Abraham v. Raso
| Decision Date | 01 January 1998 |
| Docket Number | Consolidated With Civil Action No. 96-5146 (JEI).,Civil Action No. 96-4884 (JEI). |
| Parties | 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, Plaintiff, v. KIMBERLY RASO, et al., Defendants. KIMBERLY RASO and JORIS HOOGENDOORN, Plaintiffs, v. THE ESTATE OF ROBERT C. ABRAHAM, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
POPPER & YATVIN, Diane R. Brocco, Esq., Edison, NJ, Counsel for plaintiff Abraham.
MARIO A. IAVICOLI, Mario A. Iavicoli, Esq., Haddonfield, NJ, Counsel for defendant Raso.
KOTLIKOFF, LITTLEFIELD & FISHMAN, Louis J. Kotlikoff, Esq., Audobon, NJ, Counsel for plaintiffs Raso and Hoogendoorn.
POPLAR & EASTLACK, P.C., Jeffrey A. Ahren, Esq., Turnersville, NJ, Counsel for defendant Township of Cherry Hill.
ARCHER & GREINER, P.C., Frank D. Allen, Esq., Haddonfield, NJ, Counsel for defendants Cherry Hill Center, Inc., The Rouse Co., and The Rouse Co. of New Jersey, Inc.
LESTER SCHWAB KATZ AND DWYER, Robert Dunn, Esq., Millburn, NJ, Counsel for defendants Macy's East, Inc.
HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, John C. Simons, Esq., New Brunswick, NJ, Counsel for intervening plaintiff CNA Insurance Co.
LAW OFFICES OF SUE ELLEN JOHNSON, Lewis K. Jackson, Esq., Marlton, NJ, Counsel for intervening defendant Liberty Mutual Insurance Co.
On October 15, 1994, in the early evening, Robert Abraham and his cousin, Dennis Redding, were observed stealing clothing from the men's department in Macy's department store in the Cherry Hill Center ("the Mall") in Cherry Hill, New Jersey. One Macy's guard followed Abraham and Redding out of Macy's and into the Mall parking lot. Another Macy's guard called Mall security for back-up assistance. Mall security called the off-duty Cherry Hill police officers working at the Mall as security guards. One of the two officers responding was Kimberly Raso.
The shoplifting suspects walked through the parking lot towards their car while Mall security, Raso and another off-duty police officer approached the scene. In a rapidly evolving sequence of events, Abraham was able to get into the driver seat of his car before he could be apprehended. Abraham put the car into reverse and backed out abruptly and at a high rate of speed, slamming his car into a parked car in the process. Raso, now in front of the car, ordered Abraham repeatedly to stop and to get out of the car. At some point Abraham pressed his foot down on the accelerator and drove forward towards Raso. Raso, who had drawn her gun as the car moved towards her, jumped to her right while being hit or nearly hit by the car, and fired a shot which shattered the driver-side window. The bullet struck Abraham in his left arm, passed through his arm and entered his chest, fatally wounding him. Abraham's car swerved to the right and continued through the parking lot before striking another car, ramming into a parking lot island curb, hitting a sign and a small tree and coming to a rest. Abraham apparently was pronounced dead after his arrival at Cooper Hospital.
Vanessa Abraham ("plaintiff"), in her own right, as Administratrix of the Estate of Robert Abraham, and on behalf of Robert Abraham's children, Robert, Labreea and Taquan, has filed a complaint pursuant to 42 U.S.C. § 1983 alleging that Raso and the Township of Cherry Hill violated Abraham's Fourth Amendment and Fourteenth Amendment right to be free from unreasonable seizures. In addition, plaintiff alleges that Raso, the Cherry Hill Center, Inc., the Rouse Company of New Jersey, Inc., the Rouse Company, and Macy's East, Inc. are liable for various forms of negligence under New Jersey state law. Plaintiff also seeks punitive damages against all defendants except the Township of Cherry Hill.
Raso and her husband, Joris Hoogendoorn, have filed a complaint alleging that the Estate of Robert Abraham and Vanessa Abraham are liable to them for negligent actions which have caused harm to Raso and Hoogendoorn. Raso and Hoogendoorn also allege that Macy's East, Inc. is liable to them based upon negligent conduct.2
CNA Insurance Company ("CNA") has filed an intervening complaint in this action. CNA's complaint seeks a judgment that Raso is not covered under the terms of the uninsured-motorist provision of her CNA automobile insurance policy for injuries arising out of the October 15, 1994, shooting incident. CNA has named Liberty Mutual Insurance Company ("Liberty Mutual") as a third-party defendant, alleging that Liberty Mutual will be liable to CNA — under the terms of the Rouse Company's Liberty Mutual insurance policy — for a portion of any payment CNA might be required to make to Raso in the event she is deemed to be covered for her injuries under her CNA policy.
