Ojinnaka v. City of Newark

• Decision Date: 22 January 2010
• Citation: 420 N.J.Super. 22,18 A.3d 233
• Parties: Clement E. OJINNAKA, Estate of Arinzechukwu Ojinnaka, Lawritha Ojinnaka, Plaintiffs,v.CITY OF NEWARK, Newark Police Department, Defendants.
• Court: New Jersey Court of Chancery

420 N.J.Super. 22

18 A.3d 233

Clement E. OJINNAKA, Estate of Arinzechukwu Ojinnaka, Lawritha Ojinnaka, Plaintiffs,

v.CITY OF NEWARK, Newark Police Department, Defendants.

Superior Court of New Jersey,Law Division,Essex County.

Decided Jan. 22, 2010.

Alan Roth, Newark, for plaintiffs (Bendit Weinstock, P.C., attorneys).Gary S. Lipshutz and Julien X. Neals, Newark, for defendants (Newark Corporation Counsel, attorneys).KENNEDY, J.S.C.

Defendant City of Newark moves for summary judgment seeking to dismiss claims brought against it by the estate of Arinzechukwu (“Arinze”) Ojinnaka, deceased, and by the decedent's parents, Clement and Lawritha Ojinnaka. Plaintiffs assert that Newark police officers were not adequately trained and were otherwise negligent in responding to the report of a motor vehicle accident on December 21, 2005, leading to the death of Arinze. Plaintiffs bring wrongful death and survivor claims, as well as a claim under Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980).

The City of Newark contends that it is immune from liability under the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1–1 to 59:10–10, and that it otherwise breached no duty to plaintiffs. The City of Newark also contends that the Portee claim is without foundation as a matter of law and must be dismissed.

Summary judgment must be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46–2(c). The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536, 666 A.2d 146 (1995). See also Jolley v. Marquess, 393 N.J.Super. 255, 267, 923 A.2d 264 (App.Div.2007).

“At this stage of the proceedings, the competent evidential materials must be viewed in the light most favorable to plaintiff, the non-moving party, and [he] is entitled to the benefit of all favorable inferences in support of [his] claim.” Bagnana v. Wolfinger, 385 N.J.Super. 1, 8, 895 A.2d 1180 (App.Div.2006) (citing R. 4:46–2(c); Brill, supra, 142 N.J. at 540, 666 A.2d 146). See also In re Estate of Sasson, 387 N.J.Super. 459, 462–63, 904 A.2d 769 (App.Div.), certif. denied, 189 N.J. 103, 912 A.2d 1263 (2006).

The circumstances of this case are very tragic. Arinze was a nineteen year old college student who in December 2005 worked a late night shift at United Parcel Service (“UPS”) near the Newark Airport. According to UPS records, he had reported for duty on December 20, 2005, at 6:45 p.m. and checked out of work at 5:02 a.m. on December 21, 2005. Arinze at that time lived with his parents, Clement and Lawritha Ojinnaka, in Irvington, New Jersey and used his father's blue 1991 Chevrolet Lumina van to drive to and from work at the UPS facility.

At 5:27 a.m. on December 21, 2005, Nabil Robil, a limousine driver, was driving from Newark Airport and was on a sharply curving ramp that led from Routes 1 & 9 North onto Route 78 west when he saw a late model van that appeared to have hit the lane barrier. Its tail lights were illuminated and the rear of the van was “sticking out” near the driving lane and “looked dangerous.” Robil did not see anyone in or near the van but he called Newark Police on 911 to report what he saw.

The Newark Police “event chronology” recorded the 911 call at 5:27 a.m. and stated: “auto accident with injuries—Code 3 event comment. EMS notified for car hitting wall. Car is still running. Car was coming off airport ramp onto 78. No further information.”

Lieutenant Darren Marasco of the Newark Police Department was on duty in the area at the time and, hearing police radio transmissions, arrived on the scene at approximately 5:30 a.m. It was cold and dark at the time. He could not recall whether, when he arrived, the van's motor was running or its lights were illuminated. He could not recall if the windows were broken and saw no one near the vehicle. He assumed the car had been stolen and abandoned, despite the fact that the vehicle had not been reported stolen at that time—a fact confirmed by the police dispatcher.

Marasco said the right side of the van was up against the barrier and that there was no room on that side to walk between the van and the barrier. He waited for a regular patrol unit to arrive to take control of the scene.

