Jackson v. Heymann

• Decision Date: 19 December 1973
• Citation: 314 A.2d 82,126 N.J.Super. 281
• Parties: Walter JACKSON, an infant by and through his guardian ad litem, Lula Redfern, and Lula Redfern, individually, Plaintiffs, v. Ronald M. HEYMANN, Director of Motor Vehicles, et al., Defendants, v. CITY OF VINELAND, a Municipal Corporation of the State of New Jersey, Third-Party Defendant and Third-Party Plaintiff, v. Samuel CURCIO et al., Third-Party Defendants.
• Court: New Jersey Superior Court

Page 281

126 N.J.Super. 281

314 A.2d 82

Walter JACKSON, an infant by and through his guardian ad

litem, Lula Redfern, and Lula Redfern, individually, Plaintiffs, v. Ronald M. HEYMANN, Director of Motor Vehicles, et al., Defendants, v. CITY OF VINELAND, a Municipal Corporation of the State of

New Jersey, Third-Party Defendant and Third-Party Plaintiff, v. Samuel CURCIO et al., Third-Party Defendants.

Superior Court of New Jersey,

Law Division.

Dec. 19, 1973.

Mark DeMarco, Hammonton, for plaintiffs (Donio & DeMarco, Hammonton, attorneys).

Leonard C. Horn, Atlantic City, for third-party defendant and third-party plaintiff, the City if Vineland (Horn & Weinstein, Atlantic City, attorneys).

Edward Fishman, Atlantic City, for third-party defendants Samuel Curcio, Samuel Donio and Mark A. DeMarco (Fishman & Spitalnick, Atlantic City, attorneys).

William P. Doherty, Jr., Bridgeton, for defendant Ronald M. Heymann, Director of Motor Vehicles.

Irwin Kavesh, Vineland, for defendant National Freight Co. (Kavesh & Basile, Vineland, attorneys).

John A. Fratto, Camden, for defendant Green's Express (Bleakly, Stockwell & Zink, Camden, attorneys).

Barry A. Perlow, Bridgeton, for defendants LoBiondo Bros. and Michael DeMaria (Horuvitz & Perlow, Bridgeton, attorneys).

GRUCCIO, J.S.C.

This is a personal injury action. The facts, distinctly stated, are that on October 7, 1968 Walter Jackson, a minor, was a pedestrian on the curb at the intersection of Park Avenue and Fourth Street in Vineland, New Jersey. At approximately 8:15 a.m. he was struck by a motor vehicle, as a result of which he sustained injuries. Officers of the Vineland Police Department arrived at the scene and commenced a routine motor vehicle accident investigation. Witnesses and persons in the vicinity were interviewed and a police report was filled out. This investigation indicated that plaintiff had been struck by a tractor and trailer, or an object extending from such a vehicle. However, the police received contradictory reports as to the description of the vehicle. This preliminary investigation was followed by an extensive survey of the local trucking concerns. Unfortunately, this failed to disclose any significant facts since the descriptions obtained by the witnesses did not correspond to any vehicle operating in the vicinity of the accident. Additional witnesses were interviewed during the next four days but all possible leads proved fruitless.

Plaintiff filed suit against the Director of Motor Vehicles under the Unsatisfied Claim and Judgment Act. Subsequently, an amended complaint joined LoBiondo Brothers Motor Express, Inc., and one of its drivers, Mr. DeMaria, as defendants. A second amended complaint joined National Freight Company as a defendant, while a third amended complaint joined Green's Express as an additional defendant. The joining of these parties as defendants was apparently based upon their possible involvement in the accident and they are subjects of other motions pending before this court.

The third amended complaint also joined the City of Vineland as a defendant on the ground that its police department had failed to carry out its sworn duty to properly investigate accidents. Plaintiff contends that the city's conduct constitutes malfeasance which permits the city to be held liable for the injuries incurred by plaintiff. He claims that because of the city's conduct he was unable to identify the tortfeasor and therefore denied any possibility of recovering compensation from the tortfeasor.

Finally, the city has filed a third-party complaint against plaintiff's attorneys, Samuel Curcio, Samuel Donio, and Mark A. DeMarco, for a pro rata contribution towards any liability for which it may be held accountable. This complaint alleges that plaintiff's attorneys had the professional responsibility to investigate and determine whether plaintiff had a cause of action. It is the city's contention that their negligent performance of this duty is the cause of any injury sustained by plaintiff.

At the present time there are three pretrial motions before this court: (1) the city has motioned for summary judgment asserting that the plaintiff has failed to set forth a cause of action and that, as a matter of law, his complaint against the city should be dismissed; (2) the third-party defendants (Curcio, Donio and DeMarco) motion for summary judgment, contending that if the city succeeds on its motion, this will result, as a matter of law, in a judgment on their behalf; (3) plaintiff has motioned for the court to sever the third-party action, claiming that it presents questions of law and issues which would be prejudicial to trying the principal case, while interjecting new issues which should not be tried with the main case. Since the disposition of the city's motion will determine the merits of the other motions, the city's motion will be considered first.

Plaintiff alleges that the city's police department failed to properly investigate the accident and that such conduct has prevented plaintiff from determining the identity of the tortfeasor. The city contends that as a municipality it owes no duty to plaintiff, as a victim, to prosecute a civil action for personal injuries.

The traditional law governing municipal tort liability has been subjected to a great deal of change. Recent cases have expanded liability while the traditional proprietary-governmental test has fallen into dispute. B. W. King, Inc. v. West New York, 49 N.J. 318, 230 A.2d 133 (1967). As to possible municipal tort liability, the question is whether or not the municipality is under a duty to act, as distinguished from a situation where the taking of any action is discretionary, or the matter involves the making of a basic governmental policy decision. Hoy v. Capelli, 48 N.J. 81, 222 A.2d 649 (1966); Amelchenko v. Freehold, 42 N.J. 541, 201 A.2d 726 (1964). Once it is determined that such a duty exists, then the municipality will be held to the standard of reasonable care under the circumstances. Bergen v. Koppenal, 97 N.J.Super. 265, 235 A.2d 30 (App.Div.1967), aff'd, 52 N.J. 478, 246 A.2d 442 (1968).

The issue before this court is whether a municipality is under a duty to conduct an investigation of an accident in order to assist the victim to recover for any injuries or damages incurred.

Officers of the police department are employees of their municipality and as such the principles of Respondeat superior are applicable in cases of affirmative wrongful acts. McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820 (1960). However, municipalities are not to be held responsible for every failure of police to act. Bergen v. Koppenal, Supra. Therefore, plaintiff must be able to show that the police were under...