CHARLOTTE LIPPINCOTT v. CITY OF BURLINGTON POLICE DEPARTMENT and CITY OF BURLINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3809-04T33809-04T3

CHARLOTTE LIPPINCOTT,

Plaintiff-Appellant,

v.

CITY OF BURLINGTON POLICE DEPARTMENT

and CITY OF BURLINGTON,

Defendants-Respondents.

_____________________________________

 
Argued telephonically March 30, 2006 - Decided May 8, 2006

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

L-185-03.

Gary F. Piserchia argued the cause for appellant (Parker McCay, attorneys; Mr. Piserchia, on the brief).

George H. Hulse argued the cause for respondent (Hulse & Germano, attorneys; Mr. Hulse, on the brief).

PER CURIAM

Plaintiff, Charlotte Lippincott, appeals from an order granting summary judgment dismissing her personal injury case against defendants, City of Burlington Police Department and City of Burlington (collectively Burlington). On January 28, 2001, plaintiff's neighbor, Gary Hall, was arrested following an alleged domestic violence dispute in which plaintiff claimed that Hall, with whom she had a two-month dating relationship, punched her and threw her out the second story window. Plaintiff filed this action against Burlington, alleging that her injuries were proximately caused by the police department's negligent investigation of a domestic dispute between her and Hall a day earlier. Burlington moved for summary judgment, arguing that it was immune from liability under the Tort Claims Act (the Act), specifically N.J.S.A. 59:2-2b, N.J.S.A. 59:3-2a, N.J.S.A. 59:3-3, and N.J.S.A. 59:3-5. Dismissing plaintiff's complaint, the motion judge found that the facts did not support plaintiff's contention that a special relationship existed sufficient to override the immunities afforded by the Act. Plaintiff appeals and we affirm.

Because this appeal arises from the grant of a motion for summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff[]." Strawn v. Canuso, 140 N.J. 43, 48 (1995). On January 27, 2001, the Burlington County Communications Center received a 911 telephone call from Tameeka Causey at 8:50 p.m. The 911 report indicated the incident type as "1300 Domestic"; the nature of the call as "female came out of house and male pulled her back inside not sure what['s] going on."

Burlington City Police Officers Joseph McConnell and Stephen Hesson were dispatched to plaintiff's residence. McConnell went to the front door and asked what was going on. Plaintiff responded by instructing McConnell "to get [Hall] the f____ out of here, I don't want him here anymore, get him out of here." She did not tell him why she wanted Hall removed. Hall was compliant and left the residence. McConnell remained at the doorway a few feet inside as Hall left. According to McConnell, there was nothing that indicated domestic violence had occurred, just a dispute. At the time he responded, he had not been made aware of the 911 report that a female came out and a male pulled her back in or that Hall had been previously arrested for robbery. The incident report indicated that plaintiff and Hall were involved in a verbal dispute and that Hall left without incident.

Officer Hesson was McConnell's backup. When he arrived, McConnell was at the residence talking with plaintiff. McConnell signaled to Hesson that he was okay. When McConnell finished speaking with plaintiff, McConnell and Hesson left the residence. Patrolman Victor Wonderlin also responded to the scene, but had no recollection of the incident. McConnell testified that, approximately thirty minutes later, he was sent back to the location to speak with Michael Purocopio, who claimed to have been threatened by Hall. McConnell advised Purocopio that he could file a complaint against Hall for simple assault, which Purocopio did not pursue.

The following day, at 5:43 p.m., another 911 call was placed by Tameeka Causey. Officer Kenneth Trumbetti responded to the call to plaintiff's residence. When Officer Trumbetti arrived, he found plaintiff lying on the kitchen floor bleeding from her nose or mouth. Officer Reinhold was already in the residence when Officer Trumbetti arrived. After Hall was removed from the area, plaintiff informed Officer Reinhold that Hall had punched her in her head and face area. Hall was placed under arrest. Hall told Reinhold that plaintiff had jumped out of the second floor window of the apartment. The 911 incident report indicated that plaintiff was thrown from the second story window. As a result, plaintiff suffered a burst fracture of her lower back requiring a surgery consisting of multiple fusions from level T-10 to L3.

