N.S. v. BOROUGH OF PROSPECT PARK, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-000189-05T30189-05T3

N.S.,

Plaintiff/Respondent,

v.

BOROUGH OF PROSPECT PARK, PROSPECT

PARK POLICE DEPARTMENT, FRANK FRANCO,

Defendants/Appellants.

RICHARD HAMAN AND HELEN INCORVIA,

Defendants.

_______________________________________________

 

Argued September 27, 2006 - Decided December 4, 2006

Before Judges Stern, A.A. Rodr guez and

Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-2824-03.

Richard A. Grodeck, argued the cause for appellants, Borough of Prospect Park, Prospect Park Police Department and Frank Franco, (Feldman Grodeck, attorneys; Mr. Grodeck, on the brief).

Terry Paul Bottinelli, argued the cause for respondent, (Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, attorneys; Thomas S. McGuire and Craig P. Bossong, on the brief).

PER CURIAM

Defendants, Borough of Prospect Park, Prospect Park Police Department and Captain Frank Franco ("defendants") appeal from the entry of judgment following a jury trial in favor of plaintiff N.S., awarding her damages as a result of a rape committed by Prospect Park police officer defendant Richard Haman. Defendants also appeal from the denial of their motion for judgment notwithstanding the verdict, pursuant to R. 4:40-2(b). The total jury award of $265,000 in compensatory damages was apportioned thirty percent against Prospect Park and seventy percent against Haman.

Defendants argue that: (1) summary judgment should have been granted in their favor, (2) "during the course of the trial the court made numerous errors on evidentiary issues, all of which were highly prejudicial and each of which standing alone requires reversal," (3) the judge erred in permitting the case to go to the jury in absence of proof of "a permanent injury within the meaning of [the Torts Claims Act] N.J.S.A 59:9-2(d)," (4) "the trial court's charge to the jury was based upon a gross misstatement of the law" and (5) "the trial court erred in refusing to grant defendants' motion for judgment notwithstanding the verdict."

The verdict against defendants resulted from the jury's finding that they were negligent in their supervision and/or retention of Haman and that such negligence was a proximate cause of Haman's rape of plaintiff.

We find ample evidence that defendants were negligent in their supervision and retention of Haman. Despite our careful and thorough review of the record, we are, however, unable to conclude that their negligence was a proximate cause of Haman's rape of plaintiff. Accordingly, we are constrained to reverse the judgment against the Borough of Prospect Park.

I.

The rape on the 18 year old plaintiff by Haman occurred on July 10, 2001 in North Haledon at the apartment of co-defendant Helen Incorvia. Haman was a detective with the Prospect Park Police Department who had met plaintiff and her sister, L.S., the day before the rape on plaintiff when Incorvia brought Haman to the sisters' house to go swimming. Incorvia and L.S. became acquainted because they both worked on the North Haledon

Ambulance Squad. Haman met Incorvia at the ambulance squad headquarters.

On the day of the assault, Incorvia brought L.S. and plaintiff over to her apartment, ostensibly so they could help take care of her children. On the way there, Incorvia told them Haman was in her apartment. The four were only there for a short time when Haman went downstairs to his car, and retrieved his department-issued handcuffs and handgun. He used the handcuffs to teasingly cuff L.S. and plaintiff together, after which he lifted plaintiff to her feet by pulling on the handcuffs. Plaintiff testified that while she was handcuffed, Haman pointed his unloaded gun at her head and pulled the trigger. After the handcuffs were removed, Haman forcibly kissed plaintiff while Incorvia held her still, after which plaintiff went to the bathroom to wash her mouth.

When Incorvia's estranged husband telephoned, requesting that she pick up her children at his parents' home, she, plaintiff and L.S. started to go down the apartment steps, at which point Haman, according to plaintiff, stopped her from leaving. The others left the apartment, leaving Haman alone with plaintiff. Plaintiff testified that after the others left, Haman forced her down onto the couch and raped her.

L.S. testified that when they returned, plaintiff was "very upset, very scared," and her clothes and makeup were "a mess." When plaintiff told L.S. that Haman had raped her, L.S. yelled at Haman and "smacked him a few times." Incorvia then drove the plaintiff and L.S. home.

