SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6448-93T2
WILLIAM VALLEJO, BY HIS
GUARDIAN, AMPARO MORALES,
Plaintiffs-Appellants,
vs.
RAHWAY POLICE DEPARTMENT,
CITY OF RAHWAY, and DAVID
JACKSON,
Defendants-Respondents.
________________________________________
Argued: March 5, 1996 - Decided: July 18, 1996
Before Judges Dreier, A.M. Stein and Cuff.
On appeal from the Superior Court of New
Jersey, Law Division, Union County.
Alan D. Bell argued the cause for appellants.
Gerard P. DeVeaux argued the cause for
respondents Rahway Police Department and City
of Rahway (Karcher, Salmond, Rainone &
Barrett, attorneys; Mr. DeVeaux, of counsel;
Jarrod W. Harmon on the brief).
Antonia J. Casas argued the cause for
respondent David Jackson (Wilentz, Goldman &
Spitzer, attorneys; Kevin A. Calamoneri, of
counsel and on the brief).
The opinion of the court was delivered by
CUFF, J.A.D.
William Vallejo suffered severe brain damage in an aborted
suicide attempt while detained in a cell at the Rahway Police
Department. Through his guardian, plaintiff has asserted
negligence claims against a police officer, the police department
and the municipality and civil rights claims against the police
department and the municipality. Tried to a jury, judgment was
entered in favor of the defendants. We conclude that the
negligence claims against the police officer should not have been
dismissed and errors in the charge require a new trial. We affirm
the dismissal of the civil rights claim.
At approximately midnight on January 7, 1990, Officers David
Jackson and Robert Conroy responded to a report of domestic
violence. Plaintiff's girlfriend, Elba Delgado, with whom he
lived, was holding a butcher knife and her forearm was bleeding.
She told the officers that they argued when he took a knife from
the kitchen and that he stabbed her as she tried to defend herself.
In a certification submitted in opposition to defendant Jackson's
motion for summary judgment and at trial, Ms. Delgado asserted that
she informed Jackson at the scene that plaintiff had threatened to
kill her and himself. Jackson insists that Delgado relayed this
information to him at the police station and contemporaneously with
the discovery by another officer that Vallejo was hanging from the
bars in his cell.
It is undisputed that at the time of the incident and when
placed in the cell at police headquarters, Vallejo was intoxicated.
According to Officers Jackson and Conroy, when they confronted
Vallejo in his bedroom, he was composed and complied with all
requests. He remained calm and cooperative while he was
transported to the police station and processed prior to being
placed in a cell. Plaintiff inquired if he could make a phone
call; Jackson advised him to wait until bail was fixed. Jackson
observed that plaintiff seemed to understand the advice. After he
placed plaintiff in his cell at 12:45 a.m., Jackson made a log
entry. He noted that plaintiff was intoxicated.
Russell Tyrell occupied the cell next to plaintiff. He
recalled that, when the police officer brought plaintiff to the
cellblock, he was "weaving" and "wasn't listening very good because
the officer had to tell him twice everything that he did." About
five minutes after plaintiff was left in the cell, Tyrell heard
sounds coming from plaintiff's cell "like he was throwing up." The
noise continued for five to ten minutes. About five minutes after
the "vomiting" sound stopped, an officer returned to the cell.
Kevin Ferrence was in the cell on the other side of plaintiff.
He remembered that plaintiff had asked to call his sister and that
the police officer told him he would "be back in a minute." After
the officer left, Ferrence heard "[a sound] like he was moaning a
little bit. [Plaintiff] sounded like he was upset and then all of
a sudden, he was dry heaving." He also testified that he heard
plaintiff pacing back and forth in his cell and concluded that he
was depressed.
That evening Sergeant Joseph Visco was working in the
communications room with a "direct view" of plaintiff's cell from
a window. The cell was also monitored by an electronic video
surveillance system. Cell checks could be accomplished by watching
the monitors, walking into the cellblock, or looking through the
window of the communications room. According to Visco, unless the
detained person was on suicide watch, an occupied cell would be
checked every thirty minutes.
At 1:00 a.m., fifteen minutes after Vallejo had been placed in
the cell, Visco checked his cell by looking through the
communications room window. He made a note in the log that Vallejo
was intoxicated and sitting down.
