ROBERT SPERO, et al. v. RAYMOND HELGE, et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5879-04T15879-04T1

ROBERT SPERO, Administrator of

the Estate of Mitchell Spero;

ROBERT SPERO, Individually;

HARRIETTE SPERO, Individually;

and LANE SPERO, Individually,

Plaintiffs- Appellants,

v.

RAYMOND HELGE; CHRISTOPHER MULLEN;

"JOHN" PAINTER (first name fictitious);

"JOHN" BARBIERI (first name fictitious);

"JOHN" COLLINS (first name fictitious);

"JOHN" OLYNYK (first name fictitious);

"JOHN" STRYCH (first name fictitious);

MONROE TOWNSHIP POLICE DEPARTMENT;

RICHARD PUCCI, MAYOR, MONROE TOWNSHIP;

RICHARD GARVEY, CHIEF, MONROE TOWNSHIP

POLICE DEPARTMENT and TOWNSHIP OF MONROE,

Defendants-Respondents,

and

ARLENE KOCH; LYNN HELEN GOFF; MONROE

TOWNSHIP FIRST AID SQUAD; ANTHONY JONES;

ANDREW BATEAU; RUSSELL F. KANE;

TIMOTHY SUDOWSKY; and JAMES BEEBE,

CHIEF, MONROE TOWNSHIP FIRE DEPARTMENT,

Defendants.

_________________________________________

 

Submitted: April 25, 2006 - Decided October 13, 2006

Before Judges Kestin, Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, L-5841-04.

Benjamin Levine, attorney for appellants.

Porzio, Bromberg & Newman, attorneys for respondents (Vito A. Gagliardi, Jr., of counsel; Thomas O. Johnston and Roseann Latore-Sicola, on the brief).

PER CURIAM

Plaintiffs appeal from the trial court's April 29, 2005 order granting defendants' motion for summary judgment and dismissing the complaint. Judge LeBlon stated the reasons for his decision on the record and in a supplemental letter opinion dated May 13, 2005. Plaintiffs also appeal from an order entered on June 24, 2005, denying their motion for reconsideration. In a handwritten note appended to that order, Judge LeBlon stated that the motion for reconsideration had been denied because plaintiffs had introduced no new basis for a contrary result.

The claims emanate from the death of Mitchell Spero. His estate, and his parents and brother individually, sue under State law after their claims under federal law were dismissed by the United States District Court for the District of New Jersey. In dismissing the federal claims, Judge Debevoise declined to exercise supplemental jurisdiction over plaintiffs' pendant State law claims. Eventually, the United States Court of Appeals for the Third Circuit affirmed the District Court's order. Spero v. Helge, 139 F. App'x 431 (3d Cir. 2005).

The facts of the matter are set forth at length in Judge Debevoise's opinion filed on July 20, 2004. We will not rehearse those details. It will suffice, by way of summary, to note that Spero, after consuming LSD and alcohol, broke into a firehouse by smashing the front window. The police were summoned and, after arriving on the scene, discovered that Spero had "ransacked" a fire vehicle.

As an arrest was being effected, Spero, who had been cooperative initially, resisted violently and with great strength. A series of struggles ensued with police and fire personnel during the course of which the police used pepper spray (oleoresin capsicum) three times. Spero was finally secured in a police cruiser, but continued to react violently. After EMT personnel arrived at the scene, six police officers, after administering a fourth dose of pepper spray, were eventually able to move Spero to a stretcher, on which he was placed face-down and secured with straps and shackles. As the stretcher was moved into the back of the ambulance, Spero continued to shout and struggle. After a short while, the EMTs noticed that Spero's thrashing had stopped suddenly, and one to two minutes later, one of the EMTs determined that Spero was not breathing. Efforts to revive him, including the use of a bag valve mask, a defibrilator, and CPR were unavailing. When the ambulance arrived at a hospital, Spero was pronounced dead.

Following a postmortem examination including an autopsy, the examiners concluded that the death resulted from "agitated delirium . . . . [,] a known entity causing death in drug abusers." Other experts, commissioned by plaintiffs, arrived at different conclusions, essentially that the cause of death was asphyxia by reason of the face-down position in which Spero had been placed on the stretcher, with one expert adding that LSD ingestion and the use of pepper spray were contributing factors.

Judge Debevoise concluded, inter alia, that the conduct of the individual defendants was objectively reasonable and did not violate any federal standards. Plaintiffs, in making their State law claims, have alleged knowing violations of police department regulations pertaining to the situation and genuine issues of fact arising therefrom.

