Abraham v. Raso
| Citation | 183 F.3d 279 |
| Decision Date | 26 July 1999 |
| Docket Number | Nos. 98-5405,Nos. 98-5406,Nos. 98-5405 and 98-5406,s. 98-5405,s. 98-5406,s. 98-5405 and 98-5406 |
| Parties | (3rd Cir. 1999) VANESSA ABRAHAM, IN HER OWN RIGHT AND AS ADMINISTRATRIX OF THE ESTATE OF ROBERT ABRAHAM, DECEASED, AND ON BEHALF OF ROBERT CHRISTOPHER ABRAHAM, JR., LABREEA VON ABRAHAM AND TAQUAN CAREY, THE MINOR CHILDREN OF DECEDENT; CNA INSURANCE COMPANY (Intervenor-Plaintiff in D.C.) v. KIMBERLY RASO, BADGE NO. 243, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A TOWNSHIP OF CHERRY HILL POLICE OFFICER; THE TOWNSHIP OF CHERRY HILL; CHERRY HILL CENTER, INC.; THE ROUSE COMPANY OF NEW JERSEY, INC.; THE ROUSE COMPANY; MACY'S EAST INC. LIBERTY MUTUAL INSURANCE COMPANY (Intervenor-Defendant in D.C.) KIMBERLY RASO; JORIS HOOGENDOORN v. THE ESTATE OF ROBERT C. ABRAHAM, Deceased; VANESSA ABRAHAM, Administratrix of the Estate of Robert C. Abraham; VANESSA ABRAHAM, Individually; MACY'S DEPARTMENT STORE; JOHN DOE(S), a fictitious name or names, jointly severally or in the alternative VANESSA ABRAHAM, Appellant in KIMBERLY RASO; JORIS HOOGENDOORN, Appellants in |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Nos. 96-cv-04884, 96-5146) District Judge: Honorable Joseph E. Irenas
[Copyrighted Material Omitted]
Alan L. Yatvin, Esq. (Argued), Popper & Yatvin, 1600 Market Street, Suite 1416, Philadelphia, PA 19103, Counsel for Appellant/Appellee Vanessa Abraham
Louis J. Kotlikoff, Esq. (Argued), Kotlikoff, Littlefield & Fishman, 412 White Horse Pike, Audubon, NJ 08106, Counsel for Appellants Kimberly Raso and Joris Hoogendoorn in No. 98-5406
Mario A. Iavicoli, Esq. (Argued), 43 Kings Highway West, Haddonfield, NJ 08033, Counsel for Appellee, Kimberly Raso in No. 98-5405
John C. Simons, Esq., Hoagland, Longo, Moran, Dunst & Doukas, 40 Paterson Street, P.O. Box 480, New Brunswick, NJ 08903, Counsel for Appellee CNA Insurance Company
Carl D. Poplar, Esq., Jeffrey A. Ahren, Esq. (Argued), Poplar & Eastlack, 215 Fries Mill Road, P.O. Box 8320, Turnersville, NJ 08012
Philip R. Lezenby, Jr., Esq., Lezenby, Zane & Cure, 208 White Horse Pike, P.O. Box 699, Barrington, NJ 08007, Counsel for Appellee Township of Cherry Hill
Frank D. Allen, Esq. (Argued), Archer & Greiner, One Centennial Square, P.O. Box 3000, Haddonfield, NJ 08033, Counsel for Appellees Cherry Hill Center, Inc.; The Rouse Company
of New Jersey, Inc.; and The Rouse Company
Steven B. Prystowsky, Esq. (Argued), Lester, Schwab, Katz & Dwyer, 120 Broadway, New York, NY 10271, Counsel for Appellee Macy's East Inc.
Lewis K. Jackson, Esq. (Argued), 401 Route 73 North, 10 Lake Center Executive Parks, Marlton, NJ 08053, Counsel for Appellee Liberty Mutual Insurance Company
Before: BECKER, Chief Judge, COWEN, Circuit Judge, and STAGG,* District Judge
Kimberly Raso, an off-duty police officer, shot and killed Robert Abraham in a mall parking lot while Abraham was trying to escape from a Macy's store where he had been stealing clothes. Raso was working as a mall security guard at the time and testified that she fired at Abraham because he tried to hit her with his car after she blocked its path. Abraham's estate alleges that Raso used excessive force. According to the estate, Raso was not in front of the vehicle, her life was never in danger, and she fired simply to prevent Abraham from evading arrest. The estate points to physical evidence showing the bullet shattered the driver's side window, rather than the front windshield, and struck Abraham in his left arm before passing into his chest.
Vanessa Abraham filed this suit as administratrix of Robert Abraham's estate, in her own right, and on behalf of Robert Abraham's three children. (Collectively referred to as "the estate.") The estate sought relief against Raso and the Township of Cherry Hill under 42 U.S.C. S 1983 based on violations of Robert Abraham's Fourth and Fourteenth Amendment right to be free from unreasonable seizures. The complaint also included pendent state claims against Raso, the owners of the Cherry Hill mall that employed Raso, and the Macy's store where Abraham had stolen the clothes.
