Del Tufo v. Township of Old Bridge
Decision Date | 12 December 1996 |
Citation | 685 A.2d 1267,147 N.J. 90 |
Parties | Gerald DEL TUFO, Executor of the Estate of Donald Kiken, Plaintiff-Appellant, v. TOWNSHIP OF OLD BRIDGE, Old Bridge Township Police Department, Patrolman Thomas Collow, Patrolman Robert Maher, William A. Volkert, Chief of the Old Bridge Township Police Department and Jerry Palumbo, Acting Chief of Police of Old Bridge Township Police Department and John Does (1 through 5), Defendants-Respondents. |
Court | New Jersey Supreme Court |
Richard Galex, Boca Raton, for appellant (Galex, Tortoreti & Tomes, attorneys).
James B. Moran for respondents (Hoagland, Longo, Moran, Dunst & Doukas, attorneys).
The opinion of the Court was delivered by
The question presented in this wrongful death case is whether comparative negligence is available as a defense to a wrongful death claim alleging police negligence in failing to provide immediate medical care to an arrestee who, unbeknownst to the police, had taken a lethal drug overdose shortly before his arrest. The trial court declined to provide a comparative negligence instruction, and the jury returned a verdict for the plaintiff. The Appellate Division reversed in a reported decision, concluding that the jury should have been instructed to weigh decedent's negligence against the police's negligent failure to summon immediate medical assistance. Del Tufo v. Township of Old Bridge, 278 N.J.Super. 312, 322, 650 A.2d 1044 (App.Div.1995).
We granted certification, 140 N.J. 328, 658 A.2d 728 (1995), and now affirm.
On August 10, 1986, at 10:58 p.m., the Old Bridge Township Police Department received notice of a vehicular accident in a residential complex in Old Bridge. Officers Thomas Collow and Robert Maher arrived at the scene at 11:04 p.m. in separate patrol cars. A group of people had congregated around the accident site. Several damaged vehicles, which appeared to have been parked at the time of impact, lined the roadway.
A white Cadillac, also damaged, was situated partially on the sidewalk and partially on a lawn. The decedent, Donald Kiken, was sitting at the wheel of the Cadillac with its engine running. Officer Collow approached and told Kiken that the police had arrived and that everything was under control and instructed Kiken to shut off the Cadillac's engine. Suddenly Kiken backed the vehicle off the sidewalk, striking both Collow and Maher and knocking them to the ground. Kiken continued to drive in reverse up to the top of the street. Collow pursued on foot but lost sight of the Cadillac.
The officers split up to search for Kiken. Within a few minutes, Maher located the Cadillac in the driveway of Kiken's nearby residence where Kiken had driven the car into his closed garage door. Maher approached and asked Kiken if he was all right. Kiken responded, Maher noticed a one-eighth inch laceration on the bridge of Kiken's nose, which he presumed was caused by the motor vehicle accident. Officer Maher asked Kiken to exit the vehicle and Kiken complied.
As Kiken was exiting his vehicle, Sergeant Crowley, the Patrol Supervisor, arrived at the scene. Sergeant Crowley asked Kiken if he needed medical attention, to which Kiken responded, "No, sir." Sergeant Crowley and Officer Maher placed Kiken under arrest presumably for striking the officers with the Cadillac. As a result of the arrest, Kiken became excited and a minor struggle ensued as the police handcuffed Kiken. At 11:09 p.m. Officer Maher radioed headquarters to report that the arrest was completed. Pursuant to Sergeant Crowley's directions, Officer Maher then placed Kiken in the back seat of the patrol car.
After Kiken was placed into the patrol car, Officer Collow observed Kiken turn his body and kick the rear side windows of the patrol car. Officer Maher also observed Kiken kick the back window. Sergeant Crowley heard a "thumping" noise coming from the back seat of the patrol car but did not observe what was causing it. A nearby neighbor testified that he observed Kiken "undulating" in the back seat, "vigorously shaking" his body without uttering a sound and causing the patrol car to move back and forth.
