Davis v. Township of Paulsboro

• Decision Date: 25 May 2005
• Docket Number: No. 02-CV-3659 JEI.,02-CV-3659 JEI.
• Citation: 371 F.Supp.2d 611
• Parties: Sarah DAVIS, Administratrix, Ad Prosequendum, et al., Plaintiffs, v. TOWNSHIP OF PAULSBORO, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

371 F.Supp.2d 611

Sarah DAVIS, Administratrix, Ad Prosequendum, et al., Plaintiffs, v. TOWNSHIP OF PAULSBORO, et al., Defendants.

No. 02-CV-3659 JEI.

United States District Court, D. New Jersey.

May 25, 2005.

COPYRIGHT MATERIAL OMITTED

Marshall L. Williams, by Marshall L. Williams, Esq., Philadelphia, PA, for Plaintiffs.

Rotolo & Midlige, Lebanon, NJ, by E. Carr Cornog, III, for Gloucester County Defendants.

Powell, Birchmeier & Powell, Tuckahoe, NJ, by James R. Birchmeier, for Borough of Paulsboro Defendants.

Parker, Mccay & Criscuolo, P.A., Marlton, NJ, by Lisa B. Baughman, for Defendant Underwood Memorial Hospital.

Blumberg & Lindner, LLC, Woodbury, NJ, by Charles B. Austermuhl, for Defendant Dr. Arriviello.

OPINION

IRENAS, Senior District Judge.

Presently before this Court is the Gloucester County¹ Defendants' Cross-Motion to Dismiss the state law tort claims under Fed.R.Civ.P. 12(b)(6), filed in response to Plaintiffs' Motion for Leave to File a Fourth Amended Complaint.² The Gloucester County Defendants argue that Plaintiffs Ernest Davis,³ Sarah Davis and Willie Graham cannot maintain their state law claims in Counts II and III⁴ of the Third Amended Complaint⁵ because they did not comply with the notice provisions of New Jersey Tort Claims Act ("TCA"), New Jersey Stat. Ann. § 59:1-1, et seq.

Because we find that the notice requirements of the TCA do not apply to causes of action which allege the commission of intentional torts by public employees and which accrued prior to June, 2004, the Cross-Motion to Dismiss will be denied to the extent that Counts II and III allege claims based on the commission of intentional torts by public employees (as opposed to public entities). See Velez v. City of Jersey City, 180 N.J. 284, 850 A.2d 1238 (2004).

The Cross-Motion to Dismiss Mr. Davis's remaining claims in Count II (negligence or intentional torts against public entities) will be denied because there is a factual issue as to whether the time period in which he was required to give notice under the TCA was tolled by his incompetence.

With respect to the non-Velez claims asserted by Mr. Davis's parents in Count III, which are not derivative of Mr. Davis's claims in Count II, the Cross-Motion will be granted and those claims will be dismissed, because a notice of claim was required, but was not provided within the statutory period. The Cross-Motion will be denied as to any claims asserted in Count III which are derivative of Mr. Davis's Count II claims.

I.

The Court will not repeat in full the long and complicated procedural history of this matter. The background of this case is fully set forth in an Opinion by Magistrate Judge Anne Marie Donio, dated November 30, 2004, Docket No. 116. A few points relevant to the instant motion, however, should be noted.

A.

This lawsuit stems from a series of events in the early morning hours of August 13, 2000, in Paulsboro, New Jersey-an altercation at a bar, and the subsequent arrest, incarceration and hospitalization of Mr. Davis. (Second Am. Compl., at ¶ 29.) Mr. Davis and his parents, Sarah Davis and Willie Graham ("parents"), have made claims in this suit against a number of entities and individuals.

Mr. Davis was allegedly involved in a bar fight at approximately 2:00 a.m. He went (or was taken) to his girlfriend's house, where he blacked out for some period of time. The police appeared at the girlfriend's house and took Mr. Davis into custody. The Complaint alleges that Mr. Davis was injured during his arrest and while in custody.

Mr. Davis was released from jail and taken to the Underwood Memorial Hospital ("UMH") by ambulance at approximately 3:00 a.m. The Complaint alleges that Davis was released from UMH into police custody around 3:45 a.m., only to be brought to Cooper Medical Center ("Cooper") later in the morning, around 9:00 a.m. (Third Am. Compl., at ¶¶ 74, 98.)

B.

The bulk of the moving and opposition papers focus on Plaintiffs' awareness of and ability or competence to pursue potential causes of action against the Gloucester County Defendants.

1.

Mr. Davis's physical and mental capabilities have been called into question. Mr. Davis was unconscious when he was admitted to Cooper on August 13, 2000, and remained in a comatose state at Cooper until October 16, 2000. (Third Am. Compl., at ¶ 100.)

On November 21, 2000, Mr. Davis was transferred from Cooper to Moss Rehabilitation Center ("Moss"). (Id. at ¶ 101.) Mr. Davis was discharged from Moss on June 27, 2001.

