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Fagan v. City of Vineland

filed: April 29, 1994.

SARAH E. FAGAN, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF MICHAEL J. FAGAN, DECEASED
v.
THE CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; JOSEPH CASSISI, JR., CHIEF OF POLICE OF THE CITY OF VINELAND; POLICE OFFICERS DAVID TESORONI; PETER F. COCCARO, III; BENNY VELEZ; PHILLIP C. BOCCELI; RICHARD PUTNAM; DAVID CARDANA; MARIO R. BRUNETTA, JR.; JOHN DOES, (FICTITIOUS NAMES) REPRESENTING OTHER POLICE OFFICERS OF THE CITY OF VINELAND POLICE DEPARTMENT; TOWN LIQUORS, A/D/B/A VTL, INC.; MARQUEZ AMNON CORPORATION, A/D/B/A EAST LANDIS HOTEL AND MOTEL; JOHN DOE (FICTITIOUS NAMES) AGENT, SERVANT OR EMPLOYEE SELLING LIQUORS FOR MARQUEZ AMNON CORPORATION, A/D/B/A EAST LANDIS HOTEL AND MOTEL; JEFFREY T. PINDALE; AND MARY ELLEN DUKE, ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER M. DUKE, DECEASED, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE (CAMDEN NEW JERSEY DISTRICT CIV. NO. 90-00310); WANDA PINDALE V. TOWN LIQUORS, A/D/B/A VTL, INC.; JOHN DOE I, (FICTITIOUS NAME) AGENT, SERVANT OR EMPLOYEE SELLING LIQUORS FOR TOWN LIQUORS, A/D/B/A VTL, INC.; MARQUEZ AMNON CORPORATION A/D/B/A EAST LANDIS HOTEL AND MOTEL; JOHN DOE II, (FICTITIOUS NAME) AGENT, SERVANT OR EMPLOYEE SELLING LIQUORS FOR MARQUEZ AMNON CORPORATION, A/D/B/A EAST LANDIS HOTEL AND MOTEL; THE CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; JOSEPH CASSISI, JR., CHIEF OF POLICE OF THE CITY OF VINELAND; DAVID TESORONI; JOHN DOE III; AND JOHN DOE IV, (FICTITIOUS NAMES) REPRESENTING OTHER POLICE OFFICERS OF THE CITY OF VINELAND POLICE DEPARTMENT; AND JEFFREY T. PINDALE, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE V. MARY ELLEN DUKE, ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER M. DUKE, THIRD PARTY DEFENDANT (CAMDEN NEW JERSEY DISTRICT CIVIL NO. 90-00464); MAURICE G. DAVIS, JR. V. VTL, INC. A/D/B/A TOWN LIQUORS; JOHN DOE I, (FICTITIOUS NAME) AGENT, SERVANT OR EMPLOYEE SELLING LIQUORS FOR VTL, INC., A/D/B/A TOWN LIQUORS; MARQUEZ AMNON CORPORATION A/D/B/A EAST LANDIS HOTEL AND MOTEL; JOHN DOE II, (FICTITIOUS NAME) AGENT, SERVANT OR EMPLOYEE SELLING LIQUORS FOR MARQUEZ AMNON CORPORATION A/D/B/A EAST LANDIS HOTEL AND MOTEL; THE CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; JOSEPH CASSISI, JR., CHIEF OF POLICE OF THE CITY OF VINELAND; DAVID TESORONI; JOHN DOE III, AND JOHN DOE IV (FICTITIOUS NAMES) REPRESENTING OTHER POLICE OFFICERS OF THE CITY OF VINELAND POLICE DEPARTMENT; AND JEFFREY T. PINDALE, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE AND JEFFREY T. PINDALE, THIRD PARTY PLAINTIFF V. MARY ELLEN DUKE, ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER M. DUKE (CAMDEN NEW JERSEY DISTRICT CIVIL NO. 90-00485); ALBINO GENETTI, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ALBERT