This Court has jurisdiction over Raso's constitutional claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Now before this Court are a number of motions for summary judgment filed by the parties.3
As will become evident, this Court's core holding is that Raso's use of deadly force against Abraham was justified as a matter of law because Raso reasonably believed that Abraham was a dangerous fleeing criminal who had threatened her life and who posed an immediate threat of serious harm to the public. For the reasons set forth below, this Court will: (1) grant Raso's motion for summary judgment on plaintiff's § 1983 excessive force claim; (2) grant the Township of Cherry Hill's motion for summary judgment as to plaintiff's § 1983 claims; (3) grant Raso's, the Cherry Hill Center's, the Rouse Company of New Jersey, Inc's, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's assault and battery claims; (4) grant Raso's, the Cherry Hill Center's, the Rouse Company of New Jersey, Inc.'s, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's negligence, gross negligence and negligence per se claims; (5) grant the Cherry Hill Center's, the Rouse Company of New Jersey, Inc.'s, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's negligent hiring claim; (6) grant the Cherry Hill Center's, the Rouse Company of New Jersey, Inc.'s, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's negligent supervision claim; (7) grant Raso's, the Cherry Hill Center's, the Rouse Company of New Jersey, Inc's, the Rouse Company's and Macy's East, Inc.'s motions for summary judgment as to plaintiff's punitive damages claim; (8) grant Macy's East, Inc.'s motion for summary judgment as to Raso and Hoogendoorn's negligence claim; (9) grant CNA's motion for summary judgment as to Raso's non-coverage under the uninsured-motorist provision of Raso's CNA insurance policy, and deny Raso's cross motion for summary judgment; and (10) grant Liberty Mutual's motion for summary judgment as to Raso's non-coverage under the uninsured-motorist provision of the Rouse Company's Liberty Mutual insurance policy.
On Saturday, October 15, 1994, in the early evening, Robert Abraham and Dennis Redding were taking clothes from the men's department at Macy's and stuffing them into bags. Macy's security guard Mary Jane Thomulka observed this activity on Macy's security monitors. Thomulka alerted another Macy's security guard, Shawn Waters. Waters began to follow Abraham and Redding through Macy's and, as he followed them out of the store and out of the Mall, he radioed Thomulka and directed her to call Mall security for back-up assistance. Thomulka contacted Mall security guard Carmen Inverso. Inverso put out a call for the off-duty Cherry Hill police officer(s) working as Cherry Hill Mall security officers.
There were two off-duty Cherry Hill officers working in the Mall when Inverso made this call: Kimberly Raso and David Washick. Raso acknowledged Inverso's call, reporting that she already was near Macy's. She says she was "advised" over the radio "that the [suspects] were possibly intoxicated or under the influence." (Dep. of Kimberly Raso at 297). Washick responded to the call and moved towards the Macy's exit at the southeastern corner of the Mall parking lot. Waters, meanwhile, flagged down Mall security guard Gary Saraceni who was driving a Mall security pick-up truck, and joined Saraceni in that vehicle in order to follow or observe Abraham and Redding. Mall security guard Eriberto Aviles also moved towards the scene.
After Abraham and Redding exited Macy's, they began making their way to a car parked in aisle sixty-eight, northwest of the Macy's exit, in the crowded Mall parking lot. Initially they walked together, but soon they separated and walked apart. Raso and Aviles, who had joined together at some point, similarly walked together and then apart in order to follow and approach Abraham and Redding from different directions. Abraham's car was parked facing west in a lined-off parking space in a row of parked cars. Redding moved towards the passenger-side front door while Abraham approached the driver-side front door. Aviles attempted to grab Abraham, but Abraham was able to open the driver-side door and get into the car. Redding then attempted but was unable to enter the car by the front passenger-side door.
As these events unfolded, Raso was approaching Abraham's car from the southeast. As she approached, Raso apparently commanded Abraham not to enter the car or to exit the car. She was advancing towards the driver-side door but was still at the rear driver-side of the car when Abraham got in the car. Abraham started his car, put it in reverse, and accelerated abruptly, backing his car out of the lined-off parking space in an east-southeast direction. By the time...
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