Raso and her husband in turn brought negligence claims against Macy's, Abraham's estate, and Vanessa Abraham in her individual capacity and as administratrix. Raso also sued her own auto insurer, CNA Insurance Co., invoking an uninsured motorist provision in her policy. CNA then sued Liberty Mutual, the insurer for one of the mall defendants.
The District Court held on summary judgment that regardless of whether Raso's use of deadly force was justifiable in self-defense, Abraham posed an immediate threat of physical harm to the public, making the shooting objectively reasonable. Based on this "core" holding, the District Court dismissed all the parties' claims, except for the few remaining claims not subject to a summary judgment motion, i.e., Raso's tort claims against Abraham's estate and Vanessa Abraham.
We will reverse and remand for further proceedings. We conclude that the District Court resolved genuine factual disputes that, if a jury decides in favor of the estate, would entitle the estate to relief. Since the District Court disposed of all claims brought in Abraham's complaint based on the Court's "core" holding that Raso's use of force was objectively reasonable, we will vacate summary judgment for all of those claims, except for the dismissal of the estate's claim against Macy's, which we will affirm.
Turning to Raso's claims, we will similarly affirm summary judgment in favor of Macy's for Raso's claim against the store, but we will reverse the dismissal of Raso's claim against her insurer, CNA Insurance Co. We conclude that under New Jersey law, Raso may be entitled to uninsured motorist coverage. We likewise will vacate summary judgment on CNA's claim against Liberty Mutual Insurance Co., the Cherry Hill mall's insurer.
On Saturday evening, October 15, 1994, Mary Jane Thomulka was watching Macy's security monitors when she noticed Robert Abraham and his cousin, Dennis Redding, stealing clothes in the men's clothing department. Thomulka contacted Shawn Waters, another Macy's guard, and asked him to investigate. Waters did but decided that he needed help before confronting the two. Because Waters was concerned about having Thomulka, a woman nearfifty, involved if the suspects reacted violently, he specifically asked to have someone from the mall's security force back him up. Thomulka called Carmen Inverso, a security officer for the mall, who then put out a call to Raso and David Washick, the two off-duty police officers patrolling the mall. Raso responded that she was near Macy's while Washick, who was further away, headed toward Macy's. Mall guards Eriberto Avilez and Gary Saraceni also responded. According to Raso, she was told the suspects were possibly intoxicated.
Abraham and Redding initially walked together as they left the mall but soon parted apparently because they realized they were being followed. With Raso and Avilez walking steadily after them, the two suspects headed towards Abraham's car, parked facing west in aisle 68. Shortly after exiting the mall, Raso and Avilez also separated so that they could approach the suspects from different directions.
Abraham reached his car first and entered on the driver's side while Raso called out to him to stop. As Raso approached from the rear of the car, Avilez arrived near the front and tried in vain to pull Abraham from the car. With Avilez trying to stop Abraham, Redding fumbled at the door on the passenger's side of the car, but was unable to get in. (Redding was so intoxicated at the time that he does not recall the shooting.) Saraceni and Waters meanwhile were driving up aisle 68 in an unmarked mall pickup truck.
Raso, who was in police uniform, testified that she repeatedly commanded Abraham to stop, but by the time she reached the rear driver's side of the car, he had begun backing. Either before or shortly after Abraham's backing, Avilez grabbed Redding and called out that he had him. The mall truck was very close at this point, within five or six feet of Abraham's car according to Saraceni, giving Saraceni and Waters a view of events. All witnesses agree that Abraham backed out of his parking spot in an east- southeast direction and hit a white Ford Mustang parked in the opposing row of cars.
Photographs of the rear of Abraham's car and the Mustang show that Abraham's car left a black mark roughly a foot long and an inch wide where his car hit the rear bumper of the Mustang. Abraham's car was left with a shorter, wider white mark on its rear bumper. Neither car's bumper appears in the photographs to have been dented in any way.
Raso testified that Abraham began backing "very fast," forcing her to "jump out of the way." Abraham App. at 173. In an interview conducted by the Cherry Hill Police Department on October 31, 1994, roughly two weeks after the shooting, Raso said that Abraham backed up "in a reckless fashion" and she heard a "loud crash" when he hit the Mustang. Raso App. at 198.
Waters agreed that Abraham's car struck the Mustang forcefully, but his testimony conflicted with the physical evidence and differed in a number of details from Raso's account. On June 26, 1997, several years after the incident, he testified in his deposition that:
To the best of my recollection, [Abraham's car] hit the front of the parked car. I believe he did damage to the front passenger side and he broke glass. I don't know if it was on the car that he struck or his own vehicle. And his back -- the back of his car was damaged. I don't know to what extent... [It] was a severe accident. He hit -- struck the car so hard he actually moved it out of its spot.
Abraham App. at 137-138. Waters's testimony also conflicted with Raso's account when he stated in his deposition that as...
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