Fricke v. Geladaris, Inc.

Citation221 N.J.Super. 49,533 A.2d 971
PartiesF.W. FRICKE, Jr., and Eugene Leddy, Plaintiffs-Appellants, v. GELADARIS, INC., and Boyd Cousoulis and John Doe, Defendants-Respondents.
Decision Date29 October 1987
CourtNew Jersey Superior Court – Appellate Division

Donald G. Sweetman, for plaintiffs-appellants (Thomas E. Maloney, Jr., attorney; Donald G. Sweetman, on the brief).

Diana Powell McGovern, for defendants-respondents (O'Donnell, Kennedy, Vespole & Piechta, attorneys; John C. Kennedy, of counsel; Diana Powell McGovern, on the brief).

Before Judges O'BRIEN and HAVEY.

The opinion of the court was delivered by


The issue raised by this appeal, on leave granted, is whether an action for malicious prosecution survives the death of the plaintiff under the Survival Act, N.J.S.A. 2A:15-3, which provides for the survival of an action "... for any trespass done to the person or property ..." of the testator or intestate. The motion judge concluded that the action did not survive and entered summary judgment dismissing Fricke's action. We disagree. We hold that malicious prosecution is a "trespass done to the person ..." and thus does not abate upon the death of the plaintiff. We therefore reverse and remand for further proceedings.

The pertinent facts are not in dispute. Plaintiffs were patrons at a restaurant owned by defendant Geladaris, Inc.. A dispute arose as to whether plaintiffs had paid the full amount of their food bill. When confronted by the manager, defendant Boyd Cousoulis, plaintiffs claimed that they had given the full amount of the bill to the waiter plus a $5 tip. When plaintiffs refused Cousoulis' demand that they pay the bill, the West Orange police were summoned. Based on the manager's complaint, both plaintiffs were charged with theft of services, contrary to N.J.S.A. 2C:20-8. According to plaintiffs, they were handcuffed at the scene and transported to police headquarters. When the case was reached for trial in the municipal court, it was dismissed because defendants failed to appear.

Plaintiffs filed the present malicious prosecution action in which they sought compensatory and punitive damages for their arrest without probable cause, deprivation of their liberty, humiliation and damage to their reputations. Two months after the complaint was filed, Fricke died.

Upon Fricke's death, defendants moved for summary judgment as against Fricke. Relying on Patrick v. Esso Standard Oil Company, 156 F.Supp. 336, 340-341 (D.N.J.1957), defendants argued that malicious prosecution was not an action for "trespass done to the person", but an action "on the case," and thus did not survive Fricke's death. The motion judge agreed and dismissed Fricke's complaint. The judge acknowledged that the Supreme Court in Canino v. New York News, Inc., 96 N.J. 189, 475 A.2d 528 (1984) had recently held that an action for libel or slander survives under the act. However, the judge gave significance to the following passage in Canino:

Because at common law an action for libel or slander was considered a trespass to the person under N.J.S.A. 2A:15-3, the action survives the death of the person claiming injury. [Id. at 198, 475 A.2d 528, emphasis supplied].

The judge concluded from this language that Canino impliedly held that the common-law distinction between trespass to the person and "on the case" was not abolished, and that Canino's holding was predicated strictly on the fact that libel or slander was a common-law trespass to the person.

In Patrick v. Esso Standard Oil Company, supra, the Federal District Court, applying our Survival Act, held that an action for malicious prosecution abated upon plaintiff's death. 156 F.Supp. at 340-341. Patrick relied primarily on Meyer v. Peter, 9 N.J.Misc. 1309, 157 A. 250 (S.Ct.1931), which concluded that since malicious prosecution is "... peculiarly directed to feeling and reputation, and is an action on the case, it is not saved by [the Survival Act] which gives the executor or administrator a cause of action for trespass done to the person or property" of their testator or intestate. Id. at 1311, 157 A. 250. Patrick also cited with approval the holding in Alpaugh v. Conkling, 88 N.J.L. 64, 67, 95 A. 618 (S.Ct.1915), that defamation actions, considered purely as injuries to the feelings and reputation, abated at defendant's death under the then existing Abatement Act (Comp.Stat., p. 2260), which permitted survival of an action against the estate of a deceased defendant who committed "any trespass to the person."

Patrick, Meyer and Alpaugh bottomed their holdings on the distinction between the common-law writs of trespass and trespass on the case. At common law, trespass was considered quasi-criminal in nature and was the remedy for forcible, direct and immediate injury to person or property. See Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 46, 477 A.2d 1224 (1984). Trespass on the case was developed as a supplement to trespass to afford a remedy for injury resulting indirectly. Id. The distinction between the two writs "... was not between intentional and negligent conduct, but ... on the causal sequence and the directness of the harm." Id. In an action "on the case," there could ordinarily be no liability unless actual damage was proven. Id; see also W. Prosser, Handbook on the Law of Torts, § 7, at 28-30 (4 ed. 1971).

In Ten Eyck v. Runk, 31 N.J.L. 428 (S.Ct.1866), Chief Justice Beasley interpreted "trespass to the person" in the Abatement Act without reliance on the common-law writ distinction. Ten Eyck involved an action "on the case" for property damages done by a back-flow of dammed waters. The Chief Justice held:

It is obvious that in its widest scope the word "trespass" signifies every injury to property ... and being such, it clearly falls within the letter of the statute. But not only this, it is, as it seems to me, just as clearly embraced in its general scope or spirit. This act is highly remedial in its character ... There was certainly nothing in morals, in public policy, or in good sense, to justify the continuance of a rule which grounded a man's right to recover for an injury to his person or estate, inflicted by a tortious act, on the contingency of the party injured surviving to the date of the judgment ... In my opinion the word "trespass," as used in the section under consideration, must be received as equivalent in meaning to the word "tort" --so that the effect of the provision is to give a right of suit against the personal representatives of a deceased wrong-doer for any injurious act of a suable nature, without reference to the form in which the remedy must be sought. [ Id. at 429-231, emphasis supplied].

The Supreme Court in Canino v. New York News, Inc., supra, 96 N.J. at 194-195, 475 A.2d 528, embraced the Ten Eyck rationale in holding that libel or slander, being an injury to a person quite apart from economic loss, was a "trespass done to the person or property" under N.J.S.A. 2A:15-3. Canino also cited with approval Weller v. Home News Pub. Co., 112 N.J.Super. 502, 271 A.2d 738 (Law Div.1970), in which Judge Furman expressly declined to follow Alpaugh, concluding that:

To construe trespass to person as not encompassing libel or invasion of the right of privacy is to import a limitation into the survival statute...

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2 cases
  • Gressman v. State
    • United States
    • Utah Supreme Court
    • October 18, 2013
    ...providing for the survival of “all personal actions, except for injuries to the reputation”); Fricke v. Geladaris, Inc., 221 N.J.Super. 49, 533 A.2d 971, 971, 973 (N.J.Super.Ct.App.Div.1987) (malicious prosecution claim survives under a statute providing for the survival of an action for an......
  • Hawes v. Johnson & Johnson
    • United States
    • U.S. District Court — District of New Jersey
    • October 15, 1996 al., Prosser and Keeton on the Law of Torts § 126, at 943 (5th ed. 1984); see Canino, 96 N.J. at 194-95, 475 A.2d 528; Fricke, 221 N.J.Super. at 52-53, 533 A.2d 971. In addition, plaintiff's LAD claims for compensatory damages in the nature of emotional injuries, back pay, and benefits a......

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