At 1:15 a.m., a half-hour after Vallejo was placed in the
cell, Visco checked the monitor and saw "something against the bars
which I couldn't quite make out." Standing up, Visco saw that
plaintiff was "hanging from the cell bars." Visco alerted the
shift commander, ran to get Jackson, and told Jackson to follow him
because "the prisoner had hung himself."
When Visco and Jackson reached the cell, Vallejo was hanging
by the neck from his shirt. Visco reached through the bars to hold
Vallejo up. Jackson entered the cell, grabbed plaintiff by the
waist and lifted him up to remove the pressure from his neck.
Conroy relieved Jackson who cut the shirt from plaintiff's neck.
Visco and Conroy administered CPR and Jackson administered
oxygen. At 1:40 a.m., plaintiff was taken to the hospital. He
survived, but he suffers from post-anoxic encephalopathy with an
organic mental syndrome and motor dysfunction due to the
deprivation of oxygen to the brain.
Jackson testified that, if he had known that plaintiff had
threatened to kill himself at the time plaintiff entered the cell,
he would have notified his superiors. Lieutenant Lampkin, the
shift commander, testified that if the officers had known that
plaintiff was a suicide threat, the detainee log would have been
marked in large red letters and his cell would have been checked
every fifteen minutes. Moreover, his clothes would have been
removed and he would have been issued a jumpsuit which would tear
under pressure and could not have been utilized to fashion a noose.
Plaintiff raises eight points on appeal. Several of the
errors raised by plaintiff are clearly without merit. R. 2:11-3(e)(1)(E). We address only the summary judgment orders concerning
the negligence claim against Officer Jackson and the federal civil
rights claim against the City, the charge on special circumstances,
the exclusion of a portion of Dr. Brick's testimony, and the
failure to provide a limiting instruction concerning defendants'
"deliberate act" argument.
After seven days of trial and just prior to summations and charge, the trial judge was substituted. We reject plaintiff's argument before us that a mistrial should have been declared and that he is entitled to a new trial based solely on the substitution of the trial judge in the closing stages of the trial. Plaintiff argued vehemently against a mistrial in the trial court, and he will not be heard in this court to urge a contrary position. Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div.), certif. denied, 134 N.J. 567 (1993).
Beyond the mere event of substitution of the trial judge, plaintiff argues that the charge delivered by the newly substituted trial judge was inadequate because the substituted trial judge had
no familiarity with the record. Therefore, he was unable to relate
the law to the facts of the case.
During his charge the trial judge told the jury that "[i]n
determining whether reasonable care has been exercised, you will
consider whether ... the defendant ... ought to have perceived
under the attending circumstances that the natural and probable
consequences of his act or omission ... would ... cause some
injury." He told them "[i]t's not necessary the party had
anticipated the very occurrence, which resulted from the
wrongdoing, but it was sufficient that it was in the realm of
foreseeability that some harm might have occurred." He elaborated
on foreseeability:
If an ... ordinary police officer, under
similar circumstances and by the use of
ordinary care could have perceived the result,
and either would not have acted or if he did
act, would have taken precaution to avoid the
result[,] ... [t]hen the performance of the
act or failure to take such precautions would
constitute negligence.
The judge charged them at length on the duty of care and the effect
of "special circumstances" on that duty:
Let me tell you ... what the duty of care that
the City of Rahway owes to a prisoner. The
City of Rahway owes a duty to a prisoner, that
is the plaintiff, to keep them safe and to
protect them from unnecessary harm.
Reasonable and ordinary care must be exercised
for the life and health of a prisoner. The
City of Rahway is not liable to the plaintiff
while in custody for injuries resulting from
the plaintiff's own intentional conduct.
Absent some special circumstances ... a jailor
of the City of Rahway, is under no duty to
prevent a prisoner from attempting to take his
own life. However, once the ... jailor[]
knows or should have known of the suicidal
tendencies of the plaintiff, a duty arises to
provide reasonable care necessary to prevent
the prisoner from attempting suicide or
injuring himself.
