GERALD MURPHY v. PISCATAWAY TOWNSHIP POLICE DEPARTMENT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6347-04T36347-04T3

GERALD MURPHY,

Plaintiff-Appellant,

v.

PISCATAWAY TOWNSHIP POLICE

DEPARTMENT, PTL. KOYE, PTL.

ZAVISTOSKI, PHIL CLAST, PTL.

S. LAFIN, THOMAS MOSIER,

DONALD FLOREK,

Defendants,

and

PTL. CONSTANCE CREA and ROBERT

WOOD HOSPITAL,

Defendants-Respondents.

_______________________________

 

Submitted October 5, 2006 - Decided January 30, 2007

Before Judges A.A. Rodr guez, Collester and

Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, L-3834-01.

Eldridge Hawkins, attorney for appellant.

Eric M. Bernstein and Associates, attorneys

for respondent Ptl. Constance Crea (Mr.

Bernstein and Philip G. George, of counsel;

Mr. George, on the brief).

Joseph A. DiCroce, attorney for respondent

Robert Wood Johnson University Hospital

(Cathy Marie Cosgrove, on the brief).

PER CURIAM

Plaintiff Gerald Murphy appeals from orders of summary judgment entered in December 2002, and an order of involuntary dismissal pursuant to R. 4:37-1. We affirm.

The incident giving rise to this action occurred at the residence of Christine Spruill in Piscataway. Plaintiff and Ms. Spruill had a long and stormy relationship while living together between the period of 1997 and 2000. Numerous domestic violence complaints were filed against plaintiff resulting in temporary restraining orders (TROs) that were subsequently dismissed. The TRO pertinent to this case was issued on July 20, 1999, and was served on plaintiff on August 5, 1999. Although the TRO barred plaintiff from Ms. Spruill's residence, both plaintiff and Ms. Spruill were under the impression that he could collect his belongings from her home with a police escort. However, plaintiff arrived alone at Ms. Spruill's residence sometime between 12 and 2 a.m. on August 7, 1999, ostensibly to collect his clothing. Ms. Spruill called the 9-1-1 emergency number and then hung up. She then dialed the non-emergency number for the Piscataway police to report that plaintiff was at her home. While waiting for the police to arrive, Ms. Spruill permitted plaintiff to enter her home to use the bathroom.

Meanwhile, Piscataway Police Officers Crea and Zmuda responded to the Spruill home based on a 9-1-1 call stating an unwanted guest was at Spruill's address in violation of a restraining order. They entered after Ms. Spruill told them plaintiff was in the apartment. According to plaintiff, the police barged in on him while he was still in the bathroom and demanded he come to the living room. He obeyed, sat on the couch and explained that he had arrived at the residence to get his clothes. Officer Crea testified, however, that a menacing Rotweiller was in the room with plaintiff. After Officer Zmuda telephoned police headquarters and confirmed that the restraining order was still in effect, plaintiff was told he was under arrest. According to Crea, plaintiff resisted arrest, requiring her to twice spray plaintiff with pepper spray in order to restrain and handcuff him.

Plaintiff denied that he resisted arrest and stated that the officers placed him in a headlock and then beat and kicked him for twenty to thirty minutes. After he complained of chest pain, an ambulance was called, and he was taken to Robert Wood Johnson Hospital. Plaintiff claimed that while enroute to the hospital, he was told by Officer Zmuda that, "You have some guys waiting for you and they don't mess around."

Plaintiff testified at the trial that upon arrival at the hospital, five large white males, one white female, and one black male, took him into a room where he was thrown on a stretcher and choked by a white security officer who also pushed his knuckle into plaintiff's eye. He said that he was placed in four-point leather restraints and he lost consciousness for about five minutes. He said he was unaware that he had been given medication but did recall signing a treatment form while in the emergency room.

