ESTATE OF SAULO DEL ROSARIO et al v. PATERSON POLICE DEPARTMENT et al

Filing 77

OPINION. Signed by Judge William J. Martini on 11/3/16. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ESTATE OF SAULO DEL ROSARIO, Deceased, by
its Administrators Ad Prosequendum, CARMEN
GONZALEZ (a/k/a CARMEN DOLORES
PAYERO GONZALEZ) and YUNIOR J. REYES
GONZALEZ (a/k/a YUNIOR J. REYES);
CARMEN GONZALEZ, Individually; YUNIOR J.
REYES GONZALEZ, Individually; STEVEN
JAVIER DEL ROSARIO, a minor by his
Guardians, CARMEN GONZALES AND YUNIOR
J. REYES GONZALES; ELVIO DEL ROSARIO;
DIOMEDES DEL ROSARIO, Individually;
DIOSMENDY DEL ROSARIO, YANIRIS DEL
ROSARIO, by their Guardian, DIOMEDES DEL
ROSARIO; LEIDY DEL ROSARIO; HONEY DEL
ROSARIO; MARTHA DEL ROSARIO;
CARMELINA DEL ROSARIO, EMELY DEL
ROSARIO, MISAEL DEL ROSARIO, and
MIGUEL DEL ROSARIO by their Guardian,
MARTA DEL ROSARIO,
Plaintiffs,
v.
PATERSON POLICE DEPARTMENT, CITY OF
PATERSON, PATERSON POLICE OFFICER
MARJ KUSH, PATERSON POLICE OFFICER
ANGEL SANDOVAL, PATERSON POLICE
OFFICER ANTHONY PETRAZZUOLO,
PATERSON POLICE SERGEANT TROY
BAILEY, PATERSON POLICE OFFICER
ROBERT CHALLICE, PATERSON POLICE
OFFICER GIUSEPPE CIARLA, SUPERVISORY
OFFICALS I-X (names presently unknown),
OFFICERS I-X (names presently unknown),
ENTITIES I-X (names presently unknown),
Defendants.

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Civ. No. 14-5167
(WJM)
OPINION

Saulo Del Rosario (“Saulo” or “decedent”) was fatally shot inside his
bedroom by a Paterson police officer on September 1, 2012. Family members
brought this action, individually and as beneficiaries of Saulo’s estate, against
the City of Paterson, the Paterson Police Department and certain Paterson
police officers. This matter comes before the Court pursuant to Federal Rule
of Civil Procedure 12(c) on Defendants’ motion for judgment on the pleadings
as to all but three named Plaintiffs. For the reasons below, the motion is
GRANTED in part and DENIED in part.
I.

