Del Tufo v. Township of Old Bridge

• Citation: 650 A.2d 1044,278 N.J.Super. 312
• Parties: Gerald DEL TUFO, Executor of the Estate of Donald Kiken, Plaintiff-Respondent, 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-Appellants.
• Decision Date: 04 January 1995
• Court: New Jersey Superior Court – Appellate Division

Page 312

278 N.J.Super. 312

650 A.2d 1044

Gerald DEL TUFO, Executor of the Estate of Donald Kiken Plaintiff-Respondent, 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-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Nov. 7, 1994.

Decided Jan. 4, 1995.

James B. Moran, New Brunswick, for appellants Township of Old Bridge and Old Bridge Tp. Police Dept. (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Mr. Moran, of counsel and on the brief).

Richard Galex, East Brunswick, for respondent (Galex, Tortoreti & Tomes, attorneys; Mr. Galex, on the brief).

No other parties participated in this appeal.

Before Judges HAVEY, BROCHIN and CUFF.

The opinion of the court was delivered by

BROCHIN, J.A.D.

In this wrongful death action, defendants Township of Old Bridge and Old Bridge Township Police Department ¹ have appealed from a $300,000 judgment entered in favor of plaintiff Gerald Del Tufo, executor of the estate of Donald Kiken. Mr. Kiken died while he was in the custody of the Old Bridge police. The immediate cause of his death was cardiac arrest caused by ingesting a massive amount of cocaine. The gravamen of this action by his executor against the Township is that the police are liable for Mr. Kiken's death because they failed to summon emergency medical assistance for him promptly after they arrested him. Instead, the police called the first-aid squad only after he had collapsed while he was being taken from a police car to the station house, approximately one-half hour after his arrest.

As grounds of appeal, the defendants allege that the jury verdict was against the weight of the evidence because the Old Bridge police could not reasonably have been expected to perceive Mr. Kiken's need for immediate medical attention. The defendants also contend that the trial court erred in refusing to instruct the jury to determine the comparative fault of Mr. Kiken and the police, in ruling as a matter of law that the defendants were not entitled to immunity pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 et seq., and in failing to grant a mistrial or to appropriately instruct the jury when plaintiffs advanced a factual argument during summation which, defendants allege, should have been precluded by collateral estoppel.

For the following reasons, we conclude that the jury verdict was not against the weight of the evidence and we agree with the trial court's rejection of defendants' immunity and collateral estoppel arguments. However, we hold that the jury should have been instructed to weigh the comparative fault of defendants and of the plaintiff's decedent.

From the evidence before it, the jury could have found the following facts. At 10:58 p.m. in the month of August, a telephone call notified the Old Bridge police that an automobile accident had just occurred in, or adjacent to, a residential development. As the result of that notice, Police Officers Thomas Collow and Robert Maher, arrived at the scene of the accident at 11:04 p.m. in separate patrol cars. A group of people were gathered outside. Several vehicles that had been involved in an accident stood along the road and a white Cadillac, which also appeared to have been in an accident, was parked partially on a lawn and partially on the sidewalk. The engine of the Cadillac was running, and Donald Kiken was sitting at the wheel.

Officer Collow approached the Cadillac. He told Mr. Kiken to turn off the engine, that the police were there and that everything would be "OK." Mr. Kiken suddenly backed the car off the sidewalk, struck Officer Collow's left leg and knocked him to the ground. The car also struck Officer Maher, knocking him to the ground.

Within a few minutes, Officer Maher found the Cadillac parked in a driveway of Mr. Kiken's nearby residence. Mr. Kiken, who was in the car, had driven into his closed garage door. Officer Maher approached the car and asked Mr. Kiken if he was all right. Mr. Kiken answered, "Yes, I'm fine. I did nothing wrong. I did nothing wrong." According to Officer Maher's incident report, he noticed that there was an eighth-of-an-inch long "facial laceration due to [a] motor vehicle accident" on the bridge of Mr. Kiken's nose.

Sergeant Crowley arrived. There was a brief struggle when he and Officer Maher handcuffed Mr. Kiken and told him that he was under arrest. At 11:09 p.m., Officer Maher radioed to headquarters that Mr. Kiken was under arrest. Pursuant to Sergeant Crowley's direction, Officer Maher put Mr. Kiken in the back seat of a patrol car.