At her deposition, plaintiff testified that she has no recollection of the police arriving on January 27, 2001, or of what transpired after they arrived. She testified, however, that during the course of the day, prior to the police being summoned, defendant punched and strangled her, causing her to seek help from three neighbors. Regarding her recollection of the events of January 27, plaintiff gave the following deposition testimony:

Q. Did you seek any medical attention as a result of what Gary did to you? Now, we're talking only on the 27th.

A. No.

Q. Did you look in the mirror when you got home?

A. I don't remember anything.

Q. Can I assume that you just don't remember anything that happened?

A. Except getting beat and strangled and trying to run to the neighbors for help.

Plaintiff retained Leo Culloo of Police Management Consultant Services, Inc. Culloo submitted an expert report, which reiterated the above factual circumstances. In his report, he cited the provisions of N.J.S.A. 2C:25-21b, specifically "[a] law enforcement officer may arrest a person . . . where there is probable cause to believe that an act of domestic violence has been committed, but where none of the conditions in subsection a. of this section applies" and he opined that one of the officers should have asked the dispatcher for the address of Tameeka Causey and interviewed her to ascertain her specific knowledge of what she observed. According to Culloo, had such an investigation taken place, the police would have learned that Causey indicated in her emergency call that a "female came out of house and male pulled her back inside . . . which should have been a clear indication that a potential assault had taken place" and "probable cause would have existed . . . to make an arrest." He also opined that the officers should have separated plaintiff from Hall and interviewed them individually so that one party could not hear what the other was saying because the abused individual "is often times reluctant to press a complaint for fear of retaliation."

On appeal, plaintiff asserts that the circumstances present a genuine issue of material fact that the police officers failed to fulfill their ministerial duty to investigate Hall's criminal activity based upon the information available to them when they arrived at plaintiff's residence on January 27. She argues that, had the police separated her from Hall and questioned her, they would have learned of the beatings she endured and thus learned of his criminal behavior, which would have resulted presumably in an arrest and prevented the subsequent events of January 28. She also argues that Burlington, through its police officers, acted in bad faith and failed to enforce the law properly.

N.J.S.A. 59:2-2b immunizes a public entity from vicarious liability for the acts or omissions of its employees who are immunized by the Act. Fielder v. Stonack, 141 N.J. 101, 118 (1995). The Act grants an unqualified or absolute immunity to both public entities and their employees from liability for injuries caused by a failure to enforce the law. Bombace v. City of Newark, 125 N.J. 361, 366 (1991). N.J.S.A. 59:3-5 immunizes a public employee from liability for "failure to enforce any law," while N.J.S.A. 59:2-4, provides that a "public entity "is not liable for any injury caused by . . . failing to enforce any law."

By contrast, N.J.S.A. 59:3-3, affords only qualified immunity for "acts" done in the "execution or enforcement of any law," provided those "acts" are performed in good faith. Ibid. Because plaintiff's contentions rest upon asserted failures on the part of the police to investigate, rather then affirmative acts, N.J.S.A. 59:3-3 is not implicated. We, therefore, focus on plaintiff's claims that Burlington failed to investigate properly.

To be sure, police officers have an obligation to perform their ministerial duties in a reasonable manner, which include the investigation of information from citizens concerning unlawful or criminal conduct. Lee v. Doe, 232 N.J. Super. 569, 577 (App. Div. 1989). "[W]hile 'police officers have a duty to investigate information from citizens concerning unlawful or criminal activity, the failure of the police to make an arrest as a consequence of an investigation does not subject the municipality to tort liability."' Id. at 578 (quoting Wuethrich v. Delia, 155 N.J. Super. 324, 326 (App. Div.), certif. denied, 77 N.J. 486 (1978)).

N.J.S.A. 59:5-5 provides that "[n]either a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody." Like the immunity for failure to enforce the law, the immunity afforded by N.J.S.A. 59:5-5 for failure to arrest is unqualified. Addressing the doctrine of special relationships, as defined by the California courts, the panel in Lee concluded that the failure to arrest immunity under N.J.S.A. 59:5-5 would prevail unless there is a special relationship between the police and the victim. Lee, supra, 232 N.J. Super. at 579-81.

A special relationship exists where the police officer either causes the victim to rely on him or otherwise subjects the victim to increased risk of injury. Id. at 579. In Lee, the plaintiff called the police after he received a threat from the perpetrator that he would return and kill both the plaintiff and his nephew. Id. at 571. The police arrived, spoke to the plaintiff for a short time and left. The perpetrator returned and shot the plaintiff. Id. at 571-72. The panel in Lee concluded that there was no special relationship between the police and the plaintiff to prevent immunity because they neither increased plaintiff's risk of harm nor indicated that they intended to look out for him. Id. at 581.

