GARRY DEMOSTHENNES, et al. v. TOWNSHIP OF IRVINGTON, IRVINGTON POLICE DEPARTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5093-05T15093-05T1

GARRY DEMOSTHENNES and ISLANNE

DEMOSTHENNES, h/w, and MARCKINGSON

PIERRE and MARIE PIERRE, h/w,

Plaintiffs-Appellants,

v.

TOWNSHIP OF IRVINGTON, IRVINGTON

POLICE DEPARTMENT,

Defendants-Respondents,

and

BRANDON BENTON,

Defendant.

_________________________________________________

 

Submitted May 8, 2007 - Decided July 17, 2007

Before Judges Kestin and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, L-7915-03.

Kohn, Needle & Silverman, attorneys for

appellants (Daniel B. Needle, on the brief).

Nathaniel M. Davis, attorney for respondents.

PER CURIAM

Plaintiffs, Garry Demosthennes and Marckingson Pierre, together with their wives, Islanne Demosthennes and Marie Pierre, appeal from an order of summary judgment entered by Judge Simonelli dismissing their action against defendants, the Township Irvington and the Irvington Police Department, premised on allegations that the police failed to promptly respond to

9-1-1 calls of an attack on the two men, as the result of which Demosthennes' finger was severed and Pierre was cut with a box cutter in the face, requiring approximately 50 stitches.

On appeal, plaintiffs claim that Judge Simonelli erred in finding that the defendants were immune from liability pursuant to N.J.S.A. 59:5-4, a provision of the Tort Claims Act that states:

Neither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.

Plaintiffs also contest the judge's determination to dismiss their claims of deprivation of civil rights pursuant to 42 U.S.C.A. 1993. We affirm.

The facts as established by the record are as follows: On October 7, 2001, Garry Demosthennes's motor vehicle was stolen in Union Township. The police were notified of the theft. On the following day, Demosthennes observed his car being driven on Nesbitt Terrace in Irvington. He called 9-1-1 to report that fact, and after giving information that identified himself and the car, Demosthennes was informed that he would be contacted if the car were located. After his police report, Demosthennes walked to the residence of his friend, Marckingson Pierre. The two then set out in Pierre's car to attempt to locate the stolen car.

At some point thereafter, the two men observed Demosthennes' car, parked near a local store. When the supposed thief, defendant Brandon Benton, exited the store and attempted to enter the stolen car, he was accosted by Demosthennes and Pierre. A confrontation ensued. Benton, wielding a box cutter, slashed Pierre's face and severed Demosthennes's finger. The incident ended following the arrival of an off-duty sheriff's officer, who came to the men's aid, and the subsequent arrival of the police, who arrested Benton and summoned medical assistance.

Plaintiffs' claims are based upon the factual position that the Irvington Police failed to respond to multiple 9-1-1 calls made during the affray, until a spectator was instructed by the sheriff's officer to tell the 9-1-1 operator that an officer required assistance. However, plaintiffs' evidence does not support this claim.

The only contemporaneous evidence of the events, themselves, consists of a transcript of a recording of the 9-1-1 calls received by Irvington police dispatcher, Officer Reynolds. The transcript appears to be in chronological order, but does not set forth the time of receipt or duration of any of the calls. It reveals Demosthennes's report of his sighting of his stolen car on the morning of October 8. It then discloses an additional afternoon call, in which both Demosthennes and Pierre participated, during which the men reported that they had blocked-in the stolen vehicle, and the dispatcher attempted to ascertain its location. We repeat that portion of the communication as transcribed.

Dispatcher: Irvington Police, Officer Reynolds

GD: Yes, good afternoon. I'm called this morning. . somebody stolen my car, and I just ride by with my friend . . . I just saw the car parked.

Dispatcher: Ok, where are you calling from?

GD: Where am I calling from. What the number of the street? I call from Harper Avenue. Harper Avenue. The street name Harper Avenue.