Officer Collow, who had driven off to find Mr. Kiken, returned to the residential development where the accident had taken place. As Officer Collow approached the police car in which Mr. Kiken was seated, he saw Mr. Kiken turning his body and kicking the rear passenger side windows. Officer Maher saw Mr. Kiken attempt to kick out the back window of the patrol car. Sergeant Crowley heard a thumping sound coming from the back seat. The patrol car was shaking vigorously up and down, and Mr. Kiken was "undulating" without uttering any sound.

Sergeant Crowley ordered Officer Maher to transport Mr. Kiken to police headquarters. At 11:20 p.m., Officer Maher radioed that they were on route there. The trip took approximately two minutes. When they arrived, Officer Maher and two other waiting police officers helped Mr. Kiken out of the patrol car. After taking a few steps, Mr. Kiken collapsed. The policemen removed the handcuffs and moved him into the cell area. While one administered CPR, another called the First Aid Squad. The ambulance arrived at police headquarters at 11:36 p.m. When Mr. Kiken arrived at the hospital, he was in cardiac arrest. At 12:03 a.m., he died of cardiac failure caused by ingesting between one-and-a-half and three-and-a-half grams of cocaine, well in excess of a lethal dose.

According to the testimony of plaintiff's experts, the fact that Mr. Kiken had been involved in an accident resulting in heavy damage to his car, that he struck several other vehicles, that he drove his car into a closed garage door, and that there was a laceration near the bridge of his nose showed that he was in need of medical attention. His abnormal movements in the back seat of the patrol car, made without any utterances, were probably seizures. These indicated that his condition was deteriorating and his need for medical assistance was becoming more urgent.

According to the expert testimony, if medical assistance had been summoned at 11:09 p.m. and Mr. Kiken had reached the hospital by 11:25 p.m., he would have had approximately a 75 percent chance of survival. If medical help had been summoned at 11:20 p.m. and he had arrived at the hospital at 11:40 p.m., he would have had approximately a 50 percent chance of survival. The plaintiff's medical expert attributed Mr. Kiken's death to the failure to treat him for acute cocaine intoxication. Plaintiff's expert on police procedures testified that the Old Bridge police should have recognized from Mr. Kiken's condition and the attendant circumstances that he required immediate medical assistance, and they should immediately have summoned an ambulance that would have rushed him to a hospital.

The defendants do not contest that when the police arrest someone, they have a duty to provide necessary medical treatment. See Hake v. Manchester Township, 98 N.J. 302, 306, 486 A.2d 836 (1985). They dispute whether the police could reasonably have known that Mr. Kiken required emergency medical care and, even if they had recognized the signs and called an ambulance as soon as possible, whether he would have had a substantial prospect of recovery. See Scafidi v. Seiler, 119 N.J. 93, 108, 574 A.2d 398 (1990) (defendant is liable in damages if his negligence was a substantial factor in diminishing defendant's chance of recovery ²); Hake v. Manchester Township, supra, 98 N.J. at 306, 486 A.2d 836; Evers v. Dollinger, 95 N.J. 399, 417, 471 A.2d 405 (1984). On those factual issues, the testimony was controverted. However, on the basis of a careful review of the record, we agree with the trial judge that the evidence presented at trial does not show that the jury's verdict clearly resulted in "a miscarriage of justice under the law." See R. 2:10-1. The defendants' motion for a new trial on the ground that the verdict was against the weight of the evidence was therefore properly denied.

In Blazovic v. Andrich, 124 N.J. 90, 107, 590 A.2d 222 (1991), our Supreme Court held that the negligence of one party should be compared with the intentional fault of another in substantially the same way as if both the parties were negligent. But there is no New Jersey case which has considered whether a damage award in a case such as the present one should reflect the jury's comparison of the prisoner's fault in ingesting a toxic dose of an illegal drug, and then denying his need for help, with the custodial authority's negligence in failing to provide adequate medical assistance. Several decided cases, however, are pertinent, and they point in different directions. In Cowan v. Doering, 111 N.J. 451, 468, 545 A.2d 159 (1988), a case in which a mentally disturbed patient who had injured herself by jumping from a hospital window sued her doctors and nurses for their negligent failure to protect her from injury, our Supreme Court held that the defendants were not entitled to assert comparative negligence as a defense. The Court ruled that the plaintiff's mental illness did not necessarily eliminate considerations of comparative negligence, but, the Court held, "The proposition of law which governs this case is one that excuses a plaintiff from exercising reasonable self- only...