BACKGROUND

On September 1, 2012, Saulo Del Rosario, a thirty-nine-year-old man
with a history of epileptic seizures and mental illness, locked his bedroom
door and refused to allow family members to enter. Am. Compl. ¶ 22; Defs.’
Br., Ex. C ¶ 4, E ¶ 8. Concerned for Saulo’s safety, his sons asked an Englishspeaking friend to call 911 and request emergency medical assistance. Am.
Compl. ¶ 25. The 911 operator dispatched Paterson Police and designated the
call as an “EDP” (emotionally disturbed person). Id. ¶ 26.
Several police officers soon arrived at the Del Rosario home and
attempted unsuccessfully to communicate with Saulo through the locked
bedroom door. Id. ¶ 28. Police then removed from the house Saulo’s three
children, six nieces and nephews, and three siblings, and directed the family
members to wait outside. Id. ¶¶ 30-31. A group of officers proceeded to break
down the bedroom door. Id. ¶¶ 34-37. Seeing that Saulo was holding a
hammer, Officer Marj Kush fired two shots, resulting in Saulo’s death. Id. ¶¶
37-38.
All family members present at the home on September 1, 2015 heard
the fatal gun shots and watched as police officers carried Saulo’s body out of
the house.1 Defs.’ Br., Ex. H ¶ 11; Ex. I ¶ 9a. Plaintiffs Leidy and Styven
Javier Del Rosario (Saulo’s daughter and son) allege that they were standing
directly outside Saulo’s bedroom window and heard him exclaim “please let
me live!” before the shots were fired. Defs.’ Br., Ex. G ¶ 8, Ex. I ¶ 9a.
Plaintiffs filed their original complaint on August 19, 2014, alleging
twelve state and federal tort claims. On April 16, 2015, the Court granted in
part and denied in part Defendants’ motion for summary judgment for failure
Several Plaintiffs allege that officers dropped Saulo’s body when removing it from the home.
Defs.’ Br., Ex. H. ¶ 12.
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to state a claim. ECF No. 31.2 Plaintiffs amended their complaint on June 16,
2015.3
Defendants now move for judgment on the pleadings under FRCP 12(c)
as to all plaintiffs except Saulo’s three children. First, Defendants argue that
only Saulo’s children satisfy the elements of negligent infliction of emotional
distress, because the other Plaintiffs either do not qualify as immediate family
members or did not directly witness the shooting. Second, Defendants argue
that only Saulo’s three children, as exclusive beneficiaries of his estate, are
eligible to pursue derivative and survival tort claims. On these grounds,
Defendants move to dismiss all Plaintiffs except for Saulo’s three children.
II.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(c), judgment on the
pleadings will be granted only if “the movant clearly establishes there are no
material issues of fact, and he is entitled to judgment as a matter of law.” Sikirica
v. Nationwide Insurance Co., 416 F.3d 214, 220 (3d Cir. 2005) (citing Society Hill
Civic Ass’n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)). The court “must view
the facts presented in the pleadings and the inferences to be drawn therefrom in the
light most favorable to the nonmoving party.” Id. In deciding a motion for
judgment on the pleadings, the court considers the pleadings and attached exhibits,
undisputedly authentic documents relied on by plaintiffs and attached to the
motion, and matters of public record. Atiyeh v. Nat’l Fire Ins. Co. of Hartford, 742
F. Supp. 2d 591, 595 (E.D. Pa. 2010).
III.