As is clear from the above facts, the attack on plaintiff occurred in Haman's girlfriend's apartment, which was located outside Prospect Park, during a social gathering. No police business or official duties brought him to the apartment, and the rape occurred while Haman was off-duty.

On July 29, 2001, plaintiff reported the rape to the North Haledon Police Department and to the Passaic County Prosecutor's Office. Three weeks later, after pleading guilty to the crimes of official misconduct and criminal sexual contact on plaintiff, Haman resigned his position as a detective with the Prospect Park Police Department.

The evidence adduced at trial established numerous incidents of predatory sexual behavior by Haman prior to the rape on plaintiff. Two teenage girls testified that when they were thirteen years old Haman made "perverted" comments to them about their bodies while he was their softball coach. They reported his offensive comments to a patrol officer in the Prospect Park Police Department. A third young woman testified that she had a two-year sexual relationship with Haman beginning in 1996, when she was 16 and he was 27. She testified that they met when Haman responded to a burglary call at her home. Thereafter, they engaged in sexual relations on numerous occasions while Haman was on duty and in uniform. Each time it occurred either in Haman's patrol car or in closed public parks. An officer in the Prospect Park Police Department told Captain Franco that this same teenager had come to headquarters looking for Haman to ask him for money for an abortion after she became pregnant. Whether Franco learned of the pregnancy before or after plaintiff filed a complaint against Haman was in dispute.

An investigator from the Prosecutor's office testified to acts of sexual misconduct by Haman against three other women prior to Haman's attack on plaintiff. The witness described a claim by one woman that Haman arrived at her home uninvited, wearing a badge and bullet-proof vest, and carrying his gun. After she rebuffed his sexual advances, she later observed him parked in his police vehicle outside her home. She reported these events, which occurred five or six years prior to the attack on plaintiff, to a sergeant on the Prospect Park police force, but he failed to notify Captain Franco.

The witness from the Prosecutor's Office also testified that another woman reported that Haman had raped her in March 1995 in the woman's home a day after he responded to a domestic violence call there and that he had repeatedly driven by her home thereafter in his police vehicle. Captain Franco visited her at her home to take a statement from her. She refused to give a statement and failed to respond to Franco's letter advising her that he would close the investigation if she did not contact him within ten days. Franco never advised this complainant that she could report the rape to the Passaic County Prosecutor's office or to the Attorney General's Office, if she preferred. Franco never confronted Haman with this woman's accusation. Ultimately Franco did report the matter to the Passaic County Prosecutor's office but not until after plaintiff had filed charges against Haman.

The final incident described by the witness from the Prosecutor's office involved observations by a fellow police officer of a woman behind closed doors with Haman in his office at the detective bureau during his shift. When the officer knocked, a nervous-looking Haman opened the door slightly, after a long pause. The officer did not report his observations to Captain Franco.

The jury rendered its verdict against defendants, finding that they were negligent in their supervision of Haman and/or in retaining him as a police officer, and that their negligence was a proximate cause of the attack on plaintiff. The judge defined proximate cause as follows during his charge to the jury:

The basic question for you to resolve is whether plaintiff's injury is so connected with the negligent actions or inaction of the defendant Prospect Park and/or the defendant Franco that you decide it is reasonable in accordance with the instructions I will now give you that the defendants or either of them should be held wholly or partially responsible for plaintiff's injury.

By proximate cause I refer to a cause that in a natural and continuous sequence produces the incident and resulting injury and without which the resulting incident and injury would not have occurred. A person who is negligent is held responsible for any incident or injury that results in the ordinary course of events from his or its negligence. This means that you must so find that the resulting incident or injury to plaintiff would not have occurred but for the negligent conduct of the defendant Borough of Prospect Park and/or the defendant Captain Franco. Second, you must find that the defendant's negligent conduct was a substantial factor in bringing about the resulting injury. By substantial I mean that the cause is not remote or trivial or inconsequential. If you find that the defendant Borough of Prospect Park and/or the defendant Frank Franco's negligence was a cause of the incident and that such negligence was a substantial factor in bringing about the defendant's injury, then you should find the defendant's Borough of Prospect Park and/or defendant Franco caused the plaintiff's injury.