The duty arises when a prisoner has ... [been]
brought into jail, as in a state of helpless
intoxication or other circumstances that would
place the City of Rahway under the
understanding that these represent special
circumstances. And obviously, if the special
circumstances exist, then the City of Rahway
is recognizing that their duty of care
increases [with] the risk of harm, they have
to exercise a greater degree of care. Without
your finding that special circumstances exist,
the City of Rahway cannot be held liable for
the intentional acts of the plaintiff in
attempting suicide.
Plaintiff's counsel requested during the charge conference an
instruction which referred to intoxication rather than helpless
intoxication and a reference to a prior suicide threat as special
circumstances. The trial judge declined these requests at the
charge conference and in response to plaintiff's timely objection
after delivery of the charge.
A trial judge is obliged to give a comprehensible explanation
of the questions that the jury must resolve and apprise them of the
law applicable to the issues in the case. State v. Green,
86 N.J. 281, 287-88 (1981). The trial judge is also obliged to relate the
law to the facts of the case. On appeal, this court reviews the
charge as a whole. State v. Wilbely,
63 N.J. 420, 422 (1973).
Since an improper jury instruction is a poor candidate for
application of the harmless error rule, State v. Simon,
79 N.J. 191, 206 (1979), a charge which misleads a jury will require a
reversal and a new trial. Ellis v. Caprice,
96 N.J. Super. 539,
546 (App. Div.), certif. denied,
50 N.J. 409 (1967).
In Hake v. Manchester Township,
98 N.J. 302, 318 (1985), the
Court observed that "`[s]pecial circumstances' form the basis of
most decisions involving a jailer's liability for a prisoner's acts
of self-destruction." In Hake, the plaintiff's son hanged himself
while detained in a cell at the police station. Id. at 308. The
young man had been drinking and was arrested for driving while
intoxicated. Id. at 306. He was placed in a detention area while
a detective called the boy's father. Id. at 307. The boy was
informed that he would be released to his father's custody but had
to return to the police station two days later to continue an
investigation into the boy's suspected involvement in the theft of
a truck earlier in the day. Ibid. Approximately one hour and
fifteen minutes later, the boy was found slumped on the floor with
his belt around his neck secured to the cell bars. Id. at 308.
The Court noted that the influence of alcohol or depression induced
by his arrest close to the Christmas holiday constituted special
circumstances requiring heightened scrutiny of the boy. Id. at
318.
Hake referred to cases in other jurisdictions which seem to
require the detainee to be profoundly or helplessly intoxicated
before the detainee's intoxication constitutes a special
circumstance. See Pretty on Top v. City of Hardin,
182 Mont. 311,
597 P.2d 58 (1979)(summary judgment properly granted because
intoxicated detainee who was coherent and did not stagger was not
helplessly intoxicated); Lucas v. City of Long Beach,
60 Cal. App.3d 341,
131 Cal. Rptr. 470 (Ct. App. 1976)(no evidential foundation
for jury's verdict that detainee's death was due to jailer's
negligence because there was no evidence that he was in need of
medical attention); see also Jane M. Draper, Annotation, Civil
Liability of Prison or Jail Authorities for Self-Inflicted Injury
or Death of Prisoner,
79 A.L.R.3d 1210 (1977). The Hake Court,
however, does not appear to require such a profound level of
intoxication before a jury may consider whether special
circumstances exist to trigger heightened scrutiny and whether a
suicide is foreseeable. Notably, Robert Hake's blood alcohol level
was 0.12" at the time of his arrest. Hake, supra, 98 N.J. at 306.
Thus, to limit the jury's consideration of the existence of special
circumstances to a detainee in a state of "helpless" intoxication
does not appear to accurately state the law in this state.
Furthermore, we are not sure how helpless intoxication has any
relevance to a jailer's standard of conduct in the context of a
detainee's suicide. We can envision that condition having some
relevance if the prisoner vomited and due to his helpless state
choked on his own vomit. However, suicide requires actions such as
disrobing, fashioning a noose and securing the noose to a
stationary object. We are at a loss as to how a person who is so
profoundly intoxicated that he is considered helpless can be
considered at risk for such a coordinated series of actions.