In Campbell v. Campbell, 294 N.J. Super. 18, 20-21 (Law Div. 1996), the police responded to a call that the plaintiff's estranged husband, who was subject to a previously entered final restraining order, was at the plaintiff's residence. The police remained at the premises until the plaintiff's former husband left. Id. at 21. Thereafter, he returned and shot the plaintiff. The Law Division judge concluded that immunity did not apply because the restraining order created a special relationship and N.J.S.A. 2C:25-31 requires an officer to make an arrest when there is probable cause to believe there is a contempt violation of a domestic violence order. Id. at 24-25.

In Blunt v. Klapproth, 309 N.J. Super. 493 (App. Div.), certif. denied, 156 N.J. 387 (1998), however, another appellate panel questioned the applicability of California's special relationship doctrine based upon the difference between our Act, where the initial question is whether there is immunity, and California's statute, where the question of immunity does not arise until it is determined that a duty of care is owed. Id. at 507. In Blunt, the panel concluded that there was no need to determine whether a duty existed or whether there was a special relationship, where our statute provides for clear unqualified immunity. Id. at 507.

We need not determine whether the special relationship doctrine is alive and well in our jurisdiction under the factual circumstances here. The police neither increased plaintiff's risk of harm nor did they indicate that they intended to look out for her. Unlike Campbell, there was no prior domestic violence order compelling the police to arrest Hall if found in plaintiff's residence. Indeed, Culloo acknowledged in his report that the applicable statute, N.J.S.A. 2C:25-21b, provides that a police officer "may arrest a person . . . where there is probable cause to believe that an act of domestic violence has been committed . . . ." Moreover, the essence of Culloo's opinion is that, had the police made further inquiry, they would have learned sufficient information to provide probable cause to arrest Hall, for which there is clear immunity under the Act. The factors that would compel arrest under N.J.S.A. 2C:25-21a, specifically, signs of injury, an outstanding warrant, a contempt order, or use of a weapon were not present.

We are equally convinced that plaintiff's proofs fail to establish a causal link between Burlington's alleged negligent failure to investigate and plaintiff's subsequent injury. Although plaintiff asserted that she had been beaten throughout the day, before the police arrived, she had absolutely no recollection of what transpired when they arrived. Nothing in the record established that plaintiff told the police about the prior beatings she claims she suffered nor does it reveal any facts that would alert the officers to make further inquiry to ascertain if the claimed beatings occurred. Plaintiff never explained why she wanted Hall out, but only complained of a verbal dispute and told the police, albeit in imperative terms, that she wanted Hall removed from her premises. Hall left compliantly. Culloo's opinion that, had the police checked with Tameeka Causey, they would have learned there was an assault based upon the reported 911 call, omits the full text of that report, which included the words "not sure what['s] going on." After Hall left and thus was separated from plaintiff, she did not advise the police that she had been assaulted.

In deciding a motion for summary judgment, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Our standard of review mirrors that of the trial court: whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997); McClelland v. Tucker, 273 N.J. Super. 410, 415 (App. Div. 1994). After a careful examination of the entire record submitted, we conclude that there is no genuine issue of material fact to warrant our intervention. We agree with the motion judge that, accepting plaintiff's own version, there was no special relationship that would avoid application of unqualified immunities under either N.J.S.A. 59:5-5 or N.J.S.A. 59:3-5. Accordingly, we affirm.

 

Although the Burlington Police Department is a department within the City of Burlington, the complaint named it as a separate entity along with several fictitious parties described as other entities (I-X) and agents, servants and/or employees (I-L).

Subsection a. requires arrest where there is "probable cause to believe that domestic violence has occurred" and either

"(1) The victim exhibits signs of injury caused by an act of domestic violence; (2) A warrant is in effect; (3) There is probable cause to believe that the person has violated N.J.S. 2C:29-9, and there is probable cause to believe that the person has been served with the order alleged to have been violated. If the victim does not have a copy of a purported order, the officer may verify the existence of an order with the appropriate law enforcement agency; or (4) There is probable cause to believe that a weapon as defined in N.J.S. 2C:39-1 has been involved in the commission of an act of domestic violence."

(continued)

(continued)

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A-3809-04T3

May 8, 2006