The judge denied the motion for judgment notwithstanding the verdict, noting that "[Haman] was a problem waiting to reoccur. . . . [H]is conduct with [plaintiff] appeared in a very foreseeable form similar to prior conduct. . . . [T]here certainly is more than ample basis for what the jury found here. . . . [T]his verdict stands."

In the appeal from the denial of their motion, defendants argue:

[H]aman's continued employment as a police officer bears no relationship to the assault. Simply stated, the cause of action based upon negligent retention requires a casual relationship between the employment and the misconduct.

. . .

Assuming Franco had become aware of Haman's history, and assuming further that Haman had been terminated; there is absolutely no evidence to even begin to suggest that this incident would not have occurred anyway.

A claim based upon negligent retention proceeds from the proposition that if employment as a police officer did not exist, then the incident would have not occurred. Each and every one of the cases upon which plaintiff relied is based upon circumstances where the incident occurs because of the actor's status as a police officer.

In response, plaintiff argues before us that if the defendants had terminated Haman after learning of the conduct we have described, he never would have met Incorvia at the North Haledon Ambulance Squad building and then would never have met plaintiff or her sister L.S., "thereby setting into motion the series of events leading to the ultimate attack" on plaintiff. He also would not have possessed the handgun and handcuffs used to intimidate plaintiff an hour before the rape occurred.

Plaintiff argues correctly that a municipality's negligent retention of a police officer can be found to be a proximate cause of injury, even when the tortious conduct occurs while the officer is off-duty. She is also correct that "there is no requirement that the injury must be inflicted within the municipality's jurisdiction or while performing official duties." She relies on two of our decisions in support of her claim that causation was established at trial, Corridon v. Bayonne, 129 N.J. Super. 393 (App. Div. 1974) and Peer v. Newark, 71 N.J. Super. 12 (App. Div. 1961).

In Corridon, we found that the city could be held liable when an intoxicated off-duty police officer drew his service revolver at a tavern, put it to a man's head and shot him dead, because there was evidence that the city failed to properly supervise its officers. Corridon, supra, 129 N.J. Super at 396. We reasoned that there was credible evidence tending to show that the City knew or might reasonably have known of the officer's six-year pattern of intoxication in public places before the shooting. Ibid. We concluded that it could be readily inferred, pursuant to regulation, that the officer was armed at the time in question. Id. at 396-97. Under those facts, we held that whether the municipality was negligent and whether such negligence was a proximate cause of the shooting was a fact question for the jury. Id. at 397.

In Peer, we held that a jury question existed on whether the City's inadequate training of one of its police officers was a proximate cause of injuries to a teenage girl when the officer's duty weapon discharged while he was off-duty. Peer, supra, 71 N.J. Super at 24. The plaintiff in Peer had presented expert testimony demonstrating the inadequacy of the training offered to the officer. Id. at 18.

Our review of Corridon and Peer persuades us that plaintiff's reliance on them is misplaced. Both involved police-citizen encounters in which the officer used his duty weapon, while off-duty, to cause injury. In both cases we found that the negligent supervision/retention was a foreseeable cause of the injury. The direct and meaningful nexus between the negligent supervision and/or retention and the injury complained of, which was present in both cases, is absent in the instant case.

In both cases, had the police department acted appropriately, neither officer would have had access to the weapon used to maim and kill. The result of not terminating the officer was foreseeable, and flowed directly from the negligent supervision.

Here, in contrast, the causation which plaintiff points to is remote, indirect and speculative. The claim that if Haman had been fired, he would never have met Incorvia and then would never have met plaintiff ignores the possibility that Haman could have met Incorvia through friends on the Prospect Park police force or by stopping at the ambulance squad headquarters even if he had been fired by Prospect Park beforehand. Stated differently, it was not foreseeable that any negligence in failing to terminate Haman, would have caused Haman to meet Incorvia, and then meet, and assault, plaintiff. The rape in a purely social setting outside of Prospect Park while Haman was off-duty was no different than such an event happening while on vacation in the Caribbean or elsewhere.