The EMS report stated that plaintiff was spitting on the police officers and the ambulance squad as well as using racial slurs against them. The report characterized plaintiff on arrival as "extremely agitated and uncooperative with assessment." The hospital record indicates that Dr. Utkewicz prescribed Atavan, a sedative, and Haldol for control of acute agitation. Plaintiff claimed he was not able to work for six to eight weeks and had continued pain in his neck, back and right knee as well as loss of vision in his right eye. Dr. Campana, plaintiff's treating chiropractor, testified that plaintiff had a cervical ligament sprain/strain with disk herniation at C6 as well as a lumbar sprain/strain with a loss of normal curve of the spine. On cross-examination Dr. Campana admitted that he reviewed none of the documents pertinent to this case including the police reports, the EMS reports or the hospital record.

Plaintiff initiated his suit on September 1, 2000, naming as defendants the Piscataway Township Police Department, Piscataway Township Police Officers Clast, Lafin, Mosier, Koye, Zavistoski, Florek, Zmuda and Crea, Robert Wood Johnson University Hospital and several John Does. The four-count complaint alleged the following causes of action: false arrest; false imprisonment; malicious prosecution; use of excessive force; date of revived medical attention under State law; deprivation of civil rights under 42 U.S.C. 1981, 1983, 1985, 1986; and violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.

Several defendants were dismissed by motion. On October 29, 2001, the complaint as to Officer Clast was dismissed for failure of plaintiff to answer interrogatories. On April 12, 2002, summary judgment was granted as to Officers Lafin and Mosier. Summary judgment was granted as to the Piscataway Township Police Department on October 15, 2002. On December 20, 2002, plaintiff filed a voluntary order of dismissal as to Officers Koye, Zavistoski and Florek. Furthermore, on December 23, 2002, Judge Mark B. Epstein ordered dismissal of the State claims for false arrest, false imprisonment and malicious prosecution, dismissed the LAD claims and granted summary judgment to Officer Zmuda. However, summary judgment was denied as to the claims of excessive force under State and Federal law against Officer Crea as well as similar contentions against the hospital on grounds that there existed sufficient questions of fact for trial.

Trial commenced in November 2004, but was aborted by a mistrial granted prior to the conclusion of plaintiff's case-in- chief. The second trial was begun on January 31, 2005, before Judge James P. Hurley. After plaintiff rested his case, defendants moved for involuntary dismissal pursuant to R. 4:37-1. Officer Crea's motion was granted on grounds that there was a lack of showing of excessive force and no causal relationship established between Crea's alleged actions and any injuries suffered by plaintiff. Involuntary dismissal was granted as to claims against Robert Wood Johnson University Hospital because there was no showing of a causal relationship between the alleged conduct of hospital employees and plaintiff's injuries, no disparate treatment as a result of race contrary to 42 U.S.C. 1981, and no unlawful action under color of State law contrary to 42 U.S.C. 1983. This appeal followed.

Plaintiff's brief asserts the following arguments:

POINT I - PLAINTIFF'S MOTION FOR AMENDMENT OF THE COMPLAINT AND RECONSIDERATION OF THE DISMISSAL OF INDIVIDUAL (SIC) FOR INTENTIONAL TORTS AND FOR FAILURE TO COMPLY WITH TITLE 59 NOTICES AND DISMISSAL OF LAD AS NOT APPLYING TO THE POLICE DEPARTMENT WAS WRONGFULLY DENIED.

POINT II - THE TRIAL COURT IMPROPERLY AND WRONGFULLY DISMISSED THE PLAINTIFF'S CASE.

POINT III - THE HOSPITAL IS LIABLE UNDER 42 U.S.C.A. 1981-83 AND LAD TO PLAINTIFF FOR ITS ACTIONS CAUSING PLAINTIFF INJURIES.

After consideration of the record below, we affirm substantially for the reasons set forth in Judge Hurley's oral decision of February 7, 2005, as to defendants Officer Crea and Robert Wood Johnson University Hospital. The remaining arguments raised by plaintiff on this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-6347-04T3

January 30, 2007