ANNA CACELLA, et al. v. CITY OF NEWARK, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1524-04T21524-04T2

ANNA CACELLA and MARYANN

CACELLA, Individually and as

Guardians Ad Litem for

ANTHONY CACELLA, an adjudged

incapacitated person,

Plaintiffs-Appellants,

v.

CITY OF NEWARK, JOSE MONTALVO,

DINO D'ELIA, JAMES

COSGROVE, VICTOR MANATA, HAL

SIMPKINS, DAVID HUDSON,

WILFREDO MERCADO, MARK RICCARDI,

and JOHN BATISTA,

Defendants-Respondents,

and

OFFICE OF THE ESSEX COUNTY

PROSECUTOR, OFFICE OF THE

UNION COUNTY PROSECUTOR,

STATE OF NEW JERSEY, COUNTY

OF ESSEX, COUNTY OF UNION,

NEWARK POLICE DEPARTMENT,

LOUIS CARREGA, THOMAS

DECASTRO, and ANTHONY MARINELLO,

Defendants.

________________________________________________________________

 

Submitted December 20, 2005 - Decided January 13, 2006

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Essex

County, Docket No. L-4336-01.

Gaccione, Pomaco & Malanga,

attorneys for appellants

(Anthony F. Malanga, Jr., of

counsel and on the brief).

Joanne Y. Watson, Corporation

Counsel, attorney for

respondents (Diego F. Navas,

Assistant Corporation Counsel,

of counsel and on the brief).

PER CURIAM

Anthony Cacella (plaintiff) was struck by a driver of a stolen vehicle being followed by a State Trooper in a helicopter, who was attempting to assist members of the Essex/Union County Auto Theft Task Force in their efforts to locate and stop the stolen car. Plaintiff suffered severe brain trauma and loss of memory, and his mother, Anna Cacella, and sister, Maryann Cacella (plaintiffs), were appointed plaintiff's co-guardians.

Plaintiffs sued several defendants, including individual members of the task force, Jose Montalvo, Victor Manata, James Cosgrove, and the City of Newark, claiming improper pursuit, willful misconduct, negligence, recklessness, and violation of plaintiff's civil rights. All defendants filed motions for summary judgment. Judge Donald Goldman granted defendants summary judgment and dismissed all of plaintiffs' claims, except a claim of willful misconduct against defendants Newark Police Officers Montalvo, Cosgrove, and Manata.

After plaintiffs tried and lost the misconduct claim before a jury, they appealed and now urge this court to reinstate their claims against defendants, arguing Judge Goldman erred when, on summary judgment, he (1) dismissed the Cacellas's 42 U.S.C.A. 1983 claim, finding as a matter of law that plaintiffs were not denied access to the courts; and (2) dismissed "plaintiffs' claims against City of Newark and Officers Montalvo and Cosgrove alleging reckless operation of their respective vehicles." We find plaintiffs' arguments unpersuasive and affirm.

The facts can be summarized as follows. In May 1999, several members of the Newark Police Department and a New Jersey State Trooper, operating a helicopter, were working as part of the task force, a collaborative effort between Essex and Union counties. That May morning, the task force was notified that a potentially stolen green Jeep Cherokee was driving erratically in East Orange. The officers were advised that there was "probably a gun" in the vehicle as it was "also wanted for a carjacking . . . with a [G]lock handgun." The trooper, flying the helicopter, located the Jeep and notified the ground units, who responded toward that location, including officer Cosgrove and officer Montalvo, who was operating a marked police unit equipped with overhead lights. The Jeep, driving erratically and at a high rate of speed, struck a vehicle with two passengers and continued driving toward Newark with the helicopter following and reporting the location to the ground units as they converged on the Jeep.

The Jeep continued driving erratically. While attempting to make a left hand turn, the Jeep struck plaintiff as he was crossing the street. The trooper in the helicopter observed the force of the impact throw plaintiff "in the air and in front of the vehicle" and "as [plaintiff] started to fall below the hood of the vehicle, the vehicle ran him over." Two officers, including defendant Cosgrove, responded to plaintiff to render aid. The Jeep proceeded approximately two more blocks where it struck a parked van. There, officer Mercado, operating a van, pulled in front of the Jeep and Montalvo pulled behind the Jeep preventing its escape. The officers apprehended the driver and two juvenile passengers. The driver was arrested and charged with numerous crimes; he subsequently pled guilty to receiving stolen property, aggravated assault, and criminal mischief. The police reports of this incident did not include any witness statements nor did they identify the names or contact information of any witnesses to the Jeep striking plaintiff. Plaintiffs, however, identified and presented in opposition to the summary judgment motions a witness who testified at deposition that she and five or six other people were on the corner and witnessed the events. According to this witness, shortly after the accident, a Newark Police Officer interviewed her and the other witnesses and took her name and address.