A few minutes later, Newark Police Officers Cain and Robinson arrived. They shined their flashlights over the barrier near the car and saw nothing and assumed the driver “fled the scene.” Cain conferred with the police dispatcher and identified Clement Ojinnaka as the owner of the vehicle. Although he was given Clement's address in Irvington, he did not attempt to contact him. He noticed that the keys were in the vehicle and the van's right side against the wall was damaged. Also, the passenger windows were broken. EMS, Search & Rescue, and the Newark Fire Department arrived at 6:05 a.m. The Fire Department placed “speed dry” on the road surface, but did not search for any occupant of the vehicle. Captain Kraemer of the Newark Fire Department recalled looking over the wall and thinking that it was “a drop” from the roadway over the wall. The car was towed at 7:15 a.m. and at that time police left the area.

There was no evidence of blood in the van and no obvious evidence that anyone had been ejected from the vehicle.

No one searched the area for the driver or possible passengers and no one from Newark attempted to contact Clement Ojinnaka from the scene. No one attempted to examine the barrier wall to ascertain the vehicle's trajectory or point of initial impact. No one appears to have walked back along the barrier wall, while peering over into the brush below. Rather, a Newark police officer simply sent Clement Ojinnaka a letter the next day asking him to contact the detective bureau about an “on-going investigation.”

Meanwhile, Arinze's parents became concerned for their son and called UPS and were apparently advised he was still working. By 7:30 p.m. that night, they called the Irvington Police Department and reported their son missing. Irvington logged in the report and the Newark Police Department reported to the Irvington Police Department on December 22, 2009, at 3:12 a.m. that it had located and removed the vehicle from a highway. Although Arinze's parents talked to the Irvington Police Department again on December 22, 2009, they were first told by the Irvington Police Department on December 23, 2009, that their vehicle was in an accident on Routes 1 & 9 and they should “go to Newark.” They went to the Newark Police Department that day but were told by an officer there that the Newark Police Department had no information about an accident. They spent the next two days searching train stations and other locations in an effort to find their son.

On December 26, 2005, Clement Ojinnaka returned to Newark and was finally given the police report on the accident. He and others drove to the spot where the van had been located and, peering over the barrier wall, they saw Arinze's body lying face up in a lightly wooded area twenty feet from the barrier wall. Shortly thereafter, Newark police officers, fire officials, and New Jersey State Police arrived at the scene.

After Arinze's body was discovered, New Jersey State Police officers took photographs and measurements. They also inspected the van and found significant damage to the right front fender and passenger door. The windows in the front passenger door were missing, as was the inside front passenger door panel.

The State Police found scratch marks on the concrete barrier, indicating an initial point of impact 312 feet east of where the vehicle came to rest. The inside door panel was found in a lightly wooded area on the opposite side of the concrete barrier, apparently 111 feet past the point of the initial impact, and Arinze's body was located on the other side of the barrier 135 feet from the point of initial impact. The van came to a stop approximately 170 feet past that point.

There were no skid marks in the roadway which would have indicated that the operator of the van attempted “heavy braking” prior to impact, and there was no evidence of tire failure prior to the collision. These factors, together with the observation that the driver side front seatbelt was in its normal, slackened position with no evidence of damage, led the New Jersey State Police to conclude that Arinze had been ejected from the vehicle through the front passenger side window.

Plaintiffs retained a pathologist who performed an autopsy on Arinze and opined that he would have survived “for a few to several hours after the accident.” Plaintiffs also retained an expert on law enforcement procedures and practices who concluded that the Newark police failed to conduct an investigation to locate the driver, failed to conduct a crash investigation, and “abandoned the crash site” because the officers assumed the driver had simply “fled the crash scene.”

To summarize, Newark police officers responded to an accident site coded as “auto accident with injuries.” The vehicle was heavily damaged on the right side; the keys were in the van; the vehicle lights were illuminated and the right front passenger window and door panel were missing. There is some evidence that the vehicle was still running. The site of the crash was an isolated ramp onto a major highway, and there was an approximate eight foot drop from the opposite side of the concrete crash barrier down to a lightly wooded area.

There was evidence along the inside wall of the concrete crash barrier that the van had struck the wall approximately 300 feet east of the point where the vehicle came to rest. Officers on the...