Dispatcher: Did you make a police report this morning?

GD: Yea, yea, I make a report in Irvington.

Dispatcher: From Linden Avenue"

GD: No, from Irvington. I'm on Stuyvesant and Harper Avenue. I block the car. Ok, one second, let me let you talk to somebody, ok.

MP: Hello?

Dispatcher: Yes.

MP: Hello officer.

Dispatcher: How you doing?

MP: Yes, I'm ok sir. But I stopped my car in front of the car because the other car get stolen last night.

Dispatcher: Did you make a police report?

MP: (inaudible). I . . . make a police report earlier. I am on Union and Harper.

Dispatcher: Ok, where is your car now?

MP: I can see the car on Harper Avenue in Irvington.

Dispatcher: Ok are you there now?

MP: Yes. . I am on Harper Avenue yes . . . on foot (inaudible). . I tried to follow. .

Dispatcher: Ok, I'm asking where the car is now?

MP: I see the car in the parking lot on Harper Avenue.

Dispatcher: Ok if I send the police, they need to know an address on Harper.

MP: Address is Harper Avenue and Stuyvesant near, in the back of the store. I see the car parked in the back of the store. Harper Avenue.

Failing to obtain a precise location for the car, the dispatcher then requested its plate number, which after some difficulty, was conveyed. At this point, it appears that Benton exited the store, because the 9-1-1 recording disclosed raised voices and someone (presumably, Benton) saying "somebody . . move the car . . somebody move the car." The recording then disclosed "[e]scalating inaudible and fast yelling," interspersed by the dispatcher's voice stating "Hello? Hello?" The call ended shortly thereafter, without any further intelligible communication occurring.

This call, which evidently took place during at least a portion of the confrontation between Demosthennes, Pierre and Benton, was followed by a further 9-1-1 call, placed by a resident of 999 Stuyvesant Avenue, who gave her address, and stated: "Officer needs assistance." A radio car was summoned. Thereafter, three more 9-1-1 calls were received. However, a police car had arrived by the conclusion of the first of those three latter calls. Medical assistance arrived, and Demosthennes and Pierre were taken for treatment to University Hospital.

The 9-1-1 transcript, thus, does not confirm that the police were ever informed by Demosthennes or Pierre of their exact location in the area of Harper and Stuyvesant Avenues. Additionally, although the fact of a dispute involving the two men appears evident, what was occurring was not intelligibly described. Further, it is not possible to determine whether a police car was dispatched at the conclusion of the call in which both Demosthennes and Pierre participated, and it also is impossible to determine what time elapsed between the conclusion of that call and the commencement of the call by the local witness, who not only stated that an officer needed assistance, but also gave a precise street address for the use of the police in responding to the request for aid. As a final matter, the transcript does not support plaintiffs' position that the police were inundated with civilian calls before a squad car was dispatched at the officer's behest. The call stating that an officer needed assistance followed directly after the joint call by Demosthennes and Pierre. It was only after those two calls, and around the time of the arrival of the police, that additional civilian calls were received, prompting the dispatcher's comment that "we got 911s off the hook here."

The only evidence proffered by plaintiffs regarding Irvington's practices and procedures confirmed that the Irvington police respond promptly to calls for officer assistance. However, plaintiffs offer nothing to demonstrate that its police do not respond to civilian calls for assistance, or that a response to such calls is unreasonably delayed.

In these factual circumstances, we concur with Judge Simonelli's decision that plaintiffs' tort action against Irvington and its police department is barred by the immunity provided pursuant to N.J.S.A. 59:5-4, and that no exceptions to that immunity are applicable here. We additionally agree with the judge that plaintiffs have failed to set forth a claim for deprivation of civil rights pursuant to 42 U.S.C.A. 1983. We therefore affirm Judge Simonelli's decision substantially on the basis of her thoughtful and well-reasoned oral opinion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

 
Affirmed.

(continued)

(continued)

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A-5093-05T1

July 17, 2007