Of equal significance, the trial judge's limitation of special
circumstances to helpless intoxication ignored other factors in
this case. It was not enough to advise plaintiff's counsel that he
could argue to the jury that plaintiff had uttered an earlier
suicide threat and that could be considered in their assessment of
the City's conduct. Plaintiff's mental state and threats of
suicide are relevant to the jury's consideration of the existence
of special circumstances.
We do not mean to minimize the difficulty faced by the
substituted judge. At the time he entered the case, there had been
seven full trial days and the only testimony which remained to be
presented was the videotaped deposition of Dr. Brick and the brief
testimony of James Murphy. Then the new trial judge was obliged to
charge the jury. Under the circumstances, this was a daunting
task. The trial judge readily admitted during the charge
conference that he was unfamiliar with the testimony and could not
specifically relate the law to the evidence presented at trial.
This inability precluded him from adequately instructing the jury.
By limiting his instruction to "helpless intoxication," the trial
judge may have led the jury to believe that special circumstances
exist only in the event of helpless intoxication. Due to the
probability that this instruction may have misled the jury,
plaintiff is entitled to a new trial on this issue.
Since this matter must be retried, we address three issues which may arise in the next trial. If plaintiff continues to pursue the claim that defendants were negligent for failing to train the officers properly in suicide prevention, the trial judge
should expressly refer to the claim in the charge. This claim was
pressed by plaintiff, both parties discussed the evidence as it
related to this claim in their summations, and the judge directed
the jury to consider the evidence presented from experts regarding
national standards for suicide prevention. However, he never
expressly outlined for the jury that one of plaintiff's negligence
claims was the failure to properly train the officers.
Dr. Brick should also be allowed to testify regarding the
existence of a relationship between intoxication and suicide. The
trial judge concluded that Dr. Brick lacked the requisite expertise
to form an opinion on that relationship and that the foundation of
the opinion was unsound. We disagree. Dr. Brick, a biological
psychologist, has extensive academic and practical experience in
the field having served as a faculty member at the highly regarded
Rutgers Center for Alcohol Studies for fourteen years as of the
time of trial. We agree that Dr. Brick had no ability to predict
the occurrence of suicide by an individual intoxicated person.
However, that was not the purpose of his testimony. Dr. Brick
never sought to quantify the risk of suicide or offer a prediction
that plaintiff would attempt to commit suicide. Dr. Brick was
submitted solely to inform the jury that various studies have found
suicide one of the behavioral risks associated with intoxication
and that he informs law enforcement officers of that risk in the
course of his participation in various police training courses.
The information that self-destructive behavior is one of the
behavioral risks associated with intoxication, without any
quantification of that risk and without any prediction as to
plaintiff's behavior, should not have been excluded.
Finally, the trial judge should have issued a limiting
instruction in response to defendants' summation which urged that
the municipal defendants should not be liable for plaintiff's
deliberate act. The trial judge properly rejected defendants'
request to charge plaintiff's comparative negligence. Cowan v.
Doering,
111 N.J. 451, 468 (1988). Having declined to place
plaintiff's negligence before the jury, the limiting instruction
should have been delivered to assure that the jury properly focused
on only the relevant issues.
In Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), a new standard for addressing summary judgment motions was announced. Although the motion judge may evaluate the evidence offered by the proponent and opponent of the motion, that evaluation occurs in the context of the elements of the cause of action and the evidentiary standard. Id. at 533-34. By any standard, summary judgment should not have been granted as to the negligence claims against Jackson and the municipal defendants on a respondeat superior theory. The negligence claim against Jackson was predicated on his failure to communicate that he had been informed at the scene of the domestic violence incident that plaintiff had threatened to kill himself, as well as his girlfriend.
The motion judge clearly recognized the conflict in the
Delgado and Jackson certifications regarding when Jackson was told
that Vallejo had threatened to kill himself. Moreover, in the
section of the arrest report reserved for "reason for bail,"
Jackson wrote: "domestic violence, [plaintiff] is intoxicated,
violent, and a danger to himself and others." This dispute
concerning when Jackson was told by Delgado of plaintiff's threat
to kill himself raised a genuine issue of material fact not only as
to Jackson's negligence but also as to whether such negligence was
a proximate cause of plaintiff's injuries. The record reveals that
plaintiff was observed in fifteen minute intervals consistent with
the department's suicide watch protocol. However, plaintiff's
clothing was not removed as required by the protocol and he hanged
himself with his shirt.