Judge LeBlon held that Judge Debevoise's resolution of the federal claims was an adjudication on the merits calling for the application of principles of collateral estoppel in respect of the factual issues implicated. Judge LeBlon went on to hold, also, that, even if the claims were not barred by collateral estoppel, "summary judgment would still be granted to the defendants, as viewing the facts in [the] light most favorable to [p]laintiffs does not sustain any of the [S]tate law claims[.]"

In granting defendants' motion for summary judgment in respect of the State law claims, Judge LeBlon set out the standards governing consideration of claims on such a motion. He determined "as a matter of law that under all the facts that the response of the police officers was indeed reasonable and that the police officers acted in good faith." Citing controlling authority, he held that plaintiffs' assertions of fact did not amount to the prima facie showing required to defeat summary judgment. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 529-30 (1995).

On appeal, plaintiffs argue:

POINT I

A. THE FACTS OF THE PRESENT ACTION ARE SO EGREGIOUS AS TO RAISE ISSUES WHICH INVOKE EXCEPTIONS TO THE LAWS WHICH ORDINARILY PROTECT A PUBLIC EMPLOYEE FROM LIABILITY FOR MERE NEGLIGENCE.

B. DEFENDANTS' ACTS CONSTITUTE WILLFUL MISCONDUCT, WHICH DISPROVES THEIR CLAIM OF REASONABLE BEHAVIOR.

POINT II DEFENDANTS AND THE NEW JERSEY TRIAL COURT IMPROPERLY INVOKE THE CONCEPT OF COLLATERAL ESTOPPEL UPON THE INCORRECT ASSERTION THAT THE OPINION OF THE UNITED STATES DISTRICT COURT WAS A DECISION ON THE MERITS REGARDING STATE LAW CLAIMS.

Based on our analysis of the record, we are in substantial agreement with Judge LeBlon's articulated basis for ruling that, in the light of the immunities from suit confirmed by the Tort Claims Act, see, e.g., N.J.S.A. 59:3-3, plaintiffs had not made a sufficient showing to survive summary judgment.

Although there is some attractiveness at the surface to plaintiffs' argument that principles of collateral estoppel cannot apply because the U.S. District Court did not decide the State law issues on the merits, that contention does not withstand analysis. Collateral estoppel is a fact-focused doctrine. See Mazzilli v. Accident and Cas. Ins. Co., 26 N.J. 307, 314 (1958); Zoneraich v. Overlook Hosp., 212 N.J. Super. 83, 93 (App. Div.), certif. denied, 107 N.J. 32 (1986). It is of no consequence that the legal theories undergirding a second action differ significantly from those upon which the first action was based. If the same issues of fact were resolved in the first suit as are raised in the second, the doctrine applies to bar the second claim. See Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511 (2006). Judge Debevoise's summary judgment determinations "that the conduct of the officers amounted to an objectively reasonable response to the escalating situation they faced[;]" and that the EMT personnel, in reacting to the situation confronting them, did not act unconscionably or even in a clearly negligent way because they and the officers "were only able to bring Spero under control facing the wrong way[;]" are evaluations regarding the factual bases of the matter that bind the parties and cannot be relitigated under a different legal aegis. Given those assessments regarding the factual issues, the immunities from suit extended by the Tort Claims Act bar the State law claims. See Evans v. Elizabeth Police Dept., 190 N.J. Super. 633, 635-636 (Law Div. 1983) (recognizing that no cause of action exists for injuries from simple negligence in effecting a lawful arrest); see also Canico v. Hurtado, 144 N.J. 361, 364-66 (1996); Torres v. City of Perth Amboy, 329 N.J. Super. 404, 409 (App. Div. 2000).

In granting defendants' motion for summary judgment, Judge LeBlon evaluated the prima facie showings with the requisite indulgence in favor of plaintiffs, the non-movants. See Brill, supra, 142 N.J. at 540. He determined, given Judge Debevoise's evaluation of the factual claims, that the ultimate finder of fact could not reasonably conclude, in the face of existing tort claim immunities, that any of the defendants were legally responsible for Spero's death. A court in considering a motion for summary judgment is not required "to turn a blind eye to the weight of the evidence; the 'opponent must do more than simply show that there is some metaphysical doubt as to the material facts.'" Triffin v. American International Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004)(citation omitted).

Affirmed.

 

(continued)

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8

A-5879-04T1

 

October 13, 2006


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