Fagan v. City of Vineland

• Citation: 804 F. Supp. 591
• Decision Date: 30 July 1992
• Docket Number: Civ. A. No. 90-310 (WGB).
• Parties: Sarah E. FAGAN, et al., Plaintiffs, v. The CITY OF VINELAND, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

804 F. Supp. 591

Sarah E. FAGAN, et al., Plaintiffs, v. The CITY OF VINELAND, et al., Defendants.

Civ. A. No. 90-310 (WGB).

United States District Court, D. New Jersey.

July 30, 1992.

Eisenstat, Gabage & Berman by Gerald M. Eisenstat, Vineland, N.J., for Sarah Fagan.

Dilworth, Paxson, Kalish & Kauffman by Penny Conley, Philadelphia, Pa., for Mary Ellen Duke.

Gruccio, Pepper, Giovinazzi & DeSanto by Thomas Farnoly, Vineland, N.J., for Jeffrey Pindale.

Parker, McCay & Cruscuolo by David Parker, Marlton, N.J., for East Landis Hotel/Amnon Corp.

Horn, Kaplan, Goldberg, Gorny & Daniels by A. Michael Barker, Atlantic City, N.J., for City of Vineland, et al.

Jacob, Robinson & Ferrigno by Arnold Robinson, Millville, N.J., for Wanda Pindale.

Sachs & Sachs by Peter Sachs, Holmdel, N.J., for Mary Ellen Duke.

Shapiro & Shapiro by Harold B. Shapiro, Vineland, N.J., for plaintiff Maurice Davis.

Horovitz, Perlow, Morris & Pirolli by Barry A. Perlow, Bridgeton, N.J., for defendant VTL, Inc., t/a Town Liquors.

Basile, Testa & Testa by Frank G. Basile, Vineland, N.J., Co-counsel for Albino Genetti, Adm'r Ad Prosequendum of Estate of Albert Stavoli.

Clifford Van Syoc, Cherry Hill, N.J., for Officer Phillip Bocelli.

OPINION

BASSLER, District Judge:

Defendants the City of Vineland, the Vineland Police Department, Chief of Police Joseph P. Cassisi, Police Captain Mario R. Brunetta, Officer David Tesoroni, Officer Beny Velez, Officer Richard Putnam, Officer Phillip Bocelli, and Officer Peter Coccaro III (the "Vineland defendants") have filed five motions seeking summary judgment.

The first motion asks for summary judgment in favor of all the Vineland defendants on the plaintiffs' claims under 42 U.S.C. § 1983 alleging a Fourteenth Amendment violation, arguing that the claim may only proceed as a Fourth Amendment violation. For the following reasons, this motion will be denied.

The second motion seeks summary judgment in favor of all the Vineland defendants on (1) the plaintiffs' claims under 42 U.S.C. § 1983 of violation of their Fourteenth Amendment right to due process, and (2) plaintiffs' negligence claims under the New Jersey Tort Claims Act. For the following reasons, summary judgment will be granted in favor of the defendants on the claims under 42 U.S.C. § 1983, and the New Jersey Tort Claims Act claims will be dismissed for lack of jurisdiction.

The third, fourth and fifth motions were filed individually by officers Richard Putnam, Peter Coccaro III, and Phillip Bocelli. For the reasons stated in the discussion of the second motion described above, these defendants are granted summary judgment on the claims under 42 U.S.C. § 1983, and the claims under the New Jersey Tort Claims act are dismissed.

I. INTRODUCTION

These are five consolidated lawsuits arising out of an automobile accident that followed the police pursuit of a car in Vineland, N.J.

Plaintiffs are those who survived the accident, and the relatives and estates of those who did not. They allege that the their substantive due process rights as guaranteed by the Fourteenth Amendment were violated because the police involved in the chase recklessly disregarded police pursuit guidelines, and because the remaining Vineland defendants failed to train and supervise these officers. Plaintiffs also claim that the Vineland defendants are liable under the New Jersey Tort Claims Act.¹

The Vineland defendants have filed five motions for summary judgment.

In the first, they argue that plaintiffs may not assert a Fourteenth Amendment substantive due process violation stemming from a police pursuit. Rather, they argue, the claim must be brought, under the Supreme Court's holding in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), as a violation of the Fourth Amendment's prohibition of unreasonable searches and seizures. The second motion argues that, assuming the claim was appropriately brought as a Fourteenth Amendment claim, summary judgment is required because plaintiffs have failed to show that the Vineland defendants acted arbitrarily during the pursuit. Further, this motion argues, the Vineland defendants are entitled to good-faith immunity to any claims brought under the New Jersey Tort Claims Act.

In three separate motions, defendant officers Putnam, Bocelli and Coccaro move for summary judgment on the state-law and Section 1983 claims, arguing that their actions were not arbitrary.