The order dismissing the negligence claims against Jackson for
failing to report timely plaintiff's suicide threat to his
superiors is reversed. So too, the dismissal of the negligence
claims on this theory against defendant's municipal employer on a
respondeat superior basis must also be reversed and remanded for a
new trial.
Plaintiff also argues that the motion judge erred in dismissing his federal civil rights claims against the police department. Plaintiff alleged in his complaint that the department's failure to provide plaintiff needed medical care and
its deliberate choice not to train its officers in suicide
prevention deprived plaintiff of his federal civil rights.
A federal civil rights claim pursuant to
42 U.S.C.A.
§1983
based on police conduct requires proof of conduct beyond mere
negligence. For example, in the context of high-speed police
chases which cause injuries, such liability will be imposed only
for conduct which shocks the conscience. Fielder v. Stonack,
141 N.J. 101, 134 (1995); Kollar v. Lozier,
286 N.J. Super. 462, 473
(App. Div. 1996).
In City of Canton v. Harris,
489 U.S. 378, 389,
109 S. Ct. 1197, 1205,
103 L. Ed.2d 412, 427 (1989), the Court declared that
a municipality may be liable under
42 U.S.C.A.
§1983 (§ 1983) on
a "failure to train" theory only where a municipality's failure to
train its employees represents a "deliberate choice" to follow a
course of action. Important considerations include: whether the
training program is adequate; whether any deficiency is the result
of a faulty system or policy as opposed to the mere negligent
administration of a program; and the extent to which the deficiency
is "closely related to the ultimate injury." Id. at 390-91, 109 S.
Ct. at 1206, 103 L. Ed.
2d at 427-28. The fact that the officers
committed a mistake, or the fact that they could have been better
trained, will not result in liability under § 1983. Id. at 391,
109 S. Ct. at 1206, 103 L. Ed.
2d at 428. The Court indicated that
the "deliberate indifference" standard effectively equates with a
test of whether the need for particular training was "so obvious"
that a municipality's failure to provide it can be fairly
considered a policy decision. Id. at 390, 109 S. Ct. at 1205, 103
L. Ed.
2d at 427. A "policy" exists where decisionmakers have
deliberately chosen to follow a particular course. Pembaur v. City
of Cincinnati,
475 U.S. 469, 483-84,
106 S. Ct. 1292, 1300,
89 L.
Ed.2d 452, 465 (1986).
With specific regard to intoxicated and potentially suicidal
detainees, the United States Court of Appeals for the Third Circuit
has held that to establish a § 1983 action against a municipality
for maintaining a policy or custom of deliberate indifference
plaintiff must have shown that the officials
determined by the [court] to be the
responsible policymakers were aware of the
number of suicides in [municipal] lockups and
of the alternatives for preventing them, but
either deliberately chose not to pursue these
alternatives or acquiesced in a long-standing
policy or custom of inaction in this regard.
[Simmons v. City of Philadelphia,
947 F.2d 1042, 1064 (3d Cir. 1991), cert. denied,
503 U.S. 985,
112 S. Ct. 1671,
118 L. Ed.2d 391
(1992).]
When measured against this standard, the order dismissing the federal civil rights claim against the municipality was properly granted. In support of his claim, plaintiff argues that defendant's conduct exhibited a continual pattern of non-compliance with department policy and the New Jersey Administrative Code. Yet, the record before the motion judge revealed that plaintiff, although not subject to a suicide watch, was checked every fifteen minutes as required by the department suicide protocol. Moreover, the monitoring systems of the cells complied with applicable regulations. N.J.A.C. 10A:34-2.11. Although plaintiff asserts
that he should have been medically examined because he was
intoxicated, plaintiff failed to point to any regulation requiring
such an examination and failed to show how that omission caused his
injuries. In short, the record before the motion judge revealed
that the municipal defendant was aware of the risk of suicide by
detainees and had adopted a surveillance system commensurate with
the risk. The record also demonstrated that at most this was a
case of negligence, certainly not a case of deliberate
indifference.
Affirmed in part; reversed in part and remanded for a new
trial consistent with this opinion.