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Tull v. State

Decided: October 18, 1973.

HAROLD TULL, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS



Carton, Seidman and Goldmann. The opinion of the court was delivered by Goldmann, J.A.D., Temporarily Assigned.

Goldmann

This appeal stems from a Law Division action instituted by plaintiff Tull to recover for personal injuries suffered on July 7, 1970 during a civil disturbance in the City of Asbury Park. Named as defendants were the State of New Jersey; Attorney General Kugler; State Police Superintendent Kelly; "John Doe," an unidentified member of the New Jersey State Police; the City of Asbury Park; Asbury Park Police Chief Smith, and Asbury Park City Manager Siciliano.

Defendants State of New Jersey, Attorney General Kugler and State Police Superintendent Kelly moved to dismiss the complaint. The motion was granted.

Plaintiff's subsequent motion to add as defendants Major Graff, Lieutenant Brennan, Captain Dorrian and Captain Kell, all officers of the New Jersey State Police, was granted. A motion to dismiss the amended complaint or, in the alternative, to grant summary judgment in favor of these officers was filed. The trial judge found that each of them was entitled to summary judgment and ordered the amended complaint dismissed.

At trial, at the conclusion of plaintiff's case, the judge granted a motion to dismiss as to the remaining defendants, the City of Asbury Park, Police Chief Smith, City Manager Siciliano and "John Doe."

Plaintiff appeals from the judgment in favor of the municipal defendants, from the order dismissing the amended complaint as to the State Police officers, and from the order dismissing the complaint against the State, the Attorney General and Superintendent Kelly.

Plaintiff alleged that on July 7, 1970 he was shot, without cause, by an unidentified member of a contingent of the New Jersey State Police that had been summoned to Asbury Park, the site of the incident, to assist in maintaining order during a civil disturbance. He sued the State, the Attorney General, the State Police Superintendent, Asbury Park, Asbury Park

Police Chief and City Manager, and "John Doe" (the unidentified State Police trooper). He claimed that "Doe's" negligent or intentional or illegal acts caused the injury, imputing such negligence to all identifiable defendants on the doctrine of respondeat superior.

The court granted the dismissal motion of defendants State of New Jersey, the Attorney General, and the State Police Superintendent on the ground that all were immune from suit. Plaintiff had not, at the hearing on the motion, presented any material facts that would relate these defendants to the incident in any way other than their official status.

Upon joining Major Graff, Lieutenant Brennan and Captains Dorrian and Kell as defendants, plaintiff amended his complaint to charge them directly or vicariously with the shooting. In addition, a count of negligent or intentional supervision was included.

The affidavits of these men revealed that Dorrian was commander of the troop dispatched to Asbury Park, Kell was the officer responsible for investigating complaints of civilian shootings, Graff was Dorrian's superior, and Brennan was a criminal investigations officer assigned to another Troop. Their affidavits clearly placed each of them outside of Asbury Park at the time of the Tull incident.

Motion for summary judgment as to these four defendants was granted, the judge finding that plaintiff was unable either to connect them directly with the incident or to ...


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