For the purposes of this motion, the following background as described by the plaintiffs will be accepted as true.²

A. The Pursuit

Shortly before 2 a.m. on March 6, 1988, defendant Officer David Tesoroni ("Tesoroni") was on routine patrol on Landis Avenue in Vineland. Landis Avenue is the main street running through the city's business district, and is a popular gathering place and cruising spot for young people. As Tesoroni was heading west on Landis Avenue, he spotted a white Camaro heading east. As the car passed, Tesoroni saw a passenger in the Camaro stand up through the car's open T-top.

The Camaro was driven by Jeffrey Pindale ("Pindale"), 19. In the front passenger seat was his wife, Wanda, and riding in back were his friends, Al Stavoli and Maurice Davis.

In order to give the driver a warning for an offense described by Tesoroni as "riding on parts not intended for," Tesoroni made a U-turn on Landis Avenue and accelerated. In the meantime, Pindale turned right off Landis Avenue on to Eighth Street heading south. Tesoroni followed the Camaro on to Eighth Street, and as he made the turn, activated his overhead lights. He could not tell whether Pindale was speeding. The Camaro continued south on Eighth Street for two blocks, and then turned right onto Grape Street heading west, where it accelerated to between 35 and 40 miles per hour.

The Camaro then proceeded through two stop signs, where it slowed but failed to stop, and Tesoroni continued to follow. The Camaro turned left on to Sixth Street heading south, and then left again on to Montrose Street heading east. Tesoroni was following at 30 to 35 miles per hour and the Camaro was pulling away at 35 to 40 miles per hour, in a residential area with a 25-mile-per-hour speed limit. At this point Tesoroni advised headquarters of his actions.

The pursuit continued in this fashion in the same kind of residential neighborhood, and more stop signs were run. When Pindale reached Almond Street and East Avenue, he turned off his headlights. The pursuit continued, the Camaro traveling at about 40 miles per hour.

Back at headquarters, defendant Sgt. Edgar Zatzariny ("Zatzariny") was in charge, and had the authority to order Tesoroni to discontinue the pursuit, but never did so. Zatzariny asked the dispatcher to ask Tesoroni why he was pursuing the Camaro, but Tesoroni never responded.

When it turned on to Chestnut Avenue — a four-lane road, two lanes in each direction — the Camaro accelerated to 50 miles per hour, traveling west, still without headlights. Tesoroni continued his pursuit.

During the chase on Chestnut Avenue, defendant Officer Richard Putnam ("Putnam") pulled out on to Chestnut Avenue from a sidestreet, facing his car eastward and blocking Chestnut Avenue's outside westbound lane. Putnam's headlights and overhead lights were on, but the Camaro sped past, Tesoroni still in pursuit. Putnam waived his arms in an unsuccessful effort to signal the Camaro to stop. There is some dispute, according to the plaintiffs, over whether he got out of his patrol car to waive his arms.

At some point during the pursuit on Chestnut Avenue, defendant Officer Peter Coccaro ("Coccaro") used his patrol car to block off Eighth Avenue, where it intersects with Chestnut Avenue, in order to prevent cars from entering Chestnut Avenue from Eighth Avenue. The Pindale car then sped past on Chestnut Avenue heading west at a high rate of speed, and Coccaro pulled out on to Chestnut Avenue heading east, although there is some suggestion by plaintiffs that Coccaro may actually have pursued the Camaro. Coccaro says he never participated in the pursuit.³

Around this time, defendant Officer Beny Velez ("Velez") approached Chestnut Avenue at Sixth Street. He saw the Camaro pass by with Tesoroni one to two blocks behind. Velez turned onto Chestnut Avenue in front of Tesoroni but behind the Camaro, and became the lead vehicle in the pursuit, his overhead lights and siren on. Velez estimated that the Camaro was travelling at 70 to 80 miles per hour, and that he was travelling at 50 to 60 miles per hour. As Velez came over a rise at about Fourth Street and Chestnut Avenue he saw the Camaro some blocks ahead near the intersection with Holly Hill Terrace.

Velez then radioed to headquarters that the Camaro was approaching the intersection of Chestnut Avenue and Delsea Avenue. At that intersection, the Camaro ran a red light and collided with a pickup truck traveling on Delsea Avenue. Killed were the occupants of the pickup truck, Christopher Duke and Michael Fagan, and one of the passengers in the Camaro, Al Stavoli. Wanda Pindale and Maurice Davis were severely injured, and Jeffrey Pindale, the driver, was less seriously injured.

A witness to the collision, Anthony Campbell, saw four police cars approach the accident scene from westbound Chestnut Avenue.

B. The Guidelines

At the time of the accident, the City of Vineland had adopted the police pursuit guidelines promulgated in 1986 by the New Jersey Attorney General and County Prosecutors Association ("the guidelines"). They read, in part:

A. When to pursue

Generally, police officers shall make every responsible effort to apprehend a fleeing vehicle. Therefore, a pursuit may be initiated whenever a law violator refuses to stop and uses his vehicle to flee. The pursuit should always be tempered with common sense and the officer should be aware of the degree of hazard to which he exposes himself and others. The decision to conduct such a pursuit should depend upon

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