DISCUSSION

Defendants argue that New Jersey tort law categorically bars a victim’s
nieces and nephews from establishing bystander liability in an action for
negligent infliction of emotional distress (“NIED”). In fact, New Jersey law
calls for a flexible, case-by-case examination of the bystander-victim
relationship. In the present action, determining whether Saulo had formed
sufficiently “intimate and familial” relationships with his nieces and nephews
Plaintiffs Elvio Del Rosario and Martha Del Rosario were dismissed by voluntary stipulation
on April 30, 2016. ECF No. 58. The April 16, 2015 opinion held, among other things, that
Plaintiffs adequately allege the elements of negligent infliction of emotional distress.
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The amended complaint includes a claim under 42 U.S.C. § 1983, two counts of excessive use
of force, conspiracy, negligence, wrongful death, survivorship, intentional infliction of emotional
distress, negligent infliction of emotional distress, tortious conduct of employees, negligent
hiring and training, and negligent supervision. ECF No. 35.
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would require that the Court resolve outstanding issues of material fact.
Defendants are therefore not entitled to judgment on the pleadings.
A. Negligent Infliction of Emotional Distress
To state an NIED claim under New Jersey law, Plaintiffs must
demonstrate “(1) the death or serious physical injury of another caused by
defendant's negligence; (2) a marital or intimate, familial relationship between
the plaintiff and the injured person; (3) observation of the death or injury at
the scene of the accident; and (4) resulting severe emotional distress.” Portee
v. Jafee, 642 A.2d 372, 417 (N.J. 1980). This motion implicates Portee’s
second and third elements.
1. Marital or Intimate, Familial Relationships
Defendants argue that NIED claims by Saulo’s nieces and nephews fail
as a matter of law because New Jersey strictly limits “intimate family
relations” to spouses, cohabitating fiancés, parents and children. Defs. Br. 16.
That position misconstrues New Jersey law. In Dunphy v. Gregor, the New
Jersey Supreme Court rejected a bright-line approach that would exclude
certain individuals solely on the basis of inadequate blood ties. 642 A.2d 372,
378 (N.J. 1994). Instead, courts must examine the particular “quality of
interpersonal relationships” and “identify and define the intimacy and familial
nature of such [] relationship[s].” Id.
The plaintiff in Dunphy argued that she qualified as a bystander after
witnessing her fiancé die in a car accident, even though the plaintiff and
victim were not yet married. Dunphy, 642 at 374. The New Jersey Supreme
Court agreed:
[T]o foreclose such a plaintiff from making a claim based upon
emotional harm because her relationship with the injured person
does not carry a particular label is to work a potential injustice,
not only in this case but also in too many other instances in which
the events leading to injury or death are indelibly stunning, and
where the emotional injury is genuine and substantial and is
based upon a relationship of significant duration that, at the time
of injury, is deep, lasting and genuinely intimate.
Id. (quoting Dunphy v. Gregor, 617 A.2d 1248, 1254-55). Rather than
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delineate strict categories of qualifying relationships, the court articulated a
more flexible, fact-specific analysis:
[Courts] must take into account the duration of the relationship,
the degree of mutual dependence, the extent of common
contributions to a life together, the extent and quality of shared
experience, and, as expressed by the Appellate Division,
“whether the plaintiff and the injured person were members of
the same household, their emotional reliance on each other, the
particulars of their day to day relationship, and the manner in
which they related to each other in attending to life's mundane
requirements.”
Dunphy, 642 A.2d at 378.
Applying Dunphy’s more flexible approach, whether Saulo’s
relationships with his nieces and nephews were “deep, lasting, and genuinely
intimate” is an issue of fact that forecloses judgment on the pleadings. See
Fed. R. Civ. P. 12(c). Viewed in a light most favorable to Plaintiffs, the record
shows that Saulo played an important role in the lives of his nieces and
nephews. Four of the children shared a household with the decedent at the
time of his death. Pls.’ Br. Opp. 11-12. The other two children spent much of
their time there as well. Id. “Irrespective of the label placed upon a particular
relationship, it is a jury question whether the inter-personal bonds upon which
the cause of action is based actually exist.” Dunphy, 642 A.2d at 378
(citations omitted).
2. Observation of Death or Grievous Injury
Bystander liability entails “sensory, contemporaneous perception of an
injury” sustained by a family member. Jablonowska v. Suther, 948 A.2d 610,
620 (N.J. 2008). Plaintiffs Carmen Gonzalez (Saulo’s mother) and Yunior
Reyes (Saulo’s brother) were not present at the time of the shooting or its
immediate aftermath, so their individual NIED claims fail as a matter law. See
Portee v. Jaffee, 417 A.2d 521, 526 (N.J. 1980); Ortiz v. John D. Pittenger
Builder, Inc., 889 A.2d 1135, 1140 (N.J. Sup. Ct. Law. Div. 2004).
In contrast, all other remaining Plaintiffs – Saulo’s three children and
six nieces and nephews – were in the immediate vicinity of the shooting, and
at minimum heard the gun shots and saw Saulo being removed from the home
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immediately thereafter. These Plaintiffs therefore satisfy the “contemporary
observation” element of Portee. See Mansour v. Leviton Mfg. Co., Inc., 890
A.2d 336, 338 (N.J. Sup. Ct. App. Div. 2006) (contemporaneous observation
may be auditory); Mercado v. Transport of New Jersey, 422 A.2d 800, 802
(“The requirement of ‘direct . . . sensory and contemporaneous observance . . .
relates not to witnessing the moment of actual impact, but to witnessing the
suffering of the victim.”).
B. Plaintiffs’ Derivative and Survival Claims
Plaintiffs’ response papers concede that only Saulo’s children, as
exclusive beneficiaries of his estate, have standing to bring derivative and
survival actions. Pls.’ Br. Opp. 4. Accordingly, the Court grants Defendants’
motion for judgment as to claims of wrongful death, survivorship and
violation of 42 U.S.C. § 1983 for all Plaintiffs except Saulo’s children, Javier,
Leidy and Honey Del Rosario.

IV.

CONCLUSION

For the foregoing reasons, Defendants’ motion for judgment on the
pleadings is GRANTED in part and DENIED in part. Except as to the
decedent’s three children, Javier, Ledy and Honey Del Rosario, derivative
claims for wrongful death, survivorship, and for violations of 42 U.S.C. §
1983 are dismissed. With respect to individual claims for negligent infliction
of emotion distress, the motion is GRANTED as to Plaintiffs Carmen
Gonzalez and Yunior Reyes and DENIED as to the decedent’s six nieces and
nephews.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: November 3, 2016

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