Thereafter, he took various prescription medications and underwent at least one surgery for a lung infection. (Id. at ¶ 102; Pl. Opp., at p. 7; Mr. Davis Dep., at p. 77.) According to Plaintiffs, Mr. Davis was deemed "disabled" by the Social Security Administration in 2001. (Pl. Opp., at p. 7.)

At his deposition on April 5, 2004, Mr. Davis testified about his physical and mental condition. He stated that he utilized a wheelchair until late 2003 and suffered from other physical limitations, inter alia, limited vision for extended periods of time, limited range of motion and use of his left shoulder and arm. (E. Davis Dep., at p. 57-58; 61-63.) Mr. Davis also testified that was undergoing dialysis for kidney failure at the time of his deposition. (Id. at p. 77-78.)

During his deposition, Mr. Davis could recall very little about the events of August 13, 2000. He knew that he went to his girlfriend's house but did not remember the police arresting him there. (Id. at p. 41.) He could not recall many of the people who he had seen that night. (Id. at p. 41-48.) He stated that he was "[a]ware that I was assaulted that evening, but I'm not sure how, or why, or by whom." (Id. at p. 86.)

Mr. Davis stated that he was never told that his injuries caused a decrease in his ability to reason, but was told at some point (although he could not pinpoint when) that his injuries caused him to have difficulty retaining facts. (Id. at p. 73-74.) When questioned about the answers he provided to the various Defendants' interrogatories, Mr. Davis became confused and repeatedly answered that the details given in the interrogatories could have come from him, but that he either did not remember the events of August 13, 2000, or he did not remember giving the specific answers to the interrogatories. (Id. at p. 85-107.)

From August, 2000, to the date of his deposition, Mr. Davis testified that had never been treated for psychological difficulties and that he never entertained suicidal thoughts. Despite his physical and mental limitations, Mr. Davis stated that he felt he could manage his affairs to an extent. (Id. at p. 68-69.)

2.

Mr. Davis's mother, Sarah Davis, was contacted by the hospital and by the Gloucester County Sheriff's Department shortly after August 13, 2000. (Interview Notes of C.W.O. Long from Sept. 21, 2000 meeting with Sarah Davis, Ex. P, Def. Letter Reply.) Sarah Davis met with an investigator from Gloucester County Sheriff's Department on September 21, 2000. At that time she shared information regarding Mr. Davis's condition and the role of police in the events of August 13, 2000.

Sarah Davis told the investigator what she knew about the events of August 13, 2000. She had heard rumors of a fight and knew that Mr. Davis was taken to his girlfriend's house at some point. (Id.) The interview notes indicate that Sarah Davis knew that Mr. Davis was placed in police custody later. (Id.)

During the meeting, Sarah Davis indicated that she had hired a lawyer or was in the process of hiring a lawyer, as she advised the officer that she would not sign any medical release forms without contacting her attorney first. (Id.)

At some point counsel was retained to represent both Mr. Davis and his parents to pursue claims arising from the events of August 13, 2000. However, almost two years passed from the date of Mr. Davis's injuries until any notice of claim was filed with Gloucester County. On July 18, 2002, the attorney for the Plaintiffs mailed short letters to the Clerk of Gloucester County and the Director of the Gloucester County Jail. On September 10, 2002, Plaintiff's counsel sent a much more detailed notice of claim to an attorney representing the Gloucester County Board of Chosen Freeholders.

II.

On January 26, 2005, Plaintiffs moved for leave to file a fourth amended complaint, which prompted the instant CrossMotion.

A.

Plaintiffs claim that the true names of certain parties were not known until recently. The proposed amendments would substitute Borough of Paulsboro Police Officer Donald Grey, County of Gloucester Sheriff Officer Kimberly Reichert and Emergency Physician Services for unknown defendant "Does." In addition, the proposed fourth amended complaint included new counts for wrongful death and survival claims, and requested that Sarah Davis be named Administratrix Ad Prosequendum in place of Mr. Davis.

The Gloucester County Defendants filed their opposition papers to Plaintiffs' Motion for Leave to Amend on February 18, 2005. (Docket No. 132.) In addition, also on February 18, 2005, the Gloucester County Defendants filed a Cross-Motion to Dismiss.⁶ (Docket No. 133.) Plaintiffs responded to the Cross-Motion on March 11, 2005, and on March 14, 2005. (Docket Nos. 143 & 146.) Gloucester County Defendants submitted a reply by letter brief, dated March 23, 2005.

The basis of the Cross-Motion is that Plaintiffs' notice of claim, dated July, 2002, was provided outside the statutory window. Accordingly, the Cross-Motion argues that the state law claims against the Gloucester County Defendants, found at Counts II and III of Plaintiffs' Third Amended Complaint, must be dismissed for non-compliance with the TCA.

In Count II, Mr. Davis alleges claims of: (1) false arrest and imprisonment; (2) assault and battery; (3) malicious prosecution (4) abuse of process; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; (7) conspiracy tort; (8)...