22 F.3d 1296 (3rd Cir. 1994), 92-5481, Fagan v. City of Vineland

Docket Nº:Mary Ellen Duke and Sarah Fagan, Appellants No. 92-5481,
Citation:22 F.3d 1296
Party Name:Sarah E. FAGAN, General Administratrix and Administratrix Ad Prosequendum of the Estate of Michael J. Fagan, Deceased v. The CITY OF VINELAND, a Municipal Corporation of the State of New Jersey; Joseph Cassisi, Jr., Chief of Police of the City of Vineland; Police Officers David Tesoroni; Peter F. Coccaro, III; Benny Velez; Phillip C. Bocceli; Richa
Case Date:April 29, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1296

22 F.3d 1296 (3rd Cir. 1994)

Sarah E. FAGAN, General Administratrix and Administratrix Ad

Prosequendum of the Estate of Michael J. Fagan, Deceased

v.

The CITY OF VINELAND, a Municipal Corporation of the State

of New Jersey; Joseph Cassisi, Jr., Chief of Police of the

City of Vineland; Police Officers David Tesoroni; Peter F.

Coccaro, III; Benny Velez; Phillip C. Bocceli; Richard

Putnam; David Cardana; Mario R. Brunetta, Jr.; John Does,

(fictitious names) representing other police officers of the

City of Vineland Police Department; Town Liquors, a/d/b/a

VTL, Inc.; Marquez Amnon Corporation, a/d/b/a East Landis

Hotel and Motel; John Doe, (fictitious name) agent, servant

or employee selling liquors for Marquez Amnon Corporation,

a/d/b/a East Landis Hotel and Motel; Jeffrey T. Pindale;

and Mary Ellen Duke, Administratrix of the Estate of

Christopher M. Duke, Deceased, jointly, severally and in the

alternative.

Wanda PINDALE

v.

TOWN LIQUORS, a/d/b/a VTL, Inc.; John Doe I, (fictitious

name) agent, servant or employee selling liquors for Town

Liquors, a/d/b/a VTL, Inc.; Marquez Amnon Corporation

a/d/b/a East Landis Hotel and Motel; John Doe II,

(fictitious name) agent, servant or employee selling liquors

for Marquez Amnon Corporation, a/d/b/a East Landis Hotel and

Motel; The City of Vineland, a Municipal Corporation of the

State of New Jersey; Joseph Cassisi, Jr., Chief of Police

of the City of Vineland; David Tesoroni; John Doe III;

and John Doe IV, (fictitious names) representing other

police officers of the City of Vineland Police Department;

and Jeffrey T. Pindale, jointly, severally and in the alternative

v.

Mary Ellen DUKE, Administratrix of the Estate of Christopher

M. Duke, Third Party Defendant.

Maurice G. DAVIS, Jr.

v.

VTL, INC. a/d/b/a Town Liquors; John Doe I, (fictitious

name) agent, servant or employee selling liquors for VTL,

Inc., a/d/b/a Town Liquors; Marquez Amnon Corporation

a/d/b/a East Landis Hotel and Motel; John Doe II,

(fictitious name) agent, servant or employee selling liquors

for Marquez Amnon Corporation a/d/b/a East Landis Hotel and

Motel; The City of Vineland, a Municipal Corporation of the

State of New Jersey; Joseph Cassisi, Jr., Chief ofPolice of

the City of Vineland; David Tesoroni; John Doe III, and

John Doe IV, (fictitious names) representing other police

officers of the City of Vineland Police Department; and

Jeffrey T. Pindale, jointly, severally and in the alternative

and

Jeffrey T. PINDALE, Third Party Plaintiff,

v.

Mary Ellen DUKE, Administratrix of the Estate of Christopher

M. Duke.

Albino GENETTI, Administrator Ad Prosequendum of the Estate

of Albert Stavoli, Deceased

v.

VTL, INC. a/d/b/a Town Liquors; John Doe I, (fictitious

name) agent, servant or employee selling liquors for VTL,

Inc. a/d/b/a Town Liquors; Marquez Amnon Corporation

a/d/b/a East Landis Hotel and Motel; John Doe II,

(fictitious name) agent, service or employee selling liquors

for Marquez Amnon Corporation a/d/b/a East Landis Hotel and

Motel; The City of Vineland, a Municipal Corporation of the

State of New Jersey; Joseph Cassisi, Jr., Chief of Police

of the City of Vineland; David Tesoroni; John Doe III, and

John Doe IV, (fictitious names) representing other police

officers of the City of Vineland Police Department; and

Jeffrey T. Pindale, jointly, severally and in the alternative

v.

Mary Ellen DUKE, Administratrix of the Estate of Christopher

M. Duke, Third Party Defendant.

Mary Ellen DUKE, Administratrix and Administratrix Ad

Prosequendum of the Estate of Christopher M. Duke, Deceased

v.

Jeffrey T. PINDALE, presently incarcerated at the Trenton

State Prison; Town Liquors a/d/b/a VTL, Inc.; Marquez

Amnon Corporation a/d/b/a East Landis Hotel and Motel; John

and Jane Does, fictitious names, for unknown entities and

persons believed to have sold, served, or otherwise provided

liquors to Jeffrey T. Pindale, the City of Vineland, a

Municipal Corporation of the State of New Jersey, County of

Cumberland, New Jersey; John and Jane Does, fictitious

names, for unknown governmental entities and for unknown

individuals believed to be police officers of said

government entities involved in an unlawful high speed

automobile pursuit; Joseph Cassisi, Sr., individually and

as an agent of the Vineland Police Department; Mario R.