The witness further testified at deposition that she saw the Jeep turn, strike plaintiff, and continue driving. She explained that a white, unmarked police car was "chasing" the Jeep, also traveling at a high rate of speed, with no overhead lights or sirens activated and the car collided with the Jeep "once or twice" just seconds after the Jeep hit the pedestrian and then both cars continued the chase. She stated that no other police units arrived or responded to the injured pedestrian for ten to twenty minutes and, ultimately, one squad car and an ambulance arrived at about the same time. Notably, the witness made inconsistent statements, and at oral argument for the summary judgment motion, plaintiffs' counsel conceded the witness lacked credibility.

Plaintiffs on appeal argue, first, that the trial court erred when it dismissed their 42 U.S.C.A. 1983 claims. Plaintiffs assert that they were denied "adequate, effective and meaningful" access to the courts because the Newark police concealed from plaintiffs the names and addresses of potential eye-witnesses to the accident as well as any contemporaneous statements made by witnesses at the scene of the accident, thereby "limiting plaintiffs' ability to prove at trial either willful misconduct or reckless operation of the Task Force Vehicles."

"Section 1983 of 42 U.S.C. does not create substantive rights, but provides a remedy for the violation of rights created by federal law." Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3rd Cir. 1995). Access to the courts has long been held a constitutional right. See, e.g., Brown v.Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). Moreover, the constitution requires that access to the courts be "adequate, effective and meaningful." Bonds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491, 1495, 52 L. Ed. 2d 72, 79 (1977), overruled on other grounds, Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996).

Right of access to the courts can be lost where "officials shield from the public and the victim's family key facts which would form the basis of . . . claims for redress." Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984), overruled on other grounds, Russ v. Watts, 414 F.3d 783 (7th Cir. 2005). Even in such instances, however, plaintiffs must demonstrate defendants' actions caused them "actual injury." Lewis, supra, 518 U.S. at 351-52, 116 S. Ct. at 2180, 135 L. Ed. 2d at 618. More specifically, plaintiffs must demonstrate that defendants engaged in actions that covered up evidence and actually rendered their state court remedies ineffective. Bell, supra, 746 F.2d at 1261.

Here, although plaintiffs allege defendants denied them access to the courts by concealing the identity of witnesses to the accident, plaintiff presented one such witness at trial. At trial, as she did in deposition, the witness testified that an unmarked police vehicle struck the Jeep. Therefore, plaintiffs were able to present their claim to the courts.

The mere fact that plaintiffs' witness testified that she gave her name to a police officer at the scene and her name did not appear on the accident reports or police documents provided plaintiffs does not constitute evidence that state actors conspired under color of law to shield "key facts which would form the basis of . . . claims for redress." See Bell, supra, 746 F.2d at 1261. Plaintiffs' allegations, even if accepted as true, do not rise to the level of the allegations of conspiracy presented in Bell and Delew v. Wagner, 143 F.3d 1219, 1223 (9th Cir.), cert. denied, 525 U.S. 1015, 119 S. Ct. 538, 142 L. Ed. 2d 448 (1998), upon which plaintiffs rely. At best, plaintiffs present evidence that, if believed, demonstrated the task force police may have been "lax in their investigatory duties." Bell, supra, 746 F.2d at 1261-62.

Furthermore, plaintiffs did not amend their complaint to assert the 1983 claim. See R. 4:9-1. The only mention of 42 U.S.C.A. 1983 in plaintiffs' complaint states: "Task Force member defendants willfully violated the policies and guidelines of the Task Force with regard to high speed pursuits of motor vehicles, and intended to physically harm the operator and/or passengers of the [stolen] vehicle, in violation of state and federal law, to wit: 42 U.S.C. 1983 et seq." As Judge Goldman correctly noted, therefore, plaintiff's access to the courts argument "is a theory that's not even pled." Thus, plaintiffs' claim can be rejected on this basis also. See, e.g., Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165-66 (2005) (addressing motion to dismiss, R. 4:6-2(e)).

