the declaration of death.
29
regulations.
(Pls.’ Ex. 25 at 140-41.)
Though the record is
not clear whether Boyer, McQuillen, and Haugh deliberately
ignored the regulation, the Plaintiffs have demonstrated that
the Defendants cordoned off Tracy’s body and determined her to
be deceased without a pronouncement of death.
(Pls.’ Ex. 23 at
49-50; see also Pls.’ Ex. 26 at 146-47; Pls.’ Ex. 29 at 30-31.)
Rather, McQuillen and Boyer consulted with each other after
failing to find a pulse on Tracy and concluded that she was
deceased.
(Defs. Sea Isle City Ex. A at 77)
In short, the record evidence, viewed in the light most
favorable to the nonmoving parties for summary judgment, permits
a reasonable conclusion that the Defendants’ actions may have
constituted a wanton and willful act within the bounds of the
Punitive Damages Act.
Whether the evidence adduced at trial
only demonstrates negligence, which would prohibit punitive
damages under the terms of the statute, is unclear at this point
but may be addressed again upon appropriate motion at trial.
H.
Defendant Sea Isle City moves for summary judgment on Count
Four, which alleges premises liability based upon a dangerous
and defective condition in the public marina where Tracy was
discovered.
Because the evidentiary record does not demonstrate
that Tracy’s harm was the proximate cause of a dangerous
30
condition in the Marina, summary judgment will be granted in
favor of the Defendant. 8
The New Jersey Tort Claims Act governs the liability of
public entities for alleged dangerous conditions of public
lands.
To impose liability, a plaintiff must show that the
property was in a dangerous condition at the time of the injury,
the injury was proximately caused by the dangerous condition,
and the dangerous condition created a “reasonably foreseeable
risk of the kind of injury which was incurred.”
2.
N.J.S.A. 59:4-
In addition, a plaintiff must show that either an employee
of the public entity acting within the scope of his employment
created the dangerous condition, or that the public entity had
actual or constructive notice of the dangerous condition with
enough time to have corrected it before the incident in
question.
Id.
Finally, the Act grants the public entity
immunity from liability “if the action the entity took to
protect against the condition or the failure to take such action
was not palpably unreasonable.”
Id.
8 Initially, Sea Isle City argues that the Plaintiffs’ expert report must be
excluded as a net opinion under New Jersey law. A net opinion is an expert
opinion that is not based “on a proper factual foundation.” Buckalew v.
Grossbard, 435 A.2d 1150, 1157 (N.J. 1981). However, the admissibility of
expert testimony in federal court is governed by the standards of Federal
Rule of Evidence 702. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993). Whether New Jersey standards of admissibility should be followed in
light of Rule 702 is moot, as the evidentiary record fails to demonstrate the
alleged dangerous condition was a proximate cause of Tracy’s harm.
31
The Court focuses on issues of causation in determining
that the record evidence, even when viewed in the light most
favorable to the Plaintiffs, fails to satisfy the requirements
of the Act.
The Plaintiffs’ expert report fails to address how
the allegedly dangerous conditions of the Sea Isle City Marina
caused Tracy’s harm.
(See Pls.’ Ex. 31.)
While the report
details both likely and unlikely scenarios, none of the
scenarios actually explain how Tracy fell at the Marina.
at 10-11.)
(Id.
In the “likely scenario,” the Plaintiffs’ expert
asserts that Tracy “fell from the bulkhead onto the edge of a
floating dock below[,] near slip 73, and then fell from the
floating dock into the water.”
(Id.)
Under the more unlikely
scenarios, the Plaintiffs’ expert asserts that Tracy may have
lost her balance or slipped between floating docks.
(Id.)
In
either case, the expert testimony fails to determine the cause
of Tracy’s fall or how she lost her balance and fell.
In the
absence of any evidence in the record demonstrating her fall,
the Plaintiffs have failed to demonstrate that the dangerous
condition of the Marina could have been a proximate cause of
Tracy’s harm.
Because the Plaintiffs have failed to show that
the dangerous condition in the Marina was a proximate cause of
Tracy’s harm, Sea Isle City is entitled to summary judgment on
the premises liability claim in Count Four.
32
IV.
In conclusion, the circumstances of Tracy Hottenstein’s
death are undoubtedly tragic but remain unclear at the close of
discovery.
In light of the facts developed in the evidentiary
record, and for the specific reasons stated above, (1)
Defendants Sea Isle Ambulance Corps and Phyllis Linn’s Motion
for Summary Judgment will be fully granted on the civil rights
claims alleged against them; (2)
Defendants City of Sea Isle
City, Thomas McQuillen, Vincent Haugh, and Harold Boyer Motion
for Summary Judgment will be fully granted, covering (a) the
civil rights claims under both § 1983 and the New Jersey Civil
Rights Act, (b) premises liability claims, and (c) negligent
hiring, supervision, and retention, and (d) negligence alleged
in Counts One, Six, and Seven; and (3) Defendants Zaki Khebzou
and Atlantic Emergency Associates Motion for Summary Judgment
will be granted as to claims of negligent hiring and direct
negligence against AEA, and denied as to the direct negligence
of Khebzou and the vicarious liability of AEA.
An appropriate
Order accompanies this Opinion.
Date: 10/11/13
/s/ Joseph E. Irenas
_
JOSEPH E. IRENAS, S.U.S.D.J.
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?