STAVOLI, DECEASED V. VTL, INC. A/D/B/A TOWN LIQUORS; JOHN DOE I, (FICTITIOUS NAME) AGENT, SERVANT OR EMPLOYEE SELLING LIQUORS FOR VTL, INC. A/D/B/A TOWN LIQUORS; MARQUEZ AMNON CORPORATION A/D/B/A EAST LANDIS HOTEL AND MOTEL; JOHN DOE II, (FICTITIOUS NAME) AGENT, SERVANT OR EMPLOYEE SELLING LIQUORS FOR MARQUEZ AMNON CORPORATION A/D/B/A EAST LANDIS HOTEL AND MOTEL; THE CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; JOSEPH CASSISI, JR., CHIEF OF POLICE OF THE CITY OF VINELAND; DAVID TESORONI; JOHN DOE III, AND JOHN DOE IV (FICTITIOUS NAMES) REPRESENTING OTHER POLICE OFFICERS OF THE CITY OF VINELAND POLICE DEPARTMENT; AND JEFFREY T. PINDALE, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE V. MARY ELLEN DUKE, ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER M. DUKE, THIRD PARTY DEFENDANT (CAMDEN NEW JERSEY DISTRICT CIVIL NO. 90-01022); MARY ELLEN DUKE, ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CHRISTOPHER M. DUKE, DECEASED V. JEFFREY T. PINDALE, PRESENTLY INCARCERATED AT THE TRENTON STATE PRISON; TOWN LIQUORS A/D/B/A VTL, INC.; MARQUEZ AMNON CORPORATION A/D/B/A EAST LANDIS HOTEL AND MOTEL; JOHN AND JANE DOES, FICTITIOUS NAMES, FOR UNKNOWN ENTITIES AND PERSONS BELIEVED TO HAVE SOLD, SERVED, OR OTHERWISE PROVIDED LIQUORS TO JEFFREY T. PINDALE, THE CITY OF VINELAND, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, COUNTY OF CUMBERLAND, NEW JERSEY; JOHN AND JANE DOES, FICTITIOUS NAMES, FOR UNKNOWN GOVERNMENTAL ENTITIES AND FOR UNKNOWN INDIVIDUALS BELIEVED TO BE POLICE OFFICERS OF SAID GOVERNMENT ENTITIES INVOLVED IN AN UNLAWFUL HIGH SPEED AUTOMOBILE PURSUIT; JOSEPH CASSISI, SR., INDIVIDUALLY AND AS AN AGENT OF THE VINELAND POLICE DEPARTMENT; MARIO R. BRUNETTA, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE CAPTAIN OF THE CITY OF VINELAND POLICE DEPARTMENT; DAVID TESORONI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE CITY OF VINELAND POLICE DEPARTMENT; PETER F. COCCARO, III, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE CITY OF VINELAND POLICE DEPARTMENT; BENNY VELEZ, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE CITY OF VINELAND POLICE DEPARTMENT; PHILLIP C. BOCCELLI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE CITY OF VINELAND POLICE DEPARTMENT; RICHARD PUTNAM, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE CITY OF VINELAND POLICE DEPARTMENT; JOHN AND JANE DOES, FICTITIOUS NAMES FOR UNKNOWN INDIVIDUALS BELIEVED TO BE OTHER POLICE OFFICERS OF THE CITY OF VINELAND POLICE DEPARTMENT INVOLVED IN AN UNLAWFUL HIGH SPEED AUTOMOBILE PURSUIT, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE. (CAMDEN NEW JERSEY DISTRICT CIVIL NO. 90-01029); MARY ELLEN DUKE AND SARAH FAGAN APPELLANTS NO. 92-5481, APPELLANTS NO. 92-5594, MAURICE G. DAVIS, JR., WANDA PINDALE AND ALBINO GENETTI, APPELLANTS NO. 92-5482, APPELLANTS NO. 92-5551