Plaintiffs also argue, however, that the trial court erred when it granted summary judgment dismissing the first count of plaintiffs' complaint, alleging task force defendants "operated their respective vehicles in such a negligent, careless and reckless manner so as to cause the [stolen] vehicle to strike Anthony Cacella." Plaintiffs argue that summary judgment was inappropriate because whether Cosgrove and/or Montalvo were in pursuit of the stolen vehicle and were operating their vehicles recklessly were questions of fact that should have been resolved by a jury.

Under the New Jersey Tort claims Act, N.J.S.A. 59:1-1 to 12-3, public entities and employees are absolutely immune, absent willful misconduct, for "any injury caused by . . . a person resisting arrest or evading arrest" or "any injury resulting from or caused by a law enforcement officer's pursuit of a person." N.J.S.A. 59:5-2(b), (c). Even where a police officer initiates a pursuit and resultant injuries would not have occurred but for the officer's negligent conduct, absent willful misconduct, the officer enjoys absolute immunity. Tice v. Cramer, 133 N.J. 347, 351, 367 (1993) (finding immunity applies "whether the negligence is discretionary or ministerial, whether an act or omission, whether it precedes the escape or follows it, whether it triggers the escape or affects it"). Likewise, "whether the negligent conduct involves the initiation, continuation, or conduct of the pursuit makes no difference: it is immune." Fielder v. Stonack, 141 N.J. 101, 123 (1995). The only requirement for the application of pursuit immunity is that "the negligence implicated by the pursuit must be connected to the pursuit in a significant manner." Alston v. City of Camden, 168 N.J. 170, 180 (2001) (finding immunity applied where the "initial negligence may have occurred prior to the pursuit but . . . the immediate and proximate cause of the injury, occurred during the pursuit"). Indeed, unless the actor engaged in willful misconduct, it has been established that "absolute immunity [applies] for injuries sustained by third persons due to vehicular pursuits, whether the injuries were caused by the pursued, as in Tice, or the pursuer, as in Fiedler." Torres v. City of Perth Amboy, 329 N.J. Super. 404, 406 (2000). Finally, willful misconduct cannot occur "[w]ithout a knowing violation of an unequivocal order." Kollar v. Lozier, 286 N.J. Super. 462, 472 (App. Div.), certif. denied, 145 N.J. 373 (1996).

Here, plaintiffs assert immunity did not apply because there was no pursuit. Although plaintiffs claim that some deposition statements support this argument, it is unavailing. The record is replete with evidence that the stolen vehicle was fleeing from task force officers and they, in turn were pursuing the stolen vehicle at the time he struck plaintiff. Indeed, a police helicopter was in the air directing the officers' efforts at intercepting the stolen vehicle. The stolen vehicle was driving erratically and speeding in a circuitous route to the point of the collision with plaintiff.

On this record, no reasonable jury could conclude that the helicopter and task force were not in pursuit of the stolen vehicle or the stolen vehicle was not evading arrest at the time it struck plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Accordingly, the police actions were immune from liability.

 
In conclusion, none of plaintiffs' arguments warrant reversing Judge Goldman's grant of summary judgment to defendants.

Affirmed.

The other individuals sued were Wilfred Mercado, Dino D'Elia, Hal Simpkins, David Hudson, Wilfredo Mercado, Mark Riccardi, and John Batista.

Besides the individuals mentioned in note one, defendants included Charles Hoeffler, the Office of the Essex County Prosecutor, Office of the Union County Prosecutor, State of New Jersey, County of Essex, County of Union, Louis Carrega and Anthony Marinello.

Defendant Charles Hoeffler, a Cranford Police Officer volunteering for work with the task force, did not move for summary judgment. After plaintiffs lost the motion, plaintiffs and defendant Hoeffler entered a stipulation of dismissal with prejudice, but preserving plaintiffs' appeal rights.

Before trial began, plaintiffs and defendant Manata entered a stipulation of dismissal with prejudice, preserving plaintiffs' rights to appeal. Thus, plaintiffs' trial proceeded against only Cosgrove and Montalvo.

During the pendency of the appeal, plaintiffs settled with the Union County Prosecutor, State of New Jersey, the State trooper who was operating the helicopter, and Charles Hoeffler. Plaintiffs have tentatively settled with the Essex County prosecutor and Louis Carrega, the deputy commander of the Task Force. Thus, the appeal proceeds against the City of Newark and Newark police officers Jose Montalvo, Dino D'Elia, James Cosgrove, Victor Manata, Hal Simpkins, David Hudson, Wilfred Mercado, Mark Riccardi, and John Batista.

Plaintiffs eventually sued the driver, against whom they obtained a default judgment.

(continued)

(continued)

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A-1524-04T2

January 13, 2006