Brunetta, Jr., individually and in his official capacity as

the Captain of the City of Vineland Police Department;

David Tesoroni, individually and in his official capacity as

a member of the City of Vineland Police Department; Peter

F. Coccaro, III, individually and in his official capacity

as a member of the City of Vineland Police Department;

Benny Velez, individually and in his official capacity as a

member of the City of Vineland Police Department; Phillip

C. Boccelli, individually and in his official capacity as a

member of the City of Vineland Police Department; Richard

Putnam, individually and in his official capacity as a

member of the City of Vineland Police Department; John and

Jane Does, fictitious names for unknown individuals believed

to be other police officers of the City of Vineland Police

Department involved in an unlawful high speed automobile

pursuit, jointly, severally and in the alternative,

Mary Ellen Duke and Sarah Fagan, Appellants No. 92-5481,

Appellants No. 92-5594,

Maurice G. Davis, Jr., Wanda Pindale and Albino Genetti,

Appellants No. 92-5482, Appellants No. 92-5551.

Nos. 92-5481, 92-5482, 92-5551 and 92-5594.

United States Court of Appeals, Third Circuit

April 29, 1994

Argued May 6, 1993.

Reargued In Banc Oct. 19, 1993.

Page 1297

[Copyrighted Material Omitted]

Page 1298

Gerald M. Eisenstat, Harry Furman (argued), Eisenstat, Gabage, Berman & Furman, Vineland, NJ, for appellant Sarah E. Fagan.

John M. Fitzpatrick, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, PA, for appellant Mary Ellen Duke.

Arnold Robinson, Milville, NJ, for appellant Wanda Pindale.

Harold B. Shapiro, Dana D. Teague, Shapiro & Shapiro, Vineland, NJ, for appellant Maurice G. Davis, Jr.

Frank G. Basile, Basile, Testa & Testa, Vineland, NJ, for appellant Albino Genetti.

A. Michael Barker (argued), Horn, Goldberg, Gorny, Daniels, Paarz, Plackter & Weiss, Atlantic City, NJ, for appellees City of Vineland, David Tesoroni, Peter F. Coccaro, III, Benny Velez, Phillip C. Bocelli, Richard Putnam, David Cardana, David Cassisi, Sr. and Mario R. Brunetta, Jr.

Richard M. Pescatore, Perlow, Sebera & Pescatore, Bridgeton, NJ, for appellee Town Liquors a/d/b/a VTL, Inc.

Stacy L. Moore, Jr., Parker, McCary & Criscuolo, Marlton, NJ, for appellee Marquez Amnon Corp. d/b/a East Landis Hotel and Motel.

Peter W. Sachs, Sachs & Sachs, Holmdel, NJ, for appellee Estate of Christopher M. Duke.

Before: SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH and LEWIS, Circuit Judges.

Page 1299

OPINION OF THE COURT

SLOVITER, Chief Judge.

Before us is the appeal of the district court's order granting summary judgment to the defendant police officers, the City of Vineland, and defendant Town Liquors in a suit brought by and on behalf of the estates of persons injured by a car driven by Jeffrey Pindale which was the subject of a police pursuit. The principal issue before the in banc court is the standard to be applied to claims that the police pursuit violated substantive due process. Because we are reviewing a grant of summary judgment, we will view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving parties, the plaintiffs. See Clement v. Consolidated Rail Corp., 963 F.2d 599, 600 (3d Cir.1992).

I.

FACTS AND PROCEDURAL HISTORY

The events which are the subject of the lawsuit began at about 1:55 a.m. on March 6, 1988, when defendant Officer David Tesoroni of the Vineland Police Department was on routine patrol on Landis Avenue in Vineland, New Jersey. Landis Avenue is the main street running through the City's business district and is a popular gathering and cruising place for young people. As Officer Tesoroni headed west on Landis Avenue, he spotted a white Camaro heading east. The Camaro was not speeding, but a passenger was standing up through the car's open T-top roof and waving his arms. The car was driven by Jeffrey Pindale, age 20; the passengers were his wife Wanda Pindale, age 19, and his friends Albert Stavoli, age 19, and Maurice Davis, Jr., age 19.

Unknown at that time to Officer Tesoroni, Jeffrey Pindale had purchased two bottles of Strawberry Hill Wine from defendant Town Liquor on March 5, 1988, and had spent the evening eating and drinking with his wife and friends Stavoli and Davis. Jeffrey Pindale drank the Strawberry Hill wine as well as alcoholic beverages purchased from other vendors. After the accident, his blood alcohol level was .12%.

When he saw the Camaro, Tesoroni made a U-turn on Landis Avenue and accelerated. He intended to give the driver a warning regarding a violation described by him as "allowing his passenger to ride on parts not intended for." Plaintiffs' App. at 15. The Camaro turned right onto Eighth Street and headed south into a residential neighborhood. Tesoroni followed the Camaro onto Eighth Street and, as he made the turn, activated his overhead lights but not...

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