On Appeal from the United States District Court for the District of New Jersey. D.C. Civil Nos. 90-00310, 90-00464, 90-00485, 90-01022 and 90-01029

Before: Sloviter, Chief Judge, Cowen and Lewis, Circuit Judges.

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge.

These five consolidated actions under 42 U.S.C. § 1983 arose from a high-speed police pursuit in Vineland, New Jersey, in which an automobile attempting to evade Vineland police officers crashed into an innocent bystander's vehicle. Three people were killed and three others were injured. The plaintiffs are the survivors of the accident and the estates and relatives of those who were killed. They claim that their Fourteenth Amendment substantive due process rights were violated because the police officers pursued the fleeing automobile in a reckless manner in violation of statewide guidelines, and because the City of Vineland ("the City" or "Vineland") had a policy of not properly training its police officers regarding high-speed pursuits. Plaintiffs also brought a state law negligence claim against defendant Town Liquors. Plaintiffs allege that Town Liquors, which sold wine to the driver of the fleeing automobile, contributed to his intoxication and helped to cause the accident.

Plaintiffs appeal the grant of summary judgment in favor of all of the defendants. The district court held (1) that the law of the case doctrine did not prohibit it from reconsidering a predecessor Judge's earlier denial of summary judgment in favor of the defendants; (2) the standard of care under section 1983 is conduct which "shocks the conscience," and the pursuing officers' actions did not rise to that level of misconduct as a matter of law; (3) since none of the officers were liable, the City could not be liable because its alleged failure to train had not caused a violation of plaintiffs' constitutional rights; (4) the absence of any remedy under New Jersey law did not affect the scope of plaintiffs' due process rights; and (5) the evidence against defendant Town Liquors was insufficient, as a matter of law, to show that the wine it sold was a cause of the accident.

We will affirm in part and reverse in part. We agree that the law of the case doctrine does not apply. We hold, however, that the City may be held independently liable for violating the plaintiffs' constitutional rights, even if no individual police officer is liable. We agree that the absence of a state remedy has no effect on plaintiffs' rights under the Due Process Clause. We also agree that the record contains insufficient evidence to show that defendant Town Liquors proximately caused the accident. We therefore will reverse the grant of summary judgment rendered in favor of the City, and affirm the grant of summary judgment in favor of Town Liquors.*fn1

I.

A. FACTS

The parties disagree about many of the factual details. Because we are reviewing a grant of summary judgment, we will view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving parties, the plaintiffs. Clement v. Consolidated Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992).

On March 6, 1988, at about 1:55 a.m., defendant Officer David Tesoroni of the Vineland Police Department was on routine patrol on Landis Avenue in Vineland, New Jersey. Landis Avenue is the main street running through the City's business district and is a popular gathering and cruising place for young people. As Officer Tesoroni headed west on Landis Avenue, he spotted a white Camaro heading east. The Camaro was not speeding, but a passenger was standing up through the car's open T-top roof and waving his arms. The car was driven by Jeffrey Pindale, age 20. The passengers were his wife Wanda Pindale, age 19, and his friends Albert Stavoli, age 19, and Maurice Davis, age 19.

Tesoroni made a U-turn on Landis Avenue and accelerated. He intended to give the driver a warning regarding a violation described by him as "allowing his passenger to ride on parts not intended for." Plaintiffs' App. at 15. The Camaro turned right onto Eighth Street and headed south into a residential neighborhood. Tesoroni followed the Camaro onto Eighth Street and, as he made the turn, activated his overhead lights. The Camaro drove for two blocks south to the intersection with Grape Street. Up until this point, the driver had committed no violation aside from allowing his passenger to stand through the T-roof.

The Camaro turned right onto Grape Street, where it accelerated to between 35 and 40 miles per hour and headed west. It drove through two stop signs where it slowed down but failed to stop. Tesoroni followed and accelerated. He slowed down at the stop signs but did not stop for them. The Camaro turned left onto Sixth Street and headed south for one block, and then left again onto Montrose Street heading east. The neighborhood was residential and had a 25 mile-per-hour speed limit. The Camaro pulled away 35 to 40 miles per hour, and Tesoroni followed at 30 to 35 miles per hour. At this point, Tesoroni radioed police headquarters and informed them of his actions.

The pursuit continued through the residential neighborhood, and more stop signs were run. Defendant Officer Richard Putnam was on patrol that evening. He positioned his car on Almond Street where it could block the flow of traffic. The Camaro sped down Almond Street and passed him. Putnam radioed police headquarters and stated that the "subject just swerved at me." Plaintiffs' App. at 14. When the Camaro reached the intersection of Almond Street and East Avenue, the driver turned his lights off. Tesoroni turned on his siren. The driver accelerated to 40 miles per hour and headed south on East Avenue for one block, then left onto Michigan Avenue for one block, and then south onto Myrtle Avenue for two more blocks until he reached Chestnut Avenue. Tesoroni accelerated to about 35 miles per hour to keep up with him.

At police headquarters, defendant Sergeant Edgar Zatzariny was in charge. He had the authority to order Tesoroni to discontinue the pursuit, but he did not do so. Sergeant Zatzariny directed the dispatcher to ask Tesoroni why he was pursuing the Camaro, but Tesoroni never responded.