Pursuant to Sergeant Crowley's direction, Officer Maher left the scene at 11:20 p.m. and transported Kiken to police headquarters. Upon arriving at headquarters, Lieutenant Stenger and Patrolman Nobel assisted Officer Maher in removing Kiken from the patrol car. Kiken began walking, stopped as if he was about to fall, then regained his footing and continued. After taking a few more steps with the assistance of the police officers, Kiken stepped on his own feet and collapsed. The officers removed the handcuffs and transported Kiken to the cell area. One officer administered cardiopulmonary resuscitation (CPR) and another radioed for first aid. The Cheesequake First Aid Squad received that call at 11:29 p.m. An ambulance arrived at the station at 11:36 p.m. and transported Kiken to Old Bridge Regional Hospital. Kiken died in the hospital at 12:03 a.m. of cardiac failure. According to plaintiff's expert, the cause of the cardiac failure was an overdose of between one and one-half and three and one-half grams of cocaine, an amount well in excess of a lethal dosage. According to medical testimony, the intake of cocaine occurred through a combination of snorting and swallowing probably within an hour of death, which was the approximate time of the accident.
The executor of decedent's estate filed a wrongful death action pursuant to N.J.S.A. 2A:31-1 to -6 against individual police officers, the police department, and the Township of Old Bridge, alleging negligence on the part of the police in failing to summon emergency medical assistance upon decedent's arrest. Plaintiff's expert on police procedures testified that the arresting officers should have recognized from decedent's behavior in the police car and the surrounding circumstances, that decedent was in need of medical assistance from the time of the arrest and should have summoned medical assistance immediately.
According to plaintiff's medical expert, the fact that decedent was involved in a motor vehicle accident and had sustained an injury to his nose indicated that he was in need of medical assistance. The expert further stated that the undulating motions decedent made in the patrol car were probably symptoms of a seizure. Plaintiff's expert concluded that decedent would have had a seventy-five percent chance of survival if assistance had been summoned at 11:09 p.m. and if Kiken had reached the hospital by 11:35 p.m. Further, Kiken would have had a fifty percent chance of survival if assistance had been summoned at 11:20, when the order was given to transport decedent to police headquarters, and if Kiken had arrived at the hospital at 11:40 p.m.
According to the defendants' expert on police procedure, nothing in decedent's behavior or the surrounding circumstances indicated to the arresting officers or to Sergeant Crowley that decedent was in need of immediate medical assistance. The expert further stated that decedent's act of kicking the patrol car windows was not unusual and could be understood as an expression of his anger or remorse. The expert expressed the view that given decedent's conscious reply that he did not need medical assistance and the absence of any obvious critical injury, the actions of the officers and the sergeant in arresting and transporting decedent to headquarters were normal and appropriate. Defendants did not call a medical expert.
At the conclusion of the presentation of evidence, defendants sought an instruction on comparative fault that would require the jury to consider whether the decedent was negligent in: (1) ingesting cocaine; (2) failing to inform the police that he had ingested a lethal amount of cocaine; and (3) telling the police that he did not need medical assistance. The trial court relied essentially on Dubak v. Burdette Tomlin Memorial Hospital, 233 N.J.Super. 441, 559 A.2d 424 (App.Div.), certif. denied, 117 N.J. 48, 563 A.2d 817 (1989), and rejected the request for a comparative negligence charge.
On the issue of causation, the court charged both the standard "but for" proximate cause as well as the "substantial factor" standard without any instruction on apportionment of damages. The jury was instructed:
Now, what do we mean by proximate cause? Proximate cause is generally defined as any cause which in the natural and continuous sequence of events unbroken by any efficient intervening cause produces the result complained of and without which the result would not have occurred. Stated differently, plaintiff must show that the defendants' conduct constituted a cause in fact of decedent's death because of an act or omission. And an act or omission is not regarded as a cause of the event, but the event would have occurred without such act or omission. Liability may be imposed upon the defendants after showing that the negligent conduct was a substantial factor in causing the death.
Now, in order for the plaintiff to prove causation, plaintiff must show that the defendant police officers' negligent conduct negated a substantial possibility that prompt rescue efforts would have been successful thereby constituting a substantial factor in causing the decedent's death. That is, Mr. Kiken's death.
So defendants can be held liable if it's been shown to your satisfaction that one or more of the officers was negligent in failing to provide medical care. And that within a reasonable degree of medical probability delay in providing medical attention to Donald Kiken increased the risk of harm to him. And that such increased risk was a substantial factor in producing the resultant death. If there was any substantial possibility of survival and defendants have destroyed it, then they are answerable.
Now, rarely is it possible to demonstrate to an...
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