If the attack on plaintiff had occurred as an outgrowth of Haman's responsibilities as a detective, or if he had met her directly through his employment, we would have less difficulty in holding that the attack was foreseeable in light of Franco's knowledge that one woman claimed that Haman had raped her after he had responded to a domestic violence call at her home. We do not mean to suggest that the foreseeability requirement of a negligent supervision/retention claim can only be satisfied when the tortious conduct occurs within the scope of employment. Unquestionably, a municipality can be liable for harm resulting from a failure to fire even if the tortious conduct is outside the scope of employment and reasonably foreseeable. DiCasola v. Kay, 91 N.J. 159, 174 (1982).

In light of the requirement that the ultimate harm be foreseeable, any liability of defendants arising from a failure to fire Haman must have some nexus to Haman's continued employment. Id. at 173-74. Thus, the plaintiff urges us to find that the Haman/Incorvia connection "is a result of" Haman's employment, because had Haman been fired he never would have met Incorvia. The plaintiff's argument fails to recognize that in order for defendants' negligence in failing to fire Haman to be a proximate cause of the rape, the ultimate result must also be foreseeable. Hill v. Yaskin, 75 N.J. 139, 143 (1977). As the Court observed in Hill:

Foreseeability that affects proximate cause . . . relates to the question of whether the specific . . . omission of the defendant was such that the ultimate injury to the plaintiff reasonably flowed from defendant's breach of duty.

[Ibid.]

Foreseeability, in the proximate cause context, relates to remoteness, or lack thereof, rather than to the existence of a duty. Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 503 (1997).

Where a result is so remote or attenuated that it is not foreseeable, a "judicial line" is drawn "beyond which liability will not be extended . . . [for reasons of] fairness and policy." Caputzal v. Lindsay Co., 48 N.J. 69, 77 (1966). There the court noted:

As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.

[Id. at 78]

The Court further determined in Caputzal that what might appear foreseeable through the distortion of hindsight is not a valid basis upon which to find foreseeability. Ibid. The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm. Ibid.

The Haman/Incorvia connection was not a cause of the assault, but rather "simply presents the condition under which the injury was received." Latta v. Caulfield, 79 N.J. 128, 133 (1979).

We therefore conclude that the motion for judgment notwithstanding the verdict should have been granted. Our conclusion should not be understood as suggesting that defendants' failure to act was a reasonable response to Haman's conduct in preying upon six young women prior to plaintiff. Far more was required of Franco and Prospect Park than what they did.

Our conclusion with respect to defendants' motion is based instead on the plaintiff's failure to prove that defendants' negligence in failing to supervise or terminate Haman was a proximate cause of his raping her later.

Our conclusion that the motion for judgment notwithstanding the verdict should have been granted makes unnecessary any discussion of defendants' claims concerning errors in the admission of evidence, insufficiency of evidence of a permanent injury under the Tort Claims Act, or defects in the charge to the jury.

Reversed for the entry of a judgment of dismissal as to the Borough of Prospect Park.

 

Haman has not filed a brief or participated in this appeal.

We use this term instead of sexual assault because it was used by the parties at trial and in their brief.

Although the Notice of Appeal was filed on behalf of Prospect Park and Captain Frank Franco, the Order for Judgment dated July 25, 2005 enters judgment solely against Prospect Park and Haman. Judgment was not entered against Franco.

The complaint against Incorvia was dismissed by the trial court with prejudice before the case was submitted to the jury.

At the time, plaintiff was 18 years old, L.S. 17, Incorvia 22 and Haman 32.

Plaintiff testified that Haman did not use the handcuffs or gun as part of the rape.

Haman's guilty plea encompassed the touching of plaintiff's buttocks without her permission, not sexual intercourse. The misconduct included other acts.

These events were offered as to the public defendants' knowledge of Haman's propensities, not for their truth.

(continued)

(continued)

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A-000189-05T3

December 4, 2006