The Camaro turned right onto Chestnut Avenue, a four-lane road with two lanes in each direction, and accelerated to 50 miles per hour heading west. Officer Putnam pulled out onto Chestnut Avenue from a sidestreet and blocked the outside westbound lane, with his headlights and overheard lights on. Putnam waved his arms to signal the Camaro to stop. It sped past him at 50 to 60 miles per hour, with Tesoroni in pursuit.

During the chase on Chestnut Avenue, Officer Peter Coccaro used his patrol car to block off Eighth Avenue where it intersected with Chestnut Avenue. The Camaro sped past him as well.

Defendant Officer Benny Velez drove to Chestnut Avenue from Sixth Street. He saw the Camaro speed past him with Tesoroni one to two blocks behind. Velez turned onto Chestnut Avenue behind the Camaro and in front of Tesoroni, thus becoming the lead officer in the pursuit. Velez had his siren and overhead lights on. The Camaro was going 70 to 80 miles per hour, and Velez pursued at 50 to 60 miles per hour. Pindale and the pursuing police cars ran several red lights on Chestnut Avenue.

As Velez drove over a rise at about Chestnut Avenue and Fourth Street, he saw the Camaro several blocks ahead at Chestnut Avenue and Holly Hill Terrace. Velez radioed headquarters that the car was approaching the intersection of Chestnut Avenue and Delsea Avenue, one block further away. Delsea Avenue, like Chestnut Avenue, is one of the main thoroughfares of Vineland. The Camaro ran a red light at the intersection and broadsided a pickup truck traveling on Delsea Avenue. The occupants of the pickup truck, Michael Fagan and Christopher Duke, were killed. Stavoli was killed. Wanda Pindale and Maurice Davis suffered crippling injuries. Jeffrey Pindale, the drunk driver, suffered minor injuries. Immediately after the collision, an independent witness to the collision saw four police cars approach the accident scene from the westbound lanes of Chestnut Avenue with their overhead lights and sirens on.

Some time before the collision, Jeffrey Pindale purchased two bottles of Strawberry Hill Wine from defendant Town Liquors. He, Wanda Pindale, Davis, and Stavoli spent the evening eating and drinking at his home. Jeffrey Pindale drank beer and Jack Daniels purchased from other vendors. He also drank two sips of the Strawberry Hill wine, though according to his wife, "Jeff's sips were more like gulps." Plaintiffs' Supp. App. at 6. After the accident, his blood alcohol level was .12%.

B. PROCEDURAL HISTORY

In January through March of 1990, the plaintiff-appellants Sarah Fagan, Maurice Davis, Jr., Wanda Pindale, Albino Genetti, and Mary Ellen Duke filed their complaints in the United States District Court for the District of New Jersey. They alleged that various Vineland police officers, including Officers Tesoroni, Velez, Putnam, and Coccaro, violated 42 U.S.C. § 1983 and their Fourteenth Amendment substantive due process rights by recklessly conducting the high-speed pursuit in violation of the Attorney General's guidelines. Plaintiffs brought separate, independent claims against the City and Police Chief Joseph Cassisi, Jr. for violating section 1983 and the Fourteenth Amendment by following a policy of not properly training and supervising police officers in the conduct of high-speed pursuits, and by following a policy of not enforcing the pursuit guidelines. Plaintiffs also sued defendant Town Liquors under New Jersey law for negligently selling alcoholic beverages to an underaged drinker and thus contributing to the accident. They brought various other claims under the Fourth Amendment and state law that are irrelevant to this appeal.

These five actions were consolidated. The case was originally assigned to Judge Joseph H. Rodriguez. After completion of discovery, the defendant police officers and City made their first motion for summary judgment. On July 26, 1991, Judge Rodriguez denied their motion. After additional discovery was permitted, defendant Town Liquors moved for summary judgment. In October of 1991, the case was reassigned to Judge William G. Bassler. The defendant police officers and City made their second motion for summary judgment. On July 27, 1992, Judge Bassler granted summary judgment in favor of defendant Town Liquors. On July 30, 1992, he granted summary judgment in favor of the police officers and City. Fagan v. City of Vineland, 804 F. Supp. 591 (D.N.J. 1992). Plaintiffs filed these appeals.

The district court had jurisdiction over the federal claims under 28 U.S.C. §§ 1331 and 1343(a)(3) and pendent jurisdiction over the state claims. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a grant of summary judgment and apply the same test as the district court under Fed. R. Civ. P. 56(c): whether there remains a genuine issue of material fact, and if ...


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